Posted in Executive - OMB Review, Judicial Review & Remedies, Regulatory Process
Management by Executive Order: Several press sources noted the fact that President Obama signed an Executive Order mandating that government credit cards and benefit cards use a digital chip in addition to the standard magnetic strip (sometimes called “chip-and-PIN technology”) – a security feature that has been available for some time, but has not yet been widely adopted because of increased cost of card manufacture. Some in the general press have overstated the potential effect of the executive order / management directive. The key point may be leadership by example, with the increased cost apparently absorbed by the government (or perhaps the government employees). Much of the order simply requires planning and communication.
► The Executive Order certainly makes sense, but needs to be understood in context. The new cards may have little effect outside government operations and protects federal employees and the government from loss more than anyone else, including the beneficiaries of Social Security and welfare benefits through a debit card (the potential amounts often are not substantial enough for a third party to divert). The Executive Order is merely a management tool that does not directly affect private parties, though it may encourage some behavioral changes.
► The Gainful Employment regulations need a careful review before any further action is taken – sadly, OMB (from the executive review perspective) and the Department of Justice (DOJ) (from the litigation / compliance perspective) need to oversee and coordinate that review to end ED’s continued inability to comply with the Administrative Procedure Act (APA) and court interpretations. Otherwise, the parties will continue to write new episodes (and we will continue to criticize them) in this wasteful epic.
- OMB meetings are “listening sessions”: OMB attorneys, analysts, and
examiners, agency officials, and even other Administration officials
treat OMB meetings as a formal opportunity for interested parties to
clarify issues and present data – requesters should not expect any
response; OMB and the agency may ask questions but will rarely answer
questions. The key is presentation of persuasive data.
- Data and substance are critical: OMB looks for substantive
analysis, whether refreshing prior public comments or providing new
insight. Professionals look for ways to make a decision and pressure
does not add substance.
- Some have decried these ex parte meetings, but such cries
are more often a political statement meaning “Don’t listen to them,
listen to us.” Those complaining may not have substantive information
- An interested party must request a meeting: although often freely permitted, OMB may refuse to meet if they do not perceive that the meeting will be productive. Thus, a record of “us, not them” may result in OMB seeing a requested meeting as a waste of their time.
► The decision on the motions is not particularly new or surprising, but together raise a question: once the plaintiff has pierced the presumption of regularity to compel additions to the administrative record, why is the presumption still permitted to the agency to protect what may be other failures? This issue has been raised in the past and will be raised again – and needs to be carefully considered on appellate review.* So that you are not surprised, there may not be a Monday Morning Regulatory Review next Monday.
Direct link to article: http://www.fedregsadvisor.com/2014/10/19/monday-morning-regulatory-review-102014-management-by-executive-order-gainful-employment-meetings-omb-meetings-record-completion-and-privilege/