35:
956:
burden of regulation while maintaining flexibility and freedom of choice for the public. It directs agencies to, where feasible and appropriate, seek the views of those likely to be affected by a proposed rulemaking before a notice of proposed rulemaking is issued. E.O 13563 requires agencies to quantify anticipated benefits and costs of proposed rulemakings as accurately as possible using the best available techniques, and to ensure that any scientific and technological information or processes used to support their regulatory actions are objective.
978:
Executive Order 13771 restores and greatly expands the authority OMB had under
Executive Order 12291 as the final arbiter of benefits and costs and authorizes OMB to set regulatory cost caps. The Order also generally prohibits agencies from proposing or promulgating regulations not previously published in the Unified Regulatory Agenda. Procedurally, Executive Order 13771 established additional steps agencies must follow, supervised by OMB, including the issuance by OMB of enforceable regulatory budget caps.
788:
or any of several other conditions. The Order established a "regulatory philosophy" and several "principles for regulation", among them requirements to explicitly identify the problem to be addressed, determine whether existing regulations created or contributed to the problem, assess alternatives to direct regulation, and design regulations in the most cost-effective manner possible. Section § 1(a) summarizes this regulatory philosophy as follows:
991:
identifying regulations that, inter alia, "eliminate jobs, or inhibit job creation." "are outdated, unnecessary, or ineffective," "impose costs that exceed benefits," or "create a serious inconsistency or otherwise interfere with regulatory reform initiatives and policies." In addition, existing regulations that rely on information that violates the
Information Quality Act are specifically targeted for repeal, replacement, or modification.
974:
12866 contained a long list of regulatory principles, in which the maximization of net social benefits is one of many, Executive Order 13771 directs agencies "to be prudent and financially responsible in the expenditure of funds, from both public and private sources" and to "manage the costs associated with the governmental imposition of private expenditures required to comply with
Federal regulations".
884:
submits a rule for review. OMB receives comments and will conduct meetings (with agency representatives present) to conduct reviews. These are not entirely satisfactory, since the final rule remains unpublished, and members of the public can only comment on the rule as proposed in an NPRM. Nonetheless, OMB does block or require further changes to a handful of rules every year.
929:
per year, but during the 24 years that
Executive Order 12866 has been in force, OIRA has reviewed only 596 draft rules per year. This 75% reduction in the scope of OIRA review undoubtedly enabled more focused attention, but it did so at the expense of incentivizing agencies to evade OIRA review by misclassifying draft rules below the threshold set in § 3(f).
850:, agencies are required to make all analyses public and "dentify for the public, in a complete, clear, and simple manner, the substantive changes between the draft submitted to OIRA for review and the action subsequently announced; and ... those changes in the regulatory action that were made at the suggestion or recommendation of OIRA."
1105:. E.O. 13892 explains that agencies "must avoid unfair surprise not only when it imposes penalties but also whenever it adjudges past conduct to have violated the law." E.O. 13892 appears to be a step in the right direction to help inform practitioners (and others) about the practical implications of otherwise innocuous conduct.
1046:
In addition, Executive Orders 13891 and 13892 go above statute to add a few additional requirements for fairness and transparency. These above-statutory requirements ask agencies to give notice of all their sub-regulatory guidance documents. Covered guidance documents are defined to include anything
1037:
For the most part, Executive Orders 13891 and 13892 are simple reminders and restatements of long-standing requirements of the
Administrative Procedure Act (APA). For example, E.O. 13891 § 1 and E.O. 13892 § 3 remind agencies that they may not enforce "rules" against the public unless those rules are
928:
for publication, whereas under
Executive Order 12866, OIRA formally reviews only those draft rules covered by § 3(f) ("significant regulatory action"). This distinction is significant, for during the 12.5 years in which Executive Order 12291 was in place, OIRA reviewed an average of 2,382 draft rules
835:
Under
Executive Order 12866, the procedure for determining whether a draft rule is significant (and thus subject to OIRA review) or economically significant (and thus subject to the requirement to prepare a Regulatory Impact Analysis), begins with agencies preparing entries to the semi-annual Unified
911:
Executive Order 12291 required OIRA review for regulations that "may ave an annual effect on the economy of $ 100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or
845:
Agencies are required to provide to OIRA comprehensive lists of planned regulatory actions, including agencies' provisional determinations of whether each action is significant. Drafts of significant regulatory actions must be transmitted to OIRA for review, along with assessments of their potential
994:
Executive Order 13777 specifically directs agencies modify the performance indicators established pursuant to the
Government Performance and Results Act of 1993 (GPRA) to reflect Executive Order 13771 goals. OMB implementing guidance expands upon the Order by enumerating specific requirements and
981:
OMB issued final implementing guidance after publishing, and seeking public comment on, interim guidance. The final guidance clarifies several key issues. First, the scope of
Executive Order 13771 extends to conventional regulatory actions, deregulatory actions, and significant guidance documents.
878:
This
Executive order is intended only to improve the internal management of the Federal Government and does not create any right or benefit, substantive or procedural, enforceable at law or equity by a party against the United States, its agencies or instrumentalities, its officers or employees, or
865:
Regulatory Impact Analyses are governed by guidance issued by OMB, OMB Circular A-4. Circular A-4 requires agencies to clearly identify why regulation is needed, consider a reasonable number of alternative regulatory approaches, and for each alternative conduct a rigorous and objective benefit-cost
787:
for any new regulation that is "economically significant", which is defined as having "an annual effect on the economy of $ 100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs," or creating an inconsistency with other law,
959:
To the extent feasible and permitted by law, E.O. 13563 also directs agencies to provide timely online access to the rulemaking docket for proposed and final rules, along with any relevant scientific and technical findings, on regulations.gov, and to afford the public the opportunity to comment on
955:
Executive Order 13563, Improving Regulation and Regulatory Review, was issued by President Barack Obama in 2011. It reaffirms and amplifies the principles embodied in E.O. 12866 by encouraging agencies to coordinate their regulatory activities, and to consider regulatory approaches that reduce the
1090:"When an agency takes an administrative enforcement action, engages in adjudication, or otherwise makes a determination that has legal consequence for a person, it may apply only standards of conduct that have been publicly stated in a manner that would not cause unfair surprise." E.O. 13892 § 4.
973:
The provisions of Executive Orders 12866 and 13563 were significantly narrowed in some respects and expanded in others by Executive Orders 13771 and 13777. Among the significant narrowing provisions are a more parsimonious description of the stated purposes of regulation. Whereas Executive Order
1108:
When an agency states a position in sub-regulatory guidance, the law has long recognized that the agency may not stand on that guidance as the last word; rather, the agency must entertain alternative positions. "Interpretive rules do not have the force and effect of law and are not accorded that
1051:
those that the courts have interpreted the Due Process Clause of the Fifth Amendment to the Constitution to impose" (emphasis added). E.O. 13892 explains that agencies must work to "foster greater private-sector cooperation in enforcement, promote information sharing with the private sector, and
897:
President Gerald Ford's organized, comprehensive effort at regulatory reform, and to address inflationary impact of federal government activities and regulation, began with establishment of the Council on Wage and Price Stability (CWPS) in August 1974. The council was charged with monitoring the
883:
Enforcement of the Order occurs during a public comment period after the agency receives public comments, and before the agency publishes a final rule. Notices of Executive Order reviews are not published—an interested member of the public has to watch OMB's web site daily to see when the agency
990:
Executive Order 13777 directs federal agencies to establish Regulatory Reform Officers (RROs) to "oversee the implementation of regulatory reform initiatives and policies to ensure that agencies effectively carry out regulatory reforms, consistent with applicable law." RROs are responsible for
1042:
apply those soft-edged understandings as if they were hard-edged enforcement standards, unless the agency has followed certain procedures required by the APA. E.O. 13891 and 13892 each state that agencies have sometimes inappropriately exerted authority, without following statutorily-required
977:
Executive Order 13771 expands upon Executive Order 12866 in both substantive and procedural ways. Substantively, Executive Order 13771 directs agencies to eliminate at least two existing regulations for every new regulation issued and abide by regulatory budget caps set by OMB. Substantively,
902:
economy, and reviewing government programs to determine their impact on inflation. In November 1974, President Ford issued Executive Order 11821, which established procedures for preparing Inflation Impact Statements, that required agencies to evaluate economic impact of regulatory proposals,
792:
Federal agencies should promulgate only such regulations as are required by law, are necessary to interpret the law, or are made necessary by compelling public need, such as material failures of private markets to protect or improve the health and safety of the public, the environment, or the
1038:
promulgated as "regulations," in full compliance with the APA and similar laws. E.O. 13892 § 3 and § 4 remind agencies that the APA allows agencies to use sub-regulatory guidance documents to "articulate the agency's understanding" of other law, or announce tentative positions, but may
923:
The key procedural difference between today's Executive Order 12866 and the 1980s-era Executive Order 12291 is that, under Executive Order 12291, OIRA formally reviewed all draft proposed and final rules before signature by the relevant agency official and transmission to the
1374:
Donald J. Trump, Exec. Order No. 13771, Reducing Regulation and Controlling Regulatory Costs (Jan. 30, 2017), 82 Fed. Reg. 9339-41 (Feb. 3, 2017); Donald J. Trump, Exec. Order No. 13777, Enforcing the Regulatory Reform Agenda (Feb. 24, 2017), 82 Fed. Reg. 12285-97 (Mar. 1,
1025:. Both Executive Orders are generally directed to requiring federal agencies to "act transparently and fairly with respect to all affected parties ... when engaged in civil administrative enforcement or adjudication." E.O. 13892 goes on to explain that individuals should
1074:
After the Office of Management and Budget issues further implementing guidance, agencies will have a year to purge guidance documents of invalidly-promulgated requirements. They must either be repromulgated as regulation with full cost-benefit analysis, or else
1101:, the Supreme Court noted that agencies are required to provide fair warning regarding the conduct that a regulation requires or prohibits and cannot rely on principles of judicial interpretation to save an unfairly-vague rule or give it enforceable "teeth"
995:
expectations for agencies' FY 2018 GPRA annual Performance Reports and FY 2019 annual Performance Plans. This is a key process change. OMB's GPRA existing guidance does not reflect regulatory policy objectives, and the decision to include them is new.
842:, along with each agency's Regulatory Plan. Agencies are required to engage in prior consultation with both private and public stakeholders before drafting notices of proposed rulemaking, and ensuring that they have at least 60 days for public comment.
960:
proposed regulations through the Internet. With regard to existing regulations, E.O. 13563 instructs agencies to periodically review their significant regulations with the goal of making their regulatory programs more effective or less burdensome.
1047:
to which the agency intends to give prospective effect, that is promulgated without the formality of "regulation" (E.O. 13291 § 2(b)). For example, E.O. 13892 requires agencies to "afford regulated parties the safeguards described in this order,
811:
Though the term "effect" is crucial for determining the likelihood that a rule is economically significant, the term was not internally defined. Rather, all interpretative determinations critical to implementation were delegated to the
797:
Agencies were directed to fulfill these requirements though economic analysis, most notably the preparation of Regulatory Impact Analyses (RIAs). Regulations within this definition are colloquially termed "economically significant".
1113:, 135 S.Ct. 1199, 1204 (2015). E.O. 13892 § 6 requires the agency to give an aggrieved person an opportunity to be heard to contest an agency guidance position, and give a written decision that articulates a basis for its action.
853:
OIRA may return a draft rule to an agency "for further consideration of some or all of its provisions," accompanying any return with "a written explanation ... setting forth the pertinent provision of on which OIRA is relying."
846:
costs and benefits. For economically significant regulatory actions, agencies also must provide OIRA with a Regulatory Impact Analysis. After OIRA review is completed and each draft proposed or final rule is published in the
214:
391:
1126:
1015:
1327:
See Ronald W. Reagan, Exec. Order No. 12291, Federal Regulation, 48 Fed. Reg. 13193 (Feb. 19, 1981) and Exec. Order No. 12498, Regulatory Planning Process, 50 Fed. Reg. 1036 (Jan. 8, 1985).
1029:
be subject to enforcement actions without "prior public notice of both the enforcing agency's jurisdiction over particular conduct and the legal standards applicable to that conduct."
952:
In 2002, Cass Sunstein, who would later serve as President Obama's Administrator of the Office of Information and Regulatory Affairs, co-authored an article on a proposed replacement.
832:). This alignment of executive and statutory functions enhances the efficiency of Executive Office oversight because virtually every rule contains information collection requirements.
1354:
Robert W. Hahn and Cass R. Sunstein, A New Executive Order for Improving Federal Regulation? Deeper and Wider Cost-Benefit Analysis, 150 Univ. Penn. Law Rev. 1489-1552 (May, 2002).
222:
1134:
208:
265:
1363:
1093:
Moreover, the definitions section of E.O. 12892 highlights the breadth of what it means for an Agency's position to be an "unfair surprise", as discussed in
1004:
575:
411:
828:
Executive Order 12866 provides for a centralized review conducted on behalf of the President by OIRA (the same agency directed by Congress to implement the
398:
430:
763:
949:
Ten days after entering office, President Obama issued Executive Order 13497, which revoked President Bush's Executive Orders 13258 and 13422.
175:
587:
541:
813:
676:
170:
1336:
Data from www.reginfo.gov, comparing the period Feb. 19, 1981 through Sept. 30, 1993, with the period Oct. 1, 1993 through Sept. 30, 2017.
1305:
See Barack Obama, Exec. Order No. 13563, Improving Regulation and Regulatory Review (Jan. 18, 2011), 76 Fed. Reg. 3821-23 (Jan. 21, 2011).
941:
Executive Order 12866 in Executive Orders 13258 and 13422. Executive Order 13272 is related, requiring consideration of small entities.
683:
563:
107:
1078:
The orders set additional procedures to promulgate, and provide ongoing periodic review, of various sub-regulatory guidance documents.
892:
857:
The reach of Executive Order 12286 was extended in 2011 to require agencies to conduct retrospective reviews of existing regulations.
1405:
625:
488:
1063:
consolidated database of its web site, which must be indexed and searchable. The public should be able to rely on two sources, the
1055:
Among the new requirements added by Executive Orders 13891 and 13892 to promote transparency and predictability are the following:
483:
730:
637:
592:
582:
558:
546:
466:
404:
63:
1082:
The Orders then return to statutory underpinnings, and require agencies to apply them in a consistent and predictable fashion.
938:
51:
495:
424:
258:
698:
671:
642:
529:
478:
471:
239:
152:
142:
756:
632:
386:
381:
666:
524:
500:
604:
512:
112:
893:
Origin of benefit-cost analysis: President Ford's Executive Order 11821 and the Council on Wage and Price Stability
553:
26:
1158:
817:
705:
570:
536:
374:
1018:
Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication
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specifically their effects on productivity and competition, and to submit those statements to CWPS for review.
749:
710:
609:
322:
308:
117:
1125:'s first executive orders rescinded President Trump's Executive Orders 13771, 13777, 13891, 13892, and 13893
649:
438:
127:
56:
693:
688:
102:
620:
456:
76:
1400:
1022:
1011:
507:
132:
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Second, Executive Order 13771 focuses on regulatory cost alone without regard to regulatory benefits.
784:
185:
735:
654:
616:
519:
461:
417:
292:
147:
122:
68:
829:
659:
599:
364:
349:
137:
287:
1315:
316:
297:
932:
34:
356:
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8:
343:
279:
1129:
Executive Order on Revocation of Certain Executive Orders Concerning Federal Regulation
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252:
22:
780:
272:
247:
16:
Presidential directive mandating the use of cost-benefit analysis by Federal agencies
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83:
1122:
230:
180:
920:
Executive Order 12866 (October 1993) replaced Executive Orders 12291 and 12498.
899:
1394:
915:
933:
Revisions by President George W. Bush -- Executive Orders 13258 and 13422
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analysis. OIRA reviews RIA's for transparency, utility, and objectivity.
1314:
Office of Management and Budget, OMB Circular A-4, Regulatory Analysis,
944:
1161:, Regulatory Planning and Review, , 58 Fed. Reg. 51,735 (Oct. 4, 1993).
964:
Trump revisions: Executive Orders 13771, 13777, 13891, 13892, and 13893
1007:
Promoting the Rule of Law Through Improved Agency Guidance Documents
1059:
Each agency must list all its sub-regulatory guidance documents in
302:
1003:
On October 9, 2019, the White House issued two executive orders,
860:
836:
Regulatory Agenda, which OIRA reviews before publication in the
1032:
1316:
https://obamawhitehouse.archives.gov/omb/circulars_a004_a-4
906:
916:
Replacement by President Clinton: Executive Order 12866
1052:
establish predictable outcomes for private conduct."
945:
Revisions by President Obama -- Executive Order 13563
998:
874:Executive Order 12866 concludes with the statement
1392:
1139:Final Bulletin on Agency Good Guidance Practices
1085:
1287:Exec. Order 12866, § 6(a)(3)(C)(ii) to (iii).
1141:which had been rescinded by President Trump.
861:Regulatory Impact Analyses under Circular A-4
757:
814:Office of Information and Regulatory Affairs
171:Office of Information and Regulatory Affairs
1033:Executive Orders 13891 and 13892—in General
764:
750:
985:
968:
907:President Reagan's Executive Order 12291
801:
1095:Christopher v. SmithKline Beecham Corp.
1393:
1109:weight in the adjudicatory process."
1365:, 76 Fed. Reg. 3821 (Jan. 21, 2011).
912:tribal governments or communities."
13:
1116:
1023:84 Fed. Reg. 55239 (Oct. 15, 2019)
1012:84 Fed. Reg. 55235 (Oct. 15, 2019)
869:
793:well-being of the American people.
33:
14:
1417:
1345:74 Fed. Reg. 6113 (Jan. 30, 2009)
1137:. E.O. 13992 also reinstated the
1135:86 Fed. Reg. 7049 (Jan. 27, 2021)
113:National Environmental Policy Act
1406:Executive orders of Bill Clinton
1206:Exec. Order 12866, § 1(b)(6)-(8)
1111:Perez v. Mortgage Bankers Ass'n.
999:Executive Orders 13891 and 13892
779:in the United States, issued by
203:Judicial review of agency action
1378:
1368:
1357:
1348:
1339:
1330:
1321:
1308:
1299:
1290:
1281:
1278:Exec. Order 12866, § 6(a)(3)(C)
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1269:Exec. Order 12866, § 6(a)(3)(B)
1263:
1260:Exec. Order 12866, § 6(a)(3)(A)
1254:
1245:
1236:
1215:Exec. Order 12866, § 6(a)(3)(C)
818:Office of Management and Budget
451:Regulated fields (and agencies)
1227:
1218:
1209:
1200:
1191:
1182:
1173:
1164:
1151:
248:Committed to agency discretion
118:Government in the Sunshine Act
1:
1296:Exec. Order 12866, § 6(b)(3).
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57:Notice of proposed rulemaking
1251:Exec. Order 12866, § 6(1)(a)
1197:Exec. Order 12866, § 1(b)(5)
1188:Exec. Order 12866, § 1(b)(3)
1179:Exec. Order 12866, § 1(b)(2)
1170:Exec. Order 12866, § 1(b)(1)
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153:Federal Vacancies Reform Act
143:Unfunded Mandates Reform Act
103:Administrative Procedure Act
7:
77:Code of Federal Regulations
10:
1422:
1097:, 567 U.S. 142 (2012). In
887:
133:Regulatory Flexibility Act
108:Freedom of Information Act
1242:Exec. Order 12866, § 3(c)
1224:Exec. Order 12866, § 6(b)
937:President George W. Bush
457:Antitrust and competition
176:Administrative Conference
806:
736:Statutory interpretation
418:Unitary executive theory
209:Arbitrary and capricious
148:Congressional Review Act
123:National Emergencies Act
69:Administrative law judge
1127:Executive Order 13992,
1016:Executive Order 13892,
1005:Executive Order 13891,
830:Paperwork Reduction Act
365:Congressional oversight
165:Regulatory coordination
138:Paperwork Reduction Act
881:
795:
38:
1159:Exec. Order No. 12866
986:Executive Order 13777
969:Executive Order 13771
876:
802:Executive Order 12866
790:
785:cost–benefit analysis
777:Executive Order 12866
298:Nationwide injunction
190:Executive Order 12866
186:Cost–benefit analysis
128:Inspector General Act
37:
1157:William J. Clinton,
783:in 1993, requires a
399:Independent agencies
338:Separation of powers
1384:See 567 U.S. at 156
1318:, (Sept. 17, 2003).
405:Humphrey's Executor
392:Senate confirmation
344:Appointments Clause
97:Statutory framework
816:(OIRA) within the
731:Constitutional law
39:
23:Administrative law
1401:Impact assessment
1086:"Unfair surprise"
879:any other person.
781:President Clinton
774:
773:
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1065:Federal Register
1049:above and beyond
926:Federal Register
848:Federal Register
839:Federal Register
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425:Legislative veto
181:Executive orders
84:Federal Register
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1233:5 U.S.C. § 602.
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1131:(Jan. 20, 2021)
1123:President Biden
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1117:Biden revisions
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1021:, reprinted at
1010:, reprinted at
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870:Judicial review
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706:Social Security
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375:Organic statute
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293:Major questions
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900:private sector
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725:Related topics
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27:United States
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64:Adjudication
1099:Christopher
583:Immigration
571:Health care
537:Environment
309:Abbott Labs
266:Bi-Metallic
253:Due process
1395:Categories
1145:References
633:Securities
288:Exhaustion
215:State Farm
52:Rulemaking
1071:web page.
824:Procedure
621:trademark
412:Seila Law
234:deference
226:deference
1075:dropped.
650:Taxation
484:Treasury
387:Hearings
317:Standing
303:Ripeness
273:Goldberg
259:Londoner
1121:One of
1103:ex post
939:amended
888:History
820:(OMB).
479:Banking
350:Freytag
280:Mathews
224:Chevron
46:General
25:of the
1014:, and
617:Patent
520:Energy
431:Chadha
1375:2017)
807:Scope
667:Trade
600:Labor
323:Lujan
1067:and
699:NTSB
643:CFTC
610:NLRB
593:EOIR
554:Food
530:FERC
496:FDIC
472:CFPB
467:CPSC
232:Auer
1069:one
1061:one
1040:not
1027:not
711:SSA
694:STB
689:DOT
677:ITC
672:DOC
655:IRS
638:SEC
626:PTO
605:DOL
588:DHS
576:HHS
564:CDC
559:FDA
547:FWS
542:EPA
525:DOE
513:FCC
501:FRB
489:OCC
462:FTC
1397::
660:TC
765:e
758:t
751:v
619:/
192:)
188:(
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