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23 Admin. & Reg. L. News 1 (1997-1998)

handle is hein.journals/admreln23 and id is 1 raw text is: I Published by the Section of Administrative Law and Regulatory Practice * American Bar Association Fall 1997 • Vol. 23, No. I Regulatory Reform: The Long and Winding Road by John F Cooney* On June 27th, Senators Thompson, Levin, and six co-sponsors introduced The Regulatory Improvement Act of 1997 (S.981), the most recent vehicle in the 20 year long effort to reform the rulemaking process. [Part of the Section's Fall Meet- ing will involve a program on S. 981. See Chair's Message on page 2. The Thompson-Levin bill is a bipartisan, bare-bones measure that incorporates the provisions that enjoyed consensus support after the shooting war over regulatory reform in the last Con- gress. It has three principal provisions: First, for major rules with an impact of over $100 million, the bill would require agencies to perform cost-benefit analyses and, if the rule protects health, safety, or the environment, to conduct risk assess- ments. Unlike the Republican bills from 1995, the cost-benefit analysis would simply provide informa- tion to the public and would not serve as a mandato- ry decisional criterion. Further, the process by which an agency conducts the cost-benefit analysis and risk assessment would not be subject to separate judicial review, although these documents would be part of the rulemaking record. Second, the bill would require each agency that has issued a major rule in the last 10 years to estab- lish an advisory committee that would provide non- binding advice to the agency head about rules that should be considered for revision. After a public comment process, the agency must publish a sched- ule of those rules, if any, it proposes to revisit. All reviews must be completed within five years of pub- lication of the schedule, but the agency is not obliged to revise any rules that are studied. Third, the bill would grant explicit statutory authorization for the OMB regulatory review process. S. 981 would, however, expand the scope of OMB's disclosure obligations, which are now limited to doc- uments generated by its Office of Information and *Venable, Baetjer, Howard & Civiletti, Washington, D.C. Regulatory Affairs under an executive order. The bill's disclosure provisions would apply to other parts of OMB, notably to its budget examiners. In the Reagan Administration, OMB argued with the Department of Justice for three years over the execu- tive privilege implications of its desire to disclose OIRA's regulatory communications. The Attorney General ultimately dictated that OIRA communica- tions could be dis- closed, but not those from other parts of < ,- -%; ,- OMB. The proposed . extension threatens to Chair's Message reopen that separation of powers issue. of 981ow s intro- News from the Circuits S. 981 was intro- duced shortly before ___ President Clinton Supreme Court News approved EPA's issuance of final rules News from the States to revise the primary national ambient air quality standards for Recent Articles of Interest ozone and particu- lates (NAAQS). Section Internet Resources Even though the Clean Air Act's requirements for Fall Meeting NAAQS are general- Committee Meetings ly believed to be ' 2 inconsistent with the concepts in the regu- latory reform bill, the regulatory policy debate that preceded the President's decision was in fact con- ducted consistently with the most important regula- tory principles incorporated in S. 981. Cost-Benefit Provisions. Section 623 of S. 981 would require a Federal agency, Continued on page 10 Produced by the ABA Publishing Copyright © 1997 American Bar Association

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