Executive Order 13563 Published in January 21, 2011, Federal Register

On January 18, we reported that President Obama had issued an executive order “Improving Regulation and Regulatory Review”.  Executive order 13563 was published in the January 21, 2011, edition of the Federal Register (76 FR 3821-3823).

President’s Executive Order Improving Regulation and Regulatory Review

NPR reported today that President Barack Obama has issued an executive order improving regulation and regulatory review.  In the “It’s All Politics” blog post entitled “Obama Orders Regulation Review to Boost Business, Economy“, NPR states:

The president outlined why he signed the executive order in an op-ed piece in the Wall Street Journal Tuesday.

This order requires that federal agencies ensure that regulations protect our safety, health and environment while promoting economic growth. And it orders a government-wide review of the rules already on the books to remove outdated regulations that stifle job creation and make our economy less competitive. It’s a review that will help bring order to regulations that have become a patchwork of overlapping rules, the result of tinkering by administrations and legislators of both parties and the influence of special interests in Washington over decades.

In the second story, “Obama Reaches Out To Businesses With Rules Review“, Ari Shapiro provides more context and reaction.

The text of the executive order has not yet been published in the Federal Register.  The text is available in a press release on the White House web site.

The President’s op-ed piece in the Wall Street Journal is available online.

UPDATE:  1/19/2011.  The Federal Register’s Facebook page has been updated with a post that points to gov20govfresh.com and provides the number for the President’s executive order:

This article [http://gov20.govfresh.com/white-house-regulations-shall-be-adopted-through-a-process-that-involves-public-participation/] lays out the goals of the President’s Executive Order on regulatory review (E.O. 13563) and relates it to his op-ed in the Wall Street Journal on building a 21st century regulatory system. The article stresses that enhanced public participation is one of the key deliverables of the reg review process.

President Bush Amends Executive Order 12866 Affecting Federal Rulemaking Process

[NOTE: This is a repost, with updates, from the old Rulemaking blog which has been discontinued.]

In 1993, President Clinton issued Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). That order, according to OMB Watch:

. . . establishes the guiding principles agencies must follow when developing regulations, including encouraging the use of cost-benefit analysis, risk assessment, and performance-based regulatory standards. The executive order also establishes the regulatory planning process for each agency, delegating authority to the Office of Information and Regulatory Affairs (OIRA) to coordinate agency rulemaking efforts with the regulatory priorities of the President. E.O. 12,866 also expands the roles of OIRA in rulemaking through a centralized review of regulations, whereby OIRA acts as gatekeeper for the promulgation of all significant rulemakings. (Source: http://www.ombwatch.org/article/articleview/180/1/67, accessed 1/27/2007)

On January 18, 2007, President Bush issued Executive Order 13422 (72 FR 2763, January 23, 2007), and OMB Watch sounded an alarm. Analyzing the new order in an article entitled, “Undermining Public Protections”, OMB watch warns:

The revised Executive Order . . . is a further threat to public protections from an administration committed to elevating special interests over public interests. It codifies regulatory delay, further removes agency discretion over legislative implementation, and centralizes control over the regulatory process into a small executive office. It substitutes free market criteria for the public values of health, safety, and environmental protections, and substitutes executive authority for legislative authority. (Source: http://www.ombwatch.org/article/articleview/3685/1/{category_id}, accessed 1/27/2007)

Public Citizen is also critical of the executive order, characterizing it as a move that “will threaten the ability of the federal government to protect and inform the public.” Public Citizen itemized it concerns, saying:

First, it requires agencies to get White House approval of many important kinds of guidance for the public, which would allow the White House to create a bureaucratic bottleneck that would slow down agencies’ ability to give the public information it needs. Agencies use guidance to let the public know how they intend to enforce the laws and regulations on the books.

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Second, the new order stresses the concept of “market failure” in its revised command for agencies to state justifications for new regulations for public health, privacy, safety, civil rights and the environment. Market failure is an economics term describing situations in which private markets, left to themselves, fail to bring about results that the public needs. This order, however, will be enforced by Susan Dudley, the radical extremist that the White House is setting up for a recess appointment to become the administrator of the Office of Information and Regulatory Affairs (OIRA) in the White House Office of Management and Budget. Based on an evaluation of Dudley’s record in a report released last year, Public Citizen has concluded that in her hands, the market failure provision will become a barrier to the protections that the public needs.

Third, the order requires agencies to develop annual plans for upcoming rulemakings that identify “the combined aggregate costs and benefits of all … regulations planned for that calendar year to assist with the identification of priorities.” This new requirement will make cost/benefit analysis the central factor in setting priorities for needed protections of the public interest. (Source: http://www.citizen.org/pressroom/release.cfm?ID=2361, accessed 1/27/2007)

Other news about the order seems scarce. Searches on major eastern newspaper websites, and the news services on Google and Yahoo yielded only one other article. In that article, NewsInferno.com (http://www.newsinferno.com/archives/1402#more-1402) relied upon information from Public Citizen. Even the Wall Street Journal appeared to be silent about the order.

Part of the problem might be accessibility and the method used to amend the order. Executive Order 13422 directs changes at specific paragraphs in the old, previously amended order. After spending a significant amount of time searching online, it became clear that a complete version that integrates the changes is not available–at least not yet.

It will be interesting to watch the federal regulatory process and see if the fears expressed actually materialize.

NOTE: Executive Order 12866 was also amended by Executive Order 13258, issued February 26, 2002, by President Bush (67 FR 9385, February 28, 2002).

UPDATE: On January 30, 2007, twelve days after President Bush signed the order, the New York Times ran an article entitled “Bush Directive Increases Sway on Regulation.” The same day, the Washington Post considered the Executive Order in an article “Bush Order Limits Agencies’ ‘Guidance’.”

On February 13, 2007, the House Committee on the Judiciary, Subcommittee on Commercial and Administrative Law, held an oversight hearing — “Amending Executive Order 12866: Good Governance or Regulatory Usurpation?” Also on February 13, 2007, and April 26, 2007, the House Committee on Science and Technology, Subcommittee on Investigations and Oversight held similar hearings.