Federal Rulemaking: OMB Should Work with Agencies to Improve Congressional Review Act Compliance during and at the End of Presidents' Terms

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.

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

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.

Prior studies have indicated that agencies typically issue a larger number  of regulations during the transition from the end of one presidential  administration to the beginning of the next administration, relative to  comparable periods earlier in the administration. This phenomenon is  often referred to as “midnight rulemaking.” Officials from outgoing  administrations generally attribute this increased regulatory activity to  agencies completing long-planned regulatory initiatives. However, the  Congressional Research Service (CRS) has noted that some members of  Congress and individuals outside the government have expressed  concerns that “midnight rules” may be rushed through the analytical and  procedural processes agencies are expected to use, providing fewer  opportunities for the public to provide input, and therefore resulting in  lower quality regulations. CRS has also pointed out that presidential  transitions in which party control of the White House changes–which  occurred during the four most recent transitions in 1993, 2001, 2009, and  2017–may increase the incentive for Presidents and agencies to engage  in midnight rulemaking because it may be difficult for the subsequent  administration to change or eliminate regulations after they have taken  effect.

Section 5 of the Edward “Ted” Kaufman and Michael Leavitt Presidential  Transitions Improvements Act of 2015 includes a provision for us to  assess final significant regulatory actions promulgated by executive  departments during specified presidential transition periods and to  analyze and compare multiple characteristics of regulations issued during  these transition periods to each other and to regulations issued during the  same 120-day periods in nontransition years since 1996. The transition  periods identified in the act are those ending on January 20 in 2001,  2009, and 2017, which occurred at the end of the administrations of  Presidents Clinton, Bush, and Obama. For the transition periods, and  among these transition periods and the same 120-day periods in  nontransition years, our objectives were to assess the extent to which  there were variations in (1) the number of regulations and other indicators  related to the scope and transparency of these regulations; (2) agencies’  reported compliance with procedural requirements for promulgating the  regulations; and (3) the anticipated economic effects agencies reported  would result from the regulations.

For each of the three transition periods and the 18 other periods cited in  the mandate, we reviewed what the act defines as “covered regulations”  published by executive agencies in the Federal Register. For purposes of  this review, executive agencies are those cabinet departments and other  agencies that answer directly to the President and exclude the  independent regulatory agencies. The definition of a “covered regulation”  in the mandate is the same as the definition of a final significant  regulatory action under Executive Order (E.O.) 12866. Under E.O.  12866, the Office of Management and Budget (OMB) reviews significant  proposed and final regulations from all federal agencies (other than  independent regulatory agencies) before they are published in the  Federal Register. The order defines significant regulatory actions as  those that are likely to result in a rule that may  1.  Have an annual effect on the economy of $100 million or more, or  adversely affect in a material way the economy, a sector of the  economy, productivity, competition, jobs, the environment, public  health or safety, or state, local, or tribal governments or communities  (generally referred to as “economically significant” regulations);  2.  Create a serious inconsistency or otherwise interfere with an action  taken or planned by another agency;  3.  Materially alter the budgetary effects of entitlements, grants, user  fees, or loan programs or the rights and obligations of recipients  thereof; or  4.  Raise novel legal or policy issues arising from legal mandates, the  President’s priorities, or the principles set forth in the executive order.

For the purposes of this report, we differentiate between the results for  “economically significant” regulations (criterion 1 above, i.e., generally  those with annual economic effects greater than $100 million) and the  results for other significant regulations (criteria 2-4 above, i.e., those  expected to have less than $100 million in economic effects but are  deemed significant under the order’s other three definitions of  significance). We will refer to the latter category as “significant  regulations.” We primarily relied on OMB’s Reginfo.gov database on  regulations reviewed under E.O. 12866 to compile a list of final  economically significant and final significant regulations published during  the specified periods. We refined and supplemented the lists from the  Reginfo.gov database with information from our database on rules  submitted to us under the Congressional Review Act (CRA), and the  Government Printing Office’s Federal Digital System database on the  Federal Register. To test the reliability of these databases, we reviewed  relevant documentation, interviewed knowledgeable agency officials,  looked for missing data and outliers (for example, by identifying missing  records or those included in error), traced a sample of entries to source  documents, and conducted additional checks. We concluded that the data  were sufficiently reliable for our purposes.

We reviewed the universe of all 527 final economically significant  regulations published during the specified periods and a generalizable  stratified random sample of 358 final significant regulations from the  population of 1,633 final significant regulations published during the  specified periods. For economically significant regulations, we can  provide precise statistics on the extent of a finding, because we reviewed  the universe. For significant regulations, our findings are based upon a  sample designed to achieve a margin of error no greater than plus or  minus 7 percentage points at the 95 percent level of confidence for each  presidential transition period and the nontransition periods combined. Our  findings for the sample are generalizable for the population of all covered  significant regulations published in each transition period and, collectively,  all nontransition periods, but are not generalizable to the individual  agencies that published those regulations.

To assess the number of regulations and other variations related to the  scope and transparency of these regulations, we tallied total numbers of  final regulations published during each specified period. We identified  whether the regulations were economically significant or significant, and  which agencies had published the regulations to assess scope. We also  reviewed other indicators, such as whether the final regulation had a prior  proposed rule and whether the agency had provided advanced notice that  the regulation was being developed in the Unified Agenda, to provide  insights on the type of rulemaking procedures that agencies used and the  transparency of those rulemakings.

To assess variations in agencies’ compliance with procedural  requirements and the anticipated economic effects of regulations, we  reviewed the published text of the regulations and, for regulations that  were also major rules, the reports that we prepared for Congress under  CRA. We reviewed agencies’ reported compliance with procedural  requirements for promulgating regulations under five statutes—CRA, the  Regulatory Flexibility Act (RFA), the Paperwork Reduction Act (PRA), the  Unfunded Mandates Reform Act of 1995 (UMRA), and the Small  Business Regulatory Enforcement Fairness Act (SBREFA). We also  reviewed the published regulations to see whether agencies identified  expected economic effects (benefits, costs, and transfers). Consistent  with our prior governmentwide review of regulations, we did not evaluate  the agencies’ decisions regarding procedural requirements or their  determinations regarding the potential effects of their regulations. Instead,  we are providing information about what the agencies published in the  Federal Register. Appendix I contains more information on our objectives,  scope, and methodology.

We conducted this performance audit from May 2016 to March 2018 in  accordance with generally accepted government auditing standards.  Those standards require that we plan and perform the audit to obtain  sufficient, appropriate evidence to provide a reasonable basis for our  findings and conclusions based on our audit objectives. We believe that  the evidence obtained provides a reasonable basis for our findings and  conclusions based on our audit objectives.

Federal agencies implement specific elements of laws through  regulations, which typically require or prohibit certain actions. Congresses  and Presidents have required agencies to comply with multiple procedural  and analytical requirements prior to issuing regulations.

Administrative Procedure Act (APA). APA established the basic  framework of administrative law governing federal agency action,  including rulemaking. Before promulgating a regulation, agencies are  generally required to publish a notice of proposed rulemaking (NPRM)  in the Federal Register and take comments concerning the proposed  rule. However, agencies may issue final rules without the use of an  NPRM in certain cases, including when the agency determines for  “good cause” that notice and comment procedures are “impracticable,  unnecessary, or contrary to the public interest.” Further, Congress  sometimes enacts laws that direct an agency to issue regulations  without notice and comment.

Regulatory Flexibility Act. RFA was enacted in response to  concerns about the effect that federal regulations can have on small  entities. RFA requires agencies to consider the impact of their  regulations on small entities and to prepare regulatory flexibility  analyses, unless the head of the agency certifies that the rule would  not have a “significant economic impact upon a substantial number of  small entities.”

Paperwork Reduction Act. PRA was enacted to help minimize the  burden that federal information collections (e.g., forms, surveys, or  questionnaires) impose on the public, while maximizing their public  benefit. PRA requires agencies to provide public notice, solicit  comments, and request approval by OMB before imposing new  information collection requirements.

Unfunded Mandates Reform Act of 1995. UMRA was enacted to  address concerns about federal statutes and regulations that require  nonfederal parties to expend resources to achieve legislative goals  without being provided funding to cover the costs. Among other  things, UMRA generally requires federal agencies to prepare a written  statement containing a “qualitative and quantitative assessment of the  anticipated costs and benefits” for any rule that includes a federal  mandate that may result in the expenditure of $100 million or more in  any 1 year by state, local, and tribal governments in the aggregate, or  by the private sector.

Small Business Regulatory Enforcement Fairness Act. Under  SBREFA, the Environmental Protection Agency (EPA) and the  Occupational Safety and Health Administration (OSHA) are required  to convene Small Business Review Panels (also known as SBREFA  panels) for rulemaking efforts that are expected to have a significant  economic impact on a substantial number of small entities. These  panels are intended to seek direct input early in the rulemaking  process from small entities that would be impacted by the  rulemakings.

Congressional Review Act. CRA was enacted to better ensure  that Congress has an opportunity to review and possibly disapprove  regulations, in certain cases, before they become effective. CRA  established expedited procedures by which Congress may disapprove  agencies’ regulations by introducing a resolution of disapproval that, if  adopted by both Houses of Congress and signed by the President,  can nullify an agency’s action. CRA states that an agency may not  reissue the regulation in “substantially the same form,” as a regulation  Congress disapproved. CRA requires us to provide Congress with a  report on rules OMB’s Office of Information and Regulatory Affairs  (OIRA) determines to be major rules, including our assessment of the  issuing agency’s compliance with the procedural steps required by  various acts and executive orders governing the rulemaking  process. CRA’s definition of a major rule is similar to E.O. 12866’s  definition of economically significant rules, and generally,  economically significant regulations are classified for purposes of  CRA as major rules and significant regulations are classified as  nonmajor rules. CRA generally provides Congress time to review  major rules before those rules take effect.

Executive Orders and Relevant Guidance. In addition to the  statutory requirements described above, executive agencies must  also follow requirements Presidents have set in executive orders and  related guidance:

Role of OIRA: Under E.O. 12866, issued in 1993, OIRA reviews  regulations deemed significant. The Administrator of OIRA is  responsible for providing meaningful guidance and oversight with  respect to regulatory planning and review to the extent permitted  by law. Further, the order states that OIRA is to be the repository  of expertise concerning regulatory issues.

Role of agencies and assessment of costs and benefits:  Among other things, under E.O. 12866 agencies are responsible  for developing regulations and assuring that the regulations are  consistent with applicable law. The order also requires agencies to  prepare an agenda of all regulations under development or  review. For economically significant regulations, E.O. 12866  requires agencies to provide to OIRA (unless prohibited by law) an  assessment, including the underlying analysis, of the costs and  benefits anticipated from the regulatory action and feasible  alternatives. For significant regulations, E.O. 12866 requires  agencies to provide to OIRA an assessment of the potential costs  and benefits anticipated from the planned regulatory action.  Circular A-4, published in 2003, provides guidance to agencies on  how to conduct the required analysis and, among other things,  directs agencies to estimate the costs and benefits of a regulation  and “transfer” payments that may result from the regulation.  Transfer regulations redistribute income from (usually) taxpayers  to program beneficiaries (e.g., Medicare recipients), but generally  do not result in economic benefits or costs.

Agencies Published More Final Regulations and More Frequently Provided Advanced Notice to the Public during Transition Periods

The three administrations published a higher number of economically  significant and significant final regulations at the end of each President’s  second term compared to the nontransition periods. (See figures 1 and  2.) The administrations published on average roughly 2.5 times more  economically significant regulations during their transition periods than  during nontransition periods.

Our analysis also showed that within their transition periods (September  23 through January 20), the administrations of Presidents Clinton and  Obama increased their rate of economically significant rulemaking  following the elections held in 2000 and 2016 (between Election Day in  November and January 20), while President Bush’s administration  decreased the rate of economically significant rulemaking following the  2008 election. (See appendix II.)

Economically Significant Regulations Published in Both Transition and Nontransition Periods Were Concentrated in Certain Agencies

We found that the majority of economically significant regulations were  published by a subset of agencies across the three administrations and  between transition and nontransition periods. In particular, the  Department of Health and Human Services (HHS) published one-third of  the economically significant regulations we reviewed across all periods  and was the most active agency in both transition and nontransition  periods. (See table 1.) For example, the Centers for Medicare & Medicaid  Services typically published regulations every calendar year describing  reimbursement rates for medical providers serving Medicare patients.

For significant regulations, HHS was the most active agency during both  transition and nontransition periods. (See table 2.) However, significant  rulemaking was less concentrated in a subset of agencies than was  economically significant rulemaking. Specifically, five of the agencies that  published the largest number of economically significant regulations  accounted for between 65 and 70 percent of these regulations during  both transition and nontransition periods, while the five agencies that  published the largest number of significant regulations accounted for 42  percent of these regulations during both transition and nontransition  periods.

For Economically Significant Regulations, Agencies More Frequently Provided Advanced Notice to the Public during Transition Periods

To provide perspective on the transparency of regulatory activity and the  types of rulemaking procedures agencies used during transitions, we  examined two indicators: 1) whether regulations were advertised in the  previous spring’s Unified Agenda and 2) whether the final regulation was  preceded by a proposed rule or NPRM:

Prior Appearance in the Unified Agenda: The semi-annual Unified  Agenda was established by E.O. 12866 and provides uniform  reporting of data on those regulatory and deregulatory activities under  development or review throughout the federal government. By  including a planned regulation in the previous spring’s Unified  Agenda, policy makers provided members of the public with several  months of notice before a final regulation was published during any of  the transition or nontransition periods.

Notice of Proposed Rulemaking: The notice and comment process  was established by the APA and gives the public an opportunity to  provide information to agencies on the potential effects of a regulation  or to suggest alternatives for agencies to consider before the agency  publishes the final regulation. By publishing an NPRM, policy makers  provided members of the public with an opportunity to influence the  development of the regulation.

Overall, we found that agencies more frequently provided advanced  notice of regulations to the public during transition periods by announcing  planned activities in the Unified Agenda and publishing NPRMs. A higher  percentage of economically significant regulations appeared in the  previous spring’s Unified Agenda during Presidents Bush’s and Obama’s  transition periods compared to nontransition periods. (See figure 3.)  President Clinton’s administration published a smaller percentage of  regulations in the Unified Agenda during its transition period compared to  its nontransition periods. This decrease is explained by the Department of  the Interior (Interior) and HHS not entering four regulations they typically  update each year into the spring 2000 Unified Agenda pertaining to  migratory bird hunting and Medicare.

For significant regulations, we estimate that a higher percentage of  regulations published during Presidents Bush’s and Obama’s transition  periods appeared in the previous spring’s Unified Agenda compared to  President Clinton’s transition period. However, we found no statistical  differences between the nontransition periods combined and any of the  three transition periods. (See figure 4.)

Across all three administrations, economically significant regulations  published during transition periods were more often preceded by  proposed regulations compared with those published during nontransition  periods. (See figure 5.)

We estimated that significant regulations published during Presidents  Clinton’s and Bush’s transition periods were more often preceded by  proposed regulations than significant regulations published during  nontransition periods. However, we found no statistical differences  between President Obama’s transition period and the other transition and  nontransition periods. (See figure 6.)

Nearly All Economically Significant Regulations Reported to the Public Compliance with Four Procedural Requirements, but a Quarter Did Not Comply with the Congressional Review Act

Agencies Reported to the Public that They Complied with Four Procedural Requirements for Nearly All Economically Significant Regulations and the Majority of Significant Regulations

Regulatory Flexibility Act (RFA), Paperwork Reduction Act (PRA),  and the Unfunded Mandates Reform Act of 1995 (UMRA): We found  that 91 percent of economically significant regulations across all periods  reviewed explained to the public the determinations the agencies made  regarding these three procedural requirements. Further, there was little  difference between transition and nontransition periods in whether  agencies provided explanation of these three procedural requirements.  For the regulations that did contain explanation, agencies indicated that  more economically significant regulations published during transition  periods than in nontransition periods: (1) would not have a significant  impact on a substantial number of small entities (RFA), (2) contained  information collection requirements on nonfederal entities (PRA), and (3)  generally could impose federal mandates on nonfederal entities (UMRA).  For significant regulations, we estimate that 64 percent across all periods  reviewed provided explanation to the public of the determinations the  agencies made regarding these three procedural requirements. More specific information about the determinations agencies reached is  presented in appendix II.

For economically significant and significant regulations that did not  contain explanations of one or more of these procedural requirements,  this does not necessarily indicate noncompliance by the agency. An  agency may not need to address a particular procedural requirement if  the substance of the rule or exceptions and thresholds in the requirement  lead the agency to determine that a specific regulation did not trigger the  requirement. For example, regulations that were significant but not  economically significant under E.O. 12866 would not be expected to  contain a federal mandate that would result in the expenditure of $100  million or more in any 1 year, so would not trigger the requirement for an  UMRA written statement.

Small Business Regulatory Enforcement Fairness Act (SBREFA):  EPA and OSHA reported holding small business review panels for 16  economically significant regulations reviewed, and we confirmed that the  proceedings of all but one of these panels had been documented on the  Small Business Administration’s website. EPA also reported holding a  small business review panel for one of the significant regulations we  reviewed, and we confirmed that this proceeding also had been  documented.

Over 25 Percent of Economically Significant Regulations and an Estimated 15 Percent of Significant Regulations Did Not Comply with the Congressional Review Act

CRA requires agencies to submit regulations to Congress and to us and  to delay the effective date of certain regulations in order to provide  Congress an opportunity to review and possibly disapprove of regulations  before they become effective. We reviewed agencies’ compliance with  the requirements to: (1) submit the regulation to Congress and to us, (2)  provide the required delay between submission of the regulation to  Congress and us and its effective date, and (3) provide the required delay  between publication of the regulation and its effective date. See figure 7  for these requirements regarding delays in effective dates.

Our analysis determined that 132 of the 527 economically significant  regulations across all periods reviewed failed to meet at least one of the  requirements described above, and none of these regulations included  agencies claiming “good cause,” which would have allowed them to delay  the effective date. (See figure 8.)

We found that noncompliance for economically significant regulations was  primarily associated with agencies’ failure to delay the effective date of  their regulations, while the failure to submit regulations to Congress and  us accounted for a smaller proportion of the deficiencies. Of the 132  noncompliant economically significant regulations:

95 did not provide the required delay between the submission of the  regulation to Congress and us and the effective date. Further,  agencies generally missed the deadline by more than 5 days (70 of 92  regulations). It is our practice to alert the relevant congressional  committees when we observe this particular deficiency in our major  rule reports. Further, we also reported to Congress in 2007 that  there appeared to be a broader pattern of noncompliance with this  requirement, noting: “A consistent difficulty in implementing CRA has  been the failure of some agencies to delay the effective date of major  rules for 60 days as required by CRA.”

74 did not provide the required delay between publication in the  Federal Register and the effective date. Once again, agencies  generally missed this deadline by more than 5 days (62 of 74  regulations). It is our practice to alert the relevant congressional  committees when we observe this particular deficiency in our major  rule reports.

10 had not been submitted to us as of November 13, 2017.

Among the most active regulatory agencies for economically significant  regulations, HHS and the Department of Transportation (Transportation)  had higher rates of noncompliance than the government-wide  percentages for both the transition and nontransition periods we  reviewed. (See table 10 in appendix II.) However, noncompliance was  not limited to HHS and Transportation; 17 of the 23 agencies that  published economically significant regulations during the periods we  reviewed had at least one noncompliant regulation. As noted previously,  our sample of significant regulations was not designed to provide  estimates concerning individual agencies’ noncompliance with CRA.

In addition, we estimate that 15 percent of significant regulations  published across all periods reviewed failed to meet at least one of the  CRA requirements we reviewed. (See figure 9.) We did not identify any  statistical differences in the noncompliance rate among the three  transition periods and nontransition periods combined.

For significant regulations, we developed estimates for the following CRA  deficiencies:

Regulations submitted after the stated effective date: An estimated 15  percent of significant regulations published during all periods reviewed  were not submitted to Congress and us before the stated effective  date as required. Significant regulations were generally nonmajor  rules, which do not have a requirement to delay the effective date by  60 days. There were no statistical differences among the three  transition periods and the nontransition periods regarding this  deficiency.

Regulations not submitted to us: An estimated 7 percent of significant  regulations published during all periods reviewed had not been  submitted to us as of November 17, 2017, with no statistical  differences among the three transition periods and nontransition  periods.

Agencies’ noncompliance with CRA has the overall effect of making it  more difficult for Congress to exercise its oversight role under CRA;  however, the precise effects of noncompliance depend on the type of  regulation and the specific deficiencies. CRA provides expedited  procedures that make it easier to overturn a regulation compared to  following the regular legislative process. For economically significant  regulations, which are generally classified as major rules under CRA,  failing to provide the required delay for congressional review means that  Congress has a shorter amount of time to use these expedited  procedures to disapprove the regulation before the agency potentially  starts enforcement actions. Furthermore, in general, if a rule is not  submitted to Congress as required by CRA, Congress cannot use these  expedited procedures. Moreover, not submitting a rule to Congress can  potentially create legal uncertainty for agencies and regulated parties  because courts have differed on the impact of noncompliance with CRA  on the enforceability of the regulation.

OIRA staff noted that CRA states that agencies are responsible for  complying with the act’s requirements, and E.O. 12866 states that  agencies are responsible for adhering to applicable laws. However under  E.O. 12866, OIRA is also responsible for oversight of agencies’  rulemaking, consistent with law, and reviews regulations before  publication, which provides it an opportunity to identify and help agencies  avoid potential noncompliance. OIRA staff asserted that they already  take steps to check agencies’ compliance with CRA. However, we found  that OIRA completed its E.O. 12866 reviews for 110 of the 132  noncompliant economically significant regulations within 90 days of the  stated effective date. OIRA staff noted that they cannot monitor every  action agencies take following their review of draft final regulations, such  as the specific date a regulation is published in the Federal Register or  whether an agency submits a copy of the regulation to Congress or us.  However, because economically significant regulations are generally  classified as major rules under CRA, this indicates that OIRA frequently  completes its review in close proximity to the start of the 60-day period  intended for congressional review, and in such cases the regulation is at  high risk of noncompliance with CRA.

This close proximity to the 60-day period provides an opportunity for  OIRA to identify potentially noncompliant regulations before agencies  publish them and work with agencies on actions that would avoid  noncompliance. Our analysis identified such actions agencies could use  to comply with CRA. For example, we found instances of agencies  explaining to the public that CRA requires a 60-day review period for  major rules and therefore identifying an effective date more than 2  months after publication in the Federal Register. In other instances,  agencies stated that the regulation would take effect 60 days after  publication in the Federal Register, which ensures compliance with CRA  provided that the regulation is submitted to Congress and us on or before  the day it is published. In other cases, agencies stated they had “good  cause,” to not delay the effective delay, such as a statutory or judicial  deadline or an emergency situation.

Variations Existed between Transition and Nontransition Periods in Agencies’ Anticipated Types of Economic Effects for Economically Significant Regulations

Agencies anticipated that economically significant regulations published  during transition periods were more likely to result in economic costs and  benefits and generally less likely to result in “transfers” of income from  taxpayers to program beneficiaries. To identify the types of economic  effects that agencies anticipated, we placed the 527 economically  significant regulations reviewed across all periods into one of four  categories based on information agencies provided in the published  regulation concerning the anticipated costs, benefits, or transfers resulting  from a regulation:

Expected economic costs, benefits, or both: For 197 of the 527  economically significant regulations (or 37 percent), agencies  expected costs or benefits or both to result and made no mention of  transfers. Our previous work has noted that regulations typically  require a desired action or prohibit certain actions by regulated  parties. Such requirements may impose costs on private-sector  parties, such as businesses and individuals, and may also provide  benefits to society as a whole. Examples we reviewed included EPA  regulations limiting emissions from industrial facilities with the goal of  improving air quality and Labor Department regulations intended to  improve workplace safety.

Transfers: For 184 of the 527 economically significant regulations (or  35 percent), agencies expected transfers to result from the regulation  and made no mention of either costs or benefits. Examples we  reviewed included HHS regulations stating how much Medicare will  reimburse Medicare providers and Department of Agriculture  regulations providing disaster assistance to farmers. While these  payments increase the incomes of Medicare providers and farmers,  Circular A-4 directs agencies to avoid misclassifying these transfers  as economic costs or benefits because they do not change aggregate  social welfare.

Combination of economic costs, benefits, or transfers: For 108 of  the 527 economically significant regulations (or 20 percent), agencies  expected costs or benefits or both to occur and also expected  transfers to occur. Examples we reviewed included regulations that  expanded access to health insurance for tribal employees and  established paid sick leave for federal contractors that were  anticipated to result in both administrative costs and transfers.

No economic analysis: The remaining 38 of the 527 economically  significant regulations (or 7 percent) provided no economic analysis.  Of these regulations, 22 were updates to migratory bird hunting  regulations Interior published during Presidents Clinton’s  Administration and President Bush’s first term. During the 2003-2004  nontransition period of President Bush’s Administration, Interior began  providing a brief summary of the economic effects anticipated to result  from hunting these birds.

Comparing these reported effects between transition and nontransition  periods, we found that agencies indicated that economically significant  regulations published during transition periods were more likely to result  in costs and benefits to society than those published during nontransition  periods across all three administrations. (See figure 10.) In contrast,  regulations involving only transfers became a smaller proportion of the  economically significant regulations published during Presidents Bush’s  and Obama’s transition periods. Regulations that involved various  combinations of costs, benefits, and transfers became a larger proportion  of regulations published during Presidents Bush and Obama’s transition  periods and overall became a larger proportion of economically significant  regulatory activity that occurred during President Obama’s transition  period.

Executive guidance encourages agencies to quantify and monetize  expected costs and benefits to help decision makers understand the  consequences of regulatory approaches. E.O. 12866 states that for  economically significant regulations agencies should analyze costs and  benefits to the extent feasible, and Circular A-4 encourages agencies, to  the extent possible, to provide monetized estimates of these costs and  benefits. For economically significant regulations, we found that agencies  were more likely to monetize anticipated costs and transfers compared to  benefits and were more likely to monetize anticipated costs during  Presidents Clinton and Bush’s transition periods. (See figures 11-13.) For  economically significant regulations, we also did additional analysis of the  extent to which agencies anticipated the benefits would justify the costs  and the extent to which net costs or benefits were calculated. (See  appendix II.)

In examining the extent to which agencies anticipated that costs, benefits,  and transfers would result from significant regulations, we found that an  estimated 57 percent across all periods reviewed provided information on  the anticipated costs, benefits, transfers, or some combination of these,  with no statistical differences among the three transition periods and the  nontransition periods combined. An estimated 43 percent of significant  regulations across all periods reviewed did not include any information on  the anticipated costs, benefits, transfers, or some combination of these,  with no statistical differences among the three transition periods and the  nontransition periods combined.

Although we confirmed that agencies published a larger number of  regulations during transition periods than during the same months in  nontransition periods, the variety of other indicators we examined  generally suggest that there were few significant differences—other than  their numbers—when comparing regulations published during the three  transitions to each other and to those published during nontransition  periods. Among the few exceptions, economically significant regulations  published during the transition periods were more likely to have provided  advanced notice to the public and more likely to result in private sector  costs and potential benefits to society.

However, agencies’ noncompliance with the requirements of CRA for  economically significant regulations (major rules under CRA) grew worse  over time. Under CRA, agencies must allow additional time for Congress  to review these most impactful regulations before they take effect unless  the agency claims good cause for not delaying the effective date. Our  review did highlight a potential opportunity for OIRA to work with agencies  to improve CRA compliance going forward. Specifically, OIRA staff have  the unique opportunity to work with agencies before economically  significant regulations and regulations deemed significant for other  reasons are published in final form in the Federal Register. OIRA staff  should use this opportunity to identify economically significant regulations  whose planned effective dates appear at risk of not providing Congress  with sufficient time to review the regulation.

To do this, our analysis points to a simple “rule of thumb” OIRA reviewers  could use. If an agency is planning to make an economically significant  regulation effective in less than 3 months from the time OIRA is  completing its review, OIRA staff should discuss with agency officials  strategies for ensuring compliance with CRA. These could include  delaying the planned effective date, stating in the submission to the  Federal Register that the regulation will go into effect 60 days after  publication and ensuring prompt submission to Congress and us, or  discussing whether the agency has a reasonable basis to claim “good  cause” for not delaying the effective date and ensuring that the use of  “good cause” is clearly explained in the regulation. Ensuring that agencies  consistently provide Congress with the required time to review, and  possibly disapprove regulations, is important throughout a President’s  term, and particularly following a presidential transition when Congress  typically has a larger number of regulations to potentially review.

We are making the following recommendation to the Director of OMB:

The Director of OMB should ensure that OIRA’s 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).

We provided a draft of this report to the Director of OMB on January 18,  2018. In oral comments received on February 22, 2018, staff from OIRA  and the Office of General Counsel discussed the findings, conclusions,  and recommendation. OMB staff did not agree or disagree with our  recommendation. However, they identified some concerns regarding the  recommendation to improve agencies’ compliance with CRA. They noted  that: (1) CRA states that agencies are responsible for complying with the  act’s delay and submission requirements; (2) agencies determine when  their regulations will take effect and when they submit the regulations to  Congress and us, neither of which OMB has direct control over; and (3)  where OMB does exercise authority—the regulatory review process  under E.O. 12866—OIRA staff already take steps to check agencies’  compliance with CRA, and they do not see what more they could do to  improve agencies’ compliance with the act. The staff also provided  technical comments that were incorporated as appropriate.

Regarding the first two concerns raised by OIRA staff, we believe our  report sufficiently recognizes agencies’ responsibilities under CRA.  Regarding the third concern, we disagree that OMB has done all that it  can to improve compliance with CRA. As noted above, OMB staff  asserted that they do take steps to check for CRA compliance, and these  checks could provide a starting point for OMB to address our  recommendation. However, our analysis raises questions about how  effective these checks have been. OIRA completed its review for 110 of  the 132 noncompliant economically significant regulations within 90 days  of the stated effective date. This analysis points to a simple “rule of  thumb” for OIRA reviewers to use. If a regulation has a planned effective  date in less than 90 days, it is at high risk of noncompliance with CRA.  Further, our report identifies three specific strategies OIRA staff could  discuss with agency officials on how to comply with CRA. Thus, we  believe that our report shows that OMB could do more to ensure CRA  compliance and identifies specific ways OMB could help agencies  accomplish this.

We are sending copies of this report to the Director of OMB as well as  appropriate congressional committees and other interested parties. In  addition, this report is available at no charge on the GAO website at  http://www.gao.gov.

If you or your staff members have any questions about this report, please  contact me at (202) 512-6806 or krauseh@gao.gov. Contact points for  our Offices of Congressional Relations and Public Affairs may be found  on the last page of this report. GAO staff who made key contributions to  this report are listed in appendix III.

Appendix I: Objectives, Scope, and Methodology

Section 5 of the Edward “Ted” Kaufman and Michael Leavitt Presidential  Transitions Improvements Act of 2015 includes a provision for us to  assess final significant regulatory actions promulgated by executive  departments during specified presidential transition periods and to  analyze and compare multiple characteristics of regulations issued during  these transition periods to each other and to regulations issued during the  same 120-day period (September 23 to January 20) in nontransition  years since 1996. The transition periods identified in the act are those  ending on January 20 in 2001, 2009, and 2017, which occurred at the end  of the administrations of Presidents Clinton, Bush, and Obama.

For purposes of this review, executive agencies are cabinet departments  and other agencies that answer directly to the President and exclude the  independent regulatory agencies. The definition of what the mandate  refers to as a “covered regulation” is the same as the definition of a final  significant regulatory action under Executive Order (E.O.) 12866. Under  E.O. 12866, the Office of Management and Budget’s (OMB) Office of  Information and Regulatory Affairs (OIRA) reviews significant proposed  and final regulatory actions from all federal agencies (other than  independent regulatory agencies) before they are published in the  Federal Register. The order defines significant regulatory actions as  those that are likely to result in a regulation that may:  1.  Have an annual effect on the economy of $100 million or more or  adversely affect in a material way the economy, a sector of the  economy, productivity, competition, jobs, the environment, public  health or safety, or State, local, or tribal governments or communities  (generally referred to as “economically significant” regulations);  2.  Create a serious inconsistency or otherwise interfere with an action  taken or planned by another agency;  3.  Materially alter the budgetary impact of entitlements, grants, user  fees, or loan programs or the rights and obligations of recipients  thereof; or  4.  Raise novel legal or policy issues arising out of legal mandates, the  President’s priorities, or the principles set forth in the executive order.

For each of the three transition periods, and among these transition  periods and the same 120-day periods in the 18 nontransition periods,  our objectives were to assess the extent to which there were variations in:  1.  The number of regulations and other indicators related to the scope  and transparency of these regulations;  2.  Agencies’ reported compliance with procedural requirements for  promulgating the regulations; and  3.  The anticipated economic effects agencies reported would result from  the regulations.

In general, to address each of these objectives we reviewed the universe  of all 527 final economically significant regulations published during the  specified time periods and a generalizable stratified random sample of  358 final significant regulations from the population of the 1,633 final  significant regulations published during those same periods. For  economically significant regulations, we can provide precise statistics on  the extent of a finding, because we reviewed the universe of final  economically significant regulations. For significant regulations, our  findings are based on a sample designed to achieve a 7 percent margin  of error and 95 percent level of confidence for each stratum in the  population of all covered significant regulations published in each  transition period and, collectively, all nontransition periods. Our findings  for the sample are not generalizable to the individual agencies that  published those regulations. We divided the significant regulations into  four strata depending on when the regulation was published: 1) the 2000- 2001 transition period; 2) the 2008-2009 transition period; 3) the 2016- 2017 transition period; and 4) all the nontransition periods consolidated  into one stratum. We made two modifications to the data for each  stratum before we selected our sample: 1) We added to the sampling  frames additional significant regulations that we had become aware of  during our review of economically significant regulations; and 2) we  reviewed the sampling frames and filtered out duplicate entries. Because  we followed a probability procedure based on random selections, our  sample is only one of a large number of samples that we might have  drawn. Since each sample could have provided different estimates, we  express our confidence in the precision of our particular sample’s results  as a 95 percent confidence interval (for example, plus or minus 7  percentage points). This is the interval that would contain the actual  population value for 95 percent of the samples we could have drawn.  Table 3 summarizes the population and sample size by stratum for  significant regulations.

We primarily relied on the Reginfo.gov database on OMB’s regulatory  reviews under E.O. 12866 to compile lists of final economically significant  and significant regulations published during each of the transition and  nontransition periods. As described in more detail below, we refined and  supplemented the lists from the Reginfo.gov database with information  from our database of rules submitted to us under the Congressional  Review Act (CRA), and the Government Printing Office’s Federal Digital  System database on the Federal Register. To test the reliability of these  databases, we reviewed relevant documentation, interviewed  knowledgeable agency officials, looked for missing data and outliers (for  example, by identifying missing records or those included in error), traced  a sample of entries to source documents, and conducted additional  checks. We concluded that the data were sufficiently reliable for our  purposes.

Further for all objectives and for both economically significant and  significant regulations, our primary source was the text of the published  regulation. However, as described below, we did sometimes supplement  that information with information from other publicly available sources. We  downloaded copies of published regulations from the website maintained  by the Government Printing Office, which securely controls content to  ensure the integrity and authenticity of the Federal Register. We used a  data collection instrument to collect standardized information about  individual regulations as described below. We did not evaluate the  agencies’ decisions regarding procedural requirements or their  determinations regarding the effects of their rules. Instead, consistent with  our practice in preparing major rule reports to Congress under CRA and  prior reports on federal rulemaking, we are providing information about  what the agencies published in the Federal Register.

To assess the number of regulations and other variations related to the  scope and transparency of these regulations, we first reviewed and  refined our lists of economically significant and significant regulations  published during each of the transition and nontransition periods. For  economically significant regulations, we compared the initial lists  compiled from Reginfo.gov against lists of major rules agencies had  submitted to us under CRA to look for potential omissions. We then  reviewed each of the published regulations to identify explanations  agencies may have provided of a selected regulation’s classification as  economically significant under E.O. 12866 to tally total numbers of  economically significant regulations published during each of the time  periods and the agencies publishing them. To identify economically  significant regulations published annually, we looked for indications in the  title or summary of the regulation and confirmed that these regulations  appeared in multiple time periods reviewed. For significant regulations,  we obtained data from Reginfo.gov concerning the number of regulations  reportedly published and the agencies reported to have published them.  We also reviewed the published regulations for explanations of the  regulations’ classification under E.O. 12866. Our sample of significant  regulations was not designed to make estimates for individual agencies,  so we used data from Reginfo.gov instead. For both economically  significant and significant final regulations, we compiled information on  the rulemaking procedures used by agencies to determine whether the  agencies had published a prior notice of proposed rulemaking (NPRM).

We did this by looking for discussion of a proposed regulation in the  published final regulation. As necessary, we supplemented that review  with information from our major rule reports, if available, and data from  Reginfo.gov concerning the rulemaking history. To describe the extent to  which regulations had been advertised in the previous spring’s Unified  Agenda, we searched for the regulation’s identification number(s) in the  online database for the Unified Agenda.

To assess the extent to which there were variations in agencies’ reported  compliance with procedural requirements for promulgating the  regulations, we reviewed the published text of the regulations and, for  regulations that were also major rules, the major rule reports that we  prepared for Congress under CRA. We reviewed agencies’ reported  compliance with procedural requirements for promulgating regulations  under five statutes—CRA, the Regulatory Flexibility Act (RFA), the  Paperwork Reduction Act (PRA), the Unfunded Mandates Reform Act of  1995 (UMRA), and the Small Business Regulatory Enforcement Fairness  Act (SBREFA)—including whether and, if so, how the agency addressed  the requirement in the published regulation. To determine whether the  Environmental Protection Agency and the Occupational Safety and  Health Administration held the panels they were required to hold under  SBREFA, we also reviewed the information on the Small Business  Administration’s website summarizing these panels.

We took multiple steps to identify noncompliance with CRA. We first  determined whether every regulation had been submitted to us, and for  regulations that had been submitted, we recorded the date we received  it. We used the date a regulation had been submitted to us when  assessing whether a regulation’s stated effective date was consistent with  CRA requirements. We also reviewed whether agencies had claimed  “good cause” for not delaying the effective date. For regulations not  submitted to us or those regulations submitted to us after they should  have been submitted, we conducted additional checks of the  Congressional Record to see if we could find evidence that the agency  had provided a copy of the regulation to either of the Houses of Congress  in time for the regulation’s stated effective date to be consistent with CRA  requirements. If we could find evidence that any of these requirements  had been met, we removed the regulation from further consideration as  potentially noncompliant. As such, our methodology was designed to  identify instances of noncompliance. Our methodology does not allow us  to conclude that the remaining regulations were fully compliant. In  addition, it was beyond the scope of our review to evaluate the  appropriateness of agencies claiming “good cause” for not providing the  required delay.

To assess the extent to which there were variations in agencies’ reported  anticipated economic effects resulting from the regulations, we reviewed  the published regulations to see whether they contained a section clearly  identified as economic analysis or discussion of the analytical  requirements concerning E.O. 12866. We used selected elements from  OMB Circular A-4 to review the analyses included in the published  regulations to identify expected costs, benefits, or transfers, and whether  that information was provided in monetary, quantitative, or qualitative  terms. To help identify regulations that involved transfers, we also  reviewed the annual reports OMB prepares for Congress on the costs  and benefits of federal regulations. OMB includes in these reports a list  of transfer regulations and has used a consistent definition over time.  We also looked for indication in the published regulation’s economic  analysis that the regulation involved such topics as transfers, or federal  payments to certain groups in society (for example, Medicare recipients),  subsidies for certain economic activities, or user fees or royalties people  pay the government to name several common examples. To determine  the extent to which agencies discussed whether they expected that the  benefits would justify the costs, we looked for “bottom line” or other  concluding statements agencies may have provided in their economic  analysis. We also looked, when relevant, for a discussion of what the  net benefits or costs were expected to be. For transfer regulations that  were economically significant, we examined the extent to which agencies  quantified or monetized the expected transfers. If available, we used accounting statements agencies may have prepared summarizing the  anticipated economic effects to help collect all of this information. We did  not assess whether the agencies’ determinations regarding the benefits  and costs were reasonable. In addition, we did not assess whether the  agencies analyzed regulatory alternatives and uncertainty.

Appendix II: Additional GAO Analysis of Final Regulations Published During Specified Periods, 1996-2017

The figures and tables in this appendix provide more detailed information  on the results of additional analyses we completed for this report related  to each of our three objectives. For economically significant regulations,  we provide precise statistics on the extent of a finding, because we  reviewed the universe. For significant regulations, our findings are based  on a sample and include the upper and lower bounds of confidence  intervals for estimated values.

Analyses of Indicators Related to the Numbers, Scope, and Transparency of Regulations

In this section, we provide additional information from our analyses of:  the extent to which economically significant regulations were  published before or after the presidential elections in 2000, 2008, and  2016;  the most active rulemaking agencies for economically significant and  significant regulations among the three administrations’ transition and  nontransition periods;  the number of economically significant regulations for which agencies  reported they were under a statutory or judicial deadline to promulgate  the regulation; and  the median length, in days, of Office of Information and Regulatory  Affairs (OIRA) regulatory reviews under Executive Order (E.O.) 12866  for draft final economically significant and significant regulations  during transition and nontransition periods.

We reviewed the extent to which economically significant regulations  were published before or after the presidential elections in 2000, 2008,  and 2016 and found that Presidents Clinton and Obama’s administrations  increased their rate of rulemaking following the election, while President  Bush’s administration decreased its rate of rulemaking. (See figure 14.)

We identified the most active rulemaking agencies for economically  significant regulations among the three administrations’ transition and  nontransition periods and did the same for significant regulations. (See  tables 4-9.)

Agencies can indicate on Reginfo.gov whether they are required by a  statutory or judicial deadline to promulgate a regulation. We did additional  analysis for economically significant regulations and found agencies were  less likely to indicate they were under such a deadline during the three  administrations’ transition periods compared to nontransition periods.

Under E.O. 12866, agencies are expected to submit regulations deemed  significant to OIRA for review. Nearly all regulations we reviewed had  been reviewed by OIRA. For a small number of economically significant  regulations (13 across all periods or approximately 2 percent of the  economically significant population), we could not find evidence on  Reginfo.gov that OIRA reviewed the regulation. However, the absence of  evidence on Reginfo.gov does not necessarily mean that OIRA did not  review those regulations and may instead indicate that the review dates  were not entered into Reginfo.gov. Our review found that the median  length of OIRA’s review increased for economically significant regulations  during each transition. (See figure 15.) For significant regulations, there  were no statistical differences among the three transition periods and  compared to nontransition periods combined. (See figure 16.)

Analyses of Indicators Related to Agencies’ Reported Compliance with Selected Procedural Requirements for Promulgating Regulations

In this section, we provide additional information from our analyses of: agencies’ determinations regarding their regulations under the  Regulatory Flexibility Act (RFA); agencies’ determinations regarding their regulations under the  Paperwork Reduction Act (PRA); agencies’ determinations regarding their regulations under the  Unfunded Mandates Reform Act of 1995 (UMRA); and

Congressional Review Act (CRA) noncompliance rates for the  agencies publishing the largest number of regulations.

We reviewed agencies’ discussions of three procedural requirements– RFA, PRA, and UMRA–for economically significant regulations. (Figures  17-19 summarize the determinations agencies reached.)

We reviewed agencies’ discussions of three procedural requirements– RFA, PRA, and UMRA–for significant regulations. Figures 20-22  summarize the determinations agencies reached. We found the following  statistical differences in comparing the determinations agencies reached  for significant regulations:

RFA: There were no statistical differences among the three transition  periods and nontransition periods in the determination that regulations  might have a significant economic impact on a substantial number of  small entities. Regulations published during President Clinton’s  transition period were less likely than regulations published during  President Bush’s transition period and nontransition periods to  determine that the regulation would not have a significant economic  impact on a substantial number of small entities. There were no  statistical differences between Presidents Clinton’s and Obama’s  transition periods for this determination under RFA. We also found  statistical differences in the remaining two categories–regulations not  subject to RFA and those not discussing RFA.

PRA: Significant regulations published during Presidents Obama’s  and Clinton’s transition periods more frequently contained information  collection requirements covered by PRA compared to nontransition  periods. In addition, significant regulations published during President  Clinton’s transition period more frequently contained information  collections requirements compared to President Bush’s transition  period. There were no other statistical differences in significant  regulations containing information collection requirements. For the  other categories, there were no statistical differences, except that  significant regulations published during nontransition periods were  less likely to discuss PRA than those published during President  Obama’s transition period.

UMRA: There were no statistical differences among the transition and  nontransition periods in potential federal mandates covered by UMRA.

We examined the CRA noncompliance rates for the agencies publishing  the largest number of economically significant regulations. (See table 10).

Analyses of Indicators Related to the Anticipated Economic Effects Agencies Reported would Result from the Regulations

In this section, we provide additional information from our analyses of the  extent to which: agencies indicated benefits justified costs for economically significant agencies estimated net costs or benefits for economically significant agencies anticipated costs, benefits, or transfers resulting from  significant regulations.

We examined additional indicators related to the economic analyses that  E.O. 12866 and Circular A-4 encourage agencies to conduct when  promulgating regulations. E.O. 12866 states that an agency should  propose or adopt a regulation only upon a reasoned determination that  the benefits of the intended regulation justify its costs. We examined the  extent to which agencies indicated that the anticipated benefits from  economically significant regulations would justify their costs and found  that agencies during Presidents Clinton’s and Obama’s transition periods  were more likely to indicate that benefits justified costs compared to these  administrations’ nontransition periods. (See figure 23.) During President  Bush’s transition period, agencies were less likely to indicate that the  anticipated benefits of the regulation would justify its anticipated costs.  We did not extend this analysis to significant regulations because the  examples were too limited to provide statistically reliable estimates for the  three transition periods and nontransition periods combined.

Monetizing both costs and benefits potentially allows an agency to  calculate the net costs or benefits of a regulation and thus estimate how  much better or worse off society will be as a result of the chosen  regulatory approach. We found that agencies during Presidents Bush’s  and Obama’s administrations, during both transition and nontransition  periods, were more likely to calculate net costs or benefits than agencies  during President Clinton’s transition and nontransition periods. (See figure  24.) We did not extend this analysis to significant regulations because the  examples were too limited to provide statistically reliable estimates for the  three transition periods and nontransition periods combined.

For significant regulations that did identify anticipated costs, benefits, or  transfers, we found the following statistical differences in comparing the  three transition periods and nontransition periods combined as explained  below and in figure 25:

Economic Costs or Benefits or Both: For regulations falling into this  category, the only statistical difference we found was that agencies  were more likely during President Clinton’s transition period to identify  anticipated economic costs or benefits or both compared to President  Bush’s transition period.

Transfers: For regulations falling into this category, the only statistical  difference we found was that agencies were less likely during  President Obama’s transition period to identify anticipated transfers  compared to President Bush’s transition period and all three  administrations’ nontransition periods combined.

Both economic costs or benefits and transfers: For regulations  falling into this category, the only statistical difference we found was  that agencies were less likely during President Clinton’s transition  period to indicate this compared to President Bush’s transition period.

No economic analysis: An estimated 43 percent of significant  regulations across all periods reviewed contained no economic  analysis and there were no statistical differences among the three  transition periods reviewed and the nontransition periods combined.

Appendix III: GAO Contact and Staff Acknowledgments

In addition to the individual named above, Tim Bober (Assistant Director),  Michael O’Neill (Analyst in Charge), Carl Barden, Tim Guinane, Krista  Loose, Ned Malone, Alexander Ray, Cynthia Saunders, Christie Stassel,  and Andrew J. Stephens made key contributions to this report. Donna  Miller, John Hussey, Steven Flint, and Rob Letzler also contributed.

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.