authority. Id. S. 1942, however, would significantly expand the situations in which disagreements between OMB and an agency would be publicized. Unlike the Paperwork Reduction Act, which applies only to OMB review of proposals involving information collection, S. 1942 would apply to review by "any agency or other establishment in the executive branch" of "any activity involving rulemaking" within the meaning of the Administrative Procedure Act. $ 2(2), (3) & (5) (emphases added). With respect to this all-encompassing category of review activities, the bill would require disclosure of "all written communications, regardless of format, including drafts of all proposals and associated analyses, between the reviewing entity and the rulemaking agency." S 3(a)(1). The reviewing entity would be required to provide the agency with "a written explanation of any significant review action.. concerning an agency rulemaking activity," S 4 (c), which the rulemaking agency then would be required to place in the record, § 5(b). The term "review action," moreover, would be defined broadly to encompass "any action, including but not limited to a recommendation or direction, regarding an agency rulemaking activity taken by a reviewing entity." S 2(4) (emphasis added). The bill also would require disclosure of "summar[ies] . . . of all oral communications relating to the substance of an agency rulemaking activity, including meetings, between the reviewing entity and the rulemaking agency . S 3(a)(3). - The foregoing provisions clearly would require disclosure of predecisional policy judgments made by the reviewing entity and the rulemaking agency. For instance, disclosure of "drafts of all proposals and associated analyses" -- and the attendant disclosure of any differences among such drafts would reveal policy positions taken by the agency before a final decision has been reached. Further, the requirements for disclosure of "all written materials, regardless of format" and "summar[ies) . . . of all oral communications" provide no basis for the protection of policy views expressed by the agency or the reviewing entity during the review process. 1 Even the legislation from the 101st Congress would have remained confined to review activities of OMB. See S. 1742, 101st Cong., 1st Sess. § 106 (1989). 2 That section 8 of S. 1942 would exempt from the bill "[o]ral communications with the President, the Vice President, the Administrator of the Environmental Protection Agency, the Director of the Office of Management and Budget, and the heads of the executive departments" does not lessen the force of our constitutional objections. First, by its terms, the exception does not preserve the President's constitutional authority to Further statutory infringements upon the confidentiality of the interagency deliberative process would damage the separation of powers established by the Constitution. Such damage is particularly acute with respect to the review process conducted by OMB pursuant to Executive Orders Nos. 12,291 and 12,498, given that OMB exercises thereunder the President's constitutional supervisory authority. Moreover, as we have noted, S. 1942 would reach not only review under the present Executive Orders but also so its broad terms would suggest any conceivable mechanism by which the President, through the entities within his Executive Office, might exercise his constitutional authority to supervise rulemaking by his subordinates. To adopt the sweeping disclosure requirements proposed here would gravely compromise what the Supreme Court has termed the "necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions . . . ." United States v. Nixon, 418 U.S. at 708. - Accordingly, the Department of Justice strongly opposes S. 1942. The Office of Management and Budget has advised this Department that there is no objection to the submission of this report to the Congress from the standpoint of the Administration's program, and that enactment of S. 1942 would not be in accord with the program of the President. Sincerely, W. lee Rauk W. Lee Rawls Assistant Attorney General protect deliberative material in written, rather than oral, form. Second, the Supreme Court's exposition of the deliberative process privilege is not limited merely to the President himself and selected senior officials of his Administration; rather, the Court's acknowledgement of the need for frank exchanges of policy views extends to deliberations involving other officials as well. See United States v. Nixon, 418 U.S. at 705 (referring to the confidentiality of deliberations involving "high Government officials and those who advise and assist them in the performance of their manifold duties"). Third, the exception in section 8 would not extend to other components of the Executive Office of the President other than OMB that the President may wish to - - involve in the regulatory review process. Public Buyers Up Congress Watch Critical Mass Health Research Group Litigation Group Member of Governmental Affairs Committee U.S. Senate Washington, DC Dear Senator: November 21, 1991 On behalf of Public Citizen, a national consumer organization with over 100,000 members nationwide, we urge you to support S. 1942, the Regulatory Review Sunshine Act of 1991, when it comes before the Governmental Affairs Committee. This legislation would ensure that Executive Branch reviews of agency regulations are conducted in accordance with fundamental principles of openness and public accountability. The past eleven years have seen an unprecedented centralization of the regulatory review process in the Office of Management and Budget (OMB) and, more recently, in Vice President Dan Quayle's Council on Competitiveness. These reviews are conducted behind closed doors with virtually no record for public review. The Competitiveness Council is a particularly flagrant offender, demanding to review any environmental, health, or safety regulation it wants and forcing delay or changes upon agencies. [See "Quayle's Hush-Hush Council," attached.] The result has been a disaster for the environment and for public health: the Clean Air Act, wetlands protection, food labeling, virtually no major regulation or program has been left untouched. We oppose centralization of substantive review in offices such as OMB or the Council. We urge you to support the Sunshine Act as an important step toward correcting the abuses brought about by the regulatory review process. This legislation sets time limits for regulatory review, which would prevent OMB or the Council from stalling regulations. It also contains disclosure requirements that make OMB and the Competitiveness Council responsible for their decisions to the public the same way that agencies like the Food and Drug Administration (FDA) and the Environmental Protection Agency (EPA) now operate. Your support is crucial for this important open government initiative. We urge you to support it when the Governmental Affairs committee takes it up in the near future. The New York Times NEW YORK, WEDNESDAY, NOVEMBER 20, 1991 Quayle's Hush-Hush Council Council on Competitiveness. Even a After an American Business Con- Competitiveness for big business. The Quayle council works routinely as a behind-the-scenes lobbying group for big business. Since it was founded in June 1990, it has interfered in numerous complex regulatory is sues. For example, the council blocked a ban on the dangerous prac. tice of burning lead-acid batteries, stalled a rule that protects workers from the hazards of formaldehyde and delayed new standards for clinical laboratories. Such interference amounts to hijacking work that properly rests with the regulatory agencies. The entire regulatory edifice is built on openness and accountability. Any citizen who wants to know who has met with agency staff to lobby on proposed regulations need only visit a public docket room or file a request. Not so with the council, which has bullied its way into the rule-making process unfettered by these requirements. Despite criticism of its actions, the council has refused to make public basic information about its operations, such as which business groups it meets with. Nor will it provide documents backing up the posttions it tries to force on agencies. Council staff members say records from regulatory agencies should suf'fice, even though these documents don't mention the council's role. Now the White House is apparently trying to limit Congress's right to obtain agency documents. Last week, a House subcommittee was compelled to subpoena the Food and Drug Administration for files revealing the council's role in regulatory policy. The F.D.A., it seems, had been told by the White House not to release them. Last summer, the Council on Competitiveness refused a Freedom of Information Act request by Public Citizen's Congress Watch and Office of Management and Budget Watch for basic information about its work. The reason given? The council is "not a Government agency" and, because it is run by Mr. Quayle's staff, it is shielded by "executive privilege." But a relevant court decision places the council on shaky ground. The council's predecessor, the Reagan-era Task Force on Regulatory Relief, headed by Vice President George Bush, also said it wasn't an agency. The Task Force refused to reply to a 1988 Freedom of Information Act request, prompting Public Citizen to file suit. In September, a Federal judge rejected this claim. With if-it-quacks-like-a-duck-it-is-aduck reasoning, the judge ruled that a Government entity is judged by the work it does, not where it sits, even in the case of the Vice President's office. While directed at the defunct Task Force, the decision scrapes the legal veneer from the Quayle council's arguments. The White House is appealing the decision. This behavior dismisses the principles of democratic government. If the council continues as a convenience store for business lobbyists while evading the law on public accountability, our health and safety laws will be in tatters. Mr. Quayle should let the public in on his secret dealings. O CRS Congressional Research Service The Library of Congress. Washington, D.C. 20540 S. 1942, the Regulatory Review Sunshine Act of 1991, would impose public disclosure and accountability procedures on the Office of Management and Budget's (OMB), Office of Information and Regulatory Affairs (OIRA), as well as any other agency established by the President which engages, in whole or in part, in regulatory review, with respect to rulemaking review activities authorized by executive order or other authority. More specifically, under section 3 of S. 1942, a reviewing entity would be required to create procedures for making the following information available to the public: (1) all written communications between the reviewing entity and the rulemaking agency; (2) all written communications between the reviewing entity and any non-governmental party; (3) a summary of substantive oral communications between the reviewing entity and the rulemaking agency or any non-governmental party; (4) a written explanation of any significant review action; (5) notice of any extension of regulatory review; and (6) a register of rulemaking activities under review. A reviewing entity must place this information in a public reading room within a week. It must also provide public access to the information as required by the Freedom of Information Act, 5 U.S.C. 552 (1988) (FOIA). Section 4 of the Bill would require reviewing entities to inform rulemaking agencies about regulatory review by sending them: (1) written communications between the reviewing entity and any non-governmental party; (2) a description of oral communications between the reviewing entity and nongovernmental parties, and an invitation to attend such meetings; and (3) an explanation of significant review actions. Section 5 would require rulemaking agencies to place materials received from a rulemaking entity in the rulemaking record, and to explain in all rulemaking notices any significant changes made to the rule as a result of regulatory review. |