H.R. 185, Regulatory Accountability Act of 2015

H.R. 185

Regulatory Accountability Act of 2015

Committee
Judiciary

Date
January 13, 2015 (114th Congress, 1st Session)

Staff Contact
Communications

Floor Situation

On Tuesday, January 13, 2015, the House will consider H.R. 185, the Regulatory Accountability Act of 2015, under a rule.  H.R. 185 was introduced on January 7, 2015 by Rep. Bob Goodlatte (R-VA) and reported to the Committee on the Judiciary.

Bill Summary

H.R. 185 contains the text of H.R. 2122, which passed in the 113th Congress as part of both H.R. 2804, the Achieving Less Excess in Regulation and Requiring Transparency Act of 2014 (ALERRT Act), and H.R. 4, the Jobs for America Act.[1]

H.R. 185 modifies certain parts of the Administrative Procedure Act (APA) “to reform the process by which federal agencies analyze and formulate new regulations and guidance documents.”[2]  In part, H.R. 185 codifies key rulemaking principles found in a variety of Executive Orders issued by Presidents for more than thirty years, and makes them judicially enforceable.[3]  This requires federal agencies to consider: 1) the legal authority for the rule and other relevant statutory considerations; 2) the nature of the problem and whether it warrants new regulations; 3) whether the problem could be addressed by repealing or modifying existing regulations; 4) potential alternatives to adopting a new regulation; and 5) the potential costs and benefits associated with each alternative.  H.R. 185 also requires agencies to identify when new rules have a negative impact on jobs and wages.  Moreover, this legislation requires agencies to submit an Advance Notice of Proposed Rulemaking (ANPR) 90 days before they propose any major or high-impact rule.[4]  Federal agencies are also required to identify, in any Notice of Proposed Rulemaking (NPR), the achievable objective of the proposed rule and the metrics to be used, and to certify that the rule meets the objectives the agency identified in the NPR.

H.R. 185 improves the process for notice-and-comment rulemaking by requiring public input at each stage of the process.  It also generally requires agencies to issue the least costly alternative rule that achieves relevant statutory objectives.  To adopt a higher-cost alternative, the agency must demonstrate that the alternative’s additional benefits justify its additional costs, based on interests of public health, safety or welfare that fall clearly within the scope of the statutory provision authorizing the rule.  H.R. 185 brings major guidance within the regulatory review process, thereby subjecting it to more intensive pre-issuance scrutiny.[5]  It also reforms the process of issuing interim-final rules—which may currently be promulgated without public input—to prevent abuse of that type of rulemaking.  H.R. 185 requires “hybrid” rulemaking for high-impact rules (rules imposing $1 billion or more in annual costs), combining hearing-based proceedings previously used in formal rulemaking with informal notice-and-comment procedures to best vet issues raised by these highest-cost rules.

This legislation further authorizes the Office of Information and Regulatory Affairs (OIRA) to issue guidelines for agencies to follow as they assess economic and scientific issues in rulemaking; observe statute-specific rule making regimes in conjunction with the generally applicable procedures of the APA (as amended by this legislation); work to assure better coordination, simplification and coordination by agencies in rulemaking; and conduct hearings.  Finally, the bill requires the agency to include ‘‘all documents and information considered by the agency during the proceeding’’ in the rule making record.

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[1] H.R. 2804 passed the House on February 27, 2014, by a vote of 236-179 (See Roll Call #78); H.R. 4 passed the House on September 18, 2014, by a vote of 253-163 (See Roll Call #513).
[2] Committee Report 113-237, at 1.
[3] Committee Report 113-237, at 24: “Incorporates into the APA universally applicable rulemaking principles rooted in  the good-government principles of Executive Orders 1229112866, 13422 and 13563, making them statutorily mandatory and judicially enforceable.
[4] Committee Report 113-237, at 24.  The definition of a “major rule” in this legislation is based on the definition given to that term in Section 1(b) of Executive Order 12291.  The Executive Order defines a major rule as any regulation that is likely to result in: 1) an annual effect on the economy of $100 million or more; 2) a major increase in costs or prices for consumers, industries, Federal, State, or local government agencies, or geographic regions; or 3) significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S. businesses to compete with foreign-based enterprises in domestic or export markets.  The definition of a “high-impact rule” is defined as any rule likely to impose an annual cost of $1 billion on the economy.
[5] According to congressional testimony “current judicial review doctrines encourage agencies to use the rulemaking process to issue broad, ambiguous regulations, and then interpret [them] through mere guidance documents, which do not have to be promulgated through any established processes. Under these circumstances, a court will defer to the agency’s interpretation of its own ambiguous regulation even though the guidance document does not have the force of law.”  Id. at 8.

Background

The annual cost of federal regulation adds up to approximately $1.86 trillion, or $15,000 in regulatory costs per family each year.[6]  This burden, coupled with uncertainty over what additional federal regulation may be imposed in the near term, have been cited as key factors continuing to hold back economic recovery and the creation of new jobs.  The current regulatory burden is largely the fruit of inadequate administrative law.  Most important, the APA, known as the ‘constitution’ of agency rulemaking, imposes only a few light-handed constraints on the vast majority of agency rulemaking proceedings.  Nowhere in the APA, for example, is an agency required to consider the costs of a proposed regulation and weigh them against potential benefits.”[7]  Since its enactment in 1946, the APA has never been updated by Congress to account for modern rulemaking.[8]  A patchwork of executive orders has provided additional rulemaking guidance, but has been implemented inconsistently, depending on the Administration in place at the time.[9]

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[6] http://judiciary.house.gov/index.cfm/2014/6/house-judiciary-committee-approves-bill-to-reduce-regulatory-burden
[7] Committee Report 113-237, at 2.
[8] Id.
[9] Id. at 4.

Cost

A CBO cost estimate is currently unavailable.

Amendments

1)         Rep. McKinley (R-WV) Amendment #10 – Amendment ensures that the Agencies, when developing regulations, take into consideration and account for low-income populations. Furthermore, the Amendment provides that no particular class or race is excluded when it comes to looking at costs and benefits of the regulation.
2)         Rep. Johnson (D-GA) Amendment #3 – Amendment exempts from H.R. 185 all rules or guidance that the Director of the Office of Management and Budget determines would result in net job creation.
3)         Rep. Jackson Lee (D-TX) Amendment #6 – Amendment exempts all rules promulgated by the Department of Homeland Security.
4)         Rep. Connolly (D-VA) Amendment #4 – Amendment exempts any rule or guidance pertaining to public health or safety.

Additional Information

For questions or further information contact the GOP Conference at 5-5107.