Introduction to our Symposium on Modernizing Regulatory Review, by Jack Lienke
*This is the introduction to a symposium on Modernizing Regulatory Review. For other posts in the series, click here.
I’m delighted to introduce Notice & Comment’s symposium on modernizing regulatory review. Over the next two weeks, we’ll feature a wide range of scholar and practitioner reactions to President Biden’s recently issued Executive Order 14,094 and related draft guidance from the Office of Management and Budget (OMB). To get you situated, here’s a little background on the relevant documents:
Like the Obama-era E.O. 13,563, Biden’s order “supplements and reaffirms” the requirements of President Clinton’s E.O. 12,866. The Clinton order famously—or notoriously, depending on whom you ask—requires executive agencies to (1) assess the costs and benefits of all “significant regulatory actions” and (2) submit those actions for pre-publication review by OMB’s Office of Information and Regulatory Affairs (OIRA).
While preserving this centralized review framework, Section 1 of Biden’s order updates the criteria for regulatory significance. For instance, whereas E.O. 12,866 required a detailed cost-benefit analysis for any rule deemed likely to “have an annual effect on the economy of $100 million or more,” the new order doubles that threshold to $200 million.
Section 2 of the order includes several provisions focused on improving public participation in the rulemaking process, such as a requirement that OIRA “[p]rovide information to facilitate” meetings with representatives of “underserved communities” regarding rules under review.
Section 3 gives OMB a year to revise Circular A-4, which guides agencies’ preparation of regulatory analyses and which has not been updated since the George W. Bush administration issued it in 2003. Among other things, the revisions must ensure that regulatory analyses “recognize distributive impacts and equity” where “practical,” “appropriate,” and “permitted by law.”
Concurrent with the release of Biden’s order, OIRA posted a draft update of Circular A-4 for public comment. In addition to significantly expanding the document’s instructions on the assessment of distributional effects, the draft offers new guidance on several other analytic issues, including discounting (i.e., determining the present value of future costs and benefits) and the treatment of uncertainty regarding regulatory outcomes.
OIRA has also already proposed implementing guidance for the Biden order’s provisions on meetings between OIRA and members of the public.
Finally, though the document is not mentioned in Biden’s order, OMB has proposed updates to Circular A-94. That circular governs cost-benefit analysis of federal programs in contexts other than regulatory review—such as the annual agency budgeting process—and was last revised in 1992.
In sum, there’s a lot to discuss! Some of the posts in this series take a bird’s eye view of the entire modernization effort, while others zoom in on particular methodological tweaks or substantive implications for particular policy areas. If the contributors inspire you to share your own recommendations with OMB, you have until midnight on June 6 to do so. File comments on the Circular A-4 revisions here, the A-94 revisions here, and the meetings guidance here.
Jack Lienke is the Regulatory Policy Director of the Institute for Policy Integrity at New York University School of Law