In a tough economy, business is being regulated to death by feds

By Tom Delaney

Are federal agencies making laws instead of regulations? Are they killing businesses?

In January 2011, President Obama announced, with much fanfare, a new get-tough policy on over-regulation. He acknowledged that “rules have gotten out of balance” and “have had a chilling effect on growth and jobs,” and pledged a comprehensive review of regulations imposed by the federal government. At the very same time of the president’s announcement, the Department of Labor issued the H-2B new wage rule, and then the new program rule, which either separately or together would make the cost to use these programs prohibitive.

The torrent of new rules and regulations from Washington has continued throughout 2012, despite this promise of restraint. In the past year, the Environmental Protection Agency, the Army Corps of Engineers, the National Marine Fisheries Service and the U.S. Fish and Wildlife Service, the Occupational Safety and Health Administration, and the National Labor Relations Board have proposed regulations and guidance documents that are costly, duplicative, confusing, and that hurt small businesses.

The U.S. House of Representatives in the 112th Congress did pass comprehensive regulatory reform legislation. If enacted, it would be the first time in 65 years Congress has made significant changes to how agencies make rules. It would also be the first time ever that Congress has attempted to broadly streamline the federal permitting process. Unfortunately, passage of these bills in Congress is not likely, and, if passed, it’s unclear whether the president would sign them.

Congress needs to allow the relevant agency to draft only a proposed — not a final — rule, and then should have to vote on the measure before it becomes law. Legislators need to stop delegating their lawmaking powers to unelected bureaucrats. Some states have better systems than Congress has to do this, and also require a cost analysis be done before regulations become law.

More effective cost-benefit studies should be required before regulations can take effect. Many agencies are not following the rules that require proper measurement of the effects of a proposed regulation on small businesses. Even the U.S. Small Business Administration, time after time, has made public comments that show it is not properly estimating the impact of its regulations on small businesses.

Officials need to improve their risk assessment methods and seek to insulate the scientific investigative process from political pressure. The only real control Congress has over the regulations is to take away money from the budgets of the various agencies so the agencies cannot implement new rules. Although industries have no real control over the agencies, one way they can impact a bad proposed regulation is to bring lawsuits against the agencies making the rules.

This regulatory tide is not expected to ebb anytime soon. Hundreds of new regulations are winding their way through the rule-making pipeline. For now, all we can do is work within the process and encourage you to participate when we send out action alerts so your voices can be heard.

Tom Delaney is director of government affairs at the Professional Landcare Network (PLANET). For more information, visit

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