Academic journal article Harvard Journal of Law & Public Policy

Responding to Agency Avoidance of OIRA

Academic journal article Harvard Journal of Law & Public Policy

Responding to Agency Avoidance of OIRA

Article excerpt

INTRODUCTION    I. PRESIDENTIAL OVERSIGHT OF AGENCY       REGULATION THROUGH OIRA REVIEW   II. AGENCY AVOIDANCE       A. Prior Literature       B. Incentives and Strategic Behavior by             Agencies and OIRA          1. Presidential and OIRA Incentives to             Require Review of Agency Action          2. Incentives for Agencies to Cooperate             with OIRA Review          3. Incentives for Agencies to Avoid             OIRA          4. Dislike of Perceived Institutional             Intrusion on Agency Policymaking          5. Dislike of Changes or Delays in             Regulatory Outcomes          6. Agency-Oversight Relations as a             Repeated Game        C. A Broader Typology of Potential          Avoidance Tactics          1. Understating Impact or Splitting an             "Economically Significant" Rule             into Smaller Rules          2. Guidance Documents          3. Other Subregulatory Statements          4. "Bunching" or Combining Rules          5. Obfuscation and Other Means of             Exploiting Information Asymmetry          6. Incorporation by Reference of Private             or International Standards          7. Deferring or Delegating to State-Level             Standards          8. Litigation and Settlements          9. Enforcement Litigation         10. Agency Adjudication         11. Coalition Building         12. Being or Becoming an "Independent"             Agency III. EVALUATING RESPONSE MEASURES TO REDUCE      AVOIDANCE      A. Avoidance and Response in a Repeated         Game      B. Evaluating Each Response Option IV.  CONCLUSIONS 

INTRODUCTION

For more than two centuries, Presidents of the United States have sought to oversee the regulatory state. (1) Since about 1980, presidential oversight has become centralized in the Office of Information and Regulatory Affairs (OIRA). (2) Under a series of executive orders, Presidents of both political parties have required federal regulatory agencies to assess the benefits and costs of important regulations, and to submit the resulting regulatory impact assessments to OIRA for review.

Although OIRA review has become a settled feature of the American regulatory state, concerns have recently been raised that regulatory agencies might be trying to avoid it. (3) Agencies may face incentives to avoid OIRA oversight if they find it burdensome or irksome. Avoidance of OIRA review might occur in several ways; for example, agencies might frame regulatory actions to slip below OIRA's thresholds for review, or shift substantive policy decisions into documents or forms of agency action that are not subject to OIRA review, or write impact assess-assessments in ways that make review difficult, or run out the clock so that OIRA review is truncated by legal deadlines or the end of a presidential term. (4) Agencies also might enlist other regulators, such as state institutions, to act in place of federal agencies. (5) Finally, some entire agencies (dubbed "independent" agencies) have historically operated outside the OIRA review process. (6) Normative appraisals of agency avoidance vary; advocates of presidential oversight through OIRA see it as a problem, while critics of such oversight see it as a welcome development.

The concerns about agency avoidance have raised the question whether response measures are warranted to buttress OIRA review. For example, OIRA might broaden the scope of its review by lowering its thresholds, expanding the types of agency actions it reviews, or conducting spot checks to catch attempts at avoidance. OIRA could also be given more funding and staff to carry out its reviews. Courts could encourage agencies to undergo OIRA review by adjusting judicial review to take account of whether or not OIRA has completed a review. In general, advocates of OIRA review seem likely to favor stronger responses; critics of OIRA review seem likely to prefer milder responses or none at all. …

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