Reexamining Regulations: Agencies Often Made Regulatory Changes, but Could Strengthen Linkages to Performance Goals
Highlights
What GAO Found
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 updates to report on the progress and results of their analyses. The 22 executive agencies in GAO's scope identified more than 650 planned analyses and reported having completed and taken final actions on 246 of those analyses by August 31, 2013. The two independent regulatory agencies in GAO's scope each chose to develop a final retrospective review plan, although not required to do so. More than 90 percent of the completed analyses led executive agencies to revise, clarify, or eliminate regulatory text. Agencies also took other actions such as updating guidance to the public. Agencies most commonly reported three expected outcomes from actions they took: improving the effectiveness of regulations (112 of 246), reducing regulatory burden (99 of 246), and clarifying regulations or making other administrative changes (93 of 246), such as implementing new procedures. Agencies often reported more than one outcome. Agencies quantified expected savings for 38 of the 246 completed analyses, often attributing savings to reduced information collection burdens. However, agencies did not consistently include citations or links to the supporting analyses and data in their progress reports. While OMB guidance contains transparency requirements for agencies to inform the public, OMB could work with agencies to effectively implement the guidance to improve the usefulness of the information agencies report on the results of their analyses.
Officials from the 9 agencies that participated in GAO's roundtable identified three key strategies and two barriers that most often affected their implementation of retrospective analyses. Strategies that facilitated planning and conducting analyses included: (1) establishing a centrally coordinated review process, (2) leveraging existing regulatory activities such as rulemaking and enforcement processes, and (3) using existing external feedback mechanisms such as advisory committees. The most commonly cited barriers were competing priorities for available staff and difficulty obtaining sufficient data.
Retrospective analysis can also help inform agencies' priority goals (APG). The Government Performance and Results Act Modernization Act of 2010 (GPRAMA) requires agencies to assess whether regulations, among other activities, are contributing as planned to APGs. Agencies reported mixed experiences linking retrospective analyses to APGs. The seven roundtable agencies with APGs identified regulations contributing to their priority goals, but their retrospective analyses were only sometimes linked to APGs. In some cases, different offices in the same agency had mixed responses about whether such linkages existed. Several agency officials said staff conducting retrospective analyses were not involved in performance discussions at higher levels of the agency. To inform broader performance planning and reviews, retrospective analyses can be another potential data source for APGs. Agencies could strengthen that linkage by taking actions such as considering APGs, to the extent practicable, when planning retrospective analyses and identifying how they will measure the performance of significant new rules related to priority goals.
Why GAO Did This Study
Federal agencies issue thousands of regulations annually to address such national goals as public health and safety. Retrospective analysis can help agencies evaluate how existing regulations work in practice. GAO was asked to provide insights on agencies' retrospective analyses. This report identifies for selected agencies (1) the results and anticipated outcomes of retrospective analyses agencies completed, (2) strategies, practices, or factors that affected agencies' ability to implement these analyses, and (3) the extent to which agencies are incorporating the analyses into processes for measuring and achieving agency priority goals. Applying criteria from executive orders, GPRAMA, and related guidance, GAO analyzed documents from 22 executive agencies and 2 independent regulatory agencies that prepared final retrospective review plans. These agencies issued more than 96 percent of all final rules published between 2011 and 2013. GAO also obtained agency officials' views through questionnaires and a roundtable of 9 agencies selected primarily on numbers of completed analyses. The officials' views are not generalizable to all agencies. GAO also interviewed OMB staff.
Recommendations
GAO recommends that OMB work with agencies to improve reporting on results of retrospective analyses and strengthen links between those analyses and agencies' performance goals by considering APGs when planning retrospective analyses, among other actions. OMB staff generally agreed with the recommendations in this report.
Recommendations for Executive Action
| Agency Affected | Recommendation | Status |
|---|---|---|
| Office of Management and Budget | To improve agencies' retrospective regulatory review processes and reporting, and strengthen linkages between retrospective reviews and agency performance management, the Director of the Office of Management and Budget should direct the Administrator of the Office of Information and Regulatory Affairs to work with regulatory agencies to implement existing guidance, and update guidance where needed, to improve the reporting of outcomes in their retrospective regulatory review plans by taking actions such as: (1) publishing a link to updated plans, which list recent results and anticipated outcomes, on the White House website; (2) submitting evidence that agencies listed updates of their plans on their "Open Government" web pages; (3) providing more comprehensive information on completed reviews in agencies' most recent plans and progress reports by (a) ensuring the most recent published plan contains a complete accounting of all completed reviews rather than expecting readers to review multiple plans, and (b) including the supporting analysis and data for results by listing a link or citation to the related documentation. |
In comments on the draft report, OMB staff generally agreed with the recommendation. In responses to questions for the record following a July 2015 Senate hearing on OMB's Office of Information and Regulatory Affairs (OIRA), the OIRA Administrator noted that OIRA had adopted several of the recommendations in GAO-14-268. Specifically in response to this recommendation, the Administrator stated that OIRA posted agencies' retrospective review plans on a central OMB site. In August 2017, we subsequently found these plans and progress updates, organized by agency, saved and publicly available on the archived OMB website for President Obama's Administration (see https://obamawhitehouse.archives.gov/omb/oira/regulation-reform). Because this specific recommendation included examples of the types of actions OMB could take to address the identified deficiencies, we determined that OMB's public posting of the plans and progress updates sufficiently meets the intent of the recommendation.
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| Office of Management and Budget |
Priority Rec.
To improve agencies' retrospective regulatory review processes and reporting, and strengthen linkages between retrospective reviews and agency performance management, the Director of the Office of Management and Budget should direct the Administrator of the Office of Information and Regulatory Affairs to ensure that the contributions made by regulations toward the achievement of APGs are properly considered and improve how retrospective regulatory reviews can be used to help inform assessments of progress toward these APGs by directing in guidance that agencies take such actions as: (1) identifying whether a regulation contributes to an APG expected to be reviewed by management as one of the criteria for prioritizing retrospective analyses and for the timing of these analyses; and (2) once an agency prioritizes a retrospective analysis based, in part, on its support of an APG, improving the usefulness of that analysis by examining regulations that collectively contribute to the goal in the scope of the review as appropriate. |
OMB staff agreed with this recommendation and stated that the agency was working on strategies to help facilitate agencies' ability to use retrospective reviews to inform APGs. In responses to questions for the record following a July 2015 Senate hearing on OMB's Office of Information and Regulatory Affairs (OIRA), the OIRA Administrator noted that OIRA has adopted several of the recommendations in GAO-14-268. Regarding this recommendation, the Administrator stated that OIRA had worked closely with OMB's performance management leads to track the progress of retrospective reviews in a manner similar to other priority goals. In April 2017, OMB issued guidance to agencies (OMB Memo M-17-23) that, among other things, emphasized the importance of performance measures related to evaluating and improving the net benefits of their respective regulatory programs. OMB included explicit references to Section 6 of Executive Order 13563, which directed agencies efforts to conduct retrospective regulatory reviews. Specifically, the updated guidance encourages agencies to establish and report "meaningful performance indicators and goals for the purpose of evaluating and improving the net benefits of their respective regulatory programs." The guidance further states that agencies' efforts to improve such net benefits may be conducted as part of developing agency strategic and performance plans and priority goals. In July 2017, OMB confirmed that the updated guidance was issued, in part, to address this GAO priority recommendation from GAO-14-268.
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| Office of Management and Budget | To improve agencies' retrospective regulatory review processes and reporting, and strengthen linkages between retrospective reviews and agency performance management, the Director of the Office of Management and Budget should direct the Administrator of the Office of Information and Regulatory Affairs to ensure that the Office of Information and Regulatory Affairs, as part of its oversight role, monitor the extent to which agencies have implemented the guidance on retrospective regulatory review requirements outlined in the related executive orders and confirm that agencies have identified how they will assess the performance of regulations in the future. |
In comments on the draft report, OMB staff generally agreed with the recommendation. In responses to questions for the record following a July 2015 Senate hearing on the Office of Information and Regulatory Affairs' (OIRA) role in the regulatory process, the OIRA Administrator noted that OIRA has adopted several of the recommendations in GAO-14-268. Specifically regarding this recommendation, the Administrator stated that OIRA regularly asks agencies to consider the incorporation of a retrospective review planning component in forward-looking regulations. Further, Executive Order 13777 and its implementing guidance issued in 2017, require agencies to have Regulatory Reform Officers whose role is to oversee the implementation of regulatory reform initiatives and policies, including Executive Order 13568 regarding retrospective review. Agencies are also required by Executive Order 13777 to incorporate into their Annual Performance Plans performance indicators to measure progress towards achieving regulatory reform initiatives and policies.
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