OIRA Watch

Editor’s Note: “Get the habit of analysis – analysis will in time enable synthesis to become your habit of mind.” — Frank Lloyd Wright

From: Examiner

Rep. Kevin Brady (R-TX), Chairman of the Joint Economic Committee, released the following statement upon the conclusion of a hearing the Committee held on how to provide better analysis before imposing new regulations:

“Today, there was bipartisan agreement that all federal regulatory agencies should use cost-benefit analysis when considering new federal regulations. During the decade ending in 2012, federal agencies published 37,786 final regulatory rules—with OMB presenting cost-benefit analysis for only 115 regulations. That is 3/10 of one percent—meaning only three in every 1,000 regulations were subject to a complete analysis of their effects on the U.S. economy, job creators and families.”

Editor’s Note: Transparency in government operations is careful balance between the public’s right to know and the public’s right to have their government’s sensitive discussions protected from inappropriate disclosure. The Freedom of Information Act (FOIA) is the statutory embodiment of the appropropriate balanace between disclosure and protection of government data and contains multiple exceptions to disclosure requirements. Examples of material which Congress determined should be protected from disclosure include:

Information that concerns communications within or between agencies which are protected by  legal privileges, that include but are not limited to:

1. Attorney-Work Product Privilege
2. Attorney-Client Privilege
3. Deliberative Process Privilege

Editor’s Note: The following comment was submitted  to  Professor  Dan Farber regarding the post that is printed below.

 Professor  Farber:

You most certainly are correct that OIRA is overworked and understaffed. I disagree, however, completely with your conclusions regarding the expertise of OIRA staff.

 OIRA has been in business for more than three decades and if you look at the staff expertise over that period of time I believe you will arrive at a different conclusion.

 Secretary Gates record of public service is outstanding. He served numerous Administrations’ in key positions and performed at an exemplary level.

 But to end his career with a book critical of his superiors reflects poorly on he and federal  employees. There was no overwhelming reason to disclose his personal positions on key policy issues at this time, particularly since they address decisions that have already been  made  and are in their critical stages of implementation.

 Why this post on OIRA Watch?  Because the same advice applies to OIRA employees.

The activities of OIRA are under constant review by a number of institutions most notably and most recently the Administrative Conference of the United States.

Over twenty years ago, Professor Robert Percival of the University of Maryland, the author of an internationally recognized casebook on environmental law, prepared a comparable analysis.

It would be interesting to compare the results of the Pericival analysis with other analyses of  OIRA operations conducted in previous years  to assess  the changes in centralized regulatory review that occured over the last four decades.

Editor’s Note:  How can anyone doubt OIRA’s commitment to transparency when every element of its review is made public prior to the completion of internal deliberations?  Notwithstanding the belief of the Editor that no such information should be made public prior to the completion of the deliberative process, proponents of increased transparency have an insatiable appetite for information which should be squashed in terms of any expansion thereto.

Food Safety News

In October, the U.S. Food and Drug Administration posted the latest batch of Office of Management and Budget revisions on proposed Food Safety and Modernization Act (FSMA) rules. Consumer advocates were not pleased with what they saw.

 There a numerous press reports comparing the several day outage of regulations.gov to the outage of the healthcare website.

 The outage of the healthcare site is a transient problem and even  when it is down for an extended period of time the biggest problem  is that insurance policies are not issued in a timely manner.

 Not the case with regulations.gov.  Judicially enforceable deadlines are not disclosed, government sponsored meetings are not announced and a host of other time sensitive matters are jeopardized.

 Even more troubling are  reports that when the regulations.gov website crashed there was a question as to whether some of the data was lost.

From: Bloomberg/Businessweek

By Jim Tozzi, Center for Regulatory Effectiveness, who served as a career regulatory official for five consecutive administrations and was instrumental in establishing OMB’s regulatory review office, OIRA.

WASHINGTON, Nov. 6, 2013 /PRNewswire-USNewswire/ — Bloomberg News, in an article titled New Draft Report Finds Political Interference in Federal Rulemaking, makes two points. First, the article asserts that OMB violates the transparency provisions of the regulatory review executive order by placing an undue emphasis on informal discussions with agencies on regulations prior to their being submitted to OMB. Two, the article argues that the administration has “politicized” the regulatory review process.

 For decades there has been a controversy within the regulatory community as to whether “independent” agencies should remain independent. In terms of the economic formulation and evaluation of  regulations independent agencies have frequently been criticized by the Executive Branch, academicians and the courts as not attaining the degree of accuracy in their evaluations as is the case with Executive Branch agencies.

 However there is a middle road as explained by FTC Commissioner Maureen K. Ohlhausen in an article in the Journal of Antitrust Enforcement, (2013), pp. 1–24 namely to adopt the guiding principles in Executive Order 12866 and apply them to FTC proceedings.