by Alex Engler

On August 20, the Advisory Committee on Transparency hosted a panel discussion with experts on the federal regulatory process concerning the role of the Office of Information and Regulatory Affairs. Moderated by Daniel Schuman, director of ACT and policy counsel of the Sunlight Foundation, the panel took a detailed look at how to improve and adjust OIRA’s function in order to create greater efficacy, accountability, and transparency in the regulatory process.

Curtis Copeland, a former regulatory analyst at CRS and GAO, began the conversation by providing a brief historical account of OIRA. He spoke about the expansion of OIRA’s focus from mostly approving agency data collection to performing comprehensive reviews of economically significant regulations. Copeland mentioned two concerns that made this shift controversial. First, OIRA was seen as a challenge to separation of powers – how did this extension of the White House have the authority to influence the statutory requirements of federal agencies? Second, OIRA was criticized for acting as a “black box” in which regulations were changed or impeded with no transparency.

Susan Dudley, former OIRA Administrator under George W. Bush who is currently the Director of George Washington University’s Regulatory Studies Center, continued the discussion by describing OIRA as an office of non-partisan and dedicated civil servants that acts as a “dispassionate and analytical second opinion on agencies’ actions.” She argued that OIRA needed more staff to confront expanding responsibilities and to make up for previous reductions that reduced FTE staff from 90 to fewer than 50. Dudley also claimed that OIRA was less susceptible for special interest pressures than other agencies.

Michael Fitzpatrick, former OIRA Associate Administrator under President Obama, who recently moved to government relations at GE, agreed with Ms. Dudley’s depiction of OIRA, and asserted that the regulatory process greatly benefited from OIRA review. Fitzpatrick said that the criticism of OIRA leveraged by both sides of the political spectrum was indicative of a well functioning non-partisan agency, and also cited a need for more FTEs. He went on top argue that independent agencies should be accounted for at some level in the regulatory review process – specifically citing the Independent Agency Regulatory Analysis Act proposed by Senators Portman, Warner, and Collins.

The Director of Public Citizen, Robert Weissman, contended that the federal rulemaking process is “profoundly broken” and is, contrary to the assertions of the OIRA panelists, far more accessible to industry interests and lobbyists. He stated that OIRA meets with business interests five to six times for every single meeting with public interest groups. Weissman described OIRA as a major factor in the systemic delay of necessary regulations – specifically citing an OSHA rule regarding silica exposure that has been held up by OIRA for over eighteen months without explanation. He strongly urged OIRA to shift its role towards addressing holes in regulatory capture and promoting interagency coordination. Absent that shift, he suggested that there were many deficiencies in transparency at OIRA. Weissman also asserted that OIRA is a one-way ratchet that only weakens regulations, and never strengthens them.

OIRA Transparency - Conversations and comments on OIRA transparency were interspersed throughout the panel and have been aggregated below.

  • Dudley said that OIRA was a very transparent organization that made available the versions of regulations before and after OIRA’s involvement. She cited the Unified Agenda as a tool to know when regulations will be finalized. She also said that return letters, which OIRA sends with regulations sent back to agencies, clearly indicate the problem with the regulation. However, she also mentioned that agency heads often choose to withdraw regulations that they suspect are going to be returned

  • Moderator Daniel Schuman mentioned four reports (two by GAO, one by CRS, and one by the Center for Progressive Reform (CPR)) that identified a lack of OIRA transparency, including a 2009 GAO report that said OIRA was not complying with the transparency requirement of the governing Executive Order. The CPR report also asserted there were many accounts of preliminary non-public intervention, or informal review, by OIRA.

  • Dudley responded by arguing that the requirement that regulatory review schedules are public has led to more special interest involvement – i.e. that by letting the public know when certain regulations are being reviewed, special interests are more likely to lobby OIRA.

  • Copeland supported Schuman’s earlier comment by stating that OIRA only implemented one of the nine suggestions that GAO pushed for in 2003. Copeland also indicated that the OIRA motion ‘consistent with change’ could indicate the change of a comma, or a complete gutting of the rule. He also said that many rules that are withdrawn, rather than being returned with an explanatory letter, are done so at the instigation of OIRA.

  • Fitzpatrick contended that informal reviews happen “very rarely” under the Obama administration due to a concentrated effort to reduce the influence of the informal review process. Regarding the “consistent with change” motion, he asserted that it is transparent enough because the before and after versions of the document are public. He then argued that withdrawn rules are generally taken back because the agency realizes that the rule was not analytically sound and/or their were concerns raised by other agencies or OIRA. Fitzpatrick also pointed out that 90% of rules that OIRA reviews are finalized, either with or without changes.

  • Copeland explained that making public the before and after versions of a rulemaking document changed at OIRA that is hundreds of pages long is not inherently very useful, since no other information is provided.

You can find more information on OIRA and the federal regulatory process on the Advisory Committee on Transparency’s OIRA page.