• Video

Should Independent Regulatory Commissions Be Subject to OIRA Review?

Professor Sally Katzen explains the benefits of the Office of Information and Regulatory Affairs (OIRA) review for agencies. Executive agencies, who expect to be reviewed, gather large quantities of data and conduct careful analysis because they know OIRA will request such preparation. Independent Regulatory Commissions (IRCs) are not currently subject to OIRA review. Although certain aspects of an IRC need to remain independent, Professor Katzen argues that proposed regulations could benefit from a more rigorous analysis offered by OIRA. https://youtube.com/watch?v=T_PqPmLUNyo


Executive branch agencies, knowing they're subject to OIRA review, do a lot of work to develop the facts and the analysis necessary for cost-benefit analysis. Because they know that OIRA will insist on that, and will be reviewing it. OIRA review improves the regulatory process by providing a dispassionate, objective analysis of the work of the agency. It does not substitute its expertise for the agency, nor does it substitute its will for the agency. Which is where Congress has delegated the authority. But it holds the agency to a standard of sound data, sound analysis, sound reasoning, and explication of what they're doing and why. And so you have a series of these Independent Regulatory Commissions. And their independence from the president is what has been thought to be the reason for keeping them from being subject to OIRA review. There are aspects of what IRCs do that should be independent from the president. But IRC rulemaking is the same as executive branch rulemaking. And the processes there, I believe, should conform to the processes that apply to executive branch agencies. And I believe that the Independent Regulatory Commissions, because they are not subject to OIRA review, over the years have not given the same thoughtful consideration to the development of their regulations that the executive branch agencies have. And it would be salutary to have them subject to OIRA review. The processes may have to change to accommodate the independence, but I think that's doable. And I think that would be very helpful to the system. Congress has had a number of bills in which they have authorized, if you will, presidential review of the Independent Regulatory Commissions. Now, none of those has been enacted. But it is something that the members of Congress have been considering.

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