Last week, the Hill newspaper published my article supporting a regulatory reform bill, S. 2006, recently introduced by Senator Portman and a bipartisan group of Senators. Among other things, the bill sets out Congressional expectations for balancing the costs and benefits of rulemaking and directs agencies to adopt the least burdensome rule that addresses the issue in the proceeding. As I stated in my article, “Regulating is not, and should not be, easy. Requiring agencies to do the needed up-front hard work before issuing rules, as these reform bills direct, will result in better rules.”
Critics have pointed to these kinds of requirements as regulatory roadblocks—mere ploys designed to slow down the process. I see them not as roadblocks but as speed bumps–useful tools to assure that the agency gets it right when it regulates. And unless the agency is actually required both to do the work, and then to regulate based on the results of that work, the temptation is to look at these requirements as “check-the-box” exercises that must be done on the way to a rule, often with a predetermined result.
I do have one concern about potential unintended consequences from reform of the rulemaking process. To the extent that agencies perceive it to be harder to issue rules going forward, they may look for other ways to achieve desired results, thereby circumventing the protections and procedures of the reform bills. I saw this operating first hand at the CPSC where “backdoor rulemaking” is not only accepted but embraced. Backdoor rulemaking involves taking enforcement or other action on a category- wide or product- class basis to achieve results that one would normally expect to achieve through rulemaking. So if a product with a particular attribute is deemed to be substantial product hazard and recalled, then that action may, de facto, set the bar for all other products with similar attributes. Transparency and due process are out the door.
Regulators regulate—that is what they do. But category-wide enforcement should not be used as a subterfuge to avoid the regulatory process. As these reform bills advance, Congress will need to be alert to this concern.