Regulatory review
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In federal administrative law, regulatory review refers to processes used by Congress, the president, and the courts to oversee the rules, regulations, and other policies issued by federal agencies. Regulatory review may involve an examination of the content or effect of a rule, its estimated economic costs and benefits, or the adherence of the rule and the rulemaking agency to procedural requirements.
Retrospective regulatory review, a type of regulatory review, is used to determine if existing regulations should be retained, modified, or repealed.
The sections below provide information and links to other articles about laws, executive orders, agencies, legal principles, and concepts related to federal regulatory review.
Congressional review
Legislation
- Administrative Procedure Act (APA)
- A federal law passed in 1946 establishing uniform procedures for federal agencies to propose and issue regulations, a process known as rulemaking. The APA also addresses policy statements and licenses issued by agencies and provides for judicial review of agency adjudications and other final decisions.[1][2][3] Prior to the APA, there were no federal laws governing the general conduct of administrative agencies.[4]
- Congressional Review Act (CRA)
- A federal law passed in 1996 creating a review period during which Congress, by passing a joint resolution of disapproval that is then signed by the president, can overturn new federal agency rules and block those agencies from creating similar rules in the future. Prior to 2017 the law was successfully used only once, to overturn a rule on ergonomics in the workplace in 2001. In the first four months of his administration, President Donald Trump (R) signed 14 CRA resolutions from Congress undoing a variety of rules issued near the end of Barack Obama's (D) presidency.[5][6][7]
- For a list of joint resolutions of disapproval passed by Congress and signed by the president, see our article on: "Federal agency rules repealed under the Congressional Review Act."
Agencies
- U.S. Government Accountability Office (GAO)
- An independent, nonpartisan agency that is contracted and under the supervision of the U.S. Congress.[8] Regulations defined as major rules under the Congressional Review Act are subject to a procedural review by the GAO and may have their proposed effective dates delayed.[9]
Terms and definitions
- Joint resolution of disapproval
- A measure, introduced and considered by Congress under the terms of the Congressional Review Act, that overturns a new federal agency rule and blocks the issuing agency from creating similar rules in the future without specific authorization. As with all bills and joint resolutions, a joint resolution of disapproval must be passed by both houses of Congress in identical form and sent to the president for approval or passed over a presidential veto by two-thirds of the members of each house.[10][11][9][5][6][7]
- Major rule
- A legal term, defined by the Congressional Review Act, for a rule issued by an agency that has had or may have a large impact on some aspect of the economy, such as prices, costs, competition, employment, or investment. Under the CRA, there is a period of 60 legislative days, starting from the publication or submission of a final agency rule, during which Congress and the president can pass a joint resolution disapproving the rule. Regulations defined as major rules under the CRA are subject to a procedural review by the U.S. Government Accountability Office and may have their proposed effective dates delayed.[5][6][9]
Executive review
Executive orders
Executive Order 12866, "Regulatory Planning and Review," is a presidential executive order issued by President Bill Clinton in 1993 establishing principles and processes to govern federal agency rulemaking, regulatory planning, and regulatory review. It was designed to guide presidential oversight of regulatory and administrative policy. E.O. 12866 provides for the incorporation of public comments into the rulemaking process and the public release of documents related to the regulatory review process. The order also authorizes the Office of Information and Regulatory Affairs (OIRA) within the OMB to review what it considers all new and preexisting significant regulatory actions.[12][13][14]
Agencies
- U.S. Office of Information and Regulatory Affairs (OIRA)
- A division of the Office of Management and Budget; Its responsibilities include regulatory review, clearance and approval of government information collection requests, and oversight of government statistical practices and privacy policies. OIRA is responsible for reviewing and coordinating what it deems all significant regulatory actions made by federal agencies, excluding those defined as independent federal agencies.[15][16][17]
- Administrative Conference of the United States (ACUS)
- An independent federal agency tasked with developing recommendations to improve federal administrative processes. ACUS recommendations focus on organizational and procedural administrative reforms rather than substantive policy issues.[18]
Terms and definitions
- Significant regulatory action (includes economically significant rules and other significant rules)
- An agency rule that has had or may have a large impact on the economy, environment, public health, state or local governments or communities, or may cause other issues such as conflicts or inconsistencies with other agencies or rules or with the priorities of the president. The term was defined by Executive Order 12866. As part of its role in the regulatory review process, the Office of Information and Regulatory Affairs determines which rules meet this definition are thus are subject to its review.[12][13][14]
- OIRA prompt letter
- A letter issued to a federal agency by the Office of Information and Regulatory Affairs that proposes a recommendation for new regulatory action. The letters are independently developed by OIRA and are not sent as response letters to ongoing agency rulemaking activity.
- Regulatory impact analysis (RIA)
- A process used by regulators and other government officials to assess the anticipated costs and benefits of a regulation. The process involves comparing the estimated effects of a regulation with the estimated effects of other regulatory and non-regulatory options, including inaction. RIAs are used by the federal government to inform the rulemaking and regulatory review processes.[19][20][21]
Judicial review
The arbitrary-or-capricious test is a legal standard of review used by judges to assess the actions of administrative agencies. It was originally defined in a provision of the 1946 Administrative Procedure Act, which instructs courts reviewing agency actions to invalidate any that they find to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." The test is most frequently employed to assess the factual basis of an agency's rulemaking, especially informal rulemakings.[1][2][3][22]
Deference is a principle of judicial review. In the context of administrative law, deference applies when a federal court yields to an agency's interpretation of either a statute that Congress instructed the agency to administer or a regulation promulgated by the agency. The U.S. Supreme Court has developed several forms of deference in reviewing agency actions, including Chevron deference, Skidmore deference, and Auer deference.[23][24]
State approaches to regulatory review
The review process of state agency rules differs from state to state, according to 2022 research by the Mercatus Center. In some cases, executive review of state regulations is required, whereas other states may require legislative review or review by an independent agency. In some states, all rules must undergo the same degree of review. In other states, a review of regulatory action is triggered by an economic threshold or a small business impact.
The specific procedures for regulatory review vary between states. For example, some states require the governor to approve all rules as a form of executive review and some states delegate executive review to a state agency or department such as the California Office of Administrative Law. Additionally, some states require more than one form of review, such as requiring a legislative review after an executive review, whereas other states do not. Thirteen states, as of a 2022 report, require an independent agency review of certain rules, often in addition to an executive review or a legislative review.[25]
See also
External links
- Executive Order 13771, "Reducing Regulation and Controlling Regulatory Costs" (2017)
- Executive Order 13610, "Identifying and Reducing Regulatory Burdens" (2012)
- Executive Order 13563, "Improving Regulation and Regulatory Review" (2011)
- Executive Order 12866, "Regulatory Planning and Review" (1993)
- Search Google News for this topic
Footnotes
- ↑ 1.0 1.1 The Regulatory Group, "Regulatory Glossary," accessed August 4, 2017
- ↑ 2.0 2.1 Electronic Privacy Information Center, "The Administrative Procedure Act (APA)," accessed August 14, 2017
- ↑ 3.0 3.1 Environmental Protection Agency, "Summary of the Administrative Procedure Act," accessed August 14, 2017
- ↑ Legal Dictionary, "Administrative Procedure Act of 1946," accessed August 14, 2017
- ↑ 5.0 5.1 5.2 U.S. News, "Democrats Push to Repeal Congressional Review Act," June 1, 2017
- ↑ 6.0 6.1 6.2 The Hill, "The Congressional Review Act and a deregulatory agenda for Trump's second year," March 31, 2017
- ↑ 7.0 7.1 Smithsonian Magazine, "What Is the Congressional Review Act?" February 10, 2017
- ↑ GAO, "About GAO," accessed May 9, 2016
- ↑ 9.0 9.1 9.2 Congressional Research Service, "The Congressional Review Act: Frequently Asked Questions," November 17, 2016
- ↑ United States Senate, "Legislation, Laws, and Acts," accessed September 25, 2017
- ↑ Merriam-Webster, "Joint resolution," accessed September 25, 2017
- ↑ 12.0 12.1 Federal Register, "Executive Order 12866," October 4, 1993
- ↑ 13.0 13.1 Center for Effective Government, "Executive Order 12866," accessed July 20, 2017
- ↑ 14.0 14.1 Environmental Protection Agency, "Summary of Executive Order 12866 - Regulatory Planning and Review," accessed July 20, 2017
- ↑ Office of Management and Budget, "Office of Information and Regulatory Affairs," accessed July 18, 2017
- ↑ Office of Management and Budget, "The Mission and Structure of the Office of Management and Budget," archived December 19, 2016
- ↑ RegInfo.gov, "Frequently Asked Questions," accessed August 3, 2017
- ↑ Administrative Conference of the United States, "About the Administrative Conference of the United States (ACUS)," accessed July 17, 2017
- ↑ Department of Health and Human Services, "Guidelines for Regulatory Impact Analysis," 2016
- ↑ Mercatus Center, "The Role of Regulatory Impact Analysis in Federal Rulemaking," April 10, 2014
- ↑ Organization for Economic Cooperation and Development, "Regulatory Impact Analysis," accessed August 4, 2017
- ↑ Center for Effective Government, "Arbitrary-or-Capricious Test," accessed August 15, 2017
- ↑ Yale Law Journal, "The Origins of Judicial Deference to Executive Interpretation," February 2017
- ↑ Blattmachr, J. (2006). Circular 230 Deskbook. New York, NY: Practising Law Institute. (pages 1-21)
- ↑ Mercatus Center, "A 50-State Review of Regulatory Procedures," April 25, 2022
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