Politics cited in regulatory delays

A new government report points to election-year politics as a factor in the delays of major regulations during the latter years of President Obama’s first term, and finds that White House reviews of proposed agency rules only got longer in the first half of this year.

The study follows an analysis by the Administrative Conference of the United States (ACUS), an independent federal agency charged with monitoring the government’s rule-making process.

The ACUS findings, first reported by The Washington Post, corroborate views held by watchdog groups and some congressional Democrats, who have criticized the Obama administration for putting the brakes on important public health and safety protections.

Between the mid-1990s and 2011, it took the White House’s Office of Information and Regulatory Affairs (OIRA) an average of 50 days to complete reviews of regulations drafted at agencies.

In 2012, the average time swelled to 79 days, as the administration adopted new procedures, the report found. In the first half of 2013, the average review time was 140 days.

White House Office of Management and Budget spokeswoman Emily Cain said Sunday that OMB’s regulatory review policies are in line with long-standing precedent across previous administrations and fully adhere to applicable laws.

“OMB works as expeditiously as possible to review rules, but when it comes to complex rules with significant potential impact, we will continue to take the time needed to get them right,” Cain said. “Our goal is not to move rules hastily, but to maximize the effectiveness and benefit of the rules we complete.”

The report cited several contributing factors, including requests from OIRA for exhaustive analysis of the rules, reviews by other agencies, staffing shortages at OIRA and an absence of strict deadlines. Politics was also a factor, according to federal officials interviewed as part of the probe. 

“Several of the senior agency employees indicated that OIRA rules took longer in 2011 and 2012 because of concerns about the agencies issuing costly or controversial rules prior to the November 2012 election,” according to the report.

The study also finds OIRA has taken major strides to address the backlog of rules under Howard Shelanski, who took the agency’s helm this summer.

The report cites as perhaps the biggest obstacle in the rulemaking process a new policy adopted in 2012 requiring agencies to obtain authorization to even submit a significant rule to OIRA for review.

Informal pre-submission meetings with OIRA have been commonplace for years, as agencies try to expedite the process and identify potential sticking points, the ACUS report said, citing interviews with several senior agency officials.

“Starting in 2012, however,” these employees said they have had to meet with and/or brief the OIRA desk officer before submitting each significant rule for formal review,” the report found.

The agency officials dubbed these sessions “Mother-may-I meetings,” and one called them one of the most significant hold-ups in the rule-making process, according to the report.

The report questioned whether OIRA has the authority to impose the requirement, and suggested effectively blocking agencies from submitting rules to OIRA, a step that must be disclosed publicly, could reflect a shift in power from agencies to the White House.

“At a minimum, such actions are not transparent, can make it difficult for agencies to plan the issuance of their proposed and final rules, and can result in an understatement of the actual length of OIRA’s review process,” the report concluded.

The latter revelation would refute criticism by some conservative groups that the administration has rushed some regulations – including some ObamaCare rules – through the process.

A report issued this month by the American Action Forum, for instance, suggested that more than two dozen rules required by the healthcare law had little or no formal review. The ACUS report concludes that much of the review process is taking place informally, before rules are ever submitted.

The ACUS study, released earlier this month, was cited in a Saturday Washington Post story, which suggests politics led to the delays of several key regulations on the environment, worker safety and healthcare.

“The number and scope of delays under Obama went well beyond those of his predecessors, who helped shape rules but did not have the same formalized controls, said current and former officials who spoke on the condition of anonymity because of the sensitivity of the topic,” the Post’s Juliet Eilperin wrote in the piece.

—This report was updated at 1:10 p.m.