[Senate Hearing 117-580]
[From the U.S. Government Publishing Office]
S. Hrg. 117-580
NOMINATIONS OF
ROBERT H. SHRIVER III AND
RICHARD L. REVESZ
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HEARING
BEFORE THE
COMMITTEE ON
HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED SEVENTEENTH CONGRESS
SECOND SESSION
__________
NOMINATIONS OF ROBERT H. SHRIVER III TO BE DEPUTY DIRECTOR,
OFFICE OF PERSONNEL MANAGEMENT, AND RICHARD L. REVESZ
TO BE ADMINISTRATOR, OFFICE OF INFORMATION AND
REGULATORY AFFAIRS, OFFICE OF MANAGEMENT AND BUDGET
__________
SEPTEMBER 29, 2022
Available via the World Wide Web: http://www.govinfo.gov
Printed for the use of the
Committee on Homeland Security and Governmental Affairs
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
__________
U.S. GOVERNMENT PUBLISHING OFFICE
49-379PDF WASHINGTON : 2023
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
GARY C. PETERS, Michigan, Chairman
THOMAS R. CARPER, Delaware ROB PORTMAN, Ohio
MAGGIE HASSAN, New Hampshire RON JOHNSON, Wisconsin
KYRSTEN SINEMA, Arizona RAND PAUL, Kentucky
JACKY ROSEN, Nevada JAMES LANKFORD, Oklahoma
ALEX PADILLA, California MITT ROMNEY, Utah
JON OSSOFF, Georgia RICK SCOTT, Florida
JOSH HAWLEY, Missouri
David M. Weinberg, Staff Director
Zachary I. Schram, Chief Counsel
Matthew T. Cornelius, Senior Professional Staf Member
Devin M. Parsons, Professional Staff Member
Nikta Khani, Research Assistant
Pamela Thiessen, Minority Staff Director
James D. Mann, Minority Staff Director, Government Operations and
Border Management
Andrew J. Hopkins, Minority Counsel
Ryan L. Giles, Minority General Counsel
Clark A. Hedrick, Minority Senior Cousel, Government Operations and
Border Management
Laura W. Kilbride, Chief Clerk
Ashley A. Howard, Hearing Clerk
C O N T E N T S
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Opening statements:
Page
Senator Peters............................................... 1
Senator Lankford............................................. 3
Senator Hawley............................................... 13
Senator Sinema............................................... 17
Senator Rosen................................................ 19
Senator Padilla.............................................. 22
Senator Carper............................................... 24
Prepared statements:
Senator Peters............................................... 33
Senator Lankford............................................. 35
WITNESSES
Thursday, September 29, 2022
Robert H. Shriver III to be Deputy Director, Office of Personnel
Management
Testimony.................................................... 5
Prepared statement........................................... 37
Biographical and professional information.................... 40
Letter from U.S. Office of Government Ethics................. 56
Responses to pre-hearing questions........................... 59
Responses to post-hearing questions.......................... 77
Richard L. Revesz to be Administrator, Office of Information and
Regulatory Affairs, Office of Management and Budget
Testimony.................................................... 7
Prepared statement........................................... 88
Biographical and professional information.................... 90
Letter from U.S. Office of Government Ethics................. 110
Responses to pre-hearing questions........................... 114
Responses to post-hearing questions.......................... 131
Letters of support........................................... 144
NOMINATIONS OF ROBERT H. SHRIVER III
AND RICHARD L. REVESZ
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THURSDAY, SEPTEMBER 29, 2022
U.S. Senate,
Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 10:30 a.m., in
room SD-342, Dirksen Senate Office Building, Hon. Gary Peters,
Chairman of the Committee, presiding.
Present: Senators Peters, Carper, Hassan, Sinema, Rosen,
Padilla, Ossoff, Lankford, Scott, and Hawley.
OPENING STATEMENT OF CHAIRMAN PETERS\1\
Chairman Peters. The Committee will come to order.
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\1\ The prepared statement of Senator Peters appears in the
Appendix on page 33.
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Today, we are considering the nominations of Robert Shriver
III to be Deputy Director of the Office of Personnel Management
(OPM) and Richard Revesz to be Administrator of the Office of
Information and Regulatory Affairs (OIRA) at the Office of
Management and Budget (OMB).
Welcome to both of you and to your family members who are
seated behind you. We welcome all of you today, and thank you
for joining us. I also want to congratulate each of you on your
nominations and thank you for your willingness to take on these
important roles in the Federal Government.
Both of the positions we are considering nominations for
are going to require independent, non-partisan leadership to
serve in the best interests of the American public.
The Office of Personnel Management develops and administers
human capital policies for the Federal workforce and functions
as the bedrock of our nation's personnel and management efforts
across the Executive Branch, while the Office of Information
and Regulatory Affairs serves as the central authority for the
review and coordination of Federal regulations.
Mr. Shriver, if confirmed, you will be OPM's Deputy
Director charged with setting policies for more than 1.8
million dedicated public servants, which will require agency
leadership that can build confidence in OPM, and maintain a
non-partisan, merit-based workforce that serves every American.
The Deputy Chief Human Resources Officer (CHRO) is a
significant undertaking, and I believe your extensive
experience in public service, including current and prior
experience at OPM, will help provide an innovative vision for
the future of the Federal workforce.
Likewise, the OIRA Administrator is an incredibly important
position.
Mr. Revesz, if confirmed, you will lead six subject matter
branches, and be responsible for ensuring the office provides
transparency into regulatory decisions and promotes public
participation in the rulemaking process.
Your long history of both academic and legal analysis on
the modernization of the regulatory process, improving cost-
benefit analysis, and ensuring greater transparency and
participation in the rulemaking process will certainly serve
the office well.
While OIRA is a small, relatively unknown office in the
Federal Government, it actually manages Federal rules and
regulations that impact Americans' daily lives in a number of
different ways.
The decisions that your agency will make can affect
everything from repairing roads and bridges, funding K-12
schools, and protecting our air and drinking water. People in
Michigan, and across the country, depend on OIRA to work with
Federal agencies to efficiently and effectively implement
important safeguards that will protect the health and safety of
all Americans.
While few folks outside of Washington are familiar with
OIRA, they know all too well how delayed regulatory impacts can
affect their lives.
For too long, essential safeguards for lead in drinking
water and polyfluoroalkyl substances (PFAS) substances, toxic
chemicals that are widely used in industry and consumer
products, remain stalled in the regulatory review process.
Despite Federal agencies promising to take a more proactive
approach to address this crisis, Michiganders in communities
like Flint, Oscoda, and Parchment in my home State cannot drink
the water from their own faucets without fearing the ingestion
of toxins like lead or PFAS.
While regulations are the responsibility of Federal
agencies, they must be reviewed by OIRA before they can be
adopted.
That is why as Chairman of the Senate's top oversight
committee, I know it is critical lawmakers pursue regulatory
reforms that reduce duplicative or burdensome processes while
maintaining important protections for health, safety, and
economic security, and I look forward to working with OIRA to
make progress on these important reforms.
In short, if confirmed, both of you will have a dramatic
impact on families, businesses, and communities in Michigan as
well as across the country.
I am pleased that President Biden has nominated two
distinguished and highly qualified nominees to serve in these
incredibly important positions.
Today I look forward to hearing from both of you about your
experience and qualifications and how you plan to serve. Thank
you.
Senator Lankford, you are now recognized for your opening
comments.
OPENING STATEMENT OF SENATOR LANKFORD\1\
Senator Lankford. Mr. Chairman, thank you.
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\1\ The prepared statement of Senator Lankford appears in the
Appendix on page 35.
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Hearts and prayers today go out to the folks in Florida.
They have had a very difficult past 24 hours, to say the least,
and they will have a long recovery process on that. I wanted to
remind folks as we are going through important business today
that our hearts are all still in Florida as well.
I do want to thank the Chairman for actually holding this
hearing today. I am filling in as Ranking Member today on this,
to be able to work on two incredibly important nominees that my
Subcommittee is very involved in. That is the issue of
regulatory affairs and Federal workforce policy.
Rob Shriver III, because I just met the second as well--is
nominated to be the Deputy Director of OPM. He is a
professional with 25 years of experience working on the issues
related to Federal employees.
We have had the opportunity to be able to talk at length
already before this hearing on several of the Federal workforce
hiring issues and some of the challenges. There are significant
challenges on the Federal workforce.
Over the past decade, OPM has had to navigate many changes
in leadership, structural overhauls, a major cybersecurity
event, while attempting to achieve its mission to lead
Executive Branch Federal workforce policy and administer the
benefits programs for the Federal family, as well as handling
retirement issues.
OPM continues to have many challenges it needs to address.
For instance, it takes 100 days, on average, for the Federal
agencies to be able to hire a new employee, 100 days. Everyone
know, for a very long time, has said that has to come down, and
there have been benefits in the ones and twos of days, but not
in the significant time period it really takes to be able to
handle that.
Another on the other end, not just the hiring, it is
actually on the retirement process, OPM manages a paper-based
retirement system out of a cave in Pennsylvania. This has to be
resolved for our Federal retirees as well. If we are going to
have a modern, effective Federal workforce, OPM has to be a
modern, effective agency as well in leading that. I look
forward to that conversation today.
Dr. Ricky Revesz has a long academic career with an
extensive list of publications, including many books, academic
articles, op-eds. The Administrator of OIRA, as I mentioned to
him in our extensive conversation as well prior to this
meeting, is the most important job in Washington that no one
has ever heard of. That task, at OIRA, sets the parameters for
how we are going to do regulations in every single agency.
I have long been concerned, quite frankly, that this
Administration has been so slow to be able to nominate someone
to OIRA, and my concern has been they have not been serious
about the regulatory issues. I hope I am wrong about that
because regulatory policy affects everyone. Fair, predictable,
regulatory policy allows businesses, particularly small
businesses, to be open, to plan for the future, to thrive. It
absolutely affects everything in our economy, in our safety of
how we handle our way of life.
Drastic swings in policy from administration to
administration creates uncertainty. We need safe food. We need
safe working conditions. Regulatory policy has to be known,
predictable, and it has to follow the rules that have been
passed down by Congress.
OIRA is the gatekeeper that ensure the Executive Branch
follows the law, completes cost-benefit analysis, does not cut
corners for convenience. The job of the OIRA Administrator is
to often tell your boss and agency heads, ``No, that is not the
way the law is actually written. We have to be able to follow
the law.'' It is very similar to the role of the General
Counsel (GC) in each of our agencies to be able to have that
moment of advice to say, ``This is the right way to do it, and
if you want to be able to do it, let us follow the law.'' It
protects the taxpayers from years of litigation in the days
ahead.
Professor, there will be many in the Administration that
are going to press, because every administration does,
Republican and Democrat. They press on OIRA to be able to go
faster, to do different. But you will have the unique role of
being able to look and folks and say, ``Let's follow the law,''
and that is a good spot to be able to be.
In closing, I look around this dais and I see relatively
few people that are engaged. That says two things to me. One of
them, it tells most folks that they have looked at your resume,
they looked at your background and see that it is consistent,
and so there is not a big press. It also reminds me of the last
time an OIRA nominee was in front of this Committee. They
actually sat by themselves, and that was Paul Ray, and they
went through hours of blistering questions, and went through
page after page of questions for the records afterward,
harassing him.
This is a different type of conversation that is actually
happening today, and it is good to be able to see my Republican
colleagues treating everyone fairly, because we have had
individuals that have not been treated fairly in the past
administration in this exact same role in this.
I am glad to be able to see a good, fair dialog, to be able
to go through very difficult issues today.
With that I yield back.
Chairman Peters. Thank you, Senator Lankford.
It is the practice of this Committee to swear in witnesses,
so if each of you would please stand and raise your right hand.
Do you swear that the testimony you will give before this
Committee will be the truth, the whole truth, and nothing but
the truth, so help you, God?
Mr. Shriver. I do.
Mr. Revesz. I do.
Chairman Peters. Thank you. You may be seated.
Our first nominee is Robert Harley Shriver III, to be
Deputy Director of the Office of Personnel Management. Mr.
Shriver is the Associate Director for Employee Services at OPM,
where he leads OPM's governmentwide workforce policy team. His
expertise includes recruiting and hiring, pay and leave,
strategic workforce planning, labor and employee relations,
performance management, the Senior Executive Service (SES),
work-life balance, and the future of work.
Previously he served at OPM during the Obama Administration
as the Deputy General Counsel for Policy, leading the
development and implementation of a number of governmentwide
initiatives. He has also served as OPM's Assistant Director for
National Healthcare Operations, where he led the implementation
of the multi-state plan program under the Affordable Care Act
(ACA).
Mr. Shriver, welcome to the Committee. You may proceed with
your opening remarks.
TESTIMONY OF ROBERT H. SHRIVER III,\1\ TO BE THE DEPUTY
DIRECTOR, OFFICE OF PERSONNEL MANAGEMENT
Mr. Shriver. Thank you, Mr. Chairman and distinguished
Members of the Committee for welcoming me here today. It is an
honor to be considered by this Committee as President Biden's
nominee for Deputy Director of the Office of Personnel
Management.
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\1\ The prepared statement of Mr. Shriver appears in the Appendix
on page 37.
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I want to start by recognizing the hard-working employees
of the Federal Government, and in particular those at OPM. I
would not be here today without their dedication and commitment
to their mission. I care deeply about the civil service, about
OPM, and about all Federal employees, and I thank them for
their service.
I am also fortunate to have several family members with me
here today. My wife, JoAnn Martinez, is here with two of our
three children, Mitch and Justine. Our oldest son, Robby, is
away for his first year of college so he could not be here
today. I want to thank my kids for all the joy they bring me,
as well as the support and patience they have shown throughout
my career. I especially want to thank JoAnn for her
partnership, as both of us have balanced demanding careers with
raising our family, and for her kindness and strength
throughout our 22 years of marriage.
I am also blessed to have my father, Robert H. Shriver,
Jr., my mother, Norma, and my sister, Melinda, here with me
today. My parents are retired schoolteachers, and my sister is
a public school administrator. They have traveled from
Nazareth, Pennsylvania, to support me today, as they have done
consistently and steadfastly throughout my entire life.
I was raised in middle-class family in the working-class
town of Nazareth, Pennsylvania. I was fortunate to be able to
go to college, but I needed to work to contribute to the costs.
During high school, I worked in the paint department of a K-
Mart near my house. When I went off to college at Virginia Tech
(VT) in Blacksburg, Virginia I washed dishes and served food in
the dining hall. Then, when I went to George Washington
University Law School (GW LAW) here in Washington, DC, I got a
job at a law firm, not as a summer associate but as a file
clerk. The idea of an unpaid internship did not even occur to
me. I needed a paycheck, and working in the file room got me
that.
I have carried those lessons on the importance of hard work
into my professional career. I have had the good fortune to
work in several positions at OPM, including my current position
as the Associate Director for Employee Services, where I lead
OPM's governmentwide workforce policy team. I have also worked
in State government, for a labor union, and in the private
sector. I have held jobs that focused on law, policy,
operations, and Information Technology (IT). I have represented
both labor and management. I have been a purchaser and a seller
of services for the government. I have been a stakeholder and
led stakeholder engagement. I have had tremendous mentors who
taught me how important it is to help the next generation of
employees, something that drives me every day.
Through it all, I have been driven by one overarching
principle: to help make the government work better for the
American people.
OPM is a critical agency for effective and efficient
government operations. I like to say that ``everybody is in
OPM's business because OPM is in everybody's business.'' What I
mean is that strategic workforce management is critical to
every agency in government, and OPM exists to provide expert
guidance, advice, and support on the full range of workforce
matters.
OPM also exists to preserve and protect the nonpartisan,
career civil service. Day in and day out, we balance these two
foundational principles--how can we advance innovation in
strategic human capital management while honoring the bedrock
principles of our merit system that dates to the Pendleton Act
of 1883.
If confirmed as Deputy Director, I will strive to build on
the successes OPM has had over the past 20 months. I will
leverage the experience I have had working in three different
offices to drive policy innovation and customer service
improvements across the agency. In partnership with Director
Ahuja, I will apply the work ethic ingrained in me by my
parents and community from an early age toward advancing my
overarching leadership principle--help make the government work
better for the American people.
I want to thank you Chairman, Ranking Member, and all
Members of the Committee and their staffs for taking the time
to meet with me, both today and beforehand. If I am fortunate
enough to be confirmed, I look forward to continuing our
conversations and, with Director Ahuja, strengthening the
relationship between OPM and this Committee.
I am happy to answer any questions you may have.
Chairman Peters. Thank you, Mr. Shriver.
Our second nominee is Richard Revesz, to be Administrator
of the Office of Information and Regulatory Affairs at the
Office of Management and Budget.
Mr. Revesz is the AnBryce Professor of Law and Dean
Emeritus at the New York University School (NYU) of Law and one
of the nation's leading voices in the fields of both
environmental and regulatory law and policy.
In addition to his work at NYU, he founded the Institute
for Policy Integrity, a think tank and advocacy organization
that promotes policies for the environment, for public health,
and consumers. He has also served as the Director of the
American Law Institute, a leading independent organization in
the United States that produces scholarly work to clarify, to
modernize, and improve the law.
He has also published 10 books and more than 80 articles in
major law reviews and journals, advocating for protective
environmental policies.
Mr. Revesz, welcome to the Committee. You may proceed with
your opening remarks.
TESTIMONY OF RICHARD L. REVESZ,\1\ TO BE ADMINISTRATOR, OFFICE
OF INFORMATION AND REGULATORY AFFAIRS, OFFICE OF MANAGEMENT AND
BUDGET
Mr. Revesz. Chairman Peters, Ranking Member Lankford, and
Members of the Committee, it is a privilege to come before you
as President Biden's nominee to be the Administrator of the
Office of Information and Regulatory Affairs. I would like to
thank all the Members of the Committee for considering my
nomination, the Members who took the time to speak with me
before this hearing, and the staff for their help and guidance
throughout this process. I am enormously grateful to the
President for the trust reflected by this nomination. I am
deeply honored and humbled.
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\1\ The prepared statement of Mr. Revesz appears in the Appendix on
page 88.
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As I was growing up in Argentina during the very turbulent
1960s and 1970s, when democratic rule was routinely interrupted
by coups and deadly political violence, I could have never
imagined that I would be sitting in this chair one day. I grew
up speaking Spanish and learned English as a second language. I
came to the United States to go to college in 1975, when I was
17. I arrived two weeks before the beginning of my freshman
year at Princeton, as Argentina was entering a six-year period
during which between 10,000 and 30,000 people were killed
through government-led violence in a country with a tenth the
population of the United States. I am so grateful for the
academic excellence that the United States offered me and for
the safe haven it provided me during this time of turbulence.
The United States has given me extraordinary opportunities.
I became a U.S. citizen in 1982, when I was a second-year law
student. Only two-and-a-half years later,
I came to Washington, D.C. to serve as a law clerk to
Justice Thurgood Marshall, which was an honor of a lifetime.
I am enormously proud of my family members and deeply
grateful for their extraordinary support. My wife, Vicki Been,
to whom I have been married for 33 years, is my colleague on
the NYU Law School faculty. For six of the last eight years,
she served in New York City government, first as Commissioner
of the Department of Housing Preservation and Development, and
then as Deputy Mayor for Housing and Economic Development.
My son, Joshua Revesz, is a lawyer in the Civil Division at
the U.S. Department of Justice (DOJ). My daughter, Mira Revesz,
could not be here because she is a high school English teacher
in Massachusetts and has a full day of classes today. My
daughter-in-law, Hilary Ledwell, recently left the Department
of Homeland Security (DHS) to serve as a judicial law clerk. I
very much admire the commitment to public service that each of
them displays in their endeavors and hope to emulate it if I am
confirmed.
I am sad that my parents are both deceased and could not
accompany me today. My father, Nicolas Revesz, was displaced by
the Holocaust in Eastern Europe, and at a relatively young age,
had to cope with the murder of both his parents and five of his
seven sisters at Auschwitz. He died when I was only eight years
old. My mother, Nora Revesz, was also displaced by World War II
and its aftermath. After a round-about journey, she became a
U.S. citizen and got to see the unfolding of a significant
portion of my legal career.
During my 37 years as a law professor, I have worked
extensively on areas related to government regulation. The bulk
of my work has been on environmental, health, and safety
regulation, but I have dealt with other regulatory areas as
well. I have also focused on the structure of the Executive
Branch and on the role of OIRA as a coordinator of Executive
Branch activities.
In addition to my academic work, I have learned a great
deal about how the Federal Government functions through my
service as a Public Member and Senior Fellow of the
Administrative Conference of the United States (ACUS), and on
committees of the Environmental Protection Agency (EPA), the
National Science Foundation (NSF), and the National Research
Council (NRC).
Over the last two decades, I have been entrusted with
several leadership positions, including my service as Dean of
NYU Law School from 2002 to 2013, and since 2014, as Director
of the American Law Institute. In those positions, I have an
open-door, collaborative management style. I am accessible to
my staff and responsive to their concerns. I believe in hearing
a full range of perspectives before making a decision. I lead
by example and not by command. I would bring the same
management style to my position leading OIRA.
If confirmed, I would be honored to work with the President
and Congress to ensure that our nation's regulatory policies
serve the interests of the American people.
Thank you again for considering my nomination. I would be
delighted to answer your questions.
Chairman Peters. Thank you, Mr. Revesz.
There are three questions that the Committee asks of every
nominee, so I am going to ask each of you to respond briefly,
just with a yes or no. We will start with you, Mr. Shriver, and
then Mr. Revesz.
First, is there anything you are aware of in your
background that might present a conflict of interest with the
duties of the office to which you have been nominated?
Mr. Shriver. No, Mr. Chairman.
Mr. Revesz. No, Mr. Chairman.
Chairman Peters. Second, do you know of anything personal
or otherwise that would in any way prevent you from fully and
honorably discharging the responsibilities of the office to
which you have been nominated?
Mr. Shriver. No, Mr. Chairman.
Mr. Revesz. No, Mr. Chairman.
Chairman Peters. Last, do you agree, without reservation,
to comply with any request or summons to appear and testify
before any duly constituted committee of Congress if you are
confirmed?
Mr. Shriver. Yes, Mr. Chairman.
Mr. Revesz. Yes, Mr. Chairman.
Chairman Peters. Great. Thank you.
Mr. Revesz, on his first day in office, President Biden
issued a memorandum entitled ``Modernizing Regulatory Review,''
directing the production of recommendations to improve and to
modernize the regulatory review process.
My question for you is, if confirmed, what will be the
first concrete steps that you will take to finalize the actions
required in this memorandum, and what do you believe are the
most important reforms that should be made a OMB Circular A4 to
help modernize the regulatory review process in the Federal
Government?
Mr. Revesz. Thank you, Mr. Chairman.
I am strong believer in evidence-based decisionmaking.
Circular A-4, which provides guidance to agencies on how to
conduct their cost-benefit analyses is a very important
document that is now almost 20 years old. As the President
called for in his memorandum, ``Modernizing Regulatory
Review,'' Circular A-4 should be updated to account for
advances in scientific and economic understanding in how the
costs and benefits of regulation affect the American people and
are distributed across populations.
If confirmed, my first step will be to receive an update
from staff on the progress that has been made thus far and see
what needs to be done to move forward with the President's
command.
Chairman Peters. Thank you, Mr. Revesz.
Mr. Shriver, Federal retirees have been reaching out to my
office a great deal to express an incredible amount of
frustration with the length of time that it takes the OPM to
process their retirement claims.
If confirmed as Deputy Director, how are you going to work
to reduce these retirement claim delays, including modernizing
OPM's legacy retirement systems, and that means transitioning
from a paper-based system and Excel sheet calculators to really
an updated platform and updated tools that can expedite this
process? If you could give us your views on that and how you
plan to tackle that challenge, I would appreciate it.
Mr. Shriver. Thank you for the question, Mr. Chairman, and
let me start by saying that we do need to do better by our
Federal retirees. These are folks who commit their careers to
Federal service, and when it comes time to retire they need to
be getting top-notch customer service.
I know though, I do not oversee retirement services in my
current role as Associate Director of Employee Services, I do
know that the team work hard, day in and day out, to serve
those retirees.
I think you are right in that the systems do need some
modernization. I know there have been past efforts over many
years and across many administrations to modernize the
retirement system.
Obviously there are some challenges there that I look
forward to being briefed on. If I were lucky enough to be
confirmed I would be excited to bring to bear my experience in
operations and customer service that I gained in the health
care space, and certainly as Deputy Director I would prioritize
improving customer service for our retirees.
Chairman Peters. Given your experience in customer service
and the work that you did prior, give me some sense of how you
believe we can improve the customer experience for Federal
employees and retirees both, current employees as well, that
rely on the OPM for their benefits and services.
Mr. Shriver. Thank you for the question, Mr. Chairman, and
certainly OPM is rebuilding capacity. As Ranking Member
Lankford laid out in his opening statement, OPM has been
through a turbulent several years, and so we are certainly
rebuilding the capacity of the agency and looking at our
customer service capabilities.
I think one of the things that I can say, just from my
experience in my current role, it is really important to build
good relationships with the agencies, not only with the Chief
Human Capital Officers (CHCOs) but with other parts of the
agencies that maybe work in certain policy areas or work on
benefits, for example.
A lot of the challenges that happen with respect to
retirement processing have to do with the way that information
transfers between agencies and OPM in particular, if somebody
has worked in multiple agencies or under multiple retirement
systems.
But with respect to customer service writ large, agencies
rely on OPM in any number of ways to have approvals for
expedited hiring authority when there is a critical hiring
need, or special pay authority, and we have been working really
hard to build those relationships with the agencies and be
proactive and help them problem solve so that OPM can re-
establish itself as the strategic human capital leader for the
Federal Government.
Chairman Peters. Great.
Mr. Revesz, we held a hearing earlier this year in the
Committee on the need to improve the customer experience for
citizens as they interact with government, and we heard how the
Paperwork Reduction Act (PRA) and the Privacy Act can create
some significant hurdles to delivering high-quality citizen
services to the American people.
In addition, this Committee recently passed the Disaster
Assistance Simplification Act, which basically exempts large
portions of the PRA and the Privacy Act to ensure disaster
survivors can easily and quickly receive benefits they deserve.
Likely a lot of folks in Florida are going to be interesting
with this system after the hurricane just swept through, as an
example, and folks often in a very difficult time in their life
have to wade through a variety of paperwork, and different
paperwork for different agencies, to try to get help that they
desperately need.
My question for you is, do you agree that the PRA and
Privacy Act could be updated to take advantage of modern
customer experience, information technology, and data-sharing
developments?
Mr. Revesz. Thank you, Mr. Chairman. The PRA has important
goals. It seeks to ensure that government information requests
generate useful information and not impose excessive burdens on
the American people. Information should also be collected in
ways that make useful across the Federal Government, for
example, by using consistent protocols.
The PRA dates back to 1995. It is now more than 25 years
old, and amendments might well be appropriate. If confirmed, I
look forward to working with Members of this Committee and
their staffs and learning more about what experience with
stakeholders under the PRA has been during the period since the
statute's passage.
But I do agree that figuring out how best to respond to the
needs of the American people through the PRA is an extremely
important goal.
Chairman Peters. I appreciate that. There is a lot of work
to do in that area, and breaking through some of the
bureaucratic hurdles I would hope would be a priority for you
if you are confirmed. Will it be a priority?
Mr. Revesz. I will be a priority, Mr. Chairman.
Chairman Peters. Great. Thank you.
Ranking Member Portman, you are recognized for your
questions.
Senator Lankford. I will be the Portman fill-in today on
that one. [Laughter.]
Chairman Peters. Oh my gosh.
Senator Lankford. You did, actually.
Chairman Peters. Force of habit.
Senator Lankford. Muscle memory.
Chairman Peters. That is exactly right. Ranking Member
Lankford.
Senator Lankford. Thanks for being here. Thanks again.
Thanks to your families as well, coming in. It is a long day,
to be able to be here, and through all the dialog and
conversation. It is a long process to be able to go through.
Both of these roles are nonpartisan roles. Now there is no
question each of us have partisan preferences on this. But the
important thing for OPM and for OIRA is we have, as Congress,
the confidence that we are just following the law and trying to
be able to help individuals in the Federal workforce to be able
to both get hired, good oversight and management, good
retirement process. Again, these should not be partisan types
of roles and tasks in that.
I would tell you, as we have spoken personally on this, I
would count on nonpartisan activity happening in the Office of
Personnel Management and the Office of Information and
Regulatory Affairs.
Saying all that, I do want to walk through a couple of
things. Mr. Revesz, we talked yesterday briefly about this,
that I have had individuals that work in companies, they are
new in a company and they start with a process and they start
to be able to look at the issues that are related to their
company and guidance documents that are available from Federal
agencies, and they start searching and they find quickly they
have to be an expert in the Federal Government to just find out
what guidance documents relate to their business.
Right now, reginfol.gov exists. Is there any barrier for
OIRA actually putting in all of the guidance documents for
anyone who is trying to be able to search guidance documents,
into reginfo.gov so that a new person or an experienced person
that is trying to be able to pull up just what guidance is out
there for my company can go find that? Because currently, that
does not exist at this point for one central clearing house for
guidance documents.
Mr. Revesz. Thank you, Senator, for the question. I am a
strong believer that transparency needs to be a key requirement
for well-functioning regulatory process, and guidance documents
play a very important role in that process, and it is therefore
important that guidance be made available to the public and be
made available in a user-friendly way. As you know, it is not
enough that it exists somewhere, but it is important that
people be able to access that information efficiently.
I am a long-time public member and senior fellow of the
Administrative Congress of the United States, which, in 2019,
endorsed the policy on the public electronic availability of
guidance documents. I understand that having guidance documents
be available on the websites of individual agencies might not
be as useful as having them available all in one central
repository.
If confirmed, I look forward to learning from my colleagues
at OIRA and elsewhere in the Federal Government what the
experience has been in working with you and other Members of
the Committee to seek what can be done to make guidance
documents as accessible to regulated entities and to the
American people, generally, as possible. If a central
repository is the best way to go, I look forward to learning
how best to accomplish that.
Senator Lankford. OK. Thank you. I would appreciate that
because you have to be an expert in which agency handles which
issue to be able to find guidance documents. I would tell you,
as a member of the Senate, I still have to hesitate and say,
wait, is that the Department Energy (DOE) that has that? Is
that the Department of Interior (DOI) that has that? Or is that
EPA that has that? If I have to struggle to be able to figure
out which one that is, at times, certainly people that do not
deal with this every single day go through that same process.
You and I had a very good conversation yesterday about
cost-benefit analysis. For whatever reason, this has become
controversial to be able to discuss just the most basic thing
in cost-benefit. This goes back decades. This goes back to
Executive Order (EO) 12866. This should not be a controversial
thing, just to be able to look at the cost and the benefit of
any regulation at this point.
But I want to go past that to be able to say, how do you
handle cost-benefit analysis and how will you actually
implement that on things like equal amounts? You cannot have
the cost be five years and the benefit be 100 years. You cannot
have the cost be American but the benefit be global. It has to
be equal in its analysis so that you really get a good feel of
what that cost-benefit really is, and sometimes that also means
getting other models that disagree in trying to get the best
possible data. How will you handle that, as the leader of OIRA?
Mr. Revesz. Thank you, Senator Lankford. I am a strong
supporter of the use of cost-benefit analysis and evaluating
regulations. A great deal of my academic work has been about
that and has been supportive of the use of cost-benefit
analysis. Executive Orders 12866 and 13563, which President
Biden reaffirmed, made clear that the benefits of regulation
must justify the costs and that regulation should maximize net
benefits except where precluded by statute. President Biden
reaffirmed these executive orders in this memorandum,
``Modernizing Regulatory Review.'' I support cost-benefit
analysis so strongly because it is critically important that
regulations deliver value for the American people.
On the specifics of your question, I do not see cost-
benefit analysis as a Democratic or a Republican discipline.
There is one right way to do it, and it is a way for the
Federal Government comports with OMB Circular A-4, which
provides guidance to agencies and with well-accepted
professional norms of the economics community.
In terms of timelines, the timelines for the evaluation of
cost and benefit should be chosen to capture all of the
effects, whether positive or negative. It would be wrong to
have a long timeline for benefits and to truncate costs, and it
would be wrong to have a long timeline for costs and to
truncate benefits.
For this to be a valuable analytical tool it has to be
carried out in an even-handed way. That is what I promoted in
my scholarship, and that is what I would do if I were lucky
enough to be confirmed to this position.
Senator Lankford. OK. The Supreme Court has recently made a
decision in the West Virginia case dealing with the major
questions doctrine. It is an analysis that, in some ways is
subjective and in some ways pretty clear. It is like the famous
statement in the Supreme Court, ``I know pornography when I see
it.'' The major questions doctrine is Congress is not trying to
hide an elephant in a mouse hole.
The basic question of this is, every agency is going to
come and say, ``I think I have the ability to be able to do
this,'' and OIRA becomes the place to be able to say what on
the major questions doctrine, because this will be come an
issue of litigation and the taxpayer, significantly, years of
confusion if there is not a basic push-pull that happens with
the general counsel and also with the leadership of OIRA.
How will you handle the major questions doctrine?
Mr. Revesz. Thank you, Senator. A very important role of
OIRA review involves making sure that the regulations are
legal. Legality review is contemplated in Execute Order 12866,
and that is something OIRA does alongside its review of the
costs and benefits, and so on.
West Virginia v. EPA is the law of the land. The Supreme
Court decided that case. Clearly agencies need to think about
whether regulations that have vast economic and political
significance have been explicitly authorized by Congress. If
they have then agencies have the authority to do that, and if
they have not then under the Supreme Court's decision they do
not.
Ensuring compliance with that Supreme Court decision is
part and parcel of ensuring compliance with legality, with all
kinds of other questions that might come up in the context of
OIRA review. It would be my job, if confirmed, to ensure that
was the case.
Senator Lankford. OK. Thank you. Mr. Chairman, I will yield
back.
Chairman Peters. Thank you, Ranking Member Lankford.
Senator Hawley, you are recognized for your questions.
OPENING STATEMENT OF SENATOR HAWLEY
Senator Hawley. Thank you very much, Mr. Chairman. Thanks
to the nominees for being here. Congratulations on your
nominations.
Mr. Revesz, if I could start with you, I want to come back
to President Biden memorandum issuing priorities for OIRA back
from January 20, 2021. Those included addressing, I am quoting
now, ``systemic racial inequality and the undeniable reality
and accelerating threat of climate change.''
I want to start with that second one first, if I could. You
have dedicated a substantial part of your career to working on
environmental issues. You have written a series of books,
articles, and other publications on environmental matters,
including Environmental Law and Policy, Struggling for Air:
Power Plants and the ``War on Coal,'' Environmental Law and
Policy, Second Edition, the Globalization of Cost-Benefit
Analysis in Environmental Policy, Air Pollution and
Environmental Justice, the Social Cost of Greenhouse Gases, and
Destabilizing Environmental Regulation: The Trump
Administration's Concerted Attack on Regulatory Analysis.
I think it is fair to say this is a deep interest of yours.
Is that fair?
Mr. Revesz. It is, Senator.
Senator Hawley. You were also, I think, the faculty
director for a time, for a number of years, actually, for the
Program on Environmental Regulation. That is right, is it not?
Mr. Revesz. Yes. It actually became the Institute of Policy
and Integrity, but I have led those programs for a long time.
Senator Hawley. Yes. Very good. I want to ask you about one
of the most significant environmental rules of the last decade,
which is the Obama-era Waters of the United States (WOTUS)
rule. I am sure you are familiar with that rule.
Mr. Revesz. I am familiar with the rule, Senator.
Senator Hawley. Tell me what your view on it is. Did you
agree with the rule at the time that it was issued in 2015?
Mr. Revesz. Senator, I have actually not done as much work
on water as I have done on air, so I would not say I have deep
expertise on issues surrounding that rule. But in general, I
agree that Waters of the United States definition needed to be
clarified, and I thought that the Obama Administration has done
a good job attempting to clarify it.
Senator Hawley. You think that EPA had the legal authority,
to expand the definition of Waters of the United States in the
way they did in the rule?
Mr. Revesz. At the time, Senator, I thought they did. There
have been intervening judicial decisions, and we may be in a
different place. But at the time that that regulation was
promulgated I thought the Obama Administration had that
authority.
Senator Hawley. You say that there have been intervening
decisions and now we are maybe in a different place. Explain
that to me. What do you think?
Mr. Revesz. I have not followed those decisions closely,
Senator, and so I cannot give you a full answer, but I know
that the courts have been issuing decisions in this area, and
obviously if I was in the OIRA position when a proposal
involving a revision of that regulation came before me I would
seek to get up to speed on where things stand.
Senator Hawley. As it is likely to do. Correct?
Mr. Revesz. I do not know what the timing is, and I do not
know whether I will get confirmed for this position.
Senator Hawley. I am sure you do know that the
Administration has proposed a substantial revision and
extension of the Waters of the United States rule. The comment
period on it, I think, is closed. If you are confirmed you are
likely to see it for OIRA review.
I guess my next question would be will you weigh carefully
the interest in having a safe and reliable food supply in the
United States, the livelihood of farmers and ranchers who
depend on access to their land, use of the waters on their
land? Will that weigh in your cost-benefit analysis?
Mr. Revesz. It definitely will. From my perspective again,
as I indicated, there should not be the cost-benefit analysis
of this administration or that administration. This is an
academic discipline. It is a professional discipline with
professional norms. All the facts, whoever bears those
consequences, and whether they are positive or negative, all
that has to be accounted for, and a properly conducted cost-
benefit analysis would do that, Senator.
Senator Hawley. But just to come back to my first question
and to the main issue, it is your legal opinion, as an expert
on environmental law, that the EPA did have the authority, at
least in 2015, to define transitory bodies of water, like
ditches filled with rain, as Waters of the United States, under
Supreme Court precedent?
Mr. Revesz. It was my view then, Senator, and I have not
rethought this issue since then, and I am not completely up to
speed with all the intervening decisions.
Senator Hawley. I have to say I find that disturbing, and
as the Attorney General (AG) of Missouri I was one of the
States that sued the Obama Administration and then continued
that suit into the Trump administration in order to get that
rule repealed precisely because my review of the case law is,
and I think that subsequent courts have agreed, that the EPA
was substantially outside of its jurisdiction in expanding the
definition in that manner.
I have to tell you that the effect, the real-world effect
on farmers and ranchers in the State of Missouri is little
short of catastrophic, which is why you saw so many groups of
farmers and ranchers--and I might just add, particularly small
farmers and ranchers.
Corporate interests are one thing. They can absorb the cost
of these regulations. But when we are talking about family
farms and family ranchers, the costs of complying with these
draconian regulations, that frankly I think are unauthorized by
law, or case law, statutory law or case law, is truly crushing.
I have to say that worries me, and this will be something that
you will be looking at.
Let me ask you about another set of interests. The Biden
Executive Order talked about accelerating climate change and
racial inequality. Do you think cost-benefit analysis should
also consider harms like religious liberties?
Mr. Revesz. Yes, Senator. I think cost-benefit analysis
should consider impacts on any individuals who feel an impact.
Actually, for example, the Obama Executive Order 13563 talks
about human dignity as one of the factors that should be
considered, and I consider religious liberty to be part and
parcel of human dignity.
Senator Hawley. Good. Let me ask you, how would you
evaluate the costs and benefits of a regulation like
Occupational Safety and Health Administration (OSHA's) vaccine
mandate for employers that was struck down by the court in the
National Federation of Independent Business (NFIB) case earlier
this year? Did you support that rule at the time, the OSHA
rule, at the time it was issued?
Mr. Revesz. I did not do any professional work on that
rule, Senator.
Senator Hawley. Did you have a professional opinion on it?
Mr. Revesz. I try to stay in my lane. I express views when
I have studied things, and I have not studied that issue.
Senator Hawley. Let me ask you then to walk through how you
would evaluate the costs and benefits of a regulation like that
one, where you have very significant religious liberty concerns
on one side of the ledger. Give us a sense of your thinking.
Mr. Revesz. Right. I think those are cognizable
consequences that should be evaluated. Now, as you know, not
every cognizable consequence can be quantified and monetized
because the techniques for doing that are not there.
unquantified benefits should be taken into account in a well-
conducted cost-benefit analysis, and actually the Executive
Orders and OMB Circular A-4 provide for that and say that
should happen.
Exactly how they get weighed against quantified
consequences is difficult, and there is no cookbook approach to
doing that, but that is what makes it an important and
challenging endeavor. I would try to do this as well as could
be done, taking advantage of any economic and other work,
thinking through these issues. At the end of the day,
qualitative judgments need to be made, as they need to be made
with respect to other unquantified benefits as well.
Senator Hawley. My time has expired and I know that there
are other Senators who are waiting to question so I will have
some more questions probably for the record and for you as
well, Mr. Shriver.
I would just say, Mr. Revesz, in your case I think we have
seen, in the first two years, not quite two years of this
Administration some truly outrageous and outlandish regulations
that have not survived court review, and the OSHA mandate is
one of them but there are others.
I would hope, if you are confirmed, that you would be a
check on these, frankly, sometimes illegal and unconstitutional
actions. I am glad to hear you say you think it ought to be
nonpartisan sort of review, and I hope that you would be a
nonpartisan and neutral check. Given your long background in
the law, your very distinguished record in the law, I hope that
you would be someone who would stand for the rule of law
against what I think, frankly, have been some outrageous
actions by this Administration.
Thank you, Mr. Chairman.
Chairman Peters. Thank you, Senator Hawley.
Senator Sinema, you are recognized for your questions.
OPENING STATEMENT OF SENATOR SINEMA
Senator Sinema. Thank you, Mr. Chairman, and thank you to
our nominees for joining us. This is not an easy process, and I
appreciate your willingness to serve.
Mr. Revesz, when I hear from Arizonans and Arizona business
owners, they are concerned with complex and burdensome rules
coming out of Washington. Hard-working Arizonans want to comply
with sensible rules, but regulatory agencies do not do a good
job of looking back and making sure that the rules in place are
achieving their goals and limiting impact on businesses.
My Setting Manageable Analysis Requirements in Text (SMART)
Act makes sure that agencies commit to reviewing their most
extensive regulations when they are initially published by
requiring that each major rule include a review plan. This plan
will include methodologies for the review and a proposed
timeline.
If confirmed, will you commit to working with me to pass
this legislation, and more generally, will you comment on the
institutionalization of retrospective review in our regulatory
process?
Mr. Revesz. Thank you for the question, Senator. I will
definitely commit to working with you on this important issue.
I strongly favor evidence-based decisionmaking. It is critical
that the benefits of regulation justify the costs.
Now under Executive Order 12866 framework, that analysis is
generally prospective, but Executive Order 13563 does
contemplate a retrospective review.
I think it is important to learn wherever we can about the
impacts of regulation. We do it at the front end, in deciding
whether regulations should be promulgated, and I agree with the
sentiment that you expressed that retrospective review is
important. I also agree that it is good to be able to have a
data-gathering plan adopted that would make retrospective
review possible.
If confirmed, I really look forward to working, consulting
with the OIRA team and working with you and your staff on how
to make retrospective review a real part of the regulatory
process.
Senator Sinema. Thank you. While guidance documents do not
have the power to bind they do have the power to significantly
influence the behavior of private parties. Understanding this
influential nature, what do you believe is the proper treatment
of guidance documents by OIRA, and specifically, what
flexibility should agencies have in the publication of
guidance, and should these documents be subject to centralized
review? Then finally, what standards do you believe should
apply to such a review?
Mr. Revesz. Thank you, Senator. I think guidance documents
are a very important part of the regulatory process, and they
should comply with transparency and public participation norms.
They should be public. They should be public in a user-friendly
way. Significant guidance documents currently undergo OIRA
review, and I think that is appropriate. We are operating under
an OMB memorandum dating back to 2007.
If confirmed, I would make sure that there is in place a
guidance process that is transparent, that the American people
have access to the information, that it has opportunities for
meaningful public participation, and undergoes OIRA review
where the guidance is labeled to be economically significant.
I think those are all important components of a well-
functioning guidance process, and I will do whatever I could in
this position to make sure that the guidance process is working
as well as it can for the American people.
Senator Sinema. Thank you. I am a strong believer in the
benefits of cost-benefit analysis, as articulated in Executive
Order 12866 and OMB Circular A-4. Unfortunately, it seems that
many individuals believe that this analysis is simply a code
for deregulation and weakened Federal engagement.
First, could you provide a brief overview of your
understanding of the correct role of cost-benefit analysis in
our rulemaking process, and second, what steps will you take,
if confirmed, to highlight the positive outcomes associated
with robust analysis and a strong, independent OIRA?
Mr. Revesz. Thank you, Senator. In all of my work I have
stressed the importance that cost-benefit analysis should play
in the regulatory process, except where prohibited by statute.
The reason is that regulations should evaluate all
consequences, positive and negative, on the American people.
I believe that properly conduct, cost-benefit analysis
should not have, and does not have, an anti-regulatory impact--
I wrote a book about that--which does not mean that it has not,
from time to time, been conducted in ways that had that impact.
I think the important thing is to make sure that all costs and
benefits are considered in a fair and even-handed way.
For example, at time when unquantified benefits were
ignored or when the indirect consequences of regulation were
taken into account if they were negative but ignored if they
were positive, if that happens cost-benefit analysis will have
an anti-regulatory effect. I will make sure, if confirmed, that
I will do everything I can to seek cost-benefit analysis be
carried out in an even-handed way so that it is neither a
Democratic tool nor a Republican tool, neither a tool that
favors a large amount of regulation or opposes regulations, so
that it does an accurate, even-handed, fair weighing of the
consequences of regulation. That is what I see it doing, and I
see that as being extremely important.
Senator Sinema. Thank you. For my last question, as one of
his first actions in office, President Biden issued his
Modernizing Regulatory Review memorandum. The memo included a
request for recommendations concerning how OIRA can become more
proactive in promoting and undertaking regulatory initiatives.
First, considering the limited size of OIRA, do you believe
that it is feasible for desk officers to undertake the
promotion of discretionary regulatory actions by agencies, and
second, considering the need for an independent OIRA, will this
unduly politicize the office?
Mr. Revesz. Thank you, Senator. OIRA's role is primarily
reactive and consists of reviewing regulatory impact analyses
prepared by agencies. But since the promulgation of Executive
Order 12866, OIRA has played somewhat of a proactive role with
respect to the submissions by agencies of their unified
regulatory agendas. When John Graham was the OIRA administrator
in the Bush Administration he instituted a practice of issuing
prompt letters. One such letter resulted in a requirement that
certain large buildings have defibrillators, which as a
requirement has led to the saving of a large number of lives,
of people who would have died from heart attacks.
A proactive role is not completely foreign to OIRA, and
President Biden asked OIRA to consider what proactive role
might be desirable. If confirmed, I would work on how best to
implement the Presidential directive. I do not think that a
proactive role would politicize OIRA, because OIRA's
intervention will be limited to what OIRA does under Executive
Order 12866, which is to ensure that the benefits of regulation
justify their costs.
When Administrator Graham in the Bush Administration issued
the prompt letter that led to defibrillators, he did that
because he understood, from his background as a public health
expert, that there were large benefits that would come from
this requirement that were being left on the table because
agencies had not moved to do that.
Senator Sinema. Mr. Chairman, my time has expired. I have a
question for Mr. Shriver and I will submit it for the record.
Thank you.
Chairman Peters. Thank you, Senator Sinema.
Senator Rosen, you are recognized for your questions.
OPENING STATEMENT OF SENATOR ROSEN
Senator Rosen. Thank you Chair Peters, Ranking Member
Lankford, and thank you both for your willingness to serve
these important roles.
I am going to move a little bit over to talking about IT
modernization in OPM. Mr. Shriver, I really thank you for being
here today. I would like to talk about Government
Accountability Office (GAOs) high-risk report. It comes out
every two years, and identifies areas in the Federal Government
at high risk for fraud, waste, or mismanagement. The last
report made a number of recommendations for addressing these
high-risk areas, and OPM, of course, has a large role to play
in addressing them.
Specifically, in the area of IT modernization and workforce
training, one of the report's recommendations for improving the
Federal Government's management of tens of billions of dollars
of IT investments was establishing key IT workforce planning
processes.
Mr. Shriver, if confirmed, what are your plans to work with
individual Federal agencies to ensure that they have these
workforce planning processes in place, and how, in your new
capacity, will you work to recruit and retain specifically
cybersecurity staff?
Mr. Shriver. Thank you very much for your question,
Senator, and I think certainly the IT modernization issues that
you have raised have been priorities at OPM and will continue
to be priorities for us. If I am fortunate enough to be
confirmed as Deputy Director it is an area that I would be
happy to plan active role. Currently in my day-to-day role as
the Associate Director for Employee Services I am not as
involved in that.
I can say that I think with respect the GAO high-risk list
and recommendations overall, our strategy at OPM has been to
embed those into our strategic plan. We have a new OPM
strategic plan that we released earlier this year, and that
plan is informed by the recommendations from the Government
Accountability Office, including on IT. We have metrics that we
are using to measure progress. We have regular leadership-level
meetings to talk strategically about implementation of that
plan and those recommendations. I would continue to play a
role, and as Deputy Director would actively engage on the IT
issues.
With respect to cyber talent, we have major challenges in
the Federal Government, and there are some good practices that
have begun. I was happy to work with the Department of Homeland
Security on deployment of its cyber talent management system,
which has some interesting innovations when it comes to hiring
and compensation and the way that cyber talent is deployed
across DHS.
I think there are a lot of lessons to learn there, and I
would welcome to the opportunity to work with you and this
Committee on how we might develop a governmentwide cyber talent
strategy that puts the rest of the agencies on more of a level
playing field with DHS and the Department of Defense (DOD), who
also has its own authority.
Senator Rosen. I would very much like to work on that
because we do need to do IT modernization across the whole
government, and we have a skills gap issue. GAO's most recent
high-risk report also identified strategic human capital
management as a high-risk area. It is downgrading the Federal
Government's progress rating in this area from its 2019 report.
In doing so, it cited that what was at the time, in 2021,
the lack of a Senate-confirmed leadership at OPM for 18 of the
prior 24 months, it really led to a mission-critical skills gap
across the Federal workforce. We know this in every area.
Thankfully, OPM now has a confirmed director in place, but
as deputy you will still have a key role to play in addressing,
again, the skills gap required to do this modernization as
still persists.
The training, the skills gap, how do you think you can
address it? What can we do here to help you address it as you
think about your new role?
Mr. Shriver. Thank you for your question, Senator, and
thank you for acknowledging that the lack of consistent
leadership in the past at OPM has been a major contributing
factor in that area. Under Director Ahuja's leadership, and if
I were to be confirmed as deputy, we would be certainly
prioritizing. I am excited about making progress in this area.
We have been doing a lot of work on the skills gap at OPM.
One of the things that I think is important, Senator, is
actually hiring people based on skills instead of proxy for
skills. Many agencies, historically, have been hiring folks
maybe because they have a college degree or because they rank
themselves on self-assessment questionnaires. We have been
implementing a new skills-based hiring initiative, where we
work with agencies to really define what the qualifications are
that are needed for the jobs and then how they can assess
candidates, based on the actual skills that they have.
One of the techniques that has been successful in some
pilot projects is actually engaging subject matter experts in
the hiring process. The subject matter experts know what to
look for on a resume, they know what to listen for in an
interview, and they know what to look for in a writing sample.
That is critical.
I think in addition to looking to hire people based on
skills we certainly need to work on our career development, on
our training opportunity, work on up-skilling. I know OPM has
had some successful up-skilling pilots in the past around
cybersecurity, around the Internal Revenue Service (IRS), and I
think that we have an opportunity to build on those efforts and
help align workers' existing skills to new jobs and make sure
that we provide the training they need to be successful.
Senator Rosen. Yes, I particularly like the up-skilling. I
think that really helps. You have employees that are already
there. It helps move them around, someplace they are already
familiar with. Of course, the proxy for skills, that is really
great because people do have a lot of skills they bring to the
table, and it is important for us to identify them.
Just in the few seconds I have left I know Senator Sinema
was talking about science-based rulemaking. Mr. Revesz, in the
prior administration any rulemakings were heavily influenced by
politics rather than science or legal principles, and it is
crucial that all Federal agencies, including the EPA,
Department of Interior, Department of Energy use the best
science available in order to protect public health and, of
course, the environment.
I know you spoke a little bit to Senator Sinema's question,
but you talk about your analysis and how you are going to do it
and how you are going to keep it free of politics. Is there
anything else that you would like to let us know about how you
want to work on those things and make sure that we have the
best rulemaking for the agency, for the people, and the
environment as well?
Mr. Revesz. Thank you for the question, Senator. As I
mentioned, I think it is just important that in the analysis
all of the consequences be taken into account. I wrote a book
about some of the analytical failings in the analysis done by
the prior administration, and actually the courts ended up
striking down a number of those rules based on the poor quality
of the analysis.
For example, one mistake was to essentially equate
unquantified benefits as non-existent, just because the
techniques for quantifying them had not been developed, as
opposed to trying to figure out in a qualitative way how to
take them into account. There were also regulations that
essentially ignored the indirect consequences of regulation if
they were positive but took them into account if they were
negative. That is putting a thumb against regulation.
All of those are erroneous techniques, are not consistent
with the methodology and with professional understandings, and
if confirmed, I would make sure that the best professional
understandings of how to do this work are followed by OIRA.
Senator Rosen. Thank you. My time has expired.
Chairman Peters. Thank you, Senator Rosen.
I will be shortly recognizing Senator Padilla but I am
going to need to step out to another hearing and Senator Carper
will take the gavel in my absence.
Senator Padilla, you are recognized for your questions.
OPENING STATEMENT OF SENATOR PADILLA
Senator Padilla. Thank you, Mr. Chair. First of all, Mr.
Revesz, it was a pleasure spending some time with you in my
office earlier in this week. My first question is for you.
One of OIRA's most significant functions is its centralized
review of, quote, ``significant Federal regulations,'' which
impact millions of Americans. Similar to elections and election
administration, I believe our democracy works better when there
is greater public engagement from all groups and a broad range
of relevant stakeholders that can contribute to, in this case,
government processes, not just turning out and voting. I
believe this should also apply to the regulatory process.
What populations do you think are currently underserved by
the way the regulatory process is functioning? I know you have
done some research in this area in the past.
Mr. Revesz. Thank you for the question, Senator. I think it
is very important that in addition to having aggregate
estimates of costs and benefits we understand how regulations
affect subsections of the American people. It could be farmers.
It could be business owners. It could be workers. It could be
people with asthma or other respiratory illnesses. Because not
everyone is affected by pollution or by other consequences in
the same way, and it is very important to understand that.
I do not think the regulatory process has done a
particularly good job at disaggregating this information, and I
think for a while that was because the techniques for doing
that were not available. I think they have improved
significantly since then. President Biden has called for this
work to be done as part of his modernizing memorandum.
I have written about some very simple improvements that
could be done in the regulatory process, which is, for example,
to look at the distributional consequences of different
alternatives to a particular proposed rule and not only to the
rule that is actually proposed. we look at alternatives in
connection with the determination of aggregate costs and
benefits, but we have traditionally not looked at alternatives
to determine distribution. As a result, we cannot make the best
decisions that could be made.
If confirmed, I would very much want to work with the
agencies and with the OIRA staff and get advice from Members of
this Committee on how best to make sure that we have the most
sophisticated understanding of the disparate impact of both the
adverse consequences the regulations seek to address and of the
regulations themselves on different groups of American people.
Senator Padilla. I appreciate your thoughtfulness on this
and already coming forward with some suggestions or
recommendations on how to improve the process and frankly make
it more equitable as a result.
I know some of my colleagues--Senator Peters, Senator
Sinema and others--have talked about the process for
modernizing regulatory review, recommendations to revise
Circular A-4 specifically, so I will not be repetitive on those
items. But I did want to associate myself with their concerns,
their questions, and their prioritization.
In the time remaining I will turn to Mr. Shriver, and this
is a little bit of a follow-up to questions from Senator Rosen.
She was specific to cybersecurity, sort of workforce concerns
in general, and I want to weave in two items I have asked
questions of from your colleagues that have come through the
Committee for consideration before.
We talk specifically about the need for science,
technology, engineering, and mathematics (STEM) talent as you
recruit, as you retain workforce, and diversity within that
cohort. Yes, I am proud to speak as a graduate from
Massachusetts Institute of Technology (MIT) with a mechanical
engineering degree, trying to up the ranks of STEM talent on
this side of the dais.
In May, the Senate passed my resolution expressing the
Senate's support for increasing the number of Latino students,
specifically, and in professionals entering STEM fields, not
just in the private sector but in the public sector as well, in
all levels of government. Latinos make up 17 percent of the
overall workforce in the United States but represent less than
8 percent of the workforce in STEM fields.
The Federal Government is the nation's largest employer,
with hundreds of thousands of STEM employees. I am interested
in helping Federal agencies fill the needed positions with
qualified, diverse perspectives from various backgrounds. Mr.
Shriver, I would appreciate any thoughts you may have on how to
build a more diverse STEM pipeline and workforce for the
Federal Government.
Mr. Shriver. Thank you, Senator Padilla, for your question,
and I think you have put your finger on a critical issue for
the Federal Government. We absolutely need to have diverse
pools of talent, pipelines of talent, into Federal positions.
We have been meeting with colleges and universities around
the country, including Historically black colleges and
universities (HBCUs), minority-serving institutions (MSIs), and
what we are hearing from them is, No. 1, that they would like
to see more recruiting from the Federal Government, but No. 2,
only if that recruiting actually leads to real positions. We
have had a real drop-off in the number of interns that have
been brought into the Federal Government.
One of the priorities that I have been working on in my
current role under Director Ahuja's leadership is how we can we
reinvigorate our early career talent hiring. There are multiple
ways that we are working on that. We did implement some
streamlined hiring authorities that had been enacted under the
previous administration for post-secondary interns and college
graduates.
We are taking a fresh look at our Pathways program, which
is the primary program that agencies use to hire interns and
recent college graduates. We are working on new guidance on
paid internships. Under President Biden's Executive Order on
diversity, equity, inclusion, and accessibility he directed OPM
and OMB to issue guidance to agencies on how to increase the
number of paid internships and decrease agency reliance on
unpaid internships, which of course are obstacles to
participation in Federal opportunities.
I look forward to OPM with OMB issuing that guidance later
this year, and we will continue to engage with the communities
to make sure that we are living up to what the law requires,
which is the Federal Government should be recruiting from all
segments of society.
Senator Padilla. Great. Thank you very much. I look forward
to following up on both of these items with both of you.
Thank you, Mr. Chair.
OPENING STATEMENT OF SENATOR CARPER
Senator Carper [presiding.] Senator Padilla, you are
welcome. We just swapped out chairs here. One in, one out. I
just joined you from another hearing and I am happy to be here
at this one.
Mr. Shriver, good to see you. I heard, Mr. Revesz, name
pronounced in a number of ways. How do you pronounce it?
Mr. Revesz. Re-vez [phonetic], Senator.
Senator Carper. That is great. That was my only question
for you.
Mr. Revesz. I hope I answered it well.
Senator Carper. You did. Thanks a lot for joining us today.
I thank you both for your willingness to serve in these two
very important positions.
Mr. Shriver, my understanding, and I think it is our
understanding, is OPM is rebuilding its staff and its
operations after experiencing insufficient resourcing during
the last administration. What are some of the challenges ahead
for OPM as it rebuilds its organization, and what are the
opportunities? I like to say in adversity lies opportunity. But
what are some of the opportunities, and how would you, if
confirmed as Deputy Director, build on those opportunities to
help OPM drive efforts to modernize the Federal workforce
policy across the Federal Government?
Mr. Shriver. Thank you so much for the question, Senator
Carper. It is both a challenging and an exciting time to be at
OPM for the very reasons that you identified.
In my current role as Associate Director for Employee
Services I have been leading the Administration's
governmentwide Federal workforce policy, and I have been doing
it with a team that is not as staffed up as it had been
previously, a team that lost a lot of subject matter expertise.
What we have been attempting to do while we rebuild that is
also reestablish OPM as the Federal Government's strategic
human capital leader.
It has been very exciting to work on the President's
ambitious agenda for the Federal workforce. We want these
challenges, but there has been much work to be done. We have
talked about several of the issues here today that OPM has been
working on and needs to continue to work on. It has been really
important to prioritize and to work hard toward those
priorities. It has been really important to think strategically
and use our resources wisely because they are scarce.
Now I think the opportunity that is here is re-imagining
what OPM means as the strategic human capital leader. We worked
very closely, for example, Senator, with the agencies that were
receiving substantial funds under the Bipartisan Infrastructure
Law (Infrastructure Investment and Jobs Act), and we worked
with them right when the law was passed to understand what
their human capital needs would be. We brought together teams
of people from across OPM to serve them. I think what we saw
were some successful early results on how an approach like that
can bring efficiencies into the Federal human resources (HR)
process. We are going to take those lessons learned and build
that out at OPM writ large.
That is one example of where there was an opportunity to
kind of transform the way that OPM is serving agencies.
Senator Carper. Proving once again that in adversity lies
opportunity. Albert Einstein.
Mr. Shriver, in the past when meeting with agencies Chief
Human Capital Officers about modernizing the Federal workforce
and the hiring and retention practices, often we have heard
from them that OPM was an obstacle rather than a partner in
developing and implementation demonstration projects to improve
hiring and retention. Do you believe that OPM should be a
partner in these initiatives, and if so, if confirmed, how
would you ensure that OPM is truly a partner to these Federal
agencies?
Mr. Shriver. Thank you for the question, Senator. I
absolutely believe that OPM should serve as a partner to
agencies. Of course, we have an important compliance role that
we play too, and that is critical. But I think I would build on
my previous answer and say that we really are looking to re-
imagine how OPM can be a strategic partner to agencies and help
them address the human capital challenges that they are facing,
day in and day out.
It was really wonderful that the Chief Human Capital
Council was returned to OPM at the beginning of the
Administration. We have been working hard to build our
relationships with the so-called CHCOs, day in and day out. We
have not only regular meetings with all of the chief human
capital officers, we have instituted a number of different
engagements, including personnel policy office hours, where we
bring our subject matter experts to the meeting to answer
questions that CHCOs are having.
We have been engaging prior to issuing regulations and new
policy with the chief human capital officers to ensure that
their views, as critical stakeholders, are encompassed. We have
encouraged them to make robust use of the OIRA process for
interagency review of regulations so that we can get all of
their perspectives. Again, like we did with the infrastructure
implementation we are looking for how we can engage early with
them as strategic partners to bring human capital to the top of
the list when it comes to implementing these major programs.
Senator Carper. Good. Thank you. One question for Mr.
Revesz and then I think we are going to have to break off.
Mr. Revesz, on January 20th last year, President Biden
signed a Presidential memorandum to modernize regulatory
review, as you may recall. If confirmed as Administrator of the
Office of Information and Regulatory Administration, it will
fall to you to lead the agency in implementing this memorandum.
What is your approach in striking a balance between social,
environmental, economic, and public health consideration when
reviewing regulations?
Mr. Revesz. Thank you, Senator. I think the implementation
of the memorandum is enormously important. The President gave a
clear direction, and if confirmed, I look forward to working
with the OIRA team to do that.
One important component of the memorandum is bringing OMB
Circular A-4 up to the present. It is a very good guidance
document. It is 20 years old. We need to make sure that all
relevant benefits of regulation are taken into account, if they
can be quantified that they are quantified, same on the cost
side, and that we better understand how regulations affect
different groups of Americans in different ways, and that
regulatory process will work better if we have that
understanding.
We already do it, for example, under statutes for small
businesses in the Regulatory Flexibility Act (RFA) and the
Small Business Regulatory Enforcement Act (SBREFA). The
President asked for this work to be done more broadly, and if
confirmed, I very much look forward to implementing the
President's directive so that regulations can work better, not
just for the American people in general but for individual
groups of the American people.
Senator Carper. Thank you for that response.
I think I am going to hold it right here. Senator Lankford
is going to be joining us. He has asked that we hold and wait
so he can ask some questions as well. He is very mindful of
these issues and very knowledgeable about the issues that we
are talking about, and I know he very much wants to be part of
the dialog.
In the 30 seconds that we have until he gets here, do any
of you have, in the audience, a family member? Mr. Shriver, do
you?
Mr. Shriver. Yes, Senator. I have my wife.
Senator Carper. Would your wife raise her hand? What is her
name?
Mr. Shriver. Her name is JoAnn Martinez.
Senator Carper. Hi, JoAnn. I noticed that while you were
speaking her eyes were rolling. (Laughter.]
That usually happens with my wife and me. It is a trait I
admire in women.
Anybody else besides your wife?
Mr. Shriver. I have two of my three children. My other is
off at school.
Senator Carper. Sons and daughters, raise your hands,
please, the Shrivers.
Mr. Shriver. Mitch and Justine.
Senator Carper. All right. Good to see you guys. Thanks for
sharing your husband and your dad with all of us.
All right. James, my friend. Happy to pass the gavel to
you.
Senator Lankford [presiding.] Senator Carper, thank you for
vamping for me. I appreciate that very much. I never have to
worry if you are going to run out of words. [Laughter.]
Senator Carper. We make it up as we go along.
Senator Lankford. I got it. Thanks again for the
conversation, and let me ask some additional questions.
Mr. Shriver, we did not get a chance to be able to talk in
the last round of questioning so I want to walk through several
things back with you. Thanks again for the long conversation
that we had to be able to walk through a lot of issues in
greater depth than we will have the opportunity to be able to
do here.
There is a challenge in some of our agencies on the Federal
workforce getting back to the office post-Coronavirus Disease
2019 (COVID-19). Some of them have been very effective with
that. some of them are continuing to be able to work through
what is going to be telework, what is going to be remote work,
what is going to be in-office work.
But there is some in-office work that is still not actually
in-office, and it is slowing down and we have a backlog in
multiple different agencies right now, noticeably the IRS,
State Department and passport work. We have a lot of issues and
backlogs in multiple of our entities, in Social Security, that
have face-to-face needs to be able to connect with folks.
How do we get folks back to work so we can catch up with
the backlog? Most of corporate America, most private businesses
around the country are open again and engage. How do we get the
Federal workforce back in?
Mr. Shriver. Thank you for the question, Senator, and I
think I want to first start by acknowledging that during the
pandemic fully half of the Federal Government continued to show
up in the workplace, day in and day out, to do the work of the
American people, and we owe them a debt of gratitude for that.
You are right that for the rest there was a different
footing. There was, in many places, a maximum telework footing,
and there was a process that the administration ran around re-
entry, and that process was laid out in a memorandum, M-21-25,
that OMB, OPM, and General Services Administration (GSA) issued
together. The thing I want to highlight from that is that these
decisions need to be made with delivery of the mission in mind.
Productivity, delivery of the mission, those need to be
paramount.
So agencies conducted their re-entry back. Most of them got
done in April and a few took a little bit longer, but that re-
entry has occurred. Now we are in that process of evaluating.
Now that we have re-entered, how are these new hybrid work
arrangements working? What is the impact on productivity? What
is the impact on mission delivery? It is important that
agencies continue to make that assessment.
I think the one last thing I would say, Senator, though, is
that I think if an agency were to just go back to the way
things were prior to the pandemic in February 2020, I think
that they would lose a lot of talent to other sectors. This
needs to be done strategically, but I think we can all agree we
need to put productivity and mission delivery first.
Senator Lankford. We do. Actually, strategically does not
mean delay. It can be intentional, and that has been the
challenge that a lot of my constituents have in Oklahoma, that
will contact me and say, ``Hey, I cannot get hold of somebody
face-to-face in Social Security'' or ``I cannot get my passport
done'' or ``I cannot get access to IRS.'' It is always there
was a person there, I have to meet with a person, I have to be
able to answer it, and they are not there. They are confused
because their bank is open, the restaurants are open, their
business is open, everybody else is open, and they are saying,
``Well, we are still trying to be able to work through the
process of coming back in.''
I think that is the issue that really infuriates Oklahomans
is to say we are all open and suddenly it is, OK, we are
different than you. We are not open yet. But it is also behind.
So getting the mission done is incredibly important, as
well as protecting those individuals that are also in the
workforce, because I have great respect for the Federal
employees as well, and to continue to be able to protect them
as we do everybody else.
You and I had a good conversation yesterday about the
world's largest pilot program for telework that just happened
with COVID. It is interesting to me, the Federal studies that
were done in agencies just a few years ago said about 19
percent of their employees could go telework. Then COVID
happens, and in some agencies we had 80 percent plus that were
in telework posture on it, and everybody kind of figured out
how to be able to make this work.
Now, post-COVID, we have people back in the workforce but
we have also learned that we can do things teleworking and we
can do things remote work.
My question to you is, in remote work, that is an
individual that is not living around the headquarters, is not
expected to be sometimes in the office and sometimes working
somewhere else, that is not expected to be in the office, a
true remote work individual, what are your thoughts and
opinions about expanding the highly qualified pool of workforce
around the country to be remote work individuals and those
individuals that may be spouses of military that work in very
remote military installations that have a very difficult time
having a career, that may be able to get a job on the different
base or post but they cannot really build a career anywhere
because they move every two to three years with their spouse,
giving them the opportunity to build a career in the Federal
family, based on doing remote work wherever they may be?
Mr. Shriver. Ranking Member Lankford, thank you for the
question, and I enjoyed talking to you about this topic because
I think it is really a game-changer for the Federal Government.
I think that agencies are experimenting right now with some
remote work pilots. There was a little bit of remote work that
happened prior to the pandemic. I think they are experimenting
with where maybe we can think more broadly about it.
One of the things that is exciting about remote work is it
opens the possibility of Federal employment to communities all
throughout the country, where previously those opportunities
were only available if people moved, sometimes into a different
State, many hundreds of miles. Remote work makes that a new
possibility for those community.
I especially appreciate your connection to military
spouses. We have special authorities in the Federal Government
that allow for a streamlined hiring process for military
spouses, and I think that is sound public policy and something
to build on.
They are rather underutilized, and I think that if we were
able to pair those hiring authorities with remote work
opportunities, where exactly as you say, military spouses could
stay in their same job, no matter where their spouse might be
deployed, I think that would be a good thing for the civil
service, a good thing for the folks that serve our country in
the military, and a good thing for the spouses, because I know
they have a lot to add to what we do day in and day out.
Senator Lankford. Yes. Thanks for mentioning the hiring
authorities on it. We have about 120 hiring authorities, but
every agency still calls me and says, ``I want direct hiring
authority. I do not like any of the 120 that are out there as
possibilities.'' The vast majority of the 120 are not ever
used. They are niche, different hiring authorities that are out
there.
But the whole structure of how we do hiring, 100 days to
hire, the process, you mentioned in some of your written
documents in advance you want to speed up the hiring process
and make that a more efficient process. What are your ideas for
that?
Mr. Shriver. Thank you for the question, Ranking Member. We
certainly do lose out on good candidates for Federal jobs
because of the length of time it takes, so this is something we
must address.
I think one of the top new tools that we have been working
on with agencies is to move away from just the old model of one
job announcement, one job, let us go one at a time and hire
people into the Federal Government, to more pooled hiring. What
I mean by pooled hiring is agencies have similar jobs, right?
Like they are looking for people with similar skill sets. How
can we do a pooled hiring action where we get a whole bunch of
qualified candidates and multiple agencies can then hire from
that? That would make a dramatic impact on the time to hire
because you would do all of this good work--recruiting,
assessing candidates--and have this big pool of well-qualified
folks that any agency could hire from.
I think that is important. I also think it is really
important that we focus on the assessments that we are using to
determine the skills of applicants, because I think too often
what happens, if we do not do a good job of recruiting and
assessing the talent then the hiring manager is not happy with
the candidates they get at the end of the day and they may
start the process all over again, which adds exponentially to
the time to hire.
Senator Lankford. Right, and then you deal with the
dynamics of people self-assessing their own skill level with
that, and they are being taught, make sure you mark yourself at
the highest level of all of them or you are not going to get
there, and you have people say, ``Well, I still have areas to
grow in this.'' They would be a very highly qualified candidate
but they just do not self-assess them as high as their actual
skill level is.
There was a story I heard when I was in Oklahoma several
years ago in one of our Federal facilities that we needed to
hire a forklift driver, and it took over 100 days to be able to
hire someone to drive the forklift. They were having a real
struggle with it because forklift drivers would go to other
companies and they would get hired faster, and then by the time
we got back to them in the Federal entity they have already
worked at some other place another two months and they are not
going to quit.
The other thing was they would say, ``I am not going to
rank myself the highest level as a forklift operator because I
have only driven a forklift three years. I know a friend of
mine that he has driven a forklift 20 years. He is a lot better
than I am, so I am not going to rank myself as high as him,''
though they are highly qualified. They have been doing it for
two, two and a half, three, four, five years, and would
definitely meet the standard of what we are actually looking
for it, but they have their own challenge with the whole
assessment process.
We are very interested in this as a Committee on what we
can do to actually fix the hiring process, to be able to
expedite this, to get more transitions from interns into
positions, more highly qualified individuals within the pool
nationwide, more individuals that will want to be able to
engage in this process and it be a faster process, to be able
to work through it.
So just know that this Committee is very interested to be
able to work with you to be able to accomplish that in the days
ahead.
Mr. Shriver. Thank you for your interest, Ranking Member. I
would be happy to work with you and the Committee on these
issues.
Senator Lankford. Again, this should not be a partisan
issue. We should go get the best possible people to be able to
serve their neighbors and their friends across the Nation,
serving in the Federal family on this.
Mr. Revesz, I want to be able to follow up on a couple of
things as well. I asked you yesterday a very difficult
question. Independent agencies are independent of who? Because
independent agencies often feel like they are independent of
everyone, but I do not believe that is actually so. I am not
sure, based on your response yesterday, that you believe it is
actually so as well.
The challenge is getting OIRA's oversight to be able to
help independent agencies to actually do the rulemaking process
and the regulatory process for them, to be able to make sure
they are making good decisions. Again, we do not want to end up
in years of litigation based on they just did not have good
accountability. How do we deal with the issue of independent
agencies?
Mr. Revesz. Thank you, Senator. As I indicated, I strongly
believe that the benefits of significant regulation should
justify their costs, and the regulation agencies should seek to
maximize and add benefits of regulation as the Executive Order
provides, except where statute dictate otherwise.
I have written about how the quality of analysis has been
better in the Executive Branch and independent agencies, and I
believe that OIRA's role in diffusing good practices throughout
the Executive Branch accounts for these differences.
There are ways in which OIRA could help analysis in
independent agencies, short of extending the Executive Order. A
model for that is memorandum of understanding (MOU) between the
Commodity Futures Trading Commission (CFTC) and OIRA following
the passage of the Dodd-Frank legislation.
On the specific question of extending the Executive Order,
in 1981, the Office of Legal Counsel (OLC) issued an opinion
stating that the President has the authority to extend the
Executive Order to independent agencies, and the Executive
Order already extends to independent agencies with respect to
the requirement that they submit their unified regulatory
agendas to OIRA for review every year.
If confirmed, I would like to work with the OIRA team to
ascertain ways in which OIRA can help improve analysis across
the Federal Government, not just in the Executive Branch but
across independent agencies as well, and I look forward to
working with you and members of your staff on that question.
On the specific decision whether the President should
extend the Executive Order to independent agencies, while it is
one for Congress and the President to make, I think Presidents
for the last 40 years have known that they have that authority,
and for whatever reason Presidents for the last 40 years have
not extended it with respect to this aspect of OIRA's work,
even though they have extended it with respect to other aspects
of OIRA's work.
Senator Lankford. OK. I look forward to that ongoing
conversation.
One final question for you on this, and it is dealing with
some of the environmental review studies, modeling, and such,
that actually goes through cost-benefit analysis. Occasionally
the studies that are used for regulatory and cost-benefit
analysis are not made public. They are proprietary models, is
typically the conversation that is made. The American public
has a new regulation imposed on them but actually cannot see
the model of why this is actually a benefit or what the cost
could be because the model is proprietary.
The challenge is if the regulation is going to be public,
the reason the regulation should be there should also be
public. How do we deal with these secret studies that are in
the background, to say, ``Trust me. This warrants this, but you
cannot see it''? How do we deal with that?
Mr. Revesz. Thank you, Senator, for the question. I am a
strong believer in transparency in the regulatory process, and
scientific studies are often the building blocks of regulation
because they are what tells us that pollution is causing this
number of deaths or this number of illnesses or this number of
lost work days, and so on. I believe that scientific studies
should be public, and the underlying information should be
public.
There is an issue about how to protect the individual
identities of the subjects of scientific studies. I think,
probably all of us would be a little worried about
participating in studies if we thought that our sort of full
health records for the rest of our lives would be available on
public websites. In days of large data, it is sometimes
difficult to mask that information, because there have been
studies showing how this information can then be put back
together and associated with individual people. That is a
challenge.
I think the scientific community has norms about this, and
in general, agencies do rely on peer-reviewed studies, and
should rely on peer-reviewed studies. Peer-reviewed studies
have to meet the standards of scientific journals, which deal
precisely with this issue. It is an issue I care about and I am
interested in, and if confirmed, I would see how best we can
promote the transparency norms that I hold so dear while, at
the same time, protecting the privacy interests of individuals
who are subject to these studies.
Senator Lankford. Right. The challenge of that is a peer-
reviewed study is still a limited group of individuals to be
able to see it, and you are still into the ``Trust me, we have
looked at it and it is OK'' model. We have to be able to have a
way to be able to have models, systems, processes, that if we
are going to have transparency, we have full transparency. It
is the joy of us, as Americans. We love each other and we do
not trust each other at the same time. We try to work through
the process of saying if we are going to make this decision
together, being ``we,'' the people, then we need to be able to
have the access to look at it. Whether they actually look at it
or not, when you tell somebody I cannot see it, then
immediately the suspicion is, what is in it? That is a fair
question through our history to be able to ask, and it would be
one of those things that we have to be able to work through.
Mr. Revesz. I agree, Senator. I think generally, scientific
journals have increased the requirements for making data
public, and there has been a significant trend in that
direction. I think it is a salutary one.
Senator Lankford. Yes. It is one we have to resolve.
Gentlemen, thanks again. Thanks to your families for being
here for a long day of questioning. All of this will go on the
record. There will be additional questions that will be coming
for questions for the record, and we will get those to you.
The nominees have filled out their responses to
biographical and financial questionnaires,\1\ answered pre-
hearing questions submitted by the Committee,\2\ had their
financial statements reviewed by the Office of Government
Ethics (OGE). Without objection, this information will be made
a part of the hearing record with the exception of the
financial data, which is on file and available for public
inspection in the Committee offices.
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\1\ The information on Mr. Shriver appears in the Appendix on page
40.
\2\ The information on Mr. Revesz appears in the Appendix on page
90.
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The hearing record will remain open until noon tomorrow,
September 30th, for the submission of statements and questions
for the record.
Again, thank you very much for the hearing today and we
look forward to the ongoing process. This hearing is adjourned.
[Whereupon, at 12:14 p.m., the hearing was adjourned.]
A P P E N D I X
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