Report text available as:

(PDF provides a complete and accurate display of this text.) Tip?



115th Congress    }                                 {     Rept. 115-19
                        HOUSE OF REPRESENTATIVES
 1st Session      }                                 {           Part 1

======================================================================



 
              OIRA INSIGHT, REFORM, AND ACCOUNTABILITY ACT

                                _______
                                

               February 27, 2017.--Ordered to be printed

                                _______
                                

 Mr. Chaffetz, from the Committee on Oversight and Government Reform, 
                        submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 1009]

    The Committee on Oversight and Government Reform, to whom 
was referred the bill (H.R. 1009) to amend title 44, United 
States Code, to require the Administrator of the Office of 
Information and Regulatory Affairs to review regulations, and 
for other purposes, having considered the same, report 
favorably thereon without amendment and recommend that the bill 
do pass.

                                CONTENTS

Committee Statement and Views....................................     1
Section-by-Section...............................................    12
Explanation of Amendments........................................    14
Committee Consideration..........................................    14
Roll Call Votes..................................................    14
Correspondence...................................................    16
Application of Law to the Legislative Branch.....................    18
Statement of Oversight Findings and Recommendations of the 
  Committee......................................................    18
Statement of General Performance Goals and Objectives............    18
Duplication of Federal Programs..................................    18
Federal Advisory Committee Act...................................    18
Unfunded Mandate Statement.......................................    18
Earmark Identification...........................................    19
Committee Estimate...............................................    19
Budget Authority and Congressional Budget Office Cost Estimate...    19
Changes in Existing Law Made by the Bill as Reported.............    19
Minority Views...................................................    32

                     Committee Statement and Views


                          PURPOSE AND SUMMARY

    H.R. 1009, the OIRA Insight, Reform, and Accountability 
Act, codifies current practices at the Office of Information 
and Regulatory Affairs (OIRA) for centralized review of 
regulations as required by Executive Order 12866. The bill also 
establishes new transparency measures for OIRA's regulatory 
review, such as requiring increased disclosure when extending 
review time, explanations about regulations that are dropped 
from the Unified Agenda, and a redline of changes agencies make 
to a regulation while under OIRA review.

                  BACKGROUND AND NEED FOR LEGISLATION

    Presidents of both parties have required a centralized 
review of regulations since the 1970s.\1\ In 1980, the 
Paperwork Reduction Act (PRA) created OIRA within the Office of 
Management and Budget (OMB) to serve as a central review of all 
agencies' information collection requests.\2\ Shortly 
thereafter, President Reagan issued Executive Order (EO) 12291, 
which required OIRA to review all regulations and required 
agencies to conduct cost-benefit analyses. While not without 
controversy,\3\ every president since President Reagan has 
required a centralized review of regulations at OIRA, as well 
as agency cost-benefit analysis of regulatory actions.
---------------------------------------------------------------------------
    \1\Maeve Carey, Cong. Research Serv., RL32397, Federal Rulemaking: 
The Role of the Office of Information and Regulatory Affairs 5 (2011) 
[hereinafter OIRA Federal Rulemaking (2011)].
    \2\Paperwork Reduction Act, 44 U.S.C. Sec. Sec. 3501-3521 (2006).
    \3\See Philip Shabecoff, Reagan Order on Cost-Benefit Analysis 
Stirs Economic and Political Debate, N.Y. TIMES, Nov. 7, 1981, http://
www.nytimes.com/1981/11/07/us/reagan-order-on-cost-benefit-analysis-
stirs-economic-and-political-debate.html?pagewanted=all.
---------------------------------------------------------------------------
    In 1993, President Clinton replaced EO 12291 with EO 
12866.\4\ In 2011, President Obama issued EO 13563, reaffirming 
the principles and requirements of EO 12866.\5\ Pursuant to 
President Clinton's 1993 order, OIRA is designated as the 
``repository of expertise concerning regulatory issues.''\6\ 
President Obama described OIRA's reviews as a ``dispassionate 
and analytical `second opinion' on agency actions.''\7\ EO 
12866 limited OIRA's review of regulations to only significant 
regulations. Significant regulations were generally defined as 
a rule that may ``have an annual effect on the economy of $100 
million or more or adversely affect in a material way the 
economy, a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or State, 
local, or tribal governments or communities.''\8\ OIRA 
determines whether a rule is ``significant,'' even if the 
issuing agency does not initially deem it as such.\9\ The 
Office reviews ``significant regulatory actions'' and 
accompanying cost-benefit analyses from executive branch 
agencies at the proposed and final rulemaking stages.\10\
---------------------------------------------------------------------------
    \4\Exec. Order No. 12,866, 58 Fed. Reg. 51,005 (Sept. 29, 1993).
    \5\Exec. Order No. 13,563, 76 Fed. Reg. 3821 (Jan. 21, 2011).
    \6\Exec. Order No. 12,866.
    \7\Memorandum from Barack Obama to the Heads of Exec. Dep'ts & 
Agencies, Regulatory Review (Jan. 30, 2009).
    \8\Exec. Order No. 12,866.
    \9\Exec. Order No. 12,866.
    \10\OIRA Federal Rulemaking (2011) at 4.
---------------------------------------------------------------------------
    OIRA's role has remained unchanged in the following 24 
years. H.R 1009 codifies practices that have been working, 
expands regulatory review to previously excluded agencies, and 
establishes transparency requirements. Agencies do not 
consistently apply the principles of EO 12866 and other 
governing authorities, including those requiring state, local, 
and tribal consultation in the rulemaking process.\11\ 
Codification of these principles and extension of the 
regulatory review process to independent agencies is not simply 
a means to improve agency compliance with existing obligations, 
but necessary to ensure the promotion of a healthy regulatory 
state. As has been noted by some of the Committee's minority 
members, OIRA's regulatory review serves an important role in 
improving the quality of the life, health, and safety of 
Americans.\12\
---------------------------------------------------------------------------
    \11\See e.g. H. Comm. On Oversight & Gov't Reform, Politicization 
of the Waters of the United States Rulemaking 41, 114th Cong. (2016) 
[hereinafter WOTUS Report (2016)]; Accountability and Transparency 
Reform at the Office of Information and Regulatory Affairs: Hearing 
Before the Subcomm. on Gov't Operations of the H. Comm. on Oversight & 
Gov't Reform, 114th Cong. (Mar. 15, 2016).
    \12\Challenges Facing OIRA in Ensuring Transparency and Effective 
Rulemaking: Hearing Before the Subcomm. on Gov't Operations of the H. 
Comm. on Oversight & Gov't Reform, 114th Cong. 6 (Mar. 3, 2015) 
(statement of Rep. Matt Cartwright, stating ``OIRA's regulatory review 
functions aim to improve the daily lives of Americans across our 
Country in a multitude of ways.''), (statement of Rep. Gerald Connolly: 
``OIRA plays a key role in shaping hundreds of important rules, such as 
those that enhance the safety of our drinking water, protect food 
supply, guaranty buildings are accessible to the disabled, and protect 
the homeland, to name just a few important topics.'').
---------------------------------------------------------------------------
    OIRA's role is increasingly important in the regulatory 
process as the number of regulations and associated costs 
increase. The cost and number of federal regulations grew to 
unprecedented levels under the Obama Administration.\13\ By the 
Administration's own numbers, executive agencies imposed more 
than $100 billion in annual regulatory costs from FY 2004 to FY 
2014. The Obama Administration was responsible for nearly $70 
billion in annual regulatory costs from FY 2009 to FY 2014.
---------------------------------------------------------------------------
    \13\See, e.g., James L. Gattuso & Diane Katz, Heritage Foundation, 
Red Tape Rising: Five Years of Regulatory Expansion (May 11, 2015).
---------------------------------------------------------------------------
    However, many analysts criticized the Obama 
Administration's calculation of cumulative annual regulatory 
costs. The American Action Forum reports that totaling all 
available regulatory costs reported by executive agencies, the 
Obama Administration actually imposed more than $600 billion in 
annual regulatory costs from 2009 to 2014.\14\ Another study, 
commissioned by the National Association of Manufacturers, 
found the total cost of federal regulations in 2012 was $2.028 
trillion, with an annual cost burden for the average U.S. firm 
of $233,181, or 21 percent of average payroll.\15\ Further, 88 
percent of those surveyed said that federal regulations are a 
top challenge for their firm.\16\ Other studies continue to 
show that regulation has a deleterious effect on the 
economy.\17\
---------------------------------------------------------------------------
    \14\Regulation Rodeo Database, American Action Forum (accessed Mar. 
13, 2016), https://www.americanactionforum.org/regulation-rodeo-
database/.
    \15\W. Mark Crain & Nicole V. Crain, National Association of 
Manufacturers, the Cost of Federal Regulation to the U.S. Economy, 
Manufacturing, and Small Business (Sept. 10, 2014).
    \16\Id.
    \17\John W. Dawson & John J. Seater, American Action Forum, Federal 
Regulation and Aggregate Economic Growth (Jan. 2013).
---------------------------------------------------------------------------

OIRA Review Process

    The review process at OIRA officially begins when an agency 
submits a regulatory review packet to OIRA. The packet consists 
of the draft rule, a reasonably detailed description of the 
need for the regulatory action, an explanation of how the 
regulatory action will meet that need, and an assessment of the 
potential costs and benefits of the rule.\18\ When OIRA 
completes its review, it either returns the draft rule to the 
agency for ``reconsideration'' or concludes that the rule is 
consistent with the requirements of EO 12866. In the latter 
case, the issuing agency may publish a notice of proposed 
rulemaking in the Federal Register for public comment. After 
the comment period closes, the agency may revise the draft rule 
to respond to the comments. The agency then sends the rule back 
to OIRA for a second review before publishing and promulgating 
the final rule in the Federal Register.
---------------------------------------------------------------------------
    \18\Exec. Order No. 12,866.
---------------------------------------------------------------------------
    Little is known about what happens under the OIRA review 
process, but former OIRA Administrator Cass Sunstein described 
it as follows:

          OIRA and agencies work together to ensure that when 
        rules are proposed, important issues and alternatives 
        are clearly and explicitly identified for public 
        comment. OIRA and agencies also work closely together 
        to ensure that public comments are adequately addressed 
        in final rules, where appropriate by modifying relevant 
        provisions in proposed rules.\19\
---------------------------------------------------------------------------
    \19\Cass R. Sunstein, The Office of Information and Regulatory 
Affairs: Myths and Realities, 38 A.B.A. Admin. & Regulatory Law News 8 
(2013).

---------------------------------------------------------------------------
    He continued:

          Indeed, a central function of OIRA is to operate as a 
        guardian of a well-functioning administrative process, 
        to ensure not only respect for law but also compliance 
        with procedural ideals, involving notice and an 
        opportunity to be heard, that may not always be 
        strictly compulsory but that might be loosely organized 
        under the rubric of ``good government.''\20\
---------------------------------------------------------------------------
    \20\Id.

    OIRA review is important to provide a double check on 
agencies rushing to promulgate rules. Review of the regulatory 
analysis generated by executive agencies shows that the quality 
is generally low.\21\ According to the George Mason University 
Mercatus Center (Mercatus), agencies usually satisfy around 60 
percent or less of the requirements called for in EO 12866 for 
regulatory analysis.\22\ Mercatus claims that there is evidence 
that OIRA review improves the quality of regulatory analysis, 
but falls short of providing analysis adequate to support 
informed rulemaking.\23\ For example, between 2000 and 2013, 98 
percent of the Environmental Protection Agency's (EPA's) final 
rules contained no estimated compliance costs.\24\ 
Additionally, EPA routinely justifies its regulatory activities 
by claiming benefits from matters unrelated to the underlying 
regulation.\25\
---------------------------------------------------------------------------
    \21\Jerry Ellig & John Morrall, Mercatus Center, Assessing the 
Quality of Regulatory Analysis: A New Evaluation and Data Set for 
Policy Research (2010).
    \22\Id. Toward a 21st-Century Regulatory System: Hearing Before the 
S. Comm. of Homeland Sec. & Gov't Affairs, 114th Cong. (2015) 
(statement of Jerry Ellig, Senior Research Fellow, Mercatus Center).
    \23\Id.
    \24\William Kovacs, U.S. Chamber of Commerce, These 9 Charts Put 
Federal Regulations in a Different Light (2014).
    \25\Id.
---------------------------------------------------------------------------
    Despite its value added, there are repeated claims that the 
OIRA review process lacks transparency.\26\ Lisa Heinzerling, 
former Associate Administrator of EPA's Office of Policy, 
expressed concerns about transparency and accountability at 
OIRA, saying, ``The process is utterly opaque.''\27\ The 
Government Accountability Office issued multiple 
recommendations for increasing transparency, most of which 
remain unimplemented.\28\
---------------------------------------------------------------------------
    \26\See, e.g., Accountability and Transparency Reform at the Office 
of Information and Regulatory Affairs: Hearing Before the Subcomm. on 
Gov't Operations of the H. Comm. on Oversight & Gov't Reform, 114th 
Cong. (2016).
    \27\Lisa Heinzerling, Inside EPA: A Former Insider's Reflections on 
the Relationship between the Obama EPA and the Obama White House, 31 
Pace Envtl. L. Rev. 325 (2014).
    \28\U.S. Gov't Accountability Office, GAO-15-505T, Federal 
Rulemaking: Opportunities Remain for OMB To Improve the Transparency of 
Rulemaking Processes (2016).
---------------------------------------------------------------------------
    Despite transparency measures embedded in EO 12866, the 
Committee's most significant insight into OIRA's review process 
came through the Committee's Waters of the United States 
(WOTUS) investigation. Through documents and transcribed 
interviews, the Committee learned what OIRA was doing when a 
rule was under review. Inter-agency coordination was an 
important, although rushed, process.\29\ Review of the rule 
development process was attempted, but also very limited.\30\
---------------------------------------------------------------------------
    \29\WOTUS Report (2016).
    \30\Id.
---------------------------------------------------------------------------
    H.R. 1009 codifies the requirement for OIRA to conduct a 
review of significant regulations to ensure the regulations are 
consistent with applicable law and the principles set forth in 
EO 12866. The bill requires that OIRA conduct a review to 
determine if the agency complied with the regulatory principles 
and applicable law and requires OIRA review the quality of the 
compliance. H.R. 1009 authorizes OIRA to issue best practice 
guides to agencies based on the experience and expertise of 
what quality regulatory analysis and development entails. H.R. 
1009 establishes transparency of the review by requiring that 
OIRA provide written analysis of what principles and legal 
requirements were reviewed, as well as the results of that 
review.
    One key difference between EO 12866 and H.R 1009 is the 
OIRA review of the President's priorities. H.R. 1009 does not 
include the requirements for OIRA to review regulations for 
consistency with the President's priorities, as that is best 
directed to the agencies through the EO. The EO will allow the 
President to determine the extent to which presidential 
priorities will be directed to agencies through the OIRA review 
process and the extent to which presidential priorities will be 
included in the review of independent agency regulations.

Coordination

    A central part of the OIRA review process is coordination 
with other agencies in the Federal Government. Former OIRA 
Administrator Cass Sunstein described the interagency review 
process as a primary mission for OIRA,

          OIRA is largely in the business of helping to 
        identify and aggregate views and perspectives of a wide 
        range of sources both inside and outside of the federal 
        government.
          * * *
          For example, the Department of Agriculture will know 
        a great deal about how rules affect farmers, and the 
        Department of Transportation will know a great deal 
        about how rules affect the transportation sector, and 
        the Department of Energy will know a great deal about 
        implications for the energy sector; the OIRA process 
        enables their perspectives to be brought to bear on 
        rules issued by other agencies. Part of OIRA's defining 
        mission is to ensure that rulemaking agencies are able 
        to receive the specialized information held by diverse 
        people (usually career officials) within the executive 
        branch.\31\
---------------------------------------------------------------------------
    \31\Sunstein, supra note 19 (``When a proposed or final rule is 
delayed, and when the OIRA review process proves time-consuming, it is 
usually because significant interagency concerns have yet to be 
addressed. Frequently, there will be general agreement that a rule is a 
good idea, and the delay will be a product not of any sense that it 
should not go forward but a judgment that important aspects require 
continuing substantive discussion.'').

    The Committee learned from the WOTUS investigation that the 
OIRA interagency review process can fall short of the ideal 
that Sunstein described.\32\ Agencies consulted on the WOTUS 
rulemaking complained about insufficient time and shifting 
deadlines.\33\ When a rulemaking is set on a political 
schedule, as was the case for WOTUS, the interagency review 
process is shortchanged. The OIRA staffer responsible for the 
process wrote:
---------------------------------------------------------------------------
    \32\WOTUS Report (2016) at 10.
    \33\Id.

          The real challenge here was working on a very tight 
        schedule which required me to provide short deadlines. 
        To the extent that Agencies were able to provide me 
        comments . . . I did all that I could to address them 
        with EPA and the Corps . . . but even then there was 
        only so much that I could do.\34\
---------------------------------------------------------------------------
    \34\Id.

    H.R. 1009 codifies the requirement for interagency review 
to elevate the importance of the process. Coordinating and 
consulting with regulatory experts across the government will 
improve the overall quality of regulations.

Retrospective Review

    Agencies have been under an obligation to review their 
regulations since the Carter Administration.\35\ EO 12866 
requires agencies to report in their regulatory plans what 
types of retrospective review the agency has conducted. In 
2011, President Obama issued EO 13563 directing agencies to 
implement plans to retrospectively review their regulations, 
with a focus on rules that were ``outmoded, ineffective, 
insufficient, or excessively burdensome.''\36\
---------------------------------------------------------------------------
    \35\U.S. Govt's Accountability Office, Reexamining Regulations: 
Opportunities Exist To Improve Effectiveness and Transparency of 
Retrospective Reviews, (July 2007). President Carter's E.O. 12,044 was 
the first to require agencies to periodically review existing rules, 
and every President since has issued similar direction to agencies. Id.
    \36\E.O. 13,563, 76 Fed. Reg. 3821 (Jan. 21, 2011), reprinted in 3 
C.F.R. 215 (2012).
---------------------------------------------------------------------------
    Retrospective regulatory review in the Obama Administration 
has actually cost more than it has saved.\37\ Net costs 
increased by more than $14 billion, and only two agencies 
actually reduced costs. Agencies also increased the paperwork 
burden by 13.4 million hours. However, most agencies still have 
yet to institutionalize retrospective regulatory review 
procedures.\38\
---------------------------------------------------------------------------
    \37\Sam Batkins, Administration's July 2015 ``Regulatory Review'' 
Adds $14.7 Billion in Costs, American Action Forum (Aug. 25, 2015), 
https://www.americanactionforum.org/insight/administrations-july-2015-
regulatory-review-adds-14-7-billion-in-costs/.
    \38\Sofie Miller, Pitching Retrospective Review as a Cure for 
Regulatory Accumulation, G.W. Regulatory Studies Center (March 8, 
2016), https://regulatorystudies.columbian.gwu.edu/pitching-
retrospective-review-cure-regulatory-accumulation.
---------------------------------------------------------------------------
    In testimony before Congress, Michael Mandel of the 
Progressive Policy Institute (PPI) explained that President 
Obama's attempts at promoting retrospective review fell short 
of expectations.\39\ Quoting several studies about the 
effectiveness of retrospective review, Mandel pointed out that 
of all major rules issued by agencies in 2014, none of the 
rules included a plan for future retrospective review and only 
two were identified as products of retrospective review under 
EO 13563. Mandel also argued that President Obama's 
retrospective review did not work for various reasons--notably, 
that agencies have a vested interest in justifying their 
original decisions, and even if costs and benefits of 
individual regulations are justified, in the aggregate, ``the 
total accumulation of regulation can create a heavy burden on 
innovation.''\40\
---------------------------------------------------------------------------
    \39\Toward a 21st-Century Regulatory System: Hearing Before the S. 
Comm. of Homeland Sec. & Gov't Affairs, 114th Cong. (2015) (statement 
of Michael Mandel, Chief Economic Strategist, Progressive Policy 
Institute).
    \40\Id.
---------------------------------------------------------------------------
    H.R. 1009 codifies the requirements in EO 12866 to require 
agencies to publish the retrospective review work that they 
undertake or plan to undertake in a given year. The bill 
requires agencies to submit a list of regulations identified as 
unjustified, unnecessary, duplicative, or otherwise recommended 
for repeal, including any regulations identified as such by 
recommendations from the public. H.R. 1009 also requires OIRA 
to work with stakeholders including state, local, and tribal 
governments to identify regulations for repeal.

Independent Agencies

    While the President has always had the authority to extend 
OIRA review to independent agencies, Presidents have repeatedly 
chosen to defer to Congress.\41\ President Reagan excluded 
independent agencies from EO 12291 out of a concern of an 
adverse reaction from Congress.\42\ This tradition of deference 
highlights the need for Congress to codify this role. Excluding 
independent agencies from the OIRA process means that numerous 
controversial and extremely costly regulations are issued 
without the second look by regulatory experts that OIRA review 
provides. In testimony before the House Committee on the 
Judiciary, American Action Forum President Douglas Holtz-Eakin 
said, ``In 2012 and 2013 alone, independent agencies published 
eight rulemakings with at least $100 million in annual costs, 
for a total burden of more than $4 billion annually.''\43\
---------------------------------------------------------------------------
    \41\The Office of Information and Regulatory Affairs: Federal 
Regulations and Regulatory Reform under the Obama Administration: 
Hearing Before the Subcomm. on Courts, Commercial & Admin. Law of the 
H. Comm. on the Judiciary, 112th Cong. (2012) (statement of Sally 
Katzen, Senior Advisor, Podesta Group).
    \42\Robert Hahn & Cass Sunstein, A New Executive Order for 
Improving Federal Regulation? Deeper and Wider Cost-Benefit Analysis, 
150 U. PA. L. REV. 1489 (2002).
    \43\Office of Information and Regulatory Affairs: Hearing Before 
the Subcomm. on Regulatory Reform, Commercial & Antitrust Law of the H. 
Comm. on the Judiciary, 114th Cong. (2015) (statement of Douglas Holtz-
Eakin, President, American Action Forum).
---------------------------------------------------------------------------
    Presidents have long encouraged independent agencies to 
undergo review, but independent agencies have not voluntarily 
submitted their regulations to OIRA.\44\ In 2011, President 
Obama issued EO 13579, ``Regulation and Independent Regulatory 
Agencies,'' specifically calling independent agencies to adopt 
the ``principles, structures, and definitions governing 
contemporary regulatory review'' established in Executive Order 
12866.\45\ The Order requires that regulations ``be adopted 
through a process that involves public participation,'' and 
``consistent with EO 12866 . . . shall afford the public a 
meaningful opportunity to comment through the Internet on any 
proposed regulation, with a comment period that should 
generally be at least 60 days.''\46\ The Order further provides 
that independent agencies shall base their rules on ``the open 
exchange of information and perspectives among State, local, 
and tribal officials'' and other affected stakeholders.
---------------------------------------------------------------------------
    \44\Hahn & Sunstein, supra note 44, at 1506.
    \45\Exec. Order No. 13,579, 76 Fed. Reg. 41,587 (2011) (``Executive 
Order 13563 . . . directed to executive agencies, was meant to produce 
a regulatory system that protects ``public health, welfare, safety, and 
our environment while promoting economic growth, innovation, 
competitiveness, and job creation.'' Independent regulatory agencies, 
no less than executive agencies, should promote that goal'').
    \46\Exec. Order No. 12,866, 58 Fed. Reg. 51005 (Sep. 29, 1993).
---------------------------------------------------------------------------
    The argument for including independent agencies in OIRA's 
regulatory review is well documented. Indeed, even former OIRA 
Administrators have encouraged the review of independent agency 
rules.\47\ Sally Katzen, former OIRA Administrator under the 
Clinton Administration, has frequently advocated for the 
extension of OIRA review to independent agencies.\48\ Former 
Administrator under the Obama Administration, Cass Sunstein, 
argued for coverage of independent regulatory agencies, 
stating: ``[i]n view of the substantial costs now imposed by 
[independent] agencies on the private sector, Congress itself 
should require more discipline from them. A required accounting 
of both costs and benefits would help to prevent excessive 
regulatory burdens,'' noting specifically the regulatory 
burdens imposed on small businesses under the Dodd Frank 
law.\49\
---------------------------------------------------------------------------
    \47\Institute for Policy Integrity, Strengthening Regulatory 
Review: Recommendations for the Trump Administration From Former OIRA 
Leaders 1 (2016).
    \48\See The Office of Information and Regulatory Affairs: Federal 
Regulations and Regulatory Reform under the Obama Administration: 
Hearing Before the Subcomm. on Courts, Commercial & Admin. Law of the 
H. Comm. on the Judiciary, 112th Cong. (2012) (statement of Sally 
Katzen, Senior Advisor, Podesta Group); Sally Katzen, Expand 
Centralized Regulatory Review to Independent Agencies, REGBLOG.ORG 
(Aug. 9, 2011), http://www.regblog.org/2011/08/09/expand-centralized-
regulatory-review-to-independent-agencies/.
    \49\Cass R. Sunstein, 5 Smart Ways to Cut Red Tape, BLOOMBERG (Jan. 
20, 2016), https://www.bloomberg.com/view/articles/2016-01-20/5-smart-
ways-to-cut-red-tape.
---------------------------------------------------------------------------
    Numerous regulatory experts have recommended that OIRA's 
review extend to independent agencies, since even before 
President Clinton issued EO 12866. The Administrative 
Conference of the United States (ACUS) issued a recommendation 
in 1988 to extend OIRA review to independent agencies ``as a 
matter of principle.''\50\ The American Bar Association (ABA) 
first recommended including independent agencies in 1986, then 
again in 1990.\51\ In a 2015 letter to the Senate Committee on 
Homeland Security and Government Affairs, the ABA said, ``From 
the standpoint of sound policy in the federal rulemaking 
process, we believe that there is no meaningful difference 
between the `independent' agencies and those agencies to which 
the current executive order (EO 12866) applies.''\52\
---------------------------------------------------------------------------
    \50\Administrative Conference of the United States, Recommendation 
88-9, Presidential Review of Agency Rulemaking (1988).
    \51\Letter from Thomas M. Susman, Director, A.B.A. Governmental 
Affairs Office, to Ron Johnson, Chairman, and Thomas R. Carper, Ranking 
Member, S. Comm. on Homeland Sec. & Gov't Affairs (July 23, 2015).
    \52\Id.
---------------------------------------------------------------------------
    H.R. 1009 expands OIRA's review to independent agencies, 
currently excluded under EO 12866. Legislation is needed to 
close this loophole in centralized executive branch regulatory 
review. Unlike EO 12866, H.R. 1009 does not include a special 
exception for independent agencies--H.R. 1009 applies the OIRA 
review to independent agencies as well. H.R. 1009 amends the 
PRA, which defines both agencies and independent agencies. 
Independent agencies are included in the PRA's requirements for 
OIRA to approve information collection requests and in EO 
12866's requirements for the Unified Agenda, Regulatory Plans, 
Working Group, and stakeholder consultations. By codifying 
OIRA's regulatory review role in the PRA, H.R. 1009 eliminates 
the independent agency loophole found in EO 12866.

Review Timing

    EO 12866 states that OIRA shall complete its review within 
90 calendar days.\53\ EO 12866 also provides that OIRA review 
may be extended ``(1) once by no more than 30 calendar days 
upon the written approval of the [OMB] Director and (2) at the 
request of the agency head.''\54\ OIRA interprets the second 
clause of this provision exclusive from the first, allowing an 
indefinite time for extension if the agency initiates the 
request.\55\ Consequently, extensions under (1) rarely occur.
---------------------------------------------------------------------------
    \53\Exec. Order No. 12,866.
    \54\Id.
    \55\Curtis W. Copeland, Length of Rule Reviews by the Office of 
Information and Regulatory Affairs 19-21 (2013) (report prepared for 
the Administrative Conference of the United States) (citing the 
``Frequently Asked Questions'' page on the OIRA website: ``the review 
period may be extended indefinitely by the head of the rulemaking 
agency'') [hereinafter Copeland ACUS Report (2013)].
---------------------------------------------------------------------------
    Instead, OIRA has adopted a practice of asking the agency 
to request an extension under (2),\56\ effectively 
circumventing the time limit in (1), and giving itself an 
undefined time to hold onto the rule.\57\ A senior EPA official 
once characterized such requests in that ``[i]t is clear, in 
such a phone call [from OIRA], that the agency is not to 
decline to ask for such an extension.''\58\ This practice has 
led to extensive delays in regulations without any notice to 
the public.\59\
---------------------------------------------------------------------------
    \56\Id. at 20-21 (``Previous reports suggest that at least some 
agency requests for extensions may actually originate with OIRA, not 
with the agency submitting the request.'')
    \57\Id.
    \58\Heinzerling, supra note 27.
    \59\Copeland ACUS Report (2013) at 12.
---------------------------------------------------------------------------
    Senior agency officials reported political influence as a 
reason for delays, specifically citing concerns by the White 
House about issuing costly or controversial rules during an 
election year.\60\ Leading up to the 2012 Presidential 
election, evidence showed that the White House instructed OIRA 
not to complete reviews and finalize rules before the New Year: 
in 2012, OIRA review averaged 80 days, but jumped to an 
incredible 140 days in the first half of 2013--almost three 
times the average from 1994 to 2011.\61\ In January 2013, an 
impressive 83 rules had been sitting at OIRA for at least six 
months. In contrast, between 1994 and 2011, the average length 
of OIRA review was 50 days, with 62 being the highest average 
in any year.\62\ The spike in 2013 highlights the large number 
of rules OIRA held onto to avoid publishing before the 2012 
election.
---------------------------------------------------------------------------
    \60\Copeland ACUS Report (2013) at 4. See also John M. Broder, 
Regulatory Nominee Vows to Speed Up Energy Reviews, N.Y. Times (June 
12, 2013) (finding election-year politics as a reason for slowdown of 
regulatory delays).
    \61\Copeland ACUS Report (2013) at 4.
    \62\Copeland ACUS Report (2013) at 4.
---------------------------------------------------------------------------
    Not all lengthy delays are related to concerns about 
political timing. According to former OIRA Administrator Cass 
Sunstein:

          When a proposed or final rule is delayed, and when 
        the OIRA review process proves time-consuming, it is 
        usually because significant interagency concerns have 
        yet to be addressed. Frequently, there will be general 
        agreement that a rule is a good idea, and the delay 
        will be a product not of any sense that it should not 
        go forward but a judgment that important aspects 
        require continuing substantive discussion.\63\
---------------------------------------------------------------------------
    \63\Sunstein, supra note 19, at 9.

    Sunstein also found that technical concerns required more 
---------------------------------------------------------------------------
time:

          When rules are delayed, it is often because technical 
        specialists are working through the technical 
        questions. Much of the time, the problem is not that 
        OIRA, or anyone else, has a fundamental objection to 
        the rule and the agency's approach. It is that the 
        technical questions need good answers.\64\
---------------------------------------------------------------------------
    \64\Id.

    As such, H.R. 1009 does not create an arbitrary time limit 
on OIRA's review. H.R. 1009 resolves the ongoing concerns by 
requiring more transparency into the extensions process. Rather 
than continuing a process wherein OIRA must request that the 
agency request an extension, H.R. 1009 allows either the 
issuing agency or OIRA to request the extension, which must be 
made in writing and made publically available. To encourage a 
timely review, H.R. 1009 requires OIRA and the issuing agency 
to revisit the extension every 30 days to issue a new request, 
until OIRA has completed its review or the agency withdraws the 
rule.

Unified Agenda

    The Unified Agenda is a list of all regulatory actions at 
all executive branch agencies that are under development or 
review. Issued twice a year, the Unified Agenda is intended to 
be the primary regulatory transparency tool to allow the public 
to understand what regulations are being considered by 
agencies. Under the Obama Administration, OIRA made a practice 
of issuing the Unified Agenda right before holidays.\65\ 
Additionally, OIRA did not post any Unified Agenda in spring 
2012.\66\ The Committee questioned OIRA about the failure to 
issue the 2012 Spring Unified Agenda, but received an 
incomplete response.\67\
---------------------------------------------------------------------------
    \65\See Veronique De Rugy, The Obama Administration Is Hiding the 
Scale of Its Regulatory Agenda. Why Might That Be?, National Review 
(Nov. 25, 2014).
    \66\Letter from Lamar Smith, Chairman, H. Comm. on the Judiciary, 
and Darrell Issa, Chairman, H. Comm. on Oversight & Gov't Reform, to 
Boris Bershteyn, Acting Administrator, Office of Information and 
Regulatory Affairs (Oct. 25, 2012).
    \67\Id.
---------------------------------------------------------------------------
    According to ACUS, ``it is critical to ensure that the 
information in the Unified Agenda is as accurate as possible to 
allow regulators and stakeholders to plan accordingly.''\68\ In 
a 2015 recommendation, ACUS identified some ongoing concerns 
with the quality of the Unified Agenda:
---------------------------------------------------------------------------
    \68\Administrative Conference of the United States, Recommendation 
2015-1, Promoting Accuracy and Transparency in the Unified Agenda 1 
(2015).

          The Unified Agenda functions reasonably well as a 
        predictor of some agency actions, but is less accurate 
        in other areas. For example, estimated action dates may 
        prove incorrect, the significance of a regulation may 
        be misclassified, and jointly issued rules may 
        inappropriately be characterized differently by 
        different agencies. Additionally, some rules are 
        classified as long-term actions when regulatory 
        activity is imminent, while others remain listed as 
        long-term actions after work on them has ceased. 
        Occasionally, entries are removed from the Unified 
        Agenda without explanation. Finally, a number of 
        regulatory actions have recently been placed in a 
        ``pending'' category that is not included in the 
        published Unified Agenda.\69\
---------------------------------------------------------------------------
    \69\Id. At 3-4.

    While OIRA claims to review the data, the data is 
frequently inaccurate, incomplete, and lacks 
standardization.\70\ Because agencies are obligated to submit 
their data several months prior to the publication date, often 
information is out of date and no longer accurate.\71\ As an 
example, in the past 15 editions of the Unified Agenda, the 
Federal Communications Commission (FCC) has only listed 
regulations as either ``long term'' or ``completed,'' despite 
issuing an average of 250 proposed or final rules each 
year.\72\ According to an FCC staff, as reported in an ACUS 
report, ``the FCC uses the Unified Agenda primarily to document 
the publication of regulatory actions, not to inform the public 
about forthcoming actions.''\73\ OIRA has never suggested a 
change to the FCC reporting.\74\
---------------------------------------------------------------------------
    \70\Curtis W. Copeland, the Unified Agenda: Proposals for Reform 
(2015) (prepared for the Administrative Conference of the United 
States) hereinafter Copeland Unified Agenda Proposals (2015).
    \71\Id.
    \72\Id.
    \73\Id.
    \74\Id.
---------------------------------------------------------------------------
    In 2011, the Obama Administration created a new hidden 
category on the Unified Agenda named ``pending.''\75\ The Obama 
Administration decided that the Unified Agenda should only 
reflect rules that were actually being considered and requested 
agencies exclude entries that were informally considered ``old 
and cold.''\76\ Agencies opposed removing some less active 
entries because they wanted to maintain the regulatory 
identification numbers.\77\ To remove older, less active 
entries, OIRA created a category called ``pending,'' which is 
hidden from the public and allows agencies to continue to 
report regulations that have been under consideration at the 
agency and have not been officially cancelled by the 
agency.\78\
---------------------------------------------------------------------------
    \75\Id.
    \76\Id.
    \77\Id.
    \78\Id.
---------------------------------------------------------------------------
    ACUS made several recommendations to address the identified 
concerns: (1) OIRA should help agencies identify best 
practices, (2) information in the Unified Agenda should link to 
other regulatory data systems, (3) OIRA should help agencies 
define and designate the status of regulations, (4) agencies 
should explain why actions have been removed from the Unified 
Agenda, and (5) OIRA should better define data elements in the 
Unified Agenda.\79\
---------------------------------------------------------------------------
    \79\Administrative Conference of the United States, Recommendation 
2015-1, Promoting Accuracy and Transparency in the Unified Agenda 1 
(2015).
---------------------------------------------------------------------------
    H.R. 1009 codifies the requirements of the Unified Agenda 
and includes several reforms to address the concerns and 
recommendations identified. H.R. 1009 requires OIRA to issue 
guidance on complying with Unified Agenda requirements, 
including defining key terms such as stages of regulatory 
development, and generally permits OIRA to issue best practice 
guides for regulatory development. Under H.R. 1009, agencies 
will be required to provide a written explanation as to why a 
rule is no longer on the Unified Agenda. Further, H.R. 1009 
establishes specific dates by which the Unified Agenda will be 
required to be published.

                          LEGISLATIVE HISTORY

    Representative Paul Mitchell (R-MI), Mark Meadows (R-NC), 
and Gary Palmer (R-AL) introduced H.R. 1009 on February 13, 
2017 and the bill was referred to the Committee on Oversight 
and Government Reform with an additional referral to the 
Committee on the Judiciary. On February 14, 2017, the Committee 
on Oversight and Government Reform ordered H.R. 1009 favorably 
reported, without amendment with a vote of 23 to 16.

                           Section-by-Section


Section 1. Short title

    The short title of the bill is the ``OIRA Insight, Reform, 
and Accountability Act.''

Section 2. Office of Information and Regulatory Affairs

    Section (a) amends subchapter I of chapter 35 of title 44 
of the United States Code by adding the following three new 
code sections:

Sec. 3522. Office of Information and Regulatory Affairs Regulatory 
        Working Group; regulatory plan; Unified Agenda

    Subsection (a) of section 3522 establishes the Regulatory 
Working Group to serve as a forum for agencies to identify and 
analyze regulatory issues.
    Subsection (b) of section 3522 requires agencies to submit 
a regulatory plan to OIRA, each of which is required to be 
included in the fall issuance of the Unified Agenda, which 
compiles information about each significant regulatory action 
the agency expects to issue in the following fiscal year. 
Agencies are also required to report on efforts to review 
outdated regulations and provide a list of any such regulations 
in the regulatory plan. OIRA is required to circulate agency 
regulatory plans to affected agencies to assist in identifying 
duplicative or conflicting regulatory actions.
    Subsection (c) of section 3522 requires agencies to submit 
a list of regulations under development to OIRA. OIRA is 
required to compile all of the regulations under development in 
the Unified Agenda and to publish the list online.
    Subsection (d) of section 3522 requires OIRA to meet with 
state, local, and tribal governments no less than quarterly to 
identify regulations that may uniquely or significantly affect 
government entities and to periodically convene conferences 
with representatives of the public to discuss regulatory issues 
of common concern.
    Subsection (e) of section 3522 authorizes OIRA to issue 
best practice guidelines for agencies to use in developing new 
regulations.

Sec. 3523. OIRA coordinated review of significant regulatory actions

    Subsection (a) of section 3523 requires agencies to submit 
significant regulatory actions to OIRA for review prior to 
issuing a significant regulatory action.
    Subsection (b) of section 3523 permits agencies to consult 
with OIRA prior to submitting their significant regulatory 
action for review.
    Subsection (c) of section 3523 sets requirements for 
agencies to submit certain information to OIRA when a 
significant regulatory action is submitted for review.
    Subsection (d) of section 3523 establishes deadlines for 
OIRA to complete its review of a submitted significant 
regulatory action.
    Subsection (e) of section 3523 requires OIRA to review a 
submitted significant regulatory action for compliance with 
legal requirements and long-standing regulatory principles 
established in Executive Order 12866.
    Subsection (f) of section 3523 requires OIRA to conduct a 
review of the quality of the significant regulatory action to 
determine whether the analysis was meaningful and complete.
    Subsection (g) of section 3523 requires OIRA to conduct an 
interagency review of the submitted regulatory action and to 
allow potentially affected agencies time to review the 
regulatory action.
    Subsection (h) of section 3523 requires OIRA to invite the 
issuing agency to meetings with the public and to share written 
comments with the issuing agency and online.
    Subsection (i) of section 3523 requires OIRA to provide the 
results of the review in writing to the issuing agency and 
requires the issuing agency to provide OIRA with a redline of 
any changes that were made during the review period.

Sec. 3524. Public disclosure of regulatory review

    Subsection (a) of section 3524 requires OIRA to publish 
certain information pertaining to the review of the regulations 
online within three days of completing the review of a 
significant regulatory action.
    Subsection (b) of section 3524 requires, to the extent 
practicable, information provided to the public is in plain 
language.
    Section (b) makes technical and conforming amendments.
    Section (c) adds definitions to section 3502 of title 44 
United States Code.
    Section (d) requires OIRA to issue required guidance within 
180 days of enactment.

                       Explanation of Amendments

    No member offered an amendment to H.R. 1009 during the 
Committee's consideration of the bill.

                        Committee Consideration

    On February 14, 2017, the Committee met in open session and 
ordered reported favorably the bill, H.R. 1009, by recorded 
vote of 23 to 16, a quorum being present.

                            Roll Call Votes

    There was one recorded vote during consideration of H.R. 
1009:


              Application of Law to the Legislative Branch

    Section 102(b)(3) of Public Law 104-1 requires a 
description of the application of this bill to the legislative 
branch where the bill relates to the terms and conditions of 
employment or access to public services and accommodations. 
This bill codifies President Clinton's executive order 12866, 
which establishes the Unified Agenda, requires annual 
regulatory plans, establishes requirements for centralized 
regulatory review, and mandates stakeholder consultation with 
the public and state, local, and tribal governments. As such, 
this bill does not relate to employment or access to public 
services and accommodations.

  Statement of Oversight Findings and Recommendations of the Committee

    In compliance with clause 3(c)(1) of rule XIII and clause 
(2)(b)(1) of rule X of the Rules of the House of 
Representatives, the Committee's oversight findings and 
recommendations are reflected in the descriptive portions of 
this report.

         Statement of General Performance Goals and Objectives

    In accordance with clause 3(c)(4) of rule XIII of the Rules 
of the House of Representatives, the Committee's performance 
goal or objective of this bill is to require the Administrator 
of the Office of Information and Regulatory Affairs to review 
regulations, and for other purposes.

                    Duplication of Federal Programs

    In accordance with clause 2(c)(5) of rule XIII, no 
provision of this bill establishes or reauthorizes a program of 
the federal government known to be duplicative of another 
federal program, a program that was included in any report from 
the Government Accountability Office to Congress pursuant to 
section 21 of Public Law 111-139, or a program related to a 
program identified in the most recent Catalog of Federal 
Domestic Assistance.

                  DISCLOSURE OF DIRECTED RULE MAKINGS

    The Committee estimates that enacting this bill does not 
direct the completion of any specific rule makings within the 
meaning of 5 U.S.C. 551.

                     Federal Advisory Committee Act

    The Committee finds that the legislation does not establish 
or authorize the establishment of an advisory committee within 
the definition of 5 U.S.C. App., Section 5(b).

                       Unfunded Mandate Statement

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandate Reform Act, P.L. 104-4) requires a statement as to 
whether the provisions of the reported bill include unfunded 
mandates. In compliance with this requirement, the Committee 
has received a letter from the Congressional Budget Office 
included herein.

                         Earmark Identification

    This bill does not include any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9 of rule XXI.

                           Committee Estimate

    Clause 3(d)(2) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison by the 
Committee of the costs that would be incurred in carrying out 
this bill. However, clause 3(d)(3)(B) of that Rule provides 
that this requirement does not apply when the Committee has 
included in its report a timely submitted cost estimate of the 
bill prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974. The Committee has requested but not received a cost 
estimate for this bill from the Director of the Congressional 
Budget Office. The Committee believes that enactment of this 
bill would result in no net effect on direct spending over the 
2018-2022 period. Assuming the appropriation of authorized 
amounts, the Committee estimates that the legislation would 
also have a discretionary cost of less than $5 million over the 
2018-2022 period.

     Budget Authority and Congressional Budget Office Cost Estimate

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the Rules of the House of Representatives and section 
308(a) of the Congressional Budget Act of 1974 and with respect 
to requirements of clause (3)(c)(3) of rule XIII of the Rules 
of the House of Representatives and section 402 of the 
Congressional Budget Act of 1974, the Committee has requested 
but not received a cost estimate for this bill from the 
Director of Congressional Budget Office. The Committee believes 
that this bill does not contain any new budget authority, 
spending authority, credit authority, or an increase or 
decrease in revenues or tax expenditures.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, and existing law in which no 
change is proposed is shown in roman):

TITLE 44, UNITED STATES CODE

           *       *       *       *       *       *       *



         CHAPTER 35--COORDINATION OF FEDERAL INFORMATION POLICY


                SUBCHAPTER I--FEDERAL INFORMATION POLICY

Sec.
3501. Purposes.
     * * * * * * *
3522. Office of Information and Regulatory Affairs Regulatory Working 
          Group; regulatory plan; Unified Agenda.
3523. OIRA coordinated review of significant regulatory actions.
3524. Public disclosure of regulatory review.
     * * * * * * *

SUBCHAPTER I--FEDERAL INFORMATION POLICY

           *       *       *       *       *       *       *


Sec. 3502. Definitions

  As used in this subchapter--
          (1) the term ``agency'' means any executive 
        department, military department, Government 
        corporation, Government controlled corporation, or 
        other establishment in the executive branch of the 
        Government (including the Executive Office of the 
        President), or any independent regulatory agency, but 
        does not include--
                  (A) the Government Accountability Office;
                  (B) Federal Election Commission;
                  (C) the governments of the District of 
                Columbia and of the territories and possessions 
                of the United States, and their various 
                subdivisions; or
                  (D) Government-owned contractor-operated 
                facilities, including laboratories engaged in 
                national defense research and production 
                activities;
          (2) the term ``burden'' means time, effort, or 
        financial resources expended by persons to generate, 
        maintain, or provide information to or for a Federal 
        agency, including the resources expended for--
                  (A) reviewing instructions;
                  (B) acquiring, installing, and utilizing 
                technology and systems;
                  (C) adjusting the existing ways to comply 
                with any previously applicable instructions and 
                requirements;
                  (D) searching data sources;
                  (E) completing and reviewing the collection 
                of information; and
                  (F) transmitting, or otherwise disclosing the 
                information;
          (3) the term ``collection of information''--
                  (A) means the obtaining, causing to be 
                obtained, soliciting, or requiring the 
                disclosure to third parties or the public, of 
                facts or opinions by or for an agency, 
                regardless of form or format, calling for 
                either--
                          (i) answers to identical questions 
                        posed to, or identical reporting or 
                        recordkeeping requirements imposed on, 
                        ten or more persons, other than 
                        agencies, instrumentalities, or 
                        employees of the United States; or
                          (ii) answers to questions posed to 
                        agencies, instrumentalities, or 
                        employees of the United States which 
                        are to be used for general statistical 
                        purposes; and
                  (B) shall not include a collection of 
                information described under section 3518(c)(1);
          (4) the term ``Director'' means the Director of the 
        Office of Management and Budget;
          (5) the term ``independent regulatory agency'' means 
        the Board of Governors of the Federal Reserve System, 
        the Commodity Futures Trading Commission, the Consumer 
        Product Safety Commission, the Federal Communications 
        Commission, the Federal Deposit Insurance Corporation, 
        the Federal Energy Regulatory Commission, the Federal 
        Housing Finance Agency, the Federal Maritime 
        Commission, the Federal Trade Commission, the 
        Interstate Commerce Commission, the Mine Enforcement 
        Safety and Health Review Commission, the National Labor 
        Relations Board, the Nuclear Regulatory Commission, the 
        Occupational Safety and Health Review Commission, the 
        Postal Regulatory Commission, the Securities and 
        Exchange Commission, the Bureau of Consumer Financial 
        Protection, the Office of Financial Research, Office of 
        the Comptroller of the Currency, and any other similar 
        agency designated by statute as a Federal independent 
        regulatory agency or commission;
          (6) the term ``information resources'' means 
        information and related resources, such as personnel, 
        equipment, funds, and information technology;
          (7) the term ``information resources management'' 
        means the process of managing information resources to 
        accomplish agency missions and to improve agency 
        performance, including through the reduction of 
        information collection burdens on the public;
          (8) the term ``information system'' means a discrete 
        set of information resources organized for the 
        collection, processing, maintenance, use, sharing, 
        dissemination, or disposition of information;
          (9) the term ``information technology'' has the 
        meaning given that term in section 11101 of title 40 
        but does not include national security systems as 
        defined in section 11103 of title 40;
          (10) the term ``person'' means an individual, 
        partnership, association, corporation, business trust, 
        or legal representative, an organized group of 
        individuals, a State, territorial, tribal, or local 
        government or branch thereof, or a political 
        subdivision of a State, territory, tribal, or local 
        government or a branch of a political subdivision;
          (11) the term ``practical utility'' means the ability 
        of an agency to use information, particularly the 
        capability to process such information in a timely and 
        useful fashion;
          (12) the term ``public information'' means any 
        information, regardless of form or format, that an 
        agency discloses, disseminates, or makes available to 
        the public;
          (13) the term ``recordkeeping requirement'' means a 
        requirement imposed by or for an agency on persons to 
        maintain specified records, including a requirement 
        to--
                  (A) retain such records;
                  (B) notify third parties, the Federal 
                Government, or the public of the existence of 
                such records;
                  (C) disclose such records to third parties, 
                the Federal Government, or the public; or
                  (D) report to third parties, the Federal 
                Government, or the public regarding such 
                records[; and];
          (14) the term ``penalty'' includes the imposition by 
        an agency or court of a fine or other punishment; a 
        judgment for monetary damages or equitable relief; or 
        the revocation, suspension, reduction, or denial of a 
        license, privilege, right, grant, or benefit[.];
          (15) the term ``Administrator'' means, unless 
        otherwise indicated, the Administrator of the Office of 
        Information and Regulatory Affairs;
          (16) the term ``economically significant regulatory 
        action'' means any regulatory action described under 
        subparagraph (A) or (B) of paragraph (21);
          (17) the term ``OIRA'' means the Office of 
        Information and Regulatory Affairs;
          (18) the term ``regulation''--
                  (A) means an agency statement of general 
                applicability and future effect, which the 
                agency intends to have the force and effect of 
                law, that is designed to implement, interpret, 
                or prescribe law or policy or to describe the 
                procedure or practice requirements of an 
                agency; and
                  (B) does not include such a statement if--
                          (i) issued in accordance with the 
                        formal rulemaking provisions of 
                        sections 556 and 557 of title 5;
                          (ii) the statement pertains to a 
                        military or foreign affairs function of 
                        the United States, other than 
                        procurement regulations and regulations 
                        involving the import or export of 
                        nondefense articles and services;
                          (iii) the statement is limited to an 
                        agency organization, management, or 
                        personnel matters; or
                          (iv) the statement is exempted as a 
                        regulation by the Administrator;
          (19) the term ``regulation identifier number'' means 
        a unique identification code for regulations, which is 
        designed to assist tracking regulations through the 
        course of development;
          (20) the term ``regulatory action'' means any 
        substantive action by an agency normally published in 
        the Federal Register that promulgates or is expected to 
        lead to the promulgation of a final regulation, 
        including notices of inquiry, advance notices of 
        proposed rulemaking, and notices of proposed 
        rulemaking;
          (21) the term ``significant regulatory action'' means 
        any regulatory action that is likely to result in a 
        regulation that may--
                  (A) have an annual effect on the economy of 
                $100,000,000 or more;
                  (B) adversely affect in a material way the 
                economy, a sector of the economy, productivity, 
                competition, jobs, the environment, public 
                health or safety, or State, local, or tribal 
                governments or communities;
                  (C) create a serious inconsistency or 
                otherwise interfere with an action taken or 
                planned by another agency;
                  (D) materially alter the budgetary impact of 
                entitlements, grants, user fees, or loan 
                programs or the rights and obligations of 
                recipients therein; or
                  (E) raise novel legal or policy issues 
                arising out of legal mandates;
          (22) the term ``small business'' has the meaning 
        given the term ``small-business concern'' in section 3 
        of the Small Business Act (15 U.S.C. 632); and
          (23) the term ``State'' means each of the several 
        States, the District of Columbia, each territory or 
        possession of the United States, and each federally 
        recognized Indian tribe.

           *       *       *       *       *       *       *


Sec. 3522. Office of Information and Regulatory Affairs Regulatory 
                    Working Group; regulatory plan; Unified Agenda

  (a) Regulatory Working Group.--
          (1) Establishment; members.--The Administrator of the 
        Office of Information and Regulatory Affairs shall 
        convene a working group to be known as the Regulatory 
        Working Group, whose members shall consist of the 
        following:
                  (A) The Administrator.
                  (B) Representatives selected by the head of 
                each agency that the Administrator determines 
                to have significant domestic regulatory 
                responsibility.
                  (C) Other executive branch officials as 
                designated by the Administrator.
          (2) Chair.--The Chair of the Regulatory Working Group 
        shall be the Administrator, who shall periodically 
        advise Congress on the activities of the Regulatory 
        Working Group.
          (3) Purpose.--The Regulatory Working Group shall 
        serve as a forum to assist agencies in identifying and 
        analyzing important regulatory issues, including, at a 
        minimum--
                  (A) the development of innovative regulatory 
                techniques;
                  (B) the methods, efficacy, and utility of 
                comparative risk assessment in regulatory 
                decisionmaking; and
                  (C) the development of streamlined regulatory 
                approaches for small businesses and other 
                entities.
          (4) Meetings.--The Regulatory Working Group shall 
        meet not less than quarterly and may meet as a whole or 
        in subgroups of members with an interest in particular 
        issues or subject areas.
          (5) Analytical studies.--To inform the discussion of 
        the Regulatory Working Group, the Regulatory Working 
        Group may request analytical studies and reports by the 
        Office of Information and Regulatory Affairs, the 
        Administrative Conference of the United States, or any 
        other agency.
  (b) Regulatory Plan.--
          (1) In general.--
                  (A) Deadline for and description of 
                regulatory plan.--Not later than June 1 of each 
                year, the head of each agency shall approve and 
                submit to the Administrator a regulatory plan 
                that includes each significant regulatory 
                action that the agency reasonably expects to 
                issue in proposed or final form in the 
                following fiscal year or thereafter and the 
                retrospective review described in paragraph 
                (2). The regulatory plan shall also contain, at 
                a minimum, the following:
                          (i) A statement of the regulatory 
                        objectives and priorities of the 
                        agency.
                          (ii) A summary of each planned 
                        significant regulatory action 
                        including, to the extent possible, 
                        alternatives to be considered and 
                        preliminary estimates of the 
                        anticipated costs and benefits of such 
                        action.
                          (iii) A summary of the legal basis 
                        for each such action, including whether 
                        any aspect of the action is required by 
                        statute or court order.
                          (iv) A statement of the need for each 
                        such action and, if applicable, how the 
                        action will reduce risk to public 
                        health, safety, or the environment, as 
                        well as how the magnitude of the risk 
                        addressed by the action relates to any 
                        other risk within the jurisdiction of 
                        the agency.
                          (v) The schedule for each such 
                        action, including a statement of any 
                        applicable statutory or judicial 
                        deadline.
                          (vi) The name, email address, and 
                        telephone number of a knowledgeable 
                        agency employee the public may contact 
                        for additional information about each 
                        such action.
                  (B) Circulation of regulatory plan.--Not 
                later than 10 days after receiving the 
                regulatory plan under subparagraph (A), the 
                Administrator shall circulate the regulatory 
                plan to any other agency the Administrator 
                determines may be affected by the plan.
                  (C) Agency notification to oira of 
                conflicting significant regulatory actions.--
                The head of an agency shall promptly notify the 
                Administrator in writing if any planned 
                significant regulatory action in the regulatory 
                plan of another agency may conflict with the 
                policy or action taken or planned by that 
                agency. The Administrator shall forward any 
                notification received under this subparagraph 
                to the other agency involved.
                  (D) Notification of conflicting significant 
                regulatory actions.--The Administrator shall 
                notify the head of an agency in writing if any 
                planned significant regulatory action conflicts 
                with any policy or action taken or planned by 
                another agency.
                  (E) Requirement to publish in unified 
                agenda.--Each regulatory plan submitted by the 
                head of an agency under subparagraph (A) shall 
                be included in the October publication of the 
                Unified Agenda described under subsection (c).
          (2) Retrospective review.--
                  (A) List of outdated regulations.--The head 
                of each agency shall include in the regulatory 
                plan submitted under paragraph (1)(A) a list of 
                regulations that have been identified by the 
                agency (including any comments submitted to the 
                agency) as unjustified, unnecessary, 
                duplicative of other regulations or laws, 
                inappropriately burdensome, or otherwise 
                recommended for removal.
                  (B) Description of retrospective review.--The 
                head of each agency shall include in the 
                regulatory plan submitted under paragraph 
                (1)(A) a description of any program or other 
                effort to review existing regulations to 
                determine whether any such regulations should 
                be modified or eliminated in order to increase 
                the effectiveness in achieving the regulatory 
                objectives of the agency or to reduce the 
                burden of regulations. The agency shall include 
                any statutory requirements that require the 
                agency to promulgate or continue to impose 
                regulations that the agency believes are 
                unnecessary or outdated by reason of changed 
                circumstances.
                  (C) OIRA coordinated review.--The 
                Administrator shall work with interested 
                entities and agencies, including through the 
                processes established under subsection (d), to 
                review the list of regulations identified under 
                subparagraph (A) and such entities may assist 
                OIRA and the agencies with identifying 
                regulations or groups of regulations that--
                          (i) impose significant or unique 
                        burdens on governmental entities and 
                        that are no longer justified; or
                          (ii) affect a particular group, 
                        industry, or sector of the economy.
  (c) Unified Agenda.--
          (1) Submission of regulations under development or 
        review.--Not later than April 1 and October 1 of each 
        year, the head of each agency shall submit to the 
        Administrator an agenda of each regulation under 
        development or review in accordance with any guidance 
        issued under this section. Each agenda shall include, 
        to the extent practicable, the following:
                  (A) For each regulation--
                          (i) a regulation identifier number;
                          (ii) a brief summary of the 
                        regulation;
                          (iii) a citation to the legal 
                        authority to issue the regulation;
                          (iv) any legal deadline for the 
                        issuance of the regulation;
                          (v) the name and phone number for a 
                        knowledgeable agency employee; and
                          (vi) the stage of review for issuing 
                        the regulation.
                  (B) For each regulation expected to be 
                promulgated within the following 18 months--
                          (i) a determination of whether the 
                        regulation is expected to be a 
                        significant regulatory action or an 
                        economically significant regulatory 
                        action; and
                          (ii) any available analysis or 
                        quantification of the expected costs or 
                        benefits.
                  (C) For any regulation included in the 
                immediately previous agenda, an explanation of 
                why the regulation is no longer included.
          (2) Publication of unified agenda required.--Not 
        later than April 15 and October 15 of each year, the 
        Administrator shall compile and publish online each 
        agenda received under paragraph (1) (to be known as the 
        Unified Agenda).
          (3) Guidance.--
                  (A) In general.--The Administrator shall 
                issue guidance for agencies on the manner of 
                submission under this subsection and on meeting 
                the requirements of this subsection, including 
                a standard definition for each stage of review 
                and any other definition that would assist the 
                public in understanding the different terms 
                used by agencies to submit the agenda required 
                under paragraph (1).
                  (B) Updates.--The Administrator shall 
                periodically review compliance with this 
                section and issue guidance or recommendations 
                to assist agencies in complying with this 
                section.
  (d) Coordination With State, Local, and Tribal Governments 
and the Public.--
          (1) State, local, and tribal governments.--The 
        Administrator shall meet not less than quarterly with 
        representatives of State, local, and tribal governments 
        to identify both existing and proposed regulations that 
        may uniquely or significantly affect those government 
        entities.
          (2) Public.--The Administrator shall periodically 
        convene conferences with representatives of businesses, 
        nongovernmental organizations, and the public to 
        discuss regulatory issues of common concern.
  (e) Best Practices.--The Administrator shall, in consultation 
with the Regulatory Working Group and the entities described in 
subsection (d), periodically develop advice and guidance for 
agencies on best practices of the development of regulations.

Sec. 3523. OIRA coordinated review of significant regulatory actions

  (a) OIRA Review.--
          (1) In general.--The Administrator shall conduct a 
        Governmentwide coordinated review of significant 
        regulatory actions to ensure that such regulations are 
        consistent with applicable law and that a regulatory 
        action by one agency does not conflict with a policy or 
        action taken or planned by another agency.
          (2) Periodic agency submission of planned regulatory 
        actions.--The head of each agency shall provide to the 
        Administrator, at such time and in such a manner as 
        determined by the Administrator, a list of each planned 
        regulatory action with an identification of whether 
        each such regulatory action is a significant regulatory 
        action.
          (3) Review of significant regulatory action 
        required.--
                  (A) In general.--The Administrator shall make 
                a determination of whether any planned 
                regulatory action submitted under this section 
                is a significant regulatory action and shall 
                review each such significant regulatory action 
                in accordance with this section.
                  (B) Not subject to review.--Any planned 
                regulatory action determined by the 
                Administrator not to be a significant 
                regulatory action is not subject to review 
                under this section.
                  (C) Notification required.--Not later than 10 
                days after a planned regulatory action has been 
                determined to be a significant regulatory 
                action, the Administrator shall notify the head 
                of the relevant agency of such determination.
          (4) Waiver of review for significant regulatory 
        action.--The Administrator--
                  (A) may waive review of any planned 
                regulatory action designated as a significant 
                regulatory action; and
                  (B) shall publish online a detailed written 
                explanation of any such waiver.
  (b) Agency Consultation With OIRA.--
          (1) In general.--An agency may consult with OIRA at 
        any time on any regulatory action.
          (2) Regulation identifier number.--The head of an 
        agency shall make every effort to obtain a regulation 
        identifier number for the regulatory action that is the 
        subject of the consultation before consulting with 
        OIRA.
          (3) Consultation information required.--If the head 
        of an agency is unable to obtain the regulation 
        identifier number as described in paragraph (2), the 
        head of the agency shall provide the regulation 
        identifier number to OIRA as soon as the number is 
        obtained with a list of any previous interactions with 
        OIRA relating to the regulatory action that is the 
        subject of the consultation.
  (c) Agency Submission of Significant Regulatory Action for 
Review.--Before issuing a significant regulatory action, the 
head of an agency shall submit the significant regulatory 
action to the Administrator for review and shall include the 
following:
          (1) The text of the significant regulatory action.
          (2) A detailed description of the need for the 
        significant regulatory action.
          (3) An explanation of how the significant regulatory 
        action will meet the identified need.
          (4) An assessment of potential costs and benefits of 
        the significant regulatory action.
          (5) An explanation of the manner in which the 
        significant regulatory action is consistent with a 
        statutory mandate and avoids undue interference with 
        State, local, and tribal government functions.
          (6) For an economically significant regulatory 
        action, if any of the following was developed during 
        the decisionmaking process of the agency:
                  (A) An assessment of and quantification of 
                costs and benefits of the significant 
                regulatory action.
                  (B) An assessment of and quantification of 
                costs and benefits of potentially effective and 
                feasible alternatives, including any underlying 
                analysis.
                  (C) An explanation of why the planned 
                significant regulatory action is preferable to 
                any identified potential alternatives.
  (d) Deadlines for Review.--
          (1) Review coordination.--To the extent practicable, 
        the head of each agency shall work with the 
        Administrator to establish a mutually agreeable date on 
        which to submit a significant regulatory action for 
        review.
          (2) Expedited review.--When an agency is obligated by 
        law to issue a significant regulatory action before 
        complying with the provisions of this section, the head 
        of the agency shall notify the Administrator as soon as 
        possible. To the extent practicable, OIRA and the 
        agency shall comply with the provisions of this 
        section.
          (3)  10-day review.--In the case of a significant 
        regulatory action that is a notice of inquiry, advance 
        notice of proposed rulemaking, or other preliminary 
        regulatory action prior to a notice of proposed 
        rulemaking, within 10 business days after the date of 
        submission of the such action to the Administrator, 
        OIRA shall complete the review.
          (4)  90-day review.--
                  (A) In general.--Except as provided in 
                subparagraph (B), for any other significant 
                regulatory action not described in paragraph 
                (3), within 90 days after the date of 
                submission of the action, OIRA shall complete 
                the review.
                  (B) Exception 45-day review.--If OIRA has 
                previously reviewed the significant regulatory 
                action described in subparagraph (A) and, since 
                that review, there has been no material change 
                in the facts and circumstances upon which the 
                significant regulatory action is based, OIRA 
                shall complete the review within 45 days after 
                submission of the action.
          (5) Extension.--Any review described under this 
        subsection may be extended for any number of additional 
        30-day periods upon written request by the 
        Administrator or the head of the agency. Such request 
        shall be granted unless the nonrequesting party denies 
        the request in writing within 5 days after receipt of 
        the request for extension.
          (6) Return.--If the Administrator determines OIRA is 
        unable to complete a review within the time period 
        described under this subsection, the Administrator may 
        return the draft of the significant regulatory action 
        to the agency with a written explanation of why OIRA 
        was unable to complete the review and what additional 
        information, resources, or time OIRA would need to 
        complete the review.
          (7) Withdrawal.--An agency may withdraw the 
        regulatory action from OIRA review at any time prior to 
        the completion of the review.
  (e) Compliance Review.--The Administrator shall review any 
significant regulatory action submitted under subsection (c) to 
determine the extent to which the agency--
          (1) identified the problem that the significant 
        regulatory action is designed to address (including, 
        where applicable, the failures of private markets or 
        public institutions that warrant new agency action);
          (2) assessed the significance of the problem the 
        regulatory action is designed to address;
          (3) examined whether existing regulations or laws 
        have created or contributed to the problem that the 
        regulatory action is designed to correct and whether 
        those regulations or laws should be modified to achieve 
        the intended goal more effectively;
          (4) identified and assessed available alternatives to 
        direct regulation, including providing economic 
        incentives to encourage desired behaviors, such as user 
        fees or marketable permits, or providing information 
        upon which choices can be made by the public;
          (5) considered, to the extent reasonable, the degree 
        and nature of the risks posed by various substances or 
        activities within the jurisdiction of the agency;
          (6) designed the regulatory action to be the most 
        cost-effective manner to achieve the regulatory 
        objective;
          (7) considered incentives for innovation, 
        consistency, predictability, flexibility, distributive 
        impacts, equity, and the costs of enforcement and 
        compliance by the Government, regulated entities, and 
        the public;
          (8) assessed costs and benefits of the regulatory 
        action and made a reasoned determination that the 
        benefits justify the costs;
          (9) used the best reasonably obtainable scientific, 
        technical, economic, and other information concerning 
        the need for and consequences of the regulatory action;
          (10) identified and assessed alternative forms of 
        regulation and, to the extent feasible, specified 
        performance objectives rather than behavior or manner 
        of compliance;
          (11) sought comments and suggestions from appropriate 
        State, local, and tribal officials on any aspect of the 
        regulatory action that might significantly or uniquely 
        affect those governmental entities;
          (12) assessed the effects of the regulatory action on 
        State, local, and tribal governments, including 
        specifically the availability of resources to carry out 
        the regulatory action, and minimized the burdens that 
        uniquely or significantly affect such governmental 
        entities, consistent with achieving regulatory 
        objectives;
          (13) harmonized the regulatory action with the 
        regulatory and other functions of State, local, and 
        tribal governments;
          (14) avoided conflicts with or duplication of other 
        existing regulations;
          (15) tailored the regulatory action to impose the 
        least burden on society, including individuals, 
        businesses of differing sizes, and other entities 
        (including small communities and governmental 
        entities), consistent with obtaining the regulatory 
        objectives, and taking into account, among other things 
        and to the extent practicable, the costs of cumulative 
        regulations;
          (16) drafted the regulatory action to be simple and 
        easy to understand, and minimized the potential for 
        uncertainty and litigation arising from such 
        uncertainty;
          (17) met all applicable Executive order requirements;
          (18) met all applicable statutory requirements; and
          (19) complied with all applicable guidance.
  (f) Quality Review.--For any significant regulatory action 
submitted under subsection (c), OIRA shall assess the extent to 
which the agency conducted a meaningful and complete analysis 
of each of the factors described in subsection (e), considering 
best practices, methods observed through reviewing other 
agencies, comments from stakeholders, and other resources that 
may improve the quality of the process.
  (g) Interagency Consultation.--The Administrator shall 
identify each agency potentially affected, interested, or 
otherwise likely to provide valuable feedback on a significant 
regulatory action submitted under subsection (c) and facilitate 
a meaningful interagency consultation process. The 
Administrator shall--
          (1) provide each identified agency with a copy of the 
        draft regulatory action;
          (2) allow each identified agency to review the draft 
        regulatory action for a sufficient period of time, not 
        less than 10 business days;
          (3) solicit written comments from such agency and 
        provide those written comments to the submitting 
        agency; and
          (4) as appropriate, facilitate conversations between 
        agencies.
  (h) Stakeholder Consultation.--For all substantive 
communications between OIRA and individuals not employed by the 
executive branch regarding a regulatory action submitted to the 
Administrator for review under this section, the Administrator 
shall--
          (1) invite the issuing agency to any meeting between 
        OIRA personnel and individuals not employed by the 
        executive branch;
          (2) not later than 10 business days after receipt of 
        any written communication submitted by any individual 
        not employed by the executive branch, make such 
        communications available to the public online; and
          (3) make available to the public online a log, which 
        shall be updated daily, of the following information:
                  (A) The status of each regulatory action.
                  (B) A copy of any written communication 
                submitted by any person not employed by the 
                executive branch.
                  (C) The dates and names of persons involved 
                in any substantive oral communication and the 
                subject matter discussed during such 
                communication.
  (i) Conclusion of Review.--
          (1) Provision to agency.--Upon completion of the 
        review, the Administrator shall provide the head of an 
        agency with the results of the OIRA review in writing, 
        including a list of every standard, Executive order, 
        guidance document, and law reviewed for compliance and 
        the results for each.
          (2) Changes during review period.--Within 24 hours 
        after the conclusion of the OIRA review under this 
        section, the head of the submitting agency shall 
        provide the Administrator with a redline of any changes 
        the agency made to the regulatory action during the 
        review period. To the extent practicable, the agency 
        shall identify any change made at the suggestion or 
        recommendation of any other agency, member of the 
        public, or other source. To the extent practicable, the 
        agency should identify the source of any such change.

Sec. 3524. Public disclosure of regulatory review

  (a) In General.--On the earlier of 3 days after OIRA 
completes the review of any agency significant regulatory 
action under section 3523, the date on which such agency 
publishes the regulatory action in the Federal Register, or the 
date on which the agency announces a decision not to publish 
the regulatory action, the Administrator shall make available 
to the public online--
          (1) all information submitted by an agency under 
        section 3523;
          (2) the results of the review provided to the agency 
        under section 3523;
          (3) the redline of any changes made by the agency 
        during the course of the review provided under section 
        3523(i)(2); and
          (4) all documents exchanged between OIRA and the 
        agency during the review.
  (b) Plain Language Requirement.--All information provided to 
the public shall, to the extent practicable, be in plain, 
understandable language.

           *       *       *       *       *       *       *


                             MINORITY VIEWS

      H.R. 1009, THE OIRA INSIGHT, REFORM, AND ACCOUNTABILITY ACT

    Committee Democrats strongly oppose H.R. 1009. H.R. 1009 
would codify the role of the Office of Information and 
Regulatory Affairs (OIRA) in reviewing significant agency 
rulemakings. The bill includes many of the provisions of E.O. 
12866, which was issued by President Clinton in 1993. However, 
the bill also includes significant differences from E.O. 12866.
    Independent agencies are not currently required to comply 
with E.O. 12866, but the bill would subject such agencies to 
review by OIRA. A primary concern with subjecting independent 
agencies to OIRA review of rulemakings is that those agencies 
are designed to be independent and therefore not subject to 
political review of their regulatory actions by the White 
House.
    E.O. 12866 requires agencies to provide information to OIRA 
``unless prohibited by law,'' including estimates of the 
proposed costs and benefits of a rule. The bill does not 
include this limitation. There are many environmental, worker 
safety, and public health statutes that do not permit the use 
of cost-benefit analysis when setting public health standards. 
The majority has not explained how this bill would or would not 
impact those laws.
    The bill would enhance the stature of OIRA in the 
rulemaking process in a manner that undercuts the role of 
agencies. Congress delegates the authority to promulgate rules 
to regulatory agencies, not to OIRA.
    H.R. 1009 would provide OIRA with the exclusive authority 
to determine whether rulemakings are ``significant'' and 
therefore subject to OIRA review. Under E.O. 12866, agencies 
decide whether a regulatory action is significant. If an agency 
determines a rulemaking is not significant, OIRA has ten days 
to disagree with that determination or the rule is not subject 
to OIRA review.
    Under E.O. 12866, OIRA is required to conduct its review of 
agency rulemakings within 90 days, and that period can be 
extended once for 30 days. This bill would allow OIRA 90 days 
to review rules and would allow OIRA to extend its review of 
rulemakings for any number of additional 30-day periods upon 
written request by the Administrator or the head of the agency. 
The bill also would provide that [s]uch request shall be 
granted unless the nonrequesting party denies the request in 
writing within 5 days after receipt of the request for 
extension. Allowing OIRA an unlimited number of extensions 
could lead to political interference through delays in 
rulemakings.

                                        Elijah E. Cummings,
                                                    Ranking Member.

                                  [all]