Rulemaking in the Federal Government

Federal regulation is a basic tool of government. Agencies issue thousands of regulations, or rules, each year to achieve public policy goals, such as ensuring that:

• workplaces, air travel, foods, and drugs are safe;
• the nation’s air, water, and land are not polluted; and
• taxes are collected.

Congress often asks GAO to evaluate the implementation of such regulations. But before and after a regulation can be issued, agencies must go through multiple steps. What is GAO’s role? When federal agencies issue regulations, they must submit a copy to both houses of Congress and GAO before the rules can take effect. Under the Congressional Review Act, we also provide Congress with a report on each major rule (a rule that is likely to result in an annual effect on the economy of $100 million or more, among other things) containing our assessment of whether the agency’s submissions to us indicate that it has complied with the procedural steps required by various acts and Executive Orders governing the regulatory process. In addition to that review role, GAO regularly provides key insights into how agencies develop and assess regulations:

• Exceptions to public notice and comment for expedited rulemaking: Before issuing a final rule, agencies are generally required to publish a notice of proposed rulemaking (NPRM) in the Federal Register and respond to public comments when they issue their final rule. However, agencies may use exceptions in certain circumstances to forgo this process and expedite rulemaking. In 2012, we reviewed over 1,300 final rules published from 2003 through 2010 and found that agencies frequently cited exceptions in order to publish final rules without NPRMs.

• International cooperation on regulatory issues: In 2013, we found that effective international regulatory cooperation requires interagency coordination and effective collaboration with federal agency officials’ foreign counterparts. Agency officials said that nonfederal stakeholders may be uniquely positioned to identify and call attention to unnecessary differences among U.S. regulations and those of its trading partners. However, stakeholders we interviewed reported challenges to providing input on U.S. agencies' international regulatory cooperation activities, in particular, they are not always aware of many of these activities, and participation can be resource intensive.

• Reexamining existing regulations: Retrospective analyses help agencies evaluate how existing regulations work in practice. In 2014, we found that agencies often made changes to regulations in response to completed retrospective regulatory analyses, but could improve the reporting of their analyses and linkages to agency performance goals.

• Use of cost-benefit analysis when drafting regulations: Cost-benefit analysis can help agencies determine if a regulation is the policy choice that maximizes net benefits. Agencies are required to conduct cost-benefit analysis for certain rules, and in 2014, we found that agencies sometimes conducted such analyses even when not required to do so. The figure below shows how review and requirements for regulatory analyses differ based on the type of agency and rule. (To use the interactive features of the figure, download the pdf report of GAO-14-714 and go to p14).

Excerpted from GAO-14-714

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