Skepticism abounded when President Obama announced that federal agencies would conduct a ‘‘retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome and to modify, streamline, expand, or repeal them in accordance with what has been learned’’ (Executive Order 13563, ‘‘Improving Regulation and Regulatory Review’’ (January 18, 2011), particularly when an EPA spokesperson stated that the order formalized what EPA has been doing under the Obama Administration in its rulemakings (Statement of Betsaida Alcantara, EPA (January 18, 2011)). However, EPA has now announced that it is seeking public input on the “design of a plan to use for periodic retrospective review of its regulations” as an additional element in its effort to implement the review of rules that don’t measure up (Improving EPA Regulations, 76 Fed. Reg. 9988 (February 23, 2011)). EPA’s fact sheet makes it clear that comments should “include an explanation as to why you believe a regulation should be modified, streamlined, expanded, or repealed; provide data or other information that supports your explanation; and provide suggestions on how we can better achieve the regulatory program’s objective.” (EPA, Improving Our Regulations Through Periodic Retrospective Review, Fact Sheet (February 23, 2011)) (“Fact Sheet”). Comments should be sent to EPA before March 20, 2011.
Whether EPA staff is enthusiastic about this process or not, now is an opportune time for companies, trade associations, and others to submit to EPA their candidate “outmoded, ineffective, insufficient, or excessively burdensome” regulations and creative ideas on how to “modify, streamline, expand, or repeal them.” This is a no-lose proposition. Interestingly, on the same day that the Improving EPA Regulations notice was published, EPA issued final boiler and sewage sludge incinerator rules that modify significantly the regulatory requirements compared to the approach used in the proposed rules, which suggests a more thoughtful approach than evidenced previously. However, many observers remain skeptical that the Administration is likely to reverse or significantly modify many of its most recently promulgated regulations (particularly those involving climate change), which presumably EPA believed passed the test of good rulemaking. Additionally, EPA’s solicitation of comments on all rules may be construed as providing an opportunity to build an administrative record for a petition to reopen a rule.
In short, interested parties may want to consider what, if any, regulations they believe should be modified, streamlined, expanded, or repealed and submit a justification for modifying the regulatory action to EPA or one of the other federal agencies. In addition, this notice provides a broader opportunity to propose a new form of regulatory housekeeping (e.g., a regular five year rule review and, if legally supportable, a sunset provision). To apply Thomas Jefferson’s famous comment on the price of liberty to this situation, the price of economic liberty is everlasting vigilance concerning regulation.
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