Senate Bill Would Codify Benefit-Cost Analysis and Guidance Procedures

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Senator proposes legislation to require cost-benefit analysis and steps for issuing non-binding guidance.

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Last week, Senator Susan Collins (R-ME) introduced the Clearing Unnecessary Regulatory Burdens Act (S. 602), a bill that would require agencies undertaking significant regulatory actions to submit cost-benefit analyses of those actions.

The so-called CURB Act would legislatively impose requirements similar to those now found in Executive Order 12866, originally adopted by President Bill Clinton and retained by both Presidents George W. Bush and Barack Obama.

The CURB Act would require agencies to submit to the Office of Information and Regulatory Affairs an analysis showing the benefits any significant new regulation would have in terms of improving the economy, protecting health and safety, cleaning the environment, or eliminating discrimination. Agencies would also need to estimate the costs of the regulation, and then quantify both the benefits and the costs whenever possible. Agencies would be required to compare the costs and benefits of the proposed regulation with those of reasonable alternatives, explaining why the agency’s chosen option is best.

In January of this year, President Obama took a widely publicized step of formally affirming the value of applying benefit-cost analysis to proposed regulations. At the same time, he asked for a government-wide review of existing regulations, calling upon agencies to repeal or modify those regulations that place an “unnecessary burden on businesses.”

In the name of eliminating unnecessary burdens, the CURB Act would go beyond just codifying key elements of Executive Order 12866. It would also create additional procedures for agencies to follow in issuing legally nonbinding “guidance” documents.

Agencies would need to establish internal procedures for the review and approval of any significant guidance document by “appropriate senior agency officials.” Except in special circumstances, agencies would also need to provide notice of a draft significant guidance and allow the public an opportunity to provide comments on the draft. Under the CURB Act, agencies would also need to maintain online lists of their significant guidance documents.

A significant guidance document, like a significant regulatory action, is defined in the bill in terms virtually identical to those in Executive Order 12866. Significant guidance documents are those that would have a $100 million or greater annual economic impact, interfere with another agency’s actions, materially alter an entitlement, or raise a novel legal or policy issue.

By imposing additional procedures on the development of guidance documents, the CURB Act revisits an issue controversially addressed by President George W. Bush during his second term. At that time, President Bush issued Executive Order 13422 which required agencies to submit drafts of significant guidance documents for White House review.

As Professor Cary Coglianese of the Penn Program on Regulation has noted, critics of Executive Order 13422 charged that it placed a bottleneck on the work of government agencies. Soon after assuming office, President Obama revoked Executive Order 13422.

The CURB Act’s new procedures for guidance documents will thus likely prove to be the bill’s most controversial provisions. After all, agencies already must conduct benefit-cost analyses of significant regulations – a requirement imposed not only by executive orders but also by Congress through the Unfunded Mandates Reform Act of 1995.

The CURB Act is also notable in its silence on the question of judicial review. Both the Unfunded Mandates Reform Act and Executive Order 12866 clearly limit the courts’ ability to review the adequacy of agencies’ benefit-cost analyses. The executive order makes plain that the courts have no power whatsoever to enforce any of its provisions. By contrast, the CURB Act’s silence on this matter is deafening. If enacted, it would undoubtedly introduce, at least initially, a new source of legal contestation over both regulations and guidance documents.

The CURB Act is co-sponsored by John Barrasso (R-WY) and Pat Roberts (R-KS).  In introducing the bill, the CURB Act’s sponsors said it would protect small businesses and promote job growth by obligating federal agencies to consider the impacts of their actions before establishing new regulations or guidance documents.