HOUSE PASSES TWO ANTI-REGULATORY ACTS—THE REGULATORY FLEXIBILITY IMPROVEMENTS ACT AND REGULATORY ACCOUNTABILITY ACT.

For clients and friends of Jackson Kelly PLLC
Volume 7, Number 29
©2011 Jackson Kelly PLLC

 

        On December 1, 2011, the House passed the Regulatory Flexibility Improvements Act of 2011 (H.R. 527), which amends the Regulatory Flexibility Act of 1980.  Supporters of the legislation stated that the legislation is intended to ensure a complete analysis of potential impacts on small of entities of new rulemaking.  Others openly admitted it is an attempt to reign in new rulemaking by regulatory agencies.  The primary features of the bill include:

• Defines “economic impact” with respect to a proposed or final rule as any direct economic effect on small entities and any indirect economic effect on small entities that is reasonably foreseeable.
• Requires the initial or final regulatory flexibility analysis to contain a detailed description of alternatives to a proposed rule that minimize any adverse significant economic impacts or maximize the beneficial significant economic impacts on small entities.
• Revises the definition of “small organization” to include consideration of size standards, net worth, and number of employees.
• Requires initial and final regulatory flexibility analyses to contain detailed statements, including an estimate and description of any cumulative or disproportionate economic impact of a rule on small entities.
• Repeals agency authority to waive an initial regulatory flexibility analysis or delay a final regulatory flexibility analysis in emergency situations.

        One day later, the House passed the Regulatory Accountability Act of 2011 (H.R. 3010), which amends the Administrative Procedure Act to revise and expand the requirements for federal agency rulemaking.  The primary focus of the bill includes:

• Requires agencies, in making a rule, to base all preliminary and final determinations on evidence and to consider the legal authority under which the rule may be proposed, the specific nature and significance of the problem addressed by the rule, any reasonable alternatives to the rule, and the potential costs and benefits associated with such alternatives.
• Requires agencies to publish advance notice of proposed rulemaking for major rules and high-impact rules (those which have annual cost on the economy of $100 million or $1 billion or more, respectively).
• Sets forth criteria for issuing major guidance (agency guidance that is likely to lead to an annual cost on the economy of $100 million or more, a major increase in costs or prices, or significant adverse effects on competition, employment, investment, productivity, innovation, or ability to compete).
• Expands the scope of judicial review of agency rulemaking by allowing immediate review of rulemaking not in compliance with notice requirements and establishing a substantial evidence standard for affirming agency rulemaking decisions.

        The Senate versions of the Bills remain in committee.  Markups on either Senate bill have not yet been announced. 

 

        This article was authored by K. Brad Oakley, Jackson Kelly PLLC.  For more information on the author, click here.

 

OCCUPATIONAL SAFETY AND HEALTH PRACTICE GROUP
Denver, Colorado

 

Responsible Attorney
Kristin R.B. White
(303) 390-0006
kwhite@jacksonkelly.com

 

For more information, contact:

 

Laura E. Beverage (303) 390-0003	Karen L. Johnston (303) 390-0008
R. Henry Moore (412) 434-8801	Michael T. Cimino (304) 340-1000

 

 

The Jackson Kelly PLLC Occupational Safety and Health News Alert is for informational purposes only and not for the purposes of offering legal advice or a legal opinion on any matter. No reader should act or refrain from acting on the basis of any statement in the Jackson Kelly PLLC Occupational Safety and Health News Alert without seeking advice from qualified legal counsel on the particular facts and circumstances involved.

 

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