Regulatory Guidance Processes:

Selected Departments Could Strengthen Internal Control and Dissemination Practices

GAO-15-368: Published: Apr 16, 2015. Publicly Released: May 18, 2015.

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What GAO Found

The four departments—Agriculture (USDA), Education (Education), Health and Human Services (HHS), and Labor (DOL)—and their selected components used guidance for multiple purposes, such as clarifying or interpreting regulations and providing grant administration information. The terminology used for agency guidance varied and agency components issued varying amounts of guidance, ranging from about 10 to over 100 guidance documents each year. The key criterion used when deciding whether to issue a regulation or guidance was whether it needed to be binding; in such cases agencies proceeded with regulation. Officials reported that they routinely consulted with legal counsel when making these choices. Departments typically identified few of their guidance documents as “significant,” generally defined by the Office of Management and Budget (OMB) as guidance with a broad and substantial impact on regulated entities.

All four departments identified standard practices to follow when developing guidance. They addressed OMB's requirements for significant guidance to varying degrees and could strengthen internal controls for issuing guidance. Education and USDA had written departmental procedures for approval of significant guidance as required by OMB. DOL's procedures were not available to staff and required updating. HHS had no written procedures. Ensuring these procedures are available could better ensure that components consistently follow OMB's requirements. In the absence of specific government standards for non-significant guidance—the majority of issued guidance—the application of internal control standards is particularly important. The 25 components GAO reviewed addressed some control standards more regularly than others. For example, few components had written procedures to ensure consistent application of guidance processes. All components could describe standard review practices and most used tools to document management approval of draft guidance. Of the 25 components, 15 cited examples in which they conferred with external nonfederal stakeholders while developing guidance and nearly half did not regularly evaluate whether issued guidance remained current and effective.

Components used different strategies to disseminate guidance and all relied primarily on posting the guidance on their websites. As such, components should follow applicable requirements for federal websites. One of these requirements—easy access to current and relevant guidance—could also facilitate opportunities for affected parties and stakeholders to provide feedback on those documents. USDA, DOL, and Education posted their significant guidance on a departmental website as directed by OMB; HHS did not. Components used several strategies—including organizing guidance by audience or topic and highlighting new or outdated guidance—to facilitate access. However, GAO identified factors that hindered online access, including long lists of guidance and documents dispersed among multiple web pages. All components GAO studied collected web metrics and many used them to evaluate online guidance dissemination. However, many of these components did not use metrics to improve how they disseminated guidance through their websites. Beyond their websites, components found other ways to disseminate and obtain feedback on issued guidance, including focus groups, surveys, and direct feedback from the public at conferences, webinars, and from monitoring visits.

Why GAO Did This Study

Agencies rely on guidance to clarify regulatory text or statutes, to respond to the questions of affected parties in a timely way, and to inform the public about complex policy implementation topics. Unlike regulations, guidance is not legally binding.

GAO was asked to examine guidance processes at four departments. This report reviews how (1) agencies use guidance and decide to issue guidance rather than regulations; (2) follow applicable criteria and leading practices in their policies, procedures, and practices for producing guidance; and (3) agencies disseminate guidance to ensure public access and feedback. GAO reviewed guidance processes at all 25 components in the four departments that (1) were within the requesting committee's jurisdiction, and (2) engaged in regulatory or grant activities. GAO reviewed relevant requirements, written procedures, guidance and websites, and interviewed agency officials.

What GAO Recommends

GAO is recommending that HHS and DOL ensure consistent application of OMB requirements for significant guidance. GAO also recommends that USDA, Education, HHS, and DOL strengthen the use of internal controls in guidance production processes and improve online guidance dissemination. USDA, Education, HHS and DOL generally agreed with the recommendations.

For more information, contact Michelle Sager at (202) 512-6806 or sagerm@gao.gov.

Recommendations for Executive Action

  1. Status: Open

    Comments: In comments printed in the April 2015 final report, HHS concurred with the recommendation and stated that it would explore the best mechanism for distributing written procedures for approval of significant guidance. As of April 2016, HHS officials have not provided any additional updates on the status of the department's actions to implement this recommendation.

    Recommendation: To better ensure the adherence to requirements for approval and public access to and feedback on significant guidance in accordance with OMB's Final Bulletin for Agency Good Guidance Practices (M-07-07), the Secretary of HHS should develop written procedures for the approval of significant guidance documents.

    Agency Affected: Department of Health and Human Services

  2. Status: Closed - Implemented

    Comments: In a May 2016 update on the status of this recommendation, Department of Labor officials stated that the Department had reviewed and updated its written procedures for approval of significant guidance, disseminated the procedures, and made the procedures available to all staff by disseminating them through its Regulatory Council and via the Department's Intranet on December 31, 2015. The updated written procedures address the definition of significant guidance, how significance determinations are to be made, and the steps to be followed for clearance of significant guidance.

    Recommendation: To better ensure the adherence to requirements for approval of significant guidance in accordance with OMB's Final Bulletin for Agency Good Guidance Practices (M-07-07), the Secretary of Labor should review and update the department's written procedures for approval of significant guidance and make them available to appropriate component staff.

    Agency Affected: Department of Labor

  3. Status: Open

    Comments: In an August 2015 response, USDA generally agreed with the recommendation and stated that the Office of Policy Support for USDA's Food and Nutrition Service (FNS) is developing written procedures for developing non-significant guidance. The procedures will address GAO's recommendations with regard to written procedures, improved communication tools, ongoing monitoring, and Web site postings. The Office of Policy Support is collaborating with all of the FNS program areas on the development of these procedures. The targeted completion date for the written procedures was January 31, 2016. As of April 2016, USDA officials have not provided any additional updates on the status of the department's actions to implement this recommendation.

    Recommendation: To improve agencies' guidance development, review, evaluation, and dissemination processes for non-significant guidance, we recommend that the Secretaries of USDA, HHS, DOL, and Education should strengthen their selected components' application of internal controls to guidance processes by adopting, as appropriate, practices developed by other departments and components, such as assessment of risk; written procedures and tools to promote the consistent implementation and communication of management directives; and ongoing monitoring efforts to ensure that guidance is being issued appropriately and has the intended effect. Examples of practices that could be adopted more widely include (1) written procedures for guidance production to, among other things, clearly define management roles; (2) improved communication tools, such as routing slips to document management review; and (3) consistent and ongoing monitoring to determine if guidance is being accessed and having the intended effect.

    Agency Affected: Department of Agriculture

  4. Status: Open

    Comments: As of March 2016, Education officials stated that they had summarized the guidance development, clearance, and monitoring processes for each Education component agency and reviewed the guidance processes at the other Department within the scope of GAO's 2015 report. Planned actions included (1) identifying best practices for guidance production based on the Department's internal and external reviews, and (2) develop and finalize written departmentwide protocols for review and clearance of guidance.

    Recommendation: To improve agencies' guidance development, review, evaluation, and dissemination processes for non-significant guidance, we recommend that the Secretaries of USDA, HHS, DOL, and Education should strengthen their selected components' application of internal controls to guidance processes by adopting, as appropriate, practices developed by other departments and components, such as assessment of risk; written procedures and tools to promote the consistent implementation and communication of management directives; and ongoing monitoring efforts to ensure that guidance is being issued appropriately and has the intended effect. Examples of practices that could be adopted more widely include (1) written procedures for guidance production to, among other things, clearly define management roles; (2) improved communication tools, such as routing slips to document management review; and (3) consistent and ongoing monitoring to determine if guidance is being accessed and having the intended effect.

    Agency Affected: Department of Education

  5. Status: Open

    Comments: In comments printed in the April 2015 final report, HHS concurred with the recommendation and stated that it would continue to work with its agencies to share best practices and ensure that agency practices are alighted with departmental standards. As of April 2016, HHS officials have not provided any additional updates on the status of the department's actions to implement this recommendation.

    Recommendation: To improve agencies' guidance development, review, evaluation, and dissemination processes for non-significant guidance, we recommend that the Secretaries of USDA, HHS, DOL, and Education should strengthen their selected components' application of internal controls to guidance processes by adopting, as appropriate, practices developed by other departments and components, such as assessment of risk; written procedures and tools to promote the consistent implementation and communication of management directives; and ongoing monitoring efforts to ensure that guidance is being issued appropriately and has the intended effect. Examples of practices that could be adopted more widely include (1) written procedures for guidance production to, among other things, clearly define management roles; (2) improved communication tools, such as routing slips to document management review; and (3) consistent and ongoing monitoring to determine if guidance is being accessed and having the intended effect.

    Agency Affected: Department of Health and Human Services

  6. Status: Closed - Implemented

    Comments: In a May 2016 update on the status of this recommendation, Department of Labor officials stated that the Department had convened an internal working group meeting to share best practices on the application of internal control standards. To assist agencies in their development of internal controls, the Department also developed and disseminated a checklist for their consideration as they develop new non-significant guidance documents. The checklist includes sections on the reason for issuing guidance, analysis and engagement that should take place during guidance development, how the guidance should be cleared, and what should be considered for the rollout of the guidance.

    Recommendation: To improve agencies' guidance development, review, evaluation, and dissemination processes for non-significant guidance, we recommend that the Secretaries of USDA, HHS, DOL, and Education should strengthen their selected components' application of internal controls to guidance processes by adopting, as appropriate, practices developed by other departments and components, such as assessment of risk; written procedures and tools to promote the consistent implementation and communication of management directives; and ongoing monitoring efforts to ensure that guidance is being issued appropriately and has the intended effect. Examples of practices that could be adopted more widely include (1) written procedures for guidance production to, among other things, clearly define management roles; (2) improved communication tools, such as routing slips to document management review; and (3) consistent and ongoing monitoring to determine if guidance is being accessed and having the intended effect.

    Agency Affected: Department of Labor

  7. Status: Open

    Comments: In an August 2015 response, USDA generally agreed with the recommendation and stated that the Office of Policy Support for USDA's Food and Nutrition Service (FNS) is developing written procedures for developing non-significant guidance. The procedures will address GAO's recommendations with regard to written procedures, improved communication tools, ongoing monitoring, and Web site postings. The Office of Policy Support is collaborating with all of the FNS program areas on the development of these procedures. The targeted completion date for the written procedures was January 31, 2016. As of April 2016, USDA officials have not provided any additional updates on the status of the department's actions to implement this recommendation.

    Recommendation: To improve agencies' guidance development, review, evaluation, and dissemination processes for non-significant guidance, we recommend that the Secretaries of USDA, HHS, DOL, and Education should improve the usability of selected component websites to ensure that the public can easily find, access, and comment on online guidance. These improvements could be informed by the web and customer satisfaction metrics that components have collected on their websites. Some examples of changes that could facilitate public access to online guidance include (1) improving website usability by clarifying which links contain guidance; (2) highlighting new or important guidance; and (3) ensuring that posted guidance is current.

    Agency Affected: Department of Agriculture

  8. Status: Open

    Comments: In March 2016, agency officials stated that they had obtained information from Education component officials on their presentation of guidance online and reviewed the online presentations of guidance at other departments. They planned to (1) assess web metrics of Education websites and (2) draft recommended best practices for presentation of online guidance documents based on their review of internal and external practices.

    Recommendation: To improve agencies' guidance development, review, evaluation, and dissemination processes for non-significant guidance, we recommend that the Secretaries of USDA, HHS, DOL, and Education should improve the usability of selected component websites to ensure that the public can easily find, access, and comment on online guidance. These improvements could be informed by the web and customer satisfaction metrics that components have collected on their websites. Some examples of changes that could facilitate public access to online guidance include (1) improving website usability by clarifying which links contain guidance; (2) highlighting new or important guidance; and (3) ensuring that posted guidance is current.

    Agency Affected: Department of Education

  9. Status: Open

    Comments: In comments printed in the April 2015 final report, HHS concurred with the recommendation and stated that it would review current links to guidance documents and explore ways to enhance their visibility and usability. As of April 2016, HHS officials have not provided any additional updates on the status of the department's actions to implement this recommendation.

    Recommendation: To improve agencies' guidance development, review, evaluation, and dissemination processes for non-significant guidance, we recommend that the Secretaries of USDA, HHS, DOL, and Education should improve the usability of selected component websites to ensure that the public can easily find, access, and comment on online guidance. These improvements could be informed by the web and customer satisfaction metrics that components have collected on their websites. Some examples of changes that could facilitate public access to online guidance include (1) improving website usability by clarifying which links contain guidance; (2) highlighting new or important guidance; and (3) ensuring that posted guidance is current.

    Agency Affected: Department of Health and Human Services

  10. Status: Open

    Comments: In comments reprinted in the April 2015 final report, Labor concurred with the recommendation and stated that it would encourage agencies to consider website improvements and better use of web metrics to ensure access and public comments on guidance. As of April 2016, Labor officials have provided no additional updates on the department's actions to implement this recommendation.

    Recommendation: To improve agencies' guidance development, review, evaluation, and dissemination processes for non-significant guidance, we recommend that the Secretaries of USDA, HHS, DOL, and Education should improve the usability of selected component websites to ensure that the public can easily find, access, and comment on online guidance. These improvements could be informed by the web and customer satisfaction metrics that components have collected on their websites. Some examples of changes that could facilitate public access to online guidance include (1) improving website usability by clarifying which links contain guidance; (2) highlighting new or important guidance; and (3) ensuring that posted guidance is current.

    Agency Affected: Department of Labor

  11. Status: Open

    Comments: In comments printed in the April 2015 final report, HHS concurred with the recommendation and stated that it would work with its agencies to update links to published guidance and make published guidance easier to find on HHS webpages. As of April 2016, HHS officials have not provided any additional updates on the status of the department's actions to implement this recommendation.

    Recommendation: To better ensure the adherence to requirements for approval and public access to and feedback on significant guidance in accordance with OMB's Final Bulletin for Agency Good Guidance Practices (M-07-07), the Secretary of HHS should ensure that the department's significant guidance is accessible online and that the public can provide comments on significant guidance documents.

    Agency Affected: Department of Health and Human Services

 

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