Federal regulations help agencies achieve important public benefits, such as ensuring public health, but they can also impose significant costs.
Congress and presidents have worked to enhance oversight of the federal rulemaking process to promote greater transparency and public participation, and to reduce regulatory burden. For example, recent administrations have directed agencies to identify rules that are obsolete or in need of revision. And, during the COVID-19 pandemic, Executive Order 13924 directed agencies to rescind, modify, waive, or provide exemptions from regulations and other requirements that may inhibit economic recovery.
The process for creating federal regulations generally has three main phases:
- 1. Initiating rulemaking actions
- 2. Developing proposed rules
- 3. Developing final rules
In practice, however, this process is often complex, requiring regulatory analysis, internal and interagency reviews, and opportunities for public comments. There are a number of ways to improve the transparency and effectiveness of this process.
Transparency of the regulatory process is important—it helps the public better understand the rulemaking process and aids in congressional oversight. Regulatory transparency can be improved in a number of ways, including:
- Identifying significant rules. The Office of Management and Budget (OMB) reviews rules considered “significant” under criteria established by executive order. Rules designated as significant require additional interagency reviews and an assessment of the rule’s costs and benefits. However, for a majority of such rules, neither OMB nor the agency explains why a rule has been designated significant. OMB could work with federal agencies to clearly communicate the reasoning for this determination.
- Responding to public comments. Federal agencies are usually required to publish a proposed rule in the Federal Register and solicit public comments before finalizing regulations. However, there are exceptions to expedite rulemaking in certain circumstances, such as for an emergency or other “good cause.” Although agencies often request public comments on rules they’ve expedited, they do not always respond to these comments. Further, agencies often seek electronic comments on Regulations.gov, but do not always ensure the authenticity of the comments. OMB could issue additional guidance and agencies could take steps to improve rules and better respond to the public.
- Performing and documenting reviews. Federal agencies can improve how they perform and document OMB and interagency reviews of their significant rules. For example, some agencies do not provide clear and complete documentation of some of the changes made during these reviews. Agencies also need to work with OMB to ensure that rules comply with the Congressional Review Act.
Promoting effective regulations
Federal agencies need to ensure that they have effective processes to develop, review, disseminate, and evaluate their regulations, related guidance, and user fees. Some issues to consider include:
- Regulatory user fees. User fees are assessed on certain entities that are subject to regulation, and they represent a significant source of federal revenue. Agencies should consider certain key elements when setting, collecting, using, and evaluating these fees, such as the timing of fee collections and outreach to stakeholders.
- Regulatory guidance. Federal agencies publish guidance to help clarify or interpret regulations for the public. While some agencies have standard practices for developing guidance, they could strengthen the use of internal controls (such as maintaining written procedures). Agencies could also make guidance easier for the public to access online.
- Existing regulations. Analyzing existing regulations can help federal agencies evaluate how well the regulations are working. Agencies often make changes to regulations in response to these analyses. However, they could also improve progress reporting and strengthen the links between these analyses and their performance goals. Agencies could also reduce the paperwork burden associated with federal regulations by reviewing their burden estimates and making necessary revisions.
- Foreign regulatory cooperation. Federal agencies are increasingly regulating products that originate overseas. Reducing existing (and avoiding future) regulatory differences between countries can enhance public health and safety, facilitate trade, and support the competitiveness of U.S. businesses. Key practices, such as early and ongoing coordination and stakeholder involvement, can facilitate international regulatory cooperation.
GAO-20-383R: Published: Apr 16, 2020. Publicly Released: May 18, 2020.
Federal agencies publish thousands of rules every year. To ensure the public has an opportunity to participate in the rulemaking process, agencies solicit comments on proposed regulations. We surveyed 52 program offices at 10 agencies about the comment process. Almost all of them indicated that the process led to at least some substantive changes to their final rules. Eight of the ten selected a...
GAO-19-483: Published: Jun 26, 2019. Publicly Released: Jul 26, 2019.
When federal agencies propose new rules, they usually provide an opportunity for public comment, but agencies aren't required to collect or verify commenters' identity information. Mass mailing campaigns can result in thousands of duplicate comments. Agencies can post them individually, as attachments to a single comment, or as a count of duplicates received. Practices vary among agencies, within...
GAO-18-381: Published: Jul 11, 2018. Publicly Released: Aug 10, 2018.
Each year, nearly every adult and business provides some form of information to a federal agency, whether via tax forms or benefits applications. Agencies estimate the time and resources it takes to provide this information to help manage the paperwork burden placed on the public. How do they ensure their estimates are accurate? The law requires agencies to solicit public input on information col...
GAO-18-183: Published: Mar 13, 2018. Publicly Released: Mar 13, 2018.
Studies have found that federal agencies issue more regulations shortly before a president leaves office. This is often called "midnight rulemaking." We looked the last 120 days of the Clinton, Bush, and Obama administrations and compared the activity level to non-transition years. We found agencies in these periods: published about 2.5 times as many regulations, were more likely to provide adv...
GAO-18-22: Published: Oct 19, 2017. Publicly Released: Nov 20, 2017.
Federal agencies can design their regulations in many ways. For example, some regulatory designs establish an outcome but allow flexibility in how to achieve it, while others are more prescriptive and require certain technologies or actions. We looked at how some agencies choose among the regulatory designs and compliance and enforcement tools available to them, and how they evaluate those choice...
GAO-16-720: Published: Sep 6, 2016. Publicly Released: Sep 6, 2016.
The Internal Revenue Service (IRS) uses a variety of documents to communicate its interpretation of tax laws to the public, but only considers Internal Revenue Bulletin (IRB) guidance to be authoritative. IRS information published outside of the IRB can help taxpayers understand tax laws and make informed decisions, but does not always include information clarifying the limitations of its use. IRS...
GAO-15-718: Published: Sep 16, 2015. Publicly Released: Sep 16, 2015.
GAO identified key elements of regulatory user fees for decision makers to consider as they design, implement, and evaluate these fees. Setting regulatory user fees: Congress determines in statute the degree of flexibility to make fee design and implementation decisions that will be retained or delegated to the agency. This has implications for whether agencies issue regulations to set fees, who...
GAO-15-368: Published: Apr 16, 2015. Publicly Released: May 18, 2015.
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 ab...
GAO-14-714: Published: Sep 11, 2014. Publicly Released: Sep 11, 2014.
How often and to what extent agencies included selected key elements of cost-benefit analysis varied by rule type. The selected key elements in GAO's review are a statement of purpose; monetized or quantified costs and benefits or a qualitative discussion of them; and a discussion of alternatives. The 203 rules GAO reviewed are categorized into three broad, nonmutually exclusive categories—major...
GAO-14-268: Published: Apr 11, 2014. Publicly Released: May 12, 2014.
Agencies often made changes to regulations in response to completed retrospective regulatory analyses, but could improve the reporting of progress. Executive Orders and related implementation guidance from the Office of Management and Budget (OMB) require executive agencies, and encourage independent regulatory agencies, to develop and implement retrospective review plans. Agencies use semiannual...
GAO-13-588: Published: Aug 1, 2013. Publicly Released: Aug 1, 2013.
All seven U.S. regulatory agencies that GAO contacted reported engaging in a range of international regulatory cooperation activities to fulfill their missions. These activities include the United States and its trading partners developing and using international standards, recognizing each other's regulations as equivalent, and sharing scientific data. U.S. agency officials GAO interviewed said t...
GAO-13-21: Published: Dec 20, 2012. Publicly Released: Jan 22, 2013.
Agencies did not publish a notice of proposed rulemaking (NPRM), enabling the public to comment on a proposed rule, for about 35 percent of major rules and about 44 percent of nonmajor rules published during 2003 through 2010. A major rule has significant economic impact and may, for example, have an annual effect on the economy of $100 million or more. Agencies published a total of 568 major rule...