“I’ll let you write the substance…you let me write the procedure, and I’ll screw you every time.”
—Representative John Dingell
(Hearing on H.R. 2327, Regulatory Reform Act, before the Subcomm. on Admin. Law and Governmental Regulations of the House Comm. on the Judiciary, 98th Cong. 312 [1983])
Representative Dingell’s window into the world of lawmaking is legendary in the legal profession. And it is a truism that extends beyond just the chambers of Congress. Most federal law is made within the federal agencies, and the rules of procedure that govern the writing and enforcement of agency-made law are part of what lawyers call “administrative law.” It shouldn’t be a surprise that the attorneys in the Office of Advocacy’s Office of Interagency Affairs are active in this field.
Our attorneys’ involvement in administrative law was on display last week at the Fall Conference of the American Bar Association’s Section on Administrative Law and Regulatory Practice. Several Advocacy assistant chief counsels organized and moderated four panels on the first day, and most played to standing-room-only crowds.
Assistant Chief Counsel Jennifer Smith, who sits on the section’s governing council, moderated the panel called “White House Review of Rulemaking: Strengthen, Mend, About Right, or Abolish?” Reflecting a perennial debate within the section, panelists lined up for and against the Office of Information and Regulatory Affairs (OIRA) and its role in regulatory review; the two sides aligned mostly according to their views on the use of cost-benefit analysis (CBA) in agency decisionmaking.
CBA was the subject of two panels moderated by Assistant Chief Counsel David Rostker. In the morning panel, panelists defined CBA and explained some of the issues that arise in developing analyses that are useful to policymakers during the rulemaking process.
Office of Advocacy Economist Christine Kymn (a former policy analyst at OIRA) saved the day as a last-minute substitute speaker, explaining the requirements of OMB Circular A-4, OMB’s guidance on regulatory analysis.
In the afternoon panel on CBA, panelists discussed topical controversies, covering Congressional interest in strengthening requirements for regulatory analysis, issues with the CBAs conducted by financial regulatory agencies in support of rules implementing the Dodd–Frank Act, and a recent D.C. circuit court case that hinged on the quality of an agency’s analysis.
The final panel of the day was “Building Successful SBREFA Panels.” Assistant Chief Counsel Kevin Bromberg organized this panel and Assistant Chief Counsel Bruce Lundegren moderated. Panelists included officials from the Environmental Protection Agency and the Occupational Safety and Health Administration who had run SBREFA panels, and a private attorney who had represented small entities in a number of SBREFA panels. (SBREFA panels examine rulemaking topics which are expected to have a significant impact on small entities prior to the drafting of rules. They are named for the Small Business Regulatory Fairness Enforcement Act, which amended the Regulatory Flexibility Act.) The panelists emphasized the value of SBREFA panels and the importance of frequent and open consultations.
—Reporting by Assistant Chief Counsel David Rostker;
photos by Assistant Chief Counsel Janis Reyes