Cross-Cutting Regulatory Analysis Requirements

The current set of regulatory analytical requirements has been established incrementally during the last 40 to 50 years through a series of presidential and congressional initiatives, including statutes, executive orders, circulars, and other documents. However, Section 6(a)(3)(C) of the executive order states that, for each "economically significant" regulatory action, agencies are to also provide to OIRA (unless prohibited by law): 
(i) An assessment, including the underlying analysis, of benefits anticipated from the regulatory action (such as, but not limited to, the promotion of the efficient functioning of the economy and private markets, the enhancement of health and safety, the protection of the natural environment, and the elimination or reduction of discrimination or bias) together with, to the extent feasible, a quantification of those benefits; 
(ii) An assessment, including the underlying analysis, of costs anticipated from the regulatory action (such as, but not limited to, the direct cost both to the government in administering the regulation and to businesses and others in complying with the regulation, and any adverse effects on the efficient functioning of the economy, private markets (including productivity, employment, and competitiveness), health, safety, and the natural environment), together with, to the extent feasible, a quantification of those costs; and 
(iii) An assessment, including the underlying analysis, of costs and benefits of potentially effective and reasonably feasible alternatives to the planned regulation, identified by the agencies or the public (including improving the current regulation and reasonably viable nonregulatory actions), and an explanation why the planned regulatory action is preferable to the identified potential alternatives. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) of 1980 (5 U.S.C. However, these analytical requirements are not triggered if the head of the issuing agency certifies that the proposed rule would not have a "significant economic impact on a substantial number of small entities." Coverage of Analytical Requirements Varies

As the above discussion indicates, the cross-cutting executive order and statutory analytical requirements vary substantially in terms of the types and amount of analysis required, and the agencies and rules that they cover:
Executive Order 12866 and OMB Circular A-4 contain the most detailed requirements, and cover all rules with a $100 million annual "effect on the economy," but the executive order and the circular do not apply to independent regulatory agencies. Analytical Requirements Applicable to Selected Independent Regulatory Agencies

Although independent regulatory agencies are not covered by the analytical requirements in Executive Order 12866 and OMB Circular A-4, that lack of coverage may be ameliorated if the individual statutes that provide rulemaking authority to these agencies require cost-benefit or other types of economic analysis. Prior to the Dodd Frank Act, OCC was not considered an independent regulatory agency and therefore was subject to Executive Order 12866 and OMB Circular A-4, as well as the Unfunded Mandates Reform Act. Seventeen of these 23 rules included some information on the associated costs and benefits. Regulatory Reform Legislation in the 113th Congress

A number of bills have been introduced in the 113 th Congress that would codify, expand, or otherwise modify existing requirements for cost-benefit or other types of regulatory impact analysis. Congressional Options

Congress could decide to keep the existing analytical framework in place. Another, more comprehensive approach could be to consolidate all of the analytical requirements in one place, and perhaps expand those requirements to include more agencies or more rules, or to require different types of analysis for the rules that are covered.
Regulatory analytical requirements (e.g., cost-benefit and cost-effectiveness analysis) have been established incrementally during the last 40 to 50 years through a series of presidential and congressional initiatives. The current set of requirements includes Executive Order 12866 and Office of Management and Budget (OMB) Circular A-4, the Regulatory Flexibility Act (RFA), and the Unfunded Mandates Reform Act (UMRA). These requirements vary in terms of the agencies and rules they cover, and the types of analyses that are required. For example, a regulatory analysis under the Regulatory Flexibility Act is not required if the agency head certifies that the rule will not have a "significant economic impact on a substantial number of small entities."
The most extensive and broadly applicable of the requirements are in Executive Order 12866 and OMB Circular A-4, but they do not apply to independent regulatory agencies. The statutes that provide rulemaking authority to independent regulatory agencies often require them to "consider" regulatory costs and benefits, and they often have less explicit requirements for cost-benefit analysis, if any. An OMB report indicated that independent regulatory agencies provided some information and costs and benefits in 76 of the 118 major rules they issued from FY2003 to FY2012. Cabinet departments and other agencies estimated monetary costs and benefits for some, but not all, of their rules.
Several bills have been introduced in the 113th Congress that would codify and/or expand the current requirements for cost-benefit analysis. Congress could decide to keep the existing analytical framework in place, or could enact one or more of these reform proposals. Another more comprehensive approach could be to consolidate all of the analytical requirements in one place, and perhaps expand those requirements to include more agencies or rules, or to require different types of analysis. To do so, or to simply cover independent regulatory agencies by the executive order, the President could arguably amend Executive Order 12866 and OMB Circular A-4, or Congress could enact legislation. Any such changes must be cognizant of the state of existing law and practice in this area, and the resources and data required for agencies to carry out the analyses.