ARSA CORNER BY CHRISTIAN A. KLEIN, ARSA EXECUTIVE VICE PRESIDENT, ARSA
REGULATORY REFORM IS ON THE FAST TRACK … WILL THE MOMENTUM HOLD?
Our new president and Republican congressional leaders may not see eye to eye on every issue, but one area where there’s overwhelming agreement is the need for regulatory reform. In January, both the Trump White House and Congress took action to reign in the executive branch, but whether the progress will continue remains to be seen. To be clear, ARSA isn’t against
regulation. When done well, regulations help mitigate risk, hold businesses to high standards and promote best practices. ARSA has a long history of engaging constructively with the FAA and other regulators in the United States and internationally to help them better understand the maintenance industry, craft good regulations and improve oversight. But regulation – whether by the
FAA or other parts of the federal government – isn’t always done well. Regulators often fail to take into account competing – and even conflicting – mandates from within and with other agencies. They are slow to respond to economic and technological changes. There’s little retrospective analysis to see whether rules have accomplished their objectives. Thus, long-term consequences of new regulations and the cumulative impact of all regulations can choke an industry. Anti-regulation arguments have become gospel for most Republicans, so it should come as no surprise that regulatory reform is a top priority for the new GOP-controlled Congress and White House. One of President Trump’s
first actions took aim at agency rulemaking. On Jan. 23, he ordered a regulatory freeze designed to give
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the new administration time to review new and pending regulations (broadly defined to apparently include guidance documents). The president directed agency and department heads not to send any new regulations for publication in the Federal Register until someone he appointed has the opportunity to review and approve the proposal. The president’s directive also requires regulators to postpone the effective date by 60 days for regulations that have been published but have not yet taken effect. There are some exceptions for emergencies or urgent circumstances related to health, safety, financial or national security matters. It is clear Trump is serious about
reigning in the federal bureaucracy. Lawmakers on Capitol Hill are, too. In the first few days of the 115th Congress, the House of Representatives passed three regulatory-related bills. The Regulatory Accountability Act (RAA) is the most sweeping. Among other things, it would require agencies to choose the lowest-cost regulatory alternative that meets the objectives of the law under which the regulation is issued. Costlier rules would be permitted only when justified and needed to protect public health, safety or welfare. The bill also repeals Chevron doctrine, a legal principal established by the Supreme Court in the 1980s that says that when a statute requires an agency to act, the courts must defer to an agency’s interpretation of that statute unless the interpretation is unreasonable. The RAA also requires more public input in rulemaking, prohibits major rules from taking effect until court challenges are resolved and requires
plain language summaries of proposals so the public can better understand what agencies are doing. The two other House-passed bills – the Midnight Rules Relief Act and the Regulations from the Executive in Needs of Scrutiny (REINS) Act – would respectively make it easier for Congress to repeal rules codified in the last days of a presidential administration and require congressional approval of “major rules” before they can take effect. Although regulatory reform has momentum on the Hill, the outlook for the bills is uncertain. All three passed the House in the last Congress but none passed Senate (President Obama had threatened vetoes). What’s different now is that regulatory reform advocates have a receptive president but also a smaller Republican Senate majority (52 seats). Bills will still have to overcome Senate filibusters (60 vote threshold), but it’s likely that the ten Democrats up for reelection in states Trump won will come under considerable pressure to support regulatory reform. Whether it will be enough pressure to make real changes remains to be seen.
Christian A. Klein is the managing member of Obadal, Filler, MacLeod & Klein, P.L.C overseeing the firm’s policy advocacy
practice. He represents trade associations as a registered federal lobbyist and provides strategic communications and legal counsel services to clients. He is executive vice president of the Aeronautical Repair Station Association and represents the American Concrete Pressure Pipe Association.
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