Who Is Running OIRA?

Reposted from RegBlog. In his revealing new book about his nearly four years as President Barack Obama's "regulatory czar," Harvard Law School professor Cass Sunstein describes a striking moment: "After I had been in the job for a few years, a Cabinet member showed up at my office and told my chief of staff, 'I work for Cass Sunstein.' Of course that wasn't true - but still." But still, indeed. Sunstein's book, Simpler: The Future of Government, makes clear just how much power the Administrator of the Office of Information and Regulatory Affairs (OIRA) wields in this administration. As I have written elsewhere, Sunstein informs us that, as OIRA Administrator, he had the power to "say no to members of the president's Cabinet;" to deposit "highly touted rules, beloved by regulators, onto the shit list;" to make sure that some rules "never saw the light of day;" to impose cost-benefit analysis "wherever the law allowed"; and to transform cost-benefit analysis from an analytical tool into a "rule of decision," meaning that "[a]gencies could not go forward" if their rules flunked OIRA's cost-benefit test. As Sunstein's statements attest, the person who leads OIRA is, in the rulemaking domain, effectively the boss of members of the President's Cabinet. The head of OIRA determines which rules go to OIRA, what changes the rules will undergo before issuance, and indeed whether some rules will be issued at all. Rules that make OIRA's "shit list," to use Sunstein's term, simply stay at OIRA indefinitely. Twenty-four of the 149 rules under review as of April 26, 2013, have been at OIRA since 2011. Three rules have been there since 2010. Three important rules on food safety, required by legislation signed into law by President Obama himself, have been trapped at OIRA for many months. A whole group of energy efficiency rules has languished at OIRA for years. None of these rules will see the light of day without OIRA's say-so. It is a matter of some importance, then, to know who is running OIRA now that Sunstein has left. By law, the Administrator of OIRA must be nominated by the President and confirmed by the Senate. Since last August, when Sunstein returned to Harvard, OIRA has lacked a confirmed administrator. For several months after Sunstein's departure, Obama appointee Boris Bershteyn served as acting administrator of OIRA. But because no one was nominated for the position within 210 days of Bershteyn beginning his service as acting administrator, the Federal Vacancies Reform Act of 1998 prevented him from serving any longer. Since mid-March, therefore, Dominic Mancini - a career economist at OIRA - has been leading OIRA. One might imagine that a career civil servant operating out of an obscure White House office would give a great measure of deference to rules forwarded by the heads of agencies, who were nominated by the President and confirmed by the Senate. But, it appears, one would be wrong.