OMB elaborates on regulatory review for independent agencies

Cass Sunstein, administrator of the Office of Information and Regulatory Affairs, on Friday continued his bid to encourage independent agencies to participate in the Obama administration's governmentwide review of regulations that may be outdated, overly burdensome or stifling to the creation of jobs.

In a July 22 memo to heads of independent regulatory agencies, Sunstein laid out guidance elaborating on President Obama's February executive order that OIRA earlier this month had applied to the independent regulators. "It is understood that this guidance is issued with full respect for the independence of the agencies to which it is addressed," the memo said, "and hence nothing said here is meant to be binding."

The memo reiterated the executive order's language that "each agency shall identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public." Such approaches include "warnings, appropriate default rules and disclosure requirements, including provision of information to the public about risks in a form that is clear and intelligible," it said.

The guidance "asks the independent agencies to engage the public, to simplify their rules and to prioritize reforms that will offer big economic savings," Sunstein wrote in an accompanying blog post. "It also offers a template to promote clarity and transparency in regulatory reform -- and to change the culture of Washington, by hardwiring rigorous empirical analysis and continuing scrutiny into the regulatory system."

Like Cabinet agencies, the independents will have 120 days to draft plans that include public participation, prioritization, analysis of costs and benefits and of potential savings, structure and staffing, and coordination with other forms of retrospective analysis and review.

The memo also encouraged agencies to seek public comment on regulations online, harmonize rules governmentwide and base decisions on solid science.

The business community may be supportive. Earlier this month, Erik Glavich, director of legal and regulatory policy for the National Association of Manufacturers, applauded the application of regulatory review to independent agencies such as the Securities and Exchange Commission, the Federal Communications Commission and the Consumer Product Safety Commission. The association "urges independent agencies to engage in meaningful regulatory review that yields a thoughtful cleanup of outdated and unnecessarily burdensome regulation," he wrote. "The president's order is heavily qualified by phrases seeking to make sure that the administration not be accused of exceeding its authority over independent agencies. We believe the president has far greater authority than has been asserted. In the absence of stronger direction from the president, Congress must make clear the president's authority in this regard."