Regulatory Analysis Act Introduced in Senate

September 5, 2012

Last month before leaving for recess, Sens. Rob Portman (R-Ohio), Mark Warner (D-Va.) and Susan Collins (R-Maine) introduced the bipartisan Independent Agency Regulatory Analysis Act of 2012 (S. 3468). If enacted, this bill would, among other things, extend to independent agencies (i.e. the U.S. Securities and Exchange Commission (SEC), Federal Communications Commission (FCC), etc.) the same regulatory analysis requirements currently applicable to the executive agencies, including, but not limited to:

  • The requirement to identify the problem that the agency intends to address by a new rule 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 goals of the new rule more effectively;
  • Identify and assess available alternatives to direct regulation, including providing economic incentives;
  •  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, flexibility, distributive impacts, and equity;
  •  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;
  • 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; and
  • Periodically review its existing significant rules to determine whether any such rules should be modified, streamlined, expanded, or repealed.

In addition to the foregoing regulatory analysis requirements, this bill would require independent agencies to submit significant proposed and final rules (i.e. rules with an economic impact of more than $100 million) and supporting analysis to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA). OIRA would then be required to review the proposed rule and determine whether or not the submitting agency complied with the new requirements. If OIRA determines that the independent agency failed to comply with the new regulatory analysis requirements, then that agency would be required to provide or include along 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.

Additionally, while independent agencies compliance or noncompliance with the referenced regulatory requirements would not be subject to judicial review, any decisions, analysis, explanations, or assessments made by OIRA would be included in the official record of the agency action.

After being introduced, S. 3468 was referred to the Senate Committee on Homeland Security and Government Affairs. NSBA is closely monitoring this legislation and will keep members apprised of any developments.