Improving the Process of Making Rules at Independent Agencies

As a Commissioner of the U.S. Consumer Product Safety Commission (CPSC), I have found that we could greatly improve the Agency’s functioning by adopting several rulemaking procedures. Some of these procedures, like the publication of a regulatory agenda, are time-honored principles espoused by a long line of executive orders, while others, such as pay-go requirements that force agencies to consider the collective economic costs of their rules, are emerging practices used in other countries. Four key procedural steps could greatly improve rulemaking at CPSC and other independent agencies.

First, independent agencies like CPSC should be expected to improve the accuracy and timeliness of their regulatory agendas. The regulatory agenda concept began with Executive Order 12,044, issued by President Jimmy Carter in 1978. Its plainly stated purpose was “to give the public adequate notice” of how agencies would be spending their time in the near term, which would allow for and encourage meaningful public participation in the regulatory process. The Regulatory Flexibility Act (RFA) extended the regulatory agenda requirement to all agencies, including independent agencies.

President Ronald Reagan’s Executive Order 12,291 retained the agenda requirement and broadened it from significant rules to all rules. President Bill Clinton’s Executive Order 12,866 added a requirement for the issuance of a regulatory plan, which would highlight “the most important significant regulatory actions that the agency reasonably expects to issue in proposed or final form in that fiscal year.” Most recently, President Barack Obama’s Executive Order 13,563 expressly reaffirmed the principles and requirements of Executive Order 12866.

Despite a 40-year history of presidents and Congress uniformly endorsing the principle behind regulatory agendas so interested parties can plan their participation in the regulatory process, CPSC appears not to have endorsed that principle. CPSC’s regulatory agenda contains regulatory projects that have been entirely stagnant for years—some that have been around for decades. It also includes proposals that have been described as not being among the Agency’s priorities, yet our attempts to align the agenda with the Agency’s actual work have too often been summarily rebuffed. As a result, stakeholders must piece together disparate, and sometimes conflicting, statements from a variety of sources, rather than simply relying on the Agency’s regulatory agenda to identify the Agency’s priorities. The Agency’s outdated agendas run the risk of not only under-informing the public, but also actively misleading them as to what projects the Agency will spend its time on in the coming year.

Read more of this The Regulatory Review op-ed by Joseph P. Mohorovic by clicking here.