White House Now Not Sure it is Interested at All in Public's Ideas for Strengthening Existing Rules

by Ben Somberg

July 18, 2012

The White House’s message on its program for retrospectively reviewing existing regulations just shifted a little further away from recognizing the need for protective regulations for health, safety, and the environment. First the White House said it was interested in "expanding" certain existing regulations, if appropriate. Then it said it was interested in hearing ideas from the public on expanding regulations, but officially considers those ideas to be a lower priority than ideas that would weaken regulations. Now today, a new website launched by the White House pushes the notion of any balance in regulatory review further off the table.

Let me step back. Executive Order 13,563, issued by President Obama in January of 2011, announced the regulatory look-back program we’ve discussed a lot here:

To facilitate the periodic review of existing significant regulations, agencies shall consider how best to promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.

A key word there was expand. If agencies were to divert some of their current staff from working on needed new public protections to re-evaluate existing ones (the White House has never sought, let alone received, any new funding for the look-back programs at the agencies), at least it might, in theory, be a somewhat balanced exercise that could identify needed expansions to existing rules. Cass Sunstein, the Administrator of OIRA, has himself publicly noted the importance of the word “expand.” The process, we hoped, might not be simply weakening existing rules.

Those hopes receded in May of this year, when the President issued a new executive order on “Identifying and Reducing Regulatory Burdens.” That order told the agencies to solicit public comment on existing regulations to be re-examined. It quoted the “expand[ed]” language from EO 13,563. But as Rena Steinzor wrote here at the time,

Yet the order explicitly says that agencies are to prioritize “those initiatives that will produce significant quantifiable monetary savings or significant quantifiable reductions in paperwork burdens.” The White House is saying agencies should take all the public comment – but prioritize the de-regulation ideas.

The notion of “expanding” existing regulations in the look-back was being whittled away. Michael Livermore and Jason Schwartz, of the Institute for Policy Integrity, argued that the look-back program was in practice “focusing almost exclusively on cutting costs.” They strongly supported regulatory look-back in principle, but said that the May executive order was “institutionalizing this unbalanced practice of retrospective review.”

Indeed, the process has not been balanced: the plans from the agencies include some reasonable updating of reporting requirements, some weakening of rules, but few hints of strengthening rules. And the process takes away resources from developing needed new protections.

The Administration’s position since May is awkward: agencies should accept comments on strengthening existing rules, but they are officially to be considered a lower priority than comments that suggest ways to weaken those rules.

Today the White House took the next step. This morning, it put up a new webpage for the public to submit ideas for changes to existing regulations. The site says:

How can we continue to streamline, simplify, and improve rules and regulations? Which rules should be eliminated, streamlined, or made more effective? How can we reduce reporting and paperwork burdens? What are the best ways to cut regulatory costs? We’re looking for your ideas.

There’s a single mention of “improve” in there, and the site gives a nod to making rules “more effective,” but these concepts are far more vague than “expand,” which is nowhere to be seen.

In the right column of the page, where visitors are invited to submit ideas, the prompt is simply: “How can the federal government streamline, simplify or eliminate federal regulations to help businesses and individuals?” Can’t we at least submit comments on strengthening rules, even if they are to be lower priority? No?

In the accompanying video, Sunstein speaks only of weakening rules, not strengthening them. (He repeats the right-wing claim that an EPA rule on milk spills at farms, now revised, was going to cost small business “tens of millions of dollars;” in reality the rule had never been enforced in such a manner, and EPA had pledged it never had plans to do so.)

In the accompanying blog post, Sunstein does say he’s interested in ideas to “improve” rules or make them “more effective.” The “expand” language is nowhere. I think we get the message.

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