Improving Regulatory Systems

EXECUTIVE SUMMARY AND INTRODUCTION

The rulemaking process is very complex. Not long ago, a federal agency
found that it needed an 18-foot chart, with 373 boxes, to explain its
rulemaking process. And this agency's process was not unusually complex.
Despite this complicated process, regulations do not always achieve
their intended benefits and can cause additional problems.  Consider,
for example, that:

--Chocolate makers had trouble determining how to comply with the
Occupational Safety and Health Administration's noise standards without
running afoul of the Food and Drug Administration's hygiene standards.

--The 1982 Surface Transportation Assistance Act required the Department
of Transportation to force trucks to carry "splash and spray suppression
devices"--that is, fancy mud flaps--to curtail the road spray on cars
traveling nearby, although tests showed that the flaps did not improve
car drivers' visibility and, thus, road safety.

--Only the intervention of senior Transportation Department officials
prevented the National Highway Traffic Safety Administration (NHTSA) and
the Federal Aviation Administration, both located within the department,
from imposing regulations that would have forced parents traveling by
airplane to carry along two child seats--one for the plane ride, a
second for car rides taken during the trip.

Federal regulations, of course, are not supposed to create problems like
that for individuals, businesses, and state, local, and tribal
governments.  But such problems are not surprising, considering the
number of regulations on the books. Nonetheless, although Americans
dislike regulations in general, they support specific ones to promote
health, safety, environmental, and other goals.

THE EFFECTS OF REGULATION. Regulations affect virtually every American
citizen, household, business, institution, community, and level of
government. They reduce the amounts of lead in the air we breathe;
ensure that cars have seat belts, air bags, safety glass, and brakes
that work; require content and nutrition labeling of foods; establish
eligibility for agricultural, educational, and small business loans and
grants; and define distinctions between legitimate and deceptive
advertising, fair and unfair business practices.

And, in fact, regulatory programs have produced real results. The
NHTSA's crash-worthiness and brake standards have saved at least 112,000
lives in the last 25 years, while the Consumer Product Safety Commission
helped to cut in half the annual number of electrocutions involving
consumer products.  Nevertheless, the federal regulatory system is not
working as well as it should. Many federal regulations impose too many
constraints on individuals and businesses (such as by unnecessarily
using command-and-control structures that tell regulated parties
precisely what to do) while still failing to accomplish the goals for
which they were imposed.

The task at hand is straightforward, but challenging.  We need to give
the public the protection and services it expects at a reasonable cost,
while eliminating ineffective and avoiding unnecessarily burdensome
regulations. And we must do so at a time when most agencies will face
the dual, and seemingly contradictory, pressures of providing more
services with fewer resources.

Generally speaking, regulators and Congress should employ regulations
more selectively and sometimes use other approaches to accomplish their
goals, such as providing more information to consumers. When opting for
regulations, regulators should use market-based, performance-oriented or
other innovative approaches, thus giving affected parties more freedom
to meet the goals behind the rules. The government should better educate
its regulators about possible tools at their disposal. And regulators
should communicate more with the public and other interested parties and
rely more heavily on scientific data.

THE REGULATORY PROCESS. Regulations are directives, standards, or
procedures, supported by penalties or other sanctions, that are designed
to shape the behavior of individuals, businesses, and state, local, and
tribal governments..[Endnote 1] The federal government employs
regulations for much of what it does--distributing grants, benefits,
contracts, and other subsidies; protecting bank depositors and imposing
other financial service requirements; and enforcing health, safety, and
environmental laws.

The development of regulations involves four key players: (1) Congress
passes legislation to authorize or require an agency to issue
regulations; (2) the executive branch decides the form and extent of
regulations; (3) interested parties may comment on proposed regulations
or challenge final ones in court; and (4) federal courts, which review
regulations that are challenged in lawsuits, sometimes order agencies to
revise the challenged regulations.

The number of regulations that agencies issue varies dramatically.
Agencies may issue just a few regulations a year or thousands. While the
time that agencies devote to developing regulations also may vary
widely, they will typically take 12-18 months to develop a proposed
regulation after a statute is enacted, and another 12-18 months to issue
a final regulation.

The process by which agencies issue regulations is governed by numerous
statutes, executive orders, and internal agency policies and
requirements. While the Administrative Procedure Act establishes a
simple, straightforward process, also important are such laws as the
Paperwork Reduction Act, Regulatory Flexibility Act, Federal Advisory
Committee Act, Negotiated Rulemaking Act, and National Environmental
Policy Act. In addition, such laws as the Clean Air Act and the General
Education Provisions Act impose procedural requirements for certain
specific regulations.

Agencies have developed their own lengthy review procedures, designed to
ensure coordination among agency and department offices. The full review
process--within the agency, department, and administration--normally is
repeated twice, first when the regulation is proposed and then again
when it is finalized.

Executive orders also play a major role in shaping regulations.
Executive orders require agencies to conduct specific analysis (such as
a cost-benefit analysis), establish centralized review by OMB of
proposed and final regulations, and establish mechanisms to coordinate
and plan executive branch rulemaking activities.

IMPROVING THE REGULATORY PROCESS. The President, agencies, and Congress
need to take a series of steps to improve the process to accomplish
regulatory goals in a cost-effective manner.

First, to help agencies share information and coordinate their
approaches to regulatory issues, the President should create an
interagency regulatory coordinating group (RCG). This group should
include political appointees or their designees from key domestic
regulatory agencies and certain key White House advisors. This group
should, within a year, oversee the development of a manual of regulatory
approaches.

Second, the President should direct agency heads to use market-oriented
and other innovative approaches to regulation whenever they are
appropriate. For example, rather than order coal-fired power plants to
install scrubbers (a type of pollution control equipment) the government
might order such plants not to emit more than a given number of pounds
of sulfur dioxide per million BTU (British thermal unit) and let them
decide how to meet that requirement.

Third, in the hopes of encouraging consensus-based rulemaking, the
President should encourage agencies to use negotiations to develop
regulations--i.e., the "reg neg" process. This process allows
representatives of an agency to work with affected interests in a
cooperative effort to develop regulations.

Fourth, the President and agencies should take steps to enhance public
awareness and participation both in developing and implementing
regulatory programs. The President should encourage agencies to convene
focus groups, hold more useful public hearings, and use other tools by
which to involve those who are affected by their regulations. Agencies
also should consider using information technology more aggressively.

Fifth, agencies will streamline their internal rulemaking processes,
including recommending whether legislative changes are needed. Agencies
will begin to experiment with "direct final" rulemaking, which will
sharply reduce the time needed to implement non- controversial
regulations.

Sixth, in enforcing regulations, the President should strongly encourage
agencies to use alternative means of dispute resolution--which refers to
a collection of techniques that are designed to help disputing parties
resolve conflicts in mutually agreeable ways.  Such "ADR" techniques
could help nourish more cooperative relations between regulators and
regulated parties.

And finally, among its other recommendations, this report suggests that
agencies concentrate their regulatory resources on the most serious
environmental, health, and safety risks and engage in long-term
regulatory planning; that the President order relevant agencies to
create science advisory boards as tools to use scientific data more
widely in agenda-setting and decision making; that agencies establish
technical drafting services for congressional committees and
subcommittees; and that the administration take steps to provide more
training for agency heads and staff.

Endnotes

1.  For this report, "regulation" is defined to exclude those
regulations affecting how the government runs itself (e.g., personnel,
budget, and procurement), which are addressed in other National
Performance Review Accompanying Reports.


INTRODUCTION

When our society decides government intervention is necessary to solve
problems in fields such as transportation, banking, health, agriculture,
education, housing, or the environment, the federal government often
responds with regulations. Congress enacts legislation allowing or
requiring an agency to come up with a solution, and then the agency
issues regulations that detail how the solution will be
implemented..[Endnote 1]

Public opinion polls have shown that "while Americans dislike
regulations as a general matter, when asked about specific programs,
such as for health and safety, they respond favorably."[Endnote 2] No
one wants to return to the days when even minor accidents could be fatal
or seriously disfiguring because cars were not required to have seat
belts or windshields made of safety glass, or when unchecked water
pollution caused dead lakes and burning rivers.

Regulatory programs have significantly improved our quality of life. For
instance, the benefits of environmental regulation are illustrated by a
comparison of our air and water quality to that of former Eastern bloc
countries, which did not regulate pollution effectively. Another
example: at least 112,000 lives have been saved in 25 years as a result
of crashworthiness and brake standards issued by the National Highway
Traffic Safety Administration.[Endnote 3] The Consumer Product Safety
Commission helped cut in half the annual number of electrocutions
involving consumer products.[Endnote 4]

Nevertheless, too many businesses and individuals feel constrained by
the cumulative burden of regulations issued by many diverse federal
agencies--particularly by those regulations that are poorly conceived or
duplicative. Everyone running a business has his or her own illustration
of unnecessary regulation. The American public's desire to get
government off its back is strong.

The challenge facing government is how to do both--provide the public,
the government's ultimate customer, with the protection and services it
expects at a reasonable cost, while getting rid of or avoiding
unnecessary, burdensome regulations. Further complicating the picture is
the reality that most agencies will be required to provide more services
with fewer resources. Some regulatory agencies have already seen
workloads skyrocket while resources decreased.[Endnote 5] Given the
budget deficit, most agencies will not have increased resources in the
near future.

What are Regulations?
 Regulations are federal requirements, directives, standards, or
procedures, backed by the use of penalties or other sanctions, that are
intended specifically to modify the behavior of state and local
governments, private industry, businesses, and individuals.[Endnote 6]
Regulations are almost always required whenever the federal government
acts. For example, regulations assist in:

--the distribution of grants, benefits, contracts and other subsidies;

--the protection of depositors in financial institutions; and

 --the enforcement of health, safety and environmental laws.

When people think of regulation, they usually think of
command-and-control regulations--i.e., where the government decides
precisely what action regulated entities must take. A requirement that
coal-fired power plants install a scrubber (a specific type of pollution
control equipment) is an example of command-and-control regulation.

Some regulatory programs, however, leave more discretion with the
regulated entity and take advantage of market forces to achieve the
desired result. For example, performance standards might require power
plants to emit no more than a given number of pounds of sulfur dioxide
per million Btu (British thermal unit) produced. Individual plants then
would decide how to meet the standard.  Alternatively, an information
disclosure program might require food processors to label their products
for content and nutrition to permit consumers to make informed choices.

In addition to issuing binding regulations, agencies also rely on other
methods to establish agency policy, such as policy statements, guidance
documents, enforcement manuals, and memos to agency personnel. Although
legally these policies cannot bind people outside the agency, as a
practical matter, they may have that effect. (These other methods are
not required to undergo the regulatory review procedures described
below.)

How are Regulations Developed?

Four key actors are involved in developing regulations. Congress passes
legislation that authorizes or requires an agency to issue regulations.
The executive branch (including independent regulatory agencies),
working within the statutory limits imposed by Congress, decides the
form and actual substance of regulation and issues individual rules
through a rulemaking process.  Interested members of the public may
provide input to Congress, comment on regulations proposed by agencies,
and challenge final regulations in court.  Federal courts review rules
when they are challenged in lawsuits brought against the government. The
courts can order agencies to revise rules if they determine that rules
are arbitrary and capricious or violate the Constitution or a statute.

The process by which agencies issue rules is governed by numerous
statutes, executive orders and internal agency policies and
requirements. A simplified, typical version of the rulemaking process is
described in the flow chart in Figure 1. In fact, the process is far
more complicated, as is evidenced by flow charts of several agency
processes that were reviewed.

The time devoted by agencies to develop rules varies
dramatically.[Endnote 7] In general, though, a relatively common time
line is 12 to 18 months from enactment of the authorizing statute to
issuance of a Notice of Proposed Rulemaking, and another 12 to 18 months
between this notice and issuance of the final rule.  The number of
regulations agencies issue also varies dramatically depending on the
scope and nature of the agency's programs. Some agencies, like the
National Telecommunication and Information Administration in the
Department of Commerce, may issue only a handful of rules a year.
Others, like the National Oceanic and Atmospheric Administration or the
Federal Aviation Administration, may publish hundreds (or even
thousands) of regulations a year.

BASIC RULEMAKING PROCESS. The Administrative Procedure Act (APA) is the
basic legal structure governing the rulemaking process.[Endnote 8] It
establishes a simple and straightforward process.[Endnote 9] Under
Section 553 of the APA, the agency generally must publish a notice of
proposed rulemaking in the Federal Register that either sets forth the
proposed rule or describes what the agency intends to do. The agency
must allow the public to comment in writing on the proposed rule. (The
Act does not specify a time period for comments, but agencies usually
allow at least 30 days. Agencies sometimes also allow public comment at
a hearing on the proposed rule.) The agency then is required to review
the public comments, modify the rule as appropriate, and publish the
final rule and a "statement of basis and purpose" in the Federal
Register.

Over the years, a large number of other requirements have been layered
on top of this simple process.  Individually each requirement may serve
a useful purpose.[Endnote 10] Cumulatively they have made the rulemaking
process increasingly burdensome and rigid.  [Endnote 11]

Additional Statutes Governing the Rulemaking Process

Several other statutes govern the rulemaking process:

--The Paperwork Reduction Act requires the Office of Management and
Budget (OMB) to review all regulations that require the public to submit
information (or make it available) to the government.[Endnote 12]

--The Regulatory Flexibility Act requires agencies to consider the
special needs and concerns of small entities, particularly small
businesses, and to prepare a "regulatory flexibility analysis"
describing the rule's effect on these entities.  [Endnote 13]

--The Federal Advisory Committee Act governs the use and creation of
committees that include non-federal employees to get advice or
recommendations in the rule-making process.[Endnote 14]

--The Negotiated Rulemaking Act provides guidelines for certain types of
consensus-based rulemaking.[Endnote 15]

--The National Environmental Policy Act requires agencies to analyze the
effect of the regulation on the environment and, in certain
circumstances, to prepare an environmental impact statement.[Endnote 16]

ome specific substantive statutes (e.g., the Clean Air Act and the
General Education Provisions Act) mandate additional procedural
requirements for specific rules.[Endnote 17]

EXECUTIVE ORDERS GOVERNING THE RULEMAKING PROCESS.  Requirements have
also been added by executive orders. Presidents Nixon, Ford, and Carter
each developed his own procedures for review of executive agency
rules.[Endnote 18] During the Reagan and Bush administrations, Executive
Order 12291 (February 1981), required agencies to forward to the Office
of Information and Regulatory Affairs (OIRA) in OMB all proposed and
final rules for review before issuing them in the Federal
Register.[Endnote 19] OIRA's staff would review the rules for
consistency with administration policy and consult with other offices
within the Executive Office of the President and with other agencies.
Conflicts or inconsistencies in policies or requirements, to the extent
they were identified, were then resolved before OIRA would complete its
review of the proposed or final rule. As a practical matter, rules were
rarely issued without OIRA clearance.[Endnote 20]

During the last half of the Bush administration, some controversial
rules were also reviewed by the President's Council on Competitiveness.
The Council, chaired by then-Vice President Quayle and nominally
composed of key Cabinet officials, worked through a White House staff
that wielded great power over agency rulemaking through its
participation in the OMB review process. It was criticized for giving
big business special back-door access to the rulemaking process.

During the Reagan and Bush administrations, coordination and regulatory
planning were also covered by Executive Order 12498 (January 1985),
which required each agency to submit annually to OMB a draft regulatory
program. The program was described as "a statement of [the agency's]
regulatory policies, goals and objectives for the coming year and
information concerning all significant regulatory actions underway or
planned." OMB then reviewed the draft programs for consistency with
administration principles and priorities and the planned actions of
other agencies.[Endnote 21] During this time, other executive orders
also required agencies to analyze regulations for federalism
implications, family values, regulatory takings, and litigation
effects.[Endnote 22]

The day after taking office, President Clinton announced the termination
of the Council on Competitiveness. In addition, the Clinton
administration is issuing a new executive order revoking and replacing
Executive Orders 12291 and 12498. The Clinton administration's
regulatory review process is designed to continue the concept of
centralized review while avoiding pitfalls of the previous processes,
such as review of too many regulations, delay, lack of adequate public
participation, and lack of openness. The process will make planning more
systematic, will eliminate the multiple impact statements, and will
establish a triage system by which agencies and OIRA, working together,
identify which upcoming rules are significant enough to warrant OMB
review.

Note: The Clinton administration regulatory review executive order was
developed by a special working group within the White House. This
working group focused on regulatory planning and executive review.  NPR
addressed broader issues, although there were many areas of overlap. The
two groups worked closely with each other and their efforts are
complementary.  NPR strongly supports the regulatory review process
developed by the White House working group, which is described in
Appendix A.

AGENCY REQUIREMENTS GOVERNING RULEMAKING. In addition to the
requirements imposed by Congress through statute and by the President
through executive orders, most agencies that engage in substantial
rulemaking activities have developed lengthy internal review procedures
to ensure coordination among agency and department offices. These
procedures allow rules to benefit from the full range of expertise and
perspectives within the department. The office in charge of the rule
often must obtain clearance from certain staff offices (e.g., general
counsel's office) and sometimes from other program offices. For those
agencies that are part of a cabinet department (such as the Federal
Aviation Administration, which is part of the Department of
Transportation), clearances frequently are required at the department
level. The entire review process, within the agency, within the
department, and within the administration, is normally repeated
twice--first when the rule is proposed and again when the rule is
finalized.[Endnote 23]

What are the Problems With the Current System?

There are problems with both the substance of regulations and the
process by which they are issued.  Sometimes the problems are linked.
These problems are addressed at length in the recommendations that
follow; the most significant ones are summarized here.

One of the major problems is that regulatory programs rely too heavily
on traditional command-and-control regulation rather than on more
innovative, market- oriented mechanisms that allow regulated entities
greater flexibility in meeting regulatory objectives.  This
over-reliance on command-and-control stems from a variety of causes,
including:

--congressional and agency lack of knowledge about innovative regulatory
design,

--congressional distrust of agencies, which makes Congress hesitant to
grant agencies the flexibility to try new approaches,

--lack of information necessary to design an innovative regulatory
approach, and

--agency and congressional distrust of regulated entities.

Another major problem with the content of regulations is that society
does not always get the maximum benefits from the amount it spends on
regulation.  This is partially due to Congress' and regulators'
over-reliance on command-and-control regulations. It is also the result
of insufficient planning and prioritization, which can lead to
inefficient expenditures, including forcing society to spend more money
to address small problems rather than major ones.

The multiple layers of review in the rulemaking process--exemplified by
the 18-foot chart with 373 boxes one agency used to describe its
process--are also a problem. While extensive review and coordination are
appropriate for significant rules (the government should not impose
regulations lightly), such an approach is inappropriate for simple or
routine rules.

The long time it frequently takes agencies to issue rules also is a
major problem because it delays resolution of the problem the rule is
supposed to address and creates uncertainty. Some delay arises from the
need to obtain public comments or additional scientific or other
information. On the other hand, undue delay can be caused by
inappropriately long agency and executive branch clearance processes.

Lack of information is another serious problem. To a certain extent,
this stems from the adversarial nature of the rulemaking process; in
many rulemakings, regulated entities, public interest groups, and other
parties are more interested in protecting their own positions than in
providing useful information to the agency or finding a solution to the
problem. Incomplete scientific data and the pressures of time also
require agencies to make decisions without as much information as would
be ideal.

What Should a Rulemaking Process Accomplish?

The rulemaking process has evolved over time to become a lengthy,
complex process. To determine how to improve the regulatory system, it
is necessary to identify its objectives. Ideally, the rulemaking process
should produce a rule that:

--addresses an identifiable problem,

--implements the law faithfully,

--implements the President's policies,

--is in the public interest,

--is consistent with other rules and policies (federal, state, local,
tribal, and international),

--is based on adequate information,

--is adequately and rationally justified,

--accomplishes goals in a cost-effective manner,

--can actually be implemented,

--is acceptable and enforceable,

--is easily understood, and

--stays in effect only as long as is necessary.


The process should:

--respond in a timely manner,

--be efficient, and

--be both fair and perceived as fair.

The rulemaking process requires agencies to balance these objectives
because some of them are at odds with each other. For example,
collecting adequate information takes time and may prevent an agency
from responding in a timely manner. Circumstances or the state of
scientific knowledge may have changed since legislation was passed so
that a rule that implements the law faithfully may no longer address an
identifiable problem. The easiest rule to enforce may not be the most
effective or efficient. Thus, in designing a process, and in individual
rulemakings, agencies must make trade-offs between the different goals
of the regulatory process.

An improved regulatory process needs to produce regulations that achieve
their goals more efficiently. To do this, regulators must have the
flexibility to strike the proper balance among the objectives of the
rulemaking process. The complexity of the rule, the level of agency
expertise, the extent of public interest, the presence of scientific
issues, and other factors will determine the appropriate balance.
Striking the right balance will ensure that regulators select the right
regulatory tool to solve the problem.

Endnotes

1. Although many statutes require agencies to issue regulations to
implement and clarify the provisions, some statutes are
self-implementing or detailed enough that regulations are unnecessary.

2. Adler, Robert, Stephen Klitzman, and Richard Mann, " Shaping Up
Federal Agencies: A Basic Training Program for Regulators," Journal of
Law & Politics, vol. VI, no. 2 (Winter 1990), p. 347.

3. National Highway Traffic Safety Administration and Federal Highway
Administration, Moving America More Safely: An Analysis of the Risks of
Highway Travel and the Benefits of Federal Highway, Traffic, and Motor
Vehicle Safety Programs (September 1991), p.  48.

4. U.S. Consumer Product Safety Commission, Report on Accomplishments
and Planned Activities (Washington, D.C., June 1993), p. 1.

5. The Carnegie Commission on Science, Technology, and Government
reported that:  [B]etween 1980 and 1985, EPA's staff decreased by
approximately 10 percent, even though the agency assumed responsibility
for the substantial Comprehensive Environmental Response, Compensation,
and Liability Act [Superfund] in 1980; Congress also reauthorized and
significantly expanded three other acts in EPA's jurisdiction during
this period. . . .  [I]mports of substances under [FDA's] jurisdiction
tripled from 500,000 entries in 1971 to more than 1.5 million in 1990.
Between 1985 and 1990, R&D expenditures in the pharmaceutical industry
doubled, leading to a sharp upturn in applications for new products
submitted to FDA. In 1989, agency reviewers received 82 percent more
applications than in 1980.  From 1980 to 1988, FDA was required to
implement 21 new laws and amendments, while its overall work force
decreased by 11 percent.  Carnegie Commission on Science, Technology,
and Government, Risk and the Environment: Improving Regulatory Decision
Making (Washington, D.C., June 1993), pp. 33-34 (footnotes omitted).

6. For purposes of this report, "regulation" is defined to exclude
regulations controlling how the federal government runs itself. Other
National Performance Review reports are addressing these types of rules
(e.g., personnel, budget, and procurement).

7. For example, when there is an emergency, the Federal Aviation
Administration can issue an airworthiness directive modifying aircraft
requirements within hours of an accident without undergoing
notice-and-comment rulemaking. At the other extreme, the rule requiring
passive restraint devices in cars took 15 years from initiation of
development, through litigation, to implementation of a final rule.

8. Public Law 404 (June 11, 1946), codified in principle part at 5
U.S.C.    551-559, 701-706 (1988).

9. Although the accompanying text describes the standard Administrative
Procedure Act (APA) procedures, those procedures may not apply in
certain circumstances because of special provisions in the APA. For a
full description of the basic process and the exceptions contained in
the APA, see Administrative Conference of the United States, A Guide to
Federal Agency Rulemaking, 2nd ed. (1991).

10. Some commenters have argued that those opposed to regulation added
such requirements purposefully to slow the rulemaking process. See
authorities cited in Eisner, Neil R., "Agency Delay in Informal
Rulemaking," Administrative Law Journal, vol. 3, no.  1 (Spring 1989),
n. 24 and accompanying text.

11. Students of the regulatory process refer to this as the
"ossification" of the rulemaking process.  McGarity, Thomas O., "Some
Thoughts on 'Deossifying' the Rulemaking Process," Duke Law Journal,
vol. 41 (June 1992), pp. 1385-86.

12. 44 U.S.C.    3501-3520 (1990).

13. 5 U.S.C.    601-612 (1988).

14. 5 U.S.C. App. (1988).

15. 5 U.S.C.A.    561-570 (1993 Supp.).

16. 42 U.S.C.    4321-4347 (1988).

17. 42 U.S.C.   7607 (1991 Supp.), and 20 U.S.C.
  1232 (1988).

18. Carnegie Commission, Risk and the Environment, p. 48.

19. Executive Order (EO) 12291 did not require independent agencies to
clear regulations through the Office of Management and Budget (OMB).
Certain categories of time-sensitive, technical, and noncontroversial
rules did not have to be cleared by OMB pursuant to agreements OMB
reached with some agencies. The executive order did not require OMB
review of certain other categories of rules, including those relating to
military or foreign affairs, or to agency organization, management, or
personnel (EO 12291 1(a)). Technically, a rule could be published
without OMB clearance in case of emergencies or if obtaining such
clearance conflicted with statutory or court-ordered deadlines (EO
12291, 8(a)). Nevertheless, for practical, political reasons, agency
heads seldom chose to publish rules without OMB clearance, except when
faced with true emergencies or court-ordered deadlines.

20. Although the head of an agency or department usually had legal
authority to issue the rule, politically it was almost impossible to do
so prior to clearance from OMB.

21. Darman, Richard G., Director of OMB, "Presidential Review of Agency
Rulemaking," memorandum for the heads of departments and agencies, April
3, 1989, attachment.

22. E.O. 12612, 52 FR 41685 (1987); E.O. 12606, 52 FR 34188 (1987); E.O.
12130, 53 FR 8859 (1988); and E.O. 12778, 56 FR 55195 (1991).

23. For an interesting discussion of how the rulemaking process works in
the context of a particular rule, see Elliott, Donald, "TQMing OMB: Or
Why Regulatory Review Under Executive Order 12291 Works So Poorly and
What President Clinton Can Do About It," draft, August 17, 1993, pp.
10-16, forthcoming in Law and Contemporary Problems, vol. 57 (1994).