Editor’s Note:  For more information on OIRA participation in agency rulemaking, please see Proper and Desirable Intervention by the President in Agency Rulemaking.

From: RegBlog/Penn Program on Regulation

Regulation impacts nearly every aspect of our lives. The medications we take, the seatbelts we buckle, and the very air we breathe are all subject to regulation. Sometimes, however, regulations that impact the health and safety of the public and the environment are significantly delayed in getting adopted because they are subject to review by the White House Office of Information and Regulatory Affairs (OIRA).

In response to increased delays in rule review, the Administrative Conference of the United States (ACUS) recently released a draft statement that focuses on ways to decrease the time it takes OIRA to review regulations. The draft statement has since been updated to incorporate public comments.

Recently, ACUS initiated its project to examine how well OIRA adheres to timelines for rule review established in Executive Order 12866.

An executive order issued by President Clinton and retained by both Presidents Bush and Obama, gives OIRA authority to review rules deemed to be significant. Significant rules are rules expected to have a negative, material impact on the economy, especially if they impose impacts annually of $100 million or more.

Independent regulatory agencies, such as the Securities and Exchange Commission and the Federal Communications Commission, are not subject to OIRA review.

But the executive order requires that OIRA complete its review of a proposed rule within 90 days of the rule’s submission to OIRA by the government agency seeking to issue the rule. OIRA’s review may be extended once for a maximum of 30 days if such extension is approved by OIRA’s director and if requested by the head of an agency. In short, Executive Order 12866 seems to limit a rule’s review period to 120 days.

ACUS commissioned a consultant’s report by Curtis W. Copeland on the length of time it actually takes OIRA to review rules. Copeland found that, between 1994 and 2011, OIRA’s average review time did not exceed 62 days. In 2012, by contrast, the average review time rose to 79 days. Significantly, in the first six months of 2013, the average review time increased still further to 140 days. In addition, even though in 2011 only two agencies had an average review time of longer than 90 days, by 2012 this number increased to seven. In the first six months of 2013 alone, seventeen agencies had an average review time of more than 90 days.

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