Modernization? The Regulatory Accountability Act of 2015 Adds 74 New Steps to the Rule-Making Process

by Erin Kesler

January 09, 2015

This week, House Republicans re-introduced the “Regulatory Accountability Act of 2015,” (H.R. 185).

Proponents of the bill are claiming that it would “modernize” the rule-making process and streamline government inefficiencies.

In fact, the RAA would bog down attempts by federal agencies to protect our health, safety and environment in red tape by adding over 74 new requirements to the rule-making process, including over 29 new “documentation” requirements. 

Center for Progressive Reform Senior Analyst James Goodwin compiled a list of all the potential requirements for agency rule-making included in the bill. Goodwin notes that, “most of the requirements are nonsensical that at best add nothing to the rulemaking process—and at worst distract agencies from those considerations that would lead to better quality rules.”

The full, damning list is copied below.  Adding extensive paperwork and bureaucratic burdens to the rule-making process would threaten the President’s initiative to move forward on his clean energy plan and could prevent agencies from issuing crucial safeguards to protect workers and the public health.

Analytical and Procedural Requirements Required by the Regulatory Accountability Act of 2015 (H.R. 185)

By James Goodwin, Senior Policy Analyst, Center for Progressive Reform

[Notes: Listed items in italics denote requirements that already exist or that are substantially similar to requirements that already exist]

  1. Documentation that the agency has considered the legal authority under which a rule may be proposed [all rules] (page 6, lines 8-12)

  2. Documentation that the agency has considered other statutory considerations applicable to whether the agency can or should propose a rule or undertake other agency action [all rules] (page 6, lines 13-15)

  3. Documentation that the agency has considered specific nature and significance of the problem the agency may address with a rule [all rules] (page 6, lines 16-17)

  4. Documentation that the agency has considered whether the problem warrants new agency action [all rules] (page6, lines 21-22)

  5. Documentation that the agency has considered the countervailing risks that may be posed by alternatives for new agency action [all rules] (page 6, lines 22-23)

  6. Documentation that the agency has considered whether existing rules have created or contributed to the problem the agency may address with a rule [all rules] (pages 6, lines 24-25; page 7, line 1)

  7. Documentation that the agency has considered whether existing rules could be amended or rescinded to address the problem in whole or part [all rules] (page 7, lines 1-3)

  8. Documentation that the agency has considered reasonable alternatives for a new rule or other response identified by the agency or interested persons [all rules] (page 7, lines 4-6)

  9. Documentation that the agency has considered the alternative of no federal response [all rules] (page 7, lines 9-10)

  10. Documentation that the agency has considered the alternative of amending or rescinding existing rules [all rules] (page 7, lines 11-12)

  11. Documentation that the agency has considered the alternative of potential regional, State, local, or tribal regulatory action or other responses that could be taken in lieu of agency action [all rules] (page 7, lines 13-15)

  12. Documentation that the agency has considered the alternative of potential responses that specify performance objectives rather than conduct or manners of compliance [all rules] (page 7, lines 17-19)

  13. Documentation that the agency has considered the alternative of potential responses that establish economic incentives to encourage desired behavior [all rules](page 7, lines 20-21)

  14. Documentation that the agency has considered the alternative of potential responses that provide information upon which choices can be made by the public [all rules] (page 7, lines 22-23)

  15. Documentation that the agency has considered the alternative of potential responses that incorporate other innovative alternatives rather than agency actions that specify conduct or manners of compliance [all rules] (page 8, lines 1-3)

  16. Documentation that the agency has considered the potential direct costs and benefits associated with potential alternative rules and other responses [all rules] (page 8, lines 6-10)

  17. Documentation that the agency has considered the potential indirect costs and benefits associated with potential alternative rules and other responses [all rules] (page 8, lines 6-10)

  18. Documentation that the agency has considered the potential cumulative costs and benefits associated with potential alternative rules and other responses [all rules] (page 8, lines 6-10)

  19. Documentation that the agency has estimated impacts on jobs that are associated with potential alternative rules and other responses [all rules] (page 8, lines 10-13)

  20. Documentation that the agency has estimated impacts on wages that are associated with potential alternative rules and other responses [all rules] (page 8, lines 10-13)

  21. Documentation that the agency has estimated impacts on economic growth that are associated with potential alternative rules and other responses [all rules] (page 8, lines 10-13)

  22. Documentation that the agency has estimated impacts on innovation that are associated with potential alternative rules and other responses [all rules] (page 8, lines 10-13)

  23. Documentation that the agency has estimated impacts on economic competitiveness that are associated with potential alternative rules and other responses [all rules] (page 8, lines 10-13)

  24. Documentation that the agency has considered means to increase the cost-effectiveness of any Federal response [all rules] (page 8, lines 14-15)

  25. Documentation that the agency has considered incentives for innovation [all rules] (page 8, line 16)

  26. Documentation that the agency has considered incentives for consistency [all rules] (page 8, line 16)

  27. Documentation that the agency has considered incentives for predictability [all rules] (page 8, line 17)

  28. Documentation that the agency has considered incentives for lower costs of enforcement and compliance [all rules] (page 8, lines 17-18)

  29. Documentation that the agency has considered incentives for flexibility [all rules] (page 8, line 19)

  30. Publication of an advanced notice of proposed rulemaking [major and high-impact rules; certain other rules] (page 8, lines 23-25; page 9, lines 1-5)

  31. The advanced notice of proposed rulemaking must include a statement identifying  the nature and significance of the problem the agency may address with a rule [major and high-impact rules; certain other rules] (page 9, lines 9-10)

  32. The advanced notice of proposed rulemaking must include a statement identifying  data and other evidence and information on which the agency expects to rely [major and high-impact rules; certain other rules] (page 9, lines 11-13)

  33. The advanced notice of proposed rulemaking must include a statement identifying  the legal authority under which a rule may be proposed [major and high-impact rules; certain other rules] (page 9, lines 14-18)

  34. The advanced notice of proposed rulemaking must include a statement identifying  preliminary information available to the agency concerning the listed rulemaking considerations [major and high-impact rules; certain other rules] (page 9, lines 19-21)

  35. The advanced notice of proposed rulemaking must include a statement identifying  the nature of and potential reasons to adopt the novel legal or policy position upon which the agency may base a proposed rule [certain major and high-impact rules; certain other rules] (page 9, lines 22-25; page 10, lines 1-2)

  36. The advanced notice of proposed rulemaking must include a statement identifying  an achievable objective for the rule [certain major and high-impact rules; certain other rules] (page 10, line 3)

  37. The advanced notice of proposed rulemaking must include a statement identifying  the metrics by which the agency will measure the rule’s progress toward achieving its intended objective [certain major and high-impact rules; certain other rules] (page 10, lines 4-5)

  38. Solicitation of written data, views or argument from interested persons concerning the information and issues addressed in the advance notice [major and high-impact rules; certain other rules] (page 10, lines 6-8)

  39. Provision for a period of not fewer than 60 days for interested persons to submit such written data, views, or argument to the agency [major and high-impact rules; certain other rules] (page 10, lines 9-11)

  40.  Consultation with the Administrator of the Office of Information and Regulatory Affairs [all rules] (page 10, lines 15-17)

41.Publication of a notice of proposed rulemaking [all rules] (page 10, lines 17-19)

42.The notice of proposed rulemaking must include a statement of the time, place, and nature of public rule making proceedings [all rules] (page 10, lines 20-21)

43.The notice of proposed rulemaking must include a reference to the legal authority under which the rule is proposed [all rules] (page 10, lines 22-23)

44.The notice of proposed rulemaking must include the terms of the proposed rule [all rules] (page 10, line 24)

  1. The notice of proposed rulemaking must include a summary of information known to the agency concerning the listed rulemaking considerations [all rules] (page 11, lines 4-6)

  2. The notice of proposed rulemaking must include a summary of additional information the agency provided to and obtained from interested persons through the advanced notice of proposed rulemaking process[major and high-impact rules; certain other rules] (page 11, lines 7-9)

  3. The notice of proposed rulemaking must include a summary of any preliminary risk assessment or regulatory impact analysis performed by the agency [all rules] (page 11, lines 10-12)

48. The notice of proposed rulemaking must include information specifically identifying all data, studies, models, and other evidence or in formation considered or used by the agency in connection with its determination to propose the rule [all rules] (page 11, lines 13-17)

  1. The notice of proposed rulemaking must include a reasoned preliminary determination of need for the rule based on certain specified information [all rules] (page 11, lines 18-20)

  2. The notice of proposed rulemaking must include an additional statement of whether a rule is required by statute [all rules] (page 11, lines 21-22)

  3. The notice of proposed rulemaking must include a reasoned preliminary determination of an achievable objective for the rule [all rules] (page 11, lines 23-24)

  4. The notice of proposed rulemaking must include a reasoned preliminary determination of the metrics by which the agency will measure the rule’s progress toward achieving its intended objective  [all rules] (page 11, lines 24-25)

  5. The notice of proposed rulemaking must include a reasoned preliminary determination that the benefits of the proposed rule meet the relevant statutory objectives [all rules] (page 12, lines 1-3)

  6. The notice of proposed rulemaking must include a reasoned preliminary determination that the benefits of the proposed rule justify the costs of the proposed rule [all rules] (page 12, lines 1-6)

  7. The notice of proposed rulemaking must include a discussion of the alternatives to the proposed rule, and other alternative responses, considered by the agency [all rules] (page 12, lines 8-10)

  8. The notice of proposed rulemaking must include a discussion of the costs and benefits of the alternatives to the proposed rule, and other alternative responses, considered by the agency [all rules] (page 12, lines 11-13)

  9. The notice of proposed rulemaking must include a discussion of whether the alternatives to the proposed rule, and other alternative responses, considered by the agency meet relevant statutory objectives [all rules] (page 12, lines 14-15)

  10. The notice of proposed rulemaking must include a discussion of why the  agency did not propose any of the alternatives to the proposed rule, and other alternative responses, it considered [all rules] (page 12, lines 16-17)

  11. The notice of proposed rulemaking must include a statement of whether existing rules have created or contributed to the problem the agency seeks to address with the proposed rule [all rules] (page 12, lines 18-20)

  12. The notice of proposed rulemaking must include a statement of whether or not the agency proposes to amend or rescind any existing rules that have created or contributed to the problem the agency seeks to address with the proposed rule, and why [all rules] (page 12, lines 21-22)

61. Placement in the docket of information provided to or considered by the agency, and steps to obtain information by the agency, in connection with its determination to propose the rule [all rules] (page 12, lines 23-25; page 13, lines 1-10)

62. After publication of the notice of proposed rulemaking, provision of not fewer than 60 days [not less than120 days for major or high impact rules] for interested persons to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation [all rules] (page 14, lines 16-20; page 15, lines 10-13)

  1. If properly requested, the conduct of a hearing  to determine whether any evidence or other information upon which the agency bases the proposed rule fails to comply with the Information Quality Act [all rules] (page 15, lines 14-19, 22-25; page 16, lines 1-10)

  2. After publication of the notice of proposed rulemaking and the completion of the public participation period, conduct a formal rulemaking hearing [high-impact rules] (page 16, lines 22-25; page 17, lines 1-5)

  3. Prior to a formal rulemaking hearing, publication of a notice specifying the proposed rule to be considered at such hearing, the issues to be considered at the hearing, and the time and place for such hearing [high-impact rules] (page 18, lines 17-21)

  4. Prior to adopting a final rule, consultation with the Administrator of the Office of Information and Regulatory Affairs to facilitate compliance with applicable rule making requirements [all rules] (page 19, lines 1-4)

  5. Adoption of a final rule that is based on the best reasonably obtainable scientific, technical, economic, and other evidence and information concerning the need for, consequences of, and alternatives to the rule [all rules] (page 19, lines 5-8)

  6. Adoption of a final rule that is the least costly rule considered during the rule making that meets relevant statutory objectives [all rules] (page 19, lines 9-12)

or if adopting a final rule that is not the least costly rule considered during the rule making that meets relevant statutory objectives,

demonstration that the additional benefits of the more costly rule justify its additional costs [all rules] (page 19, lines 13-16)

and explanation of the agency’s reason for doing so based on interests of public health, safety or welfare that are clearly within the scope of the statutory provision authorizing the rule [all rules] (page 19, lines 13-20)

69.Publication of a notice of final rulemaking [all rules] (page 19, lines 21-22)

70.The notice of final rulemaking should include a concise, general statement of the rule’s basis and purpose [all rules] (page 19, lines 24-25)

  1. The notice of final rulemaking should include a reasoned final determination of need for a rule to address the problem the agency seeks to address with the rule [all rules] (page 20, lines 1-3)

  2. The notice of final rulemaking should include a statement of whether a rule is required by statute [all rules] (page 20, lines 3-4)

  3. The notice of final rulemaking should include a summary of any final risk assessment or regulatory impact analysis prepared by the agency [all rules] (page 20, lines 4-6)

  4. The notice of final rulemaking should include a reasoned final determination that the benefits of the rule meet the relevant statutory objectives [all rules] (page 20, lines 7-9)

  5. The notice of final rulemaking should include a reasoned final determination that the benefits of the rule justify the rule’s costs [all rules] (page 20, lines 7-10)

  6. The notice of final rulemaking should include a reasoned final determination not to adopt any of the alternatives to the proposed rule considered by the agency during the rule making [all rules] (page 20, lines 11-14)

  7. The notice of final rulemaking should include a reasoned final determination that no alternative considered achieved the relevant statutory objectives with lower costs [all rules] (page 20, lines 15-19)
    or the notice of final rulemaking should include a reasoned determination that the agency’s adoption of a more costly rule complies with applicable requirements [all rules] (page 20, lines 20-22)

  8. The notice of final rulemaking should include a reasoned final determination that existing rules have not created or contributed to the problem the agency seeks to address with the rule [all rules] (page 21, lines 1-3)
    or

a reasoned final determination that existing rules have created or contributed to the problem the agency seeks to address with the rule[all rules] (page 21, lines 4-6)
and the agency’s planned course of action in response (page 21, lines 7-12)

  1. The notice of final rulemaking should include a reasoned final determination that the evidence and other information upon which the agency bases the rule complies with the Information Quality Act [all rules] (page 21, lines 13-16)

  2. The notice of final rulemaking should include a reasoned final determination that the rules meets the objectives initially identified by the agency in the notice of proposed rulemaking or that the rule meets some other objectives that the agency has identified as more appropriate in light of the administrative record  [all rules] (page 21, lines 17-22)

  3. The notice of final rulemaking should include a reasoned final determination that the agency did not deviate from the metrics it initially included in the notice of proposed rulemaking or that the agency did not deviate from some other metrics that it identified as more appropriate in light of the administrative record  [all rules] (page 21, lines 23-25; page 22, lines 1-3)

  4. The notice of final rulemaking should include the agency’s plan for review of the rule no less than every ten years [major rules, high-impact rules, and “negative-impact on jobs and wages” rules] (page 22, lines 4-17)

  5. The notice of final rulemaking should include a statement that the head of the agency that made the rule approved the rule knowing about the findings and determination of the agency or the head of the Administrator of the Office of Information and Regulatory Affairs that qualified the rule as a negative impact on jobs and wages rule [“negative-impact on jobs and wages” rules] (page 22, lines 19-25)

84. Placement in the docket of all information considered by the agency in connection with its adoption of the rule [all rules] (page 23, lines 1-7)

 

 

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Also from Erin Kesler

Erin Kesler is a Communications Specialist with the Center for Progressive Reform.

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