- WEB EXCLUSIVE
- PE COFFEEHAUS
Days after this year's State of the Union address, the president issued an executive order that gives the White House additional oversight of all guidance documents from executive agencies and administrations before they are issued. While business groups have hailed this as a great step toward reigning in an out-of-control process, consumer rights and environmental watch groups are decrying the order as an attempt to grow the influence of the administration and favor business over consumer interests. According to the N.Y. Times, there has been a policy shift within the agencies that increased the number of guidance documents being written.
Guidance documents generally are used by the EPA and OSHA to clarify their regulations, which are executive interpretations of laws enacted in Congress. Because the agencies are simply arms of the executive branch, the president has authority over how these agencies function. The documents generally do not require the public scrutiny normally compulsory for proposed regulations, and do not have to be submitted to the Office of Management and Budget (OMB) for evaluation. However, these documents are often viewed by the environmental community as requirements and enforcement officers have sited them to write notices of violation.
The order requires the agencies to submit a cost evaluation on the overall regulation as it would stand after the guidance was issued, and submit the information to the OMB for evaluation. The president's order also requires the agency to demonstrate a specific market failure, i.e. prove that the affected industry will not accomplish the necessary changes on its own volition through the natural course of competition.
The administrative order requires the agencies to post any guidance documents expected to have an annual economic impact of $100 million or more on the Internet and invite public comment. Also, the agencies are not to use mandatory language such as shall, must, required or requirement in guidance documents.