-7 subject to change? Answer to Both Questions: agreement constitutes a framework from which agreement might come. In the meantime, OIRA is adhering to the 1986 procedures. If you perceive problems with these 1986 procedures, we would, of course, be willing to discuss these procedures with you. Any agreement we reach and implement must, of course, be agreed to by the President and both Houses of Congress. As I stated at the hearing, the House 5. One of the few public records of OMB regulatory activity has been the publication entitled the "Regulatory Program." No such report was report was published in 1989. It is my understanding that a prepared, in fact part of it was used in an OIRA conference on January 16, 17, and 18th of this year. Why wasn't the report issued? Has OMB Director Darman eliminated this report from OMB's publications? Answer: OMB did not issue the Regulatory Program of the United States Government for 1989 because agency draft submissions were completed before many senior appointees to this Administration were confirmed, and thus did not reflect the regulatory policies and priorities of the new appointees. As I point out in the attached December 4, 1989, memorandum entitled "The 1990 Regulatory Program, " we asked agencies to prepare draft submissions for the 1990 Regulatory Program, and are now in the process of reviewing this material to prepare it for publication (Attachment 4). The material that was released at the OIRA conference on January 16, 17, and 18 was a draft paper prepared by OIRA staff, not an agency submission, intended for possible use in the Overview that OMB has in the past prepared for the Regulatory Program. We are in the process of considering whether an updated version of now this paper should be included in the Overview for the 1990 Regulatory Program. 6. At the June hearings Senator Levin asked for a list of the oldest rules under OIRA review and Mr. Plager submitted a list of rules dating back to April of 1988 more than a full year. The letter also included a list of rules under review which had recently been approved and that list dated back to February of 1987, nearly 2 1/2 years. a. Why is it that it takes more than a year to review a rule and in some cases more than 2 years? Answer: OIRA reviews approximately 2,300 draft rules each year under Executive Order No. 12291. Our average review time for these rules during the past several years has been about 30 days. Approximately 50 percent of the rules submitted are reviewed in -8 30 days or less. than others. needed. Given the complex, difficult issues raised by many draft regulations, some rules will take longer to review In many cases, the time a regulation is under review is lengthened by the time it takes the agencies to respond to questions or to make the changes the agency determines are In other cases, interagency coordination may lengthen the total review time of a rule. In addition, in some cases, particularly during this past year, new agency decisionmakers have wanted to review or reconsider draft rules that had been submitted by their predecessors for OMB review. Finally, we would like to point out that for some agencies, substantial delays Occur between the time OMB concludes review and the time the agency publishes the rules in the Federal Register. During 1988, for example, it took EPA, on average, 54 days to publish a rule after OMB clearance; for OSHA it took an average of 31 days. b. What is the reason for the approval of the oldest rules just before the transmittal of the letter? Answer: Review of the rules noted in Mr. Plager's letter to Senator Levin was concluded because OIRA completed its discussions with the agencies regarding their compliance with the principles of Executive Order No. 12291. The Director of OMB made it clear from the beginning of the Bush Administration that he would not tolerate delays in regulatory review. OIRA began its effort to expedite all reviews in process, particularly that had been in process for some time. The June hearing pinpointed some of these reviews, and OIRA immediately ensured their resolution. c. How old is your oldest rule now? Answer: Our oldest rule as of March 1, 1990 was received for review on May 10, 1989. It is a Bureau of Export Administration rule that has been undergoing extensive interagency discussion between the Department of Commerce and the Department of State. d. How do you reconcile the fact that a review of a year or two years violated your own guidelines, articulated in the socalled Gramm memo of 1986 in which you state that all rules will be reviewed within 60 days? Answer: The June 13, 1986, memorandum from OIRA Administrator Wendy Gramm to the heads of departments and agencies, entitled "Additional procedures concerning OIRA reviews under Executive Order Nos. 12291 and 12498 [Revised]", does not contain a guideline that all rules will be reviewed within 60 days. e. What can we do to make the limits for review more -9 significantly alter a rule? Answer: Director Darman has testified that OMB will not use delay as a tactic to force agency concurrence with OMB views. When time is legitimately needed to resolve important issues, however, we would be remiss in our duties by concluding review of a proposal without proper consideration of all relevant information and assurance of consistency with other regulation. We do not believe that there is a problem in this regard; in fact, as noted above, we have reduced the length of time our oldest rule has been under review from over two years as of June 1989 to eleven months as of now. We have agreed in negotiations with the House to limit OIRA review of a draft agency rule to 60 days, with the possibility of an extension of 30 more days, for reasons for such extension being placed in OIRA's public file. C. TENSIONS BETWEEN REGULATORY REVIEW AND INFORMATION 1. Many times through the life of the PRA, Members of the Congress have maintained that while the PRA is intended to address information collection burdens created by regulatory requirements, its scope of review is to be limited to information management concerns and should not encompass substantive regulatory issues. - Likewise, the PRA created separate tracks for regulatory and nonregulatory paperwork in order to protect the integrity of the rulemaking process created by the Administrative Procedure Act. Over the last nine years, however, many observers have criticized OIRA for failing to respect the differences between information management and regulatory reform, and between regulatory and nonregulatory paperwork. This, of course, has been in the context of OIRA's critical review of many health and safety initiatives. Answer: Let me address briefly the allegations that have been made concerning OMB's use of the Paperwork Reduction Act to "target" health and safety-related paperwork, allegations that we categorically deny. This allegation is most prominent in an October, 1989, OMB Watch report entitled "Playing the Numbers. OMB and Paperwork Reduction: An Analysis of 1988 OMB Paperwork Decisions." In its report, OMB Watch states: 4 "OIRA has targeted health and safety agencies for paperwork and regulatory relief. While OIRA has disapproved (or agencies withdrew) only 5.2 percent of all regulatory paperwork in 1988, health and safety agencies found their regulatory paperwork having much more trouble at OIRA. For Hearings before Senate Governmental Affairs, S. Hrg. 101-474, -10 example, EPA had four times as many of its regulatory paperwork proposals encounter problems with OIRA clearance." (p. v) When we looked more closely at the OMB Watch Analysis, however, we discovered that the conclusions are based largely on selective presentation of the data. In the table presented by OMB Watch ranking 21 Federal agencies and Departments by the percentage of paperworks disapproved by OMB or withdrawn by the agency (p. 8), only two health and safety agencies are shown, EPA and OSHA. These two are at or near the top of the list, above the government average. OMB Watch concluded that "health and safety" agencies are targeted. OMB What is missing are the other health and safety agencies. Watch does not include in its table (or otherwise mention in its report) the seven other health and safety agencies that have fewer paperwork disapprovals or withdrawals than the government average (Mine Safety and Health Administration, Food and Drug Administration, Consumer Product Safety Commission, National Highway Traffic Safety Administration, Animal and Plant Health Inspection Service, Nuclear Regulatory Commission, and Food Safety and Inspection Service). Using the OMB Watch logic, we could use these seven agencies to conclude that "OIRA is biased in favor of health and safety agencies," but that conclusion would also be unwarranted. By the law of averages, some agencies will be high, some low. OMB Watch cited the two that were high, but did not tell its readers about the seven that were low. As a result, the OMB Watch "analysis" is misleading and its conclusions unwarranted. We have several other fundamental concerns with the quality of the OMB Watch analysis and errors of fact and presentation that we discuss separately (Attachment 5). S. 1742 attempts to more clearly delineate the distinctions between the regulatory and non-regulatory information collection activities, for example, by creating explicit requirements for the review of paperwork required by current rules. It also would bring both the paperwork clearance and regulatory review processes into the sunshine with more explicit documentation and public access requirements. a. Do you believe changes, such as those proposed in our bill, are necessary to better guide OIRA'S review of agency information and regulatory activities? Answer: Yes and no. OMB supports provisions in the bill that would streamline and strengthen the information collection review process and place greater emphasis on agency accountability for adhering to the standards set forth in the Paperwork Reduction Act. OMB also supports language on information dissemination information dissemination. -11 As indicated in Director Darman's letter to Chairman Glenn, however, OMB opposes provisions that would impose procedural oversight activities. constraints on the exercise of OMB's the proposed changes, including the b. Do you believe regulatory review time limits, do enough to control the apparent tendency of OIRA to get involved in the substance of agency regulatory decision-making? Answer: First, as Executive Order No. 12291 makes clear, nothing in OMB's regulatory review procedures supplants the ultimate authority of agency heads to issue regulations. Sporadic criticism from agency staff about alleged OMB interference should not be equated with the position of agency heads. Second, this question assumes there is a need to "control" a "tendency of OIRA" to be involved in the "substance of agency regulatory decision-making." As discussed above, and in Director Darman's and the Department of Justice's February 20 letters, any such "control" is both inappropriate and unnecessary. Το the extent that statutes provide the Executive branch discretion to implement individual regulatory requirements, the President and his Administration are obligated to ensure that agency implementation of that statutory discretion reflects the policies and priorities which the public elected the President to carry out. As we wrote in Part I of the 1988 Regulatory Program, "As Chief Executive, the President is constitutionally out, This gives the President the the commensurate authority to regulations by Presidential to resolve conflicts and set "In addition the obligation priorities among statutes, the President also needs to coordinate the implementation of all Federal law with the President's political program that the voters elected him or her to carry and to mold both to changing circumstances. The day-to-day course of national affairs generates new issues to which the President must make a coherent response and for the resolution of which the public will hold the President politically accountable." (p. 12.) It is a basic function of the Office of Management and Budget--in carrying out its budgetary, legislative, regulatory, and other forms of program oversight--to assure, within the discretion allowed by law, that agency activities are consistent with the policies of the President and his Administration. To the extent these Presidential priorities reflect a particular "substantive" |