OMB's Request for Comment on Marginal Excess Tax Burden and EO 13771

February 18, 2020

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Executive Order (EO) 13771 of January 30, 2017 imposed new regulatory procedures on executive branch agencies by directing them to (1) eliminate two existing rules for each new rule issued and (2) offset costs imposed by new rules through compliance with an incremental regulatory budget. To implement Section 2 of the order, the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (OMB) published interim guidance on February 2, 2017. OIRA accepted comments on the interim guidance until February 10, 2017. After considering the comments received, OIRA published guidance on April 6, 2017 that supplemented and superseded the interim guidance.

OIRA tracks the administration’s regulatory reform efforts and compiles the results from each fiscal year (FY) in an annual report. Along with the FY 2017 report, OIRA published accounting methods for calculating regulatory costs and cost savings. These accounting methods were revised for the two subsequent reports in FY 2018 and FY 2019. With the release of the Regulatory Reform Results for FY 2019, OMB requested “feedback on potentially capturing, in future-year EO 13771 accounting, part or all of the real resource burden associated with regulations that have government budget impacts.” In particular, OMB is interested in feedback on incorporating “marginal excess tax burden” (METB) as a potential cost under EO 13771. The request for comment was also published on with a submission deadline of February 20, 2020.

This public interest comment responds to OMB’s request for comment in two ways. First, I focus on the general implementation of EO 13771 accounting because it has significant implications for properly addressing the METB issue. Second, I offer comments on three of the topics specifically outlined by OMB.