Assurances Needed for
Transparency, Accountability at OIRA

During the 1980s, OMB’s Office of Information and Regulatory Affairs (OIRA) came under heavy criticism for the way in which it conducted reviews of agency rules. Agency rules would go to OIRA for review and sometimes languish there – frequently for years – with little explanation to the public. Shortly after taking office, President Clinton attempted to respond to this problem through Executive Order 12866. This order set up new guidelines for transparency – building on a June 1986 memorandum by former OIRA Administrator Wendy Gramm – that have helped bring accountability to OIRA. It is essential that this transparency be maintained, and even strengthened, in the new administration.

At his confirmation hearing before the Senate Governmental Affairs Committee, OMB Director Mitch Daniels expressed general support for transparency and accountability, but refused to specifically endorse key elements of President Clinton’s executive order. At that time, Mr. Daniels would only commit to work with the committee should the administration decide to alter E.O. 12866. Now that President Bush has nominated John Graham as administrator of OIRA, the committee should receive more specific assurances regarding transparency and accountability. OIRA is an extremely powerful office that has the power to approve or reject agency regulations. This makes it critical that OIRA’s decision-making be open to public scrutiny.

Before his nomination is approved, Mr. Graham should be able to answer in the affirmative to the following questions:

1. Public disclosure. E.O. 12866 requires that OIRA maintain a publicly available log containing (1) the status of all regulatory actions, including if Vice Presidential and Presidential consideration was requested, (2) a notation of all written communications between OIRA and outside parties, (3) and the dates and names of individuals involved in all substantive oral communications between OIRA and outside parties. Moreover, once a regulatory action has been published or rejected, OIRA must make publicly available all documents exchanged between OIRA and the issuing agency during the review process. Will you continue this disclosure policy? And will you make such logs available through the Internet?

2. Time frame for reviews. Under E.O. 12866, OMB has 90 days to review rules, and may extend the review one time only for 30 days upon the written approval of the OMB Director and upon the request of the agency head. Will you continue this time frame for regulatory reviews? Currently, the OMB web site documents when a rule is sent to OIRA, the time it took to act on the rule, and the OMB disposition. Will this be continued? Are you willing to make the web site searchable by agency, rule, and date?

3. Written explanations. Under E.O. 12866, OMB is required to provide a written explanation for all regulations that are returned to the agency, “setting forth the pertinent provision of the Executive Order on which OIRA is relying.” Will you continue to provide written justification for returned rules? And do you favor expanding this to require written justification for any modifications that are made to a rule?

4. Notification to agencies. E.O. 12866 directs that an issuing agency be forwarded all written communications between OIRA and outside parties, as well as “the dates and names of individuals involved in all substantive oral communications.” The issuing agency is also to be invited to any meetings with outside parties and OIRA. Will you continue these procedures?

5. Fielding outside communications. E.O. 12866 directs that only the administrator of OIRA can receive oral communications from those outside government on regulatory reviews. Will you continue this standard? Will this standard be employed for all personnel working in the EOP? Will there be a log of communications with EOP personnel regarding rules under review?

6. The OIRA public docket. There has long been concern over the adequacy of OIRA's public docket and its accessibility to the public. These concerns include the lack of a thorough index, the failure of OIRA staff to place comments and other materials submitted from outside government into its docket in a timely manner, and the lack of any computerization of OIRA's docket information. Will you give priority to fixing these problems as OIRA administrator?