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Senate Committee Debates Federal Rulemaking

On Wednesday, September 16, the Senate Homeland Security and Governmental Affairs Committee held a hearing to discuss five pending legislative proposals that would affect the Federal rulemaking process.  The Committee’s goal is to be able to mark up some, if not all, of these measures in early October.

S 708, Regulatory Improvement Act (King, I-ME) creates a Regulatory Improvement Commission to review all Federal regulations and make recommendations to Congress on those that need streamlining, consolidation or elimination.

S 1607, Independent Agency Regulatory Analysis Act (Portman, R-OH and Warner D-VA)) requires that any independent regulatory agency must comply with the same regulatory analysis requirements as any other Federal agency.

S 1817, Smarter Regulations through Advance Planning and Review Act (Lankford, R-OK and Heitkamp, D-ND) requires that any new rule also include a retrospective review process to ensure that regulatory objectives are being met without adding undue cost burdens.

S 1818, Principled Rulemaking Act (Lankford, R-OK and Heitkamp, D-ND) calls for Federal agencies to consider rulemaking approaches that impose the least burden on the public through consideration of regulatory alternatives and benefit-cost analyses.

S 1820, Early Participation in Regulations Act, (Lankford, R-OK and Heitkamp, D-ND) requires that all proposed rules include a 90 day prepublication announcement for the public.

Susan Dudley, Director of the Regulatory Studies Center, George Washington University, and Sidney Shapiro, Vice President of the Center for Progressive Reform both testified.

Dudley supported the concept of third party and retrospective review as called for under S 708 and S 1817.  Enhancing analytical procedures as proposed by both S 1818 and S 1607 are also positive steps.  Regulatory impact analyses are often completed after the fact.  The requirements of S 1820 move these efforts to the beginning of the process rather than at the end and should enhance the process.

Shapiro expressed concern about the escalating administrative procedures burden on the acting Federal agency.  New analytical and procedural requirements are accumulating at a cost to Federal productivity.  Most rules now take 5, 8, or even 10 years to be issued.  Meanwhile, the risk to be addressed by the newly proposed rule continues unabated.  The American Bar Association recommends restraint in calling for new analytical burdens.  Rather, Congress should provide agencies with the necessary resources to achieve their purpose.  Agencies should be offered the flexibility to address exceptions on a case by case basis and should be freed from requiring layer upon layer of unnecessary or duplicative requirements that have been added to statutes over the years.  Regulatory reform is needed; however, we must look back at the efficacy of our older regulations before adding new requirements.