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American Bar Comments on RAA of 2011.pdf


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October 24, 2011

AMERICAN BAR ASSOCIATION
SECTION OF ADMINISTRATIVE LAW AND REGULATORY PRACTICE
COMMENTS ON H.R. 3010, THE REGULATORY ACCOUNTABILITY ACT OF 2011
SUMMARY
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superseded by regularly adopted rules,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.”)

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