Related GAO Recommendations

In 2007, GAO found that there was limited guidance that focused specifically on retrospective reviews of regulations. In addition, most of the nine agencies GAO reviewed had standards for conducting mandatory retrospective reviews, but only about half of the agencies had such standards for conducting discretionary reviews. Based on our findings regarding the factors that may impede or facilitate retrospective reviews, GAO made recommendations to the Office of Management and Budget (OMB), through the Administrator of the Office of Information and Regulatory Affairs (OIRA), and to the Small Business Administration's (SBA) Chief Counsel for Advocacy and agencies have taken action in response to these recommendations. Specifically, we recommended that these agencies develop guidance for regulatory agencies that would include, among others, the following elements where appropriate:

  1. Prioritization of review activities based upon defined selection criteria. These criteria could take into account factors such as the impact of the regulation; the length of time since its last review; whether changes to technology, science, or the market have affected the regulation; and whether the agency has received substantial feedback regarding the regulation.
  2. Specific review factors to be applied to the conduct of agencies' analyses that include, but are not limited to, public input into regulatory review decisions.
  3. Minimum standards for documenting and reporting all completed review results. For reviews that included analysis, these minimal standards should include making the analysis publicly available.
  4. Mechanisms to assess their current means of communicating review results to the public and identify steps that could improve this communication. Such steps could include considering whether the agency could make better use of its agency Web site to communicate reviews and results, establishing an e-mail listserve that alerts interested parties to regulatory reviews and their results, or using other Web-based technologies (such as Web forums) to solicit input from stakeholders across the country.
  5. Steps to promote sustained management attention and support to help ensure progress in institutionalizing agency regulatory review initiatives.

In light of the overlapping and duplicative review factors in statutorily mandated reviews, and the difficulties identified by agencies in their ability to conduct useful reviews with predetermined time frames, GAO also recommended that the Administrator of OIRA and the Chief Counsel for Advocacy of SBA work with regulatory agencies to identify opportunities for Congress to revise the timing and scope of existing regulatory review requirements and/or consolidate existing requirements.

To facilitate the effectiveness and transparency of agencies' retrospective reviews, while maximizing their limited time and resources, GAO proposed that Congress may wish to consider authorizing a pilot program with selected agencies that would allow the agencies to satisfy various retrospective review requirements with similar review factors that apply to the same regulations by conducting one review that is reported to all of the appropriate relevant parties and oversight bodies.

In response to our recommendations, SBA developed guidance to federal agencies on how to conduct Section 610 reviews under the Regulatory Flexibility Act. The guidance specifically covers the required elements of a review, review documentation, and communication with the public about the results of reviews.

In January 2011, President Obama issued Executive Order 13563 which required agencies to submit to OIRA a preliminary plan under which the agency will periodically review its existing significant regulations. In February and April 2011, OMB issued guidance to federal agencies on how to conduct retrospective analysis of existing regulations and how to finalize their plans for conducting periodic retrospective reviews. The executive order and OMB guidance are consistent with the findings and recommendations of our 2007 report, including setting priorities, increasing public participation, and ensuring high-level management attention, among other factors. The OMB guidance also clarified that work conducted by the agencies to satisfy other retrospective review requirements can be used to address the requirements in Executive Order 13563.