By Madeline Urbish
The Senate Committee on Homeland Security and Governmental Affairs approved several bills aimed at improving the Federal regulatory process earlier this week. Among them were the Independent Agency Regulatory Analysis Act of 2015, and the Principled Rulemaking Act, and the Early Participation in Regulations Act of 2015.
The Independent Agency Regulatory Analysis Act (S.1607) would require the Office of Information and Regulatory Affairs (OIRA) to review major rules put forth by independent agencies. Currently, OIRA, which falls within the Office of Management and Budget, reviews all major regulations developed by executive agencies, such as the Department of Commerce, Education, or Transportation. However, independent agencies, including the Federal Communications Commission, the Securities and Exchanges Commission, and Consumer Financial Protection Bureau, are not subject to review by OIRA or the Office of Management and Budget. According to the bill's sponsor, Senator Rob Portman (R-OH), the bill would only apply to major rules, which are defined as those that have an annual economic impact of $100 million or more. According to Sen. Portman, the 18 major rules issued by independent agencies 2013 did not include a substantive cost-benefit analysis, even if they have a major economic impact. For instance, the FCC did not include a cost-benefit analysis regarding its net neutrality rules earlier this year, despite the fact they have significant economic implications. The bill was approved by a 9-4 vote, with Ranking Member Senator Tom Carper (D-DE) expressing concern over the potential for opening independent agency regulations to excessive litigation.
Also concerning OIRA, the Principled Rulemaking Act of 2015 (S.1818), sponsored by Senator James Lankford (R-OK) would codify two Executive Orders regarding the oversight office. E.O. 12866, issued by President Clinton in 1993, requires the review of major rules and regulations drafted by executive agencies. E.O. 13563, issued by President Obama in 2011, reaffirms 12866 and directs agencies to provide online access to the rulemaking docket for its proposed and final rules. OIRA was established by President Reagan, modified by President Clinton via E.O. 12866, preserved by President Bush, and reaffirmed by President Obama. Again, Sen. Carper expressed concern regarding the bill and introduced two amendments that failed. By putting the requirement for review into law via statute, the legislation allows OIRA review to not depend solely on the preference of the President. The bill was approved by the full committee by a vote of 7-5.
Additionally, the full committee approved the Early Participation in Regulations Act (S.1820), sponsored by Sen. Lankford, by an 8-4 vote. The bill would require agencies to gather input and public comment prior to writing a major rule or regulation. Currently, executive agencies write proposed rules and then seek public comments. According to Sen. Lankford, the procedure would increase the length of the process by about 60 days, but it would only apply to those rules that have an economic impact of $100 million or more. Sen. Carper again expressed concern, this time over the lack of flexibility the bill gives to agencies in determining whether or not to seek public comment prior to or following drafting the rule. Sen. Lankford responded that the need for consistency outweighs the need for flexibility with regards to major rules. The bill was reported favorably out of committee with no amendments attached.
Finally, the committee considered the Regulatory Improvement Act (S.708), which would establish a Regulatory Improvement Commission within the legislative branch for the purposes of making recommendations to modify, consolidate, or repeal regulations that were finalized over ten years ago. Some Senators expressed opposition to the bill, despite agreeing with the need for a process to retroactively review regulations. Several members, including Senator Joni Ernst (D-IA) expressed concern over the bill in its current form due to concessions made by Democrats. Specifically, she referred to efforts to merge the bill with Rep. Jason Smith’s (R-MO) SCRUB Act, which would also establish an independent commission to review regulations and propose changes or repeals to Congress. Under the SCRUB Act, the changes proposed by this independent commission would go into effect unless Congress passes a resolution to reject them. According to Sen. Ernst, Democrats conceded several issues in negotiations over the Regulatory Improvement Act, including modifying criteria for prioritizing which regulations the commission would consider and setting a goal for cost reduction in a cumulative context.
Additionally, Sen. Carper noted OIRA has already completed 175 retrospective reviews expected to yield $22 billion in savings over the next five years. Due to the disagreement over the bill language, Chairman Ron Johnson (R-WI) tabled consideration and asked that members continue to work together to reach a consensus.
The committee also advanced 16 additional pieces of legislation, the most prominent of which was the Fair Chance Act (S.2021). For more information on the bills and the hearing, visit the committee's website here: http://www.hsgac.senate.gov/.
For more information, contact Madeline Urbish at firstname.lastname@example.org.