Allow the Wonks to Have a Say on OMB Review of Regulations

Publisher’s Note: The publisher of this website was instrumental in the initiation of centralized regulatory review in the White Office of Management and Budget– its origins having begun in the Johnson Administration and utilized by eight subsequent Presidential Administrations.

A plethora of press articles are coming on line in the last eight hours which cast the OMB review in a non-favorable light. I remind all our readers that the office in OMB, the Office of Information and Regulatory Affairs, consisting of less than four dozen employees out of a million plus federal employees is the only group between an unchecked regulatory bureaucracy and the taxpayers check book.

Regulatory Review for the States

Editor’s Note: Professors Glaeser and Sunstein state that “the modern era of regulatory review began in 1981 when President Reagan issued Executive Order 12291….” However, as OMB explains on their website following a discussion of White House review of agency regulations in the Nixon and Ford Administrations, 

“a benefit/cost analysis should be done of the teaching of Administrative Law”

From: Legal Planet

Does OIRA Live Up To Its Own Standards?
OIRA should conduct a cost-benefit analysis of its own activities and explore alternatives to its current oversight methods.

A White House office called OIRA polices regulations by other agencies in the executive branch. OIRA basically performs the role of a traditional regulator – it issues regulations that bind other agencies, and agencies need OIRA approval before they can issue their own regulations. Essentially, then OIRA regulates agencies like EPA the same way that those agencies regulate industry. Issuing regulatory mandates and permits is a very traditional form of regulation, often called command and control.

“either classical administrative law or Sierra Club v. Costle has to go”

In a forthcoming article in the Texas Law Review Professor Liza Hienzerling concludes: “either classical administrative law or Sierra Club v. Costle has to go.”

We agree. It is time for classical administrative law—which argues that informal rulemaking should be done in exclusionary rooms with entrances controlled by $800/hr attorneys—”has to go.” Obsolete administrative law practices should be shelved in order to capitalize on technological advances that allow substantive public participation in regulatory proceedings on an ongoing basis.

Much to its credit, the Administrative Conference of the US recognized this impeding collision and addressed this matter in its recent plenary session of several weeks ago.

Was The Tozzi Amendment More Than a Nudge?

Editor’s Note: CRE has had a historical interest in expanding public participation in rulemaking through its development of Interactive Public Dockets.


The June 6, 2014 Plenary Session the Administrative Conference of the United States (ACUS) addressed the concept of “ex parte” comments.

Ex parte comments as defined by federal regulators “describe a communication directed to the merits or outcome of a proceeding that, if written, is not served on all parties to the proceeding and, if oral, is made without giving all the parties to the proceeding advance notice and an opportunity to be present.”