Ensuring Accountability in Agency Rulemaking Act

Floor Speech

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Mr. NADLER. Madam Speaker, I yield myself such time as I may consume.

Madam Speaker, the so-called Ensuring Accountability in Agency Rulemaking Act is a misguided proposal that will ensure that the process of confirming nominees to administrative agencies is even more politicized and onerous than it is today, while also blocking the regular work of our executive branch agencies.

This bill would require any agency rule promulgated under the Administrative Procedure Act to be issued and signed by someone who was appointed to their position by the President and confirmed by the Senate. This requirement, on its face, may seem innocuous, but it provides Congress with a weapon it can wield to prevent ongoing work of agencies by blocking a President's nominations and leaving an agency without an eligible person to issue regulations.

In the past few decades, the process for Senate confirmation has lengthened considerably. Although we have passed measures like the Federal Vacancies Reform Act to ease this burden, there are still over 1,000 executive branch roles that would require Senate confirmation, and far too many go unfilled for years at a time as it is.

By requiring that rulemaking must be initiated and signed by a Senate-confirmed leader, this bill will make the confirmation process even more politicized, and it could give individual Senators even more incentive to block nominations for the sake of a partisan goal.

This would add unnecessary delay in the creation, promulgation, and implementation of critical new rules, rules that serve to protect the public's health, safety, and security.

The bill's sloppy drafting also adds ambiguity to the process. For example, the bill requires that any rule must be ``initiated'' by a senior appointee, but what action qualifies as ``initiating'' a rule?

Is it when it is first raised in a meeting at the agency?

Is it when staff starts drafting a notice of proposed rulemaking?

Is it when a proposed rule is put out for notice and comment?

Is it something in between?

We do not know.

Determining the answers to these questions will only lead to years of litigation and yet more delay.

To the extent that the bill's sponsors are concerned about transparency and accountability in the regulatory process, Congress already has many ways to exercise its authority over the administrative process. For example, Congress can disapprove regulations under the Congressional Review Act, a power this majority has not been shy in using. It can limit agencies' rulemaking authority, it can restrict the use of funds to implement regulations, and it can conduct oversight of agency activity, among other powers.

Madam Speaker, this legislation is just the latest effort by Republicans to undermine the regulatory process, a process that protects our health and safety each and every day. Regulations ensure that we have clean air to breathe, clean water to drink, and safe food to eat. They ensure that children's toys and cribs are safe, that medications are safe and effective, and that the planes, trains, and automobiles we depend on for transportation will keep us safe. They ensure that consumers are protected from fraud and discrimination, that workers are treated fairly, that veterans are fairly compensated for their service, and so much more.

Nevertheless, Republicans want to stop this process in its tracks and put our health and safety at risk.

I urge all my colleagues to oppose this legislation, and I reserve the balance of my time.

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Mr. NADLER. Madam Speaker, the gentleman from Virginia says that recess appointees could help solve this problem, but a recess appointee is not confirmed by the Senate and, therefore, under the terms of this bill could not approve any regulation. The recess appointee question is irrelevant and doesn't mitigate the harm of this bill in any way.

Madam Speaker, I yield 2 minutes to the distinguished gentlewoman from Texas (Ms. Jackson Lee).

Ms. JACKSON LEE. Madam Speaker, I thank the gentleman very much and his good friend as well for yielding, and I appreciate their intent, but let me be very clear: What we have here is a complete collapse of a system that is attempting to save lives.

Our administrative process, our administrative APA, these individuals are grounded with the expertise of the particular agencies that they are in.

Under this legislation, what we would have is a complete politicizing of the Presidentially appointed and Senate-confirmed appointees because that would be another monkey wrench, if you will, into why they should not be confirmed.

In addition, this will encourage gamesmanship. If you think the confirmation process is slow, wait till this bill becomes law.

Congress already has, and the Republicans have used it quite often, the Congressional Review Act so that we can determine whether or not rulemaking or a particular issue is one that is not only reviewed but should be changed.

In the rulemaking process with experts that we oversee, because we have congressional hearings, we are dealing with clean air, clean water, safe toys, safe cars, and safe workplaces, but, more importantly, as I was sitting in a meeting today, we are dealing with a new initiative dealing with taking lead out of water.

Do we want to stop the process of removing lead from the water that our children drink because we implement this particular procedure that will stop our Presidentially-appointed officials from doing their job, from helping us to ensure that our children are safe?

This is a slowdown. This is where lives are not saved. I would argue to my friends that this legislation, unfortunately, should not move forward because there is too much good work going on and the work that is going on will be thwarted, will be stopped.

Madam Speaker, I include in the Record a letter from the AFSCME, American Federation of State, County, and Municipal Employees, who oppose this particular legislation, along with the administration policy statement as well as a number of other agencies. AFSCME, December 11, 2023. House of Representatives, Washington, DC.

Dear Reprssentative: On behalf of the 1.4 million members of the American Federation of State, County and Municipal Employees (AFSCME), I write to express our strong opposition to the Ensuring Accountability in Agency Rulemaking Act (H.R. 357), because it would deliberately create unnecessary and confusing bureaucratic hurdles for agency officials as they work to promulgate essential rules for public health, environment and worker protections.

H.R. 357 would create uncertainty within agencies and would stifle effective government functioning. While H.R. 357 purports to improve agency accountability, the proposal actively undermines the constitutional authority of agencies to delegate the routine task of signing a rulemaking to subordinates as an efficiency measure. Senior agency appointees already ratify the signing of the rulemaking after the fact to comply with this clause.

In addition to attempting to solve a non-issue, H.R. 357 generates more confusion in the rulemaking process as the bill's requirements do not directly define what action qualifies as ``initiating'' a rule. As agencies are impacted by this uncertainty, significant steps in the rulemaking process could be delayed without clarity, and as a result, even regulations that streamline compliance for regulated entities could be stifled.

Congress should seek ways to support and fully staff agencies that are responsible for designing rules that protect our workers, public health and environmental safety. We oppose H.R. 357 and urge you to vote against this bill. Sincerely, Edwin S. Jayne, Director of Federal Government Affairs. ____ Statement of Administration Policy H.R. 357--Ensuring Accountability in Agency Rulemaking Act--Rep. Cline, R-VA and 19 cosponsors

The Administration strongly opposes H.R. 357, a bill that would require that notice-and-comment rulemaking be initiated by a ``senior appointee'' and be issued and signed by a Senate-confirmed Presidential appointee. This bill would result in unnecessary delays in the regulatory process when Senate-confirmed positions are temporarily filled by senior officials while nominees await confirmation. It would add unnecessary bureaucratic hurdles that would encumber the rulemaking process without providing any additional benefits, as there are procedures already in place that provide for engagement, oversight, and accountability by Executive Branch agency leadership, such as review of significant rules by the interagency under Executive Order 12866. H.R. 357 would also limit the flexibility of Senate-confirmed officials to delegate signature authority to experienced subordinates who have the requisite authority and experience to oversee regulatory development.

If the President were presented with H.R. 357, he would veto it. ____ December 11, 2023.

Dear Representative, The undersigned organizations and individuals write in opposition to the misleadingly-named ``Ensuring Accountability in Agency Rulemaking Act'', H.R. 357. This bill would codify Executive Order 13979, entitled ``Ensuring Democratic Accountability in Agency Rulemaking,'' issued by former President Donald Trump at the end of his term and repealed by President Joe Biden. This legislation would decrease the accountability of industry to the public. It would do so by adding intentional ambiguity that would lead to considerable delay in the creation, promulgation, and implementation of critical new public health and safety safeguards, financial reforms, and worker protections.

For example, H.R. 357 provides that ``any rule promulgated under section 553 of Title 5, United States Code, shall be issued and signed by an individual appointed by the President, by and with the advice and consent of the Senate.'' As you are aware, under the Constitution's appointments clause, agency rulemakings are authorized by ``principal'' officers who are Senate confirmed, and in practice, this often occurs through necessary delegation. No agency, however, would ever issue a rule without authorization from a relevant agency leader. Rather than ensuring public protections and industry accountability in and through agency rulemaking, it would create confusion, ambiguity, and uncertainty and pointless delays.

As government openness and accountability advocates, we strongly urge you to oppose the Ensuring Accountability in Agency Rulemaking Act. Sincerely, Government Information Watch, National Center for Health Research, Project On Government Oversight, Earthjustice, Government Accountability Project, National Federation of Federal Employees (NFFE), Steve Lenkart, CEO, Government Executives International, Liz Borkowski, MPH. ____ Coalition for Sensible Safeguards, May 23, 2023.

Dear Representative: The Coalition for Sensible Safeguards (CSS), an alliance of over 150 labor, scientific, research, good government, faith, community, health, environmental, and public interest groups, and the undersigned allied organizations strongly oppose the Ensuring Accountability in Agency Rulemaking Act, H.R. 357.

The Ensuring Accountability in Agency Rulemaking Act would codify Executive Order 13979, entitled ``Ensuring Democratic Accountability in Agency Rulemaking,'' which was issued by former President Donald Trump in his very last days in office and was repealed by President Joe Biden. It will add unnecessary ambiguity and considerable delay in the creation, promulgation, and implementation of critical new public health and safety safeguards, financial reforms, and worker protections--making industry even less accountable to the public. These consequences are particularly objectionable because the bill purports to ``solve'' a problem that does not actually exist. Rather than advance good government reform, this bill demonizes our public protection agencies and promotes a harmful anti-regulatory narrative.

The Ensuring Accountability in Agency Rulemaking Act provides that ``any rule promulgated under section 553 of Title 5, United States Code, shall be issued and signed by an individual appointed by the President, by and with the advice and consent of the Senate.'' Yet, under the Constitution's appointments clause, agency rulemakings are authorized by ``principal'' officers who are Senate confirmed, and in practice, this often occurs through necessary delegation. Currently, senior agency appointees sometimes delegate the routine task of signing a rulemaking to subordinates as an efficiency measure. Senior agency appointees ratify the signing of the rulemaking after the fact to comply with this clause.

Given the expense and legal consequences involved, no agency would ever issue a rule without authorization from a relevant agency leader. At best, this bill would serve to create needless bureaucratic hurdles for agency officials, rather than correct any real problem of public accountability.

The bill further requires that all rules ``shall be initiated by a senior appointee'' but does not define what ``initiated'' means. Since the Administrative Procedure Act does not define this term, this will create uncertainty that could thwart rulemaking.

For example, what action qualifies as ``initiating'' a rule under this bill? Is it when a rule is proposed? Is it when it is assigned a Regulatory Identification Number (RIN)? Would the granting of a citizen petition for rulemaking satisfy this requirement? The bill is silent on this important detail. Yet, these are significant steps in the rulemaking process, and none of these wou]d take place without approval of the Senate-confirmed official.

In the worst case, the uncertainty due to this provision could stifle the effective functioning of agencies. Drawing on their unique experience and expertise, rank-and-file staff at agencies often provide the inspiration for an idea that eventually becomes a rule. Indeed, senior agency officials rely on career staff for these innovations. This bill risks creating a disincentive for career staff at agencies to propose innovative solutions to the problems the agency was created to address. Significantly, many of these solutions could even be the kind that achieve regulatory objectives at lower compliance costs for regulated businesses.

Congress should be searching for ways to ensure that federal agencies are able to enforce laws designed to protect our safety, air quality, water, food, financial security, and much more, not putting up roadblocks to sensible safeguards that protect the American people.

For these reasons, we strongly urge you to oppose the Ensuring Accountability in Agency Rulemaking Act. Sincerely, Rachel Weintraub, Executive Director.

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Mr. NADLER. Madam Speaker, I yield an additional 30 seconds to the gentlewoman from Texas.

Ms. JACKSON LEE. Madam Speaker, this legislation is opposed by the Coalition for Sensible Safeguards. I would like to dwell on this question of water and lead coming out of water since many of us were here during the Flint incidents, and we also know what goes on in our own congressional districts.

Let's not stop children from living. Let's not stop the lifesaving regulatory process. Let's oppose H.R. 357.

Mr. Speaker, I rise in strong opposition to H.R. 357, The Ensuring Accountability in Agency Rulemaking Act.

H.R. 357 would require any agency rule promulgated under the Administrative Procedure Act's notice and comment process to be ``initiated'' and signed by someone who was appointed to their position by the President and confirmed by the Senate, with limited exceptions for national security and public safety.

Simply put, this anti-regulatory bill is an attempt to codify bad federal policy issued during the Trump Administration that was later repealed by President Biden, and it would add unnecessary ambiguity and delay in the rule making process from beginning to end.

While my Republican colleagues will tell you that this is just about transparency and accountability, it is not.

This is about shutting down the regulatory process.

By requiring that any rulemaking be initiated and signed by a presidentially appointed and Senate confirmed official, this bill could grind the regulatory process to a halt during long appointment periods or presidential transitions.

Rulemaking could be delayed (or even prevented altogether) by the already substantially politicized Senate confirmation process, especially during the transition between Administrations and for agencies that experience frequent turnover or have longstanding vacancies among their senior leadership.

If you think the confirmation process is slow and contentious now, wait until this bill becomes law.

The party opposing the President will have every incentive to block a nomination and prevent an agency from having an eligible head in place who can issue regulations.

Like the Separation of Powers Restoration Act (SOPRA) and the Regulations from the Executive in Need of Scrutiny (REINS) Act--that nearly all House Democrats opposed earlier this Congress--this is a patently transparent effort to effectively halt Executive agencies from performing their Congressionally mandated duties to serve the American people.

This proposal is a dangerous solution in search of a problem.

While H.R. 357 purports to improve agency accountability, the proposal actively undermines the constitutional authority of agencies to delegate the routine task of signing a rulemaking to subordinates as an efficiency measure.

Senior agency appointees already ratify the signing of the rulemaking after the fact to comply with this clause.

And Congress also already plays a significant role in placing and removing restrictions on agency rules by conducting oversight and restricting how funds can be used and passing legislation to limit agency discretion.

As demonstrated time and time again in the House this year, Congress can use the Congressional Review Act (CRA) to overturn rules it disapproves of.

For instance, my Republican colleagues have already tried to use the CRA to repeal reasonable restrictions on deadly weapons, jeopardize affordable student loan repayment and make it harder for women- and minority-owned businesses to access funds to grow their businesses.

While most can agree improvements can be made to the regulatory process, measures that make it harder for agencies to make new rules cuts against the interest of all who reside in the United States. Because most importantly, regulations are necessary to save our lives.

Regulations are critical to ensuring the safety and soundness of virtually every facet of our lives, including clean air, clean water, safe toys, safe cars, and safe workplaces.

We should reject any effort that would prevent agencies from issuing these life-saving regulations.

Yet rather than ensuring public protections and industry accountability in and through agency rulemaking, this bill would create confusion, ambiguity, uncertainty, and pointless delays.

The bill would only ensure delay and prevent necessary public protections from being promulgated in the process causing, and avoidable harm and risk to the public.

If enacted, this bill would give extreme legislators another opportunity to obstruct federal policymaking by blocking the confirmation of agency officials in the Senate, putting critical government functions from civil rights enforcement and financial regulation to protecting consumers and the environment in jeopardy.

It is also important to highlight that the Coalition for Sensible Safeguards, consisting of over 160 labor, consumer, and environmental organizations are strongly opposed to this bill.

Additionally, if the President were presented with H.R. 357, he would veto it.

For these reasons, I urge my colleagues to vote in opposition to H.R. 357, The Ensuring Accountability in Agency Rulemaking Act.

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Mr. NADLER. Madam Speaker, let me make two points. The gentleman from Virginia points out that paragraphs 1 and 2 do not apply if the head of an agency determines on a nondelegable basis that compliance with the relevant paragraph would impede public safety or security, but there is nothing in the bill to define public safety or security. It doesn't help at all.

I would also point out that the last President, not the current one, the last one, Mr. Trump, had a lot of acting agency heads. In fact, he has stated that he would like in another term to have a lot more acting agency heads so he doesn't need Senate confirmation.

That would mean that few, if any, people would have the ability to okay safety and security rules to keep our people safe and our water clean, our air safe, et cetera.

Madam Speaker, I yield 2 minutes to the distinguished gentleman from Indiana (Mr. Mrvan).

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Mr. NADLER. Madam Speaker, this legislation is just the latest in a long line of Republican bills meant to undermine and even block agency rulemaking altogether.

This bill would not only erect another hurdle to the creation of critical rules that protect our air, water, land, and livelihood, but it would also require years of litigation to determine what the vague terms of the bill mean. We should reject any effort that would prevent agencies from issuing lifesaving regulations.

Madam Speaker, I urge all Members to oppose this legislation, and I yield back the balance of my time.

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