We coded the regulatory provisions as being within the authority granted by the statutes if (1) the statutory provision gave the agency no discretion in how the regulations could be developed and the regulatory provision strictly adhered to the statutory requirements; or (2) the statutory provision gave the agency some or broad discretion, and the regulatory provision was consistent with the requirements or the limitations in the statute. We concluded that in relation to 13 of the 27 concerns, the agencies could not have developed less burdensome regulatory approaches. For the remaining 14 concerns in which we concluded the underlying statutes gave the agencies some or broad discretion, we could not determine whether a less burdensome regulatory approach was available. The statutes underlying other company concerns gave the agencies some or broad discretion in developing associated regulatory provisions. Our objectives were to determine, for each such concern, (1) the amount of discretion the underlying statutes gave the agencies in developing the regulatory requirements that the agencies had said were attributable to the underlying statutes, (2) whether the regulatory requirements at issue were within the authority granted by the underlying statutes, and (3) whether the rulemaking agencies could have developed regulatory approaches that would have been less burdensome to the regulated entities while still meeting the underlying statutory requirements. Concerns for Which Agencies Appeared to Have No Rulemaking Discretion

One of the objectives of our review was to determine, for each of 27 company concerns, the amount of discretion the underlying statutes gave rulemaking agencies in drafting the regulatory requirements that the agencies said were attributable to the underlying statutes. In this review we concluded that the statutory provisions underlying 13 of the 27 concerns gave the rulemaking agencies no discretion in how the related regulatory requirements could be drafted. Specifically, for each such concern it provides the following information: (1) the portion of the concern in our 1996 reports that the agency or agencies indicated was statutorily based, (2) the portion of the agency response in our 1996 reports that indicated the concern was statutorily based, (3) our analysis of the amount of rulemaking discretion the relevant statutory provisions gave the agencies (the first objective of this review), (4) our analysis of whether the regulatory requirements at issue in the concern were within the authority granted by the underlying statutes (the second objective of our review), (5) our analysis of whether the rulemaking agencies could have developed regulatory approaches that would have been less burdensome to the regulated entities while meeting the underlying statutory requirements (the third objective of our review), and (6) the main purpose of the underlying statutes (where such purpose statements were available). All of these elements were required in the statute. We believe that FDIC had some discretion in developing regulations governing bank reporting requirements. Therefore, HUD had no discretion with regard to these requirements. To do so we would have had to initiate a separate analysis of each provision for which IRS had rulemaking discretion— analyses that would have required extensive time and resource commitments that were beyond the scope of this assignment.
Why GAO Did This Study

Pursuant to a congressional request, GAO reviewed federal agencies' assertions that certain private-sector regulatory concerns were, at least in part, attributable to underlying statutes, focusing on: (1) the amount of discretion the underlying statutes gave the rulemaking agencies in developing the regulatory requirements that the agencies had said were attributable to the underlying statutes; (2) whether the regulatory requirements at issue were within the authority granted by the underlying statutes; and (3) whether the rulemaking agencies could have developed regulatory approaches that would have been less burdensome to the regulated entities while still meeting the underlying statutory requirements.

What GAO Found

GAO noted that: (1) the statutes underlying 13 of the 27 regulatory concerns that it examined gave the rulemaking agencies no discretion in establishing the regulatory requirements at issue; (2) in these cases, the underlying statutes specifically stated what the regulated entities must do, and, by inference, what the related regulations must require; (3) the underlying statutes for 12 of the 27 concerns gave the agencies some discretion in developing the regulatory requirements at issue; (4) in these cases, the agencies often had no rulemaking discretion with regard to certain issues but had some or broad discretion regarding other issues; (5) the agencies had broad discretion in developing the regulatory requirements at issue in the two remaining concerns; (6) the regulatory provisions the agencies developed in relation to all of the 27 company concerns were within the authorities granted by the underlying statutes; (7) for those concerns in which the underlying statements gave the agencies no discretion as to how the associated regulations could be developed, those regulations were consistent with, and often mirrored, the specific requirements in the statutes; (8) for those concerns in which the statutes gave the agencies some or broad rulemaking discretion, the regulations did not appear to exceed the discretion allowed in those statutes; (9) for the 13 concerns for which GAO concluded agencies had no discretion, it also concluded that there were no less burdensome regulatory approaches available to the agencies that would have met the requirements of the statutes; (10) GAO could not determine whether less burdensome regulatory approaches were available for the remaining 14 of the 27 concerns, for which the statutes gave the agencies some or broad rulemaking discretion; (11) to make those determinations, GAO would have had to conduct a detailed examination of the implementation of each of the regulatory provisions that the agencies had said were attributable to the underlying statutes and the implications of alternative approaches--analyses that would have required time and resource commitments that were beyond the scope of this review; and (12) although this review focused on only 27 regulatory concerns, GAO believes that it can offer insights into some broader issues.