On September 22, 2011, a group of Members from the House and the Senate introduced the Regulatory Accountability Act of 2011 (RAA, H.R. 3010 and S. 1606 ). The House passed H.R. 3010 on December 2, 2011, by a vote of 253-167. The RAA would make the most significant legislative changes to the APA since its enactment in 1946. The RAA would modify and enact into law numerous new general procedures for rulemaking that appear in narrower form in existing law, executive orders, and Office of Management and Budget (OMB) documents. The White House has issued a Statement of Administration Policy (SAP) on H.R. The RAA would impose new requirements on independent regulatory agencies, such as consultation with the Office of Information and Regulatory Affairs (OIRA) and cost-benefit analysis. H.R. The following RAA amendments would not apply to pending or completed rulemakings on the date of the RAA's enactment: the RAA's amendments to the informal and formal rulemaking sections of the APA; the RAA's definition of "substantial evidence"; the RAA's new provisions that a court shall not defer to an agency's cost/benefit determinations and economic and risk assessments if the agency failed to conform to OIRA-established guidelines and that a court shall not defer to agency determinations made in the adoption of an interim rule; the RAA's addition of court reviews (for abuse of discretion) of agency denials of petitions during high-impact rule hearings "by an interested person who has participated in the rulemaking" related to "other issues relevant to the rulemaking," due to an agency "determin[ation] that consideration of the issues at the hearing would not advance consideration of the rule or would, in light of the nature of the need for agency action, unreasonably delay completion of the rulemaking"; and the RAA's addition of court reviews (for abuse of discretion) of agency denials of petitions for hearings under the APA's formal rulemaking provisions, 5 U.S.C. Some of the most significant changes are listed here. 3010 version of the RAA would:
Require agencies to adopt the "least costly" rule that meets "relevant statutory objectives" unless the benefits justify additional costs. Provide for judicial review of certain requirements and determinations, for which judicial review is not presently available or for whether there is a question as to whether judicial review is available. Overhaul the current notice-and-comment (informal) rulemaking process by codifying and modifying existing requirements and instituting many procedural and substantive additions to informal rulemaking. Raise questions regarding how the RAA would interact with existing statutory requirements for cost-benefit analysis and statutory prohibitions on cost considerations. Impact existing case law on judicial deference to agency interpretations of rules and agency guidance. Provide that interim rules shall cease to have the effect of law if such rules are not finalized or rescinded in accordance with the RAA's requirements within 270 days of publication of the interim rule or 18 months if the rule is a major or high-impact rule. Mandate trial-like formal rulemaking procedures for high-impact rules. Mandate the identification of costs and benefits, and assure that such benefits justify the cost, in major guidance documents and guidance that involves a novel legal or policy issue arising out of statutory mandates. Establish minimum time periods for comment in rulemakings. Grant the OIRA Administrator, in statute, increased powers and responsibilities. Enable IQA petitions under existing APA hearing requirements to determine if an agency's proposed rule does not comply with the IQA.
In the fall of 2011, a group of Members from the House and the Senate introduced the Regulatory Accountability Act of 2011 (RAA, H.R. 3010 and S. 1606). The RAA would make the most significant legislative changes to the rulemaking process since the enactment of the Administrative Procedure Act in 1946. The RAA would modify and enact into law numerous new general procedures for rulemaking that appear in narrower form in existing law, executive orders, and Office of Management and Budget (OMB) documents. The House of Representatives passed H.R. 3010 on December 2, 2011. The Obama Administration has issued a Statement of Administration Policy against H.R. 3010. Some of the most significant changes the bill would make are listed here. H.R. 3010 would:
Require agencies to adopt the "least costly" rule that meets "relevant statutory objectives" unless the benefits justify additional costs. Provide for judicial review of certain requirements and determinations, for which judicial review is not presently available or for which there is a question as to whether judicial review is available. Overhaul the current notice-and-comment (informal) rulemaking process by codifying and modifying existing requirements and instituting many procedural and substantive additions to informal rulemaking. Raise questions regarding how the RAA would interact with existing statutory requirements for cost-benefit analysis and statutory prohibitions on cost considerations. Impose new requirements on independent regulatory agencies, including cost-benefit analysis and regulatory review by OMB's Office of Information and Regulatory Affairs (OIRA). Impact existing case law on judicial deference to agency interpretations of rules and agency guidance. Provide that interim rules shall cease to have the effect of law if such rules are not finalized or rescinded in accordance with the RAA's requirements within 270 days of publication of the interim rule or 18 months if the rule is a major or high-impact rule. Create a new category of rules, "high-impact" rules, and mandate trial-like formal rulemaking procedures for such rules. Require advance notices of proposed rulemaking for certain rules. Mandate the identification of costs and benefits, and assure that such benefits justify the cost, in major guidance documents and guidance that involves a novel legal or policy issue arising out of statutory mandates. Establish minimum time periods for comment in rulemakings. Grant the OIRA Administrator, in statute, increased powers and responsibilities. Enable Information Quality Act (IQA) petitions to determine if an agency's proposed rule does not comply with the IQA.