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

handle is hein.journals/admreln19 and id is 1 raw text is: DMINISTRATIVE

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
- 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


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