Regulatory Studies Center

 Regulatory Policy Commentary

Retrospective Review: Do Agencies’ Proposals Measure Up?

Sofie E. Miller, Policy Analyst
April 21, 2014

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.

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?

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]

To evaluate whether proposed rules are “designed and written in ways that facilitate evaluation of their consequences,” we plan to measure them against the five criteria listed in the box to the right.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.”



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.  

Reg Stats

The Office of Information and Regulatory Affairs (OIRA) reviews draft proposed and final regulations to ensure they comply with the regulatory principles stated in Presidential Executive Orders and reflect the President’s policies and priorities. E.O. 12866 established a 90 day period for review, but authorized the rulemaking agency head to request, or the Office of Management and Budget (OMB) director to approve, extensions of review beyond 90 days (E.O. 12866 Section 6(b)(2)(c). Figure 1 below shows the average length of review for regulations concluded in each year.

At the request of the Assembly of the Administrative Conference of the United States, the GW Regulatory Studies Center makes these data on annual OIRA review times available here. 

Some additional statistics on aggregate regulatory activity over time (like the chart above) are presented on our Reg Stats page.

 In the News

A More Efficient and Effective Government: Improving the Regulatory Framework, Small Businesses for Sensible Regulations, citing Susan Dudley & Melinda Warren's report: Regulators' Budget, 03/11/2014

EU Congratulates Winners of 'Transatlantic Research & Debate Grant Program', 03/2014

Dust regulations trigger backlash: US agency’s reassessment of silica exposure rules provokes conflict-of-interest row with senators, Nature, quoting Susan Dudley, 3/4/2014

Study: Online Ad Value Spikes When Data is Used to Boost Relevance, by Howard Beales, 2/10/2014

Statistics on OIRA Regulatory Review, ACUS Administrative Fix Blog, by Susan Dudley, 1/30/2014

Controversial food safety rule shows why more transparency is needed at FDA, Washington Examiner, by Sofie Miller & Cassidy West, 1/19/2014

Shelanski Considering Changes in Agency Rulemaking Processes in Year Ahead, Bloomberg BNA, quoting Susan Dudley, 1/16/2014

Recent Research

Public Interest Comment on the National Labor Relations Board’s proposed rule: Representation Case Procedures, Sofie E. Miller, April 7, 2014

Public Interest Comment on the Environmental Protection Agency's Draft Supporting Materials for the Science Advisory Board Panel on the Role of Economy-Wide Modeling in U.S. EPA Analysis of Air Regulations, Joseph Cordes, April 5, 2014

Public Interest Comment on the Interagency Technical Support Document: Technical Update of the Social Cost of Carbon for Regulatory Impact Analysis under Executive Order No. 12866, Brian Mannix & Susan Dudley, February 26, 2014

Public Interest Comment on the Environmental Protection Agency’s Proposed Rule: 2014 Standards for the Renewable Fuel Standard Program, Sofie E. Miller, January 28, 2014

Does Regulation Kill Jobs? by Cary Coglianese (Editor) , Adam M. Finkel (Editor), Christopher Carrigan (Editor), Chapter 10:  “Employment and Human Welfare -- Why Does Benefit- Cost Analysis Seem Blind to Job Impacts?” contribution by Brian F. Mannix, January 2014

Making the Social Cost of Carbon More Social, Susan E. Dudley, Brian F. Mannix, & Sofie E. Miller in Regulation Magazine, Winter 2013-2014

Public Interest Comment on the Department of Energy’s Proposed Rule Energy Conservation Program: Energy Conservation Standards for Residential Furnace Fans, Sofie E. Miller, December 18, 2013

Public Interest Comment on The Commodity Futures Trading Commission’s Concept Release: Risk Controls and System Safeguards for Automated Trading, Brian F. Mannix, December 10, 2013

Public Interest Comment on the Occupational Safety and Health Administration’s Proposed Standards for Occupational Exposure to Respirable Crystalline Silica, Susan E. Dudley & Andrew P. Morriss, December 4, 2013

Public Interest Comment on the Securities and Exchange Commission's Proposed Rule: Pay Ratio Disclosure, Korok Ray, December 2, 2013

Read more research here.

Recent Commentaries

A Flash Judgment, Brian F. Mannix, April 14, 2014

Measuring the Impact of Public Comments, Steven J. Balla, April 7, 2014

Timeliness of OIRA Reviews: A Snapshot in Time, Cassidy B. West, April 1, 2014

Australia’s Regulatory “Bonfire”, Susan E. Dudley, March 24, 2014

Rulemaking Ossification Is Real: A Response to Testing the Ossification Thesis, Richard J. Pierce, Jr., GW Professor of Law, March 19, 2014

Informing the Debate over Regulation’s Impact on Jobs, Christopher Carrigan & Cary Coglianese

New Fuel Economy Standards Leave Poor Americans in the Dust, Sofie E. Miller, March 4, 2014

Why do politicians pursue regulatory reforms? Stuart Shapiro, February 24, 2014

IRS and SBA's Office of Advocacy Spar over Affordable Care Act ImplementationSofie E. Miller, February 18, 2014

Regulatory Reform: What's New in 2014?, Cassidy B. West, February 11, 2014

Looking Back and Looking Forward at Regulatory Activity, Susan E. Dudley, February 4, 2014

EPA Shouldn’t Miss Opportunity to Reduce Biodiesel Standards, Sofie E. Miller, January 27, 2014

Why Does Benefit-Cost Analysis Seem Blind to Job Impacts?, Brian F. Mannix, January 15, 2014

FDA Wisely Reconsiders Food Safety Rule, Sofie E. Miller & Cassidy B. West, January 2, 2014

Energy Efficiency Rules Harm Low-Income Consumers, Sofie E. Miller, December 23, 2013

Read more commentaries here.