WASHINGTON, D.C. – Today, Congressman Roger Williams (R-TX), Chairman of the House Committee on Small Business, wrote to both Commissioner Califf of the Food and Drug Administration (FDA) and Director Klein of the Bureau of Ocean Energy Management (BOEM)regarding their respective agency’s decisions not to discuss proposed rules with Congress.

This letter builds on the House Committee on Small Business’ work to ensure federal agencies adhere to the Regulatory Flexibility Act and Small Business Regulatory Enforcement Fairness Act to protect small businesses from burdensome regulations and rulemaking.

Read the full letter to BOEM here and the letter to the FDA here.

Read excerpts from each letter below:

“The House Committee on Small Business (the Committee) writes regarding the Food and Drug Administration’s (FDA) policy to not discuss its proposed rules with Congress. As part of the Committee’s investigation into how agencies comply with the Regulatory Flexibility Act (RFA), the Committee sent the FDA a letter seeking a deeper explanation of a recently proposed rules’ impact on small businesses. In response, the FDA indicated it would not discuss proposed rules with Congress. The Committee vehemently disagrees with the FDA’s position and seeks a deeper explanation of how the FDA complies with Congressional requests for information.

“Pursuant to House Rule X, this Committee has a duty to the House of Representatives and the American people to legislate and conduct oversight on “the problems of all small business.” The Committee cannot conduct oversight if the FDA continues to withhold requested information. Similarly, the Committee cannot draft adequately informed legislation without the FDA’s input on substantive questions. As a general rule, ex parte communications between federal agencies and Congress are encouraged for Notice-and-Comment rulemakings such this. Courts have found that better legislation and rules are created when agencies and Congress work together to create rules which implement legislation correctly. This is valuable since agencies are tasked with implementing laws and have subject matter expertise in the relevant field, while Congress is responsible for passing the laws, thus having a better understanding of its intent and purpose.

“In your responses to the Committee, you indicated that small businesses and their comments were being heard in this rulemaking process. While it is reassuring the FDA claims to have considered these interests, the purpose of our letter was to ensure that the FDA was, indeed, complying with their obligations to small businesses. Congress' authority to conduct oversight is inherent in Article I, sec. 1 which states: "All legislative powers herein granted shall be vested in a Congress of the United States." The United States Supreme Court has consistently affirmed Congress’s authority to conduct oversight and investigations, holding that “the power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function.” Rule X of the Rules of the United States House of Representatives delegates this responsibility to standing committees.

“Denying the Committee the requested information prevents it from upholding and acting in furtherance of its legislative function, namely reviewing regulatory burdens imposed on small businesses by federal agencies and determining how they may be alleviated. This includes the ability of this body to initiate investigations to inform itself about how existing laws function, whether new laws are necessary and if old laws should be repealed or altered. Responding substantively to the Committee’s letter using information available in the docket, or information FDA makes available prior to the final rule, would in no way undermine the completeness of the docket or effectiveness of this rulemaking.”

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“The House Committee on Small Business (the Committee) writes regarding the Bureau of Ocean Energy Management’s (BOEM) policy to not discuss its proposed rules with Congress. As part of the Committee’s investigation into how agencies comply with the Regulatory Flexibility Act (RFA), the Committee sent the BOEM letters seeking a deeper explanation of two recently proposed rules’ impact on small businesses. In response to the Committee’s first letter, the BOEM indicated it would not discuss proposed rules with Congress, and the Committee expects the BOEM’s response to our second letter will be substantially similar. The Committee vehemently disagrees with the BOEM’s position and seeks a deeper explanation of how the BOEM complies with Congressional requests for information.

“In response to letters from the Committee, the BOEM indicated it was against their policy to comply with Congressional requests for information on its proposed rules. The BOEM also indicated in their response that they would submit the Committee’s letter as a comment on its rule, and may address the Committee’s concerns in the preface to its final rule. Leaving a comment on this proposed rule was not the Committee’s intent when sending our communications, and our questions were not rhetorical comments for the record; the Committee is well aware of the process it should go through to submit comments on rules. The Committee disagrees with the BOEM’s conclusion that communications regarding this rule constitute comments for the record, and the BOEM’s belief that a nonspecific response included in the preamble to its final rule is a sufficient response to this Committee.

“Pursuant to House Rule X, this Committee has a duty to the House of Representatives and the American people to legislate and conduct oversight on “the problems of all small business.” The Committee cannot conduct oversight if the BOEM continues to withhold requested information. Similarly, the Committee cannot draft adequately informed legislation without the BOEM’s input on substantive questions. As a general rule, ex parte communications between federal agencies and Congress are encouraged for Notice-and-Comment rulemakings such these. Courts have found that better legislation and rules are created when agencies and Congress work together to create rules which implement legislation correctly. This is valuable since agencies are tasked with implementing laws and have subject matter expertise in the relevant field, while Congress is responsible for passing the laws, thus having a better understanding of its intent and purpose.

“In your responses to the Committee, you indicated “[t]he Regulatory Impact Analysis for this proposed rule addresses impacts on small businesses.” While it is reassuring the BOEM claims to have considered these interests, the purpose of our letter was to ensure that the BOEM was, indeed, complying with their obligations to small businesses. Congress' authority to conduct oversight is inherent in Article I, sec. 1 which states: "All legislative powers herein granted shall be vested in a Congress of the United States." The United States Supreme Court has consistently affirmed Congress’s authority to conduct oversight and investigations, holding that “the power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function.” Rule X of the Rules of the United States House of Representatives delegates this responsibility to standing committees.

“Denying the Committee the requested information prevents it from upholding and acting in furtherance of its legislative function, namely reviewing regulatory burdens imposed on small businesses by federal agencies and determining how they may be alleviated. This includes the ability of this body to initiate investigations to inform itself about how existing laws function, whether new laws are necessary and if old laws should be repealed or altered. Responding substantively to the Committee’s letter using information available in the docket, or information BOEM makes available prior to the final rule, would in no way undermine the completeness of the docket or effectiveness of this rulemaking.”

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