Teleforum on the Regulatory Accountability Act 2/1

On Wednesday, February 1, at 3:00 pm Eastern time, the Federalist Society's Administrative Law Section will host a "teleforum" on the Regulatory Accountability Act (H.R. 3010).  The Act, which passed the House in December, would make sweeping changes to the APA, particularly with regard to rulemaking.

The featured speakers are both distinguished former chairs of the ABA Section of Administrative Law and Regulatory Practice: Boyden Gray and Ron Levin.

Boyden testified in favor of the bill before the House Judiciary Committee; his prepared statement is here.  Ron was central to the preparation of this Section's comments on the bill.  It is hard to imagine two better speakers on this topic.  This is not to be missed!

No registration is necessary.  To participate, just call (888) 752-3232 at 3:00 p.m. on Wednesday.

Prior posts on the bill can be found here and here.

UPDATE:

A podcast of this discussion is available here.

REINS Act Passes House

The REINS (Regulations from the Executive in Need of Scrutiny) Act, H.R. 10, passed the House on December 7.  The vote was 241-to-184; all Republicans present and four Democrats voted for the bill.  Politically, the bill is generally lumped together with the Regulatory Accountability Act, H.R. 3010, on which see here and here.  Thus, the Wall Street Journal likes it; the New York Times does not.  Substantively, however, it would do something quite different.  In a nutshell, it would take the existing Congressional Review Act's almost-entirely-ignored provisions for congressional disapproval of significant regulations and makes one fundamental change: Instead of permitting passage of a joint resolution of disapproval before a major regulation (i.e. one with an annual impact on the economy over $100 million) becomes effective, it would require passage of a joint resolution of approval before the regulation becomes effective. The bill would create a special fast-track mechanism for considering such a resolution within the required time period; delaying tactics such as filibusters and holds would not be permitted.

As with the Regulatory Accountability Act, the legislation's prospects in the Senate are much dimmer than in the House, and the White House has issued a Statement of Administration Policy threatening a veto.

The Section has not taken a position or submitted comments on the REINS Act.  Useful discussion in the blogosphere includes Jonathan Adler's generally supportive posts at the Volokh Conspiracy, former Section Chair Sally Katzen's testimony opposing the bill, and extensive coverage at RegBlog.

Regulatory Accountability Act Passes House

Today the House of Representatives passed the Regulatory Accountability Act, H.R. 3010, by a vote of 253-167.  No Republicans voted against it; 19 Democrats voted for it.  The general expectation is that the bill will not advance in the Senate, and the White House has threatened a veto if it does, so the ultimate fate of the legislation will likely turn on the results of the 2012 elections.

Press coverage of the vote can be found here and here.  The Section's comments on the bill are here.

Regulatory Accountability Act to House Floor; White House Threatens Veto

The Regulatory Accountability Act, H.R. 3010, is scheduled to be considered on the floor of the House on Thursday, December 1, 2011.  The controversial bill would make sweeping changes to the APA, particularly with regard to its rulemaking provisions.  Today the White House released a Statement of Administration Policy stating that the President's senior advisors would recommend a veto were the bill to reach his desk.

The Section's extensive comments on the bill can be found here; an executive summary of those comments is contained in this post.

Administrative Procedure Act: ABA Admin Law Section Comments on H.R. 3010

On October 25, the House Judiciary Committee held a hearing on H.R. 3010, the "Regulatory Accountability Act of 2011." Witnesses scheduled at the hearing included C. Boyden Gray, Boyden Gray & Associates (and former Section Chair), Christopher C. DeMuth of the American Enterprise Institute for Public Policy Research, Arnold Baker, owner of Baker Ready-Mix Building Materials, and Sidney Shapiro, University Distinguished Chair in Law at Wake Forest University School of Law.

The Administrative Law Section submitted extensive comments concerning the bill to the Committee. An executive summary of the Section's comments follows.

"The Regulatory Accountability Act of 2011, H.R. 3010, would be a sweeping and consequential revision to the Administrative Procedure Act, particularly with regard to the process of rulemaking. The bill is unusually ambitious and crammed with details that are impossible to summarize. Among its provisions are many that the Section endorses, many it would modify, and many that it opposes.

"With regard to the first category, we support provisions that would

• require agencies to maintain a rulemaking record,
• require agencies to disclose data, studies, and other information underlying a proposed rule,
• recognize the consultative function of the Office of Information and Regulatory Affairs (OIRA),
• provide for agencies to consult OIRA when issuing major guidance, and
• extend these OIRA functions to the independent agencies.

"With regard to the second category, we are sympathetic toward, but suggest modifications to, the bill’s provisions that would 

• add an Advance Notice of Proposed Rulemaking step to certain rulemakings,
• address the problem of agencies’ issuance of “interim” rules that are never superseded by regularly adopted rules,
• provide some centralized oversight of agency issuance of and reliance on guidance documents.

"On the other hand, the Section has serious concerns about

• the bill’s lengthy list of “rulemaking considerations” that agencies would be required to take into account at each stage of the rulemaking process,
• use of the long-discredited “formal rulemaking” for some rules,
• providing for judicial review of agencies’ compliance with OIRA’s guidelines, and
• effectively rewriting the substantive provisions regarding standard-setting in the enabling legislation of numerous agencies through a cost-focused “supermandate.” (We take no position on the substantive question of the appropriate role of costs in setting standards; we only object to resolving that question in a single, across-the-board statute that would turn the APA into the “Administrative Substance Act.”) 

"In general, we think many of the new steps the bill would require for rulemaking are, in numerous particular cases, valuable and appropriate. However, to impose these requirements automatically and across the board will, we fear, further ossify the rulemaking process with little offsetting benefits in the form of better rules."