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Thursday, April 26, 2007

OIRA Instructs Agencies to Comply with Regulatory Process Changes

Last night, the White House Office of Information and Regulatory Affairs (OIRA) issued a memo instructing agencies on how to implement President Bush's recent changes to the regulatory process. The memo was the first missive by newly minted OIRA administrator Susan Dudley.

On Jan. 18, the White House issued two documents changing aspects of the federal regulatory process and mandating agency guidance documents (memos, policy statements, etc) fall under OIRA review. If those documents were forms of guidance on guidance, yesterday's memo is guidance on the guidance on guidance.

Unfortunately, despite the plethora of guidance, many questions remain unanswered. For example, the E.O. states "no rulemaking shall commence" without the approval of agency Regulatory Policy Officers. OMB Watch has expressed concern this will allow RPOs to stifle regulations in their infancy because it is unclear when a rulemaking commences. Does a rulemaking commence when scientific testing on an issue begins, when a draft rule is published, or somewhere in between?

The memo fails to clarify this concern. It states: "As a general matter, a rulemaking commences when the agency has decided as an institutional matter that it will engage in a rulemaking."

Translation: A rulemaking commences when we say it commences.