Institutional Roles and Goals for Retrospective Regulatory Analysis

Despite repeated calls for retrospective regulatory review by every President since the 1970s, progress on implementing such reviews has been slow. We argue that part of the explanation for the slow progress to date stems from misalignment between the goals of regulatory review and the institutional framework used for the review. We define three distinct goals of regulatory review – the rule relevance goal, the rule improvement goal, and the regulatory learning goal. We then examine the text of the Presidential Executive Orders and major Congressional legislation addressing retrospective review, and document which goals were targeted and which institutions were used to conduct the reviews. We find that the U.S. federal government has almost always sought review of one rule at a time, conducted by the agency that issued or promulgated the rule and that these reviews tend to focus on rule relevance and costs. This institutional framework for retrospective review – one rule, assessed by the promulgating agency, focused on relevance and cost – is only well-suited to a narrow interpretation of the rule improvement goal. We then review alternative institutional structures that could better meet the rule improvement goal and the broader regulatory learning goal across multiple rules and agencies, and we offer recommendations for developing new guidance and institutions to promote multiagency regulatory learning.