Howard Shelanski

Obama’s regulatory czar and (sort of) transparency

cmonforton — Thu, 17 Mar 2016 13:15:04 +0000

Obama’s regulatory czar and (sort of) transparency

A funny thing happened this week when President Obama’s regulatory czar, Howard Shelanski, was called to testify before Congress. The subject of the hearing: transparency at Shelanski’s Office of Information and Regulatory Affairs (OIRA). On the eve of the hearing, OIRA tried to fool us by pretending to be transparent.

For the last several months, I’ve been routinely checking OIRA’s website for notations about meetings the staff has held with individuals or organizations which have an interest in particular pending OSHA regulations. I knew meetings with particular groups had taken place, but OIRA had not disclosed the meeting on its website.

How’d I know about these meetings? First, I participated in two of them. One took place in December 2015 and the other in February 2016. No record of these meetings appeared on the OIRA website. Second, a reliable source confirmed that both the US Chamber of Commerce and the National Association of Manufacturers (NAM) had met with OIRA in early November 2015. My source told me the trade associations met with OIRA to discuss a new OSHA regulation to improve employer reporting of work-related injuries and illnesses. That is the same draft regulation about which colleagues and I met with OIRA in December 2015.

At least once per week since December I’ve been checking the OIRA site to look for the disclosure of these meetings. I even telephoned OIRA once and sent emails twice to ask why the meetings were not listed on the office’s website. No one responded to my inquiries. I also contacted the General Services Administration (GSA) which hosts the OIRA website. I spoke to a very nice member of the staff to ask if GSA had a backlog which would explain the missing information from the OIRA website. “No,” I was told, “GSA operate the website, but OIRA is responsible for posting its own content.” [paraphrased]

My weekly check of the OIRA website continued. The last time I called up the site was Friday, March 11, 2016. Still, none of these meetings were disclosed nor any others that might have taken place.

At Tuesday’s hearing before the Subcommittee on Government Operations of the House Committee on Oversight and Government Reform, Obama’s regulatory czar said this about transparency:

"Pursuant to EO 12866, OIRA meets with any party interested in providing input on a regulation under review. The entities with which OIRA typically meets include state and local governments, businesses, trade associations, unions, and advocates from environmental, health, and safety organizations. OIRA posts a searchable log of all such meetings on its website. That log now includes both meetings that have already taken place and also upcoming meetings." [0:15:50]

Hearing his testimony, I toggled to a new tab on my browser. I called up RegInfo.gov and used the search for "EO 12866 Meetings."

Well, well, what do you know. OIRA’s November 2015 meetings with the US Chamber of Commerce and NAM are now posted (here, here.) Several other meetings are listed, including the one I participated in December 17, 2015 (here), as well as a meeting with the American Insurance Association on November 9 (here), with the AFL-CIO on December 21 (here), with ORCHSE Strategies on January 11 (here) and with the American Road and Transportation Builders Association on February 2 (here.)

A win for transparency? Sort of.

I also participated in a meeting with OIRA on February 23. Colleagues and I held the meeting to urge OIRA's prompt review of OSHA’s final rule on silica. That meeting is not posted on the OIRA website. How many other meetings with stakeholders has OIRA failed to disclose?

Shelanski was in the hot seat during the hearing on Tuesday. Much of it focused on his failure to respond to a subpoena from the committee. None of the lawmakers asked about my pet peeve: OIRA's failure to disclose these meetings. It baffles me that something so simple is such a challenge for Mr. Shelanski's office.

cmonforton Thu, 03/17/2016 - 09:15

Midnight regulations, Shmidnight shmegulations

lborkowski — Wed, 17 Feb 2016 18:51:19 +0000

Midnight regulations, Shmidnight shmegulations

Cross-posted from CPRBlog

by James Goodwin

In case you didn’t get the memo: President Obama is entering the last year of his final term in office, so now we’re all supposed to be panicking over a dreaded phenomenon known as “midnight regulations.” According to legend, midnight rulemaking takes place when outgoing administrations rush out a bunch of regulations during their last few days in order to burnish their legacy or make concrete several of their policy priorities in ways that would be difficult for a successor—presumably from a different party—to undo. The legend further holds that because the rules are “rushed,” they are somehow of inferior quality.

Over the last few days, several antiregulatory commentators have issued dire warnings about midnight regulations(see here and here), and even the House Science Committee went to the trouble of holding a hearing on the subject just the other day.

Scared yet? Well, you shouldn’t be.

While “midnight regulations” might make for a good political talking point, there simply is no reason to believe that a rule released at the end of an administration is worse than those that are released at any other point. In fact, the administration could have been working on such rules for as long as seven years, which, according to the logic of the midnight regulation alarmists, would suggest that the quality of the rules is even better. After all, if the underlying assumption is that longer rulemakings make for better rules, then many of these last rules could very well be the best of the administration.

Still, the assumption about the supposed relationship between lengthy rulemakings and rule quality is false. The fact is every rule moves through the regulatory pipeline at its own rate, and the timing of its eventual emergence from the end of the pipeline has to do with a lot of complex and countervailing factors that are unrelated to meeting some arbitrary deadline before the end of an administration.

More to the point, agency administrators face strong incentives not to release a rule before it is truly ready. If they do, then there is a high likelihood that the rule will be successfully challenged on judicial review. All of the resources that the agency expended will have been wasted if the rule is struck down.

But all of this talk about alleged concerns regarding rule quality is actually beside the point. Just take a close look at the arguments that the midnight regulation alarmists raise. You’ll see that their real concern is about ensuring that individual rules are subjected to extensive cost-benefit analysis (purportedly to maximize the rule’s net benefits) and lengthy review by the White House Office of Information and Regulatory Affairs (OIRA). Anti-regulatory advocates assume—and they hope others will, too—that cost-benefit analysis and OIRA review leads to “better” rules, but that is not the case in reality. Instead, these institutions lead inexorably to less protective rules and needless delay. While such results may match the policy preferences of corporate interests and their ideological allies, they are highly inconsistent with public’s interest in seeing that agencies carry out their statutory mission in a timely and effective manner.

In short, the debate over midnight regulations appears to be less about improving regulatory quality, and more about ensuring that certain fundamentally antiregulatory components of the rulemaking process—namely, cost-benefit analysis and OIRA review—are afforded every opportunity to achieve the antiregulatory ends that some would desire.

Similarly, it’s hard to ignore the convenient politics of the midnight regulations myth. Republicans have made it abundantly clear that they will oppose everything that the Obama Administration attempts to accomplish during its time in office. In the midnight regulations myth, they find a new excuse to categorically reject every regulation the Obama Administration seeks to finalize during its eighth and final year in office. It allows them to deny the very legitimacy of every regulatory action the President takes this year with the effect of truncating his eight-year administration to just seven years.

Elections have consequences, though. (Republicans are fond of repeating this statement, but only when they happen to win.) One of those consequences is that, under the U.S. Constitution, President Obama gets eight years—not seven—to pursue the agenda he was elected to pursue—including through the establishment of regulations. As long as those regulations are supported by the administrative record and relevant statutory authority, they are no less legitimate simply because they are finalized in the eighth year as opposed to any of the first seven.

The unfortunate part, though, is that the Obama Administration has itself bought into the midnight regulation myth. In December, OIRA Administrator Howard Shelanski sent out a memo to all agency heads, instructing them, in effect, to avoid midnight regulations.

In some ways, Administrator Shelanski’s motivations for issuing this memo are understandable. First, the instruction to agencies to avoid issuing final regulations at the very end of the term is clearly aimed at insulating these rules from being blocked by a Congressional Review Act resolution of disapproval after the Obama’s term has completed. (In the event that the Republican Party can grab control of both the White House and both chambers of Congress in the next election, the Congressional Review Act would afford the opportunity to reject some of the last rules that the Obama Administration has issued.) While real, that threat is likely overblown. After sweeping into the White House, the George W. Bush Administration, working with Republican majorities in both chambers of Congress, only used the Congressional Review Act on one rule—the Occupational Safety and Health Administration’s (OSHA) ergonomics rule. There were several other controversial rules that could have been rejected using these same procedures, but it appears that this was not a high priority for Party leadership at the time. If this scenario repeats itself in the next election, it seems just as unlikely that Republicans will expend a lot of resources rejecting rules they disfavor.

Second, as the head of OIRA and the President’s lead supervisor of agency cost-benefit analyses, it makes sense that Administrator Shelanski would want to protect his prerogatives to conduct centralized review of agency rules and fiddle around with agency cost-benefit analyses. In other words, the memo seems to be more about validating his position than it is about ensuring the quality of agency rules. After all, as noted above, OIRA review and cost-benefit analysis rarely accomplishes anything beyond delays and weaker protections.

In the end, Administrator Shelanski’s memo is just the latest instance of the Obama Administration’s ongoing series of self-defeating blunders on regulatory policy. It gives the midnight regulation myth unwarranted credence by adopting and reinforcing the myth’s supposed logic. Far worse than that, though, the memo buys into the negative frame of regulation that conservatives and special interests have been pushing for several decades now. Buried within the midnight regulation myth is the implication that regulation is at best a necessary evil that must be minimized if it is to be tolerated at all.

A far better approach would have been for Administrator Shelanski to issue a memo that adopted a positive vision of regulation—one that closely aligns with the positive role of government that Candidate Obama championed and that President Obama has nodded toward intermittently ever since. For example, the memo should have started by acknowledging all of the good that has been accomplished through the Obama Administration’s aggressive use of regulatory authority to address unacceptable harms to people and the environment. The memo then should have urged the agency heads to use their eighth and final year as an opportunity to redouble their efforts and build upon the successes they have already achieved. It should have closed by assuring them that the Administration would provide all of the support at its disposal to ensure that any important rules still in the pipeline will be done right and on time.

This alternative memo from Shelanski would not only reinforce the positive vision of the regulatory system; it would also affirm the successes of the Obama Administration. That kind of a memo would have offered a much better road forward by comparison; I am now left wondering why it was left untraveled.

lborkowski Wed, 02/17/2016 - 13:51

Congress squeezes Obama’s reg czar about lack of transparency

cmonforton — Wed, 04 Mar 2015 19:47:08 +0000

Congress squeezes Obama’s reg czar about lack of transparency

It’s a rare thing on Capitol Hill when a member of the Administration is on the hot seat from both sides of the aisle. But that’s what happened on Tuesday when President Obama’s regulatory czar, Howard Shelanski, JD, PhD, testified at a joint hearing of two subcommittees of the House Committee on Oversight & Government Reform.

The Republican Chairman Mark Meadows (R-NC) and Ranking Member Gerry Connolly (D-VA) and other subcommittee members, peppered him with questions about OIRA’s lack of transparency in numerous arenas. Their motivations were different, but they were equally tough in their questioning. Republicans don’t think OIRA is doing enough to reign in regulatory agencies, while Democrats want OIRA to complement, not impede, agencies’ work.

I could relate to Chairman Meadows when he pressed Shelanski about releasing documents related to OIRA’s review of an agency regulation. That’s a topic that is close to my heart as I’ve filed numerous FOIA requests---during both Democratic and Republican Administrations---to obtain such records.

Meadows read from Executive Order 12866 (EO) which directs OIRA’s activities.

“OIRA shall make available to the public all documents exchanged between OIRA and the agency during the review by OIRA under this Section.”

I’ve referred to that exact language when I’ve filed my FOIA requests. I did so, for example, when the Labor Department proposed a regulation for workers aged 15 years or younger to be prohibited from doing some of the most dangerous tasks on farms. OIRA’s review lasted more than 9 months and child safety advocates suspected that Tom Vilsack’s USDA, on behalf of the agriculture industry, was trying to stop the rule. We wanted to see the emails and other correspondence written during that time by OIRA, USDA, Small Business Administration and other agencies about the proposal. We wanted to know which agencies were trying to quash a regulation design to protect young workers' lives?

I agree with Meadows that the language "shall make available to the public all documents exchanged…” is pretty darn clear.

Shelanski responded to Meadows, saying:

“That executive order has been interpreted across all Administrations --Republic and Democrat---to embody the deliberative process exception of staff level communications and we do not disclose those to the public. It is to protect the integrity of process.”

Obama's guy was not budging on this one.

Ranking Member Connolly and Cong. Matt Cartwright (D-PA) were well prepped for the hearing. It was clear to me that they’d read some of the work by the Center for Progressive Reform (CPR) on OIRA’s improper influence over decision-making by our public protection agencies (e.g., Behind Closed Doors at the White House: How Politics Trumps Protection of Public Health, Worker Safety and the Environment.) At one point in the hearing, Shelanski bristled when a Democrat referred to a CPR report. He responded with a scowl:

“I’m familiar with the Center’s criticism.”

Connolly raised concerns about OIRA’s bad track record on completing reviews within 90 days as prescribed in the EO. The congressman noted that the OIRA website allows the public to see how long a proposed or final regulation has been with OIRA for review, but

“there's no explanation for why the delay. Why not? And are you working on that?"

Shelanski responded:

“...one of the things that happens very early in the review process is that the rule goes out for inter-agency comment. And we unfortunately do not have the authority to compel that commentary on as fast a timeline as we would often like, and when you've got a lot of agencies commenting on a particular rule, it can take some time to get that feedback. Moreover, once we incorporate that feedback and re-transmit it back to the rulemaking agency, we have no control over how long that agency takes to bring the rule back to us.

So, to be perfectly frank, long periods of time can go by when the rule, in fact, is not at OIRA. it is under review, but it has been passed back for further work, consideration and analysis by the agency.”

The section I highlighted is something I’d not heard previously. When I want to track the status of OIRA’s review of an agency regulation, I go to this page at RegInfo.gov. It shows which rules are being reviewed by OIRA and when they were submitted for review. It says “submissions under review.”

Is Mr. Shelanski saying that there may be regulatory actions on that list that are no longer under review because they’ve been retransmitted back to the agency? If that’s the case, why doesn’t the Administration just indicate that on the website?

Congressman Connolly seemed satisfied with Shelanski’s explanation of how the review process works. He said:

“That's a perfectly rational explanation. So post it. …Saying 'agency X is still reviewing it' …you put a little pressure on them to maybe accelerate their review because they are now under scrutiny.”

"When I was chairman of my county, I started a multi-year transportation plan for spot improvements. I put up [on a website] every project we were going to fund, I put up how much it was going to cost, I put up when we were proposing to have it done, and if there was a delay, we posted why, to make myself accountable. And you know what? You'd be amazed at how quickly the bureaucracy moves when there is that public accountability."

During the hearing, two OIRA staffers were sitting behind Shelanski and diligently taking notes. I hope they put a big star next to Cong. Connolly's recommendation. If an agency rule has been "passed back for further work, consideration and analysis by the agency," the RegInfo.gov website should indicate that. It could say:

"Returned to agency for further analysis. To be resubmitted again for review."

Likewise, if the ball is in OIRA's court, that's what should be reflected for the public on the website. It is "under review."

As someone who has complained here about OIRA's failure to meet its publication deadlines for the Administration's semi-annual regulatory agenda, I chuckled when Chairman Meadows' staff displayed a graphic. It show the publication dates for the last five regulatory agendas. Here's what it showed:

Fall 2012 agenda: published the Friday before Christmas
Spring 2013 agenda: published the day before July 4th
Fall 2013 agenda: published the day before Thanksgiving
Spring 2014 agenda: published Friday of Memorial Day weekend
Fall 2014: published the Friday before Thanksgiving

Meadows said:

"If you truly want transparency, why are you rolling this out at a time when people wouldn't really be focusing on it? That's what we call the Friday afternoon data dump, but it is really what you are doing with the unified agenda. Why would you do that?"

Shelanski: "With all respect sir, the agenda remains posted."

Meadows: "I understand, but when it comes out, it is newsworthy."

I liked the chart with the holiday time releases, but Meadows failed to mention something else. The agendas are supposed to be published in April and October. None of them met that deadline.

James Goodwin with the Center for Progressive Reform offers some of his own views about Tuesday's hearing. He observed the much-needed attention by Cong. Connolly and Cong. Cartwright on what James calls

"the absurdity of OIRA's 'open door' meeting policy."

I couldn't agree more with James that the hearing was worthwhile, but only scratched the surface of the problems with OIRA---problems that have real consequences for people's lives and health.

cmonforton Wed, 03/04/2015 - 14:47