Over the course of the Bush administration, OMB’s Office of Information and Regulatory Affairs (OIRA), which reviews and must approve all major regulatory proposals, has changed 53 out of 85 Environmental Protection Agency (EPA) rules, 100 out of 157 rules from Health & Human Services (HHS), and 24 out of 30 Dept. of Labor (DOL) rules. These figures (which include proposed or draft rules where the agency is simply seeking public comment, as well as final rules) attest to OIRA’s influence, but are similar to those of the Clinton administration, and do not represent anything new or earth shattering. While some put great stock in these numbers, the nature and scope of changes made by OIRA may be even more important. Unfortunately, this is difficult to assess from data reported by OIRA. All rules changed and then approved by OIRA are labeled “consistent with change.” A change for clarity, such as the insertion of a comma, is reported in the same manner as a change in substance that affects the very nature of the regulation. This label needs more specificity to distinguish the various types of changes OIRA makes. Under Executive Order 12866, issued by President Clinton and still observed by the Bush administration, agencies are to document changes made to their rules while under review at OIRA. Yet this documentation is inconsistent and frequently inadequate. In a 1998 report, the General Accounting Office found complete documentation of OIRA changes for only 26 percent of the 122 regulatory actions it reviewed, covering EPA, the Dept. of Transportation (DOT), Housing & Urban Development (HUD), and DOL. From OMB Watch’s experience, there appears to have been few improvements over the last four years. Recently, we looked at three rules from EPA, five from DOT, and two from DOL that were recently approved by OIRA as “consistent with change,” and found the following:

• Almost no documentation of OIRA changes is made available online. In only one case -- DOT’s proposed rule on tire pressure monitoring -- did we find this information online.
• Files documenting OIRA changes are difficult to locate. We looked at two EPA proposed water rules -- one to limit runoff from construction sites and the other to prevent fish from being sucked up and killed by power plants that use water to cool their systems. In both cases, we had trouble locating the proper files, and had to rely on the assistance of EPA staff. In one case (preventing fish losses), an EPA docket representative originally told us that no such documentation existed. EPA hires contractors to maintain its voluminous filing system, putting a label on each item in the file -- which in the case of the two water rules spanned many, many feet -- and entering it into an electronic index to allow for easy retrieval. The problem, as EPA explained, is that these contractors are often given wide latitude in how this is carried out. For example, a document that summarizes changes made at OIRA may not include “OMB” or “OIRA” in the title, making it nearly impossible to find through an electronic search. Without proper indexing, you are forced to rely on agency staff familiar with the file. This was how we retrieved OIRA changes for both rules; the docket manager gave us the contact information of knowledgeable EPA staff. We also sought information on a joint final rule from EPA and the Army Corps of Engineers on the definition of “fill material.” An EPA project officer informed us that documentation of OIRA changes were not being made available in EPA’s docket. However, he offered to mail us this information, and we soon had the documentation.
• Agencies frequently do not document OIRA changes. For four of the five DOT rules we looked at, the agency provided no documentation of OIRA changes. This included three from the National Highway and Traffic Safety Administration (NHTSA) -- titled, “New Entrant Safety Assurance Process,” “Federal Motor Vehicle Improved Tires Safety Standards,” and “Light Truck Average Fuel Economy Standard Model Year 2004” -- and one from the Transportation Security Administration (TSA), titled, “Aviation Security Infrastructure Fees.” Likewise, neither rule from DOL provided documentation of OIRA changes. This included a final rule from the Occupational Safety and Health Administration (OSHA) on the “Occupational Injury and Illness Recording and Reporting Requirements” and a proposed rule from the Mine Safety and Health Administration (MSHA) on “Hazard Communication.” An OSHA representative insisted that changes were minor, and wasn’t sure if documentation would ever be made available. An MSHA representative flatly said they would not provide any information on negotiations between OIRA and MSHA or any summary of changes made. MSHA considers those documents internal agency documents and not for public viewing, according to the spokesperson, adding the agency actually considers such disclosure illegal. This person was clearly unaware that E.O. 12866 specifically requires this disclosure. DOL proved to be the least accessible agency in terms of finding relevant documents.
• Where there is documentation, it is usually inadequate. In the case of the proposed water rules, EPA provides a minimum amount of documentation, frequently providing just one line that indicates a change has been made in a particular area. There is no context provided to explain why the change was made and what it means. To understand the changes, we had to comb through EPA’s original submissions to OIRA and compare them to the actual proposed rules. Moreover, in the case of EPA’s rule on construction runoff, it is not always clear whether a change is coming from EPA or OIRA. EPA’s summary makes it sound as if changes came willingly from EPA, but agency sources told us OIRA forced the changes that gutted the rule. On the other hand, in the case of EPA’s rule protecting fish from power plants, EPA clearly marked changes “made at the suggestion or recommendation” of OIRA with an asterisk. In the case of DOT’s tire pressure monitoring standard, as well as the joint rule from EPA and the Army Corps of Engineers, OIRA changes are superimposed through editing tools on the agency’s original submission. This is extremely useful, but it also provides no context for why a change was made and at whose suggestion. Ideally, agencies should provide both a clear, comprehensive summary of changes, as well as the text of the original submission with changes made at OIRA.

For OIRA’s part, it doesn’t have to summarize changes to agency rules -- though it did for EPA’s rule on construction runoff -- but it does have to disclose “all documents exchanged between OIRA and the agency during review,” under E.O. 12866. Unfortunately, OIRA has long interpreted this requirement to capture only communications between senior executive staff (SES) level or higher. Thus, those documents exchanged between OIRA desk officers, who review the rules, and agency personnel, who develop them, are considered off limits. In fact, OIRA recently rejected a request from Riverkeeper, an environmental organization, to review these documents in the case of EPA’s rule to prevent fish losses from power plant cooling systems. Nonetheless, in other ways, OIRA deserves credit for pursuing transparency more vigorously than it has in the past. Besides making a greater volume of information available online, OIRA Administrator John Graham has taken steps to remedy OIRA’s traditionally woeful docket library, with significant improvements in just the last month. For instance, documents are finally being clearly labeled and organized, making retrieval of information much easier. Graham should now turn his eye to the agencies given the problems identified above, and provide agency-wide guidance on how to document changes made at OIRA. At a minimum, such guidance should require a complete summary, indicating what changes were made, why and at whose suggestion, as well as the actual text of the agency’s original submission to OIRA, superimposing the changes with editing tools found in basic word-processing software. The current lack of transparency is especially problematic as Graham assumes a more aggressive role in shaping health, safety, and environmental protections. The public, as well as Congress, which has granted OIRA no statutory authority over regulation, needs to be aware of this influence, so OIRA can be held accountable for its actions, good or bad. Graham also needs to address shortcomings at OIRA, adding more specificity to the label "consistent with change," as discussed above, and providing its own complete justification for substantive changes, made available online, instead of leaving it all to the agencies. Indeed, this makes more sense since the changes come from OIRA. Even with these steps, however, a gaping hole is emerging as OIRA assumes more responsibility for shaping regulation. OIRA disclosure requirements apply only to activity while a rule is sitting at OIRA undergoing formal review. The executive order did not contemplate this new "upfront" role, as Graham calls it. In the case of EPA's rule on construction runoff, OIRA, to its credit, logged a meeting with industry that occurred before it formally received the rule for review, even though this is not required by the E.O. Similarly, OIRA should clearly document when it becomes involved in a rulemaking, as well as the nature of its recommendations before formal submission, and whether they were adopted.