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White House Order Tightens Grip On Policy
WSJ
By JOHN D. MCKINNON
January 31, 2007

WASHINGTON -- A White House move to tighten its control over federal regulations is providing fresh evidence of the Bush administration's intent to leave its conservative imprint on government over the next two years.

The White House action, in the form of an executive order, is a reminder that despite Democrats' success in November's congressional elections, Mr. Bush retains control of the basic machinery of government that often decides how corporations and citizens go about their business. It is a power that Congress has limited ability to affect.

Now Mr. Bush aims to exercise more sway.

Most notably, the White House has given itself more review authority over many informal agency dictates known as guidance. Critics say the executive order gives the White House a chokehold over new guidance it dislikes. White House officials deny that, saying it is simply strengthening a review process that already occurs in many instances.

Even defenders of the administration say this change is likely to give the White House more say in how to interpret federal rules. As the White House has assumed more oversight on formal rulemaking, many critics say agencies have done more regulation through informal guidance, such as letters or manuals. Because these aren't formal regulations, the agencies don't have to go through the same elaborate procedures. Labor officials in recent years have issued guidance on hundreds of occupational-safety issues, critics note.

"I think that's important," James Gattuso, an expert on regulation at the conservative Heritage Foundation, said of the change. "If you believe in review of regulations to ensure they're consistent with administration policy, and no more costly than necessary, you really want guidance documents to be included as well."

Administration officials say the principal aim of the new policies isn't to stifle regulation but to clarify a process that can appear confusing and opaque to the people affected. Several of the changes are aimed at making sure that regulated companies and individuals get more of an opportunity to comment in advance on planned policies, said Jeffrey Rosen, general counsel of the White House Office of Management and Budget.

"Bad, bad, bad," Gary Bass, executive director of liberal advocacy group OMB Watch, said of the changes. He predicted they would hamper the government's ability to respond to regulatory crises -- such as the recent E. coli outbreaks on fresh vegetables.

The House Oversight and Government Reform Committee is considering a hearing on the issue. The administration's new approach "interferes with the ability of agencies to make decisions based on their expert opinions, and is something Congress should carefully review," Chairman Henry Waxman (D., Calif.) said in a statement. Sen. Joseph Lieberman of Connecticut, chairman of the Senate Homeland Security and Governmental Affairs Committee, said in a statement that his panel would monitor the situation to "make sure that essential federal protections are not being undermined."

Mr. Rosen said it's "ironic that a measure that increases availability of guidance documents to the public and allows input by the public would be seen as a problem instead of a benefit." He also said there is an exception for emergencies.

The executive order has three other main parts. It sets a new standard for formal rulemaking that requires agencies to find a "market failure" before proceeding with formal regulation. That's a concept that has been championed by Susan Dudley, the academic Mr. Bush nominated to oversee regulatory matters for the White House. Her nomination has been blocked in the Senate, and the White House has said she instead will be tapped for a senior adviser post.

Public Citizen, a liberal advocacy group, said that provision could derail much new regulation. But Mr. Rosen says it is an attempt to clarify a provision that has governed executive-branch rulemaking since the Clinton administration issued its executive order on regulations in 1993. That 1993 provision called for an agency undertaking a rulemaking to identify the problem it intends to address, including "the failures of private markets," he said.

The new Bush order also requires agencies to put a senior official -- technically, a presidential appointee -- in charge of regulatory policy. Critics say that will extend the reach of the White House further into agencies' operations. But White House officials say it's just institutionalizing a longstanding practice. Most agencies already have designated a presidential appointee as their regulatory policy chief, Mr. Rosen said.

Another change requires agencies to develop annual plans for weighing the combined costs and benefits of all regulation planned for the year. Liberal critics say such analyses are biased against regulation and will cause agencies to postpone new rules.

Write to John D. McKinnon at john.mckinnon@wsj.com

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