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.
Cost-Benefit
Analysis is Here to Stay, but OIRA Faces Resource Constraints that Challenge
its Ability to Ensure that CBA Analysis is Performed
Revesz opened the
panel by asking what surprised the panelists most about EO 12-866. Katzen and Gray, both involved in drafting
the Executive Order, each began by noting the Order’s durability. Gray then moved on to a topic that framed
much of the session: OIRA’s limited budget.
To Gray, the
limited budget and decrease over time in personnel indicated that the perceived
entrenchment of CBA and large monitoring role for OIRA was “more fragile than
it appears.” It is unrealistic for OIRA
to actively monitor each agency to ensure it has undertaken a thorough analysis
of every regulation. For example, Gray said,
given the complicated economics behind HHS’s determination to narrowly define which
insurance plans could be grandfathered into the Affordable Care Act regime, the
regulation was likely promulgated absent thorough cost-benefit analysis. Despite this fact, given OIRA’s scarce
resources, it was unlikely that the Office could or did hold the agency to
account.
Other consequences
that result, at least in part, from what the panelists unanimously perceived to
be an inadequate budget include:
- Nearly all of the impetus to engage in rulemaking has shifted away from the White House to the agencies;
- OIRA must balance its shortages against the fact that its role is both procedural (akin to “hard look review”) and substantive (evaluation of the CBA itself), and each role places different strains on its resources;
- Undertaking the “regulatory lookback” imposed by President Obama becomes all the more necessary, but all the more difficult to complete. It may be desirable to institute “Lookback 2.0” to ensure that this retroactive review of CBA is institutionalized.
Next week, we’ll
analyze how personnel challenges impact OIRA’s ability to oversee the
regulatory process.
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