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S. Hrg. 114–241 

AGENCY PROGRESS IN RETROSPECTIVE REVIEW 

OF EXISTING REGULATIONS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

REGULATORY AFFAIRS AND FEDERAL 

MANAGEMENT 

OF THE

COMMITTEE ON 

HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

NOVEMBER 5, 2015 

Available via http://www.fdsys.gov 

Printed for the use of the Committee on Homeland Security 

and Governmental Affairs 

( 
(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

RON JOHNSON, Wisconsin, Chairman 

JOHN MCCAIN, Arizona 

ROB PORTMAN, Ohio 

RAND PAUL, Kentucky 

JAMES LANKFORD, Oklahoma 

MICHAEL B. ENZI, Wyoming 

KELLY AYOTTE, New Hampshire 

JONI ERNST, Iowa 

BEN SASSE, Nebraska 

THOMAS R. CARPER, Delaware 

CLAIRE MCCASKILL, Missouri 

JON TESTER, Montana 

TAMMY BALDWIN, Wisconsin 

HEIDI HEITKAMP, North Dakota 

CORY A. BOOKER, New Jersey 

GARY C. PETERS, Michigan 

KEITH B. ASHDOWN, Staff Director 

GABRIELLE A. BATKIN, Minority Staff Director 

JOHN P. KILVINGTON, Minority Deputy Staff Director 

LAURA W. KILBRIDE, Chief Clerk 

BENJAMIN C. GRAZDA, Hearing Clerk 

SUBCOMMITTEE ON REGULATORY AFFAIRS AND FEDERAL 

MANAGEMENT 

JAMES LANKFORD, Oklahoma, Chairman 

JOHN MCCAIN, Arizona 

ROB PORTMAN, Ohio 

MICHAEL B. ENZI, Wyoming 

JONI ERNST, Iowa 

BEN SASSE, Nebraska 

HEIDI HEITKAMP, North Dakota 

JON TESTER, Montana 

CORY A. BOOKER, New Jersey 

GARY C. PETERS, Michigan 

JOHN CUADERESS, Staff Director 

ERIC BURSCH, Minority Staff Director 

RACHEL NITSCHE, Chief Clerk 
(III) 

C O N T E N T S 

Opening statement: Page 

Senator Lankford .............................................................................................. 1 

Senator Heitkamp ............................................................................................ 2 

Senator Peters .................................................................................................. 11 

Senator Ernst .................................................................................................... 13 

Prepared statement: 

Senator Lankford .............................................................................................. 35 

Senator Heitkamp ............................................................................................ 37 

WITNESSES 

THURSDAY, NOVEMBER 5 2015 

Elizabeth Klein, Associate Deputy Secretary, U.S. Department of the Interior 4 

Christopher Zehren, Deputy Director, Office of Budget and Program Analysis, 

U.S. Department of Agriculture .......................................................................... 6 

Megan J. Uzzell, Associate Deputy Secretary, U.S. Department of Labor ......... 7 

Bill Nickerson, Acting Director, Office of Regulatory Policy and Management, 

Office of Policy, U.S. Environmental Protection Agency ................................... 9 

ALPHABETICAL LIST OF WITNESSES

Klein, Elizabeth: 

Testimony .......................................................................................................... 4 

Prepared statement .......................................................................................... 39 

Nickerson, Bill: 

Testimony .......................................................................................................... 9 

Prepared statement .......................................................................................... 51 

Uzzell Megan J.: 

Testimony .......................................................................................................... 7 

Prepared statement .......................................................................................... 45 

Zehren, Christopher: 

Testimony .......................................................................................................... 6 

Prepared statement .......................................................................................... 42 

APPENDIX 

Responses to post-hearing questions for the Record: 

Ms. Klein ........................................................................................................... 54 

Mr. Zehren ........................................................................................................ 68 

Ms. Uzzell .......................................................................................................... 91 

Mr. Nickerson ................................................................................................... 105 

(1) 

AGENCY PROGRESS IN RETROSPECTIVE 

REVIEW OF EXISTING REGULATIONS 

THURSDAY, NOVEMBER 5 2015 

U.S. SENATE, SUBCOMMITTEE ON REGULATORY, AFFAIRS AND FEDERAL MANAGEMENT, OF THE COMMITTEE ON HOMELAND SECURITY

AND GOVERNMENTAL AFFAIRS, Washington, DC. 

The Subcommittee met, pursuant to notice, at 9:34 a.m., in room 

SD–342, Dirksen Senate Office Building, Hon. James Lankford, 

Chairman of the Subcommittee, presiding. 

Present: Senators Lankford, Ernst, Heitkamp, Tester, and Peters. 

OPENING STATEMENT OF SENATOR LANKFORD 

Senator LANKFORD. Good morning, everyone. This is the sixth in 

a series of hearings and roundtable discussions in which the Subcommittee continues to examine the issues and solutions surrounding the regulatory state. Today we will hear from witnesses 

representing the U.S. Department of Agriculture (USDA), the U.S. 

Department of Labor (DOL), the U.S. Department of the Interior 

(DOI), and the Environmental Protection Agency (EPA) about their 

agencies’ retrospective review programs: their progress in reviewing existing regulations, the challenges they have encountered, 

their next steps, and where do we go from here? 

Every President since President Carter has urged agencies to initiate a retrospective review or ‘‘look-back’’ of their existing regulations. In 2011, President Obama issued Executive Order (EO) 

13563. Executive Order 13563 directs agencies to develop and submit to the Office of Management and Budget (OMBs) Office of Information and Regulatory Affairs (OIRA) a plan for periodic review 

of existing significant regulations to determine whether they 

should be modified, streamlined, expanded, or repealed. In 2012, 

Executive Order 13610 urged agencies to take action to institutionalize regular assessment of significant regulations. However, 

experts have questioned how rigorous or effective these efforts have 

been. 

Retrospective review of regulations is important. Changing circumstances and technological improvements may render some regulations outdated and ineffective. Initial agency estimates of potential costs and benefits of an action can prove incorrect. Therefore, 

we must ensure that agencies undertake retrospective reviews of 

current regulations so that we know they continue to serve the 
2 

American people and consistently reflect the least burdensome option to achieve their desired result. 

Because retrospective review of regulations is so important, in 

July, Ranking Member Heitkamp and myself proposed legislation 

to ensure that agencies plan for retrospective reviews from the outset. Senate bill 1817, The Smarter Regulations through Advance 

Planning and Review Act, requires agencies promulgating major 

rules to commit to a timeframe to review the regulation, a plan for 

that review, and the information they will collect to facilitate that 

review. 

This is just one of the bipartisan common-sense proposals that 

Senator Heitkamp and I proposed in July to improve the regulatory 

process and make it more accountable to the American people. All 

three proposals recently passed through Committee with wide support. 

Although we hope to strengthen retrospective reviews in the future, today we are here to discuss the current retrospective review 

effort and the progress agencies have made. We look forward to 

hearing from agency officials about their experiences and what else 

we can do to help facilitate these very important reviews. I appreciate our witnesses’ written statements and their oral testimony 

that is coming in just a moment. 

With that, I recognize Senator Heitkamp for her opening statement. 

OPENING STATEMENT OF SENATOR HEITKAMP 

Senator HEITKAMP. Thank you, Chairman Lankford, and thanks 

to all the witnesses. Sorry I did not get a chance to greet you earlier. We promise we are the nice Committee, me and Lankford. We 

just want you to know, because he told me this is your first time 

testifying in Congress, and so you will find out. Redheads are nicer 

as a group of people in general. [Laughter.] 

I want to thank the chairman for organizing the hearing today 

and giving us the opportunity to look more closely at a very important aspect of our regulatory process: retrospective review. I am 

very interested in the insights of our witnesses and how to make 

retrospective review a stronger part of the culture at all agencies. 

A key goal of mine today is to closely examine how retrospective 

review is working right now, what gets in the way of good retrospective review, and what are the best practices that agencies have 

learned. Congress and the agencies can work together to improve 

this process moving forward. 

That is why the HSGAC Committee recently passed our bill, the 

Smarter Regulations Act, which I sponsored and the Chairman cosponsored. This common-sense and bipartisan bill requires Federal 

agencies to include, as a part of every proposed and final major 

rule, a framework to do retrospective review of that regulation, including a timeline. Why that is also important is it gives the regulated and the public as a whole an opportunity to weigh in on what 

that retrospective review should be. 

If agencies do the tough thinking early on in the rulemaking 

process, that will ultimately save the agencies and, I believe, the 

Federal Government time and resources into the future. I see this 

as a logical idea which follows directly from the goals and ideas 
3 

about retrospective review which have been echoed by each administration since President Carter. 

In reading your submitted testimony in preparation of this hearing, I am glad to see your agencies consider retrospective review 

to be a critical part of your regulatory missions. By making retrospective review a part of your ordinary regulatory functions, we 

help ensure that we have the most efficient and effective regulatory 

system possible. 

I think we all agree, for our citizens to be able to work hard and 

provide for their families, for our Nation to be safe and secure, we 

need a responsive regulatory system that produces the highestquality regulations. Retrospective review can help us meet that 

goal by improving or deleting older regulations which no longer 

meet the objectives of this country. That is why I am excited for 

today’s hearing. I look forward to hearing from all of the witnesses, 

and I look forward to our continuing dialogue on this important 

regulatory issue. 

Thank you, Mr. Chairman. 

Senator LANKFORD. Absolutely. Thank you. At this time we will 

proceed with testimony from our witnesses. 

Ms. Elizabeth Klein is the current Associate Deputy Secretary at 

the Department of Interior where she serves as the principal adviser to the Deputy Secretary. Ms. Klein joined the Department in 

2010 and has also served as a counselor for the Deputy Secretary. 

Before joining the Interior Department, Ms. Klein was an attorney 

in private practice. She is a graduate of George Washington University and received her J.D. from American University. 

Mr. Christopher Zehren is the current Deputy Director of Program Analysis in the Office of Budget and Program Analysis at the 

Department of Agriculture, a position he has held since 2005. Mr. 

Zehren has over 31 years of experience in the office. Mr. Zehren 

holds a B.S. from the University of Wisconsin-Madison and a Master of Science degree in public policy analysis from the University 

of Rochester. 

Ms. Megan Uzzell is the current Associate Deputy Secretary of 

the Department of Labor where she leads departmental efforts on 

a range of regulatory policy and agency matters. From 2009 to 

2014 she served as Deputy Assistant Secretary and Acting Assistant Secretary for the Department of Labor Office of the Assistant 

Secretary for Policy. Prior to joining Labor, she served as Legislative Director to Congresswoman Hilda Solis, most recently as the 

Legislative Director. Ms. Uzzell holds a B.A. from Drake University 

and a Master’s degree in international affairs from George Washington. 

Mr. Bill Nickerson is currently serving as the Acting Director of 

the Office of Regulatory Policy and Management (ORPM) within 

the Office of Policy at EPA. This office supports the agency’s mission by participating in the development of EPA’s priority regulations and policy. Mr. Nickerson previously served as the Associate 

Office Director of ORPM. He is a graduate of the Pennsylvania 

State University and holds a Master of Science degree from Oxford 

University and Massachusetts Institute of Technology. 

I would like to thank all of you, but, Mr. Nickerson, would you 

please pass on my thanks to the Director as well. You were a late 
4 

1The prepared statement of Ms. Klein appears in the Appendix on page 39. 

fill-in. I know there were several folks at EPA that were originally 

tasked to do this, and some were not available and EPA did assign 

you to come. I know you were assigned late. This is not in your 

core function or what you do all the time. We do appreciate you 

coming, and please pass it on to your leadership as well. But I 

would like to thank all of our witnesses for your preparation today. 

It is the custom of this Subcommittee to swear in all witnesses 

that appear before us, so if you do not mind, I would like to ask 

all of you to stand and raise your right hand. Do you swear that 

the testimony you are about to give before this Committee is the 

truth, the whole truth, and nothing but the truth, so help you, 

God? 

Ms. KLEIN. I do. 

Mr. ZEHREN. I do. 

Ms. UZZELL. I do. 

Mr. NICKERSON. I do. 

Senator LANKFORD. Thank you. You may be seated. Let the 

record reflect all the witnesses have answered in the affirmative. 

We are using a timing system today. You will see that wonderful 

countdown clock in front of you. But each of your written testimonies will be a part of the permanent record. You may stray from 

that, if you choose to, and if your agency allows you to, I should 

say. But you are free to be able to begin the testimony, and, Ms. 

Klein, we will begin with you. If you will turn your microphone on, 

we will receive your testimony now. 

TESTIMONY OF ELIZABETH KLEIN,1 ASSOCIATE DEPUTY 

SECRETARY, U.S. DEPARTMENT OF THE INTERIOR 

Ms. KLEIN. Chairman Lankford, Ranking Member Heitkamp, 

and Members of the Subcommittee, thank you for the opportunity 

to appear before you today to discuss actions the Department of the 

Interior is taking to review and improve our existing regulations to 

ensure that they are efficient, functional, transparent, and less burdensome. 

The Department recognizes the importance of establishing and 

maintaining a culture of retrospective review. We have taken a 

number of steps to ensure that review takes place, while continuing 

to advance our mission of managing our natural resources to benefit all Americans, along with upholding Federal trust responsibilities to American Indians and Alaskan Natives. 

Following President Obama’s issuance of Executive Orders 13563 

and 13610, the Department developed a robust plan to ensure that 

our offices and bureaus with regulatory responsibilities are incorporating retrospective review into their annual regulatory planning 

processes. The Department continues to make progress in fulfilling 

our commitment to regulatory review, and my testimony will highlight some of the efforts we have undertaken to date. 

Executive Order 13563 requires agencies to develop plans to review their existing regulations. In response to this requirement, 

the Department published our Plan for Retrospective Regulatory 

Review in August 2011, which made this review an explicit and 

permanent part of our planning process. Each departmental bureau 
5 

and office is asked to identify at least one regulation for review 

each year. In doing so, they are directed to consider four things: 

whether a rule is obsolete due to changes in the law or practice; 

is duplicative or incompatible with other rules; has been reviewed 

in the last 10 years; or is considered burdensome or unnecessarily 

restrictive based upon public or internal comments. 

The Department also shares your goal, and that of the President, 

of increasing public interest and engagement in the process of improving our regulations. We recognize that stakeholders, nonprofit 

organizations, and the regulated public bring unique and valuable 

insight into our regulatory activities and may have information 

that is not readily available or apparent to the Department. This 

information can help us improve or more appropriately tailor our 

regulations to accomplish their intent. 

The Department is working to foster greater public participation 

and an open exchange of ideas by seeking public suggestions and 

input through Federal Register notices, dedicating space on our 

website, and by establishing an email address dedicated to hearing 

from the public day or night on these issues. 

In addition, many of the bureaus and offices within the Department interact with stakeholders every day through one-on-one conversations that take place in the normal course of doing business. 

Through this frequent interaction, stakeholders are able to share 

their ideas with our employees about how to make our regulations 

work better, and these conversations influence what rules have 

been put forward by the bureaus and offices for retrospective review. 

Since 2011, the Department has added 32 actions for retrospective review, as reported in our semiannual progress reports, and by 

the end of this week, we will have completed work on 14 of those 

regulatory actions. 

As a result of the regulatory review framework, we have removed 

outdated requirements, streamlined processes, and modernized how 

we work with the public to manage our many responsibilities. Our 

focus most recently has turned to regulations pertaining to Indian 

country in order to promote the trust relationship between Indian 

tribes and the Federal Government. 

For example, we recently completed work on a final rule revising 

regulations governing the process for Federal acknowledgment of 

Indian tribes. Our aim was to maintain the integrity of that process while trying to reduce the extraordinarily long amount of time 

the process has taken in the past. 

Today the Department is also announcing updating regulations 

for obtaining rights-of-way across Indian lands. This should increase tribal access to technology such as fiber optic lines that are 

vital to participation in a wired 21st Century economy and open 

the door to new economic development opportunities that will bolster tribal sovereignty and dignity. 

We are also announcing new rules to improve access to quality 

housing in Indian country, and we are reviewing and updating 

rules to protect the welfare of Indian children in custody proceedings. By reviewing these regulations, the Department aims to 

address the needs of Native communities, fulfill the Federal trust 
6 

1The prepared statement of Mr. Zehren appears in the Appendix on page 42. 

responsibility to American Indians and Alaskan Natives, and ensure our regulations are effective and efficient. 

In conclusion, the Department has an obligation to manage and 

protect America’s public lands, protect endangered species, encourage responsible development of our energy resources, preserve our 

national treasures for the enjoyment of this and future generations, 

fulfill trust responsibilities to American Indians and Native Alaskans, and develop and manage scarce water resources in the West. 

In short, we do a lot, and we must do all of it in a way that 

works for the American public. We understand that we need to regulate in a way that is smart, efficient, effective, and not more burdensome than necessary to meet our goals. We look forward to continuing our efforts to meet these challenges. 

Thank you for your time and attention. I would be happy to answer any questions you may have. 

Senator LANKFORD. Thank you. Mr. Zehren. 

TESTIMONY OF CHRISTOPHER ZEHREN,1 DEPUTY DIRECTOR, 

OFFICE OF BUDGET AND PROGRAM ANALYSIS, U.S. DEPARTMENT OF AGRICULTURE 

Mr. ZEHREN. Mr. Chairman, Ranking Member Heitkamp, and 

Members of the Subcommittee, I am pleased to have this opportunity to discuss the Department of Agriculture’s efforts to reduce 

regulatory and paperwork burdens and provide easier access to 

USDA programs. 

I am the Deputy Director for Program Analysis with the Office 

of Budget and Program Analysis. Our functions include coordinating the review of rulemaking subject to Executive Order 12866 

and ensuring that the Secretary of Agriculture has the information 

needed to establish regulatory priorities. 

As part of our responsibilities, we work with agencies to ensure 

regulations meet the analytical requirements of Executive Orders 

and OMB guidance governing regulatory development. 

In response to recent Executive Orders on retrospective review, 

USDA initiated a rigorous and transparent review of its regulations. As reported in our status reports, we focused on 22 priority 

initiatives, 9 of which have been completed. These initiatives have 

reduced regulatory burden by over 475,000 hours and have the potential to save millions of dollars annually. 

The most recent report, released by OMB on August 4, identifies 

two additional actions. One action will streamline application requirements for our Biorefinery Assistance Program and save approximately 33,000 hours per year. Another will simplify cost accounting in the Summer Food Service Program and will save an estimated 27,000 hours per year. 

As this suggests, USDA’s efforts to increase the effectiveness of 

its regulations are ongoing. Agencies continuously engage stakeholders to gather input on program operations and routinely update their regulations based on that input. Retrospective review 

initiatives undertaken by USDA are a natural outgrowth of this 

process. 
7 

1The prepared statement of Ms. Uzzell appears in the Appendix on page 45. 

Of critical importance to USDA is the periodic reauthorization of 

a majority of its programs. While not formal retrospective reviews, 

the development and implementation of these laws create numerous opportunities to reevaluate our current regulations and program operations to ensure we are best serving our customers. Since 

the Executive Orders became effective, USDA has implemented two 

major pieces of legislation: the Healthy, Hunger-Free Kids Act and 

the 2014 Farm Bill. 

The Healthy, Hunger-Free Kids Act enhanced access to meals 

and improved the nutritional quality of all foods served in schools. 

The farm bill consolidated conservation and business programs, reformed commodity and crop insurance programs, and created innovative opportunities for environmental conservation. These programs were the direct result of thoughtful input and feedback from 

all points of view and work by Congress to develop comprehensive 

reforms. 

To maximize stakeholder involvement in our retrospective review 

efforts, USDA utilized a variety of methods to engage the public. 

We published two Requests for Information in the Federal Register, 

requested comments through USDA’s Open Government website, 

highlighted the initiatives in the Unified Regulatory Agenda, and 

directed the agencies to engage directly with their stakeholders on 

retrospective review. 

Agencies conducted public outreach activities, including stakeholder meetings and constituent updates, and made good use of social media and Federal Register notices. 

Agencies also took the advantage of hundreds of stakeholder 

events held to implement the 2014 Farm Bill to solicit input on its 

reviews and initiatives. 

I would again like to thank the Committee for the opportunity 

to testify, and I ask that my written testimony be submitted for the 

record. And I look forward to answering any questions you may 

have. 

Senator LANKFORD. Thank you, Mr. Zehren. Ms. Uzzell. 

TESTIMONY OF MEGAN J. UZZELL,1 ASSOCIATE DEPUTY 

SECRETARY, U.S. DEPARTMENT OF LABOR 

Ms. UZZELL. Chairman Lankford, Ranking Member Heitkamp, 

Members of the Committee, I am pleased to testify today on the 

Department of Labor’s retrospective review record. 

The Department of Labor administers and enforces more than 

180 Federal laws. These cover many workplace activities for about 

10 million employers and more than 125 million workers. Our regulatory agenda is designed to bring opportunity, economic security, 

and safe workplaces to our Nation’s working families, job seekers, 

and retirees. 

We strive to develop regulations that are effective, efficient, and 

informed by and responsive to the concerns we hear from the regulated community. Since 2011, the Department has completed 14 

retrospective review initiatives. Just four of these alone are expected to save more than $3 billion over the next 5 years. Almost 
8 

20 percent of the Department’s regulatory agenda are retrospective 

review initiatives. 

Our reviews reflect several different but consistent policy goals. 

These include burden reduction—that is, the savings of hours or 

costs through the streamlining or elimination of requirements; the 

rescission of duplicative or unnecessary rules, such as the rescission of regulations for programs which have sunset; the alignment 

of existing departmental standards with industry standards; and 

the modernization of our programs’ regulatory structure. 

The Department has a comprehensive approach to solicit and receive input, which utilized both innovative and traditional tools, is 

designed to maximize input, and is audience accessible. This approach includes stakeholder engagement specific to retrospective 

review, such as our Web-based portal; regular engagement with 

stakeholders such as one-on-one discussions through the course of 

regular business; agency advisory committees, which are comprised 

of subject matter experts, Federal partners, and, importantly, our 

own employees. 

In 2011, the Department initiated the first of two extensive efforts to seek public engagement on retrospective review using technology. Nine hundred and forty online users responded to our Webbased platform and submitted 113 individual recommendations. 

These helped to form the basis of our Department’s first retrospective review plan. 

In 2011, it was one of our own Occupational Safety and Health 

Administration (OSHA) employees that suggested the mechanical 

power press standard was in need of revision. In 2014, we revised 

this rulemaking, finalized it, saving impacted parties more than 

610,000 burden hours annually. 

In 2012, OSHA also finalized a rule to ensure manufacturers do 

not have to produce multiple warning labels or safety data sheets 

for the different countries in which they conduct business. 

In 2015, the Department again turned to technology and employee engagement. We launched an online website called ‘‘Shaping 

Smarter Regulations’’ to engage stakeholders on retrospective review. We amplified the site through the Department’s electronic 

newsletter which reaches more than 450,000 subscribers, alerted 

stakeholders through other electronic means, and published a notice in the Federal Register. Seven hundred and 18 users registered, and 65 individual recommendations were submitted. 

We value the input of our employees, so we also proactively 

sought their views. Through our Idea Mill Challenge, DOL employees across the country were encouraged to identify regulations in 

need of revision. We were grateful to acknowledge those who provided input. 

The Department has already begun to take action on the suggestions that were received. For example, the Department announced 

it would undertake regulatory efforts to modernize its Permanent 

Labor Certification Program, a suggestion we received from both 

the regulated community and our employees. 

OSHA responded to suggestions regarding better protection of 

whistleblowers by linking its available information to other Federal 

partners. And the Office of Worker Compensation Programs 

(OWCP) responded to a suggestion that, in order to be more cost- 
9 

1The prepared statement of Mr. Nickerson appears in the Appendix on page 51. 

effective, the period of time durable medical equipment (DME) 

rentals are permissible should be extended. Our agencies are continuing to consider opportunities for additional review items on the 

input we have received. 

Finally, we are working to modernize our own regulatory processes to ensure retrospective review is part of our regular work. 

For example, we are including retrospective review language in certain significant proposed and final rules. We are challenging ourselves to think creatively about the use of technology and modernizing reporting requirements. Our agencies and their expert staff 

are working together to share best practices, including experience 

with retrospective review, so we can continue to learn, improve, 

and make our regulatory work and products more effective, efficient, and transparent. 

Mr. Chairman, Senator Heitkamp, I am proud of the Department’s robust record. Our efforts to make rulemaking effective, efficient, and transparent and the direction with which we are moving 

to incorporate retrospective review as part of our rulemaking culture. I will be happy to answer any questions you may have. 

Senator LANKFORD. Thank you. Mr. Nickerson. 

TESTIMONY OF BILL NICKERSON,1 ACTING DIRECTOR, OFFICE 

OF REGULATORY POLICY AND MANAGEMENT, OFFICE OF 

POLICY, U.S. ENVIRONMENTAL PROTECTION AGENCY 

Mr. NICKERSON. Good morning, Chairman Lankford, Ranking 

Member Heitkamp, and Members of the Subcommittee. I am Bill 

Nickerson, Acting Director of the Office of Regulatory Policy and 

Management in the Office of Policy at the Environmental Protection Agency. I am pleased to be here today to discuss EPA’s record 

on retrospective review. We have made great progress in this area 

over the past 4 years and look forward to doing even more in the 

future. 

Under Executive Order 13563, ‘‘Improving Regulation and Regulatory Review,’’ the EPA conducted extensive public outreach in 

2011 to seek input on whether and how to streamline, expand, or 

repeal existing regulations. This outreach included 20 public meetings as well as a number of Web-based dialogues. The agency also 

published two Federal Register notices to solicit public feedback on 

the agency’s plan for the review of existing regulations. It received 

more than 1,400 suggestions. Since 2011, the EPA has maintained 

an open docket for public feedback on its retrospective review plan 

and subsequent progress reports. 

The agency has conducted 50 retrospective reviews under the Executive Order. Twenty-two of these reviews have been concluded, 

resulting in the amendment of nine regulations. For example, one 

action amended the Spill Prevention, Control, and Countermeasure 

regulations. Another action amended regulations regarding control 

systems that capture harmful fuel vapors when you are filling your 

gas tank. Together these two actions will result in approximately 

$250 million per year in cost savings. The remaining reviews have 

required other actions, including the revision of agency guidance or 

evaluation criteria to affect how regulations are implemented. 
10 

Since 2011, EPA has continued to expand our retrospective review 

activities. In July, we added six new actions to our retrospective review plan. 

The EPA uses a thorough process for soliciting regulations for reviews. We ask for nominations from the public, agency staff members, and other Federal agencies. These nominations are referred 

to the appropriate agency office for consideration. Decisions on the 

review of regulations take into account consistency with statutory 

requirements, agency priorities, the principles of the Executive 

Order, and the availability of agency resources. 

Earlier this year, EPA redoubled its efforts to solicit public input 

on retrospective reviews. At a quarterly meeting with intergovernmental organizations, we reached out to State and local governments on potential opportunities to streamline existing processes 

and reduce regulatory burden. In March, EPA published a notice 

in the Federal Register seeking input on how it might promote retrospective review and regulatory modernization through advanced 

information technology (IT). The agency received 27 public comments on this topic and is currently in the process of reviewing 

these comments for potential future activities for retrospective review, streamlining, and/or transition to electronic reporting. 

The EPA’s effort to implement the Executive Order is not the 

sole pathway for the review of existing regulations. The agency has 

long conducted retrospective reviews of its actions. Regular assessment of past regulatory actions is integral to the EPA’s core mission and responsibilities and is often mandated by statute. Of the 

approximately 120 active actions listed in the EPA’s Spring 2015 

Regulatory Agenda, roughly 60 percent are reviews of existing regulations. 

The EPA is committed to protecting human health and the environment and is continually improving the processes to achieve 

these protections. The agency regularly engages stakeholders on 

our retrospective review efforts to identify opportunities for streamlining existing processes, improving our regulations, and increasing 

use of innovative tools that ease and facilitate compliance. The 

EPA assesses progress on existing retrospective review semiannually and provides this information to the public on our website. We 

maintain an open comment docket for any public feedback on our 

progress reports and are responsive to public comments received 

related to retrospective review. When writing new regulations, the 

EPA is committed to designing reporting requirements that help facilitate later evaluation of rule effectiveness in improving environmental quality. 

The EPA has a long history of thoughtfully examining our regulations to make sure they are meeting the needs of the Nation in 

an efficient and streamlined manner. Further, we have a robust 

record of working with States, tribes, local governments, the regulated community, and other stakeholders to ensure we coordinate 

our efforts where possible. 

Thank you for the opportunity to be here today. I look forward 

to answering any questions you may have. 

Chairman LANKFORD. Thank you. 

The Ranking Member and I are going to defer our questions, and 

I recognize Senator Peters for the first questions. 
11 

OPENING STATEMENT OF SENATOR PETERS 

Senator PETERS. Well, thank you, Mr. Chairman. It is just further evidence that this is the friendly Committee that you are willing to defer. I appreciate that, and I appreciate you holding this 

important hearing on this topic. Certainly I have been focused, as 

I think everybody on this Committee has been focused, on how we 

make the regulatory environment more efficient so that it works effectively. We understand that you all have very important core 

missions that you are focused on, and that we rely on your ability 

to execute that. But if there are ways that we can do it more effectively and efficiently, we want to be your partner in that. So we 

appreciate your input here today, and I think you will see more 

coming out of this Committee as well. 

A couple of issues. First, Mr. Nickerson, I want to turn to an 

issue that—there was something in your prepared testimony regarding spill response regulations, and whenever I hear spill response regulations, I am always reminded of a big issue in Michigan that occurred just 5 years ago, when we had a very large oil 

spill in West Michigan. Over 1 million gallons of tar sands oil 

spilled into the Kalamazoo River. It has now turned into the most 

expensive pipeline break in the history of this country, and an 

independent investigation concluded, and this is a quote, that 

‘‘weak Federal regulations’’ played a role in that spill of a million 

gallons. Right now the cost is over $1.2 billion. However, in the immediate aftermath of that spill, the cleanup was originally estimated to cost $5 million. That was the original cost estimate, $5 

million. It turned out to be $1.2 billion, so just a little off. And so 

that makes me concerned when you are looking at costs, when we 

are looking at cost-benefit analysis, which many folks talk about, 

that a regulation, a cost-benefit analysis thinking you could have 

a $5 million cleanup, could be seriously off base and could impact 

the ability for that regulation to really protect the Great Lakes watershed or other places around the country. 

I focus on this because we have another pipeline that is over 60 

years old in the Straits of Mackinac, which connects the Upper Peninsula to the Lower Peninsula. A recent University of Michigan 

study said that it is the absolute worst place to have an oil spill 

anywhere in the Great Lakes Basin because of the volume of water 

that goes through the Straits of Mackinac. In fact, the volume is 

equal to 10 times that of Niagara Falls. So to have a spill there 

would be catastrophic. 

And so we need to take a look at those regulations. I believe that 

we have to have certainly the retrospective look, but I am just curious. I know in your testimony you talked about the milk and milk 

producers’ savings that you were able to save through regulations. 

But are there any examples of the EPA using the retrospective review process to look at how we might strengthen regulations? Because perhaps some of those regulations may not be where they 

should be, as we saw in the case of the Kalamazoo River spill. Or 

there may also be best practices that the industry has come up 

with since the original regulation that allows us to take a look at 

how we can do things better. Is that ever part of the process? And 

can you foresee that as being something we should take a look at? 
12 

Mr. NICKERSON. Certainly that is a part of the process. The Executive Order does talk about the possibility of expanding, in addition to streamlining or reducing burden. I think the EPA has a 

host of actions that are on our plan, and 28 of them are related to 

rules. I think the emphasis has been to look for burden reduction 

and cost savings, but I would be happy to check in detail on whether any of them are looking to expand in some way. 

Senator PETERS. Well, I would appreciate working with you, because obviously we want to reduce and try to make things more efficient, as I mentioned in my opening comments. But there are instances where we may have to do a better job, and particularly 

given the incident we had in Michigan, I think we could have done 

better, and we need to be constantly reviewing it. Hopefully we are 

in that review process right now given the fact that we may have 

another potential problem that could arise in northern Michigan as 

well. 

And then my last question is that I have heard about how each 

of your agencies are reaching out to stakeholders and getting input. 

One thing that I am particularly focused on are small businesses. 

That is really the engine of growth for our country. I serve on the 

Small Business Committee. It is something we spend a great deal 

talking about. But I have not met a business owner who has the 

time or who has anybody on their staff to go through the Federal 

Register and look for ideas as to how we can possibly make these 

regulations work better and find creative ways to deal with it. So 

I am just curious. What sort of efforts are in place with each of 

your agencies to proactively engage small businesses in this? I have 

heard you talk about local governments and State agencies, but 

what about small business? How active is each of your agencies in 

reaching out to our small businesses and identifying where their 

challenges are? If we could start maybe with Ms. Klein. 

Ms. KLEIN. Sure, and thank you for the question. I think we 

have not at this point engaged specifically with the small business 

community, but it is a very interesting idea, and I think one that 

we want to take back and maybe work with you to find the right 

entities and organizations that we might work with. A lot of our 

focus, as I mentioned in my opening statement, has been on Indian 

country, and so we have engaged with organizations like the National Congress of American Indians (NCAI) and conducted listening sessions, and I know Federal Register notices—who reads 

those? But I think, we definitely need—that is an area of improvement for us, is to find more organizations and to proactively reach 

out to folks about suggestions that they might have for us. 

Mr. ZEHREN. One of the priorities for USDA is improving customer service and breaking down barriers to participation in our 

programs. A large number of USDA stakeholders are, in fact, small 

businesses, and we work every day with them to ensure they can 

enjoy the benefits of the programs we offer. 

Agencies are in constant communication with small businesses, 

whether it is like the rural development mission area that provides 

loans and funding to small businesses or regulatory agencies like 

the Food Safety and Inspection Service, which is in their firms 

every day meeting and discussing the issues that a small business 

may have in meeting the regulatory requirements of that agency. 
13 

USDA’s regulatory review effort focused on a couple of areas 

where we can break down those barriers. We are investing millions 

of dollars in IT improvements to make it easier for businesses to 

apply and gain access to our programs. We have also done some 

regulatory reform efforts in the meat and poultry inspection area 

that provides different capability, different ways for small businesses to engage with the agency and ensure that the products 

they produce are safe. 

Ms. UZZELL. Thank you for that question. I think we, too, believe 

that it is a very important issue to be able to ensure we are engaging with small businesses. We have an open door and open table 

and attempt to engage as best we can with employers of all sizes. 

And I know that as we develop our regulations, we strive to take 

into consideration the special needs that they may be facing as 

they come into compliance and attempt to provide additional compliance assistance where we can throughout all of our programs. 

We work closely with some of our other Federal partners, including the Small Business Administration (SBA) and the Office of Advocacy, doing listening sessions and roundtables, recognizing they 

may have greater access to some of the parties on our regular communication on a daily basis. But I think we would welcome any 

suggestions and additional advice that you may have to offer about 

how we can better engage the small business community as well. 

Mr. NICKERSON. EPA is in the practice of reaching out to small 

businesses regularly, and particularly in regards to the retrospective review. Over the past year, we invited some small business 

representatives to come to the EPA to talk about retrospective review, and we also participated in the small business roundtables 

that my colleague referred to that are organized by the SBA Office 

of Advocacy. So as a general matter, we are in contact with small 

businesses, and particularly over the last year in relation to this 

plan, we sought out their input. 

Senator LANKFORD. Thank you. 

Before we move on to Senator Ernst, let me just let the panel 

know the way we typically work, our process here. We typically 

have a first round of questions, somewhere around 5 minutes for 

each member. And then the second round of questions is more 

open-ended, and we will have more free-flowing conversation with 

all Members at the dais interacting with each other and with the 

witnesses. We expect to be done here definitely before 6 p.m. tonight. [Laughter.] 

So just expect a first round, then a second round of questions, 

as we go from there. Senator Ernst. 

OPENING STATEMENT OF SENATOR ERNST 

Senator ERNST. Thank you, Mr. Chairman, thank you, Ranking 

Member Heitkamp. 

Thank you very much for being on the panel today. This is very 

exciting. I do not know why the room is not packed, because this 

is a really exciting topic here, at least for those of us up here in 

the front of the room. 

Just here in recent months, I have had the great opportunity to 

work with Senator Hatch on his SCRUB Act, which is a powerful 

and I believe a fair approach to reducing unnecessary costs of regu-
14 

lations. This would establish a bipartisan and independent commission to take a very thorough yet objective look at a number of 

major regulations that are at least 15 years old. So these are regulations that were passed many years ago and that could be repealed because, one, they have met their original objective or intent 

and are no longer needed; or maybe even those that are now obsolete because of technology or market changes. So that is what we 

try and focus on, rules and regulations that are not needed any 

longer that really could go away. 

So I know that this is a top priority, the SCRUB Act is a top priority in the House, and I do hope that they are able to pass that 

bill soon over there. But, again, I want to thank all of you for joining us. I think this is a good discussion to be having. 

Mr. Nickerson, I would like to start with you first. Can you walk 

me through how the EPA measures or factors the cumulative burden on the public with its regulations? Can you walk me through 

how—we know that you take a look at regulations, but what is the 

actual process that you use within your agency? 

Mr. NICKERSON. I do not believe that we are looking to do that 

as part of our retrospective review efforts, although the agency is 

sensitive to that issue, particularly in circumstances where rules 

have come out that affect the same industry. I know that we have 

made efforts to get a better understanding of what those cumulative impacts are and, as the rules have been developed, have 

worked to make sure not only that there are not duplicative or 

overlapping requirements, but also to be aware that there are cumulative effects and we need to be cognizant of them as we develop—— 

Senator ERNST. OK. So that has not been part of the process in 

the past to take a look at all of these different regulations and see 

how they are impacting small businesses, maybe as Senator Peters 

stated? 

Mr. NICKERSON. Well, as each rule is developed, we assess its 

cost on the regulated community, including small businesses. And 

as additional rules come along, we are cognizant of the cumulative 

impact. But of the 50 actions that are identified in our plan at this 

point, I do not believe that any of them are specifically addressing 

this issue. 

Senator ERNST. OK, and I think that is pretty important because 

so many of these agencies out there, they do have a review process, 

but they are operating independently of each other. So maybe the 

EPA has regulations where there is a burden to our public, and the 

USDA may have similar regulations that also create—so we really 

need to know what is the cumulative burden. It seems our agencies 

operate in a vacuum when it comes to this. So that is something 

that I would encourage all of our agencies to take a look at because 

there is significant cost and impact to the public if we are operating in a vacuum. And maybe somebody else can address that situation also. Do you look at a cumulative burden when it comes to 

any particular rule or regulation out there, how it is maybe being 

addressed by other agencies? Or do you just focus on your own 

agency? 

Ms. KLEIN. Well, I can say that one of the primary functions of 

the Office of Information and Regulatory Affairs, for instance, is to 
15 

make sure that information is collected from other agencies when 

a particular rulemaking is going forward. So, for instance, if the Interior Department has a proposed rule that affects energy development and EPA might have similar requirements, they make sure 

that we are coordinating together and not enacting a rule that 

would impose duplicative requirements. And so that function of 

OIRA is really to help with that process. 

But as my colleague Mr. Nickerson said, I do not know that we 

have ever taken a look at the overall cumulative impact of every 

rule that is on the—— 

Senator ERNST. Right, because I will tell you that is an issue out 

in Smalltown, USA, when there are so many agencies that are 

placing burdens upon our public, and the costs to implement and 

become compliant sometimes can be overwhelming. It is not just 

EPA or USDA. It is so many other regulations that together really 

stymie our economy. So I think we have to be very careful about 

that. 

Just very briefly from all of you, please, how many regulations 

or rules have you repealed using a retrospective review? How many 

have you repealed just in the last 5 to 10 years? 

Mr. ZEHREN. Well, for USDA, of the nine completed actions, 

seven of those were regulations that either modified or improved 

the effectiveness of those regs. But I would just like to reiterate 

that for USDA we go through a periodic reauthorization of a vast 

majority of our programs through the Farm Bill and child nutrition 

rules, and that gives us an opportunity every 5 years to really take 

a hard look at what is working, what is not working, and the Farm 

Bill repealed numerous programs that were found to be ineffective 

and not achieving the desired goals. It also made reforms in the 

business programs and the conservation programs by saying, hey, 

we have too many of these, let us consolidate them, let us get focused on what is really working in those programs. And there were 

some really innovative changes that were made in those bills to improve our performance in those areas. 

Senator ERNST. Thank you, USDA, for doing that. 

How about some of the other agencies? If you would, Ms. Klein. 

Ms. KLEIN. Sure. So the items that we have identified for retrospective review, the vast majority that have been completed to date 

have also amended existing regulations to improve them. I do not 

know that we have repealed any, but the vast majority of the feedback we have received that led to identifying those particular regulations were asking for improvements and not necessarily repealing. So, for instance, one of the suggestions we got was on falconry 

and the need to get a Federal permit for falconry activities, and we 

eliminated that need if a State or Indian permit was already in 

place. So it did not as much repeal that particular rule, but it improved it so that if—it eliminated the requirement to get a Federal 

permit. 

Senator ERNST. OK. Just very briefly. I am sorry. Yes, go ahead. 

Ms. UZZELL. Sure. At the Department of Labor, we have completed 14 retrospective review items. Those are a mixture of repealing regulations that may have stood up programs which have sunset and modernizations or improvements made to other standards. 

So, for example, the feedback that we heard for our mechanical 
16 

power press rule was not that the rule itself needed to be repealed, 

but that a recordkeeping and reporting requirement, and it was 

outdated and not useful. So we went through the regulatory process to rescind that particular provision of the underlying standard, 

and in the end we have saved over 600,000 burden hours annually 

from making that change. The underlying standard needed to ensure worker safety is still in place, but that recordkeeping and reporting requirement, which was the burden on the employer, has 

been removed. 

Senator ERNST. OK. Mr. Nickerson. 

Mr. NICKERSON. Similarly, 28 of our 50 actions on our plan are 

related to rules, and 9 of those have been completed. The focus 

there has been on streamlining or eliminating redundant requirements. One example I mentioned in my opening statement was on 

onboard vapor recovery when you are filling up your car with gasoline, and historically those controls had been at the pump, but now 

they are built in onboard the car itself, so we eliminated that duplicative requirement as one of the actions that is on our plan. 

Senator ERNST. Very good. I think those are some great examples 

on what can be done. Oftentimes what we have seen—and the 

American Action Forum recently released a study that reviewed all 

of the agencies, and they found that when they did retrospective 

reviews, often they were expanding rules and regulations, and it 

added up to an additional $3 billion in costs to the American taxpayer. So if we can streamline and do a better job, that is wonderful, but we have to remember that cumulative burden, and rather 

than expanding, we also need to make sure that we are getting rid 

of those rules and regulations that do not make sense. 

So thank you very much for the extra time, Mr. Chairman. 

Senator LANKFORD. Senator Heitkamp. 

Senator HEITKAMP. Thank you, Mr. Chairman. 

Just to build on what Senator Ernst was talking about, one of 

the issues that I have raised over and over and over again here is 

that we sit thinking that only the Federal Government actually 

regulates or passes laws, and there are State and local codes and 

ordinances, and there are State laws and State regulations. And 

frequently those regulations may duplicate what you are attempting to do. They may, in fact, conflict with what you are attempting 

to do. And as part of this retrospective review, one of the questions 

I have is: Have any of your agencies looked at State regulation, 

looked at local regulation or tribal regulation and ordinances to determine whether, in fact, we are keeping on the burden and finding 

inconsistencies in regulation? I will give it to anybody who wants 

to take it. I am looking at you, EPA. 

Mr. NICKERSON. Then I guess I will take it. I think certainly we 

are in regular communications with States particularly. In many 

EPA programs, they are actually our co-regulator, so we have a 

very close working relationship with them, in addition to regularly 

meeting with not only States but also the Conference of Mayors or 

the Association of Counties and other groups that represent State 

and local governments to—— 

Senator HEITKAMP. I think the Toxic Substance Control Act 

(TSCA) would be a great example there where regulation in some 

States would be either more stringent than what you provide and 
17 

so complying with both sets of regulations may not actually advance public health. It may only create additional burden. So I do 

not want to get into individual regulations. I just want to at least 

raise this issue. And certainly for the Department of Labor, many 

of the—not to pick on the Department of Labor, but many of the 

burdens that we hear frequently are reporting burdens from the 

employer standpoint, whether it is wage and hour things, whether 

it is, in fact, safety issues, whether it is reports that need to be 

filed regarding salary payments. And so a lot of those may, in fact, 

be inconsistent with what is State regulation. Have you ever at the 

Department of Labor looked at State regulation in conjunction with 

a retrospective review? 

Ms. UZZELL. Thank you for that question, and I think we would 

agree on the importance of ensuring that we are engaging the 

broad community, including our State regulators. To the best of my 

knowledge, we have not done a cumulative survey State by State 

of the regulations, and I would be concerned if we did it, it would 

be outdated potentially a month later. But that said, I think if 

there are particular examples of burden that you are hearing with 

regard to the reporting requirements, we would love to hear that 

as well, because I think one of the areas that we are pushing our 

agencies to think more creatively about is how to take advantage 

of technological advances, minimize reporting and burden requirements, think a little more out of the box, ask questions about is the 

data necessary to receive on X time schedule. 

Senator HEITKAMP. Yes, let me give you an example. DavisBacon, you guys take the reports on Davis-Bacon wages. So I have 

a contractor, someone who is part of a Federal contract. What happens to him is the project is stalled out, right? And they are just 

waiting for additional funding or they are waiting for additional 

permits, and every week—I think you require a reporting every 

week—he is filing a report saying nothing has changed. 

Now, I think that is kind of silly, weekly reporting on your wages 

when you are not paying any wages, but the project is ongoing. 

There is a great example, it seems to me, of recordkeeping where 

people are willing to give you the data, but, to require it when 

nothing has changed and the project is not going forward does not 

seem to be a very effective use. 

I just raise that as a—‘‘for instance.’’ There is a ‘‘for instance.’’ 

I think we cannot think about this in a vacuum. We cannot look 

at what we do in Washington, DC, and think that that is the entire 

universe of how we regulate industries and how we protect public 

safety and health. And so I just want to put this on the table. 

You all have come up with some pretty good stories of savings, 

time savings, and we are grateful for that. But I think we need to 

quantify those. We need to make sure that we maybe have a second pair of eyes. And so this Committee not only advanced this 

idea, but is currently considering in the full Committee a provision 

which would create a commission, not just, this Executive Order 

but actually a commission that would advance, kind of review, a 

retrospective review, get a better handle maybe on what Senator 

Ernst is talking about, which is across agencies taking a look at it. 

What would be your opinion of a review panel established for 

analysis on retrospective review? We will start with you, Ms. Klein. 
18 

Ms. KLEIN. Well, thank you for that question. I think that is a 

really interesting idea, and I think we would welcome outside expertise on how to better quantify the relative costs and benefits, 

the methodologies that would best be used to do that kind of analysis. Obviously, a lot of what we do is subject to anecdotal evidence 

and rhetoric about the relative costs and benefits, about those regulations. And so I think having an outside commission that would 

provide us with expertise is an interesting idea and one we would 

welcome working with you on and how best to move forward. 

Senator HEITKAMP. What about USDA? 

Mr. ZEHREN. Well, I would just say that is a policy question that 

is currently under review at USDA about the particular proposal, 

but I just want to reiterate that one of the foundations of our regulatory review process is robust and constant stakeholder involvement. USDA has a whole series of advisory committees. We have 

a whole series of technical industry boards. We have constant communications with our industry where we get this feedback, where 

we get stakeholder involvement and input on our practices, on data 

availability, that contribute to ensuring that our rules are the most 

effective and efficient. I think USDA has been developing—— 

Senator HEITKAMP. And we certainly would not want to replace 

any of that. We want to take a look at kind of a broader—maybe 

a mile-high view as opposed to getting down in the weeds so that 

we can look at the whole regulatory environment. 

Department of Labor? 

Ms. UZZELL. Thank you, and I share the view that that is an interesting idea for consideration. At the Department we also have 

a wide range of advisory councils and welcome the input from experts. So we would want to make sure that anything would be compatible with that and provide the flexibility that we would need to 

be able to look across all of our regulations. It also seems like that 

may be an appropriate question for OMB and OIRA that has the 

perspective across all of our agencies. 

Senator HEITKAMP. Thank you. 

Mr. NICKERSON. I think a key consideration for EPA would be to 

retain some flexibility in how the retrospective reviews are 

prioritized. The circumstances change and we get new ideas coming 

through the door. Some of those reviews might relate back to ongoing agency actions or be particularly timely. So in addition to being 

responsive to stakeholder feedback, retaining the discretion to 

prioritize the reviews has been a very useful and important thing 

for us. 

Senator HEITKAMP. Thank you for your insightful comments. I 

am sure as we open this up we will get into further dialogue about 

this idea. 

Senator LANKFORD. Yes, let us do that. Let me bounce a couple 

of different questions just to set the stage for some of the conversation as well. 

Do any of you know how many rules your agency has total on 

the books? We are not going to get into guidance. I would say that 

Senator Heitkamp and I have strong opinions about the guidance 

side of things. But let us talk about just the rules that are listed 

as rules. Does anyone know how many you have in your agency? 

Ms. KLEIN. I do not know the answer to that question. 
19 

Mr. ZEHREN. I do not know. It would be looking at Code of Federal Regulations. I used to be able to keep them on my bookshelf, 

but now it is all electronic, so you cannot quite get the visual. 

Senator LANKFORD. Now you have to have a larger bookshelf. 

That is part of the problem as well. 

Ms. UZZELL. I do not have a number to provide you. 

Senator LANKFORD. OK. Mr. Nickerson. 

Mr. NICKERSON. I cannot provide a number at this time. 

Senator LANKFORD. OK. It is not trying to be a ‘‘gotcha’’ question. 

It is a lot. The only one that I actually pulled on it was Labor. 

Bless you for that. Sorry. It is 676 rules, the number that I pulled 

on that. And the reason I tried to pull it is to get a perspective because when you talk about reviewing 14 of 676, it begs the question 

of how do you select it, because you are all going through filters. 

All of you described a filtering process, talking to staff, electronic 

methods of actually getting input into it, town hall meetings, interacting with people, Federal Register announcements—all of those 

things. Secretary Perez and I talked at length about Federal Register announcements and such. It was months ago. 

The challenge is, if you have 676 rules and 14 of them have gone 

through the review process over the last several years, to go 

through the rules that are out there will take approximately 125 

years or so. So, obviously, the goal is not to review every one every 

time, but, Ms. Klein, you mentioned I think at one point you said 

it was the goal to try to get at least one new one a year, to be able 

to get it out there and to be able to get it going. That was the minimum standard. The challenge is, if there is only going to be one 

to five to 10 that happen in a year, it is extremely important there 

is a good filtering process to know which ones are chosen, because 

that means there are many that do need to be addressed that are 

not. 

So my question is—I know there was this large gathering filter 

on it. I want to ask about the final decision phase. In your agencies, how is the final decision made? You have all of this data that 

has been gathered from town hall meetings, from electronics, from 

conversations in the agency. How is the final decision made in your 

agency on which regulation will actually go through the laborious 

process of retrospective review? I can start in whatever order. Ms. 

Klein, you can take that first if you would like to. 

Ms. KLEIN. Sure. Thank you for that. We collect information from 

each of our bureaus and offices about what they want to put forward for retrospective review, and it does go through a process 

where our Office of Executive Secretariat, which largely helps— 

they are like the traffic cops of regulations within our agency and 

help move the papers around, and they bring those forward to the 

Deputy Secretary’s office and the Secretary’s office. And then we 

engage in a process with OIRA to determine what is identified. 

I have always felt that we identify things for retrospective review, but there are a number of actions that we might be engaged 

in that are not identified as retrospective review but really when 

you look at them could be identified in that way. But our bureaus 

and our staff—part of our challenge with retrospective review is 

really getting people to think about it in their day-to-day business 

and really tell a better story about what they are doing in their 
20 

day-to-day work, and that what they are doing, improving and 

modernizing our regulations is part of retrospective review. And we 

do not always do a very good job of—— 

Senator LANKFORD. It should become all that. Just a clarification. Secretary, Deputy Secretary, and OIRA, when the final decision is made, that is the conversation point. Once all the data is 

there, collected, and go through a process. 

Ms. KLEIN. Yes. 

Senator LANKFORD. Is it a series of meetings? A single meeting? 

You do not have to give me the details of all of it. I am just trying 

to get a feel for that final decision once it gets made. 

Ms. KLEIN. Well, we have a semiannual reporting requirement to 

OIRA, so we provide reports twice a year. And so those meetings 

happen throughout, where a regulation might come up and we are 

alerted to it, we actually meet with the Office of Executive Secretariat every day. And so it happens during the course of conversations. I cannot say that it is—how many meetings. 

Senator LANKFORD. OK. It is an ongoing process. 

Ms. KLEIN. Ongoing. 

Senator LANKFORD. All right. Thank you. Mr. Zehren. 

Mr. ZEHREN. Well, at USDA the No. 1 priority is implementing 

the Farm Bill, since 2014, that has been our No. 1 focus: get that 

bill implemented rapidly and effectively. And as the Secretary testified, we have pretty much done that. We are nearing the end of 

that implementation phase. 

For other actions—— 

Senator LANKFORD. You have to hurry and implement it before 

Congress changes it midstream. [Laughter.] 

Mr. ZEHREN. Well, that is rigorous oversight. But the Department every year has a top-to-bottom regulatory review of the regs 

that the agencies are proposing to do. We do that twice a year, consistent with the publication of the Regulatory Agenda. The number 

of criteria—— 

Senator LANKFORD. Who sets the Regulatory Agenda? How does 

that—— 

Mr. ZEHREN. USDA’s strategy is to have robust senior-level involvement, so it is managed out of the Office of the Secretary. So 

the Office of the Secretary will put out a call for what are the key 

regulations you want to accomplish. 

Senator LANKFORD. Go ahead. 

Senator HEITKAMP. A call to whom? 

Mr. ZEHREN. To the mission areas and then to the agencies, and 

then we identify, then they respond what their regulatory ambitions are based on their involvement with their stakeholders and 

what their legislative requirements are in that. So we review that 

twice a year, and we come up—as part of that process, it is determining what the regulatory priorities are for the Department. 

Senator LANKFORD. OK. That includes what will be reviewed. So 

that is setting the Regulatory Agenda for new regulations and examination, but it also includes the reviews in that. 

Mr. ZEHREN. Of old regulations as well. 

Senator LANKFORD. OK. 
21 

Mr. ZEHREN. That is presented to the Office of Management and 

Budget, and we review that with them to determine if this is consistent with the administration priority. 

Senator LANKFORD. Is OIRA involved in that as well? 

Mr. ZEHREN. Yes. 

Senator LANKFORD. Or does this go straight to OMB? 

Mr. ZEHREN. It goes to OIRA. 

Senator LANKFORD. OK. Got it. 

Mr. ZEHREN. And we meet regularly with them to establish what 

the regulatory priorities of the Department should be to be consistent with administration guidelines and priorities. 

Senator LANKFORD. OK. Then the final decision, let us say you 

have 50 things in the bucket at that point, and you determine we 

have only got the bandwidth to be able to do five of these. Where 

is that final decision made? 

Mr. ZEHREN. With the Secretary of Agriculture. 

Senator LANKFORD. OK. Fair enough. Thank you. Ms. Uzzell. 

Ms. UZZELL. So at the Department of Labor, we take great care 

to ensure that we are having robust, ongoing conversations with 

our agency heads, our Deputy Secretary, and our Secretary about 

the regulatory actions of the Department. We do not separate out 

in those discussions retrospective review from non-retrospective review regulations because the workload to develop those initiatives 

comes from the same pool of staff. 

Senator LANKFORD. Which is how many staff? Help me understand the context of that. 

Ms. UZZELL. There are regulatory experts and leads in each of 

our enforcement agencies or our regulating agencies. So I cannot 

give you a number of how many people work on regulations in each 

one of our agencies, but that each agency within the Department 

of Labor has a head of standards or regulatory division, and then 

they have—— 

Senator LANKFORD. They are both promulgating the new and 

working through that and also reviewing the old. 

Ms. UZZELL. Yes, because the expertise that is needed to do that 

is very similar in nature. 

Senator LANKFORD. Sure. 

Ms. UZZELL. So you are drawing from the same talent pool. Our 

regulatory leads in each of our agencies compose a Regulatory 

Council so that across our Department, our regulatory experts are 

working with one another constantly to share best practices, and 

that is something we coordinate through our Office of Policy, which 

is a very helpful coordinating function. We have ongoing dialogue 

between our agency heads and the Office of the Secretary about 

what the priorities are, what they should be, what information the 

Secretary and the Deputy Secretary are hearing from stakeholders, 

what our Office of Public Engagement is hearing from stakeholders, what the agency heads are hearing from stakeholders and 

their staff. 

And so when I say the Department of Labor really emphasizes 

the input that we are getting from our employees, it is because in 

many instances it is our employees across the country who are engaging front-line with the stakeholders, and they know now that 
22 

they have a feedback loop, a way they can share what they are 

hearing back to their agency heads. 

So our agency heads, working through their regulatory experts, 

will develop priorities, and those priorities have to be informed by 

not only what resources they have available, but what is statutorily 

required, what is court-mandated, and I think that has to drive a 

lot of our decisionmaking. You balance that against the list of priorities for the Department, the priorities for the Secretary, the priorities for the Administration. And in that, constantly included in 

that is how are we addressing what may already be out there. How 

are we taking advantage of the commitment and driving forward 

the commitment to retrospective review? 

So it is not a separate conversation that is had. It is an integral 

part of the conversation. That is one of the things we are doing to 

drive the culture. 

Senator LANKFORD. So the final decision is made where and how? 

All of this is gathered, all this input. 

Ms. UZZELL. All of it is gathered. All of the input is available. 

Final decisions inside at the Department lie with the Office of the 

Secretary in partnership with the agency heads. That is transmitted to OIRA and OMB, and we have robust conversations with 

them to ensure that we are not conflicting with the work that the 

other agencies are doing. 

Senator LANKFORD. OK. Thank you. Mr. Nickerson. 

Mr. NICKERSON. I think one thing I want to emphasize is that 

a lot of EPA’s rules are on a regular schedule for review based 

on—— 

Senator LANKFORD. Right. Yours is a little bit different, obviously. They are statutorily required. 

Mr. NICKERSON. Right. 

Senator LANKFORD. And that is part of the reason that we wanted EPA to be here, because you have lived in a world where there 

is a requirement to do reviews in certain cycles. 

Mr. NICKERSON. So in most cases, those are not called out as 

part of our plan. So let me talk specifically to the plan. Once we 

get all of the feedback from our stakeholders and from within the 

agency and from other Federal agencies, that collection of suggestions is given to the appropriate programmatic office at EPA for 

input by their own experts, and then that is considered in addition 

to the agency’s priorities, the principles of the Executive Order, and 

the availability of resources to prioritize which things would be 

part of the retrospective review. 

Senator LANKFORD. So let me ask a process question, because 

that is a great issue that all agencies have, is the availability of 

resources. You are dealing with both manpower and dollars to be 

able to do it in the investment. When you have to make the decision—I guess the concern that I have, and I want to put Senator 

Heitkamp in this as well—is that at some point an agency says this 

really needs to be reviewed, and I know it is costly on the economy, 

but it is really expensive to review this particular one, and so we 

will wait to review that one because it is costly on us, knowing that 

it is an issue that needs to be addressed, because your employees 

are all screaming at you, ‘‘Hey, I get this on the phone all the time, 

people are sick of this.’’ 
23 

How do you balance the two of those where it is we are tough 

on dollars to be able to do it but we know this has a negative effect, 

making a decision we can only do five, best-case scenario we would 

really do 15, but these other 10 we do not have the dollars for? 

Mr. NICKERSON. It is true in our case as well that many of the 

staff who are doing the work on retrospective review are also doing 

new regulations that we are obligated for various reasons to undertake. I think that balancing takes place initially within the program office, but eventually up at the agency senior leadership. And 

then those final suggestions are also discussed with OIRA, as some 

of my panel members have mentioned. 

Senator LANKFORD. OK. So senior leadership has to make the decision where they are going to invest budget dollars and how that 

is going to work at that point. 

Mr. NICKERSON. That is right. 

Senator LANKFORD. OK. That is totally different off the subject, 

but you might want to pass on the Renewable Fuel Standard is 

still hanging out there. That is off-subject. That is for free. You can 

just pass that on. We will not bring it up. 

Let me ask one question, Ms. Klein, you brought up as well, and 

you can jump in at any time here, Senator Heitkamp. One of the 

things that you mentioned was the right-of-way on Indian land 

that you cited. That is one of the areas that we had pulled on before, as you had referenced. That is one that is a recent one. It has 

been redone. That was promulgated in 1968. As far as we can tell, 

this was the first review of that since 1968. Since I was born in 

1968, I can tell you, I know exactly how long ago that was. That 

is awhile to wait on a regulation. Why did that sit out there for 

47 years? And what spurred it now? Right-of-way issues have been 

around for a long time. We obviously have telephone and power 

lines and everything else. In Indian country, this has been an issue 

for a while. What brought this to the top? And what can we learn 

from that? 

Ms. KLEIN. Thank you. I am not sure I can speak to why it has 

taken so long—— 

Senator LANKFORD. Yes, you do not have to take the blame for 

the previous 40 years. I am just trying to figure out what brought 

it to the top now. 

Ms. KLEIN. Certainly between 1968 and 1975 I cannot speak to. 

But what spurred it on was really the Administration and the Secretary’s commitment to improve how we are regulating Indian 

country. We heard loud and clear and in terms of the intersection 

between people screaming at us and telling us that things are not 

working and what our core mission and priorities are, improving 

regulations for Indian country is that intersection. 

Senator LANKFORD. Right, but I am trying to see what brought 

it up and how this gets addressed and what we can learn from it. 

Was it pure volume? Was it the number of people that were expressing it? Was it the length of time? Because what we are trying 

to determine is some of these things take a long time for review, 

and we are going to talk about the mechanical press issue. That 

was a good success actually to be able to review as well with 

OSHA. But it is the same issue. It has taken awhile to be able to 

get there, and what we can kind of learn on this side of the dais, 
24 

I am trying to help the agencies in this to say things cannot sit out 

that we know have been a problem for this long. Does that make 

sense? I am looking for the triggering devices and things that we 

can learn from it to say this pushed it over the edge. 

Ms. KLEIN. Right, and as to the rights-of-way regulation in particular, we have had an emphasis on how can we provide Indian 

country with more power over their own lands, and so the rightsof-way regulation, like the HEARTH Act leasing regulations before 

that earlier in this Administration, the Housing Improvement Program rules that I also referred to, these are all part of a very concerted effort on our part to try and shift some of the responsibility 

and governance to tribes so that they can start governing what is 

happening on their own land. 

Senator LANKFORD. So there is a philosophical change within the 

leadership of Interior to say this is important to us, so the selection 

was made we need to address this based on that. 

Ms. KLEIN. Yes. 

Senator LANKFORD. Because like I said, it has been years that 

this has been an issue, but it was philosophically the top saying we 

have to redress this. 

Ms. KLEIN. I would suggest that there has been a philosophical 

change in how we approach Indian country. 

Senator LANKFORD. OK. Ms. Uzzell, let me ask you as well about 

the mechanical power press rule, because, again, that is one that 

has been talked about for quite a while the paperwork requirement 

on that. What brought that to the top to finally say this has to be 

addressed now? 

Ms. UZZELL. I think for us there was, including from the front 

office and the Office of the Secretary through the agency heads, 

truly an increased emphasis on trying to hear what our enforcement officials and our employees in the field were telling us. And 

in 2011, when we did a very robust engagement that involved and 

included our employees and that came back, there were questions 

raised with the agency about you are hearing this from the employees, is there something we can do? And I think that through that 

dialogue and through the emphasis on employee engagement and 

our robust efforts to drive a greater culture change within the Department and the increased emphasis on retrospective review, it 

became clear to us that that was something that there was not a 

reason to proceed with. 

Senator LANKFORD. OK. If a rule like this, when it was first promulgated, had a deadline to say at some point we have to review 

this again—I do not mean a deadline to go away, but I mean a 

deadline that at that spot we need to review it, and so there is this 

normal rotating calendar, would that have helped? The Department of Transportation, for instance, has that already. Every 10 

years, those rules have to come back up again, and someone has 

to look at it. So it cannot sit out there for 47 years or for a long 

time and say this has to rise to the top. EPA deals with that all 

the time. I can assure you, if EPA misses a deadline, there is a 

whole team of lawyers hovering around EPA ready to file suit on 

them to try to compel that. 

Is that a help or is that a hindrance to the agency to be able to 

have some sort of deadline sitting out there? 
25 

Ms. UZZELL. I am not certain that it is something that is going 

to be, if it is rigid, that it would be extremely helpful, and the only 

reason I say that is because, if it is a review every 10 years and 

if that is the standard that is assigned, and if the concerns do not 

arise in the year one through 10 and they arise in year 11 or year 

12, then you are going to be no more swift in addressing the issue 

or the concern that has arisen than you would be if there was no 

standard for review. So I think there are pros and there are cons 

to trying to set something that is rigid. 

I think we are trying to drive a culture change—but need the 

flexibility to be able to do that internally, and the flexibility to try 

to balance the resources, the resource concerns, the statutory mandates, the court-ordered regulations that we are required to—and 

we are just pushing retrospective review as a priority so it is on 

equal footing with the other priorities. 

Senator LANKFORD. And I agree and I think we agree on that. 

Retrospective review is one of those areas that you have to examine 

based on the cumulative process that is out there. Some regs that 

have been there for decades may have been very necessary decades 

ago but now technology has increased, State enforcement has increased, the industry has dramatically moved past that, and it is 

not as much of an issue, yet they are still seeing the paperwork requirements and burdens and measurement requirements and everything else. 

You mentioned a couple of times the cultural change. This is one 

of the things that if I get anything from people at home, it is not 

that they are opposed to government. I really do not get that, and 

I think there is a misnomer that people say—they call because they 

are mad and they do not want government. I just do not hear that. 

They want a government that they know is there to serve them. 

It is the attitude of the regulator, it is the attitude of the compliance person. 

I walked into a business not long ago that said to me directly, 

‘‘OSHA used to come, and when they came, they walked around the 

facility, and they said, ‘Hey, that needs to change, that needs to 

change,’ and they were extremely helpful. Now they walk in and 

say, ‘There is a fine for that, there is a fine for that, and there is 

a fine for that.’ ’’ The first time I have heard about it, and it seemed 

like there was a completely different issue. And with that particular person that walked through the door, the attitude was not 

to serve. The attitude was to fine. Now, is that every person at 

OSHA? No, I do not believe it is. But they immediately walked 

away saying, ‘‘My government is opposed to me rather than helpful 

to me.’’ 

Now, I do not hear that from Secretary Perez, but I would say 

that cultural issue is very important. Let me just run down a couple things that I have heard just recently on it. I talked to someone 

recently that turned in a form that was 73 pages long of zeroes. 

Page after page, they had to go in and fill in the blank with zero 

because they had nothing to report. 

I had another person in my State that did not turn in a form saying they had nothing to turn in. They faced a $1 million fine for 

not turning in a form saying they had nothing to turn in. 
26 

I have another business, completely different agency on it, that 

did not turn in a form, was in full compliance, but did not even 

know about the form, did not know it was needed, was in compliance if they had turned the form in, and they were fined $840,000 

for not turning in a form, though they were in compliance if the 

form was turned in, but simply the piece of paperwork, they are 

now facing all this arbitration and trying to go through this process 

to not have to pay an $840,000 fine. 

One of the folks I talked to in my State recently was so upset 

at the regulator and the person they were interacting with, asked 

a simple question: ‘‘I want to talk to your manager.’’ It was a simple, straightforward question. They were told, ‘‘No.’’ And they said, 

‘‘How do I get it?’’ And the response was: ‘‘Make a Freedom of Information Act (FOIA) request.’’ Which they did and it took 6 

months to get the name of the manager of this individual so they 

could contact the manager. That is not service. 

Now, again, this hearing is not about that, but it is part of the 

retrospective review process for agencies and for all the folks at 

this dais to know, we really do still work for the American people, 

and everything that we do dealing with safety and with health, all 

those things are to serve. And at the moment that our forms and 

our processes appear that the American people work for the Federal Government rather than the Federal Government works for 

the American people, it is on its head. 

And so part of our challenge is: How do we constantly go back 

and look at these things and have a regular process to make sure 

that we are not treating the American people like they work for the 

Federal Government when it is the reverse? 

So I think that is some of the passion—I do not mean to speak 

for both of us on it, but I think that is some of the passion—because, again, I do not hear people anti-government. They just want 

to know: How do I make this work more efficiently so I actually 

work for my employees and my family rather than having to turn 

in constant forms? 

Senator HEITKAMP. Well, and I think they are pro-common sense. 

I think most people can say, look, do we want safe food? Absolutely. 

Do we want to be able to track when there is an E. coli breakout? 

You bet. Do we want to make sure that we do not have human 

slavery and that people are getting paid what they are required to 

get paid under Federal law? You bet. Do we want the tribes to 

have access to systems and rights-of-way so that they cannot flare 

their important natural gas? Yes. 

So all of these regulations are critically important, or we would 

not be here. And many of the regulations that you all have promulgated we have mandated. I mean, that is the dirty little secret 

here, is that we blame the regulator, but a lot of what the regulation is is basically trying to be in compliance with our laws. 

I have an issue that I want to raise about resources, and, you 

guys have come up with some good examples, saving lots of money 

and lots of time by engaging in retrospective review, and maybe 

you are reaching for the low-hanging fruit. But if we go back and 

take a look at your examples and say with more resources we could 

actually save more money, we could actually do, kind of a Manhattan Project, for lack of a better example, for regulatory reform, for 
27 

regulatory review, and actually dig down, get it done, get it cleaned 

up, so that going forward—and the bill that we have introduced 

would require major rules going forward have a set of retrospective, kind of analysis that is subject to comment and finality with 

finalizing the rule. 

But it seems to me that you are hamstrung somewhat by the requirements of moving ahead with the regulatory responsibilities 

that you have to either adjust existing rules, in the case of the new 

Farm Bill, or to write new rules, in the case of new regulations or 

new laws passed by Congress. 

Just from your example—and it is kind of fun to have people who 

actually do this work, who go to work, and a lot of times we have 

your bosses here, and, they are all very bright and very enlightened. They do not do what you do every day. And so could you give 

me just an idea of if we were able to do a project like that where 

we really—both Congress and the Executive Branch, setting out 

some baselines, not ignoring the structures you already have, 

which you guys have been pretty clear that you have a robust 

group of stakeholders behind you who you participate with. But 

could you give me an idea of what more we could do in a shorter 

period of time with some additional resources and better collaboration with Congress? I will start with you, Elizabeth, if you do not 

mind. 

Ms. KLEIN. Sure. Thank you. Part of what we have done over the 

past couple of months is try and get better numbers on what kind 

of regulatory staff we have in each of our bureaus. It is actually 

quite small when I started to look at some of the numbers. We 

have folks who are doing double duty, so, their full-time job is not 

just writing regulations. But, when you look at a bureau like the 

Bureau of Land Management (BLM) that has probably 10 or so 

staff who are full-time on regulations—and that is an agency that 

is 10,000 people, and they are down to one economist. It is just not 

their function. They focus on petroleum engineers. They want to 

focus on inspection enforcement. They want to focus on making 

sure that energy is being developed safely and responsibly. 

And so it has been an ongoing issue with the Department that 

we do have regulations on the books that are over 30 years old and 

have not kept pace with current industry standards, and that is 

part of—— 

Senator HEITKAMP. So you would agree some additional resources and maybe a big kind of oversight project from the standpoint of Congress, not in the ‘‘I gotcha’’ range but ‘‘let us work together to improve this’’ could be helpful. 

Ms. KLEIN. Yes. I mean, we are sincere in saying that when folks 

are identifying areas of improvement and regulations where, there 

are 73 pages of a form that they do not need to be filling out, I 

mean, we want to hear that. And the staff that we have identified 

for retrospective review I think, like the rights-of-way regulations 

in Indian country, this is where our focus has been on the stuff 

that is really old and needs to be modernized. 

Senator LANKFORD. Before we move on, can I ask, that economist, is that the one economist that would do the cost-benefit as 

well for all of this? Would that be part of what they would be 
28 

tasked to do? You said in that particular area there is one person. 

Would they also do the cost-benefit for retrospective review? 

Ms. KLEIN. Yes, so a lot of our agencies do not have sort of a robust economics team to do the type of cost-benefit analysis that is 

required. We often contract that work out, and that has a number 

of risks associated with it, obviously. But we do not have a robust 

economics or regulatory staff. 

Senator LANKFORD. Thank you. I apologize for interrupting. 

Mr. ZEHREN. At USDA, obviously in this current budget environment, resources are an issue that have to be dealt with. Since 

2010, the Department’s budget has declined, is lower. We have an 

11-percent reduction in staff years across the board; in some of our 

larger agencies, it is even greater than that when you look at it. 

But the Department has stepped up and has a good record of retrospective review. As somebody indicated earlier, we are not trying 

to track every one of our rulemakings on the OMB report for retrospective review. These are highlighting the Department’s priorities 

for breaking down barriers and improving our working relationship 

with our stakeholders and our constituents that we are serving. 

But if you look at USDA, since January 1, 2004, we did 56 economically significant rules 44 of those were mandatory rules required by the Farm Bill and other legislation. Of the remaining 

economically significant rules, either they themselves were comprehensive reform to existing regulation, or they have been subject 

to a 610 review—— 

Senator HEITKAMP. I guess I am not asking you to kind of justify 

where you are. I have great affection for the work that you do, and 

I have great affection for your boss, the Secretary. I think he takes 

this stuff seriously, obviously, by the well-documented process that 

you go through. 

My question is: If we gave you more resources, could you do a 

better job in retrospective review if we had a process that looked 

across the board not just at USDA but said, OK, USDA is also 

interacting with State agencies, how could we improve that? Would 

that actually improve the process? 

Mr. ZEHREN. More resources would certainly benefit the overall 

performance of the Department. 

Senator HEITKAMP. The point that I am trying to make is that 

sometimes we are penny-wise and pound-foolish. A little bit of investment in this could save those regulated in the United States 

a whole lot of money if we actually got to it and did it in a way 

that was aggressive and targeted in terms of the biggest bang for 

the buck and did not get engaged necessarily in philosophical differences about interpretations. And you all represent some regulations that we could today have a long conversation about. We know 

that. But my point is: What are we doing that does not get the attention like a fiduciary rule or like, a flaring rule, a methane rule, 

or, WOTUS? Those are all high-profile rules. That is a public policy 

debate that we are having here. But there are rules that you implement every day that have an incredible impact, and that is why we 

opened up the portal, CutRedTape, so we could hear about those, 

not just the ones that people do not like because they have a philosophical difference or a policy difference, but those things that are 

easy to fix if we would just get to it. 
29 

So, at DOL, what do you guys think over there? 

Ms. UZZELL. I think resources are a constant challenge and it is 

a constant balance. It is a question for more at the Department 

than just myself as to whether or not additional resources would 

be able to be used in a specific way. I would have particular concerns about making sure we could access economists with the appropriate subject matter expertise to work on certain issues. That 

is a constant challenge, too. And for us, that is one of the reasons 

why we have a regs council inside of our Department, because we 

want to make sure that if we are tapping the expertise across our 

agencies and not just having people focus only on their own particular area. 

Separating the philosophical differences on regulations from 

areas where you could make meaningful improvements, like 

fillable, fileable forms or improving the technology, could be one 

area of fruitful discussion. If that is an area that people are complaining about, how burdensome is a form, well, is it electronically 

filed? But at the same time, the counter to that, when sometimes 

we do raise electronic filing, is I do not have access to the computer 

systems, I do not use a computer on a regular basis. 

So I raise that just because it is a constant balance of trying to 

match the interests, but I am certain that is a conversation we 

would be happy to continue. 

Senator HEITKAMP. Yes? 

Mr. NICKERSON. I think we have taken our retrospective review 

planning process and the actions that are on our plan very seriously. We have been adding them as they have come up, and we 

have gone along, and we are trying to continually make progress 

on the ones that are there. 

I would offer I guess two additional thoughts. One is the sorts 

of issues that have been raised here might be ones that are most 

easily spotted by the stakeholders that are affected. So from that 

standpoint, I think the stakeholder engagement process is a good 

and possibly very efficient way to raise some of these concerns back 

to the agencies. 

To your original question, I am sure that if we had more resources devoted to this, we could do more. 

Senator HEITKAMP. One of the concerns that we have is that you 

guys are doing it kind of in discrete ways, and as Senator 

Lankford’s questioning points out, you all have a different process, 

and you all look at different factors. And, what we are finding out 

is that the Administrator or the Secretary actually typically has 

final say in how this works at that very high level. 

But we have a role to play, too. I mean, we have mandated in 

Congress through legislation a lot of this rulemaking. We have a 

job and a responsibility for oversight, and there are some among 

us who would say just leave it to the agencies. But I think that we 

should play a role in prioritizing some of the retrospective review. 

I hope that what comes out of this is not a criticism of agencies 

but a collaboration with agencies and Congress, because if you say, 

look, we cannot change that rule, that rule may be burdensome, 

but you guys said to do it this way, then we have a chance to go 

back and really do our job, which is to change the laws that have 

created this problem. And so we should be working together. 
30 

And so I hope that you take back to your Secretaries or your Administrators that this is not ‘‘I gotcha’’ here. What we are trying 

to do is figure out how we can collaborate to make government 

more responsive to the people that Senator Lankford is talking 

about, the people who talk to me, and once again get people engaged in governing with us as opposed to having us govern against 

them. 

So, I really look forward to a lot of these conversations going forward. 

Senator LANKFORD. That would be great. 

Let me ask a question. I need somebody to prove me wrong on 

this. How about that? Because as I think through the process of 

how it filters up and how it works with the process and final decisionmaking, I think it lends toward a regulation being reviewed if 

it has maximum volume out there. So if it is a regulation that affects a lot of people, it quickly gets to the top because of just the 

sheer volume of people answering the phone. So it may have a lot 

of people affected, maybe big cost, maybe small cost, but it affects 

a lot of people. 

What happens if it is a large effect on a small number of people? 

There are fewer calls, there are fewer letters that are coming in, 

because it has not affected anyone, but it is still 40 years old, it 

is still out of date, it still has a process. How does that bubble up? 

And I guess prove to me that it is bubbling up, that when you have 

an out-of-date regulation in need of retrospective review, but it affects a relatively small group of people, it still has a shot of getting 

reviewed. Ms. Klein. 

Ms. KLEIN. Thank you. I think I would point to one of the earlier 

examples I brought up about falconry permits. I actually do not 

know any falconers, and I think it is a relatively small group of 

people. 

Senator LANKFORD. I would agree. 

Ms. KLEIN. But it was a regulation that it was clear needed improvement, and—— 

Senator LANKFORD. How long had it been in need of improvement? 

Ms. KLEIN. I actually do not have the details on when it was 

originally enacted, but I can get that for you. 

Senator LANKFORD. Let me ask the process. How did that work 

through, something that affects a relatively small number of people? Did it end up being an expensive review, time-consuming internally? Or did people look at it and say, to quote Senator 

Heitkamp, this one is common sense, this one should be a slamdunk, let us do a cursory look at this, let us talk to some people 

and make the change? 

Ms. KLEIN. I do not have the details on how long it took or the 

cost, but I think it was the latter. It was a common-sense change 

that could be made to the rules that was recommended to us back 

when we did the first wave of retrospective review and sought comments from the public about improvements that could be made. 

The Falconry Permit Program was one of the ones that came forward from a couple of different associations. 
31 

And so when we find opportunities like that, we want to take advantage of that, and if it is a relatively quick and easy change, we 

want to—— 

Senator LANKFORD. Is there a dual-track system that is needed 

here for individuals that it is a reg that is really a nuisance-type 

reg that is out there that has no purpose, if it is paperwork, or 

whatever it may be, or is redundant or is covered by States? Is 

there a faster process people can get in line? Because my fear is 

if it affects 5 million people and 5 million people are calling, that 

gets to the agency faster. 

Ms. KLEIN. Right. 

Senator LANKFORD. But the other reg may be just as out of date. 

Ms. KLEIN. I can say that for us, if folks bring us those suggestions, we will look at them just as much as we would from regs 

that more people are talking to us about. 

Senator LANKFORD. OK. That is great. I am just trying to figure 

out, is there a need to have a process? And we are not into building 

more and more systems, OK? Creating more bureaucracy does not 

help. I am trying to figure out how people get their voice heard 

when it is an obvious, common-sense issue and see if there is a system that—Ms. Uzzell, were you about to say something? 

Ms. UZZELL. I think just as Elizabeth was saying, inside our Department we do not weigh whether or not—we do not disadvantage 

a rule change that may impact a smaller number of people or may 

produce fewer benefits just because that is what it is. We have 

gone back to our agency heads, and we said here is the entirety of 

the list of the comments that we received. Let us sit down and 

have a conversation about all of them. Which ones can you do easily? Which ones are going to be more difficult? Let us prioritize 

them. Let us put them on multiple tracks. 

And so I do not think it is—for us, for example, I would point 

to the Office of Worker’s Compensation Programs, duration of durable medical equipment claim, not everyone is going to be impacted 

by an OWCP claim that OWCP would be addressing. But that did 

not mean that it was less of a priority for the Department to say 

this is something that makes sense, is cost-effective, more cost-effective if we make these claims eligible for a longer period of time 

rather than making them shorter and making people come back 

and refile the claim. 

Senator LANKFORD. How long does it take to do a retrospective 

review? Just give me a ball park. I know it is all over the map as 

far as based on the complexity of it. Give me inside-outside limits 

here. If it is something fairly straightforward and simple, it could 

take as little as how many months? 

Ms. UZZELL. The challenge to that question, sir, is that a retrospective review is no different than actually developing a regulation. So for us, you have to go through the full rulemaking process. 

You have to comply with 12866 regardless of whether it is a retrospective review or not a retrospective review. 

Senator LANKFORD. So once the reg is in place, you go through 

the process, so it is 2 years, small or large? 

Ms. UZZELL. I mean, I really do not want to speculate. I could 

go back and talk to my colleagues about how long it took to do 

something like the durable medical change. But it is—a retrospec-
32 

tive review is a rulemaking, and it takes the same process, and you 

have to comply with the same rules and regulations in the development of it, and it requires the resources of the same team of experts. 

Senator HEITKAMP. But I would point out, look at USDA. When 

did we pass the Farm Bill? It was February or March 2014? Yes, 

and it was signed by the President, and you are pretty much fully 

implemented right now with regulation. 

Mr. ZEHREN. That is correct. 

Senator HEITKAMP. And so, there is a process for not delaying. 

Two years on some of these rules it seems to me would be way outside what my expectation would be, given that they are common 

sense and people would not have a lot of criticism. I mean, you 

would not get comment other than, ‘‘Good for you,’’ right? 

Ms. UZZELL. Sure, and, the equivalent to USDA for the Department of Labor would be our Workforce Innovation and Opportunity 

Act (WIOA), which we are in the process of moving as expeditiously 

as possible to change and update the regulations in response to the 

bipartisan bill that Congress passed and gave us to implement. 

So I think that is a hefty rulemaking. There are ways that we 

can move things as quickly as possible, but they come at a cost potentially of other priorities. So just as USDA is focusing on the 

Farm Bill, the Department and our agency is focusing very much 

on that. But it may mean that something else is not going to be 

moving at that time. 

Senator LANKFORD. We are about to run out of time because they 

just called votes. 

Let me ask another extreme question. I have taken the one that 

is fairly common sense. USDA, in dealing with the School Lunch 

Program, I am sure your favorite topic. I cannot even imagine how 

many comments you all had on the School Lunch Program. I get 

tons of them. When I visit schools, which I do all the time, it is 

the No. 1 thing I hear from students and their parents. They sit 

down and say, ‘‘My child does not have enough food.’’ So I talk to 

folks. They talk about the baked goods. They talk about how it has 

this really tiny amount of cornmeal on the bottom of it and so they 

cannot provide bagels because of the rule. It is just on and on and 

on, the number of questions that come in on the School Lunch Program and the nutrition programs. I know it is fairly new. It is, 

what, 6 years old at this point. But how do you process all of the 

questions on it and say we have to do something on this and filter 

that down? 

Mr. ZEHREN. I would just like to say that that law is currently 

under review by the Congress, and it will be subject to reauthorization, hopefully enactment I think by the end of the summer. So it 

is another opportunity for USDA to review the effectiveness of 

rules where these rules are subject to routine Congressional oversight and reauthorization. A majority of the Farm Bill programs 

expire in 2018. So, our child nutrition programs are subject to reauthorization, and that discussion is happening now with Congress 

about how those questions should be addressed. 

Senator LANKFORD. How do you process that many comments? 

That was really my question, when they come in that fast, that 

many. 
33 

Mr. ZEHREN. The agencies have a number of tools available to 

address them, such as regulatory workshops, to take in electronically their comments and analyze those comments electronically. 

For Food and Nutrition Service (FNS), they have been working 

closely with groups across the country. They have held over 50 to 

60 meetings with organizations and States, who have an interest 

in this to identify those issues and then provide alternatives to it. 

So it is one of those aspects where you have to go back. It is just 

robust and constant stakeholder involvement and ensuring that we 

are developing programs that, address those needs. And they will 

be resurfaced as we go through this reauthorization. 

Senator HEITKAMP. Well, I just want to thank you. This has been 

very helpful as we kind of move forward with our ideas. I personally believe that there is some advantage to a collaboration between Congress looking at kind of a commission style retrospective 

review, trying to get some kind of normalization, because each one 

of you have described a process that is different within your agencies. So even though there may be broad policy guidelines, the process is different. There may be things that we think should be included, best practices that we have heard here that we think would 

benefit other agencies. You may not have enough resources to do 

those. And so, I look forward to an ongoing discussion about this 

and trying to figure out what is the low-hanging fruit that once we 

are able to do it, we can say we are listening to the American public about these burdens, that we are participating together, we are 

the adults in the room, they are our bosses, and we are going to 

respond to these concerns without jeopardizing safety for food or 

without jeopardizing the quality of our air, without jeopardizing 

safe workplaces, all the major missions that you have. 

So thank you, Mr. Chairman. 

Senator LANKFORD. Thank you, and thank you as well. Let me 

reiterate—I agree with that comment on that, and the goal of it is 

I think the American people are not opposed to a regulatory 

scheme. They really do want clean food, clean air, clean water. 

They get that. They want a safe work environment. But they want 

to make sure it actually makes sense. People that fill out forms all 

day and cannot figure out why they are filling these forms out, and 

it is not a fulfilling job for them. It is a job for them, and they want 

to be able to be engaged in something. And the moment that people 

feel like they work for us rather than we work for them, it is a 

toxic environment, and it does not get better. A good, solid retrospective review process helps that where people have a sense of 

hope, ‘‘If I call somebody at one of these agencies’’—which clearly 

they do, that message really gets through, somebody really addresses it, and it is in the process of getting fixed. 

So for us it is priority setting. How do we help establish priorities back to the agencies to say these are essentials, that we are 

going to actually go through a review process and the method to 

do that, and then be able to determine for us what does that look 

like in the days ahead as far as the structure that we lay out to 

the different agencies. 

So I appreciate all your testimony. There will be questions for 

the record. I will leave the record open for 14 days for any indi-
34 

vidual that wants to submit another statement for the record or for 

any questions, and then we will pass those on to you. 

A final statement? 

Senator HEITKAMP. I just want to say for the record we were the 

nice Committee. 

Senator LANKFORD. We will send all of our hard questions by 

mail. [Laughter.] 

So we will take it from there. I appreciate very much your work. 

Thank you. We are adjourned. 

[Whereupon, at 11:15 p.m., the Subcommittee was adjourned.] 
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