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Retrospective regulatory review

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See also: Regulatory review

Retrospective regulatory review or retrospective review refers to processes used to determine if existing regulations should be retained, modified, or repealed. Since the 1970s, beginning with the presidential administration of Jimmy Carter, the president and Congress have issued executive orders and enacted laws requiring federal agencies to conduct various kinds of retrospective regulatory review. The Office of Information and Regulatory Affairs (OIRA) is authorized under several presidential executive orders to review existing federal regulations. Some state governments have also undertaken retrospective review efforts.[1][2][3]

Background

The Administrative Conference of the United States (ACUS), an independent federal agency tasked with developing recommendations to improve federal administrative processes, gave the following history and explanation of retrospective regulatory review in a 2014 guidance document:[2]

“ Traditionally, federal regulatory policymaking has been a forward-looking enterprise: Congress delegates power to administrative agencies to respond to new challenges, and agencies devise rules designed to address those challenges. Over time, however, regulations may become outdated, and the cumulative burden of decades of regulations issued by numerous federal agencies can both complicate agencies' enforcement efforts and impose a substantial burden on regulated entities. As a consequence, Presidents since Jimmy Carter have periodically undertaken a program of 'retrospective review,' urging agencies to reassess regulations currently on the books and eliminate, modify, or strengthen those regulations that have become outmoded in light of changed circumstances.[4] ”
—Administrative Conference of the United States (2014)[2]

A variety of presidential executive orders issued by presidents from Jimmy Carter through Donald Trump have been the primary source of federal government-wide retrospective review requirements.[1][5][6] Additionally, some pieces of congressional legislation have required retrospective review of particular types of regulations. The Regulatory Flexibility Act of 1980, passed by Congress and signed into law by President Jimmy Carter, required federal agencies to "publish in the Federal Register a plan for the periodic review of the rules issued by the agency which have or will have a significant economic impact upon a substantial number of small entities."[7]

Uses of retrospective regulatory review by presidential administrations

Jimmy Carter, Ronald Reagan, and George H.W. Bush (1977-1993)

In a 2007 report on the effectiveness and transparency of retrospective regulatory reviews conducted by federal agencies, the U.S. Government Accountability Office (GAO) claimed that the presidential practice of directing agencies to review and reconsider existing regulations began with the administration of President Jimmy Carter and was continued by his successors:[1]

“ President Carter’s Executive Order 12044 required agencies to periodically review existing rules; one charge of President Reagan’s task force on regulatory relief was to recommend changes to existing regulations; President George H.W. Bush instructed agencies to identify existing regulations to eliminate unnecessary regulatory burden.[4] ”
—U.S. Government Accountability Office[1]

Bill Clinton and George W. Bush (1993-2009)

Executive Order 12866, issued by President Bill Clinton (D) in 1993, ordered agencies to develop a plan for the periodic review of existing significant rules. The order also authorized the Office of Information and Regulatory Affairs within the Office of Management and Budget to review all new and preexisting significant regulatory actions.[8][1]

According to the 2007 GAO report on retrospective regulatory review, "In 2001, 2002, and 2004, the administration of President George W. Bush asked the public to suggest reforms of existing regulations."[1]

Barack Obama (2009-2017)

The retrospective review requirements of E.O. 12866 were revised in two executive orders issued by President Barack Obama (D). Executive Order 13563, "Improving Regulation and Regulatory Review," was issued by President Obama on January 18, 2011. The order included the following requirements for agencies to conduct retrospective analyses of existing rules:[5]

“ To facilitate the periodic review of existing significant regulations, agencies shall consider how best to promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned. Such retrospective analyses, including supporting data, should be released online whenever possible.[4] ”
—Executive Order 13563 (2011)[5]

Executive Order 13610, "Identifying and Reducing Regulatory Burdens," was issued by President Barack Obama on May 10, 2012. It contained additional provisions on retrospective regulatory review, including a requirement for agencies to report on their reviews to the Office of Information and Regulatory Affairs twice per year, in January and July. It also provided for public participation in the retrospective review process.[9][3]

Donald Trump

President Donald Trump (R) included retrospective regulatory review requirements in Executive Order 13771, "Reducing Regulation and Controlling Regulatory Costs," which he issued on January 30, 2017. The order stated that the executive branch ought to be "prudent and financially responsible in the expenditure of funds" from taxpayers while also managing the compliance costs that organizations and individuals face in order to obey federal regulations. The order also required that agencies engaged in a rulemaking, whenever possible, conduct retrospective reviews of their existing regulations and recommend two for repeal:[6]

“ Unless prohibited by law, whenever an executive department or agency (agency) publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed.[4] ”
—Executive Order 13771 (2017)[6]

Regulations related to the military, foreign affairs, and national security, as well as regulations related to agency management and organization, were exempted from the requirements of this order.[6]


State-level initiatives

Below is a partial list of retrospective regulatory review initiatives undertaken by some state governments to review and reconsider existing regulations issued by state administrative agencies.

Illinois

Illinois Governor Bruce Rauner (R) issued Illinois Executive Order 2016-13 on October 17, 2016, establishing the Illinois Competitiveness Council to oversee and administer the Cutting the Red Tape Initiative. The order instructed all Illinois state agencies to review their existing rules and regulations. According to the official website of the Cutting the Red Tape Initiative, the goal of the program "is to determine which ones [rules] are outdated, repetitive, confusing, unnecessary, or harmful to the economy." The order also provided for public input in the regulatory review process.[10]

Kentucky

In July 2016, Kentucky Governor Matt Bevin (R) launched the Red Tape Reduction Initiative, a program to review and consider for repeal or amendment the more than 4,700 state administrative regulations in place at the time. The official website of the Red Tape Reduction Initiative claimed that prior to the program about 85 percent of existing state regulations in Kentucky had never had their effectiveness or necessity reviewed.[11][12]

As of August 15, 2017, the initiative's official website claimed that 2,162 state administrative regulations had been reviewed. Of those regulations, 176 had been repealed and 203 had been amended. The site also stated that 57.3 percent of the regulations that had been reviewed were in need of repeal or amendment.[13]

See also

External links

Footnotes

  1. ↑ 1.0 1.1 1.2 1.3 1.4 1.5 U.S. Government Accountability Office, "Reexamining Regulations: Opportunities Exist to Improve Effectiveness and Transparency of Retrospective Reviews," July 2007
  2. ↑ 2.0 2.1 2.2 Administrative Conference of the United States, "Retrospective Review of Agency Rules," December 9, 2014
  3. ↑ 3.0 3.1 The Regulatory Group, "Regulatory Glossary," accessed August 28, 2017
  4. ↑ 4.0 4.1 4.2 4.3 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
  5. ↑ 5.0 5.1 5.2 White House Archives, "Executive Order 13563 -- Improving Regulation and Regulatory Review," January 18, 2011
  6. ↑ 6.0 6.1 6.2 6.3 White House Office of the Press Secretary, "Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs," January 30, 2017
  7. ↑ U.S. Small Business Administration, "The Regulatory Flexibility Act," accessed August 31, 2017
  8. ↑ Federal Register, "Executive Order 12866," October 4, 1993
  9. ↑ White House Archives, "Executive Order -- Identifying and Reducing Regulatory Burdens," May 10, 2012
  10. ↑ Cutting the Red Tape, "A Message from Governor Bruce Rauner," accessed August 31, 2017
  11. ↑ Red Tape Reduction, "About the Initiative," accessed August 31, 2017
  12. ↑ Think Kentucky, "Cut the Tape," accessed August 31, 2017
  13. ↑ Red Tape Reduction, "Red Tape Reduction Progress to Date," accessed August 31, 2017
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