Obama’s chief regulatory reviewer expands guidance to agencies

The impresario of the Obama administration's quest to identify regulations that are outdated, inefficient or "plain stupid" has released expanded guidance to agencies, giving them 100 days to draft strategies that "promote public participation, improve integration and innovation, increase flexibility, ensure scientific integrity, and increase retrospective analysis of existing rules."

The Feb. 2 memorandum from Office of Information and Regulatory Affairs Administrator Cass Sunstein to agency heads, however, might not placate Republican critics, who are demanding an extensive rollback of federal regulations.

In reiterating provisions of President Obama's Jan. 18 executive order on reviewing federal regulations, Sunstein's memo stressed the importance of prior consultation with "those who are likely to benefit from and those who are potentially subject to such rule-making," and encouraged agencies to "solicit ideas about alternatives, relevant costs and benefits (both quantitative and qualitative), and potential flexibilities."

Coming a week after Sunstein appeared before a House panel wary of regulations that some GOP lawmakers said curtail job growth, the new guidance directed agencies not to "call into question the value of long-standing agency rules simply because they are long-standing…. While systematic review should focus on the elimination of rules that are no longer justified or necessary," it said, "such review should also consider strengthening, complementing, or modernizing rules where necessary or appropriate -- including, if relevant, undertaking new rule-making. Retrospective review may reveal that an existing rule is needed but has not operated as well as expected, and that a stronger, expanded, or somewhat different approach is justified."

Though the memo asked reviewers to determine methods and schedules to identify regulations that are "obsolete, unnecessary, unjustified, excessively burdensome, or counterproductive," it also reminded agencies that "candidates for reconsideration include rules that new technologies or unanticipated circumstances have overtaken."

Independent agencies, which by law are not subject to OIRA's mandates, were encouraged to consider the executive order's provisions voluntarily.

Rep. Cliff Stearns, R-Fla., chairman of the Energy and Commerce Oversight and Investigations Subcommittee, released a statement on Feb. 2 noting: "A report in The Wall Street Journal found that the cost of regulations in the United States rose to $1.75 trillion in 2008, and it is likely higher now. It is the American people who must comply with these regulations and pay their costs, and I am asking them to report any burdensome regulations that hurt the economy."

After acknowledging Sunstein's recent offer to work with his subcommittee, Stearns added, "I am turning to the real experts on regulations, the American people, to help us identify and eliminate those regulations."

Matt Madia, a regulatory policy analyst at the advocacy and research group OMBWatch, said the Obama review was never intended "to clear the books of huge amounts of regulations -- that was a Republican mischaracterization to serve their own interests."

But what he sees as new in Sunstein's memo is the emphasis on public participation. "The public can provide beneficial comments on what should be looked at and tinkered with," Madia said. Such participation can help make the process more "transparent and accountable" as opposed to being merely "a sop to industry" whose "well-heeled lobbyists would come in with their lists" of regulations to target.