Federal agencies generally have systems in place to develop new regulations. Once those regulations have been promulgated, the agency’s attention usually shifts to its next unaddressed issue. There is increasing recognition, however, of the need to review regulations already adopted to ensure that they remain current, effective and appropriate. Although there have been instances where agencies have been required to review their regulations to determine whether any should be modified or revoked, there is no general process for ensuring review of agency regulations.
The Administrative Conference believes that agencies have an obligation to develop systematic processes for reviewing existing rules, regulations and regulatory programs on an ongoing basis. If Congress determines that such a review program should be mandated, it should allow the President and agencies maximum flexibility to design processes that are sensitive to individual agency situations and types of regulations. Thus, such legislation should assign to the President the responsibility for overseeing agency compliance through general guidelines that take into account agency resources and other responsibilities. The obligation to review existing regulations should be made applicable to all agencies, whether independent or in the executive branch.
Given the difference among agencies, however, processes for review of existing regulations should not be “one-size-fits-all,” but should be tailored to meet agencies’ individual needs. Thus, the President, as well as Congress, should avoid mandating standardized or detailed requirements. Moreover, the review should focus on the most important regulations and offer sufficient time and resources to ensure meaningful analysis. Tight time frames or review requirements applicable to all regulations, regardless of their narrow or limited impact, may prevent agencies from being able to engage in a meaningful effort. It is important to develop priority-setting processes that allow agencies, in consultation with the Office of Management and Budget and the public (including but not limited to the regulated communities), to determine where their efforts should be directed.
Public input into the review process is critical. The Administrative Procedure Act already provides in section 553(e) for petitions for rulemaking, which allow the public to seek modifications or revocation of existing regulations as well as ask for new rules. The Administrative Conference has in the past suggested some improvements in the ways agencies administer and respond to such petitions. See Recommendation 86—6, “Petitions for Rulemaking.” It suggests, among other things, that agencies establish deadlines for responding to petitions. The Conference reiterates that recommendation and proposes that, if necessary, the President by executive order or the Congress should mandate Acting upon petitions within a specified time, for example 12–18 months.
Although petitions for rulemaking are a useful method for the public to recommend to agencies changes it believes are important, such petitions should not be allowed to dominate the agency’s agenda. Agencies have a broad responsibility to respond to the needs of the public at large and not all members of the public are equally equipped or motivated to file rulemaking petitions. Thus, the petition process should be a part, but only a part, of the process for determining agency rulemaking priorities, both with respect to the need for new regulations and to review of existing regulations. Agencies should also develop other mechanisms for public input on the priorities for review of regulations, as well as on the impact and effectiveness of those regulations.
Properly done, reviewing existing regulations is not a simple task. It may require resources and information that are not readily available. Each agency faces different circumstances, depending on the number of its regulations, their type and complexity, other responsibilities, and available resources. These processes must be designed so that they take into account the need for ongoing review, the agency’s overall statutory responsibilities, including mandates to issue new regulations, and other demands on agency resources. Because there are relatively few successful well-developed models available and no widely accepted methodologies, the Conference recommends that agencies experiment with various methods. Such programs might explore different approaches with the aim of finding one (or several) that functions effectively for the particular agency. Agencies may want to look to activities at the state level, as well as the limited federal-level experience.
Review of existing regulations is primarily a management issue. As such, agency discretion must be recognized as important and judicial review should be limited. Agency denials of petitions for rulemaking under the APA are subject to judicial review, but courts have properly limited their scope of review in this context. There is no warrant for Congress to change current review standards, nor should any regularized or systematic program for review of existing regulations be subject to greater judicial scrutiny.
I. Review Requirements
All agencies (executive branch or “independent”) should develop processes for systematic review of existing regulations to determine whether such regulations should be retained, modified or revoked. If Congress decides to mandate such programs, it should limit that requirement to a broad review, assign to the President the responsibility for overseeing the review process, and specify that each agency design its own program.
II. Focus of Regulation Review
Systematic review processes should be tailored to meet the needs of each agency, focus on the most important regulations, and provide for a periodic, ongoing review. The nature and scope of the review should be determined by, among other things, the agency’s other responsibilities and demands on its resources. Sufficient time should be provided to allow meaningful information-gathering and analysis.
III. Setting Priorities
Agencies should establish priorities for which regulations are reviewed when developing their annual regulatory programs or plans,1 and in consultation with OMB and the public. In setting such priorities, the following should be considered:
A. whether the purpose, impact and effectiveness of the regulations have been impaired by changes in conditions;2
B. whether the public or the regulated community views modification or revocation of the regulations as important;
C. whether the regulatory function could be accomplished by the private sector or another level of government more effectively and at a lower cost; and
D. whether the regulations overlap or are inconsistent with regulations of the same or another agency.
Agencies should not exclude from their review those regulations for which statutory amendment might be required to achieve desired change. Agencies should notify Congress of such regulations and the relevant statutory provisions.
IV. Public Input
A. Agencies should provide adequate opportunity for public involvement in both the priority-setting and review processes. In addition to reliance on requests for comment or other recognized means such as agency ombudsmen3 and formally established advisory committees, agencies should also consider other means of soliciting public input. These include issuing press releases and public notices, convening roundtable discussions with interested members of the public, and requesting comments through electronic bulletin boards or other means of electronic communication.
B. The provisions of 5 U.S.C. § 553(e) authorizing petitions for rulemaking also provide a method for reviewing existing regulations. These provisions should be strengthened to ensure adequate and timely agency responses.4 Agencies should establish deadlines for their responses to petitions; if necessary, the President by executive order or Congress should mandate that petitions be acted upon within a specified time. Congress should not modify the current limited judicial review standard applicable to petitions for rulemaking.
V. Agency Implementation of Regulatory Review Processes
A. Agencies should provide adequate resources to and ensure senior level management participation in the review of existing regulations.
B. As part of the review process, agencies should review information in their files as well as other available information on the impact and the effectiveness of regulations and, where appropriate, should engage in risk assessment and cost-benefit analysis of specific regulations.
C. In developing processes for reviewing existing regulations, agencies should consider:
1. Frequency of review: Regulations could be reviewed on a pre-set schedule (e.g., regulations reviewed every [x] years; a review date set at the time a new regulation is issued; regulations subject to “sunset” dates”) or according to a flexible priority list.
2. Categories of regulations to be reviewed: Regulations could be reviewed by age, by subject, by affected group, by agencies individually or on a multi-agency basis.
D. Agencies should consider experimenting with partial programs and evaluate their effectiveness.
60 FR 43109 (August 18, 1995)
__ FR _____ (2011)
1994-1995 ACUS 27
1 See Executive Orders 12,498 (“Regulatory Program” required by President Reagan) and 12,866 (“Regulatory Plan” required by President Clinton).
2 See (V)(B), infra.
3 See “The Ombudsman in Federal Agencies,” ACUS Recommendation 90—2.
4 Recommendation 86—6, “Petitions for Rulemaking.”