By Cheryl Bolen
The new Trump administration will find a steadily moving and proper regulatory review process in place, not a lot of messy, badly done leftovers for them to deal with, said Howard Shelanski, administrator of the Office of Information and Regulatory Affairs.
“We are overwhelmingly a career staff organization,” Shelanski told Bloomberg BNA in a Dec. 5 interview in his office. “We will not be leaving behind a mess to be cleaned up on the regulatory front.”
As a candidate, President-elect Donald Trump pledged massive deregulation and a policy of requiring agencies to eliminate two regulations for every one they wanted to issue. Trump has yet to announce his choice to lead OIRA next year.
But while Trump is entitled to appoint Cabinet secretaries and heads of agencies who will pursue his agenda, the overwhelming makeup of employees within departments and agencies, and especially within the Office of Management and Budget and OIRA, is career staff that does not change with administrations.
“Yes, we will continue as long as we are here, but the great news for the American public is the really terrific career staff leadership remains here at OIRA and at OMB, and remains in a lot of the agencies,” Shelanski said. “These people will carry the effort forward.”
The role of the next OIRA administrator is going to depend a lot on the regulatory posture of the administration and how independent the executive branch agencies are from the White House, Shelanski said.
The OIRA administrator’s role in an anti-regulatory administration could be fairly powerful in the sense that the administrator could get complete backing by the president to either stop rules or require changes to rules, Shelanski said.
“On the other hand, I would venture to say that power won’t be that necessary because in a deregulatory or an anti-regulatory administration, fewer rules will come over,” Shelanski said.
It’s a powerful position because the OIRA administrator gets to negotiate one-on-one with the agencies, Shelanski said. The agencies know there is going to be a review hurdle, which can create a lot of change in a rule, he said.
The power to block a rule is going to be more limited, Shelanski said. There is more power in making a rule better than in simply stating that the administration is not going to regulate, he said.
It also will be hard to find two rules, or even one rule, to pull out for every one in, Shelanski said. In jurisdictions like Canada and the UK that have done this, the requirement is riddled with exceptions because they have confronted the hard reality of actually doing harm under a rigid system, he said.The other hurdle is a procedural one, Shelanski said. There are statutory requirements to do a lot of the rules that are done, and the Administrative Procedure Act doesn’t allow someone to merely remove a rule that’s in effect, he said.
Even repeal of an administrative rule is a rule change, which has to be done through a full and formal rulemaking process, Shelanski said. A record would have to be built that would justify changing the regulatory direction, and if it were a significant rule, it would be subject to OIRA and judicial review and oversight, he said.
Although Republicans in Congress are clamoring to overhaul the regulatory process, with the goal of slowing or stopping the perceived deluge of regulations that they argue is stifling economic growth, Shelanski urged caution.
“The Administrative Procedure Act should be viewed as one of the signature accomplishments of the American regulatory state,” Shelanski said.
There is no jurisdiction in the world that has the combination of transparency and accountability for regulatory agencies, the requirement of an administrative record that justifies a rule, and independent judicial review of whether the agency has met that requirement, he said.
“I think tinkering with those requirements is a very bad idea,” Shelanski said. “I think it would be most unwise legislatively for Congress to undermine the APA.”
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