Regulatory Accountability Act Introduced With New Twist

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By Cheryl Bolen

A bipartisan pair of senators introduced April 26 a version (S. 951) of the well-known Regulatory Accountability Act, but with a new twist that its sponsors hope will attract more support from Democrats than in the past.

Sen. Heidi Heitkamp (D-N.D.) said she worked with Sen. Rob Portman (R-Ohio), the sponsor of the bill in previous Congresses, to make key additions to the legislation, which would update the Administrative Procedure Act and make other changes to the rulemaking process.

“So we’ve been able to negotiate what’s called in law a ‘savings clause,’ which would send a clear message that if there is a particular procedure that has been legislated in Congress for that regulation, that procedure dictates how that rule will get promulgated,” Heitkamp said at a Capitol Hill press conference.

Portman’s versions of the bill in prior sessions were opposed by former President Barack Obama and did not advance in the Senate. The U.S. Chamber of Commerce has made the bill its top legislative priority in the area of regulation this year.

Thin Democratic Support

In addition to Portman and Heitkamp, the bill’s sponsors this year include Sens. Orrin Hatch (R-Utah) and Joe Manchin (D-W.Va.). Notably absent from this list is Sen. Claire McCaskill (D-Mo.), the ranking member of the Senate Homeland Security and Governmental Affairs Committee, which is the committee of jurisdiction.

The House in January passed a significantly different version (H.R. 5) of the bill sponsored by Judiciary Committee Chairman Robert Goodlatte (R-Va.). The 238-183 vote was bipartisan, just five Democrats joined all Republicans in voting for the measure.

“Senator Portman and Senator Heitkamp have been champions with me in identifying 21st century regulatory reforms that can prevent the undue negative impacts regulations are having on our economy and modernize the rulemaking process to help the American people,” Goodlatte said in a statement.

However, in addition to the savings clause, Heitkamp said there were “substantial differences” from the House version of the legislation that led her to co-sponsor the Senate bill. And additional changes will probably be needed to attract more support, she said.

Transparency or Delay?

Under the bill, before proposing any major rule with an economic impact of at least $100 million annually, agencies would be required to issue a public notice that explains the problem they intend to address and invite the public to comment.

Another provision of the bill would apply specifically to “high-impact” rules, or those with an economic impact of $1 billion or more annually. The bill would give parties affected by the rules access to an administrative hearing to test the accuracy of the evidence and assumptions underlying the agency’s proposal.

“The name of the game with the Regulatory Accountability Act is to delay the enforcement of bedrock public interest laws and to tilt the playing field further in favor of corporate interests,” said Rena Steinzor, a member scholar at the Center for Progressive Reform, in a statement.

Better End Result

Nowhere is this objective clearer than in the bill’s mandate that certain rulemakings undergo formal hearings, Steinzor said. “This procedural hassle was wisely dispensed with decades ago because it was impractical,” she said.

The bill’s sponsors, however, said criticism that the legislation is intended to delay or stop regulation is unfounded.

“That critique was inaccurate then and it’s more inaccurate now,” Portman said, arguing that the bill clarifies deadlines and expedites processes.

“People who say that this additional engagement is going to take more time—it may take some more time on the front end, but you’ll get a better rule and a rule that can survive judicial scrutiny,” Heitkamp added.

To contact the reporter on this story: Cheryl Bolen in Washington at cbolen@bna.com

To contact the editor responsible for this story: Paul Hendrie at pHendrie@bna.com

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