Legislation is being taken up in the Senate to further impose limits on rulemaking by the SEC (and other independent agencies). The Independent Agency Regulatory Analysis Act of 2012 would subject "independent regulatory agencies" to the "regulatory analysis" requirements applicable to executive agencies." The legislation is sponsored by Senators Portman, Warner, and Collins.
Under the provision, independent agencies can be subject to an executive order that requires the "regulatory analysis" otherwise imposed on traditional executive branch agencies. In addition, the President can require that an independent agency submit a proposed or final rule to the Office of Information and Regulatory Affairs for "review." OIRA can take up to 90 days to determine whether "the agency has complied with the regulatory analysis requirements made applicable by Executive order."
To the extent OIRA determines that the independent agency has not met the requirements, the Agency head is obligated to address the findings in the rulemaking record. The Agency must include a "clear statement" of the issues engendering agreement and disagreement with OIRA. To the extent that the head of the agency determines that, in fact, the rule complies with the relevant executive order but must include "an explanation of that determination." Alternatively, there must be an explanation "why the independent agency did not comply" with the relevant requirements.
The legislation has a number of implications. We will discuss them in the next post.