[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
ACCOUNTABILITY AND TRANSPARENCY REFORM AT THE OFFICE OF INFORMATION AND
REGULATORY AFFAIRS
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON
GOVERNMENT OPERATIONS
OF THE
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
SECOND SESSION
__________
MARCH 15, 2016
__________
Serial No. 114-152
__________
Printed for the use of the Committee on Oversight and Government Reform
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Available via the World Wide Web: http://www.fdsys.gov
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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
JASON CHAFFETZ, Utah, Chairman
JOHN L. MICA, Florida ELIJAH E. CUMMINGS, Maryland,
MICHAEL R. TURNER, Ohio Ranking Minority Member
JOHN J. DUNCAN, Jr., Tennessee CAROLYN B. MALONEY, New York
JIM JORDAN, Ohio ELEANOR HOLMES NORTON, District of
TIM WALBERG, Michigan Columbia
JUSTIN AMASH, Michigan WM. LACY CLAY, Missouri
PAUL A. GOSAR, Arizona STEPHEN F. LYNCH, Massachusetts
SCOTT DesJARLAIS, Tennessee JIM COOPER, Tennessee
TREY GOWDY, South Carolina GERALD E. CONNOLLY, Virginia
BLAKE FARENTHOLD, Texas MATT CARTWRIGHT, Pennsylvania
CYNTHIA M. LUMMIS, Wyoming TAMMY DUCKWORTH, Illinois
THOMAS MASSIE, Kentucky ROBIN L. KELLY, Illinois
MARK MEADOWS, North Carolina BRENDA L. LAWRENCE, Michigan
RON DeSANTIS, Florida TED LIEU, California
MICK MULVANEY, South Carolina BONNIE WATSON COLEMAN, New Jersey
KEN BUCK, Colorado STACEY E. PLASKETT, Virgin Islands
MARK WALKER, North Carolina MARK DeSAULNIER, California
ROD BLUM, Iowa BRENDAN F. BOYLE, Pennsylvania
JODY B. HICE, Georgia PETER WELCH, Vermont
STEVE RUSSELL, Oklahoma MICHELLE LUJAN GRISHAM, New Mexico
EARL L. ``BUDDY'' CARTER, Georgia
GLENN GROTHMAN, Wisconsin
WILL HURD, Texas
GARY J. PALMER, Alabama
Jennifer Hemingway, Majority Staff Director
Katy Rother, Senior Counsel
William Marx, Clerk
David Rapallo, Minority Staff Director
------
Subcommittee on Government Operations
MARK MEADOWS, North Carolina, Chairman
JIM JORDAN, Ohio GERALD E. CONNOLLY, Virginia,
TIM WALBERG, Michigan, Vice Chair Ranking Minority Member
TREY GOWDY, South Carolina CAROLYN B. MALONEY, New York
THOMAS MASSIE, Kentucky ELEANOR HOLMES NORTON, District of
MICK MULVANEY, South Carolina Columbia
KEN BUCK, Colorado WM. LACY CLAY, Missouri
EARL L. ``BUDDY'' CARTER, Georgia STACEY E. PLASKETT, Virgin Islands
GLENN GROTHMAN, Wisconsin STEPHEN F. LYNCH, Massachusetts
C O N T E N T S
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Page
Hearing held on March 15, 2016................................... 1
WITNESSES
The Hon. Howard Shelanski, Administrator, Office of Information
and Regulatory Affairs, Office of Management and Budget
Oral Statement............................................... 4
Written Statement............................................ 7
Ms. Michelle Sager, Director, Stategic Issues, Government
Accountability Office
Oral Statement............................................... 11
Written Statement............................................ 13
Dr. Richard Williams, Vice President of Policy Research and
Director of Regulatory Studies Program, Mercatus Center, George
Mason University
Oral Statement............................................... 29
Written Statement............................................ 31
Mr. Sam Batkins, Director of Regulatory Policy, American Action
Forum
Oral Statement............................................... 40
Written Statement............................................ 42
ACCOUNTABILITY AND TRANSPARENCY REFORM AT THE OFFICE OF INFORMATION AND
REGULATORY AFFAIRS
----------
Tuesday, March 15, 2016
House of Representatives,
Subcommittee on Government Operations,
Committee on Oversight and Government Reform,
Washington, D.C.
The subcommittee met, pursuant to call, at 2:27 p.m., in
Room 2154, Rayburn House Office Building, Hon. Mark Meadows
[chairman of the subcommittee] presiding.
Present: Representatives Meadows, Jordan, Walberg, Buck,
Carter, Connolly, and Maloney.
Also Present: Representative Chaffetz.
Mr. Meadows. All right. The Subcommittee on Government
Operations will come to order. And without objection, the chair
is authorized to declare a recess at any time.
Good afternoon. I want to welcome all of our witnesses and
express my appreciation for your attendance and certainly for
your testimony today.
Today's hearing will explore concerns and complaints about
transparency and accountability at the Office of Information
and Regulatory Affairs. Just about a year ago, we had a similar
hearing where the administrator obviously testified, and in
reviewing some of the transcripts, I was reminded of some of
the moments in that where the communication between you and
members of this committee was, I guess, less than clear. And so
we posed some questions that seemed very forthright to us, but
it seemed maybe to be confused. And so obviously this follow-up
hearing hopefully will provide some clarity as we look at that.
For example, you know, can you send a list of either pre-
proposed rules or other rules that are undergoing the informal
review process? And the administrator said, well, I don't know;
what are you referring to? So, of course, I was referring to
the same process that the GAO has referred to as an informal
review at least as early as 2003, which is the time prior to
the agency's formal submission of the rule to OIRA, during
which OIRA frequently has had a significant influence over the
development of the rule.
So this year, we wanted to bring back in some of the
experts in, including a regulatory expert from GAO, to help us
maybe wade through some of this messy process and possibly help
us bridge the communication gap that may have resulted from my
inability to articulate exactly what we were looking for.
GAO and regulatory experts have been calling for greater
transparency and accountability from OIRA for more than a
decade. In fact, in 2003 GAO issued a report that provided
significant details on how OIRA's review process could be
addressed but also raise several concerns about transparency
and accountability.
And since then, GAO has issued reports and recommendations
on how agencies and OIRA identify significant regulations and
how they explain the cost-benefit analysis and improve
retrospective regulatory reviews. By my count, there are about
17 open recommendations that OIRA has not yet addressed, and
that would improve the Federal regulatory process.
Instead, OIRA is marred by consistently late reporting,
incomplete analysis, poor data quality, and insufficient
oversight of the Federal regulatory process. OIRA is quite
possibly an agency overwhelmed by this responsibility and
insufficient resources, but the public doesn't know because
OIRA has failed to provide any insight into that process. So
hopefully, we will be able to hear some on that today.
In that past year, the committee has experienced a
frustration of this secretive regulatory process at OIRA
firsthand. I want to emphasize that I use the word frustration
and I could use something much more definitive in terms of
making that analysis. During last year's hearing, several
subcommittee members, myself included, requested that the
administrator provide documentation on how OIRA conducted its
reviews as it relates to the Waters of the USA rulemaking. This
type of request is something that we would ask of any agency so
that the committee can conduct its oversight responsibilities
effectively.
In general, agencies provide the committee with the
information it needs to understand what happened and why. Some
agencies take longer than others, but generally, we receive the
information in a relatively reasonable period of time.
Our experience with OIRA, however, has been different, and
in the past year we have experienced an unprecedented effort in
our opinion to obstruct the committee's oversight abilities and
restrict access to information about the Federal regulatory
process. OIRA's resistance to complying with the committee's
simple requests raises more concerns than we had last year.
Persistent requests for transparencies and assistance with
oversight from the public and now from Congress are apparently
met with disregard from OIRA. This committee may need to look
into other means to ensure that the agency is an effective
regulatory gatekeeper and accountable to the taxpayers, and
while the committee's investigation into OIRA's review of the
WOTUS rulemaking is ongoing, it is really not the focus of this
hearing.
The committee wanted to hold this hearing to explore policy
concerns and maybe options, Administrator, to address those
concerns. And so today, we ask our witnesses both where
additional transparency and accountability at OIRA are needed,
as well as what legislative efforts that the committee should
consider to spread a little sunshine into the secretive
deliberative process of the agency. Do you think that putting
OIRA's regulatory review function into a statute would help
OIRA better understand its obligations to Congress and the
American people, or is OIRA overburdened with the numerous
obligations that you have? Does OIRA need more staff to conduct
a more thorough review of the regulatory actions and meet its
current obligations for transparency?
We just want to know how this committee can help crack OIRA
open for public review and purview and Congress to better
understand the important work that this agency does. So any
thoughts or suggestions that the witnesses can offer us would
be very helpful.
Mr. Meadows. And with that, I would now like to recognize
my good friend Mr. Connolly, the ranking member of the
Subcommittee on Government Operations, for his opening
statement.
Mr. Connolly. Thank you, Mr. Chairman.
And I am sorry for the delay. I was detained on the Floor
after votes.
And thanks for holding another hearing on what is arguably
one of the most influential and consequential Federal agencies
that most Americans have never heard of. This relatively small
and mostly anonymous office reviews and coordinates the
issuance of vital Federal regulations that have an impact on
our nation's economy, environment, public health, and safety.
A year ago, Mr. Chairman, this subcommittee gathered to
discuss the challenges facing the Office of Information and
Regulatory Affairs, OIRA. We reviewed the Government
Accountability Office's recommendations and examined ways to
make the regulatory review process more efficient and
transparent. We reconvene today to check on the office's
compliance and progress.
OIRA plays a key role in shaping hundreds of important
rules such as those that safeguard food supply, guarantee
buildings are accessible for the disabled, promote public
safety, and protect the quality of our drinking water, about
which we had a hearing this morning and into the afternoon, and
we will have another one Thursday.
Despite the powerful impact this agency has on the lives of
all Americans, OIRA operates mostly in the shadows. And from a
good government point of view, greater transparency might be
warranted. Unfortunately, there continues to be a documented
lack of transparency within this small statutory office housed
within the Office of Management and Budget. Over the years, GAO
has repeatedly found that OIRA, under multiple administrations,
has failed to meet the transparency requirements contained in
the relevant Executive orders that prescribe the principles and
procedures OIRA should follow when conducting regulatory
review.
In last year's hearing, I mentioned GAO's recommendations
issued in 2003 to address transparency challenges. GAO followed
up with a report in 2009 again noting transparency issues and
providing additional recommendations. To date, OIRA appears to
have implemented only nine of those 25 identified
recommendations. And obliviously, today, we are going to hear
from Mr. Shelanski about that progress or lack thereof.
Furthermore, I believe the public and OIRA would be best
served if it provided a guidance to agencies to ensure that
they consistently report changes suggested by OIRA in the
rulemaking dockets, disclose information about all outside
parties it meets with regarding rulemaking, and ensure that the
informal rulemaking reviews, which are in place to streamline
and verify the process, are not misused to reduce the very
transparency we are seeking.
Congress and the American people have a right to know why
some rules sit under OIRA review for years when the review
process is supposed to be 90 days. There are currently 31
regulatory actions that have been under OIRA review for more
than 90 days, some considerably more.
In closing, I also do want to recognize that OIRA has an
incredibly difficult challenge and a hardworking and dedicated
core of career staff that is providing first-rate quantitative
analysis weighing complex economic costs against potential
benefits. And somebody has got to do that because sometimes we
have rhetoric up here that presupposes all regulation is bad
and none of it ever has any positive externalities. And that is
flat out untrue, and experience tells us that.
So to have an independent agency that is doing that
codification, doing that kind of analysis is critical, but as
the chairman indicated and I certainly support, but
transparency, in order to have validation, in order to have
credibility, there has to be transparency.
And so I thank the chair for having another hearing on this
matter, and I welcome our panelists and look forward to the
testimony.
Mr. Meadows. I thank the gentleman from Virginia. I would
also like to make note that we will hold the record open for 5
legislative days for any other members who would like to submit
a written statement.
We will now recognize our panel of witnesses, and I am
pleased to welcome the Honorable Howard Shelanski,
Administrator of the Office of Information and Regulatory
Affairs at the office of OMB; Ms. Michelle Sager, Director of
Strategic Issues at the Government Accountability Office; Mr.
Richard Williams, Vice President of Policy Research and
Director of Regulatory Studies Program at the Mercatus Center
at George Mason University; and Mr. Sam Batkins, is that
correct?
Mr. Batkins. Yes, it is.
Mr. Meadows. Batkins, Director of Regulatory Policy at the
American Action Forum. Welcome to you all. And pursuant to
committee rules, all witnesses will be sworn in before they
testify, so I would like to ask you to rise. Please raise your
right hand.
[Witnesses sworn.]
Mr. Meadows. Thank you. Please be seated and let the record
reflect that all witnesses answered in the affirmative.
And in order to allow time for discussion, please limit
your oral testimony to 5 minutes, but your entire written
statement will be made part of the record.
And, Mr. Shelanski, we will recognize you for 5 minutes.
WITNESS STATEMENTS
STATEMENT OF HOWARD SHELANSKI
Mr. Shelanski. Thank you, Mr. Chairman.
Thank you for the invitation to appear before you today.
I'm pleased to have this opportunity to discuss the role that
the Office of Information and Regulatory Affairs (OIRA) plays
in the Federal regulatory process.
Regulatory process in the United States is premise to an
unrivaled degree on two principles: transparency and
accountability. One of my priorities at OIRA has been to
increase the transparency of the regulatory process by
improving notice and predictability for the public. During my
tenure, we have timely published each spring and fall the
Unified Agenda and Regulatory Plan, which shows agency
rulemaking activity for the year that follows.
To further promote transparency, OIRA maintains a rigorous
process when it comes to the review of individual regulations.
First and foremost, OIRA consistently upholds the established
standards the draft rules and their accompanying analyses must
meet under applicable Executive orders, statutes, and published
guidance.
While OIRA takes the time necessary to ensure thorough
interagency review of regulations, we are mindful that
unnecessary delays in the publication of rules are potentially
harmful across the board, harmful to stakeholders wishing to
comment on proposed rules, to businesses and other entities
that must make plans to comply with rules, and to parties
denied the benefits of regulation.
Under the Administrative Procedure Act, agencies must
generally provide the public with an opportunity to comment on
proposed rules before the agency can finalize those rules. OIRA
plays an important role in this process by ensuring that
agencies' regulatory proposals contain sufficient detail,
explanation, and underlying analysis for the public to provide
meaningful comments and response. Such transparency is
essential to the public's ability to influence the regulations
with which they must eventually live.
Once an agency drafts the final rule for publication, OIRA
again plays an important role by ensuring that the agency takes
account of the public comments on the earlier proposal, that
the final rule logically follows from the proposed rule and
those public comments and that the agency's final rule is well-
grounded in the record evidence and meets applicable economic
analytical requirements. Such accountability is essential to
ensuring that agencies heed public comment and issue rules that
are effective and efficient.
As the discussion above implies, when an agency submits a
draft final or proposed rule to OIRA, the rule is not yet
finished and may change during the review period. OIRA
circulates the rules to other Federal offices and agencies for
comment and examines the rule for the quality of its underlying
evidence and analysis. OIRA then transmits the comments from
other Federal agencies, as well as its own comments on the
rule, back to the rulemaking agency. Once this process is
concluded, OIRA concludes review and the rule goes back to the
agency for publication in the Federal Register.
The Executive orders require the agency, upon request, to
make publicly available both the version of the rule the agency
originally submitted to OIRA, as well as the final published
version so that the public can see any changes that occurred
during interagency review.
To further ensure accountability and transparency in the
regulatory review process, when an agency submits the rule to
OIRA, the submission appears publicly the next day on OIRA's
Web site reginfo.gov. Stakeholders, therefore, have notice that
OIRA is initiating review. This notice is important because,
pursuant to Executive Order 12866, OIRA meets with any party
interested in providing any input on a regulation under review.
The entities with which OIRA typically meets includes State
and local governments, businesses, trade associations, unions,
and advocates from environmental health and safety
organizations. OIRA posts a searchable log of all such meetings
on its Web site, and that log now includes both meetings that
have already taken place and also upcoming meetings.
The Regulatory Right-to-Know Act, which calls for OMB to
submit to Congress each year an accounting statement and
associated report, promotes additional accountability. This
report includes an estimate of the total annual benefits and
costs of Federal rules and paperwork in the aggregate by agency
and agency program and by major rule. OIRA issued its final
2015 report on the costs and benefits of Federal regulations
earlier this month.
Finally, a hallmark of this administration's commitment to
transparency and accountability is our retrospective review
effort. Agencies submit reports on the status of their
retrospective review efforts every 6 months. Agencies release
their most recent reports on March 4 and will submit their next
set to OIRA this summer. The agency's regulatory look-back
efforts to date are expected to yield an estimated net 5-year
savings of $28 billion so far.
In conclusion, the United States is perhaps the most
transparent and accountable regulatory system in the world.
OIRA's review of executive branch regulations plays an
important role in that system. OIRA will therefore continue its
efforts to remain accessible to the public during regulatory
review to work with agencies to provide the public with notice
of planned regulatory activities and to ensure that the
government regulates this effectively and efficiently as
possible to the net benefit of all Americans.
Thank you for your time and attention. I would be happy to
answer any questions you may have.
[Prepared statement of Mr. Shelanski follows:]
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Mr. Meadows. Thank you.
Ms. Sager, you are recognized for 5 minutes.
STATEMENT OF MICHELLE SAGER
Ms. Sager. Thank you. Chairman Meadows, Ranking Member
Connolly, members of the subcommittee, thank you for inviting
me here today to discuss GAO's work.
We have consistently found opportunities to improve
regulatory transparency, and I am honored to represent GAO and
share a selection of our findings. My written statement
provides additional detail, as well as references to the
multiple reports that inform my remarks today.
In the next few minutes, I will highlight findings from
recent reports with a focus on, first, aspects of the
regulatory review process that could be more transparent; and
second, additional opportunities to enhance transparency and
oversight of the rulemaking process.
First, our reports on cost-benefit analysis, rule
development, and OMB's role in reviews of agencies' rules
illustrates specific opportunities to increase the transparency
of the regulatory review process. For example, with regard to
cost-benefit analysis, our 2014 report found that reviews of
agencies' rules sometimes did result in changes, but the
transparency of the review process could be improved.
In that report, we made three recommendations to OMB.
First, that OMB work with agencies to clearly communicate the
reasons for designating significant regulations and explain the
reason for any changes to an agency's initial assessment of a
regulation's significance.
And second, we recommended that OMB encourage agencies to
state in the preamble section of the Executive order definition
of a significant regulatory action that applies to that
particular regulation. OMB implemented the first recommendation
in that report.
Second, additional opportunities do exist to enhance
transparency and congressional oversight of the rulemaking
process. OMB plays a very important role in this process
through oversight and by providing guidance to agencies on how
they should comply with the various requirements.
GAO reports covering a range of topics such as regulatory
guidance, retrospective regulatory review, and exceptions for
expediting the rulemaking process illustrate additional
opportunities to enhance transparency. So, for example,
retrospective analysis can help agencies evaluate how well
existing regulations work in practice and also determine
whether they should be modified or perhaps even repealed.
In a 2014 report, we found that agencies often did change
their regulations in response to completed retrospective
analysis, but they could improve reporting on their progress
and also strengthen linkages between their retrospective review
and agencies' performance goals.
We also concluded that OMB could enhance transparency of
the information provided to the public. We made three
recommendations in this report: first, that OMB improve
reporting on retrospective regulatory review outcomes; second,
to improve how these reviews could be used to help agencies
achieve their agency priority goals; and third, to ensure that
OIRA monitor the extent to which agencies have implemented
guidance on these reviews and then confirm that agencies have
identified how they would assess the performance of regulations
in the future. Staff from OIRA generally agreed with these
three recommendations, and last year, the administrator
indicated that the agency was indeed taking actions to address
them.
In summary, as you see in my written statement, OIRA has
implemented nine of the 25 recommendations in the selected
reports outlined in the written statement. We believe that the
other 16 related recommendations that have not been implemented
still have merit and, if acted upon, would improve the
transparency of Federal rulemaking. In a step in that
direction, last year, the administrator noted that OIRA has
worked with agencies to help them with their Executive order
disclosure requirements.
Increased transparency of the rulemaking process holds
potential benefits for your continued oversight, as well as for
increased public awareness and understanding of the rulemaking
process for the regulations that affect all of us as citizens
and as taxpayers.
Chairman Meadows, Ranking Member Connolly, members of the
subcommittee, this concludes my prepared statement. I look
forward to any questions that you may have. Thank you.
[Prepared statement of Ms. Sager follows:]
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Mr. Meadows. Thank you, Ms. Sager.
Dr. Williams, you are recognized for 5 minutes.
STATEMENT OF RICHARD WILLIAMS
Mr. Williams. Thank you. Chairman Meadows, Ranking Member
Connolly, and members of the subcommittee, thank you for
inviting me to testify today.
I want to offer my perspective as someone who has worked
both at OIRA briefly and at an agency, the FDA. I know how
difficult it is for economists at agencies to produce high-
quality unbiased analysis, but also how difficult a job OIRA
analysts have ensuring that regulations are solidly grounded in
good analysis. When they are so grounded, regulations address
real problems, actually help to solve those problems and with
reasonable cost.
Good analysis helps the public to understand the likely
effects of regulation, i.e., make them transparent. But the job
for OIRA analysts is becoming much more difficult because of
the growing imbalance between OIRA and the agencies they're
expected to regulate. While Federal agencies have grown to
twice the size that they were in 1980, OIRA, the arm of OMB
that's supposed to oversee regulations, has been halved.
Regulatory agencies now have about 280,000 employees versus
about 40 in OIRA.
And OIRA only looks at a small percentage of the 3 to 4,000
regulations that we get each year. Between 2004 and 2014, they
only looked at 8 percent, and they've only returned one
regulation in the last 5 years. But even with those they do
review, the record is not an encouraging one. In that same 10-
year period, only 116 out of roughly 3,000 major rules had
estimates of both benefits and costs, and many of those
estimates were quite poor.
So where OIRA was reasonably effective at the outset, the
growing imbalance between OIRA and the agencies is producing
these poor results. It is now David versus Godzilla. Take one
example from a recent rule produced under the Food Safety and
Modernization Act. The food industry estimated that it would
cost more than $18 billion to comply with just one rule, the
packaged food rule. Yet in its analysis of that rule, FDA
claimed not to have any idea whether or not it would make an
impact on food safety.
OIRA should have been in a position to stop this rule. This
was a rule to reduce risk, and OIRA is at a disadvantage when
they are reviewing risk-related rules. Assessing risk is an
activity that virtually every American engages in every day,
and they do so objectively. In agencies, regulations are often
based on formalized risk assessments to determine the baseline
risk and the amount of risk that will be reduced by the
regulation. If these assessments are inaccurate, then the
benefits of the rule will be inaccurate. In fact, time and
again, agencies overstate risk or the amount of risk produced.
So OIRA needs risk assessors to be able to review the analyses
to make sure that benefits can be compared to costs.
But OIRA has another role to play beyond reviewing
regulations: ensuring that the public has enough information
and time to adequately comment on the rules that often take
years to develop, run to thousands of pages, some including
very complex analysis. Typically, the public gets 60 to 90 days
to respond, and that's insufficient.
So what can help? First, I think to get better analysis you
can restore OIRA to its original size, which was about 90. In
addition, ensure that OIRA has qualified risk assessment--
assessors on staff. Second, you can codify the economic
Executive order a little, make it much more enforceable.
In terms of the public, it's important to let the public
know what's coming and how to respond. The current system seems
designed to inhibit public comment. To accomplish this, there
are several things that can be done. First, have OIRA, in
conjunction with GAO, enhance the Unified Agenda to make
agencies include more information in proposals, which would
include a statement of the problem, the legal basis,
alternatives for solving the problem, and a preliminary
discussion of the benefits and costs.
For bigger rules, agencies should be required to publish an
advance notice of proposed rulemaking with an expanded
discussion of what's in the Unified Agenda. This will give the
public, particularly small businesses, much more time to
formulate a constructive information-rich comment that clearly
communicates and supports their claims, as the Federal
Government asked them to do.
OIRA should also be charged with making it easier to find
out when a particular industry has to comply with various rules
from different agencies. So, for example, an industry can get
regulations from the IRA, from EPA, and from OSHA, and they can
have different dates that are all running together. OIRA could
create online calendars by industry that would list the
compliance dates for various rules. In fact, OIRA could go
further. They could coordinate with agencies to make sure that
no industry is faced with bunched up compliance dates.
OIRA has a long and distinguished history in helping to
solve social problems, but they are simply outgunned as
Congress has allowed this agency to dwindle in size and
importance. But given the size and reach of the regulatory
state, this is a much-needed check for the President to
exercise some degree of control over the regulatory agencies
Thank you, and I welcome your comments.
[Prepared statement of Mr. Williams follows:]
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Mr. Meadows. Thank you, Dr. Williams.
Mr. Batkins, you are recognized for 5 minutes.
STATEMENT OF SAM BATKINS
Mr. Batkins. Thank you, Chairman Meadows, Ranking Member
Connolly, and members of the committee.
At the outset, I just want to reiterate some of the
testimony we have heard today and note that OIRA does play a
critical role in our regulatory process. When you consider that
40 or 50 employees have to review the work of tens of thousands
of regulators reviewing roughly 400 rulemakings annually,
sometimes highly technical, it is a testament that we've had, I
think, six administrations help to establish and advance the
work of OIRA, three Democrats and three Republicans to help
advance the work of OIRA.
With that said, there are obviously transparency and
reporting concerns at the Office of Information and Regulatory
Affairs. And if you look--take a look back at the last 20 or 30
years of regulatory reform, you'll find sometimes OIRA is very
much at the center of those reform efforts, but all of them
have transparency and reporting issues, and you can sort of
just go down the litany, you know, some of which has been well
litigated in the past, issues with the Unified Agenda, the
Congressional Review Act, the Unfunded Mandates Reform Act, the
Information Collection Budget, which reports on cumulative
paperwork totals as part of the Paperwork Reduction Act. OIRA
reports to Congress and implementation of Executive Orders
13563 and 13610.
On the Unified Agenda it's again well-known that in 2012
there just for some reason wasn't a spring Unified Agenda for
whatever reason, and to our knowledge that's the only instance
when there weren't two Unified Agendas published in a calendar
year.
With regard to the Congressional Review Act, there was a
recent report from the Administrative Conference of the United
States, which found thousands of rulemakings that were never
submitted to GAO as part of the CRA process, which would then,
I guess in practice, could deprive Congress of its oversight
ability under the CRA. Now, agencies do have a responsibility
to submit rules to GAO under the CRA, but OIRA also has a
responsibility to label rules as major under the CRA procedure
as well.
With regard to the Information Collection Budget, I know
that's a somewhat obscure report on paperwork, but it's--has
been more than 500 days since our last update of the
Information Collection Budget.
And finally, on implementation of Executive Orders 13563
and 13610, which were ostensibly designed to modify,
streamline, expand, or repeal the existing regulatory state, we
saw op-eds in the Wall Street Journal about moving to a 21st
century regulatory system and streamlining and repealing
redundant regulation. And if you actually look at the 4 to 500
rulemakings contained in these reports, you will find notable
examples of rulemakings that do cut costs and paperwork. But
from our account, they are often dwarfed by all the new
rulemakings that, for example, implements the Affordable Care
Act. And we sort of struggle to understand how implementation
of the Affordable Care Act constitutes retrospective review
designed to streamline or eliminate red tape.
And there are some other notable examples as well.
Department of Education's Gainful Employment Rule, which has
billions of dollars in costs and millions of paperwork hours,
is also included in these retrospective reports.
In addition to the controversial Waters of the United
States Rule, which has found its way in EPA and DOD's section
of the report, along with CAFE standards, the 2017 to 2025 CAFE
standards. And by our account the last report that was issued,
if you include the regulatory costs and the regulatory cost-
cutting measures, it contains roughly $16 billion in costs and
6.5 million in new paperwork burden hours.
And finally, an issue which I'm sure the committee is
familiar with of midnight regulation, this is something that
Administrator Shelanski has already issued a memorandum to
agencies sort of outlining the procedure for regulations during
this presidential transition year. Similar memos were issued in
2008. Of course, that at the time did not stop sort of the
flood of regulations that happened during that time, and
there's a lot of quantified evidence showing that flood of
regulation.
And just to give you an idea of how quickly things can run
through the process with a willing executive, we found some
Department of Energy regulations in 2000 and 2008 where the
entire life of the rulemaking from proposed rule to final
publication in the Federal Register was less than the comment
periods for some notable regulations during the proposed cycle,
so the entire history of rulemaking of just, you know, about
100 days.
So, finally, another issue again related to the
Congressional Review Act is the carryover provision, which, by
our calculation and by the Congressional Research Service
calculation, this year will be somewhere around mid- to late
May, which means that any regulation issued after that date
Congress and the next administration could review in 2017,
which there is certainly an incentive for the administration to
have sort of a mini-rush in regulation during this spring so as
to avoid any review under the CRA in 2017. We haven't seen any
evidence of that so far, but that's something that we'll
certainly be monitoring this spring going forward.
Thank you.
[Prepared statement of Mr. Batkins follows:]
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Mr. Meadows. Thank you, Mr. Batkins.
The chair recognizes the gentleman from Georgia, Mr.
Carter, for 5 minutes.
Mr. Carter. Thank you, Mr. Chairman, and thank all of you
for being here.
Mr. Shelanski, would you agree that part of the core
mission of OIRA is to ensure that agencies analyze less-
burdensome means of fulfilling policy objectives?
Mr. Shelanski. One of the things that we ask agencies to do
is to analyze regulatory alternatives when such are available.
Mr. Carter. And to analyze less-burdensome ones, correct?
Mr. Shelanski. When there's a less-burdensome alternative
available, we ask them to ----
Mr. Carter. Okay. Well, as you may be aware, the Department
of Labor has proposed a very complex Fiduciary Rule. You are
familiar with that?
Mr. Shelanski. Yes, I am, sir.
Mr. Carter. Okay. Yet OIRA has not ensured that the
Department of Labor has analyzed any less-burdensome options to
the currently proposed rule. In fact, the Department of Labor
openly refused to do that, openly refused to analyze any other
options. Don't you see that as being a direct conflict to what
the core mission of OIRA is?
Mr. Shelanski. Thank you, Congressman Carter. The rule is
still under review at OIRA, and so we have an ongoing review on
the Conflict of Interest rule, or the Fiduciary Rule as you
referred to. So that review is not yet complete. And I can
assure you that all of the input, all of the public comment,
all of the relevant issues are being seriously considered
during that review, which is, as I said ----
Mr. Carter. So before the Department of Labor implements
this rule, you are telling me that it has got to be approved by
OIRA?
Mr. Shelanski. The rule is--the final rule is currently
under review in my office that has to--we have to complete that
review before they can publish it in the Federal Register and
implement it.
Mr. Carter. How long have you been reviewing this
particular rule?
Mr. Shelanski. I'd have to check how long we've had it.
We've had it for a good bit of time.
Mr. Carter. A good bit of time being?
Mr. Shelanski. Again, I would have to check exactly when it
came in.
Mr. Carter. Okay. So I just want to make sure I am clear on
this now. So the Fiduciary Rule that Department of Labor is
proposing, you have to approve it first before it can be
published by the Department of Labor and become the rule, the
law?
Mr. Shelanski. Yes, we have to conclude review on this
final rule just as we did on the proposed rule, so it's back
with us for a second time and they cannot publish the rule in
the Federal Register until my office concludes review.
Mr. Carter. And again, I want to make sure I understand the
core mission. The core mission of OIRA is to make sure that
agencies are looking at less-burdensome means for fulfilling
policy objectives ----
Mr. Shelanski. The core ----
Mr. Carter.--right?
Mr. Shelanski. One of the elements of our core mission is
to find by the Executive orders and relevant statutes is to
make sure the agency has analyzed and considered regulatory
alternatives ----
Mr. Carter. This is certainly a case where we have asked
the Department of Labor to look at some less-burdensome rules,
so we are depending on you to fulfill this core mission, okay?
Mr. Shelanski. Understood, sir.
Mr. Carter. Understood, okay. Let me ask you something.
Have you received any instructions from the Department of Labor
or the White House regarding any kind of timeline for the
review of this particular Fiduciary Rule?
Mr. Shelanski. We clearly want to complete our review
within a reasonable period of time ----
Mr. Carter. That is not what I asked, okay. I am sorry. I
will try to be succinct. Have you been given any instructions
from the Department of Labor or from the White House regarding
a timeline for the review of this Fiduciary Rule? Yes or no?
Mr. Shelanski. No.
Mr. Carter. No, you have not. Have you received any kind of
communication from the White House or from the Department of
Labor regarding the importance of getting this Fiduciary Rule
done as quickly as possible?
Mr. Shelanski. Yes, of course.
Mr. Carter. You have? Can you make that communication
available to us, to this committee?
Mr. Shelanski. The communication comes in the form of a
conversation sometimes, which is we're submitting ----
Mr. Carter. Do you have anything in writing?
Mr. Shelanski. Probably not, no.
Mr. Carter. Probably not, but it comes in the form of
communication.
Mr. Chairman, how do we handle something like that? Because
I would be really interested in knowing what exactly has been
communicated.
Mr. Meadows. Well, certainly emails and other types of
messages would have to be preserved, so is it the ----
Mr. Shelanski. Yes, I've preserved ----
Mr. Meadows.--gentleman's testimony that there was none of
that, that it was all verbal?
Mr. Shelanski. Mr. Meadows, I would have to go back and
check. I mean, these come in the form of conversations. When we
receive briefings on a rule, we'd really like to move this
forward so that the industry has notice of what's coming so
that they will have the opportunity to plan their compliance
with any rule.
This is rather standard. I mean, I work in the White House
so it's rather normal that I would have conversations with
other officials in the White House bearing on policy issues. So
----
Mr. Carter. Okay. Well, let me ask you this way then. Have
you received any directions from the White House or from the
Department of Labor to make this happen, to make this rule--to
let this rule go through?
Mr. Shelanski. Both the White House policy offices and the
Department of Labor are absolutely aware that we must be left
independently to review this rule. And I have received no order
about any specific outcome from our review process from ----
Mr. Carter. I am going to ask you again, if you have
anything in writing, will you please make that available to
this committee?
Mr. Shelanski. I will go back and see what I have and I
will ----
Mr. Carter. That ----
Mr. Shelanski.--consult--but I would ask you to please
route any such requests through our Legislative Affairs Office,
and they will come back to me and, you know, endeavor to get
you all the information you need.
Mr. Carter. Okay. Can I have one final one?
Mr. Meadows. [Nonverbal response.]
Mr. Carter. Okay. One final question. Would you agree, Mr.
Shelanski, that one of the core missions is to ensure that the
agency addresses any concerns raised by other agencies?
Mr. Shelanski. Absolutely. That is a core function ----
Mr. Carter. So the SEC has raised 30--excuse me. The SEC
has raised 26 concerns, 26 regarding the Department of Labor's
Fiduciary Rule, yet the Department of Labor rejected the
majority of them. Have you and OIRA--have you addressed any of
these that have been raised by the SEC or is that what you are
doing now?
Mr. Shelanski. As I say, we have the rule under review. All
concerns are being considered.
Mr. Carter. Including the 26 concerns by the SEC?
Mr. Shelanski. All of the substantial interagency concerns
are dealt with during the review process.
Mr. Carter. Okay. Thank you, Mr. Chairman.
Mr. Meadows. I thank the gentleman.
The gentleman from Virginia has been very kind to let the
chairman of the full committee Mr. Chaffetz be recognized for a
series of questions.
Mr. Chaffetz. Thank you, Chairman. And I appreciate Mr.
Connelly. Thank you for your generosity and cooperation.
Mr. Shelanski, I want to understand what you believe your
duty and obligation is to respond when Congress sends you a
letter. And specifically, I am talking about the Oversight and
Government Reform Committee. I am the chairman of this
committee. I have sent you on the Waters of the United States
two letters and a subpoena, and yet we still have an incomplete
document production. That subpoena was July of last year. What
do you feel your duty and obligation is to respond when we send
you a letter?
Mr. Shelanski. So, first of all, let me say that I think
the oversight function that this committee and all
congressional committees perform are vitally important. And so
I fully agree with and support and would endeavor to get you
all the information you need for your lawful oversight
functions. I believe that's a critical function.
We do respond to all correspondence that were received from
Congress. We have a process that that goes through. And it's my
understanding that we have a very robust ongoing discussion
between your staffs in your offices and the Legislative Affairs
Office and General Counsel's Office at OMB to respond to your
requests.
Mr. Chaffetz. I don't want to have any more staff
discussions. My question is what duty do you believe you have
to respond to us?
Mr. Shelanski. I believe it is my duty to turn over all
documentation to our General Counsel's Office and our
Legislative Affairs Office that is currently engaged in the
process of producing documents and witnesses for you.
Mr. Chaffetz. So in the case of WOTUS, the Waters of the
United States, when is it reasonable for us to expect you to
produce a full, complete, 100 percent document production? What
is a reasonable time for your response?
Mr. Shelanski. Again, I am not personally involved with --
--
Mr. Chaffetz. What do you mean you are not personally
involved? You are in charge of this organization so ----
Mr. Shelanski. I am not personally involved with the
process that has been ongoing for months between the General
Counsel's Office of OMB and the Legislative Affairs Office.
Mr. Chaffetz. So who do we ----
Mr. Shelanski. The process ----
Mr. Chaffetz. Who do we call before this committee that
will take accountability here, general counsel? What is his
name or her name?
Mr. Shelanski. Again, I do not have personal involvement
with the negotiations that are ongoing.
Mr. Chaffetz. We are not here to negotiate. Why should we--
you gave us a very--you said we have a valuable constitutional
duty. Why should we have to negotiate what you are going to
give to us?
Mr. Shelanski. My understanding is that there is a process
in place, Mr. Chaffetz, by which you have received thousands of
pages of documents ----
Mr. Chaffetz. No, most of those ----
Mr. Shelanski.--witnesses for transcribed ----
Mr. Chaffetz. Let me ----
Mr. Shelanski.--interviews, and all of my documents are
turned over. Again, I am not personally involved in the
negotiations that you and your office ----
Mr. Chaffetz. Give me some names. Who are the people that
are involved?
Mr. Shelanski. I would refer you to our Legislative Affairs
Office ----
Mr. Chaffetz. No, no, no.
Mr. Shelanski.--for all that information.
Mr. Chaffetz. See, this is the runaround we get. I issued a
subpoena in July of last year. Why shouldn't I hold somebody in
contempt?
Mr. Shelanski. My understanding is that subpoena is the
process of being answered. You have already done one
transcribed interview ----
Mr. Chaffetz. I am asking you what a reasonable amount of
time is to get a response.
Mr. Shelanski. Again, the process is ongoing.
Mr. Chaffetz. Seven months, is that reasonable?
Mr. Shelanski. Again, I refer you to our Legislative
Affairs Office. It is managing this process ----
Mr. Chaffetz. Give me some names, Mr. Shelanski.
Mr. Shelanski. I'd be ----
Mr. Chaffetz. You are saying you are not responsible, but
you are the administrator of this office so ----
Mr. Shelanski. Mr. Chaffetz, I am responsible for turning
over all of my documentation and getting you all the
information, all the information to our General Counsel's
Office. They have been working with your offices for months. I
am not going to step outside of a robust, ongoing process ----
Mr. Chaffetz. So you don't believe that your responsibility
is to respond to Congress. You believe your responsibility is
to respond to an attorney at the White House?
Mr. Shelanski. I disagree with your characterization.
Mr. Chaffetz. Well, I am just trying to repeat what you
just told me. You said your responsibility is to give it to the
General Counsel.
Mr. Shelanski. I have turned over all of my documentation,
everything that I have on that rule. They are in a robust
process that has been going on with your office that you were
participating in that is ongoing, that has led to a large
document production ----
Mr. Chaffetz. It is not a large ----
Mr. Shelanski.--and ongoing document production and
witnesses.
Mr. Chaffetz. It is not a large--most of which we have. The
overwhelming majority is publicly available documents. I can go
to the internet and get it, you know, just download it.
What we have asked for is the list of people and the
documents themselves. I am asking a simple question. What is a
reasonable amount of time for Congress to get that information?
Mr. Shelanski. My understanding is that this is a process
that has been ongoing that has been producing you documents. I
have turned everything over that I have to the people that I
work with at the offices ----
Mr. Chaffetz. So you believe that the general counsel has
100 percent of the documents?
Mr. Shelanski. The general counsel has 100 percent of my
documents. I am only involved with my documents. I'm not ----
Mr. Chaffetz. See, this administration is just playing
hide-the-documents. I am trying to figure out how and where are
these documents and who--give me the name of the general
counsel.
Mr. Shelanski. I believe that your office is deeply
involved with the General Counsel's ----
Mr. Chaffetz. No, no, no ----
Mr. Shelanski.--Office ----
Mr. Chaffetz.--did you misunderstand my question? My
question is give me the name of the person.
Mr. Shelanski. I'm going to refer you to our Legislative
Affairs Office. You ----
Mr. Meadows. Mr. Shelanski, you have got to answer the
question. Either you don't know or you have to answer the
question.
Mr. Chaffetz. You are under oath. Do you know that person's
name?
Mr. Shelanski. Yes, I do.
Mr. Chaffetz. Then what is his name.
Mr. Shelanski. It's a her.
Mr. Chaffetz. What is her name?
Mr. Shelanski. Her name is Ilona Cohen, as your staff well
knows.
Mr. Chaffetz. Well, I am asking you the questions. Why do I
have to spend 3 minutes trying to get you to give me a name.
Mr. Shelanski. Mr. Chaffetz, we have had a very robust
back-and-forth ----
Mr. Chaffetz. You can keep using that word robust. I know
you trained up on it. I asked you a simple question. I send you
a subpoena, I send you letters. We shouldn't have to yank you
up here.
Mr. Shelanski. And I gave you a very simple answer. I've
turned over all of my documents to the people who are working
closely with your office and producing those documents, 4,000
pages of documents, at least one transcribed interview, so I've
heard, and more of them scheduled. There is an ongoing process,
so I do not think it is a fair characterization that you have
not received an answer.
Mr. Chaffetz. Well, I expect to get 100 percent of the
documents so ----
Mr. Shelanski. A hundred percent of my documents are turned
over. I am not personally involved with ----
Mr. Chaffetz. Turned over to--not to us.
Mr. Shelanski. To our Legislative Affairs Office and our
General Counsel's Office that is working with your office to
get you ----
Mr. Chaffetz. That is not ----
Mr. Shelanski.--what you need.
Mr. Chaffetz.--an acceptable answer.
Mr. Shelanski. Well, I'm ----
Mr. Chaffetz. You are failing in your duty to respond to
Congress, and I quite frankly don't understand why we shouldn't
hold you personally in contempt of Congress.
Mr. Shelanski. That's certainly your prerogative ----
Mr. Chaffetz. I yield back.
Mr. Shelanski.--Mr. Chaffetz.
Mr. Chaffetz. Yes, it is. I will yield back.
Mr. Meadows. I thank the gentleman.
The chair recognizes the ranking member of the
subcommittee, Mr. Connolly, for a series of questions for 5
minutes.
Mr. Connolly. I thank the chair, and welcome to the panel.
Let me begin. Ms. Sager, since '03 GAO has had seven
reports, I believe, on OIRA, is that correct, containing a
total of 25 recommendations over the course of the seven
reports?
Ms. Sager. Correct. We focused on ----
Mr. Connolly. You have got to turn on your mic.
Ms. Sager. We focused on seven reports in the written
statement that had--specific aspects of those reports had
recommendations to OMB, to OIRA related to transparency.
Mr. Connolly. And about nine of those recommendations have
been implemented to your satisfaction?
Ms. Sager. That's correct.
Mr. Connolly. And why have 16 not been implemented?
Ms. Sager. In those cases, either OIRA disagreed with the
recommendation or there are some where they may have taken
action and we are still trying to get documentation to close
the recommendations.
Mr. Connolly. Mr. Shelanski, can you highlight for us the
ones with which you disagree?
Mr. Shelanski. We have ongoing discussions with GAO. I
would reiterate what Ms. Sager said. We have responded directly
on a number where we have actually adopted the recommendations.
There are several others where we are doing things that are
very much in the spirit of the recommendation but not the
specific thing that GAO is doing, and I can give you an example
there. An example would be, for--on getting agencies to talk in
their preambles about the basis for a significance
determination. We haven't felt that a formal guidance is
necessary, but we've encouraged agencies ----
Mr. Connolly. All right.
Mr. Shelanski.--to put that kind of information ----
Mr. Connolly. I think it would be useful if you could
subsequently submit to the committee that status because it
sounds bad that 16 of 25 are not being implemented. If some of
them are in progress, I think we would like to know where you
object and why with the remainder just for our illumination so
it is not a transparency issue; it is, you know, a substantive
issue.
Going back to this issue of WOTUS, I guess the minority
staff were under the impression that this would not become a
WOTUS hearing. But since the issue came up, Mr. Shelanski, I
wouldn't want to leave the impression that your office has been
entirely uncooperative with this committee. Your staff came to
meet with the committee staff on January 29 to discuss subpoena
compliance, is that correct?
Mr. Shelanski. Again, I'm not directly involved with the
subpoena compliance beyond turning over any documents ----
Mr. Connolly. Are you aware whether your staff meets with
our staff or not?
Mr. Shelanski. I am aware there's a process ----
Mr. Connolly. Well, did they meet on the 29th of January or
not?
Mr. Shelanski. I don't know if they met with you on the
29th of January, Mr. Connolly.
Mr. Connolly. Okay. After that meeting, it is my
understanding that your staff agreed to make rolling
productions available on a monthly basis. Are you aware of
that?
Mr. Shelanski. I want to make one clarification. The
general counsel of OMB is not my staff, and the Legislative
Affairs Office of OMB are not my staff. Those are peer separate
offices with OMB. I do not direct their operations, so I think
I need to clarify that. They handle these matters for the
Office of Management and Budget, so in working with them, I am
working through the normal process for subpoena compliance.
Mr. Connolly. Mr. Shelanski, I have been a corporate
officer in the private sector. I have been the chief elected
officer in the public sector. I have run things. And even if
something is handled by my legal department, if I am in charge,
I make it my business to know whether we are in compliance,
especially if I know I am going to be testifying before a
committee. I am actually trying to help you here, Mr.
Shelanski, but, you know, you are wiping your hands of this and
saying it is someone else's responsibility as if you have
nothing to do with it frankly plays into the hands of your
critics.
Mr. Shelanski. Let me be very clear. I will happily,
willingly, and eagerly do anything that I am advised to do, I
am told to do that your staffs and our staff agree constitute
compliance with the subpoena.
Mr. Connolly. Mr. Shelanski ----
Mr. Shelanski. For that reason ----
Mr. Connolly. Mr. Shelanski, I am actually trying to help
you. It was left out there that you are uncooperative with this
committee. I am trying to establish for the record that there
is another side to that story. In fact, your office has
produced 4,000 pages to this committee. Now, maybe that is not
to the full satisfaction of somebody or maybe they didn't find
what they wanted, but it is not like you haven't been meeting
with this committee and cooperating. But it is not helpful to
me or you for you to wash your hands of it saying, well, I
don't know anything about that.
Mr. Shelanski. No, here's what I know. I ----
Mr. Connolly. When you are under subpoena. How can the head
of an office under subpoena tell this committee I am unaware of
it, I don't know, not my business?
Mr. Shelanski. That's not what I said, Mr. Connolly. What I
said is this ----
Mr. Connolly. It comes damn close to what you said, Mr.
Shelanski.
Mr. Shelanski. Well, then let me--if I may, I'd like to
clarify. I am aware that we have a very serious process
underway to comply. If we did not, I would be very concerned
and I would be going internally to say what are we doing to
comply. But something different is going on. I've turned over
all of my documents and I have been informed and am regularly
informed not of a specific date that a meeting takes place but
that there are ongoing conversations and ongoing document
productions to this committee. If that were not happening, I'd
be gravely concerned. But not only that, every time I am told
we have a request for you to do X, I said fine, tell me what to
do. I'm ready to do what I--what the process dictates. And this
is a cooperative process, I have been led to believe, between
the people on your committee and the people in the Office of
Management and Budget.
Mr. Connolly. Yes, how is that working out for you? You
just heard how cooperative that is. But I can't help somebody
that doesn't want to cooperate.
One final point, Dr. Williams, I found your testimony
helpful in terms of specifics in how to improve the process and
thank you, and I expect nothing less from one of the
outstanding universities in the world, George Mason University,
which just so happens to be located in the 11th District of
Virginia.
Mr. Williams. Thank you, Mr. Connolly.
Mr. Connolly. But thank you. I wish we had a little more
time to explore because I would like the opportunity to sort of
work with you and Mr. Shelanski on how practical some of those
suggestions might be because I think you make a--and then I
will end. But I think you make a really good point. How can we
possibly expect Mr. Shelanski and his colleagues at OIRA to
really fulfill their mission with only 40 people ----
Mr. Williams. Precisely.
Mr. Connolly.--when you were talking about this immense
enterprise. And we can argue whether there should be more or
less regulation, but whatever the number, it is still
gargantuan, and one wonders whether just the sheer volume of it
is something that we need to take a look at in terms of the
role of OIRA. So I thank you for your testimony, and we are
going to certainly follow up on that.
Mr. Williams. Great.
Mr. Connolly. Thank you, Mr. ----
Mr. Williams. I will tell you in my short time at OIRA I
found the job depressing because it is so overwhelming.
Mr. Connolly. Thank you.
Mr. Meadows. I thank the gentleman from the 11th District
of Virginia, home of George Mason.
The chair recognizes the gentleman from Ohio, Mr. Jordan,
for a series of questions.
Mr. Jordan. Thank you, Mr. Chairman. And I probably will
just use a minute or two here. But I wanted to follow up. I
think it was about a year ago that Mr. Shelanski was in front
of the committee and we asked him a few questions, so I kind of
want to go back there.
But first of all, Mr. Shelanski, what exactly is the core
mission of OIRA? What exactly do you do?
Mr. Shelanski. Well ----
Mr. Jordan. Because agencies come up with rules that have
to be put in place when laws are passed and legislation is
done. Tell me exactly what OIRA does. So tell the committee
what OIRA does.
Mr. Shelanski. When the agency has finished a rule, and it
can be either a proposed rule or a final rule, they submit that
rule to OIRA. If it's a rule that is determined to be
significant, we bring it in for review. And we do two things
when we have it in for review, two primary things. We circulate
it to other Federal agencies for their comments so that we get
the interagency views so that there aren't conflicts or
duplication amongst agencies or problems with jurisdiction. And
the other thing we do is we look at the rule carefully to make
sure it's grounded in the evidence, that it--you know, if it's
an economically significant rule, that it has a good cost-
benefit analysis with it.
Mr. Jordan. Is your evaluation of the proposed rule or
maybe the final rule, is it focused on the substance of the
rule and/or did the agency comply with notice, public comment,
cost-benefit? Is it all of the above or just parts of that?
Mr. Shelanski. Certainly, when it's a proposed rule that
the agency is bringing forward for the first time before it's
had public notice and comment, we're very focused on the
substance.
Mr. Jordan. Okay.
Mr. Shelanski. And the reason we're focused on the
substance is that rule's going to go out for public comment,
and it's going to be a notice of proposed rulemaking.
Mr. Jordan. So it is a two-step thing? So you are going to
----
Mr. Shelanski. It's a two-step thing.
Mr. Jordan.--look at the substance first. Then, the agency
is going to send it out for public comment and notice it and
public comment and ----
Mr. Shelanski. Right.
Mr. Jordan.--you will get that feedback back? Then are you
going to look to see if they actually complied with the process
they are supposed to go through to make sure this rule is
appropriate?
Mr. Shelanski. Yes, that's exactly what we do. So we look
at the substance again when the rule comes back because the
agency will often make changes between the proposed version and
the final version. But the other thing that has happened in
that time is probable one of the hallmarks of the U.S.
regulatory system. It's the public comment. And the important
factor is the public comments are part of the administrative
record. Those are documents that remain part of the record, so
we make sure when an agency brings a final rule back to us of
two things that tie very closely to process. One is that they
do not ignore the substantive and important public comments
that they've ----
Mr. Jordan. Right.
Mr. Shelanski.--received. And the second thing is that the
actual rule that they put forward, the substance of that rule
logically follows from what the public had notice might happen.
Mr. Jordan. My understanding--is it accurate to summarize
it is a two-step process. Step one, look at the substance. Step
two, make sure that when it is an important rule they are going
through the proper notification, proper public comment, proper
notice and everything else?
Mr. Shelanski. Both of those factor in, yes.
Mr. Jordan. Okay. So the GAO issues a report a few years
ago, December 2012. What GAO found, very first sentence,
agencies do not publish a notice of proposed rulemaking
enabling the public to comment on a proposed rule for about 35
percent of major rules and about 44 percent of non-major rules
published in about a 10-year time frame, 8-year time frame
prior to that. Do you know anything about that? Because that
would sound like it just went contrary to what you just
described.
Mr. Shelanski. So this relates to a particular kind of
rule, if I'm recalling correctly, the GAO report. Agencies
under the Administrative Procedure Act are allowed to do some
rules directly to final, and that is permissible under some
circumstances.
Mr. Jordan. So directly to final. So what part of this--if
an agency goes directly to final, what part of that two-step
process that you just described did they do an end run around?
Mr. Shelanski. So this is where ----
Mr. Jordan. Both parts?
Mr. Shelanski. No. So ----
Mr. Jordan. Just the second part?
Mr. Shelanski. Some--and that's--what GAO was concerned
about is sometimes they did not do the second step. The ----
Mr. Jordan. Okay. And do you have to sign off on that?
Mr. Shelanski. No. What we have to sign off on ----
Mr. Jordan. Did you make an issue of it?
Mr. Shelanski. Yes, absolutely.
Mr. Jordan. Well, then, why did it happen 35 percent of the
time for major rules?
Mr. Shelanski. Yes, so one of the things we've been trying
to do since the time that that report was issued was to get
agencies to commit ahead of time when they are legally able to
do what's called an interim final rule to make sure it's truly
interim and that they, in fact, do then put the rule out for
public comment and finalize the rule in light of that public
comment.
Mr. Jordan. If GAO would do a study now, what percentage of
major rules are not following the notice and public comment
process?
Mr. Shelanski. I would hope it's a greatly reduced number.
I don't know what the number would be. I don't think it's a
common occurrence.
Mr. Jordan. Are you actively--are you cataloguing that? I
mean, does OIRA know when an agency is not going to follow
notice and public comment for--I am using GAO's descriptive
word here--major rules? Do you know that?
Mr. Shelanski. So the number of interim final rules that
fall into this category I think is, to begin with, a rather
small number. What fraction don't then go through the comment
period I don't know. We've been working very hard to give
agencies ----
Mr. Jordan. Well, we would like to know that, and it seems
like if you are the folks who oversee how the rules are done
and making sure they are supposed to be done right, if 35
percent of the time major rules are going through the notice
and public comment process, we would need to know that. So if
you could get that information and get it to us, that would be
helpful.
Mr. Shelanski. And just to clarify for the record, it's not
35 percent of all major rules. It's 35 percent I think at the
time of this particular category of regulations if I'm ----
Mr. Jordan. That is not what the sentence says.
Mr. Shelanski. Yes, I would have to ----
Mr. Jordan. It says ``for about 35 percent of major rules
and about 44 percent of non-major rules.''
Mr. Shelanski. Well, I will certainly go back and look, and
I think you're absolutely right; this is an area that if those
numbers remain anything close to what they are, we need to do
more on ----
Mr. Jordan. Well, I'm sorry, Mr. Chairman. I said 2 minutes
and here I am taking 6 so I appreciate the indulgence.
For the fact that--this would seem to be something that you
would be jumping, kicking, and screaming and, you know, making
all kinds of noise about that 35 percent of the time they are
not doing what they are supposed to do, and it is the very
thing that OIRA was created to make sure they did.
Mr. Shelanski. Right. And so my--since I have been in
office in 2013 ----
Mr. Jordan. And more importantly--sorry to interrupt, but
more importantly, you can't tell me what that percentage is
now. We know it was 35 percent for a significant time frame
when this report came out. We don't know what that is now. We
don't know if it is higher, lower. We don't know.
Mr. Shelanski. I would hope that it's significantly lower.
It's not something that's happening very often.
Mr. Jordan. Well, we don't want to go on your hope. We want
you to give us the information.
Thank you, Mr. Chairman.
Mr. Meadows. I thank the gentleman.
The chair recognizes himself for a series of questions.
So let me follow up on one point, Mr. Shelanski. You just
said that you review the public comment. You were telling Mr.
Jordan you review the public comment?
Mr. Shelanski. We don't read all of the public comments
ourselves. What we do is we make sure that the agencies have --
--
Mr. Meadows. So what percentage of the public comments do
you review?
Mr. Shelanski. Well, we--the agencies submit to us what's
called a Response to Comment as part of these rules.
Mr. Meadows. So you don't actually review public comment?
Mr. Shelanski. We review an awful lot of them. I mean,
sometimes there are millions of them that are ----
Mr. Meadows. Well, the reason why I ask is because we have
had, you know, a transcribed interview where someone under oath
said, ``We don't get involved in the review of public
comments.'' So how do you reconcile your testimony with sworn
transcript?
Mr. Shelanski. Well, it's exactly what I just said. We make
sure that the agencies have responded to public comment. That's
what we do. But there is a form of ----
Mr. Meadows. But that is not what you said.
Mr. Shelanski. Well ----
Mr. Meadows. So what you are telling me is you don't review
public comment, is that correct?
Mr. Shelanski. It is not ----
Mr. Meadows. You just make sure they review public comment?
Mr. Shelanski. And more than just review it. They can't
just say we've reviewed it. They have to ----
Mr. Meadows. So how do you determine that if ----
Mr. Shelanski. We read in the document they submit to us as
part of a final rule package what their response to the
comments are.
Mr. Meadows. So they do a response to the comments. So what
you are doing is reviewing their response to public comment --
--
Mr. Shelanski. If they produce ----
Mr. Meadows.--not reviewing public comment?
Mr. Shelanski. They produce a summary of public comment and
they show what their responses are, and we review to make sure
that they weighed in.
And I would add that one of the very important functions
that we do when we're under--when we have a rule under review
is we meet with the public. We're required to under the
Executive order ----
Mr. Meadows. What percentage of the public?
Mr. Shelanski. Well, in the last 2 years, we've had 900
meetings with stakeholders, 900.
Mr. Meadows. And that would represent what percentage?
Mr. Shelanski. Of the interested parties? Since we ----
Mr. Meadows. Yes.
Mr. Shelanski. Since we take any meeting that anybody
requests, it's, I presume, a pretty ----
Mr. Meadows. So you will meet with 100 percent of the
people that ask you ----
Mr. Shelanski. We do not turn down meeting requests. We
have accepted ----
Mr. Meadows. So your testimony is you meet with 100 percent
of the people that ask? How do you do that with a staff of 45
people?
Mr. Shelanski. Like I say, we've had 900 meetings in the
last 2 years.
Mr. Meadows. Okay. The ranking member was trying to help
you out, Mr. Shelanski, because, honestly, some of your
testimony is incongruent and so I will put it that way because
it seems to be conflicted. At your previous hearing we talked
about resources. Dr. Williams has talked about, you know, it is
just overburdened, yet you said that you are adequately
resourced in the previous hearing. So is your perceived--and I
will use that word gently--perceived lack of complying to the
subpoena a resource issue?
Mr. Shelanski. Again, I want to clarify that I fully wish
to comply with every ----
Mr. Meadows. But you are not.
Mr. Shelanski. I fully ----
Mr. Meadows. If your testimony is--because on the January
29 meeting that he has talked about where you actually came in
and talked about subpoena compliance with staff, actually you
provided a few rolling document productions. But the other part
of what you agreed to do during that meeting has not been done.
Mr. Shelanski. Can I clarify that I was not part of that
meeting? When you say you ----
Mr. Meadows. Yes, you can ----
Mr. Shelanski. I just want to clarify ----
Mr. Meadows. You are an agency. Okay. Your name is on the
subpoena.
Mr. Shelanski. I understand that, which is why ----
Mr. Meadows. And so ultimately ----
Mr. Shelanski.--I turned ----
Mr. Meadows.--if someone is not complying with a subpoena,
it is not the general counsel, it is not your staff, it is you
because your name is on the subpoena.
Mr. Shelanski. And it ----
Mr. Meadows. And I am trying to help you out here.
Mr. Shelanski. I--let me just say I hope that I am fully
complying with the subpoena. I intend to fully comply with the
subpoena. I would never do anything but fully comply with a
subpoena from this office. I want to make that very clear.
Mr. Meadows. But that has not been your testimony today
because you have referred to the general counsel. You said it
is up to the general counsel to determine ----
Mr. Shelanski. We don't ----
Mr. Meadows.--and yet their name is not on the subpoena.
Mr. Shelanski. That is--actually, what I said was my
understanding was there was an--I want to be very clear about
this. My understanding was there is an ongoing process to reply
to the subpoena and to comply with the subpoena. I have turned
over everything I have into that process. For all I know, you
have all of it. So it's really hard for me to know what more I
can do here.
Mr. Meadows. All right. So your testimony is you have
turned it all over to general counsel, every one of your
documents, and it is your belief today that they have turned
all of that over to this committee?
Mr. Shelanski. It is my belief ----
Mr. Meadows. That is your--in preparing for this hearing,
that is what you were told?
Mr. Shelanski. No. What I was told was there is ongoing
discussion and turning over of document s----
Mr. Meadows. You know, ongoing is a long word. It doesn't
quantify when it is going to get--there are ongoing processes
to try to balance our budget. It doesn't mean that it is
getting done.
Mr. Shelanski. Well, all I can say is that I have--it has
been my wish and my request that the subpoena be fully complied
with. I've turned over all of my documents. And I will ----
Mr. Meadows. What about the scope and the parameters of
what you are even looking to provide to this committee? We have
asked you for that, and yet you haven't provided that scope and
what we are looking at. We have asked for custodians. We have
gotten very little information. Those would seem to be the easy
answers that the ranking member and I could get within 24 hours
of you going back and saying we need to let the committee know
the scope of what we are looking at and the custodians who are
charged with it and who all is involved. And we have been
getting information that you haven't even reached out to them.
Mr. Shelanski. It is my understanding that every effort has
been made to obtain the information you have requested. I
certainly have turned over everything I have and that it is in
my power to turn over----
Mr. Meadows. Okay.
Mr. Shelanski.--to turn over.
Mr. Meadows. All right. Let me put it this way. You are in
charge. It is the opinion of some that you are not being
compliant with providing information to this committee. I will
be tenacious until we actually get your compliance. And I want
to make sure I am clear here because some of my questions from
a year ago and the responses you gave me are not--I guess I
didn't articulate them properly because the answers you gave me
are not bared out with fact. Does that make sense?
Mr. Shelanski. Since I don't know what you're referring to
----
Mr. Meadows. Well ----
Mr. Shelanski.--I can't comment ----
Mr. Meadows.--so let me share with you just one exchange,
and this is one of three that we have but I will share with
you. When we were talking about the informal review process and
the fact that there may be some dialogue that goes on between
you and an agency, now, that particular one we were talking
about, WOTUS, but today, I am talking about any of them, not
just the WOTUS ruling.
And I said, ``Basically we have had a number of hearings
here in this committee on the Waters of the USA on the proposed
rule, and I believe that your testimony here today is that it
has not been officially submitted to you, is that correct?''
And you said, ``Yes, that is correct.'' ``And so you have had
no dialogue with them?'' is what I asked. And you said, ``I
have had no dialogue with the EPA.'' And I went on further. I
said, ``Informal or formal?'' ``I have had no dialogue
whatsoever with the EPA on the Waters of the USA.'' ``Okay. How
about deliberations?'' I ask. And you said, ``Well, no
deliberations, no discussions.''
And so in follow up to Mr. Carter's response today, I ask,
``So if I were to ask you for all of your records,''--and so I
assume that you turned over all of your records to general
counsel. ``So if I were to ask you for all of your records,
would we find zero records, zero emails, nothing with the EPA
with regards to the rulemaking on the proposed rule?'' Your
response was ``We concluded review on the proposed rule, the
EPA took it from there. The next I will hear about is when they
submit the final rule.''
Now, you actually changed that to say that you actually
hadn't had the formal rule at that particular time because you
came back and corrected that. But here is my concern, the
committee has emails where actually the administrator has had
direct communication with OIRA and there were lines that were
marked out and edited for the proposed rule. So that is my
concern. You are saying there is nothing, and yet we have
evidence that there was something.
Mr. Shelanski. I think it's important to draw a very clear
distinction here. Of course I had discussions and interaction
with ----
Mr. Meadows. But that was not your testimony.
Mr. Shelanski. Sir--sir ----
Mr. Meadows. I mean, I couldn't have been much clearer. I
said, ``Informal or formal?''
Mr. Shelanski. I need to finish my answer because ----
Mr. Meadows. Sure. Go ahead.
Mr. Shelanski.--this is vitally important.
Mr. Meadows. It is.
Mr. Shelanski. When we had the proposed rule under review,
when we had the proposed rule under review formally submitted,
I of course had correspondence with the EPA and interactions,
and I would expect that you have those documents. When the
agency had the proposed rule back in its hands and we had
concluded review on the proposed rule, I don't think I had any
correspondence or interaction or discussion with the EPA ----
Mr. Meadows. So you are doubling down that you never have
discussion with an agency informally before it goes into the
formal process?
Mr. Shelanski. Are we talking about WOTUS or are we talking
about ----
Mr. Meadows. You know, it is your agency. Let me just tell
you, I am trying to make it clear. Ms. Sager, do they--your GAO
report seemed to indicate that there is this informal review
process that sometimes goes back and forth with an agency. Can
you illuminate that any?
Ms. Sager. There are conversations between OIRA and the
agencies about the nature of proposed rules, yes.
Mr. Meadows. So how do you reconcile what the GAO is
telling me with your testimony here, Mr. Shelanski?
Mr. Shelanski. Well, Mr. Meadows, you've moved back and
forth between the specific case of ----
Mr. Meadows. No, sir, I think I have been ----
Mr. Shelanski. You have.
Mr. Meadows. Well, let me just tell you. It is not my
agency, so please enlighten me because let me tell you, what it
smells like here is that you are not being truthful with this
committee.
Mr. Shelanski. So let me separate two things and be very
plain about it. My answer on WOTUS was correct. I had no
interaction with WOTUS during--between the proposed and final
rule with EPA on the clean water rule. Are there occasions, as
Ms. Sager said, when agencies come and brief us on rules that
they have not yet formally submitted? Yes, there are. And I've
said that before in testimony.
Mr. Meadows. But in my direct questioning I was trying to
get to that very exact point and you gave an answer that was
not ----
Mr. Shelanski. But I realize that now. Last time we had the
occasion to speak about the issue, Mr. Meadows, I was not clear
on whether you were asking about proposed rules or talking
about separately as informal rules because we don't have a
category that we keep of informal review, okay? What we do is
sometimes an agency will say we're developing a rule or we have
a rule we're going to submit in 2 months; we'd like to come in
and brief you about it. We do have those discussions, as Ms.
Sager said, but we don't have the rule at that point. We're not
actually reading the rule, and we're not involved in helping
them develop the rule. We're getting briefed on the scope of
the rule.
Mr. Meadows. All right. Let me interrupt you. If you are
having discussions with them, how could that not be helping
them develop the rule? Why are you having the discussion? Is it
what did you have for breakfast?
Mr. Shelanski. No, it's more ----
Mr. Meadows. If you are not helping them--how do you have a
discussion if you are not helping them develop the rule?
Mr. Shelanski. So they're going to want to know what we
will expect from them when the review process starts.
Mr. Meadows. That is helping them develop the rule.
Mr. Shelanski. Okay. I mean, we're not setting--we're not
making policy decisions for them. They'll come to us and say we
have a rule on a particular topic. Here's what--here's the
direction the rule is going often with not terribly much
specificity, and we'll tell them, okay, we're going to need
certain kinds of analysis, we're going to need certain things
to be an element of the rule package. But it would not be the
proper role of OIRA, for example, to tell, you know, HUD what
their policy decisions should be in a particular rule.
Mr. Meadows. That is not what I was asking. The problem is
your testimony today is in direct conflict with the testimony
you gave just about a year ago because this was the exact line
of questioning that I was trying to get to. And either it was
my inability to articulate it properly or your inability to
comprehend it properly, but somehow, we miscommunicated. And
what I am concerned about is it took other witnesses here for
you to finally agree to what we already knew.
Mr. Shelanski. Well, Mr. Meadows, I was not certain 5
minutes ago whether you were talking about a particular rule or
----
Mr. Meadows. Okay.
Mr. Shelanski.--generally, and I believe I've made ----
Mr. Meadows. Well, they have called votes, and so, Dr.
Williams, Mr. Batkins, you both gave some very good--as my good
friend Mr. Connolly has indicated, some good analysis. What we
would love to do is follow up. So we don't keep you here any
longer, we will submit some questions for that.
I recognize the ranking member for a closing statement.
Mr. Connolly. I thank the chair.
I guess I would just say, you know, Harry Truman used to
have a sign on his desk ``The buck stops here.'' It was an
acknowledgement that there had to be some ultimate authority
where decisions got made and responsibility taken. You know, I
don't know Mr. Shelanski's commitment to his mission, and he
has a long and distinguished career, but what is untenable is
to assert that even though I am the head of an agency, I have
outsourced responsibility for compliance with a subpoena and
the overall relationship with a committee to somebody else, and
my only job is to hand over the raw documents and I am done. I
don't take responsibility for dates, for meetings, for what
information if any is provided, and whether or not we are, in
fact, in compliance with a subpoena. That is not a tenable
position, and I can assure you on a bipartisan basis that is
going to be the point of view on this committee.
And so I urge Mr. Shelanski to think about that because I
think we could avoid some problems by the taking of
responsibility and by more awareness by Mr. Shelanski of in
fact what meetings take place, who is at them, and what got
agreed to even if he isn't in that meeting. And I just
respectfully submit that to the gentlemen in question because I
think you are going to have real problems on this committee.
And we already have a philosophical divide about the value and
role of regulation, but to be eclipsed in that philosophical
debate by an administrative hurdle that is not defensible makes
no sense to me. But that is just me.
Thank you, Mr. Chairman.
Mr. Meadows. I thank the gentleman for his eloquent
remarks.
Mr. Shelanski, maybe what we can do is from this point
forward believe that you are going to comply with the subpoena
and all the documents and that we set the scope of when that
would be along with timetables and how we are going to do that.
That is what we will look for.
Additionally, what I would ask with regards to the GAO
recommendations which GAO recommendations that you plan not to
implement, the ones that you do plan to implement and at what
timetable are we going to look at that. I am going to check. I
will follow up. I promise you I will follow up on that.
And then, Mr. Batkins and Dr. Williams, my apologies for
not getting any further questions with you, but we will submit
some for the record and ask you to respond back to this
committee. And we appreciate your interest in this very
valuable topic.
And if there is no further business before the committee,
the committee stands adjourned.
[Whereupon, at 3:45 p.m., the subcommittee was adjourned.]
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