The Role of the Office of Information and Regulatory Affairs in Federal Rulemaking

INTRODUCTION The Office of Information and Regulatory Affairs (OIRA) is one of several statutory offices within the Office of Management and Budget (OMB), (1) and can play a significant--if not determinative--role in the rulemaking process for most federal agencies. In addition to its many other responsibilities, OIRA reviews the substance of about 600 to 700 significant proposed and final rules each year before agencies publish them in the Federal Register, (2) and can clear the rules with or without change, return them to the agencies for "reconsideration," or encourage the agencies to withdraw the rules. About 100 of the rules that OIRA reviews each year are each considered "economically significant" or "major" (e.g., expected to have a $100 million impact on the economy). (3) OIRA was created by Congress and has a number of specific statutory responsibilities, but also helps ensure that agencies' rules reflect the president's policies and priorities. OIRA's role in the federal rulemaking process has been highly controversial in all four of the presidential administrations in which it has been in existence, but the criticisms directed at the office have varied over time. In some administrations, OIRA has been accused of controlling the agenda of the rulemaking agencies too much, directing them to change substantive provisions in draft rules, or even stopping proposed regulatory actions that it believes are poorly crafted or unnecessary. (4) At other times, though, OIRA has been accused of exerting inadequate authority over the agencies' rules. (5) Other, more persistent criticisms have focused on the lack of transparency of OIRA's regulatory reviews to the public and the sometimes-unseen influence that regulated entities and other non-governmental organizations can have on agencies' rules through those reviews. (6) This Article describes the process OIRA uses to review covered agencies' draft rules, OIRA's effects on the rules, and changes in OIRA's procedures and policies in recent years. Much of this discussion is drawn from a September 2003 report on OIRA that I helped develop when I was with the General Accounting Office (GAO, now the Government Accountability Office). (7) First, though, this Article provides a brief history of presidential regulatory review and describes how OIRA's review process was established. Finally, the Article describes several potential legislative issues regarding OIRA's regulatory review authority, and makes a few concluding observations both about OIRA's recent initiatives and its future. THE ESTABLISHMENT OF REGULATORY REVIEW IN OIRA OIRA was created within OMB by the Paperwork Reduction Act (PRA) of 1980. (8) The PRA provided that OIRA would be headed by an administrator who was designated the "principal advisor to the Director on Federal information policy." (9) The Act also provided that the director of OMB "shall delegate to the [OIRA] Administrator the authority to administer all functions under this chapter." (10) Specific areas of responsibility in the PRA that were assigned to the director, and later delegated to OIRA, included information policy, information collection request clearance and paperwork control, statistical policy and coordination, records management, privacy, and automatic data processing and telecommunications. (11) With regard to paperwork reduction, the Act generally prohibited agencies from conducting or sponsoring a collection of information until they had submitted their proposed information collection requests to OIRA and the office had approved those requests. The PRA's requirements cover rules issued by virtually all agencies, including Cabinet departments, independent agencies, and independent regulatory agencies and commissions. (12) Although the PRA gave OIRA substantive responsibilities in many areas, the bulk of the office's day-to-day activities under the act were initially focused on reviewing and approving agencies' proposed information collection requests. …