Transparency Withdrawn: A New Tactic for Shielding OIRA's Regulatory Review Activities?

Yesterday, the Environmental Protection Agency (EPA) announced that it was “withdrawing” from White House review its draft final guidance that sought to clarify the scope of the Clean Water Act. The guidance had been languishing at the Office of Information and Regulatory Affairs (OIRA), which oversees the White House regulatory review process, for 575 days, even though Executive Order 12866, the document that governs OIRA review of regulations, caps the length of reviews at 90 days plus a limited, one-time extension of 30 days. This is just the latest episode in what now appears to be a new disturbing trend: The Obama Administration seems to be increasingly relying on a relatively uncommon practice known as a “withdrawal” to unceremoniously dispose of long-overdue OIRA reviews involving important safeguards that are vigorously opposed by industry.

Over the last few months, several other industry-opposed rules have met a similar fate of being withdrawn after sitting at OIRA for well beyond the time limit permitted by Executive Order 12866:

·The National Highway Traffic Safety Administration’s (NHTSA) draft final rule mandating rearview cameras to prevent back-over accidents involving children: “Withdrawn” from regulatory review on June 20, 2013, after collecting dust at the OIRA for 583 days.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that would have merely identified a handful of potentially harmful chemicals as worthy of additional agency scrutiny: “Withdrawn” from OIRA review on September 6, 2013, after an astonishing delay of 1214 days.

·The EPA’s draft proposal to limit the chemical industry’s 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business information” claims to shield crucial health and safety data on their new chemicals from public disclosure: “Withdrawn” from OIRA review on September 6, 2013 after 620 days.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 “return letter,” sending the draft back to the agency for more work. At least, that’s the theory of how withdrawals work. In some cases, the circumstances suggest that OIRA or other White House officials have pressured the agency into withdrawing a rule.

The Executive Order does impose on OIRA important disclosure requirements that if followed, would help to bring needed transparency to the withdrawal process.  Under the Order, these obligations are very broad, requiring OIRA to “make available to the public all documents exchanged between OIRA and the agency during the review by OIRA.” (Emphasis mine.) 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 applauded current “Regulatory Czar” Howard Shelanski for publicly committing to clearing OIRA's docket of the many long-overdue rules pending there. But, I am now concerned that OIRA may be utilizing the withdrawal process for achieving this objective, in effect trading the goal of transparency for the goal of ending OIRA delay of several important safeguards.

This tradeoff is unnecessary. If these long-overdue delays are the result of fundamental flaws in the rule or because of policy disagreements over the rule’s substance, then OIRA should send the rule back to the agency for more work and use a return letter that explains these flaws or disagreements. And, if an agency decides to withdraw a rule, because OIRA refuses to approve it, then the agency should issue a brief statement summarizing the problems with the rule that prevented it from clearing OIRA review in a timely fashion. In addition, OIRA should also promptly comply with its disclosure requirements under the Executive Order soon after the agency decides to withdraw a rule. Together, these steps would help to discourage potential abuse of the withdrawal process and go a long way toward eliminating the appearance of abuse of the withdrawal process.

OIRA currently has several other long-overdue reviews involving rules that are opposed by industry, including the EPA’s draft proposed Toxic Substances Control Act (TSCA) reporting rule for nanoscale materials and the Mine Safety and Health Administration’s (MSHA) draft proposed rule mandating proximity detection systems for mobile machines in underground mines. We’ll be watching how these reviews are resolved and whether they are withdrawn. We will continue to document any noteworthy rules that are withdrawn on CPR’s Eye on OIRA webpage. Stay tuned.