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.

White House Review of Independent Agency Rulemaking: An Essential Element of Badly Needed Regulatory Reform

Editor’s Note: See, A Blueprint for OMB Review of Independent Agency Regulations (CRE, 2002).

From: The Heritage Foundation

Summary

Heavy-handed federal regulation acts like an excessive tax on the American economy, stifling economic growth and innovation. In order to enhance its effectiveness in paring back overregulation, the Office of Information and Regulatory Affairs (OIRA) should extend its cost-benefit oversight to rules proposed by “independent” federal agencies, which are responsible for a large proportion of onerous regulations. President Trump, therefore, should promulgate an executive order directing independent agencies to submit their major rules for OIRA analysis, consistent with his constitutional authority to take care that the laws be faithfully executed. That Order should also require independent agencies to undertake additional regulatory reform initiatives that the President recently has placed on executive branch agencies.

Executive Order Requirements for Informal Rulemakings

From: Administrative Conference of the United States

Tables of Executive Order Requirements (to later include OMB guidance and statutes)

Todd Rubin

In the table below, the Administrative Conference has identified a comprehensive list of extant executive orders that apply to most agencies’ informal rulemaking activities (i.e. rulemaking pursuant to Section 553 of the Administrative Procedure Act (APA)). Three of the executive orders: 12866 (Regulatory Planning and Review), 13132 (Federalism), and 13175 (Consultation and Coordination with Indian Tribal Governments) are briefly described in the main table, but also have their own tables to which the main table links.

Of “Workarounds” and Bureaucrats

From: The Regulatory Review

Civil service reformers should consider changes to lengthy, single-agency employee tenures.

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Verkuil might also have noted another, related problem, this one arising in part from long careers in a single agency. Many civil servants work in cloistered and self-referential interpretative communities. A common result is that they stand resolutely on entrenched agency interpretations of rules—not all of them even reasonable, let alone compelled—that can deprive the system (often other affected agencies) of the flexibility to respond to new circumstances and embrace suggestions for better ways of doing things. There is seldom effective recourse to outside interpreters—federal judges, lawyers at the U.S. Department of Justice’s Office of Legal Counsel, officials at OMB—to tell an agency that its own interpretation of the law may not be the only, the best, or even a reasonable one.

GAO: Federal Reserve at Risk of Regulatory Capture

From: GAO Report GAO-18-118, “LARGE BANK SUPERVISION: Improved Implementation of Federal Reserve Policies Could Help Mitigate Threats to Independence.”

“Optimal Ossification” — My New Paper

Editor’s Note, from Professor Nielson’s paper:

it does not matter whether an agency likes a procedural requirement; if the agency does not comply with the requirement, a court or OIRA will be there to enforce compliance.

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

by Aaron Nielson

A draft of my latest paper — Optimal Ossification — is now available. It will be published next spring in the George Washington Law Review’s annual administrative law issue.*

Here is the abstract:

Slow-Rolling, Fast-Tracking, and the Pace of Bureaucratic Decisions in Rulemaking

From: The Journal of Politics

Volume 79, Number 3 | July 2017

University of Virginia

The slow pace of administrative action is arguably a defining characteristic of modern bureaucracy. The reasons proffered for delay are numerous, often centering on procedural hurdles or bureaucrats’ ineptitude. I offer a different perspective on delay in one important bureaucratic venue: the federal rulemaking process. I argue that agencies can speed up (fast-track) or slow down (slow-roll) the rulemaking process in order to undermine political oversight by Congress, the president, and the courts. That is, when the political climate is favorable, agencies rush to lock in a rule, but when it is less favorable, they wait on the chance that it will improve. I find empirical support for this proposition using an event history analysis of more than 11,000 agency rules from 150 bureaus. The results support the interpretation that agencies strategically delay, and that delay is not simply evidence of increased bureaucratic effort.