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White House Releases Delayed Regulatory Data Sought by Democrats

Dec. 12, 2019, 8:36 PM

The White House this week released a long overdue and legally required report to Congress on regulatory benefits and costs from 2017, fulfilling a pledge President Donald Trump’s nominee for regulatory chief made to Democrats who are seeking to hold him accountable for the administration’s regulatory record.

The final 2017 report estimating total benefits and costs of federal regulations was quietly posted by the Office of Management and Budget on Dec. 9, less than a week after a Senate Homeland Security and Governmental Affairs Committee hearing on Paul Ray’s nomination to lead OMB’s Office of Information and Regulatory Affairs. The next day, the committee announced it had scheduled a vote on Ray’s nomination for Dec. 17.

Sen. Kyrsten Sinema (D-Ariz.) questioned Ray at his Dec. 4 confirmation hearing about the missing 2017 report, as well as outstanding versions for 2018 and 2019. Sinema and other Democrats on the panel have been critical of OMB for withholding documents and information related to rulemaking activities under Ray’s watch. The nominee has served as acting administrator of OIRA since March after joining the agency in May 2018 as associate administrator.

The final 2017 report on the benefits and costs of regulations for the first time didn’t include aggregate figures in its summary. The draft version, however, estimated annual benefits of major regulations were between $219 billion and $695 billion, while the estimated annual costs were between $59 billion and $88 billion.

“I don’t think people have to think very hard in terms of why they’re reluctant to issue these reports,” said Amit Narang, regulatory policy advocate at Public Citizen. “These reports directly cut against the justification for Trump’s deregulatory agenda—they show the benefits of regulations always massively outweigh the costs.”

Ray Blames Previous Administration

The Regulatory Right-to-Know Act requires OMB to submit to Congress each year an accounting statement and associated report, including an estimate of total annual benefits and costs, of federal rules and paperwork in the aggregate, by agency and agency program, and by major rule.

“The tardy status of the reports goes back several years to the previous—at least to the previous administration, perhaps the administration before that,” Ray told Sinema at the hearing. “I’m not really certain. But it’s unfortunately become a feature.”

“But in my time at OMB, I have worked to catch OMB up on those reports,” Ray said. “And so I’m glad to say that I fully expect that all the past due reports will be out before Christmas.”

A list of more than two dozen previously published reports, however, shows the Trump administration deviating from the disclosure routines followed by past administrations.

Sen. Gary Peters (D-Mich.), the committee’s ranking Democrat, appreciates OIRA’s release of the 2017 report, but is still awaiting publication of the 2018 and 2019 reports, a committee aide to Peters said in an email to Bloomberg Law.

“OMB committed to expedite the publication of this report and published it as soon as it was ready,” said OMB press secretary Chase Jennings in a statement to Bloomberg Law about the 2017 report.

The release of a legally mandated report nearly two years after its deadline does not make up for the administration not providing additional information Peters requested in order to evaluate the nominee’s record, the senator’s aide added.

Peters still has not received previously requested information about Ray’s time as acting administrator and about regulatory issues like PFAS, a class of more than 4,000 toxic chemicals commonly found in consumer products, food packaging, and firefighting foams, his aide said.

Gaps and Questions

OMB released Nov. 20 its fall 2019 unified agenda of regulatory and deregulatory actions, which lists all the rules agencies intend to advance or cut in the coming year. Two weeks later—and two days after Ray’s confirmation hearing—OMB released an accounting of all the rules it had issued and cut during fiscal 2019, as well as agency regulatory budgets for fiscal 2020.

Even with these disclosures, there are still gaps in information about recent regulatory activities, such as how 2019 savings were calculated, an accounting of the annual paperwork burdens over the last two years, and lists of those who attended meetings at OIRA this year, regulatory analysts said.

“This is definitely looking to me like a disturbing pattern, because it does not seem that OIRA has been very responsive to congressional oversight committees,” Narang said.

OMB’s accounting of regulatory savings in fiscal 2019 shows agencies achieved net savings of $13.5 billion. Dan Bosch, director of regulatory policy at the conservative American Action Forum, raised questions about how OMB arrived at both its yearly total and cumulative savings since the start of the Trump administration of $50.9 billion.

Though OIRA releases a list of actions that make up its final tally each year, it doesn’t include either the savings or cost amount associated with each action, Bosch wrote in a recent analysis. Those omissions, he argued, can undermine confidence in the results of the administration’s regulatory budget, leading to potential trouble down the line.

“A general lack of confidence in the regulatory budgeting process hurts the chances that a regulatory budget survives beyond the current administration or that Congress eventually legislates its own version of a regulatory budget,” he wrote.

Separately, the Paperwork Reduction Act of 1995 requires OMB to report to Congress on the paperwork burden imposed on the public by the federal government and efforts to reduce this burden. These reports, known as the Information Collection Budget, were submitted to Congress each year from 1999 through 2016.

Former OIRA Administrator Neomi Rao issued two memorandums, one in July 2017 and one in August 2018, asking chief information officers across federal agencies for paperwork burden data, but no ICB reports were submitted for those years.

Missing Meeting Info

OIRA also hasn’t been updating information posted to its RegInfo.gov website about meetings on particular rules, Narang said. Under Executive Order 12866, OMB officials meet with any interested party to discuss issues on a rule under review.

Only meetings listed as “completed” on the website have been updated to disclose attendees and documents, but most meetings going back months are still listed as “scheduled” and don’t contain that information, he said.

Disclosure of meeting attendees provides an important window into efforts that trade and advocacy groups, businesses and other organizations outside government make to influence the rulemaking process.

“You will not find which meetings Paul Ray did or did not attend just by going to the website,” he added.

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

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; John Lauinger at jlauinger@bloomberglaw.com

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