Editor’s Note: The scholars of CPR argue for a new OIRA Administrator who does not see his or her role as ” restraining overly zealous regulatory agencies”. Without a doubt there are some regulators who are overly zealous; on the other hand there are a far greater number of regulators who recognize that they could be subject to a “silo mentality” resulting from the fact that they are merely one cog in the massive federal regulatory state which makes it impossible for them to balance the conflicting statutory roles of different agencies–thus the need for an intensive OIRA review of regulations.
In that the Administration has stated, or has been quoted as saying, that it intends to use its regulatory powers to the hilt, as is the case in its regulation of critical infrastructure to address cyber security concerns, it is imperative that the new OIRA Administrator be chosen recognizing that the job is not to rubber stamp federal regulations submitted to the office but to be a critical reviewer of the works of the thousands of dedicated federal employees who formulate regulations and who, in a wide number of instances, support OIRA review of their work because they recognize the possibility of a silo mentality.
In particular the new Administrator should inform agencies of the OMB review of their actions even in those instances where the resultant regulatory program may be outside the normal rulemaking process, such as is the case with the Administration’s cyber security program. OIRA’s presence in these types of programs is essential given the Administration’s emphasis on governing by administrative action.
We might add that as a result of problems in the confirmation process the first Bush Administration decided to have the career deputy of OIRA head of the office for the entire term.
It’s Past Time to Appoint an OIRA Administrator
It has now been nearly seven months since Cass Sunstein left his job as Administrator of the White House Office of Information and Regulatory Affairs (OIRA). Much has happened in that time, most significantly an election that returned President Obama to the White House, but also a growing recognition that whatever second-term accomplishments the President is able to register on climate change and a number of other issues are likely to be brought about through regulation, not legislation. That’s precisely why it’s important to fill Sunstein’s job with someone who’ll help regulatory agencies accomplish their important work.
Unfortunately, the President has yet to nominate a successor. As a result, Sunstein’s temporary replacement, Boris Bershteyn, will reach a milestone in just a few days: Under the law, his time as Acting Administrator is up. It would shock no one if the White House did nothing more than strip him of the “Acting Administrator” designation. That’s what it did with Jeffrey Zients, who timed out of the role of Acting Administrator of the Office of Management and Budget, and is now described as the person who “leads” OMB. (This morning, Sylvia Mathews Burwell was nominated to be OMB Director, along with Gina McCarthy for EPA Administrator and Ernest Moniz for Energy Secretary).
But that’s a lousy way to run OIRA, particularly now, when it is sitting on a bunch of crucial safeguards and is in desperate need of new direction.
From all outward appearances, little at OIRA has changed under Bershteyn’s nearly seven-month leadership, and that’s bad news for the public. As I write, more than 60 proposed or final rules from agencies have been stuck at OIRA for longer than the 120 days permitted under Executive Order 12866, which allows for a 90-day review with a possible 30-day extension. Among the stalled rules:
- A National Highway Traffic Safety Administration (NHTSA) final rule to require “back-up” cameras on cars. About 100 people – many children – die every year in backup incidents; Congress passed a law in 2008 requiring NHTSA to issue a rule to address the problem. OIRA has held the rule for more than a year; it is beyond the legal deadline set by Congress.
- An FDA rule requiring food importers to verify that their products were produced under conditions that comply with the agency’s food safety requirements. The rule was required under the Food Safety Modernization Act, signed by President Obama in January of 2011. OIRA has held the rule for more than a year; it is beyond the legal deadline set by Congress.
- An Occupational Safety and Health Administration (OSHA) proposed rule to limit worker exposure to silica, which sickens thousands and kills dozens each year. OIRA has held the rule for more than two years.
The public deserves better. For too long OIRA has been a roadblock to needed health and safety protections, with the office serving as a court of last resort for big businesses who don’t want to be restrained by rules restricting pollution, or those guarding against unsafe work practices or other various bad habits. We need an OIRA Administrator who’s not a number-cruncher or political operative, but a public health and environmental expert with a mission of working to protect the public. (I expanded upon this point in a previous post, Help Wanted: Regulatory Czar with Commitment to Protecting Public Health, Worker and Consumer Safety, and the Environment).
The OIRA Administrator is a Senate-confirmed position, as specified by the Paperwork Reduction Act. The Federal Vacancies Reform Act puts legal time limits on acting (non-confirmed) appointees serving in Senate-confirmed positions. The Act specifies that an individual may serve in an acting capacity for 210 days, although if the President nominates someone to the position, the acting officer can then stay in the position (potentially for a long time, if the nomination is neither approved nor rejected).
Cass Sunstein announced his pending departure from OIRA on August 3, and has said he finished on August 10. (OMB’s Press Office has, curiously, declined to specify his official departure date, so we’ll take Sunstein’s word for it.) If Bershteyn started on Monday, August 13, he hits his 210th day as the Acting Administrator on Monday of next week, March 11. Should the President not offer a nominee in the next week but keep Bershteyn in place, he’d be on the wrong side of the sometimes-observed and sometimes-ignored Vacancies Reform Act.
OIRA needs an Administrator not just to fill the slot, but to bring a new policy. OIRA has become a roadblock to needed regulations, a barrier, a chokepoint, pick your metaphor. It sees its role as restraining overly zealous regulatory agencies. Never mind that those agencies are doing exactly what they are charged with doing by statute, writing regulations to enforce laws passed by Congress and signed by the President. Nor are agencies carrying out these responsibilities with wanton haste; they often dedicate several years—in some cases, more than a decade—to crafting new safeguards. OIRA tries to keep them on a short leash with a tight collar—second-guessing their scientific assessments, imposing added analytic requirements, watering down proposed rules, inviting special interest lobbyists in to take another whack at rules, slowing down the process. In short, it’s where good rules go to get worse or to get killed.
If the President is serious about moving on climate change by way of regulation, he’ll need OIRA on board. The same is true for a host of other regulatory proposals that the President should move on before he leaves office. The OIRA job isn’t a Cabinet-level appointment, but it’s going to be critical to the President’s second-term agenda.
The expiration of Boris Bershteyn’s Acting status should serve as an alarm bell in the White House. It’s time—in fact it’s past time—to nominate a new OIRA Administrator, someone with a new vision for the office and a dedication to promoting public safety, health, and the environment.
Rena Steinzor, CPR President; Professor of Law, University of Maryland Carey School of Law. Bio.