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19 Admin. & Reg. L. News 1 (1993-1994)

handle is hein.journals/admreln19 and id is 1 raw text is: DMINISTRATIVE r LAW NEWSV1I Regulatory Review in the Clinton Administratipn by John F. Cooney* As this issue of the Administrative Law News goes to press, President Clinton is prepared to issue an Executive Order defining how his White House will conduct regulatory reviews. After a long germina- tion period, the terms of the Order have been settled. The only remaining question is whether the Order will be issued as part of the National Performance Review (NPR), as the Vice President prefers, or as a freestanding document. The most interesting as- pects of the Order concern the Vice President, both with respect to his likely impact on regulatory deci- sions in this Administration and, in an institutional context, as a landmark in the development of a potentially new constitutional role for the Vice Presi- dent as chief operating officer of the Executive Branch. The Executive Order The Executive Order is intended to settle the longstanding dispute, that arose under President Reagan and continued with greater intensity under President Bush, between Congress and the Execu- tive about the legitimacy of White House review and the procedures under which it will be conducted. The Order is long and reflects the excruciating nego- tiation that produced it. The clear and succinct policy directives in Reagan's Executive Order 12291 are replaced by a detailed document that resembles a legislative compromise. For example, the Reagan Order revolved around six simple regulatory prin- ciples that provided explicit guidance to the agen- cies about what his White House would accept. The Clinton Administration's principles cover almost two pages, and many of the policies work in op- position to each other. At the same time, the In TI Order represents a signifi- Chair's Message ............ cant political achievement Fall Meeting Schedule. by OIRA Administrator Supreme Court News.. Sally Katzen, who man- The Other Chevron Do( aged to deflect consider- News from the States... 1993-94 Section Direct, *Venable, Baetjer, Howard & Recent Articles of Inter Civiletti, Washington, D.C. able pressures to scuttle or neuter the regulatory review process. At the end of the negotiations, she obtained consensus to include among the President's regulatory principles critical provisions requiring that rules be cost efficient, and that the benefits of proposed regulatory actions exceed the costs. Procedures Governing Regulatory Review The Executive Order essentially follows the com- promise negotiated by the Bush Administration in 1990, but blocked in the Senate by conservative supporters of the review process. The principal differ- ence is that the Order institutionalizes the role of the Vice President, and shifts from OMB's Office of Information and Regulatory Affairs to the Vice Presi- dent ultimate authority for energizing the process and insuring compliance with the Order. * OIRA review of agency rules will be selective, rather than comprehensive. Agencies initially will identify the rules they believe are significant and should be submitted for review. OIRA will, how- ever, have the right to require submission of rules not specified by the agencies. • OIRA review will be subject to a time limit of 90 days. If the matter is appealed, the Order imposes a second 60-day limit on White House review. • As under the current system, all documents received by OIRA from persons outside the Execu- tive Branch will be made public, and the rulemaking agency will be invited to attend all meetings be- tween OIRA and persons outside the Executive Branch. - OIRA periodically will make public a log of all rules under review, Issue voluntarily surrendering .2 the White House victory .3 in Wolfe v. HHS, 839 F.2d ........................................ 4 768 (D.C . Cir. 1988)(en tne ...............6 banc), that upheld an ..............*.......................... 7 FOIA denial on the basis .........Pull Out of the deliberative pro- .......................................9 cess privilege. OIRA (continued on page 11) Copyright © 1993 American Bar Association 11, ctri ory 'est Produced by the ABA Press

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