Shining the Light on Regulatory Dark Matter: Due Process and Management for Agency Guidance Documents

From: American Forest and Paper Association

By Paul Noe, Vice President for Public Policy

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When I served as Counselor to the Administrator in the Office of Information and Regulatory Affairs at the White House Office of Management and Budget (OMB) during the George W. Bush Administration, we issued a Bulletin for Agency Good Guidance Practices3  that required, among other things, agency procedures for the approval and use of guidance, standard elements in guidance, including avoiding inappropriate mandatory language, and public access and feedback procedures. Unfortunately, oversight by Congress and the Government Accountability Office has shown the agencies too often have failed to comply with the OMB Bulletin.4  Thus, much work remains to be done.

Resurrecting a Relic of the Past: The Harvard Law Review on the Congressional Review Act

From: Regulatory Pacesetters

Publisher’s Note: Former Senator Nickels and former Congressman McIntosh were instrumental in the establishment of CRE a number of years prior the first successful use of the CRA.

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The above demonstrates that the implementation of the CRA from its inception was a creature of the Congress with little Executive Branch participation in overturning regulations; recent actions under the CRA might reinforce this view. The CRA is an excellent example of a frequently maligned Congress performing its constitutional duty to oversee the administrative state. When CRA actions are initiated in the Senate the statute provides a mechanism for the Congress to swiftly address the criticism that it delegates too much authority to Executive Branch agencies.

GAO Criticizes the Regulatory Flexibility Act Analyses of Financial Regulators

From: US GAO

Financial Services Regulations:

Procedures for Reviews under Regulatory Flexibility Act Need to Be Enhanced

GAO-18-256: Published: Jan 30, 2018. Publicly Released: Jan 30, 2018.

What GAO Found

To comply with the Regulatory Flexibility Act (RFA), agencies generally must assess the rule’s potential impact on small entities and consider alternatives that may minimize any significant economic impact of the rule (regulatory flexibility analyses). Alternatively, agencies may certify that a rule would not have a significant economic impact on a substantial number of small entities. GAO found several weaknesses with the analyses of six financial regulators (Board of Governors of the Federal Reserve System, Office of the Comptroller of the Currency, Federal Deposit Insurance Corporation, Securities and Exchange Commission, Commodity Futures Trading Commission, and Consumer Financial Protection Bureau) that could undermine the goal of RFA and limit transparency and public accountability, as shown in the following examples.

Old and New: Rational Government

Editor’s Note: The Radin study, “Science and Policy Analysis in the U.S. Office of Information and Regulatory Affairs” is available here.

From: Administration & Society | Editorial

First Published January 11, 2018

Data Sharing in the Federal Statistical System: Impediments and Possibilities

From: The ANNALS of the American Academy of Political and Social Science

Forcing Regulators to Put Society First

From: The Regulatory Review

Does Haste Make Waste? How Long Does It Take to Do a Good Regulatory Impact Analysis?

From: Administration & Society

First Published August 21, 2013

We examine the relationship between the amount of information in a Regulatory Impact Analysis (RIA) and the time it takes to write and review the RIA. We find that the longer an agency spends developing the regulation and the longer that the Office of Information and Regulatory Affairs (OIRA) spends reviewing it, the more information in the analysis. However, the direction of causality is unclear. Better analyses may take more time to review. Or more review may make analyses better. We recommend increasing OIRA staff, which has advantages regardless of the direction of causality.

OIRA’s Lineage and Enforcement Responsibilities

From: Notice & Comment | A Blog from the Yale Journal on Regulation and the ABA Section of Administrative Law & Regulatory Practice

by Jim Tozzi

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Professor Rudalevige’s insights provide invaluable guidance to the political leaders of the incumbent Administration and to OIRA managers as OIRA expands its product line from the review of individual regulations to the implementation of a regulatory budget and possibly review of the regulations issued by independent agencies.

Increased OIRA Staffing is the Prerequisite for Real, Lasting Regulatory Reform

From: National Affairs

Regulation Beyond Structure and Process

Andrew Rudalevige

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Reagan’s staff publicly downplayed its inheritance. But Jim Miller, the former CWPS analyst who became OIRA’s first chief, privately wrote to OMB deputy director Ed Harper that “[o]ur program will build on the successes of the accounting and paperwork reduction programs,” adding that it could now, “for the first time, make real changes in the substance” of regulations. If they found such success, it would be because “when Reagan issued the executive order, we had an infrastructure, which is very important,” as Tozzi later said: “[W]e had a system in place.” Indeed, despite OMB’s embrace of the Paperwork Reduction Act generally, the office viewed OIRA as unnecessary: Under Carter, the agency had already reorganized twice around regulatory and paperwork tasks, and by 1980 it boasted a 45-person Office of Regulatory and Information Policy.

Beyond Structure and Process: They Early Institutionalization of Regulatory Review

From: Paper prepared for the Annual Meeting of the Midwest Political Science Association, Chicago, Illinois, April 2017

Andrew Rudalevige

Abstract:

The Office of Information and Regulatory Affairs (OIRA) these days has a bipartisan fan base, but as regulatory review was being established as a presidential power in the 1970s and early 1980s, this was not the case. This paper draws extensively on archival documents to examine the origins of regulatory review in an effort to understand how it established itself as a constant of presidential management. Successful institutionalization is not simply a matter of structure and process – that is, adding a box to an organizational flow chart – but requires resources ranging from staff, autonomy, political leverage, and expertise.