Have you ever commented on proposed regulations, urging the issuing agency to make changes before finalizing them? Have you ever waded through pages and pages of regulations in search of the ones still applicable? If so, two recent legislative proposals will interest you.
In 1946, Congress passed and President Truman signed the Administrative Procedure Act (APA). It requires, among other things, that Executive Branch and independent agencies provide the public the opportunity to comment before finalizing regulations. By the time an agency issues a Notice of Proposed Rulemaking (NPRM), however, it has pretty much decided what the rule will be. Public comments designed to change the regulation before it is finalized face an uphill climb. Of the 200-300 significant rules issued each year, fewer than 5% are preceded by an Advance NPRM giving the public the opportunity to inform the decisions that will shape the rule.
At the other end of the regulatory timeline, one of President Trump’s first Executive Orders required federal agencies to repeal two regulations for each new one it promulgated. In some ways, this proved an easier task than many expected, because, lacking mechanisms for or incentives to periodically pluck out the deadwood, the Code of Federal Regulations was littered with so many obsolete rules. On the other hand, the process is slowed by the fact that repealing an old rule generally must go through the same process as issuing a new one.
A Republican and a Democrat Senator have teamed up to tackle both of these problems. Senator James Lankford (R-Ok.) is Chairman of the Regulatory Affairs and Federal Management Subcommittee of the Homeland Security and Governmental Affairs Committee (HSGAC). Senator Kyrsten Sinema (D-Az) is Ranking Member of that Subcommittee.
For himself and Sen. Sinema, Sen. Lankford introduced proposed legislation, S. 1419, to require agencies considering an economically significant rulemaking to issue an advance notice of it, giving the public the opportunity to weigh in before agency views have solidified. This is a reintroduction of the bill he introduced in 2017.
For herself and Sen. Lankford, Sen. Sinema proposed legislation requiring agencies to include in each significant regulation a method of evaluating it after an appropriate period of time, to determine whether it is having the desired effect and continues to be necessary.
It has been said that legislative staffs devote considerable energy to name proposed laws in such a way as to create memorable acronyms. In this sweepstakes, Sen. Sinema’s staff takes the prize. Sen. Lankford’s proposal is named “Early Participation in Regulations Act of 2019.” Sen. Sinema’s, on the other hand, is “Setting Manageable Analysis Requirements in Text,” or SMART.
On May 7, the Subcommittee held a hearing to discuss these two proposals. The sole witnesses were two former Administrators of the Office of Information and Regulatory Affairs (OIRA), an office in the Office of Management and Budget. Established by the Paperwork Reduction Act of 1980, Executive Orders issued by Presidents Reagan, Clinton, and George W. Bush expanded OIRA’s responsibilities from reviewing agencies’ requests for information (with the goal of reducing paperwork) to reviewing significant proposed regulations for substance, relative costs and benefits, and contribution to the agency’s overall regulatory scheme, among other things.
The hearing’s witnesses were Sally Katzen, OIRA Administrator during the Clinton Administration, and Susan Dudley, OIRA Administrator during the George W. Bush Administration. Each was generally supportive of both legislative proposals, with some interesting and important observations about how they would work in practice. In addition to her testimony, Dudley also wrote about the proposed legislation in Forbes, and co-authored with Katzen a column in the Wall Street Journal.