Retrospective Review: Do Agencies’ Proposals Measure Up?

From: George Washington University/Regulatory Studes Center–Regulatory Commentary

Sofie E. Miller, Policy Analyst

As part of our continuing focus on retrospective review of regulations, the GW Regulatory Studies Center is commencing a new initiative, the Retrospective Review Comment Project. Through this project, we will examine significant proposed regulations to assess whether they include plans for conducting retrospective review, and submit comments to provide suggestions on how best to incorporate plans for retrospective review when new regulations are issued. Our first retrospective review comment is on the National Labor Relations Board’s Representation Case Procedures proposal.

To allow for meaningful retrospective review of regulations once they are final, multiple government guidelines instruct agencies to incorporate retrospective review into their proposals during the rulemaking process. This ex post review makes it possible for members of the public—and for the agencies that regulate them—to measure both whether a particular rule has had its intended effect, and whether the agencies’ ex ante analysis was approximately correct.

Retrospective Review Criteria· Did the Agency clearly identify the problem that its proposed rule is intended to solve?

· Did the Agency provide clear, measurable metrics that reviewers can use to evaluate whether the regulation achieves its policy goals?

· Did the Agency commit to collecting information to assess whether its measurable metrics are being reached?

· Did the Agency provide a clear timeframe for the accomplishment of its stated metrics and the collection of information to support its findings?

· Did the Agency write its proposal to allow measurement of both outputs and outcomes to enable review of whether the standards directly result in the intended outcomes?

Through a series of executive orders, President Obama has encouraged federal regulatory agencies to review existing regulations. On January 18, 2011, President Obama signed Executive Order 13563, Improving Regulation and Regulatory Review, which reaffirmed the regulatory principles and structures outlined in EO 12866. In addition to the regulatory philosophy laid out in EO 12866, EO 13563 instructs agencies to

consider how best to promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned. Such retrospective analyses, including supporting data, should be released online whenever possible.

In his implementing memo on retrospective review, former Administrator of the Office of Information and Regulatory Affairs, Cass Sunstein, stated the importance of designing regulations to facilitate their evaluation:

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