HR-5 : Still Just a Bill

Regulatory Accountability Act of 2017

Regulatory Accountability Act

This bill amends the Administrative Procedure Act (APA) to revise and expand the requirements for federal agency rulemaking. Agencies must base all preliminary and final factual determinations on evidence and consider the legal authority under which the rule may be proposed, the specific nature and significance of the problem the agency may address with the rule, any reasonable alternatives for the rule, and the potential costs and benefits associated with such alternatives.

The bill:

• requires agencies to publish advance notice of proposed rulemaking for major rules and for high-impact rules (rules having an annual cost on the economy of $100 million or $1 billion or more, respectively), for negative-impact-on-jobs-and-wages rules, and for rules that involve a novel legal or policy issue arising out of statutory mandates;
• sets forth criteria for issuing major guidance (agency guidance that is likely to lead to an annual cost on the economy of $100 million or more, a major increase in cost or prices, or significant adverse effects on competition, employment, investment, productivity, innovation, or ability to compete) or guidance that involves a novel legal or policy issue arising out of statutory mandates;
• allows immediate judicial review of rulemaking not in compliance with notice requirements; and
• establishes a substantial evidence standard for courts to affirm agency rulemaking decisions.

Separation of Powers Restoration Act

The bill authorizes courts reviewing agency actions to decide de novo (without giving deference to the agency's interpretation) all relevant questions of law.

Small Business Regulatory Flexibility Improvements Act

The bill revises rulemaking requirements and procedures under the Regulatory Flexibility Act of 1980 (RFA) and the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA). The definition of "rule" under the RFA is expanded to include all agency rules, except for: (1) rules that pertain to the protection of veterans' rights and benefits or that impose limitations on the cost and terms of consumer credit extended to service members and their dependents, or (2) rules of particular applicability relating to rates, wages, and other financial indicators. Under a new definition of "economic impact," agencies are required to consider any direct economic effect of a proposed rule on small entities and any indirect economic effect on small entities that is reasonably foreseeable and that results from such rule.

Agencies must publish a plan for the periodic review of existing rules and new rules that have a significant impact on a substantial number of small entities.

Judicial review of an agency final rule for compliance with RFA requirements is allowed after the publication of such rule, instead of after completion of the rulemaking process.

The Small Business Act is amended to authorize the Chief Counsel for Advocacy of the Small Business Administration to make small business size-standard determinations for all purposes other than for the purposes of such Act or the Small Business Investment Act of 1958.

The SBREFA is amended to require agencies, in preparing small entity compliance guides, to solicit input from affected small entities or associations of small entities.

Require Evaluation before Implementing Executive Wishlists Act or the REVIEW Act

The bill prohibits a final agency rule from being published or taking effect until the Office of Information and Regulatory Affairs (OIRA) determines whether the rule is a high-impact rule that may impose an annual cost on the economy of at least $1 billion. The agency shall publish such determination with the final rule.

An agency shall postpone the effective date of a high-impact rule until: (1) the final disposition of all actions seeking judicial review of the rule, or (2) the expiration of an applicable period for judicial review or a period after publication if no person seeks judicial review.

All Economic Regulations are Transparent Act or the ALERT Act

Federal agencies must submit a monthly report to OIRA for each rule such agency expects to propose or finalize during the following 12 months. For any rule expected to be finalized during the following 12 months for which the agency has issued a general notice of proposed rulemaking, the reports must include an approximate schedule for completing action on the rule and an estimate of its cost, economic effects, and any imposition of unfunded mandates.

OIRA must: (1) make such monthly reports publicly available on the Internet; and (2) publish by October 1 each year information and analysis about such rules for the preceding year.

The bill prohibits a rule from taking effect until the information required by this bill is posted on the Internet for not less than six months, unless: (1) the agency proposing the rule claims a "good cause" exemption from notice-and-comment rulemaking procedures under the APA; or (2) the President determines by executive order that such rule is necessary because of an imminent threat to health or safety or other emergency, for the enforcement of criminal laws, for national security, or to implement an international trade agreement.

Providing Accountability Through Transparency Act

The bill requires the general notice of proposed rulemaking by a federal agency to include the Internet address of a plain-language summary, not exceeding 100 words, of the proposed rule, which shall be posted on the regulations.gov website.