New Executive Order on International Regulatory Cooperation

     Today President Obama issued an Executive Order on International Regulatory Cooperation.  The Order can be found here.

     The essential goal of the new Order is to focus agencies on the burdens created when US regulatory requirements diverge from those of other nations.  Such concerns require a delicate balancing act, reflected in the careful wording of the Order.  International consistency is a value, and varying requirements can burden the ability of US firms to compete internationally.  On the other hand, it is not the only value, and the US should not sacrifice either its autonomy or the regulatory protections it considers important to that goal.  In the words of the Order, the aim is “to reduce, eliminate, or prevent unnecessary differences in regulatory requirements.” Sec. 1 (emphasis added).

     International regulatory cooperation is a longstanding issue that is receiving renewed attention.  The Administrative Conference of the US issued a recommendation back in 1991.  ACUS revisited this topic last year; its 2011 Recommendation is here.  Among other things, the new recommendation proposed creation of “a high-level interagency working group of agency heads and other senior officials to provide government-wide leadership on, and to evaluate and promote, international regulatory cooperation.”

     The new Order pursues this approach, placing international regulatory cooperation on the agenda of the already extant Regulatory Working Group.  It also requires, in certain circumstances and with certain caveats, that executive agencies take account of regulatory approaches to the same problem adopted by foreign governments and, to the extent feasible, appropriate, and consistent with law, avoid unnecessary differences in regulatory requirements.  These responsibilities apply both in promulgating new regulations and in conducting retrospective review of existing ones.

     Cass Sunstein, OIRA Administrator and Regulatory Working Group chair, describes the order and places it in context in an op-ed in today’s Wall Street Journal.  He also has a post on OMB's blog.

     The Administrative Law and Regulatory Practice Section is working on a report and proposed resolution, largely consistent with the ACUS recommendation, that it hopes will be approved by the ABA House of Delegates at the ABA annual meeting in August.

UPDATE: David Zaring, chair of the Section's International Law Committee, has a brief, interesting post about the new order on The Conglomerate blog.

Executive Summaries for Rulemaking Preambles

Few documents are as daunting as a massive preamble in the Federal Register.  In other settings, huge documents are preceded by an Executive Summary.  Would that make regulatory preambles more understandable and accessible?  OIRA thinks so.

On January 4, Cass Sunstein, Administrator of the Office of Information and Regulatory Affairs, issued a memorandum to the heads of executive departments and agencies regarding executive summaries.  The key language of the brief memo states:

To promote public understanding and to ensure an "open exchange of information and perspectives," regulatory preambles for lengthy or complex rules (both proposed and final) should include straightforward executive summaries. These summaries should separately describe major provisions and policy choices. Such executive summaries should generally be placed at the start of regulatory preambles.

The full memo is available here.

The goal is to enhance public participation in rulemaking.  There's no question that such participation is deterred by the sheer bulk and unmanageability of regulatory preambles.  Many have suggested that subdividing proposals, for example, would allow potential commenters to see what is of interest and to focus on only the relevant portion of a larger proposal.  An executive summary seems a helpful, but very modest, step in the direction of enabling and promoting greater public participation.