Public Comment on New Executive Order
On February 2nd, the White House Office of Management and Budget (OMB) issued interim guidance to federal agencies on Section 2 of President Trump’s January 30th Executive Order (EO), entitled “Reducing Regulation and Controlling Regulatory Costs.”
The OMB interim guidance clarifies that covered federal agencies must ensure that significant regulations issued between Noon of January 20, 2017 and September 30, 2017 impose a net incremental cost of zero unless otherwise required by law. Covered federal agencies must ensure that for every new significant regulation that imposes a cost, two existing regulations are eliminated. Regulatory objectives must not be sacrificed. And OMB is to serve as the referee to make sure agencies comply.
The EO raised many questions, and the interim guidance answered a few of the most important ones. Additional guidance will be needed (on other sections of the EO for FY2017, and for FY2018 and beyond). The purpose of this public comment is to (1) convey support for key components of the OMB interim guidance and (2) ensure that OMB is aware of all available implementation options as it moves forward. The focus of these comments is on regulation of businesses because that is the impetus behind the President’s EO.
Observations in Support of the OMB Interim Guidance
A few observations about the OMB interim guidance are especially worthy to highlight.
OMB Appropriately Narrowed the Scope of the EO
The new EO covers only “significant” rules—those that undergo OMB review in accordance with EO 12866 Section 3(f). (Of the roughly 3,500 regulations issued annually in recent years, only about 320 are considered significant rules.) Independent agencies—which issue about 15%-20% of the most costly rules—are excluded (but requested to voluntarily comply), as are “transfer rules”—those regulations governing income transfers from taxpayers to beneficiaries. Also excluded are certain kinds of regulations (i.e., those pertaining to national security, the military, a foreign affairs function, internal agency management, or only affect federal agencies).
It is appropriate and proper for OMB to narrow the scope in this manner given the enormous volume of federal regulation and limited resources of OMB to ensure compliance by regulatory agencies, which also have limited resources. And although OMB could have looked backwards to create a starting point of October 1, 2016 (the beginning of FY2017), it chose a different starting point (Noon January 20, 2017) so as not to immediately put each agency in a deficit not of its own making.
The Transactional Requirement is Less Important than the Larger Policy Target
The transactional requirement (“One In, Two Out”, or OITO) is a general guide to achieve the larger policy target (an incremental regulatory budget of net zero). There appears to be some wiggle room in that agencies can apply the cost savings from eliminating existing requirements to offset the costs of new regulations without having to satisfy the net zero cost requirement for every single transaction (i.e., for each new significant rule). It is appropriate for OMB to focus agency attention foremost on this governmental-wide target because the transactional requirement is a means to an end and not an end in itself.
The interim guidance makes it clear that regulatory objectives are not to be sacrificed. This is very good news for public protections, and it makes efficiency (i.e., cost effectiveness) the watchword. Although it is not stated specifically in the interim guidance, the new EO, along with the interim guidance, effectively expands the requirement for cost-benefit analysis (CBA) from economically significant regulations (of which there are about 60 per year) to all significant regulations (about 320 per year) in FY2017. Therefore, OMB should inform agencies that it expects a regulatory impact analysis (RIA) to accompany each significant rulemaking in order to ensure a proper accounting under the EO.
Recommendations for Implementation of the Executive Order
The following recommendations will ease implementation of the new EO while adhering to its policy goals.
OMB Should Leverage Existing Regulatory Processes
To the extent possible, agencies should utilize existing regulatory processes and mechanisms to implement the EO. This will reduce the learning curve and ensure that maximum attention is focused on increasing net benefits through reducing unnecessary regulatory costs.
The interim guidance does this by focusing on significant regulations and utilizing the established process for centralized review of significant regulations. But OMB can go further, for example, by repurposing agency retrospective review plans as a listing of future rules to be eliminated or changed in accordance with the EO. In essence, the retrospective review plan would become the “bank account” that an agency can withdraw from in order to pay for a new rule subject to the EO.
OMB Should Issue Guidance to Agencies on Appropriate Areas of Focus
OMB should issue guidance to agencies and the public on the kinds of regulatory requirements (i.e., the areas of focus) that are the strongest candidates for elimination or removal given the larger policy goal.
Ideally, the areas of focus represent potential opportunities for reform. Most importantly, opportunities identified under each area would either maintain or increase net public benefits.
The following focus areas meet this criterion:
A. Outdated or duplicative requirements
B. Regulations that penalize good performance
C. Ineffective regulations
D. Regulations that are not cost-effective per cost-benefit analysis (CBA)
Focus Area A includes regulation of products or services that no longer exist, or duplicative regulations from multiple agencies that aim to achieve the same regulatory objective. Focus area B includes regulatory programs that impose requirements not just on “bad actors”, but also on good performers (e.g., uniform requirements imposed on all firms in a sector irrespective of the firm’s performance). Eliminating such requirements will lessen the opportunity cost of such regulatory programs. Focus Area C includes regulations that are ineffective either because the [extent of the] original problem no longer exists for reasons apart from regulation or because the regulatory solution is found to be ineffective based on empirical evidence. Retrospective review efforts would likely yield additional examples. Focus Area D includes regulations that could be improved based on cost-benefit analysis (CBA) or a cost-effectiveness analysis.
Even within these areas of focus, there are certain kinds of regulations that have a disproportionate, negative economic impact, and OMB may wish to highlight these in some way (e.g., in the Unified Regulatory Agenda) or give greater weight to reducing their burden (e.g., allow elimination of a single regulation to count as multiple regulations for the purpose of OITO). For example, market innovation (as opposed to social innovation) is always sacrificed when regulation diverts discretionary resources of businesses toward mandatory compliance. Especially detrimental are direct regulatory barriers to entry such as permits, licenses, and new product approvals because the opportunity cost is relatively high. To the extent such regulatory barriers to economic activity can be reduced or lessened without sacrificing important public protections (i.e., the regulatory objective), market innovation will increase, which will have a positive effect on productivity, standards of living, economic growth, and job creation.
Such reforms benefit entrepreneurs the most, and this is important because new firms (i.e., startups) are responsible for a disproportionate share of innovation and new job creation (President’s Council of Economic Advisors, 2016). Since the late 1970s, the number of startups, the rate of new firm formation, and business dynamism (a combination of the number of new firms and firm exits) have each been in persistent decline (Hathaway and Litan 2014). The cause of this disturbing trend is not known, but regulation is likely to play at least some role. Removing regulatory barriers to increase entrepreneurship would have significant public benefits beyond a reduction in direct compliance cost and is consistent with the President’s interest in spurring economic growth and job creation.
OMB Should Solicit Public Nominations for Burden Reduction
Agencies are not always in the best position to identify meaningful reductions in regulatory burden. OMB should strongly encourage or require each agency to solicit public nominations for burden-reducing opportunities within the areas of focus as previously described. Absent a public nomination process, agencies will have less information upon which to identify and choose among de-regulatory opportunities. OMB may also wish to solicit public nominations itself because it needs to be aware of the largest burden-reducing opportunities to ensure adherence to the government-wide “net zero” target.
OMB Should Take Steps To Avoid Unintended Consequences
The EO contains a definition of “regulation” that is broader than that found in previous executive orders on regulatory review. Such a broader definition is perhaps necessary to avoid unintended consequences such as an added incentive for agencies to impose mandates in the absence of notice and comment rulemaking (e.g., regulation via press release, guidance, or memo). OMB should retain the ability to identify and review significant policy documents that would otherwise have the same effect as “informal rulemaking” under the Administrative Procedure Act. Agencies should be required to notify OMB about such policies under development.
OMB Should Clarify that OITO Applies to All New ICRs
Government-driven paperwork is the easiest and most obvious target for a regulatory budget because, unlike regulatory burden, the United States has a complete accounting of paperwork burden by agency. Surprisingly, the OMB guidance does not address paperwork or whether OITO applies to information collection requests (ICRs) not associated with a rulemaking.
New ICRs not related to a rulemaking should be included within the scope of OITO. Agencies have ample room for reducing burden because the information collection budget consists primarily of discretionary collections (OMB 2016). It will be important, however, for OMB to limit trading of paperwork burden across agencies because unrestricted trading would lessen the incentive on each agency to reduce its own paperwork burden.
As regulated entities and organized interests plan ahead, they should keep in mind that the new EO does not change statutory requirements or judicial decisions, but it does direct the discretion of regulators. In the future, regulators will be thinking more about how to minimize cost while achieving regulatory objectives. This is the ultimate take-away from the new EO and interim guidance, and it is altogether fitting and proper for the President, as manager of the executive branch, to direct federal regulators in this manner.
Council of Economic Advisors, 2016. Economic report of the president. Washington, DC: Executive Office of the President, Chapter 5 and Figure 5-2.
Hathaway, I. and Litan, R., 2014. Declining business dynamism in the United States: A look at states and metros. Washington, DC: Brookings Institution.
Office of Management and Budget, 2016. Information Collection Budget of the United States Government. Washington, DC: Office of Information and Regulatory Affairs.