The Office of Information and Regulatory Affairs: Myths and Realities

By Sunstein, Cass R. | Harvard Law Review, May 2013 | Go to article overview
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The Office of Information and Regulatory Affairs: Myths and Realities


Sunstein, Cass R., Harvard Law Review


Since its creation in 1980, the Office of Information and Regulatory Affairs (OIRA), a part of the Office of Management and Budget, has become a well-established institution within the Executive Office of the President. This Commentary, based on public documents and the author's experience as OIRA Administrator from 2009 to 2012, attempts to correct some pervasive misunderstandings and to describe OIRA's actual role. Perhaps above all, OIRA operates as an information aggregator. One of OIRA's chief functions is to collect widely dispersed information--information that is held by those within the Executive Office of the President, relevant agencies and departments, state and local governments, and the public as a whole. Costs and benefits are important, and OIRA does focus closely on them (as do others within the executive branch, particularly the National Economic Council and the Council of Economic Advisers), especially for economically significant rules. But for most rules, the analysis of costs and benefits is not the dominant issue in the OIRA process. Much of OIRA's day-to-day work is devoted to helping agencies work through interagency concerns, promoting the receipt of public comments on a wide range of issues and options (for proposed rules), ensuring discussion and consideration of relevant alternatives, promoting consideration of public comments (for final rules), and helping to ensure resolution of questions of law, including questions of administrative procedure, by engaging relevant lawyers in the executive branch. OIRA seeks to operate as a guardian of a well-functioning administrative process, and much of what it does is closely connected to that role.

I. INTRODUCTION

The Office of Information and Regulatory Affairs (OIRA), a part of the Office of Management and Budget (OMB), has become a well-established, often praised, and occasionally controversial institution within the federal government. (1) OIRA was initially created by the Paperwork Reduction Act of 1980, (2) with (among other things) the particular responsibility of approving (or disapproving) information collection requests from federal agencies. In one of his early actions, taken less than a month after assuming office, President Ronald Reagan gave OMB an additional responsibility, which is to review and approve (or decline to approve) federal rules from executive agencies, with careful consideration of costs and benefits. (3) Within OMB, that responsibility is exercised by OIRA. The Administrator of OIRA is often described as the nation's "regulatory czar." While it is an understatement to say that this term is an overstatement (and that is one of my major claims here), it does give a sense of the range and responsibility of the office.

From September 2009 until August 2012, I was privileged to serve as OIRA Administrator. (4) I had taught and written about administrative law for over two decades, and much of my work focused explicitly on OIRA. (5) Nonetheless, there was a great deal that I did not know, and much of what I thought I knew turned out to be wrong or at best incomplete. Even among close observers--in the media, in the business and public interest communities, and among academics, including professors of law--the role of OIRA and the nature of the OIRA process remain poorly understood. It is frequently and mistakenly thought, for example, that OIRA review almost exclusively involves the views and perspectives of OIRA itself; (6) that when rules are delayed, it is almost always because of OIRA's own concerns; (7) that when rules are long delayed or ultimately not issued, it is generally because OIRA opposes them; that analysis of costs and benefits is the dominant feature of OIRA review; (8) and that OIRA review is highly political. (9) Much of the discussion of OIRA focuses on OIRA's role as part of White House oversight of agency rulemaking. (10) To be sure, that role is quite important, and it will receive considerable attention here.

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