White House Power Grab by OMB Regulation

crossposted from unbossed

On January 18, 2007, the White House, via OMB, issued an executive order and "Final Bulletin for Agency Good Guidance Practices" that bear scrutiny.

Just as with everything they do, these regulations seem to fall into the category of what the Bush Administration says it is doing and what it really is doing. Things that seem plausible always have some stealth aspect.

So it is with that understanding I present for scrutiny new orders concerning federal agency regulation. Agency regulations are the sorts of mind-numbing, lengthy documents that it is easy to put off for another day. Agency regulations are also where the action happens. The Administrative Procedure Act is a federal law that governs the way agencies promulgate regulations and also sets out standards for federal court review of those regulations, among other things.

The new orders concern "guidance documents."

The term "guidance documents" generally refers to a wide range of materials used by agencies to clarify or articulate information or further explain regulatory requirements. Guidance documents can include compliance guides that explain how a regulation applies to an industry sector in sector-specific terms, supplemental materials that assist companies preparing applications for agency approval, and much more. Guidance documents are not subject to the procedural requirements that apply to rulemakings, such as the Administrative Procedure Act and Executive Order 12,866.

link

First Concern
The fact that the White House is taking action with regard to guidance documents and that  guidance documents are not covered by the APA should raise a red flag. It means the content of guidance documents covered by the new memos are not subject to due process in their promulgation and are not subject to court review.

You can find the two documents here and here.

My concerns are bolstered by the following change:

"Within 60 days of the date of this Executive order, each agency head shall designate one of the agency's Presidential Appointees to be its Regulatory Policy Officer, advise OMB of such designation, and annually update OMB on the status of this designation."

This forces the agencies to put a presidential appointee in charge of regulations, suggesting a power grab by the White House.

Some concerns with the content

I am certain there is a deep game going on here, and scrutiny by many eyes would be helpful. Here are a few things that jump out for me.

(1) Each agency shall identify in writing the specific market failure (such as externalities, market power, lack of information) or other specific problem that it intends to address (including, where applicable, the failures of public institutions) that warrant new agency action, as well as assess the significance of that problem, to enable assessment of whether any new regulation is warranted.

This provision raises a red flag for me in its emphasis on market issues. The right wing has long tried to get economic cost-benefit analyses in every government regulation and law. When a social policy law's legality depends on an economic cost-benefit analysis, it is likely to be struck down. Why?

Here are some reasons:

It is easy to quantify costs, for example, the costs to the employer of installing more safety equipment. But it is hard to quantify benefits to workers of not being killed or injured by their jobs. Recall that not everything that matters can be counted and what you can count may not matter.

The standard cost-benefit analysis does not include benefits to other employers or to the enconomy of improvements growing out of increased wokrplace health and safety. Technology-forcing regulations will make some employer somewhere wealthier. In addition, the employer installing the improvements may garner savings in health costs. But all this is often not included in what counts as benefits.

On the other side of the ledger, real costs to workers of lack of health or safety are not included. These include the impact on a family or community of the loss of a wage earner and the burden imposed on the family and society when a worker is injured and not on the job. Add to that emotional burdens - they aren't counted, but they sure do count when it is your loved one.

Ultra-conservatives have long tried to overturn laws passed by congress by marketizing them - ie by displacing Congress's standards with requirements of cost-benefit or other market standards.

Greater White House Involvement

The second provision I would draw your attention to is:

Sec. 9. Significant Guidance Documents. Each agency shall provide OIRA, at such times and in the manner specified by the Administrator of OIRA, with advance notification of any significant guidance documents. Each agency shall take such steps as are necessary for its Regulatory Policy Officer to ensure the agency's compliance with the requirements of this section. Upon the request of the Administrator, for each matter identified as, or determined by the Administrator to be, a significant guidance document, the issuing agency shall provide to OIRA the content of the draft guidance document, together with a brief explanation of the need for the guidance document and how it will meet that need. The OIRA Administrator shall notify the agency when additional consultation will be required before the issuance of the significant guidance document."

Recall that these are documents that are not reviewable by the courts and that do not need to comly with the APA in their promulgation.  One wonders what the sanctions will be for failure to comply. One wonders what the impact will be on agencies that have been special targets of the administration when they are considering action in these areas.

I am open to suggestions as to ways you would read these documents.

Must reads

You can find a critique of an early version of the documents at OMB Watch. Its analysis of this new executive order may be found here.

These are must-reads to understand what the Bush Administration seems to be doing here.

•  Play along

  and identify the power grabs you see here.

  by shirah on Wed Jan 31, 2007 at 08:31:48 AM PDT

•  Business groups hail the initiative

  That according to the
  New York Times story on this issue which may be found here.

  by shirah on Wed Jan 31, 2007 at 12:56:09 PM PDT