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Delays Ahead for Trump Regulatory Nominee Cleared by Panel

Dec. 17, 2019, 2:58 PMUpdated: Dec. 17, 2019, 6:05 PM

A Senate panel approved Paul Ray to be President Donald Trump’s next regulatory chief, but the Republican-controlled chamber won’t be able to quickly sign off on his nomination because of Democratic objections to the way the White House has handled requests about the nominee’s record.

The Senate Homeland Security and Governmental Affairs Committee approved Ray’s nomination in an 8-4 party-line vote on Dec. 17. The tally reflected frustration among Democrats on the panel who have tried unsuccessfully for weeks to get documents and information about rulemaking activities conducted under Ray’s watch.

Committee Chairman Ron Johnson (R-Wis.) told Bloomberg Law after the vote that Ray’s nomination is unlikely to be included in the Senate’s traditional end-of-year package of nominees. Approving Ray quickly as part of such a package would require unanimous consent, he said, pointing to the contentious committee vote.

Ray took over in March as acting administrator of the Office of Information and Regulatory Affairs, an agency within the White House Office of Management and Budget that reviews significant federal regulations and enforces the president’s regulatory priorities. He joined OIRA in May 2018 as associate administrator.

“OMB has made it nearly impossible for us to fulfill our constitutional responsibility to fully and fairly vet this nominee,” Sen. Gary Peters (D-Mich.), the committee’s ranking Democrat, said before the vote. “And I believe it would be irresponsible to report Mr. Ray favorably without a genuine opportunity to review his record.”

Johnson said he will ask Senate Majority Leader Mitch McConnell (R-Ky.) to take the more time-consuming step of filing cloture to cut off a filibuster, in order to get Ray’s nomination through the Senate. “We need Mr. Ray in this position confirmed,” he said.

Democratic Votes Possible

Peters said there’s “no question” that Ray, a former appellate litigator and Supreme Court clerk, is well-informed and passionate about administrative law. The Michigan Democrat said he recently met with Ray to discuss regulatory protections against PFAS contamination and other health and safety threats.

But Peters said that because Ray is relatively new to federal service and relying on his recent record at OIRA to win confirmation, the best way to understand how he will act if confirmed is to closely look at what he has done as associate and acting administrator.

Yet for nearly two months, OMB’s Office of General Counsel has refused to engage with Democrats on these requests, Peters said. The panel’s ranking member acknowledged that while some “initial progress” was made in recent days, it took weeks and a letter signed by all committee Democrats to get to that point, which he called “unacceptable.”

Sen. Kyrsten Sinema (D-Ariz.), ranking Democrat on the panel’s regulatory affairs subcommittee, said she voted against the nomination specifically because of the lack of cooperation from OMB’s Office of General Counsel, not because of Ray’s qualifications.

“So if we do receive those documents from Mr. Ray’s time as associate administrator, I look forward to re-examining my position at that time,” she said.

‘Brilliant,’ But New

“Everyone has said he’s qualified, and he certainly is,” said Sen. Rob Portman (R-Ohio), who served as OMB director in the George W. Bush administration.

“This guy is brilliant. He is a former Supreme Court clerk, he’s got good government experience for such a young person—he’s earnest, he’s forthcoming,” Portman said, adding that Ray wants to work with Congress.

Ahead of the vote, a group of 26 consumer, labor, environmental, and public interest groups sent a letter to Capitol Hill opposing Ray’s nomination based on his background, limited experience, and actions he’s taken while serving as the agency’s acting administrator.

Ray is a relative newcomer to the field of regulatory policy and administrative law in comparison to past OIRA heads. He was promoted to acting administrator after the president’s first regulatory chief, Neomi Rao, was confirmed as a judge for the U.S. Court of Appeals for the District of Columbia Circuit.

Before joining OIRA, he served for one year as an adviser to former Labor Secretary Alexander Acosta, overseeing the department’s regulatory portfolio.

Ray also worked at Sidley Austin LLP as an associate for just under three years, from August 2014 to April 2017. He has provided legal services to business clients including AT&T Inc., International Paper Co., PG&E Corp., Tyson Foods Inc., as well as the National Association of Manufacturers, according to Ray’s most recent public financial disclosure report.

(Additional quotes from senators throughout)

To contact the reporter on this story: Cheryl Bolen in Washington at cbolen@bgov.com

To contact the editor responsible for this story: John Lauinger at jlauinger@bloomberglaw.com