Lesson 5: Considerations During the Process

Topic 2: Regulatory Review (Executive Order 12866)

In this topic, you’ll learn about Executive Order 12866 and how it affects the U.S. regulatory process.

Objective:

  • Describe how and why Executive Order 12866 allows the Executive Office of the President of the United States to review regulations

As discussed earlier, in the United States, rulemaking agencies are considered part of the executive branch of the U.S. government and ultimately report to the President of the United States. Although Congress has charged the Secretary of Agriculture with carrying out the duties described in the Animal Health Protection Act and Plant Protection Act, the President maintains supervision over the rulemaking process. This supervision ensures that rules promulgated by one agency are consistent with rules promulgated by other agencies on similar topics, and that the overall slate of rules published is in line with Presidential priorities.

Executive Order 12866 describes how this supervision works. Briefly, the Executive Order requires agencies to submit a list of planned regulations at times specified by the Office of Management and Budget (OMB), a part of the Executive Office of the President. OMB reviews the planned regulations to determine whether the rules are “significant” or “not significant”.

All rules are significant to someone, or they would not be promulgated. The Executive Order’s definition of a “significant” rule is very specific. According to the Executive Order, a “significant” rule would:

  1. “Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;
  2. Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
  3. Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
  4. Raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth in Executive Order 12866.”

Executive Order 12866.

“Significant” rules are subject to further OMB review after they have been developed within the agency, while “not significant” rules do not have to go through this step. The Executive Order states that OMB review should take no more than 90 days, although a 30-day extension may be requested. For APHIS, a designation of “significant” also adds additional steps within USDA before a rule can go to OMB for review. Obviously, the extra scrutiny given to a “significant” rule can greatly add to the time it takes to promulgate a rule.

You might recall the discussion of notice-based processes from earlier in this module. Unlike rules, notices are not subject to a designation from OMB under the Executive Order. This is one of the reasons APHIS has been able to publish notices more quickly than similar rules.

In this topic, you learned about Executive Order 12866 and how it affects the U.S. regulatory process.

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