S. 1708 — Regulatory Accountability Act

This section amends the definitions in the Administrative Procedure Act (APA) (5 U.S.C. 551) by (1) replacing "rule making" with "rulemaking" in paragraphs (5) and (6); (2) striking "and" at the end of paragraph (13), replacing the period at the end of paragraph (14) with a semicolon; and (3) adding new paragraphs defining "(15) guidance" as an agency statement of general applicability without force of law that sets forth a policy or interpretation on statutory, regulatory, or technical issues; "(16) major guidance" as guidance the Office of Information and Regulatory Affairs (OIRA) Administrator determines likely to have specified annual economic effects, major cost increases, significant adverse effects on competition or other factors, or a departure from prior agency policy or statutory interpretation; "(17) major rule" as any rule the OIRA Administrator determines likely to cause an annual economic effect of $100 million or more, major cost increases, significant adverse effects on competition or other factors, or novel legal or policy issues; "(18) Office of Information and Regulatory Affairs" as the office established under 44 U.S.C. 3503; and "(19) Administrator" as the OIRA Administrator. (Thus, these terms support OIRA review of agency rules and guidance documents.)

This section revises Section 553 of title 5, United States Code (governing notice-and-comment rulemaking procedures under the Administrative Procedure Act), as follows: (1) updates the section heading from "Rule making" to "Rulemaking" and clarifies the applicability of subsection (a); and (2) strikes subsections (b) through (e) and inserts new subsections (b) and (c). New subsection (b) requires agencies, in a rulemaking, to consider the legal authority for the rule; the nature and significance of the problem addressed; contributions from existing federal laws or rules and potential amendments thereto; a reasonable number of alternatives (with three presumed reasonable), including performance objectives, economic incentives (e.g., marketable permits), disclosure requirements, or other non-mandatory means; and, for major rules, detailed quantitative and qualitative costs and benefits analyses of alternatives (unless prohibited by law), including direct/indirect effects and impacts on businesses interacting with regulated entities. New subsection (c) requires agencies to submit a notice of proposed rulemaking (NPRM) to the Administrator (of the Office of Information and Regulatory Affairs) for review before Federal Register publication; mandates NPRM contents including legal authority references, proposed rule text, summaries of subsection (b) considerations, and—for major rules—a reasoned preliminary justification that benefits justify costs, alternatives analysis, and public comment solicitation on those elements; requires placement of all underlying studies, models, data, and acquisition actions into the public docket upon NPRM publication (with accommodations for proprietary information via citation and access procedures); and exempts information protected under FOIA from disclosure.

This section revises the scope of judicial review of agency actions under section 706 of title 5, United States Code (Administrative Procedure Act (APA)), as follows: (1) designates the existing introductory provisions and paragraphs (1) and (2) as subsection (a), strikes "and" at the end of paragraph (1), and in the introductory clause of paragraph (2) inserts authority for reviewing courts to ", or, when appropriate, remand a matter to an agency without setting aside" agency action (in addition to the existing authority to hold unlawful and set aside); (2) redesignates the existing flush text on review of the record and prejudicial error as subsection (b) with minor rewording; (3) adds subsection (c) precluding judicial review of any action or inaction by the Administrator under subchapter II of chapter 5 of title 5, U.S. Code (APA rulemaking provisions), except sections 552 (Freedom of Information Act) and 552a (Privacy Act), and providing that such preclusion shall not be construed to create other causes of action against the Administrator except as explicitly provided by law; (4) adds subsection (d) limiting review of agency guidance that does not interpret a statute or rule solely to subsection (a)(2)(D) (without observance of procedure required by law); and (5) adds subsection (e) requiring courts to decide all questions of law de novo (unless otherwise required by statute), with due regard for agency views, and to give weight to an agency's interpretation of its own rule based on the agency's thoroughness, reasoning validity, and consistency with prior and subsequent pronouncements. (Thus, this codifies de novo review of legal questions and Skidmore deference factors for agency rule interpretations.)

This section amends the definitions in 5 U.S.C. 701(b), applicable to judicial review of agency actions under the Administrative Procedure Act, to (1) expand the definition of “agency action” to explicitly include “guidance,” and (2) define “substantial evidence” as such relevant evidence, including the quality, as a reasonable mind might accept as adequate to support a conclusion in light of the record considered as a whole.

This section exempts any rulemaking—as defined in amended 5 U.S.C. §551—from the Act's amendments to APA §§553 (rulemaking procedures), 701(b) (applicability of judicial review), and 706 (scope of review) if the rulemaking is pending or completed as of the date of enactment. (Thus, ongoing or finished agency rulemakings proceed under prior law.)

This section makes technical and conforming amendments to 20 statutes—including the Clean Air Act, Endangered Species Act of 1973, Consumer Product Safety Act, Federal Trade Commission Act, and Congressional Accountability Act of 1995—primarily by (1) updating cross-references to Administrative Procedure Act provisions on notice-and-comment rulemaking and exceptions (5 U.S.C. § 553), such as from subsection (b) to (c), (d)(3) to (g)(2), (e) to (h), and similar changes; and (2) updating references to judicial review standards (5 U.S.C. § 706), such as from subsection (2) to (a)(2) and (2)(E) to (a)(2)(E).