Regulatory Lookback Process is Ongoing
Posted by Michael White
The Department of Energy recently published a proposed rule in the Federal Register which serves as an excellent reminder that regulatory review is an ongoing process.
Under Executive Order 13563, “Improving Regulation and Regulatory Review,” agencies are required to develop a plan to periodically review existing regulations to determine which ones should be maintained, modified, strengthened, or repealed to increase the effectiveness and decrease the burdens on affected parties.
The Administrator of the Office of Information and Regulatory Affairs explained the purpose of regulatory lookback this way:
Rules are placed on the books, often for good reasons. They accumulate. The original reason for some of them vanishes. What made sense once no longer makes sense, maybe because of technological change, maybe because of what has happened elsewhere in the system. Rules may refer to nations that no longer exist and to technologies that are obsolete. They may impose requirements that are now also imposed by the states. They may produce unintended harm. The original analysis of costs and benefits may turn out to be wrong; retrospective analysis may reveal opportunities for streamlining or instead expansion. Redundancies and paperwork burdens mount. A particular problem is the rise of cumulative burdens, stemming from the aggregation of rules that may make sense in individual cases, but that when taken as a whole, are not easy to justify.
Regulatory review cannot be effective if agencies treat it as a pro forma exercise, where they simply churn out boilerplate Federal Register documents to check off requirements. To counter that tendency, DOE describes the design of their regulatory looback program as:
… maintaining a consistent culture of retrospective review and analysis. DOE will continually engage in review of its rules to determine whether there are burdens on the public that can be avoided by amending or rescinding existing requirements.
They go on to outline several different methods for the public to provide DOE with specific information, explaining that:
… it is difficult to be certain of the consequences of a rule, including its costs and benefits, until it has been tested. Because knowledge about the full effects of a rule is widely dispersed in society, members of the public are likely to have useful information and perspectives on the benefits and burdens of existing requirements and how regulatory obligations may be updated, streamlined, revised, or repealed to better achieve regulatory objectives, while minimizing regulatory burdens. Interested parties may also be well-positioned to identify those rules that are most in need of review and, thus, assist the Department in prioritizing and properly tailoring its retrospective review process. In short, engaging the public in an open, transparent process is a crucial step in DOE’s review of its existing regulations.
Note: You can keep track of various agencies’ regulatory review plans through Federal Register 2.0 search tools: Suggested Search for Documents Implementing E.O. 13563, and our “Regulatory Improvement“ page.