Updated below (3/17/09)

OMB Director Peter Orszag announced in a Federal Register notice last week that his office is interested in hearing your views on the federal regulatory process.  The Request for Comments on new Executive Order on Federal Regulatory Review comes 4-weeks after President Obama’s January 30 memorandum to department and agency heads (previous post here) announcing his plan to issue a new E.O., noting “…the principles governing regulation in general—should be revisited.”  You better hurry if you want to share your views with OMB on a new E.O.; the comment period ends March 16.

OMB’s request for comments repeats the topics listed in the President’s memo, including the “role of role of cost-benefit analysis,” “role of distributional considerations, fairness, and concern for the interests of future generations,” and “role of behavioral sciences in formulating regulatory policy.”  These obviously are big-picture issues of interest to the new Administration, but that’s not going to hinder me from offering suggestions on other rulemaking related matters.  My pet peeve, for example, is MSHA’s rulemaking docket.  Can the public PLEASE have electronic access to ALL the materials used by the Agency to develop its proposed and final rules?   Your sister agency OSHA manages to post supporting and supplemental documents at Regs.gov, why can’t you?  Better yet, post them on MSHA’s website along with the public comments.

Setting aside what I’ll be writing in my comments to OMB, recall that the President first asked the OMB Director to consult with “representatives of regulatory agencies, as appropriate” and produce a set of recommendations for a new E.O. within 100 days.  That’s a pretty short timeframe given that next-to-none of the top regulatory officials for our health, safety and environmental agencies have been confirmed by the Senate.  In fact, when I check the White House’s Nominations & Appointments webpage, I see very few names yet announced—not a single “assistant secretary” or “assistant administrator” in the bunch.  [Something is wierd though about this site—I’m noticing that it is not current.  For Hilda Solis it says “Senate Confirmation Date TBD.”]   

Without these key regulatory decision-makers in place, I hope OMB officials are complying with the President’s directive to “consult with representatives of regulatory agencies,” by meeting with career staff.  These are the inviduals who truly know the regulatory system inside out.  If asked, I imagine OMB officials will get an earful on how, over the last 8 years, OMB’s circulars, memorandums, directives, notices and other forms of interference distracted career employees from their core regulatory (statutorily-mandated) work.

Likewise, without the Presidential-appointed regulators in place, OMB’s request for public input on the content of a new E.O. is a wise first move.  Individuals and interest groups committed to progressive health-protective regulations can offer valuable insight on how the current regualtory review process can be improved.  The Center for Progressive Reform, for example, has already made several recommendations to the OMB director.  These include:

• Redefining the role of the Office of Information and Regulatory Affairs (OIRA) chief to one who supports public health and safety agencies by advocating for “adequate resources to fulfill their statutory mandates, helping them develop strong, proactive agendas, and ensuring they receive enhanced legal authority”; and
•  Rejecting a rigid commitment to traditional cost-benefit analysis because it fails us in real-world health and safety decision-making.

As I’ve written before, it is much easier to calculate the COSTS to an industry of a health protective regulation (companies, in fact, will throw all kinds of over-inflated cost estimates at agencies when a rule has been proposed) but the BENEFITS to the individual, families, communities and society are much harder to quantify. 

• What is the monetary value of being able to pick-up your grandchild because you DON’T suffer a work-related disabling back injury? 
• What is the monetary value of being able to complete a college degree because you DON’T instead have to work to support and care for your PTSD-suffering mother who witnessed a co-worker’s death at work?  
• Etc., etc., etc.

In the real U.S. regulatory world, traditional cost-benefit analyses fail as a decision-making tool.

As I mention above, you only have until March 16 to submit your recommendations to OMB on the federal regulatory review process.  All comments will be posted on OMB’s website (maybe here?).   A larger issue is already emerging: will OMB allow the public to comment on the draft E.O.?   Professor Rena Steinzor recommends on the CPRBlog, that OMB should also plan a 90-day public comment period on it.  She writes:

“This is too big and too important an issue to do otherwise.”

OMB Director Orszag’s Feb. 26 Federal Register notice reminded us that E.O. are generally not subject to public notice and comment.  He acknowledged, however “…there has been an unusually high level of public interest” in the regulatory review process, and decided to allow the public to provide input on the broad topics outlined originally in the President’s memorandum. 

Orszag does give us a hint about whether the E.O. itself will be subject to public comment.  That may be a decision left to President Obama.

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Updated 3/17/09:  OMB announced today an extension of the comment period until March 31, 2009.