The Goose, the Gander, and an OIRA Checklist
Late last month, the White House Office of Information and Regulatory Affairs (OIRA) posted on its website a document called Agency Checklist: Regulatory Impact Analysis, which, according to the document, is intended to assist federal regulatory agencies with Executive Order 12866-required cost-benefit analyses (CBAs). Such analyses have become a standard, if fatally flawed, stage in the regulatory process. Substantively speaking, OIRA’s document contains nothing new or particularly earth-shattering—instead, it is merely a checklist of some of the requirements for CBAs established by Executive Order 12866 and Circular A-4, a document issued by OIRA in 2003 to provide agencies with comprehensive guidance on how to produce CBAs.
Significantly, though, Executive Order 12866 also establishes several responsibilities for OIRA to guide its participation in the regulatory review process. As CPR’s previous work has made abundantly clear, however, OIRA fails to live up to many of these responsibilities. So, in the spirit of OIRA’s Agency Checklist, but without endorsing the institutions of CBA or centralized regulatory review, I modestly propose the following OIRA Checklist to assist it when it carries out its responsibilities in the centralized regulatory review process:
- OIRA should meet the deadlines established by Executive Order …
Back in the 1970s, when many of the great environmental, health, and safety statutes were adopted, public interest groups shared an overwhelming optimism that greater public participation held the key to maintaining—and even expanding upon—their successes. All they needed was a seat at the table where decisions are made, and their ideas would ultimately prevail. At first, they were right—public interest groups were able to advance their cause through participation in the regulatory process. But before long, regulated industry discovered that they could beat public interest groups at their own game by using their superior resources. The number of “public input” tables grew, and each increasingly became filled with more and more industry groups, while the seats for public interest groups often go empty. If the public interest groups are able to be present, they are often drowned out.
Once a dream, public participation …
On July 9, 2010, following more than 10 years of interference and delay, the Food and Drug Administration’s rule to prevent salmonella contamination in eggs finally went into effect. FDA officials have argued that this rule—which, among other things, requires farms to test eggs and facilities for salmonella, protect feed and water from contamination, and buy chicks and young hens from suppliers that monitor for salmonella—would have likely prevented the massive salmonella outbreak that has sickened 1,470 individuals and resulted in one of the largest food recalls in U.S. history, with more than half a billion eggs being pulled off stores’ shelves. It’s hard to know whether this is necessarily true or not, but if adequately enforced, the rule certainly would have driven very significant changes to the facilities we've learned about in the past weeks. Tragically, the salmonella outbreak …
“Although the 1976 RCRA Resource Conservation and Recovery Act statute does not require benefit-cost justification of RCRA regulations, this RIA regulatory impact analysis presents a qualitative benefit analysis for compliance with OMB’s 2003 ‘Circular A-4: Regulatory Analysis’ best practices guidance.” This statement comes from the executive summary to the cost-benefit analysis (CBA) that EPA sent to OIRA last October with its original proposed rule for regulating coal ash waste, and it is without a doubt the most important sentence in the entire 165-page document. It is, in its way, a yelp of protest from EPA against being required by OIRA to spend time and resources measuring the likely effectiveness of a proposed regulation by standards not required by statute.
Not surprisingly, OIRA was unmoved. Indeed, a before-and-after comparison of EPA’s original and final CBAs released with EPA’s proposed coal ash rule reveals the extent …
As the Obama Administration ought to know by now, open government isn't easy. There are a lot of constituent elements in the wall that separates the American people and their government. Getting open government right requires planning and dedication. Moreover, resource and legal constraints can thwart even the best-intentioned efforts by government agencies to operate in a more open fashion.
Earlier this month, the Obama administration announced a number of new developments related to its Open Government Initiative, suggesting that the Administration is taking seriously many of the important barriers to open government.
First, all of the Cabinet agencies released their open government plans, detailing steps they'll take to make “transparency, citizen participation, and collaboration part of the way they work.” The EPA's plan says it will make more of the data it uses available to the public. For example, the agency has committed …
On March 19, OIRA Administrator Cass Sunstein issued the office's first Review Letter of the Obama Administration, telling the National Highway Traffic Safety Administration (NHTSA) to redo their studies on how to design the labels for the agency’s new “Tire Fuel Efficiency Consumer Information Program.” (For background on Review Letters and the other types of OIRA letters, see here.) Those new studies will delay implementation of the tire efficiency regulation by at least half a year, and likely longer.
Under the tire efficiency program, NHTSA must develop a system for setting tire fuel efficiency ratings and design a label for tire manufacturers to affix to their products that convey these ratings to consumers, so that consumers can consider the fuel-efficiency effects of different tires when deciding which to buy.
When NHTSA sent its draft final rule to OIRA in December, it appeared that the rule …
For the past 6 months, OIRA has hosted an all-out assault on EPA’s proposed coal ash waste rule, as a parade of representatives from King Coal and the coal ash reuse industry have walked in to attack any and every aspect of the hybrid approach the agency reportedly proposed. (Under the hybrid approach, EPA would regulate coal ash waste as a “hazardous” substance, unless it was dedicated to certain forms of beneficial use, in which case it would be regulated as “non-hazardous”.) Because these attacks were being conducted behind OIRA’s closed doors, it's impossible for the public to discern what, if any, effect they were having on EPA and its preferred hybrid approach. As OIRA’s review has stretched months beyond the maximum time limit allowed by Executive Order 12866, we've become more and more concerned.
An important story from Dawn Reeves of …
Fans of The Hitchhiker’s Guide to the Galaxy have long celebrated the number 42 as the “answer to the ultimate question of life, the universe, and everything.” Now, the number 42 also happens to be the number of meetings that OIRA has hosted regarding EPA’s pending coal ash rule, as it works toward developing the Obama Administration’s answer to the ultimate question of how to regulate the disposal of this toxic waste.
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OIRA Meetings on Coal Ash, as of April 5, 2010
(Click links to see attendees and examine documents presented to OIRA staff.)
Parties Supporting EPA Proposal (13)
It’s official: Centralized regulatory review is trickling down to the states. Last month, in one of his very first actions as the newly elected Governor of New Jersey, Chris Christie issued a pair of sweeping executive orders (no. 1 and no. 2) mandating centralized review of all state agency regulations to ensure that they are justified by cost-benefit analysis (CBA). The orders’ provisions mirror those of a controversial executive order issued by New York Governor David Paterson last August (for critiques of the Paterson order, see Rebecca Bratspies and Sidney Shapiro). New York and New Jersey join a growing number of states that employ some form of centralized regulatory review—a group that includes Arizona, Hawaii, Illinois, Oklahoma, Pennsylvania, Virginia, and Wisconsin. Will more states follow New York and now New Jersey by instituting their own version of the Office of Information and Regulatory Affairs (OIRA …
Today, FairWarning—a new non-profit online news journal focusing on stories involving worker and consumer protection issues—went live. On its first day, the site offered dozens of short news stories along with three longer investigative pieces.
FairWarning says its mission is “to arm consumers and workers with valuable information, and to spotlight reckless business practices and lax oversight by government agencies.” The organization says that the mainstream media is no longer able to play this “watchdog” role effectively due to shrinking budgets.
The publication’s first three investigative stories suggest that FairWarning will serve as a valuable resource to public interest organizations and policymakers interested in protecting the health and safety of workers and consumers. For example, one story investigates how General Motors and the National Highway Traffic Safety Administration (NHTSA) have failed to protect consumers from a line of older pickup trucks that frequently combust …
