Markup of H.R. 2542, the "Regulatory Flexibility Improvements Act of 2013


Markup of H.R. 2542, the "Regulatory Flexibility Improvements Act of 2013

Opening Statements

Statement of the Honorable John Conyers, Jr.
for the Markup of H.R. 2542
the "Regulatory Flexibility Improvements Act of 2013," by the Subcommittee on Regulatory Reform, Commercial and Antitrust Law
Wednesday, July 9, 2013, at 10:00 a.m.
2141 Rayburn House Office Building

        Under the guise of protecting small businesses from putatively burdensome regulatory requirements, the "Regulatory Flexibility Improvements Act" is actually yet another attempt to:

  • prevent regulatory agencies from promulgating regulations that protect the health and safety of Americans;
  • overwhelm regulatory agencies with unnecessary and costly analyses; and
  • give well-financed businesses and anti-regulatory organizations greater opportunities to thwart the rulemaking process.      

       Not surprisingly, similar legislation considered in the last Congress was opposed by the Obama administration, which issued a veto threat, stating that the bill "would seriously undermine the ability of agencies to execute their statutory mandates" and " impede the ability of agencies to provide the public with basic protections."

       And, many of the nation's leading consumer, labor, and environmental organizations have expressed similar concerns about this "dangerous" measure, including –

  • the AFL-CIO,
  • the American Lung Association,
  • the Consumer Federation of America,
  • Consumers Union,
  • the Natural Resources Defense Council,
  • Public Citizen,
  • the United Auto Workers, and
  • the National Women's Law Center,

just to name a few.


       One of my principal concerns about this bill is that it could jeopardize Americans' health and safety.

       Our federal agencies are charged with promulgating regulations that impact virtually every aspect of our lives, including the air we breathe, the water we drink, the food we eat, the cars we drive, and the play toys we give our children.  

       Small businesses, like all businesses, provide services and goods that also affect our lives.  So, it makes no difference to a victim who breathes contaminated air or drinks poisoned water, whether the hazards were caused by a small or large business.

       The far-reaching legislation before us today would undermine the ability of federal agencies to quickly respond to emergent health and safety concerns.

       Section 5 of the bill, for example, repeals the authority under current law that allows an agency to waive or delay the initial analyses required under the Regulatory Flexibility Act "in response to an emergency that makes compliance or timely compliance . . . impracticable."

       Instead, the bill empowers the chief counsel for advocacy to issue regulations about how agencies in general should comply with the Act.           

       So, imagine if there is an epidemic E. coli or listeria infection detected in our nation's food distribution network, or an imminent environmental disaster that could be addressed systemically through regulation, this bill says "Don't worry.  Don't rush.  Let's have the Chief Counsel for Advocacy decide."

       This override of an agency's authority to respond to emergencies without having first go through the arduous and time-consuming task of review and analysis is simply wrong.   

       Another problem with this bill is that it will result in the wasteful expenditure of taxpayer dollars by forcing agencies to redirect their scarce resources to meet the bill's needlessly burdensome compliance requirements.

       Section 6 of the bill, for example, would require agencies to review not only all rules currently in effect, but, in addition, all guidance documents in effect as of the bill's date of enactment. 

       We are talking about thousands of pages of regulations in the Code of Federal Regulations and several hundred thousands of guidance documents.

       This requirement even applies to regulations that have provided long-proven health safeguards, such as regulations banning lead in gasoline.

       It is no wonder that the Congressional Budget Office estimates that it will cost $80 million over a five-year period to implement the bill's new requirements. 

       We understand that some small businesses often have limited resources and that they can be more vulnerable to unnecessary, redundant, or conflicting regulations than their larger counterparts.

       But, we are not talking about your typical Mom and Pop small businesses under this bill.  No, this bill applies to businesses that employ up to 500 workers. 

       And, the answer is not to burden the agencies that are responsible for protecting public health and safety.  Rather, our goal should be to help small businesses comply with these regulations.

       By overburdening the very agencies charged with protecting us, this bill clearly prioritizes corporate special interests.

       What a waste of scarce taxpayer dollars. 

       A further concern I have about this bill is that it will result in paralysis by analysis and give corporate interests too much control over the rulemaking process.

       Section 2 of the bill, for example, would task agencies with the duty to examine the indirect economic effects of proposed regulations on small businesses, which would be in addition to their current obligation to assess the direct effects of these regulations.

       Now I ask you: what is an "indirect economic effect" of a regulation?  Just think of the litigation that well-funded businesses and anti-regulatory organizations could fund to stop a rulemaking.

       This bill, if ever enacted, would force agencies to conduct highly speculative and labor-intensive assessments, all of which could be subject to litigation by well-financed business interests. 

       Agencies would be required to engage in a virtual guessing game to divine the indirect effects of a proposed regulation, which, of course, would be subject to judicial review.

       Other ways in which the bill will result in regulatory paralysis are the following:

  • It greatly expands the types of rules subject to analysis under the Regulatory Flexibility Act;
  • it mandates that agencies prepare excessively detailed analyses for proposed rules; and  
  • it requires review panels to ensure that certain rules issued by all agencies – not just the three agencies under current law, namely,  Environmental Protection Agency, OSHA, and the CFPB – consider the interests of small businesses.

      Glaringly missing from the bill is any provision requiring consideration of public interest concerns and of the benefits of regulations.

       This is a harmful bill that could potentially put the health and safety of all Americans at risk while adding nothing to the efficiency or cost-effectiveness of agency rulemaking. 

       Accordingly, I strongly oppose this bill.