This week, the Government Accountability Office released a report on the rulemaking process. GAO had been asked by Congress in 2007 to assess agency rulemaking practices and to pay particular attention to the role of the White House Office of Information and Regulatory Affairs (OIRA) – the Executive Branch gatekeeper for all things regulatory.

The report, dated April 2009, is chock full of good, albeit wonky, information. Two things jumped out at me.

First, GAO says that the OIRA review process does indeed delay agency rules. The typical OIRA review takes about two months – a relatively short period of time, considering that many regulations take years to finalize.

But OIRA also exercises control outside of the formal review period. “OIRA may be involved informally at any point during the process,” GAO says. The looming specter of OIRA review can compound delay: “[R]ules that require OIRA and interagency review typically need additional time for the external review process and, according to some agency officials, trigger additional internal scrutiny.”

All the while, public protections are delayed, leaving consumers, workers, or the environment at risk.

Second, OIRA sometimes controls the content of regulations, but its interventions are not well-documented. GAO examined 12 rules reviewed by OIRA and found that OIRA made “significant changes” to four of them. (GAO defines significant changes as, “Rules in which the most significant changes affected the scope, impact, or estimated costs and benefits of the rules as originally submitted to OIRA. Usually, these changes were made to the regulatory language that would appear in the Code of Federal Regulations and is legally binding...”)

OIRA’s penchant for changing the language of regulations is inappropriate. OIRA generally does not have the expertise, nor the statutory authority, found in regulatory agencies. Changes generated by the White House cast a political shadow over the entire process.

To make matters worse, OIRA’s role is not fully transparent. It is sometimes impossible to know which parts of a regulation have been developed by the agency and which are White House products. According to GAO, “[T]here are still opportunities to improve transparency for some of these topics, such as better identification of when agencies made substantive changes to their rules as a result of the OIRA review process, attributing the sources of changes made during the review period, and clarifying the definition of substantive changes.”

Image by Flickr user zaskem, used under a Creative Commons license.