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Federal agencies regularly adopt rules, which have the force of law, to implement the statutes and programs authorized by Congress. Unless a statute directs otherwise, agencies generally must follow the requirements of the Administrative Procedure Act to promulgate rules. However, beginning with President Reagan, Presidents have maintained a centralized review process for "significant regulatory actions." Currently, Executive Order (EO) 12866, issued by President Clinton, imposes additional procedures agencies must follow before a rule can be finalized. This includes requiring agencies to submit proposed regulatory action to the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB) for review. Although EO 12866 applies to executive agencies, independent regulatory commissions (IRCs) are not required to submit their rules to OIRA for review. In the 112th Congress, Senator Rob Portman introduced S.3468, the Independent Regulatory Agency Analysis Act of 2012. Under this bill, the President could issue an executive order establishing centralized review procedures for IRCs. This book discusses the constitutionality and the legal effects of extending centralized review of rulemaking to IRCs.
Federal agencies regularly adopt rules, which have the force of law, to implement the statutes and programs authorised by Congress. Unless a statute directs otherwise, agencies generally must follow the requirements of the Administrative Procedure Act to promulgate rules. However, beginning with President Reagan, Presidents have maintained a centralised review process for "significant regulatory actions." Currently, Executive Order (EO) 12866, issued by President Clinton, imposes additional procedures agencies must follow before a rule can be finalised. This includes requiring agencies to submit proposed regulatory action to the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB) for review. Although EO 12866 applies to executive agencies, independent regulatory commissions (IRCs) are not required to submit their rules to OIRA for review. In the 112th Congress, Senator Rob Portman introduced S.3468, the Independent Regulatory Agency Analysis Act of 2012. Under this bill, the President could issue an executive order establishing centralised review procedures for IRCs. This book discusses the constitutionality and the legal effects of extending centralised review of rulemaking to IRCs.
Regulatory analytical requirements (e.g., cost-benefit and cost-effectiveness analysis) have been established incrementally during the last 40 to 50 years through a series of presidential and congressional initiatives. The current set of requirements includes Executive Order 12866 and Office of Management and Budget (OMB) Circular A-4, the Regulatory Flexibility Act (RFA), and the Unfunded Mandates Reform Act (UMRA). These requirements vary in terms of the agencies and rules they cover, and the types of analyses that are required. For example, a regulatory analysis under the Regulatory Flexibility Act is not required if the agency head certifies that the rule will not have a "significant economic impact on a substantial number of small entities." The most extensive and broadly applicable of the requirements are in Executive Order 12866 and OMB Circular A-4, but they do not apply to independent regulatory agencies. The statutes that provide rulemaking authority to independent regulatory agencies often require them to reconsider regulatory costs and benefits, and they often have less explicit requirements for cost-benefit analysis, if any. An OMB report indicated that independent regulatory agencies provided some information and costs and benefits in 76 of the 118 major rules they issued from FY2003 to FY2012. Cabinet departments and other agencies estimated monetary costs and benefits for some, but not all, of their rules. Several bills have been introduced in the 113th Congress that would codify and/or expand the current requirements for cost-benefit analysis. Congress could decide to keep the existing analytical framework in place, or could enact one or more of these reform proposals. Another more comprehensive approach could be to consolidate all of the analytical requirements in one place, and perhaps expand those requirements to include more agencies or rules, or to require different types of analysis. To do so, or to simply cover independent regulatory agencies by the executive order, the President could arguably amend Executive Order 12866 and OMB Circular A-4, or Congress could enact legislation. Any such changes must be cognizant of the state of existing law and practice in this area, and the resources and data required for agencies to carry out the analyses.
The Paperwork Reduction Act of 1980 (PRA) established OIRA as an office within OMB. OIRA is responsible for the coordinated review of executive agency rulemakings to ensure that regulations are consistent with applicable laws, the President's priorities, and the principles set forth in executive orders. Agencies provide OIRA with basic summary information when drafting rules to determine if additional OIRA review is required.
Although the prospect of increased rationality in rulemaking makes legislation, such as Independent Agency Regulatory Analysis Act (S. 1173), facially appealing, there are a number of reasons to be wary of such efforts to impose OMB-supervised regulatory review on independent regulatory agencies. For example, S. 1173 would reduce the independence of these agencies from the White House, making them more vulnerable to political pressures; would impair their ability to fulfill core statutorily-mandated functions; would delay rules; and may make many rules less rational, due to entrenched but faulty cost-benefit analysis methodologies required by OMB/OIRA.
This classic text, originally published in 1948, is a study of the public administration movement from the viewpoint of political theory and the history of ideas. It seeks to review and analyze the theoretical element in administrative writings and to present the development of the public administration movement as a chapter in the history of American political thought.The objectives of The Administrative State are to assist students of administration to view their subject in historical perspective and to appraise the theoretical content of their literature. It is also hoped that this book may assist students of American culture by illuminating an important development of the first half of the twentieth century. It thus should serve political scientists whose interests lie in the field of public administration or in the study of bureaucracy as a political issue; the public administrator interested in the philosophic background of his service; and the historian who seeks an understanding of major governmental developments.This study, now with a new introduction by public policy and administration scholar Hugh Miller, is based upon the various books, articles, pamphlets, reports, and records that make up the literature of public administration, and documents the political response to the modern world that Graham Wallas named the Great Society. It will be of lasting interest to students of political science, government, and American history.