Notice & Comment

Modernizing Regulatory Review: A Compendium

As part of my prep for this year’s ABA Administrative Law Conference, I put a list together of policy documents that have been issued by the Biden Administration as part or (or related to) efforts to modernize regulatory review. While much of the discussion about the Biden Administration’s regulatory approach has focused on, e.g., changes to Circular A-4, I think there’s more to the story. There are (at least to my mind) other strands to the Biden Administration’s regulatory policy, including efforts to reduce burden on individuals & improve service delivery. A lot of this material is in different places, so in this post I share a long list of links, bundled loosely by topic and in roughly chronological order. I hope you find them useful!

If you see something I missed, or find a dead link, let me know and I’ll update the post.

Overarching Policy Actions

  • Day 1 Actions
    • On his first day in office (Jan. 20, 2021), President Biden issued a series of executive actions that set the tone for his administration’s approach to regulatory policy. The first was a regulatory freeze memo from Chief of Staff Ron Klain, which temporarily stops the regulatory and guidance pipeline. The second was an executive order revoking President Trump’s signature regulatory policy orders, including Executive Order 13771, which put in place a regulatory two-for-one order and a cost-based regulatory budget, and directives on the preparation and use of guidance. The third was a presidential memorandum directing the Office of Information and Regulatory Affairs (OIRA) to modernize regulatory policy.
  • Executive Order (EO) 14094, Modernizing Regulatory Review (Apr. 6, 2023)
    • Reaffirms EO 12866, which has governed regulatory policy since 1993.
    • Adjusts the criteria for “significant” actions—i.e., those actions which will be subject to OIRA review. The most consequential change is likely that it raises the threshold for economic significance from $100M in any one year to $200M in any one year, and commits to adjusting that threshold every 3 years. Under this change, an estimated 20% fewer draft regulations will undergo a more rigorous form of economic analysis under Circular A-4.
    • Calls upon agencies and OIRA to promote public participation in rulemaking in several ways. For agencies, the emphasis is on petitions and outreach for regulatory agendas and plans. The EO directs OIRA to consider guidance and tools to address “mass comments, computer-generated comments (such as those generated through artificial intelligence), and falsely attributed comments” as well as to make adjustments to practices for the public to meet with OIRA when rules are under review.
    • Directs OIRA to update Circular A-4 within one year of the EO’s issuance.
  • Office of Management and Budget (OMB) Memo implementing EO 14094 (Apr. 6, 2023)
    • Fills in several implementation details associated with EO 14094.
  • Blog Post from OIRA Administrator Ricky Revesz (Apr. 6, 2023)
    • Providing an overview of the different materials issued on April 6, 2023.
  • Memorandum of Agreement between Treasury & OMB (June 9, 2023)
    • This document carves tax regulatory actions out from OIRA review under EO 12866.

Regulatory Analysis

  • Draft revisions to Circular A-4, Regulatory Analysis (Apr. 6, 2023)
    • There are a couple of different related documents: Draft Revisions to Circular A-4 & Preamble.
    • The draft revisions to Circular A-4 are technical, substantial, and highly influential for future policymaking.
    • This circular was first published in 2003, and many have called for updates to it to reflect advances in economics and other fields since then.
    • Among other changes, the draft would adjust analytical approaches to:
    • The consideration of global effects of policy changes, in addition to domestic effects,
    • The baseline against which proposed changes are measured,
    • The types of societal issues beyond market failures that can justify regulatory action,
    • Incorporating distributional analysis into regulatory analysis, and
    • The discount rates that should be used to calculate long-term effects.
    • Together, the changes represent a major update to the government’s guidelines for conducting regulatory analysis, including cost-benefit analysis.
  • Notice soliciting peer reviewers for Circular A-4 (Apr. 6, 2023)
    • This notice requests information about potential peer reviewers for the draft revisions to Circular A-4, requesting information by Apr. 28, 2023.
  • Final revisions to Circular A-4, Regulatory Analysis (Nov. 9, 2023)
  • Draft guidance for Assessing Changes in Environmental and Ecosystem Services in Benefit-Cost Analysis (Aug. 2023)
    • This document “describes best practices for analyzing the incremental or marginal changes in [ecosystem] services in the benefit-cost analysis context.”
  • Guidance on Accounting for Competition Effects When Developing and Analyzing Regulatory Actions (Oct. 11, 2023)
    • Issued in response to EO 14036 (Promoting Competition in the American Economy).
    • Guidance on how agencies should consider competition-related issues in regulatory design.
    • Blog post from Administrator Ricky Revesz.

Public Participation

Meetings with OIRA

  • Draft Guidance implementing the OIRA meetings provisions of EO 14094 (Apr. 6, 2023)
    • In this draft guidance, OIRA took comment on proposed revisions to its policies and practices for public meetings with OIRA while regulations are under review.
    • These changes relate to OIRA encouraging those “who have not historically requested” 12866 meetings to do so, discouraging duplicative meetings, consolidating meetings, and disclosing data about meetings.

Burden Reduction & Service Delivery Initiatives

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