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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