Recent reflections of a former executive agency official illustrate the troubling role the White House Office of Information and Regulatory Affairs (OIRA) plays in reviewing all agency rules before they can be issued. In a new article, Lisa Heinzerling shares her perspective on OIRA review during her tenure at the U.S. Environmental Protection Agency (EPA). Notably, Heinzerling gives a first-hand account of how the White House interacts with agencies regarding rules, contradicting the story being told by former OIRA Administrator Cass Sunstein and challenging the unrecognizably rosy picture of rule reviews he spins. Indeed, Heinzerling identifies a number of problems with OIRA, including significant delays and a lack of transparency, that resonate with health and safety advocates.

OIRA: The "Black Box" for Agency Rules

Many agencies are required by presidential Executive Order 12866 to submit rules to the Office of Information and Regulatory Affairs (OIRA), a regulatory review agency housed within the White House Office of Management and Budget (OMB), for review before they may be published. OIRA reviews the agency's analyses, including any cost-benefit analyses and impact analysis the agency has conducted, to determine if OIRA believes the rule should be proposed and/or adopted as written. An executive order requires that OIRA's review of "major rules" be completed within 90 days unless the agency agrees to a one-time extension of an additional 30 days. OIRA is also required to provide the public with the current status of all rules under review.

If OIRA sends a rule back to an agency for further analysis, the office is required to explain in writing why more analysis is needed. If OIRA makes changes to the proposed rule during the review process, the agency is supposed to identify those changes in a clear and understandable manner and make this information available to the public.

For years, former agency staffers and public interest groups have argued that OIRA review causes significant delays that routinely last beyond the 90-day and 120-day time limits, that OIRA review often weakens rules and standards opposed by business, and that OIRA often sends proposals back to an agency (or kills the proposal altogether) without any explanation to the public. Some rules currently under review at OIRA have been there for years, despite statutory or court-ordered deadlines, and not even the agencies know what is causing the delay. In fact, OIRA is often called a "black box" of the federal rulemaking process.

Despite the significant delays and lack of transparency at OIRA, former Administrator Cass Sunstein claimed in a recent article, "The Office of Information and Regulatory Affairs: Myths and Realities," that OIRA is nothing more than an "information aggregator" and that cost-benefit analysis plays a limited role in OIRA reviews. In March, we wrote that Sunstein's claims differ significantly from what some agency staff and public interest advocates believe happens behind closed doors at OIRA.

Now we have an insider's written account to bolster those assertions. Heinzerling writes that "Sunstein's account does not jibe with my own perceptions of OIRA's power relative to EPA or to other executive branch actors." She observes that Sunstein's attempt to downplay OIRA's interference with agency rulemaking is rebutted by his own description of the power he held as the OIRA administrator. For example, in Sunstein’s new book, Simpler: The Future of Government, he writes that he had authority to say no to members of the Obama administration, to ensure that some rules "never saw the light of day," and to use cost-benefit analysis as a "rule of decision," rather than as an analytical tool to guide agency decision making. Heinzerling's experience suggests the latter description is more accurate. According to Heinzerling, OIRA plays a "central and often decisive role in determining which rules move and which don't" and is not a neutral broker.

OIRA's Lengthy Delays and Opaque Process

According to Heinzerling, the deadlines for review established under executive order are essentially meaningless and "perhaps survive as benchmarks, but nothing more."

One example of OIRA delay is the Occupational Safety and Health Administration's (OSHA) proposed rule to protect workers from exposure to silica dust, which has been stuck at OIRA for years, as we noted in a blog post in February. Another example is EPA's proposed rule to limit formaldehyde in pressed-wood products. Congress mandated that the rule to regulate the use of formaldehyde be finalized by January 2013, but the EPA’s proposed rule has been sitting at OIRA since May 2012.

According to Heinzerling, "OIRA extends review indefinitely at the 'request' of agency heads – but these requests . . . often are instigated by OIRA itself." OIRA controls the request by calling "an official at the agency and ask[ing] the agency to ask for such an extension," which "the agency is not to decline . . . ." In other instances, OIRA prevents the clock from running by blocking an agency from sending the rule to OIRA at all or claiming that OIRA did not "receive" the rule until weeks or months after the agency has electronically submitted the rule to OIRA.

Disappointingly, these delays have increased during the Obama administration. According to a new Congressional Research Service (CRS) report, the length of time it takes OIRA to review rules increased dramatically in 2012, far exceeding any review times over the past 15 years. Currently, OIRA has 126 rules under review (according to the Regulatory Dashboard), and nearly 70 have been held well beyond the 120-day limit.

Heinzerling describes OIRA’s review process as "utterly opaque," and this has been the case for decades. In a 2003 report, the Government Accountability Office (GAO) found that OIRA often made substantial changes to rules under review, but its review process was not well documented or clear. These same concerns remain true today.

As Heinzerling notes, OIRA regularly violates the transparency provisions of Executive Order 12866, which requires OIRA to document communications with outside parties, provide the public with the current status of rules under review, and encourage agencies to disclose changes OIRA made to a rule during the review process. In direct contradiction of the executive order, Heinzerling describes an incident in which a staff person at OIRA told her not to disclose a memo that explained why an EPA rule was reviewed by White House officials more senior than the OIRA administrator. Likewise, Heinzerling explains how OIRA often fails to provide a written explanation to agencies as to why a rule has failed OIRA review and is being sent back to the agency. And although OIRA posts the status of rules on its Regulatory Review Dashboard, this information often contains errors or is not updated for days or weeks after the status of a rule has changed.

Conclusion

As the Obama administration seeks consent from the Senate on Howard Shelanski’s nomination as the next OIRA administrator, there may be an opportunity to change OIRA’s practices and track record. The Senate should ask Shelanski how he plans to address OIRA's notoriously lengthy delays and opaque review process so that the public has the information necessary to actively participate in the rulemaking process. Public interest groups are cautiously hopeful that Shelanski will use his tenure to free rules that will better protect public health, worker safety, and the environment from the prison of OIRA delay and deferral.