II 

115TH CONGRESS 

1ST SESSION S. 951 

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, and Mr. MANCHIN) 

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

Committee on Homeland Security and Governmental Affairs 

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, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Regulatory Account5 ability Act of 2017’’. 

6 SEC. 2. DEFINITIONS. 

7 Section 551 of title 5, United States Code, is amend8 ed— 


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

2 and inserting ‘‘rulemaking’’; 

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

4 and inserting ‘‘rulemaking’’; 

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

6 end; 

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

8 the end and inserting a semicolon; and 

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

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

11 general applicability, other than a rule, that— 

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

13 effect of law; and 

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

15 regulatory, or technical issue or an interpreta16 tion of a statutory or regulatory issue; 

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

18 the Administrator determines is likely to cause an 

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

20 more, adjusted once every 5 years to reflect in21 creases in the Consumer Price Index for All Urban 

22 Consumers, as published by the Bureau of Labor 

23 Statistics of the Department of Labor; 

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

25 Administrator finds is likely to lead to— 


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

2 $100,000,000 or more, adjusted once every 5 

3 years to reflect increases in the Consumer Price 

4 Index for All Urban Consumers, as published 

5 by the Bureau of Labor Statistics of the De6 partment of Labor; 

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

8 consumers, individual industries, Federal, 

9 State, local, or tribal government agencies, or 

10 geographic regions; or 

11 ‘‘(C) significant adverse effects on competi12 tion, employment, investment, productivity, in13 novation, public health and safety, or the ability 

14 of United States-based enterprises to compete 

15 with foreign-based enterprises in domestic and 

16 export markets; 

17 ‘‘(18) ‘major rule’ means any rule that the Ad18 ministrator determines is likely to cause— 

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

20 $100,000,000 or more, adjusted once every 5 

21 years to reflect increases in the Consumer Price 

22 Index for All Urban Consumers, as published 

23 by the Bureau of Labor Statistics of the De24 partment of Labor; 


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

2 consumers, individual industries, Federal, 

3 State, local, or tribal government agencies, or 

4 geographic regions; or 

5 ‘‘(C) significant adverse effects on competi6 tion, employment, investment, productivity, in7 novation, public health and safety, or the ability 

8 of United States-based enterprises to compete 

9 with foreign-based enterprises in domestic and 

10 export markets; 

11 ‘‘(19) ‘Office of Information and Regulatory Af12 fairs’ means the office established under section 

13 3503 of title 44 and any successor to that office; 

14 and 

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

16 of the Office of Information and Regulatory Af17 fairs.’’. 

18 SEC. 3. RULEMAKING. 

19 Section 553 of title 5, United States Code, is amend20 ed— 

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

22 making’’ and inserting ‘‘Rulemaking’’; 

23 (2) in subsection (a), by striking ‘‘(a) This sec24 tion applies’’ and inserting ‘‘(a) APPLICABILITY— 

25 This section applies’’; and 


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

2 inserting the following: 

3 ‘‘(b) RULEMAKING CONSIDERATIONS.—In a rule4 making, an agency shall consider, in addition to other ap5 plicable considerations, the following: 

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

7 may be proposed, including whether rulemaking is 

8 required by statute or is within the discretion of the 

9 agency. 

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

11 the agency intends to address with a rule. 

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

13 have created or contributed to the problem the agen14 cy may address with a rule and, if so, whether those 

15 Federal laws or rules could be amended or rescinded 

16 to address the problem in whole or in part. 

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

18 new rule that meet the statutory objective, including 

19 substantial alternatives or other responses identified 

20 by interested persons, with the consideration of 3 al21 ternatives presumed to be reasonable. 

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

23 unless prohibited by law, the potential costs and 

24 benefits associated with potential alternative rules 


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1 and other responses considered under paragraph (4), 

2 including quantitative and qualitative analyses of— 

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

4 ‘‘(B) the nature and degree of risks ad5 dressed by the rule and the countervailing risks 

6 that might be posed by agency action; and 

7 ‘‘(C) to the extent practicable, the cumu8 lative and indirect costs and benefits. 

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

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

11 that the objectives of the agency require the agency 

12 to issue a rule, the agency shall notify the Adminis13 trator and publish a notice of proposed rulemaking 

14 in the Federal Register, which shall include— 

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

16 nature of any public rulemaking proceedings; 

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

18 which the rule is proposed; 

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

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

21 the agency concerning the considerations de22 scribed in subsection (b); and 

23 ‘‘(E) where otherwise consistent with appli24 cable law, for any major rule or high-impact 

25 rule— 


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1 ‘‘(i) a reasoned preliminary expla2 nation regarding how— 

3 ‘‘(I) the proposed rule meets the 

4 statutory objectives; and 

5 ‘‘(II) the benefits of the proposed 

6 rule justify the costs; and 

7 ‘‘(ii) a discussion of— 

8 ‘‘(I) the costs and benefits of al9 ternatives considered by the agency 

10 under subsection (b)(4); 

11 ‘‘(II) whether the alternatives 

12 considered by the agency under sub13 section (b)(4) meet relevant statutory 

14 objectives; and 

15 ‘‘(III) the reasons why the agen16 cy did not propose an alternative con17 sidered by the agency under sub18 section (b)(4). 

19 ‘‘(2) ACCESSIBILITY.— 

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

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

22 which an agency publishes a notice of proposed 

23 rulemaking under paragraph (1), all studies, 

24 models, scientific literature, and other informa25 tion developed or relied upon by the agency, 


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1 and actions taken by the agency to obtain that 

2 information, in connection with the determina3 tion of the agency to propose the rule that is 

4 the subject of the rulemaking shall be placed in 

5 the docket for the proposed rule and made ac6 cessible to the public. 

7 ‘‘(B) EXCEPTION.—Subparagraph (A) 

8 shall not apply with respect to information that 

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

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

11 proposes a rule that rests upon scientific, technical, 

12 or economic information, the agency shall propose 

13 the rule on the basis of the best reasonably available 

14 scientific, technical, or economic information. 

15 ‘‘(4) PUBLIC COMMENT.— 

16 ‘‘(A) IN GENERAL.—After publishing a no17 tice of proposed rulemaking under paragraph 

18 (1), an agency shall provide interested persons 

19 an opportunity to participate in the rulemaking 

20 through the submission of written material, 

21 data, views, or arguments with or without op22 portunity for oral presentation, except that— 

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

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1 vided at the public hearing as provided in 

2 subsection (e); and 

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

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

5 to be made on the record after opportunity 

6 for an agency hearing— 

7 ‘‘(I) sections 556 and 557 shall 

8 apply; and 

9 ‘‘(II) the petition procedures of 

10 subsection (e) shall not apply. 

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

12 not less than 60 days, or, with respect to a pro13 posed major rule or a proposed high-impact 

14 rule, not less than 90 days, for interested per15 sons to submit written material, data, views, or 

16 arguments under subparagraph (A). 

17 ‘‘(5) CHANGE OF CLASSIFICATION AFTER PUB18 LICATION OF NOTICE.—If, after an agency submits 

19 the notification and publishes the notice of proposed 

20 rulemaking required under paragraph (1), a pro21 posed rule is determined to be a major rule or a 

22 high-impact rule, the agency shall— 

23 ‘‘(A) publish a notice in the Federal Reg24 ister with respect to the change of the classi25 fication of the rule; and 


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1 ‘‘(B) allow interested persons an additional 

2 opportunity of not less than 30 days to com3 ment on— 

4 ‘‘(i) the rule; and 

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

6 the rule. 

7 ‘‘(6) PROHIBITION ON CERTAIN COMMUNICA8 TIONS.— 

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

10 subparagraph (B), after an agency publishes a 

11 notice of proposed rulemaking required under 

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

13 notice of initiation of rulemaking under sub14 section (d)(1)(B), the agency, and any indi15 vidual acting in an official capacity on behalf of 

16 the agency, may not communicate, and a person 

17 who receives Federal funds from the agency 

18 may not use those funds to communicate, 

19 through written, oral, electronic, or other 

20 means, to the public with respect to the pro21 posed rule in a manner that— 

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

23 or against the proposed rule, for the sub24 mission of information that will form part 

25 of the record for the proposed rule; 


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

2 a third party, to undertake advocacy in 

3 support of or against the proposed rule; or 

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

5 purpose of publicity or propaganda within 

6 the United States in a manner that Con7 gress has not authorized. 

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

9 subparagraph (A) shall not apply to a commu10 nication that requests comments on, or provides 

11 information regarding, a proposed rule in an 

12 impartial manner. 

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

14 HIGH-IMPACT RULES.— 

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

16 RULES.—When an agency determines to initiate a 

17 rulemaking that may result in a major rule or a 

18 high-impact rule, the agency shall— 

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

20 rulemaking, which may have a physical counter21 part; and 

22 ‘‘(B) publish a notice of initiation of rule23 making in the Federal Register, which shall— 


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1 ‘‘(i) briefly describe the subject and 

2 objectives of, and the problem to be solved 

3 by, the rule; 

4 ‘‘(ii) reference the legal authority 

5 under which the rule would be proposed; 

6 ‘‘(iii) invite interested persons to pro7 pose alternatives and other ideas regarding 

8 how best to accomplish the objectives of 

9 the agency in the most effective manner; 

10 and 

11 ‘‘(iv) indicate how interested persons 

12 may submit written material for the dock13 et. 

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

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

16 placed in the docket and made accessible to the pub17 lic. 

18 ‘‘(3) APPLICABILITY.—With respect to the al19 ternatives and other ideas proposed under paragraph 

20 (1)(B)(iii)— 

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

22 for the benefit of— 

23 ‘‘(i) the agency receiving the alter24 natives and other ideas; and 

25 ‘‘(ii) the public; and 


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1 ‘‘(B) the agency receiving the alternatives 

2 and other ideas may respond to the alternatives 

3 and other ideas. 

4 ‘‘(4) TIMETABLE.— 

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

6 rulemaking for a major rule or a high-impact 

7 rule, the agency proposing the rule shall estab8 lish a timetable for the rulemaking that— 

9 ‘‘(i) includes intermediate and final 

10 completion dates for actions of the agency; 

11 and 

12 ‘‘(ii) shall be published in the elec13 tronic docket established under paragraph 

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

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

16 establishing the timetable required under sub17 paragraph (A), an agency shall consider rel18 evant factors, including— 

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

20 rulemaking; 

21 ‘‘(ii) the resources available to the 

22 agency; 

23 ‘‘(iii) the national significance of the 

24 rulemaking; and 


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1 ‘‘(iv) all statutory requirements that 

2 govern the timing of the rulemaking. 

3 ‘‘(C) REPORT REQUIRED.— 

4 ‘‘(i) IN GENERAL.—An agency that 

5 fails to meet an intermediate or final com6 pletion date for an action established under 

7 subparagraph (A) shall submit to Congress 

8 and the Director of the Office of Manage9 ment and Budget a report regarding why 

10 the agency failed to meet the completion 

11 date. 

12 ‘‘(ii) CONTENTS; PUBLICATION IN

13 FEDERAL REGISTER.—A report submitted 

14 under clause (i) shall— 

15 ‘‘(I) include an amended time16 table for the rulemaking; and 

17 ‘‘(II) be published— 

18 ‘‘(aa) in the Federal Reg19 ister; and 

20 ‘‘(bb) in the electronic dock21 et established under paragraph 

22 (1)(A) with respect to the rule23 making. 

24 ‘‘(5) NOTICE OF DETERMINATION OF OTHER

25 AGENCY COURSE.— 


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

2 the notice required under paragraph (1), an 

3 agency determines not to issue a major rule or 

4 a high-impact rule, the agency shall, after con5 sulting with the Administrator— 

6 ‘‘(i) publish a notice of determination 

7 of other agency course; and 

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

9 rule, comply with the procedures required 

10 under subsection (c). 

11 ‘‘(B) CONTENTS.—A notice of determina12 tion of other agency course published under 

13 subparagraph (A)(i) shall include— 

14 ‘‘(i) a description of the alternative re15 sponse the agency has determined to 

16 adopt; and 

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

18 rule, any information required under sub19 section (c). 

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

21 AND CERTAIN MAJOR RULES.— 

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

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

24 which the comment period closes with respect to 

25 a proposed high-impact rule or a proposed 


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

2 interested person may petition the agency that 

3 proposed the rule to hold a public hearing in ac4 cordance with this subsection. 

5 ‘‘(B) PETITION FOR PUBLIC HEARING FOR

6 HIGH-IMPACT RULES.— 

7 ‘‘(i) GRANTING OF PETITION.—Not 

8 later than 30 days after the date on which 

9 an agency receives a petition submitted 

10 under subparagraph (A) with respect to a 

11 high-impact rule, the agency shall grant 

12 the petition if the petition shows that— 

13 ‘‘(I) the proposed rule is based 

14 on conclusions with respect to 1 or 

15 more specific scientific, technical, eco16 nomic, or other complex factual issues 

17 that are genuinely disputed; 

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

19 the agency is required to reissue not 

20 less frequently than once every 3 

21 years, the interested person submit22 ting the petition could not have raised 

23 the disputed factual issues described 

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1 riod preceding the date on which the 

2 petition is submitted; and 

3 ‘‘(III) the resolution of the dis4 puted factual issues described in sub5 clause (I) would likely have an effect 

6 on— 

7 ‘‘(aa) the costs and benefits 

8 of the proposed rule; or 

9 ‘‘(bb) whether the proposed 

10 rule achieves the statutory pur11 pose. 

12 ‘‘(ii) DENIAL OF PETITION.—If an 

13 agency denies a petition submitted under 

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

15 shall include in the rulemaking record an 

16 explanation for the denial sufficient for ju17 dicial review, including— 

18 ‘‘(I) findings by the agency 

19 that— 

20 ‘‘(aa) there is no genuine 

21 dispute as to the factual issues 

22 raised by the petition; or 

23 ‘‘(bb) with respect to a rule 

24 that the agency is required to re25 issue not less frequently than 


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1 once every 3 years, the interested 

2 person submitting the petition 

3 could have raised the disputed 

4 factual issues in the petition dur5 ing the 5-year period preceding 

6 the date on which the petition is 

7 submitted; and 

8 ‘‘(II) a reasoned determination 

9 by the agency that the factual issues 

10 raised by the petition, even if subject 

11 to genuine dispute and not subject to 

12 subclause (I)(bb), will not have an ef13 fect on— 

14 ‘‘(aa) the costs and benefits 

15 of the proposed rule; or 

16 ‘‘(bb) whether the proposed 

17 rule achieves the statutory pur18 pose. 

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

20 petition submitted under subparagraph (A) 

21 with respect to a high-impact rule and the 

22 decision of an agency with respect to the 

23 petition shall be included in the rulemaking 

24 record. 


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1 ‘‘(C) PETITION FOR PUBLIC HEARING FOR

2 CERTAIN MAJOR RULES.— 

3 ‘‘(i) IN GENERAL.—In the case of a 

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

5 any interested person may petition for a 

6 hearing under this subsection on the 

7 grounds and within the time limitation de8 scribed in subparagraph (B)(i). 

9 ‘‘(ii) AGENCY AUTHORITY TO DENY

10 PETITION.—An agency may deny a petition 

11 submitted to the agency under clause (i) if 

12 the agency reasonably determines that— 

13 ‘‘(I) a hearing— 

14 ‘‘(aa) would not advance the 

15 consideration of the proposed 

16 rule by the agency; or 

17 ‘‘(bb) would, in light of the 

18 need for agency action, unreason19 ably delay completion of the rule20 making; or 

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

22 the agency is required to reissue not 

23 less frequently than once every 3 

24 years, the interested person submit25 ting the petition could have raised the 


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1 disputed factual issues in the petition 

2 during the 5-year period preceding the 

3 date on which the petition is sub4 mitted. 

5 ‘‘(iii) INCLUSION IN THE RECORD.—A 

6 petition submitted under clause (i) and the 

7 decision of an agency with respect to the 

8 petition shall be included in the rulemaking 

9 record. 

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

11 days before the date on which a hearing is held 

12 under this subsection, an agency shall publish in the 

13 Federal Register a notice specifying— 

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

15 the hearing; and 

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

17 the hearing. 

18 ‘‘(3) HEARING REQUIREMENTS.— 

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

20 hearing held under this subsection shall be lim21 ited to— 

22 ‘‘(i) the specific factual issues raised 

23 in a petition granted in whole or in part 

24 under paragraph (1); and 


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1 ‘‘(ii) any other factual issues the reso2 lution of which an agency, in the discretion 

3 of the agency, determines will advance con4 sideration by the agency of the proposed 

5 rule. 

6 ‘‘(B) PROCEDURES.— 

7 ‘‘(i) BURDEN OF PROOF.—Except as 

8 otherwise provided by statute, a proponent 

9 of a rule has the burden of proof in a hear10 ing held under this subsection. 

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

12 hearing held under this subsection, any 

13 documentary or oral evidence may be re14 ceived, except that an agency, as a matter 

15 of policy, shall provide for the exclusion of 

16 immaterial or unduly repetitious evidence. 

17 ‘‘(iii) ADOPTION OF RULES GOV18 ERNING HEARINGS.—To govern a hearing 

19 held under this subsection, each agency 

20 shall adopt rules that provide for— 

21 ‘‘(I) the appointment of an agen22 cy official or administrative law judge 

23 to preside at the hearing; 

24 ‘‘(II) the presentation by inter25 ested parties of relevant documentary 


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1 or oral evidence, unless the evidence is 

2 immaterial or unduly repetitious; 

3 ‘‘(III) a reasonable and adequate 

4 opportunity for cross-examination by 

5 interested parties concerning genu6 inely disputed factual issues raised by 

7 the petition, provided that, in the case 

8 of multiple interested parties with the 

9 same or similar interests, the agency 

10 may require the use of common coun11 sel where the common counsel may 

12 adequately represent the interests that 

13 will be significantly affected by the 

14 proposed rule; and 

15 ‘‘(IV) when appropriate, and to 

16 the extent practicable, the consolida17 tion of proceedings with respect to 

18 multiple petitions submitted under 

19 this subsection into a single hearing. 

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

21 of testimony and exhibits, together with all pa22 pers and requests filed in the hearing, shall 

23 constitute the exclusive record for decision of 

24 the factual issues addressed in a hearing held 

25 under this subsection. 


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1 ‘‘(4) JUDICIAL REVIEW.— 

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

3 a hearing under this subsection shall not pre4 clude judicial review of any claim that could 

5 have been raised in the hearing petition or at 

6 the hearing. 

7 ‘‘(B) TIMING OF JUDICIAL REVIEW.— 

8 There shall be no judicial review of the disposi9 tion of a petition by an agency under this sub10 section until judicial review of the final action 

11 of the agency. 

12 ‘‘(f) FINAL RULES.— 

13 ‘‘(1) EFFECTIVENESS OF MAJOR OR HIGH-IM14 PACT RULE.— 

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

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

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

18 adopt the most cost-effective rule that— 

19 ‘‘(i) is considered under subsection 

20 (b)(4); and 

21 ‘‘(ii) meets relevant statutory objec22 tives. 

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

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

25 may adopt a rule that is more costly than the 


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1 most cost-effective alternative that would 

2 achieve the relevant statutory objectives only 

3 if— 

4 ‘‘(i) the additional benefits of the 

5 more costly rule justify the additional costs 

6 of that rule; 

7 ‘‘(ii) the agency specifically identifies 

8 each additional benefit described in clause 

9 (i) and the cost of each such additional 

10 benefit; and 

11 ‘‘(iii) the agency explains why the 

12 agency adopted a rule that is more costly 

13 than the most cost-effective alternative. 

14 ‘‘(2) PUBLICATION OF NOTICE OF FINAL RULE15 MAKING.—When an agency adopts a final rule, the 

16 agency shall publish a notice of final rulemaking in 

17 the Federal Register, which shall include— 

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

19 basis and purpose of the rule; 

20 ‘‘(B) a reasoned determination by the 

21 agency regarding the considerations described 

22 in subsection (b); 

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

24 raised in the comments on the proposed rule; 

25 and 


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

2 high-impact rule, a reasoned determination by 

3 the agency that— 

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

5 the relevant statutory objectives and justify 

6 the costs of the rule; and 

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

8 would achieve the relevant statutory objec9 tives in a more cost-effective manner than 

10 the rule; or 

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

12 more costly rule complies with paragraph 

13 (1)(B). 

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

15 rulemaking rests upon scientific, technical, or eco16 nomic information, the agency shall adopt a final 

17 rule on the basis of the best reasonably available sci18 entific, technical, or economic information. 

19 ‘‘(4) ACCESSIBILITY.— 

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

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

22 which an agency publishes a notice of final rule23 making under paragraph (2), all studies, mod24 els, scientific literature, and other information 

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1 tions taken by the agency to obtain that infor2 mation, in connection with the determination of 

3 the agency to finalize the rule that is the sub4 ject of the rulemaking shall be placed in the 

5 docket for the rule and made accessible to the 

6 public. 

7 ‘‘(B) EXCEPTION.—Subparagraph (A) 

8 shall not apply with respect to information that 

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

10 ‘‘(5) RULES ADOPTED AT THE END OF A PRESI11 DENTIAL ADMINISTRATION.— 

12 ‘‘(A) IN GENERAL.—During the 60-day pe13 riod beginning on a transitional inauguration 

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

15 to any final rule that had been placed on file 

16 for public inspection by the Office of the Fed17 eral Register or published in the Federal Reg18 ister as of the date of the inauguration, but 

19 which had not become effective by the date of 

20 the inauguration, the agency issuing the rule 

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

22 rule for not more than 90 days for the purpose 

23 of obtaining public comment on whether— 

24 ‘‘(i) the rule should be amended or re25 scinded; or 


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

2 should be further delayed. 

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

4 agency delays the effective date of a rule under 

5 subparagraph (A), the agency shall give the 

6 public not less than 30 days to submit com7 ments. 

8 ‘‘(g) APPLICABILITY.— 

9 ‘‘(1) PRIMACY OF CERTAIN RULEMAKING CON10 SIDERATIONS AND PROCEDURES IN OTHER FEDERAL

11 LAWS.— 

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

13 is authorized under a Federal law that requires 

14 an agency to consider, or prohibits an agency 

15 from considering, a factor in a manner that is 

16 inconsistent with, or that conflicts with, the re17 quirements under this section, for the purposes 

18 of this section, the requirement or prohibition, 

19 as applicable, in that other Federal law shall 

20 apply to the agency in the rulemaking. 

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

22 rulemaking is authorized under a Federal law 

23 that requires an agency to follow or use, or pro24 hibits an agency from following or using, a pro25 cedure in a manner that is duplicative of, or 


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1 that conflicts with, a procedural requirement 

2 under this section, for the purposes of this sec3 tion, the requirement or prohibition, as applica4 ble, in that other Federal law shall apply to the 

5 agency in the rulemaking. 

6 ‘‘(2) GUIDANCE AND RULES OF ORGANIZA7 TION.—Except as otherwise provided by law, this 

8 section shall not apply to guidance or rules of agen9 cy organization, procedure, or practice. 

10 ‘‘(3) EXCEPTIONS FOR GOOD CAUSE.— 

11 ‘‘(A) FINDING OF GOOD CAUSE.— 

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

13 good cause finds that compliance with sub14 section (c), (d), (e), or (f)(2)(B) before 

15 issuing a final rule is unnecessary, imprac16 ticable, or contrary to the public interest, 

17 that subsection shall not apply and the 

18 agency may issue the final rule or an in19 terim final rule, as applicable, under sub20 paragraph (B) or (C). 

21 ‘‘(ii) INCORPORATION OF GOOD CAUSE

22 FINDING.—If an agency makes a finding 

23 under clause (i), the agency shall include 

24 that finding and a brief statement with re25 spect to the reasons for that finding in the 


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1 final rule or interim final rule, as applica2 ble, issued by the agency. 

3 ‘‘(B) DIRECT FINAL RULES.— 

4 ‘‘(i) IN GENERAL.—Except as pro5 vided in clause (ii), if an agency makes a 

6 finding under subparagraph (A)(i) that 

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

8 (f)(2)(B) before issuing a final rule is un9 necessary, the agency shall, before issuing 

10 the final rule— 

11 ‘‘(I) publish in the Federal Reg12 ister the text of the final rule, the 

13 brief statement required under sub14 paragraph (A)(ii), and a notice of op15 portunity for public comment; 

16 ‘‘(II) establish a comment period 

17 of not less than 30 days for any inter18 ested person to submit written mate19 rial, data, views, or arguments with 

20 respect to the final rule; and 

21 ‘‘(III) provide notice of the date 

22 on which the rule will take effect. 

23 ‘‘(ii) EXCEPTION.—An agency that 

24 made a finding described in clause (i) may 

25 choose not to follow the requirements 


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1 under that clause if the agency determines 

2 that following the requirements would not 

3 expedite the issuance of the final rule. 

4 ‘‘(iii) ADVERSE COMMENTS.—If an 

5 agency receives significant adverse com6 ments with respect to a rule during the 

7 comment period established under clause 

8 (i)(II), the agency shall— 

9 ‘‘(I) withdraw the notice of final 

10 rulemaking published by the agency 

11 with respect to the rule; and 

12 ‘‘(II) complete rulemaking in ac13 cordance with subsections (c), (d), (e), 

14 and (f), as applicable. 

15 ‘‘(C) INTERIM FINAL RULES.— 

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

17 good cause finds that compliance with sub18 section (c), (d), (e), or (f)(2)(B) before 

19 issuing a final rule is impracticable or con20 trary to the public interest, the agency 

21 shall issue an interim final rule by— 

22 ‘‘(I) publishing the interim final 

23 rule and a request for public comment 

24 in the portion of the Federal Register 

25 relating to final rules; and 


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1 ‘‘(II) providing a cross-reference 

2 in the portion of the Federal Register 

3 relating to proposed rules that re4 quests public comment with respect to 

5 the rule not later than 60 days after 

6 the rule is published under subclause 

7 (I). 

8 ‘‘(ii) INTERIM PERIOD.— 

9 ‘‘(I) IN GENERAL.—Not later 

10 than 180 days after the date on which 

11 an agency issues an interim final rule 

12 under clause (i), the agency shall— 

13 ‘‘(aa) rescind the interim 

14 rule; 

15 ‘‘(bb) initiate rulemaking in 

16 accordance with subsections (c) 

17 through (f); or 

18 ‘‘(cc) take final action to 

19 adopt a final rule. 

20 ‘‘(II) NO FORCE OR EFFECT.—If, 

21 as of the end of the 180-day period 

22 described in subclause (I), an agency 

23 fails to take an action described in 

24 item (aa), (bb), or (cc) of that sub25 clause, the interim final rule issued by 


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1 the agency shall have no force or ef2 fect. 

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

4 This section shall not apply to a rulemaking or to 

5 guidance that concerns monetary policy proposed or 

6 implemented by the Board of Governors of the Fed7 eral Reserve System or the Federal Open Market 

8 Committee. 

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

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

11 final rule described in subsection (g)(3)(C) shall be pub12 lished not later than 30 days (or, in the case of a major 

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

14 the effective date of the rule, except— 

15 ‘‘(1) for guidance; or 

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

17 good cause and as published with the rule. 

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

19 Each agency shall— 

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

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

22 and 

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

24 persons to submit, by electronic means, suggestions 


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1 for rules that warrant retrospective review and pos2 sible modification or repeal. 

3 ‘‘(j) RULEMAKING GUIDELINES.— 

4 ‘‘(1) ASSESSMENT OF RULES.— 

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

6 shall establish guidelines for the assessment, in7 cluding the quantitative and qualitative assess8 ment, of— 

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

10 and final rules; 

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

12 and final rules; 

13 ‘‘(iii) other economic issues that are 

14 relevant to rulemaking under this section 

15 or other sections of this part; and 

16 ‘‘(iv) risk assessments that are rel17 evant to rulemaking under this section and 

18 other sections of this part. 

19 ‘‘(B) AGENCY ANALYSIS OF RULES.— 

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

21 cost-benefit analysis required by the guide22 lines established under subparagraph (A) 

23 shall be commensurate, as determined by 

24 the Administrator, with the economic im25 pact of a rule. 


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1 ‘‘(ii) RISK ASSESSMENT GUIDE2 LINES.—Guidelines for a risk assessment 

3 described in subparagraph (A)(iv) shall in4 clude criteria for— 

5 ‘‘(I) selecting studies and models; 

6 ‘‘(II) evaluating and weighing 

7 evidence; and 

8 ‘‘(III) conducting peer reviews. 

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

10 frequently than once every 10 years, the Ad11 ministrator shall update the guidelines estab12 lished under subparagraph (A) to enable each 

13 agency to use the best available techniques to 

14 quantify and evaluate present and future bene15 fits, costs, other economic issues, and risks as 

16 objectively and accurately as practicable. 

17 ‘‘(2) SIMPLIFICATION OF RULES.— 

18 ‘‘(A) ISSUANCE OF GUIDELINES.—The Ad19 ministrator shall issue guidelines to promote co20 ordination, simplification, and harmonization of 

21 agency rules during the rulemaking process. 

22 ‘‘(B) REQUIREMENTS.—The guidelines 

23 issued by the Administrator under subpara24 graph (A) shall advise each agency to— 


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1 ‘‘(i) avoid rules that are inconsistent 

2 or incompatible with, or duplicative of, 

3 other regulations of the agency and those 

4 of other agencies; and 

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

6 be simple and easy to understand, with the 

7 goal of minimizing the potential for uncer8 tainty and litigation arising from the un9 certainty. 

10 ‘‘(3) CONSISTENCY IN RULEMAKING.— 

11 ‘‘(A) IN GENERAL.—To promote consist12 ency in rulemaking, the Administrator shall— 

13 ‘‘(i) issue guidelines to ensure that 

14 rulemaking conducted in whole or in part 

15 under procedures specified in provisions of 

16 law other than those under this section 

17 conform with the procedures set forth in 

18 this section to the fullest extent allowed by 

19 law; and 

20 ‘‘(ii) issue guidelines for the conduct 

21 of hearings under subsection (e), which 

22 shall provide a reasonable opportunity for 

23 cross-examination. 

24 ‘‘(B) AGENCY ADOPTION OF REGULA25 TIONS.—Each agency shall adopt regulations 


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1 for the conduct of hearings consistent with the 

2 guidelines issued under this paragraph. 

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

4 MAJOR GUIDANCE; AUTHORITY TO ISSUE GUIDELINES

5 FOR ISSUANCE OF GUIDANCE.— 

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

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

8 consideration of issues as to which the guidance 

9 expresses a conclusion; 

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

11 binding; and 

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

13 upon request, be made available by the issuing 

14 agency to interested persons and the public. 

15 ‘‘(2) PROCEDURES TO ISSUE MAJOR GUID16 ANCE.—Before issuing any major guidance, an agen17 cy shall— 

18 ‘‘(A) make and document a reasoned deter19 mination that— 

20 ‘‘(i) such guidance is understandable 

21 and complies with relevant statutory objec22 tives and regulatory provisions; and 

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

24 including all costs and benefits to be con25 sidered during a rulemaking under subVerDate Sep 11 2014 21:13 Apr 27, 2017 Jkt 069200 PO 00000 Frm 00036 Fmt 6652 Sfmt 6201 E:\BILLS\S951.IS S951

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1 section (b), of requiring conduct con2 forming to such guidance and assures that 

3 such benefits justify such costs; and 

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

5 issuance of the major guidance to ensure that 

6 the guidance— 

7 ‘‘(i) is reasonable; 

8 ‘‘(ii) is understandable; 

9 ‘‘(iii) is consistent with relevant statu10 tory and regulatory provisions and require11 ments or practices of other agencies; 

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

13 unjustified by the benefits of the major 

14 guidance; and 

15 ‘‘(v) is otherwise appropriate. 

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

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

18 shall issue updated guidelines for use by agen19 cies in the issuance of guidance documents. 

20 ‘‘(B) REQUIREMENTS.—The guidelines 

21 issued by the Administrator under subpara22 graph (A) shall advise each agency— 

23 ‘‘(i) not to issue guidance documents 

24 that are inconsistent or incompatible with, 


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1 or duplicative of, other rules of the agency 

2 and those of other agencies; 

3 ‘‘(ii) to draft the guidance documents 

4 of the agency to be simple and easy to un5 derstand, with the goal of minimizing the 

6 potential for uncertainty and litigation 

7 arising from the uncertainty; and 

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

9 strategy to ensure the proper use of guid10 ance by the agency. 

11 ‘‘(l) MAJOR RULE AND HIGH-IMPACT RULE FRAME12 WORKS.— 

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

14 is 180 days after the date of enactment of this sub15 section, when an agency publishes in the Federal 

16 Register— 

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

18 high-impact rule, the agency shall include a po19 tential framework for assessing the rule, which 

20 shall include a general statement of how the 

21 agency intends to measure the effectiveness of 

22 the rule; or 

23 ‘‘(B) a final major rule or a final high-im24 pact rule, the agency shall include a framework 


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1 for assessing the rule under paragraph (2), 

2 which shall include— 

3 ‘‘(i) a clear statement of the regu4 latory objectives of the rule, including a 

5 summary of the benefit and cost of the 

6 rule; 

7 ‘‘(ii) the methodology by which the 

8 agency plans to analyze the rule, including 

9 metrics by which the agency can meas10 ure— 

11 ‘‘(I) the effectiveness and bene12 fits of the rule in producing the regu13 latory objectives of the rule; and 

14 ‘‘(II) the impacts, including any 

15 costs, of the rule on regulated and 

16 other impacted entities; 

17 ‘‘(iii) a plan for gathering data re18 garding the metrics described in clause (ii) 

19 on an ongoing basis, or at periodic times, 

20 including a method by which the agency 

21 will invite the public to participate in the 

22 review process and seek input from other 

23 agencies; and 

24 ‘‘(iv) a specific timeframe, as appro25 priate to the rule and not more than 10 


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1 years after the effective date of the rule, 

2 under which the agency shall conduct the 

3 assessment of the rule in accordance with 

4 paragraph (2)(A). 

5 ‘‘(2) ASSESSMENT.— 

6 ‘‘(A) IN GENERAL.—Each agency shall as7 sess the data collected under paragraph 

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

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

10 methodology developed after the issuance of a 

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

12 better determine whether the regulatory objec13 tive was achieved, with respect to the rule— 

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

15 and costs of the rule may have varied from 

16 those anticipated at the time the rule was 

17 issued; and 

18 ‘‘(ii) to determine whether— 

19 ‘‘(I) the rule is accomplishing the 

20 regulatory objective of the rule; 

21 ‘‘(II) the rule has been rendered 

22 unnecessary, taking into consider23 ation— 

24 ‘‘(aa) changes in the subject 

25 area affected by the rule; and 


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1 ‘‘(bb) whether the rule over2 laps, duplicates, or conflicts 

3 with— 

4 ‘‘(AA) other rules; or 

5 ‘‘(BB) to the extent 

6 feasible, State and local gov7 ernment regulations; 

8 ‘‘(III) the rule needs to be modi9 fied in order to accomplish the regu10 latory objective; and 

11 ‘‘(IV) other alternatives to the 

12 rule or modification of the rule could 

13 better achieve the regulatory objective 

14 while imposing a smaller burden on 

15 society or increase cost-effectiveness, 

16 taking into consideration any cost al17 ready incurred. 

18 ‘‘(B) DIFFERENT METHODOLOGY.—If an 

19 agency uses a methodology other than the 

20 methodology under paragraph (1)(B)(ii) to as21 sess data under subparagraph (A), the agency 

22 shall include as part of the notice required to 

23 be published under subparagraph (D) an expla24 nation of the changes in circumstances that ne25 cessitated the use of that other methodology. 


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1 ‘‘(C) SUBSEQUENT ASSESSMENTS.— 

2 ‘‘(i) IN GENERAL.—Except as pro3 vided in clause (ii), if, after an assessment 

4 of a major rule or a high-impact rule 

5 under subparagraph (A), an agency deter6 mines that the rule will remain in effect 

7 with or without modification, the agency 

8 shall— 

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

10 appropriate to the rule and not more 

11 than 10 years after the date on which 

12 the agency completes the assessment, 

13 under which the agency shall conduct 

14 another assessment of the rule in ac15 cordance with subparagraph (A); and 

16 ‘‘(II) if the assessment conducted 

17 under subclause (I) does not result in 

18 a repeal of the rule, periodically assess 

19 the rule in accordance with subpara20 graph (A) to ensure that the rule con21 tinues to meet the regulatory objec22 tive. 

23 ‘‘(ii) EXEMPTION.—The Adminis24 trator may exempt an agency from con25 ducting a subsequent assessment of a rule 


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1 under clause (i) if the Administrator deter2 mines that there is a foreseeable and ap3 parent need for the rule beyond the time4 frame required under clause (i)(I). 

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

6 days after the date on which an agency com7 pletes an assessment of a major rule or a high8 impact rule under subparagraph (A), the agen9 cy shall publish a notice of availability of the re10 sults of the assessment in the Federal Register, 

11 including the specific time for any subsequent 

12 assessment of the rule under subparagraph 

13 (C)(i), if applicable. 

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 

21 agencies 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 


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1 ‘‘(ii) noticed in the Federal Register 

2 in 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 deter11 mines that compliance with paragraph (1)(B) is 

12 unnecessary, impracticable, or contrary to the 

13 public interest, as described in subsection 

14 (g)(3)(A)(i); 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 

23 this subsection shall be construed to affect— 

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

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


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1 the agency earlier than the end of the time2 frame 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 re6 views 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 

11 rule 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 require19 ments of this subsection, as deter20 mined by the Administrator; or 

21 ‘‘(III) for which the authorizing 

22 statute is subject to periodic reauthor23 ization by Congress not less fre24 quently than once every 10 years; 


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1 ‘‘(ii) interpretative rules, general 

2 statements of policy, or rules of agency or3 ganization, procedure, or practice; 

4 ‘‘(iii) routine and administrative rules; 

5 or 

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

7 section 2222 of the Economic Growth and 

8 Regulatory Paperwork Reduction Act of 

9 1996 (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, 

16 the 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 

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

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

24 agency may submit to Congress recommendations 

25 for legislation to amend applicable provisions of law 


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1 if the agency is prohibited from modifying or repeal2 ing the rule under another provision of law. 

3 ‘‘(7) JUDICIAL REVIEW.— 

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

5 agency compliance with this subsection is lim6 ited to whether an agency— 

7 ‘‘(i) published the framework for as8 sessment of a major rule or a high-impact 

9 rule in accordance with paragraph (1); or 

10 ‘‘(ii) completed and published the re11 quired assessment of a major rule or a 

12 high-impact rule in accordance with sub13 paragraphs (A) and (D) of paragraph (2). 

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

15 relief 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 


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1 rule, as applicable, shall take effect notwith2 standing any order issued by the court. 

3 ‘‘(D) ADMINISTRATOR.—Any determina4 tion, action, or inaction of the Administrator 

5 under this subsection shall not be subject to ju6 dicial review.’’. 

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 nec12 essary’’ and inserting ‘‘(a) IN GENERAL.—To the 

13 extent necessary’’; 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 ‘‘; 

24 and’’; and 


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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 wheth5 er the factual findings of the agency issuing the rule 

6 are 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 

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

11 rule of prejudicial error. 

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

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

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

15 be subject 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 

22 thoroughness evident in the consideration of the rule by 

23 the agency, the validity of the reasoning of the agency, 

24 and the consistency of the interpretation with earlier and 

25 later pronouncements.’’. 


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1 SEC. 5. ADDED DEFINITIONS. 

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

3 amended— 

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 

25 Act, that is pending or completed as of the date of enact26 ment of this Act. 


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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 

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

9 than 30 days, consistent with the requirements of section 

10 553(b)’’ and inserting ‘‘in a manner consistent with the 

11 requirements 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, 

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

17 553(i)’’; and 

18 (2) in subparagraph (D)(i), in the first sen19 tence, by striking ‘‘section 553(e)’’ and inserting 

20 ‘‘section 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’’. 


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1 (e) FEDERAL HAZARDOUS SUBSTANCES ACT.—Sec2 tion 3 of the Federal Hazardous Substances Act (15 

3 U.S.C. 1262) is amended— 

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

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

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

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

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

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

10 553(e)’’ and inserting ‘‘section 553(i)’’. 

11 (f) FLAMMABLE FABRICS ACT.—The Flammable 

12 Fabrics 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 in15 serting ‘‘section 553(i)’’; and 

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

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

18 553(c)’’. 

19 (g) GENERAL EDUCATION PROVISIONS ACT.—Sec20 tion 411 of the General Education Provisions Act (20 

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

22 striking ‘‘Notwithstanding the exception provided under 

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


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1 (h) HOUSING AND COMMUNITY DEVELOPMENT ACT

2 OF 1992.—The Housing and Community Development 

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

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

5 13603(b)(3)), in the first sentence, by striking 

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

7 (d)(3) of such section)’’ and inserting ‘‘(notwith8 standing subsections (a)(2), (g)(3), and (h)(2) of 

9 such section)’’; and 

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

11 second sentence, by striking ‘‘(notwithstanding sub12 sections (a)(2), (b)(B), and (d)(3) of such section)’’ 

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

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

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

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

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

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

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

20 (j) MCKINNEY-VENTO HOMELESS ASSISTANCE

21 ACT.—Section 433 of the McKinney-Vento Homeless As22 sistance Act (42 U.S.C. 11387) is amended, in the second 

23 sentence, by striking ‘‘(notwithstanding subsections 

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


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

2 such section)’’. 

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

4 Section 814 of the Native American Programs Act of 1974 

5 (42 U.S.C. 2992b–1) is amended— 

6 (1) in subsection (b)— 

7 (A) by striking paragraph (1); 

8 (B) by redesignating paragraphs (2) and 

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

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

11 (i) in the matter preceding subpara12 graph (A), by striking ‘‘Subparagraph (B) 

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

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

15 (ii) by striking ‘‘(other than an inter16 pretative rule or a general statement of 

17 policy)’’; and 

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

19 in the matter preceding subparagraph (A)— 

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

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

22 553(c)’’; and 

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

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

25 (2) in subsection (c)— 


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

2 by striking ‘‘section 553(d)’’ and inserting ‘‘sec3 tion 553(h)’’; and 

4 (B) in the flush text following paragraph 

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

6 553(b)’’ and inserting ‘‘section 553(c)’’. 

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

8 502(b) of the Natural Gas Policy Act of 1978 (15 U.S.C. 

9 3412(b)) is amended, in the third sentence, by striking 

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

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

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

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

14 553(c) of title 5’’ and inserting ‘‘section 553(c)(4)(A) of 

15 title 5’’. 

16 (n) POISON PREVENTION PACKAGING ACT OF

17 1970.—The Poison Prevention Packaging Act of 1970 (15 

18 U.S.C. 1471 et seq.) is amended— 

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

20 first sentence, by striking ‘‘other than paragraph 

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

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

23 of such section’’; and 


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

2 by 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.—Sec10 tion 206(a)(1) of the Rural Electrification Act of 1936 

11 (7 U.S.C. 927(a)(1)) is amended by striking ‘‘subsections 

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

13 (k)’’. 

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

15 (42 U.S.C. 301 et seq.) is amended— 

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

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

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

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

20 statements’’ and inserting ‘‘in accordance with sec21 tion 553(g)(2) of title 5, United States Code, of 

22 guidance or rules of agency organization, procedure, 

23 or practice relating to consultative examinations if 

24 such guidance and rules’’; and 


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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 

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

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

8 United 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 

13 ‘‘rule 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 

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

25 through (h) and (j)’’. 


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

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

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

4 553’’. 

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

6 14104(b) of title 46, United States Code, is amended, in 

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

8 be an interpretive regulation for purposes of section 553 

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

10 of title 5’’. 

11 (u) TOXIC SUBSTANCES CONTROL ACT.—Section 

12 19(c)(1)(B)(ii) of the Toxic Substances Control Act (15 

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

14 553(c)’’ and inserting ‘‘section 553(f)(2)’’. 

Æ 


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