Centralized review of regulatory action should be revamped to promote timely rulemaking to strengthen public protections.*
The president has an appropriate interest in ensuring that agencies proactively carry out his policy priorities and that agency actions are coordinated. The centralized review of regulatory action should be undertaken exclusively by the Office of Information and Regulatory Affairs and should be geared to affirmatively advancing the president’s priorities. With due regard to ensuring that agency action is supported by evidence and defensible from legal challenge, OIRA must not impose needless delays and impediments to adopting strong public protections.
Recommendations for Short-term Action (First 100 Days)
- Executive Order: A New Role for OIRA.
The relationship between the Office of Information and Regulatory Affairs and regulatory agencies should be refashioned to be synergistic rather than oppositional. Regulatory decisions should presumptively come from the expert agencies, and the Office of Information and Regulatory Affairs should take care not to mandate one-size-fits-all approaches to promulgating rules. Together, OIRA and the agencies should ensure respect for statutory mandates and embrace the president’s affirmative agenda to adopt a robust set of public protections—to address both immediate needs, such as responding to Covid-19, and long-term, systemic change, such as advancing racial justice. With this new approach, the new role of the Office of Information and Regulatory Affairs should:
- Hold agencies accountable for their priorities and regulatory actions and coordinate those actions among federal agencies. Taking this approach, the Office of Information and Regulatory Affairs should communicate to the agencies that the Unified Agenda is a serious planning tool that can be used to enhance policy goals and hold agencies accountable. The Agenda can become a tool for achieving policy consistency government-wide and spotting interagency policy conflicts before significant resources are spent on individual rules. A mechanism like the Regulatory Working Group may serve to resolve interagency conflicts, and the Office of Information and Regulatory Affairs could facilitate that dialog among agencies and clarify presidential priorities. The Office of Information and Regulatory Affairs should use “prompt letters” when an agency is falling behind timetables identified in the Agenda or failing to act nimbly in response to changed circumstances. The Office of Information and Regulatory Affairs should also help agencies utilize fully the range of regulatory authorities they have, and help them meet agency objectives through novel exercise of existing authority.
- Help identify regulatory gaps and inconsistencies with the president’s policy priorities. When the president wishes an agency to act, particularly in addressing regulatory gaps, the Office of Information and Regulatory Affairs should communicate this message to the agency head through a “prompt letter.” It should be the agency head’s responsibility to implement the president’s priorities. This should not be construed as a recommendation for the Office of Information and Regulatory Affairs to engage in approval or disapproval of agency regulatory plans.
- Help to achieve consistency in regulations in policy areas that cut across agencies, such as food safety. Having identified such a cross-cutting area through the Unified Agenda as one in which multiple agencies are taking action, the Office of Information and Regulatory Affairs should ensure that regulatory outcomes are consistent with each other. This should not be construed as a recommendation for the Office of Information and Regulatory Affairs to review and approve all individual rules proposed but rather as a responsibility to coordinate regulatory activities before agencies have expended time and resources developing regulations that conflict with other agency actions.
- Facilitate interagency comments on significant proposed and final rules. The interagency review process plays a critical role in ensuring rules benefit from the full range of expertise in the executive branch. However, this interagency comment process should not be an excuse for delaying regulatory decisions, especially if the Office of Information and Regulatory Affairs has successfully coordinated agencies at the planning stage. Nor should the interagency comment process be an excuse for delaying regulations through de facto vetoes over the types and quality of the underlying information.
- Help agencies address a range of other information resources management issues. The Office of Information and Regulatory Affairs was created by the Paperwork Reduction Act which has a statutory requirement to address information resources management needs of agencies, such as helping with the use of interactive technologies to improve agency dissemination practices as required under the Paperwork Reduction Act. These skills may also help agencies in finding new and better ways of engaging the public in rulemakings.
- Expedite its review process. The new executive order should establish that OIRA review should emphasize final rules that meet the threshold of significance or are otherwise designated as benefitting from interagency review. Office of Information and Regulatory Affairs review should aim to be completed within 45 days.
* Centralized regulatory review has been debated for at least 40 years. Those developing these recommendations had differing views on centralized regulatory review and did not have a consensus on the subject. Accordingly, the committee agreed to recommend changes to the current review process.