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August 17, 2017
Does Reg Review threaten
Public Access?
By David Wojick, Ph.D.
Executive Order 13771 -- "Reducing Regulation and Controlling Regulatory Costs" -- was quickly issued in February 2017. Regulatory review is a traditional Presidential gesture, but unlike previous "feel good" efforts, this one has big teeth. In fact it has two provisions that are so strong they might be illegal.
First there is the "2 for 1" rule, which is not about bargain prices. It says that a federal agency cannot issue a new rule unless it has repealed two existing rules. Two repeals for every one new rule. In this case a rule can be either a formal regulation or a guidance document, basically whatever orders people to do stuff. .
Then there is the regulatory budget rule. It has long been the case that every significant regulation comes with a cost estimate. Thus there is also an estimated total cost for all of an agency's existing (significant) regs. The budget rule basically says that new rules cannot increase this total, which is now the agency's regulatory cost budget.
The intended result is that in order for an agency to issue a new rule, which has a given cost, it will have to cut the cost of its existing rules by an equal amount. It can do this either by repealing existing rules or by revising them to reduce their cost.
These two provisions are each far more sweeping than anything done before. Taken together they could change the way regulatory agencies operate, in effect requiring constant prioritization. Not surprisingly, these rules have already been challenged in Court, especially the 2 for 1 rule. Here the primary argument is that the agencies have statutory obligations to issue regulations, which the President cannot block.
Our concern here is not with the litigation, but with what might happen to Public Access if these reg review rules become truly effective. The primary concern is that regulatory agencies need to issue new rules, so they will be looking for rules to cut or gut.
Each Public Access agency has Public Access rules. Some are called plans, others called policies, but all are rules as far as reg reform goes, because all tell researchers that they have to do something. (Note that the original OSTP memo is probably not a rule because it only directs federal agencies to do something.)
It is also the case that many of the Public Access agencies issue a lot of regulations. DOE, USDA, Commerce and EPA are big examples. Others are primarily science agencies like NSF and NASA. But even these agencies have rules that govern funding, including their Public Access rules. "Agency" is defined at the Department level so the giant NIH falls under HHS, which is also a big regulatory agency. Mind you all of this has to get worked out, along with myriad other details.
The Public Access rules do not cost much to comply with, so they are probably not likely targets for regulatory budget cuts. The big threat is the 2 for 1 rule.
Suppose an agency wants to issue an expensive rule. It first finds a big cost saving by repealing an existing rule. But then it needs a second rule to repeal to meet 2 for 1. Even worse, if it meets the budget rule by modifying an existing rule then it still needs to repeal two other rules. The size of these repealable rules does not matter, which probably makes small rules a better target. They are often easier to repeal. The Public Access rules meet this criterion.
In fact the agencies may well try to game the 2 for 1 rule by breaking guidances and regulations down into small pieces, then counting them separately. In the Public Access case this could mean counting the publication and data parts as two different rules. There is some guidance for reg review but the size issue is not addressed. Plus guidances are a lot easier to repeal than formal regulations.
PubMed Central is probably safe because it has a detailed statutory requirement. But most of the other Public Access repositories have little in the way of statutory support.
As far as I know, few 2 for 1 reg repeals have been announced and the relevant internal agency negotiations are still going on, out of sight. In fact one of the arguments against litigation is that nothing has happened yet.
Expect this issue to become very large, very fast, if significant proposed repeals begin to emerge. Most federal rules have strong, vocal supporters. Let's hope Public Access does too. It may need them.
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