112TH CONGRESS 

2D SESSION H. R. 4078 

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, 
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1 SECTION 1. SHORT TITLE. 

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

3 and Small Business Job Creation Act’’. 

4 SEC. 2. TABLE OF CONTENTS. 

5 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 

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. 
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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. 

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

2 date that the Secretary of Labor submits the report under 

3 subsection (b). 

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

5 submit a report to the Director of the Office of Manage6 ment and Budget when the Secretary determines that the 

7 Bureau of Labor Statistics average of monthly unemploy8 ment rates for any quarter beginning after the date of the 

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

10 SEC. 103. WAIVERS AND EXCEPTIONS. 

11 (a) IN GENERAL.—Notwithstanding any other provi12 sion of this title, an agency may take a significant regu13 latory action only in accordance with subsection (b), (c), 

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

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

16 significant regulatory action if the President determines 

17 by Executive Order that the significant regulatory action 

18 is— 

19 (1) necessary because of an imminent threat to 

20 health or safety or other emergency; 

21 (2) necessary for the enforcement of criminal or 

22 civil rights laws; 

23 (3) necessary for the national security of the 

24 United States; or 
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1 (4) issued pursuant to any statute imple2 menting an international trade agreement. 

3 (c) DEREGULATORY EXCEPTION.—An agency may 

4 take a significant regulatory action if the Administrator 

5 of the Office of Information and Regulatory Affairs of the 

6 Office of Management and Budget certifies in writing that 

7 the significant regulatory action is limited to repealing an 

8 existing rule. 

9 (d) CONGRESSIONAL WAIVERS.— 

10 (1) SUBMISSION.—For any significant regu11 latory action not eligible for a Presidential waiver 

12 pursuant to subsection (b), the President may sub13 mit a written request to Congress for a waiver of the 

14 application of section 102 for such action. 

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

16 under this subsection shall— 

17 (A) identify the significant regulatory ac18 tion and the scope of the requested waiver; 

19 (B) describe all the reasons the significant 

20 regulatory action is necessary to protect the 

21 public health, safety, or welfare; and 

22 (C) include an explanation of why the sig23 nificant regulatory action is ineligible for a 

24 Presidential waiver under subsection (b). 
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1 (3) CONGRESSIONAL ACTION.—Congress shall 

2 give expeditious consideration and take appropriate 

3 legislative action with respect to any submission by 

4 the President under this subsection. 

5 SEC. 104. JUDICIAL REVIEW. 

6 (a) REVIEW.—Any party adversely affected or ag7 grieved by any rule or guidance resulting from a regu8 latory action taken in violation of this title is entitled to 

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

10 United States Code. Any determination by either the 

11 President or the Secretary of Labor under this title shall 

12 be subject to judicial review under such chapter. 

13 (b) JURISDICTION.—Each court having jurisdiction 

14 to review any rule or guidance resulting from a significant 

15 regulatory action for compliance with any other provision 

16 of law shall have jurisdiction to review all claims under 

17 this title. 

18 (c) RELIEF.—In granting any relief in any civil ac19 tion under this section, the court shall order the agency 

20 to take corrective action consistent with this title and 

21 chapter 7 of title 5, United States Code, including re22 manding the rule or guidance resulting from the signifi23 cant regulatory action to the agency and enjoining the ap24 plication or enforcement of that rule or guidance, unless 

25 the court finds by a preponderance of the evidence that 
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1 application or enforcement is required to protect against 

2 an imminent and serious threat to the national security 

3 of the United States. 

4 (d) REASONABLE ATTORNEY’S FEES FOR SMALL

5 BUSINESSES.—The court shall award reasonable attor6 ney’s fees and costs to a substantially prevailing small 

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

8 business may qualify as substantially prevailing even with9 out obtaining a final judgment in its favor if the agency 

10 that took the significant regulatory action changes its po11 sition after the civil action is filed. Such award shall be 

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

13 agency that took the challenged agency action. 

14 (e) LIMITATION ON COMMENCING CIVIL ACTION.— 

15 A party may seek and obtain judicial review during the 

16 1-year period beginning on the date of the challenged 

17 agency action or within 90 days after an enforcement ac18 tion or notice thereof, except that where another provision 

19 of law requires that a civil action be commenced before 

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

21 shall apply. 

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

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

24 unincorporated business or a sole proprietorship, that em25 ploys not more than 500 employees or that has a net 
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1 worth of less than $7,000,000 on the date a civil action 

2 arising under this title is filed. 

3 SEC. 105. DEFINITIONS. 

4 In this title: 

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

6 meaning given that term under section 551 of title 

7 5, United States Code, except that such term does 

8 not include— 

9 (A) the Board of Governors of the Federal 

10 Reserve System; 

11 (B) the Federal Open Market Committee; 

12 or 

13 (C) the United States Postal Service. 

14 (2) REGULATORY ACTION.—The term ‘‘regu15 latory action’’ means any substantive action by an 

16 agency that promulgates or is expected to lead to the 

17 promulgation of a final rule or regulation, including 

18 a notice of inquiry, an advance notice of proposed 

19 rulemaking, and a notice of proposed rulemaking. 

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

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

22 States Code. 

23 (4) SIGNIFICANT REGULATORY ACTION.—The 

24 term ‘‘significant regulatory action’’ means any reg25 ulatory action that is likely to result in a rule or 
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1 guidance that the Administrator of the Office of In2 formation and Regulatory Affairs of the Office of 

3 Management and Budget finds is likely to have an 

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

5 or adversely affect in a material way the economy, 

6 a sector of the economy, productivity, competition, 

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

8 entities, or State, local, or tribal governments or 

9 communities. In determining the annual cost to the 

10 economy under this paragraph, the Administrator 

11 shall take into account any expected change in rev12 enue of businesses that will be caused by such regu13 latory action, as well as any change in revenue of 

14 businesses that has already taken place as busi15 nesses prepare for the implementation of the regu16 latory action. If meeting that definition, such term 

17 includes any requirement by the Secretary of the 

18 Treasury, except to the extent provided in Treasury 

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

20 a payor of interest make an information return in 

21 the case of interest— 

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

23 the Internal Revenue Code of 1986, and 

24 (2) which is paid— 

25 (A) to a nonresident alien, and 
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1 (B) on a deposit maintained at an office 

2 within the United States. 

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

4 has the meaning given that term under section 

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

6 TITLE II—MIDNIGHT RULE 

7 RELIEF 

8 SEC. 201. SHORT TITLE. 

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

10 Act of 2012’’. 

11 SEC. 202. MORATORIUM ON MIDNIGHT RULES. 

12 Except as provided under sections 203 and 204, dur13 ing the moratorium period, an agency may not propose 

14 or finalize any midnight rule that the Administrator of the 

15 Office of Information and Regulatory Affairs of the Office 

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

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

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

19 of the economy, productivity, competition, jobs, the envi20 ronment, public health or safety, small entities, or State, 

21 local, or tribal governments or communities. 

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

23 AND JUDICIAL DEADLINES. 

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

25 respect to any deadline— 
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1 (1) for, relating to, or involving any midnight 

2 rule; 

3 (2) that was established before the beginning of 

4 the moratorium period; and 

5 (3) that is required to be taken during the mor6 atorium period. 

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

8 30 days after the beginning of a moratorium period, the 

9 Administrator of the Office of Information and Regulatory 

10 Affairs of the Office of Management and Budget shall 

11 identify and publish in the Federal Register a list of dead12 lines covered by subsection (a). 

13 SEC. 204. EXCEPTION. 

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

15 apply to a midnight rule if the President determines that 

16 the midnight rule is— 

17 (1) necessary because of an imminent threat to 

18 health or safety or other emergency; 

19 (2) necessary for the enforcement of criminal or 

20 civil rights laws; 

21 (3) necessary for the national security of the 

22 United States; or 

23 (4) issued pursuant to any statute imple24 menting an international trade agreement. 
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1 (b) DEREGULATORY EXCEPTION.—Section 202 shall 

2 not apply to a midnight rule that the Administrator of 

3 the Office of Information and Regulatory Affairs within 

4 the Office of Management and Budget certifies in writing 

5 is limited to repealing an existing rule. 

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

7 days after a determination under subsection (a) or a cer8 tification is made under subsection (b), the head of the 

9 relevant agency shall publish in the Federal Register any 

10 midnight rule excluded from the moratorium period due 

11 to an exception under this section. 

12 SEC. 205. DEFINITIONS. 

13 In this title: 

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

15 meaning given that term under section 551 of title 

16 5, United States Code, except that such term does 

17 not include— 

18 (A) the Board of Governors of the Federal 

19 Reserve System; 

20 (B) the Federal Open Market Committee; 

21 or 

22 (C) the United States Postal Service. 

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

24 any date certain for fulfilling any obligation or exer25 cising any authority established by or under any 
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1 Federal statute or rule, or by or under any court 

2 order implementing any Federal statute, regulation, 

3 or rule. 

4 (3) MORATORIUM PERIOD.—The term ‘‘morato5 rium period’’ means the day after the day referred 

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

7 through January 20 of the following year, in which 

8 a President is not serving a consecutive term. 

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

10 rule’’ means an agency statement of general applica11 bility and future effect, issued during the morato12 rium period, that is intended to have the force and 

13 effect of law and is designed— 

14 (A) to implement, interpret, or prescribe 

15 law or policy; or 

16 (B) to describe the procedure or practice 

17 requirements of an agency. 

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

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

20 States Code. 

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

22 has the meaning given that term under section 

23 601(6) of title 5, United States Code. 
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1 TITLE III—REGULATORY 

2 DECREES AND SETTLEMENTS 

3 SEC. 301. SHORT TITLE. 

4 This title may be cited as the ‘‘Sunshine for Regu5 latory Decrees and Settlements Act of 2012’’. 

6 SEC. 302. CONSENT DECREE AND SETTLEMENT REFORM. 

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

8 apply in the case of— 

9 (1) a consent decree or settlement agreement in 

10 an action to compel agency action alleged to be un11 lawfully withheld or unreasonably delayed that per12 tains to a regulatory action that affects the rights of 

13 private parties other than the plaintiff or the rights 

14 of State, local or Tribal government entities— 

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

16 United States Code; or 

17 (B) brought under any other statute au18 thorizing such an action; and 

19 (2) any other consent decree or settlement 

20 agreement that requires agency action that pertains 

21 to a regulatory action that affects the rights of pri22 vate parties other than the plaintiff or the rights of 

23 State, local or Tribal government entities. 
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1 (b) IN GENERAL.—In the case of an action to be re2 solved by a consent decree or a settlement agreement de3 scribed in paragraph (1), the following shall apply: 

4 (1) The complaint in the action, the consent de5 cree or settlement agreement, the statutory basis for 

6 the consent decree or settlement agreement and its 

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

8 shall be published, including electronically, in a read9 ily accessible manner by the defendant agency. 

10 (2) Until the conclusion of an opportunity for 

11 affected parties to intervene in the action, a party 

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

13 decree or to dismiss the case pursuant to a settle14 ment agreement. 

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

16 party that would be affected by the agency action in 

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

18 that the interests of that party would not be rep19 resented adequately by the current parties to the ac20 tion. In considering a motion to intervene filed by a 

21 State, local or Tribal government entity, the court 

22 shall take due account of whether the movant— 

23 (A) administers jointly with the defendant 

24 agency the statutory provisions that give rise to 

25 the regulatory duty alleged in the complaint; or 
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1 (B) administers State, local or Tribal regu2 latory authority that would be preempted by the 

3 defendant agency’s discharge of the regulatory 

4 duty alleged in the complaint. 

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

6 the action, the court shall include the plaintiff, the 

7 defendant agency, and the intervenors in settlement 

8 discussions. Settlement efforts conducted shall be 

9 pursuant to a court’s mediation or alternative dis10 pute resolution program, or by a district judge, mag11 istrate judge, or special master, as determined by 

12 the assigned judge. 

13 (5) The defendant agency shall publish in the 

14 Federal Register and by electronic means any pro15 posed consent decree or settlement agreement for no 

16 fewer than 60 days of public comment before filing 

17 it with the court, including a statement of the statu18 tory basis for the proposed consent decree or settle19 ment agreement and its terms, allowing comment on 

20 any issue related to the matters alleged in the com21 plaint or addressed or affected by the consent decree 

22 or settlement agreement. 

23 (6) The defendant agency shall— 

24 (A) respond to public comments received 

25 under paragraph (5); and 
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1 (B) when moving that the court enter the 

2 consent decree or for dismissal pursuant to the 

3 settlement agreement— 

4 (i) inform the court of the statutory 

5 basis for the proposed consent decree or 

6 settlement agreement and its terms; 

7 (ii) submit to the court a summary of 

8 the public comments and agency responses; 

9 (iii) certify the index to the adminis10 trative record of the notice and comment 

11 proceeding to the court; and 

12 (iv) make that record fully accessible 

13 to the court. 

14 (7) The court shall include in the judicial 

15 record the full administrative record, the index to 

16 which was certified by the agency under paragraph 

17 (6). 

18 (8) If the consent decree or settlement agree19 ment requires an agency action by a date certain, 

20 the agency shall, when moving for entry of the con21 sent decree or dismissal based on the settlement 

22 agreement— 

23 (A) inform the court of any uncompleted 

24 mandatory duties to take regulatory action that 

25 the decree or agreement does not address; 
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1 (B) how the decree or agreement, if ap2 proved, would affect the discharge of those du3 ties; and 

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

5 on the order in which the agency discharges its 

6 mandatory duties is in the public interest. 

7 (9) The court shall presume, subject to rebut8 tal, that it is proper to allow amicus participation by 

9 any party who filed public comments on the consent 

10 decree or settlement agreement during the court’s 

11 consideration of a motion to enter the decree or dis12 miss the case on the basis of the agreement. 

13 (10) The court shall ensure that the proposed 

14 consent decree or settlement agreement allows suffi15 cient time and procedure for the agency to comply 

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

17 other applicable statutes that govern rule making 

18 and, unless contrary to the public interest, the provi19 sions of any executive orders that govern rule mak20 ing. 

21 (11) The defendant agency may, at its discre22 tion, hold a public hearing pursuant to notice in the 

23 Federal Register and by electronic means, on wheth24 er to enter into the consent decree or settlement 

25 agreement. If such a hearing is held, then, in ac-
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1 cordance with paragraph (6), the agency shall sub2 mit to the court a summary of the proceedings and 

3 the certified index to the hearing record, full access 

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

5 the full hearing record shall be included in the judi6 cial record. 

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

8 the Department of Justice, or the head of the de9 fendant Federal agency, in cases litigated independ10 ently by that agency, shall certify to the court his 

11 or her approval of any proposed consent decree or 

12 settlement agreement that contains any of the fol13 lowing terms— 

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

15 that— 

16 (i) convert into mandatory duties the 

17 otherwise discretionary authorities of an 

18 agency to propose, promulgate, revise or 

19 amend regulations; 

20 (ii) commit the agency to expend 

21 funds that Congress has not appropriated 

22 and that have not been budgeted for the 

23 action in question, or commit an agency to 

24 seek a particular appropriation or budget 

25 authorization; 
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1 (iii) divest the agency of discretion 

2 committed to it by Congress or the Con3 stitution, whether such discretionary power 

4 was granted to respond to changing cir5 cumstances, to make policy or managerial 

6 choices, or to protect the rights of third 

7 parties; or 

8 (iv) otherwise afford relief that the 

9 court could not enter on its own authority 

10 upon a final judgment in the litigation; or 

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

12 terms that— 

13 (i) interfere with the agency’s author14 ity to revise, amend, or issue rules through 

15 the procedures set forth in chapter 5 of 

16 title 5, United States Code, or any other 

17 statute or executive order prescribing rule 

18 making procedures for rule makings that 

19 are the subject of the settlement agree20 ment; 

21 (ii) commit the agency to expend 

22 funds that Congress has not appropriated 

23 and that have not been budgeted for the 

24 action in question; or 
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1 (iii) provide a remedy for the agency’s 

2 failure to comply with the terms of the set3 tlement agreement other than the revival 

4 of the action resolved by the settlement 

5 agreement, if the agreement commits the 

6 agency to exercise its discretion in a par7 ticular way and such discretionary power 

8 was committed to the agency by Congress 

9 or the Constitution to respond to changing 

10 circumstances, to make policy or manage11 rial choices, or to protect the rights of 

12 third parties. 

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

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

15 content of complaints, consent decrees, and settlement 

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

17 statutory basis for each consent decree or settlement 

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

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

20 SEC. 303. MOTIONS TO MODIFY CONSENT DECREES. 

21 When a defendant agency moves the court to modify 

22 a previously entered consent decree described under sec23 tion 302 and the basis of the motion is that the terms 

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

25 to the agency’s obligations to fulfill other duties or due 
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1 to changed facts and circumstances, the court shall review 

2 the motion and the consent decree de novo. 

3 SEC. 304. EFFECTIVE DATE. 

4 The provisions of this title apply to any covered con5 sent decree or settlement agreement proposed to a court 

6 after the date of enactment of this title. 

7 TITLE IV—UNFUNDED MAN8 DATES INFORMATION AND 

9 TRANSPARENCY 

10 SEC. 401. SHORT TITLE. 

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

12 Information and Transparency Act of 2012’’. 

13 SEC. 402. PURPOSE. 

14 The purpose of this title is— 

15 (1) to improve the quality of the deliberations 

16 of Congress with respect to proposed Federal man17 dates by— 

18 (A) providing Congress and the public with 

19 more complete information about the effects of 

20 such mandates; and 

21 (B) ensuring that Congress acts on such 

22 mandates only after focused deliberation on 

23 their effects; and 

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

25 public to identify Federal mandates that may impose 
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1 undue harm on consumers, workers, employers, 

2 small businesses, and State, local, and tribal govern3 ments. 

4 SEC. 403. PROVIDING FOR CONGRESSIONAL BUDGET OF5 FICE STUDIES ON POLICIES INVOLVING 

6 CHANGES IN CONDITIONS OF GRANT AID. 

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

8 1974 (2 U.S.C. 602(g)) is amended by adding at the end 

9 the following new paragraph: 

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

11 any Chairman or ranking member of the minority of 

12 a Committee of the Senate or the House of Rep13 resentatives, the Director shall conduct an assess14 ment comparing the authorized level of funding in a 

15 bill or resolution to the prospective costs of carrying 

16 out any changes to a condition of Federal assistance 

17 being imposed on State, local, or tribal governments 

18 participating in the Federal assistance program con19 cerned or, in the case of a bill or joint resolution 

20 that authorizes such sums as are necessary, an as21 sessment of an estimated level of funding compared 

22 to such costs.’’. 
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1 SEC. 404. CLARIFYING THE DEFINITION OF DIRECT COSTS 

2 TO REFLECT CONGRESSIONAL BUDGET OF3 FICE PRACTICE. 

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

5 1974 (2 U.S.C. 658(3)(A)(i)) is amended— 

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

7 or’’ before ‘‘be required’’; and 

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

9 spend’’ the following: ‘‘or could forgo in profits, in10 cluding costs passed on to consumers or other enti11 ties taking into account, to the extent practicable, 

12 behavioral changes,’’. 

13 SEC. 405. EXPANDING THE SCOPE OF REPORTING RE14 QUIREMENTS TO INCLUDE REGULATIONS IM15 POSED BY INDEPENDENT REGULATORY 

16 AGENCIES. 

17 Paragraph (1) of section 421 of the Congressional 

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

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

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

21 Governors of the Federal Reserve System or the Federal 

22 Open Market Committee’’. 
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1 SEC. 406. AMENDMENTS TO REPLACE OFFICE OF MANAGE2 MENT AND BUDGET WITH OFFICE OF INFOR3 MATION AND REGULATORY AFFAIRS. 

4 The Unfunded Mandates Reform Act of 1995 (Public 

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

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

7 (A) in the subsection heading, by striking 

8 ‘‘OFFICE OF MANAGEMENT AND BUDGET’’ and 

9 inserting ‘‘OFFICE OF INFORMATION AND REG10 ULATORY AFFAIRS’’; and 

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

12 Management and Budget’’ and inserting ‘‘Ad13 ministrator of the Office of Information and 

14 Regulatory Affairs’’; 

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

16 (A) in the subsection heading, by striking 

17 ‘‘OMB’’; and 

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

19 Management and Budget’’ and inserting ‘‘Ad20 ministrator of the Office of Information and 

21 Regulatory Affairs’’; and 

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

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

24 and inserting ‘‘Administrator of the Office of Infor25 mation and Regulatory Affairs’’. 
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1 SEC. 407. APPLYING SUBSTANTIVE POINT OF ORDER TO 

2 PRIVATE SECTOR MANDATES. 

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

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

5 (1) by striking ‘‘Federal intergovernmental 

6 mandates’’ and inserting ‘‘Federal mandates’’; and 

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

8 424(a)(1)’’. 

9 SEC. 408. REGULATORY PROCESS AND PRINCIPLES. 

10 Section 201 of the Unfunded Mandates Reform Act 

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

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

13 ‘‘(a) IN GENERAL.—Each agency shall, unless other14 wise expressly prohibited by law, assess the effects of Fed15 eral regulatory actions on State, local, and tribal govern16 ments and the private sector (other than to the extent that 

17 such regulatory actions incorporate requirements specifi18 cally set forth in law) in accordance with the following 

19 principles: 

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

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

22 the failures of private markets or public institutions 

23 that warrant new agency action) as well as assess 

24 the significance of that problem. 

25 ‘‘(2) Each agency shall examine whether exist26 ing regulations (or other law) have created, or con-
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•HR 4078 EH

1 tributed to, the problem that a new regulation is in2 tended to correct and whether those regulations (or 

3 other law) should be modified to achieve the in4 tended goal of regulation more effectively. 

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

6 available alternatives to direct regulation, including 

7 providing economic incentives to encourage the de8 sired behavior, such as user fees or marketable per9 mits, or providing information upon which choices 

10 can be made by the public. 

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

12 is the best available method of achieving the regu13 latory objective, it shall design its regulations in the 

14 most cost-effective manner to achieve the regulatory 

15 objective. In doing so, each agency shall consider in16 centives for innovation, consistency, predictability, 

17 the costs of enforcement and compliance (to the gov18 ernment, regulated entities, and the public), flexi19 bility, distributive impacts, and equity. 

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

21 and the benefits of the intended regulation and, rec22 ognizing that some costs and benefits are difficult to 

23 quantify, propose or adopt a regulation, unless ex24 pressly prohibited by law, only upon a reasoned de-
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•HR 4078 EH

1 termination that the benefits of the intended regula2 tion justify its costs. 

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

4 best reasonably obtainable scientific, technical, eco5 nomic, and other information concerning the need 

6 for, and consequences of, the intended regulation. 

7 ‘‘(7) Each agency shall identify and assess al8 ternative forms of regulation and shall, to the extent 

9 feasible, specify performance objectives, rather than 

10 specifying the behavior or manner of compliance 

11 that regulated entities must adopt. 

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

13 are inconsistent, incompatible, or duplicative with its 

14 other regulations or those of other Federal agencies. 

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

16 minimize the costs of the cumulative impact of regu17 lations. 

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

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

20 minimizing the potential for uncertainty and litiga21 tion arising from such uncertainty. 

22 ‘‘(b) REGULATORY ACTION DEFINED.—In this sec23 tion, the term ‘regulatory action’ means any substantive 

24 action by an agency (normally published in the Federal 

25 Register) that promulgates or is expected to lead to the 
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1 promulgation of a final rule or regulation, including ad2 vance notices of proposed rulemaking and notices of pro3 posed rulemaking.’’. 

4 SEC. 409. EXPANDING THE SCOPE OF STATEMENTS TO AC5 COMPANY SIGNIFICANT REGULATORY AC6 TIONS. 

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

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

9 1532) is amended to read as follows: 

10 ‘‘(a) IN GENERAL.—Unless otherwise expressly pro11 hibited by law, before promulgating any general notice of 

12 proposed rulemaking or any final rule, or within six 

13 months after promulgating any final rule that was not pre14 ceded by a general notice of proposed rulemaking, if the 

15 proposed rulemaking or final rule includes a Federal man16 date that may result in an annual effect on State, local, 

17 or tribal governments, or to the private sector, in the ag18 gregate of $50,000,000 or more in any 1 year, the agency 

19 shall prepare a written statement containing the following: 

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

21 or final rule, together with a reasonably detailed de22 scription of the need for the proposed rulemaking or 

23 final rule and an explanation of how the proposed 

24 rulemaking or final rule will meet that need. 
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1 ‘‘(2) An assessment of the potential costs and 

2 benefits of the proposed rulemaking or final rule, in3 cluding an explanation of the manner in which the 

4 proposed rulemaking or final rule is consistent with 

5 a statutory requirement and avoids undue inter6 ference with State, local, and tribal governments in 

7 the exercise of their governmental functions. 

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

9 including the underlying analysis, of benefits antici10 pated from the proposed rulemaking or final rule 

11 (such as the promotion of the efficient functioning of 

12 the economy and private markets, the enhancement 

13 of health and safety, the protection of the natural 

14 environment, and the elimination or reduction of dis15 crimination or bias). 

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

17 including the underlying analysis, of costs antici18 pated from the proposed rulemaking or final rule 

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

20 administering the final rule and to businesses and 

21 others in complying with the final rule, and any ad22 verse effects on the efficient functioning of the econ23 omy, private markets (including productivity, em24 ployment, and international competitiveness), health, 

25 safety, and the natural environment); 
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1 ‘‘(5) Estimates by the agency, if and to the ex2 tent that the agency determines that accurate esti3 mates are reasonably feasible, of— 

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

5 Federal mandate; and 

6 ‘‘(B) any disproportionate budgetary ef7 fects of the Federal mandate upon any par8 ticular regions of the nation or particular State, 

9 local, or tribal governments, urban or rural or 

10 other types of communities, or particular seg11 ments of the private sector. 

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

13 the agency’s prior consultation with the private sec14 tor and elected representatives (under section 204) 

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

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

17 concerns that were presented by the private sector 

18 and State, local, or tribal governments either orally 

19 or in writing to the agency. 

20 ‘‘(C) A detailed summary of the agency’s eval21 uation of those comments and concerns. 

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

23 complied with each of the regulatory principles de24 scribed in section 201.’’. 
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1 (b) REQUIREMENT FOR DETAILED SUMMARY.—Sub2 section (b) of section 202 of such Act is amended by in3 serting ‘‘detailed’’ before ‘‘summary’’. 

4 SEC. 410. ENHANCED STAKEHOLDER CONSULTATION. 

5 Section 204 of the Unfunded Mandates Reform Act 

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

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

8 PRIVATE SECTOR’’ before ‘‘INPUT’’; 

9 (2) in subsection (a)— 

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

11 within the private sector (including small busi12 ness),’’ after ‘‘on their behalf)’’; 

13 (B) by striking ‘‘Federal intergovernmental 

14 mandates’’ and inserting ‘‘Federal mandates’’; 

15 and 

16 (3) by amending subsection (c) to read as fol17 lows: 

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

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

20 and regulations, the following guidelines shall be followed: 

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

22 possible, before issuance of a notice of proposed rule23 making, continue through the final rule stage, and 

24 be integrated explicitly into the rulemaking process. 
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•HR 4078 EH

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

2 of State, local, and tribal officials and impacted par3 ties within the private sector (including small busi4 nesses). Geographic, political, and other factors that 

5 may differentiate varying points of view should be 

6 considered. 

7 ‘‘(3) Agencies should estimate benefits and 

8 costs to assist with these consultations. The scope of 

9 the consultation should reflect the cost and signifi10 cance of the Federal mandate being considered. 

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

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

13 tribal governments, and impacted parties within 

14 the private sector (including small business), on 

15 costs, benefits, and risks; and 

16 ‘‘(B) solicit ideas about alternative meth17 ods of compliance and potential flexibilities, and 

18 input on whether the Federal regulation will 

19 harmonize with and not duplicate similar laws 

20 in other levels of government. 

21 ‘‘(5) Consultations shall address the cumulative 

22 impact of regulations on the affected entities. 

23 ‘‘(6) Agencies may accept electronic submis24 sions of comments by relevant parties but may not 
34 

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1 use those comments as the sole method of satisfying 

2 the guidelines in this subsection.’’. 

3 SEC. 411. NEW AUTHORITIES AND RESPONSIBILITIES FOR 

4 OFFICE OF INFORMATION AND REGULATORY 

5 AFFAIRS. 

6 Section 208 of the Unfunded Mandates Reform Act 

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

8 ‘‘SEC. 208. OFFICE OF INFORMATION AND REGULATORY AF9 FAIRS RESPONSIBILITIES. 

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

11 of Information and Regulatory Affairs shall provide mean12 ingful guidance and oversight so that each agency’s regu13 lations for which a written statement is required under 

14 section 202 are consistent with the principles and require15 ments of this title, as well as other applicable laws, and 

16 do not conflict with the policies or actions of another agen17 cy. If the Administrator determines that an agency’s regu18 lations for which a written statement is required under 

19 section 202 do not comply with such principles and re20 quirements, are not consistent with other applicable laws, 

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

22 the Administrator shall identify areas of non-compliance, 

23 notify the agency, and request that the agency comply be24 fore the agency finalizes the regulation concerned. 
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1 ‘‘(b) ANNUAL STATEMENTS TO CONGRESS ON AGEN2 CY COMPLIANCE.—The Director of the Office of Informa3 tion and Regulatory Affairs annually shall submit to Con4 gress, including the Committee on Homeland Security and 

5 Governmental Affairs of the Senate and the Committee 

6 on Oversight and Government Reform of the House of 

7 Representatives, a written report detailing compliance by 

8 each agency with the requirements of this title that relate 

9 to regulations for which a written statement is required 

10 by section 202, including activities undertaken at the re11 quest of the Director to improve compliance, during the 

12 preceding reporting period. The report shall also contain 

13 an appendix detailing compliance by each agency with sec14 tion 204.’’. 

15 SEC. 412. RETROSPECTIVE ANALYSIS OF EXISTING FED16 ERAL REGULATIONS. 

17 The Unfunded Mandates Reform Act of 1995 (Public 

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

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

20 and 

21 (2) by inserting after section 208 the following 

22 new section 209: 
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1 ‘‘SEC. 209. RETROSPECTIVE ANALYSIS OF EXISTING FED2 ERAL REGULATIONS. 

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

4 or ranking minority member of a standing or select com5 mittee of the House of Representatives or the Senate, an 

6 agency shall conduct a retrospective analysis of an existing 

7 Federal regulation promulgated by an agency. 

8 ‘‘(b) REPORT.—Each agency conducting a retrospec9 tive analysis of existing Federal regulations pursuant to 

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

11 committee, Congress, and the Comptroller General a re12 port containing, with respect to each Federal regulation 

13 covered by the analysis— 

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

15 ‘‘(2) the continued need for the Federal regula16 tion; 

17 ‘‘(3) the nature of comments or complaints re18 ceived concerning the Federal regulation from the 

19 public since the Federal regulation was promulgated; 

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

21 overlaps, duplicates, or conflicts with other Federal 

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

23 and local governmental rules; 

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

25 conditions, or other factors have changed in the area 

26 affected by the Federal regulation; 
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1 ‘‘(6) a complete analysis of the retrospective di2 rect costs and benefits of the Federal regulation that 

3 considers studies done outside the Federal Govern4 ment (if any) estimating such costs or benefits; and 

5 ‘‘(7) any litigation history challenging the Fed6 eral regulation.’’. 

7 SEC. 413. EXPANSION OF JUDICIAL REVIEW. 

8 Section 401(a) of the Unfunded Mandates Reform 

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

10 (1) in paragraphs (1) and (2)(A)— 

11 (A) by striking ‘‘sections 202 and 

12 203(a)(1) and (2)’’ each place it appears and 

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

14 and 205(a) and (b)’’; and 

15 (B) by striking ‘‘only’’ each place it ap16 pears; 

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

18 202’’ and all that follows through the period at the 

19 end and inserting the following: ‘‘section 202, pre20 pare the written plan under section 203(a)(1) and 

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

22 may compel the agency to prepare such written 

23 statement, prepare such written plan, or comply with 

24 such section.’’; and 
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1 (3) in paragraph (3), by striking ‘‘written state2 ment or plan is required’’ and all that follows 

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

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

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

6 sections 201 and 205(a) and (b) is required, the in7 adequacy or failure to prepare such statement (in8 cluding the inadequacy or failure to prepare any es9 timate, analysis, statement, or description), to pre10 pare such written plan, or to comply with such sec11 tion may’’. 

12 TITLE V—IMPROVED COORDINA13 TION OF AGENCY ACTIONS ON 

14 ENVIRONMENTAL DOCU15 MENTS 

16 SEC. 501. SHORT TITLE. 

17 This title may be cited as the ‘‘Responsibly And Pro18 fessionally Invigorating Development Act of 2012’’ or as 

19 the ‘‘RAPID Act’’. 

20 SEC. 502. COORDINATION OF AGENCY ADMINISTRATIVE OP21 ERATIONS FOR EFFICIENT DECISIONMAKING. 

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

23 United States Code, is amended by inserting after sub24 chapter II the following: 
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1 ‘‘SUBCHAPTER IIA—INTERAGENCY 

2 COORDINATION REGARDING PERMITTING 

3 ‘‘§ 560. Coordination of agency administrative oper4 ations for efficient decisionmaking 

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

6 The purpose of this subchapter is to establish a framework 

7 and procedures to streamline, increase the efficiency of, 

8 and enhance coordination of agency administration of the 

9 regulatory review, environmental decisionmaking, and per10 mitting process for projects undertaken, reviewed, or fund11 ed by Federal agencies. This subchapter will ensure that 

12 agencies administer the regulatory process in a manner 

13 that is efficient so that citizens are not burdened with reg14 ulatory excuses and time delays. 

15 ‘‘(b) DEFINITIONS.—For purposes of this sub16 chapter, the term— 

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

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

19 government; 

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

21 projects related by project type, potential environ22 mental impacts, geographic location, or another 

23 similar project feature or characteristic; 
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1 ‘‘(3) ‘environmental assessment’ means a con2 cise public document for which a Federal agency is 

3 responsible that serves to— 

4 ‘‘(A) briefly provide sufficient evidence and 

5 analysis for determining whether to prepare an 

6 environmental impact statement or a finding of 

7 no significant impact; 

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

9 NEPA when no environmental impact state10 ment is necessary; and 

11 ‘‘(C) facilitate preparation of an environ12 mental impact statement when one is necessary; 

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

14 the detailed statement of significant environmental 

15 impacts required to be prepared under NEPA; 

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

17 agency procedures for preparing an environmental 

18 impact statement, environmental assessment, cat19 egorical exclusion, or other document under NEPA; 

20 ‘‘(6) ‘environmental decisionmaking process’ 

21 means the Federal agency procedures for under22 taking and completion of any environmental permit, 

23 decision, approval, review, or study under any Fed24 eral law other than NEPA for a project subject to 

25 an environmental review; 
41 

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1 ‘‘(7) ‘environmental document’ means an envi2 ronmental assessment or environmental impact 

3 statement, and includes any supplemental document 

4 or document prepared pursuant to a court order; 

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

6 document by a Federal agency briefly presenting the 

7 reasons why a project, not otherwise subject to a 

8 categorical exclusion, will not have a significant ef9 fect on the human environment and for which an en10 vironmental impact statement therefore will not be 

11 prepared; 

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

13 preparing or responsible for preparing the environ14 mental document; 

15 ‘‘(10) ‘NEPA’ means the National Environ16 mental Policy Act of 1969 (42 U.S.C. 4321 et seq.); 

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

18 that are construction activities undertaken with Fed19 eral funds or that are construction activities that re20 quire approval by a permit or regulatory decision 

21 issued by a Federal agency; 

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

23 other entity, including any private or public-private 

24 entity, that seeks approval for a project or is other25 wise responsible for undertaking a project; and 
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1 ‘‘(13) ‘record of decision’ means a document 

2 prepared by a lead agency under NEPA following an 

3 environmental impact statement that states the lead 

4 agency’s decision, identifies the alternatives consid5 ered by the agency in reaching its decision and 

6 states whether all practicable means to avoid or min7 imize environmental harm from the alternative se8 lected have been adopted, and if not, why they were 

9 not adopted. 

10 ‘‘(c) PREPARATION OF ENVIRONMENTAL DOCU11 MENTS.—Upon the request of the lead agency, the project 

12 sponsor shall be authorized to prepare any document for 

13 purposes of an environmental review required in support 

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

15 agency furnishes oversight in such preparation and inde16 pendently evaluates such document and the document is 

17 approved and adopted by the lead agency prior to taking 

18 any action or making any approval based on such docu19 ment. 

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

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

22 ‘‘(A) Not more than 1 environmental im23 pact statement and 1 environmental assessment 

24 shall be prepared under NEPA for a project 

25 (except for supplemental environmental docu-
43 

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1 ments prepared under NEPA or environmental 

2 documents prepared pursuant to a court order), 

3 and, except as otherwise provided by law, the 

4 lead agency shall prepare the environmental im5 pact statement or environmental assessment. 

6 After the lead agency issues a record of deci7 sion, no Federal agency responsible for making 

8 any approval for that project may rely on a doc9 ument other than the environmental document 

10 prepared by the lead agency. 

11 ‘‘(B) Upon the request of a project spon12 sor, a lead agency may adopt, use, or rely upon 

13 secondary and cumulative impact analyses in14 cluded in any environmental document prepared 

15 under NEPA for projects in the same geo16 graphic area where the secondary and cumu17 lative impact analyses provide information and 

18 data that pertains to the NEPA decision for the 

19 project under review. 

20 ‘‘(2) STATE ENVIRONMENTAL DOCUMENTS; 

21 SUPPLEMENTAL DOCUMENTS.— 

22 ‘‘(A) Upon the request of a project spon23 sor, a lead agency may adopt a document that 

24 has been prepared for a project under State 

25 laws and procedures as the environmental im-
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1 pact statement or environmental assessment for 

2 the project, provided that the State laws and 

3 procedures under which the document was pre4 pared provide environmental protection and op5 portunities for public involvement that are sub6 stantially equivalent to NEPA. 

7 ‘‘(B) An environmental document adopted 

8 under subparagraph (A) is deemed to satisfy 

9 the lead agency’s obligation under NEPA to 

10 prepare an environmental impact statement or 

11 environmental assessment. 

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

13 in subparagraph (A), during the period after 

14 preparation of the document but before its 

15 adoption by the lead agency, the lead agency 

16 shall prepare and publish a supplement to that 

17 document if the lead agency determines that— 

18 ‘‘(i) a significant change has been 

19 made to the project that is relevant for 

20 purposes of environmental review of the 

21 project; or 

22 ‘‘(ii) there have been significant 

23 changes in circumstances or availability of 

24 information relevant to the environmental 

25 review for the project. 
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1 ‘‘(D) If the agency prepares and publishes 

2 a supplemental document under subparagraph 

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

4 agencies and the public on the supplemental 

5 document for a period of not more than 45 

6 days beginning on the date of the publication of 

7 the supplement. 

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

9 decision or finding of no significant impact, as 

10 appropriate, based upon the document adopted 

11 under subparagraph (A), and any supplements 

12 thereto. 

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

14 lead agency determines that there is a reasonable 

15 likelihood that the project will have similar environ16 mental impacts as a similar project in geographical 

17 proximity to the project, and that similar project 

18 was subject to environmental review or similar State 

19 procedures within the 5 year period immediately pre20 ceding the date that the lead agency makes that de21 termination, the lead agency may adopt the environ22 mental document that resulted from that environ23 mental review or similar State procedure. The lead 

24 agency may adopt such an environmental document, 

25 if it is prepared under State laws and procedures 
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1 only upon making a favorable determination on such 

2 environmental document pursuant to paragraph 

3 (2)(A). 

4 ‘‘(e) PARTICIPATING AGENCIES.— 

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

6 responsible for inviting and designating participating 

7 agencies in accordance with this subsection. The 

8 lead agency shall provide the invitation or notice of 

9 the designation in writing. 

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

11 Federal agency that is required to adopt the envi12 ronmental document of the lead agency for a project 

13 shall be designated as a participating agency and 

14 shall collaborate on the preparation of the environ15 mental document, unless the Federal agency informs 

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

17 the lead agency in the designation of the Federal 

18 agency that the Federal agency— 

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

20 respect to the project; 

21 ‘‘(B) has no expertise or information rel22 evant to the project; and 

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

24 on the project. 
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1 ‘‘(3) INVITATION.—The lead agency shall iden2 tify, as early as practicable in the environmental re3 view for a project, any agencies other than an agen4 cy described in paragraph (2) that may have an in5 terest in the project, including, where appropriate, 

6 Governors of affected States, and heads of appro7 priate tribal and local (including county) govern8 ments, and shall invite such identified agencies and 

9 officials to become participating agencies in the envi10 ronmental review for the project. The invitation shall 

11 set a deadline of 30 days for responses to be sub12 mitted, which may only be extended by the lead 

13 agency for good cause shown. Any agency that fails 

14 to respond prior to the deadline shall be deemed to 

15 have declined the invitation. 

16 ‘‘(4) EFFECT OF DECLINING PARTICIPATING

17 AGENCY INVITATION.—Any agency that declines a 

18 designation or invitation by the lead agency to be a 

19 participating agency shall be precluded from submit20 ting comments on any document prepared under 

21 NEPA for that project or taking any measures to 

22 oppose, based on the environmental review, any per23 mit, license, or approval related to that project. 
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1 ‘‘(5) EFFECT OF DESIGNATION.—Designation 

2 as a participating agency under this subsection does 

3 not imply that the participating agency— 

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

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

6 expertise with respect to evaluation of, the 

7 project. 

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

9 agency may also be designated by a lead agency as 

10 a ‘cooperating agency’ under the regulations con11 tained in part 1500 of title 40, Code of Federal Reg12 ulations, as in effect on January 1, 2011. Designa13 tion as a cooperating agency shall have no effect on 

14 designation as participating agency. No agency that 

15 is not a participating agency may be designated as 

16 a cooperating agency. 

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

18 agency shall— 

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

20 agency under other applicable law concurrently 

21 and in conjunction with the review required 

22 under NEPA; and 

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

24 the Council on Environmental Quality pursuant 

25 to subsection (n)(1), make and carry out such 
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1 rules, policies, and procedures as may be rea2 sonably necessary to enable the agency to en3 sure completion of the environmental review 

4 and environmental decisionmaking process in a 

5 timely, coordinated, and environmentally re6 sponsible manner. 

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

8 shall limit its comments on a project to areas that 

9 are within the authority and expertise of such par10 ticipating agency. Each participating agency shall 

11 identify in such comments the statutory authority of 

12 the participating agency pertaining to the subject 

13 matter of its comments. The lead agency shall not 

14 act upon, respond to or include in any document 

15 prepared under NEPA, any comment submitted by 

16 a participating agency that concerns matters that 

17 are outside of the authority and expertise of the 

18 commenting participating agency. 

19 ‘‘(f) PROJECT INITIATION REQUEST.— 

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

21 the Federal agency responsible for undertaking a 

22 project with notice of the initiation of the project by 

23 providing a description of the proposed project, the 

24 general location of the proposed project, and a state25 ment of any Federal approvals anticipated to be nec-
50 

•HR 4078 EH

1 essary for the proposed project, for the purpose of 

2 informing the Federal agency that the environmental 

3 review should be initiated. 

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

5 receiving a project initiation notice under paragraph 

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

7 project, and the lead agency shall initiate the envi8 ronmental review within a period of 45 days after 

9 receiving the notice required by paragraph (1) by in10 viting or designating agencies to become partici11 pating agencies, or, where the lead agency deter12 mines that no participating agencies are required for 

13 the project, by taking such other actions that are 

14 reasonable and necessary to initiate the environ15 mental review. 

16 ‘‘(g) ALTERNATIVES ANALYSIS.— 

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

18 during the environmental review, but no later than 

19 during scoping for a project requiring the prepara20 tion of an environmental impact statement, the lead 

21 agency shall provide an opportunity for involvement 

22 by cooperating agencies in determining the range of 

23 alternatives to be considered for a project. 

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

25 participation under paragraph (1), the lead agency 
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1 shall determine the range of alternatives for consid2 eration in any document which the lead agency is re3 sponsible for preparing for the project, subject to the 

4 following limitations: 

5 ‘‘(A) NO EVALUATION OF CERTAIN ALTER6 NATIVES.—No Federal agency shall evaluate 

7 any alternative that was identified but not car8 ried forward for detailed evaluation in an envi9 ronmental document or evaluated and not se10 lected in any environmental document prepared 

11 under NEPA for the same project. 

12 ‘‘(B) ONLY FEASIBLE ALTERNATIVES

13 EVALUATED.—Where a project is being con14 structed, managed, funded, or undertaken by a 

15 project sponsor that is not a Federal agency, 

16 Federal agencies shall only be required to evalu17 ate alternatives that the project sponsor could 

18 feasibly undertake, consistent with the purpose 

19 of and the need for the project, including alter20 natives that can be undertaken by the project 

21 sponsor and that are technically and economi22 cally feasible. 

23 ‘‘(3) METHODOLOGIES.— 

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

25 determine, in collaboration with cooperating 
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1 agencies at appropriate times during the envi2 ronmental review, the methodologies to be used 

3 and the level of detail required in the analysis 

4 of each alternative for a project. The lead agen5 cy shall include in the environmental document 

6 a description of the methodologies used and 

7 how the methodologies were selected. 

8 ‘‘(B) NO EVALUATION OF INAPPROPRIATE

9 ALTERNATIVES.—When a lead agency deter10 mines that an alternative does not meet the 

11 purpose and need for a project, that alternative 

12 is not required to be evaluated in detail in an 

13 environmental document. 

14 ‘‘(4) PREFERRED ALTERNATIVE.—At the dis15 cretion of the lead agency, the preferred alternative 

16 for a project, after being identified, may be devel17 oped to a higher level of detail than other alter18 natives in order to facilitate the development of miti19 gation measures or concurrent compliance with other 

20 applicable laws if the lead agency determines that 

21 the development of such higher level of detail will 

22 not prevent the lead agency from making an impar23 tial decision as to whether to accept another alter24 native which is being considered in the environ25 mental review. 
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1 ‘‘(5) EMPLOYMENT ANALYSIS.—The evaluation 

2 of each alternative in an environmental impact state3 ment or an environmental assessment shall identify 

4 the potential effects of the alternative on employ5 ment, including potential short-term and long-term 

6 employment increases and reductions and shifts in 

7 employment. 

8 ‘‘(h) COORDINATION AND SCHEDULING.— 

9 ‘‘(1) COORDINATION PLAN.— 

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

11 establish and implement a plan for coordinating 

12 public and agency participation in and comment 

13 on the environmental review for a project or 

14 category of projects to facilitate the expeditious 

15 resolution of the environmental review. 

16 ‘‘(B) SCHEDULE.— 

17 ‘‘(i) IN GENERAL.—The lead agency 

18 shall establish as part of the coordination 

19 plan for a project, after consultation with 

20 each participating agency and, where appli21 cable, the project sponsor, a schedule for 

22 completion of the environmental review. 

23 The schedule shall include deadlines, con24 sistent with subsection (i), for decisions 

25 under any other Federal laws (including 
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1 the issuance or denial of a permit or li2 cense) relating to the project that is cov3 ered by the schedule. 

4 ‘‘(ii) FACTORS FOR CONSIDER5 ATION.—In establishing the schedule, the 

6 lead agency shall consider factors such 

7 as— 

8 ‘‘(I) the responsibilities of par9 ticipating agencies under applicable 

10 laws; 

11 ‘‘(II) resources available to the 

12 participating agencies; 

13 ‘‘(III) overall size and complexity 

14 of the project; 

15 ‘‘(IV) overall schedule for and 

16 cost of the project; 

17 ‘‘(V) the sensitivity of the natural 

18 and historic resources that could be 

19 affected by the project; and 

20 ‘‘(VI) the extent to which similar 

21 projects in geographic proximity were 

22 recently subject to environmental re23 view or similar State procedures. 

24 ‘‘(iii) COMPLIANCE WITH THE SCHED25 ULE.— 
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1 ‘‘(I) All participating agencies 

2 shall comply with the time periods es3 tablished in the schedule or with any 

4 modified time periods, where the lead 

5 agency modifies the schedule pursuant 

6 to subparagraph (D). 

7 ‘‘(II) The lead agency shall dis8 regard and shall not respond to or in9 clude in any document prepared under 

10 NEPA, any comment or information 

11 submitted or any finding made by a 

12 participating agency that is outside of 

13 the time period established in the 

14 schedule or modification pursuant to 

15 subparagraph (D) for that agency’s 

16 comment, submission or finding. 

17 ‘‘(III) If a participating agency 

18 fails to object in writing to a lead 

19 agency decision, finding or request for 

20 concurrence within the time period es21 tablished under law or by the lead 

22 agency, the agency shall be deemed to 

23 have concurred in the decision, finding 

24 or request. 
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1 ‘‘(C) CONSISTENCY WITH OTHER TIME PE2 RIODS.—A schedule under subparagraph (B) 

3 shall be consistent with any other relevant time 

4 periods established under Federal law. 

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

6 may— 

7 ‘‘(i) lengthen a schedule established 

8 under subparagraph (B) for good cause; 

9 and 

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

11 concurrence of the cooperating agencies. 

12 ‘‘(E) DISSEMINATION.—A copy of a sched13 ule under subparagraph (B), and of any modi14 fications to the schedule, shall be— 

15 ‘‘(i) provided within 15 days of com16 pletion or modification of such schedule to 

17 all participating agencies and to the 

18 project sponsor; and 

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

20 ‘‘(F) ROLES AND RESPONSIBILITY OF

21 LEAD AGENCY.—With respect to the environ22 mental review for any project, the lead agency 

23 shall have authority and responsibility to take 

24 such actions as are necessary and proper, with25 in the authority of the lead agency, to facilitate 
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•HR 4078 EH

1 the expeditious resolution of the environmental 

2 review for the project. 

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

4 apply to any project subject to review under NEPA and 

5 any decision under any Federal law relating to such 

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

7 license or any required finding): 

8 ‘‘(1) ENVIRONMENTAL REVIEW DEADLINES.— 

9 The lead agency shall complete the environmental 

10 review within the following deadlines: 

11 ‘‘(A) ENVIRONMENTAL IMPACT STATE12 MENT PROJECTS.—For projects requiring prep13 aration of an environmental impact statement— 

14 ‘‘(i) the lead agency shall issue an en15 vironmental impact statement within 2 

16 years after the earlier of the date the lead 

17 agency receives the project initiation re18 quest or a Notice of Intent to Prepare an 

19 Environmental Impact Statement is pub20 lished in the Federal Register; and 

21 ‘‘(ii) in circumstances where the lead 

22 agency has prepared an environmental as23 sessment and determined that an environ24 mental impact statement will be required, 

25 the lead agency shall issue the environ-
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•HR 4078 EH

1 mental impact statement within 2 years 

2 after the date of publication of the Notice 

3 of Intent to Prepare an Environmental Im4 pact Statement in the Federal Register. 

5 ‘‘(B) ENVIRONMENTAL ASSESSMENT

6 PROJECTS.—For projects requiring preparation 

7 of an environmental assessment, the lead agen8 cy shall issue a finding of no significant impact 

9 or publish a Notice of Intent to Prepare an En10 vironmental Impact Statement in the Federal 

11 Register within 1 year after the earlier of the 

12 date the lead agency receives the project initi13 ation request, makes a decision to prepare an 

14 environmental assessment, or sends out partici15 pating agency invitations. 

16 ‘‘(2) EXTENSIONS.— 

17 ‘‘(A) REQUIREMENTS.—The environmental 

18 review deadlines may be extended only if— 

19 ‘‘(i) a different deadline is established 

20 by agreement of the lead agency, the 

21 project sponsor, and all participating agen22 cies; or 

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

24 lead agency for good cause. 
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1 ‘‘(B) LIMITATION.—The environmental re2 view shall not be extended by more than 1 year 

3 for a project requiring preparation of an envi4 ronmental impact statement or by more than 

5 180 days for a project requiring preparation of 

6 an environmental assessment. 

7 ‘‘(3) ENVIRONMENTAL REVIEW COMMENTS.— 

8 ‘‘(A) COMMENTS ON DRAFT ENVIRON9 MENTAL IMPACT STATEMENT.—For comments 

10 by agencies and the public on a draft environ11 mental impact statement, the lead agency shall 

12 establish a comment period of not more than 60 

13 days after publication in the Federal Register 

14 of notice of the date of public availability of 

15 such document, unless— 

16 ‘‘(i) a different deadline is established 

17 by agreement of the lead agency, the 

18 project sponsor, and all participating agen19 cies; or 

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

21 lead agency for good cause. 

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

23 comment periods for agency or public comments 

24 in the environmental review process, the lead 

25 agency shall establish a comment period of no 
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•HR 4078 EH

1 more than 30 days from availability of the ma2 terials on which comment is requested, unless— 

3 ‘‘(i) a different deadline is established 

4 by agreement of the lead agency, the 

5 project sponsor, and all participating agen6 cies; or 

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

8 lead agency for good cause. 

9 ‘‘(4) DEADLINES FOR DECISIONS UNDER

10 OTHER LAWS.—Notwithstanding any other provision 

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

12 other Federal law relating to the undertaking of a 

13 project being reviewed under NEPA (including the 

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

15 to be made, the following deadlines shall apply: 

16 ‘‘(A) DECISIONS PRIOR TO RECORD OF DE17 CISION OR FINDING OF NO SIGNIFICANT IM18 PACT.—If a Federal agency is required to ap19 prove, or otherwise to act upon, a permit, li20 cense, or other similar application for approval 

21 related to a project prior to the record of deci22 sion or finding of no significant impact, such 

23 Federal agency shall approve or otherwise act 

24 not later than the end of a 90 day period begin25 ning— 
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1 ‘‘(i) after all other relevant agency re2 view related to the project is complete; and 

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

4 notice of the availability of the final envi5 ronmental impact statement or issuance of 

6 other final environmental documents, or no 

7 later than such other date that is otherwise 

8 required by law, whichever event occurs 

9 first. 

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

11 any approval or other action related to a project 

12 by a Federal agency that is not subject to sub13 paragraph (A), each Federal agency shall ap14 prove or otherwise act not later than the end of 

15 a period of 180 days beginning— 

16 ‘‘(i) after all other relevant agency re17 view related to the project is complete; and 

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

19 record of decision or finding of no signifi20 cant impact, unless a different deadline is 

21 established by agreement of the Federal 

22 agency, lead agency, and the project spon23 sor, where applicable, or the deadline is ex24 tended by the Federal agency for good 

25 cause, provided that such extension shall 
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•HR 4078 EH

1 not extend beyond a period that is 1 year 

2 after the lead agency issues the record of 

3 decision or finding of no significant im4 pact. 

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

6 any Federal agency fails to approve, or other7 wise to act upon, a permit, license, or other 

8 similar application for approval related to a 

9 project within the applicable deadline described 

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

11 or other similar application shall be deemed ap12 proved by such agency and the agency shall 

13 take action in accordance with such approval 

14 within 30 days of the applicable deadline de15 scribed in subparagraph (A) or (B). 

16 ‘‘(D) FINAL AGENCY ACTION.—Any ap17 proval under subparagraph (C) is deemed to be 

18 final agency action, and may not be reversed by 

19 any agency. In any action under chapter 7 seek20 ing review of such a final agency action, the 

21 court may not set aside such agency action by 

22 reason of that agency action having occurred 

23 under this paragraph. 

24 ‘‘(j) ISSUE IDENTIFICATION AND RESOLUTION.— 
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1 ‘‘(1) COOPERATION.—The lead agency and the 

2 participating agencies shall work cooperatively in ac3 cordance with this section to identify and resolve 

4 issues that could delay completion of the environ5 mental review or could result in denial of any ap6 provals required for the project under applicable 

7 laws. 

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

9 lead agency shall make information available to the 

10 participating agencies as early as practicable in the 

11 environmental review regarding the environmental, 

12 historic, and socioeconomic resources located within 

13 the project area and the general locations of the al14 ternatives under consideration. Such information 

15 may be based on existing data sources, including ge16 ographic information systems mapping. 

17 ‘‘(3) PARTICIPATING AGENCY RESPONSIBIL18 ITIES.—Based on information received from the lead 

19 agency, participating agencies shall identify, as early 

20 as practicable, any issues of concern regarding the 

21 project’s potential environmental, historic, or socio22 economic impacts. In this paragraph, issues of con23 cern include any issues that could substantially delay 

24 or prevent an agency from granting a permit or 

25 other approval that is needed for the project. 
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1 ‘‘(4) ISSUE RESOLUTION.— 

2 ‘‘(A) MEETING OF PARTICIPATING AGEN3 CIES.—At any time upon request of a project 

4 sponsor, the lead agency shall promptly convene 

5 a meeting with the relevant participating agen6 cies and the project sponsor, to resolve issues 

7 that could delay completion of the environ8 mental review or could result in denial of any 

9 approvals required for the project under appli10 cable laws. 

11 ‘‘(B) NOTICE THAT RESOLUTION CANNOT

12 BE ACHIEVED.—If a resolution cannot be 

13 achieved within 30 days following such a meet14 ing and a determination by the lead agency that 

15 all information necessary to resolve the issue 

16 has been obtained, the lead agency shall notify 

17 the heads of all participating agencies, the 

18 project sponsor, and the Council on Environ19 mental Quality for further proceedings in ac20 cordance with section 204 of NEPA, and shall 

21 publish such notification in the Federal Reg22 ister. 

23 ‘‘(k) REPORT TO CONGRESS.—The head of each Fed24 eral agency shall report annually to Congress— 
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•HR 4078 EH

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

2 preparation of an environmental impact statement or 

3 environmental assessment; 

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

5 record of decision or finding of no significant impact 

6 and the length of time it took the agency to com7 plete the environmental review for each such project; 

8 ‘‘(3) the filing of any lawsuits against the agen9 cy seeking judicial review of a permit, license, or ap10 proval issued by the agency for an action subject to 

11 NEPA, including the date the complaint was filed, 

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

13 summary of the claims for which judicial review was 

14 sought; and 

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

16 agency that sought judicial review of a permit, li17 cense, or approval issued by the agency for an action 

18 subject to NEPA. 

19 ‘‘(l) LIMITATIONS ON CLAIMS.— 

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

21 provision of law, a claim arising under Federal law 

22 seeking judicial review of a permit, license, or ap23 proval issued by a Federal agency for an action sub24 ject to NEPA shall be barred unless— 
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•HR 4078 EH

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

2 a project for which an environmental review 

3 was conducted and an opportunity for comment 

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

5 submitted a comment during the environmental 

6 review on the issue on which the party seeks ju7 dicial review, and such comment was suffi8 ciently detailed to put the lead agency on notice 

9 of the issue upon which the party seeks judicial 

10 review; and 

11 ‘‘(B) filed within 180 days after publica12 tion of a notice in the Federal Register an13 nouncing that the permit, license, or approval is 

14 final pursuant to the law under which the agen15 cy action is taken, unless a shorter time is spec16 ified in the Federal law pursuant to which judi17 cial review is allowed. 

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

19 a supplemental environmental impact statement, 

20 when required, is deemed a separate final agency ac21 tion and the deadline for filing a claim for judicial 

22 review of such action shall be 180 days after the 

23 date of publication of a notice in the Federal Reg24 ister announcing the record of decision for such ac25 tion. Any claim challenging agency action on the 
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•HR 4078 EH

1 basis of information in a supplemental environ2 mental impact statement shall be limited to chal3 lenges on the basis of that information. 

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

5 this subsection shall be construed to create a right 

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

7 that a person has violated the terms of a permit, li8 cense, or approval. 

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

10 granted under this subchapter may be exercised for an in11 dividual project or a category of projects. 

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

13 subchapter shall apply only to environmental reviews and 

14 environmental decisionmaking processes initiated after the 

15 date of enactment of this subchapter. 

16 ‘‘(o) APPLICABILITY.—Except as provided in sub17 section (p), this subchapter applies, according to the provi18 sions thereof, to all projects for which a Federal agency 

19 is required to undertake an environmental review or make 

20 a decision under an environmental law for a project for 

21 which a Federal agency is undertaking an environmental 

22 review. 

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

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

25 135, 139, 325, 326, and 327 of title 23, United States 
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1 Code, sections 5303 and 5304 of title 49, United States 

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

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

4 amendments made by such subtitle (Public Law 112– 

5 141).’’. 

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

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

8 by inserting after the item relating to subchapter II the 

9 following: 

‘‘SUBCHAPTER IIA—INTERAGENCY COORDINATION REGARDING 

PERMITTING 

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

10 (c) REGULATIONS.— 

11 (1) COUNCIL ON ENVIRONMENTAL QUALITY.— 

12 Not later than 180 days after the date of enactment 

13 of this title, the Council on Environmental Quality 

14 shall amend the regulations contained in part 1500 

15 of title 40, Code of Federal Regulations, to imple16 ment the provisions of this title and the amendments 

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

18 with laws and procedures that satisfy the criteria 

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

20 Code. 

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

22 days after the date that the Council on Environ23 mental Quality amends the regulations contained in 
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1 part 1500 of title 40, Code of Federal Regulations, 

2 to implement the provisions of this title and the 

3 amendments made by this title, each Federal agency 

4 with regulations implementing the National Environ5 mental Policy Act of 1969 (42 U.S.C. 4321 et seq.) 

6 shall amend such regulations to implement the pro7 visions of this subchapter. 

8 TITLE VI—SECURITIES AND EX9 CHANGE COMMISSION REGU10 LATORY ACCOUNTABILITY 

11 SEC. 601. SHORT TITLE. 

12 This title may be cited as the ‘‘SEC Regulatory Ac13 countability Act’’. 

14 SEC. 602. CONSIDERATION BY THE SECURITIES AND EX15 CHANGE COMMISSION OF THE COSTS AND 

16 BENEFITS OF ITS REGULATIONS AND CER17 TAIN OTHER AGENCY ACTIONS. 

18 Section 23 of the Securities Exchange Act of 1934 

19 (15 U.S.C. 78w) is amended by adding at the end the fol20 lowing: 

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

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

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

24 the Commission shall— 
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1 ‘‘(A) clearly identify the nature and source 

2 of the problem that the proposed regulation is 

3 designed to address, as well as assess the sig4 nificance of that problem, to enable assessment 

5 of whether any new regulation is warranted; 

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

7 the costs and benefits, both qualitative and 

8 quantitative, of the intended regulation and 

9 propose or adopt a regulation only on a rea10 soned determination that the benefits of the in11 tended regulation justify the costs of the regula12 tion; 

13 ‘‘(C) identify and assess available alter14 natives to the regulation that were considered, 

15 including modification of an existing regulation, 

16 together with an explanation of why the regula17 tion meets the regulatory objectives more effec18 tively than the alternatives; and 

19 ‘‘(D) ensure that any regulation is acces20 sible, consistent, written in plain language, and 

21 easy to understand and shall measure, and seek 

22 to improve, the actual results of regulatory re23 quirements. 

24 ‘‘(2) CONSIDERATIONS AND ACTIONS.— 
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1 ‘‘(A) REQUIRED ACTIONS.—In deciding 

2 whether and how to regulate, the Commission 

3 shall assess the costs and benefits of available 

4 regulatory alternatives, including the alternative 

5 of not regulating, and choose the approach that 

6 maximizes net benefits. Specifically, the Com7 mission shall— 

8 ‘‘(i) consistent with the requirements 

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

10 2(b) of the Securities Act of 1933 (15 

11 U.S.C. 77b(b)), section 202(c) of the In12 vestment Advisers Act of 1940 (15 U.S.C. 

13 80b–2(c)), and section 2(c) of the Invest14 ment Company Act of 1940 (15 U.S.C. 

15 80a–2(c)), consider whether the rule16 making will promote efficiency, competi17 tion, and capital formation; 

18 ‘‘(ii) evaluate whether, consistent with 

19 obtaining regulatory objectives, the regula20 tion is tailored to impose the least burden 

21 on society, including market participants, 

22 individuals, businesses of differing sizes, 

23 and other entities (including State and 

24 local governmental entities), taking into ac-
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1 count, to the extent practicable, the cumu2 lative costs of regulations; and 

3 ‘‘(iii) evaluate whether the regulation 

4 is inconsistent, incompatible, or duplicative 

5 of other Federal regulations. 

6 ‘‘(B) ADDITIONAL CONSIDERATIONS.—In 

7 addition, in making a reasoned determination of 

8 the costs and benefits of a potential regulation, 

9 the Commission shall, to the extent that each is 

10 relevant to the particular proposed regulation, 

11 take into consideration the impact of the regu12 lation on— 

13 ‘‘(i) investor choice; 

14 ‘‘(ii) market liquidity in the securities 

15 markets; and 

16 ‘‘(iii) small businesses 

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

18 Commission shall explain in its final rule the nature 

19 of comments that it received, including those from 

20 the industry or consumer groups concerning the po21 tential costs or benefits of the proposed rule or pro22 posed rule change, and shall provide a response to 

23 those comments in its final rule, including an expla24 nation of any changes that were made in response 

25 to those comments and the reasons that the Com-
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1 mission did not incorporate those industry group 

2 concerns related to the potential costs or benefits in 

3 the final rule. 

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

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

6 SEC Regulatory Accountability Act, and every 5 

7 years thereafter, the Commission shall review its 

8 regulations to determine whether any such regula9 tions are outmoded, ineffective, insufficient, or ex10 cessively burdensome, and shall modify, streamline, 

11 expand, or repeal them in accordance with such re12 view. In reviewing any regulation (including, not13 withstanding paragraph (6), a regulation issued in 

14 accordance with formal rulemaking provisions) that 

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

16 or less to the attestation and reporting requirements 

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

18 (15 U.S.C. 7262(b)), the Commission shall specifi19 cally take into account the large burden of such reg20 ulation when compared to the benefit of such regula21 tion. 

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

23 ‘‘(A) IN GENERAL.—Whenever the Com24 mission adopts or amends a regulation des25 ignated as a ‘major rule’ within the meaning of 
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1 section 804(2) of title 5, United States Code, it 

2 shall state, in its adopting release, the fol3 lowing: 

4 ‘‘(i) The purposes and intended con5 sequences of the regulation. 

6 ‘‘(ii) Appropriate post-implementation 

7 quantitative and qualitative metrics to 

8 measure the economic impact of the regu9 lation and to measure the extent to which 

10 the regulation has accomplished the stated 

11 purposes. 

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

13 used, consistent with the requirements of 

14 subparagraph (B) and under the super15 vision of the Chief Economist of the Com16 mission, to assess whether the regulation 

17 has achieved the stated purposes. 

18 ‘‘(iv) Any unintended or negative con19 sequences that the Commission foresees 

20 may result from the regulation. 

21 ‘‘(B) REQUIREMENTS OF ASSESSMENT

22 PLAN AND REPORT.— 

23 ‘‘(i) REQUIREMENTS OF PLAN.—The 

24 assessment plan required under this para25 graph shall consider the costs, benefits, 
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1 and intended and unintended consequences 

2 of the regulation. The plan shall specify 

3 the data to be collected, the methods for 

4 collection and analysis of the data and a 

5 date for completion of the assessment. 

6 ‘‘(ii) SUBMISSION AND PUBLICATION

7 OF REPORT.—The Chief Economist shall 

8 submit the completed assessment report to 

9 the Commission no later than 2 years after 

10 the publication of the adopting release, un11 less the Commission, at the request of the 

12 Chief Economist, has published at least 90 

13 days before such date a notice in the Fed14 eral Register extending the date and pro15 viding specific reasons why an extension is 

16 necessary. Within 7 days after submission 

17 to the Commission of the final assessment 

18 report, it shall be published in the Federal 

19 Register for notice and comment. Any ma20 terial modification of the plan, as nec21 essary to assess unforeseen aspects or con22 sequences of the regulation, shall be 

23 promptly published in the Federal Register 

24 for notice and comment. 
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1 ‘‘(iii) DATA COLLECTION NOT SUB2 JECT TO NOTICE AND COMMENT REQUIRE3 MENTS.—If the Commission has published 

4 its assessment plan for notice and com5 ment, specifying the data to be collected 

6 and method of collection, at least 30 days 

7 prior to adoption of a final regulation or 

8 amendment, such collection of data shall 

9 not be subject to the notice and comment 

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

11 United States Code (commonly referred to 

12 as the Paperwork Reduction Act). Any ma13 terial modifications of the plan that require 

14 collection of data not previously published 

15 for notice and comment shall also be ex16 empt from such requirements if the Com17 mission has published notice for comment 

18 in the Federal Register of the additional 

19 data to be collected, at least 30 days prior 

20 to initiation of data collection. 

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

22 180 days after publication of the assess23 ment report in the Federal Register, the 

24 Commission shall issue for notice and com25 ment a proposal to amend or rescind the 
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1 regulation, or publish a notice that the 

2 Commission has determined that no action 

3 will be taken on the regulation. Such a no4 tice will be deemed a final agency action. 

5 ‘‘(6) COVERED REGULATIONS AND OTHER

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

7 the term ‘regulation’— 

8 ‘‘(A) means an agency statement of gen9 eral applicability and future effect that is de10 signed to implement, interpret, or prescribe law 

11 or policy or to describe the procedure or prac12 tice requirements of an agency, including rules, 

13 orders of general applicability, interpretive re14 leases, and other statements of general applica15 bility that the agency intends to have the force 

16 and effect of law; and 

17 ‘‘(B) does not include— 

18 ‘‘(i) a regulation issued in accordance 

19 with the formal rulemaking provisions of 

20 section 556 or 557 of title 5, United States 

21 Code; 

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

23 agency organization, management, or per24 sonnel matters; 
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1 ‘‘(iii) a regulation promulgated pursu2 ant to statutory authority that expressly 

3 prohibits compliance with this provision; 

4 and 

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

6 the agency to be an emergency action, if 

7 such certification is published in the Fed8 eral Register.’’. 

9 SEC. 603. SENSE OF CONGRESS RELATING TO OTHER REGU10 LATORY ENTITIES. 

11 It is the sense of the Congress that other regulatory 

12 entities, including the Public Company Accounting Over13 sight Board, the Municipal Securities Rulemaking Board, 

14 and any national securities association registered under 

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

16 U.S.C. 78o–3) should also follow the requirements of sec17 tion 23(e) of such Act, as added by this title. 

18 SEC. 604. INTERPRETIVE GUIDANCE NULL AND VOID. 

19 Notwithstanding any other provision of law, no inter20 pretive guidance issued by the Securities and Exchange 

21 Commission on or after the effective date of this Act relat22 ing to ‘‘Commission Guidance Regarding Disclosure Re23 lated to Climate Change’’, affecting parts 211, 231, and 

24 249 of title 17, Code of Federal Regulations (as described 

25 in Commission Release Nos. 33–9106; 34–61469; FR– 
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1 82), or any successor thereto, may take effect, and such 

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

3 person on or after February 2, 2010. 

4 SEC. 605. OTHER SEC ACTION PROHIBITED. 

5 (a) FURTHER GUIDANCE RELATED TO CLIMATE

6 CHANGE.—The Commission may not issue any interpre7 tive guidance with respect to disclosures related to climate 

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

9 (b) VOLUNTARY SUBMISSIONS.—The Commission 

10 may not issue any interpretive guidance that would estab11 lish any requirements with respect to the content of or 

12 format for any disclosures related to climate change volun13 tarily submitted by any entity to the Commission on or 

14 after the effective date of this Act. 

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

16 or administrative action or proceeding pertaining to disclo17 sures related to climate change may be initiated by the 

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

19 Act and any such actions or proceedings pending on such 

20 date shall be terminated. 

21 (d) RULE OF CONSTRUCTION.—Nothing in this sec22 tion shall be construed as to— 

23 (1) prohibit the Commission from issuing inter24 pretive guidance with respect to disclosures related 
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1 to non-anthropogenic or natural climate variability 

2 observed over comparable time periods; or 

3 (2) terminate an administrative action or pro4 ceeding pertaining to such disclosures. 

5 TITLE VII—CONSIDERATION BY 

6 COMMODITY FUTURES TRAD7 ING COMMISSION OF CER8 TAIN COSTS AND BENEFITS 

9 SEC. 701. CONSIDERATION BY THE COMMODITY FUTURES 

10 TRADING COMMISSION OF THE COSTS AND 

11 BENEFITS OF ITS REGULATIONS AND OR12 DERS. 

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

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

15 (2) and inserting the following: 

16 ‘‘(1) IN GENERAL.—Before promulgating a reg17 ulation under this Act or issuing an order (except as 

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

19 through the Office of the Chief Economist, shall as20 sess the costs and benefits, both qualitative and 

21 quantitative, of the intended regulation and propose 

22 or adopt a regulation only on a reasoned determina23 tion that the benefits of the intended regulation jus24 tify the costs of the intended regulation (recognizing 

25 that some benefits and costs are difficult to quan-
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1 tify). It must measure, and seek to improve, the ac2 tual results of regulatory requirements. 

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

4 determination of the costs and the benefits, the 

5 Commission shall evaluate— 

6 ‘‘(A) considerations of protection of market 

7 participants and the public; 

8 ‘‘(B) considerations of the efficiency, com9 petitiveness, and financial integrity of futures 

10 and swaps markets; 

11 ‘‘(C) considerations of the impact on mar12 ket liquidity in the futures and swaps markets; 

13 ‘‘(D) considerations of price discovery; 

14 ‘‘(E) considerations of sound risk manage15 ment practices; 

16 ‘‘(F) available alternatives to direct regula17 tion; 

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

19 posed by various activities within the scope of 

20 its jurisdiction; 

21 ‘‘(H) whether, consistent with obtaining 

22 regulatory objectives, the regulation is tailored 

23 to impose the least burden on society, including 

24 market participants, individuals, businesses of 

25 differing sizes, and other entities (including 
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1 small communities and governmental entities), 

2 taking into account, to the extent practicable, 

3 the cumulative costs of regulations; 

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

5 incompatible, or duplicative of other Federal 

6 regulations; 

7 ‘‘(J) whether, in choosing among alter8 native regulatory approaches, those approaches 

9 maximize net benefits (including potential eco10 nomic, environmental, and other benefits, dis11 tributive impacts, and equity); and 

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

13 TITLE VIII—ENSURING HIGH 

14 STANDARDS FOR AGENCY 

15 USE OF SCIENTIFIC INFOR16 MATION 

17 SEC. 801. REQUIREMENT FOR FINAL GUIDELINES. 

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

19 each Federal agency shall have in effect guidelines for en20 suring and maximizing the quality, objectivity, utility, and 

21 integrity of scientific information relied upon by such 

22 agency. 

23 (b) CONTENT OF GUIDELINES.—The guidelines de24 scribed in subsection (a), with respect to a Federal agency, 

25 shall ensure that— 
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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 
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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. 
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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’’. 
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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 settle-
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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 ad-
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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 
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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 
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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 
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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: 

Clerk. 
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