Separating fact from fiction in the Regulatory Accountability Act

This week a Senate committee advanced a bill that would hold federal agencies more accountable and create a more transparent rulemaking process.

For the last several months, activists have been asserting that regulatory reform provisions in the Regulatory Accountability Act (RAA) actually increase red tape, extend the time for issuing regulations by years and place the health of the nation at risk.

These claims are not based in reality. The RAA is about good governance and the ability of Congress to ensure that federal agencies implement the laws passed by Congress in the manner intended by elected representatives.

{mosads} After all, it is Congress, not bureaucrats, that makes laws and appropriates money to implement the laws. Each member of Congress is elected by us to represent us. They have to make tough choices between many differing demands on how to use scarce resources, including the time of regulators. As citizens, we need to provide Congress with facts, not unsupported claims, so lawmakers can better legislate.

Some groups have falsely claimed that the RAA adds new, overly burdensome requirements to the rulemaking process, when in reality it codifies existing executive orders and applies existing regulatory concepts to independent agencies. The bill also allows for a more robust public review process to ensure that benefits of new regulations truly outweigh the costs and makes certain that regulators are pursuing the most cost-effective regulatory approach — goals routinely expressed by elected leaders of both parties.

For example, the activists consider the provision that agencies identify their legal authority for decisions as a new requirement. Even the establishment of an electronic docket or a timetable is considered an excessive imposition on regulators in their eyes. And yes, these activists even object to the requirement that an agency conduct a cost/benefit analysis or respond to significant issues raised by the public.

The key goals of the RAA are to ensure that agencies provide the public with more information regarding its most costly regulations before initiating the rulemaking and to allow the public to challenge incorrect data. The bill also requires agencies to undertake a cost/benefit analysis and to select the most cost-effective approach to regulating.

If enacted, the RAA is as precise of a law as can possibly be drafted. In Taming the Administrative State: Identifying Regulations that Impact Jobs and the Economy, the U.S. Chamber of Commerce did an analysis of the 32,882 final agency regulations issued between 2008 and 2016. The study found that 32,742 rules, or 99.57 percent, would not have been subject to any provision of the RAA. 

Of the remaining rules that would have been covered by the law, there were 112 over the nine-year sample period that would likely be subject to the RAA, and only 28 rules (one-tenth of 1 percent) that would automatically be subject to the RAA. These 28 rules each impose over $1 billion a year in costs and have the greatest potential to transform society and harm the economy.

The facts about the RAA reveal a narrowly tailored effort by Congress to make sure that for the costliest one-half of 1 percent of regulations, the agencies do a better job of finding the facts, getting the science right, involving the public and ensuring the benefits outweigh the costs. 

Congress deserves the facts on something as important as making sure agencies implement lawmakers’ intent, not the intent of the unelected regulators. The RAA achieves that objective by permanently codifying ideas that already work. This legislation is about getting rules right by bringing transparency, accountability and integrity to the rulemaking process, whether rules are being written by Republican or Democratic administrations.

The U.S. Chamber commends Sens. Rob Portman (R-Ohio) and Heidi Heitkamp (D-N.D.) on negotiating a bipartisan solution to regulatory reform.

William Kovacs is the senior vice president for environment, technology and regulatory affairs at the U.S. Chamber of Commerce. He previously was a counsel in the U.S. House of Representatives.

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