POTUS Issues Executive Order on Modernizing Regulatory Reviews
President Biden today issued an Executive Order on “Modernizing Regulatory Review” in order to “advance policies that promote the public interest and address national priorities.”
Among other things, the Executive Order directs federal agencies to:
- Proactively engage interested or affected parties in the development of regulatory agendas and plans, incorporating practices including community-based outreach, outreach to organizations that work with interested or affected parties, and expansion of public capacity for engaging in the rulemaking process
- Clarify opportunities for interested persons to petition for the issuance, amendment, or repeal of a rule and endeavor to respond to such petitions efficiently
Additionally, the Administrator of the Office of Information and Regulatory Affairs is directed to:
- Within 1 year, revise the Office of Management and Budget Circular A-4 to ensure that regulatory analysis recognizes distributive impacts and equity
- Provide information to facilitate the initiation of meeting requests regarding regulatory actions under OIRA from potential participants who have not historically requested such meetings, including those from underserved communities, and implement reforms to improve procedures and policies regarding OIRA consideration of meeting requests regarding regulatory actions under review
- Reforms may include efforts to ensure access for meeting requestors who have not historically requested such meetings, discouraging meeting requests that are duplicative of earlier meetings on the same regulatory action by the same requesters, consolidating meetings by requester, subject matter, or other consistently applied factor
- Consider reforms to modernize the notice and comment process, including through technological changes that could include guidance or tools to address mass comments, computer-generated comments, and falsely attributed comments.
In conjunction with the Executive Order’s directive for a revised OMB Circular A-4 (Regulatory Analysis) that recognizes distributive impacts and equity, the Office of Management and Budget announced that it is seeking comments by Tuesday, June 6 on a proposed update to OMB Circular A-4 and a related preamble.
Among other things, the proposed update states that regulatory benefit-cost analysis “should account for effects on environmental or ecosystem services, or changes in the value of natural assets, if relevant and feasible,” noting that the choice of whether to value ecosystem services or natural capital “often depends on available analytic tools.” Where relevant ecosystem services are identified, the draft update says that agencies should seek to monetize their impacts when feasible, quantify impacts when monetization is not feasible, and describe impacts qualitatively when monetization or quantification is not possible. It also notes that forthcoming OMB guidance on ecosystem services will provide additional information and guidance.
In addressing indirect uses of market data, the draft proposed update notes that some use values can be passive (non-consumptive), noting cases where minerals/fossil fuels are held in the ground to hedge against price risk or to avoid the need for additional expenditures on greenhouse gas abatement, or where forest/wetland/dune development is foregone to reduce flood risk. In doing so, it states that “in many relevant economic cases, doing nothing can be the “action” that generates the greatest welfare.”
In conjunction with the OMB Circular A-4 update, OMB announced that nominations of experts are being sought by Friday, Apr. 28 to conduct peer review of the proposed update. Individuals are being sought with demonstrated and nationally-recognized expertise in economics and public policy and administrative law aspects related to application of benefit-costs analysis to regulatory policy. Nominees are particularly sought with expertise in primary fields including the regulatory process and risk management and risk assessment, as well as secondary fields and sub-fields of primary fields that include environmental and natural resource economics.
Additionally, the Office of Management and Budget announced that it is seeking comments by Tuesday, June 6 on draft guidance related to the reforms for OIRA meetings that were mandated by the Executive Order.
