Rachel Shaffer is a research assistant.
Earlier this month, the Administrative Conference of the United States (ACUS) completed an investigation into the Office of Information and Regulatory Affairs’ (OIRA) long delays in reviewing proposed and final rules and to offer recommendations for improving the efficiency and transparency of OIRA’s review process. The final report – which was featured in a front page story in the Washington Post – echoes and expands upon concerns we discussed in a previous blog post and a joint letter sent to Senator Blumenthal’s office earlier this year.
ACUS documents that the average time for OIRA reviews has significantly increased in recent years. From 1994-2011, the average review time was 50 days. However, in 2012, the average review time rose to 79 days. And in the first part of 2013, the average review time rose further to 140 days.
The reason for these growing delays?
It’s always hard to get a clear answer about anything related to OIRA, but former and current employees of federal agencies interviewed for the ACUS report provided a few possible explanations. At the top of their list was that some in the Executive Branch were concerned about the political fallout from issuing “potentially costly or otherwise controversial rules during an election year.” Other contributing factors identified by ACUS included increased time and complexity of interagency review, hesitancy about returning rules to agencies (which requires a public explanation), and decreased staffing.
The consequences of these delays, whatever the reason, are unacceptable: The public is denied its voice in the rulemaking process because the public comment period is also delayed, and agencies are unable to implement rules to fulfill their statutory missions. In the case of rules such as those proposed by EPA under the Toxic Substances Control Act (TSCA), this regulatory “purgatory” imposes very real costs to human health and the environment.
One of the stated top priorities of recently-confirmed OIRA Administrator Howard Shelanksi is to reduce these delays, and it seems like the office has been chipping away at the backlog and working to improve the timeliness of the regulatory review process. For example, according to the ACUS report, the number of ongoing reviews lasting more than one year has dropped from 51 in mid-May of this year to 27 by mid-September.
While promising at first glance, these numbers mask persistent problems with the review process, such as the increasing prevalence of “informal reviews” by OIRA staff prior to the initiation of the official review “clock” seen by the public. And, several of the rules included in the statistics above were actually withdrawn by the proposing agency after seemingly endless delay by OIRA, including two TSCA rules we blogged about in a previous post.
ACUS offers six recommendations to enhance the timeliness and transparency of OIRA’s work and to ensure compliance with Executive Order 12866, which guides the regulatory review process. We are hopeful that these recommendations — among them to provide better public documentation of the reasons for delay — will be implemented and deliver greatly needed improvements in the review process.
We’ll continue to monitor the often-opaque activities of this office, especially related to TSCA rules proposed by EPA; check back for updates in the coming months.