II 

115TH CONGRESS 

1ST SESSION S. 579 

To require agencies to publish an advance notice of proposed rule making 

for major rules. 

IN THE SENATE OF THE UNITED STATES 

MARCH 8, 2017 

Mr. LANKFORD (for himself and Ms. HEITKAMP) introduced the following bill; 

which was read twice and referred to the Committee on Homeland Security and Governmental Affairs 

A BILL 

To require agencies to publish an advance notice of proposed 

rule making for major rules. 

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

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Early Participation 

5 in Regulations Act of 2017’’. 

6 SEC. 2. ADVANCE NOTICE OF PROPOSED RULE MAKING. 

7 Subchapter II of chapter 5 of title 5, United States 

8 Code, is amended— 

9 (1) in section 551— 


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1 (A) in paragraph (13), by striking ‘‘and’’ 

2 at the end; 

3 (B) in paragraph (14), by striking the pe4 riod at the end and inserting a semicolon; and 

5 (C) by adding at the end the following: 

6 ‘‘(15) ‘major rule’ means any rule that the Ad7 ministrator of the Office of Information and Regu8 latory Affairs determines is likely to impose— 

9 ‘‘(A) an annual effect on the economy of 

10 $100,000,000 or more; 

11 ‘‘(B) a major increase in costs or prices for 

12 consumers, individual industries, Federal, 

13 State, local, or tribal government agencies, or 

14 geographic regions; or 

15 ‘‘(C) significant effects on competition, em16 ployment, investment, productivity, innovation, 

17 or on the ability of United States-based enter18 prises to compete with foreign-based enterprises 

19 in domestic and export markets; and 

20 ‘‘(16) the ‘Office of Information and Regulatory 

21 Affairs’ means the office established under section 

22 3503 of chapter 35 of title 44 and any successor to 

23 that office.’’; and 

24 (2) in section 553, by adding at the end the fol25 lowing: 


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1 ‘‘(f) ADVANCE NOTICE OF PROPOSED RULE MAKING

2 FOR MAJOR RULES.— 

3 ‘‘(1) IN GENERAL.—Except as provided in para4 graph (3), not later than 90 days before the date on 

5 which an agency publishes a notice of proposed rule 

6 making for a major rule in the Federal Register, the 

7 agency shall publish an advance notice of proposed 

8 rule making for the major rule in the Federal Reg9 ister. 

10 ‘‘(2) REQUIREMENTS.—An advance notice of 

11 proposed rule making published under paragraph (1) 

12 shall— 

13 ‘‘(A) include a written statement identi14 fying, at a minimum— 

15 ‘‘(i) the nature and significance of the 

16 problem the agency may address with a 

17 major rule, including data and other evi18 dence and information on which the agency 

19 expects to rely for the proposed major rule; 

20 ‘‘(ii) a general description of regu21 latory alternatives under consideration; 

22 ‘‘(iii) the legal authority under which 

23 a major rule may be proposed, including 

24 whether a rule making is required by stat25 ute, and if so, whether by a specific date, 


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1 or whether the agency has discretion to 

2 commence a rule making; and 

3 ‘‘(iv) an achievable objective for the 

4 major rule and metrics by which the agen5 cy expects to measure progress toward that 

6 objective; 

7 ‘‘(B) solicit written data, views, and argu8 ment from interested persons concerning the in9 formation and issues addressed in the advance 

10 notice; and 

11 ‘‘(C) provide for a period of not less than 

12 60 days for interested persons to submit such 

13 written data, views, or argument to the agency. 

14 ‘‘(3) EXCEPTIONS.—This subsection shall not 

15 apply to a major rule if— 

16 ‘‘(A) the agency proposing the major rule 

17 is not required to publish a notice of proposed 

18 rule making in the Federal Register for the 

19 major rule under subsection (b)(3)(B); 

20 ‘‘(B) the Administrator of the Office of In21 formation and Regulatory Affairs determines 

22 that complying with the requirements described 

23 in this subsection— 

24 ‘‘(i) would not serve the public inter25 est; or 


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1 ‘‘(ii) would be unduly burdensome and 

2 duplicative of processes required by specific 

3 statutory requirements as rigorous as 

4 those prescribed in paragraph (2); or 

5 ‘‘(C) the agency proposing the major rule 

6 is otherwise specifically exempted by law from 

7 the notice and comment rule making procedures 

8 under this section. 

9 ‘‘(4) JUDICIAL REVIEW.— 

10 ‘‘(A) IN GENERAL.—A determination made 

11 by the Administrator of the Office of Informa12 tion and Regulatory Affairs in accordance with 

13 paragraph (3)(B) shall not be subject to judi14 cial review. 

15 ‘‘(B) ARBITRARY AND CAPRICIOUS.—Any 

16 deviation between policies set forth in the writ17 ten statement of an agency under paragraph 

18 (2)(A) and any final agency action shall not be 

19 considered arbitrary, capricious, an abuse of 

20 discretion, or otherwise not in accordance with 

21 the law under section 706(2)(A).’’. 

Æ 


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