The OIRA Module: Published Research

Submitted by:

Reeve T. Bull – Research Chief, Administrative Conference of the United States; Co-Chair of ABA Administrative Law & Regulatory Practice Section E-Rulemaking Committee

Over three decades ago, the United States was at the forefront of developed nations in creating a centralized system for regulatory review and rationalizing regulatory policymaking through the use of benefit-cost analysis.

In the ensuing thirty years, the United States’ system for executive review has changed very little, notwithstanding some minor readjustments. ^. In that same time period, other developed nations have enacted significant regulatory reforms, some of which involve copying the American framework but many of which represent new innovations that go well beyond what the United States has adopted.

From: The National Academies

WASHINGTON — Continuing expansion of federal research regulations and requirements is diminishing the effectiveness of the U.S. scientific enterprise and lowering the return on the federal investment in research by directing investigators’ time away from research and toward administrative matters, says a new congressionally mandated report from the National Academies of Sciences, Engineering, and Medicine. The report identifies specific actions Congress, the White House, federal agencies, and research institutions should take to reduce the regulatory burden.

As we embark on the creation of the OIRA Teaching Module we have encouraged the participation of a wide range of disciplines including, economics, law, public administration, political science and public polity.

Mr. Joe Vladeck, a student at Georgetown Law, prepared the attached paper on benefit/cost analysis.

Mr Vladeck opines,

As long as taking time will lower uncertainty, either passively or actively through an investment in information gathering, and some costs are irreversible, such as the potential costs of a sunk investment, a benefit can be assigned to the option to delay a decision. That benefit should be considered a cost of taking immediate action versus the alternative of delaying that action pending more information. However, the burdens of delay—including any harm to public health, safety, and the environment—need to be analyzed carefully.

Questions

1. Should the cumulative cost of regulations imposed by federal regulators be capped? Why or why not? What mechanism, if any, should be used to set such a cap on compliance costs?

2. Should OIRA’s regulatory review role be expanded to include independent agencies? Discuss the political, legal, and/or economic implications of such an expansion.

3. DOJ has informed the court that OIRA is the ultimate decision-maker on Requests for Correction filed pursuant to the Data Quality Act. What are the implications of this decision? Should the DOJ change its position that decisions made with respect to the Data Quality Act are not judicially reviewable?

A Calendar  of Current Events     CRE on ABA Conference  Quality of Life Review

Information Collection and Regulatory Budgets

Announcement of the establishment of a website dedicated to the implementation of a regulatory budget, public comments welcome below.

Editor’s Note: The myriad of proposed legislation to control the expansion of the regulatory state fall short in one major aspect–even if enacted in total the cumulative costs of complying with the ever ending flow of regulations will increase. The articles in this precedent setting forum are the initial steps to address this issue.

Tozzi Retrospective Review

Recent scholarship by Mathew D. McCubbins, Roger G. Noll, and Barry R. Weingast,1 and by Arthur Lupia and McCubbins,2 sheds new light on animportant administrative law subject: the rationale for and the utility of the procedures that an administrative agency must follow in order to adopt rules.According to the Administrative Procedure Act (“APA”), an agency must give public notice of a proposed rule and allow any interested person to providewritten comments on that rule.3 The agency must also supply a concise statement of the basis and purpose of a rule when it is adopted.’ A final rule must be published in the Federal Register,5 and its effective date must be delayed until thirty days after publication.

haeder and yackee 2015 influence and the administrative process

All administrative processes contain points of entry for politics, and the U.S. president’s use of the Office of Management and Budget (OMB) to review government regulations is no exception. Specifically, OMB review can open up a pathway for interest groups to lobby for policy change. We theorize that interest group lobbying can be influential during OMB review, especially when there is consensus across groups.We use a selection model to test our argument with more than 1,500 regulations written by federal agencies that were subjected to OMB review. We find that lobbying is associated with change during OMB review. We also demonstrate that, when only business groups lobby, we are more likely to see rule change; however, the same is not true for public interest groups. We supplement these results with illustrative examples suggesting that interest groups can, at times, use OMB review to influence the content of legally binding government regulations.

The Reg Map: Informal Rulemaking

The Federal Rulemaking Process: An Overview

A Guide to Judicial and Political Review of Federal Agencies

A Guide to Federal Agency Rulemaking

Administrative Law for Public Managers

Federal Service and the Constitution: The Development of the Public Employment Relationship

Public Administration: Understanding Management, Politics, and Law in the Public Sector

GAO on OMB Process

Time Line of the Regulatory Process (Potomac Institute)

Heretofore, OIRA was virtually an unknown organization. However most recently in books written about the regulatory state it is appearing with an increasing frequency. For example, Mr. Charles Murray in a book By the People-Rebuilding Liberty without Permission states:

For rules that are deemed to be “significant”—in the Obama administration so far, about 20 percent of the total—the Office of Information and Regulatory Affairs (OIRA), part of the Office of Management and Budget, will get involved in the process.[ 4 ] OIRA acts as a coordinator with other agencies, provides additional input, mediates disagreements, and is a conduit for the White House’s position on proposed regulations.