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By Ari Natter
Oct. 30 — The White House Office of Management and Budget takes more than five months on average to review regulations crafted by the Energy Department, making the department's rules the most delayed of all federal agencies, according to a Bloomberg BNA analysis of agency data.
Since the administration of President Barack Obama took office in January 2009, Energy Department rules have spent an average of 154 days at the Office of Information and Regulatory Affairs (OIRA), the OMB division charged with ensuring agency rules are consistent with White House policy among other duties.
Energy Department rules deemed “economically significant”—those that are expected to have an annual impact on the economy of $100 million or more—are reviewed for 176 days, or nearly six months, on average, according to the Bloomberg BNA analysis.
By contrast, the Pension Benefit Guaranty Corporation, which insures corporate pensions, was the second most delayed agency with rules having an average of 109 days of review, followed by the Labor Department at 107 days.
Environmental Protection Agency rules were reviewed at OMB for an average of 96 days and the newly created Consumer Financial Protection Bureau, which has only published one rule which was reviewed by OMB for 19 days, came in as the least delayed agency.
“Delays in reviews certainly matter,” Ronald White, director of regulatory policy for the Center for Effective Government, a nonprofit group that was previously called OMB Watch, said in an interview. “These long delays in rules are important in terms of improving public protection. It delays the benefits, and in a lot of cases we also know that OIRA reviews weaken the rules from what the agencies propose.”
The dilatory pace of OMB review of DOE and other agency rules comes despite Executive Order No. 12,866 signed by President Bill Clinton in 1993 that required OIRA to complete review of agency rules within 90 calendar days.
Federal agencies—other than independent regulatory agencies—are required to submit their draft rules to OIRA for review before they are published in the Federal Register.
The Energy Department publishes rules on areas ranging from how nuclear waste is managed to electric grid reliability standards, but the bulk of the delays stem from the agency's regulation of energy conservation for commercial, consumer and industrial products that set maximum energy usage standards for items like small motors, microwaves and commercial air conditioners, according to analysts.
Environmental groups such as the Natural Resources Defense Council have often complained that delays in implementing energy efficiency standards are leading to lost environmental benefits related to energy conservation and carbon dioxide emission avoidance.
“DOE has specific deadlines and if OMB just sits on those rules forever, it delays consumer savings,” Meg Waltner, the NRDC's manager of building energy policy, told Bloomberg BNA. “It really sort of mucks up the process.”
One efficiency standard, setting energy usage requirements for manufactured houses, spent two years under review at OMB before the agency ultimately decided to pull the rule back, said Andrew deLaski, executive director of the Appliance Standards Awareness Project, a Boston-based nonprofit.
The standards, required by the Energy Independence and Security Act of 2007, were opposed by groups such as the Manufactured Housing Institute, which represents companies such as modular home manufacturers Clayton Homes Inc. and Skyline Corp. They complained the rules were overly burdensome and would increase home prices beyond what consumers could afford.
Other efficiency standards that have spent multiple years under review include a regulation that would phase out the use of fossil fuel generated energy from new and remodeled federal buildings that was opposed by groups such as the American Gas Association, which has argued the requirement was technologically unfeasible to implement.
The rule, which was also required by the 2007 energy bill, was proposed by the Energy Department in 2010 but has yet to be implemented.
The agency issued a supplemental rulemaking earlier in October creating a process for affected parties to request a “downward adjustment” in the requirement among other changes after a legislative compromise that was included in energy legislation considered stalled in the Senate.
“The workload is backing up and at some point, you just can't get your work done. You're out of time,” said deLaski, citing nearly 20 more energy efficiency standards the Energy Department is expected to complete during Obama's last term in office. “These rules are similar. OMB should know how to review a DOE appliance standard at this point.”
A proposed rule setting energy efficiency requirements for large commercial rooftop air conditioners that was published in September, and also opposed by industry, was under review for six months, according to deLaski.
In a statement, the Office of Management and Budget said the number of rules it has had under review for more than 200 days had dropped by more than 50 percent in the past year and that the 90-day time period it has to review rules “can be extended.”
“The Administration is committed to a regulatory strategy that maintains a balance between protecting the health, welfare, and safety of Americans and promoting economic growth, job creation, competitiveness, and innovation,” the agency said in a statement to Bloomberg BNA. “Our goal is to maximize the effectiveness and benefit of the rules we complete. We have made it a priority to complete reviews in a timely manner.”
The Energy Department deferred comment to OMB.
DeLaski and other OMB critics say the delays are especially ironic because Obama vowed on the campaign trial to accelerate the pace of federal energy efficiency standards and the Obama administration has said a boost in energy efficiency is needed to address climate change.
The administration has set goals of both using the standards to reduce carbon pollution by at least 3 billion metric tons cumulatively by 2030 as well as “doubling energy productivity” by the same time, which translates into a roughly 20 percent reduction in the country's energy usage.
“There is no excuse for these delays,” deLaski said. “The president himself has said time and time again these standards are a priority.”
With assistance from Rachel Leven in Washington
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Data on OMB's review time for Energy Department regulations are available at http://op.bna.com/env.nsf/r?Open=fwhe-9qdtla
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