Today President Obama signed an Executive Order requiring agencies to ask the public for “regulations in need of retrospective review” and semi-annually report to the public and to the Office of Information and Regulatory Affairs (OIRA) on the status of retrospective review efforts. The order also directs agencies, when conducting retrospective reviews, to give priority to initiatives that will significantly reduce costs and burdens imposed on the public. Agencies are also directed to consider the cumulative effects of their regulations and give priority to those reforms that “would make significant progress in reducing those burdens….”

The Executive Order, a follow-up to an earlier order on retrospective review, is aimed at actually reducing the public burden imposed by existing regulations. Manufacturers are encouraged by the requirements placed upon agencies for public participation and for prioritizing review initiatives.

Involving OIRA, the federal government’s regulatory gatekeeper, in the retrospective review process is important. OIRA can hold agencies accountable and help ensure agency efforts result in real reductions of costs and burdens imposed on regulated entities.

The Executive Order’s issuance coincides with the release of a new report on retrospective review by the Council of Economic Advisers. The Council asserts that, with the Executive Order, “the process of retrospective review should become a standard part of the assessment of federal regulations.” (continue reading…)

Today the National Association of Manufacturers joined 153 other organizations in a letter supporting H.R. 2008, the “Keeping Politics Out of Federal Contracting Act of 2011.”  The legislation would preclude the White House from forcing federal agencies to require entities to disclose their political spending – as well as that of their officers and directors – as a condition of participating in the federal procurement process.

The letter was sent to Chairman Darrell Issa (R-CA) and Ranking Member Elijah Cummings (D-MD) of the House Committee on Oversight and Government Reform, which is scheduled to consider H.R. 2008 tomorrow.

The bill is in response to an April 2011 draft Executive Order that would require disclosures of political contributions by select parties as a condition for bidding on federal contracts. The draft order is an attack on the First Amendment and suffers from severe legal and policy defects that would, if signed, immediately damage the federal contracting process.

From the letter:

The legislation reaffirms the principle, currently embodied in federal procurement laws, that the Executive Branch has an obligation to procure goods and services based on the best value for the American taxpayer, and not on political considerations. It also reaffirms the principle that the Administration cannot enact through executive fiat legislation that Congress has considered and explicitly rejected.

The NAM thanks Rep. Issa for his leadership on this issue and urges members of the Committee on Oversight and Government to approve H.R. 2008.

Erik Glavich is director of legal and regulatory policy, National Association of Manufacturers.

On January 18, 2011, President Obama signed Executive Order 13563. The order states, “Our regulatory system must protect public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation.” While it is positive to see the President concerned about promoting economic growth, we hope he follows through on this. There has been much talk of relieving regulatory burdens and streamlining the process for domestic energy production, but no action has followed. The time for talk is over, we need action now to help create jobs and maintain manufacturers global competitiveness

Writing in the Wall Street Journal, Cass Sunstein, the President’s Regulatory Czar stated, “We are taking immediate steps to save individuals, businesses, and state and local governments hundreds of millions of dollars every year in regulatory burdens.” He also added:

“The initial review announced today is just the start of an ongoing process. Our goal is to change the regulatory culture of Washington by constantly asking what’s working and what isn’t. To achieve that goal, we need to obtain real-world evidence and data. We also need to draw on the experience and wisdom of the American people—which is why the president has put an emphasis on asking the public for their comments, ideas and suggestions. And so, before today’s plans are finalized, the public will weigh in.”

View the full piece from Mr. Sunstein in the Wall Street Journal.

Mr. Sunstein also spoke at the American Enterprise Institute and on Capitol Hill yesterday.

Manufacturers hope that during this process, the EPA and the Administration take substantive steps to reduce the regulatory burden that is stifling job creation and job growth. At a time of high unemployment, the last thing manufacturers need to face are costly and burdensome regulations that prevent future investment, expansion and reduce their global competitiveness.

Update: Read the statement from the National Association of Manufacturers on the results of the review here.

Today, Congressman Tom Cole (R-OK) introduced an amendment to the National Defense Authorization Act which would prohibit an executive branch agency from requiring federal contractors to disclose political contributions as a condition of participation. This amendment is a direct response to a draft Executive Order being considered by the Obama Administration which would link political contributions from companies with government contracts.

As proposed, the draft Executive Order brings politics to the forefront of the government contracting process, and creates the impression that any Administration could discriminate against businesses based on past political donations or engagement. The Cole Amendment would not allow an executive agency to require this kind of disclosure which would prevent companies from being unfairly discriminated against if they are bidding for a government contract. 

We are opposed to the current draft Executive Order and will continue to oppose any effort by the Administration to infringe on the rights of individuals which allows them to freely participate in the political process. 

The Cole Amendment was just debated on the House floor a short time ago and the vote could come this evening. We will post more information as it becomes available. 

Rosario Palmieri is vice president of infrastructure, legal and regulatory policy, National Association of Manufacturers.

Federal News Radio’s report, “Obama’s regulatory reforms draw mixed reviews,” provides a thorough round-up of the reaction to President Obama’s new positioning on federal regulations, including the Executive Order, “Improving Regulation and Regulatory Review.” It’s informative to read the comments Cass Sunstein, the head of the Office of Information and Regulatory Affairs.

“The Executive Order makes clear that the look back process will occur with full understanding of the agency’s priority settings and resource constraints in a tough budgetary environment. So we expect the agencies will take this process very seriously but do so in way that recognizes resources are not unlimited.”

Sunstein said agencies will have to find a way to do the look back based on the resources they have already.

“I don’t anticipate any additional budgetary assistance for the look back,” he said. “We do anticipate a rule of reason where agencies will be expected to make their own choices about how to balance the cost because in many of the agencies there either is some process of look back and because of all agencies there is considerable expertise about the existing set of programs, we don’t think this will require huge resources to be invested.”

Phew, exhaled the EPA officials. We have so many pending regulations that we really don’t have the budget and personnel to go back a look at the old ones. Carry on!

And at least one activist sees the new review process as an opportunity for MORE regulations. Gary Bass, head of OMBWatch, commented: “Bass said by looking back at existing regulations agencies may find not only outdated policies, but also gaps where new ones are needed.” (continue reading…)

From President Obama’s Wall Street Journal op-ed, “Toward a 21st-Century Regulatory System“:

[We] are also making it our mission to root out regulations that conflict, that are not worth the cost, or that are just plain dumb.

For instance, the FDA has long considered saccharin, the artificial sweetener, safe for people to consume. Yet for years, the EPA made companies treat saccharin like other dangerous chemicals. Well, if it goes in your coffee, it is not hazardous waste. The EPA wisely eliminated this rule last month.

Wall Street Journal editorial, “Obama’s Rules Revelation“:

One example Mr. Obama cited yesterday is a now-defunct EPA rule that treated saccharin like hazardous waste, as if the current problem is archaic rules. But growth isn’t lethargic because there are still colonial laws on the books about when livestock are allowed to graze on the village green. The real problems are those his own Administration and its allies have created—the regulatory blowout of the 111th Congress and the laws his appointees are now abusing to bypass democratic consent.

Jacob T. Levy, McGill University, “Cass Sunstein in the News“:

Note that Obama’s op-ed named just one example of overregulation, already repealed: the classification of saccharine as hazardous waste by the EPA. And it foresees new or stiffer “safety rules for infant formula; procedures to stop preventable infections in hospitals; efforts to target chronic violators of workplace safety laws.” The emphasis of the piece is hardly on any claim that in fact there is too much regulation in any area. The tone is generally one that says “we’ve been doing things basically right and now we will confirm that will a self-audit.”

From the Office of Information and Regulatory Affairs, a chart:

(continue reading…)

Below we note the issue of state attorneys general hiring private attorneys to take a flyer on product liability lawsuits, allowing trial lawyers to wield the state’s authority in the interest of personal gain. It’s an abuse of due process.

Now imagine if the federal government followed the same practice, handing out the equivalent of letters of legal marque to buccaneering law firms to do the work of the Justice Department. Every so often the trial lawyers would strike it rich, extorting billions from a company and industry, with a certain (not predetermined, merely thanks to like-mindedness) amount of the money returning to favored candidates in the form of campaign contributions. (For a good, quick discussion of how that game is played, see the American Tort Reform Association’s latest “Judicial Hellholes” report, the chapter, “Dangerous Liaisons.”

To his great credit, President Bush specifically prohibited such arrangements by executive branch agencies with his May 16, 2007, Executive Order 14433, “Protecting American Taxpayers From Payment of Contingency Fees.” Excerpt:

Section 1. Policy. To help ensure the integrity and effective supervision of the legal and expert witness services provided to or on behalf of the United States, it is the policy of the United States that organizations or individuals that provide such services to or on behalf of the United States shall be compensated in amounts that are reasonable, not contingent upon the outcome of litigation or other proceedings, and established according to criteria set in advance of performance of the services, except when otherwise required by law.

Sec. 2. Duties of Agency Heads. (a) Heads of agencies shall implement within their respective agencies the policy set forth in section 1, consistent with such instructions as the Attorney General may prescribe.

(b) After the date of this order, no agency shall enter into a contingency fee agreement for legal or expert witness services addressed by section 1 of this order, unless the Attorney General has determined that the agency’s entry into the agreement is required by law.

We now move into the realm of pure political speculation and merely observe the following: The revocation of this executive order by the next President of the United States would be a very revealing signal about his perception of the legal process and the trial lawyer lobby.

The White House has announced that President Bush will make a statement at 1:30 today in the Rose Garden. The news is big and welcome: He will announce that his is lifting the executive order that prohibits drilling on the Outer Contintental Shelf.

The AP has a story: The executive order was signed by President George H.W. Bush in 1990.

The New York Times covered the first President Bush’s prohibition — then only for 10 years — on OCS drilling in this story, June 27th, 1990, “Bush Cuts Back Areas off Coasts Open for Drilling.” The Times quotes a statement from the American Petroleum Institute:

The American Petroleum Institute, a trade group of major oil companies, estimated that as a result of the policy the country will lose about two million barrels of oil a day, about a fourth of current domestic production.

In a statement made public today, the institute complained: ”These decisions on offshore oil and natural gas leasing are harmful to our country and economy. They will lead to decreased domestic production, more imports , more dependency on OPEC, more tanker traffic, and the export of jobs and investment overseas.”

”Locking up these energy-rich lands at a time when our dependency on foreign energy is escalating,” the statement said, ”is a serious mistake.”

API was right, wasn’t it?

UPDATE (11:48 a.m.): In this June 18 news release, the National Association of Manufacturers called on President Bush to lift the executive moratorium.