Notice & Comment

New Executive Order on International Regulatory Cooperation, by Michael Herz

Today President Obama issued an Executive Order on International Regulatory Cooperation.  The Order can be found here.

The essential goal of the new Order is to focus agencies on the burdens created when US regulatory requirements diverge from those of other nations.  Such concerns require a delicate balancing act, reflected in the careful wording of the Order.  International consistency is a value, and varying requirements can burden the ability of US firms to compete internationally.  On the other hand, it is not the only value, and the US should not sacrifice either its autonomy or the regulatory protections it considers important to that goal.  In the words of the Order, the aim is “to reduce, eliminate, or prevent unnecessary differences in regulatory requirements.” Sec. 1 (emphasis added).

International regulatory cooperation is a longstanding issue that is receiving renewed attention.  The Administrative Conference of the US issued a recommendation back in 1991.  ACUS revisited this topic last year; its 2011 Recommendation is here.  Among other things, the new recommendation proposed creation of “a high-level interagency working group of agency heads and other senior officials to provide government-wide leadership on, and to evaluate and promote, international regulatory cooperation.”

The new Order pursues this approach, placing international regulatory cooperation on the agenda of the already extant Regulatory Working Group.  It also requires, in certain circumstances and with certain caveats, that executive agencies take account of regulatory approaches to the same problem adopted by foreign governments and, to the extent feasible, appropriate, and consistent with law, avoid unnecessary differences in regulatory requirements.  These responsibilities apply both in promulgating new regulations and in conducting retrospective review of existing ones.

Cass Sunstein, OIRA Administrator and Regulatory Working Group chair, describes the order and places it in context in an op-ed in today’s Wall Street Journal.  He also has a post on OMB’s blog.

The Administrative Law and Regulatory Practice Section is working on a report and proposed resolution, largely consistent with the ACUS recommendation, that it hopes will be approved by the ABA House of Delegates at the ABA annual meeting in August.

UPDATE: David Zaring, chair of the Section’s International Law Committee, has a brief, interesting post about the new order on The Conglomerate blog.

This post was originally published on the legacy ABA Section of Administrative Law and Regulatory Practice Notice and Comment blog, which merged with the Yale Journal on Regulation Notice and Comment blog in 2015.

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