Number: 112-5
Date: December 5, 2011
House Passes H.R. 3010
The Regulatory Accountability Act of 2011
On December 2, 2011, the House passed H.R. 3010, the Regulatory Accountability Act of 2011, by a vote of 253-167. H.R. 3010 is the second of two bills approved by the House in recent days (see Legislative Bulletin 112-4 on H.R. 527) that would revise the Federal rulemaking process. The bill now moves to the Senate for consideration.
H.R. 3010 contains the following provisions of interest to SSA:
- Would amend rulemaking provisions in the Administrative Procedure Act by requiring agencies, in making a rule, to base preliminary and final determinations on evidence. In addition, agencies would be required to consider:
- The legal authority and statutory considerations under which the rule may be proposed;
- The specific nature and significance of the problem the agency may address with the rule;
- Whether existing rules could be amended or rescinded to address the problem that the proposed rule attempts to address;
- Any reasonable alternatives to the rule; and,
- Potential costs and benefits associated with such alternatives.
- The legal authority and statutory considerations under which the rule may be proposed;
- Would require agencies to publish an Advance Notice of Proposed Rulemaking (ANPR), no later than 90 days before a Notice of Proposed Rulemaking (NPRM) is published, for major and high-impact rules. “Major” rules would be defined as, among other things, rules having an annual economic cost to the economy of $100 million or more, while “high-impact” rules would be those costing the economy in excess of $1 billion per year.
- The ANPR would be required to include: an identification of the nature and significance of the problem that the agency may address with the rule; the legal authority under which the rule may be proposed; and preliminary information concerning other considerations, such as reasonable alternatives and cost/benefit analysis. It would provide not less than 60 days for public comment.
- Would amend the NPRM process by requiring agencies to:
- Consult with the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) before proposing a rule;
- Include within the NPRM statements regarding legal authority and information known to (or provided to) the agency;
- Provide interested parties 60 days to comment on a proposed rule (120 days for a major or high-impact rule);
- Provide a 30-day time period for request of administrative hearings on any evidence or information upon which agencies base their proposed rules; and,
- Conduct limited formal hearings before adoption of high-impact rules.
- Consult with the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) before proposing a rule;
- Would amend the Final Rulemaking process by requiring that agencies:
- Consult with OIRA before adopting final rule;
- Rely on best scientific and economic data;
- Adopt the least-costly alternative considered during rulemaking (unless a more costly rule can be justified); and,
- Publish plans for periodic (no less than every 10 years) review of high-impact and major rules to determine if final rules should be modified or rescinded.
- Consult with OIRA before adopting final rule;
- Would allow agencies to adopt interim rules when they, for good cause, cannot comply with the rulemaking requirements. Agencies would have up to 270 days from issuance of interim rule (or 18 months for major or high-impact rules) to complete the rulemaking process and either adopt a final rule or rescind the interim rule.
- Would require agencies to confer with OIRA before issuing major guidance or guidance on statutory mandates. Would also require that such guidance be understandable, necessary, and appropriate based upon a cost/benefit analysis.
- Would require OIRA to issue guidelines to agencies promoting coordination and simplification of agency rules. Would require agencies to ensure that the necessity and reasonableness of proposed rules is clearly established.
- Would require agencies to include in the rulemaking record, and make available electronically and otherwise, all documents and information prepared or considered by the agency.
- Would expand judicial review of agency rulemaking to: 1) allow immediate review of rulemaking not in compliance with notice requirements; 2) establish a substantial evidence standard for affirming rulemaking decisions; and 3) require agencies to make available all documents and information associated with rulemaking.
- Would be effective upon enactment, but would not apply to any rule makings pending or completed on the date of enactment.