[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
CHALLENGES FACING OIRA IN ENSURING TRANSPARENCY AND EFFECTIVE
RULEMAKING
=======================================================================
JOINT HEARING
BEFORE THE
SUBCOMMITTEE ON HEALTH CARE,
BENEFITS AND ADMINISTRATIVE RULES
AND THE
SUBCOMMITTEE ON GOVERNMENT OPERATIONS
OF THE
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
MARCH 3, 2015
__________
Serial No. 114-150
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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
Sean McLaughlin, Staff Director
Andrew Dockham, General Counsel
Christina Aizcorbe, Counsel
Sharon Casey, Deputy Chief Clerk
David Rapallo, Minority Staff Director
Subcommittee on Health Care, Benefits and Administrative Rules
JIM JORDAN, Ohio, Chairman
TIM WALBERG, Michigan MATT CARTWRIGHT, Pennsylvania,
SCOTT DesJARLAIS, Tennessee Ranking Member
TREY GOWDY, South Carolina ELEANOR HOLMES NORTON, Distict of
CYNTHIA M. LUMMIS, Wyoming Columbia
MARK MEADOWS, North Carolina BONNIE WATSON COLEMAN, New Jersey
RON DeSANTIS, Florida MARK DeSAULNIER, California
MICK MULVANEY, South Carolina, Vice BRENDAN F. BOYLE, Pennsylvania
Chair JIM COOPER, Tennessee
MARK WALKER, North Carolina MICHELLE LUJAN GRISHAM, New Mexico
JODY B, HICE, Georgia Vacancy
EARL L. ``BUDDY'' CARTER, Georgia
------
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 3, 2015.................................... 1
WITNESSES
Mr. Howard Shelanski, Administrator, Office of Information and
Regulatory Affairs, Office of Management and Budget
Oral Statement............................................... 5
Written Statement............................................ 8
APPENDIX
Response from Mr. Howard Shelanski, Administrator, Office of
Information and Regulatory Affairs, Office of Management and
Budget to Questions for the Record............................. 38
Letter of September 24, 2013, from the NFIB re: EPA's Definition
of ``Waters of the U.S.'' Under the Clean Water Act Rule....... 50
Letter of November 16, 2012, from NFIB, re: Guidance on
Identifying Waters Protected by the Clean Water act............ 53
Letter of December 30, 2014, from EPA to the NFIB Response to
WOTUS FOIA Request submitted by Mr. DesJarlais................. 59
May 28, 2014, from the National Federation of Independent
Business to the Environmental Protection Agency and the Army
Corps of Engineers............................................. 61
CHALLENGES FACING OIRA IN ENSURING TRANSPARENCY AND EFFECTIVE
RULEMAKING
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Tuesday, March 3, 2015,
House of Representatives,
Subcommittee on Health Care, Benefits and
Administrative Rules, Joint with the Subcommittee
on Government Operations,
Committee on Oversight and Government Reform,
Washington, D.C.
The subcommittee met, pursuant to call, at 9:35 a.m., in
Room 2154, Rayburn House Office Building, Hon. Mark Meadows
[chairman of the Subcommittee on Government Operations]
presiding.
Present from Subcommittee on Health Care, Benefits and
Administrative Rules: Representatives Jordan, DesJarlais,
Walker, Hice, Carter, Cartwright, DeSaulnier, and Lujan Grisham
Present from Subcommittee on Government Operations:
Representatives Meadows, Jordan, Massie, Buck, Carter,
Grothman, Connolly, Lynch, and Plaskett.
Mr. Meadows. The Subcommittee on Government Operations and
the Subcommittee on Health Care, Benefits and Administrative
Rules will come to order.
Without objection, the chair is authorized to declare a
recess at any time.
We believe that the ranking member is on his way here, so I
am going to go ahead and start with my opening statement.
Mr. Shelanski, thank you so much for coming today to
testify. Obviously, as you know, Federal agencies draft
proposed and final rules on a regular basis as part of their
regulatory analysis that is supported by the underlying rule.
That incorporates comments received from the public on those
rules. Certainly, created by this committee under the Paperwork
Reduction Act of 1980, the Office of Information and Regulatory
Affairs, also known as OIRA, which is a mouthful, is charged
with reviewing draft proposals and final regulations from the
Federal agencies.
This regulatory review role is currently defined by an
executive order, which is 12866, issued by President Clinton,
and Executive Order 13563 issued by President Obama, which
reaffirms that Clinton executive order. OIRA is the gatekeeper
over poor regulatory analysis, so it is your agency's charge to
certainly look at that; and you are responsible for making sure
that those agencies, the regulatory analysis that gets done are
sound and that the agencies respond to the public in the
rulemaking.
Obviously, we have seen unprecedented rulemaking in the
last few years, and certainly with that your workload, I would
imagine, has increased. So we look forward to hearing from you
on that today.
Additionally, as we start to look at this particular
agency's role in looking at the analysis and how we go, what I
want to hear from you today is truly how we can streamline the
process, make sure that the American public has a voice and
that they are heard. I have looked over your testimony, read
much of the background information last night as we were
looking at this, so I want to hear specifically from you, too,
in terms of our 90-day time limit, because that has been
consistently invaded through either procedural motions, is what
I would call it, in asking for the agency for extensions. But
this committee truly needs to make sure that we have an open
and transparent regulatory rulemaking process.
This is the first hearing of this committee on this
particular issue since 2011, so I know that as I am being
joined with the ranking member here to my right, he and I both
agree unanimously that transparency and making sure that the
American people have their voice in it is certainly one of
those things that we both hold very dear and will vigorously
defend. So I would share all of that as we look forward to your
testimony here in just a few minutes.
Before I go any further, I will say there has been a series
of votes on the floor that we had not planned for. The chairman
of the other subcommittee, Mr. Jordan, is actually on the
floor. He will be joining us shortly. But in his stead as
chairman, I would like to just take a moment to announce the
newest member of the Subcommittee on Health Care, Benefits and
Administrative Rules. I am pleased to welcome the gentlelady
from New Mexico, Ms. Lujan Grisham.
I am confident that you not only will be an asset to this
subcommittee, but I personally am looking forward to working
with you, so welcome.
With that, I now recognize Mr. Connolly, the ranking member
of the Subcommittee on Government Operations, for his opening
statement.
Mr. Connolly. I thank my friend, the chair. Sorry I am a
little late. We were a little worried on the floor that there
could be a motion to adjourn, so they asked some of us to stay
behind just a little bit.
The Office of Information and Regulatory Affairs is the
most important, influential, and consequential Federal agency
most Americans have never heard of. No agency comes near OIRA
with respect to the far-reaching authority this relatively
small and anonymous office wields over vital Federal rules that
have an impact on our Nation's economy, environment, and public
health and safety.
OIRA plays a key role in shaping hundreds of important
rules, such as those that enhance the safety of our drinking
water, protect food supply, guaranty buildings are accessible
to the disabled, and protect the homeland, to name just a few
important topics. Yet, despite the powerful impact this agency
has in the lives of all Americans, OIRA operates mostly in the
shadows and, from a good government point of view, greater
transparency is called for.
There is a documented lack of transparency with this small
statutory office housed within OMB. Over the years, the U.S.
GAO, Government Accountability Office, has repeatedly found
that OIRA, under multiple administrations, failed to meet the
laudable transparency requirements contained in the relevant
executive orders that prescribe the principles and procedures
that ought to be followed when conducting regulatory review.
Worse, despite GAO issuing a comprehensive set of
recommendations in 2003 to address these deficiencies, to date,
OIRA appears to have only implemented one of the nine
recommendations made 12 years ago. Thus, when a Federal agency
promulgates a rule, or fails to promulgate a rule, it is
entirely possible that the public, the Congress, which wrote
the underlying statute, will have no idea what entity or
individual is ultimately responsible for the final regulation,
if any at all.
To be fair, enhancing transparency has been a stated goal
of the last few OIRA administrators. Indeed, our witness today,
Administrator Shelanski, has made progress in this area. But I
think he would agree more work needs to be done. There should
be broad bipartisan consensus that the public has a right to
know why OIRA classifies certain rules as major rules; that the
public has a right to know why some rules sit under OIRA review
for two years, when the review was supposed to take only 90
days. Finally, the public also has a right to know who is
weighing in on these regulations and the nature of the
deliberations with respect to them.
Often, the modifications and revisions that result from the
machinations of a rapidly growing cottage industry, known as
shadow lobbying, have as great an impact on an agency's action
as the actual letter of the law we wrote.
In closing, I want to recognize that OIRA boasts an
incredibly hard-working and dedicated corps of career staff. It
is first-rate when it comes to conducting quantitative analysis
that weighs complex economic costs against potential benefits,
and that is a lot of bulwark. As the 2014 draft report to
Congress on the benefits and costs of Federal regulations
demonstrates, OIRA's reviews ensured that in 2014 the annual
benefits of major rules dramatically outweighed the monetary
costs. OIRA should be commended for conducting retroactive
analyses of existing rules that may be outdated or
unnecessarily burdensome and in need of more effective and
innovative solutions.
I want to thank Administrator Shelanski for testifying, and
I look forward to hearing how OIRA will continue promulgating
cost-effective rules and examining what further steps Congress
can take to ensure that regulatory review transparency is
improved in the coming years.
With that, I yield back, Mr. Chairman.
Mr. Meadows. I thank the ranking member.
Just so I can advise the members on my side of the dais, I
will be coming to you for questions before we go on any
further. We probably are going to be interrupted for votes
around 2:45, so we will take a slight recess at that particular
time. We will try to keep it going with two different chairs
and two different ranking members, where we can keep you with
limited time there.
With that, I now recognize Mr. Cartwright, the ranking
member of the Subcommittee on Health Care, Benefits and
Administrative Rules, for his opening statement.
Mr. Cartwright. Thank you, Chairman Meadows, for calling
today's hearing.
I also want to thank our witness, Administrator Shelanski,
for testifying today.
OIRA plays a critical role in the Federal regulatory
process, completing the review of about 500 agency draft rules
at both the proposed and final stages of rulemaking every year.
OIRA is also responsible for ensuring adequate interagency
coordination of draft rules to reduce unnecessary burdens and
costs, safeguarding against the issuance of redundant or
inconsistent regulations.
OIRA's regulatory review functions aim to improve the daily
lives of Americans across our Country in a multitude of ways.
Its crucial oversight of agency rulemaking leads to the
issuance of rules that aim strengthen worker safety standards,
increase access to clean water, lower energy costs, reduce
pollutants, and improve public health protections.
Despite OIRA's key role in helping to address our Nation's
environmental, health, and public safety challenges, some of my
colleagues on the other side of the aisle have referred to the
Federal rulemaking process as a highly flawed system that
punishes job creators and stifles economic growth, so we need
to talk about that. But according to OMB's 2014 draft report to
Congress on the benefits and costs of Federal regulations, the
estimated annual benefits of major rules reviewed by OMB from
October of 2003 to September 2013 ranged from $217 billion to
$863 billion in savings, significantly exceeding estimated
annual costs, which were between $57 and $84 billion.
That said, there has been longstanding criticism against
OIRA for not being transparent enough in its review process,
certainly, and concerns have also been raised by both
Republicans and Democrats about OIRA holding regulations for
long periods of time without offering any reasonable
explanation for the delay.
I share my colleagues' concerns about these lengthy delays
in OIRA's review of regulations and I would like to hear from
you, Administrator Shelanski, today about steps OIRA is taking
to eliminate its backlog and increase transparency, including
whether a lack of adequate resources has contributed to this
problem.
I am also interested in hearing about OIRA's efforts to
engage the average citizen in its rulemaking process. OIRA
enjoys enormous oversight over regulations that touch on nearly
every aspect of our American lives, and I want to ensure that
OIRA provides consumer and environmental protection groups the
same amount of time as it does for lobbyists for industry that
is being regulated.
In January 2011, the President issued Executive Order
13563. Now, this Executive Order directed agencies to give the
public a meaningful opportunity to comment on proposed rules
through the Internet to allow for a minimum 60 day comment
period and to provide online access to the rulemaking docket in
an easily searchable and downloadable format.
I think these are all positive actions by the current
administration to improve transparency and public confidence in
the openness of our regulatory system, but I also believe that
more can be done.
I do thank the chairman again and look forward to hearing
more from Administrator Shelanski about how we can make the
existing regulatory process even more efficient and even more
transparent. Thank you, Mr. Chairman.
Mr. Meadows. I thank the gentleman.
Before we go further, I want to just thank the committee
staff for their work on this particular issue. Obviously, it is
something that is not a household acronym, so it has been very
illuminating. So I want to thank those who have worked on it,
as well as our personal staff.
I will hold open the record for five legislative days for
any member who would like to submit a written statement.
We will now recognize our witness. I am pleased to welcome
the Honorable Howard Shelanski, Administrator of the Office of
Information and Regulatory Affairs at the Office of Management
and Budget. Welcome.
Pursuant to committee rules, all witnesses are sworn in to
testify, so I would ask you if you would rise, please.
If you would raise your right. Do you solemnly swear or
affirm that the testimony that you are about to give will be
the truth, the whole truth, and nothing but the truth?
[Witness responds in the affirmative.]
Mr. Meadows. Let the record reflect that the witness has
answered in the affirmative.
Thank you. You may take your seat.
In order to allow time for the discussion, Mr. Shelanski,
if you would please limit your testimony to five minutes. Your
entire written statement will be made part of the record. You
are now recognized.
STATEMENT OF THE HONORABLE HOWARD SHELANSKI
Mr. Shelanski. Thank you very much, Chairman Meadows,
Chairman Jordan, Ranking Members Connolly and Cartwright, and
members of the subcommittees. Thank you for the invitation to
appear before you today. I am pleased to have this opportunity
to discuss the activities and priorities of the Office of
Information and Regulatory Affairs, OIRA.
As the administrator of OIRA, it is my privilege to work
with a great team, both within the Office of Management and
Budget and across the Federal Government. We are all working to
continue our Nation's economic recovery and employment growth
while protecting the health, safety, and welfare of Americans
now and into the future.
OIRA has a broad portfolio that ranges from coordination of
government-wide information and statistical policy to review of
executive branch regulations to international regulatory
cooperation. The Office reviews collections of information by
the Federal Government to ensure that they are not
unnecessarily burdensome; develops and oversees the
implementation of government-wide statistical standards and
policies; and provides guidance on privacy and confidentiality
policy to Federal agencies.
The largest area of OIRA's work is the review of
regulations promulgated by executive branch departments and
agencies. A set of executive orders provides the principles and
procedures for OIRA's regulatory reviews. Executive Order
12866, implemented across several administrations of both
parties, sets forth standards and analytic requirements for
rulemaking by departments and agencies. To the extent permitted
by law, it calls for agencies to regulate only when the
benefits of a rule justify its costs.
My priorities as OIRA administrator are directly rooted in
the relevant executive orders. One such priority has been to
increase the predictability and transparency of the regulatory
review process. In that regard, during my tenure, we have
ensured timely publication of the Unified Agenda and Regulatory
Plan for agency rulemaking activity each spring and fall.
Of similar importance to clarity and certainty in our
regulatory environment is that rules that come to OIRA receive
an efficient, as well as thorough, review. OIRA must first and
foremost uphold the standards of review that the executive
orders establish. But we have also worked to minimize
unnecessary delays in review. Such delays are harmful across
the board: to those wishing to comment on proposed rules, to
those who must make plans to comply with rules, and to those
denied the benefits of regulation.
Another important OIRA objective is ensuring appropriate
flexibility in and removing unnecessary burdens from Federal
rules. For example, we have worked successfully with the Small
Business Administration and agencies across the executive
branch to minimize the particular burdens that new regulations
might disproportionately impose on small and new businesses,
especially in areas where emerging technologies have the
potential to greatly enhance public welfare.
Existing rules, too, warrant scrutiny to ensure that they
achieve their benefits and goals without imposing unnecessary
costs. Retrospective review is a crucial way to ensure that our
regulatory system is modern, streamlined, and does not impose
unnecessary burdens on the American public.
The Administration's retrospective review efforts to date
will yield savings of over $20 billion over the next five
years, but, as President Obama made clear in remarks at the
Business Roundtable this past December, it is a critical part
of this Administration's regulatory agenda to do an even better
job of finding and reforming regulations that are unduly
burdensome or missing their mark.
To that end, OMB has convened a series of meetings with
various stakeholders, including State and local government
officials, community groups, and representatives from numerous
industries to better understand what approaches, themes, and
particular areas of regulation could most usefully factor into
agencies' retrospective review efforts.
Agencies filed their most recent retrospective review plans
with OIRA last week. OIRA intends to complete its review of
those plans within the next month, after which time they will
be publicly released. OIRA will continue to work closely with
agencies to make additional progress in the review plans the
agencies will file this coming July and through the next two
years.
Finally, OIRA has important responsibilities related to
international regulatory cooperation. We have made progress in
a number of areas with our international partners through our
Regulatory Cooperation Councils with Canada and Mexico. OIRA
has also furthered its international regulatory mission through
coordination with the Department of State and through support
of the U.S. Trade Representative's trade negotiations.
In conclusion, government activities can bring great
benefits to Americans, but it is critical to ensure that
regulations and paperwork do not impose undue burdens; that
Federal agencies ensure privacy and base their decisions on
high-quality evidence; and that beneficial regulation remains
consistent with the overarching goals of job creation, economic
growth, and public safety. These are the central objectives of
this Administration and we look forward to continuing our
efforts to meet these challenges.
Thank you for your time and attention, and I would be happy
to answer any questions you may have.
[Prepared statement of Mr. Shelanski follows:]
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Mr. Meadows. I thank the gentleman for his testimony and
his timeliness. You know, plus or minus two or three seconds,
that is very good, Mr. Shelanski.
I am going to recognize the gentleman from Tennessee, Mr.
DesJarlais.
Mr. DesJarlais. Appreciate that. Thank you, Mr. Chairman.
And thank you, Mr. Shelanski, for joining us today. I
wanted to talk to you today about the issue of agencies taking
steps in order to circumvent the rule review process. I
recently sat down with a group of farmers and leadership from
the Tennessee Farm Bureau in my office here a week or so ago
and they were wanting to discuss the impact of EPA's proposed
Waters of the United States rule.
Like many of my constituents, the farmers in my district
are concerned about the burdensome requirements that this rule
would impose on agriculture providers and businesses. This
regulation would expand Federal authority beyond the limits
approved by Congress. This sweeping new authority granted by
this proposed rule has so far only created confusion and
uncertainty among farmers, ranchers, landowners in my district,
and also a lot of uncertainty, according to the Office of
Advocacy and also the NFIB.
In fact, the NFIB, last year, sent a FOIA request to the
EPA and the Army Corps regarding the Regulatory Flexibility
Act, and wanted a better explanation, and the EPA's response to
the NFIB was that they had no records related to RFA
compliance.
Mr. Chairman, can I ask unanimous consent to introduce
these documents into the record?
Mr. Meadows. Without objection, so ordered.
Mr. DesJarlais. So my question today would be can you
explain how such a costly and sweeping rule has also been
designated as non-significant?
Mr. Shelanski. Thank you very much, sir.
So the Waters of the U.S. rule, which is a proposed rule
that was out for public comment and is now back at the agency
for development into a final rule, was reviewed by OIRA. We
review rules that are significant regulations, so it did
receive a full OIRA review. It will similarly receive such
review when the EPA submits the rule back to our office for
final determination.
One of the reasons for the American system under the
Administrative Procedure Act of having a proposed rule that
goes out for public comment is that we learn a lot during that
period, and I think one of the valuable things about the notice
and comment period on the Waters of the United States rule is
the very concerns that you articulated will have the chance to
become part of the record and to be taken into account by EPA
in their development of a final rule.
And part of what OIRA does when it reviews final rules it
looks to see how the agency has reacted to and addressed
important public commentary. So we look forward to doing so
when that rule comes back to us for final review.
Mr. DesJarlais. I am glad that you are getting that
feedback; that will be very helpful.
Can you provide this committee with documentation relating
to OIRA's oversight of this rule, including the rule's
designation as significant and certification under the
Regulatory Flexibility Act?
Mr. Shelanski. So all of the documentation related to a
rule is actually on our Web site and through the Web site
RegInfo.gov. So when a rule comes in, it becomes public that it
is with OIRA; its designation at that point similarly becomes
public. So when the final rule comes in, that will be publicly
visible, both the timing of the arrival and the designation
that it receives.
Mr. DesJarlais. Okay. Can you explain how rules exceeding
the $100 million threshold end up designated as non-major and
avoiding statutory mandated review by Congress?
Mr. Shelanski. Well, when an agency makes a determination
that a rule is economically significant or not significant, we
do typically review that determination if we think that it is
close to the line. In cases where we are actually reviewing the
regulation, as in Waters of the United States, it may be very
unclear what the costs of a rule may be. We may review the rule
anyway because we think it raises important or novel issues,
even if it is not formally designated as economic significance.
So I would just note that we actually have several forms of
significance at OIRA. Economic significance, but a rule, even
one that may not reach the $100 million threshold, we can deem
significant and call in for review, and that is indeed what we
did with the Waters of the United States rule.
Mr. DesJarlais. Okay. Well, we will certainly be interested
in seeing your results as you get the feedback, because there
is no question in my mind and certainly no question in the mind
of our farmers and farm bureaus and small businesses that this
should be designated as significant. So we look forward to
seeing your review.
Mr. Shelanski. Yes, sir.
Mr. DesJarlais. And thank you for your time.
I yield back.
Mr. Meadows. Let me ask a clarifying point before I
recognize the ranking member, because your testimony right now
says that all those documents and all of that as it relates to
your review of that is online. I don't believe that that is
correct; and that is what the gentleman was asking. So maybe
your answer didn't match his question.
Mr. Shelanski. No, what I meant to say is the fact that a
rule is with us under review and the designation----
Mr. Meadows. So what about in the interim process? You have
been involved in the interim process with the Waters of the
U.S., have you not?
Mr. Shelanski. Right.
Mr. Meadows. So where is that documentation?
Mr. Shelanski. So what we do at the end of a review process
is the agency, and the EPA does this, makes available both the
rule as it came in and the rule as changed after it finished
the review process.
Mr. Meadows. I will wait to my line of questioning. That
doesn't answer the question, because when you have the initial
rule and the final rule, there is a whole lot of the story that
happens in between that we are not privy to your involvement
there. Where is that documentation? Where is the transparency,
I guess?
Mr. Shelanski. So there is a deliberative process that is
undertaken, discussions not just between OIRA and the agency,
but there is an interagency review process in which agencies
are----
Mr. Meadows. Right. We are well aware of that. I guess what
I am saying is his question was specifically with regards to
the information, the audit trail, so to speak, of your
involvement. Where are those documents?
Mr. Shelanski. There is not a set of documents.
Mr. Meadows. So you don't document it.
Mr. Shelanski. No, we do not.
Mr. Meadows. You just get involved and have verbal
conversations?
Mr. Shelanski. There is a lot of verbal conversation, there
is a lot of discussion, and then there is a written pass-back,
back and forth that goes on between the agencies.
Mr. Meadows. All right, so let's say the emails. Where are
those emails? Can you provide those specifically with regards
to that particular, your analysis and your interrogatory with
them? Can you provide that to the committee?
Mr. Shelanski. We do not make public----
Mr. Meadows. We are not public. You want to make that to
us?
Mr. Shelanski. With all respect, sir, with respect to the
rulemaking process, we do not divulge parts of the deliberative
process outside the office.
Mr. Meadows. But you are not part of the deliberative
process; you are part of the analysis, according to the
statute.
Mr. Shelanski. But what you are asking for is the
deliberative process that we engage in.
Mr. Meadows. Well, we will come back. The ranking member
has been very gracious, so I will be glad to recognize the
ranking member, Mr. Connolly.
Mr. Connolly. Thank you, Mr. Chairman.
There is a clear definition of economically significant
rules, but classifying major rules that are significant for
other reasons, health, safety, environment, are not as well
defined. GAO, last September, released a report that discussed
this very issue. The report found that for the majority of the
109 significant rules that it reviewed, 72 percent included no
explanation of why the rule was designated as significant.
What, if anything, are you doing to try to respond to that
critique?
Mr. Shelanski. Typically, the reason that we would
designate a rule as significant: it raises a novel issue or
because another agency other than the agency that has
promulgated the rule has asked us to convene an interagency
rule.
Mr. Connolly. Yes, but GAO found that 72 percent of the 109
it reviewed had no explanation. You are telling us now there
may be lots of reasons, and I agree with you, but isn't the
public entitled to know why you deemed it significant?
Mr. Shelanski. I mean, we really often, if an agency, for
example, says we would like to comment on another agency's
rules, I don't know what reason we would give other than
interagency review. But we could certainly look into ways to
provide that explanation, but as a general matter we----
Mr. Connolly. Well, maybe I am misreading you, Mr.
Shelanski, but you are acting as if what I just read to you was
news to you. Were you not aware of the GAO report last
September?
Mr. Shelanski. Yes, I am aware of the----
Mr. Connolly. And do you agree with its findings or do you
disagree with it?
Mr. Shelanski. You know, we are in the process of
discussing the GAO's report, and I don't have any further
comment on that right now.
Mr. Connolly. Okay. Well, our committee may have some
comments about it.
There have been calls for more transparency and all of us
have alluded to that, and I assume you agree, looking at your
own agency's history, more transparency might be in order?
Mr. Shelanski. Well, so we have taken certain steps to try
to make aspects of our process more transparent. Discussions
between staff members in my office and agencies clarifying
questions, trying to understand what the rule is, trying to
understand why an analysis was done a certain way are part of a
deliberative process that I think has to be able to occur with
the staff not knowing that every email, every discussion is
going to be under the glare of the microscope. On the other
hand, we have done a number of things and we are going to
continue to take steps to make our process more transparent.
You alluded in your opening remarks, sir, to knowing who is
coming to OIRA to meet. Well, we do post every party that comes
in to meet with our office on a rule that is under review.
Under Executive Order 12866, we do not initiate such meetings,
but we are required to take all-comers; it can be an
individual, a corporation, an advocacy group, an environmental
group; and, indeed----
Mr. Connolly. Even members of Congress?
Mr. Shelanski. Even members of Congress.
Mr. Connolly. Well, Lord almighty. Look at that.
Mr. Shelanski. You guys are some of my best customers.
[Laughter.]
Mr. Shelanski. So we are required to take all comers in
this regard; and we post not only who has come to see us, but
any paper that they submit to us. In fact, you mentioned the
openness of this process to environmental groups, advocacy
groups, in addition to industry and the lobbyists you referred
to. We welcome absolutely everybody and the door is there to be
knocked on; we turn down no meeting requests
Mr. Connolly. Well, I guess the point is in my opening
statement I referred to you are one of the most powerful
agencies nobody has ever heard of. Assuming that
characterization is fair, that puts maybe more burden on you to
be a little bit more accountable and transparent than,
historically, the agency has been. I am glad we are posting who
asks to meet with you and who does meet with you. I do think,
however, when something has been deemed significant, and 72
percent of those reviewed by GAO there is no explanation, I
think we can do better in terms of responding to the public.
My time is running out, but let me ask one more question in
this regard. There currently, if we are right, 34 regulatory
actions that have been in OIRA review for more than 90 days.
That is your goal, to do it within 90 days. You can go on the
Web site and see the length of time the rule has been at OIRA,
which is good, but there is no information about why that rule
has been under review well beyond the deadline; there is no
explanation for why the delay. Why not, and are you working on
that?
Mr. Shelanski. So there are a number of things when a rule
comes in to review for OIRA. So the one thing I would note is
that there isn't a really one-size-fits-all review process, and
90 days is sometimes inadequate. But one of the things that
happens very early in the review process is that the rule goes
out for interagency comment. And we, unfortunately, do not have
the authority to compel that commentary on as fast a timeline
as we would often like, and when you have a lot of agencies
commenting on a particular rule, it can take some time to get
that feedback.
Moreover, once we incorporate that feedback and retransmit
it to the agency, the rulemaking agency, we have no control
over the amount of time that that agency takes to bring the
rule back to us. So, to be perfectly frank, long periods of
time can go by where the rule is not in fact at OIRA; it is
under review, but it has been passed back for further work,
consideration, analysis by the agency.
Mr. Connolly. Mr. Shelanski, let me just end on this note.
That is a perfectly rational explanation, so post it. And oh,
by the way, by posting it, saying, you know, agency X is still
reviewing it after our review, you put a little pressure on
them to maybe accelerate their review, because they are now
under scrutiny.
When I was chairman of my county, I started a multi-year
transportation plan for spot improvements, and I put up every
project we were going to fund; I put up how much it was going
to cost; I put up when we were proposing to have it done; and
if there was a delay, we posted why to make myself accountable.
And you know what? You would be amazed at how quickly the
bureaucracy moved knowing that there was that public
accountability.
Thank you, Mr. Chairman.
Mr. Meadows. I thank the gentleman.
Votes have been called, but we are going to try to go ahead
and hit very quickly. I am going to go ahead and recognize the
gentleman from North Carolina, Mr. Walker.
Mr. Walker. Thank you, Mr. Chairman. We will try to do this
efficiency as possible.
If I have time, I want to get to talk a little bit about
the inability, it seems, of the department to return the
deficient draft regulations. It seems to a vital part of that
and there seems to be very long delays following that.
But I first want to hit an area that, in doing my reading,
is concerning me. Evidence suggests that leading up to the 2012
election, Mr. Shelanski, the White House instructed OIRA not to
complete reviews and finalize rules before the new year. My
question would be how many times has your office delayed,
reviewed, modified a rule, altered your review, or have taken
any other action steps in response to directions from the White
House?
Mr. Shelanski. So part of the interagency review process
would incorporate other components within the executive office
of the President; the policy councils, they get to weigh in.
But in terms of instruction of that sort, I was not
administrator in 2012, but my observation is that a lot of big
rules happened right through the election cycle in 2012; the
mercury standard, the CAFE standard for vehicles. So I am not
aware of any slow-down and certainly have not been instructed
myself to slow down rulemaking.
Mr. Walker. Well, then let's talk about specifically, let's
use your words, slow-down here. In 2012, OIRA review averaged
about 80 days. But it has now jumped to an incredible 140 days.
What do you account for that?
Mr. Shelanski. Actually, our average review time is quite a
bit shorter than that. Rules submitted in the last six months
were well down under our normative time. I would also note that
the number of rules under extended review has dropped
dramatically since the beginning of 2013, and during my tenure
over the last 18 months has continued to drop substantially.
There are many fewer rules that have been under review for 200
days and even over fewer over 90 days.
Mr. Walker. Can you talk about the action steps that have
led to what sounds like you are sharing has been successful?
Can you tell me a little bit about that? What steps have you
taken to cause the low amount of time?
Mr. Shelanski. Well, one thing that we have tried to do is
to push agencies to work with us and to move quickly. We have
devoted substantial resources to trying to move things along
more quickly. It has been a priority on my part to focus on
sort of first-order concerns with the rules. And I think also
that we have just had very good cooperation from the Federal
departments and agencies in the executive branch in working
with us to move things forward.
Mr. Walker. Okay, then answer this question for me, if that
is the case. OIRA has only issued one letter of return, a
return letter during the entire six-plus years of the Obama
Administration. How do you account for that?
Mr. Shelanski. Well, I have issued no return letters. I can
explain why I have not issued any return letters. First of all,
a return letter is a fairly strong-arm tactic, and I would only
do that if negotiation with the agency over the substance of
the rule or an alternative to a return letter failed.
We have actually been very successful in getting agencies,
on numerous occasions, to withdraw rules that simply were not
workable. That has happened several times in the time that I
have been in office. That is a negotiation over something that
is not going well with a rule and the agency's determination
that they want to take it back for further work on their own
clock.
In addition, we have been able to break through a lot of
differences and find lots of compromises amongst different
agencies that were disagreeing on a rule, and I have not had a
need to issue a return letter.
Mr. Walker. So when was your start date?
Mr. Shelanski. My start date was July of 2013.
Mr. Walker. And in that 19, 20 months, there is not a
single time that you feel like that you have needed to issue a
return letter?
Mr. Shelanski. There hasn't been one occasion where either
the agency has decided not to take the rule back on its own or
we haven't been successful in finding a solution.
Mr. Walker. Okay. Thank you.
I yield back, Mr. Chairman.
Mr. Meadows. Mr. Shelanski, to follow up on Mr. Walker's
question, how does that increase transparency if you are making
these interagency deals in terms of you are basically going
back and forth and getting them to withdraw a rule? Is that
what you are saying?
Mr. Shelanski. So the way a rule----
Mr. Meadows. Yes or no? Is that what you are saying?
Mr. Shelanski. No.
Mr. Meadows. All right.
I will recognize Mr. Cartwright.
Mr. Cartwright. Thank you, Mr. Chairman.
Well, Administrator Shelanski, we are talking about Federal
rules and the making of Federal rules, and I don't think I go
too far when I say most Americans are frustrated by that,
because we are talking about rules that govern their conduct,
rules that govern their places of employment, rules that apply
to everybody and rules that have to be followed or else they
are breaking the law, and rules that aren't made by the United
States Congress, rules that are made by people whose votes
don't appear in our local newspapers. So questions of
transparency are important to people, and I want to ask you
about that.
During its review process, OIRA meets with all kinds of
stakeholders, allowing many opportunities for public
participation, and you have made that clear; everybody is
invited and your door is open to all the stakeholders. But I
have some concerns, and I said this before in my opening, about
industry domination of those meetings. You know, there is a
sense in America that the fox is guarding the hen house in a
lot of this rulemaking.
Administrator Shelanski, are you aware of a November 2011
white paper from the Center for Progressive Reform entitled,
Behind Closed Doors at The White House: How Politics Trumps
Protection of Public Health, Worker Safety, and the
Environment? Are you familiar with that white paper?
Mr. Shelanski. I have heard the criticism of the Center.
Mr. Cartwright. Well, the authors of the report examined
the records of 1,080 meetings held at OIRA from October 16,
2001 all the way to June 1, 2011. These meetings consisted of
5,759 appearances by outside individuals. The report found that
industry representatives outnumbered public health and safety
advocates by almost four to one.
Among the 30 organizations they found that met with OIRA
most frequently, 5 were national environmental groups, NRDC,
Environmental Defense Fund, Sierra Club, Earth Justice, and
Consumer Federation, 17 were well-run and well-funded
industries and trade associations such as ExxonMobil, the
American Petroleum Institute, and the National Association of
Manufacturers; and another 8 of them were lobbying firms.
Administrator Shelanski, are these findings consistent with
what you have seen during your tenure at OIRA?
Mr. Shelanski. Thank you, Mr. Cartwright, for your
question. I think the Center for Progressive Reform has made
the classic error of confusing correlation with some form of
causation. We at OIRA do not have discretion to turn down
meetings. Our door is open; anyone who knocks we let in. We
cannot control the fact that more industry groups choose to
come and meet with us than other kinds of organizations.
I will tell you that we have made every effort to encourage
organizations, indeed, the Center for Progressive Reform itself
and many others, to please come see us on any rule----
Mr. Cartwright. That is my next question. You have said the
doors are open, but the doors are open is different from
inviting people, being active and inviting people in. Here is
the question: What, if anything, is being done during the
current administration and in your tenure to promote a more
balanced public engagement approach to OIRA's review process?
Mr. Shelanski. With respect, I think it would be
inappropriate for OIRA to try to tip the scales in any
direction for who comes to see us and who comes to weigh in on
rules. What I have tried to do is to make clear to everybody
that they are welcome and that we want to hear from them; and
it is for that reason that I have met with and, indeed,
addressed, groups like Public Citizen, Center for Progressive
Reform, labor unions, to make clear that the door is just as
open to them.
Indeed, when Director Donovan and I held our stakeholder
meetings on retrospective review, we specifically invited such
organizations to their own meeting so that we could hear their
viewpoint. Not only is the door open, but, to the extent
appropriate, we have encouraged and made clear that it is open.
Mr. Cartwright. Well, thank you for that.
With that, I yield back, Mr. Chairman.
Mr. Meadows. I thank the gentleman from Pennsylvania.
We are going to recess for 10 minutes. So the committee
stands in recess.
[Recess.]
Mr. Meadows. We are going to try to be sensitive to your
time. I understand that we have one of the ranking members on
their way over here huffing and puffing, so the committee will
reconvene, and I thank the witness for his patience.
I am going to go ahead and recognize the gentleman from
Georgia, Mr. Hice, for five minutes.
Mr. Hice. Thank you, Mr. Chairman.
And thank you for joining us today. I have a few questions.
I know you have already commented somewhat on this, but
relating to the Waters of the U.S. rule. I am just curious. My
understanding is that this was supposed to be out by April of
2014. Is that correct? We have heard that.
Mr. Shelanski. So I don't recall what the exact agenda
dates were for the Waters of the U.S. rule, sir.
Mr. Hice. Okay, well, it is my understanding and what we
have been told is that that was supposed to come out last year,
and, of course, it didn't, so that raises a lot of questions as
to where all of this stands; and, of course, the public comment
period of time is over. So can you assure us that there will be
a full review and that the issues that are of interest, the
comments to the public, will be addressed in their entirety?
Mr. Shelanski. Yes, Mr. Hice, I can give you that
assurance. The rule is with the Environmental Protection Agency
for development right now into a final regulation. That rule
will come to my office for review and the rule will receive
full review under the executive orders.
Mr. Hice. It will have a full review?
Mr. Shelanski. Yes.
Mr. Hice. And you can assure us that the comments will be
addressed?
Mr. Shelanski. One of the things that OIRA does when it is
reviewing a final regulation that has been out for notice and
comment is to look at how the agency has taken into account the
public comment; and we will do that on the Waters rule as we do
with every rule.
Mr. Hice. Okay, thank you. The President evidently has come
out stating that as far as having a review of the guidance
documents, he is in favor of that. The Center for Progressive
Reform, on the other hand, opposes the review from the guidance
documents. I am curious to know from you if you think the
review of the guidance document is a worthwhile endeavor.
Mr. Shelanski. So we at OIRA are interested in reviewing
anything that an agency does that has regulatory effect, and
whether they call that vehicle a regulation, a guidance, a
notice, if it creates new regulatory burden and effect on
businesses or farmers or any stakeholders, we want to review
it.
So we at OIRA do review guidance documents, sometimes at
the request of agencies just because they want to have
interagency review of the guidance document; other times
because they submit it to us and we find that there is some
regulatory impact that warrants our analysis and review. So I
side with looking at guidance documents where they do create
such obligations on stakeholders and the public.
Mr. Hice. Okay, so you would conclude, then, that it is a
valuable use of your time and OIRA to review the guidance
documents.
Mr. Shelanski. We don't review all guidance documents;
there are many, many guidance documents that many different
parts of government issue. Typically, when agencies are issuing
a guidance document that is going to have an effect on industry
or folks out there in the public, they will submit it to us and
we will review it.
Mr. Hice. What is the guideline that you determine whether
or not you look at guidance documents or not, is it the request
of various committees or what have you, or how do you make that
determination?
Mr. Shelanski. Usually it is the agency that will ask us to
look at a guidance document. Other times we will know that an
agency is planning to issue a guidance and we will say, you
know, that relates to a regulation that we reviewed, we would
like to have a look at it.
Mr. Hice. So there is no official policy determining
whether or not you will look at guidance documents.
Mr. Shelanski. We have a significant standard for
guidances, just as we do for rules. Every little administrative
guidance document we may not even be aware of, but we certainly
wouldn't have the time or resources or, frankly, would not be
worth the time or resources, to review. But if we know of a
significant document and it is one that the agency wants us to
review, we will typically review it.
Mr. Hice. Is there a possibility that some significant,
potentially significant guidance documents are not looked at
and slip through the crack, so to speak?
Mr. Shelanski. Well, there are some guidances that it
wouldn't be within our purview to review.
Mr. Hice. Such as?
Mr. Shelanski. You know, there are agencies whose guidances
we don't review or guidances that are really for internal
functioning of an agency or government entity. We very often
don't review those because those aren't having impact on
stakeholders and the public.
Mr. Hice. But the guidances that, in effect, impact the
public in whatever different ways that in essence become laws,
regulations, can you assure us that all of those are looked at?
Mr. Shelanski. We certainly try to look at guidances that
are in themselves creating new regulatory effect. Many
guidances articulate an intent to do future rulemakings, and we
may not review them because we know we will review the rules.
Mr. Hice. Okay, sir. Thank you.
I yield back. Thank you.
Mr. Meadows. I thank the gentleman from Georgia.
Let me follow up, Mr. Shelanski. What agencies? You said
there are some agencies you don't review their guidance. What
are those agencies?
Mr. Shelanski. We don't typically review guidance,
interpretive guidance documents, for example, of the Internal
Revenue Service. We don't review, typically, guidance documents
of independent agencies.
Mr. Meadows. So no independent agencies.
Mr. Shelanski. We do not review independent agencies.
Mr. Meadows. All right. So Department of Commerce?
Mr. Shelanski. Department of Commerce is an executive
branch agency.
Mr. Meadows. So do you review any rulemaking that comes
from them?
Mr. Shelanski. Yes, we do. We review many rulemakings that
come out of the Department of Commerce.
Mr. Meadows. Guidance?
Mr. Shelanski. If there is a guidance document that we are
aware of that has regulatory effect, we----
Mr. Meadows. I guess what I am trying to get at, without me
guessing which ones, which agencies do you exclude from
reviewing guidance other than the IRS?
Mr. Shelanski. Independent agencies.
Mr. Meadows. And no others?
Mr. Shelanski. No others that I can think of off the top of
my head.
Mr. Meadows. All right, so part of your process is really
to look at guidance with the EPA, for example.
Mr. Shelanski. The answer is yes, but not every guidance
that the EPA might issue.
Mr. Meadows. So internal guidances you don't; external
guidances you do. So if they are giving a guidance, because
what is happening, as you well know, is that there are rules,
there are guidances, but depending on who you are talking to,
they treat the guidance as a rule. Would you agree with that,
in practice?
Mr. Shelanski. What we try to do is----
Mr. Meadows. Yes or no, do you agree with that or not?
Mr. Shelanski. I agree that there are sometimes guidances
that have regulatory----
Mr. Meadows. That get treated as rules.
Mr. Shelanski. Yes. And we try to review those.
Mr. Meadows. All right. How do you make sure that you
review all of those if they are being used as a rule? Because
what I found is with guidances, the agency many times will use
it as a rule if it is to their advantage, and if it is not
being implemented, then they say, oh, well, that is just
guidance, it is not a rule. How do you deal with that?
Mr. Shelanski. Well, we deal with the situation where an
agency is issuing a guidance that purports to interpret a rule,
and we look to see whether it is extending the rule, whether it
was adding burdens that had not been commented on, that were
not part of the rulemaking process.
Mr. Meadows. All right. So tell me how you use the Unified
Agenda to promote transparency, or does it?
Mr. Shelanski. Well, the objective of the Unified Agenda
and Plan--there are two different documents.
Mr. Meadows. Right.
Mr. Shelanski. The Agenda is a broad document that will
contain things that are a little more far-reaching into the
future; the Plan is really the more focused document on what
the agency intends to do over the next year. What we try to do
is make sure that all rules and significant guidances are
listed there so that the public----
Mr. Meadows. So when they will be coming up so the public
will know about them.
Mr. Shelanski. Exactly.
Mr. Meadows. All right. So it is important that you make
that as transparent as possible so that the general public can
know about it.
Mr. Shelanski. That is why we have worked very hard over
the past couple of years to get that on track for its
publication both in the fall and the spring.
Mr. Meadows. Well, it is curious you say that.
If you will go ahead and put up the slide.
[Slide.]
Mr. Meadows. Because if that is truly the agenda and that
is truly your responsibility, let me show you this particular
chart. What we have gone back to is the spring of 2012, when it
wasn't even issued, the Unified Agenda wasn't. So you can say,
well, that was not really your responsibility at that
particular point. But let me tell you the concern that I have
is each time that you publish it, it is the Friday before
Christmas, the day before July 4th, the day before
Thanksgiving, the Friday before Memorial Day, and the Friday
before Thanksgiving.
And if you truly want transparency, why are you rolling
this out at a time when people wouldn't really be focusing on
it? That is what we call the Friday afternoon data dump. But it
is really what you are doing with regards to the Unified
Agenda. Why would you do that?
Mr. Shelanski. Well, with all respect, sir, the Agenda
remains posted.
Mr. Meadows. I understand. But when it comes out, it is
newsworthy. Maybe you can help me a little bit further, then,
with all due respect. Why do we have question marks under the
spring of 2014 and the fall of 2014 in terms of those other,
the Plans, as you talked about? That is under your watch.
Mr. Shelanski. So I am sorry, both of those were issued. I
don't understand. The Plan and Agenda were both issued in the
fall and the spring. I don't see what you are referring to.
Mr. Meadows. Okay, from what I understand from counsel,
that is a memo that is basically saying on how to respond, not
that you put it out.
Mr. Shelanski. Oh, the memo to the agencies and the
deadline for agency plans? Those were issued in each of those
times, so I do not have any knowledge of why your slide has
question marks.
Mr. Meadows. Okay. Well, Mr. Shelanski, I guess the concern
that I have is we have asked you for those, the committee has,
and you haven't responded.
Mr. Shelanski. I am sorry, you have asked me for what, sir?
Mr. Meadows. For those documents. And you say you have
published them. But we have asked for them and you haven't----
Mr. Shelanski. The memo to the agencies for the Plan and
Agenda were duly issued. We received responses and we posted
those Plans and Agenda. It may be that it happened before
holiday weekends or near holidays, but they were in the fall,
they were in the spring. Everyone knew they were coming; they
were well covered and they remain posted.
Mr. Meadows. I guess my question, and I see the ranking
member has come back, so we will go to another line of
questioning here, you mentioned earlier with regards to the
emails, and when I was asking all of that you said that we are
not entitled to that. Under what statute or are you claiming
executive privilege on why we would not have those?
Mr. Shelanski. Sir, let me clarify. I am not claiming
executive privilege at all. We at OIRA are part of a review
process prior to publication of a rule Prior to the point where
the proposed rule, where it goes out for public comment, we are
part of a deliberative process where the integrity of this
process, the honest discussion and deliberation between staff
at OMB and OIRA, staff and the agencies has to be able to
occur.
We do post, just to be clear. Everyone can know what the
rule looked like when it came into OIRA. That is not hidden
from view. Everyone knows what the rule looks like when it goes
out. There is docketing on everything that goes back and forth
on Clean Air Act rules under the statute, so that is quite
clear. And in terms of staff emails and things like that, we
don't discuss those because they are part of a deliberative
process and they encourage honesty and integrity in the
discussions between staffs of agencies and OIRA.
Mr. Meadows. So your testimony here today is that keeping
that information from the public encourages honesty and
transparency. Is that your testimony today?
Mr. Shelanski. It encourages staff to talk honestly with
each other, to ask hard questions of each other, to discuss
what might be problems or incompleteness in a rule. It is worth
making clear again that we are OIRA are just part of the review
process.
Mr. Meadows. All right, so let me close with this, then.
Can you send us a list of either pre-proposed rules or other
rules that are undergoing the informal review process? Can you
send us a list of those rules?
Mr. Shelanski. I don't know what you are referring to when
you talk about the informal review process.
Mr. Meadows. Just all of them. Can you send us a list of
those that are in the informal rulemaking process or those that
are about to be proposed that they are asking you to weigh in
on? Because you get comment in that deliberative process.
Mr. Shelanski. No, those are rules that are formally under
review, sir.
Mr. Meadows. So your testimony here today is that you never
engage in dialogue back and forth on an informal rulemaking
process?
Mr. Shelanski. Sir, we don't have an informal rulemaking
process. Agencies make rules.
Mr. Meadows. Do you engage on informal rules-making? Yes or
no?
Mr. Shelanski. Again, I don't know what you are referring
to when you refer to informal rulemaking.
Mr. Meadows. So there is never an informal process in the
deliberative process?
Mr. Shelanski. There are times when agencies will come to
brief us on a rule that is under development.
Mr. Meadows. That is informal.
Mr. Shelanski. Well, the rule is being developed by the
agency. I assume it is part of a formal rulemaking process, so
that is why I am not quite sure what you mean by informal. They
will, on occasion, come and brief us and say----
Mr. Meadows. Okay, what I am talking about is before the
rule is proposed, do they have discussions with you, Mr.
Shelanski? It is very clear. Yes or no?
Mr. Shelanski. Sir, before it is submitted to us for review
or before the agency publishes it as a proposed rule?
Mr. Meadows. Before they publish it as a proposed rule. Do
they have discussions with you?
Mr. Shelanski. Of course they do, because then it is a
formal review process. It has been submitted to OIRA for
review.
Mr. Meadows. So there is a formal review before they
propose the rule.
Mr. Shelanski. Correct. Proposed rules, NPRMs, are reviewed
formally by OIRA.
Mr. Meadows. So can we get those documents?
Mr. Shelanski. Excuse me?
Mr. Meadows. I said can we get those documents.
Mr. Shelanski. The documents you can have are the rule that
they submitted to us and then the rule that they published so
you can see what changed in that process. In terms of emails
and interim discussions amongst staff, we do not disclose
those.
Mr. Meadows. All right, thank you.
I will recognize the gentleman from Pennsylvania for a
second round of questions.
Mr. Cartwright. Thank you, Chairman Meadows.
Again, Administrator Shelanski, thank you for being here. I
want to talk about delays, and you have touched on it a little
bit, but delays in OIRA's regulatory review process.
OIRA has been criticized by members of Congress on both
sides of the aisle because certain rules have been under OIRA
review for longer than 90 days. The 90-day deadline for OIRA to
complete its review of final rules was set by executive order
in 1993 and reaffirmed by President Obama in 2011.
In June of 2013, several Senate and House members,
Democrats, wrote to the then director of OMB, Sylvia Burwell,
expressing concern about a number of rules that had been under
OIRA review for well beyond that 90-day limit, and,
Administrator Shelanski, I too am concerned about lengthy
delays in OIRA's regulatory review process.
You have touched on a little bit already, but I want you to
elaborate on what the factors are that cause OIRA's review
process to go beyond the 90-day period. Will you do that?
Mr. Shelanski. Yes. Thank you very much, Mr. Cartwright. So
let me begin by just framing the issue.
I think that the reduction of extended review periods has
been one of the success stories of OIRA over the past couple of
years. We have very few rules, and especially compared to what
the situation was when the letter was written to then Director
Burwell, that are under extended review and, on average, we are
meeting our normative time. In fact, we are getting a lot of
rules reviewed, I think, very effectively. And it has been part
of my objective to move rules as quickly as we can.
As to the factors that can lead that not to happen on some
occasions, there are several. One of them is simply this: some
rules, as you no doubt know, are extremely complex. This
doesn't necessarily correlate with the length of a rule or the
number of pages of a rule; but some rules, just the underlying
analysis and what the rule is trying to do, and our ability to
evaluate whether the rule is going to achieve its objectives in
a cost-effective way, can be a very difficult process. So the
90-day time period is just simply not possible for some rules.
Mr. Cartwright. Because of complexity.
Mr. Shelanski. Because of complexity and the difficulty of
working through the rules.
I would also note that the review process is really a very
collaborative process. It is not a case where a rule
necessarily comes in and then, in one whole big piece, gets
sent back to the agency and then we wait for it to come back;
there is ongoing discussion, there are pieces of the rules that
are worked on. Sometimes the agency itself will discover that
there are issues with the data or the analysis it has used. So
that factor of just working out difficult problems is probably
the one that most centrally contributes to longer rulemaking
periods, but there can be other ones.
Agencies will often have their priorities jumbled by
intervening events. They may decide to de-emphasize a rule as a
priority for a period of time, so a rule may take a back seat
at the agency for three or four months. Or the agency may say,
hey, OIRA, can you wait on that rule that we already sent you
and jump this other one in line? So we have the rule for that
period of time. So there are a number of factors that really
can figure in.
And then other times, as I think I alluded to before, there
are rules that really affect multiple agencies, and sometimes
it can be very hard to find exactly how the puzzle piece fits
with different agencies' statutes and regulations, so that can
add complexity and time to the rulemaking process.
There can be a trade issue under the WTO that requires
significant analysis by counsel. That can take a long period of
time.
What I can assure you is that the OIRA staff are really
highly efficient and work as quickly as they can. We don't want
rules on our desks for longer than the normative time, and we
work very hard, and I think it shows in the success we have had
over the past couple of years, success that started in the
months prior to my arrival at OIRA and that I have been glad to
be able to maintain and continue in getting the extended review
periods down.
Mr. Cartwright. May I ask you to share some of your
benchmarks with us? You may not have them with you today, but
will you send us some of your benchmarks that you have been
hitting, as far as measurable goals in reducing the number of
rules under review past the 90-day period?
Mr. Shelanski. I would be happy to follow up with you, sir.
Mr. Cartwright. Finally, you talked about complexity as one
of the factors. Administrator Shelanski, does OIRA have
adequate resources to perform its regulatory reviews? In other
words, where complexity is slowing you down, would additional
resources help?
Mr. Shelanski. You know, when it is a question of
complexity, it is really just working through hard issues. I
don't think that that is a case where I would point to the need
for additional resources. We have been able to do a pretty good
job. We have a really hardworking staff. We have been able to
retain really excellent people at OIRA.
I think, look, all of OMB, we are a small office overall,
has been, I think, straining against resource constraints to do
the jobs that it does, so we at OIRA I think are no different
from other components within the Office of Management and
Budget, but I think we have the tools we need and we have been
able to do pretty good job. That is why we have been able to
reduce the number of rules under extended reviews, just getting
our processes working well and having people work very hard.
Mr. Cartwright. Well, thank you for that.
Mr. Chairman, I yield back.
Mr. Meadows. I thank the gentleman from Pennsylvania.
The chair recognizes the chairman of the Committee on
Health Care and Government Relations Subcommittee, Mr. Jordan.
Mr. Jordan. I thank the chairman.
Mr. Shelanski, Government should be as transparent as
possible. Would you agree with that?
Mr. Shelanski. Yes, sir.
Mr. Jordan. I mean, when we make laws, that is why we have
debate; that is why we have a Congress; that is why we have
elections. We want it to be as transparent as it possibly can
be. And that is what OIRA is all about, right? The agencies
have certain rules that they put together. You don't
necessarily look at the rule itself so much; you look to make
sure they did the process right, the transparency process, and
they followed what they are supposed to do when they arrived at
the rule they arrived at, is that right?
Mr. Shelanski. We look very closely at the substance.
Mr. Jordan. You look closely at the substance as well. But
mostly the process, right?
Mr. Shelanski. No.
Mr. Jordan. Both of them? Even better.
Mr. Shelanski. Both of them----
Mr. Jordan. Even better. All right. So the General
Accounting Office just issued a report where they talked about
the number of agencies who issue rules without public notice
and without public comment. The report is entitled Agencies
Often Publish Final Actions Without Proposed Rules, dated just
last month, February 26, 2015. And in that report they say that
the OIRA staff have regularly questioned agencies' use of the
good cause exception.
So I just want to make sure I understand this completely.
Transparency is the norm; that is what we want. When agencies
make rules, they are supposed to have a public notice, public
comment period, correct?
Mr. Shelanski. Correct.
Mr. Jordan. All right. But there are exceptions to the
Administrative Procedure Act where you don't have to
necessarily do public notice and public comment. Is that all
accurate?
Mr. Shelanski. There are some exceptions, correct.
Mr. Jordan. Some exceptions. Right. And the GAO is saying
we have too many of those, too many times that is happening.
This is their report. But they said when it does, your staff
has assured GAO, and I am quoting directly from their report,
``OIRA staff have regularly questioned agencies when they use
the good cause exception.`` Is that accurate?
Mr. Shelanski. So let me--the answer is yes, it is
accurate.
Mr. Jordan. Okay, so I just want to be clear. When agencies
say we are not going to do the most transparent way, we are
going to deviate around the normal process. There is an
exception for not having public notice, public comment. But you
look at that when they do those exceptions, correct?
Mr. Shelanski. So let me tell you what we do.
Mr. Jordan. I want to know if that is a yes or no, though,
if you could.
Mr. Shelanski. There are times when we have a basis for
questioning that; there are times when we do not. There are
statutes that authorize the use of what are called interim
final rules or direct final rules----
Mr. Jordan. The report says you regularly question
agencies' use of good cause exception. So when they deviate
from the process, you regularly ask them questions. What I want
to know is, in those situations where you don't, is that just a
handful of times, is it 10 percent of the time? What is the
time?
Mr. Shelanski. So the times when agencies seek to get
around public comment and not to issue a notice of proposed
rulemaking, but to go directly to some kind of final rule, are
very rare.
Mr. Jordan. Okay, very rare.
Mr. Shelanski. All right, now, I want to get to the
specific example that has just been in the news just this past
month. The Bureau of Alcohol, Tobacco and Firearms has a recent
proposal to ban certain type of ammunition. Are you familiar
with this?
Mr. Shelanski. No, sir, I am not.
Mr. Jordan. Okay. And they have said they are not going to
follow the normal process, the most transparent process; they
are going to deviate from that and they are not going to have
public notice and public comment. And they are citing for good
cause, that notice and public procedure are impractical,
unnecessary or contrary to public interest. What I want to know
is has OIRA given the ATF the thumbs up to follow the exception
and not do the norm, the most transparent thing, and have
public notice, public comment.
Mr. Shelanski. So the first thing I would notice is OIRA
does not review all Federal rules, all executive branch rules.
There are thousands of such rules. We review about 500 a year.
Mr. Jordan. That is fine.
Mr. Shelanski. It is very possible----
Mr. Jordan. But I am asking about one in particular. I am
asking did you review this. Did you say to ATF, it is okay if
you don't follow the normal public notice, public comment?
Mr. Shelanski. So it would not be our place to say that to
ATF if that rule was even ever submitted to OIRA. I should make
clear when an agency does submit a rule to us that it seeks to
do by a means other than the standard APA process, that is when
we have occasion to question that agency.
Mr. Jordan. So you have had no influence, no say on ATF's
decision not to follow public notice and public comment. Do you
expect to have any say in their decision not to follow public
notice, public comment?
Mr. Shelanski. As I say, I am not familiar with this
particular regulation, so I cannot comment.
Mr. Jordan. Well, lots of Americans are familiar with it,
Mr. Shelanski.
Mr. Shelanski. But what I will tell you is that any such
determination by an agency is judicially reviewable under the
Administrative Procedure Act, and lots of Americans, as you put
it, would have recourse to the course to challenge that
determination.
Mr. Jordan. That is after the fact. What you are supposed
to be is on the front end. I know that; everybody knows after
the fact we can take action, but that is costly, that takes
more time. The whole idea is that on the front end we are
supposed to get it right. That is why I am asking you. Do you
plan to check out this rule?
Mr. Shelanski. It is not either the role or the scope of
OIRA to go to every agency for every rule in the Federal
Government and to second-guess their process.
Mr. Jordan. If I could, Mr. Chairman, then I will stop.
But I am reading from the GAO report which says your staff
regularly questions agencies' use of the good cause exception.
Here is an agency using the good cause exception and you are
telling me we have not questioned them and we never plan to
question them, and oh, by the way, if you don't like it,
Americans, take them to court.
Mr. Shelanski. What I told you was I would look at that
very closely if the rule were submitted to OIRA. I don't know
if this rule was ever submitted to OIRA. I can't question a
rule that has not been submitted to my office.
Mr. Jordan. We are running in circles here, Mr. Shelanski,
and that is the problem.
Mr. Shelanski. There is no circle here, sir.
Mr. Jordan. If the agency says we are not going to submit
it to you, then you say, well, we don't have to review it even
though they are not being transparent and not following public
notice, public comment.
Mr. Shelanski. So as I think I made clear, we don't review
all Federal rules. What the GAO report is referring to is when
we question agencies that have submitted the rule for us to
review or where it is a rule worthy of review.
Mr. Jordan. Well, that is great. That is great. I would
love not to have, so they don't even have to give it to the
authority who is going to tell them what, and you said in your
opening comments we are going to look at the procedure they use
and the substance. I disagree with both what the ATF did here,
both the procedure and the substantive change. This has been a
rule that has been in place since 1986, and they suddenly are
just going to change it and there is no review process.
Mr. Shelanski. There is a review process. First of all, the
agency is responsible for that policy.
Mr. Jordan. They have already told us what they are doing.
Mr. Shelanski. If it is an interim final rule, an interim
final rule goes out for public comment after it is enacted, so
there is a chance for public comment, and there is judicial
review.
Mr. Jordan. Mr. Chairman, I apologize. Thank you for your
indulgence on the time, but we have been running circles around
this and this is just not the way it is supposed to work for
the American people.
Mr. Meadows. I thank the gentleman from Ohio.
We go to the gentlewoman from the Virgin Islands, Ms.
Plaskett.
Ms. Plaskett. Thank you very much, Mr. Chairman, Mr.
Chairman, and both Mr. Ranking Members for this hearing.
Good afternoon, sir. I had a question and wanted to get
some indication from you about international regulatory
cooperation. If you could just speak a little bit about that
and its benefits and how that has worked thus far.
Mr. Shelanski. Sure. Thank you very much for your question.
I appreciate that.
We have an executive order, Executive Order 13609, that the
President issued which gives OIRA a role in international
regulatory cooperation. We currently have what I would describe
as both formal and informal roles in regulatory cooperation. We
have two formal regulatory cooperation councils, one with
Mexico and one with Canada, and the objective of that council
is to get our agencies working directly with the agencies of
our international partners, agency-to-agency, to try to make
sure that there are not unnecessary regulatory impediments to
trade, commerce, competitiveness, those kinds of things.
So we have a very productive set of working relationships
with both of those.
Ms. Plaskett. And can you cite examples where that has been
productive to date?
Mr. Shelanski. Sure. With Mexico, for example, there were
some very interesting questions about the regulation of nano
materials in various kinds of products, including agricultural
products, and there were very different approaches in both
countries, and through the RRC we have been able to reach, I
think, some productive results.
We are also working with Canada currently on a number of
issues to ensure that regulations that are pending in agencies
here don't get cross-wise with or create difficulties for
entities doing business across our border with Canada.
Ms. Plaskett. So I wanted to bring it a little closer to
home, then, to my own waters in the Virgin Islands and wanted
to know if the benefit of OIRA being involved in some issues
that we have, and that is duplication of agencies in permitting
processes. So we have a lot of projects that revolve around our
waters, dredging projects, development projects that involve
the Army Corps of Engineers, NOAA, EPA, subdivisions in each of
those. That duplication and need for everyone to go through
these processes costs us hundreds of thousands of dollars a
year and the impact economically is enormous when we are not
able to meet deadlines for dredging projects, which means that
cruise ships can't come in, puts us at competitive
disadvantage.
Even now we have a project where the Army Corps of
Engineers were needing a permit so that we can move from fossil
fuel to being one of the first areas in the Caribbean using
LPG, liquid petroleum gas, in the area--I am sorry, propane
gas. And the need of duplication between these agencies in
coordination is having a horrendous effect on the economy.
Does OIRA become involved in that, and if not, why not, and
how could you?
Mr. Shelanski. Thank you for that question because you have
raised a critical issue and I think an issue that is a very
high priority for President Obama's Administration. Permitting
reform is a very active process that the Office of Management
and Budget is deeply engaged in, and OMB, particularly my
colleagues on the management side, are running a significant
interagency process to streamline and reform permitting.
OIRA is available to work on that; it is not really central
to the work we do, but we are involved with and certainly
encourage that general reform effort. What OIRA does do is when
we review regulations that have permitting requirements in
them, we look to see whether or not those are unnecessarily
burdensome or duplicative. So in the context of reviewing
rules, we most certainly do take into account exactly the kind
of duplication that you look at and, indeed, part of the
retrospective review efforts that we are engaged in with every
Federal, every executive branch agency right now are designed
to identify and eliminate exactly the kinds of problems that
you look at.
But certainly permitting reform is very high on the
Administration's and OMB's agenda, and I think real progress is
being made.
Ms. Plaskett. Thank you. When you talked about the
retrospective analysis, has there been a notable one that you
could give us as an example of retrospective analysis of
outdated or inefficient regulations?
Mr. Shelanski. Yes. We have a number of such rules. Just to
give you an example of a very recent one, the Department of
Transportation used to require every truck driver, after every
trip, to file an incident report even if there had been no
incident. This was costly in terms of systems, paperwork,
driver time, and they went back and determined that there was
no safety benefit that came from those reports and repealed the
report for savings of about $1.7 billion to the trucking
industry. And I think if you stay tuned over the next several
months you will see numerous additional things.
Ms. Plaskett. Thank you very much.
Thank you, Mr. Chairman.
Mr. Meadows. I thank you.
The chair recognizes the ranking member, Mr. Connolly, for
a few more questions.
Mr. Connolly. I thank the chair.
Actually, we may submit some questions for the record, Mr.
Shelanski, but one area that bothered me about what you said on
how your door is always open and you have to take all-comers,
right?
Mr. Shelanski. Correct.
Mr. Connolly. Are you open on weekends?
Mr. Shelanski. I am working most weekends, but the Federal
Government is not open on weekends.
Mr. Connolly. So the hourly wage earner who might have a
concern about a pending regulation or a lack thereof, or a view
about cost and benefit, he or she has to take time off to avail
himself or herself of your door being open. Lawyers get paid
for going through your door, but sort of a working man or
working woman who might be affected by actions of your office
actually kind of don't have the same access, do they?
Mr. Shelanski. You know, we have actually had some very
interesting meetings where exactly the kinds of people you have
described have come in to see us and to tell us their stories.
In terms of the access we provide, it may not be as easy to
take advantage of for people who live far away or for people
who don't have the means. People can call us; we take telephone
meetings. We receive letters. But in terms of our door being
freely open to those people, and, in fact, some such folks
exactly as you have described have taken advantage of it, I
would maintain that we do represent as equal access as it is in
our power to provide.
Mr. Connolly. Okay.
Mr. Chairman, rather than continue, given the lateness of
the hour, if you don't mind, we would submit some additional
questions for the record.
Mr. Meadows. I look forward to those.
Mr. Connolly. I thank the chair.
Mr. Meadows. I thank the ranking member for his insightful
questions.
Let me just close out by following up. The gentleman from
Kentucky is here and he actually serves on the House
Transportation and Infrastructure Committee. We have had a
number of hearings in that committee on the Waters of the USA,
on the proposed rule, and I believe it is your testimony here
today that they have not officially submitted that to you, is
that correct?
Mr. Shelanski. That is correct.
Mr. Meadows. So you have had no dialogue with them.
Mr. Shelanski. I have had no dialogue with the EPA----
Mr. Meadows. Informal or formal.
Mr. Shelanski. I have had no dialogue whatsoever with the
EPA on Waters of the U.S.
Mr. Meadows. Okay. How about deliberations?
Mr. Shelanski. No deliberations, no discussion.
Mr. Meadows. So if we were to ask for all of your records,
we would find zero records, emails, nothing with the EPA with
regards to that rulemaking or proposed rule.
Mr. Shelanski. We concluded review on the proposed rule.
The EPA took it from there. The next I will hear about it is
when they submit the final rule for review.
Mr. Meadows. All right. So let me go back. It gets back to
documents. What documents do you actually keep? Because I think
we were using the same terminology, but just in different ways.
Mr. Shelanski. Okay.
Mr. Meadows. We were talking about informal rulemaking, and
then I have heard you say that three or four times, but, yet,
when I asked the question, you act like you didn't know what it
was. So let me be specific, all right?
The GAO has come in and they have found issues with the
practice of you reviewing preliminary drafts and doing analysis
for agencies before they actually submit it to you, before the
time clicks in the for 90 days. Does that sound familiar?
Mr. Shelanski. No. What you describe----
Mr. Meadows. So you have never done that?
Mr. Shelanski. Let me explain.
Mr. Meadows. Because I will get the GAO in here to sit
right beside you, because they believe that you have.
Mr. Shelanski. Look, I can testify to what has happened
since I have been administrator of the office, and I can tell
you what does happen and what I haven't seen happen. What does
happen is there are times that agencies will come to us in
advance of submitting their rulemaking package and say do we
have the right components of a regulatory impact analysis? Can
you look at the cost-benefit analysis that we are doing and
tell us if we are going to need to do more?
Mr. Meadows. But that is before they have actually proposed
the rule, so the answer would be exactly oppose of what you
just answered. The answer would be yes to that question.
Mr. Shelanski. But that is not a review of the rule and a
whole package, and sort of a preliminary----
Mr. Meadows. Well, let me just say your students at school,
at Georgetown, if they answered your exam the way that you are
answering my questions, I would venture to say you would give
them an F.
Mr. Shelanski. No, I would give them an A for being
precise. I am trying to explain to you what it is we do and
what we don't do.
Mr. Meadows. All right. So is your testimony here today
that there are no documents, no communication that has taken
place between the EPA, either informal or formal, in that
rulemaking process? That is your testimony?
Mr. Shelanski. My testimony, sir, is that since we
concluded review on the notice of proposed rulemaking, I have
had no communication with the EPA on their final----
Mr. Meadows. All right, so let me make it clear, then. Will
you send us the documents with any aspect that you have been
involved with the EPA on that particular rule? Will you send
those documents to the committee for their review, yes or no?
Mr. Shelanski. I will not send to the committee documents
that were part of the deliberative process where the proposed
rule was under review.
Mr. Meadows. All right. Are you aware that, by statute, you
are required to do that?
Mr. Shelanski. No, sir, I am not aware that by statute I am
required----
Mr. Meadows. OIRA shall make available to the public all
documents exchanged between OIRA and the agency during the
review by OIRA under this section.
Mr. Shelanski. So that is not a statute, sir, that is the
executive order.
Mr. Meadows. Executive order. So you are only going to
comply with part of the executive order.
Mr. Shelanski. That executive order has been interpreted
across all administrations, Republican and Democrat, to embody
the deliberative process exception of staff level
communications, and we do not disclose those to the public.
Mr. Meadows. All right.
Mr. Shelanski. It is to protect the integrity of the
process, the----
Mr. Meadows. I don't see how it does that. I mean, with all
due respect, I don't see how. Your particular function is to
protect the American people. So how, with you being secretive,
does that protect the American people?
Mr. Shelanski. It protects staff and their ability to do
their jobs.
Mr. Meadows. Is that your primary responsibility? When you
were put into place, is that your primary responsibility?
Mr. Shelanski. My primary responsibility is to ensure good
analysis, and, frankly, we wind up with less good analysis and
less good work if staff feel that every communication that they
have back and forth with an agency is going to be put under the
microscope, pulled out of context.
Policy level official communications, policy level
communications between me and the head of an agency, those are
disclosable. But staff level deliberative process we do not
disclose. And I would just emphasize this is across Republican
and Democratic administrations that the executive order has
been so interpreted.
Mr. Meadows. All right, we will make one final request, and
it is this. Those agencies who have come to you to ask for your
input on a proposed rule that they may be in the process of
working, in this pre-that the GAO talked about, we would like a
list of all of those.
Mr. Shelanski. I am not sure I have a list, sir, because we
only do this when the agency asks to come brief us; and I don't
know that I maintain any such list.
Mr. Meadows. All right. So, then, with the example that Mr.
Jordan gave with the ATF----
Mr. Shelanski. As I told Mr. Jordan----
Mr. Meadows. So should we have the ATF come back here and
testify at how they are taking the good, I guess good common
sense exception, should we have them come back to testify,
since obviously they have bypassed you?
Mr. Shelanski. As I thought I made clear to Mr. Jordan, I
am not familiar with the rule that he was referring to. We
don't see all 3500 rules that the Federal Government passes, so
I have no comment or knowledge about what the ATF did----
Mr. Meadows. So how do you decide which rules to review?
Mr. Shelanski. Well, when the rules are submitted to us, we
make a determination----
Mr. Meadows. So every agency, they can decide on their own
whether to submit them to you?
Mr. Shelanski. No. If a rule is not significant, then it is
up to the agency to do what they want.
Mr. Meadows. But I will remind you, as you know, the
individual and employer mandate, both of those rules were seen
as insignificant. Is that your testimony, that you would concur
that they are insignificant?
Mr. Shelanski. Which rules are you referring to?
Mr. Meadows. The rules that are still outstanding with
regards to the employer and individual mandate.
Mr. Shelanski. Are you talking about the IRS regulation?
Mr. Meadows. With the Affordable Care Act.
Mr. Shelanski. Well, if you are referring to the IRS
regulations,----
Mr. Meadows. Yes.
Mr. Shelanski.--by longstanding practice, we do not review
IRS interpretive regulations.
Mr. Meadows. So why don't you just say you are not
reviewing it, instead of saying it is insignificant?
Mr. Shelanski. I am not saying that it is insignificant; I
am saying we don't review it.
Mr. Meadows. I thank the gentleman, both ranking members,
and each of the committee members who have come today, and,
with this, this hearing is adjourned.
[Whereupon, at 4:11 p.m., the subcommittee was adjourned.]
APPENDIX
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