A Vacancy at OIRA

From its onset, it was no secret that the Biden Administration would depend heavily on leveraging the resources of the federal bureaucracy to implement its agenda. Sure enough, through its first six months, the administration has relied on executive orders and agency action as it reverses course from the Trump Administration’s regulatory policy.

That makes it all the more surprising that halfway through President Biden’s first year, he has yet to nominate a head of the White House office that coordinates federal regulations. For the uninitiated, that responsibility falls on a Senate-approved administrator of the Office of Information and Regulatory Affairs (OIRA), an office within the Office of Management and Budget (OMB).

According to Bridget Dooling of the George Washington University Regulatory Studies Center, it is now more than two months beyond the latest initial OIRA nomination of any recent administration. By this point in their first year, the last four presidents had their chosen OIRA administrator nominated, and the Senate had held confirmation hearings. Three of the four nominees had been confirmed and were on the job.

A primary reason why an OIRA administrator nominee has failed to materialize was the failure of the administration to get its chosen nominee for OMB director, Neera Tanden, approved by the Senate. Despite withdrawing her nomination in early March, no new nominee for OMB’s top job has been put forth either.

But that is not a sufficient reason to hold off on an OIRA nomination. While we wait, the work of reviewing and clearing proposed and final regulations, along with coordinating regulatory actions directed by wide-ranging executive orders such as the recent one on competition, continues. There are three reasons why the lack of a confirmed administrator is concerning.

The first is a lack of accountability. When Congress made the administrator a Senate-confirmed position in 1986, it did so to make OIRA more transparent and responsive. In the absence of a permanent administrator, non-Senate confirmed White House staff have stepped into the void to keep things moving. But Congress has less ability to get answers out of such staff than a confirmed administrator.

The second is that it reduces the ability of OIRA staff, who are responsible for reviewing draft regulations to ensure they meet minimum standards of regulatory and economic analysis, to push back when agencies fail to do so. A confirmed administrator can garner more respect and influence among agency officials when challenging factual assertions underpinning draft regulations.

The third is unique to the Biden Administration. On his first day, the president tasked OMB with revising the regulatory review process that has been in place for three decades and do so in a way that would allow OIRA to “play a more proactive role in partnering with agencies to explore, promote, and undertake regulatory initiatives.” Presumably, this process is happening right now. It would be ideal to have a permanent head of OIRA advocating the views of its career staff – the experts on how the process currently works and those likely to have good ideas on how it could be strengthened.

Congress will soon leave Washington for its August recess. Here’s hoping that when the Senate returns in September​ there is an OIRA nominee waiting to be confirmed.