Senator pushes back against lack of transparency, accountability in regulatory process

What do lawmakers say is missing when it comes to the regulatory process? The voice of those affected by an influx of regulations.

Sen. James Lankford (R-Okla.) has introduced a total of four bills in March 2017 to mitigate the issue he said makes the regulatory process lack transparency, understandability and most importantly, accountability.

“No small business owner (or average federal worker) in America wakes up every day to be able to read the Federal Register, nor do they understand what actually comes out,” Lankford, chairman of the Homeland Security and Government Affairs subcommittee on regulatory affairs and federal management, said on Federal Drive with Tom Temin. “If we are going to be a nation of the people, by the people, for the people, we should make sure as many people as possible be a part of the regulatory process just like they are in the legislative process.”

It is not the amount of regulations that is the problem, as they are a function of law, but the process by which an idea turns into a regulation, the lawmaker said.

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Out of the four-bill package, the most notable is the Early Participation in Regulations Act. If passed, the bill would require agencies to publish an advanced notice of proposed rulemaking (ANPRM) at least 90 days before they publish an official notice for all major regulations.

“An advanced notice of proposed rulemaking for major rules gives everyone an equal opportunity to be able to contribute their ideas before you actually get to the language portion of writing a regulation,” Lankford said.

The advanced notice would also consist of a plain language summary, proposed with the Providing Accountability Through Transparency Act, to give everyone involved an equal opportunity to prepare and understand which agencies and offices the regulation or rule applies to and what it will do.

Listen to Sen. James Lankford (R-Okla.) on Federal Drive with Tom Temin

In addition to the early participation and accountability bills, the package also includes the Better Evaluation of Science and Technology Act focused on ensuring the science behind regulations is “sound,” and the Truth in Regulations Act to amend what can and cannot be added to agency guidance documents to prevent abuse.

“This package of bills will ultimately result in better regulations, because it will make the rulemaking process more efficient by requiring earlier public engagement for proposed rules, curbing the abuse of agency guidance documents, and forcing agencies to analyze the total impact regulations have on small businesses,” the March 8 press release said.

Another solution is to give the Office of Information and Regulatory Affairs (OIRA), within the Office of Management and Budget, a more active role in the process. Congress created OIRA, which Lankford called “the most important office no one has ever heard of,” essentially to give the administration its own referee or scorekeeper, the senator said.

Lankford said it is difficult to take control away from an agency once they are given the power to regulate a certain area and because of this, OIRA is not always as engaged in the process as they should be.

“What we have to do is be able to write better statutes in the future with better oversight and that also require the administration, when they do promulgate rules, [to ensure] more people are involved [and] more input is there and the facts that they rely on are well respected,” Lankford said.

Two different business session markups have already been established for the bills and should occur within the next month, Lankford said.

Sens. John Hoeven (R-N.D.), James Risch (R-Idaho) and Chuck Grassley (R-Iowa) also joined with Lankford to propose the Small Business Regulatory Relief Bill, aimed at ensuring small businesses are not ignored during the process.

Another regulatory reform bill, the Regulations from the Executive in Need of Scrutiny Act (REIN), recently passed in the House.

Lankford said his bills complement the REIN Act by providing a “wise way to be able to do the process that again builds trust … and in the long term benefits the American people.”