One of the most intriguing, unanswered questions about this Administration’s approach to regulatory policy is whether they’ll pull independent agencies in for some form of review by the Office of Information and Regulatory Affairs (OIRA). Although this issue has been kicked around for decades, President Trump’s appointment of Neomi Rao to the post of OIRA Administrator suggested it was going to be a key issue because of her scholarship as a law professor. A recent OIRA memo demonstrates ongoing appetite to rein in independents.

OIRA sends a data call like this every year to kick off a process that will culminate in OMB’s annual report to Congress on the Information Collection Budget, as required by the Paperwork Reduction Act. The Act applies to independent agencies as well as executive branch agencies, meaning that any planned agency “information collections” must go through two public comment periods and attain OIRA approval prior to going live. Independent agencies, though, have an override process if they disagree with OIRA’s determination.

It’s not unusual for OIRA to give direction to agencies subject to the Paperwork Reduction Act, including independents. The question is how neatly OIRA’s authority applies to independents.  In the 2015 memo, OMB said that “[a]ll Independent Agencies that did not produce a retrospective [regulatory] review report . . . must submit two or more new paperwork burden reduction initiatives.” At the time, OIRA was managing the Obama Administration’s efforts on retrospective review of existing regulations, including those that involved “information collections” (e.g., forms, recordkeeping requirements) under the Act.

Notably, the Act doesn’t give OIRA express authority to require independent agencies to propose, undertake, or report burden reduction initiatives, so the basis for “must” in that sentence above is not as firm as it could be. The Act requires OMB’s annual report to include “a description of the extent to which agencies have . . . reduced . . . burdens . . . , including . . . a summary of accomplishments and planned initiatives.” Further down in the 2015 memo, the language softens to “asking” and “requesting,” for reasons that the memo doesn’t explain. The 2016 memo has similar language; a combination of “must” and less demanding terms.

The 2017 memo was the first to be issued by the Trump Administration, and its language mirrored that of the Obama years. The 2018 memo, issued earlier this month, uses “must” and adds something new: “the historically independent agencies do not currently participate in EO 13771,” referring to President Trump’s regulatory two-for-one executive order. Both the “historically” and the “currently” seem to be sending signals about OIRA’s views on what it means to be independent in the regulatory context. Curiously, the rest of the memo retains the softer “asks” and “requests” language of prior memos, suggesting no actual change in policy…yet?

Prior to her appointment, then-Professor Rao wrote skeptically of the “so-called independent agencies,” arguing that they must answer to the President. She also wrote on this fine blog along the same lines. Therefore, the question comes up a lot now that she’s in OIRA. It was part of her confirmation hearing, it comes up when she speaks publicly in her capacity as OIRA Administrator, and it’s enough of a topic that entire events are devoted to it. This latest OIRA memo suggests those fires are still burning, even if all we can see is smoke.