Comparative Administrative Law Blog

[News] Regulatory reform in the United States: An update

Last year we covered Executive Order 13,563 ("Improving Regulation and Regulatory Review") outlining the Obama administration's regulatory strategy. One of the prongs of that strategy was the retrospective analysis of existing rules that may be outmoded, ineffective, insufficient, or excessively burdensome. 

As a result of that government-wide review of regulations already on the books, twenty-six executive agencies as well as a few independent agencies identified initiatives to reduce burdens and unjustified costs. Preliminary plans were released for public comment; final plans were formulated later in the summer of 2011; and this month, agency updates on regulatory reform became available on the White House page for a "21st-century regulatory system."   In a post on the OMBlog yesterday, Prof. Cass Sunstein, the Administrator of the Office of Information and Regulatory Affairs, highlights some of the featured plans and reform progress. 

This is an ongoing effort and, in fact, figured in the State of the Union address last week (the full transcript of which is available here). President Obama alluded to Executive Order 13,563 noting: "There's no question that some regulations are outdated, unnecessary, or too costly.  (...) I've ordered every federal agency to eliminate rules that don't make sense.  We've already announced over 500 reforms, and just a fraction of them will save business and citizens more than $10 billion over the next five years.  We got rid of one rule from 40 years ago that could have forced some dairy farmers to spend $10,000 a year proving that they could contain a spill -- because milk was somehow classified as an oil."

It will therefore be interesting to see how the effort to eliminate regulatory burdens and cut waste will continue to unfold, including the latest updates from independent agencies whose reports on retrospective review are not yet available on the website linked to above.


Domiinique Custos said:

  To be sure, periodic review of agency regulations for updating, regulatory reduction or deregulatory purposes, is not a novelty in American administrative law. It was already imposed on all executive agencies by Executive Order (EO) 12866 back in 1993. It had already taken the form of a general legislative mandate to executive and independent agencies in the 1980 Regulatory Flexibility Act (amended in 1996). Some agencies are also subject to specific congressional mandates in this regard, as exemplified by the FCC (Federal Communications Commission) mandatory biennial review under the 1996 Telecommunications Act. Sometimes, the mandate is even self-imposed by agencies, as illustrated by the DOT (Department of Transportation) 1979 Policies and Procedures. So, to me what makes the recent American regulatory developments interesting is not so much the January 2011 EO as the second one, promulgated 7 months later.

  Indeed, on July 11, 2011, President Obama promulgated EO 13579 specifically devoted to “Regulation and Independent Regulatory Agencies”. In an effort to carefully clarify the applicability of the earlier (January 2011) EO 13563, discussed by Akis, to independent agencies, the July EO provides: “To the extent permitted by law, independent regulatory agencies should comply with these provisions as well.”

  Notwithstanding this reference to the scope of the January EO, which already included the Retrospective Analyses of Existing Rules provision, the July 2011 goes on to repeat that January provision, albeit with a notable caveat: the “shall” language is replaced by “should”. Of course, the language difference is meant to account for the uncertainty and/or limitation of presidential oversight called for by the independent agency status, a controversial issue among American scholars. One may wonder whether the specific and later EO directed at independent agencies is not a direct reaction to an initial resistance to the January EO by some of the latter.

  Placed in a comparative perspective, the very promulgation of an EO directed at independent agencies raises at least one set of questions. Do other systems _especially other presidential systems_ evidence similar overt efforts of assertion of executive oversight of independent agencies rulemaking authority? It is hard to imagine such an occurrence in France for instance. What significance should one ascribe to the explicit constitutional grant and delimitation of rulemaking power to the President and/or the Prime minister when examining the relationships between the latter and independent agencies?

# February 3, 2012 5:54 AM
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