June 12, 2013 Celeste Monforton, DrPH, MPH 0Comment

Themes related to time—meeting deadlines, doing retrospective reviews—-were heard frequently today by President Obama’s nominee to direct his Office of Information and Regulatory Affairs (OIRA).  Howard Shelanski, JD, PhD, the President’s choice for his  “regulatory czar” post, appeared for his confirmation hearing before the Senate Committee on Homeland Security & Governmental  Affairs.

The nominee’s written statement was short on details about his vision for OIRA, but in response to a question from Committee Chairman Tom Carper (D-DE), he mentioned three specific priorities:

“Should I be confirmed as OIRA administrator, my top priorities would really be three.  First, I would like to ensure that regulatory review at OIRA occurs in as timely a manner as possible.  That the quality of review remains high, and that timeliness and the notice to the regulated parties and to the public of what the regulatory regime will be will become finalized as effectively and efficiently as possible.”

“Secondly, I would view it as a very high priority to form good and respectful working relationships with the agency heads, with Members of Congress, with others in government, indeed with public stakeholders so that, should I be confirmed as administrator of OIRA, I will have the trust and positive working relationships that are essential to accomplish OIRA’s objectives.”

“Third, I think it’s extremely important to continue the good work that OIRA and the Administration have already been working on to further retrospective review and look back of regulation and our administrative system.  I think it is extremely important that even as we move forward as a country with new regulations, achieving new objectives or furthering old objectives, that we look back at regulations on the books to ensure that there are no longer burdens in place that are not achieving their objectives.”

Several Senators picked up on the timeliness theme.  Senator Carl Levin (D-MI) didn’t mince words in describing OIRA’s role in delaying agencies’ regulatory actions:

“We have now a situation where delays of agencies’ [rules] are chronic.  They [delays] fundamentally undermine the agencies’ ability to effectively execute the responsibilities that those agencies have.   Under the Executive Order which is in affect, EO 12866, OIRA has 90 days to review a draft of a proposed or final rule, there’s one 30 day extension that’s available.  As of May 14, 87 rules have been under review for more than 90 days, 51 have been under review for more than a year.” [00:51:20]

Senator Levin could have also quoted from “Down the Regulatory Rabbit Hole,” a new report by the Coalition for Sensible Safeguards.  It profiles eight regulatory proposals that are caught-up in OIRA’s review process and how the delays adversely impact public health, families and the environment.   I hope someone in the hearing room handed Mr. Shelanski a copy of the report.

Senator Levin asked the nominee:

“What’s your plan to change that situation?”

Mr. Shelanski responded:

“I absolutely share the concern you just raised about timeliness.  Not yet having been at OMB or OIRA , I can’t comment on what might have led to extended review of any particular rule, or what might have led to the number of rules that are under an extended review period, but I recognized that EO 12866 establishes the initial 90 day review process, and it would be one of my highest priorities, should I be confirmed as Administrator, to try to improve the timeliness, and the notice, and the certainty that lends to the regulatory environment.” [00:52:08]

Senator Rob Portman (R-OH) probed Shelanski about the Administration’s failure to publish its semi-annual regulatory agendas, as required by Executive Order 12866.

“For nearly three decades now, OIRA directors and OMBs of both parties have published their plans for new regulations.  They do so twice per year.  It’s an incredibly important opportunity for citizens to see what’s coming up and prepare for it.  That transparency measure is required under President Clinton’s Executive Order and also by the Regulatory Flexibility Act.  It calls for the publication of a regulatory agenda in the spring and one in the fall.  It lets people know what is in the pipeline, which I think is incredibly important, and what the potential compliance costs might be on small business.”

“…Last year, the Spring agenda was never released.    There was no Spring agenda.  It was the first time in decades, to my knowledge….  The regulatory agenda was not released, not in the Spring, not in the Fall, but in the winter, after the Election, on Friday, December 22.  …”

“In your briefing for this hearing, have you learned why OMB decided to skip the Spring regulatory agenda, and push back the Fall regulatory agenda?  Does this represent a policy change?  Are we seeing less transparency from an Administration that has claimed that it is the most transparent in history?” [01:25:13]

Nominee Shelanski responded:

“I share your concerns with transparency and the need to publish the regulatory agenda.  In my preparation for these hearings, being outside of OMB, I have not learned about why one agenda was not published and about the timing of other agendas.”

“Should I be confirmed as Administrator, I think it is vitally important that Americans, businesses, those who would benefit from regulation and those who would bear its costs have notice of what is in the regulatory pipeline. It will be one of my highest priorities to ensure that the regulatory agenda is published, in so far as possible, twice a year and in a timely fashion.”

At this point in the hearing, I wondered to myself whether Mr. Shelanski knew that the Administration has yet to publish it 2013 spring regulatory agenda.

It will be interesting to see how an individual with an affinity for timeliness deals with a backlog of rules “under review” and an office plagued by missed deadlines.


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