Ageny Response to Public Regulatory Reform Nominations

December 20, 2002


MEMORANDUM FOR THE PRESIDENT'S MANAGEMENT COUNCIL

FROM:

John D. Graham /s/

SUBJECT: Agency Response to Public Regulatory Reform Nominations

On December 19, 2002, the Office of Management and Budget (OMB) submitted its annual report to Congress on the costs and benefits of Federal regulations entitled, “Stimulating Smarter Regulation.” An important component of this year’s report is OMB’s response to the statutory requirement to include recommendations for regulatory reform. In our March draft report, we requested public nominations of regulatory reforms. The public was encouraged to consider problematic paperwork and guidance document requirements, along with regulatory requirements.

In order to encourage broad public participation and to expand on the response to last year’s report, OMB also conducted outreach activities to a wide variety of groups. As a result, approximately 1,700 public comments were received nominating specific regulations and guidance documents for reform.

OIRA conducted a preliminary review of the public comments and identified 267 rules and 49 guidance documents nominated for reform by one or more commenters (excluded from consideration were comments that did not provide specific information on regulations or guidance documents). In our review of the 316 nominations, OIRA found that the rules and guidance documents fell into several categories. This review was based on information available to OIRA at the time the public nominations were processed.

The first category includes 92 rules and 12 guidance documents that are under agency consideration or were recently the subject of agency consideration. This category also includes nominations designated by OIRA in last year’s report as “high priority review” candidates. The second category includes 49 rules and two guidance documents that raised issues concerning independent agencies. The remaining 126 rules and 35 guidance documents make up a third category of nominations that OIRA is referring to agencies for their evaluation (they are listed in Tables 13 and 14 of the Final Report).

Unlike last year, we have not “ranked” the 316 public nominations and identified “high priority review” candidates. Instead, we have decided to evaluate the nominations through an agency-initiated process because (1) the large volume of nominations (316 this year compared to 71 last year) strains OIRA’s ability to develop an informed list of priority nominations for consideration by agencies and (2) giving agencies the task of evaluating the nominations will allow you to bring to bear on the candidates your extensive knowledge and resources, which will provide a basis for selecting reform priorities in consultation with OIRA. OIRA will continue to work with agencies on reform opportunities during the inter-agency consultation process.

Accordingly, OIRA is referring to the agencies all of the public nominations for their review. We are specifically requesting that the responsible agencies consider the nominations in the third category as potential candidates for reform. The public comments suggesting candidates for reform—and OIRA’s summaries of them—are available on the OMB website at http://www.whitehouse.gov/omb/inforeg/regpol-reports_congress.html. Attached for your convenience is a listing of the nominations, by category.

It is OIRA’s intention that this agency review of nominations be a merit-based process in which the consideration of nominations is objective, consistent, and grounded in the regulatory principles codified in Executive Order 12866 and the statutory authority of the agencies. In conducting this evaluation, we suggest that agencies rely on three criteria: efficiency, fairness, and practicality.

OIRA is asking that agencies complete their initial review of the nominations for which they are responsible by February 28, 2003. During these consultations, any rules and guidance documents that are under current or recent agency consideration will also be discussed. Where appropriate, OIRA may request agencies to report on their recent, ongoing, or future activities concerning the issue(s) raised by the public commenter(s). In cases where a final decision has not been made and agency activities are underway, OIRA may encourage agencies to consider the public comment and, where appropriate, place it in the rulemaking docket.

OIRA is also requesting that SBA’s Office of Advocacy review all of the public nominations and identify for agencies those that it thinks offer the potential to reduce unjustified regulatory burdens on small businesses. OIRA is requesting that SBA consult with OIRA to develop a process for addressing these issues.

OIRA staff will be contacting your staff to schedule meetings to discuss the public nominations. It is very important that your agency review the nominations so that these consultations are productive. Your staff may direct any questions regarding the development and analysis of your evaluations to the appropriate desk officer in OIRA.

Thank you for your cooperation and prompt attention.