GAO Director Urges OMB to Improve the Transparency of Regulatory Processes

Government Accountability Office ("GAO") Director of Strategic Issues Michelle Sager urged the Office of Management and Budget ("OMB") to implement the remaining 16 of the GAO's 25 recommendations to improve the transparency of the regulatory processes coordinated through the OMB Office of Information and Regulatory Affairs ("OIRA").

In testimony before the House Committee on Oversight and Government Reform Subcommittee on Government Operations, Director Sager specified that OIRA still has yet to implement the following "opportunities":

• encourage regulatory agencies to clearly state in the preamble of significant regulations the section of Executive Order 12866's definition of a significant regulatory action that applies to the regulation;

Relating to rules development and regulatory reviews:

• define what types of changes made as a result of the review process are substantive and need to be publicly identified;
• direct agencies to clearly state in final rules whether they made substantive changes as a result of OIRA reviews;
• standardize how agencies label documentation of these changes in public rulemaking dockets;
• instruct agencies to clearly attribute those changes made at the suggestion or recommendation of OIRA;

Concerning the OMB's role in agencies' draft rule reviews:

• instruct agencies to document the changes made to rules submitted for OIRA review in public rulemaking dockets and within a reasonable amount of time after the rules have been published;
• define the types of substantive changes made during the review process that agencies should disclose;
• disclose the reasons for withdrawal of a rule from OIRA review;
• reexamine OIRA policy that only documents exchanged by agencies with OIRA branch chiefs and above during the review process need to be disclosed;
• differentiate in OIRA’s database which rules were substantively changed at OIRA’s suggestion or recommendation and which were changed in other ways and for other reasons;
• define transparency requirements to also include the informal review period when OIRA says it can have its most important impact on agencies’ rules;
• encourage agencies to use best practice methods of documentation that clearly describe changes; and

With respect to retrospective review:

• improve reporting on the outcomes of retrospective regulatory reviews;
• improve how these reviews can be used to help agencies achieve their priority goals;
• ensure that OIRA, as part of its oversight role, monitors the extent to which agencies have implemented guidance on retrospective regulatory review requirements and confirm that agencies have identified how they will assess the performance of regulations in the future; and
• issue guidance to encourage agencies to respond to comments on final major rules issued without a prior notice of proposed rulemaking.