Under the Bush administration, OMB’s Office of Information and Regulatory Affairs (OIRA) has significantly affected the substance of health, safety and environmental standards but failed to consistently document its influence, according to a report by the General Accounting Office (GAO). OIRA reviews and must approve all major regulatory proposals. Executive Order 12866, issued in 1993, establishes transparency requirements that require both OIRA and agencies to disclose certain information about this review process. In particular, agencies must identify substantive changes made to rules during OIRA’s review and at OIRA’s suggestion, and OIRA must disclose all documents exchanged with agencies. GAO examined the effects of OIRA review on 85 health, safety and environmental regulations that were changed, returned or withdrawn during a one-year period; OIRA significantly affected 25 of those rules “by suggesting changes that revised the scope, impact or costs and benefits of the rules, returning the rules for reconsideration by the agency, or, in once case, requesting that the agency withdraw the rule from review.” These reviews were not always clearly documented, making it difficult to assess OIRA's influence. Most notably, GAO found that:

• OIRA frequently becomes involved in the early stages of regulatory development -- that is, before an agency formally submits a proposal for review. Indeed, OIRA Administrator John Graham has made such “upfront” involvement a priority. However, OIRA has interpreted E.O. 12866 to require documentation of changes only during the formal review period -- even though informal review can be much more significant. “[R]estricting the transparency requirements … only to a brief period of formal review seems antithetical to the intent of those requirements,” GAO stated.
• OIRA’s descriptions of its contacts with outside parties did not always clearly indicate what rule was discussed or what organizations the parties represented.
• In recording the outcome of its reviews, OIRA used the code “consistent with change” to signify all types of changes made to rules -- from minor grammatical edits to significant, substantive changes.
• OIRA interprets E.O. 12866 to require disclosure only of documents exchanged by staff at the branch chief level and above. As a result, it has failed to disclose documents exchanged between lower level OIRA staff and agency personnel -- the level at which many substantive changes occur.

GAO recommended that Joshua Bolten, director of OMB, take specific steps to address these issues. However, in written comments on the report, Graham disagreed with most of GAO’s recommendations and committed only to provide clearer descriptions of contacts with outside parties. OMB Watch has previously raised these transparency concerns and documented OIRA’s efforts to weaken a host of health, safety and environmental proposals.