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[Senate Hearing 114-241]
[From the U.S. Government Publishing Office]

                                                        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
                        
                        
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        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                    RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona                 THOMAS R. CARPER, Delaware
ROB PORTMAN, Ohio                    CLAIRE McCASKILL, Missouri
RAND PAUL, Kentucky                  JON TESTER, Montana
JAMES LANKFORD, Oklahoma             TAMMY BALDWIN, Wisconsin
MICHAEL B. ENZI, Wyoming             HEIDI HEITKAMP, North Dakota
KELLY AYOTTE, New Hampshire          CORY A. BOOKER, New Jersey
JONI ERNST, Iowa                     GARY C. PETERS, Michigan
BEN SASSE, Nebraska

                    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                 HEIDI HEITKAMP, North Dakota
ROB PORTMAN, Ohio                    JON TESTER, Montana
MICHAEL B. ENZI, Wyoming             CORY A. BOOKER, New Jersey
JONI ERNST, Iowa                     GARY C. PETERS, Michigan
BEN SASSE, Nebraska
                     John Cuaderess, Staff Director
                  Eric Bursch, Minority Staff Director
                      Rachel Nitsche, Chief Clerk
                      
                      
                      
                            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

 
    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 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 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 highest-quality 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 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.
---------------------------------------------------------------------------
    \1\ The prepared statement of Ms. Klein appears in the Appendix on 
page 39.
---------------------------------------------------------------------------
    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 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 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.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Zehren appears in the Appendix on 
page 42.
---------------------------------------------------------------------------
    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.
    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.
---------------------------------------------------------------------------
    \1\ The prepared statement of Ms. Uzzell appears in the Appendix on 
page 45.
---------------------------------------------------------------------------
    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 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 Web-based 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-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.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Nickerson appears in the Appendix 
on page 51.
---------------------------------------------------------------------------
    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. 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.

              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?
    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.
    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 regulations. 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 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 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 
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. Davis-
Bacon, 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.
    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.
    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 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.
    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 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.''
    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, 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 
rights-of-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?
    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.
    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 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 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.
    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.
    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 slam-
dunk, 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.
    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 
retrospective 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.
    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 individual 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.]

                            A P P E N D I X

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