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Senate Committee Approves S. 951, The Regulatory Accountability Act

The Senate Committee on Homeland Security and Governmental Affairs gave the green light to the Regulatory Accountability Act (RAA) on May 17, 2017. The RAA (S.951), introduced by Senator Portman (R-OH) and Senator Heitcamp (D-ND), aims to “reform the process by which Federal agencies analyze and formulate new regulations and guidance documents.” If passed, the bill, which accompanies a similar bill passed by the House (H.R. 5), could make it much more difficult for agencies to implement regulations. Although billed by its sponsors and co-sponsors — Senator Hatch (R-UT) and Senator Manchin (D-WV) — as a bipartisan bill, support for the legislation is divided largely along partisan lines. The bill has not yet been scheduled for a full-bodied debate or vote.

Changes to Agencies’ Authorities

If passed, the RAA would be the first update to the Administrative Procedural Act since 1946. The bill changes the federal rulemaking process, as well as the way final agency actions can be challenged legally. Key features of the bill include:

  • The benefits of a rule must outweigh its cost. This is the codification of a requirement in Executive Order 12866. For major ($100 million or more per year) and high-impact ($1 billion or more per year) bills, direct costs as well as indirect and cumulative costs must be assessed.
    • A “savings clause” allows specific statues to over-rule this requirement when an authorizing statute requires an agency to employ a different process.
  • For major and high-impact rules, an agency must consider at least three alternatives and then choose the most cost-effective approach. The bill does not define the term “cost-effective.”
  • For high-impact rules, a public hearing on “genuinely disputed” factual issues would be required. Major rules may be exempt from the public hearing requirement when an agency decides such a hearing would not advance the process or would cause an unnecessary delay.
  • The agency must rely on the “best reasonably available scientific, technical, or economic information” for proposed and final rules.
  • Every ten years there shall be a review of all major and high-impact rules.

Division of Support Along Partisan Lines

Republicans have long aimed to decrease governmental bureaucracy they feel hinders business. Proponents of the RAA say that it will hold agencies more accountable to Congress and the court system, and prevent them from using the “deference of the courts” to ignore economic damage to businesses. Additionally, by creating stricter requirements for passing and implementing regulations, they feel that the bill will decrease the amount of red tape businesses and industries must go through. The bill is less strict than H.R. 5.

Critics of the bill, largely Democrats, say that it creates so many new bureaucratic obstacles that it will greatly inhibit agencies’ abilities to pass basic public health, environmental, and education regulations, among others. The progressive group Public Citizen has estimated that the legislation would add up to 53 steps to rulemaking, and possibly double the average amount of time it takes to finalize a rule from four to eight years. The extra steps added provide more avenues by which special interests can block a rule through endless delay via litigation. Senator McCaskill (D-MO) is currently writing legislation that may be more palatable to her party members.

 

This blog article was researched and written by Brown University Class of 2018 student Aisha Keown-Lang. Ms. Keown-Lang is studying biology and political science at Brown University with the goal of going into bioethics and public health. Her special interest in genetics stems from her research in the Li Lab at UCSF and the Gerbi Lab at Brown. After having worked with children in the Providence school system for nearly three years, her commitment to improving scientific literacy and expanding health services in underserved communities remains strong. Ms. Keown-Lang is currently a writer for Brown’s Science Cartoon Program (SciToons), which aims to communicate scientific research and ideas to a diverse audience.

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Ms. Grimaldi maintains a diverse environmental law practice focusing on chemical and product regulation and litigation defense. Her practice areas include Proposition 65, California's Safer Consumer Products Regulations, California's Rigid Plastic Packaging Container Act and the federal Toxic Substances Control Act. Ms. Grimaldi graduated from the University of California Hastings College of the Law magna cum laude and holds a Bachelor of Science Degree in Bacteriology from University of California, Davis. Prior to attending law school, she worked as a research assistant in laboratories at the University of California, San Francisco Cancer Research Institute and at the University of California, San Francisco School of Medicine.