The office of information and regulatory affairs: Myths and Realities

Harvard Law Review

Volumn 126, Issue 7, 2013, Pages 1838-1878

  Sunstein, Cass R ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 84877975792     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (197)

1. The literature is voluminous. For relevant discussion, see generally RICHARD L. REVESZ & MICHAEL A. Livermore, Retaking Rationality (2008).
2. Michael A. Livermore & Richard L. Revesz, Regulatory Review, Capture, and Agency Inaction, 101 GEO. L.J. (forthcoming June 2013).
3. Jennifer Nou, Agency Self-Insulation Under Presidential Review, 126
4. Harv. L. Rev. 1755 (2013). Because of my limited goals here, I do not engage directly with this literature, but the central claims do of course bear on a range of views about OIRA and its past and future role.
5. Pub. L. No. 96-511, 94 Stat. 2812 (1980) (codified as amended at 44 U.S.C. §§ 3501-21 (2006 & Supp. V 2011)).
6. For historical discussion, see generally Jim Tozzi, OIRA's Formative Years: The Historical Record of Centralized Regulatory Review Preceding OIRA's Founding, 63 Admin L. Rev. (Special Edition) 37 (2011).
7. For an overview, see generally Curtis W. Copeland, The Role of the Office of Information and Regulatory Affairs in Federal Rulemaking, 33 Fordham Urb. L.J. 1257 (2006).
8. See Exec. Order No. 12,291 § 3, 3 C.F.R. 127, 128-30 (1982), revoked by Exec. Order No. 12,866 § 11, 3 C.F.R. 638, 649 (1994), reprinted as amended in 5 U.S.C. § 601 app. at 86-91 (2006 & Supp. V 2011).
9. The so-called independent agencies are not subject to OIRA review, though President Barack Obama did issue an important executive order asking such agencies to follow many of the principles that govern executive agencies.
10. See Exec. Order No. 13,579 § 1, 3 C.F.R. 256, 257 (2012), reprinted in 5 U.S.C. § 601 app. at 102. An early and still-valuable discussion of the original theory behind the OIRA process, written by two former OIRA Administrators.
11. Christopher C. DeMuth & Douglas H. Ginsburg, Commentary, White House Review of Agency Rulemaking, 99 harv. L. Rev. 1075 (1986).
12. Some of the work done in that period is outlined in CASS R. SUNSTEIN, Simpler: The Future Of Government (2013) [hereinafter SUNSTEIN, SIMPLER].
13. Cass R. Sunstein, Essay, Empirically Informed Regulation, 78 U. Chi. L. Rev. 1349 (2011) [hereinafter Sunstein, Empirically Informed Regulation].
14. See generally, e.g., CASS R. SUNSTEIN, Risk And Reason (2002).
15. See, e.g., Rachel Leven, Unions, Watchdogs Decry Delays on Workplace Safety Rules, Hill: Healthwatch (Apr. 19, 2012, 5:37 PM), http://thehill.com/blogs/healthwatch/worker-safety/222655-unions-watchdogs-decry-delays-on-workplace-safety-rules (suggesting that OIRA itself was responsible for certain delays, in part because of meetings with outside groups).
16. See, e.g., Worker Safety Rule Under Review at OIRA for over a Year: A Tale of Rulemaking Delay, Center For Effective Gov't (Feb. 22, 2012), http://www.foreffectivegov.org/node/11984.
17. This is a fair implication of REVESZ & LIVERMORE, supra note 1. Professors Richard Revesz and Michael Livermore do explore characteristics of OIRA review other than cost-benefit analysis, including its coordinating role, emphasized here.
18. See, e.g., The Paperwork Reduction Act at 25: Opportunities to Strengthen and Improve the Law: Hearing Before the Subcomm. on Regulatory Affairs of the H. Comm. on Gov't Reform, 109th Cong. 118 (2006) (statement of J. Robert Shull, Director of Regulatory Policy, OMB Watch).
19. CHRIS MOONEY, The Republican War On Science 118 (2005) (describing OIRA as "a political office").
20. Alan B. Morrison, Commentary, OMB Interference with Agency Rulemaking: The Wrong Way to Write a Regulation, 99 HARV. L. REV. 1059-1070 (1986) (objecting to political interference with agency rulemaking).
21. See, e.g., DeMuth & Ginsburg, supra note 3, at 1086.
22. For a valuable discussion of dispersed information and its role in government, see Adrian Vermeule, Local and Global Knowledge in the Administrative State 10-13, 19 (Harvard Public Law Working Paper No. 13-01, 2012), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2169939.
23. Professor Vermeule draws attention to this role of OIRA at the theoretical level, and I have greatly benefited from his discussion.
24. Cf. Lisa Schultz Bressman & Michael P. Vandenbergh, Inside the Administrative State: A Critical Look at the Practice of Presidential Control, 105 MICH. L. REV. 47-49 (2006) ("Presidential control is a 'they,' not an 'it.'").
25. My focus throughout is on OIRA's role, not on the substantive regulatory record of the Obama Administration. The governing principles can be found in Exec. Order No. 13,563, 3 C.F.R. 215 (2012), reprinted in 5 U.S.C. § 601 app. at 101-02 (2006 & Supp. V 2011); for other important guidance.
26. See Exec. Order No. 13,610, 77 Fed. Reg. 28,469 (May 14, 2012); Exec. Order No. 13,609, 77 Fed. Reg. 26,413 (May 4, 2012).
27. Exec. Order No. 13,579, 3 C.F.R. 256 (2012), reprinted in 5 U.S.C. § 601 app. at 102. For detailed discussion of some aspects of the regulatory record, see generally SUNSTEIN, SIMPLER, supra note 4.
28. For both proposed and final rules, of course, the bulk of the relevant work - in identifying issues for comment and in responding to comments that have been received - is done by agencies themselves, and generally before OIRA becomes involved.
29. Of course, many agencies within the executive branch, including the Department of Justice, attempt to safeguard a well-functioning administrative process.
30. For related discussion, see Vermeule, supra note 11, at 19-26.
31. Any particular rulemaking agency is likely to comment on rules made by other agencies, and hence the process ensures that the commenting agency is heard with respect to the rules of those other agencies, just as those other agencies are heard with respect to the commenting agency's own rules.
32. OIRA does not have the lead on legal issues, which is the province of others, including agency lawyers, the OMB General Counsel, the Department of Justice, and the White House Counsel.
33. But OIRA helps to ensure that the legal issues receive careful attention and that those within the executive branch believe that regulatory actions are consistent with law. Indeed, this responsibility is central.
34. Exec. Order No. 13,563 § 1, 3 C.F.R. 215, 215-16 (2012), reprinted in 5 U.S.C. § 601 app. at 101-02 (2006 & Supp. V 2011).
35. Of course, there will be analysis of the costs and benefits of alternatives, at least for economically significant rules.
36. See infra section III.A.2(a).
37. See generally F.A. Hayek, The Use of Knowledge in Society, 35 AM. ECON. REV. 519 (1945).
38. Justice Frankfurter famously wrote, "The history of liberty has largely been the history of observance of procedural safeguards." McNabb v. United States, 318 U.S. 332, 347 (1943).
39. See generally John Stuart Mill, Bentham (1838), in Utilitarianism And Other Essays 132 (Alan Ryan ed., 1987).
40. The key passage is worth quoting at length: Nor is it only the moral part of man's nature, in the strict sense of the term - the desire of perfection, or the feeling of an approving or of an accusing conscience - that he overlooks; he but faintly recognizes, as a fact in human nature, the pursuit of any other ideal end for its own sake.
41. The sense of honour and personal dignity - that feeling of personal exaltation and degradation which acts independently of other people's opinion, or even in defiance of it; the love of beauty, the passion of the artist; the love of order, of congruity, of consistency in all things, and conformity to their end; the love of power, not in the limited form of power over other human beings, but abstract power, the power of making our volitions effectual; the love of action, the thirst for movement and activity, a principle scarcely of less influence in human life than its opposite, the love of ease Man, that most complex being, is a very simple one in his eyes.
42. Id. at 153.
43. Cost-benefit analysis receives some attention here, but with an emphasis on process, not substance. Some of the substantive issues are engaged in SUNSTEIN, Simpler, supra note 4.
44. Cass R. Sunstein, The Real World of Cost-Benefit Analysis: Thirty-Six Questions (and Almost as Many Answers), COLUM. L. REV. (forthcoming 2014), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2199112.
45. To take just one recent example, OIRA played an important role in helping to oversee the "regulatory lookback" required by Executive Order 13,563 and Executive Order 13,610.
46. See, e.g., Cass Sunstein, Regulatory Reform Process, OMBLOG (Jan. 30, 2012, 5:07 PM), http://www.whitehouse.gov/blog/2012/01/30/regulatory-reform-progress.
47. On some of those principles and priorities, see sources cited supra note 4.
48. OIRA has also played, and will continue to play, an important role in international regulatory cooperation.
49. See Exec. Order No. 13,609 § 2, 77 Fed. Reg. 26,413, 26,413 (May 4, 2012).
50. The numbers are available on reginfo.gov. For example, OIRA reviewed 690 rules in 2010 and 740 in 2011.
51. See Review Counts, Off. Info. & Reg. Aff., http://www.reginfo.gov/public/do/eoCountsSearchInit?action=init (last visited Mar. 30, 2013) (allowing searches of OIRA review counts by date range).
52. It would be possible to wonder whether OIRA has sufficient personnel for its many functions, and the staff does work extremely hard. As explained at multiple points, however, numerous people outside of OIRA are involved in the process of regulatory review; the work is hardly done by OIRA alone.
53. Exec. Order No. 13,563 § 6(b), 3 C.F.R. 215, 217 (2012), reprinted in 5 U.S.C. § 601 app. at 101-02 (2006 & Supp. V 2011).
54. Exec. Order No. 12,866 § 6(b), 3 C.F.R. 638, 646-48 (1994), reprinted as amended in 5 U.S.C. § 601 app. at 86-91.
55. Id. § 6, 3 C.F.R. at 644-48.
56. See Exec. Order No. 13,563, 3 C.F.R at 215.
57. Id. § 1(b), 3 C.F.R. at 215.
58. A valuable discussion of some of the foundational issues may be found in MATTHEW ADLER, Well-Being and Fair Distribution (2011).
59. Exec. Order No. 13,563 §§ 2-5, 3 C.F.R. at 216.
60. Executive Order 13,563 section six calls for the regulatory lookback, discussed in detail in SUNSTEIN, SIMPLER, supra note 4.
61. Exec. Order No. 12,866 § 6(b)(2)(B), 3 C.F.R. 638, 647 (1994), reprinted as amended in 5 U.S.C. § 601 app. at 86-91 (2006 & Supp. V 2011).
62. Id. § 6(b)(2)(B), 3 C.F.R. at 647.
63. id. § 6(b)(4)(D), 3 C.F.R. at 648.
64. id. § 8, 3 C.F.R. at 648-49.
65. Id. § 6(b)(3), 3 C.F.R. at 647.
66. In the Obama Administration, OIRA has issued one return letter, involving a final EPA rule for ozone.
67. See Letter from Cass R. Sunstein, Adm'r, Office of Info. & Regulatory Affairs, to Lisa P. Jackson, Adm'r, Envtl. Prot. Agency (Sept. 2, 2011), available at http://www.reginfo.gov/public/return/EPA_Return_Letter_9-2-2011.pdf (reproduced as an Appendix here). Previous administrations have issued more such letters.
68. See OIRA Return Letters, Off. Info. & Reg. Aff., http://www.reginfo.gov/public/do/eoReturnLetters (last visited Mar. 30, 2013).
69. While return letters can be exceedingly important in particular cases, and also in affirming OIRA's role, they are highly unusual in any administration, and the number of such letters does not provide helpful information about how OIRA and the agencies are working together in any period. In a calendar year, OIRA typically reviews hundreds of regulatory actions.
70. Because many rules are withdrawn and many change as a result of review, it is misleading to focus on the number of return letters as a measure of OIRA's impact. A relatively large number of return letters need not indicate that OIRA and other interagency reviewers are acting aggressively, and a small number of return letters, including the complete absence of such letters, does not indicate that OIRA and other interagency reviewers are acting passively.
71. Note as well that a return letter from OIRA will almost certainly reflect a consensus among many people involved in the interagency process, including reviewers in the Executive Office of the President. OIRA may be the signatory, but the letter is not solely OIRA's. OIRA's actions, like those of others within the executive branch, are products of a highly consultative process.
72. Note that rules may be withdrawn for many reasons. OIRA encouragement is merely one, and very often, agencies withdraw rules entirely on their own. It is noteworthy that 162 rules were withdrawn from OIRA review between January 21, 2009, and September 21, 2012.
73. See Review Counts, supra note 26 (count of withdrawn rules obtained by entering the date range and selecting display option "By OIRA Conclusion Action").
74. "The review process may be extended (1) once by no more than 30 calendar days upon the written approval of the Director and (2) at the request of the agency head." Exec. Order No. 12,866 § 6(b)(2)(C), 3 C.F.R. at 647.
75. This provision might be taken to be ambiguous because of the use of the word "and" rather than "or," suggesting the possibility that both conditions must be met, but it has long been understood that the agency head may request an extension of any length, including an indefinite one. Within the executive branch, it is agreed that an agency head may request more time for review as discussions continue.
76. See Review Counts, supra note 26 (count of regulatory actions obtained by entering the date range and selecting display option "By OIRA Conclusion Action").
77. See infra section II.B.1 (discussing the basics of OIRA's internal process).
78. Infra section II.B.2 (discussing "elevation").
79. It is true, of course, that agencies and interagency reviewers may disagree, and the disagreements may require considerable discussion. It is also possible that agency reviewers will offer inconsistent suggestions.
80. See infra section II.B.2.
81. For example, a rule involving the definition of "catfish" was under OIRA review for well over a year.
82. See Matthew Madia, One Year Later, Catfish Safety Rule Still at OIRA, CENTER FOR EFFECTIVE GOV'T (Nov. 16, 2010), http://www.foreffectivegov.org/node/11371.
83. OIRA is transparent about the length of time that rules are under review.
84. See Regulatory Review Dashboard, Off. Info. & Reg. Aff., http://www.reginfo.gov/public/jsp/EO/eoDashboard.jsp (last visited Mar. 30, 2013) (allowing display of regulatory actions currently under review by length of review).
85. See Jody Freeman & Jim Rossi, Agency Coordination in Shared Regulatory Space, 125 HARV. L. REV. 1131 (2012), on the general question of interagency coordination.
86. See Current Regulatory Plan and the Unified Agenda of Regulatory and Deregulatory Actions, Off. Info. & Reg. Aff., http://www.reginfo.gov/public/do/eAgendaMain (last visited Mar. 30, 2013).
87. Indeed, interagency consultation is sometimes required by law. For valuable discussion of relevant issues of law and policy, see generally
88. Freeman & Rossi, supra note 44.
89. Livermore and Revesz contend that OIRA should play a greater role in initiating desirable rulemaking.
90. Livermore & Revesz, supra note 1 (manuscript at 53-54).
91. Whether or not the contention has merit, a number of White House officials are frequently engaged in considering, with agencies, whether new rulemaking would be desirable. For example, President Obama had a series of "We Can't Wait" initiatives, many of which involved consultative processes including the Executive Office of the President, and some of which involved rules.
92. See, e.g., Press Release, The White House, We Can't Wait: President Obama Takes Action to Improve Quality and Promote Accountability in Head Start Programs (Nov. 8, 2011), available at http://www.whitehouse.gov/the-press-office/2011/11/08/we-cant-wait-president-obama-takes-action-improve-quality-and-promote-ac.
93. See Livermore & Revesz, supra note 1 (manuscript at 52).
94. Exec. Order No. 12,866, 3 C.F.R. 638 (1994), reprinted as amended in 5 U.S.C. § 601 app. at 86-91 (2006 & Supp. V 2011).
95. The predecessor Executive Order 12,291 had no such limitation, and hence OIRA reviewed far more rules in the period between 1981 and 1993 than it has since 1993.
96. Compare Review Counts, supra note 26 (displaying results "By OIRA Conclusion Action" between February 7, 1981, and October 4, 1993 (comprising 29,790 actions)).
97. with id. (displaying results "By OIRA Conclusion Action" between October 4, 1993, and March 6, 2013 (comprising 12,298 actions)).
98. See Nou, supra note 1, at 1786-89.
99. The question of agency incentives may be complicated. In some cases, agencies may strongly favor OIRA review as a way of obtaining comments through a formal process, of avoiding error, of ensuring that relevant officials are notified, and of eliciting interagency support. No agency would be comfortable "surprising" the Executive Office of the President with regulatory activity with which it should have been, but was not, aware. There are many ways of providing relevant notice; the OIRA process is the most formal.
100. Exec. Order No. 12,866 § 3(f), 3 C.F.R. at 641-42.
101. For a general picture of regulatory activity, including both significant and nonsignificant rules, see Regulations.Gov, http://www.regulations.gov (last visited Mar. 30, 2013).
102. The Obama Administration took significant steps to make this website as clear and user friendly as possible.
103. Note the important point, to which I will return, that a rule can have such an impact because its benefits exceed $100 million even if its costs do not - and that a budgetary transfer rule, required or authorized by Congress, might qualify because $100 million or more is changing hands.
104. For example, 18.69% of rules reviewed by OIRA between January 21, 2009, and September 21, 2012, counted as economically significant.
105. See Review Counts, supra note 26 (displaying "Number of Rules and Economically Significant Rules Reviewed" within indicated timeframe).
106. See Office of Mgmt. & Budget, Circular A-4, at 1-2 (2003), available at http://www.whitehouse.gov/sites/default/files/omb/assets/omb/circulars/a004/a-4.pdf.
107. Some rules that are not economically significant nonetheless are submitted and published with a Regulatory Impact Analysis, but this is not required. Rules that do not qualify as economically significant are likely to have some kind of account of both costs and benefits (if they are not trivial and if such an account is feasible).
108. See, e.g., Revisions and Additions to Motor Vehicle Fuel Economy Label, 76 Fed. Reg. 39,478, 39,480 fig.I-1 (July 6, 2011), amending 40 C.F.R. pts. 85-86, 600 (2012), 49 C.F.R. pt. 575 (2011).
109. For relevant discussion, see Nou, supra note 1, at 1786-89.
110. See Exec. Order No. 12,866 § 6(a)(3)(C), 3 C.F.R. 638, 645 (1994), reprinted as amended in 5 U.S.C. § 601 app. at 86-91 (2006 & Supp. V 2011).
111. Id. § 3(e), 3 C.F.R. at 641.
112. See Memorandum from Peter R. Orszag, Dir., Office of Mgmt. & Budget, to Heads and Acting Heads of Exec. Dep'ts and Agencies (Mar. 4, 2009), available at http://www.whitehouse.gov/sites/default/files/omb/assets/memoranda_fy2009/m09-13.pdf.
113. It would be possible to object that OIRA has no authority to review regulatory actions that do not strictly meet the definition of "regulatory action" within Executive Order 12,866. As noted, however, review of such actions has occurred for a long period, and in any case OMB is authorized to require such review so long as the requirement is not inconsistent with relevant statutes and Executive Orders. The issuance of the Memorandum cited in this note reflects broad support for such review within the Executive Office of the President.
114. See, e.g., Appalachian Power Co. v. EPA, 208 F.3d 1015 (D.C. Cir. 2000).
115. It is not. See 5 U.S.C. § 553 (2006) (exempting guidance documents and interpretive rules from notice and comment requirements).
116. For example, the Administration created "dashboards" that show, in graphical forms, both rules and information collection requests under OIRA review.
117. See ICR Dashboard, Off. Info. & Reg. Aff., http://www.reginfo.gov/public/jsp/PRA/praDashboard.jsp (last visited Mar. 30, 2013).
118. Regulatory Review Dashboard, supra note 43.
119. Cf. Kenneth A. Shepsle, Congress Is a "They," Not an "It": Legislative Intent as Oxymoron, 12 INT'L REV. L. & ECON. 239-254 (1992) (describing the legislature as similarly being composed of many different actors and viewpoints).
120. Adrian Vermeule, The Judiciary Is a They, Not an It: Interpretive Theory and the Fallacy of Division, 14 J. CONTEMP. LEGAL ISSUES 549-550 (2005) (describing the judiciary as similarly being composed of many different actors and viewpoints).
121. For more information about the Office of Advocacy, see the Regulatory Flexibility Act, 5 U.S.C. §§ 601-612 (2006 & Supp. V 2011), an important statute that helps define the Office's role.
122. Recall that even a proposed rule can have serious effects and create dislocations, especially if those in the private sector believe that the handwriting is on the wall in such a way as to lead them to reorder their affairs.
123. Once a regulatory action is under OIRA review, it would generally be deemed inappropriate for interagency discussions to occur without OIRA involvement, even if OIRA's role is purely that of convener. It is important to ensure that the process of review is coordinated and organized.
124. The President directed me to return the draft rule to the EPA Administrator for reconsideration. See Letter from Cass R. Sunstein to Lisa P. Jackson, supra note 37.
125. See, e.g., John M. Broder, Re-election Strategy Is Tied to a Shift on Smog, N.Y. TIMES, Nov. 17, 2011, at A1.
126. See Letter from Cass R. Sunstein to Lisa P. Jackson, supra note 37.
127. The President himself issued a statement on the question. See Press Release, The White House, Statement by the President on the Ozone National Ambient Air Quality Standards (Sept. 2, 2011), available at http://www.whitehouse.gov/the-press-office/2011/09/02/statement-president-ozone-national-ambient-air-quality-standards
128. See, e.g., Livermore & Revesz, supra note 1.
129. Within the White House, the highest level is Assistant to the President. For example, the Director of NEC, the Director of DPC, and the White House Counsel have that title.
130. Public participation, for example, may prove important under that Executive Order. See Exec. Order No. 13,563 § 2, 3 C.F.R. 215, 216 (2012), reprinted in 5 U.S.C. § 601 app. at 101-02 (2006 & Supp. V 2011).
131. See Meeting Records, Off. Mgmt. & Budget, http://www.whitehouse.gov/omb/oira_meetings (last visited Mar. 30, 2013).
132. See Exec. Order No. 13,563 § 2(c), 3 C.F.R. at 216.
133. OIRA does receive a large number of meeting requests with respect to rules that are not under review. The general view in OIRA has been that the time is not ripe for such meetings, not least because OIRA staff is not yet formally engaged (and may never be if the agency decides not to go forward with the relevant rule).
134. See generally Exec. Order No. 12,866, 3 C.F.R. 638 (1994), reprinted as amended in 5 U.S.C.§ 601 app. at 86-91.
135. It is easy to imagine circumstances in which this would not be feasible because of demands on the time of staff, but I am aware of no case in which a meeting was turned down.
136. OIRA staff involved in reviewing the rule will attend. On some occasions, OIRA leadership may attend as well.
137. See, e.g., Rena Steinzor et al., Ctr. For Progressive Reform, Behind Closed Doors At The White House 62 (2011), available at http://www.progressivereform.org/articles/OIRA_Meetings_1111.pdf.
138. Eric Lipton, Ties to Obama Aided in Access for Big Utility, N.Y. Times, Aug. 23, 2012, at A1.
139. See OIRA Communications with Outside Parties, Off. Mgmt. & Budget, http://www.whitehouse.gov/omb/oira_default (last visited Mar. 30, 2013). At the same time, oral comments are not summarized or docketed.
140. For one account, see STEINZOR et al., supra note 80, at 14-27.
141. I am grateful to Professor Adrian Vermeule for this term.
142. STEINZOR et al., supra note 80, at 25.
143. See generally Russell Hardin, The Crippled Epistemology of Extremism, in Political Extremism and Rationality 3 (Albert Breton et al. eds., 2002) (discussing the limited information that gives rise to extremism).
144. See generally DANIEL KAHNEMAN, Thinking, Fast and Slow (2011).
145. See, e.g., Lipton, supra note 80.
146. The vast majority of meetings are run and attended by OIRA staff, not the Administrator, and hence my recollection should not be taken as decisive. Note, however, that the substance of the meetings is often conveyed to the OIRA Administrator.
147. See, e.g., Revesz & Livermore, supra note 1.
148. In the first three years of the Obama Administration, the net benefits of economically significant regulation exceeded $91 billion - more than twenty-five times the corresponding figure for the Bush Administration, and more than six times the corresponding figure for the Clinton Administration.
149. See OFFICE OF MGMT. & BUDGET, DRAFT 2012 REPORT TO CONGRESS ON THE BENEFITS AND COSTS OF FEDERAL REGULATIONS AND UNFUNDED MANDATES ON STATE, Local, and Tribal Entities 54 (2012) [hereinafter DRAFT 2012 REPORT], available at http://www.whitehouse.gov/sites/default/files/omb/oira/draft_2012_cost_benefit_report.pdf.
150. For a checklist that provides a brief summary of the relevant questions in the analysis, see Office Of Info. & Regulatory Affairs, Agency Checklist: Regulatory Impact Analysis (2010), available at http://www.whitehouse.gov/sites/default/files/omb/inforeg/regpol/RIA_Checklist.pdf.
151. For a document that answers key questions about cost-benefit analysis, see Office Of Info. & Regulatory Affairs, Regulatory Impact Analysis: Frequently Asked Questions (Faqs) (2011), available at http://www.whitehouse.gov/sites/default/files/omb/assets/OMB/circulars/a004/a-4_FAQ.pdf.
152. For a primer on such analysis, see Office Of Info. & Regulatory Affairs, Regulatory Impact Analysis: A Primer (2011), available at http://www.whitehouse.gov/sites/default/files/omb/inforeg/regpol/circular-a-4_regulatory-impact-analysis-a-primer.pdf.
153. See Exec. Order No. 13,563, 3 C.F.R. 215 (2012), reprinted in 5 U.S.C. § 601 app. at 101-02 (2006 & Supp. V 2011).
154. Exec. Order No. 12,866, 3 C.F.R. 638 (1994), reprinted as amended in 5 U.S.C. § 601 app. at 86-91. This role extends back to 1981.
155. See Exec. Order No. 12,291, 3 C.F.R. 127 (1982), revoked by Exec. Order No. 12,866 § 11, 3 C.F.R. at 649.
156. Recall that in the first three years of the Obama Administration, the net benefits of economically significant regulation exceeded $91 billion.
157. See DRAFT 2012 REPORT, supra note 90, at 54.
158. On some of the relevant details, see Sunstein, supra note 24.
159. In my experience, this was rare, and when it happened, it was generally a result of legal requirements.
160. An example is the "positive train control" rule, which requires certain technology to be placed on trains, in the interest of safety.
161. See Press Release, Fed. R.R. Admin., U.S. Transportation Secretary LaHood Announces Changes to Positive Train Control Regulations that Will Ensure Safety, Allow Flexibility and Save Money (May 10, 2012), available at http://www.fra.dot.gov/eLib/details/L01106.
162. Exec. Order No. 13,563, 3 C.F.R. at 215; Exec. Order No. 12,866, 3 C.F.R. at 638.
163. A predecessor order, Exec. Order No. 12,291 § 2(b), 3 C.F.R. at 128, used the word "outweigh," which was changed to "justify" in Exec. Order No. 12,866 § 1(b)(6), 3 C.F.R. at 639.
164. Exec. Order No. 13,563 § 1(c), 3 C.F.R. at 216.
165. See, e.g., Revisions and Additions to Motor Vehicle Fuel Economy Label, 76 Fed. Reg. 39,478, 39,480 fig.I-1 (July 6, 2011), amending 40 C.F.R. pts. 85, 86, 600 (2012), 49 C.F.R. pt. 575 (2011).
166. National Standards to Prevent, Detect, and Respond to Prison Rape, 77 Fed. Reg. 37,106 (June 20, 2012) (to be codified at 28 C.F.R. pt. 115).
167. Id. at 37,110.
168. Id. at 37,111.
169. See Nondiscrimination on the Basis of Disability in State and Local Government Services, 75 Fed. Reg. 56,164, 56,170 (Sept. 15, 2010) (to be codified at 28 C.F.R. pt. 35).
170. In my experience, CEA is a particularly valuable participant in interagency review because of its professionalism and expertise.
171. OIRA's annual reports to Congress are available at OIRA Reports to Congress, Off. Mgmt. & Budget, http://www.whitehouse.gov/omb/inforeg_regpol_reports_congress (last visited Mar. 30, 2013).
172. See Richard A. Epstein, Reforms? What Reforms?, Defining Ideas (May 31, 2011), http://www.hoover.org/publications/defining-ideas/article/80536.
173. OIRA may make certain technical judgments, but it usually uses, in the annual report, the numbers that the agencies used publicly.
174. See, e.g., REVESZ & LIVERMORE, supra note 1, at 152.
175. It is true that under Executive Order 12,866, a rule can qualify as economically significant even if it does not meet that threshold - for example, because of its adverse effect on "a sector of the economy"
176. see Exec. Order No. 12,866 § 3(f)(1), 3 C.F.R. 638, 641 (1994), reprinted as amended in 5 U.S.C. § 601 app. at 86-91 (2006 & Supp. V 2011) - but that is unusual.
177. See id. § 6(a)(3)(C), 3 C.F.R. at 645 (limiting the requirement of cost-benefit analysis to economically significant rules).
178. In fiscal year 2011, for example, thirty of fifty-four economically significant rules were transfer rules.
179. See DRAFT 2012 REPORT, supra note 90, at 3.
180. On some of the complications with performing cost-benefit analysis on transfer regulations, see generally Eric A. Posner, Essay, Transfer Regulations and Cost-Effectiveness Analysis, 53 DUKE L.J. 1067 (2003).
181. See id. at 1068-69. To be sure, additional work would be valuable on this complex topic.
182. See Exec. Order No. 13,563 § 6, 3 C.F.R. 215, 217 (2012), reprinted in 5 U.S.C. § 601 app. at 101-02; Exec. Order No. 12,866 § 3(f), 3 C.F.R. at 641.
183. See the qualification in supra note 110.
184. See, e.g., Phillip M. Kannan, The Logical Outgrowth Doctrine in Rulemaking, 48 ADMIN. L. REV. 213-214 (1996).
185. For a useful discussion of interim final rules, see generally Michael Asimow, Interim-Final Rules: Making Haste Slowly, 51 ADMIN. L. REV. 703 (1999).
186. Exec. Order No. 13,563 § 2, 3 C.F.R. at 216.
187. U.S.C. §§ 601-612.
188. U.S.C. §§ 3501-3521 (2006 & Supp. V 2011).
189. See, e.g., Broder, supra note 69.
190. Politicizing the Regulatory Process, Center For Progressive Reform, http://www.progressivereform.org/OIRASpecInterests.cfm (last visited Mar. 30, 2013).
191. See generally Vermeule, supra note 11.
192. On the formal mechanism for resolution of disagreements, see Exec. Order No. 12,866 § 7, 3 C.F.R. 638, 648 (1994), reprinted as amended in 5 U.S.C. § 601 app. at 86-91. Ultimately, of course, any conflicts are subject to resolution by the President.
193. On oversight by the White House in particular, see generally DeMuth & Ginsburg, supra note 3.
194. There is a great deal of academic discussion about whether the President may "overrule" those within the executive branch, including Cabinet heads, who may be delegated a degree of statutory discretion.
195. See, e.g., Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2319-31 (2001).
196. The issue has more theoretical interest than practical importance. This is so for a simple reason: those who work for the President want to act consistently with his goals, priorities, and views. If he favors a certain course of action, his subordinates are likely to agree to do as he wishes, and they do so voluntarily and generally without hesitation; and if there is any hesitation, it will probably be brief. In addition, the leaders of various agencies and departments fully understand the OIRA process and the importance of addressing interagency concerns.
197. See Vermeule, supra note 11.