September 18, 2013

Transparency Withdrawn: A New Tactic for Shielding OIRA’s Regulatory Review Activities?

Yesterday, the Environmental Protection Agency (EPA) Withdrawn” from regulatory review on June 20, 2013, after collecting dust at the OIRA for 583 days.

· The EPA’s draft proposed Chemicals of Concern list—an absurdly modest regulatory “action” that would have merely identified a handful of potentially harmful chemicals as worthy of additional agency scrutiny: “specious “confidential business information” claims to shield crucial health and safety data on their new chemicals from public disclosure: “Withdrawn” from OIRA review on September 6, 2013 after 620 days.

Before delving into why this apparent uptick in withdrawals is cause for concern, some background may be in order.   A “withdrawal” occurs when an agency voluntarily chooses to “withdraw” a draft proposed or final rule from the regulatory review process before OIRA, as the regulatory gatekeeper, has either formally approved the draft—clearing it for publication in the Federal Register—or denied it, through a “See for yourself at section 6(b)(4)(D).  Presumably, included in “all” these “documents” would be evidence of flaws or policy disagreements that led the agency to withdraw the rule. It would also shed some light on whether this withdrawal was in fact voluntary or under pressure from the White House—and thus just a return letter by another name.

Moreover, the Executive Order explicitly affirms that these disclosure requirements apply even when a review is terminated by a “withdrawal.” Section 6(b)(4)(D) states that OIRA must disclose all of those documents after the rule under review “has been published in the Federal Register or otherwise issued to the public, or after the agency has announced its decision not to publish or issue the regulatory action.” (Emphasis mine again.) That “after the agency has announced its decision not to publish or issue the regulatory action” language, of course, is just another way of saying that a rule has been withdrawn.

The problem is OIRA’s track record for complying with these disclosure requirements is very poor (among recently completed reviews, I can only find two rules for which OIRA has released some of the required documents: the EPA’s Tier III fuel standard and the EPA’s effluent limitation guidelines for power plants), and it is even worse for reviews that ended through a withdrawal. In fact, the dockets for all of the withdrawn rules listed above contain no documents relating to the OIRA review. It’s almost as if, despite the clear language of Executive Order 12866, OIRA views the withdrawal process as providing it with a free pass from its normal disclosure requirements.

At the time of his nomination hearing in June, I Eye on OIRA webpage. Stay tuned.

James Goodwin, Senior Policy Analyst, Center for Progressive Reform. Bio.

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1 James, Thanks for keeping this scorecard. It's terrific to know that you've been keeping track of the "withdrawn" rules. All of them involve important public health and safety issues. Your insight is spot on.
-- James Goodwin

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