ACUS’s final statement on OIRA Is weak tea and wide of the mark

by Rena Steinzor

Recently, the Administrative Conference of the United States (ACUS) adopted a statement on how to improve the “timeliness” of rule reviews by the White House Office of Information and Regulatory Affairs (OIRA). As regular readers know, OIRA has time and again delayed the release of crucial health, safety, and environmental regulations, leaving the public exposed to unnecessary dangers while these rules gather dust on OIRA’s desk—like the proposed rule on silica exposure that was delayed for over two and a half years.

Before discussing how ACUS addressed this issue, it’s worth considering what ACUS didn’t address. The project’s original title probably set expectations too high: “Improving the Timeliness, Transparency, and Effectiveness of OIRA Regulatory Review.” The stage appeared to be set for a broad examination of OIRA’s role, including its failure to meet the deadlines and disclosure requirements set forth in the document that gives it authority to conduct regulatory review: Executive Order 12,866. However, it soon became clear that only one of those three factors (timeliness) would be on the table for discussion, and the other two concepts were dropped from the project’s title.

This narrowed scope offered a way for ACUS to sidestep the most controversial aspects of OIRA review, such as:

  1. OIRA’s interference in policy choices that Congress clearly intended the agencies—not the White House—to make, having assigned those decisions to agency heads in their authorizing statutes;

  2. The political motivations behind OIRA’s delays and the changes it makes to agency rules;

  3. OIRA economists overturning the careful conclusions of multidisciplinary experts at the agencies, and insisting that agencies justify their rules through a rigid cost-benefit analysis even where the statute sets a different standard;

  4. The unchecked ability of regulated industries to gain influence over the review process through excessive and unbalanced lobbying of OIRA officials;

  5. The expansion of OIRA’s jurisdiction far beyond the “economically significant rules” that were meant to be its focus, which are now outnumbered six-to-one by minor matters;

  6. The corrosive nature of the interagency review process conducted by OIRA, in which other agencies—many of which support the interests of regulated entities and therefore should be conflicted out of internal review—erode proposed rules behind closed doors;

  7. OIRA’s routine shirking of its own transparency requirements, as it prevents agencies from clearly describing and identifying the changes OIRA made;

  8. OIRA’s practice of “informal review” before the start of the timed review period, which pushes its activities even further into the shadows; and

  9. OIRA’s failure to use its position for anything but weakening and delaying rules, when it could instead identify areas in need of regulation and coordinate agencies to take action on difficult, cross-cutting issues.

ACUS’s unwillingness to touch these issues also prevented it from honestly addressing some of the root causes of OIRA’s delays. For example, OIRA would obviously have an easier time meeting its deadlines if it no longer allowed unlimited stakeholder meetings, curtailed its endless tinkering with the minutiae of cost-benefit analysis, and reduced its workload by focusing only on economically significant rules.

Instead, ACUS’s statement for the most part simply exhorts OIRA to try to make its reviews timelier, by increasing preparation and coordination and placing a higher priority on promptness—none of which is likely to achieve any significant improvements. One of the only concrete recommendations is to increase OIRA’s staffing to enable more efficient reviews; but without placing any meaningful checks on its activities, this potentially expensive change would only allow OIRA to interfere in more agency rulemakings and to do so more extensively.

At the same time, it’s reassuring to see that some of the most misguided and counterproductive recommendations that were initially proposed did not make it into the final statement, thanks to the effective resistance of several ACUS committee members and a number of critical comments submitted by outside groups. (The Comment submitted by a group of CPR Member Scholars is available here.) For instance, the idea that OIRA should “stop the clock” on its review while the agency is responding to OIRA’s feedback—which would only encourage OIRA to inundate the agencies with more demanding comments and produce longer delays—was wisely deleted, as was language encouraging informal-review communications before the clock would even start. (The final statement still encourages “coordination” between the agency and OIRA before the rulemaking package is submitted, but according to discussions among the ACUS committee members, this recommendation is explicitly intended for planning and logistics, not for substantive interference by OIRA.)

Perhaps the most bizarre recommendation in the statement is this one:

If OIRA concludes that it will be unable to complete the review of an agency’s draft rule within a reasonable period of time after submission, recognizing the timeframes established in section 6(b)(2) of EO 12,866 and the nature of the matter—but in no event beyond 180 days after submission—OIRA should inform the public as to the reasons for the delay or return the rule to the submitting agency. (emphasis added)

Encouraging OIRA to provide explanations for delaying or rejecting agency rules is a good idea—indeed, it’s the only recommendation that touches on transparency at all—but where does that 180-day deadline come from? The answer: thin air. Executive Order 12866 could not be clearer about giving OIRA 90 days to review a rule, with one possible 30-day extension at the request of the agency head; that’s an absolute maximum of 120 days.

ACUS could have simply reiterated that OIRA must adhere to the deadline that’s been on the books for 20 years, or it could have recommended that the President officially change the deadline by issuing another Executive Order. But instead, ACUS has added to the mix an entirely arbitrary 180-day deadline—one that seems to say “we really mean it this time,” thus giving OIRA license to roll right past the 90-day mark without giving a thought to explaining itself or openly returning the rule.

A number of valuable amendments were offered before ACUS considered the statement at its plenary session last week. Some were intended to improve OIRA’s transparency about its delays—for example, requiring OIRA to compile data on the timeliness and effectiveness of its review process in its annual report to Congress—while others sought to eliminate the unwarranted wiggle room given to OIRA by words like “whenever possible.” But none of these amendments were ultimately adopted.

ACUS deserves credit for bringing attention to OIRA’s delays and for commissioning a very revealing research report on the nature and extent of the problem. But it would be a mistake for anyone to look at this project and come away thinking that its ideas would improve either timeliness or transparency. And if OIRA uses the ACUS invention of an unfounded 180-day deadline as cover for its delays, the recommendations will have made the situation worse, not better.

ACUS’s decision to issue a “statement” rather than a “recommendation” means that there will be no “implementation phase” to this project in which ACUS continues to monitor the problem and urge reforms. Thus, with this statement ACUS officially closes the book on its consideration of the issue of OIRA’s delays. Unfortunately, the problem will not go away that easily, and people will remain needlessly exposed to preventable pollution, dangerous foods and consumer products, and hazardous working conditions as OIRA runs out the clock to serve the perceived political interests of the president.

© 2016 The Center for Progressive Reform