By Kevin R. Kosar In the waning days of 2006, Congress passed the Postal Accountability and Enhancement Act. The statute made myriad changes to postal law and tasked the Postal Regulatory Commission with a big job: issuing regulations to establish a new system for pricing the postage everyone pays to send mail and parcels. To its credit, the PRC got the work done way before the 18-month deadline.
Would that more agencies were so successful. Collectively, federal agencies missed 1,400 deadlines in the past 10 years, a new R Street Institute study finds. That amounts to nearly half the deadlines Congress set in law. In some cases, agencies have been years late in meeting their deadlines.
This a serious problem and one that should concern both Democrats and Republicans. The missed deadlines delay implementing various policies passed by Congress and signed by the president. The Food and Drug Administration was late in developing regulations for food sold in vending machines. The Department of Commerce was slow in issuing regulations to reduce accidental deaths of bottlenose dolphins from commercial fishing. The Department of Transportation was dilatory in finalizing rules to suspend the licenses of truck drivers convicted of safety violations.
It should be noted that missing a regulatory deadline is a violation of federal law. Congress directed an agency to complete implementation of a policy by a specific data and the agency failed to heed that order.
Which leads to a second problem— uncertainty. Inevitably, regulations have costs and benefits for whomever is being regulated. New rules also affect agency operations by adding tasks to their workload. Knowing what a regulation will require, and when it will take effect, helps affected individuals, businesses and authorities prepare for the changes. States, health insurers, doctors, hospitals and millions of individuals were affected by the Patient Protection and Affordable Care Act. Yet, the Department of Health and Human Services and other agencies missed half the Obamacare regulatory deadlines.
Why do agencies miss so many deadlines? In some cases, Congress sets deadlines that are too short. Producing a federal regulation is a time-intensive process, requiring research, public comment, review by the Office of Management and Budget and still more steps. Usually, it takes agencies at least a year to issue a new regulation, and sometimes many years. Yet Congress frequently sets deadlines of only a year or two.
However, it also is the case that agencies sometimes drag their feet and rarely suffer a penalty.
Remarkably, Congress itself has no system to oversee all the regulatory deadlines it assigns. When drafting a bill that imposes new deadlines, members have no way to see how many deadlines already have been assigned to an agency or whether they've been met. Committee staff do try to follow regulatory policy, but it's very much catch-as-catch can. With about 2,700 new regulations issued and another 4,000 finalized each year, there simply is not enough manpower or hours in the day.
To address this crippling institutional weakness, Congress should establish a Congressional Regulatory Affairs Office, a proposal that has bipartisan support. Modelled on the nonpartisan Congressional Budget Office, this new agency would track the progress of regulations toward completion and notify oversight committees when agencies miss deadlines. Regulatory policy is astonishingly complex; the CRAO’s experts could provide direct regulatory research support to committees and individual members. The CRAO also could critically examine agencies' cost-benefit calculations, which almost inevitably declare proposed regulations will provide a net benefit to America.
Such an agency would not be expensive. The CBO costs less than $50 million per year and CRAO could be set up for much less. Those who think we can't afford a CRAO should consider this: an outside assessment of proposed dishwasher-efficiency rules estimate they will cost the public $5 billion more than their estimated environmental benefits. That's just one regulation. Each year executive agencies issue about 80 major rules with economic effects of $100 million or more. By making regulations smarter and regulators more responsive to the public, the CRAO would more than cover its paltry cost.
Kevin R. Kosar is the Director of the Governance Project and a Senior Fellow at the R Street Institute.