OMB Gives Green Light to Continuation Rule Changes

The Office of Information and Regulatory Affairs (OIRA) has completed its review of the proposed PTO rule changes. Despite a litany of alleged improprieties regarding the manner in which the proposed changes were introduced, the OIRA has concluded that they are "consistent with change."

Unfortunately, no further information is given, which appears to be consistent with OMB procedure. According to OMB Watch, exact changes are typically difficult to document:

Unfortunately, this is difficult to assess from data reported by OIRA. All rules changed and then approved by OIRA are labeled “consistent with change.” A change for clarity, such as the insertion of a comma, is reported in the same manner as a change in substance that affects the very nature of the regulation. This label needs more specificity to distinguish the various types of changes OIRA makes.

Under Executive Order 12866, issued by President Clinton and still observed by the Bush administration, agencies are to document changes made to their rules while under review at OIRA. Yet this documentation is inconsistent and frequently inadequate. In a 1998 report, the General Accounting Office found complete documentation of OIRA changes for only 26 percent of the 122 regulatory actions it reviewed, covering EPA, the Dept. of Transportation (DOT), Housing & Urban Development (HUD), and DOL.

To view the brief conclusions of the regulatory review, click here and here.

According to David Boundy, who spearheaded the initial challenge, two avenues are being explored for further challenges. Quoting from David:

Note that OMB concluded that the rules, as amended, were not "economically significant." Perhaps they were modified to the point that they're no longer offensive. We'll see." We are exploring two avenues -

(a) Congressional oversight. Several senators and congressmen have said "Get back to me when the executve branch is done. I understand the problem, and if it still exists at the end of executive branch review, let me know, and we'll see." So I need to hear from you to add weight to our request. The more districts/states we can show to be affected, the more offices we can approach.

(b) Administrative Procedure Act judicial review. We got another reply to another FOIA request yesterday, July 9 (coincidence?) - which confirms that the PTO did absolutely NO analysis of any significant issue, and is still hiding documents. (There are several documents that we know to exist, which PTO is still hiding.) We expect that this will not go over well with a court.

If you wish to help or participate in any way, please feel free to contact David at DBoundy@Cantor.com