Politics is undeniably everywhere. Activity at the Office of Management and Budget (OMB) has become noticeably thin in the past month – the Office of Information and Regulatory Affairs (OIRA) has completed review on a paltry number of rules and notices. Congress is off seeking re-election, and even the courts do not appear to be deciding many regulatory cases (except as noted previously in this blog). As this blog has pointed out previously, OMB is clearly missing in action and it begins to look intentional. At least the Federal Election Commission (FEC) provided a small amount of relief.
OMB: The election cycle may have caught up with OMB, or, to give it a more nefarious spin, OMB is avoiding clearing any regulation or other action that could cause political upheaval for their political masters. For the sake of clarity, OMB completed review (ubiquitously “consistent with change”) in the past month of:
- Department of Agriculture (DOA): Agricultural Bioterrorism Protection Act of 2002; Biennial Review and Republication of the Select Agent and Toxin List; Amendments to the Select Agent and Toxin Regulations final rule;
- Department of Education (DOEd): Race to the Top–Early Learning Challenge Phase 2 final rule (yes, economically significant);
- Department of Health and Human Services (HHS): Possession, Use, and Transfer of Select Agents and Toxins; Biennial Review final rule;
- Department of Homeland Security (DHS): Guidance for Protecting Responders’ Health During the First Week Following a Wide-Area Anthrax Attack notice;
- DHS: Extension of the Designation of Haiti for Temporary Protected Status and Employment Authorization for Haitian F-1 Nonimmigrant Students notices;
- DHS: CNMI-Only Transitional Worker Numerical Limitation for Fiscal Year 2013 notice;
- Department of Labor (DOL): Wage Methodology for the Temporary Nonagricultural Employment H-2B Program final rule extension of effective date, discussed last week;
- Environmental Protection Agency (EPA): Regulation to Modify Definition of Heating Oil in Renewable Fuel Standard Program final rule;
- EPA: Regulation of Fuels and Fuel Additives: 2013 Biomass-Based Diesel Renewable Fuel Volume final rule (yes, that’s economically significant and deserved a mention last week); and
- Corporation for National and Community Service: Criminal History Checks: AmeriCorps State/National, Senior Companions, Foster Grandparents, and Retired Senior Volunteer Program final rule.
And that is all. The Department of Agriculture withdrew the National Organic Program: Sunset Review for Nutrient Vitamins and Minerals final rule (admittedly economically significant), but no reason has been given. Agencies appear to have sent OMB about the same number of rules and notices for review. The unannounced slowdown may portend an increase in regulations that the Administration will launch during the last three months of this term – whether the current occupants are leaving or otherwise.
♦Once again, we must note the absence of a Spring 2012 Unified Agenda, and now the absence of a Fall Unified Agenda and Regulatory Plan.
OMB needs to explain this obvious slowdown – it has not lived up to its claims of “transparency.” Some, like the Sunlight Foundation, argue for greater transparency and lobbying disclosure because they believe OIRA is little known or understood, but it is well known though unmistakably (perhaps intentionally) opaque.
FEC Contributor Disclosures: Chris Rissetto and Carlos Valdvia, and Julius Chen, separately report that the FEC, by a party-line vote, declined to pursue a new rulemaking to amend the electioneering contributor limitations, or campaign donor advertising, regulations struck down in Van Hollen v. FEC. Separately, the Center for Individual Freedom indicated that it had petitioned the FEC for a narrow rulemaking to address the specific issues noted by the United States Court of Appeals for the District of Columbia Circuit in its judgment reversing the district court and finding the statute anything but clear. Expect to hear more about this case.