IN THE SENATE OF THE UNITED STATES
August 1, 2012
Mr. Portman (for himself, Mr. Warner, and Ms. Collins) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs
To affirm the authority of the President to require independent regulatory agencies to comply with regulatory analysis requirements applicable to executive agencies, and for other purposes.
This Act may be cited as
Independent Agency Regulatory
Analysis Act of 2012.
In this Act—
the term Administrator means the Administrator of the Office of Information and Regulatory Affairs;
the term agency has the same meaning as in section 3502(1) of title 44, United States Code;
the term independent regulatory agency has the same meaning as in section 3502(5) of title 44, United States Code;
the term rule—
means a rule, as that term is defined in section 551 of title 5, United States Code; and
does not include a rule of the Board of Governors of the Federal Reserve System or the Federal Open Market Committee relating to monetary policy; and
the term significant rule means any rule that the Administrator determines is likely to—
have an annual effect on the economy of $100,000,000 or more;
adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; or
create a serious inconsistency or otherwise interfere with an action taken or planned by another agency.
Regulatory analysis by independent agencies
The President may by Executive order require an independent regulatory agency to comply, to the extent permitted by law, with regulatory analysis requirements applicable to other agencies, including the requirements to—
identify the problem that the agency intends to address by a new rule (including, where applicable, the failures of private markets or public institutions that warrant new agency action) and assess the significance of that problem;
examine whether any existing rule (or other law) has created, or contributed to, the problem that a new rule is intended to correct and whether the existing rule (or other law) should be modified to achieve the intended goal of the new rule more effectively;
identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, or providing information upon which choices can be made by the public;
consider, in setting regulatory priorities and to the extent reasonable, the degree and nature of the risks posed by various substances or activities within its jurisdiction;
design its rules in the most cost-effective manner to achieve the regulatory objective and, in doing so, consider incentives for innovation, consistency, predictability, the costs of enforcement and compliance (to the Federal Government, regulated entities, and the public), flexibility, distributive impacts, and equity;
assess the costs and the benefits of the intended rule and, recognizing some costs and benefits are difficult to quantify, propose or adopt a rule only upon a reasoned determination that the benefits of the rule justify its costs;
base its rulemaking decisions on the best reasonably obtainable scientific, technical, economic, and other information concerning the need for, and consequences of, the intended rule;
identify and assess alternative forms of regulation and, to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt;
seek the views of appropriate State, local, and tribal officials before imposing regulatory requirements that might significantly or uniquely affect State, local, or tribal governmental entities, whenever feasible;
avoid rules that are inconsistent or incompatible with, or duplicative of, other rules of the independent regulatory agency or other agencies;
tailor rules to impose the least burden on society, including individuals, businesses of differing sizes, and other entities (including small communities and governmental entities), consistent with achieving the regulatory objectives, and taking into account, among other factors, and to the extent practicable, the cost of cumulative rules;
draft each rule to be simple and easy to understand, with the goal of minimizing the potential for uncertainty and litigation arising from uncertainty; and
periodically review its existing significant rules to determine whether any such rules should be modified, streamlined, expanded, or repealed so as to make the agency’s regulatory program more effective or less burdensome in achieving the regulatory objectives.
Economically significant rules
For any proposed or final rule identified by an independent regulatory agency as, or determined by the Administrator to be, a significant rule described in subparagraph (A) or (B) of section 2(5), the President may by Executive order require the independent regulatory agency to provide to the Administrator the following information, to the extent permitted by law:
An assessment, including the underlying analysis, of benefits anticipated from the rule together with, to the extent feasible, a quantification of those benefits.
An assessment, including the underlying analysis, of costs anticipated from the rule together with, to the extent feasible, a quantification of those costs.
An assessment, including the underlying analysis, of costs and benefits of potentially effective and reasonably feasible alternatives to the rule, identified by the agencies or the public, including improving existing regulations and reasonable nonregulatory actions, and an explanation why the planned regulatory action is preferable to the identified potential alternatives.
Review by office of information and regulatory affairs
Requirement to seek review
The President may, by Executive order, require an independent regulatory agency to submit to the Administrator for review—
any proposed significant rule, prior to publication of the notice of proposed rulemaking; and
any final significant rule, prior to publication of the final rule.
An Executive order issued under this Act may require that, not later than 90 days after the independent regulatory agency submits a proposed or final significant rule for review, the Administrator submit for inclusion in the rulemaking record the Administrator’s assessment of the extent to which the agency has complied with the regulatory analysis requirements made applicable by Executive order.
Determination and explanation by independent agency
An Executive order issued under this Act may require that, if the Administrator concludes under paragraph (2) that the independent regulatory agency did not comply with one or more requirements of the Executive order with respect to a proposed or final significant rule, the head of the agency that issued the significant rule shall include with the proposed and final significant rule—
a determination that the rule complies with the requirements and an explanation of that determination;
if applicable, an explanation why the independent regulatory agency did not comply with one or more of the requirements, based on the statutory provision authorizing the rule; and
a clear statement of the issues on which the agency agrees or disagrees with the Administrator’s assessment of the rule.
Limitation on judicial review
The compliance or noncompliance of an independent regulatory agency with the requirements of an Executive order issued under this Act shall not be subject to judicial review.
When an action for judicial review of a rule promulgated by an independent regulatory agency is instituted, any determination, analysis, or explanation produced by the agency, and any assessment produced by the Administrator, pursuant to an Executive order issued under this Act, shall constitute part of the whole record of agency action in connection with the review.
Rule of construction
Nothing in this section shall be construed to bar judicial review of any other impact statement or similar analysis required by any other provision of law if judicial review of such statement or analysis is otherwise permitted by law.
Rule of construction
Nothing in this Act shall be construed to limit the authority of the President with respect to independent regulatory agencies under any other applicable law.