Regulatory Reformers Target Agencies’ Nonstatutory Guidance

Much of the alleged burden of far-reaching or duplicative regulations stems from the accompanying guidance—policy memos, “Dear Colleague letters” and FAQs—prepared by regulators without stakeholder input, agency officials confirmed to a House oversight panel on Tuesday.

At the Education Department, for example, the regulatory reform task force has tallied an “astounding” 1,772 documents of such guidance, Robert Eitel, senior counselor in the Education Secretary’s Office, said at the House Oversight and Government Reform Committee’s second in a series of joint subcommittee “check-ins” on the Trump administration’s regulatory reform task forces.

As many as 600 of those guidance documents are judged to be out of date, Eitel said—some from the 1980s and one addressing the aftermath of an Upper Midwest flood in 1997.

Congress was never notified about such guidance, noted Rep. Mark Meadows, R-N.C. “So an agency could approve one rule and have 20 guidance memos?” he asked. Eitel replied that the guidance—which does not go through the usual rulemaking process under the Administrative Procedure Act--does have the force of law, but it can be revoked by the next administration.

Intergovernmental Affairs Subcommittee Chairman Gary Palmer, R-Ala., brought in officials from the Education, Agriculture, and Health and Human Services departments to examine best practices in agency execution of Trump’s executive orders aimed at reducing regulation. He called the task forces “the driving force” behind changes needed to remove “duplicative and outdated regulations that impose the most burden on the public.” Progress, he said, means “a necessary cultural change in how our government works with state and local governments.”

The Democratic ranking members grilled the three officials on policy controversies such as HHS’ handling of enrollment season rollout under the Affordable Care Act, the Education Department’s changes in policy toward for-profit colleges’ claims of their graduates’ “gainful employment” and Agriculture’s free-market approach to meat inspections.

“Regulatory review and reform need not be a partisan exercise,” said Rep. Val Demings, D-Fla., “President Obama, too, created a retrospective review process in 2011 to review outmoded, ineffective, insufficient, or excessively burdensome regulations. But the Trump administration is not taking an honest look back. The Trump regulatory review process is aimed at removing regulations that protect the public.”

The agency officials stressed progress in identifying rules with potential for elimination or modernization, along with heavy participation in the task forces by career civil servants.

Rebeckah Adcock, a senior adviser in the Agriculture Department’s Office of the Secretary, who was profiled as a “pesticide lobbyist” in Tuesday’s New York Times, said her team was acting according to the principles of Trump’s orders—which considers “impact on the economy” and reducing barriers, but also the effect on components of her department. “Our task force is composed almost exclusively of career senior staff," she said. “We rely on the expertise of folks who’ve been at Agriculture for a long time.”

Agriculture’s call for public input in the Federal Register in July brought in 145 comments, Adcock said, which are being reviewed between now and next July. Already, the task force has made 275 recommendations on how rules could be killed or improved, she added, saying results would be reflected in the fall regulatory spending budget being prepared for the Office of Management and Budget.

Charles Keckler, associate deputy secretary in the HHS Office of the Secretary, said his task force and its working groups of “career staff experts and career legal counsel” are “seeking input from those entities most effected,” such as state and local governments, doctors, small businesses and consumers. The strategy, in the name of “putting patients first,” targets first the rules that “get between the doctor and patient.”

There’s a place for regulations, Keckler said, “But if they get too complex, they have a suffocating effect.” He cited as an example hospitals that have to report 61 different quality measures, which can lead to “clinical burnout.”

HHS so far has made 34 recommendations for deregulatory action, he said, but declined to estimate a specific number of rules involved. (Meadows asked him to commit to providing a plan for producing such an estimate within 14 days.)

At Education, said Eitel, the team has stressed transparency by posting reports of task force work on its websites, including the identities and backgrounds of the members. A solicitation in the Federal Register drew 16,000 comments, he said, and the task force has earmarked four K-12 school regulations for alterations and two in higher education.

The Agriculture and HHS officials were challenged by Rep. Bonnie Watson Coleman, D-N.J., to release the names of their task force members, to assure the public of no industry conflicts of interest. Adcock said Agriculture‘s congressional affairs office was planning to deliver such a list (its arrival was later confirmed by Chairman Palmer), but Democrats said they had not seen it. HHS has not yet released its membership names because the task force’s work represents “deliberations of an internal group,” Keckler said, but he too promised to deliver a list.

Rep. Raja Krishnamoorthi, D-Ill., said he was “deeply troubled” by the administration’s “undercutting” of rules enforcing the Obamacare law. Keckler declined to address policy issues such as the value of Medicaid expansion. After the Trump HHS’s September announcement that it was shutting down the Healthcare.gov enrollment website every Sunday for 12 hours of maintenance, Democrats wrote to HHS demanding an explanation.

All they received, Krishnamoorthi said, were four pages of documents, one of which was simply a screen shot of the website announcing that the site was down (with no indicator of when the would-be insurance purchaser should try again).

Palmer said the shutdown of the website lasted only five hours on Nov. 5, and that on Nov. 12, no maintenance was needed so the site wasn’t shut down at all.