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Date: July 27, 2007 -


The Bush administration is facing new questions from key Democratic lawmakers over its process for developing and reviewing EPA and other agencies’ regulations, which critics charge is delayed by “excessive” political oversight.


Several Democratic senators, including presidential contender Sen. Barack Obama (D-IL), are seeking assurances from former Rep. Jim Nussle (R-IA), the new nominee to head the White House Office of Management & Budget (OMB), that he will ensure transparency in OMB review of EPA and others agencies’ proposed rules and guidance documents.


At the same time, Rep. Henry Waxman (D-CA), chairman of the House Oversight and Governmental Affairs Committee, is asking the Government Accountability Office (GAO) to investigate the effect OMB review procedures have on the timeliness of agency actions. Relevant documents are available on


The questioning underscores Democratic lawmakers’ concern over Executive Order (E.O.) 13422, which increases OMB’s oversight power over federal regulatory activities. An amendment to block funding to implement the order, backed by Rep. Brad Miller (D-NC), was added to the Financial Services and General Government appropriations bill before it passed the House last month. A similar provision was struck from the same bill during a Senate markup July 12.


E.O. 13422, issued in January, amends the Clinton-era E.O. 12866, which in 1993 gave OMB’s Office of Information and Regulatory Affairs (OIRA) federal regulatory review responsibility. The new order gives OIRA the power to review some agency guidance documents as well as proposed rulemakings, and emphasizes that agencies should justify proposed rules by referring to the so-called market failure the proposal is intended to address. Watchdog groups and congressional critics have said the order provides an avenue for behind-the-scenes deregulation that is not open to public scrutiny.


At a July 24 Senate Homeland Security & Government Affairs Committee hearing, Sen. Carl Levin (D-MI) asked Nussle how he planned to oversee OIRA’s regulatory review process. After the hearing Obama submitted written questions asking Nussle to explain his plan to protect the rulemaking process from “excessive politicization.”


During the July 24 hearing, Levin said OIRA has circumvented proper procedure “by establishing a process of informally reviewing agency proposed rules before the proposed rule is formally presented to OIRA. Changes that are made because of these informal reviews are not disclosed to the public, although the executive order does not make a distinction between changes based on formal presentation or informal presentations by an agency to OIRA.”


Nussle responded by saying, “I’d be happy to work with you, but to jump into the middle of legal interpretation now would be a challenge for me.” He added, “I’ve been made aware this is an area of concern, [but] since I’m not in the job yet I can just say I’ll take a look at it.”


Even as the Senate is questioning Nussle, Waxman wrote a letter July 13 requesting a GAO report on the effect that federal agencies’ interactions with OIRA have on the timeliness of rulemakings.


“Agencies must issue strong and effective rules in a timely manner to carry out congressional directives and respond to pressing problems,” Waxman says in his letter. “It would be problematic if the numerous layers of analysis and review were playing a role in delaying and weakening agency rules.” He points specifically to EPA’s long-delayed update of its air quality standard for particulate matter, which he notes “raise[s] questions about how the complexity of the regulatory process and OMB’s role in the process may be affecting the timing and outcome of agency rules.”


Waxman also asks GAO to examine how open to scrutiny OIRA review procedures are for Congress and the public. “The increasing lack of transparency in these interactions between agencies and OIRA enhance the need for a GAO evaluation of this process,” the letter says. It does not give GAO a deadline for completing the report.





Source: Inside EPA via

Date: July 27, 2007

Issue: Vol. 28, No. 30

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