Executive Order 13422, Part 3
The skinny on the new regulatory planning provisions
2 Feb 2007 in Regulatory Policy
Today we provide our third and last expected installment on Executive order 13422. In Part 1 we discussed the expansion of centralized regulatory review to guidance. We explained why the OMB staff historically has been hamstrung by this exclusion, and why regulatory agencies often prefer to issue guidance to circumvent both OMB review and the Administrative Procedure Act.
In Part 2, we addressed claims made by opponents of OMB oversight that the text on market failure represented a change in OMB's review criteria. We showed that the content of the new text wasn't itself new because market failure has been an explicit part of the review criteria since 1981.
In today's Part 3, we address the third new provision: the regulatory planning provisions in sections 4 and 6.
Section 4 changes the regulatory planning provisions of Executive order 12866. Below we compare the old and new texts side by side (leaving out the provisions that have not changed). Additions are noted with underlining; deletions with strikeout.
- The change in subsection 4(a) is editorial. It expands the domain of personnel the OMB Director may convene beyond the Advisers specified in section 3, but as a practical matter the Director always could invite any government personnel he wished.
- The change in paragraph 4(c)(1) is deregulatory and significantly reduces burden on agency heads. It replaces the agency head as the final agency official who signs off on the agency's Regulatory Plan, as required under Executive order 12866, with the Regulatory Policy Officer. The Regulatory Policy Officer is almost a certainly lower ranking official, thus relieving some of the administrative burdens on the agency head.
- The change in subparagraph 4(c)(1)(B) increases agencies regulatory planning obligations by requiring them to report estimates of the aggregate benefits and costs of regulations planned for the year. How much increase in analytic burden this imposes depends on whether the task is a clerical summation of estimates for individual rules (and now guidance) or it requires additional analytic effort. (OMB has a statutory basis for this request -- the Regulatory Right-to-Know Act, which requires it to report to Congress annually on the aggregate benefits and costs of federal regulations.)
None of these provisions appear to have elicited any controversy.
However, another change related to regulatory planning has drawn fire from opponents of presidential regulatory oversight. Section 5(b) limits the domain of officials eligible to be a Regulatory Policy Officer. Under Executive order 12866, any agency employee could be so designated, including GS-schedule civil servants and Senior Executive Service (SES) members. Under the amendment, only Presidential Appointees are eligible.
Previously we noted that Columbia University administrative law professor Peter Strauss interprets this provision darkly. Bloomberg's Skrzycki writes:
Congress should be paying attention to the president's action because he is usurping the authority the lawmakers gave the agencies to regulate, according to Peter Strauss, a professor at Columbia University law school.
"It's maybe not surprising that having lost control of the Congress, the president is doing what he can to increase control of the executive branch,'' Strauss said.
A former student says Strauss "not a Bush fan," so perhaps his error was caused by partisanship. That explanation gains credibility when placed in context with reporting by the New York Times' Robert Pear:
Rep. Henry Waxman, D-Calif., chairman of the Committee on Oversight and Government Reform, said: "The executive order allows the political staff at the White House to dictate decisions on health and safety issues, even if the government's own impartial experts disagree. This is a terrible way to govern, but great news for special interests.''
These reactions are hard to reconcile with the actual text. By requiring agency heads to name Presidential Appointees as Regulatory Policy Officers, the Executive order increases Congress' ability to conduct oversight. Presidential Appointees all (or nearly all) require confirmation by the Senate, and they are routinely asked to testify on Capitol Hill. On the other hand, GS schedule and SES civil servants can't be compelled to testify, except by subpoena.
If the president's intent was to usurp the powers of Congress, Executive order 13422 was badly written.
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Executive order 12866, [additions and |
Executive order 12866, [additions and |
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4(a) Early in each year's planning cycle, the |
4(a) The Director may convene a meeting of agency heads and other government personnel as appropriate to seek a common understanding of priorities and to coordinate regulatory efforts to be accomplished in the upcoming year. |
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4(c)(1) As part of the Unified Regulatory Agenda, beginning in 1994, each agency shall prepare a Regulatory Plan (Plan) of the most important significant regulatory actions that the agency reasonably expects to issue in proposed or final form in that fiscal year or thereafter. The Plan shall be approved personally by the agency head and shall contain at a minimum:
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4(c)(1) As part of the Unified Regulatory Agenda, beginning in 1994, each agency shall prepare a Regulatory Plan (Plan) of the most important significant regulatory actions that the agency reasonably expects to issue in proposed or final form in that fiscal year or thereafter. |
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4(c)(1)(B) summary of each planned significant regulatory action including, to the extent possible, alternatives to be considered and preliminary estimates of the anticipated costs and benefits; |
4(c)(1)(B) summary of each planned significant regulatory action including, to the extent possible, alternatives to be considered and preliminary estimates of the anticipated costs and benefits of each rule as well as the agency's best estimate of the combined aggregate costs and benefits of all its regulations planned for that calendar year to assist with the identification of priorities; |
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4(c)(1)(C) A summary of the legal basis for each such action, including whether any aspect of the action is required by statute or court order |
4(c)(1)(C) A summary of the legal basis for each such action, including whether any aspect of the action is required by statute or court order, and specific citation to such statute, order, or other legal authority. |
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6(a)(2) Within 60 days of the date of this Executive order. each agency head shall designate a Regulatory Policy Officer who shall report to the agency head. The Regulatory Policy Officer shall be involved at each stage of the regulatory process to foster the development of effective, innovative, and least burdensome regulations and to further the principles set forth in this Executive order. |
6(a)(2) Within 60 days of the date of this Executive order. each agency head shall designate |
| * Executive order 13258 removed all references to the Vice President and inserted in their place references to the Director [of the Office of Management and Budget]. | |
From Chris K on 25 July 2007, 05:30
EO 13422 was in the news today [1] and when searching for the source material I found your site. Thanks for the useful comparative analysis of the changes. Though in light of the recent refusal of Harriet Miers to follow a legal subpoena (at the request of the President):
"By requiring agency heads to name Presidential Appointees as Regulatory Policy Officers, the Executive order increases Congress' ability to conduct oversight. Presidential Appointees all (or nearly all) require confirmation by the Senate, and they are routinely asked to testify on Capitol Hill. On the other hand, GS schedule and SES civil servants can't be compelled to testify, except by subpoena."
That now seems no comfort whatsoever. And in light of the way the surgeon general has just complained [2], I think it only prudent to assume the Policy officer will be there to enforce ideology and be the point at which corrupt influence is implemented.
[1] http://www.ucsusa.org/news/press_release/tomorrows-senate-0048.html
[2] http://www.nytimes.com/2007/07/11/washington/11surgeon.html
From Richard Belzer on 25 July 2007, 08:00
Thanks for your comment, Chris.
There seems to be some residual confusion that I hope I can clarify.
Regulatory Policy Officers (RPOs) were established by President Clinton in 1993 through EO 12866. Historically, RPOs have been presidential appointees but EO 12866 does not require it. EO 13422 makes that requirement formal.
Presidential appointees to federal agencies are subject to advice and consent of the Senate. Lower-ranked political appointees are not. EO 13422 ends the practice (if in fact it ever existed) of designating a non-presidential agency appointee (or a senior civil servant) as the RPO.
Most White House political personnel are presidentially appointed but few are subject to Senate confirmation. Harriet Myers was Counsel to the President -- the president's lawyer. The counsel's job is not subject to Senate confirmation, and never was.
The validity of the congressional subpoena delivered to Myers is a legal question beyond my expertise, and it has nothing to do with the regulatory policy matters in EO 13422 or about which Neutral Source tries to contribute objectively. I am unaware of any recent precedent in which which a White House counsel has honored a congressional subpoena.
However, I am also unaware of any instance in which a Senate-confirmed presidential appointee refused to testify before Congress on a matter subject to its jurisdiction. So, the inference I made in my post stands: Congress is better equipped to conduct legitimate oversight when RPOs are presidential appointees (that is, subject to Senate confirmation) than when they are not.
-- Richard Belzer