REGULATIONS:

With OIRA's Sunstein departure imminent, experts put microscope to White House agency

The Office of Information and Regulatory Affairs is often called the "black hole" of federal rules, a White House office where proposed regulations can enter in one form and exit months later in another.

But yesterday, former OIRA officials argued that the office is not as secretive -- or political -- as its reputation suggests.

"It is an amazing thing to come to work every day and be blasted by the left and right simultaneously," said Michael Fitzpatrick, who served as an associate administrator in the office under President Obama. "What's interesting is when you have the right and the left both attacking you, it's a pretty good indication you're doing your job."

Indeed, liberal and environmental groups often criticize the office for holding up rules, while conservatives have targeted it as ground zero for a deluge of "job-killing" regulations. But Fitzpatrick said the office is made up of mostly career civil servants, who may be a "pain in the rear" to agencies but have no political aspirations.

Former OIRA Administrator Susan Dudley, who served under President George W. Bush, similarly characterized one of the office's functions as a "dispassionate and analytical second opinion on agencies' actions," though she and Fitzpatrick said the office's second role is to ensure that regulations align with the president's vision.

"The analytical principles that OIRA applies are generally not controversial and I would say certainly not partisan," Dudley said. "They remain essentially the same since OIRA's founding."

Fitzpatrick and Dudley spoke at a panel discussion on Capitol Hill yesterday. Held by the Sunlight Foundation, which seeks to demystify the federal government and the political process, the event considered OIRA's future as OIRA Administrator Cass Sunstein prepares to leave at the end of this month (Greenwire, Aug. 3).

One recommendation from the panel included more resources. When the office was founded in 1981, about 90 employees worked there; the staff numbered 70 as recently as 2004. Today, the office has fewer than 50 workers to analyze hundreds of rules every year and more than 4,000 requests from agencies to collect information from the public.

Some groups believe the office shouldn't exist in its current form at all. Robert Weissman, president of Public Citizen, served as the lone anti-OIRA voice on yesterday's panel, arguing that the office furthers a regulatory slant toward industry by giving special interests a "second bite at the apple."

His take: OIRA should stop reviewing individual rules altogether.

"I think a way forward for OIRA would be to move away actually from the case-by-case, rule-by-rule review," he said, suggesting that the office instead focus on big-picture questions. "How does the regulatory system work? What are the big regulatory holes? There are issues about regulatory coordination; there are massive regulatory gaps; there are huge issues of regulatory capture."

Slippery deadlines

But much of yesterday's discussion focused on transparency. Curtis Copeland, a former specialist at the Congressional Research Service, pointed out that OIRA provides limited information on why a rule was changed or withdrawn. He also cited 2003 and 2009 reports from the Government Accountability Office that found OIRA "informally" discusses rules with agencies before those rules are formally submitted to the office for review.

"They get most of the changes from agencies during informal reviews, but the agencies are told not to document the changes that were made," Copeland said. "That's not transparency."

Weissman also accused OIRA of holding up politically controversial rules, without sufficient transparency. Weissman -- and other liberal watchdogs -- are particularly concerned about a proposed rule for crystalline silica, a common substance in dust at construction sites. Unprotected and prolonged exposure to the substance can cause severe respiratory problems, including silicosis.

The rule has been stuck at OIRA for 18 months.

Fitzpatrick, who worked at OIRA until last year, declined to offer any reasons for the delay. But he pointed out that OIRA usually takes about 40 days to vet a rule -- and that the often-cited 120-day deadline doesn't actually exist.

The deadline is outlined in an executive order that gives OIRA 90 days to vet a rule with the option to request a 30-day extension from an agency. But Fitzpatrick said an agency can agree to an unlimited extension.

"So most every rule that you see that's at OIRA for more than 120 days is there because the agency has agreed," he said. "Maybe they're not real happy about it, but understand here, the rule may be having major impacts on society and there are real concerns about the rulemaking, so the conversation is continuing."

Dudley similarly defended the office's transparency, pointing to the fact that its existence means the public learns more about agencies' rulemaking plans.

As for the silica rule, she said she was also "curious" about why it is stuck at OIRA.

But, Dudley added, "We know it's there. We would have no idea where that regulation was if it weren't for OIRA's transparency."

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