Notice & Comment

Cost-Benefit Analysis & EO 12866: A Twenty-Year Retrospective – Part II, by Nina Hart

On October 28, 2013, New York University’s Institute for Policy Integrity hosted its Fifth Annual Cost-Benefit Analysis & Issue Advocacy Workshop.  One highlight was an afternoon panel reflecting on the consequences of Executive Order 12866 of 1993, which reaffirmed and expanded on the Reagan Administration’s requirement that significant executive agency regulations be subject to cost-benefit analysis.  The panel featured Boris Bershtyn, former Acting Director of OIRA (2011-13) and General Counsel for OMB (2012-13); Sally Katzen, former Director of OIRA (1993-98); C. Boyden Gray, former White House Counsel (1989-93); and E. Donald Elliott, former Assistant Administrator and General Counsel for the EPA (1989-91).  Richard Revesz, dean emeritus and professor at NYU School of Law, moderated the panel.  Notice and Comment is pleased to present series of posts by blogger Nina Hart on some of the critical issues discussed during the panel and key policy recommendations.

Part II – OIRA’s Lack of Personnel Challenges its Capacity in terms of Numbers and Expertise

While many of the initial challenges discussed by the panelists were rooted in a sheer dearth in numbers, a related problem is, as Katzen put it, “uneven” expertise.  “I once had someone ask me what an aquifer was,” she admitted.  Bershtyn added that OIRA consists mostly of younger staffers in their 30s, which means they are often grappling with policy issues for the first time.  That said, Katzen and Bershtyn stressed that OIRA has always relied on other agencies and staffers within White House departments such as OMB, the Council of Economic Advisors, and the Office of Science & Technology Policy to fill the gaps.  While this has proven effective at providing OIRA with much-needed assistance, it is not an ideal solution.

Bershtyn, Katzen, and Gray also stated that OIRA has suffered from “brain drain” due to pay freezes, furloughs, and the ongoing budget fights in Washington.  Gray said that he sees a role for OIRA in promoting greater and routine coordination on regulations between agencies, and this would be easy to solve without greater funding, notwithstanding the agency turf wars that might impede this goal.  As Gray noted, in the early days of the Bush Administration, the fights between the DOJ and DHS were “legendary,” often forcing officials to ask, “are we talking to each other today?”  Thus, if the ultimate hope is to deal with lack of expertise internally, then OIRA will require a much larger budget.

This post was originally published on the legacy ABA Section of Administrative Law and Regulatory Practice Notice and Comment blog, which merged with the Yale Journal on Regulation Notice and Comment blog in 2015.

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