II 

Calendar No. 477 

112TH CONGRESS 

2D SESSION H. R. 4078 

IN THE SENATE OF THE UNITED STATES 

JULY 30, 2012 

Received; read the first time 

JULY 31, 2012 

Read the second time and placed on the calendar 

AN ACT 

To provide that no agency may take any significant regulatory action until the unemployment rate is equal to 

or less than 6.0 percent. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Red Tape Reduction 

5 and Small Business Job Creation Act’’. 

6 SEC. 2. TABLE OF CONTENTS. 

7 The table of contents for this Act is as follows: 

Sec. 1. Short title. 

Sec. 2. Table of contents. 

TITLE I—REGULATORY FREEZE FOR JOBS 


srobinson on DSK4SPTVN1PROD with BILLS
2 

HR 4078 PCS

Sec. 101. Short title. 

Sec. 102. Moratorium on significant regulatory actions. 

Sec. 103. Waivers and exceptions. 

Sec. 104. Judicial review. 

Sec. 105. Definitions. 

TITLE II—MIDNIGHT RULE RELIEF 

Sec. 201. Short title. 

Sec. 202. Moratorium on midnight rules. 

Sec. 203. Special rule on statutory, regulatory, and judicial deadlines. 

Sec. 204. Exception. 

Sec. 205. Definitions. 

TITLE III—REGULATORY DECREES AND SETTLEMENTS 

Sec. 301. Short title. 

Sec. 302. Consent decree and settlement reform. 

Sec. 303. Motions to modify consent decrees. 

Sec. 304. Effective date. 

TITLE IV—UNFUNDED MANDATES INFORMATION AND 

TRANSPARENCY 

Sec. 401. Short title. 

Sec. 402. Purpose. 

Sec. 403. Providing for Congressional Budget Office studies on policies involving changes in conditions of grant aid. 

Sec. 404. Clarifying the definition of direct costs to reflect Congressional Budget Office practice. 

Sec. 405. Expanding the scope of reporting requirements to include regulations 

imposed by independent regulatory agencies. 

Sec. 406. Amendments to replace Office of Management and Budget with Office of Information and Regulatory Affairs. 

Sec. 407. Applying substantive point of order to private sector mandates. 

Sec. 408. Regulatory process and principles. 

Sec. 409. Expanding the scope of statements to accompany significant regulatory actions. 

Sec. 410. Enhanced stakeholder consultation. 

Sec. 411. New authorities and responsibilities for Office of Information and 

Regulatory Affairs. 

Sec. 412. Retrospective analysis of existing Federal regulations. 

Sec. 413. Expansion of judicial review. 

TITLE V—IMPROVED COORDINATION OF AGENCY ACTIONS ON 

ENVIRONMENTAL DOCUMENTS 

Sec. 501. Short title. 

Sec. 502. Coordination of agency administrative operations for efficient decisionmaking. 

TITLE VI—SECURITIES AND EXCHANGE COMMISSION 

REGULATORY ACCOUNTABILITY 

Sec. 601. Short title. 


srobinson on DSK4SPTVN1PROD with BILLS
3 

HR 4078 PCS

Sec. 602. Consideration by the Securities and Exchange Commission of the 

costs and benefits of its regulations and certain other agency 

actions. 

Sec. 603. Sense of Congress relating to other regulatory entities. 

Sec. 604. Interpretive guidance null and void. 

Sec. 605. Other SEC action prohibited. 

TITLE VII—CONSIDERATION BY COMMODITY FUTURES TRADING 

COMMISSION OF CERTAIN COSTS AND BENEFITS 

Sec. 701. Consideration by the Commodity Futures Trading Commission of the 

costs and benefits of its regulations and orders. 

TITLE VIII—ENSURING HIGH STANDARDS FOR AGENCY USE OF 

SCIENTIFIC INFORMATION 

Sec. 801. Requirement for final guidelines. 

TITLE IX—TRACKING THE COST TO TAXPAYERS OF FEDERAL 

LITIGATION 

Sec. 901. Short title. 

Sec. 902. Modification of equal access to justice provisions. 

1 TITLE I—REGULATORY FREEZE 

2 FOR JOBS 

3 SEC. 101. SHORT TITLE. 

4 This title may be cited as the ‘‘Regulatory Freeze for 

5 Jobs Act of 2012’’. 

6 SEC. 102. MORATORIUM ON SIGNIFICANT REGULATORY AC7 TIONS. 

8 (a) MORATORIUM.—An agency may not take any sig9 nificant regulatory action during the period beginning on 

10 the date of the enactment of this Act and ending on the 

11 date that the Secretary of Labor submits the report under 

12 subsection (b). 

13 (b) DETERMINATION.—The Secretary of Labor shall 

14 submit a report to the Director of the Office of Manage15 ment and Budget when the Secretary determines that the 


srobinson on DSK4SPTVN1PROD with BILLS
4 

HR 4078 PCS

1 Bureau of Labor Statistics average of monthly unemploy2 ment rates for any quarter beginning after the date of the 

3 enactment of this Act is equal to or less than 6.0 percent. 

4 SEC. 103. WAIVERS AND EXCEPTIONS. 

5 (a) IN GENERAL.—Notwithstanding any other provi6 sion of this title, an agency may take a significant regu7 latory action only in accordance with subsection (b), (c), 

8 or (d) during the period described in section 102(a). 

9 (b) PRESIDENTIAL WAIVER.—An agency may take a 

10 significant regulatory action if the President determines 

11 by Executive Order that the significant regulatory action 

12 is— 

13 (1) necessary because of an imminent threat to 

14 health or safety or other emergency; 

15 (2) necessary for the enforcement of criminal or 

16 civil rights laws; 

17 (3) necessary for the national security of the 

18 United States; or 

19 (4) issued pursuant to any statute imple20 menting an international trade agreement. 

21 (c) DEREGULATORY EXCEPTION.—An agency may 

22 take a significant regulatory action if the Administrator 

23 of the Office of Information and Regulatory Affairs of the 

24 Office of Management and Budget certifies in writing that 


srobinson on DSK4SPTVN1PROD with BILLS
5 

HR 4078 PCS

1 the significant regulatory action is limited to repealing an 

2 existing rule. 

3 (d) CONGRESSIONAL WAIVERS.— 

4 (1) SUBMISSION.—For any significant regu5 latory action not eligible for a Presidential waiver 

6 pursuant to subsection (b), the President may sub7 mit a written request to Congress for a waiver of the 

8 application of section 102 for such action. 

9 (2) CONTENTS.—A submission by the President 

10 under this subsection shall— 

11 (A) identify the significant regulatory ac12 tion and the scope of the requested waiver; 

13 (B) describe all the reasons the significant 

14 regulatory action is necessary to protect the 

15 public health, safety, or welfare; and 

16 (C) include an explanation of why the sig17 nificant regulatory action is ineligible for a 

18 Presidential waiver under subsection (b). 

19 (3) CONGRESSIONAL ACTION.—Congress shall 

20 give expeditious consideration and take appropriate 

21 legislative action with respect to any submission by 

22 the President under this subsection. 

23 SEC. 104. JUDICIAL REVIEW. 

24 (a) REVIEW.—Any party adversely affected or ag25 grieved by any rule or guidance resulting from a reguVerDate Mar 15 2010 22:43 Jul 31, 2012 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H4078.PCS H4078

srobinson on DSK4SPTVN1PROD with BILLS
6 

HR 4078 PCS

1 latory action taken in violation of this title is entitled to 

2 judicial review in accordance with chapter 7 of title 5, 

3 United States Code. Any determination by either the 

4 President or the Secretary of Labor under this title shall 

5 be subject to judicial review under such chapter. 

6 (b) JURISDICTION.—Each court having jurisdiction 

7 to review any rule or guidance resulting from a significant 

8 regulatory action for compliance with any other provision 

9 of law shall have jurisdiction to review all claims under 

10 this title. 

11 (c) RELIEF.—In granting any relief in any civil ac12 tion under this section, the court shall order the agency 

13 to take corrective action consistent with this title and 

14 chapter 7 of title 5, United States Code, including re15 manding the rule or guidance resulting from the signifi16 cant regulatory action to the agency and enjoining the ap17 plication or enforcement of that rule or guidance, unless 

18 the court finds by a preponderance of the evidence that 

19 application or enforcement is required to protect against 

20 an imminent and serious threat to the national security 

21 of the United States. 

22 (d) REASONABLE ATTORNEY’S FEES FOR SMALL

23 BUSINESSES.—The court shall award reasonable attor24 ney’s fees and costs to a substantially prevailing small 

25 business in any civil action arising under this title. A small 


srobinson on DSK4SPTVN1PROD with BILLS
7 

HR 4078 PCS

1 business may qualify as substantially prevailing even with2 out obtaining a final judgment in its favor if the agency 

3 that took the significant regulatory action changes its po4 sition after the civil action is filed. Such award shall be 

5 paid out of the administrative budget of the office in the 

6 agency that took the challenged agency action. 

7 (e) LIMITATION ON COMMENCING CIVIL ACTION.— 

8 A party may seek and obtain judicial review during the 

9 1-year period beginning on the date of the challenged 

10 agency action or within 90 days after an enforcement ac11 tion or notice thereof, except that where another provision 

12 of law requires that a civil action be commenced before 

13 the expiration of that 1-year period, such lesser period 

14 shall apply. 

15 (f) SMALL BUSINESS DEFINED.—In this section, the 

16 term ‘‘small business’’ means any business, including an 

17 unincorporated business or a sole proprietorship, that em18 ploys not more than 500 employees or that has a net 

19 worth of less than $7,000,000 on the date a civil action 

20 arising under this title is filed. 

21 SEC. 105. DEFINITIONS. 

22 In this title: 

23 (1) AGENCY.—The term ‘‘agency’’ has the 

24 meaning given that term under section 551 of title 


srobinson on DSK4SPTVN1PROD with BILLS
8 

HR 4078 PCS

1 5, United States Code, except that such term does 

2 not include— 

3 (A) the Board of Governors of the Federal 

4 Reserve System; 

5 (B) the Federal Open Market Committee; 

6 or 

7 (C) the United States Postal Service. 

8 (2) REGULATORY ACTION.—The term ‘‘regu9 latory action’’ means any substantive action by an 

10 agency that promulgates or is expected to lead to the 

11 promulgation of a final rule or regulation, including 

12 a notice of inquiry, an advance notice of proposed 

13 rulemaking, and a notice of proposed rulemaking. 

14 (3) RULE.—The term ‘‘rule’’ has the meaning 

15 given that term under section 551 of title 5, United 

16 States Code. 

17 (4) SIGNIFICANT REGULATORY ACTION.—The 

18 term ‘‘significant regulatory action’’ means any reg19 ulatory action that is likely to result in a rule or 

20 guidance that the Administrator of the Office of In21 formation and Regulatory Affairs of the Office of 

22 Management and Budget finds is likely to have an 

23 annual cost to the economy of $50,000,000 or more 

24 or adversely affect in a material way the economy, 

25 a sector of the economy, productivity, competition, 


srobinson on DSK4SPTVN1PROD with BILLS
9 

HR 4078 PCS

1 jobs, the environment, public health or safety, small 

2 entities, or State, local, or tribal governments or 

3 communities. In determining the annual cost to the 

4 economy under this paragraph, the Administrator 

5 shall take into account any expected change in rev6 enue of businesses that will be caused by such regu7 latory action, as well as any change in revenue of 

8 businesses that has already taken place as busi9 nesses prepare for the implementation of the regu10 latory action. If meeting that definition, such term 

11 includes any requirement by the Secretary of the 

12 Treasury, except to the extent provided in Treasury 

13 Regulations as in effect on February 21, 2011, that 

14 a payor of interest make an information return in 

15 the case of interest— 

16 (1) which is described in section 871(i)(2)(A) of 

17 the Internal Revenue Code of 1986, and 

18 (2) which is paid— 

19 (A) to a nonresident alien, and 

20 (B) on a deposit maintained at an office 

21 within the United States. 

22 (5) SMALL ENTITY.—The term ‘‘small entity’’ 

23 has the meaning given that term under section 

24 601(6) of title 5, United States Code. 


srobinson on DSK4SPTVN1PROD with BILLS
10 

HR 4078 PCS

1 TITLE II—MIDNIGHT RULE 

2 RELIEF 

3 SEC. 201. SHORT TITLE. 

4 This title may be cited as the ‘‘Midnight Rule Relief 

5 Act of 2012’’. 

6 SEC. 202. MORATORIUM ON MIDNIGHT RULES. 

7 Except as provided under sections 203 and 204, dur8 ing the moratorium period, an agency may not propose 

9 or finalize any midnight rule that the Administrator of the 

10 Office of Information and Regulatory Affairs of the Office 

11 of Management and Budget finds is likely to result in an 

12 annual cost to the economy of $50,000,000 or more or 

13 adversely affect in a material way the economy, a sector 

14 of the economy, productivity, competition, jobs, the envi15 ronment, public health or safety, small entities, or State, 

16 local, or tribal governments or communities. 

17 SEC. 203. SPECIAL RULE ON STATUTORY, REGULATORY, 

18 AND JUDICIAL DEADLINES. 

19 (a) IN GENERAL.—Section 202 shall not apply with 

20 respect to any deadline— 

21 (1) for, relating to, or involving any midnight 

22 rule; 

23 (2) that was established before the beginning of 

24 the moratorium period; and 


srobinson on DSK4SPTVN1PROD with BILLS
11 

HR 4078 PCS

1 (3) that is required to be taken during the mor2 atorium period. 

3 (b) PUBLICATION OF DEADLINES.—Not later than 

4 30 days after the beginning of a moratorium period, the 

5 Administrator of the Office of Information and Regulatory 

6 Affairs of the Office of Management and Budget shall 

7 identify and publish in the Federal Register a list of dead8 lines covered by subsection (a). 

9 SEC. 204. EXCEPTION. 

10 (a) EMERGENCY EXCEPTION.—Section 202 shall not 

11 apply to a midnight rule if the President determines that 

12 the midnight rule is— 

13 (1) necessary because of an imminent threat to 

14 health or safety or other emergency; 

15 (2) necessary for the enforcement of criminal or 

16 civil rights laws; 

17 (3) necessary for the national security of the 

18 United States; or 

19 (4) issued pursuant to any statute imple20 menting an international trade agreement. 

21 (b) DEREGULATORY EXCEPTION.—Section 202 shall 

22 not apply to a midnight rule that the Administrator of 

23 the Office of Information and Regulatory Affairs within 

24 the Office of Management and Budget certifies in writing 

25 is limited to repealing an existing rule. 


srobinson on DSK4SPTVN1PROD with BILLS
12 

HR 4078 PCS

1 (c) NOTICE OF EXCEPTIONS.—Not later than 30 

2 days after a determination under subsection (a) or a cer3 tification is made under subsection (b), the head of the 

4 relevant agency shall publish in the Federal Register any 

5 midnight rule excluded from the moratorium period due 

6 to an exception under this section. 

7 SEC. 205. DEFINITIONS. 

8 In this title: 

9 (1) AGENCY.—The term ‘‘agency’’ has the 

10 meaning given that term under section 551 of title 

11 5, United States Code, except that such term does 

12 not include— 

13 (A) the Board of Governors of the Federal 

14 Reserve System; 

15 (B) the Federal Open Market Committee; 

16 or 

17 (C) the United States Postal Service. 

18 (2) DEADLINE.—The term ‘‘deadline’’ means 

19 any date certain for fulfilling any obligation or exer20 cising any authority established by or under any 

21 Federal statute or rule, or by or under any court 

22 order implementing any Federal statute, regulation, 

23 or rule. 

24 (3) MORATORIUM PERIOD.—The term ‘‘morato25 rium period’’ means the day after the day referred 


srobinson on DSK4SPTVN1PROD with BILLS
13 

HR 4078 PCS

1 to in section 1 of title 3, United States Code, 

2 through January 20 of the following year, in which 

3 a President is not serving a consecutive term. 

4 (4) MIDNIGHT RULE.—The term ‘‘midnight 

5 rule’’ means an agency statement of general applica6 bility and future effect, issued during the morato7 rium period, that is intended to have the force and 

8 effect of law and is designed— 

9 (A) to implement, interpret, or prescribe 

10 law or policy; or 

11 (B) to describe the procedure or practice 

12 requirements of an agency. 

13 (5) RULE.—The term ‘‘rule’’ has the meaning 

14 given that term under section 551 of title 5, United 

15 States Code. 

16 (6) SMALL ENTITY.—The term ‘‘small entity’’ 

17 has the meaning given that term under section 

18 601(6) of title 5, United States Code. 

19 TITLE III—REGULATORY 

20 DECREES AND SETTLEMENTS 

21 SEC. 301. SHORT TITLE. 

22 This title may be cited as the ‘‘Sunshine for Regu23 latory Decrees and Settlements Act of 2012’’. 


srobinson on DSK4SPTVN1PROD with BILLS
14 

HR 4078 PCS

1 SEC. 302. CONSENT DECREE AND SETTLEMENT REFORM. 

2 (a) APPLICATION.—The provisions of this section 

3 apply in the case of— 

4 (1) a consent decree or settlement agreement in 

5 an action to compel agency action alleged to be un6 lawfully withheld or unreasonably delayed that per7 tains to a regulatory action that affects the rights of 

8 private parties other than the plaintiff or the rights 

9 of State, local or Tribal government entities— 

10 (A) brought under chapter 7 of title 5, 

11 United States Code; or 

12 (B) brought under any other statute au13 thorizing such an action; and 

14 (2) any other consent decree or settlement 

15 agreement that requires agency action that pertains 

16 to a regulatory action that affects the rights of pri17 vate parties other than the plaintiff or the rights of 

18 State, local or Tribal government entities. 

19 (b) IN GENERAL.—In the case of an action to be re20 solved by a consent decree or a settlement agreement de21 scribed in paragraph (1), the following shall apply: 

22 (1) The complaint in the action, the consent de23 cree or settlement agreement, the statutory basis for 

24 the consent decree or settlement agreement and its 

25 terms, and any award of attorneys’ fees or costs 


srobinson on DSK4SPTVN1PROD with BILLS
15 

HR 4078 PCS

1 shall be published, including electronically, in a read2 ily accessible manner by the defendant agency. 

3 (2) Until the conclusion of an opportunity for 

4 affected parties to intervene in the action, a party 

5 may not file with the court a motion for a consent 

6 decree or to dismiss the case pursuant to a settle7 ment agreement. 

8 (3) In considering a motion to intervene by any 

9 party that would be affected by the agency action in 

10 dispute, the court shall presume, subject to rebuttal, 

11 that the interests of that party would not be rep12 resented adequately by the current parties to the ac13 tion. In considering a motion to intervene filed by a 

14 State, local or Tribal government entity, the court 

15 shall take due account of whether the movant— 

16 (A) administers jointly with the defendant 

17 agency the statutory provisions that give rise to 

18 the regulatory duty alleged in the complaint; or 

19 (B) administers State, local or Tribal regu20 latory authority that would be preempted by the 

21 defendant agency’s discharge of the regulatory 

22 duty alleged in the complaint. 

23 (4) If the court grants a motion to intervene in 

24 the action, the court shall include the plaintiff, the 

25 defendant agency, and the intervenors in settlement 


srobinson on DSK4SPTVN1PROD with BILLS
16 

HR 4078 PCS

1 discussions. Settlement efforts conducted shall be 

2 pursuant to a court’s mediation or alternative dis3 pute resolution program, or by a district judge, mag4 istrate judge, or special master, as determined by 

5 the assigned judge. 

6 (5) The defendant agency shall publish in the 

7 Federal Register and by electronic means any pro8 posed consent decree or settlement agreement for no 

9 fewer than 60 days of public comment before filing 

10 it with the court, including a statement of the statu11 tory basis for the proposed consent decree or settle12 ment agreement and its terms, allowing comment on 

13 any issue related to the matters alleged in the com14 plaint or addressed or affected by the consent decree 

15 or settlement agreement. 

16 (6) The defendant agency shall— 

17 (A) respond to public comments received 

18 under paragraph (5); and 

19 (B) when moving that the court enter the 

20 consent decree or for dismissal pursuant to the 

21 settlement agreement— 

22 (i) inform the court of the statutory 

23 basis for the proposed consent decree or 

24 settlement agreement and its terms; 


srobinson on DSK4SPTVN1PROD with BILLS
17 

HR 4078 PCS

1 (ii) submit to the court a summary of 

2 the public comments and agency responses; 

3 (iii) certify the index to the adminis4 trative record of the notice and comment 

5 proceeding to the court; and 

6 (iv) make that record fully accessible 

7 to the court. 

8 (7) The court shall include in the judicial 

9 record the full administrative record, the index to 

10 which was certified by the agency under paragraph 

11 (6). 

12 (8) If the consent decree or settlement agree13 ment requires an agency action by a date certain, 

14 the agency shall, when moving for entry of the con15 sent decree or dismissal based on the settlement 

16 agreement— 

17 (A) inform the court of any uncompleted 

18 mandatory duties to take regulatory action that 

19 the decree or agreement does not address; 

20 (B) how the decree or agreement, if ap21 proved, would affect the discharge of those du22 ties; and 

23 (C) why the decree’s or agreement’s effects 

24 on the order in which the agency discharges its 

25 mandatory duties is in the public interest. 


srobinson on DSK4SPTVN1PROD with BILLS
18 

HR 4078 PCS

1 (9) The court shall presume, subject to rebut2 tal, that it is proper to allow amicus participation by 

3 any party who filed public comments on the consent 

4 decree or settlement agreement during the court’s 

5 consideration of a motion to enter the decree or dis6 miss the case on the basis of the agreement. 

7 (10) The court shall ensure that the proposed 

8 consent decree or settlement agreement allows suffi9 cient time and procedure for the agency to comply 

10 with chapter 5 of title 5, United States Code, and 

11 other applicable statutes that govern rule making 

12 and, unless contrary to the public interest, the provi13 sions of any executive orders that govern rule mak14 ing. 

15 (11) The defendant agency may, at its discre16 tion, hold a public hearing pursuant to notice in the 

17 Federal Register and by electronic means, on wheth18 er to enter into the consent decree or settlement 

19 agreement. If such a hearing is held, then, in ac20 cordance with paragraph (6), the agency shall sub21 mit to the court a summary of the proceedings and 

22 the certified index to the hearing record, full access 

23 to the hearing record shall be given to the court, and 

24 the full hearing record shall be included in the judi25 cial record. 


srobinson on DSK4SPTVN1PROD with BILLS
19 

HR 4078 PCS

1 (12) The Attorney General, in cases litigated by 

2 the Department of Justice, or the head of the de3 fendant Federal agency, in cases litigated independ4 ently by that agency, shall certify to the court his 

5 or her approval of any proposed consent decree or 

6 settlement agreement that contains any of the fol7 lowing terms— 

8 (A) in the case of a consent decree, terms 

9 that— 

10 (i) convert into mandatory duties the 

11 otherwise discretionary authorities of an 

12 agency to propose, promulgate, revise or 

13 amend regulations; 

14 (ii) commit the agency to expend 

15 funds that Congress has not appropriated 

16 and that have not been budgeted for the 

17 action in question, or commit an agency to 

18 seek a particular appropriation or budget 

19 authorization; 

20 (iii) divest the agency of discretion 

21 committed to it by Congress or the Con22 stitution, whether such discretionary power 

23 was granted to respond to changing cir24 cumstances, to make policy or managerial 


srobinson on DSK4SPTVN1PROD with BILLS
20 

HR 4078 PCS

1 choices, or to protect the rights of third 

2 parties; or 

3 (iv) otherwise afford relief that the 

4 court could not enter on its own authority 

5 upon a final judgment in the litigation; or 

6 (B) in the case of a settlement agreement, 

7 terms that— 

8 (i) interfere with the agency’s author9 ity to revise, amend, or issue rules through 

10 the procedures set forth in chapter 5 of 

11 title 5, United States Code, or any other 

12 statute or executive order prescribing rule 

13 making procedures for rule makings that 

14 are the subject of the settlement agree15 ment; 

16 (ii) commit the agency to expend 

17 funds that Congress has not appropriated 

18 and that have not been budgeted for the 

19 action in question; or 

20 (iii) provide a remedy for the agency’s 

21 failure to comply with the terms of the set22 tlement agreement other than the revival 

23 of the action resolved by the settlement 

24 agreement, if the agreement commits the 

25 agency to exercise its discretion in a parVerDate Mar 15 2010 22:43 Jul 31, 2012 Jkt 019200 PO 00000 Frm 00020 Fmt 6652 Sfmt 6201 E:\BILLS\H4078.PCS H4078

srobinson on DSK4SPTVN1PROD with BILLS
21 

HR 4078 PCS

1 ticular way and such discretionary power 

2 was committed to the agency by Congress 

3 or the Constitution to respond to changing 

4 circumstances, to make policy or manage5 rial choices, or to protect the rights of 

6 third parties. 

7 (c) ANNUAL REPORTS.—Each agency shall submit an 

8 annual report to Congress on the number, identity, and 

9 content of complaints, consent decrees, and settlement 

10 agreements described in paragraph (1) for that year, the 

11 statutory basis for each consent decree or settlement 

12 agreement and its terms, and any awards of attorneys fees 

13 or costs in actions resolved by such decrees or agreements. 

14 SEC. 303. MOTIONS TO MODIFY CONSENT DECREES. 

15 When a defendant agency moves the court to modify 

16 a previously entered consent decree described under sec17 tion 302 and the basis of the motion is that the terms 

18 of the decree are no longer fully in the public interest due 

19 to the agency’s obligations to fulfill other duties or due 

20 to changed facts and circumstances, the court shall review 

21 the motion and the consent decree de novo. 

22 SEC. 304. EFFECTIVE DATE. 

23 The provisions of this title apply to any covered con24 sent decree or settlement agreement proposed to a court 

25 after the date of enactment of this title. 


srobinson on DSK4SPTVN1PROD with BILLS
22 

HR 4078 PCS

1 TITLE IV—UNFUNDED MAN2 DATES INFORMATION AND 

3 TRANSPARENCY 

4 SEC. 401. SHORT TITLE. 

5 This title may be cited as the ‘‘Unfunded Mandates 

6 Information and Transparency Act of 2012’’. 

7 SEC. 402. PURPOSE. 

8 The purpose of this title is— 

9 (1) to improve the quality of the deliberations 

10 of Congress with respect to proposed Federal man11 dates by— 

12 (A) providing Congress and the public with 

13 more complete information about the effects of 

14 such mandates; and 

15 (B) ensuring that Congress acts on such 

16 mandates only after focused deliberation on 

17 their effects; and 

18 (2) to enhance the ability of Congress and the 

19 public to identify Federal mandates that may impose 

20 undue harm on consumers, workers, employers, 

21 small businesses, and State, local, and tribal govern22 ments. 


srobinson on DSK4SPTVN1PROD with BILLS
23 

HR 4078 PCS

1 SEC. 403. PROVIDING FOR CONGRESSIONAL BUDGET OF2 FICE STUDIES ON POLICIES INVOLVING 

3 CHANGES IN CONDITIONS OF GRANT AID. 

4 Section 202(g) of the Congressional Budget Act of 

5 1974 (2 U.S.C. 602(g)) is amended by adding at the end 

6 the following new paragraph: 

7 ‘‘(3) ADDITIONAL STUDIES.—At the request of 

8 any Chairman or ranking member of the minority of 

9 a Committee of the Senate or the House of Rep10 resentatives, the Director shall conduct an assess11 ment comparing the authorized level of funding in a 

12 bill or resolution to the prospective costs of carrying 

13 out any changes to a condition of Federal assistance 

14 being imposed on State, local, or tribal governments 

15 participating in the Federal assistance program con16 cerned or, in the case of a bill or joint resolution 

17 that authorizes such sums as are necessary, an as18 sessment of an estimated level of funding compared 

19 to such costs.’’. 

20 SEC. 404. CLARIFYING THE DEFINITION OF DIRECT COSTS 

21 TO REFLECT CONGRESSIONAL BUDGET OF22 FICE PRACTICE. 

23 Section 421(3) of the Congressional Budget Act of 

24 1974 (2 U.S.C. 658(3)(A)(i)) is amended— 

25 (1) in subparagraph (A)(i), by inserting ‘‘incur 

26 or’’ before ‘‘be required’’; and 


srobinson on DSK4SPTVN1PROD with BILLS
24 

HR 4078 PCS

1 (2) in subparagraph (B), by inserting after ‘‘to 

2 spend’’ the following: ‘‘or could forgo in profits, in3 cluding costs passed on to consumers or other enti4 ties taking into account, to the extent practicable, 

5 behavioral changes,’’. 

6 SEC. 405. EXPANDING THE SCOPE OF REPORTING RE7 QUIREMENTS TO INCLUDE REGULATIONS IM8 POSED BY INDEPENDENT REGULATORY 

9 AGENCIES. 

10 Paragraph (1) of section 421 of the Congressional 

11 Budget Act of 1974 (2 U.S.C. 658) is amended by striking 

12 ‘‘, but does not include independent regulatory agencies’’ 

13 and inserting ‘‘, except it does not include the Board of 

14 Governors of the Federal Reserve System or the Federal 

15 Open Market Committee’’. 

16 SEC. 406. AMENDMENTS TO REPLACE OFFICE OF MANAGE17 MENT AND BUDGET WITH OFFICE OF INFOR18 MATION AND REGULATORY AFFAIRS. 

19 The Unfunded Mandates Reform Act of 1995 (Public 

20 Law 104–4; 2 U.S.C. 1511 et seq.) is amended— 

21 (1) in section 103(c) (2 U.S.C. 1511(c))— 

22 (A) in the subsection heading, by striking 

23 ‘‘OFFICE OF MANAGEMENT AND BUDGET’’ and 

24 inserting ‘‘OFFICE OF INFORMATION AND REG25 ULATORY AFFAIRS’’; and 


srobinson on DSK4SPTVN1PROD with BILLS
25 

HR 4078 PCS

1 (B) by striking ‘‘Director of the Office of 

2 Management and Budget’’ and inserting ‘‘Ad3 ministrator of the Office of Information and 

4 Regulatory Affairs’’; 

5 (2) in section 205(c) (2 U.S.C. 1535(c))— 

6 (A) in the subsection heading, by striking 

7 ‘‘OMB’’; and 

8 (B) by striking ‘‘Director of the Office of 

9 Management and Budget’’ and inserting ‘‘Ad10 ministrator of the Office of Information and 

11 Regulatory Affairs’’; and 

12 (3) in section 206 (2 U.S.C. 1536), by striking 

13 ‘‘Director of the Office of Management and Budget’’ 

14 and inserting ‘‘Administrator of the Office of Infor15 mation and Regulatory Affairs’’. 

16 SEC. 407. APPLYING SUBSTANTIVE POINT OF ORDER TO 

17 PRIVATE SECTOR MANDATES. 

18 Section 425(a)(2) of the Congressional Budget Act 

19 of 1974 (2 U.S.C. 658d(a)(2)) is amended— 

20 (1) by striking ‘‘Federal intergovernmental 

21 mandates’’ and inserting ‘‘Federal mandates’’; and 

22 (2) by inserting ‘‘or 424(b)(1)’’ after ‘‘section 

23 424(a)(1)’’. 


srobinson on DSK4SPTVN1PROD with BILLS
26 

HR 4078 PCS

1 SEC. 408. REGULATORY PROCESS AND PRINCIPLES. 

2 Section 201 of the Unfunded Mandates Reform Act 

3 of 1995 (2 U.S.C. 1531) is amended to read as follows: 

4 ‘‘SEC. 201. REGULATORY PROCESS AND PRINCIPLES. 

5 ‘‘(a) IN GENERAL.—Each agency shall, unless other6 wise expressly prohibited by law, assess the effects of Fed7 eral regulatory actions on State, local, and tribal govern8 ments and the private sector (other than to the extent that 

9 such regulatory actions incorporate requirements specifi10 cally set forth in law) in accordance with the following 

11 principles: 

12 ‘‘(1) Each agency shall identify the problem 

13 that it intends to address (including, if applicable, 

14 the failures of private markets or public institutions 

15 that warrant new agency action) as well as assess 

16 the significance of that problem. 

17 ‘‘(2) Each agency shall examine whether exist18 ing regulations (or other law) have created, or con19 tributed to, the problem that a new regulation is in20 tended to correct and whether those regulations (or 

21 other law) should be modified to achieve the in22 tended goal of regulation more effectively. 

23 ‘‘(3) Each agency shall identify and assess 

24 available alternatives to direct regulation, including 

25 providing economic incentives to encourage the de26 sired behavior, such as user fees or marketable perVerDate Mar 15 2010 22:43 Jul 31, 2012 Jkt 019200 PO 00000 Frm 00026 Fmt 6652 Sfmt 6201 E:\BILLS\H4078.PCS H4078

srobinson on DSK4SPTVN1PROD with BILLS
27 

HR 4078 PCS

1 mits, or providing information upon which choices 

2 can be made by the public. 

3 ‘‘(4) If an agency determines that a regulation 

4 is the best available method of achieving the regu5 latory objective, it shall design its regulations in the 

6 most cost-effective manner to achieve the regulatory 

7 objective. In doing so, each agency shall consider in8 centives for innovation, consistency, predictability, 

9 the costs of enforcement and compliance (to the gov10 ernment, regulated entities, and the public), flexi11 bility, distributive impacts, and equity. 

12 ‘‘(5) Each agency shall assess both the costs 

13 and the benefits of the intended regulation and, rec14 ognizing that some costs and benefits are difficult to 

15 quantify, propose or adopt a regulation, unless ex16 pressly prohibited by law, only upon a reasoned de17 termination that the benefits of the intended regula18 tion justify its costs. 

19 ‘‘(6) Each agency shall base its decisions on the 

20 best reasonably obtainable scientific, technical, eco21 nomic, and other information concerning the need 

22 for, and consequences of, the intended regulation. 

23 ‘‘(7) Each agency shall identify and assess al24 ternative forms of regulation and shall, to the extent 

25 feasible, specify performance objectives, rather than 


srobinson on DSK4SPTVN1PROD with BILLS
28 

HR 4078 PCS

1 specifying the behavior or manner of compliance 

2 that regulated entities must adopt. 

3 ‘‘(8) Each agency shall avoid regulations that 

4 are inconsistent, incompatible, or duplicative with its 

5 other regulations or those of other Federal agencies. 

6 ‘‘(9) Each agency shall tailor its regulations to 

7 minimize the costs of the cumulative impact of regu8 lations. 

9 ‘‘(10) Each agency shall draft its regulations to 

10 be simple and easy to understand, with the goal of 

11 minimizing the potential for uncertainty and litiga12 tion arising from such uncertainty. 

13 ‘‘(b) REGULATORY ACTION DEFINED.—In this sec14 tion, the term ‘regulatory action’ means any substantive 

15 action by an agency (normally published in the Federal 

16 Register) that promulgates or is expected to lead to the 

17 promulgation of a final rule or regulation, including ad18 vance notices of proposed rulemaking and notices of pro19 posed rulemaking.’’. 

20 SEC. 409. EXPANDING THE SCOPE OF STATEMENTS TO AC21 COMPANY SIGNIFICANT REGULATORY AC22 TIONS. 

23 (a) IN GENERAL.—Subsection (a) of section 202 of 

24 the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 

25 1532) is amended to read as follows: 


srobinson on DSK4SPTVN1PROD with BILLS
29 

HR 4078 PCS

1 ‘‘(a) IN GENERAL.—Unless otherwise expressly pro2 hibited by law, before promulgating any general notice of 

3 proposed rulemaking or any final rule, or within six 

4 months after promulgating any final rule that was not pre5 ceded by a general notice of proposed rulemaking, if the 

6 proposed rulemaking or final rule includes a Federal man7 date that may result in an annual effect on State, local, 

8 or tribal governments, or to the private sector, in the ag9 gregate of $50,000,000 or more in any 1 year, the agency 

10 shall prepare a written statement containing the following: 

11 ‘‘(1) The text of the draft proposed rulemaking 

12 or final rule, together with a reasonably detailed de13 scription of the need for the proposed rulemaking or 

14 final rule and an explanation of how the proposed 

15 rulemaking or final rule will meet that need. 

16 ‘‘(2) An assessment of the potential costs and 

17 benefits of the proposed rulemaking or final rule, in18 cluding an explanation of the manner in which the 

19 proposed rulemaking or final rule is consistent with 

20 a statutory requirement and avoids undue inter21 ference with State, local, and tribal governments in 

22 the exercise of their governmental functions. 

23 ‘‘(3) A qualitative and quantitative assessment, 

24 including the underlying analysis, of benefits antici25 pated from the proposed rulemaking or final rule 


srobinson on DSK4SPTVN1PROD with BILLS
30 

HR 4078 PCS

1 (such as the promotion of the efficient functioning of 

2 the economy and private markets, the enhancement 

3 of health and safety, the protection of the natural 

4 environment, and the elimination or reduction of dis5 crimination or bias). 

6 ‘‘(4) A qualitative and quantitative assessment, 

7 including the underlying analysis, of costs antici8 pated from the proposed rulemaking or final rule 

9 (such as the direct costs both to the Government in 

10 administering the final rule and to businesses and 

11 others in complying with the final rule, and any ad12 verse effects on the efficient functioning of the econ13 omy, private markets (including productivity, em14 ployment, and international competitiveness), health, 

15 safety, and the natural environment); 

16 ‘‘(5) Estimates by the agency, if and to the ex17 tent that the agency determines that accurate esti18 mates are reasonably feasible, of— 

19 ‘‘(A) the future compliance costs of the 

20 Federal mandate; and 

21 ‘‘(B) any disproportionate budgetary ef22 fects of the Federal mandate upon any par23 ticular regions of the nation or particular State, 

24 local, or tribal governments, urban or rural or 


srobinson on DSK4SPTVN1PROD with BILLS
31 

HR 4078 PCS

1 other types of communities, or particular seg2 ments of the private sector. 

3 ‘‘(6)(A) A detailed description of the extent of 

4 the agency’s prior consultation with the private sec5 tor and elected representatives (under section 204) 

6 of the affected State, local, and tribal governments. 

7 ‘‘(B) A detailed summary of the comments and 

8 concerns that were presented by the private sector 

9 and State, local, or tribal governments either orally 

10 or in writing to the agency. 

11 ‘‘(C) A detailed summary of the agency’s eval12 uation of those comments and concerns. 

13 ‘‘(7) A detailed summary of how the agency 

14 complied with each of the regulatory principles de15 scribed in section 201.’’. 

16 (b) REQUIREMENT FOR DETAILED SUMMARY.—Sub17 section (b) of section 202 of such Act is amended by in18 serting ‘‘detailed’’ before ‘‘summary’’. 

19 SEC. 410. ENHANCED STAKEHOLDER CONSULTATION. 

20 Section 204 of the Unfunded Mandates Reform Act 

21 of 1995 (2 U.S.C. 1534) is amended— 

22 (1) in the section heading, by inserting ‘‘AND

23 PRIVATE SECTOR’’ before ‘‘INPUT’’; 

24 (2) in subsection (a)— 


srobinson on DSK4SPTVN1PROD with BILLS
32 

HR 4078 PCS

1 (A) by inserting ‘‘, and impacted parties 

2 within the private sector (including small busi3 ness),’’ after ‘‘on their behalf)’’; 

4 (B) by striking ‘‘Federal intergovernmental 

5 mandates’’ and inserting ‘‘Federal mandates’’; 

6 and 

7 (3) by amending subsection (c) to read as fol8 lows: 

9 ‘‘(c) GUIDELINES.—For appropriate implementation 

10 of subsections (a) and (b) consistent with applicable laws 

11 and regulations, the following guidelines shall be followed: 

12 ‘‘(1) Consultations shall take place as early as 

13 possible, before issuance of a notice of proposed rule14 making, continue through the final rule stage, and 

15 be integrated explicitly into the rulemaking process. 

16 ‘‘(2) Agencies shall consult with a wide variety 

17 of State, local, and tribal officials and impacted par18 ties within the private sector (including small busi19 nesses). Geographic, political, and other factors that 

20 may differentiate varying points of view should be 

21 considered. 

22 ‘‘(3) Agencies should estimate benefits and 

23 costs to assist with these consultations. The scope of 

24 the consultation should reflect the cost and signifi25 cance of the Federal mandate being considered. 


srobinson on DSK4SPTVN1PROD with BILLS
33 

HR 4078 PCS

1 ‘‘(4) Agencies shall, to the extent practicable— 

2 ‘‘(A) seek out the views of State, local, and 

3 tribal governments, and impacted parties within 

4 the private sector (including small business), on 

5 costs, benefits, and risks; and 

6 ‘‘(B) solicit ideas about alternative meth7 ods of compliance and potential flexibilities, and 

8 input on whether the Federal regulation will 

9 harmonize with and not duplicate similar laws 

10 in other levels of government. 

11 ‘‘(5) Consultations shall address the cumulative 

12 impact of regulations on the affected entities. 

13 ‘‘(6) Agencies may accept electronic submis14 sions of comments by relevant parties but may not 

15 use those comments as the sole method of satisfying 

16 the guidelines in this subsection.’’. 

17 SEC. 411. NEW AUTHORITIES AND RESPONSIBILITIES FOR 

18 OFFICE OF INFORMATION AND REGULATORY 

19 AFFAIRS. 

20 Section 208 of the Unfunded Mandates Reform Act 

21 of 1995 (2 U.S.C. 1538) is amended to read as follows: 

22 ‘‘SEC. 208. OFFICE OF INFORMATION AND REGULATORY AF23 FAIRS RESPONSIBILITIES. 

24 ‘‘(a) IN GENERAL.—The Administrator of the Office 

25 of Information and Regulatory Affairs shall provide meanVerDate Mar 15 2010 22:43 Jul 31, 2012 Jkt 019200 PO 00000 Frm 00033 Fmt 6652 Sfmt 6201 E:\BILLS\H4078.PCS H4078

srobinson on DSK4SPTVN1PROD with BILLS
34 

HR 4078 PCS

1 ingful guidance and oversight so that each agency’s regu2 lations for which a written statement is required under 

3 section 202 are consistent with the principles and require4 ments of this title, as well as other applicable laws, and 

5 do not conflict with the policies or actions of another agen6 cy. If the Administrator determines that an agency’s regu7 lations for which a written statement is required under 

8 section 202 do not comply with such principles and re9 quirements, are not consistent with other applicable laws, 

10 or conflict with the policies or actions of another agency, 

11 the Administrator shall identify areas of non-compliance, 

12 notify the agency, and request that the agency comply be13 fore the agency finalizes the regulation concerned. 

14 ‘‘(b) ANNUAL STATEMENTS TO CONGRESS ON AGEN15 CY COMPLIANCE.—The Director of the Office of Informa16 tion and Regulatory Affairs annually shall submit to Con17 gress, including the Committee on Homeland Security and 

18 Governmental Affairs of the Senate and the Committee 

19 on Oversight and Government Reform of the House of 

20 Representatives, a written report detailing compliance by 

21 each agency with the requirements of this title that relate 

22 to regulations for which a written statement is required 

23 by section 202, including activities undertaken at the re24 quest of the Director to improve compliance, during the 

25 preceding reporting period. The report shall also contain 


srobinson on DSK4SPTVN1PROD with BILLS
35 

HR 4078 PCS

1 an appendix detailing compliance by each agency with sec2 tion 204.’’. 

3 SEC. 412. RETROSPECTIVE ANALYSIS OF EXISTING FED4 ERAL REGULATIONS. 

5 The Unfunded Mandates Reform Act of 1995 (Public 

6 Law 104–4; 2 U.S.C. 1511 et seq.) is amended— 

7 (1) by redesignating section 209 as section 210; 

8 and 

9 (2) by inserting after section 208 the following 

10 new section 209: 

11 ‘‘SEC. 209. RETROSPECTIVE ANALYSIS OF EXISTING FED12 ERAL REGULATIONS. 

13 ‘‘(a) REQUIREMENT.—At the request of the chairman 

14 or ranking minority member of a standing or select com15 mittee of the House of Representatives or the Senate, an 

16 agency shall conduct a retrospective analysis of an existing 

17 Federal regulation promulgated by an agency. 

18 ‘‘(b) REPORT.—Each agency conducting a retrospec19 tive analysis of existing Federal regulations pursuant to 

20 subsection (a) shall submit to the chairman of the relevant 

21 committee, Congress, and the Comptroller General a re22 port containing, with respect to each Federal regulation 

23 covered by the analysis— 

24 ‘‘(1) a copy of the Federal regulation; 


srobinson on DSK4SPTVN1PROD with BILLS
36 

HR 4078 PCS

1 ‘‘(2) the continued need for the Federal regula2 tion; 

3 ‘‘(3) the nature of comments or complaints re4 ceived concerning the Federal regulation from the 

5 public since the Federal regulation was promulgated; 

6 ‘‘(4) the extent to which the Federal regulation 

7 overlaps, duplicates, or conflicts with other Federal 

8 regulations, and, to the extent feasible, with State 

9 and local governmental rules; 

10 ‘‘(5) the degree to which technology, economic 

11 conditions, or other factors have changed in the area 

12 affected by the Federal regulation; 

13 ‘‘(6) a complete analysis of the retrospective di14 rect costs and benefits of the Federal regulation that 

15 considers studies done outside the Federal Govern16 ment (if any) estimating such costs or benefits; and 

17 ‘‘(7) any litigation history challenging the Fed18 eral regulation.’’. 

19 SEC. 413. EXPANSION OF JUDICIAL REVIEW. 

20 Section 401(a) of the Unfunded Mandates Reform 

21 Act of 1995 (2 U.S.C. 1571(a)) is amended— 

22 (1) in paragraphs (1) and (2)(A)— 

23 (A) by striking ‘‘sections 202 and 

24 203(a)(1) and (2)’’ each place it appears and 


srobinson on DSK4SPTVN1PROD with BILLS
37 

HR 4078 PCS

1 inserting ‘‘sections 201, 202, 203(a)(1) and (2), 

2 and 205(a) and (b)’’; and 

3 (B) by striking ‘‘only’’ each place it ap4 pears; 

5 (2) in paragraph (2)(B), by striking ‘‘section 

6 202’’ and all that follows through the period at the 

7 end and inserting the following: ‘‘section 202, pre8 pare the written plan under section 203(a)(1) and 

9 (2), or comply with section 205(a) and (b), a court 

10 may compel the agency to prepare such written 

11 statement, prepare such written plan, or comply with 

12 such section.’’; and 

13 (3) in paragraph (3), by striking ‘‘written state14 ment or plan is required’’ and all that follows 

15 through ‘‘shall not’’ and inserting the following: 

16 ‘‘written statement under section 202, a written plan 

17 under section 203(a)(1) and (2), or compliance with 

18 sections 201 and 205(a) and (b) is required, the in19 adequacy or failure to prepare such statement (in20 cluding the inadequacy or failure to prepare any es21 timate, analysis, statement, or description), to pre22 pare such written plan, or to comply with such sec23 tion may’’. 


srobinson on DSK4SPTVN1PROD with BILLS
38 

HR 4078 PCS

1 TITLE V—IMPROVED COORDINA2 TION OF AGENCY ACTIONS ON 

3 ENVIRONMENTAL DOCU4 MENTS 

5 SEC. 501. SHORT TITLE. 

6 This title may be cited as the ‘‘Responsibly And Pro7 fessionally Invigorating Development Act of 2012’’ or as 

8 the ‘‘RAPID Act’’. 

9 SEC. 502. COORDINATION OF AGENCY ADMINISTRATIVE OP10 ERATIONS FOR EFFICIENT DECISIONMAKING. 

11 (a) IN GENERAL.—Part I of chapter 5 of title 5, 

12 United States Code, is amended by inserting after sub13 chapter II the following: 

14 ‘‘SUBCHAPTER IIA—INTERAGENCY 

15 COORDINATION REGARDING PERMITTING 

16 ‘‘§ 560. Coordination of agency administrative oper17 ations for efficient decisionmaking 

18 ‘‘(a) CONGRESSIONAL DECLARATION OF PURPOSE.— 

19 The purpose of this subchapter is to establish a framework 

20 and procedures to streamline, increase the efficiency of, 

21 and enhance coordination of agency administration of the 

22 regulatory review, environmental decisionmaking, and per23 mitting process for projects undertaken, reviewed, or fund24 ed by Federal agencies. This subchapter will ensure that 

25 agencies administer the regulatory process in a manner 


srobinson on DSK4SPTVN1PROD with BILLS
39 

HR 4078 PCS

1 that is efficient so that citizens are not burdened with reg2 ulatory excuses and time delays. 

3 ‘‘(b) DEFINITIONS.—For purposes of this sub4 chapter, the term— 

5 ‘‘(1) ‘agency’ means any agency, department, or 

6 other unit of Federal, State, local, or Indian tribal 

7 government; 

8 ‘‘(2) ‘category of projects’ means 2 or more 

9 projects related by project type, potential environ10 mental impacts, geographic location, or another 

11 similar project feature or characteristic; 

12 ‘‘(3) ‘environmental assessment’ means a con13 cise public document for which a Federal agency is 

14 responsible that serves to— 

15 ‘‘(A) briefly provide sufficient evidence and 

16 analysis for determining whether to prepare an 

17 environmental impact statement or a finding of 

18 no significant impact; 

19 ‘‘(B) aid an agency’s compliance with 

20 NEPA when no environmental impact state21 ment is necessary; and 

22 ‘‘(C) facilitate preparation of an environ23 mental impact statement when one is necessary; 


srobinson on DSK4SPTVN1PROD with BILLS
40 

HR 4078 PCS

1 ‘‘(4) ‘environmental impact statement’ means 

2 the detailed statement of significant environmental 

3 impacts required to be prepared under NEPA; 

4 ‘‘(5) ‘environmental review’ means the Federal 

5 agency procedures for preparing an environmental 

6 impact statement, environmental assessment, cat7 egorical exclusion, or other document under NEPA; 

8 ‘‘(6) ‘environmental decisionmaking process’ 

9 means the Federal agency procedures for under10 taking and completion of any environmental permit, 

11 decision, approval, review, or study under any Fed12 eral law other than NEPA for a project subject to 

13 an environmental review; 

14 ‘‘(7) ‘environmental document’ means an envi15 ronmental assessment or environmental impact 

16 statement, and includes any supplemental document 

17 or document prepared pursuant to a court order; 

18 ‘‘(8) ‘finding of no significant impact’ means a 

19 document by a Federal agency briefly presenting the 

20 reasons why a project, not otherwise subject to a 

21 categorical exclusion, will not have a significant ef22 fect on the human environment and for which an en23 vironmental impact statement therefore will not be 

24 prepared; 


srobinson on DSK4SPTVN1PROD with BILLS
41 

HR 4078 PCS

1 ‘‘(9) ‘lead agency’ means the Federal agency 

2 preparing or responsible for preparing the environ3 mental document; 

4 ‘‘(10) ‘NEPA’ means the National Environ5 mental Policy Act of 1969 (42 U.S.C. 4321 et seq.); 

6 ‘‘(11) ‘project’ means major Federal actions 

7 that are construction activities undertaken with Fed8 eral funds or that are construction activities that re9 quire approval by a permit or regulatory decision 

10 issued by a Federal agency; 

11 ‘‘(12) ‘project sponsor’ means the agency or 

12 other entity, including any private or public-private 

13 entity, that seeks approval for a project or is other14 wise responsible for undertaking a project; and 

15 ‘‘(13) ‘record of decision’ means a document 

16 prepared by a lead agency under NEPA following an 

17 environmental impact statement that states the lead 

18 agency’s decision, identifies the alternatives consid19 ered by the agency in reaching its decision and 

20 states whether all practicable means to avoid or min21 imize environmental harm from the alternative se22 lected have been adopted, and if not, why they were 

23 not adopted. 

24 ‘‘(c) PREPARATION OF ENVIRONMENTAL DOCU25 MENTS.—Upon the request of the lead agency, the project 


srobinson on DSK4SPTVN1PROD with BILLS
42 

HR 4078 PCS

1 sponsor shall be authorized to prepare any document for 

2 purposes of an environmental review required in support 

3 of any project or approval by the lead agency if the lead 

4 agency furnishes oversight in such preparation and inde5 pendently evaluates such document and the document is 

6 approved and adopted by the lead agency prior to taking 

7 any action or making any approval based on such docu8 ment. 

9 ‘‘(d) ADOPTION AND USE OF DOCUMENTS.— 

10 ‘‘(1) DOCUMENTS PREPARED UNDER NEPA.— 

11 ‘‘(A) Not more than 1 environmental im12 pact statement and 1 environmental assessment 

13 shall be prepared under NEPA for a project 

14 (except for supplemental environmental docu15 ments prepared under NEPA or environmental 

16 documents prepared pursuant to a court order), 

17 and, except as otherwise provided by law, the 

18 lead agency shall prepare the environmental im19 pact statement or environmental assessment. 

20 After the lead agency issues a record of deci21 sion, no Federal agency responsible for making 

22 any approval for that project may rely on a doc23 ument other than the environmental document 

24 prepared by the lead agency. 


srobinson on DSK4SPTVN1PROD with BILLS
43 

HR 4078 PCS

1 ‘‘(B) Upon the request of a project spon2 sor, a lead agency may adopt, use, or rely upon 

3 secondary and cumulative impact analyses in4 cluded in any environmental document prepared 

5 under NEPA for projects in the same geo6 graphic area where the secondary and cumu7 lative impact analyses provide information and 

8 data that pertains to the NEPA decision for the 

9 project under review. 

10 ‘‘(2) STATE ENVIRONMENTAL DOCUMENTS; 

11 SUPPLEMENTAL DOCUMENTS.— 

12 ‘‘(A) Upon the request of a project spon13 sor, a lead agency may adopt a document that 

14 has been prepared for a project under State 

15 laws and procedures as the environmental im16 pact statement or environmental assessment for 

17 the project, provided that the State laws and 

18 procedures under which the document was pre19 pared provide environmental protection and op20 portunities for public involvement that are sub21 stantially equivalent to NEPA. 

22 ‘‘(B) An environmental document adopted 

23 under subparagraph (A) is deemed to satisfy 

24 the lead agency’s obligation under NEPA to 


srobinson on DSK4SPTVN1PROD with BILLS
44 

HR 4078 PCS

1 prepare an environmental impact statement or 

2 environmental assessment. 

3 ‘‘(C) In the case of a document described 

4 in subparagraph (A), during the period after 

5 preparation of the document but before its 

6 adoption by the lead agency, the lead agency 

7 shall prepare and publish a supplement to that 

8 document if the lead agency determines that— 

9 ‘‘(i) a significant change has been 

10 made to the project that is relevant for 

11 purposes of environmental review of the 

12 project; or 

13 ‘‘(ii) there have been significant 

14 changes in circumstances or availability of 

15 information relevant to the environmental 

16 review for the project. 

17 ‘‘(D) If the agency prepares and publishes 

18 a supplemental document under subparagraph 

19 (C), the lead agency may solicit comments from 

20 agencies and the public on the supplemental 

21 document for a period of not more than 45 

22 days beginning on the date of the publication of 

23 the supplement. 

24 ‘‘(E) A lead agency shall issue its record of 

25 decision or finding of no significant impact, as 


srobinson on DSK4SPTVN1PROD with BILLS
45 

HR 4078 PCS

1 appropriate, based upon the document adopted 

2 under subparagraph (A), and any supplements 

3 thereto. 

4 ‘‘(3) CONTEMPORANEOUS PROJECTS.—If the 

5 lead agency determines that there is a reasonable 

6 likelihood that the project will have similar environ7 mental impacts as a similar project in geographical 

8 proximity to the project, and that similar project 

9 was subject to environmental review or similar State 

10 procedures within the 5 year period immediately pre11 ceding the date that the lead agency makes that de12 termination, the lead agency may adopt the environ13 mental document that resulted from that environ14 mental review or similar State procedure. The lead 

15 agency may adopt such an environmental document, 

16 if it is prepared under State laws and procedures 

17 only upon making a favorable determination on such 

18 environmental document pursuant to paragraph 

19 (2)(A). 

20 ‘‘(e) PARTICIPATING AGENCIES.— 

21 ‘‘(1) IN GENERAL.—The lead agency shall be 

22 responsible for inviting and designating participating 

23 agencies in accordance with this subsection. The 

24 lead agency shall provide the invitation or notice of 

25 the designation in writing. 


srobinson on DSK4SPTVN1PROD with BILLS
46 

HR 4078 PCS

1 ‘‘(2) FEDERAL PARTICIPATING AGENCIES.—Any 

2 Federal agency that is required to adopt the envi3 ronmental document of the lead agency for a project 

4 shall be designated as a participating agency and 

5 shall collaborate on the preparation of the environ6 mental document, unless the Federal agency informs 

7 the lead agency, in writing, by a time specified by 

8 the lead agency in the designation of the Federal 

9 agency that the Federal agency— 

10 ‘‘(A) has no jurisdiction or authority with 

11 respect to the project; 

12 ‘‘(B) has no expertise or information rel13 evant to the project; and 

14 ‘‘(C) does not intend to submit comments 

15 on the project. 

16 ‘‘(3) INVITATION.—The lead agency shall iden17 tify, as early as practicable in the environmental re18 view for a project, any agencies other than an agen19 cy described in paragraph (2) that may have an in20 terest in the project, including, where appropriate, 

21 Governors of affected States, and heads of appro22 priate tribal and local (including county) govern23 ments, and shall invite such identified agencies and 

24 officials to become participating agencies in the envi25 ronmental review for the project. The invitation shall 


srobinson on DSK4SPTVN1PROD with BILLS
47 

HR 4078 PCS

1 set a deadline of 30 days for responses to be sub2 mitted, which may only be extended by the lead 

3 agency for good cause shown. Any agency that fails 

4 to respond prior to the deadline shall be deemed to 

5 have declined the invitation. 

6 ‘‘(4) EFFECT OF DECLINING PARTICIPATING

7 AGENCY INVITATION.—Any agency that declines a 

8 designation or invitation by the lead agency to be a 

9 participating agency shall be precluded from submit10 ting comments on any document prepared under 

11 NEPA for that project or taking any measures to 

12 oppose, based on the environmental review, any per13 mit, license, or approval related to that project. 

14 ‘‘(5) EFFECT OF DESIGNATION.—Designation 

15 as a participating agency under this subsection does 

16 not imply that the participating agency— 

17 ‘‘(A) supports a proposed project; or 

18 ‘‘(B) has any jurisdiction over, or special 

19 expertise with respect to evaluation of, the 

20 project. 

21 ‘‘(6) COOPERATING AGENCY.—A participating 

22 agency may also be designated by a lead agency as 

23 a ‘cooperating agency’ under the regulations con24 tained in part 1500 of title 40, Code of Federal Reg25 ulations, as in effect on January 1, 2011. DesignaVerDate Mar 15 2010 22:43 Jul 31, 2012 Jkt 019200 PO 00000 Frm 00047 Fmt 6652 Sfmt 6201 E:\BILLS\H4078.PCS H4078

srobinson on DSK4SPTVN1PROD with BILLS
48 

HR 4078 PCS

1 tion as a cooperating agency shall have no effect on 

2 designation as participating agency. No agency that 

3 is not a participating agency may be designated as 

4 a cooperating agency. 

5 ‘‘(7) CONCURRENT REVIEWS.—Each Federal 

6 agency shall— 

7 ‘‘(A) carry out obligations of the Federal 

8 agency under other applicable law concurrently 

9 and in conjunction with the review required 

10 under NEPA; and 

11 ‘‘(B) in accordance with the rules made by 

12 the Council on Environmental Quality pursuant 

13 to subsection (n)(1), make and carry out such 

14 rules, policies, and procedures as may be rea15 sonably necessary to enable the agency to en16 sure completion of the environmental review 

17 and environmental decisionmaking process in a 

18 timely, coordinated, and environmentally re19 sponsible manner. 

20 ‘‘(8) COMMENTS.—Each participating agency 

21 shall limit its comments on a project to areas that 

22 are within the authority and expertise of such par23 ticipating agency. Each participating agency shall 

24 identify in such comments the statutory authority of 

25 the participating agency pertaining to the subject 


srobinson on DSK4SPTVN1PROD with BILLS
49 

HR 4078 PCS

1 matter of its comments. The lead agency shall not 

2 act upon, respond to or include in any document 

3 prepared under NEPA, any comment submitted by 

4 a participating agency that concerns matters that 

5 are outside of the authority and expertise of the 

6 commenting participating agency. 

7 ‘‘(f) PROJECT INITIATION REQUEST.— 

8 ‘‘(1) NOTICE.—A project sponsor shall provide 

9 the Federal agency responsible for undertaking a 

10 project with notice of the initiation of the project by 

11 providing a description of the proposed project, the 

12 general location of the proposed project, and a state13 ment of any Federal approvals anticipated to be nec14 essary for the proposed project, for the purpose of 

15 informing the Federal agency that the environmental 

16 review should be initiated. 

17 ‘‘(2) LEAD AGENCY INITIATION.—The agency 

18 receiving a project initiation notice under paragraph 

19 (1) shall promptly identify the lead agency for the 

20 project, and the lead agency shall initiate the envi21 ronmental review within a period of 45 days after 

22 receiving the notice required by paragraph (1) by in23 viting or designating agencies to become partici24 pating agencies, or, where the lead agency deter25 mines that no participating agencies are required for 


srobinson on DSK4SPTVN1PROD with BILLS
50 

HR 4078 PCS

1 the project, by taking such other actions that are 

2 reasonable and necessary to initiate the environ3 mental review. 

4 ‘‘(g) ALTERNATIVES ANALYSIS.— 

5 ‘‘(1) PARTICIPATION.—As early as practicable 

6 during the environmental review, but no later than 

7 during scoping for a project requiring the prepara8 tion of an environmental impact statement, the lead 

9 agency shall provide an opportunity for involvement 

10 by cooperating agencies in determining the range of 

11 alternatives to be considered for a project. 

12 ‘‘(2) RANGE OF ALTERNATIVES.—Following 

13 participation under paragraph (1), the lead agency 

14 shall determine the range of alternatives for consid15 eration in any document which the lead agency is re16 sponsible for preparing for the project, subject to the 

17 following limitations: 

18 ‘‘(A) NO EVALUATION OF CERTAIN ALTER19 NATIVES.—No Federal agency shall evaluate 

20 any alternative that was identified but not car21 ried forward for detailed evaluation in an envi22 ronmental document or evaluated and not se23 lected in any environmental document prepared 

24 under NEPA for the same project. 


srobinson on DSK4SPTVN1PROD with BILLS
51 

HR 4078 PCS

1 ‘‘(B) ONLY FEASIBLE ALTERNATIVES

2 EVALUATED.—Where a project is being con3 structed, managed, funded, or undertaken by a 

4 project sponsor that is not a Federal agency, 

5 Federal agencies shall only be required to evalu6 ate alternatives that the project sponsor could 

7 feasibly undertake, consistent with the purpose 

8 of and the need for the project, including alter9 natives that can be undertaken by the project 

10 sponsor and that are technically and economi11 cally feasible. 

12 ‘‘(3) METHODOLOGIES.— 

13 ‘‘(A) IN GENERAL.—The lead agency shall 

14 determine, in collaboration with cooperating 

15 agencies at appropriate times during the envi16 ronmental review, the methodologies to be used 

17 and the level of detail required in the analysis 

18 of each alternative for a project. The lead agen19 cy shall include in the environmental document 

20 a description of the methodologies used and 

21 how the methodologies were selected. 

22 ‘‘(B) NO EVALUATION OF INAPPROPRIATE

23 ALTERNATIVES.—When a lead agency deter24 mines that an alternative does not meet the 

25 purpose and need for a project, that alternative 


srobinson on DSK4SPTVN1PROD with BILLS
52 

HR 4078 PCS

1 is not required to be evaluated in detail in an 

2 environmental document. 

3 ‘‘(4) PREFERRED ALTERNATIVE.—At the dis4 cretion of the lead agency, the preferred alternative 

5 for a project, after being identified, may be devel6 oped to a higher level of detail than other alter7 natives in order to facilitate the development of miti8 gation measures or concurrent compliance with other 

9 applicable laws if the lead agency determines that 

10 the development of such higher level of detail will 

11 not prevent the lead agency from making an impar12 tial decision as to whether to accept another alter13 native which is being considered in the environ14 mental review. 

15 ‘‘(5) EMPLOYMENT ANALYSIS.—The evaluation 

16 of each alternative in an environmental impact state17 ment or an environmental assessment shall identify 

18 the potential effects of the alternative on employ19 ment, including potential short-term and long-term 

20 employment increases and reductions and shifts in 

21 employment. 

22 ‘‘(h) COORDINATION AND SCHEDULING.— 

23 ‘‘(1) COORDINATION PLAN.— 

24 ‘‘(A) IN GENERAL.—The lead agency shall 

25 establish and implement a plan for coordinating 


srobinson on DSK4SPTVN1PROD with BILLS
53 

HR 4078 PCS

1 public and agency participation in and comment 

2 on the environmental review for a project or 

3 category of projects to facilitate the expeditious 

4 resolution of the environmental review. 

5 ‘‘(B) SCHEDULE.— 

6 ‘‘(i) IN GENERAL.—The lead agency 

7 shall establish as part of the coordination 

8 plan for a project, after consultation with 

9 each participating agency and, where appli10 cable, the project sponsor, a schedule for 

11 completion of the environmental review. 

12 The schedule shall include deadlines, con13 sistent with subsection (i), for decisions 

14 under any other Federal laws (including 

15 the issuance or denial of a permit or li16 cense) relating to the project that is cov17 ered by the schedule. 

18 ‘‘(ii) FACTORS FOR CONSIDER19 ATION.—In establishing the schedule, the 

20 lead agency shall consider factors such 

21 as— 

22 ‘‘(I) the responsibilities of par23 ticipating agencies under applicable 

24 laws; 


srobinson on DSK4SPTVN1PROD with BILLS
54 

HR 4078 PCS

1 ‘‘(II) resources available to the 

2 participating agencies; 

3 ‘‘(III) overall size and complexity 

4 of the project; 

5 ‘‘(IV) overall schedule for and 

6 cost of the project; 

7 ‘‘(V) the sensitivity of the natural 

8 and historic resources that could be 

9 affected by the project; and 

10 ‘‘(VI) the extent to which similar 

11 projects in geographic proximity were 

12 recently subject to environmental re13 view or similar State procedures. 

14 ‘‘(iii) COMPLIANCE WITH THE SCHED15 ULE.— 

16 ‘‘(I) All participating agencies 

17 shall comply with the time periods es18 tablished in the schedule or with any 

19 modified time periods, where the lead 

20 agency modifies the schedule pursuant 

21 to subparagraph (D). 

22 ‘‘(II) The lead agency shall dis23 regard and shall not respond to or in24 clude in any document prepared under 

25 NEPA, any comment or information 


srobinson on DSK4SPTVN1PROD with BILLS
55 

HR 4078 PCS

1 submitted or any finding made by a 

2 participating agency that is outside of 

3 the time period established in the 

4 schedule or modification pursuant to 

5 subparagraph (D) for that agency’s 

6 comment, submission or finding. 

7 ‘‘(III) If a participating agency 

8 fails to object in writing to a lead 

9 agency decision, finding or request for 

10 concurrence within the time period es11 tablished under law or by the lead 

12 agency, the agency shall be deemed to 

13 have concurred in the decision, finding 

14 or request. 

15 ‘‘(C) CONSISTENCY WITH OTHER TIME PE16 RIODS.—A schedule under subparagraph (B) 

17 shall be consistent with any other relevant time 

18 periods established under Federal law. 

19 ‘‘(D) MODIFICATION.—The lead agency 

20 may— 

21 ‘‘(i) lengthen a schedule established 

22 under subparagraph (B) for good cause; 

23 and 

24 ‘‘(ii) shorten a schedule only with the 

25 concurrence of the cooperating agencies. 


srobinson on DSK4SPTVN1PROD with BILLS
56 

HR 4078 PCS

1 ‘‘(E) DISSEMINATION.—A copy of a sched2 ule under subparagraph (B), and of any modi3 fications to the schedule, shall be— 

4 ‘‘(i) provided within 15 days of com5 pletion or modification of such schedule to 

6 all participating agencies and to the 

7 project sponsor; and 

8 ‘‘(ii) made available to the public. 

9 ‘‘(F) ROLES AND RESPONSIBILITY OF

10 LEAD AGENCY.—With respect to the environ11 mental review for any project, the lead agency 

12 shall have authority and responsibility to take 

13 such actions as are necessary and proper, with14 in the authority of the lead agency, to facilitate 

15 the expeditious resolution of the environmental 

16 review for the project. 

17 ‘‘(i) DEADLINES.—The following deadlines shall 

18 apply to any project subject to review under NEPA and 

19 any decision under any Federal law relating to such 

20 project (including the issuance or denial of a permit or 

21 license or any required finding): 

22 ‘‘(1) ENVIRONMENTAL REVIEW DEADLINES.— 

23 The lead agency shall complete the environmental 

24 review within the following deadlines: 


srobinson on DSK4SPTVN1PROD with BILLS
57 

HR 4078 PCS

1 ‘‘(A) ENVIRONMENTAL IMPACT STATE2 MENT PROJECTS.—For projects requiring prep3 aration of an environmental impact statement— 

4 ‘‘(i) the lead agency shall issue an en5 vironmental impact statement within 2 

6 years after the earlier of the date the lead 

7 agency receives the project initiation re8 quest or a Notice of Intent to Prepare an 

9 Environmental Impact Statement is pub10 lished in the Federal Register; and 

11 ‘‘(ii) in circumstances where the lead 

12 agency has prepared an environmental as13 sessment and determined that an environ14 mental impact statement will be required, 

15 the lead agency shall issue the environ16 mental impact statement within 2 years 

17 after the date of publication of the Notice 

18 of Intent to Prepare an Environmental Im19 pact Statement in the Federal Register. 

20 ‘‘(B) ENVIRONMENTAL ASSESSMENT

21 PROJECTS.—For projects requiring preparation 

22 of an environmental assessment, the lead agen23 cy shall issue a finding of no significant impact 

24 or publish a Notice of Intent to Prepare an En25 vironmental Impact Statement in the Federal 


srobinson on DSK4SPTVN1PROD with BILLS
58 

HR 4078 PCS

1 Register within 1 year after the earlier of the 

2 date the lead agency receives the project initi3 ation request, makes a decision to prepare an 

4 environmental assessment, or sends out partici5 pating agency invitations. 

6 ‘‘(2) EXTENSIONS.— 

7 ‘‘(A) REQUIREMENTS.—The environmental 

8 review deadlines may be extended only if— 

9 ‘‘(i) a different deadline is established 

10 by agreement of the lead agency, the 

11 project sponsor, and all participating agen12 cies; or 

13 ‘‘(ii) the deadline is extended by the 

14 lead agency for good cause. 

15 ‘‘(B) LIMITATION.—The environmental re16 view shall not be extended by more than 1 year 

17 for a project requiring preparation of an envi18 ronmental impact statement or by more than 

19 180 days for a project requiring preparation of 

20 an environmental assessment. 

21 ‘‘(3) ENVIRONMENTAL REVIEW COMMENTS.— 

22 ‘‘(A) COMMENTS ON DRAFT ENVIRON23 MENTAL IMPACT STATEMENT.—For comments 

24 by agencies and the public on a draft environ25 mental impact statement, the lead agency shall 


srobinson on DSK4SPTVN1PROD with BILLS
59 

HR 4078 PCS

1 establish a comment period of not more than 60 

2 days after publication in the Federal Register 

3 of notice of the date of public availability of 

4 such document, unless— 

5 ‘‘(i) a different deadline is established 

6 by agreement of the lead agency, the 

7 project sponsor, and all participating agen8 cies; or 

9 ‘‘(ii) the deadline is extended by the 

10 lead agency for good cause. 

11 ‘‘(B) OTHER COMMENTS.—For all other 

12 comment periods for agency or public comments 

13 in the environmental review process, the lead 

14 agency shall establish a comment period of no 

15 more than 30 days from availability of the ma16 terials on which comment is requested, unless— 

17 ‘‘(i) a different deadline is established 

18 by agreement of the lead agency, the 

19 project sponsor, and all participating agen20 cies; or 

21 ‘‘(ii) the deadline is extended by the 

22 lead agency for good cause. 

23 ‘‘(4) DEADLINES FOR DECISIONS UNDER

24 OTHER LAWS.—Notwithstanding any other provision 

25 of law, in any case in which a decision under any 


srobinson on DSK4SPTVN1PROD with BILLS
60 

HR 4078 PCS

1 other Federal law relating to the undertaking of a 

2 project being reviewed under NEPA (including the 

3 issuance or denial of a permit or license) is required 

4 to be made, the following deadlines shall apply: 

5 ‘‘(A) DECISIONS PRIOR TO RECORD OF DE6 CISION OR FINDING OF NO SIGNIFICANT IM7 PACT.—If a Federal agency is required to ap8 prove, or otherwise to act upon, a permit, li9 cense, or other similar application for approval 

10 related to a project prior to the record of deci11 sion or finding of no significant impact, such 

12 Federal agency shall approve or otherwise act 

13 not later than the end of a 90 day period begin14 ning— 

15 ‘‘(i) after all other relevant agency re16 view related to the project is complete; and 

17 ‘‘(ii) after the lead agency publishes a 

18 notice of the availability of the final envi19 ronmental impact statement or issuance of 

20 other final environmental documents, or no 

21 later than such other date that is otherwise 

22 required by law, whichever event occurs 

23 first. 

24 ‘‘(B) OTHER DECISIONS.—With regard to 

25 any approval or other action related to a project 


srobinson on DSK4SPTVN1PROD with BILLS
61 

HR 4078 PCS

1 by a Federal agency that is not subject to sub2 paragraph (A), each Federal agency shall ap3 prove or otherwise act not later than the end of 

4 a period of 180 days beginning— 

5 ‘‘(i) after all other relevant agency re6 view related to the project is complete; and 

7 ‘‘(ii) after the lead agency issues the 

8 record of decision or finding of no signifi9 cant impact, unless a different deadline is 

10 established by agreement of the Federal 

11 agency, lead agency, and the project spon12 sor, where applicable, or the deadline is ex13 tended by the Federal agency for good 

14 cause, provided that such extension shall 

15 not extend beyond a period that is 1 year 

16 after the lead agency issues the record of 

17 decision or finding of no significant im18 pact. 

19 ‘‘(C) FAILURE TO ACT.—In the event that 

20 any Federal agency fails to approve, or other21 wise to act upon, a permit, license, or other 

22 similar application for approval related to a 

23 project within the applicable deadline described 

24 in subparagraph (A) or (B), the permit, license, 

25 or other similar application shall be deemed apVerDate Mar 15 2010 22:43 Jul 31, 2012 Jkt 019200 PO 00000 Frm 00061 Fmt 6652 Sfmt 6201 E:\BILLS\H4078.PCS H4078

srobinson on DSK4SPTVN1PROD with BILLS
62 

HR 4078 PCS

1 proved by such agency and the agency shall 

2 take action in accordance with such approval 

3 within 30 days of the applicable deadline de4 scribed in subparagraph (A) or (B). 

5 ‘‘(D) FINAL AGENCY ACTION.—Any ap6 proval under subparagraph (C) is deemed to be 

7 final agency action, and may not be reversed by 

8 any agency. In any action under chapter 7 seek9 ing review of such a final agency action, the 

10 court may not set aside such agency action by 

11 reason of that agency action having occurred 

12 under this paragraph. 

13 ‘‘(j) ISSUE IDENTIFICATION AND RESOLUTION.— 

14 ‘‘(1) COOPERATION.—The lead agency and the 

15 participating agencies shall work cooperatively in ac16 cordance with this section to identify and resolve 

17 issues that could delay completion of the environ18 mental review or could result in denial of any ap19 provals required for the project under applicable 

20 laws. 

21 ‘‘(2) LEAD AGENCY RESPONSIBILITIES.—The 

22 lead agency shall make information available to the 

23 participating agencies as early as practicable in the 

24 environmental review regarding the environmental, 

25 historic, and socioeconomic resources located within 


srobinson on DSK4SPTVN1PROD with BILLS
63 

HR 4078 PCS

1 the project area and the general locations of the al2 ternatives under consideration. Such information 

3 may be based on existing data sources, including ge4 ographic information systems mapping. 

5 ‘‘(3) PARTICIPATING AGENCY RESPONSIBIL6 ITIES.—Based on information received from the lead 

7 agency, participating agencies shall identify, as early 

8 as practicable, any issues of concern regarding the 

9 project’s potential environmental, historic, or socio10 economic impacts. In this paragraph, issues of con11 cern include any issues that could substantially delay 

12 or prevent an agency from granting a permit or 

13 other approval that is needed for the project. 

14 ‘‘(4) ISSUE RESOLUTION.— 

15 ‘‘(A) MEETING OF PARTICIPATING AGEN16 CIES.—At any time upon request of a project 

17 sponsor, the lead agency shall promptly convene 

18 a meeting with the relevant participating agen19 cies and the project sponsor, to resolve issues 

20 that could delay completion of the environ21 mental review or could result in denial of any 

22 approvals required for the project under appli23 cable laws. 

24 ‘‘(B) NOTICE THAT RESOLUTION CANNOT

25 BE ACHIEVED.—If a resolution cannot be 


srobinson on DSK4SPTVN1PROD with BILLS
64 

HR 4078 PCS

1 achieved within 30 days following such a meet2 ing and a determination by the lead agency that 

3 all information necessary to resolve the issue 

4 has been obtained, the lead agency shall notify 

5 the heads of all participating agencies, the 

6 project sponsor, and the Council on Environ7 mental Quality for further proceedings in ac8 cordance with section 204 of NEPA, and shall 

9 publish such notification in the Federal Reg10 ister. 

11 ‘‘(k) REPORT TO CONGRESS.—The head of each Fed12 eral agency shall report annually to Congress— 

13 ‘‘(1) the projects for which the agency initiated 

14 preparation of an environmental impact statement or 

15 environmental assessment; 

16 ‘‘(2) the projects for which the agency issued a 

17 record of decision or finding of no significant impact 

18 and the length of time it took the agency to com19 plete the environmental review for each such project; 

20 ‘‘(3) the filing of any lawsuits against the agen21 cy seeking judicial review of a permit, license, or ap22 proval issued by the agency for an action subject to 

23 NEPA, including the date the complaint was filed, 

24 the court in which the complaint was filed, and a 


srobinson on DSK4SPTVN1PROD with BILLS
65 

HR 4078 PCS

1 summary of the claims for which judicial review was 

2 sought; and 

3 ‘‘(4) the resolution of any lawsuits against the 

4 agency that sought judicial review of a permit, li5 cense, or approval issued by the agency for an action 

6 subject to NEPA. 

7 ‘‘(l) LIMITATIONS ON CLAIMS.— 

8 ‘‘(1) IN GENERAL.—Notwithstanding any other 

9 provision of law, a claim arising under Federal law 

10 seeking judicial review of a permit, license, or ap11 proval issued by a Federal agency for an action sub12 ject to NEPA shall be barred unless— 

13 ‘‘(A) in the case of a claim pertaining to 

14 a project for which an environmental review 

15 was conducted and an opportunity for comment 

16 was provided, the claim is filed by a party that 

17 submitted a comment during the environmental 

18 review on the issue on which the party seeks ju19 dicial review, and such comment was suffi20 ciently detailed to put the lead agency on notice 

21 of the issue upon which the party seeks judicial 

22 review; and 

23 ‘‘(B) filed within 180 days after publica24 tion of a notice in the Federal Register an25 nouncing that the permit, license, or approval is 


srobinson on DSK4SPTVN1PROD with BILLS
66 

HR 4078 PCS

1 final pursuant to the law under which the agen2 cy action is taken, unless a shorter time is spec3 ified in the Federal law pursuant to which judi4 cial review is allowed. 

5 ‘‘(2) NEW INFORMATION.—The preparation of 

6 a supplemental environmental impact statement, 

7 when required, is deemed a separate final agency ac8 tion and the deadline for filing a claim for judicial 

9 review of such action shall be 180 days after the 

10 date of publication of a notice in the Federal Reg11 ister announcing the record of decision for such ac12 tion. Any claim challenging agency action on the 

13 basis of information in a supplemental environ14 mental impact statement shall be limited to chal15 lenges on the basis of that information. 

16 ‘‘(3) RULE OF CONSTRUCTION.—Nothing in 

17 this subsection shall be construed to create a right 

18 to judicial review or place any limit on filing a claim 

19 that a person has violated the terms of a permit, li20 cense, or approval. 

21 ‘‘(m) CATEGORIES OF PROJECTS.—The authorities 

22 granted under this subchapter may be exercised for an in23 dividual project or a category of projects. 

24 ‘‘(n) EFFECTIVE DATE.—The requirements of this 

25 subchapter shall apply only to environmental reviews and 


srobinson on DSK4SPTVN1PROD with BILLS
67 

HR 4078 PCS

1 environmental decisionmaking processes initiated after the 

2 date of enactment of this subchapter. 

3 ‘‘(o) APPLICABILITY.—Except as provided in sub4 section (p), this subchapter applies, according to the provi5 sions thereof, to all projects for which a Federal agency 

6 is required to undertake an environmental review or make 

7 a decision under an environmental law for a project for 

8 which a Federal agency is undertaking an environmental 

9 review. 

10 ‘‘(p) SAVINGS CLAUSE.—Nothing in this section shall 

11 be construed to supersede, amend, or modify sections 134, 

12 135, 139, 325, 326, and 327 of title 23, United States 

13 Code, sections 5303 and 5304 of title 49, United States 

14 Code, or subtitle C of title I of division A of the Moving 

15 Ahead for Progress in the 21st Century Act and the 

16 amendments made by such subtitle (Public Law 112– 

17 141).’’. 

18 (b) TECHNICAL AMENDMENT.—The table of sections 

19 for chapter 5 of title 5, United States Code, is amended 

20 by inserting after the item relating to subchapter II the 

21 following: 

‘‘SUBCHAPTER IIA—INTERAGENCY COORDINATION REGARDING 

PERMITTING 

‘‘560. Coordination of agency administrative operations for efficient decisionmaking.’’. 

22 (c) REGULATIONS.— 


srobinson on DSK4SPTVN1PROD with BILLS
68 

HR 4078 PCS

1 (1) COUNCIL ON ENVIRONMENTAL QUALITY.— 

2 Not later than 180 days after the date of enactment 

3 of this title, the Council on Environmental Quality 

4 shall amend the regulations contained in part 1500 

5 of title 40, Code of Federal Regulations, to imple6 ment the provisions of this title and the amendments 

7 made by this title, and shall by rule designate States 

8 with laws and procedures that satisfy the criteria 

9 under section 560(d)(2)(A) of title 5, United States 

10 Code. 

11 (2) FEDERAL AGENCIES.—Not later than 120 

12 days after the date that the Council on Environ13 mental Quality amends the regulations contained in 

14 part 1500 of title 40, Code of Federal Regulations, 

15 to implement the provisions of this title and the 

16 amendments made by this title, each Federal agency 

17 with regulations implementing the National Environ18 mental Policy Act of 1969 (42 U.S.C. 4321 et seq.) 

19 shall amend such regulations to implement the pro20 visions of this subchapter. 


srobinson on DSK4SPTVN1PROD with BILLS
69 

HR 4078 PCS

1 TITLE VI—SECURITIES AND EX2 CHANGE COMMISSION REGU3 LATORY ACCOUNTABILITY 

4 SEC. 601. SHORT TITLE. 

5 This title may be cited as the ‘‘SEC Regulatory Ac6 countability Act’’. 

7 SEC. 602. CONSIDERATION BY THE SECURITIES AND EX8 CHANGE COMMISSION OF THE COSTS AND 

9 BENEFITS OF ITS REGULATIONS AND CER10 TAIN OTHER AGENCY ACTIONS. 

11 Section 23 of the Securities Exchange Act of 1934 

12 (15 U.S.C. 78w) is amended by adding at the end the fol13 lowing: 

14 ‘‘(e) CONSIDERATION OF COSTS AND BENEFITS.— 

15 ‘‘(1) IN GENERAL.—Before issuing a regulation 

16 under the securities laws, as defined in section 3(a), 

17 the Commission shall— 

18 ‘‘(A) clearly identify the nature and source 

19 of the problem that the proposed regulation is 

20 designed to address, as well as assess the sig21 nificance of that problem, to enable assessment 

22 of whether any new regulation is warranted; 

23 ‘‘(B) utilize the Chief Economist to assess 

24 the costs and benefits, both qualitative and 

25 quantitative, of the intended regulation and 


srobinson on DSK4SPTVN1PROD with BILLS
70 

HR 4078 PCS

1 propose or adopt a regulation only on a rea2 soned determination that the benefits of the in3 tended regulation justify the costs of the regula4 tion; 

5 ‘‘(C) identify and assess available alter6 natives to the regulation that were considered, 

7 including modification of an existing regulation, 

8 together with an explanation of why the regula9 tion meets the regulatory objectives more effec10 tively than the alternatives; and 

11 ‘‘(D) ensure that any regulation is acces12 sible, consistent, written in plain language, and 

13 easy to understand and shall measure, and seek 

14 to improve, the actual results of regulatory re15 quirements. 

16 ‘‘(2) CONSIDERATIONS AND ACTIONS.— 

17 ‘‘(A) REQUIRED ACTIONS.—In deciding 

18 whether and how to regulate, the Commission 

19 shall assess the costs and benefits of available 

20 regulatory alternatives, including the alternative 

21 of not regulating, and choose the approach that 

22 maximizes net benefits. Specifically, the Com23 mission shall— 

24 ‘‘(i) consistent with the requirements 

25 of section 3(f) (15 U.S.C. 78c(f)), section 


srobinson on DSK4SPTVN1PROD with BILLS
71 

HR 4078 PCS

1 2(b) of the Securities Act of 1933 (15 

2 U.S.C. 77b(b)), section 202(c) of the In3 vestment Advisers Act of 1940 (15 U.S.C. 

4 80b–2(c)), and section 2(c) of the Invest5 ment Company Act of 1940 (15 U.S.C. 

6 80a–2(c)), consider whether the rule7 making will promote efficiency, competi8 tion, and capital formation; 

9 ‘‘(ii) evaluate whether, consistent with 

10 obtaining regulatory objectives, the regula11 tion is tailored to impose the least burden 

12 on society, including market participants, 

13 individuals, businesses of differing sizes, 

14 and other entities (including State and 

15 local governmental entities), taking into ac16 count, to the extent practicable, the cumu17 lative costs of regulations; and 

18 ‘‘(iii) evaluate whether the regulation 

19 is inconsistent, incompatible, or duplicative 

20 of other Federal regulations. 

21 ‘‘(B) ADDITIONAL CONSIDERATIONS.—In 

22 addition, in making a reasoned determination of 

23 the costs and benefits of a potential regulation, 

24 the Commission shall, to the extent that each is 

25 relevant to the particular proposed regulation, 


srobinson on DSK4SPTVN1PROD with BILLS
72 

HR 4078 PCS

1 take into consideration the impact of the regu2 lation on— 

3 ‘‘(i) investor choice; 

4 ‘‘(ii) market liquidity in the securities 

5 markets; and 

6 ‘‘(iii) small businesses 

7 ‘‘(3) EXPLANATION AND COMMENTS.—The 

8 Commission shall explain in its final rule the nature 

9 of comments that it received, including those from 

10 the industry or consumer groups concerning the po11 tential costs or benefits of the proposed rule or pro12 posed rule change, and shall provide a response to 

13 those comments in its final rule, including an expla14 nation of any changes that were made in response 

15 to those comments and the reasons that the Com16 mission did not incorporate those industry group 

17 concerns related to the potential costs or benefits in 

18 the final rule. 

19 ‘‘(4) REVIEW OF EXISTING REGULATIONS.—Not 

20 later than 1 year after the date of enactment of the 

21 SEC Regulatory Accountability Act, and every 5 

22 years thereafter, the Commission shall review its 

23 regulations to determine whether any such regula24 tions are outmoded, ineffective, insufficient, or ex25 cessively burdensome, and shall modify, streamline, 


srobinson on DSK4SPTVN1PROD with BILLS
73 

HR 4078 PCS

1 expand, or repeal them in accordance with such re2 view. In reviewing any regulation (including, not3 withstanding paragraph (6), a regulation issued in 

4 accordance with formal rulemaking provisions) that 

5 subjects issuers with a public float of $250,000,000 

6 or less to the attestation and reporting requirements 

7 of section 404(b) of the Sarbanes-Oxley Act of 2002 

8 (15 U.S.C. 7262(b)), the Commission shall specifi9 cally take into account the large burden of such reg10 ulation when compared to the benefit of such regula11 tion. 

12 ‘‘(5) POST-ADOPTION IMPACT ASSESSMENT.— 

13 ‘‘(A) IN GENERAL.—Whenever the Com14 mission adopts or amends a regulation des15 ignated as a ‘major rule’ within the meaning of 

16 section 804(2) of title 5, United States Code, it 

17 shall state, in its adopting release, the fol18 lowing: 

19 ‘‘(i) The purposes and intended con20 sequences of the regulation. 

21 ‘‘(ii) Appropriate post-implementation 

22 quantitative and qualitative metrics to 

23 measure the economic impact of the regu24 lation and to measure the extent to which 


srobinson on DSK4SPTVN1PROD with BILLS
74 

HR 4078 PCS

1 the regulation has accomplished the stated 

2 purposes. 

3 ‘‘(iii) The assessment plan that will be 

4 used, consistent with the requirements of 

5 subparagraph (B) and under the super6 vision of the Chief Economist of the Com7 mission, to assess whether the regulation 

8 has achieved the stated purposes. 

9 ‘‘(iv) Any unintended or negative con10 sequences that the Commission foresees 

11 may result from the regulation. 

12 ‘‘(B) REQUIREMENTS OF ASSESSMENT

13 PLAN AND REPORT.— 

14 ‘‘(i) REQUIREMENTS OF PLAN.—The 

15 assessment plan required under this para16 graph shall consider the costs, benefits, 

17 and intended and unintended consequences 

18 of the regulation. The plan shall specify 

19 the data to be collected, the methods for 

20 collection and analysis of the data and a 

21 date for completion of the assessment. 

22 ‘‘(ii) SUBMISSION AND PUBLICATION

23 OF REPORT.—The Chief Economist shall 

24 submit the completed assessment report to 

25 the Commission no later than 2 years after 


srobinson on DSK4SPTVN1PROD with BILLS
75 

HR 4078 PCS

1 the publication of the adopting release, un2 less the Commission, at the request of the 

3 Chief Economist, has published at least 90 

4 days before such date a notice in the Fed5 eral Register extending the date and pro6 viding specific reasons why an extension is 

7 necessary. Within 7 days after submission 

8 to the Commission of the final assessment 

9 report, it shall be published in the Federal 

10 Register for notice and comment. Any ma11 terial modification of the plan, as nec12 essary to assess unforeseen aspects or con13 sequences of the regulation, shall be 

14 promptly published in the Federal Register 

15 for notice and comment. 

16 ‘‘(iii) DATA COLLECTION NOT SUB17 JECT TO NOTICE AND COMMENT REQUIRE18 MENTS.—If the Commission has published 

19 its assessment plan for notice and com20 ment, specifying the data to be collected 

21 and method of collection, at least 30 days 

22 prior to adoption of a final regulation or 

23 amendment, such collection of data shall 

24 not be subject to the notice and comment 

25 requirements in section 3506(c) of title 44, 


srobinson on DSK4SPTVN1PROD with BILLS
76 

HR 4078 PCS

1 United States Code (commonly referred to 

2 as the Paperwork Reduction Act). Any ma3 terial modifications of the plan that require 

4 collection of data not previously published 

5 for notice and comment shall also be ex6 empt from such requirements if the Com7 mission has published notice for comment 

8 in the Federal Register of the additional 

9 data to be collected, at least 30 days prior 

10 to initiation of data collection. 

11 ‘‘(iv) FINAL ACTION.—Not later than 

12 180 days after publication of the assess13 ment report in the Federal Register, the 

14 Commission shall issue for notice and com15 ment a proposal to amend or rescind the 

16 regulation, or publish a notice that the 

17 Commission has determined that no action 

18 will be taken on the regulation. Such a no19 tice will be deemed a final agency action. 

20 ‘‘(6) COVERED REGULATIONS AND OTHER

21 AGENCY ACTIONS.—Solely as used in this subsection, 

22 the term ‘regulation’— 

23 ‘‘(A) means an agency statement of gen24 eral applicability and future effect that is de25 signed to implement, interpret, or prescribe law 


srobinson on DSK4SPTVN1PROD with BILLS
77 

HR 4078 PCS

1 or policy or to describe the procedure or prac2 tice requirements of an agency, including rules, 

3 orders of general applicability, interpretive re4 leases, and other statements of general applica5 bility that the agency intends to have the force 

6 and effect of law; and 

7 ‘‘(B) does not include— 

8 ‘‘(i) a regulation issued in accordance 

9 with the formal rulemaking provisions of 

10 section 556 or 557 of title 5, United States 

11 Code; 

12 ‘‘(ii) a regulation that is limited to 

13 agency organization, management, or per14 sonnel matters; 

15 ‘‘(iii) a regulation promulgated pursu16 ant to statutory authority that expressly 

17 prohibits compliance with this provision; 

18 and 

19 ‘‘(iv) a regulation that is certified by 

20 the agency to be an emergency action, if 

21 such certification is published in the Fed22 eral Register.’’. 


srobinson on DSK4SPTVN1PROD with BILLS
78 

HR 4078 PCS

1 SEC. 603. SENSE OF CONGRESS RELATING TO OTHER REGU2 LATORY ENTITIES. 

3 It is the sense of the Congress that other regulatory 

4 entities, including the Public Company Accounting Over5 sight Board, the Municipal Securities Rulemaking Board, 

6 and any national securities association registered under 

7 section 15A of the Securities Exchange Act of 1934 (15 

8 U.S.C. 78o–3) should also follow the requirements of sec9 tion 23(e) of such Act, as added by this title. 

10 SEC. 604. INTERPRETIVE GUIDANCE NULL AND VOID. 

11 Notwithstanding any other provision of law, no inter12 pretive guidance issued by the Securities and Exchange 

13 Commission on or after the effective date of this Act relat14 ing to ‘‘Commission Guidance Regarding Disclosure Re15 lated to Climate Change’’, affecting parts 211, 231, and 

16 249 of title 17, Code of Federal Regulations (as described 

17 in Commission Release Nos. 33–9106; 34–61469; FR– 

18 82), or any successor thereto, may take effect, and such 

19 guidance shall have no force or effect with respect to any 

20 person on or after February 2, 2010. 

21 SEC. 605. OTHER SEC ACTION PROHIBITED. 

22 (a) FURTHER GUIDANCE RELATED TO CLIMATE

23 CHANGE.—The Commission may not issue any interpre24 tive guidance with respect to disclosures related to climate 

25 change on or after the effective date of this Act. 


srobinson on DSK4SPTVN1PROD with BILLS
79 

HR 4078 PCS

1 (b) VOLUNTARY SUBMISSIONS.—The Commission 

2 may not issue any interpretive guidance that would estab3 lish any requirements with respect to the content of or 

4 format for any disclosures related to climate change volun5 tarily submitted by any entity to the Commission on or 

6 after the effective date of this Act. 

7 (c) CIVIL AND ADMINISTRATIVE ACTIONS.—No civil 

8 or administrative action or proceeding pertaining to disclo9 sures related to climate change may be initiated by the 

10 Commission on or after the date of the enactment of this 

11 Act and any such actions or proceedings pending on such 

12 date shall be terminated. 

13 (d) RULE OF CONSTRUCTION.—Nothing in this sec14 tion shall be construed as to— 

15 (1) prohibit the Commission from issuing inter16 pretive guidance with respect to disclosures related 

17 to non-anthropogenic or natural climate variability 

18 observed over comparable time periods; or 

19 (2) terminate an administrative action or pro20 ceeding pertaining to such disclosures. 


srobinson on DSK4SPTVN1PROD with BILLS
80 

HR 4078 PCS

1 TITLE VII—CONSIDERATION BY 

2 COMMODITY FUTURES TRAD3 ING COMMISSION OF CER4 TAIN COSTS AND BENEFITS 

5 SEC. 701. CONSIDERATION BY THE COMMODITY FUTURES 

6 TRADING COMMISSION OF THE COSTS AND 

7 BENEFITS OF ITS REGULATIONS AND OR8 DERS. 

9 Section 15(a) of the Commodity Exchange Act (7 

10 U.S.C. 19(a)) is amended by striking paragraphs (1) and 

11 (2) and inserting the following: 

12 ‘‘(1) IN GENERAL.—Before promulgating a reg13 ulation under this Act or issuing an order (except as 

14 provided in paragraph (3)), the Commission, 

15 through the Office of the Chief Economist, shall as16 sess the costs and benefits, both qualitative and 

17 quantitative, of the intended regulation and propose 

18 or adopt a regulation only on a reasoned determina19 tion that the benefits of the intended regulation jus20 tify the costs of the intended regulation (recognizing 

21 that some benefits and costs are difficult to quan22 tify). It must measure, and seek to improve, the ac23 tual results of regulatory requirements. 


srobinson on DSK4SPTVN1PROD with BILLS
81 

HR 4078 PCS

1 ‘‘(2) CONSIDERATIONS.—In making a reasoned 

2 determination of the costs and the benefits, the 

3 Commission shall evaluate— 

4 ‘‘(A) considerations of protection of market 

5 participants and the public; 

6 ‘‘(B) considerations of the efficiency, com7 petitiveness, and financial integrity of futures 

8 and swaps markets; 

9 ‘‘(C) considerations of the impact on mar10 ket liquidity in the futures and swaps markets; 

11 ‘‘(D) considerations of price discovery; 

12 ‘‘(E) considerations of sound risk manage13 ment practices; 

14 ‘‘(F) available alternatives to direct regula15 tion; 

16 ‘‘(G) the degree and nature of the risks 

17 posed by various activities within the scope of 

18 its jurisdiction; 

19 ‘‘(H) whether, consistent with obtaining 

20 regulatory objectives, the regulation is tailored 

21 to impose the least burden on society, including 

22 market participants, individuals, businesses of 

23 differing sizes, and other entities (including 

24 small communities and governmental entities), 


srobinson on DSK4SPTVN1PROD with BILLS
82 

HR 4078 PCS

1 taking into account, to the extent practicable, 

2 the cumulative costs of regulations; 

3 ‘‘(I) whether the regulation is inconsistent, 

4 incompatible, or duplicative of other Federal 

5 regulations; 

6 ‘‘(J) whether, in choosing among alter7 native regulatory approaches, those approaches 

8 maximize net benefits (including potential eco9 nomic, environmental, and other benefits, dis10 tributive impacts, and equity); and 

11 ‘‘(K) other public interest considerations.’’. 

12 TITLE VIII—ENSURING HIGH 

13 STANDARDS FOR AGENCY 

14 USE OF SCIENTIFIC INFOR15 MATION 

16 SEC. 801. REQUIREMENT FOR FINAL GUIDELINES. 

17 (a) IN GENERAL.—Not later than January 1, 2013, 

18 each Federal agency shall have in effect guidelines for en19 suring and maximizing the quality, objectivity, utility, and 

20 integrity of scientific information relied upon by such 

21 agency. 

22 (b) CONTENT OF GUIDELINES.—The guidelines de23 scribed in subsection (a), with respect to a Federal agency, 

24 shall ensure that— 


srobinson on DSK4SPTVN1PROD with BILLS
83 

HR 4078 PCS

1 (1) when scientific information is considered by 

2 the agency in policy decisions— 

3 (A) the information is subject to well-es4 tablished scientific processes, including peer re5 view where appropriate; 

6 (B) the agency appropriately applies the 

7 scientific information to the policy decision; 

8 (C) except for information that is pro9 tected from disclosure by law or administrative 

10 practice, the agency makes available to the pub11 lic the scientific information considered by the 

12 agency; 

13 (D) the agency gives greatest weight to in14 formation that is based on experimental, empir15 ical, quantifiable, and reproducible data that is 

16 developed in accordance with well-established 

17 scientific processes; and 

18 (E) with respect to any proposed rule 

19 issued by the agency, such agency follows proce20 dures that include, to the extent feasible and 

21 permitted by law, an opportunity for public 

22 comment on all relevant scientific findings; 

23 (2) the agency has procedures in place to make 

24 policy decisions only on the basis of the best reason25 ably obtainable scientific, technical, economic, and 


srobinson on DSK4SPTVN1PROD with BILLS
84 

HR 4078 PCS

1 other evidence and information concerning the need 

2 for, consequences of, and alternatives to the deci3 sion; and 

4 (3) the agency has in place procedures to iden5 tify and address instances in which the integrity of 

6 scientific information considered by the agency may 

7 have been compromised, including instances in which 

8 such information may have been the product of a 

9 scientific process that was compromised. 

10 (c) APPROVAL NEEDED FOR POLICY DECISIONS TO

11 TAKE EFFECT.—No policy decision issued after January 

12 1, 2013, by an agency subject to this section may take 

13 effect prior to such date that the agency has in effect 

14 guidelines under subsection (a) that have been approved 

15 by the Director of the Office of Science and Technology 

16 Policy. 

17 (d) POLICY DECISIONS NOT IN COMPLIANCE.—A 

18 policy decision of an agency that does not comply with 

19 guidelines approved under subsection (c) shall be deemed 

20 to be arbitrary, capricious, an abuse of discretion, and oth21 erwise not in accordance with law. 

22 (e) DEFINITIONS.—For purposes of this section: 

23 (1) AGENCY.—The term ‘‘agency’’ has the 

24 meaning given such term in section 551(1) of title 

25 5, United States Code. 


srobinson on DSK4SPTVN1PROD with BILLS
85 

HR 4078 PCS

1 (2) POLICY DECISION.—The term ‘‘policy deci2 sion’’ means, with respect to an agency, an agency 

3 action as defined in section 551(13) of title 5, 

4 United States Code, (other than an adjudication, as 

5 defined in section 551(7) of such title), and in6 cludes— 

7 (A) the listing, labeling, or other identifica8 tion of a substance, product, or activity as haz9 ardous or creating risk to human health, safety, 

10 or the environment; and 

11 (B) agency guidance. 

12 (3) AGENCY GUIDANCE.—The term ‘‘agency 

13 guidance’’ means an agency statement of general ap14 plicability and future effect, other than a regulatory 

15 action, that sets forth a policy on a statutory, regu16 latory, or technical issue or on an interpretation of 

17 a statutory or regulatory issue. 

18 TITLE IX—TRACKING THE COST 

19 TO TAXPAYERS OF FEDERAL 

20 LITIGATION 

21 SEC. 901. SHORT TITLE. 

22 This title may be cited as the ‘‘Tracking the Cost to 

23 Taxpayers of Federal Litigation Act’’. 


srobinson on DSK4SPTVN1PROD with BILLS
86 

HR 4078 PCS

1 SEC. 902. MODIFICATION OF EQUAL ACCESS TO JUSTICE 

2 PROVISIONS. 

3 (a) AGENCY PROCEEDINGS.—Section 504 of title 5, 

4 United States Code, is amended— 

5 (1) in subsection (c)(1), by striking ‘‘, United 

6 States Code’’; and 

7 (2) by striking subsections (e) and (f) and in8 serting the following: 

9 ‘‘(e)(1) The Chairman of the Administrative Con10 ference of the United States, after consultation with the 

11 Chief Counsel for Advocacy of the Small Business Admin12 istration, shall report annually to the Congress on the 

13 amount of fees and other expenses awarded during the 

14 preceding fiscal year pursuant to this section. The report 

15 shall describe the number, nature, and amount of the 

16 awards, the claims involved in the controversy, and any 

17 other relevant information that may aid the Congress in 

18 evaluating the scope and impact of such awards. Each 

19 agency shall provide the Chairman in a timely manner all 

20 information necessary for the Chairman to comply with 

21 the requirements of this subsection. The report shall be 

22 made available to the public online. 

23 ‘‘(2)(A) The report required by paragraph (1) shall 

24 account for all payments of fees and other expenses 

25 awarded under this section that are made pursuant to a 

26 settlement agreement, regardless of whether the settleVerDate Mar 15 2010 22:43 Jul 31, 2012 Jkt 019200 PO 00000 Frm 00086 Fmt 6652 Sfmt 6201 E:\BILLS\H4078.PCS H4078

srobinson on DSK4SPTVN1PROD with BILLS
87 

HR 4078 PCS

1 ment agreement is sealed or otherwise subject to non2 disclosure provisions, except that any version of the report 

3 made available to the public may not reveal any informa4 tion the disclosure of which is contrary to the national se5 curity of the United States. 

6 ‘‘(B) The disclosure of fees and other expenses re7 quired under subparagraph (A) does not affect any other 

8 information that is subject to nondisclosure provisions in 

9 the settlement agreement. 

10 ‘‘(f) The Chairman of the Administrative Conference 

11 shall create and maintain online a searchable database 

12 containing the following information with respect to each 

13 award of fees and other expenses under this section: 

14 ‘‘(1) The name of each party to whom the 

15 award was made. 

16 ‘‘(2) The name of each counsel of record rep17 resenting each party to whom the award was made. 

18 ‘‘(3) The agency to which the application for 

19 the award was made. 

20 ‘‘(4) The name of each counsel of record rep21 resenting the agency to which the application for the 

22 award was made. 

23 ‘‘(5) The name of each administrative law 

24 judge, and the name of any other agency employee 

25 serving in an adjudicative role, in the adversary adVerDate Mar 15 2010 22:43 Jul 31, 2012 Jkt 019200 PO 00000 Frm 00087 Fmt 6652 Sfmt 6201 E:\BILLS\H4078.PCS H4078

srobinson on DSK4SPTVN1PROD with BILLS
88 

HR 4078 PCS

1 judication that is the subject of the application for 

2 the award. 

3 ‘‘(6) The amount of the award. 

4 ‘‘(7) The names and hourly rates of each expert 

5 witness for whose services the award was made 

6 under the application. 

7 ‘‘(8) The basis for the finding that the position 

8 of the agency concerned was not substantially justi9 fied. 

10 ‘‘(g) The online searchable database described in sub11 section (f) may not reveal any information the disclosure 

12 of which is prohibited by law or court order, or the disclo13 sure of which is contrary to the national security of the 

14 United States.’’. 

15 (b) COURT CASES.—Section 2412(d) of title 28, 

16 United States Code, is amended by adding at the end the 

17 following: 

18 ‘‘(5)(A) The Chairman of the Administrative Con19 ference of the United States shall report annually to the 

20 Congress on the amount of fees and other expenses award21 ed during the preceding fiscal year pursuant to this sub22 section. The report shall describe the number, nature, and 

23 amount of the awards, the claims involved in each con24 troversy, and any other relevant information which may 

25 aid the Congress in evaluating the scope and impact of 


srobinson on DSK4SPTVN1PROD with BILLS
89 

HR 4078 PCS

1 such awards. Each agency shall provide the Chairman 

2 with such information as is necessary for the Chairman 

3 to comply with the requirements of this paragraph. The 

4 report shall be made available to the public online. 

5 ‘‘(B)(i) The report required by subparagraph (A) 

6 shall account for all payments of fees and other expenses 

7 awarded under this subsection that are made pursuant to 

8 a settlement agreement, regardless of whether the settle9 ment agreement is sealed or otherwise subject to non10 disclosure provisions, except that any version of the report 

11 made available to the public may not reveal any informa12 tion the disclosure of which is contrary to the national se13 curity of the United States. 

14 ‘‘(ii) The disclosure of fees and other expenses re15 quired under clause (i) does not affect any other informa16 tion that is subject to nondisclosure provisions in the set17 tlement agreement. 

18 ‘‘(C) The Chairman of the Administrative Conference 

19 shall include and clearly identify in the annual report 

20 under subparagraph (A), for each case in which an award 

21 of fees and other expenses is included in the report— 

22 ‘‘(i) any amounts paid from section 1304 of 

23 title 31 for a judgment in the case; 

24 ‘‘(ii) the amount of the award of fees and other 

25 expenses; and 


srobinson on DSK4SPTVN1PROD with BILLS
90 

HR 4078 PCS

1 ‘‘(iii) the statute under which the plaintiff filed 

2 suit. 

3 ‘‘(6) The Chairman of the Administrative Conference 

4 shall create and maintain online a searchable database 

5 containing the following information with respect to each 

6 award of fees and other expenses under this subsection: 

7 ‘‘(A) The name of each party to whom the 

8 award was made. 

9 ‘‘(B) The name of each counsel of record rep10 resenting each party to whom the award was made. 

11 ‘‘(C) The agency involved in the case. 

12 ‘‘(D) The name of each counsel of record rep13 resenting the agency involved in the case. 

14 ‘‘(E) The name of each judge in the case, and 

15 the court in which the case was heard. 

16 ‘‘(F) The amount of the award. 

17 ‘‘(G) The names and hourly rates of each ex18 pert witness for whose services the award was made. 

19 ‘‘(H) The basis for the finding that the position 

20 of the agency concerned was not substantially justi21 fied. 

22 ‘‘(7) The online searchable database described in 

23 paragraph (6) may not reveal any information the disclo24 sure of which is prohibited by law or court order, or the 


srobinson on DSK4SPTVN1PROD with BILLS
91 

HR 4078 PCS

1 disclosure of which is contrary to the national security of 

2 the United States. 

3 ‘‘(8) The Attorney General of the United States shall 

4 provide to the Chairman of the Administrative Conference 

5 of the United States in a timely manner all information 

6 necessary for the Chairman to carry out the Chairman’s 

7 responsibilities under this subsection.’’. 

8 (c) CLERICAL AMENDMENT.—Section 2412(e) of title 

9 28, United States Code, is amended by striking ‘‘of section 

10 2412 of title 28, United States Code,’’ and inserting ‘‘of 

11 this section’’. 

Passed the House of Representatives July 26, 2012. 

Attest: KAREN L. HAAS, 

Clerk. 


srobinson on DSK4SPTVN1PROD with BILLS
Calendar No. 477 

112TH CONGRESS 

2D SESSION H. R. 4078 

AN ACT 

To provide that no agency may take any significant 

equal to or less than 6.0 percent. regulatory action until the unemployment rate is 

JULY 31, 2012 

Read the second time and placed on the calendar 


srobinson on DSK4SPTVN1PROD with BILLS