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for regulatory reform; we are getting close to sunset, because now the Council sends advisories down, whether they are oral or written, to you to put into effect, and it is being done in a whole different fashion than what worked out over the last decade.

The lack of sunshine is the problem here, but there is no record kept of it. That's exactly the problem. Congress inquires, and the Administration says it's only where there is an interagency difference. And yet the Council sends advisories back down to the agencies which go against what the good technical people in the agencies worked out as a proper rule and regulation. And I'm the last one that's going to say that there should not be consideration given to competitiveness. I know that we may occasionally have a zealot in one of the agencies whose particular area of interest leads him or her to write a rule or regulation that really skates out on the thin edge of what Congress intended when it passed the law, so these people may have to be pulled in a little bit once in a while because they may push some regulations that really would hurt our competitiveness and be a serious blow to the economy of the country. That is possible.

So I don't question that there may need to be some review of agency rulemaking, but only as long as that review is open, and everybody knows that the name of the game is "fair". Lack of fairness is being called into question here, and it is going to continue to be called into question, and it is what has led us to introduce this particular piece of legislation.

We seem to be at loggerheads here on how to resolve this issue, and maybe we have to run roughshod over you and pass new legislation and if we have to do that, we'll make every effort, and I suppose the President will veto it, and we'll try to override, and I hope we make it. But I don't understand why, at a time when the people have less confidence in Government than we've had for a long, long time and that lack of confidence extends, I would add, to both the Legislative and Executive Branches and here we have a situation like this, and the Executive Branch is trying to close the door-not open it up and follow what this Committee has been advocating for 10 or 12 years-in fact it started before that; it has been 17 years that we've been working for openness in Government going clear back to the Carter years, before the Reagan years, and the Bush years. But now we see the door shutting.

Now, that's the appearance not just to us Senators; it is the appearance to the American people. This legislation will address the lack of sunshine in regulatory review, although I suppose it is like boxing a jellyfish-you push it here, and they'll form another council or committee to do the same thing this one is doing, and once again it will be a closed door operation. That is what we oppose. How are we going to establish a fair, open system if it is conducted in the dark by the Council, and people don't even know when a rule is being considered or reconsidered; there is no notice given; they have no opportunity to come in. The Council says that everybody is welcome, but nobody knows why they are welcome, particularly when they don't even know what is going on-so how are they welcome?

Is there any different approach to regulatory review that is going to give the people of this country more confidence in the process

than we have right now? That's what we're trying to address, is confidence in Government. How are we going to do it?

Mr. MACRAE. Well, I think in many ways the responsibility of the rulemaking agency is perhaps to be more active. We do put out every year both an Agenda of Federal Regulations as well as the Regulatory Program, and that suggests what things are coming up that agencies are considering, what regulations they will be undertaking. Those are documents that are available to everybody, and certainly they encompass what an agency will take up of a controversial and important nature. That information is out there, and there are dates next to those upcoming regulations. So the public is told at least through those documents what is coming along or what the status of a regulation is and when the public comment period will be, and things like that.

One of the ways agencies put regulations out, of course, is the official way-they put regulations out in the Federal Register. Talk about a question of fairness. You've got to pay $480 a year to have a subscription to the Federal Register. How many small businessmen can afford a subscription to the Federal Register? How many consumers? How many-whatever. Maybe the fatcats sure can, but I don't know about the others.

We do have, it seems to me, the question of how do we make this information available to people. The Federal Register is the way that we do it; it is not a particularly effective way, in my judgment. Chairman GLENN. You, of course, are aware of our agreement of last year; you were involved with that.

Mr. MACRAE. I was involved with some of it, yes, sir.

Chairman GLENN. Do you think that was a good, fair agreement? Mr. MACRAE. I don't think it would have been that much different than what we have done with our procedures and our acceleration of review or reduction of the review times and the fact that we have very few delays. I think the spirit of that agreement, we have largely carried out.

Chairman GLENN. Well, if you think the agreement is being carried out, why don't you just sign onto it again, and we'll put out the Executive Order we had agreed on at that time, and this whole issue would be resolved, and we wouldn't have all these hearings to follow this thing through.

Mr. MACRAE. Well, as I said, we've

Chairman GLENN. Why was the Administration's position reversed?

Mr. MACRAE. I don't know.

Chairman GLENN. It was reversed at a time when the Competitiveness Council got involved in regulatory review and started bypassing the sunshine procedures the agreement had tried to set up. Mr. MACRAE. I do not know.

Chairman GLENN. That's what makes the Council very suspect, because this is something that administration completely signed off on, we had a letter to that effect. Then I don't know who influenced the process-I can't say, but I have my own suspicions, and this is a person out of Government, as a matter of fact-who influenced what went on over here on the floor that prevented the legislation and our agreement from being passed last year.

Mr. MACRAE. At the end there, I was not involved. I don't know what happened.

Chairman GLENN. OK. Well, we do have other witnesses this morning.

Carl, do you have any last questions? We're going to have to move along.

Senator LEVIN. This is just a comment, Mr. Chairman. The open process approach which we thought we had agreement on, which the administration has backed away from, was the alternative to trying to put a stop to regulatory review by agencies outside of the agency who has the responsibility for promulgating the rule. What the administration is going to force us back to, it seems to me, if they are going to oppose sunshine is they are going to force us back to the position of saying if you won't do it fairly, if you won't notify people when a rule is being reviewed by the agency that is going to have a big impact on it, then you are forcing the Congress, it seems to me, to take the only other route which Congress could take, which is to say in that case we're going to try to prevent those agencies from impacting, because we want the rulemaking agency, the EPA or whatever, to do the rulemaking, and not the OIRA and the White House. And we can then start building all the roadblocks that are possible and legal to that review. Some of us would prefer not to go that route. Some of us are willing to have the review by the accountable elected official, providing it is open and accountable.

So I just want to kind of say that the position of the administration, which is now a backing away from what we had had, is really going to force the Congress not just to try to pass legislation, and maybe over the veto of the President, but to then try to block the review by the agency outside of the EPA or the other agencies which are responsible for the rulemaking.

So that's what you are really pushing us to, and I don't think it is in your interest or the administration's interest to do that, but that's the road which you are now forcing us down, and I think it is a mistake from the administration's perspective.

Thank you, Mr. Chairman.

Chairman GLENN. I don't enjoy scraps like this. I really do not. Mr. MACRAE. Believe you me, I don't either, Senator.

Chairman GLENN. I'm sure you're not enjoying this morning particularly. But you are aware-you were right in the middle of itbecause we spent over 2 years negotiating back and forth, working the agreement out, over 2 years. And I would hope that even at this late date, rather than have a big confrontation between us and the White House, I would hope we could maybe reinstitute the agreement that we hammered out over a 2-year period that was put in limbo and, by what testimony we've had here in previous hearings, apparently was superseded by the Competitiveness Council taking over regulatory review.

So I would hope we could get back to that agreement because I think OMB found it acceptable, and what happened after that I don't know. But you might want to reconsider that and take that back to talk to Mr. Darman and others about.

We appreciate your being here this morning, Mr. MacRae. I don't find these hearings very pleasant, either, and I know you

don't, and I hope we can work these things out because it is important for the people of the country to have some confidence in Government, and the more we close the doors, the less confidence they are going to have. It is that simple.

Mr. MACRAE. Well, sir, I really don't believe that the doors are closed

Chairman GLENN. Well, they sure aren't open.

Mr. MACRAE. I do think it is important, I think it is very important, because of the charges that one does need to talk to the rulemaking agencies and say, "Come on, guys, there are these stories about. Are you comfortable with what you've been doing or what you've been told to do, if you think you've been told to do it?" Chairman GLENN. I meant to comment on your remark a little while ago. I really do believe what you said a while ago. You said that at OMB you try to shelter your staff from just playing politics with these things, and I believe that; I think you really do. Now, when it gets to the Competitiveness Council, that's all political appointees. It is a political group that is admittedly a political group, as political as they can get, that is, as Senator Levin said, out raising money, with businessmen contributing and people coming in, asking, "Can I give you a call?" "Sure, give me a call." That's not publicly announced. The counter argument to what that person may say isn't out there in the public record so we know that all views are considered in the regulatory process. At OMB, I think you don't try and play politics with regulations but I think you've gotten superseded by people who are strictly political in what their considerations are.

Mr. MACRAE. But Senator-and I know you probably won't believe this I have never, ever received what I considered to be political advice from anybody within the EXOP family, at all-at all, sir. And I have been there 25 years.

Chairman GLENN. OK, then, I'd appreciate the list of these advisories that I asked you for before and what you've done about them.

Mr. MACRAE. As I said, they are just too numerous. We talk all the time; we have to.

Chairman GLENN. Well, I'd appreciate having just 10, then, if they are that numerous. Just give me a few of them, where the advisories came from, what was the input of the Council on Competitiveness, whether the communication was verbal or on paper or on a note, or whether you received it over the telephone or whatever. Surely, somebody ought to be able to recall just a few of these myriad decisions that are made that you talk about here. Surely, somebody can recall what was said, and not just tell us to act in the dark and "trust us" because that's what started about 20 years ago as people don't trust the Executive Branch in this area, and that's the reason for the legislation.

Mr. MACRAE. I'm not saying "trust us" alone. I'm saying that the evidence of improper influence on rulemaking-and notice I say "improper" because it is perfectly proper for the Council or any other entity charged by the President to involve themselves in this process but evidence of improper influence, I think you need to go to the agencies and put them under oath and ask, "Did you feel that the advice, recommendation, call it what you want, that

you received and that you acted on was improper, and that it was against your better judgment that you did these things?" If those people can't stand tall and say that, then I submit, sir, that nobody else should have to sit there and have to be questioned. The first place we've got to question is where was the improper influence brought to bear. The agency head signs those rules.

Chairman GLENN. OK. Let's say I agree with you 100 percent. Then I would follow up by asking what is wrong, then, with adopting the Executive Order and the agreement we had last fall, if what you just said was true.

Mr. MACRAE. I would say first of all I think you need to explore what evidence is there. What real evidence is there. If allegations are made, there are ways to find out. Let's find out what the real evidence is.

Chairman GLENN. Well, we've had a couple hearings on this testimony where people testified as to improper influence by the Council, a lot of evidence, and we may hear more later this morning; I don't know.

Mr. MACRAE. Yes, but you didn't bring the agency heads up here, the ones who write rules.

Chairman GLENN. OK. Thank you very much. We appreciate it. We'll keep in touch on this, and the message I'd send back is I hope we can still resurrect that agreement of last fall. That would solve a lot of problems and give a lot more confidence to the people of the country than we're going to have otherwise, I think.

Thank you.

Chairman GLENN. Our next panel includes Robert V. Percival, Assistant Professor of Law and Director, Environmental Law Program, University of Maryland School of Law; Richard Wegman, Partner, Garvey, Schubert & Barer; and Joan Claybrook, President, Public Citizen.

We welcome you all to the table this morning. Mr. Percival, if you'll lead off, we'd appreciate it.

TESTIMONY OF ROBERT V. PERCIVAL,1 ASSISTANT PROFESSOR OF LAW AND DIRECTOR, ENVIRONMENTAL LAW PROGRAM, UNIVERSITY OF MARYLAND SCHOOL OF LAW

Mr. PERCIVAL. Thank you, Mr. Chairman.

I'll be brief, and I'd like to confine most of my remarks largely to responding to what Mr. MacRae said in his testimony. Chairman GLENN. Good, fine.

Mr. PERCIVAL. The creation of the Council of Competitiveness represents a new and potentially dangerous development for Presidential intervention in rulemaking. As I indicate in my testimony, the historical record indicates that now we have added a new layer of regulatory review on top of what was already the most onerous regulatory review system in history, and second, what is so disturbing about it is that it is being conducted entirely in secret. As you pointed out, we had made some progress in getting OMB to institute disclosure policies in the agreement that you reached with the administration last year; now, however, we have an entirely new

1 The prepared statement of Mr. Percival appears on page 157.