Academic journal article Public Administration Quarterly

Public Land Agencies, Oira, and Rulemaking

Academic journal article Public Administration Quarterly

Public Land Agencies, Oira, and Rulemaking

Article excerpt

Since its creation in 1981, the Office of Management and Budget's (OMB) Office of Information and Regulatory Affairs (OIRA) has been fraught with controversy due to its role in the U.S. federal rulemaking processes. Numerous studies have investigated the function OIRA has played in rulemaking processes, often describing OIRA as the president's "guardian" of regulatory outputs (Cooper & West, 1998 Bressmen & Vandenbergh, 2006; Arbuckle, 2008; Heinzerling, 2014) or the "information aggregator" (Sunstein, 2013). Recent scholarship even argues OIRA is a burden, lengthening the time to create a rule, arguing it is the "villain" of the rulemaking process (Copeland, 2013; Heinzerling, 2014). Although this scholarship is noteworthy, the focus to date has been to examine how interest group influence OIRA evaluations (Copeland, 2013; Croley, 2003), agency perceptions about OIRA (Bressmen & Vandenbergh, 2006; Heinzerling, 2014), or OIRA administrative rebuttals (Katzen, 2007; Arbuckle, 2008). Moreover, agency centered research, within an environmental context, focuses primarily on larger, more salient agencies such as the Environmental Protection Agency (EPA).

Missing in these conversations is a focused study about the relationships or perceptions between OIRA staff and public land agencies. Such research is of particular importance because "Many of the most controversial issues in public land policy and management are addressed by natural resource agencies using administrative rulemaking" (Nie, 1999, p. 687). Therefore, the purpose of this study is to offer a broader understanding regarding the role of OIRA in the environmental rulemaking arena by examining its interactions with rule-writers in three public land agencies: the Bureau of Land Management (BLM), United States Fish and Wildlife Service (USFWS), and the National Park Service (NPS). As such, this study attempts to address: How do public land agency rule-writers and OIRA staff perceive each other? How do these perceptions impact rulemaking processes?

In order to address these questions, semi-structured interviews were conducted with twenty-eight rule-writers and OIRA staff. (25) While the paper is primarily descriptive, it does provide a first-hand account about how the interactions between rule-writers and OIRA staff impact the development of a rule by utilizing the frameworks of regulatory perceptions and issue definition. The following analysis offers an exploratory examination about how agency and OIRA perceptions about each other have potential impacts not only on writing rules, but also provides ways to strengthen future rulemaking processes. Contrary to scholarly opinion, this paper argues that OIRA can have positive relationships with agency rule-writers, which can improve rules. Therefore, future analyses assessing agency and OIRA relationships should evaluate how rule-writers and OIRA desk officers can work more cooperatively to carry out their respective duties together during rule development, which can lead to more efficient rule-writing.

UNDERSTANDING RULEMAKING

It is important to begin with a general understanding of the U.S. federal rulemaking process. All federal agencies must follow procedures set by the Administrative Procedure Act of 1946 (APA) to conduct a rulemaking (5 U.S.C. [section]553). More specifically, the rulemaking process can be explained by three stages: 1) rule development; 2) notice/comment; and 3) rule finalization.

Rule development, the first stage, is where ex parte communication occurs between interest groups and agency personnel who serve to inform the language of the proposed rule. Moreover, this is where agency staff develops technical, scientific, environmental, or regulatory impact assessments required to accompany the publication of a proposed rule and undergoes inter-agency review (Kerwin & Furlong, 2011).

In addition, OMB's OIRA plays a role in the rule development phase. …

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