Notice & Comment

Cost-Benefit Analysis & EO 12866: A Twenty-Year Retrospective – Part V, 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 conclude this series of posts by blogger Nina Hart on some of the critical issues discussed during the panel and key policy recommendations.

Regardless of Whether OIRA is Viewed as a Political Entity, the Office has Definitively Changed the Regulatory Landscape

The panelists all concurred that OIRA is not an apolitical actor in the sense of being a neutral party, but characterized the political nature of OIRA in differing terms. Ultimately, however, each panelist agreed that the CBA process in place has fundamentally changed how rulemaking is done in at least two ways: 1) all agencies use the same process, and 2) the public knows what the regulations look like in draft form and final form.

Katzen said that OIRA serves the president’s agenda, but helps to implement it through a parallel process. Its major contribution is subjecting policies to different views within the Executive Branch.

Elliott characterized OIRA as being a counterweight to the agencies, where “politics is not underrepresented.” In other words, OIRA adds technocrats to the mix to rein in the agencies.

Bershtyn added that transparency is the key to the process, and OIRA has greatly increased the transparency of the regulatory process, albeit to an imperfect degree. Without the review process, agency heads would still communicate with the White House, but no one would know.

Elliott added that these conversations between the players are often the force behind the changes made between the draft regulation sent to OIRA and the final form, but no one ever knows why certain changes were made. To remedy the uncertainty, it might be occasionally appropriate for agencies to issue statements concerning its reasoning.

The panelists concluded the session by reiterating that OIRA changed the political and analytical dynamics of rulemaking. And, in the long run, this has proven to be and will remain a positive change for government.

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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