CRA was enacted to better ensure  that Congress has an opportunity to review and possibly disapprove  regulations, in certain cases, before they become effective. Agencies Published More Final Regulations and More Frequently Provided Advanced Notice to the Public during Transition Periods

The three administrations published a higher number of economically  significant and significant final regulations at the end of each President’s  second term compared to the nontransition periods. (See figures 1 and  2.) The administrations published on average roughly 2.5 times more  economically significant regulations during their transition periods than  during nontransition periods. For significant regulations, HHS was the most active agency during both  transition and nontransition periods. Nearly All Economically Significant Regulations Reported to the Public Compliance with Four Procedural Requirements, but a Quarter Did Not Comply with the Congressional Review Act

		Agencies Reported to the Public that They Complied with Four Procedural Requirements for Nearly All Economically Significant Regulations and the Majority of Significant Regulations

Regulatory Flexibility Act (RFA), Paperwork Reduction Act (PRA),  and the Unfunded Mandates Reform Act of 1995 (UMRA): We found  that 91 percent of economically significant regulations across all periods  reviewed explained to the public the determinations the agencies made  regarding these three procedural requirements. 12866, OIRA is also responsible for oversight of agencies’  rulemaking, consistent with law, and reviews regulations before  publication, which provides it an opportunity to identify and help agencies  avoid potential noncompliance. OIRA staff  should use this opportunity to identify economically significant regulations  whose planned effective dates appear at risk of not providing Congress  with sufficient time to review the regulation. Recommendation for Executive Action

We are making the following recommendation to the Director of OMB:
The Director of OMB should ensure that OIRA’s staff, as part of the  regulatory review process, examine the planned timeframes for  implementing economically significant regulations or major rules and  identify regulations that appear at potential risk of not complying with  the Congressional Review Act’s delay requirements and then work  with the agencies to ensure compliance with these requirements  (Recommendation 1). OMB staff did not agree or disagree with our  recommendation. Appendix I: Objectives, Scope, and Methodology

Section 5 of the Edward “Ted” Kaufman and Michael Leavitt Presidential  Transitions Improvements Act of 2015 includes a provision for us to  assess final significant regulatory actions promulgated by executive  departments during specified presidential transition periods and to  analyze and compare multiple characteristics of regulations issued during  these transition periods to each other and to regulations issued during the  same 120-day period (September 23 to January 20) in nontransition  years since 1996. Agencies’ reported compliance with procedural requirements for  promulgating the regulations; and  3. In general, to address each of these objectives we reviewed the universe  of all 527 final economically significant regulations published during the  specified time periods and a generalizable stratified random sample of  358 final significant regulations from the population of the 1,633 final  significant regulations published during those same periods. Analyses of Indicators Related to the Numbers, Scope, and Transparency of Regulations

In this section, we provide additional information from our analyses of:  the extent to which economically significant regulations were  published before or after the presidential elections in 2000, 2008, and  2016;  the most active rulemaking agencies for economically significant and  significant regulations among the three administrations’ transition and  nontransition periods;  the number of economically significant regulations for which agencies  reported they were under a statutory or judicial deadline to promulgate  the regulation; and  the median length, in days, of Office of Information and Regulatory  Affairs (OIRA) regulatory reviews under Executive Order (E.O.)
Why GAO Did This Study

The Presidential Transitions Improvements Act of 2015 includes a provision for GAO to assess multiple characteristics of final significant regulatory actions promulgated by executive departments during presidential transition periods (September 23 through January 20) at the end of Presidents Clinton, Bush, and Obama's administrations and compare them to each other and to regulations issued during the same 120-day period in nontransition years since 1996.
Among other objectives, GAO assessed the extent to which there was variation in 1) the number of regulations, their scope, and other indicators; and 2) agencies' reported compliance with procedural requirements for promulgating the regulations. To address these objectives, GAO reviewed the text of the regulations published in the Federal Register , and reviewed the universe of all 527 economically significant final regulations (generally those with an annual effect of $100 million or more) published during the specified transition and nontransition periods and a generalizable stratified random sample of 358 of the 1,633 significant final regulations published during the same time periods.

What GAO Found

During transition periods at the end of presidential administrations, agencies published more final regulations and more frequently provided advanced notice to the public on those regulations compared to nontransition periods. The Clinton, Bush, and Obama administrations published on average roughly 2.5 times more economically significant regulations during transition periods than during nontransition periods. But agencies more often, relative to nontransition periods, provided the public an opportunity to influence the development of the transition-period regulations by providing advanced notice of their issuance and opportunities to comment on proposed regulations before they were finalized.
In their published regulations, agencies reported that compliance with four of five procedural requirements was high during both transition and nontransition periods, but not with the Congressional Review Act (CRA). During all periods, agencies reported complying with requirements, such as the Regulatory Flexibility Act, for nearly all economically significant regulations and the majority of significant regulations. Agencies less often complied with one or more CRA requirements. (See figure.) Though agencies are responsible for complying with CRA, the Office of Management and Budget (OMB) is responsible for oversight of agencies' rulemaking, consistent with law, and reviews regulations before publication, which provides an opportunity to identify and help agencies avoid potential noncompliance. The most common CRA deficiency was agencies' failure to provide Congress the required time to review and possibly disapprove regulations, which GAO has also identified as a deficiency in previous work. Economically significant regulations for which OMB completed its review within 3 months before the planned effective date were at high risk of not complying with CRA, thus increasing the risk that agencies would not provide Congress with the required time for its reviews.
Economically Significant Regulations Determined to be Noncompliant with the Congressional Review Act

What GAO Recommends

GAO recommends that OMB, as part of its regulatory review process, identify economically significant regulations at potential risk of not complying with CRA and work with agencies to ensure compliance. OMB staff did not agree or disagree with the recommendation.