July 5, 2012 Celeste Monforton, DrPH, MPH 0Comment

“Regulation in an uncertain world,” was the title of a speech that President Obama’s regulatory czar Cass Sunstein delivered on June 20, 2012 at a National Academy of Science’s government-university-industry research roundtable on “Decision Making under Risk and Uncertainty.”  Mr. Sunstein’s speech, as prepared for delivery, tried to make the case that under his leadership at the White House’s Office of Information and Regulatory Affairs (OIRA) the Administration has instituted new procedures and practices that make the federal regulatory system more rigorous, evidence based, and transparent.

I’m sure the participants at the invitation-only event are talented thinkers.  I’m sure they engaged in lively discussions about sensitivity analyses, probabilistic models, and Monte Carlo simulations.  But for me, when I hear the words “OIRA” and “uncertainty,” as in Mr. Cass Sunstein’s talk “Regulation in an uncertain world,” sensitivity simulations don’t come to mind.  What comes to mind is something more fundamental:  certainty increases when an organization meets its deadlines.   It applies in business and it applies in government, but Mr. Sunstein’s OIRA gets an F for meeting deadlines.  Here’s my latest example:

Executive Order 12866 (adopted in 1993) and the Paperwork Reduction Act of 1980, among others, gives OIRA its authority to oversee regulatory activities by Federal agencies.  One objective of E.O. 12866 is to “enhance planning and coordination with respect to both new and existing regulations,” especially for individuals and entities that may be subject to these regulations.   It might be, for example, a healthcare employer that may be expected to comply with a new law to protect its employees from hazardous medications, or it might be a coal mine worker who has been expecting MSHA to issue a regulation to reduce his exposure to coal mine dust.

This planning and coordination takes a variety of forms.  For the federal government, it includes issuing an annual regulatory plan and semi-annual regulatory agendas, which are published in the Federal Register, after being approved by OIRA.  E.O. 12866 says the annual regulatory plan “shall be” published in October.  The Regulatory Flexibility Act (5 USC 602) says the semi-annual regulatory agendas “shall” be published in April (Spring) and October (Fall).

Under Mr. Sunstein’s watch, the Fall 2011 regulatory agenda was published on-line by agencies on January 20, 2012 and in the Federal Register on February 13, 2012.  If college students broke deadlines like that they’d flunk out.  The Administration’s Spring 2011 regulatory agenda was published in July 2011.   You can see, he doesn’t have a good track record meeting deadlines.

The thing is, President Obama’s regulatory czar makes pronouncements about certainty and deadlines that suggest the opposite.  Just a few months ago, in a March 2012 memorandum to regulatory agencies, Mr. Sunstein gave instructions about preparing their Spring 2012 regulatory agenda.  He wrote:

“The timetables that appear for each entry in the Agenda are particularly important for public understanding of the timeframes for participation in the regulatory process. You should make a sincere effort to ensure the accuracy of timetable information.”

I couldn’t agree more, but when OIRA is the cause for agencies missing timeframes listed in their regulatory agendas, (e.g., here, here) Mr. Sunstein needs to look in the mirror.

April 2012 came and went, as did May 2012, and still no Spring 2012 regulatory agenda blessed by OIRA.  In mid-June 2012, we contacted the OMB press office to ask when the Spring 2012 regulatory agenda would be published.  The answer we received was:

“On background: the regulatory agenda is required by Executive Order 12866, which does not specify a particular timeframe for publication of the agenda; it will be released in the coming months.  It is routinely published later than April.”

Not quite sure what to say about that wrong answer, wrong on two counts.

When OMB officials don’t know simple deadlines—let alone keep them—why are they given responsibility for saying “yea” or “nay” to the regulatory decisions of the agencies with the subject matter expertise?  That’s another kind of manufactured uncertainty our regulatory system can do without.



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