Hearings before a
Senate panel revealed a growing and deepening bi-partisan consensus to move
forward with legislative reform of the federal regulatory process, including
the retrospective review of existing regulations. Senator Jon Tester (D-MT), Chair of the
Subcommittee on Efficiency and Effectiveness of Federal Programs, said that
many Senators support efforts to achieve meaningful reform of the federal
regulatory process to make it more transparent and responsive to congressional
intent.
Senator David Pryor
(D-ARK) said that it is time to review the foundations of the federal regulatory system. He mentioned that the
Regulatory Accountability Act, S. 1029, which he is co-sponsoring, if done
right, would make the regulatory system better, cheaper and fairer. Under S.
1029, an agency must state its statutory authority for adopting a regulation.
Senator Pryor noted that the legislation
does not go after any one agency or one specific regulation. It amends
the Administrative Procedure Act to place a stronger emphasis on early
engagement between regulators and those affected by the regulations they issue.
S. 1029 was introduced by Senator Rob Portman , the Ranking Member of the
Subcommittee.
Retrospective review. Senator Angus King (I-ME) testified before
the Subcommittee about his Regulatory Improvement Act, S. 1390, co-sponsored by
Senator Roy Blunt (R-MO), which would provide an additional, expeditious
mechanism through which a retrospective review of old regulations could be
conducted. The bill is designed to deal with what Senator King called
regulatory accumulation, which is a byproduct of the increasing number of
entities vested with varying missions to protect the public. It is imperative
to find a way to revisit old regulations to ensure that they are still relevant
to present circumstances and are not in conflict with requirements from other
regulating bodies.
Currently, he
acknowledged, federal agencies embark upon periodic self-reviews in order to
examine the utility of older regulations. However, the existing process is
limited for a number of reasons, including restricted
budgetary and personnel resources, insufficient data collection, and competing priorities.
The Regulatory Improvement Act would provide an additional, expeditious
mechanism through which a review of old regulations could be conducted.
The Act would create
an independent Regulatory Improvement Commission that would be tasked with
reviewing outdated regulations with the goals of modifying, consolidating, or
repealing regulations in order to reduce compliance costs, encourage growth and
innovation, and improve competitiveness. The composition of the Commission
would be determined by congressional leadership and the President, and the Commission
would be tasked with identifying a single sector or area of regulations for
consideration. After extensive review involving broad public and stakeholder
input, the Commission would submit to Congress a report containing regulations
in need of streamlining, consolidation, or repeal. This report would enjoy
expedited legislative procedures and would be subject to an
up-or-down vote in both houses of Congress without amendment.
Howard Shelanski,
Director of the Office of Information and Regulatory Affairs OIRA), testified
that retrospective review of existing regulations is a top priority. Executive Orders 13563 and 13610 make clear
that flexibility and removal of unnecessary burdens are essential elements of
the federal rulemaking process, as is improving rules already on the books.
The OIRA chief said
that retrospective review is a crucial way to ensure that the federal
regulatory system is modern, streamlined, and does not impose unnecessary
burdens. Even regulations that were well crafted when first promulgated can
become unnecessary or excessively burdensome over time and with changing
conditions. Similarly, rules that are not achieving their objectives may be in
need of revision in light of experience, new evidence, or new technology. Retrospective review of
regulations on the books helps to ensure that those regulations are continuing
to help promote safety, health, welfare, and well-being without imposing
unnecessary costs or missing the opportunity to achieve greater net benefits.
Executive Order
13610 asks agencies to report regularly on the progress of their retrospective
review activities. Federal agencies have provided updates on their initiatives,
he noted, many of which are new efforts that agencies added since their July
2013 listing of look-back plans. These efforts are already saving more than $10
billion in regulatory costs in the near term, with more savings to come.
While there ha been
important progress on retrospective review, said the OIRA chief, we need to do even better. OIRA is
working with colleagues elsewhere in OMB and at the agencies on several ways to
further institutionalize retrospective review as an essential component of
government regulatory policy. As part of this effort, OIRA is considering and
developing several components that will make regulatory look-back a more
systematic priority for agencies. Such institutionalization of retrospective
review, both to ensure follow-through on existing plans and to help agencies
develop their future plans, will be one of OIRA’s key objectives moving forward.
Senator Portman
mentioned to the OIRA head that he is concerned about a possible conflict of
interest inherent in an agency conducting a retrospective review of its own
regulation. Mr. Shelanski said that he has not seen this conflict of interest.
Indeed, the federal regulatory agencies appear anxious to conduct retrospective
reviews in good faith.