Eye on OIRA

The Office of Information & Regulatory Affairs (OIRA) has an unenviable reputation. The media can’t seem to resist calling it "obscure," and often refer to its director as the "regulatory czar." Among progressives, it’s often regarded as an unduly sympathetic ally of industry lobbyists trying to water down or kill protective regulations.

In fact, all those things are more or less true. Most people have no idea what it does; its director wields extraordinary power over the regulatory structure; and it is clearly the place where industry lobbyists pitch their tent, hoping to delay, dilute, distort, or defang protective regulations.

With that in mind, CPR Member Scholars and staff keep a careful eye on the Office of Information and Regulatory Affairs, posting frequently to CPRBlog about its work, and also keeping up on legislative oversight and proposals that involve OIRA. Read the most recent posts, here.

For a primer on OIRA's function and authority, read OIRA 101.  To see what rules are where at OIRA, check out OIRA's online dashboard. And read CPR Member Scholar Robert R.M. Verchick's navigational guide to the OIRA dashboard, on CPRBlog.

Trump's OIRA

OIRA's long history of using the lever of cost-benefit analysis to weaken and block safeguards unpopular with industry, while at the same time serving as an entry point for political considerations into the regulatory process, shows no signs of abating in the Trump administration. If anything, things will get worse. According to an April 2017 report from CPR, the choice of George Mason University law professor Neomi Rao to serve as its administrator signaled the Trump administration’s determination to make OIRA an even stronger foe of sensible safeguards.

The report by CPR Member Scholars Thomas McGarity, Amy Sinden, Rena Steinzor, and Robert Verchick, and CPR Senior Policy Analyst James Goodwin, examines Rao’s background and concludes the her modest record of “scholarship and other public statements reflect a deep distrust of federal agencies and their role as policymaking institutions within our constitutional system of government.” The authors note, Rao “has called for more constraints on regulatory agencies – including enhanced centralized presidential control over both executive branch and independent agencies – that would inhibit their ability to carry out their respective missions by instituting new public safeguards and enforcing existing ones. In addition, she has staked out an extremely narrow conception of some human rights, which could lead to a low-balling of rules intended to protect those rights.”

Read the report, Trump’s New ‘Regulatory Czar’: Poised to Lead the Assault on Our Safeguards, the news release, and co-author James’ Goodwin’s blog post on the report.

CPR's Report on OIRA Meetings and Outcomes

Over the years, OIRA’s pattern became familiar: an agency sends over a protective rule for review; industry meets with OIRA to complain about the rule (often several times); and then, behind closed doors, OIRA presses the agency to dilute or delay the rule, leaving people and the environment inadequately protected against unreasonable risks. The EPA’s rules for controlling coal ash waste and ozone pollution, the FDA’s rule to reduce salmonella contamination in eggs, and NHTSA’s rule on fuel efficiency labels for tires—all are telling examples of OIRA’s influence over the regulatory system.

To what degree are those individual instances reflective of larger trends at OIRA? To answer that question, in November 2011, the Center for Progressive Reform released the results of a comprehensive examination of OIRA’s work, conducted by CPR President Rena Steinzor, CPR Intern Michael Patoka, and CPR Policy Analyst James Goodwin. The report, Behind Closed Doors at the White House: How Politics Trumps Protection of Public Health, Worker Safety and the Environment, is the first-ever study to document empirically the extent of OIRA’s interference with regulatory agencies’ statutory missions. 

The report reviews 10 years’ worth of data on OIRA’s meetings with outside groups and status reports for completed rule reviews—the only information on OIRA’s activities that are publicly available. It finds that industry has taken advantage of OIRA’s “all-you-can-meet” policy to dominate the OIRA meetings process: Industry representatives meet with OIRA five times more frequently than do public interest group representatives. 

It also finds that industry’s meetings achieve the desired result: Rules that were the subject of meetings were 29 percent more likely to be changed during the review than those that were not the subject of meetings. Almost invariably, OIRA’s influece operates as a one-way ratchet, weakening safeguards that protect the public and the environment in order to protect regulated industry’s bottom line. Lastly, it finds that the EPA is disproportionately burdened by this process. Even though the EPA’s rules comprised only 11 percent of all those reviewed by OIRA, 41 percent of all meetings at OIRA related to EPA rules. Other agencies’ rules are changed a lot during OIRA review—about 65 percent of the time—but EPA rules are changed even more frequently than that—a whopping 84 percent of the time. Read more about the report, read the full report or read just the executive summary. Explore the searchable database, which compiles all the data on OIRA meetings and rule reviews used in the report.

CPR's Work on OIRA:

  • OIRA on CPRBlog. Read recent CPRBlog posts on the long arm of OIRA.
  • Trump's OIRA. Read Trump’s New ‘Regulatory Czar’: Poised to Lead the Assault on Our Safeguards, the news release, and co-author James’ Goodwin’s blog post on the report
  • Testimony. Read David Driesen's July 6, 2016, testimony before the House Judiciary's Subcommittee on Regulatory Reform, Commercial and Antitrust Law re OIRA's role and cost-benefit analysis.
  • 12866 at 20 Blog Carnival. Executive Order 12866 turned 20 in October 2013, and nine CPR Member Scholars marked the occasion of the order upon which rests OIRA's true power with a blog carnival. Here's a summary of who said what with links to each of the individual posts.
  • Regulatory Delay Op-Ed. Read Regulatory backlog threatens health and the environment, by Rena Steinzor, August 22, 2013, in The Hill.
  • Regulatory Delay Testimony. Read Rena Steinzor's August 1, 2013 testimony on the costs of regulatory delay for the Senate Judiciary Committee's Subcommittee on Oversight, Federal Rights and Agency Action.
  • Delays at OIRA: In June 2013, Senators Sheldon Whitehouse (D-RI), Tom Harkin (D-IA), Ben Cardin (D-MD), and Richard Blumenthal (D-CT) and U.S. Representatives Henry A. Waxman (D-CA) and Ed Markey (D-MA) sent a letter to White House Office of Management and Budget Director Sylvia Burwell urging her to take "prompt action" to implement rules and regulations held up at the Office of Information and Regulatory Affairs. The letter notes that under Executive Order 12866, OIRA reviews of agency draft rules must be completed within 90 days, and that 14 of the 20 EPA rules currently undergoing OIRA review have been languishing for more than 90 days, 13 of them for more than a year. CPR Member Scholar Robert Verchick, a former EPA official, applauded the letter in a statement.
  • OIRA vs. Gina McCarthy?: Read Politics and progress: Will the White House stall its own climate change plans?, by Robert R.M. Verchick, July 25, 2013 in The Hill.
  • Howard Shelanski's Nomination: Read CPRBlog posts on Howard Shelanski's nomination to lead OIRA.
  • Proposed Executive Orders for President Obama's second term: Read Protecting People & the Environment by the Stroke of a Presidential Pen: Seven New Executive Orders for President Obama’s Second Term (executive summary) CPR Issue Alert 1215, December 2012, by CPR Member Scholars Robert Glicksman, Amy Sinden, and Rena Steinzor; CPR Senior Policy Analyst Matthew Shudtz, CPR Policy Analysts James Goodwin and Michael Patoka. Read the full brief (PDF), the news release, and the day-of-release blog post by Rena Steinzor.
  • Scoring Political Points with the Regulatory Look-Back: In May 2011, OIRA Administrator Cass Sunstein penned an op-ed in the Wall Street Journal and delivered a speech at the American Enterprise Institute touting the preliminary results of the Administration's regulatory look-back, announced by the President in January. As the look-back was originally framed, agencies would examine current regulations to seek out -- and eventually revise -- rules that were redundant, had been overtaken by technology, were no longer necessary, or needed to be expanded. In his May announcement, Sunstein focused his discussion exclusively on regulations to be eliminated or weakened. CPR's Amy Sinden responded with a blog post taking the Administration to task for its anti-regulatory rhetoric, for failing to follow through on its promise to seek out areas where regulation needed to be expanded, and for ginning up the look-back as a largely political exercise that would divert agencies from their urgent work.
  • Launching the Obama Regulatory 'Look-Back':  The GOP majority in the House of Representatives is working to advance legislation designed to gum up the regulatory system -- calling it the REINS Act. (Read Member Scholar Sidney Shapiro's editorial memorandum on the subject.) In January 2011, President Obama responded to the GOP's anti-regulatory initiative by launching one of his own. In an op-ed in the Wall Street Journal, the President announced that he would direct agencies to "look back" at existing regulations with the goal of identifying those "that conflict, that are not worth the cost, or that are just plain dumb." As CPR President Rena Steinzor pointed out, in the process of launching the initiative, the President adopted the frame for the conversation that the GOP has put forward: that regulations are a drag on the economy. In fact, as Steinzor argued in a number of media placements, there's no evidence of that. Moreover, she observed, the initiative will distract agencies from the much more important work of addressing pressing regulatory needs -- like climate change, unsafe workplaces, unsafe automobiles and more. Read Steinzor's blog on the subject.
  • Coal Ash Comments. Rena Steinzor's November 19, 2010 comments to EPA on its proposed coal ash regulation have sharp criticism for OIRA's extended review of EPA's 2009 proposal to regulate coal ash. Along the way, OIRA violated the executive order establishing its authority to review regulations by missing its deadlines, then imposed on EPA an alternative, watered-down, regulation, and then saddled EPA's original proposal with a cost-benefit analysis that would make it all but impossible for EPA to describe plainly hazardous coal ash as a hazard.  Read Rena Steinzor's 2010 comments on EPA's proposal and OIRA's role in the process.  Read the news release.  Read a CPRBlog post.
  • Did OIRA Help Cause the Recent Salmonella Outbreak? One of the stories that emerged in the wake of the massive egg recall in August was that the Food & Drug Administration had recently issued a new rule meant to prevent salmonella contamination in eggs, but the rule was issued just a few months after the salmonella outbreak began. In these kinds of “near miss” situations, it is natural to ask questions like: Could the FDA have issued the rule a few months earlier? And, if so, why didn’t it? As it turns out, OIRA may have interfered with the rule in November of 2008, possibly delaying the rule’s completion by half a year or even longer. A September 1, 2010, CPRBlog post examines the facts surrounding this instance of potential OIRA interference with catastrophic consequences.
  • OIRA and Cockroaches? Read Rena Steinzor's August 30, 2010 testimony before an EPA panel conducting regional hearings on regulating coal ash, in which she explains why the supposedly "irrational" refusal of human test subjects to drink a glass of water from which a cockroach had just been removed is at the heart of OIRA's extraordinary rationale for tilting a cost-benefit analysis against regulating coal ash.
  • OIRA and Transparency: Despite the Obama Administration's commitment to transparency in government, OIRA is operating in opaque mode, according to a June 22, 2010 CPRBlog post from Rena Steinzor.