The GAO inquiry identified below failed to incorporate the following considerations:
1. If the public is given a copy of the regulation as submitted to OMB the public can than compare it with the final regulation issued by the agency to determine the impact of the interagency review.
2. It is naïve to believe that all changes in a final rule are a result of OMB; for example, individuals from other agencies participate in the discussions and the sponsoring agency changes its position as a result of comments made by others.
3. The recordkeeping and reporting requirements would be immense; OMB could never discharge a responsibility to catalog the parent or parents of each change in a regulation as it goes through interagency review.
4. What public purpose is fulfilled by attempting to catalog each and every change made in a rule through numerous meeting, phone calls and emails and then trying to identify the parent or parents of such changes? Most certainly it is not needed for judicial review.
5. GAO recommendations are academic in nature in that they come from an agency that does not need to make the trains run. Therefore asking for the sky is no problem because it is cost free.
6. GAO tends to believe that the OMB review process is solely an OMB review. GAO fails to identify the OMB process more accurately as an interagency review process where OMB is one of a number of players.
7. Ask anyone who has ever participated in the review process;, if such deliberations would ever go on camera the resultant discussions would result in a considerable amount of grandstanding–thus the reason every Administration in the nation’s history has opined, with judicial support, that such deliberations are privileged. To prepare a report not recognizing such an observation is to invite controversy for no beneficial purpose.
8. Finally history repeats itself. There is a school of thought that argues that the APA was passed because its proponents wanted to lawyer up the administrative process so as to make it difficult to undue New Deal programs. History is now repeating itself because the proponents of the abolishment of OIRA are attempting to lawyer up the administrative process so as to make it impossible for OIRA to fulfill its statutory responsibilities.
Pierce on the Impact of Benefit/Cost Analysis
Jawboning Agencies: Ex Parte Contacts by the White House Verkuil
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