[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

                               __________

Printed for the use of the Committee on Oversight and Government Reform



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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

                              ----------                              
                                                                   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

                              ----------                              


                        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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