[House Report 115-19]
[From the U.S. Government Publishing Office]
115th Congress } { Rept. 115-19
HOUSE OF REPRESENTATIVES
1st Session } { Part 1
======================================================================
OIRA INSIGHT, REFORM, AND ACCOUNTABILITY ACT
_______
February 27, 2017.--Ordered to be printed
_______
Mr. Chaffetz, from the Committee on Oversight and Government Reform,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 1009]
The Committee on Oversight and Government Reform, to whom
was referred the bill (H.R. 1009) to amend title 44, United
States Code, to require the Administrator of the Office of
Information and Regulatory Affairs to review regulations, and
for other purposes, having considered the same, report
favorably thereon without amendment and recommend that the bill
do pass.
CONTENTS
Committee Statement and Views.................................... 1
Section-by-Section............................................... 12
Explanation of Amendments........................................ 14
Committee Consideration.......................................... 14
Roll Call Votes.................................................. 14
Correspondence................................................... 16
Application of Law to the Legislative Branch..................... 18
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 18
Statement of General Performance Goals and Objectives............ 18
Duplication of Federal Programs.................................. 18
Federal Advisory Committee Act................................... 18
Unfunded Mandate Statement....................................... 18
Earmark Identification........................................... 19
Committee Estimate............................................... 19
Budget Authority and Congressional Budget Office Cost Estimate... 19
Changes in Existing Law Made by the Bill as Reported............. 19
Minority Views................................................... 32
Committee Statement and Views
PURPOSE AND SUMMARY
H.R. 1009, the OIRA Insight, Reform, and Accountability
Act, codifies current practices at the Office of Information
and Regulatory Affairs (OIRA) for centralized review of
regulations as required by Executive Order 12866. The bill also
establishes new transparency measures for OIRA's regulatory
review, such as requiring increased disclosure when extending
review time, explanations about regulations that are dropped
from the Unified Agenda, and a redline of changes agencies make
to a regulation while under OIRA review.
BACKGROUND AND NEED FOR LEGISLATION
Presidents of both parties have required a centralized
review of regulations since the 1970s.\1\ In 1980, the
Paperwork Reduction Act (PRA) created OIRA within the Office of
Management and Budget (OMB) to serve as a central review of all
agencies' information collection requests.\2\ Shortly
thereafter, President Reagan issued Executive Order (EO) 12291,
which required OIRA to review all regulations and required
agencies to conduct cost-benefit analyses. While not without
controversy,\3\ every president since President Reagan has
required a centralized review of regulations at OIRA, as well
as agency cost-benefit analysis of regulatory actions.
---------------------------------------------------------------------------
\1\Maeve Carey, Cong. Research Serv., RL32397, Federal Rulemaking:
The Role of the Office of Information and Regulatory Affairs 5 (2011)
[hereinafter OIRA Federal Rulemaking (2011)].
\2\Paperwork Reduction Act, 44 U.S.C. Sec. Sec. 3501-3521 (2006).
\3\See Philip Shabecoff, Reagan Order on Cost-Benefit Analysis
Stirs Economic and Political Debate, N.Y. TIMES, Nov. 7, 1981, http://
www.nytimes.com/1981/11/07/us/reagan-order-on-cost-benefit-analysis-
stirs-economic-and-political-debate.html?pagewanted=all.
---------------------------------------------------------------------------
In 1993, President Clinton replaced EO 12291 with EO
12866.\4\ In 2011, President Obama issued EO 13563, reaffirming
the principles and requirements of EO 12866.\5\ Pursuant to
President Clinton's 1993 order, OIRA is designated as the
``repository of expertise concerning regulatory issues.''\6\
President Obama described OIRA's reviews as a ``dispassionate
and analytical `second opinion' on agency actions.''\7\ EO
12866 limited OIRA's review of regulations to only significant
regulations. Significant regulations were generally defined as
a rule that may ``have an annual effect on the economy of $100
million or more or adversely affect in a material way the
economy, a sector of the economy, productivity, competition,
jobs, the environment, public health or safety, or State,
local, or tribal governments or communities.''\8\ OIRA
determines whether a rule is ``significant,'' even if the
issuing agency does not initially deem it as such.\9\ The
Office reviews ``significant regulatory actions'' and
accompanying cost-benefit analyses from executive branch
agencies at the proposed and final rulemaking stages.\10\
---------------------------------------------------------------------------
\4\Exec. Order No. 12,866, 58 Fed. Reg. 51,005 (Sept. 29, 1993).
\5\Exec. Order No. 13,563, 76 Fed. Reg. 3821 (Jan. 21, 2011).
\6\Exec. Order No. 12,866.
\7\Memorandum from Barack Obama to the Heads of Exec. Dep'ts &
Agencies, Regulatory Review (Jan. 30, 2009).
\8\Exec. Order No. 12,866.
\9\Exec. Order No. 12,866.
\10\OIRA Federal Rulemaking (2011) at 4.
---------------------------------------------------------------------------
OIRA's role has remained unchanged in the following 24
years. H.R 1009 codifies practices that have been working,
expands regulatory review to previously excluded agencies, and
establishes transparency requirements. Agencies do not
consistently apply the principles of EO 12866 and other
governing authorities, including those requiring state, local,
and tribal consultation in the rulemaking process.\11\
Codification of these principles and extension of the
regulatory review process to independent agencies is not simply
a means to improve agency compliance with existing obligations,
but necessary to ensure the promotion of a healthy regulatory
state. As has been noted by some of the Committee's minority
members, OIRA's regulatory review serves an important role in
improving the quality of the life, health, and safety of
Americans.\12\
---------------------------------------------------------------------------
\11\See e.g. H. Comm. On Oversight & Gov't Reform, Politicization
of the Waters of the United States Rulemaking 41, 114th Cong. (2016)
[hereinafter WOTUS Report (2016)]; Accountability and Transparency
Reform at the Office of Information and Regulatory Affairs: Hearing
Before the Subcomm. on Gov't Operations of the H. Comm. on Oversight &
Gov't Reform, 114th Cong. (Mar. 15, 2016).
\12\Challenges Facing OIRA in Ensuring Transparency and Effective
Rulemaking: Hearing Before the Subcomm. on Gov't Operations of the H.
Comm. on Oversight & Gov't Reform, 114th Cong. 6 (Mar. 3, 2015)
(statement of Rep. Matt Cartwright, stating ``OIRA's regulatory review
functions aim to improve the daily lives of Americans across our
Country in a multitude of ways.''), (statement of Rep. Gerald Connolly:
``OIRA plays a key role in shaping hundreds of important rules, such as
those that enhance the safety of our drinking water, protect food
supply, guaranty buildings are accessible to the disabled, and protect
the homeland, to name just a few important topics.'').
---------------------------------------------------------------------------
OIRA's role is increasingly important in the regulatory
process as the number of regulations and associated costs
increase. The cost and number of federal regulations grew to
unprecedented levels under the Obama Administration.\13\ By the
Administration's own numbers, executive agencies imposed more
than $100 billion in annual regulatory costs from FY 2004 to FY
2014. The Obama Administration was responsible for nearly $70
billion in annual regulatory costs from FY 2009 to FY 2014.
---------------------------------------------------------------------------
\13\See, e.g., James L. Gattuso & Diane Katz, Heritage Foundation,
Red Tape Rising: Five Years of Regulatory Expansion (May 11, 2015).
---------------------------------------------------------------------------
However, many analysts criticized the Obama
Administration's calculation of cumulative annual regulatory
costs. The American Action Forum reports that totaling all
available regulatory costs reported by executive agencies, the
Obama Administration actually imposed more than $600 billion in
annual regulatory costs from 2009 to 2014.\14\ Another study,
commissioned by the National Association of Manufacturers,
found the total cost of federal regulations in 2012 was $2.028
trillion, with an annual cost burden for the average U.S. firm
of $233,181, or 21 percent of average payroll.\15\ Further, 88
percent of those surveyed said that federal regulations are a
top challenge for their firm.\16\ Other studies continue to
show that regulation has a deleterious effect on the
economy.\17\
---------------------------------------------------------------------------
\14\Regulation Rodeo Database, American Action Forum (accessed Mar.
13, 2016), https://www.americanactionforum.org/regulation-rodeo-
database/.
\15\W. Mark Crain & Nicole V. Crain, National Association of
Manufacturers, the Cost of Federal Regulation to the U.S. Economy,
Manufacturing, and Small Business (Sept. 10, 2014).
\16\Id.
\17\John W. Dawson & John J. Seater, American Action Forum, Federal
Regulation and Aggregate Economic Growth (Jan. 2013).
---------------------------------------------------------------------------
OIRA Review Process
The review process at OIRA officially begins when an agency
submits a regulatory review packet to OIRA. The packet consists
of the draft rule, a reasonably detailed description of the
need for the regulatory action, an explanation of how the
regulatory action will meet that need, and an assessment of the
potential costs and benefits of the rule.\18\ When OIRA
completes its review, it either returns the draft rule to the
agency for ``reconsideration'' or concludes that the rule is
consistent with the requirements of EO 12866. In the latter
case, the issuing agency may publish a notice of proposed
rulemaking in the Federal Register for public comment. After
the comment period closes, the agency may revise the draft rule
to respond to the comments. The agency then sends the rule back
to OIRA for a second review before publishing and promulgating
the final rule in the Federal Register.
---------------------------------------------------------------------------
\18\Exec. Order No. 12,866.
---------------------------------------------------------------------------
Little is known about what happens under the OIRA review
process, but former OIRA Administrator Cass Sunstein described
it as follows:
OIRA and agencies work together to ensure that when
rules are proposed, important issues and alternatives
are clearly and explicitly identified for public
comment. OIRA and agencies also work closely together
to ensure that public comments are adequately addressed
in final rules, where appropriate by modifying relevant
provisions in proposed rules.\19\
---------------------------------------------------------------------------
\19\Cass R. Sunstein, The Office of Information and Regulatory
Affairs: Myths and Realities, 38 A.B.A. Admin. & Regulatory Law News 8
(2013).
---------------------------------------------------------------------------
He continued:
Indeed, a central function of OIRA is to operate as a
guardian of a well-functioning administrative process,
to ensure not only respect for law but also compliance
with procedural ideals, involving notice and an
opportunity to be heard, that may not always be
strictly compulsory but that might be loosely organized
under the rubric of ``good government.''\20\
---------------------------------------------------------------------------
\20\Id.
OIRA review is important to provide a double check on
agencies rushing to promulgate rules. Review of the regulatory
analysis generated by executive agencies shows that the quality
is generally low.\21\ According to the George Mason University
Mercatus Center (Mercatus), agencies usually satisfy around 60
percent or less of the requirements called for in EO 12866 for
regulatory analysis.\22\ Mercatus claims that there is evidence
that OIRA review improves the quality of regulatory analysis,
but falls short of providing analysis adequate to support
informed rulemaking.\23\ For example, between 2000 and 2013, 98
percent of the Environmental Protection Agency's (EPA's) final
rules contained no estimated compliance costs.\24\
Additionally, EPA routinely justifies its regulatory activities
by claiming benefits from matters unrelated to the underlying
regulation.\25\
---------------------------------------------------------------------------
\21\Jerry Ellig & John Morrall, Mercatus Center, Assessing the
Quality of Regulatory Analysis: A New Evaluation and Data Set for
Policy Research (2010).
\22\Id. Toward a 21st-Century Regulatory System: Hearing Before the
S. Comm. of Homeland Sec. & Gov't Affairs, 114th Cong. (2015)
(statement of Jerry Ellig, Senior Research Fellow, Mercatus Center).
\23\Id.
\24\William Kovacs, U.S. Chamber of Commerce, These 9 Charts Put
Federal Regulations in a Different Light (2014).
\25\Id.
---------------------------------------------------------------------------
Despite its value added, there are repeated claims that the
OIRA review process lacks transparency.\26\ Lisa Heinzerling,
former Associate Administrator of EPA's Office of Policy,
expressed concerns about transparency and accountability at
OIRA, saying, ``The process is utterly opaque.''\27\ The
Government Accountability Office issued multiple
recommendations for increasing transparency, most of which
remain unimplemented.\28\
---------------------------------------------------------------------------
\26\See, e.g., Accountability and Transparency Reform at the Office
of Information and Regulatory Affairs: Hearing Before the Subcomm. on
Gov't Operations of the H. Comm. on Oversight & Gov't Reform, 114th
Cong. (2016).
\27\Lisa Heinzerling, Inside EPA: A Former Insider's Reflections on
the Relationship between the Obama EPA and the Obama White House, 31
Pace Envtl. L. Rev. 325 (2014).
\28\U.S. Gov't Accountability Office, GAO-15-505T, Federal
Rulemaking: Opportunities Remain for OMB To Improve the Transparency of
Rulemaking Processes (2016).
---------------------------------------------------------------------------
Despite transparency measures embedded in EO 12866, the
Committee's most significant insight into OIRA's review process
came through the Committee's Waters of the United States
(WOTUS) investigation. Through documents and transcribed
interviews, the Committee learned what OIRA was doing when a
rule was under review. Inter-agency coordination was an
important, although rushed, process.\29\ Review of the rule
development process was attempted, but also very limited.\30\
---------------------------------------------------------------------------
\29\WOTUS Report (2016).
\30\Id.
---------------------------------------------------------------------------
H.R. 1009 codifies the requirement for OIRA to conduct a
review of significant regulations to ensure the regulations are
consistent with applicable law and the principles set forth in
EO 12866. The bill requires that OIRA conduct a review to
determine if the agency complied with the regulatory principles
and applicable law and requires OIRA review the quality of the
compliance. H.R. 1009 authorizes OIRA to issue best practice
guides to agencies based on the experience and expertise of
what quality regulatory analysis and development entails. H.R.
1009 establishes transparency of the review by requiring that
OIRA provide written analysis of what principles and legal
requirements were reviewed, as well as the results of that
review.
One key difference between EO 12866 and H.R 1009 is the
OIRA review of the President's priorities. H.R. 1009 does not
include the requirements for OIRA to review regulations for
consistency with the President's priorities, as that is best
directed to the agencies through the EO. The EO will allow the
President to determine the extent to which presidential
priorities will be directed to agencies through the OIRA review
process and the extent to which presidential priorities will be
included in the review of independent agency regulations.
Coordination
A central part of the OIRA review process is coordination
with other agencies in the Federal Government. Former OIRA
Administrator Cass Sunstein described the interagency review
process as a primary mission for OIRA,
OIRA is largely in the business of helping to
identify and aggregate views and perspectives of a wide
range of sources both inside and outside of the federal
government.
* * *
For example, the Department of Agriculture will know
a great deal about how rules affect farmers, and the
Department of Transportation will know a great deal
about how rules affect the transportation sector, and
the Department of Energy will know a great deal about
implications for the energy sector; the OIRA process
enables their perspectives to be brought to bear on
rules issued by other agencies. Part of OIRA's defining
mission is to ensure that rulemaking agencies are able
to receive the specialized information held by diverse
people (usually career officials) within the executive
branch.\31\
---------------------------------------------------------------------------
\31\Sunstein, supra note 19 (``When a proposed or final rule is
delayed, and when the OIRA review process proves time-consuming, it is
usually because significant interagency concerns have yet to be
addressed. Frequently, there will be general agreement that a rule is a
good idea, and the delay will be a product not of any sense that it
should not go forward but a judgment that important aspects require
continuing substantive discussion.'').
The Committee learned from the WOTUS investigation that the
OIRA interagency review process can fall short of the ideal
that Sunstein described.\32\ Agencies consulted on the WOTUS
rulemaking complained about insufficient time and shifting
deadlines.\33\ When a rulemaking is set on a political
schedule, as was the case for WOTUS, the interagency review
process is shortchanged. The OIRA staffer responsible for the
process wrote:
---------------------------------------------------------------------------
\32\WOTUS Report (2016) at 10.
\33\Id.
The real challenge here was working on a very tight
schedule which required me to provide short deadlines.
To the extent that Agencies were able to provide me
comments . . . I did all that I could to address them
with EPA and the Corps . . . but even then there was
only so much that I could do.\34\
---------------------------------------------------------------------------
\34\Id.
H.R. 1009 codifies the requirement for interagency review
to elevate the importance of the process. Coordinating and
consulting with regulatory experts across the government will
improve the overall quality of regulations.
Retrospective Review
Agencies have been under an obligation to review their
regulations since the Carter Administration.\35\ EO 12866
requires agencies to report in their regulatory plans what
types of retrospective review the agency has conducted. In
2011, President Obama issued EO 13563 directing agencies to
implement plans to retrospectively review their regulations,
with a focus on rules that were ``outmoded, ineffective,
insufficient, or excessively burdensome.''\36\
---------------------------------------------------------------------------
\35\U.S. Govt's Accountability Office, Reexamining Regulations:
Opportunities Exist To Improve Effectiveness and Transparency of
Retrospective Reviews, (July 2007). President Carter's E.O. 12,044 was
the first to require agencies to periodically review existing rules,
and every President since has issued similar direction to agencies. Id.
\36\E.O. 13,563, 76 Fed. Reg. 3821 (Jan. 21, 2011), reprinted in 3
C.F.R. 215 (2012).
---------------------------------------------------------------------------
Retrospective regulatory review in the Obama Administration
has actually cost more than it has saved.\37\ Net costs
increased by more than $14 billion, and only two agencies
actually reduced costs. Agencies also increased the paperwork
burden by 13.4 million hours. However, most agencies still have
yet to institutionalize retrospective regulatory review
procedures.\38\
---------------------------------------------------------------------------
\37\Sam Batkins, Administration's July 2015 ``Regulatory Review''
Adds $14.7 Billion in Costs, American Action Forum (Aug. 25, 2015),
https://www.americanactionforum.org/insight/administrations-july-2015-
regulatory-review-adds-14-7-billion-in-costs/.
\38\Sofie Miller, Pitching Retrospective Review as a Cure for
Regulatory Accumulation, G.W. Regulatory Studies Center (March 8,
2016), https://regulatorystudies.columbian.gwu.edu/pitching-
retrospective-review-cure-regulatory-accumulation.
---------------------------------------------------------------------------
In testimony before Congress, Michael Mandel of the
Progressive Policy Institute (PPI) explained that President
Obama's attempts at promoting retrospective review fell short
of expectations.\39\ Quoting several studies about the
effectiveness of retrospective review, Mandel pointed out that
of all major rules issued by agencies in 2014, none of the
rules included a plan for future retrospective review and only
two were identified as products of retrospective review under
EO 13563. Mandel also argued that President Obama's
retrospective review did not work for various reasons--notably,
that agencies have a vested interest in justifying their
original decisions, and even if costs and benefits of
individual regulations are justified, in the aggregate, ``the
total accumulation of regulation can create a heavy burden on
innovation.''\40\
---------------------------------------------------------------------------
\39\Toward a 21st-Century Regulatory System: Hearing Before the S.
Comm. of Homeland Sec. & Gov't Affairs, 114th Cong. (2015) (statement
of Michael Mandel, Chief Economic Strategist, Progressive Policy
Institute).
\40\Id.
---------------------------------------------------------------------------
H.R. 1009 codifies the requirements in EO 12866 to require
agencies to publish the retrospective review work that they
undertake or plan to undertake in a given year. The bill
requires agencies to submit a list of regulations identified as
unjustified, unnecessary, duplicative, or otherwise recommended
for repeal, including any regulations identified as such by
recommendations from the public. H.R. 1009 also requires OIRA
to work with stakeholders including state, local, and tribal
governments to identify regulations for repeal.
Independent Agencies
While the President has always had the authority to extend
OIRA review to independent agencies, Presidents have repeatedly
chosen to defer to Congress.\41\ President Reagan excluded
independent agencies from EO 12291 out of a concern of an
adverse reaction from Congress.\42\ This tradition of deference
highlights the need for Congress to codify this role. Excluding
independent agencies from the OIRA process means that numerous
controversial and extremely costly regulations are issued
without the second look by regulatory experts that OIRA review
provides. In testimony before the House Committee on the
Judiciary, American Action Forum President Douglas Holtz-Eakin
said, ``In 2012 and 2013 alone, independent agencies published
eight rulemakings with at least $100 million in annual costs,
for a total burden of more than $4 billion annually.''\43\
---------------------------------------------------------------------------
\41\The Office of Information and Regulatory Affairs: Federal
Regulations and Regulatory Reform under the Obama Administration:
Hearing Before the Subcomm. on Courts, Commercial & Admin. Law of the
H. Comm. on the Judiciary, 112th Cong. (2012) (statement of Sally
Katzen, Senior Advisor, Podesta Group).
\42\Robert Hahn & Cass Sunstein, A New Executive Order for
Improving Federal Regulation? Deeper and Wider Cost-Benefit Analysis,
150 U. PA. L. REV. 1489 (2002).
\43\Office of Information and Regulatory Affairs: Hearing Before
the Subcomm. on Regulatory Reform, Commercial & Antitrust Law of the H.
Comm. on the Judiciary, 114th Cong. (2015) (statement of Douglas Holtz-
Eakin, President, American Action Forum).
---------------------------------------------------------------------------
Presidents have long encouraged independent agencies to
undergo review, but independent agencies have not voluntarily
submitted their regulations to OIRA.\44\ In 2011, President
Obama issued EO 13579, ``Regulation and Independent Regulatory
Agencies,'' specifically calling independent agencies to adopt
the ``principles, structures, and definitions governing
contemporary regulatory review'' established in Executive Order
12866.\45\ The Order requires that regulations ``be adopted
through a process that involves public participation,'' and
``consistent with EO 12866 . . . shall afford the public a
meaningful opportunity to comment through the Internet on any
proposed regulation, with a comment period that should
generally be at least 60 days.''\46\ The Order further provides
that independent agencies shall base their rules on ``the open
exchange of information and perspectives among State, local,
and tribal officials'' and other affected stakeholders.
---------------------------------------------------------------------------
\44\Hahn & Sunstein, supra note 44, at 1506.
\45\Exec. Order No. 13,579, 76 Fed. Reg. 41,587 (2011) (``Executive
Order 13563 . . . directed to executive agencies, was meant to produce
a regulatory system that protects ``public health, welfare, safety, and
our environment while promoting economic growth, innovation,
competitiveness, and job creation.'' Independent regulatory agencies,
no less than executive agencies, should promote that goal'').
\46\Exec. Order No. 12,866, 58 Fed. Reg. 51005 (Sep. 29, 1993).
---------------------------------------------------------------------------
The argument for including independent agencies in OIRA's
regulatory review is well documented. Indeed, even former OIRA
Administrators have encouraged the review of independent agency
rules.\47\ Sally Katzen, former OIRA Administrator under the
Clinton Administration, has frequently advocated for the
extension of OIRA review to independent agencies.\48\ Former
Administrator under the Obama Administration, Cass Sunstein,
argued for coverage of independent regulatory agencies,
stating: ``[i]n view of the substantial costs now imposed by
[independent] agencies on the private sector, Congress itself
should require more discipline from them. A required accounting
of both costs and benefits would help to prevent excessive
regulatory burdens,'' noting specifically the regulatory
burdens imposed on small businesses under the Dodd Frank
law.\49\
---------------------------------------------------------------------------
\47\Institute for Policy Integrity, Strengthening Regulatory
Review: Recommendations for the Trump Administration From Former OIRA
Leaders 1 (2016).
\48\See The Office of Information and Regulatory Affairs: Federal
Regulations and Regulatory Reform under the Obama Administration:
Hearing Before the Subcomm. on Courts, Commercial & Admin. Law of the
H. Comm. on the Judiciary, 112th Cong. (2012) (statement of Sally
Katzen, Senior Advisor, Podesta Group); Sally Katzen, Expand
Centralized Regulatory Review to Independent Agencies, REGBLOG.ORG
(Aug. 9, 2011), http://www.regblog.org/2011/08/09/expand-centralized-
regulatory-review-to-independent-agencies/.
\49\Cass R. Sunstein, 5 Smart Ways to Cut Red Tape, BLOOMBERG (Jan.
20, 2016), https://www.bloomberg.com/view/articles/2016-01-20/5-smart-
ways-to-cut-red-tape.
---------------------------------------------------------------------------
Numerous regulatory experts have recommended that OIRA's
review extend to independent agencies, since even before
President Clinton issued EO 12866. The Administrative
Conference of the United States (ACUS) issued a recommendation
in 1988 to extend OIRA review to independent agencies ``as a
matter of principle.''\50\ The American Bar Association (ABA)
first recommended including independent agencies in 1986, then
again in 1990.\51\ In a 2015 letter to the Senate Committee on
Homeland Security and Government Affairs, the ABA said, ``From
the standpoint of sound policy in the federal rulemaking
process, we believe that there is no meaningful difference
between the `independent' agencies and those agencies to which
the current executive order (EO 12866) applies.''\52\
---------------------------------------------------------------------------
\50\Administrative Conference of the United States, Recommendation
88-9, Presidential Review of Agency Rulemaking (1988).
\51\Letter from Thomas M. Susman, Director, A.B.A. Governmental
Affairs Office, to Ron Johnson, Chairman, and Thomas R. Carper, Ranking
Member, S. Comm. on Homeland Sec. & Gov't Affairs (July 23, 2015).
\52\Id.
---------------------------------------------------------------------------
H.R. 1009 expands OIRA's review to independent agencies,
currently excluded under EO 12866. Legislation is needed to
close this loophole in centralized executive branch regulatory
review. Unlike EO 12866, H.R. 1009 does not include a special
exception for independent agencies--H.R. 1009 applies the OIRA
review to independent agencies as well. H.R. 1009 amends the
PRA, which defines both agencies and independent agencies.
Independent agencies are included in the PRA's requirements for
OIRA to approve information collection requests and in EO
12866's requirements for the Unified Agenda, Regulatory Plans,
Working Group, and stakeholder consultations. By codifying
OIRA's regulatory review role in the PRA, H.R. 1009 eliminates
the independent agency loophole found in EO 12866.
Review Timing
EO 12866 states that OIRA shall complete its review within
90 calendar days.\53\ EO 12866 also provides that OIRA review
may be extended ``(1) once by no more than 30 calendar days
upon the written approval of the [OMB] Director and (2) at the
request of the agency head.''\54\ OIRA interprets the second
clause of this provision exclusive from the first, allowing an
indefinite time for extension if the agency initiates the
request.\55\ Consequently, extensions under (1) rarely occur.
---------------------------------------------------------------------------
\53\Exec. Order No. 12,866.
\54\Id.
\55\Curtis W. Copeland, Length of Rule Reviews by the Office of
Information and Regulatory Affairs 19-21 (2013) (report prepared for
the Administrative Conference of the United States) (citing the
``Frequently Asked Questions'' page on the OIRA website: ``the review
period may be extended indefinitely by the head of the rulemaking
agency'') [hereinafter Copeland ACUS Report (2013)].
---------------------------------------------------------------------------
Instead, OIRA has adopted a practice of asking the agency
to request an extension under (2),\56\ effectively
circumventing the time limit in (1), and giving itself an
undefined time to hold onto the rule.\57\ A senior EPA official
once characterized such requests in that ``[i]t is clear, in
such a phone call [from OIRA], that the agency is not to
decline to ask for such an extension.''\58\ This practice has
led to extensive delays in regulations without any notice to
the public.\59\
---------------------------------------------------------------------------
\56\Id. at 20-21 (``Previous reports suggest that at least some
agency requests for extensions may actually originate with OIRA, not
with the agency submitting the request.'')
\57\Id.
\58\Heinzerling, supra note 27.
\59\Copeland ACUS Report (2013) at 12.
---------------------------------------------------------------------------
Senior agency officials reported political influence as a
reason for delays, specifically citing concerns by the White
House about issuing costly or controversial rules during an
election year.\60\ Leading up to the 2012 Presidential
election, evidence showed that the White House instructed OIRA
not to complete reviews and finalize rules before the New Year:
in 2012, OIRA review averaged 80 days, but jumped to an
incredible 140 days in the first half of 2013--almost three
times the average from 1994 to 2011.\61\ In January 2013, an
impressive 83 rules had been sitting at OIRA for at least six
months. In contrast, between 1994 and 2011, the average length
of OIRA review was 50 days, with 62 being the highest average
in any year.\62\ The spike in 2013 highlights the large number
of rules OIRA held onto to avoid publishing before the 2012
election.
---------------------------------------------------------------------------
\60\Copeland ACUS Report (2013) at 4. See also John M. Broder,
Regulatory Nominee Vows to Speed Up Energy Reviews, N.Y. Times (June
12, 2013) (finding election-year politics as a reason for slowdown of
regulatory delays).
\61\Copeland ACUS Report (2013) at 4.
\62\Copeland ACUS Report (2013) at 4.
---------------------------------------------------------------------------
Not all lengthy delays are related to concerns about
political timing. According to former OIRA Administrator Cass
Sunstein:
When a proposed or final rule is delayed, and when
the OIRA review process proves time-consuming, it is
usually because significant interagency concerns have
yet to be addressed. Frequently, there will be general
agreement that a rule is a good idea, and the delay
will be a product not of any sense that it should not
go forward but a judgment that important aspects
require continuing substantive discussion.\63\
---------------------------------------------------------------------------
\63\Sunstein, supra note 19, at 9.
Sunstein also found that technical concerns required more
---------------------------------------------------------------------------
time:
When rules are delayed, it is often because technical
specialists are working through the technical
questions. Much of the time, the problem is not that
OIRA, or anyone else, has a fundamental objection to
the rule and the agency's approach. It is that the
technical questions need good answers.\64\
---------------------------------------------------------------------------
\64\Id.
As such, H.R. 1009 does not create an arbitrary time limit
on OIRA's review. H.R. 1009 resolves the ongoing concerns by
requiring more transparency into the extensions process. Rather
than continuing a process wherein OIRA must request that the
agency request an extension, H.R. 1009 allows either the
issuing agency or OIRA to request the extension, which must be
made in writing and made publically available. To encourage a
timely review, H.R. 1009 requires OIRA and the issuing agency
to revisit the extension every 30 days to issue a new request,
until OIRA has completed its review or the agency withdraws the
rule.
Unified Agenda
The Unified Agenda is a list of all regulatory actions at
all executive branch agencies that are under development or
review. Issued twice a year, the Unified Agenda is intended to
be the primary regulatory transparency tool to allow the public
to understand what regulations are being considered by
agencies. Under the Obama Administration, OIRA made a practice
of issuing the Unified Agenda right before holidays.\65\
Additionally, OIRA did not post any Unified Agenda in spring
2012.\66\ The Committee questioned OIRA about the failure to
issue the 2012 Spring Unified Agenda, but received an
incomplete response.\67\
---------------------------------------------------------------------------
\65\See Veronique De Rugy, The Obama Administration Is Hiding the
Scale of Its Regulatory Agenda. Why Might That Be?, National Review
(Nov. 25, 2014).
\66\Letter from Lamar Smith, Chairman, H. Comm. on the Judiciary,
and Darrell Issa, Chairman, H. Comm. on Oversight & Gov't Reform, to
Boris Bershteyn, Acting Administrator, Office of Information and
Regulatory Affairs (Oct. 25, 2012).
\67\Id.
---------------------------------------------------------------------------
According to ACUS, ``it is critical to ensure that the
information in the Unified Agenda is as accurate as possible to
allow regulators and stakeholders to plan accordingly.''\68\ In
a 2015 recommendation, ACUS identified some ongoing concerns
with the quality of the Unified Agenda:
---------------------------------------------------------------------------
\68\Administrative Conference of the United States, Recommendation
2015-1, Promoting Accuracy and Transparency in the Unified Agenda 1
(2015).
The Unified Agenda functions reasonably well as a
predictor of some agency actions, but is less accurate
in other areas. For example, estimated action dates may
prove incorrect, the significance of a regulation may
be misclassified, and jointly issued rules may
inappropriately be characterized differently by
different agencies. Additionally, some rules are
classified as long-term actions when regulatory
activity is imminent, while others remain listed as
long-term actions after work on them has ceased.
Occasionally, entries are removed from the Unified
Agenda without explanation. Finally, a number of
regulatory actions have recently been placed in a
``pending'' category that is not included in the
published Unified Agenda.\69\
---------------------------------------------------------------------------
\69\Id. At 3-4.
While OIRA claims to review the data, the data is
frequently inaccurate, incomplete, and lacks
standardization.\70\ Because agencies are obligated to submit
their data several months prior to the publication date, often
information is out of date and no longer accurate.\71\ As an
example, in the past 15 editions of the Unified Agenda, the
Federal Communications Commission (FCC) has only listed
regulations as either ``long term'' or ``completed,'' despite
issuing an average of 250 proposed or final rules each
year.\72\ According to an FCC staff, as reported in an ACUS
report, ``the FCC uses the Unified Agenda primarily to document
the publication of regulatory actions, not to inform the public
about forthcoming actions.''\73\ OIRA has never suggested a
change to the FCC reporting.\74\
---------------------------------------------------------------------------
\70\Curtis W. Copeland, the Unified Agenda: Proposals for Reform
(2015) (prepared for the Administrative Conference of the United
States) hereinafter Copeland Unified Agenda Proposals (2015).
\71\Id.
\72\Id.
\73\Id.
\74\Id.
---------------------------------------------------------------------------
In 2011, the Obama Administration created a new hidden
category on the Unified Agenda named ``pending.''\75\ The Obama
Administration decided that the Unified Agenda should only
reflect rules that were actually being considered and requested
agencies exclude entries that were informally considered ``old
and cold.''\76\ Agencies opposed removing some less active
entries because they wanted to maintain the regulatory
identification numbers.\77\ To remove older, less active
entries, OIRA created a category called ``pending,'' which is
hidden from the public and allows agencies to continue to
report regulations that have been under consideration at the
agency and have not been officially cancelled by the
agency.\78\
---------------------------------------------------------------------------
\75\Id.
\76\Id.
\77\Id.
\78\Id.
---------------------------------------------------------------------------
ACUS made several recommendations to address the identified
concerns: (1) OIRA should help agencies identify best
practices, (2) information in the Unified Agenda should link to
other regulatory data systems, (3) OIRA should help agencies
define and designate the status of regulations, (4) agencies
should explain why actions have been removed from the Unified
Agenda, and (5) OIRA should better define data elements in the
Unified Agenda.\79\
---------------------------------------------------------------------------
\79\Administrative Conference of the United States, Recommendation
2015-1, Promoting Accuracy and Transparency in the Unified Agenda 1
(2015).
---------------------------------------------------------------------------
H.R. 1009 codifies the requirements of the Unified Agenda
and includes several reforms to address the concerns and
recommendations identified. H.R. 1009 requires OIRA to issue
guidance on complying with Unified Agenda requirements,
including defining key terms such as stages of regulatory
development, and generally permits OIRA to issue best practice
guides for regulatory development. Under H.R. 1009, agencies
will be required to provide a written explanation as to why a
rule is no longer on the Unified Agenda. Further, H.R. 1009
establishes specific dates by which the Unified Agenda will be
required to be published.
LEGISLATIVE HISTORY
Representative Paul Mitchell (R-MI), Mark Meadows (R-NC),
and Gary Palmer (R-AL) introduced H.R. 1009 on February 13,
2017 and the bill was referred to the Committee on Oversight
and Government Reform with an additional referral to the
Committee on the Judiciary. On February 14, 2017, the Committee
on Oversight and Government Reform ordered H.R. 1009 favorably
reported, without amendment with a vote of 23 to 16.
Section-by-Section
Section 1. Short title
The short title of the bill is the ``OIRA Insight, Reform,
and Accountability Act.''
Section 2. Office of Information and Regulatory Affairs
Section (a) amends subchapter I of chapter 35 of title 44
of the United States Code by adding the following three new
code sections:
Sec. 3522. Office of Information and Regulatory Affairs Regulatory
Working Group; regulatory plan; Unified Agenda
Subsection (a) of section 3522 establishes the Regulatory
Working Group to serve as a forum for agencies to identify and
analyze regulatory issues.
Subsection (b) of section 3522 requires agencies to submit
a regulatory plan to OIRA, each of which is required to be
included in the fall issuance of the Unified Agenda, which
compiles information about each significant regulatory action
the agency expects to issue in the following fiscal year.
Agencies are also required to report on efforts to review
outdated regulations and provide a list of any such regulations
in the regulatory plan. OIRA is required to circulate agency
regulatory plans to affected agencies to assist in identifying
duplicative or conflicting regulatory actions.
Subsection (c) of section 3522 requires agencies to submit
a list of regulations under development to OIRA. OIRA is
required to compile all of the regulations under development in
the Unified Agenda and to publish the list online.
Subsection (d) of section 3522 requires OIRA to meet with
state, local, and tribal governments no less than quarterly to
identify regulations that may uniquely or significantly affect
government entities and to periodically convene conferences
with representatives of the public to discuss regulatory issues
of common concern.
Subsection (e) of section 3522 authorizes OIRA to issue
best practice guidelines for agencies to use in developing new
regulations.
Sec. 3523. OIRA coordinated review of significant regulatory actions
Subsection (a) of section 3523 requires agencies to submit
significant regulatory actions to OIRA for review prior to
issuing a significant regulatory action.
Subsection (b) of section 3523 permits agencies to consult
with OIRA prior to submitting their significant regulatory
action for review.
Subsection (c) of section 3523 sets requirements for
agencies to submit certain information to OIRA when a
significant regulatory action is submitted for review.
Subsection (d) of section 3523 establishes deadlines for
OIRA to complete its review of a submitted significant
regulatory action.
Subsection (e) of section 3523 requires OIRA to review a
submitted significant regulatory action for compliance with
legal requirements and long-standing regulatory principles
established in Executive Order 12866.
Subsection (f) of section 3523 requires OIRA to conduct a
review of the quality of the significant regulatory action to
determine whether the analysis was meaningful and complete.
Subsection (g) of section 3523 requires OIRA to conduct an
interagency review of the submitted regulatory action and to
allow potentially affected agencies time to review the
regulatory action.
Subsection (h) of section 3523 requires OIRA to invite the
issuing agency to meetings with the public and to share written
comments with the issuing agency and online.
Subsection (i) of section 3523 requires OIRA to provide the
results of the review in writing to the issuing agency and
requires the issuing agency to provide OIRA with a redline of
any changes that were made during the review period.
Sec. 3524. Public disclosure of regulatory review
Subsection (a) of section 3524 requires OIRA to publish
certain information pertaining to the review of the regulations
online within three days of completing the review of a
significant regulatory action.
Subsection (b) of section 3524 requires, to the extent
practicable, information provided to the public is in plain
language.
Section (b) makes technical and conforming amendments.
Section (c) adds definitions to section 3502 of title 44
United States Code.
Section (d) requires OIRA to issue required guidance within
180 days of enactment.
Explanation of Amendments
No member offered an amendment to H.R. 1009 during the
Committee's consideration of the bill.
Committee Consideration
On February 14, 2017, the Committee met in open session and
ordered reported favorably the bill, H.R. 1009, by recorded
vote of 23 to 16, a quorum being present.
Roll Call Votes
There was one recorded vote during consideration of H.R.
1009:
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch where the bill relates to the terms and conditions of
employment or access to public services and accommodations.
This bill codifies President Clinton's executive order 12866,
which establishes the Unified Agenda, requires annual
regulatory plans, establishes requirements for centralized
regulatory review, and mandates stakeholder consultation with
the public and state, local, and tribal governments. As such,
this bill does not relate to employment or access to public
services and accommodations.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the descriptive portions of
this report.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goal or objective of this bill is to require the Administrator
of the Office of Information and Regulatory Affairs to review
regulations, and for other purposes.
Duplication of Federal Programs
In accordance with clause 2(c)(5) of rule XIII, no
provision of this bill establishes or reauthorizes a program of
the federal government known to be duplicative of another
federal program, a program that was included in any report from
the Government Accountability Office to Congress pursuant to
section 21 of Public Law 111-139, or a program related to a
program identified in the most recent Catalog of Federal
Domestic Assistance.
DISCLOSURE OF DIRECTED RULE MAKINGS
The Committee estimates that enacting this bill does not
direct the completion of any specific rule makings within the
meaning of 5 U.S.C. 551.
Federal Advisory Committee Act
The Committee finds that the legislation does not establish
or authorize the establishment of an advisory committee within
the definition of 5 U.S.C. App., Section 5(b).
Unfunded Mandate Statement
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandate Reform Act, P.L. 104-4) requires a statement as to
whether the provisions of the reported bill include unfunded
mandates. In compliance with this requirement, the Committee
has received a letter from the Congressional Budget Office
included herein.
Earmark Identification
This bill does not include any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of rule XXI.
Committee Estimate
Clause 3(d)(2) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison by the
Committee of the costs that would be incurred in carrying out
this bill. However, clause 3(d)(3)(B) of that Rule provides
that this requirement does not apply when the Committee has
included in its report a timely submitted cost estimate of the
bill prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974. The Committee has requested but not received a cost
estimate for this bill from the Director of the Congressional
Budget Office. The Committee believes that enactment of this
bill would result in no net effect on direct spending over the
2018-2022 period. Assuming the appropriation of authorized
amounts, the Committee estimates that the legislation would
also have a discretionary cost of less than $5 million over the
2018-2022 period.
Budget Authority and Congressional Budget Office Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause (3)(c)(3) of rule XIII of the Rules
of the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has requested
but not received a cost estimate for this bill from the
Director of Congressional Budget Office. The Committee believes
that this bill does not contain any new budget authority,
spending authority, credit authority, or an increase or
decrease in revenues or tax expenditures.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
TITLE 44, UNITED STATES CODE
* * * * * * *
CHAPTER 35--COORDINATION OF FEDERAL INFORMATION POLICY
SUBCHAPTER I--FEDERAL INFORMATION POLICY
Sec.
3501. Purposes.
* * * * * * *
3522. Office of Information and Regulatory Affairs Regulatory Working
Group; regulatory plan; Unified Agenda.
3523. OIRA coordinated review of significant regulatory actions.
3524. Public disclosure of regulatory review.
* * * * * * *
SUBCHAPTER I--FEDERAL INFORMATION POLICY
* * * * * * *
Sec. 3502. Definitions
As used in this subchapter--
(1) the term ``agency'' means any executive
department, military department, Government
corporation, Government controlled corporation, or
other establishment in the executive branch of the
Government (including the Executive Office of the
President), or any independent regulatory agency, but
does not include--
(A) the Government Accountability Office;
(B) Federal Election Commission;
(C) the governments of the District of
Columbia and of the territories and possessions
of the United States, and their various
subdivisions; or
(D) Government-owned contractor-operated
facilities, including laboratories engaged in
national defense research and production
activities;
(2) the term ``burden'' means time, effort, or
financial resources expended by persons to generate,
maintain, or provide information to or for a Federal
agency, including the resources expended for--
(A) reviewing instructions;
(B) acquiring, installing, and utilizing
technology and systems;
(C) adjusting the existing ways to comply
with any previously applicable instructions and
requirements;
(D) searching data sources;
(E) completing and reviewing the collection
of information; and
(F) transmitting, or otherwise disclosing the
information;
(3) the term ``collection of information''--
(A) means the obtaining, causing to be
obtained, soliciting, or requiring the
disclosure to third parties or the public, of
facts or opinions by or for an agency,
regardless of form or format, calling for
either--
(i) answers to identical questions
posed to, or identical reporting or
recordkeeping requirements imposed on,
ten or more persons, other than
agencies, instrumentalities, or
employees of the United States; or
(ii) answers to questions posed to
agencies, instrumentalities, or
employees of the United States which
are to be used for general statistical
purposes; and
(B) shall not include a collection of
information described under section 3518(c)(1);
(4) the term ``Director'' means the Director of the
Office of Management and Budget;
(5) the term ``independent regulatory agency'' means
the Board of Governors of the Federal Reserve System,
the Commodity Futures Trading Commission, the Consumer
Product Safety Commission, the Federal Communications
Commission, the Federal Deposit Insurance Corporation,
the Federal Energy Regulatory Commission, the Federal
Housing Finance Agency, the Federal Maritime
Commission, the Federal Trade Commission, the
Interstate Commerce Commission, the Mine Enforcement
Safety and Health Review Commission, the National Labor
Relations Board, the Nuclear Regulatory Commission, the
Occupational Safety and Health Review Commission, the
Postal Regulatory Commission, the Securities and
Exchange Commission, the Bureau of Consumer Financial
Protection, the Office of Financial Research, Office of
the Comptroller of the Currency, and any other similar
agency designated by statute as a Federal independent
regulatory agency or commission;
(6) the term ``information resources'' means
information and related resources, such as personnel,
equipment, funds, and information technology;
(7) the term ``information resources management''
means the process of managing information resources to
accomplish agency missions and to improve agency
performance, including through the reduction of
information collection burdens on the public;
(8) the term ``information system'' means a discrete
set of information resources organized for the
collection, processing, maintenance, use, sharing,
dissemination, or disposition of information;
(9) the term ``information technology'' has the
meaning given that term in section 11101 of title 40
but does not include national security systems as
defined in section 11103 of title 40;
(10) the term ``person'' means an individual,
partnership, association, corporation, business trust,
or legal representative, an organized group of
individuals, a State, territorial, tribal, or local
government or branch thereof, or a political
subdivision of a State, territory, tribal, or local
government or a branch of a political subdivision;
(11) the term ``practical utility'' means the ability
of an agency to use information, particularly the
capability to process such information in a timely and
useful fashion;
(12) the term ``public information'' means any
information, regardless of form or format, that an
agency discloses, disseminates, or makes available to
the public;
(13) the term ``recordkeeping requirement'' means a
requirement imposed by or for an agency on persons to
maintain specified records, including a requirement
to--
(A) retain such records;
(B) notify third parties, the Federal
Government, or the public of the existence of
such records;
(C) disclose such records to third parties,
the Federal Government, or the public; or
(D) report to third parties, the Federal
Government, or the public regarding such
records[; and];
(14) the term ``penalty'' includes the imposition by
an agency or court of a fine or other punishment; a
judgment for monetary damages or equitable relief; or
the revocation, suspension, reduction, or denial of a
license, privilege, right, grant, or benefit[.];
(15) the term ``Administrator'' means, unless
otherwise indicated, the Administrator of the Office of
Information and Regulatory Affairs;
(16) the term ``economically significant regulatory
action'' means any regulatory action described under
subparagraph (A) or (B) of paragraph (21);
(17) the term ``OIRA'' means the Office of
Information and Regulatory Affairs;
(18) the term ``regulation''--
(A) means an agency statement of general
applicability and future effect, which the
agency intends to have the force and effect of
law, that is designed to implement, interpret,
or prescribe law or policy or to describe the
procedure or practice requirements of an
agency; and
(B) does not include such a statement if--
(i) issued in accordance with the
formal rulemaking provisions of
sections 556 and 557 of title 5;
(ii) the statement pertains to a
military or foreign affairs function of
the United States, other than
procurement regulations and regulations
involving the import or export of
nondefense articles and services;
(iii) the statement is limited to an
agency organization, management, or
personnel matters; or
(iv) the statement is exempted as a
regulation by the Administrator;
(19) the term ``regulation identifier number'' means
a unique identification code for regulations, which is
designed to assist tracking regulations through the
course of development;
(20) the term ``regulatory action'' means any
substantive action by an agency normally published in
the Federal Register that promulgates or is expected to
lead to the promulgation of a final regulation,
including notices of inquiry, advance notices of
proposed rulemaking, and notices of proposed
rulemaking;
(21) the term ``significant regulatory action'' means
any regulatory action that is likely to result in a
regulation that may--
(A) have an annual effect on the economy of
$100,000,000 or more;
(B) adversely affect in a material way the
economy, a sector of the economy, productivity,
competition, jobs, the environment, public
health or safety, or State, local, or tribal
governments or communities;
(C) create a serious inconsistency or
otherwise interfere with an action taken or
planned by another agency;
(D) materially alter the budgetary impact of
entitlements, grants, user fees, or loan
programs or the rights and obligations of
recipients therein; or
(E) raise novel legal or policy issues
arising out of legal mandates;
(22) the term ``small business'' has the meaning
given the term ``small-business concern'' in section 3
of the Small Business Act (15 U.S.C. 632); and
(23) the term ``State'' means each of the several
States, the District of Columbia, each territory or
possession of the United States, and each federally
recognized Indian tribe.
* * * * * * *
Sec. 3522. Office of Information and Regulatory Affairs Regulatory
Working Group; regulatory plan; Unified Agenda
(a) Regulatory Working Group.--
(1) Establishment; members.--The Administrator of the
Office of Information and Regulatory Affairs shall
convene a working group to be known as the Regulatory
Working Group, whose members shall consist of the
following:
(A) The Administrator.
(B) Representatives selected by the head of
each agency that the Administrator determines
to have significant domestic regulatory
responsibility.
(C) Other executive branch officials as
designated by the Administrator.
(2) Chair.--The Chair of the Regulatory Working Group
shall be the Administrator, who shall periodically
advise Congress on the activities of the Regulatory
Working Group.
(3) Purpose.--The Regulatory Working Group shall
serve as a forum to assist agencies in identifying and
analyzing important regulatory issues, including, at a
minimum--
(A) the development of innovative regulatory
techniques;
(B) the methods, efficacy, and utility of
comparative risk assessment in regulatory
decisionmaking; and
(C) the development of streamlined regulatory
approaches for small businesses and other
entities.
(4) Meetings.--The Regulatory Working Group shall
meet not less than quarterly and may meet as a whole or
in subgroups of members with an interest in particular
issues or subject areas.
(5) Analytical studies.--To inform the discussion of
the Regulatory Working Group, the Regulatory Working
Group may request analytical studies and reports by the
Office of Information and Regulatory Affairs, the
Administrative Conference of the United States, or any
other agency.
(b) Regulatory Plan.--
(1) In general.--
(A) Deadline for and description of
regulatory plan.--Not later than June 1 of each
year, the head of each agency shall approve and
submit to the Administrator a regulatory plan
that includes each significant regulatory
action that the agency reasonably expects to
issue in proposed or final form in the
following fiscal year or thereafter and the
retrospective review described in paragraph
(2). The regulatory plan shall also contain, at
a minimum, the following:
(i) A statement of the regulatory
objectives and priorities of the
agency.
(ii) A summary of each planned
significant regulatory action
including, to the extent possible,
alternatives to be considered and
preliminary estimates of the
anticipated costs and benefits of such
action.
(iii) A summary of the legal basis
for each such action, including whether
any aspect of the action is required by
statute or court order.
(iv) A statement of the need for each
such action and, if applicable, how the
action will reduce risk to public
health, safety, or the environment, as
well as how the magnitude of the risk
addressed by the action relates to any
other risk within the jurisdiction of
the agency.
(v) The schedule for each such
action, including a statement of any
applicable statutory or judicial
deadline.
(vi) The name, email address, and
telephone number of a knowledgeable
agency employee the public may contact
for additional information about each
such action.
(B) Circulation of regulatory plan.--Not
later than 10 days after receiving the
regulatory plan under subparagraph (A), the
Administrator shall circulate the regulatory
plan to any other agency the Administrator
determines may be affected by the plan.
(C) Agency notification to oira of
conflicting significant regulatory actions.--
The head of an agency shall promptly notify the
Administrator in writing if any planned
significant regulatory action in the regulatory
plan of another agency may conflict with the
policy or action taken or planned by that
agency. The Administrator shall forward any
notification received under this subparagraph
to the other agency involved.
(D) Notification of conflicting significant
regulatory actions.--The Administrator shall
notify the head of an agency in writing if any
planned significant regulatory action conflicts
with any policy or action taken or planned by
another agency.
(E) Requirement to publish in unified
agenda.--Each regulatory plan submitted by the
head of an agency under subparagraph (A) shall
be included in the October publication of the
Unified Agenda described under subsection (c).
(2) Retrospective review.--
(A) List of outdated regulations.--The head
of each agency shall include in the regulatory
plan submitted under paragraph (1)(A) a list of
regulations that have been identified by the
agency (including any comments submitted to the
agency) as unjustified, unnecessary,
duplicative of other regulations or laws,
inappropriately burdensome, or otherwise
recommended for removal.
(B) Description of retrospective review.--The
head of each agency shall include in the
regulatory plan submitted under paragraph
(1)(A) a description of any program or other
effort to review existing regulations to
determine whether any such regulations should
be modified or eliminated in order to increase
the effectiveness in achieving the regulatory
objectives of the agency or to reduce the
burden of regulations. The agency shall include
any statutory requirements that require the
agency to promulgate or continue to impose
regulations that the agency believes are
unnecessary or outdated by reason of changed
circumstances.
(C) OIRA coordinated review.--The
Administrator shall work with interested
entities and agencies, including through the
processes established under subsection (d), to
review the list of regulations identified under
subparagraph (A) and such entities may assist
OIRA and the agencies with identifying
regulations or groups of regulations that--
(i) impose significant or unique
burdens on governmental entities and
that are no longer justified; or
(ii) affect a particular group,
industry, or sector of the economy.
(c) Unified Agenda.--
(1) Submission of regulations under development or
review.--Not later than April 1 and October 1 of each
year, the head of each agency shall submit to the
Administrator an agenda of each regulation under
development or review in accordance with any guidance
issued under this section. Each agenda shall include,
to the extent practicable, the following:
(A) For each regulation--
(i) a regulation identifier number;
(ii) a brief summary of the
regulation;
(iii) a citation to the legal
authority to issue the regulation;
(iv) any legal deadline for the
issuance of the regulation;
(v) the name and phone number for a
knowledgeable agency employee; and
(vi) the stage of review for issuing
the regulation.
(B) For each regulation expected to be
promulgated within the following 18 months--
(i) a determination of whether the
regulation is expected to be a
significant regulatory action or an
economically significant regulatory
action; and
(ii) any available analysis or
quantification of the expected costs or
benefits.
(C) For any regulation included in the
immediately previous agenda, an explanation of
why the regulation is no longer included.
(2) Publication of unified agenda required.--Not
later than April 15 and October 15 of each year, the
Administrator shall compile and publish online each
agenda received under paragraph (1) (to be known as the
Unified Agenda).
(3) Guidance.--
(A) In general.--The Administrator shall
issue guidance for agencies on the manner of
submission under this subsection and on meeting
the requirements of this subsection, including
a standard definition for each stage of review
and any other definition that would assist the
public in understanding the different terms
used by agencies to submit the agenda required
under paragraph (1).
(B) Updates.--The Administrator shall
periodically review compliance with this
section and issue guidance or recommendations
to assist agencies in complying with this
section.
(d) Coordination With State, Local, and Tribal Governments
and the Public.--
(1) State, local, and tribal governments.--The
Administrator shall meet not less than quarterly with
representatives of State, local, and tribal governments
to identify both existing and proposed regulations that
may uniquely or significantly affect those government
entities.
(2) Public.--The Administrator shall periodically
convene conferences with representatives of businesses,
nongovernmental organizations, and the public to
discuss regulatory issues of common concern.
(e) Best Practices.--The Administrator shall, in consultation
with the Regulatory Working Group and the entities described in
subsection (d), periodically develop advice and guidance for
agencies on best practices of the development of regulations.
Sec. 3523. OIRA coordinated review of significant regulatory actions
(a) OIRA Review.--
(1) In general.--The Administrator shall conduct a
Governmentwide coordinated review of significant
regulatory actions to ensure that such regulations are
consistent with applicable law and that a regulatory
action by one agency does not conflict with a policy or
action taken or planned by another agency.
(2) Periodic agency submission of planned regulatory
actions.--The head of each agency shall provide to the
Administrator, at such time and in such a manner as
determined by the Administrator, a list of each planned
regulatory action with an identification of whether
each such regulatory action is a significant regulatory
action.
(3) Review of significant regulatory action
required.--
(A) In general.--The Administrator shall make
a determination of whether any planned
regulatory action submitted under this section
is a significant regulatory action and shall
review each such significant regulatory action
in accordance with this section.
(B) Not subject to review.--Any planned
regulatory action determined by the
Administrator not to be a significant
regulatory action is not subject to review
under this section.
(C) Notification required.--Not later than 10
days after a planned regulatory action has been
determined to be a significant regulatory
action, the Administrator shall notify the head
of the relevant agency of such determination.
(4) Waiver of review for significant regulatory
action.--The Administrator--
(A) may waive review of any planned
regulatory action designated as a significant
regulatory action; and
(B) shall publish online a detailed written
explanation of any such waiver.
(b) Agency Consultation With OIRA.--
(1) In general.--An agency may consult with OIRA at
any time on any regulatory action.
(2) Regulation identifier number.--The head of an
agency shall make every effort to obtain a regulation
identifier number for the regulatory action that is the
subject of the consultation before consulting with
OIRA.
(3) Consultation information required.--If the head
of an agency is unable to obtain the regulation
identifier number as described in paragraph (2), the
head of the agency shall provide the regulation
identifier number to OIRA as soon as the number is
obtained with a list of any previous interactions with
OIRA relating to the regulatory action that is the
subject of the consultation.
(c) Agency Submission of Significant Regulatory Action for
Review.--Before issuing a significant regulatory action, the
head of an agency shall submit the significant regulatory
action to the Administrator for review and shall include the
following:
(1) The text of the significant regulatory action.
(2) A detailed description of the need for the
significant regulatory action.
(3) An explanation of how the significant regulatory
action will meet the identified need.
(4) An assessment of potential costs and benefits of
the significant regulatory action.
(5) An explanation of the manner in which the
significant regulatory action is consistent with a
statutory mandate and avoids undue interference with
State, local, and tribal government functions.
(6) For an economically significant regulatory
action, if any of the following was developed during
the decisionmaking process of the agency:
(A) An assessment of and quantification of
costs and benefits of the significant
regulatory action.
(B) An assessment of and quantification of
costs and benefits of potentially effective and
feasible alternatives, including any underlying
analysis.
(C) An explanation of why the planned
significant regulatory action is preferable to
any identified potential alternatives.
(d) Deadlines for Review.--
(1) Review coordination.--To the extent practicable,
the head of each agency shall work with the
Administrator to establish a mutually agreeable date on
which to submit a significant regulatory action for
review.
(2) Expedited review.--When an agency is obligated by
law to issue a significant regulatory action before
complying with the provisions of this section, the head
of the agency shall notify the Administrator as soon as
possible. To the extent practicable, OIRA and the
agency shall comply with the provisions of this
section.
(3) 10-day review.--In the case of a significant
regulatory action that is a notice of inquiry, advance
notice of proposed rulemaking, or other preliminary
regulatory action prior to a notice of proposed
rulemaking, within 10 business days after the date of
submission of the such action to the Administrator,
OIRA shall complete the review.
(4) 90-day review.--
(A) In general.--Except as provided in
subparagraph (B), for any other significant
regulatory action not described in paragraph
(3), within 90 days after the date of
submission of the action, OIRA shall complete
the review.
(B) Exception 45-day review.--If OIRA has
previously reviewed the significant regulatory
action described in subparagraph (A) and, since
that review, there has been no material change
in the facts and circumstances upon which the
significant regulatory action is based, OIRA
shall complete the review within 45 days after
submission of the action.
(5) Extension.--Any review described under this
subsection may be extended for any number of additional
30-day periods upon written request by the
Administrator or the head of the agency. Such request
shall be granted unless the nonrequesting party denies
the request in writing within 5 days after receipt of
the request for extension.
(6) Return.--If the Administrator determines OIRA is
unable to complete a review within the time period
described under this subsection, the Administrator may
return the draft of the significant regulatory action
to the agency with a written explanation of why OIRA
was unable to complete the review and what additional
information, resources, or time OIRA would need to
complete the review.
(7) Withdrawal.--An agency may withdraw the
regulatory action from OIRA review at any time prior to
the completion of the review.
(e) Compliance Review.--The Administrator shall review any
significant regulatory action submitted under subsection (c) to
determine the extent to which the agency--
(1) identified the problem that the significant
regulatory action is designed to address (including,
where applicable, the failures of private markets or
public institutions that warrant new agency action);
(2) assessed the significance of the problem the
regulatory action is designed to address;
(3) examined whether existing regulations or laws
have created or contributed to the problem that the
regulatory action is designed to correct and whether
those regulations or laws should be modified to achieve
the intended goal more effectively;
(4) identified and assessed available alternatives to
direct regulation, including providing economic
incentives to encourage desired behaviors, such as user
fees or marketable permits, or providing information
upon which choices can be made by the public;
(5) considered, to the extent reasonable, the degree
and nature of the risks posed by various substances or
activities within the jurisdiction of the agency;
(6) designed the regulatory action to be the most
cost-effective manner to achieve the regulatory
objective;
(7) considered incentives for innovation,
consistency, predictability, flexibility, distributive
impacts, equity, and the costs of enforcement and
compliance by the Government, regulated entities, and
the public;
(8) assessed costs and benefits of the regulatory
action and made a reasoned determination that the
benefits justify the costs;
(9) used the best reasonably obtainable scientific,
technical, economic, and other information concerning
the need for and consequences of the regulatory action;
(10) identified and assessed alternative forms of
regulation and, to the extent feasible, specified
performance objectives rather than behavior or manner
of compliance;
(11) sought comments and suggestions from appropriate
State, local, and tribal officials on any aspect of the
regulatory action that might significantly or uniquely
affect those governmental entities;
(12) assessed the effects of the regulatory action on
State, local, and tribal governments, including
specifically the availability of resources to carry out
the regulatory action, and minimized the burdens that
uniquely or significantly affect such governmental
entities, consistent with achieving regulatory
objectives;
(13) harmonized the regulatory action with the
regulatory and other functions of State, local, and
tribal governments;
(14) avoided conflicts with or duplication of other
existing regulations;
(15) tailored the regulatory action to impose the
least burden on society, including individuals,
businesses of differing sizes, and other entities
(including small communities and governmental
entities), consistent with obtaining the regulatory
objectives, and taking into account, among other things
and to the extent practicable, the costs of cumulative
regulations;
(16) drafted the regulatory action to be simple and
easy to understand, and minimized the potential for
uncertainty and litigation arising from such
uncertainty;
(17) met all applicable Executive order requirements;
(18) met all applicable statutory requirements; and
(19) complied with all applicable guidance.
(f) Quality Review.--For any significant regulatory action
submitted under subsection (c), OIRA shall assess the extent to
which the agency conducted a meaningful and complete analysis
of each of the factors described in subsection (e), considering
best practices, methods observed through reviewing other
agencies, comments from stakeholders, and other resources that
may improve the quality of the process.
(g) Interagency Consultation.--The Administrator shall
identify each agency potentially affected, interested, or
otherwise likely to provide valuable feedback on a significant
regulatory action submitted under subsection (c) and facilitate
a meaningful interagency consultation process. The
Administrator shall--
(1) provide each identified agency with a copy of the
draft regulatory action;
(2) allow each identified agency to review the draft
regulatory action for a sufficient period of time, not
less than 10 business days;
(3) solicit written comments from such agency and
provide those written comments to the submitting
agency; and
(4) as appropriate, facilitate conversations between
agencies.
(h) Stakeholder Consultation.--For all substantive
communications between OIRA and individuals not employed by the
executive branch regarding a regulatory action submitted to the
Administrator for review under this section, the Administrator
shall--
(1) invite the issuing agency to any meeting between
OIRA personnel and individuals not employed by the
executive branch;
(2) not later than 10 business days after receipt of
any written communication submitted by any individual
not employed by the executive branch, make such
communications available to the public online; and
(3) make available to the public online a log, which
shall be updated daily, of the following information:
(A) The status of each regulatory action.
(B) A copy of any written communication
submitted by any person not employed by the
executive branch.
(C) The dates and names of persons involved
in any substantive oral communication and the
subject matter discussed during such
communication.
(i) Conclusion of Review.--
(1) Provision to agency.--Upon completion of the
review, the Administrator shall provide the head of an
agency with the results of the OIRA review in writing,
including a list of every standard, Executive order,
guidance document, and law reviewed for compliance and
the results for each.
(2) Changes during review period.--Within 24 hours
after the conclusion of the OIRA review under this
section, the head of the submitting agency shall
provide the Administrator with a redline of any changes
the agency made to the regulatory action during the
review period. To the extent practicable, the agency
shall identify any change made at the suggestion or
recommendation of any other agency, member of the
public, or other source. To the extent practicable, the
agency should identify the source of any such change.
Sec. 3524. Public disclosure of regulatory review
(a) In General.--On the earlier of 3 days after OIRA
completes the review of any agency significant regulatory
action under section 3523, the date on which such agency
publishes the regulatory action in the Federal Register, or the
date on which the agency announces a decision not to publish
the regulatory action, the Administrator shall make available
to the public online--
(1) all information submitted by an agency under
section 3523;
(2) the results of the review provided to the agency
under section 3523;
(3) the redline of any changes made by the agency
during the course of the review provided under section
3523(i)(2); and
(4) all documents exchanged between OIRA and the
agency during the review.
(b) Plain Language Requirement.--All information provided to
the public shall, to the extent practicable, be in plain,
understandable language.
* * * * * * *
MINORITY VIEWS
H.R. 1009, THE OIRA INSIGHT, REFORM, AND ACCOUNTABILITY ACT
Committee Democrats strongly oppose H.R. 1009. H.R. 1009
would codify the role of the Office of Information and
Regulatory Affairs (OIRA) in reviewing significant agency
rulemakings. The bill includes many of the provisions of E.O.
12866, which was issued by President Clinton in 1993. However,
the bill also includes significant differences from E.O. 12866.
Independent agencies are not currently required to comply
with E.O. 12866, but the bill would subject such agencies to
review by OIRA. A primary concern with subjecting independent
agencies to OIRA review of rulemakings is that those agencies
are designed to be independent and therefore not subject to
political review of their regulatory actions by the White
House.
E.O. 12866 requires agencies to provide information to OIRA
``unless prohibited by law,'' including estimates of the
proposed costs and benefits of a rule. The bill does not
include this limitation. There are many environmental, worker
safety, and public health statutes that do not permit the use
of cost-benefit analysis when setting public health standards.
The majority has not explained how this bill would or would not
impact those laws.
The bill would enhance the stature of OIRA in the
rulemaking process in a manner that undercuts the role of
agencies. Congress delegates the authority to promulgate rules
to regulatory agencies, not to OIRA.
H.R. 1009 would provide OIRA with the exclusive authority
to determine whether rulemakings are ``significant'' and
therefore subject to OIRA review. Under E.O. 12866, agencies
decide whether a regulatory action is significant. If an agency
determines a rulemaking is not significant, OIRA has ten days
to disagree with that determination or the rule is not subject
to OIRA review.
Under E.O. 12866, OIRA is required to conduct its review of
agency rulemakings within 90 days, and that period can be
extended once for 30 days. This bill would allow OIRA 90 days
to review rules and would allow OIRA to extend its review of
rulemakings for any number of additional 30-day periods upon
written request by the Administrator or the head of the agency.
The bill also would provide that [s]uch request shall be
granted unless the nonrequesting party denies the request in
writing within 5 days after receipt of the request for
extension. Allowing OIRA an unlimited number of extensions
could lead to political interference through delays in
rulemakings.
Elijah E. Cummings,
Ranking Member.
[all]