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Feds should encourage transparent reg review CUNA
WASHINGTON (3/18/09)—The federal government should encourage broader public participation in the regulatory review process by improving its system for receiving, reviewing, and responding to comments regarding specific agency rulemakings or guidance documents, the Credit Union National Association (CUNA) said recently. CUNA said the current system of review performed by the Office of Management and Budget (OMB) and the Office of Information and Regulatory Affairs (OIRA) frustrates public participation. A formal comment procedure should be adopted and OIRA review should be expanded to cover more agencies within the executive branch, such as the Internal Revenue Service (IRS). CUNA also recommended that OIRA’s capacity should be increased so that its ability to review administrative issuances in a critical manner is commensurate with its agency mission. The comments were made in letters to OMB and OIRA on President Barack Obama’s potential new executive order regarding regulatory review of administrative rulemakings and guidance by the two agencies. CUNA told the agencies of its own frustrations with the current system as it has applied to efforts to express concerns about “specific, seriously deficient issuances under review.” For example, CUNA cited a 2007 request to OIRA to review several IRS informal guidance issuances in the form of Technical Advice Memoranda (TAMs). They addressed state-chartered credit union Unrelated Business Income Taxation (UBIT) liability. OMB informed CUNA that IRS guidance is exempt from OIRA review. Although the credit union industry had requested that IRS issue comprehensive, formal guidance in the form of a revenue ruling, IRS ultimately opted for the informal, case-by-case guidance in the form of TAMs. The tax agency’s approach, CUNA said, has resulted in an arbitrary and extremely restrictive view of credit unions’ exempt purpose that threatens to upset the dual federal and state chartering system for credit unions and is negatively impacting the U.S. credit markets. The IRS’s use of TAMs to expand credit union taxation, CUNA wrote, is just one example of a major policy decision that has been decided without centralized review or meaningful public participation. A centralized OIRA review of administrative issuances and a formal process for public participation is paramount because major policy decisions, such as expansion of credit union UBIT liability, should be made in a manner that is consistent with the Administration’s priorities, CUNA urged.

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