FR 2021-01644

The Executive Order titled "Ensuring Democratic Accountability in Agency Rulemaking," issued by the President, is a document aimed at enhancing the democratic oversight over federal agencies' rulemaking processes. It emphasizes that significant decisions on agency regulations should rest with senior officials who are accountable to elected officials. The directive seeks to align agency rulemaking with democratic principles by ensuring that senior appointees, rather than career officials insulated from electoral processes, have the ultimate authority over rule initiation and approval. This approach underscores the President's influence over agency heads and, by extension, the rulemaking process.

Summary and Purpose

The Executive Order mandates that only senior appointees, who are either appointed by the President or fall within a specific executive service category, should have the final authority to sign and initiate agency rules. This measure strives to ensure that regulatory decisions reflect the elected administration's policies and the electorate's choice, reinforcing democratic accountability. It also requires agencies to revisit existing delegations of rulemaking authority and adjust them to comply with the order. Notably, there is room for exemption in cases where public safety or security is at risk, allowing agency heads to bypass the rule temporarily with appropriate notification.

Significant Issues and Concerns

Several issues arise from this order. Firstly, the language used is formal and might be challenging for the general public to understand without a background in administrative processes. Furthermore, the order concentrates rulemaking authority in senior appointees, which could potentially discount the valuable expertise of career officials familiar with complex regulatory landscapes. The criteria for public safety or security exemptions remain vaguely defined, as agency heads must notify a designated Administrator but without clear guidelines on what constitutes public safety or security threats.

The requirement to review and report on existing rules spanning the last 12 years is ambitious and might be resource-intensive, posing a risk of inefficiency. Without explicit consequences for non-compliance, the effectiveness of the order might be compromised. Additionally, senior appointees' definition could inadvertently exclude experienced career officials, narrowing the pool of expertise considered in the rulemaking process. Details on how compliance will be monitored are not specified, which might lead to varied adherence levels across agencies.

Impact on the Public and Stakeholders

This Executive Order has broader implications for the public and specific stakeholders. For the general public, it intends to enhance their role in governance by ensuring that those responsible for significant regulatory decisions are accountable to elected leaders, providing a clearer linkage between voter choices and regulatory outcomes. However, by potentially marginalizing expert input from career officials, the rules might lack the depth of insight typically provided by seasoned bureaucrats familiar with historical context and technical specifics.

For stakeholders within federal agencies, primarily career professionals, this order may lead to feelings of disenfranchisement as their rulemaking influence might be curtailed. In contrast, senior appointees could gain more significant decision-making authority, aligning regulatory action more closely with the administration's political objectives. This shift could result in quicker policy implementations reflecting the current administration's agenda.

In conclusion, while this order seeks to tighten democratic accountability within federal rulemaking, its execution must carefully consider and address the outlined concerns to ensure that it benefits governance without undermining the expertise and stability within federal agencies.