II 

Calendar No. 158 

115TH CONGRESS 

1ST SESSION S. 579 

[Report No. 115–121] 

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, Ms. HEITKAMP, Mr. HATCH, and Mr. ROBERTS) 

introduced the following bill; which was read twice and referred to the 

Committee on Homeland Security and Governmental Affairs 

JUNE 28, 2017 

Reported by Mr. JOHNSON, with amendments 

[Omit the part struck through] 

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’’. 


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

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

3 Code, is amended— 

4 (1) in section 551— 

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

6 at the end; 

7 (B) in paragraph (14), by striking the pe8 riod at the end and inserting a semicolon; and 

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

10 ‘‘(15) ‘major rule’ means any rule that the Ad11 ministrator of the Office of Information and Regu12 latory Affairs determines is likely to impose— 

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

14 $100,000,000 or more; 

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

16 consumers, individual industries, Federal, 

17 State, local, or tribal government agencies, or 

18 geographic regions; or 

19 ‘‘(C) significant effects on competition, em20 ployment, investment, productivity, innovation, 

21 or on the ability of United States-based enter22 prises to compete with foreign-based enterprises 

23 in domestic and export markets; and 

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

25 Affairs’ means the office established under section 


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1 3503 of chapter 35 of title 44 and any successor to 

2 that office.’’; and 

3 (2) in section 553, by adding at the end the fol4 lowing: 

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

6 FOR MAJOR RULES.— 

7 ‘‘(1) IN GENERAL.—Except as provided in para8 graph (3), not later than 90 days before the date on 

9 which an agency publishes a notice of proposed rule 

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

11 agency shall publish an advance notice of proposed 

12 rule making for the major rule in the Federal Reg13 ister. 

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

15 proposed rule making published under paragraph (1) 

16 shall— 

17 ‘‘(A) include a written statement identi18 fying, at a minimum— 

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

20 problem the agency may address with a 

21 major rule, including data and other evi22 dence and information on which the agency 

23 expects to rely for the proposed major rule; 

24 ‘‘(ii) a general description of regu25 latory alternatives under consideration; 


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1 ‘‘(iii) the legal authority under which 

2 a major rule may be proposed, including 

3 whether a rule making is required by stat4 ute, and if so, whether by a specific date, 

5 or whether the agency has discretion to 

6 commence a rule making; and 

7 ‘‘(iv) an achievable objective for the 

8 major rule and metrics by which the agen9 cy expects to measure progress toward that 

10 objective; 

11 ‘‘(B) solicit written data, views, and argu12 ment from interested persons concerning the in13 formation and issues addressed in the advance 

14 notice; and 

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

16 60 days for interested persons to submit such 

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

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

19 apply to a major rule if— 

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

21 is not required to publish a notice of proposed 

22 rule making in the Federal Register for the 

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

24 ‘‘(B) the Administrator of the Office of In25 formation and Regulatory Affairs determines 


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1 that complying with the requirements described 

2 in this subsection— 

3 ‘‘(i) would not serve the public inter4 est; or 

5 ‘‘(ii) would be unduly burdensome and 

6 duplicative of processes required by specific 

7 statutory requirements as rigorous as 

8 those prescribed in paragraph (2); or 

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

10 is otherwise specifically exempted by law from 

11 the notice and comment rule making procedures 

12 under this section. 

13 ‘‘(4) JUDICIAL REVIEW.— 

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

15 by the Administrator of the Office of Informa16 tion and Regulatory Affairs in accordance with 

17 paragraph (3)(B) shall not be subject to judi18 cial review. 

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

20 deviation between policies set forth in the writ21 ten statement of an agency under paragraph 

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

23 considered arbitrary, capricious, an abuse of 

24 discretion, or otherwise not in accordance with 

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


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Calendar No. 158 

115TH CONGRESS 

1ST SESSION S. 579 

[Report No. 115–121] 

A BILL 

To require agencies to publish an advance notice of 

proposed rule making for major rules. 

JUNE 28, 2017 

Reported with amendments 


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