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Executive Order 13422: Further Amendment to Executive Order 12866 on Regulatory Planning and Review is a presidentialexecutive order issued byPresidentGeorge W. Bush (R) in 2007 that aimed to strengthen presidential oversight of theregulatory review procedures established in 1993 by PresidentBill Clinton (D) underE.O. 12866. TheCongressional Research Service stated that E.O. 13422 contained "the most significant changes to the presidential regulatory review process since 1993."^[1][2]

Bush's order made several alterations toE.O. 12866, including new requirements for agencies to identify specific market failures associated with proposed regulations, to provide monetary values for the total estimated impacts of annual regulatory plans, and to obtain approval from theOffice of Information and Regulatory Affairs (OIRA) for guidance documents with associatedsignificant economic impacts, among other provisions. PresidentBarack Obama (D) revoked E.O. 13422 in 2009.^[1][3]

Background

See also:Regulatory review

PresidentGeorge W. Bush (R) issued Executive Order 13422, titled "Further Amendment to Executive Order 12866 on Regulatory Planning and Review," on January 18, 2007. Though the Bush administration did not provide a rationale for issuing the order, its provisions effectively functioned to strengthen the president's authority over theregulatory review of agency rules. TheCompetitive Enterprise Institute, a self-described free-market think tank, characterized Bush's E.O. 13422 as "a modest effort to restore some of E.O. 12291’s rigor."E.O. 12291, which instituted PresidentRonald Reagan's (R)regulatory review process in 1981, had been revoked by PresidentBill Clinton (D) in 1993 and replaced with a newregulatory review regime underE.O. 12866.^[1][2][4]

E.O. 13422 implemented the following changes to theregulatory review process established underE.O. 12866:

• The order required an agency to explicitly state the market failure addressed by a proposed regulation. Previously, agencies were required to identify the circumstances that contributed to the regulation, including possible market failures, but were not required to state a specific market failure that warranted agency action.^[2][5][6]
• Each agency was required to provide a monetary value for the total estimated impact of its annual regulatory plan. The total value was an aggregate of the individual cost-benefit analyses provided for each regulation within the plan. Under E.O. 12866, each agency had been required to perform a cost-benefit analysis for individual regulations within its regulatory plan, but had not been required to provide an aggregate cost-benefit estimate for the agency's overall regulatory agenda.^[5][6]
• The order required that the role of theregulatory policy officer (RPO) in each agency must be filled by a presidential appointee. RPOs gained the authority to approve an agency's agenda of regulatory actions—strengthening presidential influence over agency regulations. Rules specifically authorized by the agency head were exempted from RPO authorization. Prior to E.O. 13422, RPOs were only required to "'be involved' in the regulatory process, to 'foster the development' of sound rules, and to 'further' the order's principles," according to theCongressional Research Service (CRS).^[2][5][6]
• TheOffice of Information and Regulatory Affairs (OIRA) was required to review any agencyguidance documents with an associatedsignificant economic impact. The requirement for OIRA to review significant agency guidance documents mirrored its existing responsibility to revieweconomically significant regulations.^[5]
• E.O. 13422 required agencies to consider, in consultation with OIRA, the use offormal rulemaking procedures "for the resolution of complex determinations." Prior to E.O. 13422, agencies had the authority to enter into formal rulemaking proceedings if the agency had determined that formal rulemaking was the best course of action. However, formal rulemaking generally fell out of favor during the 1970s and theAdministrative Conference of the United States (ACUS) recommended the use ofinformal rulemaking when possible, according to the CRS. Therefore, the requirement that agencies consider the use offormal rulemaking did not institute any substantive changes to existingrulemaking procedures. However, the CRS speculated at the time that "an agency's 'consultation with OIRA' may result in greater use of formal rulemaking if OIRA can convince the agency that it is in their best interest to do so."^[2][6]

Since the Bush administration did not provide a reason for issuing E.O. 13422, scholars have questioned the motivation behind the order, according to the CRS. Opponents of the measure observed that the order was issued shortly after Republicans lost control of theU.S. House of Representatives and theU.S. Senate in the November 2006 elections—indicating that the order was possibly intended to strengthen presidential oversight of agency regulations in the face of new Democratic policy priorities in Congress. PresidentBarack Obama (D) revoked E.O. 13422 in 2009.^[2][7]

Provisions

Identification of market failures

E.O. 13422 required agencies to explicitly state the market failures addressed by proposed regulations. Agencies were previously required to identify the circumstances that contributed to regulatory action, including possible market failures, but had not been required to identify a specific market failure that warranted agency action. E.O. 13422 amended E.O. 12866 to read as follows:^[5][6][2]

Estimated impacts of regulatory plans

The order amended E.O. 12866 to require agencies to include a total cost-benefit analysis for their annual regulatory plans. The aggregate value was determined by combining the cost-benefit analyses of each individual regulation within the plan as required under E.O. 12866.^[5][6]

Appointment of regulatory policy officers

See also:Regulatory policy officer

Each agency was required to fill the role ofregulatory policy officer (RPO) with a presidential appointee, rather than an agency employee, under E.O. 13422. The order stated, "Within 60 days of the date of this Executive order, each agency head shall designate one of the agency's Presidential Appointees to be its Regulatory Policy Officer, advise OMB of such designation, and annually update OMB on the status of this designation." The order was silent on the question of whether the appointee was subject to confirmation by theU.S. Senate. RPOs also gained the authority to approve all regulatory actions by the agency included in the agency's annual regulatory plan, except for actions otherwise authorized by the head of the agency.^[1][2]

Review of significant guidance documents

See also:Guidance document andeconomically significant rule

E.O. 13422 defined significant guidance documents as agencyguidance documents with an associatedsignificant economic impact. The order required that theOffice of Information and Regulatory Affairs (OIRA) review significant guidance documents, similar to OIRA's review ofeconomically significant regulations.^[5][6]

The order established the following definition of a significant guidance document:

Consideration of formal rulemaking

See also:Formal rulemaking

Prior to E.O. 13422, agencies had the authority to enter into formal rulemaking proceedings if the agency had determined that formal rulemaking was the best course of action. E.O. 13422 required agencies to consider followingformal rulemaking procedures, in consultation with OIRA, "for the resolution of complex determinations."^[6]

Presidential administrations

Barack Obama

PresidentBarack Obama (D) revoked E.O. 13422 in 2009 by issuingExecutive Order 13497, titled "Revocation Of Certain Executive Orders Concerning Regulatory Planning And Review." Obama's executive order did not state a reason for revoking E.O. 13422, but opponents of Bush's order had expressed concern that theregulatory review system under E.O. 13422 slowed down the regulatory process and prevented agencies from enacting what they considered to be important health and safety regulations.^[3][9][10]

See also

• Guidance document
• Regulatory policy officer
• Regulatory review
• Significant regulatory action
• U.S. Office of Information and Regulatory Affairs
• U.S. Office of Management and Budget

External links

• Executive Order 13422, "Further Amendment to Executive Order 12866 on Regulatory Planning and Review" (2007)
• RegInfo.gov
• Regulations.gov
• Search Google News for this topic

Footnotes

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United States Terms Adjudication (administrative state) •Administrative judge •Administrative law •Administrative law judge •Administrative state •Arbitrary-or-capricious test •Auer deference •Barrier to entry •Bootleggers and Baptists •Chevron deference (doctrine) •Civil servant •Civil service •Code of Federal Regulations •Codify (administrative state) •Comment period •Compliance costs •Congressional Record •Coordination (administrative state) •Deference (administrative state) •Direct and indirect costs (administrative state) •Enabling statute •Ex parte communication (administrative state) •Executive agency •Federal law •Federal Register •Federalism •Final rule •Formal rulemaking •Formalism (law) •Functionalism (law) •Guidance (administrative state) •Hybrid rulemaking •Incorporation by reference •Independent federal agency •Informal rulemaking •Joint resolution of disapproval (administrative state) •Major rule •Negotiated rulemaking •Nondelegation doctrine •OIRA prompt letter •Organic statute •Pragmatism (law) •Precautionary principle •Promulgate •Proposed rule •Publication rulemaking •Regulatory budget •Regulatory capture •Regulatory dark matter •Regulatory impact analysis •Regulatory policy officer •Regulatory reform officer •Regulatory review •Rent seeking •Retrospective regulatory review •Risk assessment (administrative state) •Rulemaking •Separation of powers •Significant regulatory action •Skidmore deference •Statutory authority •Substantive law and procedural law •Sue and settle •Sunset provision •Unified Agenda of Federal Regulatory and Deregulatory Actions •United States Code •United States Statutes at Large Bibliography "Administrative Law - The 20th Century Bequeaths an 'Illegitimate Exotic' in Full and Terrifying Flower" by Stephen P. Dresch (2000) "Confronting the Administrative Threat" by Philip Hamburger and Tony Mills (2017) "Constitutionalism after the New Deal" by Cass R. Sunstein (1987) Federalist No. 23 by Alexander Hamilton (1787) "From Administrative State to Constitutional Government" by Joseph Postell (2012) "Interring the Nondelegation Doctrine" by Eric A. Posner and Adrian Vermeule (2002) "Rulemaking as Legislating" by Kathryn Watts (2015) "The Checks & Balances of the Regulatory State" by Paul R. Verkuil (2016) "The Myth of the Nondelegation Doctrine" by Keith E. Whittington and Jason Iuliano (2017) "The Progressive Origins of the Administrative State: Wilson, Goodnow, and Landis" by Ronald J. Pestritto (2007) "The Rise and Rise of the Administrative State" by Gary Lawson (1994) "The Study of Administration" by Woodrow Wilson (1887) "The Threat to Liberty" by Steven F. Hayward (2017) "Why the Modern Administrative State Is Inconsistent with the Rule of Law" by Richard A. Epstein (2008) Agencies Administrative Conference of the United States •United States Civil Service Commission •U.S. Government Accountability Office •U.S. Office of Information and Regulatory Affairs •U.S. Office of Management and Budget