Notice & Comment

White House moves to modernize regulatory review

Big news for regulatory policy today as the Biden-Harris administration rolls out several documents that make significant changes to regulatory policy. The main documents are an Executive Order on Modernizing Regulatory Review, a draft of potential revisions to Circular A-4, and a draft of potential revisions to Circular A-94. OIRA Administrator Ricky Revesz penned a blog post announcing the changes. OIRA is taking public comments (due June 6, 2023) on revisions to Circular A-4, revisions to Circular A-94, and an EO implementation memo on the new meeting provisions. OIRA is also seeking nominations for peer reviewers for Circular A-4. OIRA’s landing page also includes a link to an EO implementation memo.

OMB is taking public comments on both drafts of the circulars; this follows prior practice with updating these important circulars and walks the walk on public participation. It can be really tempting to rush big policy like this out the door and call it “done,” and I tip my cap to Administrator Revesz and the administration for committing to this time-tested process. Good process on important documents like this can enhance their legitimacy and staying power, all of which is conducive to stability in our regulatory system.

Taken together, these documents are the most substantial revisions to regulatory policy of the Biden-Harris administration. On day 1 of his term, President Biden signed a memo entitled Modernizing Regulatory Review, which called upon OIRA to make recommendations that revisit several aspects of the regulatory process:

(i)    identify ways to modernize and improve the regulatory review process, including through revisions to OMB’s Circular A-4, Regulatory Analysis, 68 Fed. Reg. 58,366 (Oct. 9, 2003), to ensure that the review process promotes policies that reflect new developments in scientific and economic understanding, fully accounts for regulatory benefits that are difficult or impossible to quantify, and does not have harmful anti-regulatory or deregulatory effects; 

(ii)   propose procedures that take into account the distributional consequences of regulations, including as part of any quantitative or qualitative analysis of the costs and benefits of regulations, to ensure that regulatory initiatives appropriately benefit and do not inappropriately burden disadvantaged, vulnerable, or marginalized communities; 

(iii)  consider ways that OIRA can play a more proactive role in partnering with agencies to explore, promote, and undertake regulatory initiatives that are likely to yield significant benefits; and

(iv)   identify reforms that will promote the efficiency, transparency, and inclusiveness of the interagency review process, and determine an appropriate approach with respect to the review of guidance documents. 

Presidential Memorandum on Modernizing Regulatory Review (Jan. 20, 2021)

We’ll have much to discuss as folks get their arms around this wide-ranging (and in many cases deeply wonky — and deeply influential) changes. More to come, from me and many others, as we work through the changes and think about what they mean.

* This post was updated on April 7, 2023 to include links to published versions of the Federal Register documents.

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