Federal Rulemaking: The Role of the Office of Information and Regulatory Affairs

Publication Date: May 2004

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Government

Type:

Abstract:

The Paperwork Reduction Act of 1980 created the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (OMB). Executive Order 12291, issued by President Reagan in 1981, gave OIRA the responsibility to review the substance of agencies' regulatory actions before publication in the Federal Register. Since then, OIRA has played a significant -- and sometimes determinative -- role in the federal rulemaking process. The office's regulatory review role was initially highly controversial, and it has been criticized at different times as being both too active and too passive regarding agencies' rules. Although OIRA has a number of specific statutory responsibilities (e.g., paperwork review and regulatory accounting), as a component of OMB it is part of the Executive Office of the President, and helps ensure that covered agencies' rules reflect the President's policies and priorities.

OIRA's current regulatory review responsibilities are detailed in Executive Order 12866, which was issued by President Clinton in 1993. The office reviews significant draft rules from agencies (other than independent regulatory agencies) at both the proposed and final rulemaking stages, and also informally reviews certain rules before they are formally submitted. For rules that are economically significant (most commonly defined as those having a $100 million impact on the economy), OIRA also reviews the economic analyses. Since 1994, OIRA has reviewed between 500 and 700 significant proposed and final rules each year, and can clear the rules with or without changes, return the rules to the agencies for reconsideration, or encourage the agencies to withdraw them. The executive order also requires OIRA or the rulemaking agencies to disclose certain elements of the review process to the public, including the changes made at OIRA's recommendation.

A September 2003 report by the General Accounting Office indicated that OIRA had a significant effect on more than a third of the 85 rules in the study, but OIRA's most common effect was to suggest changes to explanatory language in the preambles to the rules. The current administrator of OIRA has made a number of changes since taking office in July 2001, including increased use of return letters, added emphasis on economic analysis to support the rules, and improvements in the transparency of the office's review process. Overall, in contrast to the "counselor" role it played during the Clinton Administration, OIRA appears to have returned to the "gatekeeper" role that it had during its first 12 years of existence. Possible legislative issues involving OIRA include codification of the office's review function and principles, increasing or decreasing the office's funding and staffing, adding review of rules from independent regulatory agencies, and improvements in the transparency of OIRA's review process.

This report will be updated if there are changes in OIRA's regulatory review responsibilities. For information on the federal rulemaking process, see CRS Report RL32240, The Federal Rulemaking Process: An Overview, by Curtis W. Copeland. For information on other regulatory reforms initiated in recent decades, see CRS Report RL32356, Federal Regulatory Reform: An Overview, by Curtis W. Copeland.