Public Scrutiny for an Unnoticed Regulatory Powerhouse
The Office of Information & Regulatory Affairs has an unenviable reputation. The media can’t seem to resist calling it "obscure," and often refer to its director as the "regulatory czar." Among progressives, it’s often regarded as an unduly sympathetic ally of industry lobbyists trying to water down or kill protective regulations.
In fact, all those things are more or less true. It’s "obscure" because most people have no idea what it does; its director is fairly described as a "czar" (within the meaning of the term in Washington, not in pre-revolutionary Russia!) because he or she wields extraordinary power over the regulatory structure; and it is clearly the place where industry lobbyists pitch their tent, hoping to delay, dilute, distort, or defang protective regulations.
CPR Member Scholars and staff keep a careful eye on the Office of Information and Regulatory Affairs, posting frequently to CPRBlog about its work, and also keeping up on legislative oversight and proposals that involve OIRA. Read the most recent posts, below.
The Latest News on OIRA
How Much Longer Will it take for OSHA to Protect Workers from Deadly Silica Dust? 08/18/15
Thousands of U.S. workers die every year because of on-the-job exposure to unsafe levels of crystalline silica, a toxic dust common in the construction, sandblasting, and mining industries. Even at the current legal limits, inhaling the tiny tox >> Read More
New Research Affirms That Corporate Interest Lobbying at OIRA Holds Sway 08/05/15
When asked by a reporter why he robbed banks, the notorious bank robber Willie Sutton is said to have responded, “Because that’s where the money is.” For decades, the accepted conventional wisdom held that a similar dynamic mo >> Read More
The Real Nine Most Terrifying Words in the English Language 07/15/15
“I’m Republican, and I want to do regulatory reform.” Whether they’ve uttered that exact nine-word phrase or not, virtually every Republican on Capitol Hill has enthusiastically endorsed the sentiment it expresses at som >> Read More
Defeating the Public Interest One Bill at a Time: The ALERT Act (H.R. 1759) 04/14/15
Background: Tomorrow, the full House Judiciary Committee will be holding a markup of the H.R. 1759, the All Economic Regulations are Transparent Act of 2015 (ALERT Act), sponsored by Rep. John Ratcliffe (R-Tex.). The House of Re >> Read More
Three Quick Reactions to Yesterday's House Oversight Committee Hearing on OIRA 03/04/15
Yesterday, the House Oversight Committee held a hearing on “Challenges Facing OIRA in Ensuring Transparency and Effective Rulemaking” that featured as its only witness the head of the White House’s Office of Information and Regulato >> Read More
But Wait, There’s Less! The GOP Has a 'Sue and Settle' Bill They Would Like to Sell You 02/17/15
Last week, Rep. Doug Collins (R-Ga.) and Sen. Chuck Grassley (R-Iowa) continued the parade of anti-regulatory bills resurrected from past sessions of Congress by introducing in their respective chambers the Sunshine for Regulatory Decrees and Settlem >> Read More
At Last, the Obama Administration Acknowledges Need for Urgency on Advancing Regulatory Agenda 02/13/15
At last, the Obama Administration is articulating a sense of urgency about moving vitally needed health and safty regulations through its pipeline. Here’s Howard Shelanski, White House Office of Information and Regulatory Affairs, in a Blo >> Read More
Department of Transportation’s Crude-by-Rail Safety Standards Keep Chugging Along 02/09/15
According to the Office of Information and Regulatory Affairs’ (OIRA) records, the Department of Transportation submitted its draft final crude-by-rail safety rule for White House review late last week. OIRA’s review of draft final >> Read More
In Their Rush to Help Big Business, Antiregulatory Members of Congress are Trampling Small Ones Along the Way 01/26/15
Just as The Sixth Sense makes more sense when you realize that Bruce Willis’s character has been dead the whole time, the Small Business Regulatory Flexibility Improvements Act (SBRFIA)—the latest antiregulatory bill being championed by a >> Read More
The Anti-Regulatory Crowd's Small Business Rhetoric Is a Scam 01/22/15
Just as The Sixth Sense makes more sense when you realize that Bruce Willis’s character has been dead the whole time, the Small Business Regulatory Flexibility Improvements Act (SBRFIA)—the latest antiregulatory bill being >> Read More
White House Office Working Against the President's Stated Objectives
Significantly, OIRA is the office that forces regulatory agencies to subject proposed regulations to systemically flawed cost-benefit analysis – a method of regulatory impact analysis that typically overstates the costs of protective regulations to industry (largely by relying on inflated industry estimates) and understates the benefits of such regulations (often by simply ignoring those that do not carry a price tag). The process is distorted in a variety of other ways, as well. One EPA cost-benefit analysis calculated the worth of IQ points that children lose to in utero mercury poisoning by “guesstimating” the impact on the children’s future earnings. (The analysis also treated the diminished likelihood that the children would attend college as a cost savings – weighing in on the side of not bothering to regulate mercury!) Absent from the analysis because they don’t lend themselves to conversion into dollars and cents were some obvious points: that money alone doesn’t make up for brain damage, and that no parent would “sell” their child’s IQ points. Such cost-benefit analysis outrages are all too common. Significantly, most of the statutes under which agencies regulate call for some other form of regulatory impact analysis; cost-benefit is only rarely required by law. It is imposed by executive order not by statute, and could be just as easily “un-imposed” by a President inclined to remove what was intended to be, and has plainly become, a tool for scuttling protective regulations.
Over the years, OIRA’s pattern became familiar: an agency sends over a protective rule for review; industry meets with OIRA to complain about the rule (often several times); and then, behind closed doors, OIRA presses the agency to dilute or delay the rule, leaving people and the environment inadequately protected against unreasonable risks. The EPA’s rules for controlling coal ash waste and ozone pollution, the FDA’s rule to reduce salmonella contamination in eggs, and NHTSA’s rule on fuel efficiency labels for tires—all are telling examples of OIRA’s influence over the regulatory system.
The report reviews 10 years’ worth of data on OIRA’s meetings with outside groups and status reports for completed rule reviews—the only information on OIRA’s activities that are publicly available. It finds that industry has taken advantage of OIRA’s “all-you-can-meet” policy to dominate the OIRA meetings process: Industry representatives meet with OIRA five times more frequently than do public interest group representatives.
It also finds that industry’s meetings achieve the desired result: Rules that were the subject of meetings were 29 percent more likely to be changed during the review than those that were not the subject of meetings. Almost invariably, OIRA’s influece operates as a one-way ratchet, weakening safeguards that protect the public and the environment in order to protect regulated industry’s bottom line. Lastly, it finds that the EPA is disproportionately burdened by this process. Even though the EPA’s rules comprised only 11 percent of all those reviewed by OIRA, 41 percent of all meetings at OIRA related to EPA rules. Other agencies’ rules are changed a lot during OIRA review—about 65 percent of the time—but EPA rules are changed even more frequently than that—a whopping 84 percent of the time. Read more about the report, read the full report or read just the executive summary. Explore the searchable database, which compiles all the data on OIRA meetings and rule reviews used in the report.
CPR's Past Work on OIRA:
12866 at 20 Blog Carnival. Executive Order 12866 turned 20 in October 2013, and nine CPR Member Scholars marked the occasion of the order upon which rests OIRA's true power with a blog carnival. Here's a summary of who said what with links to each of the individual posts.
Delays at OIRA: In June 2013, Senators Sheldon Whitehouse (D-RI), Tom Harkin (D-IA), Ben Cardin (D-MD), and Richard Blumenthal (D-CT) and U.S. Representatives Henry A. Waxman (D-CA) and Ed Markey (D-MA) sent a letter to White House Office of Management and Budget Director Sylvia Burwell urging her to take "prompt action" to implement rules and regulations held up at the Office of Information and Regulatory Affairs. The letter notes that under Executive Order 12866, OIRA reviews of agency draft rules must be completed within 90 days, and that 14 of the 20 EPA rules currently undergoing OIRA review have been languishing for more than 90 days, 13 of them for more than a year. CPR Member Scholar Robert Verchick, a former EPA official, applauded the letter in a statement.
Scoring Political Points with the Regulatory Look-Back: In May 2011, OIRA Administrator Cass Sunstein penned an op-ed in the Wall Street Journal and delivered a speech at the American Enterprise Institute touting the preliminary results of the Administration's regulatory look-back, announced by the President in January. As the look-back was originally framed, agencies would examine current regulations to seek out -- and eventually revise -- rules that were redundant, had been overtaken by technology, were no longer necessary, or needed to be expanded. In his May announcement, Sunstein focused his discussion exclusively on regulations to be eliminated or weakened. CPR's Amy Sinden responded with a blog post taking the Administration to task for its anti-regulatory rhetoric, for failing to follow through on its promise to seek out areas where regulation needed to be expanded, and for ginning up the look-back as a largely political exercise that would divert agencies from their urgent work.
Launching the Obama Regulatory 'Look-Back': The GOP majority in the House of Representatives is working to advance legislation designed to gum up the regulatory system -- calling it the REINS Act. (Read Member Scholar Sidney Shapiro's editorial memorandum on the subject.) In January 2011, President Obama responded to the GOP's anti-regulatory initiative by launching one of his own. In an op-ed in the Wall Street Journal, the President announced that he would direct agencies to "look back" at existing regulations with the goal of identifying those "that conflict, that are not worth the cost, or that are just plain dumb." As CPR President Rena Steinzor pointed out, in the process of launching the initiative, the President adopted the frame for the conversation that the GOP has put forward: that regulations are a drag on the economy. In fact, as Steinzor argued in a number of media placements, there's no evidence of that. Moreover, she observed, the initiative will distract agencies from the much more important work of addressing pressing regulatory needs -- like climate change, unsafe workplaces, unsafe automobiles and more. Read Steinzor's blog on the subject.
Coal Ash Comments. Rena Steinzor's November 19, 2010 comments to EPA on its proposed coal ash regulation have sharp criticism for OIRA's extended review of EPA's 2009 proposal to regulate coal ash. Along the way, OIRA violated the executive order establishing its authority to review regulations by missing its deadlines, then imposed on EPA an alternative, watered-down, regulation, and then saddled EPA's original proposal with a cost-benefit analysis that would make it all but impossible for EPA to describe plainly hazardous coal ash as a hazard. Read Rena Steinzor's 2010 comments on EPA's proposal and OIRA's role in the process. Read the news release. Read a CPRBlog post.
Did OIRA Help Cause the Recent Salmonella Outbreak? One of the stories that emerged in the wake of the massive egg recall in August was that the Food & Drug Administration had recently issued a new rule meant to prevent salmonella contamination in eggs, but the rule was issued just a few months after the salmonella outbreak began. In these kinds of “near miss” situations, it is natural to ask questions like: Could the FDA have issued the rule a few months earlier? And, if so, why didn’t it? As it turns out, OIRA may have interfered with the rule in November of 2008, possibly delaying the rule’s completion by half a year or even longer. A September 1, 2010, CPRBlog post examines the facts surrounding this instance of potential OIRA interference with catastrophic consequences.
OIRA and Cock Roaches? Read Rena Steinzor's August 30, 2010 testimony before an EPA panel conducting regional hearings on regulating coal ash, in which she explains why the supposedly "irrational" refusal of human test subjects to drink a glass of water from which a cock roach had just been removed is at the heart of OIRA's extraordinary rationale for tilting a cost-benefit analysis against regulating coal ash.
OIRA and Transparency: Despite the Obama Administration's commitment to transparency in government, OIRA is operating in opaque mode, according to a June 22, 2010 CPRBlog post from Rena Steinzor.