This is why President Carter's Executive Order 12174 of November 30, 1979, established a sunset review at OMB for both new and ongoing information requirements, a principle codified in the Paperwork Reduction Act of 1980. S. 1742 would undermine this longestablished independent sunset review. While the bill stresses the need to share and disseminate information, it seems anomalous for it to limit effective Executive oversight to improve the quality and reduce the burden of that same information.

Mr. Chairman, under the Paperwork Reduction Act, agencies and OMB, working together, have improved the quality of information collected by the Federal Government and reduced unnecessary burden on the public. Over 90 percent of the burden of the paperwork imposed on the public today involves regulatory, procurement, grant, and tax reporting. The public continues to find Federal paperwork requirements overwhelming. For example, in 1987 OMB had to act strongly to simplify the IRS W-4 form, the Employees' Withholding Allowance Certificate. Many complained that the W-4, which doubled in size from two to four pages, was much too complex. OIRA worked with IRS to develop a simplified 2-page W-4A, much to the relief of many workers and, I would say, many businesses.

In a recent report, GAO described how, as part of their assessment of the technical adequacy of OMB reviews, GAO had selected 17 case examples for an independent review by three national experts. In essence, GAO asked these individuals whether, based on the technical adequacy of the agency proposal, they would have approved or disapproved the agency request. And the GAO then compared the decisions of the experts with OMB's decisions on these 17 items. The results of the comparison are as follows:

For the seven cases that OMB disapproved, the experts would have disapproved three and approved four. For the 10 cases that OMB approved, the experts would have approved three and disapproved seven.

The GAO report notes that three of the four cases OMB had disapproved were resubmitted and ultimately approved, resulting in actual disagreement with the experts involving an OMB disapproval in only one case.

On the other hand, the experts would have disapproved seven cases that OMB approved, implying, at least, that OMB should consider exercising its paperwork review authority more stringently than it does.

OMB strongly supports the authorization of appropriations for OIRA so that OMB may continue its ongoing work with agencies to improve their collection, use, and sharing of information, as provided in the Paperwork Reduction Act. We support the provisions of S. 1742 related to information dissemination, sharing, privacy, security, and records management, and the creation of the Commission on Federal Information.

We appreciate this opportunity to testify and request the opportunity to work with you to make S. 1742 a bill that can be signed into law.

Chairman GLENN. Thank you very much, Mr. MacRae.

Before we go to questions, we have Congressman Ted Weiss with

Ted, if you would take the seat at the table, we would appreciate your testimony.

Mr. MacRae, please stay there because we will get to your questions as soon as Mr. Weiss is finished.

We welcome you Congressman Weiss. We know you have taken an active part in this over in the House, and we look forward to your testimony.

TESTIMONY OF HON. TED WEISS, A U.S. REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK

Mr. WEISS. Thank you very much, Mr. Chairman. I very much appreciate your courtesy in providing me the opportunity to testify this morning and also for fitting me into what I know is a very difficult schedule for you today.

Let me start off by complimenting you and Senator Bingaman for the leadership which you have exercised on this very important issue.

I am going to ask your permission to summarize my statement and have the prepared statement entered into the record.1

Chairman GLENN. Without objection, your entire statement will be included in the record.

Mr. WEISS. I also would like to submit for your perusal a bill which I have introduced in the House.

Chairman GLENN. Thank you.

Mr. WEISS. I think that the subject that you are discussing and that you are considering is really one of the more serious abuses in Government; that is, the overzealous regulatory review activities in OMB's Office of Information and Regulatory Affairs.

I think that Senator Bingaman's legislation really moves in exactly the right direction because he recognizes the problem which brings us all here today, which is the need for a strong regulatory review provision in the legislation that will be finally adopted.

The House Subcommittee which I have the privilege to chair has documented numerous instances where OMB has interfered with the decisionmaking process in areas such as food safety, the drug approval process, food labeling, and workplace safety.

My subcommittee is not alone in revealing OMB's tampering with the regulatory process. The list of cases of OMB meddling can be obtained from a variety of committees and subcommittees in the House and the Senate. Congress has passed health and safety laws and delegated implementation of those laws only to the specific agencies with expertise in the relevant subject matter.

OMB has no statutory right to alter the decisions of the agencies empowered by Congress to protect the public's health. In my view, OMB's so-called regulatory review activities over the last 8 or 9 years are almost certainly illegal.

Perhaps the most troubling aspect of OMB's review of regulations is the manner in which it takes place. Behind closed doors, nameless and faceless OMB employees-using the powers granted to them not by statute, but by Executive Order-have forced expert agencies like the Food and Drug Administration to alter regula

tions. Often, these orders are issued over the telephone, with no documentation of the communication.

Let me briefly describe a few cases of OMB interference that my subcommittee has uncovered.

The first one involves the regulation of color additives. In 1982, FDA was prepared to ban six different color additives because agency scientists determined that the additives caused cancer in animals. Under a provision of the Food, Drug, and Cosmetic Act, known as the Delaney clause, carcinogenic additives must be banned.

At the urging of color additive manufacturers, OMB held numerous meetings with officials of FDA and the Department of Health and Human Services in an attempt to prevent some or all of the dyes from being banned.

In the report that was unanimously approved by our full Committee, we found that, "OMB's efforts to influence the Department's regulations of color additives found to be animal carcinogens interfered with scientific, public health decisions that Congress expected the Department and its experts to make."

The second case concerns the alteration of a proposed regulation designed to ease restrictions on the use and sale of experimental drugs. In the 1987 hearing, our subcommittee revealed that at OMB's insistence, the proposed standard of approval for experimental drugs to treat life-threatening illnesses was drastically altered. Prior to OMB's involvement, FDA proposed that drug sponsors bore the burden of demonstrating that a drug's benefits outweighed its risks, and that sufficient evidence of safety and efficacy existed.

However, OMB ordered that FDA's proposed standard be changed. A new proposal removed the language requiring sufficient evidence of safety and efficacy. Instead, OMB placed the burden on FDA to prove that the risks posed by a drug were "unreasonable" before the agency could reject an application.

This case was all the more troubling because there was no documentation to identify which OMB employees were responsible for rejecting an FDA proposal that sufficient evidence of a drug's safety and efficacy be required as a condition for approving an experimental drug. OMB was simply acting in the dark.

The last example that I have involves video display terminals. In 1982, the National Institute of Occupational Safety and Health (NIOSH) started planning a study of the possible hazards of video display terminals on pregnant women, in response to reports of birth defects, miscarriages, stillbirths, and other reproductive problems. In 1985, the study design was completed, but OMB refused to approve it.

OMB had no scientific staff to review the proposed study, so its criticisms were based, in large part, on reviews conducted by two industry consultants. In June 1986, OMB approved the study, under the condition that NIOSH delete 69 questions about stress at work and fertility. This represented approximately one-third of the study.

Scientists at NIOSH and the Office of Technology Assessment stated that the revisions would seriously weaken the study. Never

doing, OMB ignored the recommendations in our report and numerous other objections to the OMB revisions.

In 1988, California researchers reported that VDT's may be causing miscarriages and birth defects. Based on that study, experts have estimated that VDT's may cause 100,000 miscarriages each year. More research is needed to confirm these conclusions. The NIOSH study is still not completed. Whatever the results of the NIOSH study, it will be extremely difficult to draw any conclusions because of the deletions from that study.

Another result of OMB's interference is the need to virtually redo the original NIOSH study. So, the Federal Government is now funding yet another VDT study which is being conducted by Mt. Sinai Medical Center in New York.

While reasonable persons may disagree over the proper scope of regulatory review, I hope we can all agree that our system of open, participatory democracy demands that the public be provided access to the record of OMB's role in regulatory decisionmaking. The Administrative Procedure Act and fundamental principles of constitutional laws demand as much.

On September 19, 1989, I introduced H.R. 3314, the "Regulatory Influence Reporting Amendments of 1989." The goal of my bill is to assure that OMB can be held more accountable for its substantive activities.

I understand that the regulatory review provision in Senator Bingaman's legislation differs from my bill. The important point, however, is that both bills stand for the proposition that the Congress must address this matter by enacting a statutory change that imposes binding legal obligations on OMB.

I would like to respectfully suggest two amendments to S. 1742 that your Committee might want to consider:

First, I think it is important that OMB be required to make written memoranda of any oral communications related to a review of a regulation, and that those memoranda be publicly available.

Second, there should be a specified time period in which OMB must place written materials in the public file.

Under your leadership, Mr. Chairman, I am confident that the Congress will enact legislation that goes a long way toward making OMB answerable to the American people.

Again, I thank you for your courtesy in taking my testimony. Chairman GLENN. Thank you, Congressmen Weiss, very much. I was just handed a note that is of interest to our hearing this morning and to our witnesses. The Supreme Court just handed down a decision-7 to 2 was the vote with Justice Brennan writing the opinion on it-on the so-called hazardous communication case that has been before the Court for some time.

The Court ruled that OMB does not have the authority to review third-party disclosures. The AFL-CIO had brought the suit, I believe. This is the decision on that case.

The Supreme Court decision has been awaited for some time, and it was just handed down this morning, just a few minutes ago, as I understand it.

I have no questions, Congressman Weiss.

Senator BINGAMAN. I do not. I appreciate his leadership on this on the House side, and we appreciate his good testimony.

Chairman GLENN. Congressman Weiss, we look forward to working with you there. Thank you.

Mr. WEISS. Thank you very, very much.

Chairman GLENN. Thank you very much. We appreciate your suggestions this morning.

Mr. MacRae, we will get back to questions.

As I understand it, the House Government Operations Committee has negotiated an administrative agreement with you on regulatory review procedures. I don't quite see how that will take care of the long-term resolution of the problems. Enforceability of the agreement can go up and down, depending on who happens to be in the White House or in OMB.

How will that agreement provide a long-term resolution to the alleged problems of delay and accountability at OIRA?

Mr. MACRAE. Well, the House agreement basically builds on an earlier agreement, the so-called Gramm memo, of 1986. We have had in place for some time instructions to the agencies as to how we will conduct ourselves with regard to regulatory review.

Obviously one could argue that Administrations change, people could change their mind. I think the point we are trying to make here is that, while clearly putting that in statutory form gives us very strong constitutional problems-and the Justice letter I think addresses that rather directly, as does Director Darman's letterwe want to show that we are willing to work with the Congress in a constructive fashion.

I think that from the fact that the reauthorization-whether it is four years or two years or whatever-will come up repeatedly, Congress will have the opportunity to review OMB's behavior to determine if we have acted in a responsible fashion. And I think that that is a proper way to proceed.

Chairman GLENN. Our problem with it is that it can be changed by a new Administration or changed overnight if you have new people coming in.

Incidentally, we are on a 5-minute rule here, as we usually are in this Committee, so we have a chance to really bat things around a little bit. Before my time runs out, do you have any comment on the Supreme Court decision?

Mr. MACRAE. Well, I think that the ball has been passed back to the Congress. We felt-the Justice Department felt, Senator Chiles felt very strongly that both in the 1980 enactments and in the 1986 amendments it was made very clear that Congress was conveying, conferring authority on OMB to review paperwork, including the review of paperwork between third parties. Senator Chiles' brief made that point. We made that point. We thought that is what the Congress intended. Obviously we are going to have to go back and review that, in light of the decision.

Chairman GLENN. To date, most of the focus on paperwork review has been on reducing the costs of collecting information. Do you feel that OIRA should do more to maximize the net benefits of information collection as a part of its paperwork review practices? Mr. MACRAE. Well, I would hope we were doing that, sir. We