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Crossing the Aisle to Streamline Regulation

By: By Susan E. Dudley, Sally Katzen

Bipartisanship isn’t dead, even when it comes to streamlining regulation. Sens. James Lankford (R., Okla.) and Kyrsten Sinema (D., Ariz.) have introduced two bills with surgical fixes to the regulatory process—one to promote public engagement; the other, a review of existing regulations with an eye toward changing course if they aren’t working. Presidents from both parties have pursued both objectives with uneven results, so a legislative fix would be salutary.

Government agencies have long been required to seek public comment on regulatory proposals. Yet the opportunities for public engagement often come after agencies have invested time and energy in researching problems and potential solutions, analyzing alternatives, and justifying their preferences within the agency and during interagency review. They may become locked into their proposals and less receptive to modifications, let alone dramatically different approaches.

The Early Participation in Regulations Act would require agencies to issue advance notices of proposed rule-making for significant regulations. Agencies would use these notices to share their early thinking on whether a problem requires a regulatory solution and what the options are. They could gather input from knowledgeable entities on what direction to take, available data, models, etc., before framing decisions or establishing positions.

If an agency takes this step at the outset of its internal deliberations, it should not slow the rule-making process. To the extent the advance-notice process invites input on deliberations that would otherwise have taken place behind closed doors, it may make the overall rule-making process more efficient.

Meanwhile, retrospective evaluation has a long tradition in the private sector and in programs financed through the fiscal budget, but it has gotten little traction in the regulatory arena. The Setting Manageable Analysis Requirements in Text Act—the Smart Act—would address that problem by requiring agencies to include in major regulations a framework for measuring effectiveness and to incorporate plans for gathering the information necessary for an ex post evaluation. Planning for retrospective review when the agencies (and commenters) are in the process of developing the final rule would focus their attention on how to evaluate a rule’s ultimate costs and benefits at a time when the rule (and its alternatives) are foremost in their minds. After 10 years, agencies would be expected to assess the rule’s outcomes, evaluate how well it is accomplishing its objectives, and determine whether it could be modified to achieve better results. 

The Smart Act would ensure not only that existing major regulations are evaluated, but that new major rules facilitate such evaluation in the future. It focuses not only on reducing regulatory burdens, but also on improving outcomes by subjecting regulations to rigorous evaluation and feedback. The bill would create an evaluation mind-set and a mechanism by which agencies would learn lessons and apply them to improve future rules.

The two bills offer modest yet important changes to current rule-making practices. If enacted, they could make regulatory decisions more transparent and accountable, leading to improved outcomes for the American people. 

Ms. Dudley and Ms. Katzen served as administrator of the Office of Information and Regulatory Affairs in the George W. Bush and Clinton administrations, respectively. 

 

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