Federal Rulemaking: OMB Should Work with Agencies to Improve Congressional Review Act Compliance during and at the End of Presidents' Terms
Fast Facts
Studies have found that federal agencies issue more regulations shortly before a president leaves office. This is often called "midnight rulemaking."
We looked at 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 advanced notice and opportunities for public comment, and
were less likely to provide Congress the required time to review and possibly disapprove a regulation.
We recommended that OMB work with agencies to bolster Congressional Review Act compliance.
Economically Significant Regulations Determined to be Noncompliant with the Congressional Review Act
Bar graphs show noncompliance with the Congressional Review Act generally increased across the three administrations.
Highlights
What GAO Found
During transition periods at the end of presidential administrations, agencies published more final regulations and more frequently provided advanced notice to the public on those regulations compared to nontransition periods. The Clinton, Bush, and Obama administrations published on average roughly 2.5 times more economically significant regulations during transition periods than during nontransition periods. But agencies more often, relative to nontransition periods, provided the public an opportunity to influence the development of the transition-period regulations by providing advanced notice of their issuance and opportunities to comment on proposed regulations before they were finalized.
In their published regulations, agencies reported that compliance with four of five procedural requirements was high during both transition and nontransition periods, but not with the Congressional Review Act (CRA). During all periods, agencies reported complying with requirements, such as the Regulatory Flexibility Act, for nearly all economically significant regulations and the majority of significant regulations. Agencies less often complied with one or more CRA requirements. (See figure.) Though agencies are responsible for complying with CRA, the Office of Management and Budget (OMB) is responsible for oversight of agencies' rulemaking, consistent with law, and reviews regulations before publication, which provides an opportunity to identify and help agencies avoid potential noncompliance. The most common CRA deficiency was agencies' failure to provide Congress the required time to review and possibly disapprove regulations, which GAO has also identified as a deficiency in previous work. Economically significant regulations for which OMB completed its review within 3 months before the planned effective date were at high risk of not complying with CRA, thus increasing the risk that agencies would not provide Congress with the required time for its reviews.
Economically Significant Regulations Determined to be Noncompliant with the Congressional Review Act
Why GAO Did This Study
The Presidential Transitions Improvements Act of 2015 includes a provision for GAO to assess multiple characteristics of final significant regulatory actions promulgated by executive departments during presidential transition periods (September 23 through January 20) at the end of Presidents Clinton, Bush, and Obama's administrations and compare them to each other and to regulations issued during the same 120-day period in nontransition years since 1996.
Among other objectives, GAO assessed the extent to which there was variation in 1) the number of regulations, their scope, and other indicators; and 2) agencies' reported compliance with procedural requirements for promulgating the regulations. To address these objectives, GAO reviewed the text of the regulations published in the Federal Register , and reviewed the universe of all 527 economically significant final regulations (generally those with an annual effect of $100 million or more) published during the specified transition and nontransition periods and a generalizable stratified random sample of 358 of the 1,633 significant final regulations published during the same time periods.
Recommendations
GAO recommends that OMB, as part of its regulatory review process, identify economically significant regulations at potential risk of not complying with CRA and work with agencies to ensure compliance. OMB staff did not agree or disagree with the recommendation.
Recommendations for Executive Action
| Agency Affected | Recommendation | Status |
|---|---|---|
| Office of Management and Budget | The Director of OMB should ensure that OMB's Office of Information and Regulatory Affairs staff, as part of the regulatory review process, examine the planned timeframes for implementing economically significant regulations or major rules and identify regulations that appear at potential risk of not complying with the Congressional Review Act's delay requirements and then work with the agencies to ensure compliance with these requirements (Recommendation 1). |
Office of Management and Budget (OMB) staff did not agree or disagree with the recommendation. OMB has taken steps to address this recommendation. In 2019, OMB issued a guidance memorandum on compliance with the Congressional Review Act (CRA) to agencies that explains the process OIRA uses to determine if a rule is major, emphasizes the 60-day delay requirement for such rules, and directs agencies to provide a CRA compliance statement to provide transparency and notice to Congress. In October 2022, OIRA officials described how staff review dates related to CRA compliance when reviewing rules. For example, staff said they check the effective date of a final rule located at the beginning of the rulemaking preamble. In addition, in our 2023 report examining late-term rulemaking during the Trump administration, we found that the percentage of rules that were noncompliant with the CRA declined during the Trump transition period relative to the nontransition periods of President Trump's administration. We believe OIRA has taken appropriate actions to remind agencies of their obligation to provide the Congress with the required time to review and possibly disapprove regulations before they take effect. We will continue to monitor individual agencies' compliance as part of our required reports on major rules.
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