by CRE
To date the majority of the pending regulatory reform legislation is directed toward process reform at the agencies with no attention to OIRA.
Those interested in immediate regulatory relief necessary for job creation should focus on OIRA. The following are recommendation drawn from a recent article in the Administrative Law Review. Join the discussion of this important topic by posting your comment at the bottom of this article or in the section to the right. Anonymous posts are accepted, no registration required.
A. Desk Officer
The role of the desk officer has changed considerably over the past thirty years. At the inception of OIRA, the desk officer was in charge of a particular agency, meaning the desk officer was responsible for the review of the transactions of a particular agency to ensure they complied with the relevant OMB directives. The role of the desk officer has changed considerably from acting as an overseer of agency operations to a more passive role with greater emphasis on writing white papers for action by the Administrator. Having the majority of the decisions flow through the Administrator reduces the clout of the organization. In addition, it appears that recently there has been an emphasis on recruiting book smart desk officers; there is also a need for desk officers who are street smart.
B. Budget Side
At its inception, OIRA’s career leadership came from the budget side of OMB; it appears that OIRA’s connection to the budget side needs to be strengthened if OIRA wishes to capitalize on the strengths of the institution. In particular, consideration should be given to assigning primary jurisdiction for the review of select rules to budget examiners in order to foster a continued working relationship with the budget side and to ease work load in OIRA.
C. Social Entrepreneurs
OIRA was established with the aim of fostering growth of social entrepreneurs, i.e., individuals who develop a concept, market it and make it grow; an action similar to starting a for-profit firm in the private sector but in this case the payoff is in terms of improving the functioning of the government—not a hundred foot yacht. OIRA needs to have a re-emergence of social entrepreneurs. Within OIRA, this means that when an agency sends over a poorly designed regulation, OMB staff would go beyond objecting to the rule by devising a solution to the agency’s problems through the appropriate use of sugar and vinegar.
D. OIRA Staff Level
Within a year of its establishment, OIRA was the largest office in OMB based on personnel—even larger than the Budget Review Division. OIRA’s personnel constraints must be addressed. More specifically, sustaining necessary staff levels requires the active, directed use of the social entrepreneurial skills of the OIRA Senior Executive Service corps.
E. Review of Independent Agency Regulations
OIRA will continue to be plagued by accusations that it is singling out environmental regulations if it does not review the economic regulations of the independent agencies. The review of financial regulations will ensure that OMB’s watchful eye is not focused solely on social regulations but also economic regulations. OIRA has ample authority under the Paperwork Reduction Act[1] and the Data Quality Act to review such regulations.[2]
F. Retrospective Review of Regulations
OIRA should encourage the retrospective review of existing regulations by encouraging that petitions under the Data Quality Act[2] be filed on such regulations and ensuring potential petitioners that OMB will participate in the review of the petitions. Although the retrospective review provision of President Obama’s Executive Order[3]is a promising start, it still allows the agencies, not the White House or the affected parties, to make the final decisions regarding retrospective review. Injection of the Data Quality Act into the process will change this imbalance.
G. Public–Private Cooperation in Regulatory Enforcement
Lastly, OIRA should recognize that because its power flows from the President, its regulatory powers might fluctuate over time; thus the need to support mechanisms that allow the private sector to assume a portion of its enforcement role through the use of procedural mechanisms such as the Data Quality Act.
The above recommendations focus on the career civil servants who are essential to Presidents being able to achieve their goals.
[1]. See Paperwork Reduction Act of 1995, 44 U.S.C. § 3501 (1980) (explaining that whenever an agency proposes to collect information from the public, the agency must seek OMB review and clearance for such information collection request. Under 44 U.S.C. § 3502, the definition of agency includes “any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency . . . .” (emphasis added)).
[2]. See Center for Regulatory Effectiveness, A Blueprint for OMB Review of Independent Agency Regulations (2002), http://www.thecre.com/pdf/blueprint.pdf.
[3]. Exec. Order No. 13,563 (2011), 76 Fed. Reg. 3821, 3822 (Jan. 21, 2011).
