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?"
“...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
"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.