U.S. Senators Lankford (R-Okla.) and Sinema (D-Ariz.) propose giving the public early access to the rulemaking process

May 20, 2019

U.S. Senators Lankford (R-Okla.) and Sinema (D-Ariz.) propose giving the public early access to the rulemaking process

Ballotpedia News

A proposed bill would require agencies to request written feedback from interested people regarding new major rules earlier in the regulatory process. Senators James Lankford (R-Okla.) and Kyrsten Sinema (D-Ariz.) introduced Senate Bill 1419, the Early Participation in Regulations Act, on May 13, 2019. The act requires agencies to issue advance notices that they will be proposing a rule at least 90 days before the agency publishes the proposed rule in the Federal Register.

The act states that advance notices have to provide time for interested people to submit their views to the agency in writing and have to include the following:

  • The nature of the problem the agency plans to address with a new major rule
  • The data the agency expects to use to formulate the rule
  • A description of the regulatory alternatives the agency is considering
  • The legal authority under which the major rule may be proposed
  • An achievable objective for the major rule

S. 1419 follows other federal standards and defines major rules as those that have or are likely to have the following results:

  • An annual effect on the economy of $100 million or more
  • A major increase in costs or prices for consumers, individual industries, government agencies, or geographic regions
  • Significant effects on competition, employment, investment, productivity, innovation, health, safety, the environment, or on the ability of U.S.-based enterprises to compete with foreign-based enterprises in domestic and export markets

Rules that do not require published notices of proposed rulemaking (NPRM) in the Federal Register are not subject to the act. Those exempted rules include guidance documents, which are interpretive rules, policy statements, and agency rules of organization. Beyond guidance, agencies can choose not to publish NPRMs for new rules if they find good cause and explain their reasoning in the rule they issue. Finally, if the administrator of the Office of Information and Regulatory Affairs (OIRA) determines that compliance would not serve the public interest or would be too burdensome and redundant based on the requirements of other laws, then the agency does not have to publish an advance notice of proposed rulemaking (ANPRM) under the act. OIRA is an office within the Office of Management and Budget (OMB) that handles regulatory review, information collection requests, and oversight of government statistics and privacy policies.