In a recent symposium sponsored by the GW Regulatory Studies Center and the IBM Center for the Business of Government, one discussion forum focused on the future directions for OIRA.
The event was timely in that in the forty plus years of its existence the OIRA personnel level has been slashed some 50%.
Having reflected on the discussion, here is a strategy that should be considered;
(1) substituting the Quality of Life Review for the current process which delineates the OIRA centralized review of regulations. By eliminating the current review process, which places OIRA as the initial reviewer of proposed rules, and substituting in its place a process which requires that agencies be the initial reviewers of a proposed rule, the OIRA staff time needed to process each transaction will decrease considerably. OIRA reviews will take place only after all the aforementioned reviews take place.
(2) accompanying the aforementioned pacesetting action with a resurrection of the Information (Data Quality) Act.
(3) the creation of working groups within the Executive Office of the President to address critical issues of nationwide and global significance.
1. Reintroduce the Quality of Life Review for Select Regulations
This recommendation would eliminate the existing directive that OIRA review major/significant rules and instead replace the aforementioned directive with the requirement that OIRA conduct a Quality of Life Review for select regulations, so designated by OIRA and the agencies. The Yale Law Journal article noted below identifies the actions to be taken in the course of conducting a Quality of Life Review and it is also accompanied by a statement which describes the effectiveness of the Quality of Life Review program. A copy of the OMB directive, issued in 1971, by the Director OMB which established the Quality of Life Review and governed its implementation for the duration of the Nixon and Ford Administrations is also presented in the links that follow.
Quality of Life Review
2. Expand the use of the Information (Data) Quality Act.
OIRA would announce it would participate in the review of all Data Quality petitions, including those submitted to the independent agencies. OIRA’s permanent presence in the DQA process will position itself as the guarantor of the ultimate right of the public to seek relief from unjustifiable regulation. It is expected that OIRA’s permanent presence in the DQA process would have a therapeutic impact on the Notice and Comment and centralized regulatory review processes.
In addition, OMB and DOJ should discontinue making judicial filings which allege that OIRA decisions on DQA petitions filed pursuant to the Information Quality Act are not judicially reviewable, CRE has demonstrated a contrary conclusion.. Such an action by OMB and DOJ would allow the public to seek judicial relief when the public concludes that the results of a particular OIRA review of a given regulation is inconsistent with the mandates in the Information Quality Act. The exercise of this statutory right bestowed on the American public by the Information Quality Act is of particular import when addressing petitions submitted to independent agencies.
“Most recently, the Seventh Circuit has indisputably held in Zero Zone that there is a right to judicial review under the APA, and that it does not consider Salt Inst. (or Miss. Comm’n) as precedent pertinent to a right to judicial review under the APA.”[p. 70]
In the long run it appears that it is more advisable to have judicial review of the OIRA position on DQA petitions filed pursuant to the Information Quality Act than to have the rules of the independent agencies be subject to OMB review pursuant to an Executive Order signed by the President. Please note the first strategy is enforced by the judiciary; with respect to the second strategy there is no enforcement for independent agencies.
Note: The bottom line is that the processes in (1) and (2) above do not require OIRA to conduct the extremely labor intensive initial review of a proposed rule but instead relies on the agencies in (1) above , and the public in (2) above. Nonetheless in all instances OIRA would continue to exercise its authority to be the reviewer of last resort and in doing so permit it to increase its wingspan and not become overwhelmed in the policing of non-precedential regulatory transactions.
3. OIRA Would Assume a Proactive Role in Addressing Macro Regulatory Policy Issues
Solutions to the regulation of Artificial Intelligence or Big Tech do not fit within OIRA’s current menu of work assignments. It should be noted that OIRA’s presence would in itself bring the totality of the professional expertise located within the Executive Office of the President (EOP) to address these nationwide issues. To this end, OIRA would identify issues of particular import and work with other agencies in the EOP to establish a panel co-chaired by an agency within the EOP and OIRA. It is important to recognize that OIRA cannot undertake the aforementioned work without either a substantial increase in personnel or in the alternative a streamlining of its current process as outlined in (1) above.
It should be noted that with each passing day, the need for increased regulation in even a limited number of sectors has never been blessed by the body politic. Even a minimal attempt to address the limited monopolies of Big Tech have not been addressed. Now, consider Artificial Intelligence (AI). If there ever has been a demand for immediate attention by the managers of the administrative state AI is it. Mobilizing the knowledge and clout of EOP personnel would not only be a great step forward but it would also establish a network of professionals in and outside the EOP who by their very existence as federal employees place the interests of the public over the maximization of self-adulation and profits. It is this group that might have the staying power to win the battle—not profit from it
The untapped reservoir of talent housed in the EOP includes economists, scientists, attorneys and foreign policy and budget experts all of whom have institutional clout and a related interest in the management of the administrative state; their attention in part should be focused on the most significant of issues—presently AI.
The time savings resulting from the adoption of Recommendations (1) and (2) above would provide the availability of key personnel for pursuing item (3). The bottom line is that the processes which guide OIRA’s actions have been around for more than four decades; it is time that they be reviewed.
