Former Office of Information and Regulatory Affairs Administrator Paints Unrecognizably Rosy Picture of Rule Reviews

Cass Sunstein

Cass Sunstein, former Office of Information and Regulatory Affairs (OIRA) Administrator, recently penned an article, "OIRA: Myths and Realities," which purports to explain what OIRA really does when it reviews proposed and final rules submitted by agencies under Executive Orders 12866 and 13563. Sunstein's claims differ greatly from what agencies and public interest advocates say happens behind closed doors at OIRA.

In the article, Sunstein claims that cost-benefit analysis plays only a limited role in OIRA rule reviews. Instead, according to Sunstein, OIRA is focused on "aggregating information" from other agencies. Although OIRA staff meet often with outside groups, who overwhelmingly represent regulated industries, Sunstein claims that these meetings have little influence on the outcome of the office's review.

This sounds reasonable, but is it true? The story Sunstein tells is fundamentally different from the anecdotal information we hear from worker, environmental, and consumer agencies and from public interest groups. It is at odds with the published views of former OIRA staffers. But, more importantly, we cannot verify Sunstein's theory of OIRA as the ultimate "good government" agency because the impact of the office's review on agency proposed and final rules is kept secret.

Some of Sunstein's more implausible claims are described below.

First, Sunstein claims that OIRA's predominant role is to "identify and aggregate views and perspectives of a wide range of sources both inside and outside the federal government." Sunstein claims much of OIRA's efforts are aimed at ensuring that the concerns of other agencies are addressed in proposed or final rules, but empirical evidence suggests otherwise.

A recent analysis of OIRA meeting records by the Center for Progressive Reform (CPR) found that the most frequent visitor to OIRA between 2001 and 2011 was the Office of Advocacy at the Small Business Administration. Under the Regulatory Flexibility Act, agencies are already required to take this office’s views into account. A January report by the Center for Effective Government demonstrates that this office often simply parrots the views of Big Business that already dominate agency rulemaking and do not need a second, secret hearing at OIRA.

CPR found that other offices in the White House were the next most frequent attendees at OIRA meetings. The increased involvement of a variety of White House offices suggests increased political, not technical, review of rules at OIRA. Only two federal agencies, other than the agency whose rule was being reviewed, attended more than 20 meetings at OIRA during the decade between 2001-2011. Moreover, OIRA has not voluntarily disclosed any written communications from other agencies or the public (other than documents provided at meetings) since 2002.

The limited public record available belies Sunstein's claim that meetings at OIRA are aimed at reconciling the views of various federal agencies. Agencies with technical expertise on public health issues, such as the Centers for Disease Control and Prevention or the National Institutes of Health, rarely participate in meetings at OIRA. Besides, federal agencies are free to voice their concerns about the rules of other agencies by filing public comments during rulemaking. If they do, other rulemaking participants can comment on their concerns. Secret meetings at OIRA deprive the public of the opportunity to participate in this conversation.

Second, Sunstein claims that OIRA's goal is to make sure that comments get heard. This claim, too, is hard to believe. Agencies already provide a forum for public comment, and courts require that agencies respond to significant comments they receive. So, there is no reason for OIRA to duplicate what is already happening at regulatory agencies. When OIRA delays publication of proposed rules, it prevents the public at large from commenting on what an agency proposes. And, when it delays final rules and provides a forum for off-the-record meetings, it creates a secret record that may be similar to, but not the same as, the public record at the agency.

Third, Sunstein claims that although OIRA has held hundreds of meetings with industry representatives who want to weaken standards and safeguards, these meetings are not important and rarely influence OIRA's views on proposed or final rules. This claim, too, is hard to believe. If meetings with OIRA have so little influence, why do so many industries seek such meetings? Sunstein claims OIRA staff are not biased in favor of industry, even though OIRA almost always weakens rules so they are more to industry's liking.

Finally, Sunstein claims that cost-benefit analysis plays only a limited role in OIRA review. Yet agencies spend months, and hundreds of thousands of dollars, preparing economic analyses and risk assessments that are hundreds of pages long. In this era of government austerity, it seems absurd that OIRA continues to require such detailed, complex analyses when they supposedly have little influence on OIRA review.

Each of Sunstein's claims is at odds with the public perception of OIRA's role in the regulatory process. None of his claims can be verified based on the public record. Although Sunstein claims that OIRA engages in a "high degree of transparency, the evidence tells another story. OIRA refuses to disclose the draft rules it receives from agencies, so stakeholders cannot determine what changes OIRA insists upon.

If Sunstein's claims are accurate, that OIRA is just a neutral arbiter between competing federal agency goals and not hostile to worker, environmental, and consumer safeguards, then OIRA should embrace more transparency. Increased disclosure could test Sunstein's claim that OIRA's objections to rules are technical and not political. It could demonstrate that despite hundreds of meetings with industry, OIRA doesn’t weaken or delay rules to respond to business complaints. Without more transparency, Sunstein’s claims about the office he ran will remain as impenetrable as the review process he oversaw.

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