Has OIRA really improved the timeliness of its reviews? Nope, it just has a new scheme for delaying safeguards and defeating transparency

by James Goodwin

It’s time to put to bed an unfortunate myth that’s been floating around the last few weeks.  The myth goes something like this:  The Office of Information and Regulatory Affairs (OIRA)—the opaque bureau within the White House charged with approving agencies’ draft regulations before they can be released to the public—has succeeded in improving the timeliness of its reviews during the last few months.  OIRA has long been a roadblock to the successful implementation of critical safeguards, so if true, this claim would be welcome news.  But, when OIRA’s recent record is viewed with a more critical eye, this claim simply does not hold up.

While it’s true that OIRA has recently cleared its docket of several high profile draft rules that have been stuck there for several months or even years, in many cases OIRA has done so by relying on what almost amounts to an accounting trick—one that seems calculated to skirt any meaningful transparency requirements.

A few months ago, CPR noticed a disturbing trend in which OIRA was increasingly using an obscure and relatively uncommon process known as a “withdrawal” to end some long-overdue reviews of high profile draft rules.  Among the first rules to be disposed of through this scheme included the Environmental Protection Agency’s (EPA) draft proposed Chemicals of Concern list (withdrawn from OIRA review on September 6, 2013, after 1,214 days) and the National Highway Traffic Safety Administration’s (NHTSA) draft final rule for rearview cameras in automobiles (withdrawn from OIRA on June 20, 2013, after 583 days).

So, what is a withdrawal and why does it matter?  A withdrawal occurs when the rulemaking agency (for example, the EPA or NHTSA) voluntarily withdraws a draft rule from OIRA review before it has been completed.  The withdrawal process is distinct from a “return,” which occurs when OIRA ends the review by sending the draft rule back to the rulemaking agency for more work instead of approving it.  From a transparency perspective, there is a crucial difference between withdrawals and returns.  When OIRA uses a return to end a review, Executive Order 12866 (a legal document that governs OIRA review) requires that it issue a public “return letter” that explains the problems with the draft rule and why OIRA was otherwise unable to approve it.  In contrast, with a withdrawal, the rulemaking agency is under no obligation to offer a public explanation for why it decided to withdraw the draft rule from OIRA review. 

Because withdrawals lack any meaningful transparency requirements, this method for ending OIRA reviews provides the Obama Administration with a convenient tool for clearing the docket of any high profile rules that have been stuck there for a long time without having to explain why the rule was tied up in the review for so long in the first place.  To make this scheme work, the voluntary nature of the withdrawal is transformed into a legal fiction, as the President—or more likely some high-ranking White House official acting on the President’s behalf—can “request” that the agency withdraw the rule from review.  Because the agency head is a political appointee who serves at the pleasure of the President, he will almost invariably accede to this request.

Significantly, a scheme to misuse withdrawals in this fashion would not be the first time that OIRA has played games with its regulatory review process in order to evade transparency requirements.  For example, a recent report produced for the Administrative Conference of the United States (ACUS)—an independent agency that provides recommendations for improving the federal administrative system—helped to expose the phenomenon of “Mother-may-I” meetings in which representatives from rulemaking agencies must meet with OIRA officials in order to obtain OIRA’s approval before submitting draft rules over for review.  Under Executive Order 12866, the decision of when to submit a draft rule for OIRA review is supposed to belong to the rulemaking agency.  In practice, however, these agencies had to follow OIRA’s instructions on when to submit a draft rule.  OIRA was eager to limit the flow of incoming regulations, so that they could control which reviews were on its docket.  Control over the docket has important transparency implications, because many of Executive Order 12866’s transparency requirements don’t kick until a draft rule has been formally added to OIRA’s review docket.  Together, the combination of Mother-may-I meetings and withdrawals give the White House nearly complete control over OIRA’s review docket.

Once the agency has “withdrawn” the draft rule—emphasis on those quotes—the OIRA review docket is clear of one more long overdue rule, which, to the casual observer, seems to improve OIRA’s record of timeliness in its reviews.  And the use of withdrawal process absolves the White House from any obligation to explain any problems with the draft rule that were causing the long delay in OIRA’s review.

OIRA has good reason to be sensitive about long overdue reviews that have piled up on its docket.  Over the last year or so, the absurd length of many of its ongoing reviews has become a source of considerable controversy.  OIRA’s delays of critical safeguardsattracted a great deal of attentionin the run-up to the confirmationof current OIRA Administrator Howard Shelanski.  More recently, this controversy culminated in a big story that ran in the Washington Post last month about how the White House improperly used OIRA’s rule review process to delay new regulations in the months leading up to President Obama’s campaign for reelection in 2012 in order to defuse potential criticisms from political opponents.

OIRA does not appear to be giving up the withdrawal scheme any time soon.  A few weeks ago, OIRA once again used a withdrawal to quietly conclude its review of the Mine Safety and Health Administration’s (MSHA) draft proposed rule on Proximity Detection Systems for Mobile Machines in Underground Mines.  At the time, the rule had been collecting cobwebs at OIRA for 846 days—well beyond the maximum 120 days that Executive Order 12866 allows for such reviews.

The Mobile Machine Proximity Detection rule has been a top priority for advocates of stronger safeguards to protect miners—and for good reason, too.  (Note that the Mobile Machine rule is different from a separate MSHA rule on Proximity Detection Systems for Continuous Mining Machines, which—probably not coincidentally—went to OIRA for review on the same day that Mobile Machine rule had been withdrawn.)  2013 saw a marked increase in the number of mining deaths.  And in the last few years severalminers have been killed or severely injured after being crushed by mobile equipment in underground minds—the exact hazard the Mobile Machine Proximity Detection rule is intended to prevent.  Just last Thursday, a 20-year-old miner named Daniel Lambka died after suffering fatal crushing injuries in a West Virginia mine.

The withdrawal scheme might be a good PR move for the White House and OIRA, but it’s a huge affront to the public interest.  The use of withdrawals drags out the rulemaking process, delaying critical safeguards from taking effect.  After the rule is withdrawn, the rulemaking agency will rework parts of the draft (or simply sit on it for a while) before it can resubmit the rule for a second round of OIRA review.  (Of course, the decision of when to resubmit the draft rule may not even be up to the agency since OIRA might refuse to allow the resubmission during the Mother-may-I meeting.)  Note that the clock for OIRA’s review is reset once the rule is resubmitted, which means that withdrawals would actually open the door for more OIRA delays.  So much for improved timeliness of OIRA reviews.  Also, because a withdrawal effectively forces the agency to start over at square one, it can add months or even years to the rulemaking process.  However, since the rulemaking ball is in the agency’s court during much of this time, OIRA’s role in this delay is well concealed.

To make matters worse, withdrawals also have the effect of further shielding OIRA’s already obscure regulatory review process from much-needed transparency.  The public will never know what caused draft rules such as MSHA’s Mobile Machine Proximity Detection rule to be held up at OIRA for so long.  If it was a legitimate policy concern, then the public ought to know—the disclosure of this information would enable interested members of the public to participate more meaningfully in the notice-and-comment process.  But it’s also possible that the delay was instigated by naked political considerations.  For example, the Obama Administration may have sat on the rule for so long in order to deflect any more false accusations from the coal industry and its allies in Congress over the Administration’s so-called “war on coal.”  This, of course, would represent an abuse of the regulatory review process.  But, thanks to the lack of meaningful transparency, withdrawals would fully enable OIRA to carry out such abuses with virtual impunity.

Whatever the real reason for the Obama Administration’s recent use of withdrawals for these high profile, long-delayed rules at OIRA, more transparency is needed.  In particular, withdrawals ought to be subject to the same disclosure requirements that apply to returns.  I call on Administrator Shelanski to immediately institute a new policy in which OIRA issues a letter—a withdrawal letter that is similar in form and content to OIRA’s return letters—that details the reasons why a rule is being withdrawn from OIRA’s regulatory review process.  Nothing short of this reform will ensure that OIRA is not abusing the withdrawal process to delay critical safeguards and evade the disinfecting light of transparency.

© 2016 The Center for Progressive Reform