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FEDERAL REGULATORY AGENDA TO BE COORDINATED AT ANNUAL POLICY MEETING

This article was originally published in The Tan Sheet

Executive Summary

FEDERAL REGULATORY AGENDA TO BE COORDINATED AT ANNUAL POLICY MEETING convened by the Vice President and attended by government agency heads and presidential and vice-presidential regulatory policy advisors under an executive order on regulatory review signed by President Clinton on Sept. 30. The meetings will be held "early in each year's planning cycle," and their purpose will be to "seek a common understanding of priorities and to coordinate regulatory efforts to be accomplished in the upcoming year," the executive order states. Annual policy meetings are one aspect of the planning mechanism established by the presidential document "to have an effective regulatory program, to provide for coordination of regulations, to maximize consultation and the resolution of potential conflicts at an early stage, to involve the public and its state, local and tribal officials in regulatory planning and to ensure that new or revised regulations promote the President's priorities and the principles set forth in this executive order." Other elements of the planning mechanism include preparation of a "Unified Regulatory Agenda" by each agency listing all regulations under development or review, and, by June 1, a "Regulatory Plan" listing "the most important significant regulatory actions that the agency reasonably expects to issue in proposed or final form that fiscal year or thereafter." By Oct. 30, the administrator of the Office of Management & Budget's Office of Information and Regulatory Affairs (OIRA) must convene a "Regulatory Working Group", composed of representatives of agency heads, regulatory policy advisors and the Vice President that will meet quarterly and "serve as a forum to assist agencies in identifying and analyzing important regulatory issues." The overall purpose of the executive order is to begin "a program to reform and make more efficient the regulatory process." The President's goals include reaffirming the primacy of federal agencies in the regulatory decision making process, restoring the integrity and legitimacy of regulatory review and oversight, and making the process more accessible and open to the public. Agency regulations that are not designated as "significant" will not require review by OIRA. Periodically, each agency will provide OIRA with a list of its planned regulatory actions, indicating those which the agency believes are significant regulatory actions as defined by the executive order. Those not designated as significant will not be subject to OIRA review unless, within 10 working days of receipt of the list, OIRA notifies the agency that a planned regulation is significant. The administrator of OIRA may opt to waive review of any planned regulatory action designated by the agency as significant. The executive order defines a significant regulatory action as one that would "have an annual effect on the economy of $ 100 mil. 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; create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this executive order." For actions that are subject to OIRA review, the executive order establishes a timetable for waiving review or notifying the agency in writing of the results of the review. For preliminary regulatory actions prior to a notice of proposed rulemaking, OIRA must respond within 10 working days of submission of the draft action; for other regulatory actions, OIRA has 90 calendar days. The review process may be extended once by no more than 30 calendar days upon the written approval of the OMB director and at the request of the agency head. The executive order provides that the regulation-issuing agency will identify for the public changes that were made between the draft regulation submitted to OIRA and the action subsequently announced and specify those changes made at the request of OIRA. The OMB office will also be governed by a series of disclosure requirements. Only the OIRA administrator or a designee will be permitted to receive oral communications initiated by persons not employed by the executive branch of the federal government regarding a regulatory action under OIRA review; all substantive communications between other OIRA personnel and the public will be provided to the issuing agency within 10 days and disclosed publicly; and OIRA will maintain a publicly available log that will include an indication of the status of all regulatory actions, "including if (and if so, when and by whom) vice- presidential and presidential consideration was requested." The executive order further provides that consideration by the Vice President and President of disagreements between or among agency heads or between OMB and any agency may only be initiated by the OMB director, the head of the issuing agency or the head of an agency "with a significant interest in the regulatory action at issue." The document adds: "Such review will not be undertaken at the request of other persons, entities or their agents." Furthermore, during the period of vice presidential or presidential review, communications with any person not employed by the federal government relating to the action under review directed to the regulatory policy advisors or their staffs or to the staff of the Vice President "must be in writing and must be forwarded by the recipient to the affected agency for inclusion in the public docket."
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