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“Unnecessary, Obsolete, or Excessively Burdensome” Regulations

Executive Order 13563, “Improving Regulations and Regulatory Review,” requires agencies to create a plan for ongoing review of significant regulations. Agencies are to revise sections “identified as unnecessary, obsolete, or excessively burdensome on providers and suppliers.” Under the order each agency was instructed to develop and submit plans for systematic and periodic review of their regulations to the Office of Information and Regulatory Affairs (OIRA), which is part of the Office of Management and Budget. (At the time, OIRA was under the leadership of law professor Cass Sunstein, under whose leadership OIRA had also launched the reginfo.gov portal, and who was sometimes tagged as the “regulations czar.”)

An example of rulemaking under the order can be seen in the Center for Medicare & Medicaid Services’ (CMS) proposed revision of several sections of the Code of Federal Regulations (78 FR 9216). CMS estimates that these revisions would annually save $654 million, with an additional one-time savings of $22 million.

One of the CMS proposed changes is to 42 CFR 482.28, “Condition of participation: Food and dietetic services.” CMS is proposing that “qualified dietitians” be allowed to order patient diets. The review of this section involved a survey of state practices, comments, and review of the literature. The survey found that many states interpret 42 CFR 482.28 as not allowing qualified dietitians to order patient diets because qualified dietitians are not “responsible for care of the patient.” Comments and the literature indicate that allowing a qualified dietitian to order patient diets is more effective and efficient. The proposed rule’s preliminary clarifies that “qualified” is not meant to be a specific title, but rather “to include all qualified dietitians, regardless of the modifying term (or lack thereof), as long as each qualified dietitian meets the requirements of his or her respective state laws.” (78 FR 9222, 3rd column) Text of current version 42 CFR 482.28, text of changes 78 FR 9242 2nd column.

Articles about Executive Order 13563:

  • Thomas A. Hemphill, The Obama Administration’s Regulatory Review Initiative: A 21st Century Federal Regulatory Initiative,? 117 Business and Society Review 185 (2012).
  • Melissa J. Luttrell, Bentham at the OMB: A Response to Professor Rowell, 64 Administrative Law Review 1013 (2012).
  • Arden Rowell, Partial Valuation in Cost-Benefit Analysis, 64 Administrative Law Review 723 (2012).
  • Yuka Umemoto Taylor, With Great Power Comes Clear Accountability: Presidential Influence Over the Ozone NAAQS Reconsideration, 42 Environmental Law Report News & Analysis 10978 (2012).

Other Agency activity under Executive Order 13563: