Executive Order 13422

Original Text

Effective Dates
1/18/2007 - 1/30/2009

Reform Goals
President Bush’s executive order amended EO 12866 to require executive agencies not only to submit rules to OIRA for review, but also any new “guidance documents”, which are used by agencies to advise the public on how to comply with a rule. Guidance documents had previously not been subject to any oversight, even though they can have significant impacts on regulatory compliance costs.

Requirements (What of whom?)
Like EO 12866, EO 13422 exempted independent regulatory agencies. The requirements are consistent with EO 12866 and extend them to cover guidance documents. The order also added a few new requirements, including 1) agencies must identify in writing the specific market failure or problem that warrants a new regulation, (2) every agency head must designate a presidential appointee within the agency as a “regulatory policy officer” who can control upcoming rulemaking activity in that agency, and (3) agencies must provide their best estimates of the cumulative regulatory costs and benefits of forthcoming rules.

Oversight for rule compliance
OIRA was granted the jurisdiction to review guidance documents, which are defined as agency statements which set forth a policy on a statutory, regulatory, or technical issue or an interpretation of a statutory or regulatory issue, and which have an annual effect of $100 million or other serious effect, create regulatory inconsistencies, alter budgetary impacts, or raise novel legal or policy issues. 

Reform “Teeth”
Regulatory policy officers were given authority to veto regulation inconsistent with presidential objectives. The order states that “[u]nless specifically authorized by the head of the agency, no rule making shall commence nor be included on the Plan without the approval of the agency’s Regulatory Policy Office.” This language accords an enormous amount of power to regulatory policy officers, and by proxy, the President. Regarding guidance documents, consistent with EO 12866, OIRA could “send back” guidance documents inconsistent with the President’s priorities or which conflicted with existing regulations. This delays but does not prevent the eventual implementation of the guidance documents.

Outcomes
The order was revoked by President Obama’s EO 13497 in 2009. [1]

Commentary
As guidance documents (colloquially known in the regulatory academic community as “regulatory dark matter”) often define specific compliance standards for rule compliance, and EO 13422 temporarily closed a major loophole for monitoring this regulatory burden. An ironic twist in the history of regulatory reform, one of the best practical improvements was also to be among the most short-lived.

References

  1. Federal Register Vol. 74, No. 22 "Revocation of Certain Executive Orders Concerning Regulatory Planning and Review, Executive Order 13497 of January 30, 2009."  February 4, 2009 Link , PDF