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Regulatory Process, Regulatory Reform, and the Quality of Regulatory Impact Analysis

Regulatory Process, Regulatory Reform, and the Quality of Regulatory Impact Analysis

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Based on this analysis of recent experience, the authors conclude that it is likely that expanded use of advance notices of proposed rulemakings, formal public hearings, and requirements that agencies articulate a plan for retrospective review would produce higher-quality analysis and increase the use of analysis in decisions.
Based on this analysis of recent experience, the authors conclude that it is likely that expanded use of advance notices of proposed rulemakings, formal public hearings, and requirements that agencies articulate a plan for retrospective review would produce higher-quality analysis and increase the use of analysis in decisions.

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12/26/2013

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workingpaper
N. 13-13J 2013
RegulatoRy PRocess, RegulatoRy RefoRm, aNdthe Quality of RegulatoRy imPact aNalysis
by Jerry Ellig and Rosemarie Fike
The opinions expressed in this Working Paper are the authors’ and do not representofcial positions o the Mercatus Center or George Mason University.
 
About the Authors
Jerry ElligSenior Research FellowMercatus Center at George Mason University jellig@mercatus.gmu.eduRosemarie FikeDoctoral CandidateDepartment of EconomicsFlorida State Universityrfike@fsu.edu
Acknowledgments
The authors wish to thank Ted Bolema, Robin Bowen, Antony Davies, Randy Holcombe, Patrick McLaughlin, Thomas Stratmann, Richard Williams, and two anonymous reviewers for helpfulcomments on earlier drafts of this paper. We also thank Mark Adams for helpful discussions andresearch assistance, and Steve Rossi and Patrick McLaughlin for developing the word-count data.
Abstract
 Numerous regulatory reform proposals would require federal agencies to conduct more thoroughanalysis of proposed regulations or expand the resources and influence of the Office of Information and Regulatory Affairs (OIRA), which currently reviews executive branchregulations. We employ data on variation in current administrative procedures to assess the likelyeffects of proposed regulatory process reforms on the quality and use of regulatory impactanalysis (RIA). Many specific types of activity by agencies and OIRA are correlated with higher-quality analysis and greater use of analysis in decisions, and the effects are relatively large. Our results suggest that greater use of Advance Notices of Proposed Rulemakings for major regulations, formal hearings for important rules, articulation of retrospective review plans at thetime regulations are issued, and expansion of OIRA’s resources and role may improve thequality and use of RIAs.
 JEL
codes:
D61, D73, D78, H11, H83, K23, L51, P16
Keywords:
regulation, regulatory reform, regulatory process, benefit-cost analysis, cost-benefit,regulatory impact analysis, regulatory review
 
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Regulatory Process, Regulatory Reform, and the Quality of Regulatory Impact Analysis
Jerry Ellig and Rosemarie Fike
I. Introduction
Regulatory impact analysis (RIA) has become a key element of the regulatory process indeveloped and developing nations alike. A thorough RIA identifies the potential market failureor other systemic problem a regulation is intended to solve, develops a variety of alternativesolutions, and assesses the benefits and costs of those alternatives. Governments have outlinedRIA requirements in official documents, such as Executive Order 12866 (Clinton 1993) andOffice of Management and Budget Circular A-4 (2003) in the United States and the ImpactAssessment Guidelines in the European Union (European Commission 2009). More recently,President Obama’s Executive Order 13563 reaffirmed Executive Order 12866 and noted someadditional values agencies could consider, such as fairness and human dignity (Obama 2011).Yet all over the globe, evaluations of regulatory impact analysis have found thatgovernment agencies’ actual practice often falls far short of the principles outlined in scholarlyresearch and governments’ own directives to their regulatory agencies. “Checklist” scoringsystems reveal that many RIAs in the United States lack basic information, such as monetized benefits and meaningful alternatives (Hahn et al. 2000; Hahn and Dudley 2007; Fraas and Lutter 2011a; Shapiro and Morrall 2012). Similar analyses find that European Commission impactassessments have similar weaknesses (Renda 2006; Cecot et al. 2008; Hahn and Litan 2005). Casestudies often find that RIAs have significant deficiencies and little effect on decisions (Harringtonet al. 2009; Graham 2008; Morgenstern 1997; McGarity 1991; Fraas 1991). Some commentatorshave characterized individual RIAs as “litigation support documents” (Wagner 2009) or at leastdocuments drafted to justify decisions already made for other reasons (Dudley 2011, 126; Keohane

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