Legislation seen as gaining bipartisan Senate support would codify Trump delays of Obama-era rules

February 01, 2018
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Congress is considering legislation that would codify much of what the Trump administration did in its initial days to suspend and review pending Obama-era rules before they took effect, a proposal that if enacted would establish in law a process for future administrations to delay implementation of regulations issued shortly before they took office to permit further review.

The legislation is awaiting a Senate floor vote, which could happen as early as late February, according to congressional sources, setting the stage for a major overhaul of the Administrative Procedure Act for the first time in decades. The bill, S. 951, cleared the Senate Homeland Security and Governmental Affairs Committee with minimal bipartisan support in May, after a similar plan was approved by the House in January 2017 along party lines.

Proponents say political pressures heading into the midterm elections could generate enough Democratic support in the Senate to ensure final passage this year; critics argue the legislation is a veiled attempt at blocking regulations by hampering the rulemaking process, and vow to fight it.

The bill, introduced by Sens. Rob Portman (R-OH) and Heidi Heitkamp (D-ND), would generally impose additional cost-benefit and other review requirements on regulators, and includes provisions to establish a 90-day review process for all rules issued in the final months of an outgoing administration that have not yet taken effect.

The provisions would allow an agency to suspend the effective date of such rules to allow time for additional public comments on whether the pending regulations should be revised or repealed.

“During the 60-day period beginning on a transitional inauguration day..., with respect to any final rule that had been placed on file for public inspection by the Office of the Federal Register or published in the Federal Register as of the date of the inauguration, but which had not become effective by the date of the inauguration, the agency issuing the rule may, by order, delay the effective date of the rule for not more than 90 days for the purpose of obtaining public comment on whether” the rule should be “amended or rescinded” or “further delayed,” according to the text of the bill.

The legislation, if enacted, could allow future administrations to sidestep controversy sparked by the Trump administration's decision to suspend the effective dates of a number of Obama-era rules, which is being challenged by environmental, worker safety and other public interest advocates, who argue the administration must go through a notice-and-comment process before revising or suspending rulemakings.

Trump's outspoken anti-regulation stance has created a political climate that could help final passage of the legislation, according to industry sources who support the effort. Industry lobbyists are hoping to pick up enough Democratic support in the Senate to overcome a 60-vote hurdle as senators from “purple” states might fear opposing what proponents describe as “common sense” regulatory reforms heading into the midterms.

“President Trump's deregulation push will have an enduring impact on federal agencies, and passage of the Senate reg reform bill will cement it,” said an industry source.

There have been a number of regulatory reform proposals introduced in the GOP-controlled Congress since Trump took office, but the Portman-Heitkamp proposal and the House companion version, H.R. 5, are the proposals that have gained the most traction.

“The Regulatory Accountability Act is the only proposal that has legs,” said an industry lobbyist, who expects the bill to reach the president's desk before the November elections.

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