Notice & Comment

Cost-Benefit Analysis & EO 12866: A Twenty-Year Retrospective – Part IV, 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.

Agencies are the Most Effective “Lobbyists” but Outside Groups Can Still Influence OIRA

Two of the panelists, Elliott and Katzen, offered their thoughts on what groups influenced OIRA and how.  Elliott, as a former agency counsel and current “outside” practitioner, indicated that agencies view themselves as advocates for their regulations, rather than neutral experts, and draft their Regulatory Impact Analyses (RIAs) accordingly – in effect, “gaming” the regulatory process, which has made it harder for OIRA to second-guess the agencies.

Katzen agreed with Elliott’s analysis, but stated that non-agency groups could also impact OIRA’s process if they used their time wisely.  In other words, don’t waste time lecturing OIRA staffers on the law, but identify alternatives and new facts that will force OIRA to rethink the analysis put before it by an agency.  Katzen added that meetings between OIRA and outside groups are largely iterative – OIRA listens and won’t give any indication that it will take the group’s presentation under advisement.  As Katzen concluded, it’s only after a group leaves that a staffer might ask if, based on these facts, the Office needs to look into the issue in greater detail.

The takeaway: if you are an outside group, try to get the agency to “carry the ball” for you.  If that isn’t possible, present new alternatives and facts to OIRA and hope for the best.

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.

Print Friendly, PDF & Email