II 

Calendar No. 312 

115TH CONGRESS 

2D SESSION S. 951 

[Report No. 115–208] 

To reform the process by which Federal agencies analyze and formulate 

new regulations and guidance documents, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

APRIL 26, 2017 

Mr. PORTMAN (for himself, Ms. HEITKAMP, Mr. HATCH, Mr. MANCHIN, Mr. 

PAUL, Mr. JOHNSON, Mr. STRANGE, Mr. LANKFORD, Mrs. FISCHER, and 

Mr. SCOTT) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs 

FEBRUARY 14, 2018 

Reported by Mr. JOHNSON, with an amendment 

[Strike out all after the enacting clause and insert the part printed in italic] 

A BILL 

To reform the process by which Federal agencies analyze 

and formulate new regulations and guidance documents, 

and for other purposes. 

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


rfrederick on DSKBCBPHB2PROD with BILLS
2 

•S 951 RS

1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Regulatory Account3 ability Act of 2017’’. 

4 SEC. 2. DEFINITIONS. 

5 Section 551 of title 5, United States Code, is amend6 ed— 

7 (1) in paragraph (5), by striking ‘‘rule making’’ 

8 and inserting ‘‘rulemaking’’; 

9 (2) in paragraph (6), by striking ‘‘rule making’’ 

10 and inserting ‘‘rulemaking’’; 

11 (3) in paragraph (13), by striking ‘‘and’’ at the 

12 end; 

13 (4) in paragraph (14), by striking the period at 

14 the end and inserting a semicolon; and 

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

16 ‘‘(15) ‘guidance’ means an agency statement of 

17 general applicability, other than a rule, that— 

18 ‘‘(A) is not intended to have the force and 

19 effect of law; and 

20 ‘‘(B) sets forth a policy on a statutory, 

21 regulatory, or technical issue or an interpreta22 tion of a statutory or regulatory issue; 

23 ‘‘(16) ‘high-impact rule’ means any rule that 

24 the Administrator determines is likely to cause an 

25 annual effect on the economy of $1,000,000,000 or 

26 more, adjusted once every 5 years to reflect inVerDate Sep 11 2014 23:28 Feb 14, 2018 Jkt 079200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6401 E:\BILLS\S951.RS S951

rfrederick on DSKBCBPHB2PROD with BILLS
3 

•S 951 RS

1 creases in the Consumer Price Index for All Urban 

2 Consumers, as published by the Bureau of Labor 

3 Statistics of the Department of Labor; 

4 ‘‘(17) ‘major guidance’ means guidance that the 

5 Administrator finds is likely to lead to— 

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

7 $100,000,000 or more, adjusted once every 5 

8 years to reflect increases in the Consumer Price 

9 Index for All Urban Consumers, as published 

10 by the Bureau of Labor Statistics of the De11 partment of Labor; 

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

13 consumers, individual industries, Federal, 

14 State, local, or tribal government agencies, or 

15 geographic regions; or 

16 ‘‘(C) significant adverse effects on competi17 tion, employment, investment, productivity, in18 novation, public health and safety, or the ability 

19 of United States-based enterprises to compete 

20 with foreign-based enterprises in domestic and 

21 export markets; 

22 ‘‘(18) ‘major rule’ means any rule that the Ad23 ministrator determines is likely to cause— 

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

25 $100,000,000 or more, adjusted once every 5 


rfrederick on DSKBCBPHB2PROD with BILLS
4 

•S 951 RS

1 years to reflect increases in the Consumer Price 

2 Index for All Urban Consumers, as published 

3 by the Bureau of Labor Statistics of the De4 partment of Labor; 

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

6 consumers, individual industries, Federal, 

7 State, local, or tribal government agencies, or 

8 geographic regions; or 

9 ‘‘(C) significant adverse effects on competi10 tion, employment, investment, productivity, in11 novation, public health and safety, or the ability 

12 of United States-based enterprises to compete 

13 with foreign-based enterprises in domestic and 

14 export markets; 

15 ‘‘(19) ‘Office of Information and Regulatory Af16 fairs’ means the office established under section 

17 3503 of title 44 and any successor to that office; 

18 and 

19 ‘‘(20) ‘Administrator’ means the Administrator 

20 of the Office of Information and Regulatory Af21 fairs.’’. 

22 SEC. 3. RULEMAKING. 

23 Section 553 of title 5, United States Code, is amend24 ed— 


rfrederick on DSKBCBPHB2PROD with BILLS
5 

•S 951 RS

1 (1) in the section heading, by striking ‘‘Rule 

2 making’’ and inserting ‘‘Rulemaking’’; 

3 (2) in subsection (a), by striking ‘‘(a) This sec4 tion applies’’ and inserting ‘‘(a) APPLICABILITY— 

5 This section applies’’; and 

6 (3) by striking subsections (b) through (e) and 

7 inserting the following: 

8 ‘‘(b) RULEMAKING CONSIDERATIONS.—In a rule9 making, an agency shall consider, in addition to other ap10 plicable considerations, the following: 

11 ‘‘(1) The legal authority under which a rule 

12 may be proposed, including whether rulemaking is 

13 required by statute or is within the discretion of the 

14 agency. 

15 ‘‘(2) The nature and significance of the problem 

16 the agency intends to address with a rule. 

17 ‘‘(3) Whether existing Federal laws or rules 

18 have created or contributed to the problem the agen19 cy may address with a rule and, if so, whether those 

20 Federal laws or rules could be amended or rescinded 

21 to address the problem in whole or in part. 

22 ‘‘(4) A reasonable number of alternatives for a 

23 new rule that meet the statutory objective, including 

24 substantial alternatives or other responses identified 


rfrederick on DSKBCBPHB2PROD with BILLS
6 

•S 951 RS

1 by interested persons, with the consideration of 3 al2 ternatives presumed to be reasonable. 

3 ‘‘(5) For any major rule or high-impact rule, 

4 unless prohibited by law, the potential costs and 

5 benefits associated with potential alternative rules 

6 and other responses considered under paragraph (4), 

7 including quantitative and qualitative analyses of— 

8 ‘‘(A) the direct costs and benefits; 

9 ‘‘(B) the nature and degree of risks ad10 dressed by the rule and the countervailing risks 

11 that might be posed by agency action; and 

12 ‘‘(C) to the extent practicable, the cumu13 lative and indirect costs and benefits. 

14 ‘‘(c) NOTICE OF PROPOSED RULEMAKING.— 

15 ‘‘(1) IN GENERAL.—If an agency determines 

16 that the objectives of the agency require the agency 

17 to issue a rule, the agency shall notify the Adminis18 trator and publish a notice of proposed rulemaking 

19 in the Federal Register, which shall include— 

20 ‘‘(A) a statement of the time, place, and 

21 nature of any public rulemaking proceedings; 

22 ‘‘(B) reference to the legal authority under 

23 which the rule is proposed; 

24 ‘‘(C) the text of the proposed rule; 


rfrederick on DSKBCBPHB2PROD with BILLS
7 

•S 951 RS

1 ‘‘(D) a summary of information known to 

2 the agency concerning the considerations de3 scribed in subsection (b); and 

4 ‘‘(E) where otherwise consistent with appli5 cable law, for any major rule or high-impact 

6 rule— 

7 ‘‘(i) a reasoned preliminary expla8 nation regarding how— 

9 ‘‘(I) the proposed rule meets the 

10 statutory objectives; and 

11 ‘‘(II) the benefits of the proposed 

12 rule justify the costs; and 

13 ‘‘(ii) a discussion of— 

14 ‘‘(I) the costs and benefits of al15 ternatives considered by the agency 

16 under subsection (b)(4); 

17 ‘‘(II) whether the alternatives 

18 considered by the agency under sub19 section (b)(4) meet relevant statutory 

20 objectives; and 

21 ‘‘(III) the reasons why the agen22 cy did not propose an alternative con23 sidered by the agency under sub24 section (b)(4). 

25 ‘‘(2) ACCESSIBILITY.— 


rfrederick on DSKBCBPHB2PROD with BILLS
8 

•S 951 RS

1 ‘‘(A) IN GENERAL.—Except as provided in 

2 subparagraph (B), not later than the date on 

3 which an agency publishes a notice of proposed 

4 rulemaking under paragraph (1), all studies, 

5 models, scientific literature, and other informa6 tion developed or relied upon by the agency, 

7 and actions taken by the agency to obtain that 

8 information, in connection with the determina9 tion of the agency to propose the rule that is 

10 the subject of the rulemaking shall be placed in 

11 the docket for the proposed rule and made ac12 cessible to the public. 

13 ‘‘(B) EXCEPTION.—Subparagraph (A) 

14 shall not apply with respect to information that 

15 is exempt from disclosure under section 552(b). 

16 ‘‘(3) INFORMATION QUALITY.—If an agency 

17 proposes a rule that rests upon scientific, technical, 

18 or economic information, the agency shall propose 

19 the rule on the basis of the best reasonably available 

20 scientific, technical, or economic information. 

21 ‘‘(4) PUBLIC COMMENT.— 

22 ‘‘(A) IN GENERAL.—After publishing a no23 tice of proposed rulemaking under paragraph 

24 (1), an agency shall provide interested persons 

25 an opportunity to participate in the rulemaking 


rfrederick on DSKBCBPHB2PROD with BILLS
9 

•S 951 RS

1 through the submission of written material, 

2 data, views, or arguments with or without op3 portunity for oral presentation, except that— 

4 ‘‘(i) if a public hearing is convened 

5 under subsection (e), reasonable oppor6 tunity for oral presentation shall be pro7 vided at the public hearing as provided in 

8 subsection (e); and 

9 ‘‘(ii) when, other than as provided in 

10 subsection (e), a rule is required by statute 

11 to be made on the record after opportunity 

12 for an agency hearing— 

13 ‘‘(I) sections 556 and 557 shall 

14 apply; and 

15 ‘‘(II) the petition procedures of 

16 subsection (e) shall not apply. 

17 ‘‘(B) TIMELINE.—An agency shall provide 

18 not less than 60 days, or, with respect to a pro19 posed major rule or a proposed high-impact 

20 rule, not less than 90 days, for interested per21 sons to submit written material, data, views, or 

22 arguments under subparagraph (A). 

23 ‘‘(5) CHANGE OF CLASSIFICATION AFTER PUB24 LICATION OF NOTICE.—If, after an agency submits 

25 the notification and publishes the notice of proposed 


rfrederick on DSKBCBPHB2PROD with BILLS
10 

•S 951 RS

1 rulemaking required under paragraph (1), a pro2 posed rule is determined to be a major rule or a 

3 high-impact rule, the agency shall— 

4 ‘‘(A) publish a notice in the Federal Reg5 ister with respect to the change of the classi6 fication of the rule; and 

7 ‘‘(B) allow interested persons an additional 

8 opportunity of not less than 30 days to com9 ment on— 

10 ‘‘(i) the rule; and 

11 ‘‘(ii) the change of the classification of 

12 the rule. 

13 ‘‘(6) PROHIBITION ON CERTAIN COMMUNICA14 TIONS.— 

15 ‘‘(A) IN GENERAL.—Except as provided in 

16 subparagraph (B), after an agency publishes a 

17 notice of proposed rulemaking required under 

18 paragraph (1), or after an agency publishes a 

19 notice of initiation of rulemaking under sub20 section (d)(1)(B), the agency, and any indi21 vidual acting in an official capacity on behalf of 

22 the agency, may not communicate, and a person 

23 who receives Federal funds from the agency 

24 may not use those funds to communicate, 

25 through written, oral, electronic, or other 


rfrederick on DSKBCBPHB2PROD with BILLS
11 

•S 951 RS

1 means, to the public with respect to the pro2 posed rule in a manner that— 

3 ‘‘(i) directly advocates, in support of 

4 or against the proposed rule, for the sub5 mission of information that will form part 

6 of the record for the proposed rule; 

7 ‘‘(ii) appeals to the public, or solicits 

8 a third party, to undertake advocacy in 

9 support of or against the proposed rule; or 

10 ‘‘(iii) is directly or indirectly for the 

11 purpose of publicity or propaganda within 

12 the United States in a manner that Con13 gress has not authorized. 

14 ‘‘(B) EXCEPTION.—The prohibition under 

15 subparagraph (A) shall not apply to a commu16 nication that requests comments on, or provides 

17 information regarding, a proposed rule in an 

18 impartial manner. 

19 ‘‘(d) INITIATION OF RULEMAKING FOR MAJOR AND

20 HIGH-IMPACT RULES.— 

21 ‘‘(1) NOTICE FOR MAJOR AND HIGH-IMPACT

22 RULES.—When an agency determines to initiate a 

23 rulemaking that may result in a major rule or a 

24 high-impact rule, the agency shall— 


rfrederick on DSKBCBPHB2PROD with BILLS
12 

•S 951 RS

1 ‘‘(A) establish an electronic docket for that 

2 rulemaking, which may have a physical counter3 part; and 

4 ‘‘(B) publish a notice of initiation of rule5 making in the Federal Register, which shall— 

6 ‘‘(i) briefly describe the subject and 

7 objectives of, and the problem to be solved 

8 by, the rule; 

9 ‘‘(ii) reference the legal authority 

10 under which the rule would be proposed; 

11 ‘‘(iii) invite interested persons to pro12 pose alternatives and other ideas regarding 

13 how best to accomplish the objectives of 

14 the agency in the most effective manner; 

15 and 

16 ‘‘(iv) indicate how interested persons 

17 may submit written material for the dock18 et. 

19 ‘‘(2) ACCESSIBILITY.—All information provided 

20 to the agency under paragraph (1) shall be promptly 

21 placed in the docket and made accessible to the pub22 lic. 

23 ‘‘(3) APPLICABILITY.—With respect to the al24 ternatives and other ideas proposed under paragraph 

25 (1)(B)(iii)— 


rfrederick on DSKBCBPHB2PROD with BILLS
13 

•S 951 RS

1 ‘‘(A) the alternatives and other ideas are 

2 for the benefit of— 

3 ‘‘(i) the agency receiving the alter4 natives and other ideas; and 

5 ‘‘(ii) the public; and 

6 ‘‘(B) the agency receiving the alternatives 

7 and other ideas may respond to the alternatives 

8 and other ideas. 

9 ‘‘(4) TIMETABLE.— 

10 ‘‘(A) IN GENERAL.—With respect to a 

11 rulemaking for a major rule or a high-impact 

12 rule, the agency proposing the rule shall estab13 lish a timetable for the rulemaking that— 

14 ‘‘(i) includes intermediate and final 

15 completion dates for actions of the agency; 

16 and 

17 ‘‘(ii) shall be published in the elec18 tronic docket established under paragraph 

19 (1)(A) with respect to the rulemaking. 

20 ‘‘(B) CONSIDERATION OF FACTORS.—In 

21 establishing the timetable required under sub22 paragraph (A), an agency shall consider rel23 evant factors, including— 

24 ‘‘(i) the size and complexity of the 

25 rulemaking; 


rfrederick on DSKBCBPHB2PROD with BILLS
14 

•S 951 RS

1 ‘‘(ii) the resources available to the 

2 agency; 

3 ‘‘(iii) the national significance of the 

4 rulemaking; and 

5 ‘‘(iv) all statutory requirements that 

6 govern the timing of the rulemaking. 

7 ‘‘(C) REPORT REQUIRED.— 

8 ‘‘(i) IN GENERAL.—An agency that 

9 fails to meet an intermediate or final com10 pletion date for an action established under 

11 subparagraph (A) shall submit to Congress 

12 and the Director of the Office of Manage13 ment and Budget a report regarding why 

14 the agency failed to meet the completion 

15 date. 

16 ‘‘(ii) CONTENTS; PUBLICATION IN

17 FEDERAL REGISTER.—A report submitted 

18 under clause (i) shall— 

19 ‘‘(I) include an amended time20 table for the rulemaking; and 

21 ‘‘(II) be published— 

22 ‘‘(aa) in the Federal Reg23 ister; and 

24 ‘‘(bb) in the electronic dock25 et established under paragraph 


rfrederick on DSKBCBPHB2PROD with BILLS
15 

•S 951 RS

1 (1)(A) with respect to the rule2 making. 

3 ‘‘(5) NOTICE OF DETERMINATION OF OTHER

4 AGENCY COURSE.— 

5 ‘‘(A) IN GENERAL.—If, after publishing 

6 the notice required under paragraph (1), an 

7 agency determines not to issue a major rule or 

8 a high-impact rule, the agency shall, after con9 sulting with the Administrator— 

10 ‘‘(i) publish a notice of determination 

11 of other agency course; and 

12 ‘‘(ii) if the agency intends to issue a 

13 rule, comply with the procedures required 

14 under subsection (c). 

15 ‘‘(B) CONTENTS.—A notice of determina16 tion of other agency course published under 

17 subparagraph (A)(i) shall include— 

18 ‘‘(i) a description of the alternative re19 sponse the agency has determined to 

20 adopt; and 

21 ‘‘(ii) if the agency intends to issue a 

22 rule, any information required under sub23 section (c). 

24 ‘‘(e) PUBLIC HEARING FOR HIGH-IMPACT RULES

25 AND CERTAIN MAJOR RULES.— 


rfrederick on DSKBCBPHB2PROD with BILLS
16 

•S 951 RS

1 ‘‘(1) PETITION FOR PUBLIC HEARING.— 

2 ‘‘(A) IN GENERAL.—Before the date on 

3 which the comment period closes with respect to 

4 a proposed high-impact rule or a proposed 

5 major rule described in section 551(18)(A), an 

6 interested person may petition the agency that 

7 proposed the rule to hold a public hearing in ac8 cordance with this subsection. 

9 ‘‘(B) PETITION FOR PUBLIC HEARING FOR

10 HIGH-IMPACT RULES.— 

11 ‘‘(i) GRANTING OF PETITION.—Not 

12 later than 30 days after the date on which 

13 an agency receives a petition submitted 

14 under subparagraph (A) with respect to a 

15 high-impact rule, the agency shall grant 

16 the petition if the petition shows that— 

17 ‘‘(I) the proposed rule is based 

18 on conclusions with respect to 1 or 

19 more specific scientific, technical, eco20 nomic, or other complex factual issues 

21 that are genuinely disputed; 

22 ‘‘(II) with respect to a rule that 

23 the agency is required to reissue not 

24 less frequently than once every 3 

25 years, the interested person submitVerDate Sep 11 2014 23:28 Feb 14, 2018 Jkt 079200 PO 00000 Frm 00016 Fmt 6652 Sfmt 6401 E:\BILLS\S951.RS S951

rfrederick on DSKBCBPHB2PROD with BILLS
17 

•S 951 RS

1 ting the petition could not have raised 

2 the disputed factual issues described 

3 in subclause (I) during the 5-year pe4 riod preceding the date on which the 

5 petition is submitted; and 

6 ‘‘(III) the resolution of the dis7 puted factual issues described in sub8 clause (I) would likely have an effect 

9 on— 

10 ‘‘(aa) the costs and benefits 

11 of the proposed rule; or 

12 ‘‘(bb) whether the proposed 

13 rule achieves the statutory pur14 pose. 

15 ‘‘(ii) DENIAL OF PETITION.—If an 

16 agency denies a petition submitted under 

17 clause (i) in whole or in part, the agency 

18 shall include in the rulemaking record an 

19 explanation for the denial sufficient for ju20 dicial review, including— 

21 ‘‘(I) findings by the agency 

22 that— 

23 ‘‘(aa) there is no genuine 

24 dispute as to the factual issues 

25 raised by the petition; or 


rfrederick on DSKBCBPHB2PROD with BILLS
18 

•S 951 RS

1 ‘‘(bb) with respect to a rule 

2 that the agency is required to re3 issue not less frequently than 

4 once every 3 years, the interested 

5 person submitting the petition 

6 could have raised the disputed 

7 factual issues in the petition dur8 ing the 5-year period preceding 

9 the date on which the petition is 

10 submitted; and 

11 ‘‘(II) a reasoned determination 

12 by the agency that the factual issues 

13 raised by the petition, even if subject 

14 to genuine dispute and not subject to 

15 subclause (I)(bb), will not have an ef16 fect on— 

17 ‘‘(aa) the costs and benefits 

18 of the proposed rule; or 

19 ‘‘(bb) whether the proposed 

20 rule achieves the statutory pur21 pose. 

22 ‘‘(iii) INCLUSION IN THE RECORD.—A 

23 petition submitted under subparagraph (A) 

24 with respect to a high-impact rule and the 

25 decision of an agency with respect to the 


rfrederick on DSKBCBPHB2PROD with BILLS
19 

•S 951 RS

1 petition shall be included in the rulemaking 

2 record. 

3 ‘‘(C) PETITION FOR PUBLIC HEARING FOR

4 CERTAIN MAJOR RULES.— 

5 ‘‘(i) IN GENERAL.—In the case of a 

6 major rule described in section 551(18)(A), 

7 any interested person may petition for a 

8 hearing under this subsection on the 

9 grounds and within the time limitation de10 scribed in subparagraph (B)(i). 

11 ‘‘(ii) AGENCY AUTHORITY TO DENY

12 PETITION.—An agency may deny a petition 

13 submitted to the agency under clause (i) if 

14 the agency reasonably determines that— 

15 ‘‘(I) a hearing— 

16 ‘‘(aa) would not advance the 

17 consideration of the proposed 

18 rule by the agency; or 

19 ‘‘(bb) would, in light of the 

20 need for agency action, unreason21 ably delay completion of the rule22 making; or 

23 ‘‘(II) with respect to a rule that 

24 the agency is required to reissue not 

25 less frequently than once every 3 


rfrederick on DSKBCBPHB2PROD with BILLS
20 

•S 951 RS

1 years, the interested person submit2 ting the petition could have raised the 

3 disputed factual issues in the petition 

4 during the 5-year period preceding the 

5 date on which the petition is sub6 mitted. 

7 ‘‘(iii) INCLUSION IN THE RECORD.—A 

8 petition submitted under clause (i) and the 

9 decision of an agency with respect to the 

10 petition shall be included in the rulemaking 

11 record. 

12 ‘‘(2) NOTICE OF HEARING.—Not later than 45 

13 days before the date on which a hearing is held 

14 under this subsection, an agency shall publish in the 

15 Federal Register a notice specifying— 

16 ‘‘(A) the proposed rule to be considered at 

17 the hearing; and 

18 ‘‘(B) the factual issues to be considered at 

19 the hearing. 

20 ‘‘(3) HEARING REQUIREMENTS.— 

21 ‘‘(A) LIMITED NATURE OF HEARING.—A 

22 hearing held under this subsection shall be lim23 ited to— 


rfrederick on DSKBCBPHB2PROD with BILLS
21 

•S 951 RS

1 ‘‘(i) the specific factual issues raised 

2 in a petition granted in whole or in part 

3 under paragraph (1); and 

4 ‘‘(ii) any other factual issues the reso5 lution of which an agency, in the discretion 

6 of the agency, determines will advance con7 sideration by the agency of the proposed 

8 rule. 

9 ‘‘(B) PROCEDURES.— 

10 ‘‘(i) BURDEN OF PROOF.—Except as 

11 otherwise provided by statute, a proponent 

12 of a rule has the burden of proof in a hear13 ing held under this subsection. 

14 ‘‘(ii) ADMISSION OF EVIDENCE.—In a 

15 hearing held under this subsection, any 

16 documentary or oral evidence may be re17 ceived, except that an agency, as a matter 

18 of policy, shall provide for the exclusion of 

19 immaterial or unduly repetitious evidence. 

20 ‘‘(iii) ADOPTION OF RULES GOV21 ERNING HEARINGS.—To govern a hearing 

22 held under this subsection, each agency 

23 shall adopt rules that provide for— 


rfrederick on DSKBCBPHB2PROD with BILLS
22 

•S 951 RS

1 ‘‘(I) the appointment of an agen2 cy official or administrative law judge 

3 to preside at the hearing; 

4 ‘‘(II) the presentation by inter5 ested parties of relevant documentary 

6 or oral evidence, unless the evidence is 

7 immaterial or unduly repetitious; 

8 ‘‘(III) a reasonable and adequate 

9 opportunity for cross-examination by 

10 interested parties concerning genu11 inely disputed factual issues raised by 

12 the petition, provided that, in the case 

13 of multiple interested parties with the 

14 same or similar interests, the agency 

15 may require the use of common coun16 sel where the common counsel may 

17 adequately represent the interests that 

18 will be significantly affected by the 

19 proposed rule; and 

20 ‘‘(IV) when appropriate, and to 

21 the extent practicable, the consolida22 tion of proceedings with respect to 

23 multiple petitions submitted under 

24 this subsection into a single hearing. 


rfrederick on DSKBCBPHB2PROD with BILLS
23 

•S 951 RS

1 ‘‘(C) RECORD OF HEARING.—A transcript 

2 of testimony and exhibits, together with all pa3 pers and requests filed in the hearing, shall 

4 constitute the exclusive record for decision of 

5 the factual issues addressed in a hearing held 

6 under this subsection. 

7 ‘‘(4) JUDICIAL REVIEW.— 

8 ‘‘(A) IN GENERAL.—Failure to petition for 

9 a hearing under this subsection shall not pre10 clude judicial review of any claim that could 

11 have been raised in the hearing petition or at 

12 the hearing. 

13 ‘‘(B) TIMING OF JUDICIAL REVIEW.— 

14 There shall be no judicial review of the disposi15 tion of a petition by an agency under this sub16 section until judicial review of the final action 

17 of the agency. 

18 ‘‘(f) FINAL RULES.— 

19 ‘‘(1) EFFECTIVENESS OF MAJOR OR HIGH-IM20 PACT RULE.— 

21 ‘‘(A) IN GENERAL.—Except as provided in 

22 subparagraph (B), in a rulemaking for a major 

23 rule or a high-impact rule, an agency shall 

24 adopt the most cost-effective rule that— 


rfrederick on DSKBCBPHB2PROD with BILLS
24 

•S 951 RS

1 ‘‘(i) is considered under subsection 

2 (b)(4); and 

3 ‘‘(ii) meets relevant statutory objec4 tives. 

5 ‘‘(B) EXCEPTION.—In a rulemaking for a 

6 major rule or a high-impact rule, an agency 

7 may adopt a rule that is more costly than the 

8 most cost-effective alternative that would 

9 achieve the relevant statutory objectives only 

10 if— 

11 ‘‘(i) the additional benefits of the 

12 more costly rule justify the additional costs 

13 of that rule; 

14 ‘‘(ii) the agency specifically identifies 

15 each additional benefit described in clause 

16 (i) and the cost of each such additional 

17 benefit; and 

18 ‘‘(iii) the agency explains why the 

19 agency adopted a rule that is more costly 

20 than the most cost-effective alternative. 

21 ‘‘(2) PUBLICATION OF NOTICE OF FINAL RULE22 MAKING.—When an agency adopts a final rule, the 

23 agency shall publish a notice of final rulemaking in 

24 the Federal Register, which shall include— 


rfrederick on DSKBCBPHB2PROD with BILLS
25 

•S 951 RS

1 ‘‘(A) a concise, general statement of the 

2 basis and purpose of the rule; 

3 ‘‘(B) a reasoned determination by the 

4 agency regarding the considerations described 

5 in subsection (b); 

6 ‘‘(C) a response to each significant issue 

7 raised in the comments on the proposed rule; 

8 and 

9 ‘‘(D) with respect to a major rule or a 

10 high-impact rule, a reasoned determination by 

11 the agency that— 

12 ‘‘(i) the benefits of the rule advance 

13 the relevant statutory objectives and justify 

14 the costs of the rule; and 

15 ‘‘(ii)(I) no alternative considered 

16 would achieve the relevant statutory objec17 tives in a more cost-effective manner than 

18 the rule; or 

19 ‘‘(II) the adoption by the agency of a 

20 more costly rule complies with paragraph 

21 (1)(B). 

22 ‘‘(3) INFORMATION QUALITY.—If an agency 

23 rulemaking rests upon scientific, technical, or eco24 nomic information, the agency shall adopt a final 


rfrederick on DSKBCBPHB2PROD with BILLS
26 

•S 951 RS

1 rule on the basis of the best reasonably available sci2 entific, technical, or economic information. 

3 ‘‘(4) ACCESSIBILITY.— 

4 ‘‘(A) IN GENERAL.—Except as provided in 

5 subparagraph (B), not later than the date on 

6 which an agency publishes a notice of final rule7 making under paragraph (2), all studies, mod8 els, scientific literature, and other information 

9 developed or relied upon by the agency, and ac10 tions taken by the agency to obtain that infor11 mation, in connection with the determination of 

12 the agency to finalize the rule that is the sub13 ject of the rulemaking shall be placed in the 

14 docket for the rule and made accessible to the 

15 public. 

16 ‘‘(B) EXCEPTION.—Subparagraph (A) 

17 shall not apply with respect to information that 

18 is exempt from disclosure under section 552(b). 

19 ‘‘(5) RULES ADOPTED AT THE END OF A PRESI20 DENTIAL ADMINISTRATION.— 

21 ‘‘(A) IN GENERAL.—During the 60-day pe22 riod beginning on a transitional inauguration 

23 day (as defined in section 3349a), with respect 

24 to any final rule that had been placed on file 

25 for public inspection by the Office of the FedVerDate Sep 11 2014 23:28 Feb 14, 2018 Jkt 079200 PO 00000 Frm 00026 Fmt 6652 Sfmt 6401 E:\BILLS\S951.RS S951

rfrederick on DSKBCBPHB2PROD with BILLS
27 

•S 951 RS

1 eral Register or published in the Federal Reg2 ister as of the date of the inauguration, but 

3 which had not become effective by the date of 

4 the inauguration, the agency issuing the rule 

5 may, by order, delay the effective date of the 

6 rule for not more than 90 days for the purpose 

7 of obtaining public comment on whether— 

8 ‘‘(i) the rule should be amended or re9 scinded; or 

10 ‘‘(ii) the effective date of the rule 

11 should be further delayed. 

12 ‘‘(B) OPPORTUNITY FOR COMMENT.—If an 

13 agency delays the effective date of a rule under 

14 subparagraph (A), the agency shall give the 

15 public not less than 30 days to submit com16 ments. 

17 ‘‘(g) APPLICABILITY.— 

18 ‘‘(1) PRIMACY OF CERTAIN RULEMAKING CON19 SIDERATIONS AND PROCEDURES IN OTHER FEDERAL

20 LAWS.— 

21 ‘‘(A) CONSIDERATIONS.—If a rulemaking 

22 is authorized under a Federal law that requires 

23 an agency to consider, or prohibits an agency 

24 from considering, a factor in a manner that is 

25 inconsistent with, or that conflicts with, the reVerDate Sep 11 2014 23:28 Feb 14, 2018 Jkt 079200 PO 00000 Frm 00027 Fmt 6652 Sfmt 6401 E:\BILLS\S951.RS S951

rfrederick on DSKBCBPHB2PROD with BILLS
28 

•S 951 RS

1 quirements under this section, for the purposes 

2 of this section, the requirement or prohibition, 

3 as applicable, in that other Federal law shall 

4 apply to the agency in the rulemaking. 

5 ‘‘(B) PROCEDURAL REQUIREMENTS.—If a 

6 rulemaking is authorized under a Federal law 

7 that requires an agency to follow or use, or pro8 hibits an agency from following or using, a pro9 cedure in a manner that is duplicative of, or 

10 that conflicts with, a procedural requirement 

11 under this section, for the purposes of this sec12 tion, the requirement or prohibition, as applica13 ble, in that other Federal law shall apply to the 

14 agency in the rulemaking. 

15 ‘‘(2) GUIDANCE AND RULES OF ORGANIZA16 TION.—Except as otherwise provided by law, this 

17 section shall not apply to guidance or rules of agen18 cy organization, procedure, or practice. 

19 ‘‘(3) EXCEPTIONS FOR GOOD CAUSE.— 

20 ‘‘(A) FINDING OF GOOD CAUSE.— 

21 ‘‘(i) IN GENERAL.—If an agency for 

22 good cause finds that compliance with sub23 section (c), (d), (e), or (f)(2)(B) before 

24 issuing a final rule is unnecessary, imprac25 ticable, or contrary to the public interest, 


rfrederick on DSKBCBPHB2PROD with BILLS
29 

•S 951 RS

1 that subsection shall not apply and the 

2 agency may issue the final rule or an in3 terim final rule, as applicable, under sub4 paragraph (B) or (C). 

5 ‘‘(ii) INCORPORATION OF GOOD CAUSE

6 FINDING.—If an agency makes a finding 

7 under clause (i), the agency shall include 

8 that finding and a brief statement with re9 spect to the reasons for that finding in the 

10 final rule or interim final rule, as applica11 ble, issued by the agency. 

12 ‘‘(B) DIRECT FINAL RULES.— 

13 ‘‘(i) IN GENERAL.—Except as pro14 vided in clause (ii), if an agency makes a 

15 finding under subparagraph (A)(i) that 

16 compliance with subsection (c), (d), (e), or 

17 (f)(2)(B) before issuing a final rule is un18 necessary, the agency shall, before issuing 

19 the final rule— 

20 ‘‘(I) publish in the Federal Reg21 ister the text of the final rule, the 

22 brief statement required under sub23 paragraph (A)(ii), and a notice of op24 portunity for public comment; 


rfrederick on DSKBCBPHB2PROD with BILLS
30 

•S 951 RS

1 ‘‘(II) establish a comment period 

2 of not less than 30 days for any inter3 ested person to submit written mate4 rial, data, views, or arguments with 

5 respect to the final rule; and 

6 ‘‘(III) provide notice of the date 

7 on which the rule will take effect. 

8 ‘‘(ii) EXCEPTION.—An agency that 

9 made a finding described in clause (i) may 

10 choose not to follow the requirements 

11 under that clause if the agency determines 

12 that following the requirements would not 

13 expedite the issuance of the final rule. 

14 ‘‘(iii) ADVERSE COMMENTS.—If an 

15 agency receives significant adverse com16 ments with respect to a rule during the 

17 comment period established under clause 

18 (i)(II), the agency shall— 

19 ‘‘(I) withdraw the notice of final 

20 rulemaking published by the agency 

21 with respect to the rule; and 

22 ‘‘(II) complete rulemaking in ac23 cordance with subsections (c), (d), (e), 

24 and (f), as applicable. 

25 ‘‘(C) INTERIM FINAL RULES.— 


rfrederick on DSKBCBPHB2PROD with BILLS
31 

•S 951 RS

1 ‘‘(i) IN GENERAL.—If an agency for 

2 good cause finds that compliance with sub3 section (c), (d), (e), or (f)(2)(B) before 

4 issuing a final rule is impracticable or con5 trary to the public interest, the agency 

6 shall issue an interim final rule by— 

7 ‘‘(I) publishing the interim final 

8 rule and a request for public comment 

9 in the portion of the Federal Register 

10 relating to final rules; and 

11 ‘‘(II) providing a cross-reference 

12 in the portion of the Federal Register 

13 relating to proposed rules that re14 quests public comment with respect to 

15 the rule not later than 60 days after 

16 the rule is published under subclause 

17 (I). 

18 ‘‘(ii) INTERIM PERIOD.— 

19 ‘‘(I) IN GENERAL.—Not later 

20 than 180 days after the date on which 

21 an agency issues an interim final rule 

22 under clause (i), the agency shall— 

23 ‘‘(aa) rescind the interim 

24 rule; 


rfrederick on DSKBCBPHB2PROD with BILLS
32 

•S 951 RS

1 ‘‘(bb) initiate rulemaking in 

2 accordance with subsections (c) 

3 through (f); or 

4 ‘‘(cc) take final action to 

5 adopt a final rule. 

6 ‘‘(II) NO FORCE OR EFFECT.—If, 

7 as of the end of the 180-day period 

8 described in subclause (I), an agency 

9 fails to take an action described in 

10 item (aa), (bb), or (cc) of that sub11 clause, the interim final rule issued by 

12 the agency shall have no force or ef13 fect. 

14 ‘‘(4) EXEMPTION FOR MONETARY POLICY.— 

15 This section shall not apply to a rulemaking or to 

16 guidance that concerns monetary policy proposed or 

17 implemented by the Board of Governors of the Fed18 eral Reserve System or the Federal Open Market 

19 Committee. 

20 ‘‘(h) DATE OF PUBLICATION.—A final rule, a direct 

21 final rule described in subsection (g)(3)(B), or an interim 

22 final rule described in subsection (g)(3)(C) shall be pub23 lished not later than 30 days (or, in the case of a major 

24 rule or a high-impact rule, not later than 60 days) before 

25 the effective date of the rule, except— 


rfrederick on DSKBCBPHB2PROD with BILLS
33 

•S 951 RS

1 ‘‘(1) for guidance; or 

2 ‘‘(2) as otherwise provided by an agency for 

3 good cause and as published with the rule. 

4 ‘‘(i) RIGHT TO PETITION AND REVIEW OF RULES.— 

5 Each agency shall— 

6 ‘‘(1) give interested persons the right to petition 

7 for the issuance, amendment, or repeal of a rule; 

8 and 

9 ‘‘(2) on a continuing basis, invite interested 

10 persons to submit, by electronic means, suggestions 

11 for rules that warrant retrospective review and pos12 sible modification or repeal. 

13 ‘‘(j) RULEMAKING GUIDELINES.— 

14 ‘‘(1) ASSESSMENT OF RULES.— 

15 ‘‘(A) IN GENERAL.—The Administrator 

16 shall establish guidelines for the assessment, in17 cluding the quantitative and qualitative assess18 ment, of— 

19 ‘‘(i) the costs and benefits of proposed 

20 and final rules; 

21 ‘‘(ii) the cost-effectiveness of proposed 

22 and final rules; 

23 ‘‘(iii) other economic issues that are 

24 relevant to rulemaking under this section 

25 or other sections of this part; and 


rfrederick on DSKBCBPHB2PROD with BILLS
34 

•S 951 RS

1 ‘‘(iv) risk assessments that are rel2 evant to rulemaking under this section and 

3 other sections of this part. 

4 ‘‘(B) AGENCY ANALYSIS OF RULES.— 

5 ‘‘(i) IN GENERAL.—The rigor of the 

6 cost-benefit analysis required by the guide7 lines established under subparagraph (A) 

8 shall be commensurate, as determined by 

9 the Administrator, with the economic im10 pact of a rule. 

11 ‘‘(ii) RISK ASSESSMENT GUIDE12 LINES.—Guidelines for a risk assessment 

13 described in subparagraph (A)(iv) shall in14 clude criteria for— 

15 ‘‘(I) selecting studies and models; 

16 ‘‘(II) evaluating and weighing 

17 evidence; and 

18 ‘‘(III) conducting peer reviews. 

19 ‘‘(C) UPDATING GUIDELINES.—Not less 

20 frequently than once every 10 years, the Ad21 ministrator shall update the guidelines estab22 lished under subparagraph (A) to enable each 

23 agency to use the best available techniques to 

24 quantify and evaluate present and future beneVerDate Sep 11 2014 23:28 Feb 14, 2018 Jkt 079200 PO 00000 Frm 00034 Fmt 6652 Sfmt 6401 E:\BILLS\S951.RS S951

rfrederick on DSKBCBPHB2PROD with BILLS
35 

•S 951 RS

1 fits, costs, other economic issues, and risks as 

2 objectively and accurately as practicable. 

3 ‘‘(2) SIMPLIFICATION OF RULES.— 

4 ‘‘(A) ISSUANCE OF GUIDELINES.—The Ad5 ministrator shall issue guidelines to promote co6 ordination, simplification, and harmonization of 

7 agency rules during the rulemaking process. 

8 ‘‘(B) REQUIREMENTS.—The guidelines 

9 issued by the Administrator under subpara10 graph (A) shall advise each agency to— 

11 ‘‘(i) avoid rules that are inconsistent 

12 or incompatible with, or duplicative of, 

13 other regulations of the agency and those 

14 of other agencies; and 

15 ‘‘(ii) draft the rules of the agency to 

16 be simple and easy to understand, with the 

17 goal of minimizing the potential for uncer18 tainty and litigation arising from the un19 certainty. 

20 ‘‘(3) CONSISTENCY IN RULEMAKING.— 

21 ‘‘(A) IN GENERAL.—To promote consist22 ency in rulemaking, the Administrator shall— 

23 ‘‘(i) issue guidelines to ensure that 

24 rulemaking conducted in whole or in part 

25 under procedures specified in provisions of 


rfrederick on DSKBCBPHB2PROD with BILLS
36 

•S 951 RS

1 law other than those under this section 

2 conform with the procedures set forth in 

3 this section to the fullest extent allowed by 

4 law; and 

5 ‘‘(ii) issue guidelines for the conduct 

6 of hearings under subsection (e), which 

7 shall provide a reasonable opportunity for 

8 cross-examination. 

9 ‘‘(B) AGENCY ADOPTION OF REGULA10 TIONS.—Each agency shall adopt regulations 

11 for the conduct of hearings consistent with the 

12 guidelines issued under this paragraph. 

13 ‘‘(k) AGENCY GUIDANCE; PROCEDURES TO ISSUE

14 MAJOR GUIDANCE; AUTHORITY TO ISSUE GUIDELINES

15 FOR ISSUANCE OF GUIDANCE.— 

16 ‘‘(1) IN GENERAL.—Agency guidance shall— 

17 ‘‘(A) not be used by an agency to foreclose 

18 consideration of issues as to which the guidance 

19 expresses a conclusion; 

20 ‘‘(B) state that the guidance is not legally 

21 binding; and 

22 ‘‘(C) at the time the guidance is issued, or 

23 upon request, be made available by the issuing 

24 agency to interested persons and the public. 


rfrederick on DSKBCBPHB2PROD with BILLS
37 

•S 951 RS

1 ‘‘(2) PROCEDURES TO ISSUE MAJOR GUID2 ANCE.—Before issuing any major guidance, an agen3 cy shall— 

4 ‘‘(A) make and document a reasoned deter5 mination that— 

6 ‘‘(i) such guidance is understandable 

7 and complies with relevant statutory objec8 tives and regulatory provisions; and 

9 ‘‘(ii) identifies the costs and benefits, 

10 including all costs and benefits to be con11 sidered during a rulemaking under sub12 section (b), of requiring conduct con13 forming to such guidance and assures that 

14 such benefits justify such costs; and 

15 ‘‘(B) confer with the Administrator on the 

16 issuance of the major guidance to ensure that 

17 the guidance— 

18 ‘‘(i) is reasonable; 

19 ‘‘(ii) is understandable; 

20 ‘‘(iii) is consistent with relevant statu21 tory and regulatory provisions and require22 ments or practices of other agencies; 

23 ‘‘(iv) does not produce costs that are 

24 unjustified by the benefits of the major 

25 guidance; and 


rfrederick on DSKBCBPHB2PROD with BILLS
38 

•S 951 RS

1 ‘‘(v) is otherwise appropriate. 

2 ‘‘(3) ISSUANCE OF UPDATED GUIDANCE.— 

3 ‘‘(A) IN GENERAL.—The Administrator 

4 shall issue updated guidelines for use by agen5 cies in the issuance of guidance documents. 

6 ‘‘(B) REQUIREMENTS.—The guidelines 

7 issued by the Administrator under subpara8 graph (A) shall advise each agency— 

9 ‘‘(i) not to issue guidance documents 

10 that are inconsistent or incompatible with, 

11 or duplicative of, other rules of the agency 

12 and those of other agencies; 

13 ‘‘(ii) to draft the guidance documents 

14 of the agency to be simple and easy to un15 derstand, with the goal of minimizing the 

16 potential for uncertainty and litigation 

17 arising from the uncertainty; and 

18 ‘‘(iii) how to develop and implement a 

19 strategy to ensure the proper use of guid20 ance by the agency. 

21 ‘‘(l) MAJOR RULE AND HIGH-IMPACT RULE FRAME22 WORKS.— 

23 ‘‘(1) IN GENERAL.—Beginning on the date that 

24 is 180 days after the date of enactment of this subVerDate Sep 11 2014 23:28 Feb 14, 2018 Jkt 079200 PO 00000 Frm 00038 Fmt 6652 Sfmt 6401 E:\BILLS\S951.RS S951

rfrederick on DSKBCBPHB2PROD with BILLS
39 

•S 951 RS

1 section, when an agency publishes in the Federal 

2 Register— 

3 ‘‘(A) a proposed major rule or a proposed 

4 high-impact rule, the agency shall include a po5 tential framework for assessing the rule, which 

6 shall include a general statement of how the 

7 agency intends to measure the effectiveness of 

8 the rule; or 

9 ‘‘(B) a final major rule or a final high-im10 pact rule, the agency shall include a framework 

11 for assessing the rule under paragraph (2), 

12 which shall include— 

13 ‘‘(i) a clear statement of the regu14 latory objectives of the rule, including a 

15 summary of the benefit and cost of the 

16 rule; 

17 ‘‘(ii) the methodology by which the 

18 agency plans to analyze the rule, including 

19 metrics by which the agency can meas20 ure— 

21 ‘‘(I) the effectiveness and bene22 fits of the rule in producing the regu23 latory objectives of the rule; and 


rfrederick on DSKBCBPHB2PROD with BILLS
40 

•S 951 RS

1 ‘‘(II) the impacts, including any 

2 costs, of the rule on regulated and 

3 other impacted entities; 

4 ‘‘(iii) a plan for gathering data re5 garding the metrics described in clause (ii) 

6 on an ongoing basis, or at periodic times, 

7 including a method by which the agency 

8 will invite the public to participate in the 

9 review process and seek input from other 

10 agencies; and 

11 ‘‘(iv) a specific timeframe, as appro12 priate to the rule and not more than 10 

13 years after the effective date of the rule, 

14 under which the agency shall conduct the 

15 assessment of the rule in accordance with 

16 paragraph (2)(A). 

17 ‘‘(2) ASSESSMENT.— 

18 ‘‘(A) IN GENERAL.—Each agency shall as19 sess the data collected under paragraph 

20 (1)(B)(iii), using the methodology set forth in 

21 paragraph (1)(B)(ii) or any other appropriate 

22 methodology developed after the issuance of a 

23 final major rule or a final high-impact rule to 

24 better determine whether the regulatory objec25 tive was achieved, with respect to the rule— 


rfrederick on DSKBCBPHB2PROD with BILLS
41 

•S 951 RS

1 ‘‘(i) to analyze how the actual benefits 

2 and costs of the rule may have varied from 

3 those anticipated at the time the rule was 

4 issued; and 

5 ‘‘(ii) to determine whether— 

6 ‘‘(I) the rule is accomplishing the 

7 regulatory objective of the rule; 

8 ‘‘(II) the rule has been rendered 

9 unnecessary, taking into consider10 ation— 

11 ‘‘(aa) changes in the subject 

12 area affected by the rule; and 

13 ‘‘(bb) whether the rule over14 laps, duplicates, or conflicts 

15 with— 

16 ‘‘(AA) other rules; or 

17 ‘‘(BB) to the extent 

18 feasible, State and local gov19 ernment regulations; 

20 ‘‘(III) the rule needs to be modi21 fied in order to accomplish the regu22 latory objective; and 

23 ‘‘(IV) other alternatives to the 

24 rule or modification of the rule could 

25 better achieve the regulatory objective 


rfrederick on DSKBCBPHB2PROD with BILLS
42 

•S 951 RS

1 while imposing a smaller burden on 

2 society or increase cost-effectiveness, 

3 taking into consideration any cost al4 ready incurred. 

5 ‘‘(B) DIFFERENT METHODOLOGY.—If an 

6 agency uses a methodology other than the 

7 methodology under paragraph (1)(B)(ii) to as8 sess data under subparagraph (A), the agency 

9 shall include as part of the notice required to 

10 be published under subparagraph (D) an expla11 nation of the changes in circumstances that ne12 cessitated the use of that other methodology. 

13 ‘‘(C) SUBSEQUENT ASSESSMENTS.— 

14 ‘‘(i) IN GENERAL.—Except as pro15 vided in clause (ii), if, after an assessment 

16 of a major rule or a high-impact rule 

17 under subparagraph (A), an agency deter18 mines that the rule will remain in effect 

19 with or without modification, the agency 

20 shall— 

21 ‘‘(I) determine a specific time, as 

22 appropriate to the rule and not more 

23 than 10 years after the date on which 

24 the agency completes the assessment, 

25 under which the agency shall conduct 


rfrederick on DSKBCBPHB2PROD with BILLS
43 

•S 951 RS

1 another assessment of the rule in ac2 cordance with subparagraph (A); and 

3 ‘‘(II) if the assessment conducted 

4 under subclause (I) does not result in 

5 a repeal of the rule, periodically assess 

6 the rule in accordance with subpara7 graph (A) to ensure that the rule con8 tinues to meet the regulatory objec9 tive. 

10 ‘‘(ii) EXEMPTION.—The Adminis11 trator may exempt an agency from con12 ducting a subsequent assessment of a rule 

13 under clause (i) if the Administrator deter14 mines that there is a foreseeable and ap15 parent need for the rule beyond the time16 frame required under clause (i)(I). 

17 ‘‘(D) PUBLICATION.—Not later than 180 

18 days after the date on which an agency com19 pletes an assessment of a major rule or a high20 impact rule under subparagraph (A), the agen21 cy shall publish a notice of availability of the re22 sults of the assessment in the Federal Register, 

23 including the specific time for any subsequent 

24 assessment of the rule under subparagraph 

25 (C)(i), if applicable. 


rfrederick on DSKBCBPHB2PROD with BILLS
44 

•S 951 RS

1 ‘‘(3) OIRA OVERSIGHT.—The Administrator 

2 shall— 

3 ‘‘(A) issue guidance for agencies regarding 

4 the development of the framework under para5 graph (1) and the conduct of the assessments 

6 under paragraph (2)(A); 

7 ‘‘(B) oversee the timely compliance of 

8 agencies with this subsection; 

9 ‘‘(C) ensure that the results of each assess10 ment conducted under paragraph (2)(A) are— 

11 ‘‘(i) published promptly on a central12 ized Federal website; and 

13 ‘‘(ii) noticed in the Federal Register 

14 in accordance with paragraph (2)(D); 

15 ‘‘(D) encourage and assist agencies to 

16 streamline and coordinate the assessment of 

17 major rules or high-impact rules with similar or 

18 related regulatory objectives; 

19 ‘‘(E) exempt an agency from including the 

20 framework required under paragraph (1)(B) 

21 when publishing a final major rule or a final 

22 high-impact rule if the Administrator deter23 mines that compliance with paragraph (1)(B) is 

24 unnecessary, impracticable, or contrary to the 


rfrederick on DSKBCBPHB2PROD with BILLS
45 

•S 951 RS

1 public interest, as described in subsection 

2 (g)(3)(A)(i); and 

3 ‘‘(F) extend the deadline specified by an 

4 agency for an assessment of a major rule or a 

5 high-impact rule under paragraph (1)(B)(iv) or 

6 paragraph (2)(C)(i)(I) for a period of not more 

7 than 90 days if the agency justifies why the 

8 agency is unable to complete the assessment by 

9 that deadline. 

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

11 this subsection shall be construed to affect— 

12 ‘‘(A) the authority of an agency to assess 

13 or modify a major rule or a high-impact rule of 

14 the agency earlier than the end of the time15 frame specified for the rule under paragraph 

16 (1)(B)(iv); or 

17 ‘‘(B) any other provision of law that re18 quires an agency to conduct retrospective re19 views of rules issued by the agency. 

20 ‘‘(5) APPLICABILITY.— 

21 ‘‘(A) IN GENERAL.—This subsection shall 

22 not apply to— 

23 ‘‘(i) a major rule or a high-impact 

24 rule of an agency— 


rfrederick on DSKBCBPHB2PROD with BILLS
46 

•S 951 RS

1 ‘‘(I) that the Administrator re2 viewed before the date of enactment of 

3 this subsection; 

4 ‘‘(II) for which the agency is re5 quired to conduct a retrospective re6 view under any other provision of law 

7 that meets or exceeds the require8 ments of this subsection, as deter9 mined by the Administrator; or 

10 ‘‘(III) for which the authorizing 

11 statute is subject to periodic reauthor12 ization by Congress not less fre13 quently than once every 10 years; 

14 ‘‘(ii) interpretative rules, general 

15 statements of policy, or rules of agency or16 ganization, procedure, or practice; 

17 ‘‘(iii) routine and administrative rules; 

18 or 

19 ‘‘(iv) a rule that is reviewed under 

20 section 2222 of the Economic Growth and 

21 Regulatory Paperwork Reduction Act of 

22 1996 (12 U.S.C. 3311). 

23 ‘‘(B) DIRECT AND INTERIM FINAL MAJOR

24 RULE OR HIGH-IMPACT RULE.—In the case of a 

25 major rule or a high-impact rule of an agency 


rfrederick on DSKBCBPHB2PROD with BILLS
47 

•S 951 RS

1 for which the agency is not required to issue a 

2 notice of proposed rulemaking in response to an 

3 emergency or a statutorily imposed deadline, 

4 the agency shall publish the framework required 

5 under paragraph (1)(B) in the Federal Register 

6 not later than 180 days after the date on which 

7 the agency publishes the rule. 

8 ‘‘(6) RECOMMENDATIONS TO CONGRESS.—If, 

9 under an assessment conducted under paragraph 

10 (2), an agency determines that a major rule or a 

11 high-impact rule should be modified or repealed, the 

12 agency may submit to Congress recommendations 

13 for legislation to amend applicable provisions of law 

14 if the agency is prohibited from modifying or repeal15 ing the rule under another provision of law. 

16 ‘‘(7) JUDICIAL REVIEW.— 

17 ‘‘(A) IN GENERAL.—Judicial review of 

18 agency compliance with this subsection is lim19 ited to whether an agency— 

20 ‘‘(i) published the framework for as21 sessment of a major rule or a high-impact 

22 rule in accordance with paragraph (1); or 

23 ‘‘(ii) completed and published the re24 quired assessment of a major rule or a 


rfrederick on DSKBCBPHB2PROD with BILLS
48 

•S 951 RS

1 high-impact rule in accordance with sub2 paragraphs (A) and (D) of paragraph (2). 

3 ‘‘(B) REMEDY AVAILABLE.—In granting 

4 relief in an action brought under subparagraph 

5 (A), a court may only issue an order remanding 

6 the major rule or the high-impact rule, as appli7 cable, to the agency to comply with paragraph 

8 (1) or subparagraph (A) or (D) of paragraph 

9 (2), as applicable. 

10 ‘‘(C) EFFECTIVE DATE OF MAJOR RULE.— 

11 If, in an action brought under subparagraph 

12 (A)(i), a court determines that the agency did 

13 not comply, the major rule or the high-impact 

14 rule, as applicable, shall take effect notwith15 standing any order issued by the court. 

16 ‘‘(D) ADMINISTRATOR.—Any determina17 tion, action, or inaction of the Administrator 

18 under this subsection shall not be subject to ju19 dicial review.’’. 

20 SEC. 4. SCOPE OF REVIEW. 

21 Section 706 of title 5, United States Code, is amend22 ed— 

23 (1) in the first sentence of the matter preceding 

24 paragraph (1), by striking ‘‘To the extent necVerDate Sep 11 2014 23:28 Feb 14, 2018 Jkt 079200 PO 00000 Frm 00048 Fmt 6652 Sfmt 6401 E:\BILLS\S951.RS S951

rfrederick on DSKBCBPHB2PROD with BILLS
49 

•S 951 RS

1 essary’’ and inserting ‘‘(a) IN GENERAL.—To the 

2 extent necessary’’; and 

3 (2) in subsection (a), as so designated— 

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

5 the end; 

6 (B) in paragraph (2)— 

7 (i) in the matter preceding subpara8 graph (A), by inserting ‘‘, or, when appro9 priate, remand a matter to an agency with10 out setting aside,’’ after ‘‘set aside’’; and 

11 (ii) in subparagraph (F), by striking 

12 the period at the end and inserting ‘‘; 

13 and’’; and 

14 (C) by striking the flush text following 

15 paragraph (2)(F) and inserting the following: 

16 ‘‘(3) with respect to the review of a high-impact 

17 rule, as defined in section 551(16), determine wheth18 er the factual findings of the agency issuing the rule 

19 are supported by substantial evidence. 

20 ‘‘(b) REVIEW OF ENTIRE RECORD; PREJUDICIAL

21 ERROR.—In making a determination under subsection (a), 

22 the court shall review the whole record or those parts of 

23 it cited by a party, and due account shall be taken of the 

24 rule of prejudicial error. 


rfrederick on DSKBCBPHB2PROD with BILLS
50 

•S 951 RS

1 ‘‘(c) PRECLUSION OF REVIEW.—The determination 

2 of whether a rule is a major rule within the meaning of 

3 subparagraphs (B) and (C) of section 551(18) shall not 

4 be subject to judicial review. 

5 ‘‘(d) REVIEW OF CERTAIN GUIDANCE.—Agency guid6 ance that does not interpret a statute or rule may be re7 viewed only under subsection (a)(2)(D). 

8 ‘‘(e) AGENCY INTERPRETATION OF RULES.—The 

9 weight that a reviewing court gives an interpretation by 

10 an agency of a rule of that agency shall depend on the 

11 thoroughness evident in the consideration of the rule by 

12 the agency, the validity of the reasoning of the agency, 

13 and the consistency of the interpretation with earlier and 

14 later pronouncements.’’. 

15 SEC. 5. ADDED DEFINITIONS. 

16 Section 701(b) of title 5, United States Code, is 

17 amended— 

18 (1) in paragraph (1)(H), by striking ‘‘and’’ at 

19 the end; 

20 (2) by redesignating paragraph (2) as para21 graph (3); 

22 (3) by inserting after paragraph (1) the fol23 lowing: 

24 ‘‘(2) ‘guidance’ has the meaning given the term 

25 in section 551;’’; 


rfrederick on DSKBCBPHB2PROD with BILLS
51 

•S 951 RS

1 (4) in paragraph (3), as so redesignated, by 

2 striking the period at the end and inserting ‘‘; and’’; 

3 and 

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

5 ‘‘(4) ‘substantial evidence’ means such relevant 

6 evidence as a reasonable mind might accept as ade7 quate to support a conclusion in light of the record 

8 considered as a whole.’’. 

9 SEC. 6. APPLICATION. 

10 The amendments made by this Act to sections 553, 

11 701(b), and 706 of title 5, United States Code, shall not 

12 apply to any rulemaking, as defined in section 551 of title 

13 5, United States Code, as amended by section 2 of this 

14 Act, that is pending or completed as of the date of enact15 ment of this Act. 

16 SEC. 7. TECHNICAL AND CONFORMING AMENDMENTS. 

17 (a) CONSUMER PRODUCT SAFETY ACT.—Section 9(i) 

18 of the Consumer Product Safety Act (15 U.S.C. 2058(i)) 

19 is amended, in the first sentence, by striking ‘‘section 

20 553(e)’’ and inserting ‘‘section 553(i)’’. 

21 (b) DEFENSE PRODUCTION ACT OF 1950.—Section 

22 709(b)(1) of the Defense Production Act of 1950 (50 

23 U.S.C. 4559(b)(1)) is amended by striking ‘‘for not less 

24 than 30 days, consistent with the requirements of section 


rfrederick on DSKBCBPHB2PROD with BILLS
52 

•S 951 RS

1 553(b)’’ and inserting ‘‘in a manner consistent with the 

2 requirements of section 553(c)’’. 

3 (c) ENDANGERED SPECIES ACT OF 1973.—Section 

4 4(b)(3) of the Endangered Species Act of 1973 (16 U.S.C. 

5 1533(b)(3)) is amended— 

6 (1) in subparagraph (A), in the first sentence, 

7 by striking ‘‘section 553(e)’’ and inserting ‘‘section 

8 553(i)’’; and 

9 (2) in subparagraph (D)(i), in the first sen10 tence, by striking ‘‘section 553(e)’’ and inserting 

11 ‘‘section 553(i)’’. 

12 (d) EXPEDITED FUNDS AVAILABILITY ACT.—Section 

13 609(a) of the Expedited Funds Availability Act (12 U.S.C. 

14 4008(a)) is amended, in the matter preceding paragraph 

15 (1), by striking ‘‘section 553(c)’’ and inserting ‘‘section 

16 553’’. 

17 (e) FEDERAL HAZARDOUS SUBSTANCES ACT.—Sec18 tion 3 of the Federal Hazardous Substances Act (15 

19 U.S.C. 1262) is amended— 

20 (1) in subsection (e)(1), by striking ‘‘(other 

21 than clause (B) of the last sentence of subsection (b) 

22 of such section) of title 5 of the United States Code’’ 

23 and inserting ‘‘of title 5, United States Code, other 

24 than subsection (g)(3) of such section,’’; and 


rfrederick on DSKBCBPHB2PROD with BILLS
53 

•S 951 RS

1 (2) in subsection (j), by striking ‘‘section 

2 553(e)’’ and inserting ‘‘section 553(i)’’. 

3 (f) FLAMMABLE FABRICS ACT.—The Flammable 

4 Fabrics Act (15 U.S.C. 1191 et seq.) is amended— 

5 (1) in section 4(k) (15 U.S.C. 1193(k)), in the 

6 first sentence, by striking ‘‘section 553(e)’’ and in7 serting ‘‘section 553(i)’’; and 

8 (2) in section 16(c)(2) (15 U.S.C. 1203(c)(2)), 

9 by striking ‘‘section 553(b)’’ and inserting ‘‘section 

10 553(c)’’. 

11 (g) GENERAL EDUCATION PROVISIONS ACT.—Sec12 tion 411 of the General Education Provisions Act (20 

13 U.S.C. 1221e–4) is amended, in the second sentence, by 

14 striking ‘‘Notwithstanding the exception provided under 

15 section 553(b) of title 5, such’’ and inserting ‘‘Such’’. 

16 (h) HOUSING AND COMMUNITY DEVELOPMENT ACT

17 OF 1992.—The Housing and Community Development 

18 Act of 1992 (12 U.S.C. 4501 et seq.) is amended— 

19 (1) in section 643(b)(3) (42 U.S.C. 

20 13603(b)(3)), in the first sentence, by striking 

21 ‘‘(notwithstanding subsections (a)(2), (b)(B), and 

22 (d)(3) of such section)’’ and inserting ‘‘(notwith23 standing subsections (a)(2), (g)(3), and (h)(2) of 

24 such section)’’; and 


rfrederick on DSKBCBPHB2PROD with BILLS
54 

•S 951 RS

1 (2) in section 685 (42 U.S.C. 13643), in the 

2 second sentence, by striking ‘‘(notwithstanding sub3 sections (a)(2), (b)(B), and (d)(3) of such section)’’ 

4 and inserting ‘‘(notwithstanding subsections (a)(2), 

5 (g)(3), and (h)(2) of such section)’’. 

6 (i) MARINE MAMMAL PROTECTION ACT OF 1972.— 

7 Section 109(d)(2) of the Marine Mammal Protection Act 

8 of 1972 (16 U.S.C. 1379(d)(2)) is amended, in the second 

9 sentence, by striking ‘‘subsection (d) of such section 553’’ 

10 and inserting ‘‘subsection (h) of such section 553’’. 

11 (j) MCKINNEY-VENTO HOMELESS ASSISTANCE

12 ACT.—Section 433 of the McKinney-Vento Homeless As13 sistance Act (42 U.S.C. 11387) is amended, in the second 

14 sentence, by striking ‘‘(notwithstanding subsections 

15 (a)(2), (b)(B), and (d)(3) of such section)’’ and inserting 

16 ‘‘(notwithstanding subsections (a)(2), (g)(3), and (h)(2) of 

17 such section)’’. 

18 (k) NATIVE AMERICAN PROGRAMS ACT OF 1974.— 

19 Section 814 of the Native American Programs Act of 1974 

20 (42 U.S.C. 2992b–1) is amended— 

21 (1) in subsection (b)— 

22 (A) by striking paragraph (1); 

23 (B) by redesignating paragraphs (2) and 

24 (3) as paragraphs (1) and (2), respectively; 

25 (C) in paragraph (1), as so redesignated— 


rfrederick on DSKBCBPHB2PROD with BILLS
55 

•S 951 RS

1 (i) in the matter preceding subpara2 graph (A), by striking ‘‘Subparagraph (B) 

3 of the last sentence of section 553(b)’’ and 

4 inserting ‘‘Section 553(g)(3)’’; and 

5 (ii) by striking ‘‘(other than an inter6 pretative rule or a general statement of 

7 policy)’’; and 

8 (D) in paragraph (2), as so redesignated, 

9 in the matter preceding subparagraph (A)— 

10 (i) by striking ‘‘The first 2 sentences 

11 of section 553(b)’’ and inserting ‘‘Section 

12 553(c)’’; and 

13 (ii) by striking ‘‘an interpretative rule, 

14 a general statement of policy, or’’; and 

15 (2) in subsection (c)— 

16 (A) in the matter preceding paragraph (1), 

17 by striking ‘‘section 553(d)’’ and inserting ‘‘sec18 tion 553(h)’’; and 

19 (B) in the flush text following paragraph 

20 (2), by striking ‘‘the first 2 sentences of section 

21 553(b)’’ and inserting ‘‘section 553(c)’’. 

22 (l) NATURAL GAS POLICY ACT OF 1978.—Section 

23 502(b) of the Natural Gas Policy Act of 1978 (15 U.S.C. 

24 3412(b)) is amended, in the third sentence, by striking 

25 ‘‘section 553(d)(3)’’ and inserting ‘‘section 553(h)(2)’’. 


rfrederick on DSKBCBPHB2PROD with BILLS
56 

•S 951 RS

1 (m) NOISE CONTROL ACT OF 1972.—Section 6(c)(2) 

2 of the Noise Control Act of 1972 (42 U.S.C. 4905(c)(2)) 

3 is amended by striking ‘‘the first sentence of section 

4 553(c) of title 5’’ and inserting ‘‘section 553(c)(4)(A) of 

5 title 5’’. 

6 (n) POISON PREVENTION PACKAGING ACT OF

7 1970.—The Poison Prevention Packaging Act of 1970 (15 

8 U.S.C. 1471 et seq.) is amended— 

9 (1) in section 5(a) (15 U.S.C. 1474(a)), in the 

10 first sentence, by striking ‘‘other than paragraph 

11 (3)(B) of the last sentence of subsection (b) of such 

12 section’’ and inserting ‘‘other than subsection (g)(3) 

13 of such section’’; and 

14 (2) in section 7(c)(2) (15 U.S.C. 1476(c)(2)), 

15 by striking ‘‘section 553(b)’’ and inserting ‘‘section 

16 553(c)’’. 

17 (o) POULTRY PRODUCTS INSPECTION ACT.—Section 

18 14(c) of the Poultry Products Inspection Act (21 U.S.C. 

19 463(c)) is amended by striking ‘‘section 553(c) of title 5, 

20 United States Code’’ and inserting ‘‘section 553(c)(4) of 

21 title 5, United States Code,’’. 

22 (p) RURAL ELECTRIFICATION ACT OF 1936.—Sec23 tion 206(a)(1) of the Rural Electrification Act of 1936 

24 (7 U.S.C. 927(a)(1)) is amended by striking ‘‘subsections 


rfrederick on DSKBCBPHB2PROD with BILLS
57 

•S 951 RS

1 (b) through (e)’’ and inserting ‘‘subsections (b) through 

2 (k)’’. 

3 (q) SOCIAL SECURITY ACT.—The Social Security Act 

4 (42 U.S.C. 301 et seq.) is amended— 

5 (1) in section 221(j) (42 U.S.C. 421(j)), in the 

6 flush text following paragraph (3), by striking ‘‘in 

7 accordance with section 553(b)(A) of title 5, United 

8 States Code’’ and all that follows through ‘‘and 

9 statements’’ and inserting ‘‘in accordance with sec10 tion 553(g)(2) of title 5, United States Code, of 

11 guidance or rules of agency organization, procedure, 

12 or practice relating to consultative examinations if 

13 such guidance and rules’’; and 

14 (2) in section 1871(b)(2) (42 U.S.C. 

15 1395hh(b)(2)), by striking subparagraph (C) and in16 serting the following: 

17 ‘‘(C) subsection (c) of section 553 of title 

18 5, United States Code, does not apply pursuant 

19 to subsection (g)(3) of such section.’’. 

20 (r) TITLE 5, UNITED STATES CODE.—Title 5, 

21 United States Code, is amended— 

22 (1) in section 556(d), in the sixth sentence, by 

23 striking ‘‘rule making’’ and inserting ‘‘rulemaking’’; 


rfrederick on DSKBCBPHB2PROD with BILLS
58 

•S 951 RS

1 (2) in section 557(b), in the fourth sentence of 

2 the matter preceding paragraph (1), by striking 

3 ‘‘rule making’’ and inserting ‘‘rulemaking’’; 

4 (3) in section 562(11), by striking ‘‘means ‘rule 

5 making’ as that term is defined in section 551(5) of 

6 this title’’ and inserting ‘‘has the meaning given the 

7 term in section 551’’; 

8 (4) in section 601(2), by striking ‘‘section 

9 553(b)’’ and inserting ‘‘section 553(c)’’; 

10 (5) in section 1103(b)(1), by striking ‘‘section 

11 553(b)(1), (2), and (3)’’ and inserting ‘‘section 

12 553(c)’’; and 

13 (6) in section 1105, by striking ‘‘subsections 

14 (b), (c), and (d)’’ and inserting ‘‘subsections (b) 

15 through (h) and (j)’’. 

16 (s) TITLE 41, UNITED STATES CODE.—Section 

17 8503(a)(2) of title 41, United States Code, is amended 

18 by striking ‘‘section 553(b) to (e)’’ and inserting ‘‘section 

19 553’’. 

20 (t) TITLE 46, UNITED STATES CODE.—Section 

21 14104(b) of title 46, United States Code, is amended, in 

22 the second sentence, by striking ‘‘shall be considered to 

23 be an interpretive regulation for purposes of section 553 

24 of title 5’’ and inserting ‘‘shall be subject to section 553 

25 of title 5’’. 


rfrederick on DSKBCBPHB2PROD with BILLS
59 

•S 951 RS

1 (u) TOXIC SUBSTANCES CONTROL ACT.—Section 

2 19(c)(1)(B)(ii) of the Toxic Substances Control Act (15 

3 U.S.C. 2618(c)(1)(B)(ii)) is amended by striking ‘‘section 

4 553(c)’’ and inserting ‘‘section 553(f)(2)’’. 

5 SECTION 1. SHORT TITLE. 

6 This Act may be cited as the ‘‘Regulatory Account7 ability Act of 2017’’. 

8 SEC. 2. DEFINITIONS. 

9 Section 551 of title 5, United States Code, is amend10 ed— 

11 (1) in paragraph (5), by striking ‘‘rule making’’ 

12 and inserting ‘‘rulemaking’’; 

13 (2) in paragraph (6), by striking ‘‘rule making’’ 

14 and inserting ‘‘rulemaking’’; 

15 (3) in paragraph (13), by striking ‘‘and’’ at the 

16 end; 

17 (4) in paragraph (14), by striking the period at 

18 the end and inserting a semicolon; and 

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

20 ‘‘(15) ‘guidance’ means an agency statement of 

21 general applicability that— 

22 ‘‘(A) is not intended to have the force and 

23 effect of law; and 


rfrederick on DSKBCBPHB2PROD with BILLS
60 

•S 951 RS

1 ‘‘(B) sets forth a policy on a statutory, reg2 ulatory, or technical issue or an interpretation of 

3 a statutory or regulatory issue; 

4 ‘‘(16) ‘high-impact rule’ means any rule that the 

5 Administrator determines is likely to cause an annual 

6 effect on the economy of $1,000,000,000 or more, ad7 justed once every 5 years to reflect increases in the 

8 Consumer Price Index for All Urban Consumers, as 

9 published by the Bureau of Labor Statistics of the De10 partment of Labor; 

11 ‘‘(17) ‘major guidance’ means guidance that the 

12 Administrator finds is likely to lead to— 

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

14 $100,000,000 or more, adjusted once every 5 

15 years to reflect increases in the Consumer Price 

16 Index for All Urban Consumers, as published by 

17 the Bureau of Labor Statistics of the Department 

18 of Labor; 

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

20 consumers, individual industries, Federal, State, 

21 local, or tribal government agencies, or geo22 graphic regions; or 

23 ‘‘(C) significant adverse effects on competi24 tion, employment, investment, productivity, in25 novation, public health and safety, or the ability 


rfrederick on DSKBCBPHB2PROD with BILLS
61 

•S 951 RS

1 of United States-based enterprises to compete 

2 with foreign-based enterprises in domestic and 

3 export markets; 

4 ‘‘(18) ‘major rule’ means any rule that the Ad5 ministrator determines is likely to cause— 

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

7 $100,000,000 or more, adjusted once every 5 

8 years to reflect increases in the Consumer Price 

9 Index for All Urban Consumers, as published by 

10 the Bureau of Labor Statistics of the Department 

11 of Labor; 

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

13 consumers, individual industries, Federal, State, 

14 local, or tribal government agencies, or geo15 graphic regions; or 

16 ‘‘(C) significant adverse effects on competi17 tion, employment, investment, productivity, in18 novation, public health and safety, or the ability 

19 of United States-based enterprises to compete 

20 with foreign-based enterprises in domestic and 

21 export markets; 

22 ‘‘(19) ‘Office of Information and Regulatory Af23 fairs’ means the office established under section 3503 

24 of title 44 and any successor to that office; and 


rfrederick on DSKBCBPHB2PROD with BILLS
62 

•S 951 RS

1 ‘‘(20) ‘Administrator’ means the Administrator 

2 of the Office of Information and Regulatory Affairs.’’. 

3 SEC. 3. RULEMAKING. 

4 Section 553 of title 5, United States Code, is amend5 ed— 

6 (1) in the section heading, by striking ‘‘Rule 

7 making’’ and inserting ‘‘Rulemaking’’; 

8 (2) in subsection (a), by striking ‘‘(a) This sec9 tion applies’’ and inserting ‘‘(a) APPLICABILITY— 

10 This section applies’’; and 

11 (3) by striking subsections (b) through (e) and 

12 inserting the following: 

13 ‘‘(b) RULEMAKING CONSIDERATIONS.—In a rule14 making, an agency shall consider, in addition to other ap15 plicable considerations, the following: 

16 ‘‘(1) The legal authority under which a rule may 

17 be proposed, including whether rulemaking is re18 quired by statute or is within the discretion of the 

19 agency. 

20 ‘‘(2) The nature and significance of the problem 

21 the agency intends to address with a rule. 

22 ‘‘(3) Whether existing Federal laws or rules have 

23 created or contributed to the problem the agency may 

24 address with a rule and, if so, whether those Federal 


rfrederick on DSKBCBPHB2PROD with BILLS
63 

•S 951 RS

1 laws or rules could be amended or rescinded to ad2 dress the problem in whole or in part. 

3 ‘‘(4) A reasonable number of alternatives for a 

4 new rule that meet the statutory objective, including 

5 substantial alternatives or other responses identified 

6 by interested persons, with the consideration of 3 al7 ternatives presumed to be reasonable. 

8 ‘‘(5) For any major rule or high-impact rule, 

9 unless prohibited by law, the potential costs and bene10 fits associated with potential alternative rules and 

11 other responses considered under paragraph (4), in12 cluding quantitative and qualitative analyses of— 

13 ‘‘(A) the direct costs and benefits; 

14 ‘‘(B) the nature and degree of risks ad15 dressed by the rule and the countervailing risks 

16 that might be posed by agency action; and 

17 ‘‘(C) to the extent practicable, the cumu18 lative and indirect costs and benefits. 

19 ‘‘(c) NOTICE OF PROPOSED RULEMAKING.— 

20 ‘‘(1) IN GENERAL.—If an agency determines that 

21 the objectives of the agency require the agency to issue 

22 a rule, the agency shall notify the Administrator and 

23 publish a notice of proposed rulemaking in the Fed24 eral Register, which shall include— 


rfrederick on DSKBCBPHB2PROD with BILLS
64 

•S 951 RS

1 ‘‘(A) a statement of the time, place, and na2 ture of any public rulemaking proceedings; 

3 ‘‘(B) reference to the legal authority under 

4 which the rule is proposed; 

5 ‘‘(C) the text of the proposed rule; 

6 ‘‘(D) a summary of information known to 

7 the agency concerning the considerations de8 scribed in subsection (b); and 

9 ‘‘(E) where otherwise consistent with appli10 cable law, for any major rule or high-impact 

11 rule— 

12 ‘‘(i) a reasoned preliminary expla13 nation regarding how— 

14 ‘‘(I) the proposed rule meets the 

15 statutory objectives; and 

16 ‘‘(II) the benefits of the proposed 

17 rule justify the costs; and 

18 ‘‘(ii) a discussion of— 

19 ‘‘(I) the costs and benefits of alter20 natives considered by the agency under 

21 subsection (b)(4); 

22 ‘‘(II) whether the alternatives con23 sidered by the agency under subsection 

24 (b)(4) meet relevant statutory objec25 tives; and 


rfrederick on DSKBCBPHB2PROD with BILLS
65 

•S 951 RS

1 ‘‘(III) the reasons why the agency 

2 did not propose an alternative consid3 ered by the agency under subsection 

4 (b)(4). 

5 ‘‘(2) ACCESSIBILITY.— 

6 ‘‘(A) IN GENERAL.—Except as provided in 

7 subparagraph (B), not later than the date on 

8 which an agency publishes a notice of proposed 

9 rulemaking under paragraph (1), all studies, 

10 models, scientific literature, and other informa11 tion developed or relied upon by the agency, and 

12 actions taken by the agency to obtain that infor13 mation, in connection with the determination of 

14 the agency to propose the rule that is the subject 

15 of the rulemaking shall be placed in the docket 

16 for the proposed rule and made accessible to the 

17 public. 

18 ‘‘(B) EXCEPTION.—Subparagraph (A) shall 

19 not apply with respect to information that is ex20 empt from disclosure under section 552(b). 

21 ‘‘(3) INFORMATION QUALITY.—If an agency pro22 poses a rule that rests upon scientific, technical, or 

23 economic information, the agency shall propose the 

24 rule on the basis of the best reasonably available sci25 entific, technical, or economic information. 


rfrederick on DSKBCBPHB2PROD with BILLS
66 

•S 951 RS

1 ‘‘(4) PUBLIC COMMENT.— 

2 ‘‘(A) IN GENERAL.—After publishing a no3 tice of proposed rulemaking under paragraph 

4 (1), an agency shall provide interested persons 

5 an opportunity to participate in the rulemaking 

6 through the submission of written material, data, 

7 views, or arguments with or without opportunity 

8 for oral presentation, except that— 

9 ‘‘(i) if a public hearing is convened 

10 under subsection (e), reasonable opportunity 

11 for oral presentation shall be provided at 

12 the public hearing as provided in subsection 

13 (e); and 

14 ‘‘(ii) when, other than as provided in 

15 subsection (e), a rule is required by statute 

16 to be made on the record after opportunity 

17 for an agency hearing— 

18 ‘‘(I) sections 556 and 557 shall 

19 apply; and 

20 ‘‘(II) the petition procedures of 

21 subsection (e) shall not apply. 

22 ‘‘(B) TIMELINE.—An agency shall provide 

23 not less than 60 days, or, with respect to a pro24 posed major rule or a proposed high-impact rule, 

25 not less than 90 days, for interested persons to 


rfrederick on DSKBCBPHB2PROD with BILLS
67 

•S 951 RS

1 submit written material, data, views, or argu2 ments under subparagraph (A). 

3 ‘‘(5) CHANGE OF CLASSIFICATION AFTER PUBLI4 CATION OF NOTICE.—If, after an agency submits the 

5 notification and publishes the notice of proposed rule6 making required under paragraph (1), a proposed 

7 rule is determined to be a major rule or a high-im8 pact rule, the agency shall— 

9 ‘‘(A) publish a notice in the Federal Reg10 ister with respect to the change of the classifica11 tion of the rule; and 

12 ‘‘(B) allow interested persons an additional 

13 opportunity of not less than 30 days to comment 

14 on— 

15 ‘‘(i) the rule; and 

16 ‘‘(ii) the change of the classification of 

17 the rule. 

18 ‘‘(6) PROHIBITION ON CERTAIN COMMUNICA19 TIONS.— 

20 ‘‘(A) IN GENERAL.—Except as provided in 

21 subparagraph (B), after an agency publishes a 

22 notice of proposed rulemaking required under 

23 paragraph (1), or after an agency publishes a 

24 notice of initiation of rulemaking under sub25 section (d)(1)(B), the agency, and any indiVerDate Sep 11 2014 23:28 Feb 14, 2018 Jkt 079200 PO 00000 Frm 00067 Fmt 6652 Sfmt 6203 E:\BILLS\S951.RS S951

rfrederick on DSKBCBPHB2PROD with BILLS
68 

•S 951 RS

1 vidual acting in an official capacity on behalf of 

2 the agency, may not communicate, and a person 

3 who receives Federal funds from the agency may 

4 not use those funds to communicate, through 

5 written, oral, electronic, or other means, to the 

6 public with respect to the proposed rule in a 

7 manner that— 

8 ‘‘(i) directly advocates, in support of or 

9 against the proposed rule, for the submis10 sion of information that will form part of 

11 the record for the proposed rule; 

12 ‘‘(ii) appeals to the public, or solicits a 

13 third party, to undertake advocacy in sup14 port of or against the proposed rule; or 

15 ‘‘(iii) is directly or indirectly for the 

16 purpose of publicity or propaganda within 

17 the United States in a manner that Con18 gress has not authorized. 

19 ‘‘(B) EXCEPTION.—The prohibition under 

20 subparagraph (A) shall not apply to a commu21 nication that requests comments on, or provides 

22 information regarding, a proposed rule in an 

23 impartial manner. 

24 ‘‘(d) INITIATION OF RULEMAKING FOR MAJOR AND

25 HIGH-IMPACT RULES.— 


rfrederick on DSKBCBPHB2PROD with BILLS
69 

•S 951 RS

1 ‘‘(1) NOTICE FOR MAJOR AND HIGH-IMPACT

2 RULES.—When an agency determines to initiate a 

3 rulemaking that may result in a major rule or a 

4 high-impact rule, the agency shall— 

5 ‘‘(A) establish an electronic docket for that 

6 rulemaking, which may have a physical counter7 part; and 

8 ‘‘(B) publish a notice of initiation of rule9 making in the Federal Register, which shall— 

10 ‘‘(i) briefly describe the subject and ob11 jectives of, and the problem to be solved by, 

12 the rule; 

13 ‘‘(ii) reference the legal authority 

14 under which the rule would be proposed; 

15 ‘‘(iii) invite interested persons to pro16 pose alternatives and other ideas regarding 

17 how best to accomplish the objectives of the 

18 agency in the most effective manner; and 

19 ‘‘(iv) indicate how interested persons 

20 may submit written material for the docket. 

21 ‘‘(2) ACCESSIBILITY.—All information provided 

22 to the agency under paragraph (1) shall be promptly 

23 placed in the docket and made accessible to the public. 


rfrederick on DSKBCBPHB2PROD with BILLS
70 

•S 951 RS

1 ‘‘(3) APPLICABILITY.—With respect to the alter2 natives and other ideas proposed under paragraph 

3 (1)(B)(iii)— 

4 ‘‘(A) the alternatives and other ideas are for 

5 the benefit of— 

6 ‘‘(i) the agency receiving the alter7 natives and other ideas; and 

8 ‘‘(ii) the public; and 

9 ‘‘(B) the agency receiving the alternatives 

10 and other ideas may respond to the alternatives 

11 and other ideas. 

12 ‘‘(4) TIMETABLE.— 

13 ‘‘(A) IN GENERAL.—With respect to a rule14 making for a major rule or a high-impact rule, 

15 the agency proposing the rule shall establish a 

16 timetable for the rulemaking that— 

17 ‘‘(i) contains intermediate completion 

18 dates for actions of the agency, including— 

19 ‘‘(I) the duration of the comment 

20 period associated with the notice of 

21 initiation published under paragraph 

22 (1)(B), including the date on which 

23 that comment period shall end; and 

24 ‘‘(II) if, after reviewing comments 

25 submitted during the period described 


rfrederick on DSKBCBPHB2PROD with BILLS
71 

•S 951 RS

1 in subclause (I), the agency determines 

2 that the agency shall proceed to a rule3 making— 

4 ‘‘(aa) the anticipated date on 

5 which the agency shall publish the 

6 notice required under subsection 

7 (c)(1) with respect to the rule; and 

8 ‘‘(bb) the duration of the 

9 comment period required under 

10 subsection (c)(4), including the 

11 date on which that comment pe12 riod shall end; 

13 ‘‘(ii) includes a final completion date 

14 for actions of the agency; and 

15 ‘‘(iii) shall be published in the elec16 tronic docket established under paragraph 

17 (1)(A) with respect to the rulemaking. 

18 ‘‘(B) CONSIDERATION OF FACTORS.—In es19 tablishing the timetable required under subpara20 graph (A), an agency shall consider relevant fac21 tors, including— 

22 ‘‘(i) the size and complexity of the rule23 making; 

24 ‘‘(ii) the resources available to the 

25 agency; 


rfrederick on DSKBCBPHB2PROD with BILLS
72 

•S 951 RS

1 ‘‘(iii) the national significance of the 

2 rulemaking; and 

3 ‘‘(iv) all statutory requirements that 

4 govern the timing of the rulemaking. 

5 ‘‘(C) REPORT REQUIRED.— 

6 ‘‘(i) IN GENERAL.—An agency that 

7 fails to meet the final completion date estab8 lished under subparagraph (A)(ii) shall sub9 mit to Congress and the Director of the Of10 fice of Management and Budget a report re11 garding why the agency failed to meet the 

12 completion date. 

13 ‘‘(ii) CONTENTS; PUBLICATION IN FED14 ERAL REGISTER.—A report submitted under 

15 clause (i) shall— 

16 ‘‘(I) include an amended time17 table for the rulemaking; and 

18 ‘‘(II) be published— 

19 ‘‘(aa) in the Federal Reg20 ister; and 

21 ‘‘(bb) in the electronic docket 

22 established under paragraph 

23 (1)(A) with respect to the rule24 making. 


rfrederick on DSKBCBPHB2PROD with BILLS
73 

•S 951 RS

1 ‘‘(D) CHANGES TO INTERMEDIATE DATES

2 PUBLISHED IN ELECTRONIC DOCKET.—If an 

3 agency changes an intermediate completion date 

4 for an action of the agency established under 

5 subparagraph (A)(i), the agency shall publish, in 

6 the electronic docket established under paragraph 

7 (1)(A)— 

8 ‘‘(i) the updated completion date for 

9 the action; and 

10 ‘‘(ii) a brief explanation regarding the 

11 reason for the change to the completion 

12 date. 

13 ‘‘(5) NOTICE OF DETERMINATION OF OTHER

14 AGENCY COURSE.— 

15 ‘‘(A) IN GENERAL.—If, after publishing the 

16 notice required under paragraph (1), an agency 

17 determines not to issue a major rule or a high18 impact rule, the agency shall, after consulting 

19 with the Administrator— 

20 ‘‘(i) publish a notice of determination 

21 of other agency course; and 

22 ‘‘(ii) if the agency intends to issue a 

23 rule, comply with the procedures required 

24 under subsection (c). 


rfrederick on DSKBCBPHB2PROD with BILLS
74 

•S 951 RS

1 ‘‘(B) CONTENTS.—A notice of determination 

2 of other agency course published under subpara3 graph (A)(i) shall include— 

4 ‘‘(i) a description of the alternative re5 sponse the agency has determined to adopt; 

6 and 

7 ‘‘(ii) if the agency intends to issue a 

8 rule, any information required under sub9 section (c). 

10 ‘‘(e) PUBLIC HEARING FOR HIGH-IMPACT RULES AND

11 CERTAIN MAJOR RULES.— 

12 ‘‘(1) PETITION FOR PUBLIC HEARING.— 

13 ‘‘(A) IN GENERAL.—Before the date on 

14 which the comment period closes with respect to 

15 a proposed high-impact rule or a proposed major 

16 rule described in section 551(18)(A), an inter17 ested person may petition the agency that pro18 posed the rule to hold a public hearing in ac19 cordance with this subsection. 

20 ‘‘(B) PETITION FOR PUBLIC HEARING FOR

21 HIGH-IMPACT RULES.— 

22 ‘‘(i) GRANTING OF PETITION.—Not 

23 later than 30 days after the date on which 

24 an agency receives a petition submitted 

25 under subparagraph (A) with respect to a 


rfrederick on DSKBCBPHB2PROD with BILLS
75 

•S 951 RS

1 high-impact rule, the agency shall grant the 

2 petition if the petition shows that— 

3 ‘‘(I) the proposed rule is based on 

4 conclusions with respect to 1 or more 

5 specific scientific, technical, economic, 

6 or other complex factual issues that are 

7 genuinely disputed; 

8 ‘‘(II) with respect to a rule that 

9 the agency is required to reissue not 

10 less frequently than once every 3 years, 

11 the interested person submitting the pe12 tition could not have raised the dis13 puted factual issues described in sub14 clause (I) during the 5-year period 

15 preceding the date on which the peti16 tion is submitted; and 

17 ‘‘(III) the resolution of the dis18 puted factual issues described in sub19 clause (I) would likely have an effect 

20 on— 

21 ‘‘(aa) the costs and benefits 

22 of the proposed rule; or 

23 ‘‘(bb) whether the proposed 

24 rule achieves the statutory pur25 pose. 


rfrederick on DSKBCBPHB2PROD with BILLS
76 

•S 951 RS

1 ‘‘(ii) DENIAL OF PETITION.—If an 

2 agency denies a petition submitted under 

3 clause (i) in whole or in part, the agency 

4 shall include in the rulemaking record an 

5 explanation for the denial sufficient for ju6 dicial review, including— 

7 ‘‘(I) findings by the agency that— 

8 ‘‘(aa) there is no genuine dis9 pute as to the factual issues raised 

10 by the petition; or 

11 ‘‘(bb) with respect to a rule 

12 that the agency is required to re13 issue not less frequently than once 

14 every 3 years, the interested per15 son submitting the petition could 

16 have raised the disputed factual 

17 issues in the petition during the 

18 5-year period preceding the date 

19 on which the petition is sub20 mitted; and 

21 ‘‘(II) a reasoned determination by 

22 the agency that the factual issues 

23 raised by the petition, even if subject to 

24 genuine dispute and not subject to subVerDate Sep 11 2014 23:28 Feb 14, 2018 Jkt 079200 PO 00000 Frm 00076 Fmt 6652 Sfmt 6203 E:\BILLS\S951.RS S951

rfrederick on DSKBCBPHB2PROD with BILLS
77 

•S 951 RS

1 clause (I)(bb), will not have an effect 

2 on— 

3 ‘‘(aa) the costs and benefits 

4 of the proposed rule; or 

5 ‘‘(bb) whether the proposed 

6 rule achieves the statutory pur7 pose. 

8 ‘‘(iii) INCLUSION IN THE RECORD.—A 

9 petition submitted under subparagraph (A) 

10 with respect to a high-impact rule and the 

11 decision of an agency with respect to the pe12 tition shall be included in the rulemaking 

13 record. 

14 ‘‘(C) PETITION FOR PUBLIC HEARING FOR

15 CERTAIN MAJOR RULES.— 

16 ‘‘(i) IN GENERAL.—In the case of a 

17 major rule described in section 551(18)(A), 

18 any interested person may petition for a 

19 hearing under this subsection on the 

20 grounds and within the time limitation de21 scribed in subparagraph (B)(i). 

22 ‘‘(ii) AGENCY AUTHORITY TO DENY PE23 TITION.—An agency may deny a petition 

24 submitted to the agency under clause (i) if 

25 the agency reasonably determines that— 


rfrederick on DSKBCBPHB2PROD with BILLS
78 

•S 951 RS

1 ‘‘(I) a hearing— 

2 ‘‘(aa) would not advance the 

3 consideration of the proposed rule 

4 by the agency; or 

5 ‘‘(bb) would, in light of the 

6 need for agency action, unreason7 ably delay completion of the rule8 making; or 

9 ‘‘(II) with respect to a rule that 

10 the agency is required to reissue not 

11 less frequently than once every 3 years, 

12 the interested person submitting the pe13 tition could have raised the disputed 

14 factual issues in the petition during 

15 the 5-year period preceding the date on 

16 which the petition is submitted. 

17 ‘‘(iii) INCLUSION IN THE RECORD.—A 

18 petition submitted under clause (i) and the 

19 decision of an agency with respect to the pe20 tition shall be included in the rulemaking 

21 record. 

22 ‘‘(2) NOTICE OF HEARING.—Not later than 45 

23 days before the date on which a hearing is held under 

24 this subsection, an agency shall publish in the Federal 

25 Register a notice specifying— 


rfrederick on DSKBCBPHB2PROD with BILLS
79 

•S 951 RS

1 ‘‘(A) the proposed rule to be considered at 

2 the hearing; and 

3 ‘‘(B) the factual issues to be considered at 

4 the hearing. 

5 ‘‘(3) HEARING REQUIREMENTS.— 

6 ‘‘(A) LIMITED NATURE OF HEARING.—A 

7 hearing held under this subsection shall be lim8 ited to— 

9 ‘‘(i) the specific factual issues raised in 

10 a petition granted in whole or in part 

11 under paragraph (1); and 

12 ‘‘(ii) any other factual issues the reso13 lution of which an agency, in the discretion 

14 of the agency, determines will advance con15 sideration by the agency of the proposed 

16 rule. 

17 ‘‘(B) PROCEDURES.— 

18 ‘‘(i) BURDEN OF PROOF.—Except as 

19 otherwise provided by statute, a proponent 

20 of a rule has the burden of proof in a hear21 ing held under this subsection. 

22 ‘‘(ii) ADMISSION OF EVIDENCE.—In a 

23 hearing held under this subsection, any doc24 umentary or oral evidence may be received, 

25 except that an agency, as a matter of polVerDate Sep 11 2014 23:28 Feb 14, 2018 Jkt 079200 PO 00000 Frm 00079 Fmt 6652 Sfmt 6203 E:\BILLS\S951.RS S951

rfrederick on DSKBCBPHB2PROD with BILLS
80 

•S 951 RS

1 icy, shall provide for the exclusion of imma2 terial or unduly repetitious evidence. 

3 ‘‘(iii) ADOPTION OF RULES GOVERNING

4 HEARINGS.—To govern a hearing held 

5 under this subsection, each agency shall 

6 adopt rules that provide for— 

7 ‘‘(I) the appointment of an agency 

8 official or administrative law judge to 

9 preside at the hearing; 

10 ‘‘(II) the presentation by inter11 ested parties of relevant documentary 

12 or oral evidence, unless the evidence is 

13 immaterial or unduly repetitious; 

14 ‘‘(III) a reasonable and adequate 

15 opportunity for cross-examination by 

16 interested parties concerning genuinely 

17 disputed factual issues raised by the 

18 petition, provided that, in the case of 

19 multiple interested parties with the 

20 same or similar interests, the agency 

21 may require the use of common counsel 

22 where the common counsel may ade23 quately represent the interests that will 

24 be significantly affected by the pro25 posed rule; and 


rfrederick on DSKBCBPHB2PROD with BILLS
81 

•S 951 RS

1 ‘‘(IV) when appropriate, and to 

2 the extent practicable, the consolidation 

3 of proceedings with respect to multiple 

4 petitions submitted under this sub5 section into a single hearing. 

6 ‘‘(C) RECORD OF HEARING.—A transcript 

7 of testimony and exhibits, together with all pa8 pers and requests filed in the hearing, shall con9 stitute the exclusive record for decision of the fac10 tual issues addressed in a hearing held under 

11 this subsection. 

12 ‘‘(4) JUDICIAL REVIEW.— 

13 ‘‘(A) IN GENERAL.—Failure to petition for 

14 a hearing under this subsection shall not pre15 clude judicial review of any claim that could 

16 have been raised in the hearing petition or at the 

17 hearing. 

18 ‘‘(B) TIMING OF JUDICIAL REVIEW.—There 

19 shall be no judicial review of the disposition of 

20 a petition by an agency under this subsection 

21 until judicial review of the final action of the 

22 agency. 

23 ‘‘(f) FINAL RULES.— 

24 ‘‘(1) EFFECTIVENESS OF MAJOR OR HIGH-IMPACT

25 RULE.— 


rfrederick on DSKBCBPHB2PROD with BILLS
82 

•S 951 RS

1 ‘‘(A) IN GENERAL.—Except as provided in 

2 subparagraph (B), in a rulemaking for a major 

3 rule or a high-impact rule, an agency shall 

4 adopt the most cost-effective rule that— 

5 ‘‘(i) is considered under subsection 

6 (b)(4); and 

7 ‘‘(ii) meets relevant statutory objec8 tives. 

9 ‘‘(B) EXCEPTION.—In a rulemaking for a 

10 major rule or a high-impact rule, an agency 

11 may adopt a rule that is more costly than the 

12 most cost-effective alternative that would achieve 

13 the relevant statutory objectives only if— 

14 ‘‘(i) the additional benefits of the more 

15 costly rule justify the additional costs of 

16 that rule; 

17 ‘‘(ii) the agency specifically identifies 

18 each additional benefit described in clause 

19 (i) and the cost of each such additional ben20 efit; and 

21 ‘‘(iii) the agency explains why the 

22 agency adopted a rule that is more costly 

23 than the most cost-effective alternative. 

24 ‘‘(2) PUBLICATION OF NOTICE OF FINAL RULE25 MAKING.—When an agency adopts a final rule, the 


rfrederick on DSKBCBPHB2PROD with BILLS
83 

•S 951 RS

1 agency shall publish a notice of final rulemaking in 

2 the Federal Register, which shall include— 

3 ‘‘(A) a concise, general statement of the 

4 basis and purpose of the rule; 

5 ‘‘(B) a reasoned determination by the agen6 cy regarding the considerations described in sub7 section (b); 

8 ‘‘(C) a response to each significant issue 

9 raised in the comments on the proposed rule; and 

10 ‘‘(D) with respect to a major rule or a high11 impact rule, a reasoned determination by the 

12 agency that— 

13 ‘‘(i) the benefits of the rule advance the 

14 relevant statutory objectives and justify the 

15 costs of the rule; and 

16 ‘‘(ii)(I) no alternative considered 

17 would achieve the relevant statutory objec18 tives in a more cost-effective manner than 

19 the rule; or 

20 ‘‘(II) the adoption by the agency of a 

21 more costly rule complies with paragraph 

22 (1)(B). 

23 ‘‘(3) INFORMATION QUALITY.—If an agency rule24 making rests upon scientific, technical, or economic 

25 information, the agency shall adopt a final rule on 


rfrederick on DSKBCBPHB2PROD with BILLS
84 

•S 951 RS

1 the basis of the best reasonably available scientific, 

2 technical, or economic information. 

3 ‘‘(4) ACCESSIBILITY.— 

4 ‘‘(A) IN GENERAL.—Except as provided in 

5 subparagraph (B), not later than the date on 

6 which an agency publishes a notice of final rule7 making under paragraph (2), all studies, models, 

8 scientific literature, and other information devel9 oped or relied upon by the agency, and actions 

10 taken by the agency to obtain that information, 

11 in connection with the determination of the 

12 agency to finalize the rule that is the subject of 

13 the rulemaking shall be placed in the docket for 

14 the rule and made accessible to the public. 

15 ‘‘(B) EXCEPTION.—Subparagraph (A) shall 

16 not apply with respect to information that is ex17 empt from disclosure under section 552(b). 

18 ‘‘(5) RULES ADOPTED AT THE END OF A PRESI19 DENTIAL ADMINISTRATION.— 

20 ‘‘(A) IN GENERAL.—During the 60-day pe21 riod beginning on a transitional inauguration 

22 day (as defined in section 3349a), with respect 

23 to any final rule that had been placed on file for 

24 public inspection by the Office of the Federal 

25 Register or published in the Federal Register as 


rfrederick on DSKBCBPHB2PROD with BILLS
85 

•S 951 RS

1 of the date of the inauguration, but which had 

2 not become effective by the date of the inaugura3 tion, the agency issuing the rule may, by order, 

4 delay the effective date of the rule for not more 

5 than 90 days for the purpose of obtaining public 

6 comment on whether— 

7 ‘‘(i) the rule should be amended or re8 scinded; or 

9 ‘‘(ii) the effective date of the rule 

10 should be further delayed. 

11 ‘‘(B) OPPORTUNITY FOR COMMENT.—If an 

12 agency delays the effective date of a rule under 

13 subparagraph (A), the agency shall give the pub14 lic not less than 30 days to submit comments. 

15 ‘‘(g) APPLICABILITY.— 

16 ‘‘(1) PRIMACY OF CERTAIN RULEMAKING CONSID17 ERATIONS AND PROCEDURES IN OTHER FEDERAL

18 LAWS.— 

19 ‘‘(A) CONSIDERATIONS.—If a rulemaking is 

20 authorized under a Federal law that requires an 

21 agency to consider, or prohibits an agency from 

22 considering, a factor in a manner that is incon23 sistent with, or that conflicts with, the require24 ments under this section, for the purposes of this 

25 section, the requirement or prohibition, as appliVerDate Sep 11 2014 23:28 Feb 14, 2018 Jkt 079200 PO 00000 Frm 00085 Fmt 6652 Sfmt 6203 E:\BILLS\S951.RS S951

rfrederick on DSKBCBPHB2PROD with BILLS
86 

•S 951 RS

1 cable, in that other Federal law shall apply to 

2 the agency in the rulemaking. 

3 ‘‘(B) PROCEDURAL REQUIREMENTS.—If a 

4 rulemaking is authorized under a Federal law 

5 that requires an agency to follow or use, or pro6 hibits an agency from following or using, a pro7 cedure in a manner that is duplicative of, or 

8 that conflicts with, a procedural requirement 

9 under this section, for the purposes of this sec10 tion, the requirement or prohibition, as applica11 ble, in that other Federal law shall apply to the 

12 agency in the rulemaking. 

13 ‘‘(2) GUIDANCE AND RULES OF ORGANIZATION.— 

14 Except as otherwise provided by law, this section 

15 shall not apply to guidance or rules of agency organi16 zation, procedure, or practice. 

17 ‘‘(3) EXCEPTIONS FOR GOOD CAUSE.— 

18 ‘‘(A) FINDING OF GOOD CAUSE.— 

19 ‘‘(i) IN GENERAL.—If an agency for 

20 good cause finds that compliance with sub21 section (c), (d), (e), or (f)(2)(B) before 

22 issuing a final rule is unnecessary, imprac23 ticable, or contrary to the public interest, 

24 that subsection shall not apply and the 

25 agency may issue the final rule or an inVerDate Sep 11 2014 23:28 Feb 14, 2018 Jkt 079200 PO 00000 Frm 00086 Fmt 6652 Sfmt 6203 E:\BILLS\S951.RS S951

rfrederick on DSKBCBPHB2PROD with BILLS
87 

•S 951 RS

1 terim final rule, as applicable, under sub2 paragraph (B) or (C). 

3 ‘‘(ii) INCORPORATION OF GOOD CAUSE

4 FINDING.—If an agency makes a finding 

5 under clause (i), the agency shall include 

6 that finding and a brief statement with re7 spect to the reasons for that finding in the 

8 final rule or interim final rule, as applica9 ble, issued by the agency. 

10 ‘‘(B) DIRECT FINAL RULES.— 

11 ‘‘(i) IN GENERAL.—Except as provided 

12 in clause (ii), if an agency makes a finding 

13 under subparagraph (A)(i) that compliance 

14 with subsection (c), (d), (e), or (f)(2)(B) be15 fore issuing a final rule is unnecessary, the 

16 agency shall, before issuing the final rule— 

17 ‘‘(I) publish in the Federal Reg18 ister the text of the final rule, the brief 

19 statement required under subpara20 graph (A)(ii), and a notice of oppor21 tunity for public comment; 

22 ‘‘(II) establish a comment period 

23 of not less than 30 days for any inter24 ested person to submit written mateVerDate Sep 11 2014 23:28 Feb 14, 2018 Jkt 079200 PO 00000 Frm 00087 Fmt 6652 Sfmt 6203 E:\BILLS\S951.RS S951

rfrederick on DSKBCBPHB2PROD with BILLS
88 

•S 951 RS

1 rial, data, views, or arguments with 

2 respect to the final rule; and 

3 ‘‘(III) provide notice of the date 

4 on which the rule will take effect. 

5 ‘‘(ii) EXCEPTION.—An agency that 

6 made a finding described in clause (i) may 

7 choose not to follow the requirements under 

8 that clause if the agency determines that fol9 lowing the requirements would not expedite 

10 the issuance of the final rule. 

11 ‘‘(iii) ADVERSE COMMENTS.—If an 

12 agency receives significant adverse com13 ments with respect to a rule during the 

14 comment period established under clause 

15 (i)(II), the agency shall— 

16 ‘‘(I) withdraw the notice of final 

17 rulemaking published by the agency 

18 with respect to the rule; and 

19 ‘‘(II) complete rulemaking in ac20 cordance with subsections (c), (d), (e), 

21 and (f), as applicable. 

22 ‘‘(C) INTERIM FINAL RULES.— 

23 ‘‘(i) IN GENERAL.—If an agency for 

24 good cause finds that compliance with sub25 section (c), (d), (e), or (f)(2)(B) before 


rfrederick on DSKBCBPHB2PROD with BILLS
89 

•S 951 RS

1 issuing a final rule is impracticable or con2 trary to the public interest, the agency shall 

3 issue an interim final rule by— 

4 ‘‘(I) publishing the interim final 

5 rule and a request for public comment 

6 in the portion of the Federal Register 

7 relating to final rules; and 

8 ‘‘(II) providing a cross-reference 

9 in the portion of the Federal Register 

10 relating to proposed rules that requests 

11 public comment with respect to the rule 

12 not later than 60 days after the rule is 

13 published under subclause (I). 

14 ‘‘(ii) INTERIM PERIOD.— 

15 ‘‘(I) IN GENERAL.—Not later than 

16 180 days after the date on which an 

17 agency issues an interim final rule 

18 under clause (i), the agency shall— 

19 ‘‘(aa) rescind the interim 

20 rule; 

21 ‘‘(bb) initiate rulemaking in 

22 accordance with subsections (c) 

23 through (f); or 

24 ‘‘(cc) take final action to 

25 adopt a final rule. 


rfrederick on DSKBCBPHB2PROD with BILLS
90 

•S 951 RS

1 ‘‘(II) NO FORCE OR EFFECT.—If, 

2 as of the end of the 180-day period de3 scribed in subclause (I), an agency 

4 fails to take an action described in 

5 item (aa), (bb), or (cc) of that sub6 clause, the interim final rule issued by 

7 the agency shall have no force or effect. 

8 ‘‘(4) EXEMPTION FOR MONETARY POLICY.—This 

9 section shall not apply to a rulemaking or to guid10 ance that concerns monetary policy proposed or im11 plemented by the Board of Governors of the Federal 

12 Reserve System or the Federal Open Market Com13 mittee. 

14 ‘‘(h) DATE OF PUBLICATION.—A final rule, a direct 

15 final rule described in subsection (g)(3)(B), or an interim 

16 final rule described in subsection (g)(3)(C) shall be pub17 lished not later than 30 days (or, in the case of a major 

18 rule or a high-impact rule, not later than 60 days) before 

19 the effective date of the rule, except— 

20 ‘‘(1) for guidance; or 

21 ‘‘(2) as otherwise provided by an agency for good 

22 cause and as published with the rule. 

23 ‘‘(i) RIGHT TO PETITION AND REVIEW OF RULES.— 

24 Each agency shall— 


rfrederick on DSKBCBPHB2PROD with BILLS
91 

•S 951 RS

1 ‘‘(1) give interested persons the right to petition 

2 for the issuance, amendment, or repeal of a rule; and 

3 ‘‘(2) on a continuing basis, invite interested per4 sons to submit, by electronic means, suggestions for 

5 rules that warrant retrospective review and possible 

6 modification or repeal. 

7 ‘‘(j) RULEMAKING GUIDELINES.— 

8 ‘‘(1) ASSESSMENT OF RULES.— 

9 ‘‘(A) IN GENERAL.—The Administrator 

10 shall establish guidelines for the assessment, in11 cluding the quantitative and qualitative assess12 ment, of— 

13 ‘‘(i) the costs and benefits of proposed 

14 and final rules; 

15 ‘‘(ii) the cost-effectiveness of proposed 

16 and final rules; 

17 ‘‘(iii) other economic issues that are 

18 relevant to rulemaking under this section or 

19 other sections of this part; and 

20 ‘‘(iv) risk assessments that are relevant 

21 to rulemaking under this section and other 

22 sections of this part. 

23 ‘‘(B) AGENCY ANALYSIS OF RULES.— 

24 ‘‘(i) IN GENERAL.—The rigor of the 

25 cost-benefit analysis required by the guideVerDate Sep 11 2014 23:28 Feb 14, 2018 Jkt 079200 PO 00000 Frm 00091 Fmt 6652 Sfmt 6203 E:\BILLS\S951.RS S951

rfrederick on DSKBCBPHB2PROD with BILLS
92 

•S 951 RS

1 lines established under subparagraph (A) 

2 shall be commensurate, as determined by the 

3 Administrator, with the economic impact of 

4 a rule. 

5 ‘‘(ii) RISK ASSESSMENT GUIDE6 LINES.—Guidelines for a risk assessment 

7 described in subparagraph (A)(iv) shall in8 clude criteria for— 

9 ‘‘(I) selecting studies and models; 

10 ‘‘(II) evaluating and weighing 

11 evidence; and 

12 ‘‘(III) conducting peer reviews. 

13 ‘‘(C) UPDATING GUIDELINES.—Not less fre14 quently than once every 10 years, the Adminis15 trator shall update the guidelines established 

16 under subparagraph (A) to enable each agency to 

17 use the best available techniques to quantify and 

18 evaluate present and future benefits, costs, other 

19 economic issues, and risks as objectively and ac20 curately as practicable. 

21 ‘‘(2) SIMPLIFICATION OF RULES.— 

22 ‘‘(A) ISSUANCE OF GUIDELINES.—The Ad23 ministrator shall issue guidelines to promote co24 ordination, simplification, and harmonization of 

25 agency rules during the rulemaking process. 


rfrederick on DSKBCBPHB2PROD with BILLS
93 

•S 951 RS

1 ‘‘(B) REQUIREMENTS.—The guidelines 

2 issued by the Administrator under subparagraph 

3 (A) shall advise each agency to— 

4 ‘‘(i) avoid rules that are inconsistent 

5 or incompatible with, or duplicative of, 

6 other regulations of the agency and those of 

7 other agencies; and 

8 ‘‘(ii) draft the rules of the agency to be 

9 simple and easy to understand, with the 

10 goal of minimizing the potential for uncer11 tainty and litigation arising from the un12 certainty. 

13 ‘‘(3) CONSISTENCY IN RULEMAKING.— 

14 ‘‘(A) IN GENERAL.—To promote consistency 

15 in rulemaking, the Administrator shall— 

16 ‘‘(i) issue guidelines to ensure that 

17 rulemaking conducted in whole or in part 

18 under procedures specified in provisions of 

19 law other than those under this section con20 form with the procedures set forth in this 

21 section to the fullest extent allowed by law; 

22 and 

23 ‘‘(ii) issue guidelines for the conduct of 

24 hearings under subsection (e), which shall 


rfrederick on DSKBCBPHB2PROD with BILLS
94 

•S 951 RS

1 provide a reasonable opportunity for cross2 examination. 

3 ‘‘(B) AGENCY ADOPTION OF REGULA4 TIONS.—Each agency shall adopt regulations for 

5 the conduct of hearings consistent with the guide6 lines issued under this paragraph. 

7 ‘‘(k) AGENCY GUIDANCE; PROCEDURES TO ISSUE

8 MAJOR GUIDANCE; AUTHORITY TO ISSUE GUIDELINES FOR

9 ISSUANCE OF GUIDANCE.— 

10 ‘‘(1) IN GENERAL.—Agency guidance shall— 

11 ‘‘(A) not be used by an agency to foreclose 

12 consideration of issues as to which the guidance 

13 expresses a conclusion; 

14 ‘‘(B) state that the guidance is not legally 

15 binding; and 

16 ‘‘(C) at the time the guidance is issued, or 

17 upon request, be made available by the issuing 

18 agency to interested persons and the public. 

19 ‘‘(2) PROCEDURES TO ISSUE MAJOR GUID20 ANCE.—Before issuing any major guidance, an agen21 cy shall— 

22 ‘‘(A) make and document a reasoned deter23 mination that— 


rfrederick on DSKBCBPHB2PROD with BILLS
95 

•S 951 RS

1 ‘‘(i) such guidance is understandable 

2 and complies with relevant statutory objec3 tives and regulatory provisions; and 

4 ‘‘(ii) identifies the costs and benefits, 

5 including all costs and benefits to be consid6 ered during a rulemaking under subsection 

7 (b), of requiring conduct conforming to such 

8 guidance and assures that such benefits jus9 tify such costs; and 

10 ‘‘(B) confer with the Administrator on the 

11 issuance of the major guidance to ensure that the 

12 guidance— 

13 ‘‘(i) is reasonable; 

14 ‘‘(ii) is understandable; 

15 ‘‘(iii) is consistent with relevant statu16 tory and regulatory provisions and require17 ments or practices of other agencies; 

18 ‘‘(iv) does not produce costs that are 

19 unjustified by the benefits of the major 

20 guidance; and 

21 ‘‘(v) is otherwise appropriate. 

22 ‘‘(3) ISSUANCE OF UPDATED GUIDANCE.— 

23 ‘‘(A) IN GENERAL.—The Administrator 

24 shall issue updated guidelines for use by agencies 

25 in the issuance of guidance documents. 


rfrederick on DSKBCBPHB2PROD with BILLS
96 

•S 951 RS

1 ‘‘(B) REQUIREMENTS.—The guidelines 

2 issued by the Administrator under subparagraph 

3 (A) shall advise each agency— 

4 ‘‘(i) not to issue guidance documents 

5 that are inconsistent or incompatible with, 

6 or duplicative of, other rules of the agency 

7 and those of other agencies; 

8 ‘‘(ii) to draft the guidance documents 

9 of the agency to be simple and easy to un10 derstand, with the goal of minimizing the 

11 potential for uncertainty and litigation 

12 arising from the uncertainty; and 

13 ‘‘(iii) how to develop and implement a 

14 strategy to ensure the proper use of guid15 ance by the agency. 

16 ‘‘(l) MAJOR RULE AND HIGH-IMPACT RULE FRAME17 WORKS.— 

18 ‘‘(1) IN GENERAL.—Beginning on the date that 

19 is 180 days after the date of enactment of this sub20 section, when an agency publishes in the Federal Reg21 ister— 

22 ‘‘(A) a proposed major rule or a proposed 

23 high-impact rule, the agency shall include a po24 tential framework for assessing the rule, which 

25 shall include a general statement of how the 


rfrederick on DSKBCBPHB2PROD with BILLS
97 

•S 951 RS

1 agency intends to measure the effectiveness of the 

2 rule; or 

3 ‘‘(B) a final major rule or a final high-im4 pact rule, the agency shall include a framework 

5 for assessing the rule under paragraph (2), 

6 which shall include— 

7 ‘‘(i) a clear statement of the regulatory 

8 objectives of the rule, including a summary 

9 of the benefit and cost of the rule; 

10 ‘‘(ii) the methodology by which the 

11 agency plans to analyze the rule, including 

12 metrics by which the agency can measure— 

13 ‘‘(I) the effectiveness and benefits 

14 of the rule in producing the regulatory 

15 objectives of the rule; and 

16 ‘‘(II) the impacts, including any 

17 costs, of the rule on regulated and other 

18 impacted entities; 

19 ‘‘(iii) a plan for gathering data re20 garding the metrics described in clause (ii) 

21 on an ongoing basis, or at periodic times, 

22 including a method by which the agency 

23 will invite the public to participate in the 

24 review process and seek input from other 

25 agencies; and 


rfrederick on DSKBCBPHB2PROD with BILLS
98 

•S 951 RS

1 ‘‘(iv) a specific timeframe, as appro2 priate to the rule and not more than 10 

3 years after the effective date of the rule, 

4 under which the agency shall conduct the 

5 assessment of the rule in accordance with 

6 paragraph (2)(A). 

7 ‘‘(2) ASSESSMENT.— 

8 ‘‘(A) IN GENERAL.—Each agency shall as9 sess the data collected under paragraph 

10 (1)(B)(iii), using the methodology set forth in 

11 paragraph (1)(B)(ii) or any other appropriate 

12 methodology developed after the issuance of a 

13 final major rule or a final high-impact rule to 

14 better determine whether the regulatory objective 

15 was achieved, with respect to the rule— 

16 ‘‘(i) to analyze how the actual benefits 

17 and costs of the rule may have varied from 

18 those anticipated at the time the rule was 

19 issued; and 

20 ‘‘(ii) to determine whether— 

21 ‘‘(I) the rule is accomplishing the 

22 regulatory objective of the rule; 

23 ‘‘(II) the rule has been rendered 

24 unnecessary, taking into consider25 ation— 


rfrederick on DSKBCBPHB2PROD with BILLS
99 

•S 951 RS

1 ‘‘(aa) changes in the subject 

2 area affected by the rule; and 

3 ‘‘(bb) whether the rule over4 laps, duplicates, or conflicts 

5 with— 

6 ‘‘(AA) other rules; or 

7 ‘‘(BB) to the extent fea8 sible, State and local govern9 ment regulations; 

10 ‘‘(III) the rule needs to be modi11 fied in order to accomplish the regu12 latory objective; and 

13 ‘‘(IV) other alternatives to the rule 

14 or modification of the rule could better 

15 achieve the regulatory objective while 

16 imposing a smaller burden on society 

17 or increase cost-effectiveness, taking 

18 into consideration any cost already in19 curred. 

20 ‘‘(B) DIFFERENT METHODOLOGY.—If an 

21 agency uses a methodology other than the meth22 odology under paragraph (1)(B)(ii) to assess 

23 data under subparagraph (A), the agency shall 

24 include as part of the notice required to be pub25 lished under subparagraph (D) an explanation 


rfrederick on DSKBCBPHB2PROD with BILLS
100 

•S 951 RS

1 of the changes in circumstances that necessitated 

2 the use of that other methodology. 

3 ‘‘(C) SUBSEQUENT ASSESSMENTS.— 

4 ‘‘(i) IN GENERAL.—Except as provided 

5 in clause (ii), if, after an assessment of a 

6 major rule or a high-impact rule under sub7 paragraph (A), an agency determines that 

8 the rule will remain in effect with or with9 out modification, the agency shall— 

10 ‘‘(I) determine a specific time, as 

11 appropriate to the rule and not more 

12 than 10 years after the date on which 

13 the agency completes the assessment, 

14 under which the agency shall conduct 

15 another assessment of the rule in ac16 cordance with subparagraph (A); and 

17 ‘‘(II) if the assessment conducted 

18 under subclause (I) does not result in 

19 a repeal of the rule, periodically assess 

20 the rule in accordance with subpara21 graph (A) to ensure that the rule con22 tinues to meet the regulatory objective. 

23 ‘‘(ii) EXEMPTION.—The Administrator 

24 may exempt an agency from conducting a 

25 subsequent assessment of a rule under clause 


rfrederick on DSKBCBPHB2PROD with BILLS
101 

•S 951 RS

1 (i) if the Administrator determines that 

2 there is a foreseeable and apparent need for 

3 the rule beyond the timeframe required 

4 under clause (i)(I). 

5 ‘‘(D) PUBLICATION.—Not later than 180 

6 days after the date on which an agency completes 

7 an assessment of a major rule or a high-impact 

8 rule under subparagraph (A), the agency shall 

9 publish a notice of availability of the results of 

10 the assessment in the Federal Register, including 

11 the specific time for any subsequent assessment of 

12 the rule under subparagraph (C)(i), if applica13 ble. 

14 ‘‘(3) OIRA OVERSIGHT.—The Administrator 

15 shall— 

16 ‘‘(A) issue guidance for agencies regarding 

17 the development of the framework under para18 graph (1) and the conduct of the assessments 

19 under paragraph (2)(A); 

20 ‘‘(B) oversee the timely compliance of agen21 cies with this subsection; 

22 ‘‘(C) ensure that the results of each assess23 ment conducted under paragraph (2)(A) are— 

24 ‘‘(i) published promptly on a central25 ized Federal website; and 


rfrederick on DSKBCBPHB2PROD with BILLS
102 

•S 951 RS

1 ‘‘(ii) noticed in the Federal Register in 

2 accordance with paragraph (2)(D); 

3 ‘‘(D) encourage and assist agencies to 

4 streamline and coordinate the assessment of 

5 major rules or high-impact rules with similar or 

6 related regulatory objectives; 

7 ‘‘(E) exempt an agency from including the 

8 framework required under paragraph (1)(B) 

9 when publishing a final major rule or a final 

10 high-impact rule if the Administrator determines 

11 that compliance with paragraph (1)(B) is unnec12 essary, impracticable, or contrary to the public 

13 interest, as described in subsection (g)(3)(A)(i); 

14 and 

15 ‘‘(F) extend the deadline specified by an 

16 agency for an assessment of a major rule or a 

17 high-impact rule under paragraph (1)(B)(iv) or 

18 paragraph (2)(C)(i)(I) for a period of not more 

19 than 90 days if the agency justifies why the 

20 agency is unable to complete the assessment by 

21 that deadline. 

22 ‘‘(4) RULE OF CONSTRUCTION.—Nothing in this 

23 subsection shall be construed to affect— 

24 ‘‘(A) the authority of an agency to assess or 

25 modify a major rule or a high-impact rule of the 


rfrederick on DSKBCBPHB2PROD with BILLS
103 

•S 951 RS

1 agency earlier than the end of the timeframe 

2 specified for the rule under paragraph 

3 (1)(B)(iv); or 

4 ‘‘(B) any other provision of law that re5 quires an agency to conduct retrospective reviews 

6 of rules issued by the agency. 

7 ‘‘(5) APPLICABILITY.— 

8 ‘‘(A) IN GENERAL.—This subsection shall 

9 not apply to— 

10 ‘‘(i) a major rule or a high-impact rule 

11 of an agency— 

12 ‘‘(I) that the Administrator re13 viewed before the date of enactment of 

14 this subsection; 

15 ‘‘(II) for which the agency is re16 quired to conduct a retrospective re17 view under any other provision of law 

18 that meets or exceeds the requirements 

19 of this subsection, as determined by the 

20 Administrator; or 

21 ‘‘(III) for which the authorizing 

22 statute is subject to periodic reauthor23 ization by Congress not less frequently 

24 than once every 10 years; 


rfrederick on DSKBCBPHB2PROD with BILLS
104 

•S 951 RS

1 ‘‘(ii) interpretative rules, general state2 ments of policy, or rules of agency organiza3 tion, procedure, or practice; 

4 ‘‘(iii) routine and administrative rules; 

5 or 

6 ‘‘(iv) a rule that is reviewed under sec7 tion 2222 of the Economic Growth and Reg8 ulatory Paperwork Reduction Act of 1996 

9 (12 U.S.C. 3311). 

10 ‘‘(B) DIRECT AND INTERIM FINAL MAJOR

11 RULE OR HIGH-IMPACT RULE.—In the case of a 

12 major rule or a high-impact rule of an agency 

13 for which the agency is not required to issue a 

14 notice of proposed rulemaking in response to an 

15 emergency or a statutorily imposed deadline, the 

16 agency shall publish the framework required 

17 under paragraph (1)(B) in the Federal Register 

18 not later than 180 days after the date on which 

19 the agency publishes the rule. 

20 ‘‘(6) RECOMMENDATIONS TO CONGRESS.—If, 

21 under an assessment conducted under paragraph (2), 

22 an agency determines that a major rule or a high-im23 pact rule should be modified or repealed, the agency 

24 may submit to Congress recommendations for legisla25 tion to amend applicable provisions of law if the 


rfrederick on DSKBCBPHB2PROD with BILLS
105 

•S 951 RS

1 agency is prohibited from modifying or repealing the 

2 rule under another provision of law. 

3 ‘‘(7) JUDICIAL REVIEW.— 

4 ‘‘(A) IN GENERAL.—Judicial review of 

5 agency compliance with this subsection is limited 

6 to whether an agency— 

7 ‘‘(i) published the framework for assess8 ment of a major rule or a high-impact rule 

9 in accordance with paragraph (1); or 

10 ‘‘(ii) completed and published the re11 quired assessment of a major rule or a high12 impact rule in accordance with subpara13 graphs (A) and (D) of paragraph (2). 

14 ‘‘(B) REMEDY AVAILABLE.—In granting re15 lief in an action brought under subparagraph 

16 (A), a court may only issue an order remanding 

17 the major rule or the high-impact rule, as appli18 cable, to the agency to comply with paragraph 

19 (1) or subparagraph (A) or (D) of paragraph 

20 (2), as applicable. 

21 ‘‘(C) EFFECTIVE DATE OF MAJOR RULE.— 

22 If, in an action brought under subparagraph 

23 (A)(i), a court determines that the agency did 

24 not comply, the major rule or the high-impact 


rfrederick on DSKBCBPHB2PROD with BILLS
106 

•S 951 RS

1 rule, as applicable, shall take effect notwith2 standing any order issued by the court. 

3 ‘‘(D) ADMINISTRATOR.—Any determination, 

4 action, or inaction of the Administrator under 

5 this subsection shall not be subject to judicial re6 view.’’. 

7 SEC. 4. SCOPE OF REVIEW. 

8 Section 706 of title 5, United States Code, is amend9 ed— 

10 (1) in the first sentence of the matter preceding 

11 paragraph (1), by striking ‘‘To the extent necessary’’ 

12 and inserting ‘‘(a) IN GENERAL.—To the extent nec13 essary’’; and 

14 (2) in subsection (a), as so designated— 

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

16 the end; 

17 (B) in paragraph (2)— 

18 (i) in the matter preceding subpara19 graph (A), by inserting ‘‘, or, when appro20 priate, remand a matter to an agency with21 out setting aside,’’ after ‘‘set aside’’; and 

22 (ii) in subparagraph (F), by striking 

23 the period at the end and inserting ‘‘; and’’; 

24 and 


rfrederick on DSKBCBPHB2PROD with BILLS
107 

•S 951 RS

1 (C) by striking the flush text following 

2 paragraph (2)(F) and inserting the following: 

3 ‘‘(3) with respect to the review of a high-impact 

4 rule, as defined in section 551(16), determine whether 

5 the factual findings of the agency issuing the rule are 

6 supported by substantial evidence. 

7 ‘‘(b) REVIEW OF ENTIRE RECORD; PREJUDICIAL

8 ERROR.—In making a determination under subsection (a), 

9 the court shall review the whole record or those parts of it 

10 cited by a party, and due account shall be taken of the rule 

11 of prejudicial error. 

12 ‘‘(c) PRECLUSION OF REVIEW.—The determination of 

13 whether a rule is a major rule within the meaning of sub14 paragraphs (B) and (C) of section 551(18) shall not be sub15 ject to judicial review. 

16 ‘‘(d) REVIEW OF CERTAIN GUIDANCE.—Agency guid17 ance that does not interpret a statute or rule may be re18 viewed only under subsection (a)(2)(D). 

19 ‘‘(e) AGENCY INTERPRETATION OF RULES.—The 

20 weight that a reviewing court gives an interpretation by 

21 an agency of a rule of that agency shall depend on the thor22 oughness evident in the consideration of the rule by the 

23 agency, the validity of the reasoning of the agency, and the 

24 consistency of the interpretation with earlier and later pro25 nouncements.’’. 


rfrederick on DSKBCBPHB2PROD with BILLS
108 

•S 951 RS

1 SEC. 5. ADDED DEFINITIONS. 

2 Section 701(b) of title 5, United States Code, is amend3 ed— 

4 (1) in paragraph (1)(H), by striking ‘‘and’’ at 

5 the end; 

6 (2) by redesignating paragraph (2) as para7 graph (3); 

8 (3) by inserting after paragraph (1) the fol9 lowing: 

10 ‘‘(2) ‘guidance’ has the meaning given the term 

11 in section 551;’’; 

12 (4) in paragraph (3), as so redesignated, by 

13 striking the period at the end and inserting ‘‘; and’’; 

14 and 

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

16 ‘‘(4) ‘substantial evidence’ means such relevant 

17 evidence as a reasonable mind might accept as ade18 quate to support a conclusion in light of the record 

19 considered as a whole.’’. 

20 SEC. 6. APPLICATION. 

21 The amendments made by this Act to sections 553, 

22 701(b), and 706 of title 5, United States Code, shall not 

23 apply to any rulemaking, as defined in section 551 of title 

24 5, United States Code, as amended by section 2 of this Act, 

25 that is pending or completed as of the date of enactment 

26 of this Act. 


rfrederick on DSKBCBPHB2PROD with BILLS
109 

•S 951 RS

1 SEC. 7. TECHNICAL AND CONFORMING AMENDMENTS. 

2 (a) CONSUMER PRODUCT SAFETY ACT.—Section 9(i) 

3 of the Consumer Product Safety Act (15 U.S.C. 2058(i)) 

4 is amended, in the first sentence, by striking ‘‘section 

5 553(e)’’ and inserting ‘‘section 553(i)’’. 

6 (b) DEFENSE PRODUCTION ACT OF 1950.—Section 

7 709(b)(1) of the Defense Production Act of 1950 (50 U.S.C. 

8 4559(b)(1)) is amended by striking ‘‘for not less than 30 

9 days, consistent with the requirements of section 553(b)’’ 

10 and inserting ‘‘in a manner consistent with the require11 ments of section 553(c)’’. 

12 (c) ENDANGERED SPECIES ACT OF 1973.—Section 

13 4(b)(3) of the Endangered Species Act of 1973 (16 U.S.C. 

14 1533(b)(3)) is amended— 

15 (1) in subparagraph (A), in the first sentence, by 

16 striking ‘‘section 553(e)’’ and inserting ‘‘section 

17 553(i)’’; and 

18 (2) in subparagraph (D)(i), in the first sentence, 

19 by striking ‘‘section 553(e)’’ and inserting ‘‘section 

20 553(i)’’. 

21 (d) EXPEDITED FUNDS AVAILABILITY ACT.—Section 

22 609(a) of the Expedited Funds Availability Act (12 U.S.C. 

23 4008(a)) is amended, in the matter preceding paragraph 

24 (1), by striking ‘‘section 553(c)’’ and inserting ‘‘section 

25 553’’. 


rfrederick on DSKBCBPHB2PROD with BILLS
110 

•S 951 RS

1 (e) FEDERAL HAZARDOUS SUBSTANCES ACT.—Sec2 tion 3 of the Federal Hazardous Substances Act (15 U.S.C. 

3 1262) is amended— 

4 (1) in subsection (e)(1), by striking ‘‘(other than 

5 clause (B) of the last sentence of subsection (b) of such 

6 section) of title 5 of the United States Code’’ and in7 serting ‘‘of title 5, United States Code, other than sub8 section (g)(3) of such section,’’; and 

9 (2) in subsection (j), by striking ‘‘section 553(e)’’ 

10 and inserting ‘‘section 553(i)’’. 

11 (f) FLAMMABLE FABRICS ACT.—The Flammable Fab12 rics Act (15 U.S.C. 1191 et seq.) is amended— 

13 (1) in section 4(k) (15 U.S.C. 1193(k)), in the 

14 first sentence, by striking ‘‘section 553(e)’’ and insert15 ing ‘‘section 553(i)’’; and 

16 (2) in section 16(c)(2) (15 U.S.C. 1203(c)(2)), by 

17 striking ‘‘section 553(b)’’ and inserting ‘‘section 

18 553(c)’’. 

19 (g) GENERAL EDUCATION PROVISIONS ACT.—Section 

20 411 of the General Education Provisions Act (20 U.S.C. 

21 1221e–4) is amended, in the second sentence, by striking 

22 ‘‘Notwithstanding the exception provided under section 

23 553(b) of title 5, such’’ and inserting ‘‘Such’’. 


rfrederick on DSKBCBPHB2PROD with BILLS
111 

•S 951 RS

1 (h) HOUSING AND COMMUNITY DEVELOPMENT ACT OF

2 1992.—The Housing and Community Development Act of 

3 1992 (12 U.S.C. 4501 et seq.) is amended— 

4 (1) in section 643(b)(3) (42 U.S.C. 13603(b)(3)), 

5 in the first sentence, by striking ‘‘(notwithstanding 

6 subsections (a)(2), (b)(B), and (d)(3) of such section)’’ 

7 and inserting ‘‘(notwithstanding subsections (a)(2), 

8 (g)(3), and (h)(2) of such section)’’; and 

9 (2) in section 685 (42 U.S.C. 13643), in the sec10 ond sentence, by striking ‘‘(notwithstanding sub11 sections (a)(2), (b)(B), and (d)(3) of such section)’’ 

12 and inserting ‘‘(notwithstanding subsections (a)(2), 

13 (g)(3), and (h)(2) of such section)’’. 

14 (i) MARINE MAMMAL PROTECTION ACT OF 1972.— 

15 Section 109(d)(2) of the Marine Mammal Protection Act 

16 of 1972 (16 U.S.C. 1379(d)(2)) is amended, in the second 

17 sentence, by striking ‘‘subsection (d) of such section 553’’ 

18 and inserting ‘‘subsection (h) of such section 553’’. 

19 (j) MCKINNEY-VENTO HOMELESS ASSISTANCE ACT.— 

20 Section 433 of the McKinney-Vento Homeless Assistance Act 

21 (42 U.S.C. 11387) is amended, in the second sentence, by 

22 striking ‘‘(notwithstanding subsections (a)(2), (b)(B), and 

23 (d)(3) of such section)’’ and inserting ‘‘(notwithstanding 

24 subsections (a)(2), (g)(3), and (h)(2) of such section)’’. 


rfrederick on DSKBCBPHB2PROD with BILLS
112 

•S 951 RS

1 (k) NATIVE AMERICAN PROGRAMS ACT OF 1974.—Sec2 tion 814 of the Native American Programs Act of 1974 (42 

3 U.S.C. 2992b–1) is amended— 

4 (1) in subsection (b)— 

5 (A) in paragraph (1), by striking ‘‘Sub6 paragraph (A) of the last sentence of section 

7 553(b) of title 5, United States Code, shall not 

8 apply with respect to any interpretative rule or 

9 general statement of policy’’ and inserting ‘‘Sec10 tion 553(c) of title 5, United States Code, shall 

11 apply with respect to guidance’’; 

12 (B) in paragraph (2)— 

13 (i) in the matter preceding subpara14 graph (A), by striking ‘‘Subparagraph (B) 

15 of the last sentence of section 553(b)’’ and 

16 inserting ‘‘Section 553(g)(3)’’; and 

17 (ii) by striking ‘‘an interpretative rule 

18 or a general statement of policy’’ and in19 serting ‘‘guidance’’; and 

20 (C) in paragraph (3), in the matter pre21 ceding subparagraph (A)— 

22 (i) by striking ‘‘The first 2 sentences of 

23 section 553(b)’’ and inserting ‘‘Section 

24 553(c)’’; and 


rfrederick on DSKBCBPHB2PROD with BILLS
113 

•S 951 RS

1 (ii) by striking ‘‘an interpretative rule, 

2 a general statement of policy,’’ and insert3 ing ‘‘guidance’’; 

4 (2) in subsection (c)— 

5 (A) in the matter preceding paragraph 

6 (1)— 

7 (i) by striking ‘‘section 553(d)’’ and 

8 inserting ‘‘section 553(h)’’; and 

9 (ii) by striking ‘‘an interpretative rule) 

10 or general statement of policy’’ and insert11 ing ‘‘guidance)’’; and 

12 (B) in the flush text following paragraph 

13 (2), by striking ‘‘the first 2 sentences of section 

14 553(b)’’ and inserting ‘‘section 553(c)’’; 

15 (3) in subsection (d), by striking ‘‘an interpreta16 tive rule) and each general statement of policy’’ and 

17 inserting ‘‘guidance)’’; 

18 (4) in subsection (e)— 

19 (A) by striking ‘‘any interpretative rule) or 

20 a general statement of policy’’ and inserting 

21 ‘‘guidance)’’; and 

22 (B) by striking ‘‘or such general statement 

23 of policy’’; 

24 (5) in subsection (f)— 


rfrederick on DSKBCBPHB2PROD with BILLS
114 

•S 951 RS

1 (A) by striking ‘‘an interpretative rule) or 

2 a general statement of policy’’ and inserting 

3 ‘‘guidance)’’; and 

4 (B) by striking ‘‘or such general statement 

5 of policy’’; and 

6 (6) by adding at the end the following: 

7 ‘‘(g) In this section, the term ‘guidance’ has the mean8 ing given the term in section 551 of title 5, United States 

9 Code.’’. 

10 (l) NATURAL GAS POLICY ACT OF 1978.—Section 

11 502(b) of the Natural Gas Policy Act of 1978 (15 U.S.C. 

12 3412(b)) is amended, in the third sentence, by striking ‘‘sec13 tion 553(d)(3)’’ and inserting ‘‘section 553(h)(2)’’. 

14 (m) NOISE CONTROL ACT OF 1972.—Section 6(c)(2) 

15 of the Noise Control Act of 1972 (42 U.S.C. 4905(c)(2)) is 

16 amended by striking ‘‘the first sentence of section 553(c) 

17 of title 5’’ and inserting ‘‘section 553(c)(4)(A) of title 5’’. 

18 (n) POISON PREVENTION PACKAGING ACT OF 1970.— 

19 The Poison Prevention Packaging Act of 1970 (15 U.S.C. 

20 1471 et seq.) is amended— 

21 (1) in section 5(a) (15 U.S.C. 1474(a)), in the 

22 first sentence, by striking ‘‘other than paragraph 

23 (3)(B) of the last sentence of subsection (b) of such 

24 section’’ and inserting ‘‘other than subsection (g)(3) of 

25 such section’’; and 


rfrederick on DSKBCBPHB2PROD with BILLS
115 

•S 951 RS

1 (2) in section 7(c)(2) (15 U.S.C. 1476(c)(2)), by 

2 striking ‘‘section 553(b)’’ and inserting ‘‘section 

3 553(c)’’. 

4 (o) POULTRY PRODUCTS INSPECTION ACT.—Section 

5 14(c) of the Poultry Products Inspection Act (21 U.S.C. 

6 463(c)) is amended by striking ‘‘section 553(c) of title 5, 

7 United States Code’’ and inserting ‘‘section 553(c)(4) of 

8 title 5, United States Code,’’. 

9 (p) RURAL ELECTRIFICATION ACT OF 1936.—Section 

10 206(a)(1) of the Rural Electrification Act of 1936 (7 U.S.C. 

11 927(a)(1)) is amended by striking ‘‘subsections (b) through 

12 (e)’’ and inserting ‘‘subsections (b) through (k)’’. 

13 (q) SOCIAL SECURITY ACT.—The Social Security Act 

14 (42 U.S.C. 301 et seq.) is amended— 

15 (1) in section 221(j) (42 U.S.C. 421(j)), in the 

16 flush text following paragraph (3), by striking ‘‘in ac17 cordance with section 553(b)(A) of title 5, United 

18 States Code’’ and all that follows through ‘‘and state19 ments’’ and inserting ‘‘in accordance with section 

20 553(g)(2) of title 5, United States Code, of guidance 

21 or rules of agency organization, procedure, or practice 

22 relating to consultative examinations if such guidance 

23 and rules’’; and 


rfrederick on DSKBCBPHB2PROD with BILLS
116 

•S 951 RS

1 (2) in section 1871(b)(2) (42 U.S.C. 

2 1395hh(b)(2)), by striking subparagraph (C) and in3 serting the following: 

4 ‘‘(C) subsection (c) of section 553 of title 5, 

5 United States Code, does not apply pursuant to 

6 subsection (g)(3) of such section.’’. 

7 (r) TITLE 5, UNITED STATES CODE.—Title 5, United 

8 States Code, is amended— 

9 (1) in section 556(d), in the sixth sentence, by 

10 striking ‘‘rule making’’ and inserting ‘‘rulemaking’’; 

11 (2) in section 557(b), in the fourth sentence of 

12 the matter preceding paragraph (1), by striking ‘‘rule 

13 making’’ and inserting ‘‘rulemaking’’; 

14 (3) in section 562(11), by striking ‘‘means ‘rule 

15 making’ as that term is defined in section 551(5) of 

16 this title’’ and inserting ‘‘has the meaning given the 

17 term in section 551’’; 

18 (4) in section 601(2), by striking ‘‘section 

19 553(b)’’ and inserting ‘‘section 553(c)’’; 

20 (5) in section 1103(b)(1), by striking ‘‘section 

21 553(b)(1), (2), and (3)’’ and inserting ‘‘section 

22 553(c)’’; and 

23 (6) in section 1105, by striking ‘‘subsections (b), 

24 (c), and (d)’’ and inserting ‘‘subsections (b) through 

25 (h) and (j)’’. 


rfrederick on DSKBCBPHB2PROD with BILLS
117 

•S 951 RS

1 (s) TITLE 41, UNITED STATES CODE.—Section 

2 8503(a)(2) of title 41, United States Code, is amended by 

3 striking ‘‘section 553(b) to (e)’’ and inserting ‘‘section 553’’. 

4 (t) TITLE 46, UNITED STATES CODE.—Section 

5 14104(b) of title 46, United States Code, is amended, in 

6 the second sentence, by striking ‘‘shall be considered to be 

7 an interpretive regulation for purposes of section 553 of title 

8 5’’ and inserting ‘‘shall be subject to section 553 of title 

9 5’’. 

10 (u) TOXIC SUBSTANCES CONTROL ACT.—Section 

11 19(c)(1)(B)(ii) of the Toxic Substances Control Act (15 

12 U.S.C. 2618(c)(1)(B)(ii)) is amended by striking ‘‘section 

13 553(c)’’ and inserting ‘‘section 553(f)(2)’’. 


rfrederick on DSKBCBPHB2PROD with BILLS
Calendar No. 312 

115TH CONGRESS 

2D SESSION S. 951 

[Report No. 115–208] 

A BILL 

To reform the process by which Federal agencies 

ance documents, and for other purposes. analyze and formulate new regulations and guidFEBRUARY 14, 2018 

Reported with an amendment 


rfrederick on DSKBCBPHB2PROD with BILLS