[Congressional Record Volume 157, Number 142 (Thursday, September 22, 2011)]
[Senate]
[Pages S5905-S5906]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. PORTMAN (for himself, Mr. Pryor, and Ms. Collins):
  S. 1606. A bill to reform the process by which Federal agencies 
analyze and formulate new regulations and guidance documents; to the 
Committee on Homeland Security and Governmental Affairs.
  Mr. PRYOR. Mr. President, I have heard from many Arkansans and 
businesses, particularly small businesses, which are struggling to meet 
an increasing regulatory burden. Each year, Federal agencies issue more 
than 3,000 final rules, many of which have significant economic impact. 
In Executive Order 13563, President Obama emphasized that our 
regulatory system should promote ``economic growth, innovation, 
competitiveness, and job creation.'' I agree. We need a 21st-century 
regulatory system that promotes future prosperity. However, there are 
some rules where that goal appears to have been ignored and as a result 
our economy suffers.
  Experience suggests that improvements in the regulatory process are 
necessary to ensure that all agencies pay close attention to the impact 
their regulatory actions have on jobs and on the economy.
  For example, the EPA is currently considering more stringent 
regulations of dust as part of the national ambient air quality. From 
county roads to farm fields, dust is an unavoidable reality in rural 
areas. Imposing strict dust regulations on these communities would hurt 
family farmers and rural economies across Arkansas and our Nation.
  Another example comes from a county judge in Arkansas. He was rightly 
concerned about a regulation stemming from the Bush administration that 
would have cost municipalities and counties and States across the 
country tens of millions of dollars to replace their street signs. The 
burden of paying for hundreds of thousands of new signs at costs 
ranging anywhere from $30 to $110 would have fallen to State and local 
governments, and that means State and local taxpayers. Fortunately, as 
part of the administration's review of regulations, Transportation 
Secretary Ray LaHood has decided that a specific deadline for replacing 
street signs makes no sense and that local and State transportation 
agencies are best equipped to determine when they need to replace these 
signs in the course of their daily work.
  In his Executive order, President Obama remarked that the regulatory 
system ``must identify and use the best, most innovative, and least 
burdensome tools for achieving regulatory ends.'' Last month, Cass 
Sunstein, the Administrator of the Office of Information and Regulatory 
Affairs, wrote in the Wall Street Journal that Cabinet Secretaries were 
instructed to minimize regulatory costs, avoid imposing excessive 
regulatory burdens, and prioritize regulatory actions that promote 
economic growth and job creation. I applaud the administration's new 
directive.
  One difference in what the administration is doing versus what we are 
doing in the Portman-Pryor legislation is that the President is looking 
retrospectively. He is doing a review of regulations that are on the 
books now, which is good. I welcome that. But the Portman-Pryor 
legislation will be prospective; it will go forward. We will talk about 
that more as we go.
  I think it is time that Congress reviewed several of the laws that 
form the basis of our Federal regulatory system. We need to find ways 
to make these laws more fair, reasonable, and effective in meeting the 
dual challenges of protecting the public while making our economy 
stronger and more competitive. That is why I have teamed up with 
Senator Portman on this important legislation.
  Done right, I believe regulatory reform can lead to better, cheaper, 
and faster rulemaking. Specifically, agencies should, one, propose or 
adopt regulations only when the benefits justify the costs; two, write 
regulations so that they impose the least burden on society; and three, 
in choosing among alternative regulatory approaches, select those that 
strike the right balance between minimizing costs and maximizing 
benefits.
  Portman-Pryor amends the Administrative Procedures Act to place 
greater

[[Page S5906]]

emphasis on early engagement between agencies and parties subject to 
high-impact rules costing $1 billion or more per year and major rules 
costing $100 million or more. These expensive rules are where our focus 
should be. In fact, as a historical footnote, the Administrative 
Procedures Act was written in 1946 and has not really been revised and 
updated since that time. So now that it is 65 years old, I think it is 
time to look at it and update it.
  Portman-Pryor makes better use of two existing regulatory tools. It 
requires an advanced notice of proposed rulemaking for high-impact and 
major rules to enable agencies to solicit written data, views, or 
arguments from interested parties. Second, although the Administrative 
Procedures Act already allows for formal hearings, agencies rarely use 
this option. Portman-Pryor requires an agency to conduct a formal 
rulemaking hearing for high-impact rules and, in some cases, major 
rules so that data and information can be debated on the record--here 
again, on the record. We are trying to make this process more 
transparent.
  Portman-Pryor strikes a balance between minimizing costs and 
maximizing benefits. The bill makes clear that the agencies are 
encouraged to choose the least costly alternative that would achieve 
the objectives of the statute authorizing the rule. However, the bill 
also makes clear that the agency may choose--may choose--a more costly 
rule so long as it does two things: one, explains why it has done so 
based on policy concerns addressed by the statute authorizing the rule 
and, two, shows that the added benefits are greater than the added 
costs, which is by definition a push toward ``maximizing benefits.''
  Today, the length of rulemaking varies widely from a few months to 
several years. After this reform, times will still vary in about that 
same amount, but the final rules should be more stable and more 
credible. A principal goal of Portman-Pryor is that the bill may 
shorten the rulemaking process because the final rule will be based on 
more sound, thorough information and that fewer high-impact and major 
rules will be vacated by courts and sent back to the agency.
  Finally, the bill reinforces that agencies must assess both the costs 
and benefits of their rules. However, the bill requires the 
Administrator of OIRA to establish guidelines so that costs-benefit 
analysis can be commensurate with the economic impact of the rule.
  Regulatory reform is not an exciting subject, I know, but it is 
vitally important to our Nation's economic recovery. I look forward to 
working with Senator Portman on this important legislation. I also look 
forward to working with other colleagues to try to get them interested 
and possibly cosponsoring and helping us get this bill through the 
process.
  My final point is that this is a piece of legislation which not only 
is bipartisan but is bicameral. We have two Members of the U.S. House 
of Representatives who have announced this legislation with us today: 
Lamar Smith, who is chairman of the Judiciary Committee, and Collin 
Peterson, who is the ranking member on the Agriculture Committee in the 
House. So it is rare when we get bipartisan, bicameral legislation 
coming in this Congress.
  I hope--I sincerely hope--I will have colleagues on both sides of the 
aisle who will look at this legislation. I hope we will get broad 
bipartisan support and we will be able to move it through the 
committees and get it to the floor in a timely fashion.
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