Improving Regulation and Regulatory Review

March 31, 2011 § Leave a comment

On January 18, 2011, The Wall Street Journal featured an op-ed by President Obama highlighting the need to achieve the right balance between federal regulations and the free market. On the same day the President signed Executive Order 13563: Improving Regulation and Regulatory Review. The Executive Order requires agencies to not only ensure regulations protect our safety, health, and environment, but also promote economic growth. In addition, the Executive Order kicks off a review of existing regulations to eliminate those that are outdated and unnecessary, which can result in reduced job creation and a less competitive economy.

The Executive Order is meant to reaffirm and supplement the principles of Executive Order 12866, signed in 1993, which requires agencies, to the extent permitted by law, to do the following when implementing new regulations:

  • Propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs
  • Tailor its regulations to impose the least burden on society
  • Select those approaches that maximize net benefits
  • Specify performance objectives
  • Identify and assess available alternatives to direct relocation

Obama’s recent order furthers the goals of his Administration by adding measures to Executive Order 12866 that make the regulatory development process more transparent and reduce the burden on the public. Measures include:

  • Public participation: regulations should be based on the open exchange of information and perspectives among state, local, and tribal officials; experts in relevant disciplines; affected stakeholders in the private sector; and the public
  • Integration and innovation: regulations should be coordinated across agencies to reduce redundancy, inconsistency, and overlap in regulatory requirements
  • Flexible approaches: regulatory approaches should reduce burden and maintain flexibility and freedom of choice for the public.

To implement these measures, the Executive Order 13563 requires agencies to consider how best to:

  • Provide the public a meaningful opportunity to comment via the Internet for at least 60 days
  • Seek the views of those who will be affected
  • Look for and promote coordination among agencies
  • Promote innovation
  • Promote retrospective analysis of rules that may be ineffective, duplicative, or excessively burdensome

Agencies have until mid-May (120 days from the date of the Executive Order) to develop and submit a preliminary plan that institutes a periodic review of the agency’s existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed. Plans should be submitted to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA). When drafting plans, agencies should take into consideration recent guidance from OIRA: Memorandum M-11-10, which expands upon the Executive Order and what agency plans must include.


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