Since President Obama called on Federal agencies in 2011 to initiate an unprecedented government-wide review of rules on the books, agencies have achieved significant results by streamlining, revising, and eliminating many existing regulations. The regulatory lookback effort to date has achieved an estimated $28 billion in net 5-year savings. Moreover, these efforts significantly benefit States, local and tribal governments, businesses, and the American people by making all levels of government more efficient and effective.
Today, agencies released the first of their biannual lookback reports for 2016. These reports identify more than 50 new retrospective initiatives that focus efforts on four key areas: (1) reducing burdens for State and local government; (2) reducing burdens for industry, with a focus on flexibility for small and new businesses; (3) regulatory modernization; and (4) identifying regulatory gaps. Below are some of the highlights of the progress that agencies are reporting:
Reducing burdens for State, local, and tribal governments
Many of the lookback initiatives in the reports will expedite processes and save State, local, and tribal governments valuable time and money. For example, the Environmental Protection Agency (EPA) has proposed to revise its Exceptional Events rule to clarify and streamline the requirements the rule imposes on State, local, and tribal air quality agencies when exceptional pollution events occur. “Exceptional events” are natural or manmade events that are unlikely to recur but that increase air pollution and make it harder to meet the National Ambient Air Quality Standards (NAAQS). Under the Clean Air Act, States and tribes are not held accountable for violations of the NAAQS that are attributable to an exceptional event. Currently, however, the burden often falls on the State or tribe to perform significant air modeling to prove that the exceptional event was in fact the reason for exceeding the NAAQS. EPA is proposing to reduce the potentially burdensome documentation and modeling requirement so that States and tribes would often need to show only that an exceptional event occurred at the same time as the NAAQS violation.
The lookback effort has also led to reforms in the interactions between the Federal government and tribal governments. The Department of the Interior’s Bureau of Indian Affairs (BIA) continues to promote the relationship between Indian tribes and the Federal government through revisions to regulations that recognize tribal self-determination and self-governance, promote economic development, and streamline and clarify approval processes. For example, revisions streamlining certain forms and requirements for Federal acknowledgement of Indian tribes reduce the amount of time the process has taken in the past while continuing to maintain the integrity of the process. These revisions reduce paperwork burden by roughly 6,400 hours. Moreover, to help bolster tribal sovereignty through economic development, BIA is working on updating and making less burdensome regulations to help increase tribal access to fiber optic technology, improve access to quality housing in Indian country, and protect the welfare of Indian children in custody proceedings.
Reducing regulatory burden for industry, with a focus on flexibility for small and new businesses
Agencies have made it an ongoing priority to reduce undue burdens for industry to promote private sector innovation. For example, the Federal Aviation Administration (FAA) is proposing to replace outdated requirements for certifying new small airplane types with performance-based standards for producers. The current standards are highly prescriptive and are based on airplane designs from the 1950s and 1960s, thus potentially hindering innovation in general aviation. The revisions will provide more flexibility to design compliant aircraft and reduce the burden associated with getting their new designs certificated. Other international regulatory authorities are engaging in similar reforms, which should result in a more internationally harmonized standard.
Promoting regulatory modernization
In addition, the Small Business Administration (SBA) is simplifying and reducing the administrative paperwork burden for applicants to its 8(a) Business Development (BD) Program, which is designed to enhance the business development of small businesses owned and controlled by socially and economically-disadvantaged individuals. Businesses that seek 8(a) certification are generally owned by low-income minority entrepreneurs, and compared to others, face difficulty competing in the market because it is harder for them to obtain loans. Historically, more than 2,000 entrepreneurs apply for the 8(a) BD Program every year, but more than 75 percent of these applications fail to move forward in the process due to incomplete applications. In an effort to address this, SBA is working to reduce the number of forms each applicant is required to submit while maintaining the integrity of the program.
Identifying areas with regulatory gaps
Working with the President's Council of Advisors on Science and Technology, the Food and Drug Administration (FDA) is exploring areas where regulatory action can improve hearing aid access and spur innovation and development. Of the 35 million people in the United States who could benefit from hearing aids, it is estimated that only 20 percent are using them. The FDA has reopened the public comment period on its draft guidance on the legal requirements under the Food, Drug, and Cosmetic Act, as applied to hearing aids and personal sound amplification products. In reopening the comment period, the FDA is interested in hearing from the public on such issues as the degree to which current FDA regulatory requirements may be acting as a barrier to hearing aid accessibility, affordability, and use.
Agencies have made good progress on institutionalizing the retrospective review of regulations, and this Administration is committed to making sure that the systematic review of regulations remains standard practice beyond January 2017. Moving forward, the Administration will continue to encourage Federal agencies to reevaluate regulations after set periods of time and even embed such requirements into the regulations themselves where appropriate. For instance, DOT and EPA’s fuel economy and greenhouse gas emission standards—established in 2012 for light duty vehicles from model years 2017 and later—include a commitment from EPA to conduct a comprehensive review of the standards for vehicles from model years 2022–2025 and from DOT to conduct a de novo rulemaking for those model years. Similarly, a National Oceanic and Atmospheric Administration rule renewing speed limits that were established to reduce collisions between large ships and endangered right whales required that data on the rule’s conservation value and economic impacts be re-evaluated within five years, along with a commitment in the regulatory text itself to modify or repeal aspects of the rule as appropriate.
Designing regulations that are meant to last many years is challenging in a dynamic world of evolving technology and changing circumstances. Institutionalizing the periodic review of existing regulations will promote a regulatory system better able to adapt to such changes, and therefore one that is more efficient and beneficial for our country.
Howard Shelanski is the Administrator of the Office of Information and Regulatory Affairs at the White House Office of Management and Budget.