[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2804 Engrossed in House (EH)]
113th CONGRESS
2d Session
H. R. 2804
_______________________________________________________________________
AN ACT
To amend title 5, United States Code, to require the Administrator of
the Office of Information and Regulatory Affairs to publish information
about rules on the Internet, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Achieving Less
Excess in Regulation and Requiring Transparency Act of 2014'' or as the
``ALERRT Act of 2014''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
TITLE I--ALL ECONOMIC REGULATIONS ARE TRANSPARENT ACT
Sec. 101. Short title.
Sec. 102. Office of Information and Regulatory Affairs publication of
information relating to rules.
TITLE II--REGULATORY ACCOUNTABILITY ACT
Sec. 201. Short title.
Sec. 202. Definitions.
Sec. 203. Rule making.
Sec. 204. Agency guidance; procedures to issue major guidance;
presidential authority to issue guidelines
for issuance of guidance.
Sec. 205. Hearings; presiding employees; powers and duties; burden of
proof; evidence; record as basis of
decision.
Sec. 206. Actions reviewable.
Sec. 207. Scope of review.
Sec. 208. Added definition.
Sec. 209. Effective date.
TITLE III--REGULATORY FLEXIBILITY IMPROVEMENTS ACT
Sec. 301. Short title.
Sec. 302. Clarification and expansion of rules covered by the
Regulatory Flexibility Act.
Sec. 303. Expansion of report of regulatory agenda.
Sec. 304. Requirements providing for more detailed analyses.
Sec. 305. Repeal of waiver and delay authority; additional powers of
the Chief Counsel for Advocacy.
Sec. 306. Procedures for gathering comments.
Sec. 307. Periodic review of rules.
Sec. 308. Judicial review of compliance with the requirements of the
Regulatory Flexibility Act available after
publication of the final rule.
Sec. 309. Jurisdiction of court of appeals over rules implementing the
Regulatory Flexibility Act.
Sec. 310. Establishment and approval of small business concern size
standards by Chief Counsel for Advocacy.
Sec. 311. Clerical amendments.
Sec. 312. Agency preparation of guides.
Sec. 313. Comptroller General report.
TITLE IV--SUNSHINE FOR REGULATORY DECREES AND SETTLEMENTS ACT
Sec. 401. Short title.
Sec. 402. Definitions.
Sec. 403. Consent decree and settlement reform.
Sec. 404. Motions to modify consent decrees.
Sec. 405. Effective date.
TITLE I--ALL ECONOMIC REGULATIONS ARE TRANSPARENT ACT
SEC. 101. SHORT TITLE.
This title may be cited as the ``All Economic Regulations are
Transparent Act of 2014'' or the ``ALERT Act of 2014''.
SEC. 102. OFFICE OF INFORMATION AND REGULATORY AFFAIRS PUBLICATION OF
INFORMATION RELATING TO RULES.
(a) Amendment.--Title 5, United States Code, is amended by
inserting after chapter 6, the following new chapter:
``CHAPTER 6A--OFFICE OF INFORMATION AND REGULATORY AFFAIRS PUBLICATION
OF INFORMATION RELATING TO RULES
``Sec.
``651. Agency monthly submission to Office of Information and
Regulatory Affairs.
``652. Office of Information and Regulatory Affairs Publications.
``653. Requirement for rules to appear in agency-specific monthly
publication.
``654. Definitions.
``Sec. 651. Agency monthly submission to Office of Information and
Regulatory Affairs
``On a monthly basis, the head of each agency shall submit to the
Administrator of the Office of Information and Regulatory Affairs
(referred to in this chapter as the `Administrator'), in such a manner
as the Administrator may reasonably require, the following information:
``(1) For each rule that the agency expects to propose or
finalize during the following year:
``(A) A summary of the nature of the rule,
including the regulation identifier number and the
docket number for the rule.
``(B) The objectives of and legal basis for the
issuance of the rule, including--
``(i) any statutory or judicial deadline;
and
``(ii) whether the legal basis restricts or
precludes the agency from conducting an
analysis of the costs or benefits of the rule
during the rule making, and if not, whether the
agency plans to conduct an analysis of the
costs or benefits of the rule during the rule
making.
``(C) Whether the agency plans to claim an
exemption from the requirements of section 553 pursuant
to section 553(b)(B).
``(D) The stage of the rule making as of the date
of submission.
``(E) Whether the rule is subject to review under
section 610.
``(2) For any rule for which the agency expects to finalize
during the following year and has issued a general notice of
proposed rule making--
``(A) an approximate schedule for completing action
on the rule;
``(B) an estimate of whether the rule will cost--
``(i) less than $50,000,000;
``(ii) $50,000,000 or more but less than
$100,000,000;
``(iii) $100,000,000 or more but less than
$500,000,000;
``(iv) $500,000,000 or more but less than
$1,000,000,000;
``(v) $1,000,000,000 or more but less than
$5,000,000,000;
``(vi) $5,000,000,000 or more but less than
$10,000,000,000; or
``(vii) $10,000,000,000 or more; and
``(C) any estimate of the economic effects of the
rule, including any estimate of the net effect that the
rule will have on the number of jobs in the United
States, that was considered in drafting the rule. If
such estimate is not available, a statement affirming
that no information on the economic effects, including
the effect on the number of jobs, of the rule has been
considered.
``Sec. 652. Office of Information and Regulatory Affairs Publications
``(a) Agency-Specific Information Published Monthly.--Not later
than 30 days after the submission of information pursuant to section
651, the Administrator shall make such information publicly available
on the Internet.
``(b) Cumulative Assessment of Agency Rule Making Published
Annually.--
``(1) Publication in the federal register.--Not later than
October 1 of each year, the Administrator shall publish in the
Federal Register, for the previous year the following:
``(A) The information that the Administrator
received from the head of each agency under section
651.
``(B) The number of rules and a list of each such
rule--
``(i) that was proposed by each agency,
including, for each such rule, an indication of
whether the issuing agency conducted an
analysis of the costs or benefits of the rule;
and
``(ii) that was finalized by each agency,
including for each such rule an indication of
whether--
``(I) the issuing agency conducted
an analysis of the costs or benefits of
the rule;
``(II) the agency claimed an
exemption from the procedures under
section 553 pursuant to section
553(b)(B); and
``(III) the rule was issued
pursuant to a statutory mandate or the
rule making is committed to agency
discretion by law.
``(C) The number of agency actions and a list of
each such action taken by each agency that--
``(i) repealed a rule;
``(ii) reduced the scope of a rule;
``(iii) reduced the cost of a rule; or
``(iv) accelerated the expiration date of a
rule.
``(D) The total cost (without reducing the cost by
any offsetting benefits) of all rules proposed or
finalized, and the number of rules for which an
estimate of the cost of the rule was not available.
``(2) Publication on the internet.--Not later than October
1 of each year, the Administrator shall make publicly available
on the Internet the following:
``(A) The analysis of the costs or benefits, if
conducted, for each proposed rule or final rule issued
by an agency for the previous year.
``(B) The docket number and regulation identifier
number for each proposed or final rule issued by an
agency for the previous year.
``(C) The number of rules and a list of each such
rule reviewed by the Director of the Office of
Management and Budget for the previous year, and the
authority under which each such review was conducted.
``(D) The number of rules and a list of each such
rule for which the head of an agency completed a review
under section 610 for the previous year.
``(E) The number of rules and a list of each such
rule submitted to the Comptroller General under section
801.
``(F) The number of rules and a list of each such
rule for which a resolution of disapproval was
introduced in either the House of Representatives or
the Senate under section 802.
``Sec. 653. Requirement for rules to appear in agency-specific monthly
publication
``(a) In General.--Subject to subsection (b), a rule may not take
effect until the information required to be made publicly available on
the Internet regarding such rule pursuant to section 652(a) has been so
available for not less than 6 months.
``(b) Exceptions.--The requirement of subsection (a) shall not
apply in the case of a rule--
``(1) for which the agency issuing the rule claims an
exception under section 553(b)(B); or
``(2) which the President determines by Executive order
should take effect because the rule is--
``(A) necessary because of an imminent threat to
health or safety or other emergency;
``(B) necessary for the enforcement of criminal
laws;
``(C) necessary for national security; or
``(D) issued pursuant to any statute implementing
an international trade agreement.
``Sec. 654. Definitions
``In this chapter, the terms `agency', `agency action', `rule', and
`rule making' have the meanings given those terms in section 551.''.
(b) Technical and Conforming Amendment.--The table of chapters for
part I of title 5, United States Code, is amended by inserting after
the item relating to chapter 5, the following:
``6. The Analysis of Regulatory Functions.................. 601
``6A. Office of Information and Regulatory Affairs 651''.
Publication of Information
Relating to Rules.
(c) Effective Dates.--
(1) Agency monthly submission to the office of information
and regulatory affairs.--The first submission required pursuant
to section 651 of title 5, United States Code, as added by
subsection (a), shall be submitted not later than 30 days after
the date of the enactment of this title, and monthly
thereafter.
(2) Cumulative assessment of agency rule making.--
(A) In general.--Subsection (b) of section 652 of
title 5, United States Code, as added by subsection
(a), shall take effect on the date that is 60 days
after the date of the enactment of this title.
(B) Deadline.--The first requirement to publish or
make available, as the case may be, under subsection
(b) of section 652 of title 5, United States Code, as
added by subsection (a), shall be the first October 1
after the effective date of such subsection.
(C) First publication.--The requirement under
section 652(b)(2)(A) of title 5, United States Code, as
added by subsection (a), shall include for the first
publication, any analysis of the costs or benefits
conducted for a proposed or final rule, for the 10
years before the date of the enactment of this title.
(3) Requirement for rules to appear in agency-specific
monthly publication.--Section 653 of title 5, United States
Code, as added by subsection (a), shall take effect on the date
that is 8 months after the date of the enactment of this title.
TITLE II--REGULATORY ACCOUNTABILITY ACT
SEC. 201. SHORT TITLE.
This title may be cited as the ``Regulatory Accountability Act of
2014''.
SEC. 202. DEFINITIONS.
Section 551 of title 5, United States Code, is amended--
(1) in paragraph (13), by striking ``and'' at the end;
(2) in paragraph (14), by striking the period at the end
and inserting a semicolon; and
(3) by adding at the end the following:
``(15) `major rule' means any rule that the Administrator
of the Office of Information and Regulatory Affairs determines
is likely to impose--
``(A) an annual cost on the economy of $100,000,000
or more, adjusted annually for inflation;
``(B) a major increase in costs or prices for
consumers, individual industries, Federal, State,
local, or tribal government agencies, or geographic
regions;
``(C) significant adverse effects on competition,
employment, investment, productivity, innovation, or on
the ability of United States-based enterprises to
compete with foreign-based enterprises in domestic and
export markets; or
``(D) significant impacts on multiple sectors of
the economy;
``(16) `high-impact rule' means any rule that the
Administrator of the Office of Information and Regulatory
Affairs determines is likely to impose an annual cost on the
economy of $1,000,000,000 or more, adjusted annually for
inflation;
``(17) `negative-impact on jobs and wages rule' means any
rule that the agency that made the rule or the Administrator of
the Office of Information and Regulatory Affairs determines is
likely to--
``(A) in one or more sectors of the economy that
has a 6-digit code under the North American Industry
Classification System, reduce employment not related to
new regulatory compliance by 1 percent or more annually
during the 1-year, 5-year, or 10-year period after
implementation;
``(B) in one or more sectors of the economy that
has a 6-digit code under the North American Industry
Classification System, reduce average weekly wages for
employment not related to new regulatory compliance by
1 percent or more annually during the 1-year, 5-year,
or 10-year period after implementation;
``(C) in any industry area (as such term is defined
in the Current Population Survey conducted by the
Bureau of Labor Statistics) in which the most recent
annual unemployment rate for the industry area is
greater than 5 percent, as determined by the Bureau of
Labor Statistics in the Current Population Survey,
reduce employment not related to new regulatory
compliance during the first year after implementation;
or
``(D) in any industry area in which the Bureau of
Labor Statistics projects in the Occupational
Employment Statistics program that the employment level
will decrease by 1 percent or more, further reduce
employment not related to new regulatory compliance
during the first year after implementation;
``(18) `guidance' means an agency statement of general
applicability and future effect, other than a regulatory
action, that sets forth a policy on a statutory, regulatory or
technical issue or an interpretation of a statutory or
regulatory issue;
``(19) `major guidance' means guidance that the
Administrator of the Office of Information and Regulatory
Affairs finds is likely to lead to--
``(A) an annual cost on the economy of $100,000,000
or more, adjusted annually for inflation;
``(B) a major increase in costs or prices for
consumers, individual industries, Federal, State, local
or tribal government agencies, or geographic regions;
``(C) significant adverse effects on competition,
employment, investment, productivity, innovation, or on
the ability of United States-based enterprises to
compete with foreign-based enterprises in domestic and
export markets; or
``(D) significant impacts on multiple sectors of
the economy;
``(20) the `Information Quality Act' means section 515 of
Public Law 106-554, the Treasury and General Government
Appropriations Act for Fiscal Year 2001, and guidelines issued
by the Administrator of the Office of Information and
Regulatory Affairs or other agencies pursuant to the Act; and
``(21) the `Office of Information and Regulatory Affairs'
means the office established under section 3503 of chapter 35
of title 44 and any successor to that office.''.
SEC. 203. RULE MAKING.
(a) Section 553(a) of title 5, United States Code, is amended by
striking ``(a) This section applies'' and inserting ``(a)
Applicability.--This section applies''.
(b) Section 553 of title 5, United States Code, is amended by
striking subsections (b) through (e) and inserting the following:
``(b) Rule Making Considerations.--In a rule making, an agency
shall make all preliminary and final factual determinations based on
evidence and consider, in addition to other applicable considerations,
the following:
``(1) The legal authority under which a rule may be
proposed, including whether a rule making is required by
statute, and if so, whether by a specific date, or whether the
agency has discretion to commence a rule making.
``(2) Other statutory considerations applicable to whether
the agency can or should propose a rule or undertake other
agency action.
``(3) The specific nature and significance of the problem
the agency may address with a rule (including the degree and
nature of risks the problem poses and the priority of
addressing those risks compared to other matters or activities
within the agency's jurisdiction), whether the problem warrants
new agency action, and the countervailing risks that may be
posed by alternatives for new agency action.
``(4) Whether existing rules have created or contributed to
the problem the agency may address with a rule and whether
those rules could be amended or rescinded to address the
problem in whole or part.
``(5) Any reasonable alternatives for a new rule or other
response identified by the agency or interested persons,
including not only responses that mandate particular conduct or
manners of compliance, but also--
``(A) the alternative of no Federal response;
``(B) amending or rescinding existing rules;
``(C) potential regional, State, local, or tribal
regulatory action or other responses that could be
taken in lieu of agency action; and
``(D) potential responses that--
``(i) specify performance objectives rather
than conduct or manners of compliance;
``(ii) establish economic incentives to
encourage desired behavior;
``(iii) provide information upon which
choices can be made by the public; or
``(iv) incorporate other innovative
alternatives rather than agency actions that
specify conduct or manners of compliance.
``(6) Notwithstanding any other provision of law--
``(A) the potential costs and benefits associated
with potential alternative rules and other responses
considered under section 553(b)(5), including direct,
indirect, and cumulative costs and benefits and
estimated impacts on jobs (including an estimate of the
net gain or loss in domestic jobs), wages, economic
growth, innovation, and economic competitiveness;
``(B) means to increase the cost-effectiveness of
any Federal response; and
``(C) incentives for innovation, consistency,
predictability, lower costs of enforcement and
compliance (to government entities, regulated entities,
and the public), and flexibility.
``(c) Advance Notice of Proposed Rule Making for Major Rules, High-
Impact Rules, Negative-Impact on Jobs and Wages Rules, and Rules
Involving Novel Legal or Policy Issues.--In the case of a rule making
for a major rule, a high-impact rule, a negative-impact on jobs and
wages rule, or a rule that involves a novel legal or policy issue
arising out of statutory mandates, not later than 90 days before a
notice of proposed rule making is published in the Federal Register, an
agency shall publish advance notice of proposed rule making in the
Federal Register. In publishing such advance notice, the agency shall--
``(1) include a written statement identifying, at a
minimum--
``(A) the nature and significance of the problem
the agency may address with a rule, including data and
other evidence and information on which the agency
expects to rely for the proposed rule;
``(B) the legal authority under which a rule may be
proposed, including whether a rule making is required
by statute, and if so, whether by a specific date, or
whether the agency has discretion to commence a rule
making;
``(C) preliminary information available to the
agency concerning the other considerations specified in
subsection (b);
``(D) in the case of a rule that involves a novel
legal or policy issue arising out of statutory
mandates, the nature of and potential reasons to adopt
the novel legal or policy position upon which the
agency may base a proposed rule; and
``(E) an achievable objective for the rule and
metrics by which the agency will measure progress
toward that objective;
``(2) solicit written data, views or argument from
interested persons concerning the information and issues
addressed in the advance notice; and
``(3) provide for a period of not fewer than 60 days for
interested persons to submit such written data, views, or
argument to the agency.
``(d) Notices of Proposed Rule Making; Determinations of Other
Agency Course.--(1) Before it determines to propose a rule, and
following completion of procedures under subsection (c), if applicable,
the agency shall consult with the Administrator of the Office of
Information and Regulatory Affairs. If the agency thereafter determines
to propose a rule, the agency shall publish a notice of proposed rule
making, which shall include--
``(A) a statement of the time, place, and nature of public
rule making proceedings;
``(B) reference to the legal authority under which the rule
is proposed;
``(C) the terms of the proposed rule;
``(D) a description of information known to the agency on
the subject and issues of the proposed rule, including but not
limited to--
``(i) a summary of information known to the agency
concerning the considerations specified in subsection
(b);
``(ii) a summary of additional information the
agency provided to and obtained from interested persons
under subsection (c);
``(iii) a summary of any preliminary risk
assessment or regulatory impact analysis performed by
the agency; and
``(iv) information specifically identifying all
data, studies, models, and other evidence or
information considered or used by the agency in
connection with its determination to propose the rule;
``(E)(i) a reasoned preliminary determination of need for
the rule based on the information described under subparagraph
(D);
``(ii) an additional statement of whether a rule is
required by statute; and
``(iii) an achievable objective for the rule and metrics by
which the agency will measure progress toward that objective;
``(F) a reasoned preliminary determination that the
benefits of the proposed rule meet the relevant statutory
objectives and justify the costs of the proposed rule
(including all costs to be considered under subsection (b)(6)),
based on the information described under subparagraph (D);
``(G) a discussion of--
``(i) the alternatives to the proposed rule, and
other alternative responses, considered by the agency
under subsection (b);
``(ii) the costs and benefits of those alternatives
(including all costs to be considered under subsection
(b)(6));
``(iii) whether those alternatives meet relevant
statutory objectives; and
``(iv) why the agency did not propose any of those
alternatives; and
``(H)(i) a statement of whether existing rules have created
or contributed to the problem the agency seeks to address with
the proposed rule; and
``(ii) if so, whether or not the agency proposes to amend
or rescind any such rules, and why.
All information provided to or considered by the agency, and steps to
obtain information by the agency, in connection with its determination
to propose the rule, including any preliminary risk assessment or
regulatory impact analysis prepared by the agency and all other
information prepared or described by the agency under subparagraph (D)
and, at the discretion of the President or the Administrator of the
Office of Information and Regulatory Affairs, information provided by
that Office in consultations with the agency, shall be placed in the
docket for the proposed rule and made accessible to the public by
electronic means and otherwise for the public's use when the notice of
proposed rule making is published.
``(2)(A) If the agency undertakes procedures under subsection (c)
and determines thereafter not to propose a rule, the agency shall,
following consultation with the Office of Information and Regulatory
Affairs, publish a notice of determination of other agency course. A
notice of determination of other agency course shall include
information required by paragraph (1)(D) to be included in a notice of
proposed rule making and a description of the alternative response the
agency determined to adopt.
``(B) If in its determination of other agency course the agency
makes a determination to amend or rescind an existing rule, the agency
need not undertake additional proceedings under subsection (c) before
it publishes a notice of proposed rule making to amend or rescind the
existing rule.
All information provided to or considered by the agency, and steps to
obtain information by the agency, in connection with its determination
of other agency course, including but not limited to any preliminary
risk assessment or regulatory impact analysis prepared by the agency
and all other information that would be required to be prepared or
described by the agency under paragraph (1)(D) if the agency had
determined to publish a notice of proposed rule making and, at the
discretion of the President or the Administrator of the Office of
Information and Regulatory Affairs, information provided by that Office
in consultations with the agency, shall be placed in the docket for the
determination and made accessible to the public by electronic means and
otherwise for the public's use when the notice of determination is
published.
``(3) After notice of proposed rule making required by this
section, the agency shall provide interested persons an opportunity to
participate in the rule making through submission of written data,
views, or arguments with or without opportunity for oral presentation,
except that--
``(A) if a hearing is required under paragraph (4)(B) or
subsection (e), opportunity for oral presentation shall be
provided pursuant to that requirement; or
``(B) when other than under subsection (e) of this section
rules are required by statute or at the discretion of the
agency to be made on the record after opportunity for an agency
hearing, sections 556 and 557 shall apply, and paragraph (4),
the requirements of subsection (e) to receive comment outside
of the procedures of sections 556 and 557, and the petition
procedures of subsection (e)(6) shall not apply.
The agency shall provide not fewer than 60 days for interested persons
to submit written data, views, or argument (or 120 days in the case of
a proposed major or high-impact rule).
``(4)(A) Within 30 days of publication of notice of proposed rule
making, a member of the public may petition for a hearing in accordance
with section 556 to determine whether any evidence or other information
upon which the agency bases the proposed rule fails to comply with the
Information Quality Act.
``(B)(i) The agency may, upon review of the petition, determine
without further process to exclude from the rule making the evidence or
other information that is the subject of the petition and, if
appropriate, withdraw the proposed rule. The agency shall promptly
publish any such determination.
``(ii) If the agency does not resolve the petition under the
procedures of clause (i), it shall grant any such petition that
presents a prima facie case that evidence or other information upon
which the agency bases the proposed rule fails to comply with the
Information Quality Act, hold the requested hearing not later than 30
days after receipt of the petition, provide a reasonable opportunity
for cross-examination at the hearing, and decide the issues presented
by the petition not later than 60 days after receipt of the petition.
The agency may deny any petition that it determines does not present
such a prima facie case.
``(C) There shall be no judicial review of the agency's disposition
of issues considered and decided or determined under subparagraph
(B)(ii) until judicial review of the agency's final action. There shall
be no judicial review of an agency's determination to withdraw a
proposed rule under subparagraph (B)(i) on the basis of the petition.
``(D) Failure to petition for a hearing under this paragraph shall
not preclude judicial review of any claim based on the Information
Quality Act under chapter 7 of this title.
``(e) Hearings for High-Impact Rules.--Following notice of a
proposed rule making, receipt of comments on the proposed rule, and any
hearing held under subsection (d)(4), and before adoption of any high-
impact rule, the agency shall hold a hearing in accordance with
sections 556 and 557, unless such hearing is waived by all participants
in the rule making other than the agency. The agency shall provide a
reasonable opportunity for cross-examination at such hearing. The
hearing shall be limited to the following issues of fact, except that
participants at the hearing other than the agency may waive
determination of any such issue:
``(1) Whether the agency's asserted factual predicate for
the rule is supported by the evidence.
``(2) Whether there is an alternative to the proposed rule
that would achieve the relevant statutory objectives at a lower
cost (including all costs to be considered under subsection
(b)(6)) than the proposed rule.
``(3) If there is more than one alternative to the proposed
rule that would achieve the relevant statutory objectives at a
lower cost than the proposed rule, which alternative would
achieve the relevant statutory objectives at the lowest cost.
``(4) Whether, if the agency proposes to adopt a rule that
is more costly than the least costly alternative that would
achieve the relevant statutory objectives (including all costs
to be considered under subsection (b)(6)), the additional
benefits of the more costly rule exceed the additional costs of
the more costly rule.
``(5) Whether the evidence and other information upon which
the agency bases the proposed rule meets the requirements of
the Information Quality Act.
``(6) Upon petition by an interested person who has
participated in the rule making, other issues relevant to the
rule making, unless the agency determines that consideration of
the issues at the hearing would not advance consideration of
the rule or would, in light of the nature of the need for
agency action, unreasonably delay completion of the rule
making. An agency shall grant or deny a petition under this
paragraph within 30 days of its receipt of the petition.
No later than 45 days before any hearing held under this subsection or
sections 556 and 557, the agency shall publish in the Federal Register
a notice specifying the proposed rule to be considered at such hearing,
the issues to be considered at the hearing, and the time and place for
such hearing, except that such notice may be issued not later than 15
days before a hearing held under subsection (d)(4)(B).
``(f) Final Rules.--(1) The agency shall adopt a rule only
following consultation with the Administrator of the Office of
Information and Regulatory Affairs to facilitate compliance with
applicable rule making requirements.
``(2) The agency shall adopt a rule only on the basis of the best
reasonably obtainable scientific, technical, economic, and other
evidence and information concerning the need for, consequences of, and
alternatives to the rule.
``(3)(A) Except as provided in subparagraph (B), the agency shall
adopt the least costly rule considered during the rule making
(including all costs to be considered under subsection (b)(6)) that
meets relevant statutory objectives.
``(B) The agency may adopt a rule that is more costly than the
least costly alternative that would achieve the relevant statutory
objectives only if the additional benefits of the more costly rule
justify its additional costs and only if the agency explains its reason
for doing so based on interests of public health, safety or welfare
that are clearly within the scope of the statutory provision
authorizing the rule.
``(4) When it adopts a final rule, the agency shall publish a
notice of final rule making. The notice shall include--
``(A) a concise, general statement of the rule's basis and
purpose;
``(B) the agency's reasoned final determination of need for
a rule to address the problem the agency seeks to address with
the rule, including a statement of whether a rule is required
by statute and a summary of any final risk assessment or
regulatory impact analysis prepared by the agency;
``(C) the agency's reasoned final determination that the
benefits of the rule meet the relevant statutory objectives and
justify the rule's costs (including all costs to be considered
under subsection (b)(6));
``(D) the agency's reasoned final determination not to
adopt any of the alternatives to the proposed rule considered
by the agency during the rule making, including--
``(i) the agency's reasoned final determination
that no alternative considered achieved the relevant
statutory objectives with lower costs (including all
costs to be considered under subsection (b)(6)) than
the rule; or
``(ii) the agency's reasoned determination that its
adoption of a more costly rule complies with subsection
(f)(3)(B);
``(E) the agency's reasoned final determination--
``(i) that existing rules have not created or
contributed to the problem the agency seeks to address
with the rule; or
``(ii) that existing rules have created or
contributed to the problem the agency seeks to address
with the rule, and, if so--
``(I) why amendment or rescission of such
existing rules is not alone sufficient to
respond to the problem; and
``(II) whether and how the agency intends
to amend or rescind the existing rule separate
from adoption of the rule;
``(F) the agency's reasoned final determination that the
evidence and other information upon which the agency bases the
rule complies with the Information Quality Act;
``(G) the agency's reasoned final determination that the
rule meets the objectives that the agency identified in
subsection (d)(1)(E)(iii) or that other objectives are more
appropriate in light of the full administrative record and the
rule meets those objectives;
``(H) the agency's reasoned final determination that it did
not deviate from the metrics the agency included in subsection
(d)(1)(E)(iii) or that other metrics are more appropriate in
light of the full administrative record and the agency did not
deviate from those metrics;
``(I)(i) for any major rule, high-impact rule, or negative-
impact on jobs and wages rule, the agency's plan for review of
the rule no less than every ten years to determine whether,
based upon evidence, there remains a need for the rule, whether
the rule is in fact achieving statutory objectives, whether the
rule's benefits continue to justify its costs, and whether the
rule can be modified or rescinded to reduce costs while
continuing to achieve statutory objectives; and
``(ii) review of a rule under a plan required by clause (i)
of this subparagraph shall take into account the factors and
criteria set forth in subsections (b) through (f) of section
553 of this title; and
``(J) for any negative-impact on jobs and wages rule, a
statement that the head of the agency that made the rule
approved the rule knowing about the findings and determination
of the agency or the Administrator of the Office of Information
and Regulatory Affairs that qualified the rule as a negative
impact on jobs and wages rule.
All information considered by the agency in connection with its
adoption of the rule, and, at the discretion of the President or the
Administrator of the Office of Information and Regulatory Affairs,
information provided by that Office in consultations with the agency,
shall be placed in the docket for the rule and made accessible to the
public for the public's use no later than when the rule is adopted.
``(g) Exceptions From Notice and Hearing Requirements.--(1) Except
when notice or hearing is required by statute, the following do not
apply to interpretive rules, general statements of policy, or rules of
agency organization, procedure, or practice:
``(A) Subsections (c) through (e).
``(B) Paragraphs (1) through (3) of subsection (f).
``(C) Subparagraphs (B) through (H) of subsection (f)(4).
``(2)(A) When the agency for good cause, based upon evidence, finds
(and incorporates the finding and a brief statement of reasons therefor
in the rules issued) that compliance with subsection (c), (d), or (e)
or requirements to render final determinations under subsection (f) of
this section before the issuance of an interim rule is impracticable or
contrary to the public interest, including interests of national
security, such subsections or requirements to render final
determinations shall not apply to the agency's adoption of an interim
rule.
``(B) If, following compliance with subparagraph (A) of this
paragraph, the agency adopts an interim rule, it shall commence
proceedings that comply fully with subsections (d) through (f) of this
section immediately upon publication of the interim rule, shall treat
the publication of the interim rule as publication of a notice of
proposed rule making and shall not be required to issue supplemental
notice other than to complete full compliance with subsection (d). No
less than 270 days from publication of the interim rule (or 18 months
in the case of a major rule or high-impact rule), the agency shall
complete rule making under subsections (d) through (f) of this
subsection and take final action to adopt a final rule or rescind the
interim rule. If the agency fails to take timely final action, the
interim rule will cease to have the effect of law.
``(C) Other than in cases involving interests of national security,
upon the agency's publication of an interim rule without compliance
with subsection (c), (d), or (e) or requirements to render final
determinations under subsection (f) of this section, an interested
party may seek immediate judicial review under chapter 7 of this title
of the agency's determination to adopt such interim rule. The record on
such review shall include all documents and information considered by
the agency and any additional information presented by a party that the
court determines necessary to consider to assure justice.
``(3) When the agency for good cause finds (and incorporates the
finding and a brief statement of reasons therefor in the rules issued)
that notice and public procedure thereon are unnecessary, including
because agency rule making is undertaken only to correct a de minimis
technical or clerical error in a previously issued rule or for other
noncontroversial purposes, the agency may publish a rule without
compliance with subsection (c), (d), (e), or (f)(1)-(3) and (f)(4)(B)-
(F). If the agency receives significant adverse comment within 60 days
after publication of the rule, it shall treat the notice of the rule as
a notice of proposed rule making and complete rule making in compliance
with subsections (d) and (f).
``(h) Additional Requirements for Hearings.--When a hearing is
required under subsection (e) or is otherwise required by statute or at
the agency's discretion before adoption of a rule, the agency shall
comply with the requirements of sections 556 and 557 in addition to the
requirements of subsection (f) in adopting the rule and in providing
notice of the rule's adoption.
``(i) Date of Publication of Rule.--The required publication or
service of a substantive final or interim rule shall be made not less
than 30 days before the effective date of the rule, except--
``(1) a substantive rule which grants or recognizes an
exemption or relieves a restriction;
``(2) interpretive rules and statements of policy; or
``(3) as otherwise provided by the agency for good cause
found and published with the rule.
``(j) Right To Petition.--Each agency shall give an interested
person the right to petition for the issuance, amendment, or repeal of
a rule.
``(k) Rule Making Guidelines.--(1)(A) The Administrator of the
Office of Information and Regulatory Affairs shall establish guidelines
for the assessment, including quantitative and qualitative assessment,
of the costs and benefits of proposed and final rules and other
economic issues or issues related to risk that are relevant to rule
making under this title. The rigor of cost-benefit analysis required by
such guidelines shall be commensurate, in the Administrator's
determination, with the economic impact of the rule.
``(B) To ensure that agencies use the best available techniques to
quantify and evaluate anticipated present and future benefits, costs,
other economic issues, and risks as accurately as possible, the
Administrator of the Office of Information and Regulatory Affairs shall
regularly update guidelines established under paragraph (1)(A) of this
subsection.
``(2) The Administrator of the Office of Information and Regulatory
Affairs shall also issue guidelines to promote coordination,
simplification and harmonization of agency rules during the rule making
process and otherwise. Such guidelines shall assure that each agency
avoids regulations that are inconsistent or incompatible with, or
duplicative of, its other regulations and those of other Federal
agencies and drafts its regulations to be simple and easy to
understand, with the goal of minimizing the potential for uncertainty
and litigation arising from such uncertainty.
``(3) To ensure consistency in Federal rule making, the
Administrator of the Office of Information and Regulatory Affairs
shall--
``(A) issue guidelines and otherwise take action to ensure
that rule makings conducted in whole or in part under
procedures specified in provisions of law other than those of
subchapter II of this title conform to the fullest extent
allowed by law with the procedures set forth in section 553 of
this title; and
``(B) issue guidelines for the conduct of hearings under
subsections 553(d)(4) and 553(e) of this section, including to
assure a reasonable opportunity for cross-examination. Each
agency shall adopt regulations for the conduct of hearings
consistent with the guidelines issued under this subparagraph.
``(4) The Administrator of the Office of Information and Regulatory
Affairs shall issue guidelines pursuant to the Information Quality Act
to apply in rule making proceedings under sections 553, 556, and 557 of
this title. In all cases, such guidelines, and the Administrator's
specific determinations regarding agency compliance with such
guidelines, shall be entitled to judicial deference.
``(l) Inclusion in the Record of Certain Documents and
Information.--The agency shall include in the record for a rule making,
and shall make available by electronic means and otherwise, all
documents and information prepared or considered by the agency during
the proceeding, including, at the discretion of the President or the
Administrator of the Office of Information and Regulatory Affairs,
documents and information communicated by that Office during
consultation with the Agency.
``(m) Monetary Policy Exemption.--Nothing in subsection (b)(6),
subparagraphs (F) and (G) of subsection (d)(1), subsection (e),
subsection (f)(3), and subparagraphs (C) and (D) of subsection (f)(5)
shall apply to rule makings that concern monetary policy proposed or
implemented by the Board of Governors of the Federal Reserve System or
the Federal Open Market Committee.''.
SEC. 204. AGENCY GUIDANCE; PROCEDURES TO ISSUE MAJOR GUIDANCE;
PRESIDENTIAL AUTHORITY TO ISSUE GUIDELINES FOR ISSUANCE
OF GUIDANCE.
(a) In General.--Chapter 5 of title 5, United States Code, is
amended by inserting after section 553 the following new section:
``Sec. 553a. Agency guidance; procedures to issue major guidance;
authority to issue guidelines for issuance of guidance
``(a) Before issuing any major guidance, or guidance that involves
a novel legal or policy issue arising out of statutory mandates, an
agency shall--
``(1) make and document a reasoned determination that--
``(A) assures that such guidance is understandable
and complies with relevant statutory objectives and
regulatory provisions (including any statutory
deadlines for agency action);
``(B) summarizes the evidence and data on which the
agency will base the guidance;
``(C) identifies the costs and benefits (including
all costs to be considered during a rule making under
section 553(b) of this title) of conduct conforming to
such guidance and assures that such benefits justify
such costs; and
``(D) describes alternatives to such guidance and
their costs and benefits (including all costs to be
considered during a rule making under section 553(b) of
this title) and explains why the agency rejected those
alternatives; and
``(2) confer with the Administrator of the Office of
Information and Regulatory Affairs on the issuance of such
guidance to assure that the guidance is reasonable,
understandable, consistent with relevant statutory and
regulatory provisions and requirements or practices of other
agencies, does not produce costs that are unjustified by the
guidance's benefits, and is otherwise appropriate.
Upon issuing major guidance, or guidance that involves a novel legal or
policy issue arising out of statutory mandates, the agency shall
publish the documentation required by subparagraph (1) by electronic
means and otherwise.
``(b) Agency guidance--
``(1) is not legally binding and may not be relied upon by
an agency as legal grounds for agency action;
``(2) shall state in a plain, prominent and permanent
manner that it is not legally binding; and
``(3) shall, at the time it is issued or upon request, be
made available by the issuing agency to interested persons and
the public by electronic means and otherwise.
Agencies shall avoid the issuance of guidance that is inconsistent or
incompatible with, or duplicative of, the agency's governing statutes
or regulations, with the goal of minimizing the potential for
uncertainty and litigation arising from such uncertainty.
``(c) The Administrator of the Office of Information and Regulatory
Affairs shall have authority to issue guidelines for use by the
agencies in the issuance of major guidance and other guidance. Such
guidelines shall assure that each agency avoids issuing guidance
documents that are inconsistent or incompatible with, or duplicative
of, the law, its other regulations, or the regulations of other Federal
agencies and drafts its guidance documents to be simple and easy to
understand, with the goal of minimizing the potential for uncertainty
and litigation arising from such uncertainty.''.
(b) Clerical Amendment.--The table of sections for chapter 5 of
title 5, United States Code, is amended by inserting after the item
relating to section 553 the following new item:
``553a. Agency guidance; procedures to issue major guidance; authority
to issue guidelines for issuance of
guidance.''.
SEC. 205. HEARINGS; PRESIDING EMPLOYEES; POWERS AND DUTIES; BURDEN OF
PROOF; EVIDENCE; RECORD AS BASIS OF DECISION.
Section 556 of title 5, United States Code, is amended by striking
subsection (e) and inserting the following:
``(e)(1) The transcript of testimony and exhibits, together with
all papers and requests filed in the proceeding, constitutes the
exclusive record for decision in accordance with section 557 and shall
be made available to the parties and the public by electronic means
and, upon payment of lawfully prescribed costs, otherwise. When an
agency decision rests on official notice of a material fact not
appearing in the evidence in the record, a party is entitled, on timely
request, to an opportunity to show the contrary.
``(2) Notwithstanding paragraph (1) of this subsection, in a
proceeding held under this section pursuant to section 553(d)(4) or
553(e), the record for decision shall also include any information that
is part of the record of proceedings under section 553.
``(f) When an agency conducts rule making under this section and
section 557 directly after concluding proceedings upon an advance
notice of proposed rule making under section 553(c), the matters to be
considered and determinations to be made shall include, among other
relevant matters and determinations, the matters and determinations
described in subsections (b) and (f) of section 553.
``(g) Upon receipt of a petition for a hearing under this section,
the agency shall grant the petition in the case of any major rule,
unless the agency reasonably determines that a hearing would not
advance consideration of the rule or would, in light of the need for
agency action, unreasonably delay completion of the rule making. The
agency shall publish its decision to grant or deny the petition when it
renders the decision, including an explanation of the grounds for
decision. The information contained in the petition shall in all cases
be included in the administrative record. This subsection shall not
apply to rule makings that concern monetary policy proposed or
implemented by the Board of Governors of the Federal Reserve System or
the Federal Open Market Committee.''.
SEC. 206. ACTIONS REVIEWABLE.
Section 704 of title 5, United States Code, is amended--
(1) by striking ``Agency action made'' and inserting ``(a)
Agency action made''; and
(2) by adding at the end the following: ``Denial by an
agency of a correction request or, where administrative appeal
is provided for, denial of an appeal, under an administrative
mechanism described in subsection (b)(2)(B) of the Information
Quality Act, or the failure of an agency within 90 days to
grant or deny such request or appeal, shall be final action for
purposes of this section.
``(b) Other than in cases involving interests of national security,
notwithstanding subsection (a) of this section, upon the agency's
publication of an interim rule without compliance with section 553(c),
(d), or (e) or requirements to render final determinations under
subsection (f) of section 553, an interested party may seek immediate
judicial review under this chapter of the agency's determination to
adopt such rule on an interim basis. Review shall be limited to whether
the agency abused its discretion to adopt the interim rule without
compliance with section 553(c), (d), or (e) or without rendering final
determinations under subsection (f) of section 553.''.
SEC. 207. SCOPE OF REVIEW.
Section 706 of title 5, United States Code is amended--
(1) by striking ``To the extent necessary'' and inserting
``(a) To the extent necessary'';
(2) in paragraph (2)(A) of subsection (a) (as designated by
paragraph (1) of this section), by inserting after ``in
accordance with law'' the following: ``(including the
Information Quality Act)''; and
(3) by adding at the end the following:
``(b) The court shall not defer to the agency's--
``(1) interpretation of an agency rule if the agency did
not comply with the procedures of section 553 or sections 556-
557 of chapter 5 of this title to issue the interpretation;
``(2) determination of the costs and benefits or other
economic or risk assessment of the action, if the agency failed
to conform to guidelines on such determinations and assessments
established by the Administrator of the Office of Information
and Regulatory Affairs under section 553(k);
``(3) determinations made in the adoption of an interim
rule; or
``(4) guidance.
``(c) The court shall review agency denials of petitions under
section 553(e)(6) or any other petition for a hearing under sections
556 and 557 for abuse of agency discretion.''.
SEC. 208. ADDED DEFINITION.
Section 701(b) of title 5, United States Code, is amended--
(1) in paragraph (1), by striking ``and'' at the end;
(2) in paragraph (2), by striking the period at the end,
and inserting ``; and''; and
(3) by adding at the end the following:
``(3) `substantial evidence' means such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion in light of the record considered as a whole, taking
into account whatever in the record fairly detracts from the
weight of the evidence relied upon by the agency to support its
decision.''.
SEC. 209. EFFECTIVE DATE.
The amendments made by this title to--
(1) sections 553, 556, and 704 of title 5, United States
Code;
(2) subsection (b) of section 701 of such title;
(3) paragraphs (2) and (3) of section 706(b) of such title;
and
(4) subsection (c) of section 706 of such title,
shall not apply to any rule makings pending or completed on the date of
enactment of this title.
TITLE III--REGULATORY FLEXIBILITY IMPROVEMENTS ACT
SEC. 301. SHORT TITLE.
This title may be cited as the ``Regulatory Flexibility
Improvements Act of 2014''.
SEC. 302. CLARIFICATION AND EXPANSION OF RULES COVERED BY THE
REGULATORY FLEXIBILITY ACT.
(a) In General.--Paragraph (2) of section 601 of title 5, United
States Code, is amended to read as follows:
``(2) Rule.--The term `rule' has the meaning given such
term in section 551(4) of this title, except that such term
does not include a rule pertaining to the protection of the
rights of and benefits for veterans or a rule of particular
(and not general) applicability relating to rates, wages,
corporate or financial structures or reorganizations thereof,
prices, facilities, appliances, services, or allowances
therefor or to valuations, costs or accounting, or practices
relating to such rates, wages, structures, prices, appliances,
services, or allowances.''.
(b) Inclusion of Rules With Indirect Effects.--Section 601 of title
5, United States Code, is amended by adding at the end the following
new paragraph:
``(9) Economic impact.--The term `economic impact' means,
with respect to a proposed or final rule--
``(A) any direct economic effect on small entities
of such rule; and
``(B) any indirect economic effect (including
compliance costs and effects on revenue) on small
entities which is reasonably foreseeable and results
from such rule (without regard to whether small
entities will be directly regulated by the rule).''.
(c) Inclusion of Rules With Beneficial Effects.--
(1) Initial regulatory flexibility analysis.--Subsection
(c) of section 603 of title 5, United States Code, is amended
by striking the first sentence and inserting ``Each initial
regulatory flexibility analysis shall also contain a detailed
description of alternatives to the proposed rule which minimize
any adverse significant economic impact or maximize any
beneficial significant economic impact on small entities.''.
(2) Final regulatory flexibility analysis.--The first
paragraph (6) of section 604(a) of title 5, United States Code,
is amended by striking ``minimize the significant economic
impact'' and inserting ``minimize the adverse significant
economic impact or maximize the beneficial significant economic
impact''.
(d) Inclusion of Rules Affecting Tribal Organizations.--Paragraph
(5) of section 601 of title 5, United States Code, is amended by
inserting ``and tribal organizations (as defined in section 4(l) of the
Indian Self-Determination and Education Assistance Act (25 U.S.C.
450b(l))),'' after ``special districts,''.
(e) Inclusion of Land Management Plans and Formal Rulemaking.--
(1) Initial regulatory flexibility analysis.--Subsection
(a) of section 603 of title 5, United States Code, is amended
in the first sentence--
(A) by striking ``or'' after ``proposed rule,'';
and
(B) by inserting ``or publishes a revision or
amendment to a land management plan,'' after ``United
States,''.
(2) Final regulatory flexibility analysis.--Subsection (a)
of section 604 of title 5, United States Code, is amended in
the first sentence--
(A) by striking ``or'' after ``proposed
rulemaking,''; and
(B) by inserting ``or adopts a revision or
amendment to a land management plan,'' after ``section
603(a),''.
(3) Land management plan defined.--Section 601 of title 5,
United States Code, is amended by adding at the end the
following new paragraph:
``(10) Land management plan.--
``(A) In general.--The term `land management plan'
means--
``(i) any plan developed by the Secretary
of Agriculture under section 6 of the Forest
and Rangeland Renewable Resources Planning Act
of 1974 (16 U.S.C. 1604); and
``(ii) any plan developed by the Secretary
of the Interior under section 202 of the
Federal Land Policy and Management Act of 1976
(43 U.S.C. 1712).
``(B) Revision.--The term `revision' means any
change to a land management plan which--
``(i) in the case of a plan described in
subparagraph (A)(i), is made under section
6(f)(5) of the Forest and Rangeland Renewable
Resources Planning Act of 1974 (16 U.S.C.
1604(f)(5)); or
``(ii) in the case of a plan described in
subparagraph (A)(ii), is made under section
1610.5-6 of title 43, Code of Federal
Regulations (or any successor regulation).
``(C) Amendment.--The term `amendment' means any
change to a land management plan which--
``(i) in the case of a plan described in
subparagraph (A)(i), is made under section
6(f)(4) of the Forest and Rangeland Renewable
Resources Planning Act of 1974 (16 U.S.C.
1604(f)(4)) and with respect to which the
Secretary of Agriculture prepares a statement
described in section 102(2)(C) of the National
Environmental Policy Act of 1969 (42 U.S.C.
4332(2)(C)); or
``(ii) in the case of a plan described in
subparagraph (A)(ii), is made under section
1610.5-5 of title 43, Code of Federal
Regulations (or any successor regulation) and
with respect to which the Secretary of the
Interior prepares a statement described in
section 102(2)(C) of the National Environmental
Policy Act of 1969 (42 U.S.C. 4332(2)(C)).''.
(f) Inclusion of Certain Interpretive Rules Involving the Internal
Revenue Laws.--
(1) In general.--Subsection (a) of section 603 of title 5,
United States Code, is amended by striking the period at the
end and inserting ``or a recordkeeping requirement, and without
regard to whether such requirement is imposed by statute or
regulation.''.
(2) Collection of information.--Paragraph (7) of section
601 of title 5, United States Code, is amended to read as
follows:
``(7) Collection of information.--The term `collection of
information' has the meaning given such term in section 3502(3)
of title 44.''.
(3) Recordkeeping requirement.--Paragraph (8) of section
601 of title 5, United States Code, is amended to read as
follows:
``(8) Recordkeeping requirement.--The term `recordkeeping
requirement' has the meaning given such term in section
3502(13) of title 44.''.
(g) Definition of Small Organization.--Paragraph (4) of section 601
of title 5, United States Code, is amended to read as follows:
``(4) Small organization.--
``(A) In general.--The term `small organization'
means any not-for-profit enterprise which, as of the
issuance of the notice of proposed rulemaking--
``(i) in the case of an enterprise which is
described by a classification code of the North
American Industrial Classification System, does
not exceed the size standard established by the
Administrator of the Small Business
Administration pursuant to section 3 of the
Small Business Act (15 U.S.C. 632) for small
business concerns described by such
classification code; and
``(ii) in the case of any other enterprise,
has a net worth that does not exceed $7,000,000
and has not more than 500 employees.
``(B) Local labor organizations.--In the case of
any local labor organization, subparagraph (A) shall be
applied without regard to any national or international
organization of which such local labor organization is
a part.
``(C) Agency definitions.--Subparagraphs (A) and
(B) shall not apply to the extent that an agency, after
consultation with the Office of Advocacy of the Small
Business Administration and after opportunity for
public comment, establishes one or more definitions for
such term which are appropriate to the activities of
the agency and publishes such definitions in the
Federal Register.''.
SEC. 303. EXPANSION OF REPORT OF REGULATORY
AGENDA.
Section 602 of title 5, United States Code, is amended--
(1) in subsection (a)--
(A) in paragraph (2), by striking ``, and'' at the
end and inserting ``;'';
(B) by redesignating paragraph (3) as paragraph
(4); and
(C) by inserting after paragraph (2) the following:
``(3) a brief description of the sector of the North
American Industrial Classification System that is primarily
affected by any rule which the agency expects to propose or
promulgate which is likely to have a significant economic
impact on a substantial number of small entities; and''; and
(2) in subsection (c), to read as follows:
``(c) Each agency shall prominently display a plain language
summary of the information contained in the regulatory flexibility
agenda published under subsection (a) on its website within 3 days of
its publication in the Federal Register. The Office of Advocacy of the
Small Business Administration shall compile and prominently display a
plain language summary of the regulatory agendas referenced in
subsection (a) for each agency on its website within 3 days of their
publication in the Federal Register.''.
SEC. 304. REQUIREMENTS PROVIDING FOR MORE DETAILED ANALYSES.
(a) Initial Regulatory Flexibility Analysis.--Subsection (b) of
section 603 of title 5, United States Code, is amended to read as
follows:
``(b) Each initial regulatory flexibility analysis required under
this section shall contain a detailed statement--
``(1) describing the reasons why action by the agency is
being considered;
``(2) describing the objectives of, and legal basis for,
the proposed rule;
``(3) estimating the number and type of small entities to
which the proposed rule will apply;
``(4) describing the projected reporting, recordkeeping,
and other compliance requirements of the proposed rule,
including an estimate of the classes of small entities which
will be subject to the requirement and the type of professional
skills necessary for preparation of the report and record;
``(5) describing all relevant Federal rules which may
duplicate, overlap, or conflict with the proposed rule, or the
reasons why such a description could not be provided;
``(6) estimating the additional cumulative economic impact
of the proposed rule on small entities beyond that already
imposed on the class of small entities by the agency or why
such an estimate is not available;
``(7) describing any disproportionate economic impact on
small entities or a specific class of small entities; and
``(8) describing any impairment of the ability of small
entities to have access to credit.''.
(b) Final Regulatory Flexibility Analysis.--
(1) In general.--Section 604(a) of title 5, United States
Code, is amended--
(A) in paragraph (4), by striking ``an
explanation'' and inserting ``a detailed explanation'';
(B) in each of paragraphs (4), (5), and the first
paragraph (6), by inserting ``detailed'' before
``description''; and
(C) by adding at the end the following:
``(7) describing any disproportionate economic impact on
small entities or a specific class of small entities.''.
(2) Inclusion of response to comments on certification of
proposed rule.--Paragraph (2) of section 604(a) of title 5,
United States Code, is amended by inserting ``(or certification
of the proposed rule under section 605(b))'' after ``initial
regulatory flexibility analysis''.
(3) Publication of analysis on website.--Subsection (b) of
section 604 of title 5, United States Code, is amended to read
as follows:
``(b) The agency shall make copies of the final regulatory
flexibility analysis available to the public, including placement of
the entire analysis on the agency's website, and shall publish in the
Federal Register the final regulatory flexibility analysis, or a
summary thereof which includes the telephone number, mailing address,
and link to the website where the complete analysis may be obtained.''.
(c) Cross-References to Other Analyses.--Subsection (a) of section
605 of title 5, United States Code, is amended to read as follows:
``(a) A Federal agency shall be treated as satisfying any
requirement regarding the content of an agenda or regulatory
flexibility analysis under section 602, 603, or 604, if such agency
provides in such agenda or analysis a cross-reference to the specific
portion of another agenda or analysis which is required by any other
law and which satisfies such requirement.''.
(d) Certifications.--Subsection (b) of section 605 of title 5,
United States Code, is amended--
(1) by inserting ``detailed'' before ``statement'' the
first place it appears; and
(2) by inserting ``and legal'' after ``factual''.
(e) Quantification Requirements.--Section 607 of title 5, United
States Code, is amended to read as follows:
``Sec. 607. Quantification requirements
``In complying with sections 603 and 604, an agency shall provide--
``(1) a quantifiable or numerical description of the
effects of the proposed or final rule and alternatives to the
proposed or final rule; or
``(2) a more general descriptive statement and a detailed
statement explaining why quantification is not practicable or
reliable.''.
SEC. 305. REPEAL OF WAIVER AND DELAY AUTHORITY; ADDITIONAL POWERS OF
THE CHIEF COUNSEL FOR ADVOCACY.
(a) In General.--Section 608 is amended to read as follows:
``Sec. 608. Additional powers of Chief Counsel for Advocacy
``(a)(1) Not later than 270 days after the date of the enactment of
this section, the Chief Counsel for Advocacy of the Small Business
Administration shall, after opportunity for notice and comment under
section 553, issue rules governing agency compliance with this chapter.
The Chief Counsel may modify or amend such rules after notice and
comment under section 553. This chapter (other than this subsection)
shall not apply with respect to the issuance, modification, and
amendment of rules under this paragraph.
``(2) An agency shall not issue rules which supplement the rules
issued under subsection (a) unless such agency has first consulted with
the Chief Counsel for Advocacy to ensure that such supplemental rules
comply with this chapter and the rules issued under paragraph (1).
``(b) Notwithstanding any other law, the Chief Counsel for Advocacy
of the Small Business Administration may intervene in any agency
adjudication (unless such agency is authorized to impose a fine or
penalty under such adjudication), and may inform the agency of the
impact that any decision on the record may have on small entities. The
Chief Counsel shall not initiate an appeal with respect to any
adjudication in which the Chief Counsel intervenes under this
subsection.
``(c) The Chief Counsel for Advocacy may file comments in response
to any agency notice requesting comment, regardless of whether the
agency is required to file a general notice of proposed rulemaking
under section 553.''.
(b) Conforming Amendments.--
(1) Section 611(a)(1) of such title is amended by striking
``608(b),''.
(2) Section 611(a)(2) of such title is amended by striking
``608(b),''.
(3) Section 611(a)(3) of such title is amended--
(A) by striking subparagraph (B); and
(B) by striking ``(3)(A) A small entity'' and
inserting the following:
``(3) A small entity''.
SEC. 306. PROCEDURES FOR GATHERING COMMENTS.
Section 609 of title 5, United States Code, is amended by striking
subsection (b) and all that follows through the end of the section and
inserting the following:
``(b)(1) Prior to publication of any proposed rule described in
subsection (e), an agency making such rule shall notify the Chief
Counsel for Advocacy of the Small Business Administration and provide
the Chief Counsel with--
``(A) all materials prepared or utilized by the agency in
making the proposed rule, including the draft of the proposed
rule; and
``(B) information on the potential adverse and beneficial
economic impacts of the proposed rule on small entities and the
type of small entities that might be affected.
``(2) An agency shall not be required under paragraph (1) to
provide the exact language of any draft if the rule--
``(A) relates to the internal revenue laws of the United
States; or
``(B) is proposed by an independent regulatory agency (as
defined in section 3502(5) of title 44).
``(c) Not later than 15 days after the receipt of such materials
and information under subsection (b), the Chief Counsel for Advocacy of
the Small Business Administration shall--
``(1) identify small entities or representatives of small
entities or a combination of both for the purpose of obtaining
advice, input, and recommendations from those persons about the
potential economic impacts of the proposed rule and the
compliance of the agency with section 603; and
``(2) convene a review panel consisting of an employee from
the Office of Advocacy of the Small Business Administration, an
employee from the agency making the rule, and in the case of an
agency other than an independent regulatory agency (as defined
in section 3502(5) of title 44), an employee from the Office of
Information and Regulatory Affairs of the Office of Management
and Budget to review the materials and information provided to
the Chief Counsel under subsection (b).
``(d)(1) Not later than 60 days after the review panel described in
subsection (c)(2) is convened, the Chief Counsel for Advocacy of the
Small Business Administration shall, after consultation with the
members of such panel, submit a report to the agency and, in the case
of an agency other than an independent regulatory agency (as defined in
section 3502(5) of title 44), the Office of Information and Regulatory
Affairs of the Office of Management and Budget.
``(2) Such report shall include an assessment of the economic
impact of the proposed rule on small entities, including an assessment
of the proposed rule's impact on the cost that small entities pay for
energy, an assessment of the proposed rule's impact on start-up costs
for small entities, and a discussion of any alternatives that will
minimize adverse significant economic impacts or maximize beneficial
significant economic impacts on small entities.
``(3) Such report shall become part of the rulemaking record. In
the publication of the proposed rule, the agency shall explain what
actions, if any, the agency took in response to such report.
``(e) A proposed rule is described by this subsection if the
Administrator of the Office of Information and Regulatory Affairs of
the Office of Management and Budget, the head of the agency (or the
delegatee of the head of the agency), or an independent regulatory
agency determines that the proposed rule is likely to result in--
``(1) an annual effect on the economy of $100,000,000 or
more;
``(2) a major increase in costs or prices for consumers,
individual industries, Federal, State, or local governments,
tribal organizations, or geographic regions;
``(3) significant adverse effects on competition,
employment, investment, productivity, innovation, or on the
ability of United States-based enterprises to compete with
foreign-based enterprises in domestic and export markets; or
``(4) a significant economic impact on a substantial number
of small entities.
``(f) Upon application by the agency, the Chief Counsel for
Advocacy of the Small Business Administration may waive the
requirements of subsections (b) through (e) if the Chief Counsel
determines that compliance with the requirements of such subsections
are impracticable, unnecessary, or contrary to the public interest.
``(g) A small entity or a representative of a small entity may
submit a request that the agency provide a copy of the report prepared
under subsection (d) and all materials and information provided to the
Chief Counsel for Advocacy of the Small Business Administration under
subsection (b). The agency receiving such request shall provide the
report, materials and information to the requesting small entity or
representative of a small entity not later than 10 business days after
receiving such request, except that the agency shall not disclose any
information that is prohibited from disclosure to the public pursuant
to section 552(b) of this title.''.
SEC. 307. PERIODIC REVIEW OF RULES.
Section 610 of title 5, United States Code, is amended to read as
follows:
``Sec. 610. Periodic review of rules
``(a) Not later than 180 days after the enactment of this section,
each agency shall publish in the Federal Register and place on its
website a plan for the periodic review of rules issued by the agency
which the head of the agency determines have a significant economic
impact on a substantial number of small entities. Such determination
shall be made without regard to whether the agency performed an
analysis under section 604. The purpose of the review shall be to
determine whether such rules should be continued without change, or
should be amended or rescinded, consistent with the stated objectives
of applicable statutes, to minimize any adverse significant economic
impacts or maximize any beneficial significant economic impacts on a
substantial number of small entities. Such plan may be amended by the
agency at any time by publishing the revision in the Federal Register
and subsequently placing the amended plan on the agency's website.
``(b) The plan shall provide for the review of all such agency
rules existing on the date of the enactment of this section within 10
years of the date of publication of the plan in the Federal Register
and for review of rules adopted after the date of enactment of this
section within 10 years after the publication of the final rule in the
Federal Register. If the head of the agency determines that completion
of the review of existing rules is not feasible by the established
date, the head of the agency shall so certify in a statement published
in the Federal Register and may extend the review for not longer than 2
years after publication of notice of extension in the Federal Register.
Such certification and notice shall be sent to the Chief Counsel for
Advocacy of the Small Business Administration and the Congress.
``(c) The plan shall include a section that details how an agency
will conduct outreach to and meaningfully include small businesses
(including small business concerns owned and controlled by women, small
business concerns owned and controlled by veterans, and small business
concerns owned and controlled by socially and economically
disadvantaged individuals (as such terms are defined in the Small
Business Act)) for the purposes of carrying out this section. The
agency shall include in this section a plan for how the agency will
contact small businesses and gather their input on existing agency
rules.
``(d) Each agency shall annually submit a report regarding the
results of its review pursuant to such plan to the Congress, the Chief
Counsel for Advocacy of the Small Business Administration, and, in the
case of agencies other than independent regulatory agencies (as defined
in section 3502(5) of title 44) to the Administrator of the Office of
Information and Regulatory Affairs of the Office of Management and
Budget. Such report shall include the identification of any rule with
respect to which the head of the agency made a determination described
in paragraph (5) or (6) of subsection (e) and a detailed explanation of
the reasons for such determination.
``(e) In reviewing a rule pursuant to subsections (a) through (d),
the agency shall amend or rescind the rule to minimize any adverse
significant economic impact on a substantial number of small entities
or disproportionate economic impact on a specific class of small
entities, or maximize any beneficial significant economic impact of the
rule on a substantial number of small entities to the greatest extent
possible, consistent with the stated objectives of applicable statutes.
In amending or rescinding the rule, the agency shall consider the
following factors:
``(1) The continued need for the rule.
``(2) The nature of complaints received by the agency from
small entities concerning the rule.
``(3) Comments by the Regulatory Enforcement Ombudsman and
the Chief Counsel for Advocacy of the Small Business
Administration.
``(4) The complexity of the rule.
``(5) The extent to which the rule overlaps, duplicates, or
conflicts with other Federal rules and, unless the head of the
agency determines it to be infeasible, State, territorial, and
local rules.
``(6) The contribution of the rule to the cumulative
economic impact of all Federal rules on the class of small
entities affected by the rule, unless the head of the agency
determines that such calculations cannot be made and reports
that determination in the annual report required under
subsection (d).
``(7) The length of time since the rule has been evaluated
or the degree to which technology, economic conditions, or
other factors have changed in the area affected by the rule.
``(f) Each year, each agency shall publish in the Federal Register
and on its website a list of rules to be reviewed pursuant to such
plan. The agency shall include in the publication a solicitation of
public comments on any further inclusions or exclusions of rules from
the list, and shall respond to such comments. Such publication shall
include a brief description of the rule, the reason why the agency
determined that it has a significant economic impact on a substantial
number of small entities (without regard to whether it had prepared a
final regulatory flexibility analysis for the rule), and request
comments from the public, the Chief Counsel for Advocacy of the Small
Business Administration, and the Regulatory Enforcement Ombudsman
concerning the enforcement of the rule.''.
SEC. 308. JUDICIAL REVIEW OF COMPLIANCE WITH THE REQUIREMENTS OF THE
REGULATORY FLEXIBILITY ACT AVAILABLE AFTER PUBLICATION OF
THE FINAL RULE.
(a) In General.--Paragraph (1) of section 611(a) of title 5, United
States Code, is amended by striking ``final agency action'' and
inserting ``such rule''.
(b) Jurisdiction.--Paragraph (2) of such section is amended by
inserting ``(or which would have such jurisdiction if publication of
the final rule constituted final agency action)'' after ``provision of
law,''.
(c) Time for Bringing Action.--Paragraph (3) of such section is
amended--
(1) by striking ``final agency action'' and inserting
``publication of the final rule''; and
(2) by inserting ``, in the case of a rule for which the
date of final agency action is the same date as the publication
of the final rule,'' after ``except that''.
(d) Intervention by Chief Counsel for Advocacy.--Subsection (b) of
section 612 of title 5, United States Code, is amended by inserting
before the first period ``or agency compliance with section 601, 603,
604, 605(b), 609, or 610''.
SEC. 309. JURISDICTION OF COURT OF APPEALS OVER RULES IMPLEMENTING THE
REGULATORY FLEXIBILITY ACT.
(a) In General.--Section 2342 of title 28, United States Code, is
amended--
(1) in paragraph (6), by striking ``and'' at the end;
(2) in paragraph (7), by striking the period at the end and
inserting ``; and''; and
(3) by inserting after paragraph (7) the following new
paragraph:
``(8) all final rules under section 608(a) of title 5.''.
(b) Conforming Amendments.--Paragraph (3) of section 2341 of title
28, United States Code, is amended--
(1) in subparagraph (D), by striking ``and'' at the end;
(2) in subparagraph (E), by striking the period at the end
and inserting ``; and''; and
(3) by adding at the end the following new subparagraph:
``(F) the Office of Advocacy of the Small Business
Administration, when the final rule is under section
608(a) of title 5.''.
(c) Authorization To Intervene and Comment on Agency Compliance
With Administrative Procedure.--Subsection (b) of section 612 of title
5, United States Code, is amended by inserting ``chapter 5, and chapter
7,'' after ``this chapter,''.
SEC. 310. ESTABLISHMENT AND APPROVAL OF SMALL BUSINESS CONCERN SIZE
STANDARDS BY CHIEF COUNSEL FOR ADVOCACY.
(a) In General.--Subparagraph (A) of section 3(a)(2) of the Small
Business Act (15 U.S.C. 632(a)(2)(A)) is amended to read as follows:
``(A) In general.--In addition to the criteria
specified in paragraph (1)--
``(i) the Administrator may specify
detailed definitions or standards by which a
business concern may be determined to be a
small business concern for purposes of this Act
or the Small Business Investment Act of 1958;
and
``(ii) the Chief Counsel for Advocacy may
specify such definitions or standards for
purposes of any other Act.''.
(b) Approval by Chief Counsel.--Clause (iii) of section 3(a)(2)(C)
of the Small Business Act (15 U.S.C. 632(a)(2)(C)(iii)) is amended to
read as follows:
``(iii) except in the case of a size
standard prescribed by the Administrator, is
approved by the Chief Counsel for Advocacy.''.
(c) Industry Variation.--Paragraph (3) of section 3(a) of the Small
Business Act (15 U.S.C. 632(a)(3)) is amended--
(1) by inserting ``or Chief Counsel for Advocacy, as
appropriate'' before ``shall ensure''; and
(2) by inserting ``or Chief Counsel for Advocacy'' before
the period at the end.
(d) Judicial Review of Size Standards Approved by Chief Counsel.--
Section 3(a) of the Small Business Act (15 U.S.C. 632(a)) is amended by
adding at the end the following new paragraph:
``(9) Judicial review of standards approved by chief
counsel.--In the case of an action for judicial review of a
rule which includes a definition or standard approved by the
Chief Counsel for Advocacy under this subsection, the party
seeking such review shall be entitled to join the Chief Counsel
as a party in such action.''.
SEC. 311. CLERICAL AMENDMENTS.
(a) Definitions.--Section 601 of title 5, United States Code, is
amended--
(1) in paragraph (1)--
(A) by striking the semicolon at the end and
inserting a period; and
(B) by striking ``(1) the term'' and inserting the
following:
``(1) Agency.--The term'';
(2) in paragraph (3)--
(A) by striking the semicolon at the end and
inserting a period; and
(B) by striking ``(3) the term'' and inserting the
following:
``(3) Small business.--The term'';
(3) in paragraph (5)--
(A) by striking the semicolon at the end and
inserting a period; and
(B) by striking ``(5) the term'' and inserting the
following:
``(5) Small governmental jurisdiction.--The term''; and
(4) in paragraph (6)--
(A) by striking ``; and'' and inserting a period;
and
(B) by striking ``(6) the term'' and inserting the
following:
``(6) Small entity.--The term''.
(b) Incorporations by Reference and Certifications.--The heading of
section 605 of title 5, United States Code, is amended to read as
follows:
``Sec. 605. Incorporations by reference and certifications''.
(c) Table of Sections.--The table of sections for chapter 6 of
title 5, United States Code, is amended--
(1) by striking the item relating to section 605 and
inserting the following new item:
``605. Incorporations by reference and certifications.'';
(2) by striking the item relating to section 607 and
inserting the following new item:
``607. Quantification requirements.'';
and
(3) by striking the item relating to section 608 and
inserting the following:
``608. Additional powers of Chief Counsel for Advocacy.''.
(d) Other Clerical Amendments to Chapter 6.--Chapter 6 of title 5,
United States Code, is amended as follows:
(1) In section 603, by striking subsection (d).
(2) In section 604(a) by striking the second paragraph (6).
SEC. 312. AGENCY PREPARATION OF GUIDES.
Section 212(a)(5) the Small Business Regulatory Enforcement
Fairness Act of 1996 (5 U.S.C. 601 note) is amended to read as follows:
``(5) Agency preparation of guides.--The agency shall, in
its sole discretion, taking into account the subject matter of
the rule and the language of relevant statutes, ensure that the
guide is written using sufficiently plain language likely to be
understood by affected small entities. Agencies may prepare
separate guides covering groups or classes of similarly
affected small entities and may cooperate with associations of
small entities to distribute such guides. In developing guides,
agencies shall solicit input from affected small entities or
associations of affected small entities. An agency may prepare
guides and apply this section with respect to a rule or a group
of related rules.''.
SEC. 313. COMPTROLLER GENERAL REPORT.
Not later than 90 days after the date of enactment of this title,
the Comptroller General of the United States shall complete and publish
a study that examines whether the Chief Counsel for Advocacy of the
Small Business Administration has the capacity and resources to carry
out the duties of the Chief Counsel under this title and the amendments
made by this title.
TITLE IV--SUNSHINE FOR REGULATORY DECREES AND SETTLEMENTS ACT
SEC. 401. SHORT TITLE.
This title may be cited as the ``Sunshine for Regulatory Decrees
and Settlements Act of 2014''.
SEC. 402. DEFINITIONS.
In this title--
(1) the terms ``agency'' and ``agency action'' have the
meanings given those terms under section 551 of title 5, United
States Code;
(2) the term ``covered civil action'' means a civil
action--
(A) seeking to compel agency action;
(B) alleging that the agency is unlawfully
withholding or unreasonably delaying an agency action
relating to a regulatory action that would affect the
rights of--
(i) private persons other than the person
bringing the action; or
(ii) a State, local, or tribal government;
and
(C) brought under--
(i) chapter 7 of title 5, United States
Code; or
(ii) any other statute authorizing such an
action;
(3) the term ``covered consent decree'' means--
(A) a consent decree entered into in a covered
civil action; and
(B) any other consent decree that requires agency
action relating to a regulatory action that affects the
rights of--
(i) private persons other than the person
bringing the action; or
(ii) a State, local, or tribal government;
(4) the term ``covered consent decree or settlement
agreement'' means a covered consent decree and a covered
settlement agreement; and
(5) the term ``covered settlement agreement'' means--
(A) a settlement agreement entered into in a
covered civil action; and
(B) any other settlement agreement that requires
agency action relating to a regulatory action that
affects the rights of--
(i) private persons other than the person
bringing the action; or
(ii) a State, local, or tribal government.
SEC. 403. CONSENT DECREE AND SETTLEMENT REFORM.
(a) Pleadings and Preliminary Matters.--
(1) In general.--In any covered civil action, the agency
against which the covered civil action is brought shall publish
the notice of intent to sue and the complaint in a readily
accessible manner, including by making the notice of intent to
sue and the complaint available online not later than 15 days
after receiving service of the notice of intent to sue or
complaint, respectively.
(2) Entry of a covered consent decree or settlement
agreement.--A party may not make a motion for entry of a
covered consent decree or to dismiss a civil action pursuant to
a covered settlement agreement until after the end of
proceedings in accordance with paragraph (1) and subparagraphs
(A) and (B) of paragraph (2) of subsection (d) or subsection
(d)(3)(A), whichever is later.
(b) Intervention.--
(1) Rebuttable presumption.--In considering a motion to
intervene in a covered civil action or a civil action in which
a covered consent decree or settlement agreement has been
proposed that is filed by a person who alleges that the agency
action in dispute would affect the person, the court shall
presume, subject to rebuttal, that the interests of the person
would not be represented adequately by the existing parties to
the action.
(2) State, local, and tribal governments.--In considering a
motion to intervene in a covered civil action or a civil action
in which a covered consent decree or settlement agreement has
been proposed that is filed by a State, local, or tribal
government, the court shall take due account of whether the
movant--
(A) administers jointly with an agency that is a
defendant in the action the statutory provisions that
give rise to the regulatory action to which the action
relates; or
(B) administers an authority under State, local, or
tribal law that would be preempted by the regulatory
action to which the action relates.
(c) Settlement Negotiations.--Efforts to settle a covered civil
action or otherwise reach an agreement on a covered consent decree or
settlement agreement shall--
(1) be conducted pursuant to the mediation or alternative
dispute resolution program of the court or by a district judge
other than the presiding judge, magistrate judge, or special
master, as determined appropriate by the presiding judge; and
(2) include any party that intervenes in the action.
(d) Publication of and Comment on Covered Consent Decrees or
Settlement Agreements.--
(1) In general.--Not later than 60 days before the date on
which a covered consent decree or settlement agreement is filed
with a court, the agency seeking to enter the covered consent
decree or settlement agreement shall publish in the Federal
Register and online--
(A) the proposed covered consent decree or
settlement agreement; and
(B) a statement providing--
(i) the statutory basis for the covered
consent decree or settlement agreement; and
(ii) a description of the terms of the
covered consent decree or settlement agreement,
including whether it provides for the award of
attorneys' fees or costs and, if so, the basis
for including the award.
(2) Public comment.--
(A) In general.--An agency seeking to enter a
covered consent decree or settlement agreement shall
accept public comment during the period described in
paragraph (1) on any issue relating to the matters
alleged in the complaint in the applicable civil action
or addressed or affected by the proposed covered
consent decree or settlement agreement.
(B) Response to comments.--An agency shall respond
to any comment received under subparagraph (A).
(C) Submissions to court.--When moving that the
court enter a proposed covered consent decree or
settlement agreement or for dismissal pursuant to a
proposed covered consent decree or settlement
agreement, an agency shall--
(i) inform the court of the statutory basis
for the proposed covered consent decree or
settlement agreement and its terms;
(ii) submit to the court a summary of the
comments received under subparagraph (A) and
the response of the agency to the comments;
(iii) submit to the court a certified index
of the administrative record of the notice and
comment proceeding; and
(iv) make the administrative record
described in clause (iii) fully accessible to
the court.
(D) Inclusion in record.--The court shall include
in the court record for a civil action the certified
index of the administrative record submitted by an
agency under subparagraph (C)(iii) and any documents
listed in the index which any party or amicus curiae
appearing before the court in the action submits to the
court.
(3) Public hearings permitted.--
(A) In general.--After providing notice in the
Federal Register and online, an agency may hold a
public hearing regarding whether to enter into a
proposed covered consent decree or settlement
agreement.
(B) Record.--If an agency holds a public hearing
under subparagraph (A)--
(i) the agency shall--
(I) submit to the court a summary
of the proceedings;
(II) submit to the court a
certified index of the hearing record;
and
(III) provide access to the hearing
record to the court; and
(ii) the full hearing record shall be
included in the court record.
(4) Mandatory deadlines.--If a proposed covered consent
decree or settlement agreement requires an agency action by a
date certain, the agency shall, when moving for entry of the
covered consent decree or settlement agreement or dismissal
based on the covered consent decree or settlement agreement,
inform the court of--
(A) any required regulatory action the agency has
not taken that the covered consent decree or settlement
agreement does not address;
(B) how the covered consent decree or settlement
agreement, if approved, would affect the discharge of
the duties described in subparagraph (A); and
(C) why the effects of the covered consent decree
or settlement agreement on the manner in which the
agency discharges its duties is in the public interest.
(e) Submission by the Government.--
(1) In general.--For any proposed covered consent decree or
settlement agreement that contains a term described in
paragraph (2), the Attorney General or, if the matter is being
litigated independently by an agency, the head of the agency
shall submit to the court a certification that the Attorney
General or head of the agency approves the proposed covered
consent decree or settlement agreement. The Attorney General or
head of the agency shall personally sign any certification
submitted under this paragraph.
(2) Terms.--A term described in this paragraph is--
(A) in the case of a covered consent decree, a term
that--
(i) converts into a nondiscretionary duty a
discretionary authority of an agency to
propose, promulgate, revise, or amend
regulations;
(ii) commits an agency to expend funds that
have not been appropriated and that have not
been budgeted for the regulatory action in
question;
(iii) commits an agency to seek a
particular appropriation or budget
authorization;
(iv) divests an agency of discretion
committed to the agency by statute or the
Constitution of the United States, without
regard to whether the discretion was granted to
respond to changing circumstances, to make
policy or managerial choices, or to protect the
rights of third parties; or
(v) otherwise affords relief that the court
could not enter under its own authority upon a
final judgment in the civil action; or
(B) in the case of a covered settlement agreement,
a term--
(i) that provides a remedy for a failure by
the agency to comply with the terms of the
covered settlement agreement other than the
revival of the civil action resolved by the
covered settlement agreement; and
(ii) that--
(I) interferes with the authority
of an agency to revise, amend, or issue
rules under the procedures set forth in
chapter 5 of title 5, United States
Code, or any other statute or Executive
order prescribing rulemaking procedures
for a rulemaking that is the subject of
the covered settlement agreement;
(II) commits the agency to expend
funds that have not been appropriated
and that have not been budgeted for the
regulatory action in question; or
(III) for such a covered settlement
agreement that commits the agency to
exercise in a particular way discretion
which was committed to the agency by
statute or the Constitution of the
United States to respond to changing
circumstances, to make policy or
managerial choices, or to protect the
rights of third parties.
(f) Review by Court.--
(1) Amicus.--A court considering a proposed covered consent
decree or settlement agreement shall presume, subject to
rebuttal, that it is proper to allow amicus participation
relating to the covered consent decree or settlement agreement
by any person who filed public comments or participated in a
public hearing on the covered consent decree or settlement
agreement under paragraph (2) or (3) of subsection (d).
(2) Review of deadlines.--
(A) Proposed covered consent decrees.--For a
proposed covered consent decree, a court shall not
approve the covered consent decree unless the proposed
covered consent decree allows sufficient time and
incorporates adequate procedures for the agency to
comply with chapter 5 of title 5, United States Code,
and other applicable statutes that govern rulemaking
and, unless contrary to the public interest, the
provisions of any Executive order that governs
rulemaking.
(B) Proposed covered settlement agreements.--For a
proposed covered settlement agreement, a court shall
ensure that the covered settlement agreement allows
sufficient time and incorporates adequate procedures
for the agency to comply with chapter 5 of title 5,
United States Code, and other applicable statutes that
govern rulemaking and, unless contrary to the public
interest, the provisions of any Executive order that
governs rulemaking.
(g) Annual Reports.--Each agency shall submit to Congress an annual
report that, for the year covered by the report, includes--
(1) the number, identity, and content of covered civil
actions brought against and covered consent decrees or
settlement agreements entered against or into by the agency;
and
(2) a description of the statutory basis for--
(A) each covered consent decree or settlement
agreement entered against or into by the agency; and
(B) any award of attorneys fees or costs in a civil
action resolved by a covered consent decree or
settlement agreement entered against or into by the
agency.
SEC. 404. MOTIONS TO MODIFY CONSENT DECREES.
If an agency moves a court to modify a covered consent decree or
settlement agreement and the basis of the motion is that the terms of
the covered consent decree or settlement agreement are no longer fully
in the public interest due to the obligations of the agency to fulfill
other duties or due to changed facts and circumstances, the court shall
review the motion and the covered consent decree or settlement
agreement de novo.
SEC. 405. EFFECTIVE DATE.
This title shall apply to--
(1) any covered civil action filed on or after the date of
enactment of this title; and
(2) any covered consent decree or settlement agreement
proposed to a court on or after the date of enactment of this
title.
Passed the House of Representatives February 27, 2014.
Attest:
Clerk.
113th CONGRESS
2d Session
H. R. 2804
_______________________________________________________________________
AN ACT
To amend title 5, United States Code, to require the Administrator of
the Office of Information and Regulatory Affairs to publish information
about rules on the Internet, and for other purposes.