The Goose, the Gander, and an OIRA Checklist

Late last month, the White House Office of Information and Regulatory Affairs (OIRA) posted on its website a document called Agency Checklist: Regulatory Impact Analysis, which, according to the document, is intended to assist federal regulatory agencies with Executive Order 12866-required cost-benefit analyses (CBAs). Such analyses have become a standard, if fatally flawed, stage in the regulatory process.  Substantively speaking, OIRA’s document contains nothing new or particularly earth-shattering—instead, it is merely a checklist of some of the requirements for CBAs established by Executive Order 12866 and Circular A-4, a document issued by OIRA in 2003 to provide agencies with comprehensive guidance on how to produce CBAs.

Significantly, though, Executive Order 12866 also establishes several responsibilities for OIRA to guide its participation in the regulatory review process. As CPR’s previous work has made abundantly clear, however, OIRA fails to live up to many of these responsibilities. So, in the spirit of OIRA’s Agency Checklist, but without endorsing the institutions of CBA or centralized regulatory review, I modestly propose the following OIRA Checklist to assist it when it carries out its responsibilities in the centralized regulatory review process:

• OIRA should meet the deadlines established by Executive Order 12866 limiting the length of time for regulatory review. Executive Order 12866 section 6(b)(2). For “preliminary regulatory actions,” the deadline is 10 days, and for all other regulatory actions, the deadline is 90 days with the possibility of a one-time 30-day extension. OIRA frequently flouts these deadlines, as exemplified by its recent marathon review of EPA’s coal ash rule (200 days long!) and by its current review of the Department of Agriculture’s catfish inspection rule (which is now nearing its one year anniversary!). OIRA’s failure to observe these deadlines causes needless delays in a regulatory process that is already so beset with obstacles and interference that it cannot properly protect people and the environment. 
• Every time centralized review produces changes in a rule (and, thus, is categorized as “consistent with change” on OIRA’s website), OIRA should further specify whether the changes are substantive in nature or merely editorial. Executive Order 12866 sections 6(b)(4)(C)(i) and 6(b)(5). In an October 2001 memo, then-OIRA Administrator John Graham interpreted Executive Order 12866 as requiring OIRA to maintain a log, updated daily, listing reviews it has completed in the previous month and indicating the outcome of those reviews. The Order also requires OIRA to provide such information to the public in “plain, understandable language.” OIRA’s log classifies the result of virtually all completed reviews as “consistent with change,” but it does not indicate the nature or scope of the changes made during a review. As such, the log pretty clearly fails the “plain, understandable language” standard.
• OIRA should publicly release all documents exchanged between it and the agency whose rule is under review once the review for that rule has been completed. Executive Order 12866 section 6(b)(4)(D) (“After the regulatory action has been published in the Federal Register or otherwise issued to the public, . . . OIRA shall make available to the public all documents exchanged between OIRA and the agency during the review by OIRA under this section.”) emphasis added. Time and time again, rules have gone in for review at OIRA, only to emerge weeks or months later completely changed. Unless and until OIRA publishes the documents between it and the rulemaking agencies, these changes will continue to be made in a black box, without the public scrutiny or accountability a properly function regulatory system requires.
• OIRA should stop reviewing agency actions that do not constitute “regulatory actions” as defined by Executive Order 12866. Executive Order 12866 sections 3(e) and 6(b)(1). OIRA continues to review agencies’ “significant” guidance documents, even though President Obama explicitly revoked its authority to review these documents when he issued Executive Order 13497. In addition, OIRA insists upon reviewing other non-regulatory actions, such as when an agency changes how it implements a rule that it has already issued. OIRA is currently overstepping its authority in this way by reviewing EPA’s plan to lift an administrative stay on requiring industry to report their releases of hydrogen sulfide as part of the Toxic Release Inventory program. Such broad-based interference serves only to intimidate the agencies and prevent them from carrying out their statutory missions quickly and effectively.

Simply stated, OIRA is in apparent violation of presidential Executive Orders. Worse, it violates those Orders in service of blocking, delaying and watering down efforts by regulatory agencies to pursue their statutory mandate to protect health, safety and the environment. That’s been the case for years, and sadly, the Obama Administration is missing the chance to reverse the trend.

The Agency Checklist very much fits the mold of the Administration’s Open Government Directive, which imposed a series of transparency requirements on regulatory agencies, but ignored the massive transparency problems at OIRA. In either case, bigger improvements in the regulatory process would be achieved if the focus were placed where it is most needed: on OIRA. If OIRA is really that concerned with improving the quality of the regulatory review process, it should start by addressing its own shortcomings.