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Nominee for Obama's regulatory czar grilled about life-saving protections, their costs

Howard Shelanski, the man tapped to be Obama's next regulatory czar -- or more formally, the head of the White House's Office of Information and Regulatory Affairs (OIRA) -- appeared before the U.S. Senate's Homeland Security and Government Affairs Committee.

The agency is tasked with reviewing many regulations that would protect public health and safety. To our dismay, many of these critical rules, including a proposed rule that would protect workers from exposure to dangerous levels of silica dust on the job, have faced cumbersome delays.

Shelanski's views on regulations are largely unknown, and the Senate committee -- not to mention several advocacy groups -- wanted to find out where he stands. National COSH helped to live-tweet the Senate hearing (check out our Twitter feed for the latest). Below, check out blog posts recapping the events from our partners at the Center for Effective Government, Public Citizen, and the Center for Progressive Reform.

Shelanski Lays Out Top Priorities if Confirmed as Next OIRA Administrator

Cross-posted from the Center for Effective Government

At his Senate confirmation hearing this morning, Howard Shelanski, nominated to serve as the next administrator of the White House Office of Information and Regulatory Affairs (OIRA), laid out his top priorities for the office. Among them are addressing long-standing delays of crucial standards and safeguards and the lack of transparency in OIRA's rule review process.

OIRA is a small office within the White House Office of Management and Budget (OMB) that holds an enormous amount of responsibility for overseeing rules issued by executive branch agencies. Executive Order 12866 sets review deadlines and transparency requirements that OIRA must follow, but the office has a reputation forblocking important rules indefinitely without giving the affected agency or the public any explanation of its reasons for doing so.

From the outset of the hearing, Shelanski told the Homeland Security and Governmental Affairs Committee (HSGAC) that he shares concerns with members of Congress who have argued that the lengthy rule delays and lack of transparency at OIRA need to be addressed. Sen. Carl Levin (D-MI) probed further and stressed that “delays at agencies are chronic [and] they fundamentally undermine the agencies' abilities to effectively execute the responsibilities that those agencies have.” Shelanski committed to “ensur[ing] OIRA review occurs in a timely manner,” emphasizing that this would be one of his highest priorities if confirmed.

Shelanski also spoke about his view of OIRA’s role in the regulatory process, noting that it is not OIRA’s role “to substitute its judgment about science and regulatory priorities for those of the expert agency staff and agency heads.” He recognized that in regard to cost-benefit analysis, costs and benefits cannot always be easily quantified. And when Congress has required an agency to prioritize public health and safety, and has prohibited cost-benefit analysis, OIRA should follow the letter of the law.

Shelanski briefly addressed concerns about a lack of transparency in OIRA’s review process. He indicated that “[t]ransparency and the opportunity for the public to have notice and to comment in rulemaking procedures [are] extremely important. And the public, of course, includes all stakeholders.” While disseminating more information about the rules in the pipeline would be an improvement from the status quo, we urge Shelanski to make other much-needed improvements, such as posting details of private meetings in a timely manner, informing the public of the reasons for delaying a rule, and explaining any changes it makes to agency rules.It is encouraging that Shelanski views timeliness as a top priority. Still, the real test will be whether he, if confirmed, will actively work to move delayed health and safety rules through review in an open and accessible manner.

Time for a change at the White House (de)regulatory office

Cross-posted from Public Citizen

Pop Quiz: what’s the most powerful government office you’ve never heard of?

Maybe a secretive national security office or covert operations outfit? Think again. Actually the most powerful government office you’ve never heard of, according to the former head of the office, is called the Office of Information and Regulatory Affairs, referred to as OIRA for those in the know. To be fair, many readers of this blog are probably in the know — which is a good thing, since tomorrow is the Senate confirmation hearing for the new nominee to head OIRA, Howard Shelanski.

But for those who aren’t familiar with OIRA, a little background is in order. OIRA is a small office within the Office of Management and Budget, meaning, for all intents and purposes, that it’s an extension of the White House. Its job, in a nutshell, is to review regulations from agencies and give the green light before agencies can go ahead with putting those regulations in place. Sounds pretty banal and technical, right? Not quite.

On the surface, OIRA seems like any other White House office that Republicans love to bash (particularly since this one deals with so-called “job-killing” regulations). But scratch below the surface, and you find that Republicans have actually been proposing numerous pieces of legislation in the last few years that would give much more power to this small White House office. In fact, when it comes to Republicans giving the White House more authority, it’s hard to find a better example than OIRA. If you’re like me, you’re probably starting to hear the “Twilight Zone” music somewhere in the background …

Why is this happening? Because Republicans and the Big Business interests that bankroll their campaigns believe that OIRA is their ally in seeking to stall, water down and even roll back crucial new regulatory standards.

OIRA’s recent track record, not to mention historical record, bears this out. OIRA was established in the Reagan administration to counter what Republicans saw as “overzealous regulators.” Under the Obama administration, OIRA still routinely overrides decisions from the Environmental Protection Agency, Occupational Safety and Health Administration, and other agencies working to protect the public. OIRA, as it was first conceived, is working, and Republicans want to make sure it only gets stronger.

Last week, a group of prominent Congress members sent a letter to newly appointed OMB director Sylvia Burwell asking her to inform Congress of the status of rules that have been “badly delayed” by OIRA review. They rightly point out that a fundamental lack of transparency has kept the explanation for those delays hidden behind closed doors. For example, the silica rule, a crucial worker safety rule that would protect workers from exposure to a known carcinogen, has been under review at OIRA for an astonishing 814 days. What could possibly warrant such a lengthy review? Don’t bother asking anyone at OIRA … they won’t tell you.

Instead, urge HSGAC members to ask Shelanski if he’ll end the gridlock or continue to thwart life-saving regulations.

 

Some Observations from the Howard Shelanski Confirmation Hearing

Cross-posted from the Center for Progressive Reform

Yesterday's confirmation hearing for Dr. Howard Shelanski—President Barack Obama’s nominee to serve as the next “Regulatory Czar,” or Administrator of the White House Office of Information and Regulatory Affairs (OIRA)—may have been the “most important hearing in Washington this week,” but it did not produce much in the way of bombshells or drama.  Rather, it was a relatively staid affair, which at times had a distinct “going through the motions” vibe.

On the positive side, the hearing generated some good discussion about the problems associated with OIRA’s role in the rulemaking process.  Several of the questions posed by Chairman Carper (D-DE) and Senator Levin (D-MI) were very thoughtful. Senator Levin described the excessive rule delays at OIRA as “chronic” and asked what the nominee would do to address them.  He also touched on the problems of extending OIRA review to independent regulatory agencies (as some recent legislative proposals from anti-regulatory members of Congress have sought to do).  Chairman Carper addressed the need to limit cost-benefit analysis for rules promulgated under statutes where such statutes prohibit this analysis (which happens to be most of them).

Shelanksi offered some thoughtful answers to these and other question.  He stated that, if confirmed, his top priority would be to ensure “timely review” of agency rules, as opposed to OIRA’s current pattern of routinely violating the 90-day limit that Executive Order 12866 places on such reviews.  Shelanski also repeatedly acknowledged the need to conduct OIRA review consistently with the statutes under which agency regulations are issued.  For example, during one exchange, Chairman Carper noted that for some statutory provisions—such as the provisions of the Clean Air Act under which the Environmental Protection Agency (EPA) sets National Ambient Air Quality Standards (NAAQS)—explicitly prohibit the use of cost-benefit analysis.   In response, Shelanski noted that OIRA review involves several elements in addition to cost-benefit analysis, and that its review of NAAQS would likely need to focus on those other elements.  Since OIRA has routinely ignored such statutory provisions, Shelanski's assertion that he intends to comply with the law is noteworthy.

But, there were also some concerning moments during the hearing.  Two in particular stand out:

  • During his opening statement Ranking Member Tom Coburn (R-OK) asserted that OIRA is regulated industries’ “last hope” for reducing regulatory burdens.  This understanding of OIRA’s role in the rulemaking process is unsurprising but categorically incorrect.  The putative purpose of OIRA’s role is to improve the quality of rules, and quite often that means—or should mean—pushing for stronger rules.  After all, Congress has repeatedly written statutes directing agencies such as EPA and OSHA to establish strong public safeguards.  The job of OIRA ought to be to ensure that these statutory provisions are being implemented properly—not to block or weaken rules simply because powerful corporate interests find them inconvenient.  This remark from Ranking Member Coburn does, however, offer a clear insight into how anti-regulatory members of Congress think about OIRA.  In their view, OIRA should work hand-in-hand with corporate interests to prevent agencies from fulfilling their mission of protecting people and the environment.  All too often, this is precisely the corrosive dynamic that has come to define OIRA’s interference in individual rulemakings.
  • During a late exchange, Chairman Carper asked Shelanski about his written response to a Committee pre-hearing question regarding OIRA’s informal “consultations” early in the rulemaking process (i.e., OIRA interventions in agency rulemakings prior to the beginning of a draft proposal’s formal review).  In particular, Chairman Carper asked Shelanski how he intended to ensure that these consultations are “appropriate” and are conducted with adequate “transparency.”  Shelanski’s response to this question was quite disappointing.  He explained that he would want these consultations to be “helpful” and something that agencies “desired.”  But, he did not explain how he would ensure that these consultations would be conducted transparently.  Historically, OIRA Administrators and staff have used these pre-review informal consultations as an opportunity for overruling agency priorities or agency policy judgments.  Because these consultations happen so early in the process before much of the work on the rulemaking has begun, and because they lack any transparency, they offer the perfect opportunity for improper OIRA interference.  Shelanski clearly recognized this concern, as he explicitly promised that he would not use these informal consultations to such nefarious ends.  But, unless there are meaningful transparency requirements governing these consultations, the public has no way of knowing whether Shelanski will keep his promise if he is confirmed.  Shelanski may well keep this promise, but that would do nothing to stop less upright future OIRA Administrators from abusing the informal consultation process.  In truth, there probably is no effective way to ensure that pre-review informal consultations are conducted with the minimum needed transparency to ensure they are conducted appropriately (i.e., without improper OIRA interference in agency priority-setting or policy judgments).  The better policy is to prohibit them outright, and instead limit OIRA’s interventions to the formal reviews, which are ostensibly governed by Executive Order 12866’s transparency provisions.

These concerns touch on important problems with OIRA role in the rulemaking process.  I will continue to watch for how OIRA addresses these problems if and when Shelanski is confirmed, and for whether the Senate Homeland Security Committee uses its oversight authority to push OIRA to address these problems.

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