Federal rules agency lagging in accountability, transparency, lawmakers say

The agency charged with the checks and balance of the federal regulations process is overworked, behind on meeting recommended improvements, and its leader is angering lawmakers with his perceived “hands-off” approach to certain congressional requests.

Members of the House Oversight and Government Reform Subcommittee on Government Operations expressed their concern and frustration during a March 15 hearing on the accountability and transparency of the Office of Information and Regulatory Affairs (OIRA), and its administrator, Howard Shelanski.

Committee Ranking Member Gerry Connolly (D-Va.) called OIRA “arguably the most influential and consequential federal agency that most Americans have never heard of.”

“Yet despite the powerful impact this agency has on the lives of all Americans, OIRA operates mostly in the shadows, and from a good government point of view, greater transparency might be warranted,” Connolly said. “Unfortunately, there continues to be a documented lack of transparency within this small statutory office housed within the Office of Management and Budget.”

Subcommittee Chairman Mark Meadows (R-N.C.) called Tuesday’s hearing a “reset” and expressed hope that more information would be coming from OIRA.

“I think the jury is out on the questions being answered,” Meadows told Federal News Radio. “Obviously, we wanted to stress the importance of the oversight side of OIRA and how transparency is imperative to not only the federal workforce, but certainly to all Americans, that we make sure that it is transparent and accountable, and when that information is not shared, it gives the illusion that ‘We’re not being cooperative.’”

OIRA is part of the Office of Management and Budget. It was established by the Paperwork Reduction Act of 1980. Among its duties, OIRA’s staff of roughly 40 full-time employees review new and existing regulations, and ensures that public comments are considered and incorporated as agencies finalize these regulations.

Shelanski said in his testimony that OIRA promotes transparency by taking the time necessary to ensure regulations get interagency review as well as input from stakeholders, businesses and other parties that would be impacted by a proposed or final regulation.

“Such transparency is essential to the public’s ability to influence the regulations with which they must eventually live,” Shelanski said.

Shelanski said OIRA staff have had 900 meetings in the past year with people or parties interested in a particular rule.

Benefits for American citizens

But subcommittee members highlighted the fact that OIRA has not complied with the recommendations made by the Government Accountability Office to improve transparency in federal rule making.

“Instead OIRA is marred by consistently late reporting, incomplete analysis, poor data quality and insufficient oversight of the federal regulatory process,” Meadows said. “OIRA is quite possibly an agency overwhelmed by this responsibility and insufficient resources, but the public doesn’t know because OIRA has failed to provide any insight into that process.”

Michelle Sager, director of strategic issues at the Government Accountability Office, said OIRA had complied with 9 of the 25 recommendations made in selected reports related to Tuesday’s hearing.

“We believe those 16 related recommendations that have not been implemented still have merit and if acted upon would improve the transparency of federal rule making,” Sager said. “Increased transparency of the rulemaking process holds potential benefits for your continued oversight as well as for increased public awareness and understanding of the rulemaking process for the regulations that affect all of us as citizens and as taxpayers.”

Richard Williams, vice president of policy research and director of the regulatory studies program at George Mason University’s Mercatus Center, likened the current workload of OIRA to a battle of “David versus Godzilla.”

“While federal agencies have grown to twice their size, OIRA has been halved,” said Williams, a former OIRA worker. “Regulatory agencies have about 280,000 employees versus about 30 in OIRA. So where OIRA was reasonably effective at the outset, the growing imbalance is producing these poor results.”

‘We need to do more’

Meadows asked whether this lack of resources and personnel could be what has contributed to a 7-month delay in responding to a subpoena issued by the oversight committee related to the Waters of the United States rule.

The subpoena was a hot button issue for several members of the subcommittee, notably Rep. Jason Chaffetz (R-Utah), chairman of the full committee.

“I issued a subpoena in July of last year … why shouldn’t I hold somebody in contempt?” Chaffetz asked. “You say you’re not responsible, but you’re the administrator of this office.”

Shelanski said he had turned over all of his documents to his general counsel and legislative affairs office, and that staff was working with the committee’s staff to provide the information. So far about 4,000 documents had been produced, along with at least one transcribed interview, Shelanski said.

“There is an ongoing process so I do not think it is a fair characterization that you have not received an answer,” he said.

But other committee members took issue with Shelanski’s perceived hands-off approach.

“If I’m in charge, even if it’s something that is handled by my legal department, if I’m in charge I make it my business to know whether we’re in compliance, especially if I know I’m going to be testifying in front of a committee,” Connolly said.

Rep. Jim Jordan (R-Ohio) expressed his concern about transparency and accountability, pointing out in a GAO report from 2012, “agencies did not publish a notice of proposed rulemaking (NPRM), enabling the public to comment on a proposed rule, for about 35 percent of major rules and about 44 percent of nonmajor rules published during 2003 through 2010.”

Shelanski said if those those numbers remained the same or anywhere close, “We need to do more.”

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