Air Pollution:

Impact of White House Entities on Two Clean Air Rules

RCED-93-24: Published: May 6, 1993. Publicly Released: Jun 8, 1993.

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Pursuant to a congressional request, GAO reviewed the Environmental Protection Agency's (EPA) rulemaking pursuant to the Clean Air Act Amendments of 1990, focusing on: (1) White House involvement in the rulemaking process; (2) changes that occurred after White House participation; and (3) EPA compliance with public docket requirements.

GAO found that: (1) two EPA Clean Air Act rules significantly changed after White House participation; (2) there is no evidence that EPA violated Clean Air Act public docket requirements, since it was not required to docket communications between White House entities and nongovernment persons; (3) docket requirements facilitate effective public participation in the rulemaking process and provide the basis for a reviewing court to determine that an EPA rulemaking is not arbitrary and capricious; (4) although EPA and the Office of Management and Budget (OMB) have established procedures for OMB to disclose communications with outside parties, OMB has not always done so; (5) White House failure to disclose all communications on proposed rulemaking could decrease public confidence in the integrity of the rulemaking process; and (6) Congress has considered legislation that would require the disclosure of all oral and written communications between nongovernment persons and White House entities on federal rulemakings.

Matter for Congressional Consideration

  1. Status: Closed - Implemented

    Comments: Due to the far-reaching effect of the new executive order, new legislation has not been passed, although the EPA rulemaking process was the subject of one oversight hearing. In September 1993, the Senate Committee on Environment and Public Works held a hearing where new EPA Administrator Carol Browner and new OMB/Office of Information and Regulatory Affairs head Sally Katzen discussed both OMB's and EPA's efforts to reform the federal rulemaking process.

    Matter: As Congress deliberates new legislative proposals to establish disclosure requirements for White House entities involved in reviewing agency rules, it may wish to monitor EPA experiences in negotiating agreements with these entities to disclose all communications on EPA rules from persons or organizations outside the government.

Recommendation for Executive Action

  1. Status: Closed - Implemented

    Comments: Consistent with GAO's recommendation, EPA reiterated its strong support for full public disclosure in the rulemaking process in its December 14, 1993 response letter to the Senate Committee on Government Affairs. Although EPA agreed with the recommendation, the agency said that individual agency action on this recommendation had been overtaken by a new Executive Order (EO) issued September 30, 1993--about 5 months after the report. EO 12866 requires OMB to include agency staffs in any meetings or other communications with outside parties and to docket all relevant materials obtained, effectively closing a loophole in the federal rulemaking process discussed in the report. The order also makes OMB responsible for coordinating executive branch reviews of agency rules, and restricts the communications of other White House entities with outside parties during the rulemaking process, actions which also close a loophole in the federal rulemaking process discussed in the report.

    Recommendation: The Administrator, EPA, should forge agreements with all White House reviewing entities that would promote effective public participation, ensure complete records for judicial review, and enhance public confidence in the integrity of the clean air rulemaking process. At a minimum, these agreements should provide for: (1) White House entities' disclosure to EPA and subsequent docketing by EPA of all communications to the White House entities from persons or organizations outside the government about EPA rules, whether such communications are oral or written; and (2) opportunity for EPA staff to attend any meetings with such nongovernmental persons or organizations where EPA rules will be discussed.

    Agency Affected: Environmental Protection Agency

 

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