Secrecy and Imbalance in Regulatory Review

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October 24, 2017 | Sean Moulton
President Donald Trump signs Executive Order 13777, February 24, 2017.
President Donald Trump is surrounded by business leaders as he signs Executive Order 13777, "Enforcing the Regulatory Reform Agenda," February 24, 2017. (Photo: Whitehouse.gov)

In the Trump administration, the regulators have been tasked to be de-regulators—and their actions thus far have been mostly cloaked in secrecy. The President established a process to recommend “repeal, replacement, or modification” of burdensome or outdated agency regulations. The process involved creating a Regulatory Reform Task Force, which has operated behind closed doors, sought to limit public involvement, and “turned to people with deep industry ties,” according to an investigation by The New York Times and ProPublica.

New Regulatory Marching Orders

On January 30, just 10 days into his term, President Trump issued Executive Order 13771 on Reducing Regulation and Controlling Regulatory Costs. This order instructed agencies to utilize a “one-in, two-out” approach when creating new regulations, which requires agencies to identify two existing regulations for elimination when proposing new significant regulations. The order also established an entirely new regulatory budgeting system where the total incremental cost of new regulations for this fiscal year “shall be no greater than zero.” Agencies must offset all new incremental costs associated with new regulations through the elimination or modification of existing regulations.

About a month later, on February 24, President Trump issued Executive Order 13777 on Enforcing the Regulatory Reform Agenda. This order established a framework for agencies to follow as they pursue regulatory reform. President Trump instructed agencies to appoint a Regulatory Reform Officer that would oversee a Regulatory Reform Task Force to review existing regulations and identifying those with the greatest potential for modification or repeal. The order included a handful of general criteria for the types of regulations the task force should seek to identify, including those that eliminate jobs or inhibit job growth; that are outdated, unnecessary, or ineffective; or that have costs greater than benefits.

At first glance, many could see the review effort in a positive light. Why shouldn’t agencies eliminate or revise outdated or ineffective regulations? Problems arise, however, when agencies try to decide how to define such issues and how to pick regulations for changes. The order doesn’t define the various terms or clarify how agencies should apply the criteria. The order also leaves out any mention of looking at the benefits that the regulations bring. If we don’t consider the benefits, the process will become a one-sided review that will go too far in cutting back useful regulations. For instance, if agencies just focus on the jobs eliminated by a regulation, then they are only considering half the equation. Agencies should also consider jobs created because of the regulation. Studies have shown that many regulations for one industry are neutral or have a positive impact on the overall economy because they spur job growth in other industries like environmental regulations on power plants creating jobs for companies making pollution control equipment or training safety inspectors.

The review process described in EO 13777 required agencies to reach out to interested stakeholders, including the regulated community, for input on the particular regulations that should be targeted and the specific changes that the agency should consider making.

Task Force Secrecy

Given the importance of this issue to the administration, one might expect agencies to create a great deal of fanfare around their efforts, tout the experience and expertise of those working on the task forces, and post on agency websites details on meetings, findings, and background information. The reality is that agencies are conducting the regulatory reviews in secret. Most agencies aren’t forthcoming about who is serving on the task forces or when the task forces are meeting.

The secrecy was so notable that four Democratic Members of Congress—Representatives Elijah Cummings (D-MD), Gerry Connolly (D-VA), John Conyers, Jr. (D-MI), and David Cicilline (D-RI)—wrote to the Office of Management and Budget to complain about it. “We write to express our alarm concerning the lack of transparency, accountability and independence of the Regulatory Reform Task Forces.” The members underscored the importance of transparency and recommended that the task forces “have an effective and transparent guard against conflicts of interest, especially those in which industry lobbyists seek to overturn environmental and health protections for financial gain.”

Under EO 13777 the task forces were given 90 days until their initial progress reports were due to the head of each agency. Technically that deadline passed on May 25. Yet, months later, few agencies have publicly released their task force progress reports. The Project On Government Oversight could only find a handful of agencies that have posted these reports: the Departments of Education, Transportation, and Labor, the Surface Transportation Board, and the National Credit Union Administration. Why other agencies aren’t prominently posting the progress reports and other task force materials remains unclear.

Despite the limited amount of information the agencies have provided the public about their regulatory reform task forces, the investigation by The New York Times and ProPublica found a disturbing pattern at work. Many of the agencies appeared to be stacking their regulatory task forces with members who have strong ties to companies regulated by the agencies.

Previously, the Obama administration explicitly banned lobbyists from going to work in agencies they had directly lobbied in the prior two years. This ethics order was put in place to prevent special interest lobbyists from taking over an agency and enacting policies that benefit former employers or clients. Some, including POGO, didn’t think the lobbyist ban went far enough: it still allowed senior industry executives with long-held ties to their sector to assume senior government positions despite the questionable ethical ramifications, merely because they hadn’t lobbied.

President Trump issued a new ethics order on January 28, 2017, that removed the explicit ban of lobbyists and has allowed a number of industry lobbyists to come into agencies to regulate the same sectors they had been getting paid by to try to influence the agencies.

As the Times and ProPublica report, the Trump administration’s deregulatory teams include dozens of lobbyists and lawyers who represented private industry and are now overseeing regulatory decisions for the industry sectors of their former clients.

Keeping the Public out of Public Comments

Multiple agencies have begun posting federal register notices requesting comments on which regulations should be repealed, revised, or replaced. These notices should offer the public some real perspective on where things stand and the process going forward. POGO reviewed the requests for comments from 24 agencies and unfortunately the notices are far from illuminating and offer little real opportunity for the public to participate.

When agencies seek public input, whether on a proposed rule or an issue they are researching, they typically publish detailed information and background so those interested can better focus their comments. Agencies have learned that providing greater detail, especially when addressing complex topics, often results in better, more substantive discussions, which is the purpose of a public comment period.

The regulatory review notices are enormous in scope. Agencies are asking for comments on not just one regulation but on any and all agency regulations. So one would think the notices would include significant information on major regulatory programs and policies and provide some context. For instance, agencies might provide the dates that major regulations were finalized or last updated so that commenters could focus on older, possibly outdated regulations. Agencies might also provide information on costs projected for regulations as commenters might focus on proposing more efficient methods for those regulations with the largest cost projections.

However, 20 of the 24 agencies POGO reviewed have thus far not included any information about their specific regulations, programs, or regulatory reform priorities. Most simply restated the requirements and criteria established in President Trump’s executive orders. A few included links to the agency’s relevant sections in the code of federal regulations, which, without context or guidance, is the bureaucratic equivalent to throwing folks into the middle of the ocean with no compass or boat.

Four agencies did provide some background information on regulations, but the information was fairly scant, especially considering the scope of the notice. For instance, the Department of Transportation provided an appendix that listed 20 economically significant rules along with the annualized costs, dates the rules were published, and links to each rule in the code of federal regulations. However, there was no summary or description of the rules or any initial evaluation from the Department’s perspective on the best prospects for repeal or reform.

The National Oceanic and Atmospheric Administration’s (NOAA) July 7 request for comments offered a brief description of the six main statutes that the agency oversees and the main regulations associated with each (also providing links to the relevant sections in the federal regulations), and also made a point to ask for specific comments on aquaculture permitting, indicating that the agency sees this as a regulatory area with greater potential for reform. The Federal Maritime Commission provided short descriptions for nine main regulatory programs for which the agency would like comments. The Surface Transportation Board provided a link to the progress report from the task force, which included brief discussions of priority programs being examined.

It should also be noted that 23 of the 24 agencies failed to include any mention of the work of their task force. These notices would be a great vehicle to provide the public with information on the task force such as the membership, meeting schedule, areas of focus, and future process. Only the Surface Transportation Board provided substantive information on its task force. The Board’s notice announced a public meeting of their task force and requested written comments and statements at the meeting. The notice also included a link to the initial progress report, which explained that the task force had met in May and described several reform proposals being considered. Ideally, the information should have been included in the body of the notice rather than a link but it remains helpful to potential commenters.

Short Timelines

Agencies can offer a wide range of deadlines for the public comment period. The amount of time granted for the comment period can greatly influence the number of comments received, how substantive the input is, and even the range of commenters. The time period is important because commenters must have time to research the issue and gather information, and to craft and submit their comments. Generally, 60 or 90 days is considered the norm for a public comment period, depending on the scope and complexity of the issues involved. For simpler and non-controversial issues agencies sometimes limit the comment period to 30 days, which is considered to be the bare minimum.

Duration of public comment periods by agency, following Executive Order 13777

Half of the agencies, 12 out of the 24, offered less than 60 days for providing comments. Notably the Department of Commerce only gave people 24 days to submit comments. Eight agencies only allowed the minimum of 30 days while 3 others offered just slightly more time with 45 days.

Eight of the 24 agencies offered between the normal 60 to 90 days, which is an improvement over those agencies only allowing a month or less for public comment. But given the extensive scope of complex regulations that agencies are asking for input on, even the typical time periods for public comments could be seen as inadequate to permit fully considered comments from the public.

Only 4 or the 24 agencies gave public commenters the ability to comment on regulatory reform beyond a 90 day window. The Commodity Futures Trading Commission allows those interested to submit comments over a 120-day period. The Department of Agriculture’s request for information opened a yearlong comment period with four deadlines that the agency will use to consider and respond to submissions. The Department of Energy and the Department of the Interior will accept and review comments on an ongoing basis. Energy listed a 45-day deadline for the first set of comments but provides an email address for input after that period.

Imbalanced Results

So what are agencies seeking to accomplish with the public notices for comment? It seems unlikely that the goal is for genuine public input as the lack of background regulatory information and the extremely limited timeframes would often prevent substantive feedback from the public. It could be that agencies are merely checking the procedural box of asking for input with little expectation of or desire for any substantive comments. Or it could be that the agencies expected that the fast and uninformative notices would garner substantive comments but that they would primarily be from regulated companies and industry associations. Regulated companies are highly familiar with agency regulations and likely have at the ready extensive lists of changes they have long wanted. Some public interest groups would also have expertise on the regulations of particular agencies they are concerned with, but those groups are less likely to have recommendations for changes that would eliminate or streamline regulations.  

These notices could be seen as tailor-made to solicit detailed industry comments on regulations. Companies keep teams of lawyers, lobbyists, and experts on staff to influence laws and regulations because of how they can affect their profits. Therefore, it is the regulated industries that are already prepared to speak extensively and in great detail about what regulations they would most like to see repealed or revised. Meanwhile, citizens concerned about the agency’s issues but less familiar with all the specific regulations and technical details struggle to provide input of similar specificity and substance.

This is certainly what seems to have played out at the Environmental Protection Agency. The agency gave 30 days for comments and received more than 467,000 responses to the agency’s notice. According to Elizabeth Southerland, a senior EPA staffer, the overwhelming majority of the comments were from the general public with brief statements urging the agency not to roll back environmental regulations. But the task force focused in on the few industry comments requesting detailed and specific regulatory rollbacks. After the deregulatory team pulled those ideas from the coal, electric power, oil, and natural gas companies, they asked agency scientists to respond within one day to the industry requests to repeal the rules. Southerland wound up resigning on August 1 of because of the new “industry deregulation approach” being embraced by the EPA.

Recommendations

Agencies are required by Executive Order to move forward on regulatory reform. Regulatory policy can be a divisive issue but there may be common-ground reforms that most stakeholders could support. There may be outdated or ineffective regulations that the public, industry, and non-governmental organizations would agree should be updated, streamlined, or even eliminated. But agencies will not find these common-ground reforms with an imbalanced process that offers clear advantages to industry viewpoints. Moving forward, agencies should ensure that the principles of transparency and participation are followed closely.

Specifically:

  1. All agencies should establish Regulatory Reform Task Force pages on their websites where information about the membership, meetings, process, evaluation criteria, and submitted proposals will be posted and regularly updated.
  2. Agencies should include on their task force pages and in any notices requesting public comment information substantively summarizing the major laws and regulatory programs overseen by the agency. The material should make it clear that while some regulatory requirements can change, agencies remain obligated to meet statutory requirements set by Congress.
  3. When requesting public input, agencies should offer sufficient time for those interested in commenting to research the agency’s regulations and develop substantive comments for the agency to consider. Based on the breadth and complexity involved in regulatory reform, 90 days should be a minimum. Agencies should also consider establishing a process or providing an email address to allow additional input beyond the initial comment period.

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