Senators Heitkamp and Portman Introduce New Regulatory Accountability Act

by Chris Walker — Wednesday, Apr. 26, 2017@chris_j_walker

The video of today’s press conference is here, and I’ve pasted below Senator Portman’s press release on the legislation. This is an important and thoughtful proposal to modernize the Administrative Procedure Act, and I will have much more to say about it in the coming weeks (once my Senate academic fellowship concludes).

Here’s the press release:

WASHINGTON, D.C. – U.S. Senators Rob Portman (R-OH) and Heidi Heitkamp (D-ND) today introduced their Regulatory Accountability Act, new, bipartisan legislation designed to make federal regulations smarter and more effective so they better support businesses, families, and jobs by modernizing the federal regulatory process that hasn’t been significantly reformed in 70 years.

“When I visit a factory or small business in Ohio, one of the complaints I hear most often from employers is that there are too many costly and unnecessary regulations that limit their ability to invest in their business and create more jobs,” said Senator Portman.  “We need a smarter regulatory process that promotes job creation, innovation, and economic growth, while also continuing to protect public health and safety and the environment.  This legislation would bring our outdated federal regulatory process into the 21st Century by requiring agencies to use the best scientific and economic data available, strengthening checks and balances, and giving the public a voice in the process. I want to thank Senator Heitkamp for her work on this legislation and urge the Senate to take up this common-sense, bipartisan bill.”

“Federal regulations keep our air clean and families safe, and no one wants to go back to an era without safety standards. But sometimes regulations don’t work as intended and create red tape,” said Senator Heitkamp. “All across North Dakota, the biggest concern I hear from business owners and workers is about regulations hurting their abilities to do their jobs. Our bipartisan bill would make federal regulations smarter and more effective for everyone impacted by them, support job growth, create certainty, and provide an important check and balance on the president no matter who is in charge. Can you imagine if we still used telecommunications systems from World War II? They might get the job done, but they would be slow, potentially faulty, and incredibly inefficient. The same goes for the current 70-year old law which still governs the way federal agencies propose and establish regulations. Thank you to Senator Portman for his work on this bipartisan legislation which I hope we can soon move forward.”

Portman and Heitkamp’s Regulatory Accountability Act would reform the federal regulatory process to cut red tape so federal programs operate as intended, and are effective and efficient for those just trying to do their jobs. The measure is based on bipartisan executive orders from the past five presidents, and it would result in a more transparent, accountable regulatory process that would yield more effective regulatory outcomes for American businesses, workers, and their families. Specifically, the bill would:

  • Require Effective Cost-Benefit Analysis.  The bill would codify the duty to analyze the costs and benefits of new regulations. It would also require agencies to adopt the most cost-effective approach to achieve their objectives.  To hold agencies accountable, the bill would permit a judicial check on an agency’s cost-benefit analysis of major rules — the 40 to 80 costliest regulations out of the more than 3,000 issued each year.  This review would be deferential, but the courts would ensure that agencies do not rely on irrational assumptions or treat cost-benefit analysis as a mere afterthought — as too often occurs today.
  • Improve Transparency and Accountability in the Federal Regulatory Process. The bill would invite early public participation on major rules and require federal agencies to disclose the information they rely upon, ensuring that there is greater transparency in the rulemaking process. It also would ensure that agencies use sound scientific and technical data to justify new rules, in keeping with calls for agencies to use the “best available science” to craft regulations.
  • Provide Certainty for Businesses and Consumers. Many of the requirements the regulatory system operates under are contained in executive orders, which can be changed overnight. Codification of the key bipartisan regulatory executive orders that have been in place from President Reagan through President Obama today would provide certainty to federal agencies, as well as businesses and consumers. Federal agencies would also be required to better consider the concerns of people and businesses on the ground that regulations would directly impact.
  • Create an Automatic Review Process for Major Regulations. The bill would require federal agencies to build in an automatic review for the largest, most significant rules at least once every 10 years to ensure that those rules are still meeting regulatory objectives and work as intended, and to consider whether they could be improved to produce better results or be more cost-effective.
  • Allow Federal Agency Hearings on the Most Significant Regulations. The measure would require federal agencies to follow a more evidence-based approach in crafting rules that will cost more than $1 billion annually. This legislation would give those impacted by the regulations access to an agency hearing to test the key disputed facts underlying these mega-rules. While it would require additional work on the front end, the result would be lower costs and more stable regulatory outcomes.

Senators Orrin Hatch (R-UT) and Joe Manchin (D-WV) are original cosponsors of the bill.  A full summary of the bill can be found here, a comparison between the House and Senate bills here, and the text here.

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About Chris Walker

Christopher Walker is a law professor at The Ohio State University Moritz College of Law. Prior to joining the law faculty, Professor Walker clerked for Justice Anthony Kennedy of the U.S. Supreme Court and worked on the Civil Appellate Staff at the U.S. Department of Justice. His publications have appeared in the Michigan Law Review, Minnesota Law Review, Stanford Law Review, and University of Pennsylvania Law Review, among others. Outside the law school, he serves as one of forty Public Members of the Administrative Conference of the United States and on the Governing Council for the American Bar Association’s Section on Administrative Law and Regulatory Practice. He blogs regularly at the Yale Journal on Regulation.

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