The 'Modernizing Regulatory Review' Memo.

• Author: Ray, Paul J.

On the day he was inaugurated, President Biden issued to the heads of all executive departments and agencies a memorandum titled "Modernizing Regulatory Review." The document warrants both praise and criticism. On the one hand, it reinforces longstanding principles of rationality and accountability. On the other, it gives the Office of Information and Regulatory Review (OIRA) a role that the office cannot and should not play.

The good I First, the good news: The memorandum begins by "reaffirm[ing] the basic principles of" President Bill Clinton's Executive Order 12866. That order, which has been embraced by every subsequent administration, requires agencies to submit significant regulations to OIRA for review. That allows OIRA and other reviewing agencies to test the evidence and reasoning on which the regulations rely and to provide new data and perspectives. It promotes unity of action by resolving interagency disagreements on regulatory policy. And it allows appointees within the White House and at agencies to review regulations for consistency with the president's priorities, enhancing the democratic accountability of the regulatory process. By reaffirming EO 12866, President Biden contributes to the long-term consensus that has made OIRA review a fixed feature in an ever-changing regulatory landscape.

The memorandum also endorses the key regulatory principles found in EO 12866. These include a preference for performance standards over stifling design requirements and a mandate that regulations' benefits outweigh their costs. And while President Biden erred in revoking outgoing president Donald Trump's EO 13891 on good guidance practices, the memorandum does recognize the need for reform in this area, directing the Office of Management and Budget (OMB)--OIRA's parent agency--to "determine an appropriate approach with respect to the review of guidance documents."

The bad/ That's where the good news ends. Biden's memorandum also instructs OMB to "consider ways that OIRA can play a more proactive role in partnering with agencies to explore, promote, and undertake regulatory initiatives." OIRA is to become a kind of regulatory consultancy, identifying opportunities to regulate that the agencies themselves failed to find. It is unclear how OIRA's few dozen civil servants, who are already tasked with reviewing regulations across the federal government in addition to many other important roles, are to take on this expansive mission.

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