Streamline the rules-making process

Proposals for systems to eliminate outdated regulations are in vogue. Various bills pending before Congress range from instituting a cost cap requiring the repeal of a regulation before enacting a new one to establishing a commission to recommend rules for elimination.

But comments from industry and even a chief advocate for a regulatory review commission suggest that these are solutions in search of a problem.

{mosads}The infatuation with repealing regulations is driven by a blanket assumption that the nation’s code is stuffed with duplicative or obsolete rules that should, as a matter of common sense, be retired. For instance, the centrist New Democrat Coalition said in a statement accompanying the release of the Regulatory Improvement Act, “As older regulations become outdated and new rules are layered on top, American companies are forced to comply with a growing maze of confusing, often useless regulations.”

In 2011, even President Barack Obama bought into the messaging. He issued pair of executive orders (here and here) calling on agencies to conduct reviews to identify regulations that were “outmoded, ineffective, insufficient, or excessively burdensome.”

At Public Citizen, we looked at a snapshot of public comments – many submitted by representatives of corporations and trade associations – resulting from that executive order. We focused on three perennially controversial areas: financial services, workplace safety and the environment. We also looked at all submissions relating to the executive order by the U.S. Chamber of Commerce, one of the loudest anti-regulations voices.

Although the comments were too varied to permit many broad generalizations, one surprising conclusion can be drawn: Very few industry submitters called for repealing any specific regulations.

The same holds true for the U.S. Chamber of Commerce. Based on our research, the Chamber provided input to only six agencies. Its comments focused largely on technical points, regulations under development or requests for better government service. For instance, the Chamber complained to the State Department that “problems in visa processing are compounded by the applicants’ inability to obtain explanations for decisions.”

If anyone might be expected to have a ready list of over-the-hill regulations, it would be the Progressive Policy Institute’s Michael Mandel, who devised the Regulatory Improvement Act to identify obsolete and duplicative regulations. But, in response to my inquiry, Mandel said that he did not have a list of regulations warranting repeal, in part because he believes that most regulations have an active constituency of defenders, consisting of interests from both industry and the public.

“You’re going to find very few [regulations to repeal] where you say ‘OK, this is a sure shot,’” Mandel said. “It is a pipe dream to believe that you could come up with more than a handful of regulations [to repeal] on purely technical grounds that everyone is going to agree with.” This explanation would appear to undercut the New Democrat Coalition’s foundational premise that the regulatory code is layered with “useless regulations.”

What the regulatory code indisputably does have in abundance are safety gaps caused by delays in making needed rules.

For instance, we reported in 2011 that OSHA had either no workplace safety standard or a less protective one than recommended by NIOSH for 65 percent of toxic chemicals. At that time, OSHA had regulated just two new chemicals in the previous 14 years.

Even updating an uncontroversial (and, yes, outdated) rule for the operation of cranes spanned three presidential administrations. Based on OSHA’s analysis, an estimated 220 lives would have been saved if the cranes rule had been completed in 2000 instead of 2010.

The creeping pace at which rules are created often violates congressional mandates. In 2012, Public Citizen looked at 160 regulations for which Congress had imposed deadlines. Of these, 78 percent had missed their marks.

One of the chief reasons for these delays is the truly duplicative maze that agencies must navigate to create or amend regulations. To create a rule, the government must conduct myriad, duplicative analyses, and address multiple rounds of public comments.

Members of Congress who are guided by common sense should prioritize streamlining the broken regulation-creation process over creating systems to repeal obsolete rules that defy identification.

Lincoln is director of research at Public Citizen’s Congress Watch division. Public Citizen is a consumer rights advocacy group and think tank.

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