Selected Reference Materials

The following list identifies and, in some cases, provides a link to copies of selected current reference materials. It is not intended to be comprehensive and does not, for example, include internal agency guidance.

House Resolution 72

Among other things, House Resolution 72, passed on February 11, 2011, directs 10 congressional committees to inventory and review existing regulations and orders from federal agencies within the respective committees' jurisdiction with a focus on the potential adverse impact of the regulations on jobs and economic growth.

Executive Order 13563, Improving Regulation and Regulatory Review

Executive Order 13563, issued by President Obama on January 18, 2011, and entitled Improving Regulation and Regulatory Review, supplements and reaffirms the principles, structures, and definitions in Executive Order 12866. Executive Order 13563, among other things, requires agencies to consider how best to promote retrospective analyses of existing significant regulations. In addition, within 120 days of the executive order's issuance—by May 18, 2011—each agency is required to submit to the Office of Information and Regulatory Affairs (OIRA) a preliminary plan under which the agency will periodically review its existing significant regulations to determine whether the regulations should be modified, streamlined, expanded, or repealed.

2011 OMB Memoranda on Executive Order 13563

An Office of Management and Budget (OMB) memorandum, issued February 2, 2011, provides guidance to agencies on the principles and requirements of carrying out the directives in Executive Order 13563, including the development of preliminary plans, to be submitted to OIRA by May 18, 2011, for conducting periodic retrospective analyses of existing significant regulations. On April 25, 2011, OMB issued another memorandum providing guidance to agencies on the process through which their preliminary plans would become finalized. The memorandum encourages agencies to finalize their plans no later than 80 days after releasing their preliminary plans and advises agencies to periodically review and update their plans.

Executive Order 12866, Regulatory Planning and Review

Executive Order 12866, issued by President Clinton on September 30, 1993, and entitled Regulatory Planning and Review, directs agencies to, among other things, develop a program to periodically review their existing "significant" regulations to determine whether they should be modified or eliminated. The order defines a "significant regulatory action" as "any regulatory action that is likely to result in a rule that may:

  1. Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities;
  2. Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
  3. Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
  4. Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive order."

Regulatory Flexibility Act and Small Business Administration Guidance

The Regulatory Flexibility Act (RFA), 5 U.S.C. §§ 601-612, was enacted largely in response to concerns about the effect that federal regulations can have on small entities. The RFA requires agencies to conduct what are known as Section 610 reviews in order to reexamine those regulations that have or will have a "significant economic impact upon a substantial number of small entities" within 10 years of their promulgation. The purpose of these reviews is to determine whether such regulations should be continued without change or should be amended or rescinded, consistent with the stated objectives of applicable statues, to minimize impacts on small entities. As part of that review process, the RFA requires federal agencies to publish annually in the Federal Register a list of their existing regulations that have a "significant economic impact upon a substantial number of small entities" that they plan to review in the next year. Agencies must describe these regulations, note why they are needed and their legal bases, and invite public comments on them.

The Small Business Administration (SBA) has issued guidance for agencies explaining how to comply with the RFA. Updated most recently in 2010, SBA's guidance includes best practices for agencies in conducting Section 610 reviews.

2003 OMB Circular A-4, Regulatory Analysis

Circular A-4, issued by OMB in September 2003, sets forth guidelines to federal agencies for developing regulatory analyses, in connection with both proposed regulations and reviews of existing regulations. These guidelines include economic principles for analyzing the benefits and costs of significant regulatory action called for by Executive Order 12866; OMB designed the guidelines to help agencies conduct "good regulatory analyses" and to standardize the way that benefits and costs of regulations are measured and reported. The guidelines define a good regulatory analysis as one that includes a statement of the need for the proposed regulation, an assessment of alternatives, and an evaluation of the benefits and costs of the proposed regulation and the alternatives. The guidelines state that the motivation for the evaluation is to learn if the benefits of an action are likely to justify the costs, or discover which of the possible alternatives would be the most cost-effective. According to OIRA, Circular A-4 contains several significant changes from previous OMB guidance, including (1) more emphasis on cost-effectiveness analysis, (2) formal probability analysis for rules with more than a billion-dollar impact on the economy, and (3) more systematic evaluation of qualitative as well as quantified benefits and costs.

Agency- and Program-Specific Statutory Provisions

In addition to governmentwide statutory requirements, agency- and program-specific statutes may also require agencies to conduct some form of retrospective review of existing regulations.