Regulatory Reform:

Changes Made to Agencies' Rules Are Not Always Clearly Documented

GGD-98-31: Published: Jan 8, 1998. Publicly Released: Jan 8, 1998.

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Pursuant to a congressional request, GAO reviewed the regulatory review process, focusing on the Office of Information and Regulatory Affairs (OIRA) and four regulatory agencies, the Department of Housing and Urban Development (HUD) and Department of Transportation (DOT), the Department of Labor's Occupational Safety and Health Administration (OSHA), and the Environmental Protection Agency (EPA), and on whether: (1) the regulatory agencies had identified for the public the substantive changes made to their regulations between the draft they submitted to OIRA and the regulatory actions they subsequently announced; (2) the regulatory agencies identified for the public the changes made to their regulations at the suggestion or recommendation of OIRA; and (3) OIRA had made available to the public all documents exchanged between OIRA and the selected agencies during OIRA's review.

GAO noted that: (1) EPA, DOT, HUD, and OSHA had complete documentation available to the public of all of the substantive changes made to their rules between the draft submitted to OIRA and the actions subsequently announced for about 26 percent of the 122 regulatory actions that GAO reviewed; (2) for about 30 percent of the regulatory actions, the agencies had some documentation available to the public indicating that changes had been made to the rules while at OIRA, but the information did not indicate whether all such changes had been documented; (3) for the remaining 44 percent of the regulatory actions, the agencies had no documentation available to the public of changes made during OIRA's review; (4) because Executive Order 12866 does not specifically require agencies to document that no changes were made to rules while they were under review at OIRA, the absence of documentation does not necessarily mean that the agencies were not complying with the order; (5) however, it was unclear whether the absence of documentation meant that no changes had been made to the rules or whether changes had been made but they had not been recorded; (6) the agencies had complete documentation available to the public of all of the changes that OIRA had suggested or recommended for about 24 percent of the 122 regulatory actions; (7) for about 17 percent of the regulatory actions, the agencies had some documentation available to the public indicating that OIRA had suggested changes to the rules, but the information did not indicate whether all such changes had been documented; (8) for the remaining 59 percent of the actions, the agencies had no documentation available to the public indicating whether changes had been made at the suggestion or recommendation of OIRA; (9) for some of these actions, the agencies had documentation available indicating that changes had been made to the rules during the rulemaking process, but it was unclear whether any of the changes were at OIRA's suggestion; (10) even those rules for which the agencies had complete documentation of all changes made while they were at OIRA and at the suggestion of OIRA, the documents were not always available to the public or easy to locate; and (11) GAO could not identify all of the documents that had been exchanged between the agencies and OIRA during the regulatory review process, so it could not be determined whether OIRA had made all such documents available to the public.

Recommendation for Executive Action

  1. Status: Closed - Not Implemented

    Comments: As indicated in the report, the Administrator of OIRA had concerns about the recommendation. Specifically, she stated that it is not the role of OMB to advise other agencies on general matters of administrative practice. She considered that the organization of agency rulemaking dockets--what material is included; when is it included; how is it organized--is an issue covered by administrative law and regulatory practice. GAO pointed to specific requirements placed on the agency in Executive Order 12866 that seem to run counter to the Administrator's position that it is not OMB's role to advise agencies on matters of administrative practice. Therefore, GAO retained the recommendation. However, OMB still adheres to the Administrator's position and does not intend to take action on the recommendation.

    Recommendation: The Administrator, OIRA, should provide the agencies with guidance on how to implement Executive Order 12866 transparency requirements. The guidance should require agencies to include a single document in the public docket for each regulatory action that: (1) identifies all substantive changes made during OIRA's review and at the suggestion or recommendation of OIRA; or (2) states that no changes were made during OIRA's review or at OIRA's suggestion or recommendation. The guidance should also indicate that agencies should document changes made at OIRA's suggestion whenever they occur, not just during the period of OIRA's formal review. Finally, the guidance should point to best practices in some agencies to suggest how other agencies can organize their dockets to best facilitate public access and disclosure.

    Agency Affected: Executive Office of the President: Office of Management and Budget: Office of Information and Regulatory Affairs

 

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