Agencies Release Updates on Regulatory Look-backs

On Jan. 30, the White House announced that 25 federal agencies had released reports on their progress in carrying out retrospective rule reviews, part of the Obama administration's regulatory reform effort.

On Jan. 18, 2011, President Obama issued Executive Order 13563, "Improving Regulation and Regulatory Review," instructing federal agencies to develop plans to review existing regulations to identify rules that are "outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them." In accordance with E.O. 13563, 26 agencies released final plans containing the list of rules that will be reviewed and revised, as well as descriptions of how the agencies intend to incorporate ongoing retrospective review processes into their administrative procedures. The January 2012 reports update both the list of rules undergoing review and agencies' progress in the look-back process.

After the release of the retrospective review plans, Office of Information and Regulatory Affairs (OIRA) Administrator Cass Sunstein issued an Oct. 26, 2011, memorandum on the "Implementation of Retrospective Review Plans," directing agencies to "give high priority to those reforms that will promote economic growth, innovation, competitiveness, and/or job creation . . . [including] those with the greatest potential to produce significant quantifiable cost savings and significant quantifiable reductions in paperwork burdens."

The memo also required agencies to report to OIRA on the status of their review efforts, describing "past progress, anticipated accomplishments, and proposed timelines for relevant actions, with an emphasis on high-priority reforms." OIRA's template for the reports asks agencies to describe, quantify, and monetize "anticipated savings in costs and/or information collection burdens, together with any anticipated changes in benefits" and asks agencies to provide the actual or target completion date for each rule listed and explain any progress updates and anticipated accomplishments. The first update reports were to be submitted on the second Monday of January, with follow-up reports expected in May and September. Going forward, agencies will be required to issue update reports twice a year, and all reports must be made publicly available after they are submitted to OIRA.

Most of the January 2012 reports follow OIRA’s template and provide organized updates on the reviews identified in agencies' final plans. For example, the U.S. Environmental Protection Agency’s (EPA) final plan listed five completed actions and 35 priority reviews; updates on all 40 reviews were included in the progress report.

Some agencies, however, included additional reviews that were not identified in final plans. The Department of Health and Human Services provided updates on a staggering 83 rules, which were only identified in the context of broad initiatives in the agency’s plan for how it would conduct retrospective reviews. The U.S. Department of Agriculture’s (USDA) update report included 14 reviews, five more than the nine initiatives listed in the agency’s plan. The Food Safety and Inspection Service (FSIS) within USDA added two new specific reforms. One is a proposed rule expected in March 2012 that would provide for electronic transmittal of foreign establishment and inspection certificates, saving importers approximately 10,000 hours in information collection. The other is a controversial proposed rule published in January 2012 that would shift inspection responsibilities for chicken and turkey carcasses away from FSIS inspectors and to the regulated slaughtering plants.

Agencies generally attempted to provide information on the anticipated savings in costs and burden reductions but were unable to quantify and monetize anticipated savings in terms of dollars or burden-hours for many of the reviews. For some, it is too early in the review process to have savings estimates. Although the agency reports provide more narratives on savings than quantifiable estimates, "more than $10 billion in savings are anticipated from just a small fraction of the hundreds of initiatives now underway," Sunstein wrote in a blog announcing the updates. "[A]s the plans are implemented," he concluded, "we expect to save a great deal more."

The on-time release of agency updates indicates that the administration is committed to the look-back effort and ensuring that agencies are following through with implementing their review plans. Many will be looking for more detailed cost-savings estimates and progress updates in the next round of reports expected in May. As the process continues, it is imperative that agencies remain focused on their missions of safeguarding the public and do not allow regulatory reform and look-back efforts to undermine important health and safety protections.

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