him that if he wanted to have anything to say about our rulemaking at the Department of Transportation, he should submit his comments in writing.

I doubt that that would be permissible today for an agency head, and essentially what Mr. MacRae has suggested is that in order for the Congress to discern whether or not there has been any inappropriate or illegal interference in the rulemaking process that the agency heads themselves must become whistleblowers.

It seems to me that the key issue before this Committee is the creation of a structure and a process that does not put an agency head in that position. The fact is that all of these statutes do delegate the authority to the Cabinet officer, and the Cabinet officer has the political responsibility to the Congress and to the President to carry out the policies of the President.

These other structures that have been created in OMB and the Council on Competitiveness have not been policy arms of the President in fact; they are really backdoor efforts to infiltrate and to influence the nitty-gritty of the rulemaking process, the details of these decisions. And at Public Citizen we are very well aware of that for several reasons. One is because we have sued on several occasions and I will submit for the record the outcome of two lawsuits that we have filed and succeeded in overturning because of the interference, inappropriately, of the OMB in which the OMB arbitrarily, without any basis in law, without any public comment, behind closed doors, on behalf of industry, forced the agency to change a decision already made.

The Government really cannot operate if the people who have the responsibility don't also have the authority. That's just a basic principle, in addition to all the others that you've discussed here today of fairness and openness, which certainly should exist.

So we are very strong supporters of your legislation. Unlike Senator Levin, we're not sure that there should be all these adjuncts to the President's office who do this review. We think that the Cabinet officer has the responsibility to the President to carry out the President's policy, and if the Cabinet officer comes up here for the advice and consent of the Senate and is appointed by the President and has the authority under the statute to carry it out, that should be enough without all the other red tape and bureaucratic processes that have been set up.

But at a minimum-at a minimum-your legislation is absolutely essential because there is no way that the Congress or the public can judge what is going on unless this information is available.

We now have pending a lawsuit against the Vice President's Office for the application of the Freedom of Information Act to the activities of—it was originally the Vice President's Task Force on Regulatory Relief; that is the suit that is now pending-to try to get a determination that as to the regulatory activities of that office, not as to the advice of the President but as to the regulatory activities of that office, that that office is subject to the Freedom of Information Act, and we are awaiting a decision by the court.

So we are attempting, as you are, but through another forum of Government, to try to open up this process so that there is public confidence in what happens.

That concludes my oral statement, Mr. Chairman.

Chairman GLENN. Thank you all very much. We have gone a long time this morning, and I appreciate your patience. I am about half an hour overdue for another meeting that I really cannot skip. We may want to submit additional questions to you and would appreciate your reply so we can include them in the record.

It has been an interesting hearing this morning, and I don't know whether we made any progress or not. I still would prefer to go back to the agreement we hammered out over about a 2-year period. It was a long series of negotiations, meetings back and forth, and we thought we had it all worked out last fall. I think you are familiar with the legislative process here. This anonymous "rolling hold" that we ran into on the Senate floor last fall-we couldn't even find out who had the hold on first; then, when I finally narrowed down the list, I approached that Senator and he said, "Oh, that was me, but I took it off a couple days ago"-but the hold was still on, so I had to start all over again. I think that's one of the more obnoxious legislative gimmicks we have around here, and I think if people are going to put a hold on, you ought to at least know who it is so you can address them. But that has been custom around here, and it's just obnoxious when you're trying to get something done. I think there were some people who used to be in Government who are now outside Government who were probably responsible for talking some of those Senators into doing what they did—that was our perspective of it, anyway, and whether that is true or not, I don't know.

But I would still prefer that the agreement to establish public disclosure in regulatory review that we worked out over a long period of time-which wasn't perfect-we gave up more than we wanted to give up, but they gave up some things, too, so it was a compromise, and I hope we can get back to that rather than having to go through all the throes of new legislation. But if this is what is required, this is what we are committed to do.

Thank you all for being here this morning. We appreciate it very much, and we'll get back to you.

The hearing will stand in recess subject to the call of the Chair. [Whereupon, at 12:23 p.m., the Committee was adjourned.]

APPENDIX

II

102D CONGRESS 2D SESSION

Calendar No. 395

S. 1942

[Report No. 102-256]

To provide for procedures for the review of Federal department and agency regulations, and for other purposes.

IN THE SENATE OF THE UNITED STATES

NOVEMBER 7, (legislative day, OCTOBER 29), 1991

Mr. GLENN (for himself, Mr. LEVIN, Mr. PRYOR, Mr. SASSER, Mr. LIEBERMAN, Mr. AKAKA, Mr. METZENBAUM, Mr. DURENBERGER, and Mr. CHAFEE) introduced the following bill; which was read twice and referred to the Committee on Governmental Affairs

FEBRUARY 25 (legislative day, JANUARY 30), 1992
Reported by Mr. GLENN, without amendment

A BILL

To provide for procedures for the review of Federal department and agency regulations, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 3 SECTION 1. SHORT TITLE.

4

This Act may be cited as the "Regulatory Review

5 Sunshine Act of 1991".

2

1 SEC. 2. DEFINITIONS.

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

For purposes of this Act, the term

(1) "agency" means an agency as defined under section 551(1) of title 5, United States Code, and

section 552(f) of title 5, United States Code;

(2) "regulatory review" means the evaluation, review, oversight, supervision, or coordination of

agency rulemaking activity by a reviewing entity di

rected by the President or his designee to conduct such review;

(3) "reviewing entity" means any agency, or other establishment in the executive branch of the Federal Government established by the President,

which engages, in whole or in part in regulatory re

view;

(4) "review action" means any action, including but not limited to a recommendation or direction, re

garding an agency rulemaking activity taken by a reviewing entity; and

(5) "rulemaking activity" means any activity involving a rulemaking as defined under section 551(5) of title 5, United States Code, and includes

activity involving a schedule or plan for rulemaking, 24 strategy statements, guidelines, policy manuals, grant and loan procedures, advance notices of proposed rulemaking, press releases and other docu

25

26

1

2

3

ments announcing or implementing regulatory policy that affects the public.

3 SEC. 3. DISCLOSURE BY A REVIEWING ENTITY.

4

(a) PUBLIC ACCESS.-A reviewing entity shall

5 establish procedures, consistent with subsection (b), to 6 provide public access to information concerning each agen7 cy rulemaking activity under its review. Such information 8 shall include a copy of―

(1) all written communications, regardless of format, including drafts of all proposals and associated analyses, between the reviewing entity and the

rulemaking agency;

(2) all written communications, regardless of format, between the reviewing entity and any person not employed by the Federal Government;

(3) a summary, including date, participants, and substance, of all oral communications relating to the substance of an agency rulemaking activity, in

cluding meetings, between the reviewing entity and the rulemaking agency or any person not employed by the Federal Government;

(4) a written explanation as required by section 4(c) and the date of any significant review action;

(5) any notice of any extensions of review under section 6; and