[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 951 Introduced in Senate (IS)]
<DOC>
115th CONGRESS
1st Session
S. 951
To reform the process by which Federal agencies analyze and formulate
new regulations and guidance documents, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
April 26, 2017
Mr. Portman (for himself, Ms. Heitkamp, Mr. Hatch, and Mr. Manchin)
introduced the following bill; which was read twice and referred to the
Committee on Homeland Security and Governmental Affairs
_______________________________________________________________________
A BILL
To reform the process by which Federal agencies analyze and formulate
new regulations and guidance documents, 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.
This Act may be cited as the ``Regulatory Accountability Act of
2017''.
SEC. 2. DEFINITIONS.
Section 551 of title 5, United States Code, is amended--
(1) in paragraph (5), by striking ``rule making'' and
inserting ``rulemaking'';
(2) in paragraph (6), by striking ``rule making'' and
inserting ``rulemaking'';
(3) in paragraph (13), by striking ``and'' at the end;
(4) in paragraph (14), by striking the period at the end
and inserting a semicolon; and
(5) by adding at the end the following:
``(15) `guidance' means an agency statement of general
applicability, other than a rule, that--
``(A) is not intended to have the force and effect
of law; and
``(B) sets forth a policy on a statutory,
regulatory, or technical issue or an interpretation of
a statutory or regulatory issue;
``(16) `high-impact rule' means any rule that the
Administrator determines is likely to cause an annual effect on
the economy of $1,000,000,000 or more, adjusted once every 5
years to reflect increases in the Consumer Price Index for All
Urban Consumers, as published by the Bureau of Labor Statistics
of the Department of Labor;
``(17) `major guidance' means guidance that the
Administrator finds is likely to lead to--
``(A) an annual effect on the economy of
$100,000,000 or more, adjusted once every 5 years to
reflect increases in the Consumer Price Index for All
Urban Consumers, as published by the Bureau of Labor
Statistics of the Department of Labor;
``(B) a major increase in costs or prices for
consumers, individual industries, Federal, State,
local, or tribal government agencies, or geographic
regions; or
``(C) significant adverse effects on competition,
employment, investment, productivity, innovation,
public health and safety, or the ability of United
States-based enterprises to compete with foreign-based
enterprises in domestic and export markets;
``(18) `major rule' means any rule that the Administrator
determines is likely to cause--
``(A) an annual effect on the economy of
$100,000,000 or more, adjusted once every 5 years to
reflect increases in the Consumer Price Index for All
Urban Consumers, as published by the Bureau of Labor
Statistics of the Department of Labor;
``(B) a major increase in costs or prices for
consumers, individual industries, Federal, State,
local, or tribal government agencies, or geographic
regions; or
``(C) significant adverse effects on competition,
employment, investment, productivity, innovation,
public health and safety, or the ability of United
States-based enterprises to compete with foreign-based
enterprises in domestic and export markets;
``(19) `Office of Information and Regulatory Affairs' means
the office established under section 3503 of title 44 and any
successor to that office; and
``(20) `Administrator' means the Administrator of the
Office of Information and Regulatory Affairs.''.
SEC. 3. RULEMAKING.
Section 553 of title 5, United States Code, is amended--
(1) in the section heading, by striking ``Rule making'' and
inserting ``Rulemaking'';
(2) in subsection (a), by striking ``(a) This section
applies'' and inserting ``(a) Applicability--This section
applies''; and
(3) by striking subsections (b) through (e) and inserting
the following:
``(b) Rulemaking Considerations.--In a rulemaking, an agency shall
consider, in addition to other applicable considerations, the
following:
``(1) The legal authority under which a rule may be
proposed, including whether rulemaking is required by statute
or is within the discretion of the agency.
``(2) The nature and significance of the problem the agency
intends to address with a rule.
``(3) Whether existing Federal laws or rules have created
or contributed to the problem the agency may address with a
rule and, if so, whether those Federal laws or rules could be
amended or rescinded to address the problem in whole or in
part.
``(4) A reasonable number of alternatives for a new rule
that meet the statutory objective, including substantial
alternatives or other responses identified by interested
persons, with the consideration of 3 alternatives presumed to
be reasonable.
``(5) For any major rule or high-impact rule, unless
prohibited by law, the potential costs and benefits associated
with potential alternative rules and other responses considered
under paragraph (4), including quantitative and qualitative
analyses of--
``(A) the direct costs and benefits;
``(B) the nature and degree of risks addressed by
the rule and the countervailing risks that might be
posed by agency action; and
``(C) to the extent practicable, the cumulative and
indirect costs and benefits.
``(c) Notice of Proposed Rulemaking.--
``(1) In general.--If an agency determines that the
objectives of the agency require the agency to issue a rule,
the agency shall notify the Administrator and publish a notice
of proposed rulemaking in the Federal Register, which shall
include--
``(A) a statement of the time, place, and nature of
any public rulemaking proceedings;
``(B) reference to the legal authority under which
the rule is proposed;
``(C) the text of the proposed rule;
``(D) a summary of information known to the agency
concerning the considerations described in subsection
(b); and
``(E) where otherwise consistent with applicable
law, for any major rule or high-impact rule--
``(i) a reasoned preliminary explanation
regarding how--
``(I) the proposed rule meets the
statutory objectives; and
``(II) the benefits of the proposed
rule justify the costs; and
``(ii) a discussion of--
``(I) the costs and benefits of
alternatives considered by the agency
under subsection (b)(4);
``(II) whether the alternatives
considered by the agency under
subsection (b)(4) meet relevant
statutory objectives; and
``(III) the reasons why the agency
did not propose an alternative
considered by the agency under
subsection (b)(4).
``(2) Accessibility.--
``(A) In general.--Except as provided in
subparagraph (B), not later than the date on which an
agency publishes a notice of proposed rulemaking under
paragraph (1), all studies, models, scientific
literature, and other information developed or relied
upon by the agency, and actions taken by the agency to
obtain that information, in connection with the
determination of the agency to propose the rule that is
the subject of the rulemaking shall be placed in the
docket for the proposed rule and made accessible to the
public.
``(B) Exception.--Subparagraph (A) shall not apply
with respect to information that is exempt from
disclosure under section 552(b).
``(3) Information quality.--If an agency proposes a rule
that rests upon scientific, technical, or economic information,
the agency shall propose the rule on the basis of the best
reasonably available scientific, technical, or economic
information.
``(4) Public comment.--
``(A) In general.--After publishing a notice of
proposed rulemaking under paragraph (1), an agency
shall provide interested persons an opportunity to
participate in the rulemaking through the submission of
written material, data, views, or arguments with or
without opportunity for oral presentation, except
that--
``(i) if a public hearing is convened under
subsection (e), reasonable opportunity for oral
presentation shall be provided at the public
hearing as provided in subsection (e); and
``(ii) when, other than as provided in
subsection (e), a rule is required by statute
to be made on the record after opportunity for
an agency hearing--
``(I) sections 556 and 557 shall
apply; and
``(II) the petition procedures of
subsection (e) shall not apply.
``(B) Timeline.--An agency shall provide not less
than 60 days, or, with respect to a proposed major rule
or a proposed high-impact rule, not less than 90 days,
for interested persons to submit written material,
data, views, or arguments under subparagraph (A).
``(5) Change of classification after publication of
notice.--If, after an agency submits the notification and
publishes the notice of proposed rulemaking required under
paragraph (1), a proposed rule is determined to be a major rule
or a high-impact rule, the agency shall--
``(A) publish a notice in the Federal Register with
respect to the change of the classification of the
rule; and
``(B) allow interested persons an additional
opportunity of not less than 30 days to comment on--
``(i) the rule; and
``(ii) the change of the classification of
the rule.
``(6) Prohibition on certain communications.--
``(A) In general.--Except as provided in
subparagraph (B), after an agency publishes a notice of
proposed rulemaking required under paragraph (1), or
after an agency publishes a notice of initiation of
rulemaking under subsection (d)(1)(B), the agency, and
any individual acting in an official capacity on behalf
of the agency, may not communicate, and a person who
receives Federal funds from the agency may not use
those funds to communicate, through written, oral,
electronic, or other means, to the public with respect
to the proposed rule in a manner that--
``(i) directly advocates, in support of or
against the proposed rule, for the submission
of information that will form part of the
record for the proposed rule;
``(ii) appeals to the public, or solicits a
third party, to undertake advocacy in support
of or against the proposed rule; or
``(iii) is directly or indirectly for the
purpose of publicity or propaganda within the
United States in a manner that Congress has not
authorized.
``(B) Exception.--The prohibition under
subparagraph (A) shall not apply to a communication
that requests comments on, or provides information
regarding, a proposed rule in an impartial manner.
``(d) Initiation of Rulemaking for Major and High-Impact Rules.--
``(1) Notice for major and high-impact rules.--When an
agency determines to initiate a rulemaking that may result in a
major rule or a high-impact rule, the agency shall--
``(A) establish an electronic docket for that
rulemaking, which may have a physical counterpart; and
``(B) publish a notice of initiation of rulemaking
in the Federal Register, which shall--
``(i) briefly describe the subject and
objectives of, and the problem to be solved by,
the rule;
``(ii) reference the legal authority under
which the rule would be proposed;
``(iii) invite interested persons to
propose alternatives and other ideas regarding
how best to accomplish the objectives of the
agency in the most effective manner; and
``(iv) indicate how interested persons may
submit written material for the docket.
``(2) Accessibility.--All information provided to the
agency under paragraph (1) shall be promptly placed in the
docket and made accessible to the public.
``(3) Applicability.--With respect to the alternatives and
other ideas proposed under paragraph (1)(B)(iii)--
``(A) the alternatives and other ideas are for the
benefit of--
``(i) the agency receiving the alternatives
and other ideas; and
``(ii) the public; and
``(B) the agency receiving the alternatives and
other ideas may respond to the alternatives and other
ideas.
``(4) Timetable.--
``(A) In general.--With respect to a rulemaking for
a major rule or a high-impact rule, the agency
proposing the rule shall establish a timetable for the
rulemaking that--
``(i) includes intermediate and final
completion dates for actions of the agency; and
``(ii) shall be published in the electronic
docket established under paragraph (1)(A) with
respect to the rulemaking.
``(B) Consideration of factors.--In establishing
the timetable required under subparagraph (A), an
agency shall consider relevant factors, including--
``(i) the size and complexity of the
rulemaking;
``(ii) the resources available to the
agency;
``(iii) the national significance of the
rulemaking; and
``(iv) all statutory requirements that
govern the timing of the rulemaking.
``(C) Report required.--
``(i) In general.--An agency that fails to
meet an intermediate or final completion date
for an action established under subparagraph
(A) shall submit to Congress and the Director
of the Office of Management and Budget a report
regarding why the agency failed to meet the
completion date.
``(ii) Contents; publication in federal
register.--A report submitted under clause (i)
shall--
``(I) include an amended timetable
for the rulemaking; and
``(II) be published--
``(aa) in the Federal
Register; and
``(bb) in the electronic
docket established under
paragraph (1)(A) with respect
to the rulemaking.
``(5) Notice of determination of other agency course.--
``(A) In general.--If, after publishing the notice
required under paragraph (1), an agency determines not
to issue a major rule or a high-impact rule, the agency
shall, after consulting with the Administrator--
``(i) publish a notice of determination of
other agency course; and
``(ii) if the agency intends to issue a
rule, comply with the procedures required under
subsection (c).
``(B) Contents.--A notice of determination of other
agency course published under subparagraph (A)(i) shall
include--
``(i) a description of the alternative
response the agency has determined to adopt;
and
``(ii) if the agency intends to issue a
rule, any information required under subsection
(c).
``(e) Public Hearing for High-Impact Rules and Certain Major
Rules.--
``(1) Petition for public hearing.--
``(A) In general.--Before the date on which the
comment period closes with respect to a proposed high-
impact rule or a proposed major rule described in
section 551(18)(A), an interested person may petition
the agency that proposed the rule to hold a public
hearing in accordance with this subsection.
``(B) Petition for public hearing for high-impact
rules.--
``(i) Granting of petition.--Not later than
30 days after the date on which an agency
receives a petition submitted under
subparagraph (A) with respect to a high-impact
rule, the agency shall grant the petition if
the petition shows that--
``(I) the proposed rule is based on
conclusions with respect to 1 or more
specific scientific, technical,
economic, or other complex factual
issues that are genuinely disputed;
``(II) with respect to a rule that
the agency is required to reissue not
less frequently than once every 3
years, the interested person submitting
the petition could not have raised the
disputed factual issues described in
subclause (I) during the 5-year period
preceding the date on which the
petition is submitted; and
``(III) the resolution of the
disputed factual issues described in
subclause (I) would likely have an
effect on--
``(aa) the costs and
benefits of the proposed rule;
or
``(bb) whether the proposed
rule achieves the statutory
purpose.
``(ii) Denial of petition.--If an agency
denies a petition submitted under clause (i) in
whole or in part, the agency shall include in
the rulemaking record an explanation for the
denial sufficient for judicial review,
including--
``(I) findings by the agency that--
``(aa) there is no genuine
dispute as to the factual
issues raised by the petition;
or
``(bb) with respect to a
rule that the agency is
required to reissue not less
frequently than once every 3
years, the interested person
submitting the petition could
have raised the disputed
factual issues in the petition
during the 5-year period
preceding the date on which the
petition is submitted; and
``(II) a reasoned determination by
the agency that the factual issues
raised by the petition, even if subject
to genuine dispute and not subject to
subclause (I)(bb), will not have an
effect on--
``(aa) the costs and
benefits of the proposed rule;
or
``(bb) whether the proposed
rule achieves the statutory
purpose.
``(iii) Inclusion in the record.--A
petition submitted under subparagraph (A) with
respect to a high-impact rule and the decision
of an agency with respect to the petition shall
be included in the rulemaking record.
``(C) Petition for public hearing for certain major
rules.--
``(i) In general.--In the case of a major
rule described in section 551(18)(A), any
interested person may petition for a hearing
under this subsection on the grounds and within
the time limitation described in subparagraph
(B)(i).
``(ii) Agency authority to deny petition.--
An agency may deny a petition submitted to the
agency under clause (i) if the agency
reasonably determines that--
``(I) a hearing--
``(aa) would not advance
the consideration of the
proposed rule by the agency; or
``(bb) would, in light of
the need for agency action,
unreasonably delay completion
of the rulemaking; or
``(II) with respect to a rule that
the agency is required to reissue not
less frequently than once every 3
years, the interested person submitting
the petition could have raised the
disputed factual issues in the petition
during the 5-year period preceding the
date on which the petition is
submitted.
``(iii) Inclusion in the record.--A
petition submitted under clause (i) and the
decision of an agency with respect to the
petition shall be included in the rulemaking
record.
``(2) Notice of hearing.--Not later than 45 days before the
date on which a hearing is held under this subsection, an
agency shall publish in the Federal Register a notice
specifying--
``(A) the proposed rule to be considered at the
hearing; and
``(B) the factual issues to be considered at the
hearing.
``(3) Hearing requirements.--
``(A) Limited nature of hearing.--A hearing held
under this subsection shall be limited to--
``(i) the specific factual issues raised in
a petition granted in whole or in part under
paragraph (1); and
``(ii) any other factual issues the
resolution of which an agency, in the
discretion of the agency, determines will
advance consideration by the agency of the
proposed rule.
``(B) Procedures.--
``(i) Burden of proof.--Except as otherwise
provided by statute, a proponent of a rule has
the burden of proof in a hearing held under
this subsection.
``(ii) Admission of evidence.--In a hearing
held under this subsection, any documentary or
oral evidence may be received, except that an
agency, as a matter of policy, shall provide
for the exclusion of immaterial or unduly
repetitious evidence.
``(iii) Adoption of rules governing
hearings.--To govern a hearing held under this
subsection, each agency shall adopt rules that
provide for--
``(I) the appointment of an agency
official or administrative law judge to
preside at the hearing;
``(II) the presentation by
interested parties of relevant
documentary or oral evidence, unless
the evidence is immaterial or unduly
repetitious;
``(III) a reasonable and adequate
opportunity for cross-examination by
interested parties concerning genuinely
disputed factual issues raised by the
petition, provided that, in the case of
multiple interested parties with the
same or similar interests, the agency
may require the use of common counsel
where the common counsel may adequately
represent the interests that will be
significantly affected by the proposed
rule; and
``(IV) when appropriate, and to the
extent practicable, the consolidation
of proceedings with respect to multiple
petitions submitted under this
subsection into a single hearing.
``(C) Record of hearing.--A transcript of testimony
and exhibits, together with all papers and requests
filed in the hearing, shall constitute the exclusive
record for decision of the factual issues addressed in
a hearing held under this subsection.
``(4) Judicial review.--
``(A) In general.--Failure to petition for a
hearing under this subsection shall not preclude
judicial review of any claim that could have been
raised in the hearing petition or at the hearing.
``(B) Timing of judicial review.--There shall be no
judicial review of the disposition of a petition by an
agency under this subsection until judicial review of
the final action of the agency.
``(f) Final Rules.--
``(1) Effectiveness of major or high-impact rule.--
``(A) In general.--Except as provided in
subparagraph (B), in a rulemaking for a major rule or a
high-impact rule, an agency shall adopt the most cost-
effective rule that--
``(i) is considered under subsection
(b)(4); and
``(ii) meets relevant statutory objectives.
``(B) Exception.--In a rulemaking for a major rule
or a high-impact rule, an agency may adopt a rule that
is more costly than the most cost-effective alternative
that would achieve the relevant statutory objectives
only if--
``(i) the additional benefits of the more
costly rule justify the additional costs of
that rule;
``(ii) the agency specifically identifies
each additional benefit described in clause (i)
and the cost of each such additional benefit;
and
``(iii) the agency explains why the agency
adopted a rule that is more costly than the
most cost-effective alternative.
``(2) Publication of notice of final rulemaking.--When an
agency adopts a final rule, the agency shall publish a notice
of final rulemaking in the Federal Register, which shall
include--
``(A) a concise, general statement of the basis and
purpose of the rule;
``(B) a reasoned determination by the agency
regarding the considerations described in subsection
(b);
``(C) a response to each significant issue raised
in the comments on the proposed rule; and
``(D) with respect to a major rule or a high-impact
rule, a reasoned determination by the agency that--
``(i) the benefits of the rule advance the
relevant statutory objectives and justify the
costs of the rule; and
``(ii)(I) no alternative considered would
achieve the relevant statutory objectives in a
more cost-effective manner than the rule; or
``(II) the adoption by the agency of a more
costly rule complies with paragraph (1)(B).
``(3) Information quality.--If an agency rulemaking rests
upon scientific, technical, or economic information, the agency
shall adopt a final rule on the basis of the best reasonably
available scientific, technical, or economic information.
``(4) Accessibility.--
``(A) In general.--Except as provided in
subparagraph (B), not later than the date on which an
agency publishes a notice of final rulemaking under
paragraph (2), all studies, models, scientific
literature, and other information developed or relied
upon by the agency, and actions taken by the agency to
obtain that information, in connection with the
determination of the agency to finalize the rule that
is the subject of the rulemaking shall be placed in the
docket for the rule and made accessible to the public.
``(B) Exception.--Subparagraph (A) shall not apply
with respect to information that is exempt from
disclosure under section 552(b).
``(5) Rules adopted at the end of a presidential
administration.--
``(A) In general.--During the 60-day period
beginning on a transitional inauguration day (as
defined in section 3349a), with respect to any final
rule that had been placed on file for public inspection
by the Office of the Federal Register or published in
the Federal Register as of the date of the
inauguration, but which had not become effective by the
date of the inauguration, the agency issuing the rule
may, by order, delay the effective date of the rule for
not more than 90 days for the purpose of obtaining
public comment on whether--
``(i) the rule should be amended or
rescinded; or
``(ii) the effective date of the rule
should be further delayed.
``(B) Opportunity for comment.--If an agency delays
the effective date of a rule under subparagraph (A),
the agency shall give the public not less than 30 days
to submit comments.
``(g) Applicability.--
``(1) Primacy of certain rulemaking considerations and
procedures in other federal laws.--
``(A) Considerations.--If a rulemaking is
authorized under a Federal law that requires an agency
to consider, or prohibits an agency from considering, a
factor in a manner that is inconsistent with, or that
conflicts with, the requirements under this section,
for the purposes of this section, the requirement or
prohibition, as applicable, in that other Federal law
shall apply to the agency in the rulemaking.
``(B) Procedural requirements.--If a rulemaking is
authorized under a Federal law that requires an agency
to follow or use, or prohibits an agency from following
or using, a procedure in a manner that is duplicative
of, or that conflicts with, a procedural requirement
under this section, for the purposes of this section,
the requirement or prohibition, as applicable, in that
other Federal law shall apply to the agency in the
rulemaking.
``(2) Guidance and rules of organization.--Except as
otherwise provided by law, this section shall not apply to
guidance or rules of agency organization, procedure, or
practice.
``(3) Exceptions for good cause.--
``(A) Finding of good cause.--
``(i) In general.--If an agency for good
cause finds that compliance with subsection
(c), (d), (e), or (f)(2)(B) before issuing a
final rule is unnecessary, impracticable, or
contrary to the public interest, that
subsection shall not apply and the agency may
issue the final rule or an interim final rule,
as applicable, under subparagraph (B) or (C).
``(ii) Incorporation of good cause
finding.--If an agency makes a finding under
clause (i), the agency shall include that
finding and a brief statement with respect to
the reasons for that finding in the final rule
or interim final rule, as applicable, issued by
the agency.
``(B) Direct final rules.--
``(i) In general.--Except as provided in
clause (ii), if an agency makes a finding under
subparagraph (A)(i) that compliance with
subsection (c), (d), (e), or (f)(2)(B) before
issuing a final rule is unnecessary, the agency
shall, before issuing the final rule--
``(I) publish in the Federal
Register the text of the final rule,
the brief statement required under
subparagraph (A)(ii), and a notice of
opportunity for public comment;
``(II) establish a comment period
of not less than 30 days for any
interested person to submit written
material, data, views, or arguments
with respect to the final rule; and
``(III) provide notice of the date
on which the rule will take effect.
``(ii) Exception.--An agency that made a
finding described in clause (i) may choose not
to follow the requirements under that clause if
the agency determines that following the
requirements would not expedite the issuance of
the final rule.
``(iii) Adverse comments.--If an agency
receives significant adverse comments with
respect to a rule during the comment period
established under clause (i)(II), the agency
shall--
``(I) withdraw the notice of final
rulemaking published by the agency with
respect to the rule; and
``(II) complete rulemaking in
accordance with subsections (c), (d),
(e), and (f), as applicable.
``(C) Interim final rules.--
``(i) In general.--If an agency for good
cause finds that compliance with subsection
(c), (d), (e), or (f)(2)(B) before issuing a
final rule is impracticable or contrary to the
public interest, the agency shall issue an
interim final rule by--
``(I) publishing the interim final
rule and a request for public comment
in the portion of the Federal Register
relating to final rules; and
``(II) providing a cross-reference
in the portion of the Federal Register
relating to proposed rules that
requests public comment with respect to
the rule not later than 60 days after
the rule is published under subclause
(I).
``(ii) Interim period.--
``(I) In general.--Not later than
180 days after the date on which an
agency issues an interim final rule
under clause (i), the agency shall--
``(aa) rescind the interim
rule;
``(bb) initiate rulemaking
in accordance with subsections
(c) through (f); or
``(cc) take final action to
adopt a final rule.
``(II) No force or effect.--If, as
of the end of the 180-day period
described in subclause (I), an agency
fails to take an action described in
item (aa), (bb), or (cc) of that
subclause, the interim final rule
issued by the agency shall have no
force or effect.
``(4) Exemption for monetary policy.--This section shall
not apply to a rulemaking or to guidance that concerns monetary
policy proposed or implemented by the Board of Governors of the
Federal Reserve System or the Federal Open Market Committee.
``(h) Date of Publication.--A final rule, a direct final rule
described in subsection (g)(3)(B), or an interim final rule described
in subsection (g)(3)(C) shall be published not later than 30 days (or,
in the case of a major rule or a high-impact rule, not later than 60
days) before the effective date of the rule, except--
``(1) for guidance; or
``(2) as otherwise provided by an agency for good cause and
as published with the rule.
``(i) Right To Petition and Review of Rules.--Each agency shall--
``(1) give interested persons the right to petition for the
issuance, amendment, or repeal of a rule; and
``(2) on a continuing basis, invite interested persons to
submit, by electronic means, suggestions for rules that warrant
retrospective review and possible modification or repeal.
``(j) Rulemaking Guidelines.--
``(1) Assessment of rules.--
``(A) In general.--The Administrator shall
establish guidelines for the assessment, including the
quantitative and qualitative assessment, of--
``(i) the costs and benefits of proposed
and final rules;
``(ii) the cost-effectiveness of proposed
and final rules;
``(iii) other economic issues that are
relevant to rulemaking under this section or
other sections of this part; and
``(iv) risk assessments that are relevant
to rulemaking under this section and other
sections of this part.
``(B) Agency analysis of rules.--
``(i) In general.--The rigor of the cost-
benefit analysis required by the guidelines
established under subparagraph (A) shall be
commensurate, as determined by the
Administrator, with the economic impact of a
rule.
``(ii) Risk assessment guidelines.--
Guidelines for a risk assessment described in
subparagraph (A)(iv) shall include criteria
for--
``(I) selecting studies and models;
``(II) evaluating and weighing
evidence; and
``(III) conducting peer reviews.
``(C) Updating guidelines.--Not less frequently
than once every 10 years, the Administrator shall
update the guidelines established under subparagraph
(A) to enable each agency to use the best available
techniques to quantify and evaluate present and future
benefits, costs, other economic issues, and risks as
objectively and accurately as practicable.
``(2) Simplification of rules.--
``(A) Issuance of guidelines.--The Administrator
shall issue guidelines to promote coordination,
simplification, and harmonization of agency rules
during the rulemaking process.
``(B) Requirements.--The guidelines issued by the
Administrator under subparagraph (A) shall advise each
agency to--
``(i) avoid rules that are inconsistent or
incompatible with, or duplicative of, other
regulations of the agency and those of other
agencies; and
``(ii) draft the rules of the agency to be
simple and easy to understand, with the goal of
minimizing the potential for uncertainty and
litigation arising from the uncertainty.
``(3) Consistency in rulemaking.--
``(A) In general.--To promote consistency in
rulemaking, the Administrator shall--
``(i) issue guidelines to ensure that
rulemaking conducted in whole or in part under
procedures specified in provisions of law other
than those under this section conform with the
procedures set forth in this section to the
fullest extent allowed by law; and
``(ii) issue guidelines for the conduct of
hearings under subsection (e), which shall
provide a reasonable opportunity for cross-
examination.
``(B) Agency adoption of regulations.--Each agency
shall adopt regulations for the conduct of hearings
consistent with the guidelines issued under this
paragraph.
``(k) Agency Guidance; Procedures To Issue Major Guidance;
Authority To Issue Guidelines for Issuance of Guidance.--
``(1) In general.--Agency guidance shall--
``(A) not be used by an agency to foreclose
consideration of issues as to which the guidance
expresses a conclusion;
``(B) state that the guidance is not legally
binding; and
``(C) at the time the guidance is issued, or upon
request, be made available by the issuing agency to
interested persons and the public.
``(2) Procedures to issue major guidance.--Before issuing
any major guidance, an agency shall--
``(A) make and document a reasoned determination
that--
``(i) such guidance is understandable and
complies with relevant statutory objectives and
regulatory provisions; and
``(ii) identifies the costs and benefits,
including all costs and benefits to be
considered during a rulemaking under subsection
(b), of requiring conduct conforming to such
guidance and assures that such benefits justify
such costs; and
``(B) confer with the Administrator on the issuance
of the major guidance to ensure that the guidance--
``(i) is reasonable;
``(ii) is understandable;
``(iii) is consistent with relevant
statutory and regulatory provisions and
requirements or practices of other agencies;
``(iv) does not produce costs that are
unjustified by the benefits of the major
guidance; and
``(v) is otherwise appropriate.
``(3) Issuance of updated guidance.--
``(A) In general.--The Administrator shall issue
updated guidelines for use by agencies in the issuance
of guidance documents.
``(B) Requirements.--The guidelines issued by the
Administrator under subparagraph (A) shall advise each
agency--
``(i) not to issue guidance documents that
are inconsistent or incompatible with, or
duplicative of, other rules of the agency and
those of other agencies;
``(ii) to draft the guidance documents of
the agency to be simple and easy to understand,
with the goal of minimizing the potential for
uncertainty and litigation arising from the
uncertainty; and
``(iii) how to develop and implement a
strategy to ensure the proper use of guidance
by the agency.
``(l) Major Rule and High-Impact Rule Frameworks.--
``(1) In general.--Beginning on the date that is 180 days
after the date of enactment of this subsection, when an agency
publishes in the Federal Register--
``(A) a proposed major rule or a proposed high-
impact rule, the agency shall include a potential
framework for assessing the rule, which shall include a
general statement of how the agency intends to measure
the effectiveness of the rule; or
``(B) a final major rule or a final high-impact
rule, the agency shall include a framework for
assessing the rule under paragraph (2), which shall
include--
``(i) a clear statement of the regulatory
objectives of the rule, including a summary of
the benefit and cost of the rule;
``(ii) the methodology by which the agency
plans to analyze the rule, including metrics by
which the agency can measure--
``(I) the effectiveness and
benefits of the rule in producing the
regulatory objectives of the rule; and
``(II) the impacts, including any
costs, of the rule on regulated and
other impacted entities;
``(iii) a plan for gathering data regarding
the metrics described in clause (ii) on an
ongoing basis, or at periodic times, including
a method by which the agency will invite the
public to participate in the review process and
seek input from other agencies; and
``(iv) a specific timeframe, as appropriate
to the rule and not more than 10 years after
the effective date of the rule, under which the
agency shall conduct the assessment of the rule
in accordance with paragraph (2)(A).
``(2) Assessment.--
``(A) In general.--Each agency shall assess the
data collected under paragraph (1)(B)(iii), using the
methodology set forth in paragraph (1)(B)(ii) or any
other appropriate methodology developed after the
issuance of a final major rule or a final high-impact
rule to better determine whether the regulatory
objective was achieved, with respect to the rule--
``(i) to analyze how the actual benefits
and costs of the rule may have varied from
those anticipated at the time the rule was
issued; and
``(ii) to determine whether--
``(I) the rule is accomplishing the
regulatory objective of the rule;
``(II) the rule has been rendered
unnecessary, taking into
consideration--
``(aa) changes in the
subject area affected by the
rule; and
``(bb) whether the rule
overlaps, duplicates, or
conflicts with--
``(AA) other rules;
or
``(BB) to the
extent feasible, State
and local government
regulations;
``(III) the rule needs to be
modified in order to accomplish the
regulatory objective; and
``(IV) other alternatives to the
rule or modification of the rule could
better achieve the regulatory objective
while imposing a smaller burden on
society or increase cost-effectiveness,
taking into consideration any cost
already incurred.
``(B) Different methodology.--If an agency uses a
methodology other than the methodology under paragraph
(1)(B)(ii) to assess data under subparagraph (A), the
agency shall include as part of the notice required to
be published under subparagraph (D) an explanation of
the changes in circumstances that necessitated the use
of that other methodology.
``(C) Subsequent assessments.--
``(i) In general.--Except as provided in
clause (ii), if, after an assessment of a major
rule or a high-impact rule under subparagraph
(A), an agency determines that the rule will
remain in effect with or without modification,
the agency shall--
``(I) determine a specific time, as
appropriate to the rule and not more
than 10 years after the date on which
the agency completes the assessment,
under which the agency shall conduct
another assessment of the rule in
accordance with subparagraph (A); and
``(II) if the assessment conducted
under subclause (I) does not result in
a repeal of the rule, periodically
assess the rule in accordance with
subparagraph (A) to ensure that the
rule continues to meet the regulatory
objective.
``(ii) Exemption.--The Administrator may
exempt an agency from conducting a subsequent
assessment of a rule under clause (i) if the
Administrator determines that there is a
foreseeable and apparent need for the rule
beyond the timeframe required under clause
(i)(I).
``(D) Publication.--Not later than 180 days after
the date on which an agency completes an assessment of
a major rule or a high-impact rule under subparagraph
(A), the agency shall publish a notice of availability
of the results of the assessment in the Federal
Register, including the specific time for any
subsequent assessment of the rule under subparagraph
(C)(i), if applicable.
``(3) OIRA oversight.--The Administrator shall--
``(A) issue guidance for agencies regarding the
development of the framework under paragraph (1) and
the conduct of the assessments under paragraph (2)(A);
``(B) oversee the timely compliance of agencies
with this subsection;
``(C) ensure that the results of each assessment
conducted under paragraph (2)(A) are--
``(i) published promptly on a centralized
Federal website; and
``(ii) noticed in the Federal Register in
accordance with paragraph (2)(D);
``(D) encourage and assist agencies to streamline
and coordinate the assessment of major rules or high-
impact rules with similar or related regulatory
objectives;
``(E) exempt an agency from including the framework
required under paragraph (1)(B) when publishing a final
major rule or a final high-impact rule if the
Administrator determines that compliance with paragraph
(1)(B) is unnecessary, impracticable, or contrary to
the public interest, as described in subsection
(g)(3)(A)(i); and
``(F) extend the deadline specified by an agency
for an assessment of a major rule or a high-impact rule
under paragraph (1)(B)(iv) or paragraph (2)(C)(i)(I)
for a period of not more than 90 days if the agency
justifies why the agency is unable to complete the
assessment by that deadline.
``(4) Rule of construction.--Nothing in this subsection
shall be construed to affect--
``(A) the authority of an agency to assess or
modify a major rule or a high-impact rule of the agency
earlier than the end of the timeframe specified for the
rule under paragraph (1)(B)(iv); or
``(B) any other provision of law that requires an
agency to conduct retrospective reviews of rules issued
by the agency.
``(5) Applicability.--
``(A) In general.--This subsection shall not apply
to--
``(i) a major rule or a high-impact rule of
an agency--
``(I) that the Administrator
reviewed before the date of enactment
of this subsection;
``(II) for which the agency is
required to conduct a retrospective
review under any other provision of law
that meets or exceeds the requirements
of this subsection, as determined by
the Administrator; or
``(III) for which the authorizing
statute is subject to periodic
reauthorization by Congress not less
frequently than once every 10 years;
``(ii) interpretative rules, general
statements of policy, or rules of agency
organization, procedure, or practice;
``(iii) routine and administrative rules;
or
``(iv) a rule that is reviewed under
section 2222 of the Economic Growth and
Regulatory Paperwork Reduction Act of 1996 (12
U.S.C. 3311).
``(B) Direct and interim final major rule or high-
impact rule.--In the case of a major rule or a high-
impact rule of an agency for which the agency is not
required to issue a notice of proposed rulemaking in
response to an emergency or a statutorily imposed
deadline, the agency shall publish the framework
required under paragraph (1)(B) in the Federal Register
not later than 180 days after the date on which the
agency publishes the rule.
``(6) Recommendations to congress.--If, under an assessment
conducted under paragraph (2), an agency determines that a
major rule or a high-impact rule should be modified or
repealed, the agency may submit to Congress recommendations for
legislation to amend applicable provisions of law if the agency
is prohibited from modifying or repealing the rule under
another provision of law.
``(7) Judicial review.--
``(A) In general.--Judicial review of agency
compliance with this subsection is limited to whether
an agency--
``(i) published the framework for
assessment of a major rule or a high-impact
rule in accordance with paragraph (1); or
``(ii) completed and published the required
assessment of a major rule or a high-impact
rule in accordance with subparagraphs (A) and
(D) of paragraph (2).
``(B) Remedy available.--In granting relief in an
action brought under subparagraph (A), a court may only
issue an order remanding the major rule or the high-
impact rule, as applicable, to the agency to comply
with paragraph (1) or subparagraph (A) or (D) of
paragraph (2), as applicable.
``(C) Effective date of major rule.--If, in an
action brought under subparagraph (A)(i), a court
determines that the agency did not comply, the major
rule or the high-impact rule, as applicable, shall take
effect notwithstanding any order issued by the court.
``(D) Administrator.--Any determination, action, or
inaction of the Administrator under this subsection
shall not be subject to judicial review.''.
SEC. 4. SCOPE OF REVIEW.
Section 706 of title 5, United States Code, is amended--
(1) in the first sentence of the matter preceding paragraph
(1), by striking ``To the extent necessary'' and inserting
``(a) In General.--To the extent necessary''; and
(2) in subsection (a), as so designated--
(A) in paragraph (1), by striking ``and'' at the
end;
(B) in paragraph (2)--
(i) in the matter preceding subparagraph
(A), by inserting ``, or, when appropriate,
remand a matter to an agency without setting
aside,'' after ``set aside''; and
(ii) in subparagraph (F), by striking the
period at the end and inserting ``; and''; and
(C) by striking the flush text following paragraph
(2)(F) and inserting the following:
``(3) with respect to the review of a high-impact rule, as
defined in section 551(16), determine whether the factual
findings of the agency issuing the rule are supported by
substantial evidence.
``(b) Review of Entire Record; Prejudicial Error.--In making a
determination under subsection (a), the court shall review the whole
record or those parts of it cited by a party, and due account shall be
taken of the rule of prejudicial error.
``(c) Preclusion of Review.--The determination of whether a rule is
a major rule within the meaning of subparagraphs (B) and (C) of section
551(18) shall not be subject to judicial review.
``(d) Review of Certain Guidance.--Agency guidance that does not
interpret a statute or rule may be reviewed only under subsection
(a)(2)(D).
``(e) Agency Interpretation of Rules.--The weight that a reviewing
court gives an interpretation by an agency of a rule of that agency
shall depend on the thoroughness evident in the consideration of the
rule by the agency, the validity of the reasoning of the agency, and
the consistency of the interpretation with earlier and later
pronouncements.''.
SEC. 5. ADDED DEFINITIONS.
Section 701(b) of title 5, United States Code, is amended--
(1) in paragraph (1)(H), by striking ``and'' at the end;
(2) by redesignating paragraph (2) as paragraph (3);
(3) by inserting after paragraph (1) the following:
``(2) `guidance' has the meaning given the term in section
551;'';
(4) in paragraph (3), as so redesignated, by striking the
period at the end and inserting ``; and''; and
(5) by adding at the end the following:
``(4) `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.''.
SEC. 6. APPLICATION.
The amendments made by this Act to sections 553, 701(b), and 706 of
title 5, United States Code, shall not apply to any rulemaking, as
defined in section 551 of title 5, United States Code, as amended by
section 2 of this Act, that is pending or completed as of the date of
enactment of this Act.
SEC. 7. TECHNICAL AND CONFORMING AMENDMENTS.
(a) Consumer Product Safety Act.--Section 9(i) of the Consumer
Product Safety Act (15 U.S.C. 2058(i)) is amended, in the first
sentence, by striking ``section 553(e)'' and inserting ``section
553(i)''.
(b) Defense Production Act of 1950.--Section 709(b)(1) of the
Defense Production Act of 1950 (50 U.S.C. 4559(b)(1)) is amended by
striking ``for not less than 30 days, consistent with the requirements
of section 553(b)'' and inserting ``in a manner consistent with the
requirements of section 553(c)''.
(c) Endangered Species Act of 1973.--Section 4(b)(3) of the
Endangered Species Act of 1973 (16 U.S.C. 1533(b)(3)) is amended--
(1) in subparagraph (A), in the first sentence, by striking
``section 553(e)'' and inserting ``section 553(i)''; and
(2) in subparagraph (D)(i), in the first sentence, by
striking ``section 553(e)'' and inserting ``section 553(i)''.
(d) Expedited Funds Availability Act.--Section 609(a) of the
Expedited Funds Availability Act (12 U.S.C. 4008(a)) is amended, in the
matter preceding paragraph (1), by striking ``section 553(c)'' and
inserting ``section 553''.
(e) Federal Hazardous Substances Act.--Section 3 of the Federal
Hazardous Substances Act (15 U.S.C. 1262) is amended--
(1) in subsection (e)(1), by striking ``(other than clause
(B) of the last sentence of subsection (b) of such section) of
title 5 of the United States Code'' and inserting ``of title 5,
United States Code, other than subsection (g)(3) of such
section,''; and
(2) in subsection (j), by striking ``section 553(e)'' and
inserting ``section 553(i)''.
(f) Flammable Fabrics Act.--The Flammable Fabrics Act (15 U.S.C.
1191 et seq.) is amended--
(1) in section 4(k) (15 U.S.C. 1193(k)), in the first
sentence, by striking ``section 553(e)'' and inserting
``section 553(i)''; and
(2) in section 16(c)(2) (15 U.S.C. 1203(c)(2)), by striking
``section 553(b)'' and inserting ``section 553(c)''.
(g) General Education Provisions Act.--Section 411 of the General
Education Provisions Act (20 U.S.C. 1221e-4) is amended, in the second
sentence, by striking ``Notwithstanding the exception provided under
section 553(b) of title 5, such'' and inserting ``Such''.
(h) Housing and Community Development Act of 1992.--The Housing and
Community Development Act of 1992 (12 U.S.C. 4501 et seq.) is amended--
(1) in section 643(b)(3) (42 U.S.C. 13603(b)(3)), in the
first sentence, by striking ``(notwithstanding subsections
(a)(2), (b)(B), and (d)(3) of such section)'' and inserting
``(notwithstanding subsections (a)(2), (g)(3), and (h)(2) of
such section)''; and
(2) in section 685 (42 U.S.C. 13643), in the second
sentence, by striking ``(notwithstanding subsections (a)(2),
(b)(B), and (d)(3) of such section)'' and inserting
``(notwithstanding subsections (a)(2), (g)(3), and (h)(2) of
such section)''.
(i) Marine Mammal Protection Act of 1972.--Section 109(d)(2) of the
Marine Mammal Protection Act of 1972 (16 U.S.C. 1379(d)(2)) is amended,
in the second sentence, by striking ``subsection (d) of such section
553'' and inserting ``subsection (h) of such section 553''.
(j) McKinney-Vento Homeless Assistance Act.--Section 433 of the
McKinney-Vento Homeless Assistance Act (42 U.S.C. 11387) is amended, in
the second sentence, by striking ``(notwithstanding subsections (a)(2),
(b)(B), and (d)(3) of such section)'' and inserting ``(notwithstanding
subsections (a)(2), (g)(3), and (h)(2) of such section)''.
(k) Native American Programs Act of 1974.--Section 814 of the
Native American Programs Act of 1974 (42 U.S.C. 2992b-1) is amended--
(1) in subsection (b)--
(A) by striking paragraph (1);
(B) by redesignating paragraphs (2) and (3) as
paragraphs (1) and (2), respectively;
(C) in paragraph (1), as so redesignated--
(i) in the matter preceding subparagraph
(A), by striking ``Subparagraph (B) of the last
sentence of section 553(b)'' and inserting
``Section 553(g)(3)''; and
(ii) by striking ``(other than an
interpretative rule or a general statement of
policy)''; and
(D) in paragraph (2), as so redesignated, in the
matter preceding subparagraph (A)--
(i) by striking ``The first 2 sentences of
section 553(b)'' and inserting ``Section
553(c)''; and
(ii) by striking ``an interpretative rule,
a general statement of policy, or''; and
(2) in subsection (c)--
(A) in the matter preceding paragraph (1), by
striking ``section 553(d)'' and inserting ``section
553(h)''; and
(B) in the flush text following paragraph (2), by
striking ``the first 2 sentences of section 553(b)''
and inserting ``section 553(c)''.
(l) Natural Gas Policy Act of 1978.--Section 502(b) of the Natural
Gas Policy Act of 1978 (15 U.S.C. 3412(b)) is amended, in the third
sentence, by striking ``section 553(d)(3)'' and inserting ``section
553(h)(2)''.
(m) Noise Control Act of 1972.--Section 6(c)(2) of the Noise
Control Act of 1972 (42 U.S.C. 4905(c)(2)) is amended by striking ``the
first sentence of section 553(c) of title 5'' and inserting ``section
553(c)(4)(A) of title 5''.
(n) Poison Prevention Packaging Act of 1970.--The Poison Prevention
Packaging Act of 1970 (15 U.S.C. 1471 et seq.) is amended--
(1) in section 5(a) (15 U.S.C. 1474(a)), in the first
sentence, by striking ``other than paragraph (3)(B) of the last
sentence of subsection (b) of such section'' and inserting
``other than subsection (g)(3) of such section''; and
(2) in section 7(c)(2) (15 U.S.C. 1476(c)(2)), by striking
``section 553(b)'' and inserting ``section 553(c)''.
(o) Poultry Products Inspection Act.--Section 14(c) of the Poultry
Products Inspection Act (21 U.S.C. 463(c)) is amended by striking
``section 553(c) of title 5, United States Code'' and inserting
``section 553(c)(4) of title 5, United States Code,''.
(p) Rural Electrification Act of 1936.--Section 206(a)(1) of the
Rural Electrification Act of 1936 (7 U.S.C. 927(a)(1)) is amended by
striking ``subsections (b) through (e)'' and inserting ``subsections
(b) through (k)''.
(q) Social Security Act.--The Social Security Act (42 U.S.C. 301 et
seq.) is amended--
(1) in section 221(j) (42 U.S.C. 421(j)), in the flush text
following paragraph (3), by striking ``in accordance with
section 553(b)(A) of title 5, United States Code'' and all that
follows through ``and statements'' and inserting ``in
accordance with section 553(g)(2) of title 5, United States
Code, of guidance or rules of agency organization, procedure,
or practice relating to consultative examinations if such
guidance and rules''; and
(2) in section 1871(b)(2) (42 U.S.C. 1395hh(b)(2)), by
striking subparagraph (C) and inserting the following:
``(C) subsection (c) of section 553 of title 5,
United States Code, does not apply pursuant to
subsection (g)(3) of such section.''.
(r) Title 5, United States Code.--Title 5, United States Code, is
amended--
(1) in section 556(d), in the sixth sentence, by striking
``rule making'' and inserting ``rulemaking'';
(2) in section 557(b), in the fourth sentence of the matter
preceding paragraph (1), by striking ``rule making'' and
inserting ``rulemaking'';
(3) in section 562(11), by striking ``means `rule making'
as that term is defined in section 551(5) of this title'' and
inserting ``has the meaning given the term in section 551'';
(4) in section 601(2), by striking ``section 553(b)'' and
inserting ``section 553(c)'';
(5) in section 1103(b)(1), by striking ``section 553(b)(1),
(2), and (3)'' and inserting ``section 553(c)''; and
(6) in section 1105, by striking ``subsections (b), (c),
and (d)'' and inserting ``subsections (b) through (h) and
(j)''.
(s) Title 41, United States Code.--Section 8503(a)(2) of title 41,
United States Code, is amended by striking ``section 553(b) to (e)''
and inserting ``section 553''.
(t) Title 46, United States Code.--Section 14104(b) of title 46,
United States Code, is amended, in the second sentence, by striking
``shall be considered to be an interpretive regulation for purposes of
section 553 of title 5'' and inserting ``shall be subject to section
553 of title 5''.
(u) Toxic Substances Control Act.--Section 19(c)(1)(B)(ii) of the
Toxic Substances Control Act (15 U.S.C. 2618(c)(1)(B)(ii)) is amended
by striking ``section 553(c)'' and inserting ``section 553(f)(2)''.
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