President Orders New Regulatory Strategy and Review, Includes Sharing of Enforcement Info, Etc.

Directs Agencies to Share Compliance/Enforcement Info, Make Some of It Public

In the first memorandum on regulatory compliance and enforcement, the President directs heads of executive departments and agencies to take the following actions:

Share compliance, enforcement info across agencies. The Federal Chief Information and Technology Officers, Director of the Office of Management and Budget (OMB), and counterparts in each agency, must work to explore how best to generate and share enforcement and compliance information across the Government, consistent with law. The memo states that Such data sharing can assist with agencies' risk-based approaches to enforcement, as a lack of compliance in one area by a regulated entity may indicate a need for examination and closer attention by another agency.

Make certain compliance info public. Within 120 days of the memo, agencies must also, to the extent feasible and permitted by law, develop plans to make public information concerning their regulatory compliance and make enforcement activities accessible, downloadable, and searchable online. In so doing, agencies should prioritize making accessible information that is most useful to the general public and should consider the use of new technologies to allow the public to have access to real-time data. The independent agencies are encouraged to comply with this directive.

According to the memo, this could include information on administrative inspections, examinations, reviews, warnings, citations, and revocations, excluding law enforcement or otherwise sensitive information about ongoing enforcement actions.

(The agencies must also work to make such data available online in searchable form, including on centralized platforms such as data.gov, in a manner that facilitates easy access, encourages cross-agency comparisons, and engages the public in new and creative ways of using the information.)

Tells Agencies to Consider Small Business Impacts, Justify When No Flexibility Given

In the memorandum on regulatory flexibility, small business, and job creation, the President directs heads of executive departments and agencies to give serious consideration to whether and how it is appropriate, consistent with law and regulatory objectives, to reduce regulatory burdens on small businesses, through increased flexibility. As the Regulatory Flexibility Act (RFA) already recognizes, such flexibility may take many forms, including:

• extended compliance dates that take into account the resources available to small entities;
• performance standards rather than design standards;
• simplification of reporting and compliance requirements (as, for example, through streamlined forms and electronic filing options);
• different requirements for large and small firms; and
• partial or total exemptions.

Must justify if small business flexibility not given. The President further directs that whenever an executive agency chooses, for reasons other than legal limitations, not to provide such flexibility in a proposed or final rule that is likely to have a significant economic impact on a substantial number of small entities, it should explicitly justify its decision not to do so in the explanation that accompanies that proposed or final rule.

EO Orders Review of Existing Regulations, Analysis of Costs and Benefits

New Executive Order 13563 is meant to supplement and reaffirm Executive Order 12866 of September 1993 by requiring Federal agencies to design cost-effective, evidence-based regulations that are compatible with economic growth, job creation, and competitiveness. According to the fact sheet and memo, the EO has the following guiding principles:

• Cost-effective and cost-justified. Consistent with law, agencies must consider costs and benefits of regulations and choose the least burdensome path.
• Transparent. The regulatory process must be transparent and include public participation, with an opportunity for the public to comment. Among other things, this means that agencies should, to the extent feasible and permitted by law, allow for a 60 day public comment period on proposed regulations.
• Reviewed. Existing regulations must be reviewed to determine that they are still necessary and crafted effectively to solve current problems. If they are outdated, they must be changed or repealed. Therefore, within 120 days of the EO, each agency must submit a preliminary plan, consistent with law and its resources and regulatory priorities, under which it will periodically review its existing significant regulations to determine whether any should be modified, streamlined, expanded, or repealed so as to make the agency's regulatory program more effective or less burdensome in achieving regulatory objectives.
• Coordinated and simplified. Agencies must attempt to coordinate, simplify, and harmonize regulations to reduce costs and promote certainty for businesses and the public.
• Flexible. Agencies must consider approaches that maintain freedom of choice and flexibility, including disclosure of relevant information to the public.
• Science-driven. Regulations must be guided by objective scientific evidence.

White House blog by Jack Lewis, Director of the OMB, dated 01/18/11, available here.

Federal Register notices (FR Pub 01/21/11) announcing these documents available here, here, and here.