When the 115th Congress’ session began, its first day was marked by the introduction of a controversial bill that would have placed the independent Office of Congressional Ethics under congressional control. Shortly after, Rep. Bob Goodlatte (R-Va.) introduced another bill that would have a sweeping effect on government through proposals to amend the Administrative Procedures Act.
The bill, the Regulatory Accountability Act of 2017 (H.R. 5), is an act “[t]o reform the process by which federal agencies analyze and formulate new regulations and guidance documents, to clarify the nature of judicial review of agency interpretations, to ensure complete analysis of potential impacts on small entities of rules and for other purposes.”
On Jan. 11, this bill passed the House with a 238-183 vote. On Jan. 12, the bill was referred to the Senate Committee on Homeland Security and Governmental Affairs.
The Regulatory Accountability Act would make several changes to the Administrative Procedures Act’s rulemaking requirements. For instance, the bill would strike subsection (b) through (e) of Section 553, of Title 5, U.S.C.
Those subsections address the publishing of a general notice of proposed rulemaking to be published in the Federal Register, the ability of interested persons to submit comments, the publication of a substantive rule and the rights of interested persons to petition for the issuance, amendment or repeal of the rule.
In their place, the bill would enact requirements that agencies “make all preliminary and final factual determinations based on evidence and consider” items such as the agency’s legal authority to propose the rule; the specific nature and significance of the problem the agency may address with a rulemaking, including the degree and nature of risks the problem poses and the priority of addressing those risks compared to other matters or activities within the agency’s jurisdiction; whether existing rules have created or contributed to the problem the agency may address with a rule and whether those rules could be amended or rescinded to address the problem in whole or part; as well as any reasonable alternatives for a new rule or other response identified by the agency or interested persons.
In addition, agencies must consider the potential costs and benefits associated with alternative rules and other responses under Section 553(b)(5), including direct, indirect and cumulative costs and benefits and estimated impacts on jobs, wages, economic growth, innovation, economic competitiveness and impacts on low income populations.
“In the case of a rule making for a major rule, a high-impact rule, a negative-impact on jobs and wages rule, or a rule that involves a novel legal or policy issue arising out of statutory mandates, not later than 90 days before a notice of proposed rulemaking is published in the Federal Register, an agency shall publish advance notice of proposed rulemaking in the Federal Register,” the bill added.
The bill also would change the procedures for agency guidance.
For instance, under the bill, before issuing any major guidance or guidance that involves a novel legal or policy issue arising out of statutory mandates, an agency would be required to make a “reasoned determination” that “assures that such guidance is understandable and complies with relevant statutory objectives and regulatory provisions,” summarizes the evidence and data that the agency will base the guidance, identify the costs and benefits of complying with the guidance as well as identify alternatives to the guidance and why the agency rejected those alternatives.
The bill would amend Section 706 of Title 5, U.S.C., which governs reviewing courts’ scope of review. The bill would eliminate the language stating that courts shall “decide all relevant questions of law, interpret constitutional and statutory provisions” and instead change the scope of review to de novo.
Specifically, the bill would insert the following language for courts’ scope of review of agency actions: “decide de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions, and rules made by agencies. If the reviewing court determines that a statutory or regulatory provision relevant to its decision contains a gap or ambiguity, the court shall not interpret that gap or ambiguity as an implicit delegation to the agency of legislative rulemaking authority and shall not rely on such gap or ambiguity as a justification either for interpreting agency authority expansively or for deferring to the agency’s interpretation on the question of law. Notwithstanding any other provision of law, this subsection shall apply in any action for judicial review of agency action authorized under any provision of law. No law may exempt any such civil action from the application of this section except by specific reference to this section.”