63 DER A-16
Government Operations
Business Groups Seek Stronger OIRA Role
Written Into New Regulatory Review Process
Major business groups are
pushing for the Office of Management and Budget's regulatory policy office to
obtain more authority over agency regulations with increased staffing and
resources, according to comments submitted to OMB in recent weeks.
The groups also want OMB's
Office of Information and Regulatory Affairs (OIRA) to disclose involvement by
other executive branch officials in OIRA reviews, extend OIRA reviews to
include regulations issued by independent agencies, and direct OIRA to give
more attention to the impact of regulation on small businesses, among other
recommendations.
In February, OMB invited public
comment on “how to improve the process and principles governing regulation.”
The request for comment followed a January 30 announcement by President Obama
(74 Fed. Reg. 5975) directing OMB to submit a set of recommendations within 100
days for a new executive order on federal regulatory review.
The comment period ended on
March 31. A total of 125 comments were submitted to OMB from public interest
groups (61 DER A-13, 4/2/09), business organizations, and other interested
parties.
With OMB's recommendations
expected sometime in early May, an OMB spokesman told BNA, “We've already begun,
and will continue, the long process of carefully reviewing and analyzing the
many suggestions contained in the exceptionally helpful, numerous, and diverse
written comments we have received.”
The spokesman, Kenneth Baer,
OMB's associate director of communications and strategic planning, added,
“These comments will be examined in great detail before the [OMB] director
submits his recommendations to the president.”
Boost OIRA Staff, Groups Urge
Increased staffing and resources
for OIRA were high priorities in comments submitted by the U.S. Chamber of
Commerce, the National Association of Manufacturers (NAM), and several industry
trade associations.
Noting that OIRA's budget and
staff “have decreased alarmingly over the years,” the Chamber of Commerce urged
increases to ensure that OIRA can carry out its functions “without delay.”
Similarly, NAM pointed out that
OIRA's staff was reduced from 90 to 50 employees from 1980 to 2006 even as
agency regulatory staff increased from 146,000 to 242,000 over the same period.
NAM suggested that OIRA boost its staff of analysts by at least 12 to ensure
timely regulatory reviews.
Making the same argument, the
American Forest & Paper Association noted the staff reductions at OIRA as
well as budget cuts that reduced its annual appropriation from about $16.4
million in 1981 to about $6 million in 2006 in real 2000 dollars. “We urge the
administration to ensure that OIRA receives the funding it needs for excellence
in regulatory review and planning,” wrote Paul Noe, the association's vice
president for public policy, who was a counselor at OIRA early in
administration of President George W. Bush.
More Transparency Sought
Citing transparency as “the most
essential element of the regulatory process,” the Chamber of Commerce proposed
that a new executive order require public disclosure of any “substantive
written communications” between executive branch employees intended to
influence a final regulatory decision. This requirement should apply to all
executive branch officials, the Chamber recommended, including so-called policy
“czars” in the White House.
To further promote transparency,
the Chamber urged that OIRA disclose and make available for public comment all
data and materials submitted by outside parties in support of a regulatory
action. Moreover, OIRA should make such disclosures before it sends out any
so-called “prompt letters” to agencies encouraging the initiation of a
regulatory proceeding, the Chamber said.
Jim J. Tozzi, a former OIRA
deputy director during the Reagan administration who currently heads the
industry-supported Center for Regulatory Effectiveness, also recommended that a
new executive order toughen transparency requirements “so that executive branch
officials outside OIRA cannot comment on proposed regulations without
accountability.”
Also supporting enhanced
disclosure was the Coalition for Effective Environmental Information, a group
of major business organizations seeking to improve transparency of
environmental information. The coalition proposed that a new executive order
require, “Timely disclosure of the information considered by or presented to
the agency in a rulemaking, including facts, data, scientific and technical
analysis, and public comments and other communications from interested parties,
regardless of whether such information supports or challenges the agency's
policy positions on the rule.”
Extend OIRA Review to
Independent Agencies
Both the American Forest &
Paper Association and the National Federation of Independent Business (NFIB)
want to see OIRA's review authority extended to include regulations promulgated
by independent agencies. “Just as in the case of executive agencies,
presidential review of the rules of independent agencies can improve
coordination and resolve conflicts among agency rules, as well as facilitate
implementation of national priorities,” wrote the AFPA.
The group noted that the
American Bar Association has endorsed such a role for OIRA as has the
Administrative Conference of the United States, a small, government-funded
think tank on administrative procedure that was terminated by Congress in 1995.
Making its argument in favor of
expanded OIRA review authority, the NFIB stated: “The executive has a
constitutional responsibility to execute the laws faithfully. Oversight of all
rules is therefore a primary responsibility.” Second, NFIB argued the current
economic crisis made it necessary for OIRA to ensure “the rules coming out of
these agencies do not unnecessarily disrupt the economy further.”
Small Business Protections
Proposed
To minimize adverse regulatory
impacts on small businesses, NAM proposed giving the Small Business
Administration's Office of Advocacy authority to issue governmentwide rules on
steps agencies must take to comply with the Regulatory Flexibility Act, a 1980
law mandating that agency rulemaking activities account for “significant
impacts” on small entities. Saying agency compliance with the RFA is
inconsistent and sporadic, the NAM urged including language in a new executive
order to give the SBA authority to issue the new rules on RFA compliance.
To further strengthen SBA's
advocacy office, the NFIB proposed requiring agencies to certify a proposed
rule would not substantially impact small businesses 30 days prior to
publication of the rule in the Federal Register. The
SBA advocacy office would then have 30 days in which to challenge the
certification. Similar recommendations were made by the Chamber of Commerce and
the Center for Regulatory Effectiveness.
Cost Benefit Analysis
Highlighted
A continued emphasis on rigorous
cost-benefit analysis was suggested by both the Chamber of Commerce and NAM.
The Chamber advocated a flat prohibition against any regulation “where the
costs are shown to exceed the benefits unless the agency otherwise demonstrates
that the regulation is necessary (e.g., promulgation is statutorily or
judicially required; significant qualitative considerations weigh toward
regulating, etc.).”
Similarly, NAM urged “a
presumption not to move forward with the regulation” when benefits do not
exceed costs.
The Chamber also proposed
requiring agencies to conduct studies after they issue a regulation to
determine the actual costs of the regulation on the public, as well as whether
the regulation is accomplishing its intended purpose.
In other recommendations, the
Chamber proposed that a new executive order on regulatory review require
agencies to consider the impact of regulations on international trade and
investment, an idea that originated during the previous administration when
Susan Dudley served as a OIRA administrator (91 DER A-20, 5/12/08).
The Chamber also urged that a
new executive order “explicitly recognize the value of adhering to the
strictures of the Information Quality Act, independent peer review, risk
assessment principles, and good guidance practices.” Similar support was
offered by NAM and the AFPA.
By Ralph Lindeman
Comments submitted to OMB on a
new executive order for regulatory review are available
at:http://www.reginfo.gov/public/jsp/EO/fedRegReview/publicComments.jsp.