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See also:Regulatory review

Retrospective regulatory review orretrospective review refers to processes used to determine if existing regulations should be retained, modified, or repealed. Since the 1970s, beginning with the presidential administration ofJimmy Carter, the president andCongress have issuedexecutive orders and enacted laws requiring federal agencies to conduct various kinds of retrospective regulatory review. TheOffice of Information and Regulatory Affairs (OIRA) is authorized under several presidentialexecutive orders to review existing federal regulations. Some state governments have also undertaken retrospective review efforts.^[1][2][3]

Background

TheAdministrative Conference of the United States (ACUS), anindependent federal agency tasked with developing recommendations to improve federal administrative processes, gave the following history and explanation of retrospective regulatory review in a 2014guidance document:^[2]

A variety of presidentialexecutive orders issued by presidents fromJimmy Carter throughDonald Trump have been the primary source of federal government-wide retrospective review requirements.^[1][5][6] Additionally, some pieces of congressional legislation have required retrospective review of particular types of regulations. TheRegulatory Flexibility Act of 1980, passed by Congress and signed into law by PresidentJimmy Carter, required federal agencies to "publish in theFederal Register a plan for the periodic review of the rules issued by the agency which have or will have a significant economic impact upon a substantial number of small entities."^[7]

Uses of retrospective regulatory review by presidential administrations

Jimmy Carter, Ronald Reagan, and George H.W. Bush (1977-1993)

In a 2007 report on the effectiveness and transparency of retrospective regulatory reviews conducted by federal agencies, theU.S. Government Accountability Office (GAO) claimed that the presidential practice of directing agencies to review and reconsider existing regulations began with the administration of PresidentJimmy Carter and was continued by his successors:^[1]

Bill Clinton and George W. Bush (1993-2009)

Executive Order 12866, issued by PresidentBill Clinton (D) in 1993, ordered agencies to develop a plan for the periodic review of existingsignificant rules. The order also authorized theOffice of Information and Regulatory Affairs within theOffice of Management and Budget to review all new and preexistingsignificant regulatory actions.^[8][1]

According to the 2007 GAO report on retrospective regulatory review, "In 2001, 2002, and 2004, the administration of PresidentGeorge W. Bush asked the public to suggest reforms of existing regulations."^[1]

Barack Obama (2009-2017)

The retrospective review requirements ofE.O. 12866 were revised in twoexecutive orders issued by PresidentBarack Obama (D).Executive Order 13563, "Improving Regulation and Regulatory Review," was issued by President Obama on January 18, 2011. The order included the following requirements for agencies to conduct retrospective analyses of existing rules:^[5]

Executive Order 13610, "Identifying and Reducing Regulatory Burdens," was issued by President Barack Obama on May 10, 2012. It contained additional provisions on retrospective regulatory review, including a requirement for agencies to report on their reviews to theOffice of Information and Regulatory Affairs twice per year, in January and July. It also provided for public participation in the retrospective review process.^[9][3]

Donald Trump

PresidentDonald Trump (R) included retrospective regulatory review requirements inExecutive Order 13771, "Reducing Regulation and Controlling Regulatory Costs," which he issued on January 30, 2017. The order stated that theexecutive branch ought to be "prudent and financially responsible in the expenditure of funds" from taxpayers while also managing thecompliance costs that organizations and individuals face in order to obey federal regulations. The order also required that agencies engaged in arulemaking, whenever possible, conduct retrospective reviews of their existing regulations and recommend two for repeal:^[6]

Regulations related to the military, foreign affairs, and national security, as well as regulations related to agency management and organization, were exempted from the requirements of this order.^[6]

State-level initiatives

Below is a partial list of retrospective regulatory review initiatives undertaken by some state governments to review and reconsider existing regulations issued by state administrative agencies.

Illinois

Illinois GovernorBruce Rauner (R) issuedIllinois Executive Order 2016-13 on October 17, 2016, establishing the Illinois Competitiveness Council to oversee and administer the Cutting the Red Tape Initiative. The order instructed all Illinois state agencies to review their existing rules and regulations. According to the official website of the Cutting the Red Tape Initiative, the goal of the program "is to determine which ones [rules] are outdated, repetitive, confusing, unnecessary, or harmful to the economy." The order also provided for public input in the regulatory review process.^[10]

Kentucky

In July 2016, Kentucky GovernorMatt Bevin (R) launched theRed Tape Reduction Initiative, a program to review and consider for repeal or amendment the more than 4,700 state administrative regulations in place at the time. The official website of the Red Tape Reduction Initiative claimed that prior to the program about 85 percent of existing state regulations in Kentucky had never had their effectiveness or necessity reviewed.^[11][12]

As of August 15, 2017, the initiative's official website claimed that 2,162 state administrative regulations had been reviewed. Of those regulations, 176 had been repealed and 203 had been amended. The site also stated that 57.3 percent of the regulations that had been reviewed were in need of repeal or amendment.^[13]

See also

• Regulatory review
• Office of Information and Regulatory Affairs
• Presidential Executive Order 12866
• Regulatory Flexibility Act

External links

• Executive Order 13771, "Reducing Regulation and Controlling Regulatory Costs" (2017)
• Executive Order 13610, "Identifying and Reducing Regulatory Burdens" (2012)
• Executive Order 13563, "Improving Regulation and Regulatory Review" (2011)
• Executive Order 12866, "Regulatory Planning and Review" (1993)
• State-level retrospective review initiatives:
  • Illionis Cutting the Red Tape Initiative
  • Kentucky Red Tape Reduction Initiative
• Search Google News for this topic

Footnotes

v • e The Administrative State Main The Administrative State Project main page •Administrative State Project Index •Glossary of administrative state terms •Quotes about the administrative state •Administrative state •Rulemaking •Deference •Adjudication •Nondelegation doctrine •Ballotpedia's administrative state legislation tracker Pillars Agency control •Executive control •Judicial control •Legislative control •Public control Reporting Changes to the Federal Register •Completed OIRA review of federal administrative agency rules •Federal agency rules repealed under the Congressional Review Act •Historical additions to the Federal Register, 1936-2016 Laws Administrative Procedure Act •Antiquities Act •Civil Service Reform Act •Clayton Antitrust Act •Communications Act of 1934 •Congressional Review Act •Electronic Freedom of Information Act •Federal Food, Drug, and Cosmetic Act of 1938 •Federal Housekeeping Statute •Federal Reserve Act •Federal Trade Commission Act of 1914 •Freedom of Information Act •Government in the Sunshine Act •Independent Offices Appropriations Act of 1952 •Information Quality Act •Interstate Commerce Act •National Labor Relations Act •Paperwork Reduction Act •Pendleton Act •Privacy Act of 1974 •Regulatory Flexibility Act •REINS Act •REINS Act (Wisconsin) •Securities Act of 1933 •Securities Exchange Act of 1934 •Sherman Antitrust Act •Small Business Regulatory Enforcement Fairness Act •Truth in Regulating Act •Unfunded Mandates Reform Act Cases Abbott Laboratories v. Gardner •A.L.A. Schechter Poultry Corp. v. United States •Association of Data Processing Service Organizations v. Camp •Auer v. Robbins •Chevron v. Natural Resources Defense Council •Citizens to Preserve Overton Park v. Volpe •Federal Trade Commission (FTC) v. Standard Oil Company of California •Field v. Clark •Food and Drug Administration v. Brown and Williamson Tobacco Corporation •Humphrey's Executor v. United States •Immigration and Naturalization Service (INS) v. Chadha •J.W. Hampton Jr. & Company v. United States •Lucia v. SEC •Marshall v. Barlow's •Massachusetts v. Environmental Protection Agency •Mistretta v. United States •National Federation of Independent Business (NFIB) v. Sebelius •National Labor Relations Board v. Noel Canning Company •National Labor Relations Board v. Sears, Roebuck & Co. •Panama Refining Co. v. Ryan •Securities and Exchange Commission v. Chenery Corporation •Skidmore v. Swift & Co. •United States v. Lopez •United States v. Western Pacific Railroad Co. •Universal Camera Corporation v. National Labor Relations Board •Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council •Wayman v. Southard •Weyerhaeuser Company v. United States Fish and Wildlife Service •Whitman v. American Trucking Associations •Wickard v. Filburn •Wiener v. 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