Congress, not agencies, to blame for regulation delays

Hardly a week goes by without a story about a federal agency delaying implementation of a critical law, missing a deadline set by Congress or simply moving too slowly to put standards in place to protect the public.

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In what can only be described as the height of absurdity, The Washington Post reported that the U.S. Department of Agriculture (USDA) has taken an astonishing two years to propose a rule that simply removes the term "midget" as one of the acceptable designations for small raisins. Adding to the absurdity is the fact that it is not at all the USDA's fault that this process is taking so long — and there is nothing the agency can do to speed it up.

As the story notes, the real reason the USDA has taken so long is because, like all federal agencies, it has had to comply with a rule development process that is a labyrinth of complex and redundant legal and analytical requirements. Congress has only added to these requirements over the years without ever removing any of them or streamlining the process. The result is a broken regulatory system where agencies are unable to produce regulations in a timely and efficient manner and where government waste and inefficiency abound.

Just how bad is the current regulatory delay crisis? A new website from Public Citizen shows that proposed rules held up at the U.S. Office of Information and Regulatory Affairs are delayed by more than 4,000 days. And that's just the last stop along their journey from inception to finalization. A report last month from the R Street Institute, a libertarian think tank, paints an equally grim picture: Over the past 20 years, federal agencies have met only half the rule-making completion deadlines set by Congress.

Regulatory paralysis is the norm and has real consequences for American consumers, working families, the environment and the stability of our financial system. Regulatory delay touches virtually every agency and rule, with the greatest delays experienced by safeguards that would provide the biggest benefits to the public.

For example, it took the U.S. Department of the Interior five years after the BP oil spill in the Gulf of Mexico to propose new safety standards for blowout preventers on oil rigs. The failure of the blowout preventer on BP's Deepwater Horizon rig was a primary cause of this catastrophe, arguably the biggest ecological disaster of the past decade. The rule has yet to be finalized and implemented.

This month, the U.S. Food and Drug Administration finally completed new food safety rules implementing the 2011 Food Safety Modernization Act. The regulations are intended to transform our food safety system into one that prevents tainted food outbreaks instead of just reacting to them. But the congressional deadline for finalizing these rules was in 2012. The cost of delay is steep: One in six Americans, or 48 million people, suffer from a foodborne illness each year, causing 128,000 hospitalizations and 3,000 deaths, according to the U.S. Centers for Disease Control and Prevention.

It has been more than seven years since the Wall Street crash of 2008 and financial regulators still have not finalized all the rules needed to prevent the next crash. Financial agencies have missed one deadline after the next.

Congress must act. Instead, though, virtually every bill proposed by the majority only would extend the delays. Many of these bills were discussed at a hearing on regulatory reform proposals held earlier this month by the U.S. Senate Committee on Homeland Security and Government Affairs.

As one witness testified, all of the bills would add more duplicative analyses, more redundant procedures and more legal requirements to the rule-making process. Making matters worse, none of the bills comes with dedicated funding to give regulators the resources they need to comply with the new requirements, a curious oversight given that conservatives are typically unwilling to support unfunded mandates. Adding to regulators' workload without also adding resources is an obvious recipe for more delays.

As the R Street Institute study made clear, out-of-control regulatory delays are a major concern across the political spectrum and require bipartisan solutions. Indeed, congressional Republicans joined with Democrats this spring in criticizing federal regulators for delays in finalizing new oil train safety standards while oil trains were derailing and exploding across the country.

One of the regulators responded to this criticism with a rare moment of unfiltered honesty. Sarah Feinberg, acting head of the U.S. Federal Railroad Administration, said: "To be clear, I think we have to function in the regulatory process that exists. And it's not built for speed. I wish it was. And no one is more frustrated by our regulatory process and how long it takes than I am on occasion. But if we are trying to govern and regulate as quickly as we possibly can, the rulemaking process is not the way to do it.

Congress should streamline the regulatory process. But it looks like this Congress will only make things worse.

Narang is the regulatory policy advocate for Public Citizen.

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