Recommendations and Actions
Much of what an agency can or cannot do to solve a problem is dependent on the legislation that Congress passes requiring or authorizing an agency to take action. Agencies often complain that statutory constraints imposed by Congress are major impediments to more efficient, effective, and sensible regulation.
Legislation that is overly restrictive, too detailed, or poorly conceived or drafted leads to a number of problems. It can force agencies to spend resources on minor or nonexistent problems while major problems remain unaddressed. It is normally the agency that is blamed for issuing "bad" regulations--the agency's defense that Congress gave the agency no choice may not be heard.[Endnote 1] "Bad" regulations gradually destroy the credibility of the agency and are likely to make even its good regulations less acceptable.
Problematic legislation comes in a variety of forms. First, legislation may require an agency to issue regulations that do not solve a problem and, therefore, do not benefit society at large. For example, the Surface Transportation Assistance Act of 1982 required the Secretary of Transportation to issue regulations requiring "splash and spray suppression devices" (fancy mud flaps) on trucks to decrease the amount of spray from trucks that could hinder visibility for car drivers.[Endnote 2] The Department of Transportation's (DOT) testing determined that the fancy mud flaps decreased the amount of spray on car windshields to such a slight degree that it did not improve the car driver's visibility and, thus, had no safety benefits. DOT, however, had no alternative other than requiring fancy mud flaps or seeking a statutory change.[Endnote 3]
Second, overly restrictive legislation does not allow agencies to change regulations as circumstances change. For example, Congress may require a regulatory scheme based on a particular assumption of cause and effect. If further research shows that assumption to be false, the agency may not be allowed to change its approach accordingly and may impose unnecessary costs on the economy.
Third, legislation that requires command-and-control or overly detailed regulation may be preventing the agency from using or developing an innovative approach that would be more effective or efficient.
Fourth, legislation may impose unrealistic (if not outright impossible) deadlines, which either make the agency look bad when the deadlines are not met or may preclude the agency from doing the necessary background work for the rule.[Endnote 4] In 1990, the General Accounting Office studied three statutes that required the Department of Education to issue 83 regulations in 240 days. The sheer volume and complexity of the legal and policy issues involved made it virtually impossible for the Department to issue the regulations within the statutory timeframe.[Endnote 5]
Fifth, legislation may have unintended consequences. For example, a statute might inadvertently preclude the most common device for meeting a statutory goal by setting requirements that the device cannot meet.
NEED FOR CHANGE
Legislation that is overly restrictive, too detailed, or poorly conceived or drafted results from a variety of circumstances, some of which are not unique to the regulatory process--distrust between the executive and legislative branches, lack of congressional technical expertise, congressional failure to understand the difficulties in implementing a regulatory program, and lack of common understanding of complex issues between the legislative and executive branches. This general problem as it relates to regulatory problems is briefly discussed here. A more comprehensive discussion of relations between the executive and legislative branches and recommendations for improving them is contained in the National Performance Review Accompanying Report Creating Quality Leadership and Management.[Endnote 6]
Distrust between executive and legislative branches is one of the major reasons for legislation that is overly restrictive, too detailed or poorly conceived or drafted. Some tension in the relationship between Congress and the executive branch is inherent in our system (especially when two branches are controlled by different political parties). Agencies should perceive Congress as an entity that imposes constraints on the executive. That is a result of the checks and balances established in the Constitution.
Nonetheless, the tension between the executive branch and Congress has risen too high.[Endnote 7] A panel of the National Academy of Public Administration recently concluded that, "[t]he outright confrontation and increasingly competitive relationship between the two branches has a high cost: a political system more and more unresponsive to national problems and unaccountable to the American people for addressing those problems."[Endnote 8] It is time to find a better balance.
Congressional distrust of agencies affects legislation in a variety of ways. In the past decade, Congress was motivated to write overly prescriptive legislation because it feared that an administration that disagreed with congressional policies and goals would substitute administration policy for congressional policy when statutes were ambiguous or flexible.[Endnote 9] Congressional concerns about agencies' inability to issue regulations in a timely fashion, exacerbated by the perception that the Office of Management and Budget (OMB) was holding up agency rules, resulted in Congress imposing statutory deadlines with "hammers" (like that for the food labeling rule) that would impose rigid statutory obligations on private parties if the deadlines were not met.[Endnote 10]
Some problems in legislation also result from a lack of understanding about how agencies work, emerging issues, or the arcane details of existing programs. Very few Members or Hill staffers have worked in agencies or appreciate the complexities of implementing the statutes they write. Agencies have expertise that Congress lacks in specific fields and about the details of existing programs. Although many Members and Hill staffers become quite knowledgeable about programs they oversee, when new issues or scientific breakthroughs occur, Congress and the administration (as well as federal judges) often lack a common understanding of the problems and emerging issues (including an understanding of where the experts disagree).[Endnote 11]
When the administration supports legislation, agency staff provide technical expertise and drafting advice to Congress. This help can be very useful to Congress and, thus, to the agency. It sometimes comes too late, however, because of the time it takes to reach an administration-wide policy on legislation.[Endnote 12] In addition, in the past, some agencies refused to give assistance if the administration disagreed with the legislation. When such legislation passed, though, agencies had to implement it--whether or not they had been able to correct technical glitches.
Other agencies have taken steps to diminish drafting problems, even with legislation with which the administration disagrees. The Department of Agriculture provides a technical drafting service to Congress. Upon written request from a member of Congress or a congressional committee, staff attorneys in the Office of the General Counsel will draft proposed legislative language implementing the requested policy. After clearance within the General Counsel's office, the proposed language is sent back to Congress. The Department makes it very clear that, even though its staff has drafted the legislation, that does not mean that the administration supports the legislation. The service is provided to all requesters regardless of the administration's position.[Endnote 13] The U.S. Fish and Wildlife Service and the Minerals Management Service of the Department of Interior provide similar services.[Endnote 14]
In addition to enhancing an agency's relationship with Congress, providing technical drafting cuts down on the unintended consequences of legislation. When the policy goal is to change a program only partially, the agency's experts are more likely to know how to limit or minimize changes to other parts of the program. The agency's experts should also be more sensitive to implementation problems.
At first blush, it may seem strange to offer to draft legislation with which the agency may disagree, but USDA, the Fish and Wildlife Service, and the Minerals Management Service do not believe that doing so has resulted in legislation passing that would not otherwise have done so.[Endnote 15] Although helping to draft legislation does provide some assistance to the legislation's proponents, it also helps the agency. If the agency experts do not draft or comment on statutory language, it is likely to be written by someone with less understanding of the program, of the ramifications of the legislation, and of implementation problems.
Establish technical drafting services for congressional committees and subcommittees. (1)
Agency heads should require their agencies to provide technical drafting services to chairs and ranking members of congressional committees and subcommittees and to the House or Senate Office of Legislative Counsel as a method of avoiding unintended consequences of legislation. It is important that such service be provided regardless of the administration's substantive policy position. If responses have to wait for determination of administration policy, such a service would not be effective because it will not provide timely input into the legislative process. Because an agency may have to implement legislation with which it disagrees, it should strive to fix technical glitches that may cause implementation problems. Furthermore, if the agency provides the service to all comers, responses cannot be interpreted as an early indication of administration support (which could happen if agencies only provided assistance in response to select requests).
To ensure that it is the agency, rather than the individual staff members, assisting Congress, the service should have the following safeguards built in:
--An agency will designate an office or senior agency official (perhaps the congressional liaison office or the general counsel's office) as the clearinghouse for all technical drafting services.
--Although legislative language normally would be drafted or revised by the agency's technical experts, it should then be cleared by an appropriate senior agency official (or officials). Given the time- sensitive nature of the legislative process and the fact that policy clearance is not needed, the number of levels of clearance should be very limited.
--Requests for statutory language and responses containing such language will be in writing.
--Upon providing the response, the agency shall instruct the congressional committee to disclaim that technical drafting services indicate administration support.
CROSS-REFERENCES TO OTHER NPR ACCOMPANYING REPORTS
Rethinking Program Design, DES01: Activate Program Design as a Formal Discipline.
Creating Quality Leadership and Management, QUAL04: Improve Legislative-Executive Branch Relations.
1. For example, President Bush faced a very difficult political problem in the summer and fall of 1992. The National Corn Growers Association and the ethanol industry claimed that a rule proposed by the Environmental Protection Agency (EPA) would preclude ethanol mixed with gasoline from meeting a federally ordered program requiring cleaner-burning reformulated gasoline. They wanted EPA to allow a special waiver for gasoline mixed with ethanol. The fact that the Clean Air Act did not allow EPA to grant the requested waiver did not stop this political pressure, nor did it stop a Sense of the Senate resolution [Congressional Record, Senate (September 8, 1992), p. S12893] that criticized the Bush Administration's proposed rule. Rosewicz, Barbara, "Big Ethanol Problem for Bush Prompts White House to Mull Special Concessions," The Wall Street Journal (September 8, 1992), p. A3; Babcock, Charles R., "Bush's Sidestep on Ethanol's Fueling Dispute," The Washington Post (September 28, 1992), p. A3.
2. 414 of Pub.L. 97-424, 49 U.S.C. App. 2314 (1988).
3. The Department of Transportation (DOT) eventually succeeded in getting this requirement modified (Surface Transportation and Uniform Relocation Assistance Act of 1987, Pub.L. 100-1 205). Seeking repeal or modification of problematic statutory requirements can be a difficult task, particularly where the requirements are part of a statute that required a great deal of political compromise to pass initially.
4. Administrative Conference of the U.S., Recommendation 78-3, "Time Limits on Agency Actions," 1 C.F.R. 305.78-3.
5. U.S. General Accounting Office, Education Regulations: Reasons for Delays in Issuance, GAO/HRD- 91-4BR (Washington, D.C.: U.S. General Accounting Office, November 15, 1990), pp. 1-2.
6. See "QUAL04: Improve Legislative-Executive Branch Relations," NPR Accompanying Report, Creating Quality Leadership and Management (Washington D.C.: U.S. Government Printing Office).
7. Broder, David S., "Hill's Micromanagement of Cabinet Blurs Separation of Powers," Washington Post (July 25, 1993), pp. A1, A16, A17.
8. A Panel of the National Academy of Public Administration, Beyond Distrust: Building Bridges Between Congress and the Executive (Washington, D.C., January 1992), pp. 2-3.
9. The motivation to grant agencies only very limited discretion may have been increased by the Supreme Court's decision in Chevron USA, Inc. v. NRDC, 467 U.S. 837 (1984), which said that a court would uphold an agency's reasonable interpretation of its statute if the statute was not clear on its face.
10. When Congress passed the Nutritional Labeling and Education Act of 1990, Pub. L. 101-535, it was "tired of what it regarded as the Food and Drug Administration (FDA) and White House foot-dragging on important regulations." Gladwell, Malcolm, "Interagency Fight Puts Overhaul of Food Label Rules on Bush's Plate," Washington Post (November 15, 1992), pp. A1, A24. The statute gave FDA one year to issue a proposed labeling rule and another year to finalize it. 2(b)(1) of the Act. If the final rule deadline was missed, the "hammer" fell and FDA's proposed rule would become effective. 2(b)(2) of the Act. When this occurred at the end of 1992, it caused confusion among the industry and the public, and even greater risk of litigation over the eventual final rule.
11. Carnegie Commission on Science, Technology, and Government, Risk and the Environment: Improving Regulatory Decision Making (Washington, D.C., June 1993), pp. 54-63.
12. Interview with House Government Affairs Committee Staff, June 8, 1993.
13. Telephone interview with James Michael Kelly, Associate General Counsel, Department of Agriculture, August 16, 1993.
14. Telephone interview with Owen Ambur, Chief, Office of Legislative Services, U.S. Fish and Wildlife Services, Department of the Interior, July 22, 1993; telephone interview with Stephen Shaffer, Chief, Congressional and Legislative Affairs, Minerals Management Services, Department of the Interior, July 22, 1993.
15. Telephone interviews with James Michael Kelly, Owen Ambur, and Stephen Shaffer, see supra notes 13 and 14.
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