Notice & Comment

What Regulatory Reform Legislation Might Pass This Congress?

House and Senate committees have been doing a fair bit of work behind the scenes on regulatory reform legislation lately. This post focuses on the legislation that appears to have the greatest odds of being enacted into law and outlines a possible path forward.

On October 7, 2015, the Senate Homeland Security & Governmental Affairs committee voted to approve four bills that would affect the rulemaking process:

Principled Rulemaking Act (S. 1818). This bill would make a number of important changes to the rulemaking process, including requiring agencies to identify a market failure or other compelling need for regulation for discretionary rules, base decisions on the best reasonably information, assess costs and benefits, harmonize rules with state and local law, seek pre-proposal comments from regulated entities, and provide a minimum comment period of 60 days.

Early Participation in Rulemakings Act (S.1820). This bill would require that agencies provide advance notices of proposed rulemaking for major rules.

Smarter Regulations Through Advance Planning and Review Act (S.1817). This bill would require agencies to develop retrospective review plans for new major rules and to reassess such rules according to those plans.

Independent Agency Regulatory Analysis Act (S.1607). This bill would would authorize the president to issue an executive order requiring independent regulatory agencies to submit to OIRA review of their rules.

Interestingly, several of these bills prompted ranking members of other committees – Senators Boxer, Brown, Leahy, and Murray – to sign letters expressing concern about the impact of the bills on agencies under their jurisdiction. Several of the letters explicitly noted jurisdictional concerns. It would be interesting to know if prior regulatory reform bills have prompted jurisdictional disputes between congressional committees.

The path for these bills to advance seems to be centered on a bipartisan working group composed of four Republicans and four (fairly conservative) Democrats. The group is working to put together a proposal, which will likely include many elements of the above bills, by the end of 2015. After that, the Senate calendar quickly tightens.

If a deal comes together, it might happen very quickly. One of the last major regulatory reform bills, the 1996 Small Business Regulatory Enforcement Fairness Act (SBREFA), passed very rapidly after a deal was struck. So it’s worth keeping an eye on the bipartisan group, which may well be the most likely source of successful regulatory reform legislation until 2017.

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