Sofie E. Miller
As part of our continuing focus on retrospective review of regulations, the GW Regulatory Studies Center is commencing a new initiative, the Retrospective Review Comment Project. Through this project, we will examine significant proposed regulations to assess whether they include plans for conducting retrospective review, and submit comments to provide suggestions on how best to incorporate plans for retrospective review when new regulations are issued. Our first retrospective review comment is on the National Labor Relations Board’s Representation Case Procedures proposal.
To allow for meaningful retrospective review of regulations once they are final, multiple government guidelines instruct agencies to incorporate retrospective review into their proposals during the rulemaking process. This ex post review makes it possible for members of the public—and for the agencies that regulate them—to measure both whether a particular rule has had its intended effect, and whether the agencies’ ex ante analysis was approximately correct.
Through a series of executive orders, President Obama has encouraged federal regulatory agencies to review existing regulations. On January 18, 2011, President Obama signed Executive Order 13563, Improving Regulation and Regulatory Review, which reaffirmed the regulatory principles and structures outlined in EO 12866.
In addition to the regulatory philosophy laid out in EO 12866, EO 13563 instructs agencies to consider how best to promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned. Such retrospective analyses, including supporting data, should be released online whenever possible.
In his implementing memo on retrospective review, former Administrator of the Office of Information and Regulatory Affairs, Cass Sunstein, stated the importance of designing regulations to facilitate their evaluation:
With its emphasis on “periodic review of existing significant regulations,” Executive Order 13563 recognizes the importance of maintaining a consistent culture of retrospective review and analysis throughout the executive branch. To promote that culture, future regulations should be designed and written in ways that facilitate evaluation of their consequences and thus promote retrospective analyses and measurement of “actual results.” To the extent permitted by law, agencies should therefore give careful consideration to how best to promote empirical testing of the effects of rules both in advance and retrospectively. [Emphasis added]
Sunstein reinforced this point in his June 14, 2011 memo, Final Plans for Retrospective Analysis of Existing Rules. In line with the requirements of EO 13563, OMB’s implementation memo, and OMB's Draft 2013 Report to Congress, it is clear that agencies should incorporate specific plans for retrospective review and ex post evaluation into the text of their final rules “so as to facilitate retrospective analysis of their effects.”
To evaluate whether proposed rules are “designed and written in ways that facilitate evaluation of their consequences,” we plan to measure them against five criteria:
Retrospective Review Criteria
- Did the Agency clearly identify the problem that its proposed rule is intended to solve?
- Did the Agency provide clear, measurable metrics that reviewers can use to evaluate whether the regulation achieves its policy goals?
- Did the Agency commit to collecting information to assess whether its measurable metrics are being reached?
- Did the Agency provide a clear timeframe for the accomplishment of its stated metrics and the collection of information to support its findings?
- Did the Agency write its proposal to allow measurement of both outputs and outcomes to enable review of whether the standards directly result in the intended outcomes?
Our goal is that the GW Regulatory Studies Center’s Retrospective Review Comment Project will encourage regulators to prospectively plan for lookbacks, and provide constructive recommendations to agencies on how to best structure their proposed rules to accomplish these objectives.