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H.R. 5 (115th): Regulatory Accountability Act of 2017

H.R. 5 combines six previously passed bills to eliminate what bill sponsors call overly burdensome red tape and regulation. Major provisions of the legislation include:

Title I which requires agencies to choose the lowest-cost rulemaking alternative that meets statutory objectives and requires greater opportunity for public input and vetting of critical information.

Title II which repeals the Chevron and Auer doctrines to end judicial deference to bureaucrats’ statutory and regulatory interpretations.

Title III which requires agencies to account for the direct, indirect, and cumulative impacts of new regulations on small businesses and find flexible ways to reduce them. Specifically, the title amends the Regulatory Flexibility Act (RFA) and the Small Business Regulatory Enforcement Fairness Act (SBREFA) to ensure agencies adequately analyze proposed rules for their potential impacts on small businesses.

Title IV which amends the Administrative Procedure Act to require federal agencies to postpone the implementation of any rule imposing an annual cost on the economy of more than $1 billion (classified as a “high-impact” rule) if a petition seeking judicial review of that regulation is filed within the statutorily provided time for challenging the rule’s issuance (or a default period of 60 days). Under the bill, implementation would be postponed until any judicial review is resolved.

Title V which requires federal agencies to submit monthly regulatory updates to the Office of Information and Regulatory Affairs (OIRA) for all rules expected to be proposed or released in the upcoming year. The bill requires that most regulations must be published in such reports at least six months before becoming effective.

Title VI which requires agencies to post on the website an abbreviated summary of proposed rules. Summaries would be required to be no more than 100 words in length.

Last updated Mar 15, 2017. Source: Republican Policy Committee

The summary below was written by the Congressional Research Service, which is a nonpartisan division of the Library of Congress, and was published on Jan 11, 2017.

(This measure has not been amended since it was introduced. The summary has been expanded because action occurred on the measure.)

Regulatory Accountability Act of 2017


Regulatory Accountability Act

(Sec. 103) This bill revises federal rulemaking procedures under the Administrative Procedure Act (APA) to require a federal agency to make all preliminary and final factual determinations based on evidence and to consider: (1) the legal authority under which a rule may be proposed; (2) the specific nature and significance of the problem the agency may address with a rule; (3) whether existing rules have created or contributed to the problem the agency may address with a rule and whether such rules may be amended or rescinded; (4) any reasonable alternatives for a new rule; and (5) the potential costs and benefits associated with potential alternative rules, including impacts on low-income populations.

Rulemaking notice requirements are revised to require agencies to:

publish in the Federal Register advance notice of proposed rulemaking involving a major or 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; consult with the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB) before issuing a proposed rule and after the issuance of an advance notice of proposed rulemaking; provide interested persons an opportunity to participate in the rule making process; hold a hearing before the adoption of any high-impact rule; expand requirements for the adoption of a final rule, including requiring that the agency adopt a rule only on the basis of the best evidence and at the least cost; and grant any interested person the right to petition for the issuance, amendment, or repeal of a rule. A "major rule" or "major guidance" is a rule or guidance that OIRA determines is likely to impose: (1) an annual cost on the economy of $100 million or more, adjusted annually for inflation; (2) a major increase in costs or prices; (3) significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S. enterprises to compete with foreign-based enterprises; or (4) significant impacts on multiple sectors of the economy.

The bill defines: (1) "high-impact rule" as a rule that OIRA determines is likely to have an annual cost on the economy of $1 billion or more, adjusted annually for inflation; and (2) "negative-impact-on-jobs-and-wages rule" as any rule likely to reduce employment or wages in certain economic sectors or industry areas by specified amounts over specified periods.

The bill specifies the minimum amount of information that must be included in an advance notice of a proposed rulemaking.

After notice or advance notice of a proposed rulemaking, the agency making the rule is prohibited from: (1) advocating for the submission of information to form part of the record of review, (2) appealing to the public to undertake advocacy, or (3) communicating for publicity or propaganda within the United States in a manner not authorized by Congress. The agency may request comments or information in an impartial manner.

The notice of final rulemaking that agencies must publish when they adopt a final major rule shall include a report, to be revised every five years, on the benefits and costs to regulated entities. If an agency determines in a revised report that the cost to regulated entities has exceeded the anticipated cost at the time the final rule was issued, the agency must submit to Congress an assessment of whether the rule: (1) is accomplishing its regulatory objective; and (2) has been rendered unnecessary considering changes in the subject area, other government regulations, and alternatives that might impose smaller burdens or achieve lower costs. Upon delivery of such an assessment about a rule exceeding the anticipated cost, the agency must: (1) reopen the public docket to receive additional comments, and (2) consider modifications or alternatives that reduce costs and increase benefits to regulated entities or individuals.

OIRA must issue guidelines to promote coordination, simplification, and harmonization of agency rules during the rulemaking process.

The bill exempts from such revised procedures rulemakings that concern monetary policy proposed or implemented by the Federal Reserve Board (FRB) or the Federal Open Market Committee (FOMC).

(Sec. 104) The bill imposes new requirements for issuing any major guidance or guidance that involves a novel legal or policy issue arising out of statutory mandates. OIRA may issue guidelines for agencies in issuing major guidance or other guidance.

(Sec. 105) The bill provides for electronic access to transcripts of testimony, exhibits, and other papers filed in a rulemaking proceeding.

The record of decision in a rulemaking proceeding must include information from a hearing under the Information Quality Act (IQA) or on a high-impact rule.

Agencies must grant a petition for a hearing in the case of a major rule, unless the agency reasonably determines that a hearing would not advance consideration of the rule or would unreasonably delay completion of the rulemaking. Exempted from this requirement are rulemakings that concern monetary policy proposed or implemented by the FRB or the FOMC.

(Sec. 106) An agency's denial of an IQA petition, or a failure to grant or deny such petition within 90 days, is reviewable by a court as a final action. The bill allows immediate judicial review of interim rules, other than in cases involving national security interests, issued without compliance with the notice requirements of this bill.

(Sec. 107) The bill revises standards for the scope of judicial review of agency rulemaking to prohibit a court from deferring to an agency's: (1) determination of the costs and benefits or other economic or risk assessment if the agency failed to conform to guidelines on such determinations and assessments established by OIRA, (2) determinations made in the adoption of an interim rule, or (3) guidance.

(Sec. 108) The bill defines "substantial evidence" for purposes of evaluating agency adjudications and for rulemaking under the APA as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of the record considered as a whole, taking into account whatever in the record fairly detracts from the weight of the evidence relied upon by the agency to support its decision.

(Sec. 109) The amendments made by this title shall not apply to any rulemakings pending or completed on the date of enactment date of this title.


Separation of Powers Restoration Act

(Sec. 202) This title modifies the scope of judicial review of agency actions to authorize courts reviewing agency actions to decide de novo (without giving deference to the agency's interpretation) all relevant questions of law, including the interpretation of: (1) constitutional and statutory provisions, and (2) 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 or rely on that gap or ambiguity as: (1) an implicit delegation to the agency of legislative rulemaking authority, or (2) a justification for interpreting agency authority expansively or for deferring to the agency's interpretation on the question of law.

No law may exempt such a civil action from the application of the amendments made by this bill except by specific reference to these provisions.


Small Business Regulatory Flexibility Improvements Act

(Sec. 302) This title amends the Regulatory Flexibility Act of 1980 (RFA) and the Small Business Regulatory Enforcement Act of 1996 (SBREFA) to revise and expand the rulemaking requirements and procedures of federal agencies (excluding Congress, U.S. courts, U.S. territories and possessions, and the District of Columbia) that affect small entities.

The RFA is amended to adopt the broader definition of "rule" set forth in the APA, but to exclude from such definition: (1) rules that pertain to the protection of veterans' rights and benefits and to consumer credit extended to service members and dependents, or (2) rules of particular applicability relating to rates, wages, and other financial indicators. The concept of "economic impact" is added to the RFA to require agencies to consider any direct economic effect of a proposed rule on small entities and any indirect economic effect on such entities that is reasonably foreseeable and that results from such rule.

The applicability of the RFA is expanded to cover: (1) rules that have a beneficial significant economic impact on small entities, (2) rules that affect tribal organizations, (3) land management plans developed by the U.S. Forest Service and the Bureau of Land Management, and (4) certain collection-of-information and record keeping activities of the Internal Revenue Service.

The definition of "small organization" under the RFA is revised to mean any not-for-profit enterprise, including a local labor organization, with a net worth not exceeding $7 million and with no more than 500 employees.

(Sec. 303) Each agency is required to: (1) include in its regulatory agenda (published in the Federal Register every April and October) a brief description of the sector of the North American Industrial Classification System that is primarily affected by a proposed or promulgated rule that is likely to have a significant economic impact on a substantial number of small entities, and (2) prominently display a plain language summary of the information in the regulatory agenda on its website.

(Sec. 304) RFA requirements relating to an initial regulatory flexibility analysis are expanded to require an analysis to contain a detailed statement (instead of merely a statement) of information relating to a proposed rule. The analysis must include an estimate of the additional cumulative impact of the proposed rule on small entities, a description of any disproportionate economic impact on small entities or a specific class of small entities, and a description of any impairment of the ability of small entities to have access to credit.

A final regulatory flexibility analysis must include a detailed description of any disproportionate economic impact on small entities or a specific class of small entities.

An agency's certification that a rule will not have a significant economic impact on a substantial number of small entities must include an economic assessment to support the certification.

The standard for measuring the economic impact of a proposed rule on small entities is expanded to require a quantifiable or numerical description of the effects of a proposed or final rule on such entities.

(Sec. 305) The authority of an agency to waive or delay the completion of regulatory flexibility analyses is eliminated.

The Chief Counsel for Advocacy of the Small Business Administration (SBA) is given expanded authority to issue, modify, or amend rules governing agency compliance with RFA requirements and to intervene in agency adjudications.

(Sec. 306) RFA procedures for the participation of small entities in the promulgation of a proposed rule are modified to require the rulemaking agency to: (1) notify the SBA Chief Counsel for Advocacy, and (2) provide the Chief Counsel with all materials prepared or utilized by the agency in making the proposed rule and with information on the potential adverse and beneficial economic impacts of the rule on small entities.

The Chief Counsel is specifically charged with: (1) convening a review panel with representation from the SBA Office of Advocacy, the agency making the rule, and the OMB; and (2) reporting to the rulemaking agency on the economic impact of the proposed rule on small entities with respect to energy and startup costs and on alternatives that will minimize adverse or maximize beneficial economic impacts on small entities.

The Chief Counsel is empowered to waive the review panel requirements if they are deemed impracticable, unnecessary, or contrary to the public interest.

(Sec. 307) RFA requirements for periodic review of rules affecting small entities are expanded to require: (1) mandatory review of all rules that have a significant impact on a substantial number of small entities; (2) a detailed statement on how an agency will conduct outreach activities to include small businesses, including those owned and controlled by women, veterans, and socially and economically disadvantaged individuals; (3) annual agency reports on the results of its review of rules; and (4) annual publication in the Federal Register and on the agency website of a list of rules to be reviewed, with a solicitation of public comments.

(Sec. 308) Judicial review under the RFA is expedited to allow an individual who is aggrieved by an agency rule to initiate judicial review of agency compliance with the RFA without waiting for final agency action on such rule.

(Sec. 309) Exclusive jurisdiction is granted to the U.S. Court of Appeals to review challenges by small entities to rules promulgated by the SBA Chief Counsel for Advocacy for implementing the RFA.

(Sec. 310) The Small Business Act is amended to: (1) authorize the SBA Chief Counsel for Advocacy to specify size standards for small business concerns for purposes of any enactment other than the Small Business Act or the Small Business Investment Act of 1958, and (2) permit a party who seeks judicial review of a small business size determination approved by the SBA Chief Counsel for Advocacy to join the Chief Counsel as a party in an action for such review.

(Sec. 312) The SBREFA is amended to require agencies, in developing small entity compliance guides, to solicit input from affected small entities or associations of small entities.

(Sec. 313) The Government Accountability Office (GAO) must complete and publish a study that examines whether the SBA Chief Counsel for Advocacy has the capacity and resources to carry out duties under this title.


Require Evaluation before Implementing Executive Wishlists Act or the REVIEW Act

(Sec. 402) This title prohibits a final agency rule from being published or taking effect until the agency submits the rule to OIRA and OIRA makes a determination as to 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 the final disposition of all actions seeking judicial review of the rule.

If no person seeks judicial review of a high-impact rule during any period explicitly provided for such review under the authorizing statute or during the 60-day period after the rule is published if no such period is explicitly provided, the rule may take effect as early as the date the applicable period ends.


All Economic Regulations are Transparent Act or the ALERT Act

(Sec. 502) This title requires each federal agency to submit a monthly report to OIRA for each rule such agency expects to propose or finalize during the following 12 months. The reports must include: (1) a summary of the nature of the rule, (2) the objectives of and legal basis for issuance of the rule, (3) the stage of the rulemaking as of the date of submission, and (4) whether the rule is subject to periodic review as a rule with a significant economic impact.

Each agency must submit a monthly report 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: (1) an approximate schedule for completing action on the rule; (2) estimates of its cost, economic effects, and any imposition of unfunded mandates; and (3) a list of influential scientific information disseminated by the agency relating to the rule, including any peer review plans for the information.

OIRA must make such monthly reports publicly available on the Internet.

OIRA must publish, not later than October 1 of each year, in the Federal Register: (1) information that OIRA receives from each agency under this title; (2) the number of rules and a list of each such rule that was proposed by each agency and each rule that was finalized by each agency; (3) the number of agency actions that repealed a rule, reduced the scope or cost of a rule, or accelerated the expiration date of a rule; (4) the total cost of all rules proposed or finalized and of any proposed unfunded mandates; and (5) the number of rules for which an estimate of the cost of the rule was not available.

OIRA must make publicly available on the Internet, not later than October 1 of each year: (1) the analysis of the costs or benefits of each proposed or final rule issued by an agency for the preceding year, (2) the docket number and regulation identifier number for each such rule, (3) the number of rules reviewed by the OMB for the preceding year, (4) the number of rules for which a review by the head of an agency was completed, (5) the number of rules submitted to the GAO, and (6) the number of rules for which a resolution of disapproval was introduced in Congress.

The bill prohibits a rule from taking effect until the information required by this title 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. Such requirement becomes effective eight months after enactment of this title.


Providing Accountability Through Transparency Act

(Sec. 602) This title 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 website.