On Oct. 25, the Senate Judiciary Subcommittee on Oversight, Federal Rights and Agency Action, chaired by Sen. Richard Blumenthal (D-CT), hosted a panel to brief congressional staff on the importance of standards and safeguards to ensure that the food we eat and where we work is safe, the air we breathe is clean, and that our finances are secure. Panelists emphasized the need to improve the regulatory process so that agencies can carry out their missions and best serve the American people.
The panel, entitled “Delayed, Diluted, and Defunct: How Congressional Mandates are Thwarted by the Broken Regulatory Process,” identified pervasive delays, dwindling agency resources, and burdensome analytical requirements as the leading causes of regulatory delays and weakened rules.
Under the existing process for issuing rules, agencies have to navigate a complex and burdensome maze of analytical requirements intended to slow the system. One particular source of delay is the Office of Information and Regulatory Affairs (OIRA), which is often called the “black box” of regulations because rules sent to OIRA can be indefinitely delayed without public explanation.
Although Executive Order 12866 allows the office a maximum of 120 days to complete a rule review, the agency often holds rules for many weeks, months, or even years past the deadline. According to Robert Weissman, President of Public Citizen, “Of 280 past deadlines, 171 (60 percent) have been missed.” Although some improvement has been made by OIRA Administrator Howard Shelanski to clear the backlog of rules created during the tenure of his predecessor, Cass Sunstein, Weissman explained that there is still much more work to be done to speed up the process.
Peg Seminario of AFL-CIO noted that in addition to delays at OIRA, the regulatory process is bogged down with complex and unnecessary analytical requirements, which Congress has not allocated adequate resources for the agencies to perform. As a result, it currently takes agencies many years to develop significant rules. Seminario further explained that for each year important occupational health and safety standards are delayed, workers and society at large are left footing a $250 billion bill. This represents the annual costs of occupational diseases and fatalities that occur because adequate safeguards are not in place.
Adding to the comments on endless delays, Caroline Smith DeWaal of the Center for Science in the Public Interest said the major takeaway is that “from a public health standpoint, we can’t afford this time.”
Panelists also discussed several anti-regulatory bills that have been introduced in Congress under the guise of improving the regulatory process, but which really seek to pile on even more procedural hurdles for agencies to grapple with and further slow the process. John Walke of the Natural Resources Defense Council noted two particularly bad bills:
- The Regulations from the Executive in Need of Scrutiny (REINS) Act: This bill would kill any major rule that did not gain congressional approval within 70 legislative days. Given the gridlock in Congress, the REINS Act would make it impossible for agencies to carry out the congressional mandate to safeguard Americans' air, water, food supply, and workplaces.
- The Sunshine for Regulatory Decrees and Settlements Act (S. 714 and H.R. 1493): This law aims to bog down the regulatory process with time-consuming and costly procedural hurdles that would limit lawsuits brought to challenge unreasonable delays by regulatory agencies. Walke explained that settlements are valuable tools the public can use to ensure that agencies are implementing the laws Congress passes in a timely fashion.
Panelist Marcus Stanley of Americans for Financial Reform noted, “Good analysis is vital to regulation” but explained that legislation that would add new analyses or expand cost-benefit analysis is not “good analysis.” The president of Center for Effective Government and panel moderator Katherine McFate said that industry and their lobbyists are taking a “back-door approach to attack regulations that are too popular with the public to attack directly.”
To improve the regulatory process, the panelists agreed that the extensive rule delays at OIRA need to end, burdensome analytical requirements should be rolled back, and attempts to pile on additional hurdles must be stopped.
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