The Obama Administration's Regulatory Review Initiative
On Jan. 18, 2011, President Obama announced an initiative designed to reduce regulatory burdens on businesses, encourage agencies to periodically review existing regulations, and promote public participation in the rulemaking process. Executive Order 13563, Improving Regulation and Regulatory Review (E.O. 13563), instructed federal agencies to create a plan for the review of existing regulations and to revise those that are outdated, redundant, or "unnecessarily burdensome." The E.O. required all cabinet-level agencies to participate in the review process and encouraged independent regulatory agencies (see below) and commissions to participate, as well.
The E.O. left much of the detail of the review process up to the agencies themselves, indicating only that each agency should devise a plan “under which the agency will periodically review its existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed so as to make the agency’s regulatory program more effective or less burdensome in achieving the regulatory objectives.” The E.O. also set a deadline of May 18 for agencies to submit their preliminary plans to the Office of Management and Budget (OMB).
The public interest community has been concerned that the E.O would cause agencies to sacrifice important health and safety protections. In addition, while the E.O. limited the regulatory review process to existing regulations, some have worried the order would have a “chilling” effect on agencies and cause them to pull proposed rules into the retrospective review process.
On May 25, OMB announced the release of the preliminary plans and published them on its website. All 15 cabinet-level agencies and the U.S. Environmental Protection Agency, as well as 14 non-cabinet agencies created drafts indicating how they would comply with E.O. 13563. Since the E.O. did not lay out specific guidelines, each agency developed its own approach to the review process. While some agencies submitted detailed proposals with a list of specific rules to be revised, others responded more generally. In some cases, agencies included rules in development, even though the E.O had indicated the review should only include “existing significant regulations.” A detailed analysis of the proposals released in May is available here.
Guidance on the Final Plans
On April 25, OMB released a guidance document that included a timeline for the release of final documents and encouraged agencies to solicit public comments on their preliminary plans and to incorporate these comments into their final proposals. OMB gave agencies 80 days to finish the plans and re-submit them for review. The April 25 guidance also encouraged agencies to structure future regulations in a way that will make it easier for them to be reviewed in the coming years.
OMB released a second guidance document on June 14 that set a deadline of Aug. 1 for the agencies to submit the plans to OMB for review and Aug. 22 as the date that plans would be made public. This document also instructed agencies to “identify, in their final plans, specific reforms and initiatives that will significantly reduce existing regulatory burdens and promote economic growth and job creation” and to quantify burden and cost reductions.
The retrospective review plans were released to the public on Aug. 23. Twenty-six of the 30 agencies that submitted preliminary proposals released final plans.
Impact of the Retrospective Review Process
The regulatory system provides many of the public protections we rely on to ensure that we have clean air, clean water, safe workplaces, nontoxic toys for our children, and a sound economy. If done improperly or without necessary safeguards, second-guessing these important regulations can open the door for industry interference in the rulemaking process.
In completing their retrospective review plans, agencies seem to have approached the process with their missions in mind, finding cost savings without sacrificing important protections. Some of the plans focus on moving to electronic recordkeeping, which agencies believe will allow them to provide the public with more accurate and timely information on industry actions. Other agencies have introduced initiatives to streamline agency efforts, identifying duplicative projects and encouraging departments to share data and resources. These efforts should reduce government costs and improve the quality of data available to agencies.
An in-depth analysis of the final retrospective review plans can be found here.
While the agencies seem to have taken a thoughtful and reasonable approach to the review process, the actions discussed are merely proposals. Agencies will have to complete the standard rulemaking process for most of the changes discussed in the plans. It is during this process that the real effects of the review will become clear. The public will need to keep a close eye on the rules as they come through the revision process to ensure important health and safety regulations are not weakened in the agencies’ attempts to reduce costs.
While the Obama Administration does not have the legal authority to require independent commissions and agencies, such as the Consumer Product Safety Commission (CPSC), the Federal Trade Commission (FTC) and the Federal Election Commission (FEC), to perform retrospective reviews, the Jan. 18 E.O. did encourage these independent entities to participate in the review. Only four independent agencies (the National Labor Relations Board, the Railroad Retirement Board, the Surface Transportation Board, and the Office of Thrift Supervision) submitted preliminary plans in May.
On July 11, Obama released E.O. 13579, Regulation and Independent Regulatory Agencies, which specifically encouraged independent regulatory agencies to participate in the regulatory review initiative. Subsequent guidance set out specific topics that independent agencies should cover in their plans and indicated that the agencies should publish the documents by Nov. 19. The OMB blog post announcing the guidance document stated that the business community had pressed for the review process to include independent agencies, and that the agencies had expressed interest in the initiative. It remains to be seen whether or not the major independent agencies will make their regulatory “look-back” plans public by Nov. 19.