Late last week, I sent a letter to Peter Orszag, Director of the White House Office of Management and Budget that, among other things, called on OMB to allow for public participation in the design of its new Executive Order governing federal regulatory review. I’m happy to see that OMB has decided to do just that, with its announcement in Thursday’s Federal Register that it would “invite public comments on how to improve the process and principles governing regulation.”
As OMB observes, the White House has no obligation to seek public comment on executive orders. The Federal Register notice says:
Executive Orders are not subject to notice and comment procedures, and as a general rule, public comment is not formally sought before they are issued. In this case, however, there has been an unusually high level of public interest, and because of the evident importance and fundamental nature of the relevant issues, the Director of OMB invites public comments on the principles and procedures governing regulatory review.
OMB is exactly right about that, and I congratulate Director Orszag for opening the process up for broader input, particularly in the absence of a formal requirement. It’s also a good and refreshing sign that OMB listened to the suggestion that they needed to solicit input, and then acted on it. It’s hard to imagine the Bush OMB doing the same.
The Executive Order that emerges from this process will set the rules of the road by which every major regulation to emerge from the federal government will be promulgated. So this will affect issues of health, safety, the environment and more. The Bush Administration created a system biased against protective regulations, and we’ve all paid the price for it with weakened protections. The new Executive Order needs to replace the Bush system with one that recognizes that the various regulatory agencies have a statutory obligation to regulate in their respective areas of expertise, and not set OIRA up as a barrier to much needed, and in many cases long overdue, protections.
OMB is about a quarter of the way through a 100-day consultation period with the heads of executive departments and agencies, gathering suggestions on the new Executive Order on regulatory review. I’m confident that the public input OMB will get will be an excellent complement to that, and just as confident that the comments from the public will offer a different and valuable perspective on how regulatory review ought to operate.
I’d offer two more thoughts about this process. First, the deadline for the public to submit comments on the new Executive Order on regulatory review is only 18 days away. That’s a short process, and it’ll probably limit the input that OMB will get. For their part, the Member Scholars of the Center for Progressive Reform won’t let the short timeline stand in the way.
Second, and related, while this initial comment period is a terrific step toward allowing public participation in the design of the new Executive Order on regulatory review, I still believe the comment period I recommended to Director Orszag in my letter last week is necessary. Once a draft of the new Order has been prepared, OMB should open the process up for at least 90 days of public comment on the draft. This is too big and too important an issue to do otherwise. While unusual for Executive Orders, a post-draft comment period is more than justified, as OMB’s notice in the Federal Register acknowledges.
Public comments for this pre-draft comments window can be sent electronically (email@example.com ) or by fax (202-395–7245). The deadline is March 16, 2009.
Rena Steinzor, Professor of Law, University of Maryland Carey School of Law. Bio.
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