I 

113TH CONGRESS 

1ST SESSION H. R. 2122 

To reform the process by which Federal agencies analyze and formulate 

new regulations and guidance documents. 

IN THE HOUSE OF REPRESENTATIVES 

MAY 23, 2013 

Mr. GOODLATTE (for himself, Mr. PETERSON, Mr. SMITH of Texas, Mr. 

OWENS, Mr. COBLE, Mr. SCHRADER, and Mr. BACHUS) introduced the 

following bill; which was referred to the Committee on the Judiciary 

A BILL 

To reform the process by which Federal agencies analyze 

and formulate new regulations and guidance documents. 

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 2013’’. 

6 SEC. 2. DEFINITIONS. 

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

9 (1) in paragraph (13), by striking ‘‘and’’ at the 

10 end; 


jbell on DSK7SPTVN1PROD with BILLS
2 

•HR 2122 IH

1 (2) in paragraph (14), by striking the period at 

2 the end and inserting a semicolon; and 

3 (3) by adding at the end the following: 

4 ‘‘(15) ‘major rule’ means any rule that the Ad5 ministrator of the Office of Information and Regu6 latory Affairs determines is likely to impose— 

7 ‘‘(A) an annual cost on the economy of 

8 $100,000,000 or more, adjusted annually for 

9 inflation; 

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

11 consumers, individual industries, Federal, 

12 State, local, or tribal government agencies, or 

13 geographic regions; 

14 ‘‘(C) significant adverse effects on competi15 tion, employment, investment, productivity, in16 novation, or on the ability of United States17 based enterprises to compete with foreign-based 

18 enterprises in domestic and export markets; or 

19 ‘‘(D) significant impacts on multiple sec20 tors of the economy; 

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

22 the Administrator of the Office of Information and 

23 Regulatory Affairs determines is likely to impose an 

24 annual cost on the economy of $1,000,000,000 or 

25 more, adjusted annually for inflation; 


jbell on DSK7SPTVN1PROD with BILLS
3 

•HR 2122 IH

1 ‘‘(17) ‘guidance’ means an agency statement of 

2 general applicability and future effect, other than a 

3 regulatory action, that sets forth a policy on a statu4 tory, regulatory or technical issue or an interpreta5 tion of a statutory or regulatory issue; 

6 ‘‘(18) ‘major guidance’ means guidance that the 

7 Administrator of the Office of Information and Reg8 ulatory Affairs finds is likely to lead to— 

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

10 $100,000,000 or more, adjusted annually for 

11 inflation; 

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; 

16 ‘‘(C) significant adverse effects on competi17 tion, employment, investment, productivity, in18 novation, or on the ability of United States19 based enterprises to compete with foreign-based 

20 enterprises in domestic and export markets; or 

21 ‘‘(D) significant impacts on multiple sec22 tors of the economy; 

23 ‘‘(19) the ‘Information Quality Act’ means sec24 tion 515 of Public Law 106–554, the Treasury and 

25 General Government Appropriations Act for Fiscal 


jbell on DSK7SPTVN1PROD with BILLS
4 

•HR 2122 IH

1 Year 2001, and guidelines issued by the Adminis2 trator of the Office of Information and Regulatory 

3 Affairs or other agencies pursuant to the Act; and 

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

5 Affairs’ means the office established under section 

6 3503 of chapter 35 of title 44 and any successor to 

7 that office.’’. 

8 SEC. 3. RULE MAKING. 

9 (a) Section 553(a) of title 5, United States Code, is 

10 amended by striking ‘‘(a) This section applies’’ and insert11 ing ‘‘(a) APPLICABILITY.—This section applies’’. 

12 (b) Section 553 of title 5, United States Code, is 

13 amended by striking subsections (b) through (e) and in14 serting the following: 

15 ‘‘(b) RULE MAKING CONSIDERATIONS.—In a rule 

16 making, an agency shall make all preliminary and final 

17 factual determinations based on evidence and consider, in 

18 addition to other applicable considerations, the following: 

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

20 may be proposed, including whether a rule making 

21 is required by statute, and if so, whether by a spe22 cific date, or whether the agency has discretion to 

23 commence a rule making. 


jbell on DSK7SPTVN1PROD with BILLS
5 

•HR 2122 IH

1 ‘‘(2) Other statutory considerations applicable 

2 to whether the agency can or should propose a rule 

3 or undertake other agency action. 

4 ‘‘(3) The specific nature and significance of the 

5 problem the agency may address with a rule (includ6 ing the degree and nature of risks the problem poses 

7 and the priority of addressing those risks compared 

8 to other matters or activities within the agency’s ju9 risdiction), whether the problem warrants new agen10 cy action, and the countervailing risks that may be 

11 posed by alternatives for new agency action. 

12 ‘‘(4) Whether existing rules have created or 

13 contributed to the problem the agency may address 

14 with a rule and whether those rules could be amend15 ed or rescinded to address the problem in whole or 

16 part. 

17 ‘‘(5) Any reasonable alternatives for a new rule 

18 or other response identified by the agency or inter19 ested persons, including not only responses that 

20 mandate particular conduct or manners of compli21 ance, but also— 

22 ‘‘(A) the alternative of no Federal re23 sponse; 

24 ‘‘(B) amending or rescinding existing 

25 rules; 


jbell on DSK7SPTVN1PROD with BILLS
6 

•HR 2122 IH

1 ‘‘(C) potential regional, State, local, or 

2 tribal regulatory action or other responses that 

3 could be taken in lieu of agency action; and 

4 ‘‘(D) potential responses that— 

5 ‘‘(i) specify performance objectives 

6 rather than conduct or manners of compli7 ance; 

8 ‘‘(ii) establish economic incentives to 

9 encourage desired behavior; 

10 ‘‘(iii) provide information upon which 

11 choices can be made by the public; or 

12 ‘‘(iv) incorporate other innovative al13 ternatives rather than agency actions that 

14 specify conduct or manners of compliance. 

15 ‘‘(6) Notwithstanding any other provision of 

16 law— 

17 ‘‘(A) the potential costs and benefits asso18 ciated with potential alternative rules and other 

19 responses considered under section 553(b)(5), 

20 including direct, indirect, and cumulative costs 

21 and benefits and estimated impacts on jobs (in22 cluding an estimate of the net gain or loss in 

23 domestic jobs), economic growth, innovation, 

24 and economic competitiveness; 


jbell on DSK7SPTVN1PROD with BILLS
7 

•HR 2122 IH

1 ‘‘(B) means to increase the cost-effective2 ness of any Federal response; and 

3 ‘‘(C) incentives for innovation, consistency, 

4 predictability, lower costs of enforcement and 

5 compliance (to government entities, regulated 

6 entities, and the public), and flexibility. 

7 ‘‘(c) ADVANCE NOTICE OF PROPOSED RULE MAKING

8 FOR MAJOR RULES, HIGH-IMPACT RULES, AND RULES

9 INVOLVING NOVEL LEGAL OR POLICY ISSUES.—In the 

10 case of a rule making for a major rule or high-impact rule 

11 or a rule that involves a novel legal or policy issue arising 

12 out of statutory mandates, not later than 90 days before 

13 a notice of proposed rule making is published in the Fed14 eral Register, an agency shall publish advance notice of 

15 proposed rule making in the Federal Register. In pub16 lishing such advance notice, the agency shall— 

17 ‘‘(1) include a written statement identifying, at 

18 a minimum— 

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

20 problem the agency may address with a rule, in21 cluding data and other evidence and informa22 tion on which the agency expects to rely for the 

23 proposed rule; 

24 ‘‘(B) the legal authority under which a rule 

25 may be proposed, including whether a rule makVerDate Mar 15 2010 02:33 May 31, 2013 Jkt 029200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H2122.IH H2122

jbell on DSK7SPTVN1PROD with BILLS
8 

•HR 2122 IH

1 ing is required by statute, and if so, whether by 

2 a specific date, or whether the agency has dis3 cretion to commence a rule making; 

4 ‘‘(C) preliminary information available to 

5 the agency concerning the other considerations 

6 specified in subsection (b); and 

7 ‘‘(D) in the case of a rule that involves a 

8 novel legal or policy issue arising out of statu9 tory mandates, the nature of and potential rea10 sons to adopt the novel legal or policy position 

11 upon which the agency may base a proposed 

12 rule; 

13 ‘‘(2) solicit written data, views or argument 

14 from interested persons concerning the information 

15 and issues addressed in the advance notice; and 

16 ‘‘(3) provide for a period of not fewer than 60 

17 days for interested persons to submit such written 

18 data, views, or argument to the agency. 

19 ‘‘(d) NOTICES OF PROPOSED RULE MAKING; DETER20 MINATIONS OF OTHER AGENCY COURSE.—(1) Before it 

21 determines to propose a rule, and following completion of 

22 procedures under subsection (c), if applicable, the agency 

23 shall consult with the Administrator of the Office of Infor24 mation and Regulatory Affairs. If the agency thereafter 


jbell on DSK7SPTVN1PROD with BILLS
9 

•HR 2122 IH

1 determines to propose a rule, the agency shall publish a 

2 notice of proposed rule making, which shall include— 

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

4 of public rule making proceedings; 

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

6 which the rule is proposed; 

7 ‘‘(C) the terms of the proposed rule; 

8 ‘‘(D) a description of information known to the 

9 agency on the subject and issues of the proposed 

10 rule, including but not limited to— 

11 ‘‘(i) a summary of information known to 

12 the agency concerning the considerations speci13 fied in subsection (b); 

14 ‘‘(ii) a summary of additional information 

15 the agency provided to and obtained from inter16 ested persons under subsection (c); 

17 ‘‘(iii) a summary of any preliminary risk 

18 assessment or regulatory impact analysis per19 formed by the agency; and 

20 ‘‘(iv) information specifically identifying all 

21 data, studies, models, and other evidence or in22 formation considered or used by the agency in 

23 connection with its determination to propose 

24 the rule; 


jbell on DSK7SPTVN1PROD with BILLS
10 

•HR 2122 IH

1 ‘‘(E)(i) a reasoned preliminary determination of 

2 need for the rule based on the information described 

3 under subparagraph (D); and 

4 ‘‘(ii) an additional statement of whether a rule 

5 is required by statute; 

6 ‘‘(F) a reasoned preliminary determination that 

7 the benefits of the proposed rule meet the relevant 

8 statutory objectives and justify the costs of the pro9 posed rule (including all costs to be considered under 

10 subsection (b)(6)), based on the information de11 scribed under subparagraph (D); 

12 ‘‘(G) a discussion of— 

13 ‘‘(i) the alternatives to the proposed rule, 

14 and other alternative responses, considered by 

15 the agency under subsection (b); 

16 ‘‘(ii) the costs and benefits of those alter17 natives (including all costs to be considered 

18 under subsection (b)(6)); 

19 ‘‘(iii) whether those alternatives meet rel20 evant statutory objectives; and 

21 ‘‘(iv) why the agency did not propose any 

22 of those alternatives; and 

23 ‘‘(H)(i) a statement of whether existing rules 

24 have created or contributed to the problem the agen25 cy seeks to address with the proposed rule; and 


jbell on DSK7SPTVN1PROD with BILLS
11 

•HR 2122 IH

1 ‘‘(ii) if so, whether or not the agency proposes 

2 to amend or rescind any such rules, and why. 

3 All information provided to or considered by the 

4 agency, and steps to obtain information by the agen5 cy, in connection with its determination to propose 

6 the rule, including any preliminary risk assessment 

7 or regulatory impact analysis prepared by the agen8 cy and all other information prepared or described 

9 by the agency under subparagraph (D) and, at the 

10 discretion of the President or the Administrator of 

11 the Office of Information and Regulatory Affairs, in12 formation provided by that Office in consultations 

13 with the agency, shall be placed in the docket for the 

14 proposed rule and made accessible to the public by 

15 electronic means and otherwise for the public’s use 

16 when the notice of proposed rule making is pub17 lished. 

18 ‘‘(2)(A) If the agency undertakes procedures under 

19 subsection (c) and determines thereafter not to propose 

20 a rule, the agency shall, following consultation with the 

21 Office of Information and Regulatory Affairs, publish a 

22 notice of determination of other agency course. A notice 

23 of determination of other agency course shall include in24 formation required by paragraph (1)(D) to be included in 


jbell on DSK7SPTVN1PROD with BILLS
12 

•HR 2122 IH

1 a notice of proposed rule making and a description of the 

2 alternative response the agency determined to adopt. 

3 ‘‘(B) If in its determination of other agency course 

4 the agency makes a determination to amend or rescind 

5 an existing rule, the agency need not undertake additional 

6 proceedings under subsection (c) before it publishes a no7 tice of proposed rule making to amend or rescind the exist8 ing rule. 

9 All information provided to or considered by the agency, 

10 and steps to obtain information by the agency, in connec11 tion with its determination of other agency course, includ12 ing but not limited to any preliminary risk assessment or 

13 regulatory impact analysis prepared by the agency and all 

14 other information that would be required to be prepared 

15 or described by the agency under paragraph (1)(D) if the 

16 agency had determined to publish a notice of proposed rule 

17 making and, at the discretion of the President or the Ad18 ministrator of the Office of Information and Regulatory 

19 Affairs, information provided by that Office in consulta20 tions with the agency, shall be placed in the docket for 

21 the determination and made accessible to the public by 

22 electronic means and otherwise for the public’s use when 

23 the notice of determination is published. 

24 ‘‘(3) After notice of proposed rule making required 

25 by this section, the agency shall provide interested persons 


jbell on DSK7SPTVN1PROD with BILLS
13 

•HR 2122 IH

1 an opportunity to participate in the rule making through 

2 submission of written data, views, or arguments with or 

3 without opportunity for oral presentation, except that— 

4 ‘‘(A) if a hearing is required under paragraph 

5 (4)(B) or subsection (e), opportunity for oral presen6 tation shall be provided pursuant to that require7 ment; or 

8 ‘‘(B) when other than under subsection (e) of 

9 this section rules are required by statute or at the 

10 discretion of the agency to be made on the record 

11 after opportunity for an agency hearing, sections 

12 556 and 557 shall apply, and paragraph (4), the re13 quirements of subsection (e) to receive comment out14 side of the procedures of sections 556 and 557, and 

15 the petition procedures of subsection (e)(6) shall not 

16 apply. 

17 The agency shall provide not fewer than 60 days for inter18 ested persons to submit written data, views, or argument 

19 (or 120 days in the case of a proposed major or high20 impact rule). 

21 ‘‘(4)(A) Within 30 days of publication of notice of 

22 proposed rule making, a member of the public may peti23 tion for a hearing in accordance with section 556 to deter24 mine whether any evidence or other information upon 


jbell on DSK7SPTVN1PROD with BILLS
14 

•HR 2122 IH

1 which the agency bases the proposed rule fails to comply 

2 with the Information Quality Act. 

3 ‘‘(B)(i) The agency may, upon review of the petition, 

4 determine without further process to exclude from the rule 

5 making the evidence or other information that is the sub6 ject of the petition and, if appropriate, withdraw the pro7 posed rule. The agency shall promptly publish any such 

8 determination. 

9 ‘‘(ii) If the agency does not resolve the petition under 

10 the procedures of clause (i), it shall grant any such peti11 tion that presents a prima facie case that evidence or other 

12 information upon which the agency bases the proposed 

13 rule fails to comply with the Information Quality Act, hold 

14 the requested hearing not later than 30 days after receipt 

15 of the petition, provide a reasonable opportunity for cross16 examination at the hearing, and decide the issues pre17 sented by the petition not later than 60 days after receipt 

18 of the petition. The agency may deny any petition that 

19 it determines does not present such a prima facie case. 

20 ‘‘(C) There shall be no judicial review of the agency’s 

21 disposition of issues considered and decided or determined 

22 under subparagraph (B)(ii) until judicial review of the 

23 agency’s final action. There shall be no judicial review of 

24 an agency’s determination to withdraw a proposed rule 

25 under subparagraph (B)(i) on the basis of the petition. 


jbell on DSK7SPTVN1PROD with BILLS
15 

•HR 2122 IH

1 ‘‘(D) Failure to petition for a hearing under this 

2 paragraph shall not preclude judicial review of any claim 

3 based on the Information Quality Act under chapter 7 of 

4 this title. 

5 ‘‘(e) HEARINGS FOR HIGH-IMPACT RULES.—Fol6 lowing notice of a proposed rule making, receipt of com7 ments on the proposed rule, and any hearing held under 

8 subsection (d)(4), and before adoption of any high-impact 

9 rule, the agency shall hold a hearing in accordance with 

10 sections 556 and 557, unless such hearing is waived by 

11 all participants in the rule making other than the agency. 

12 The agency shall provide a reasonable opportunity for 

13 cross-examination at such hearing. The hearing shall be 

14 limited to the following issues of fact, except that partici15 pants at the hearing other than the agency may waive de16 termination of any such issue: 

17 ‘‘(1) Whether the agency’s asserted factual 

18 predicate for the rule is supported by the evidence. 

19 ‘‘(2) Whether there is an alternative to the pro20 posed rule that would achieve the relevant statutory 

21 objectives at a lower cost (including all costs to be 

22 considered under subsection (b)(6)) than the pro23 posed rule. 

24 ‘‘(3) If there is more than one alternative to the 

25 proposed rule that would achieve the relevant statuVerDate Mar 15 2010 02:33 May 31, 2013 Jkt 029200 PO 00000 Frm 00015 Fmt 6652 Sfmt 6201 E:\BILLS\H2122.IH H2122

jbell on DSK7SPTVN1PROD with BILLS
16 

•HR 2122 IH

1 tory objectives at a lower cost than the proposed 

2 rule, which alternative would achieve the relevant 

3 statutory objectives at the lowest cost. 

4 ‘‘(4) Whether, if the agency proposes to adopt 

5 a rule that is more costly than the least costly alter6 native that would achieve the relevant statutory ob7 jectives (including all costs to be considered under 

8 subsection (b)(6)), the additional benefits of the 

9 more costly rule exceed the additional costs of the 

10 more costly rule. 

11 ‘‘(5) Whether the evidence and other informa12 tion upon which the agency bases the proposed rule 

13 meets the requirements of the Information Quality 

14 Act. 

15 ‘‘(6) Upon petition by an interested person who 

16 has participated in the rule making, other issues rel17 evant to the rule making, unless the agency deter18 mines that consideration of the issues at the hearing 

19 would not advance consideration of the rule or 

20 would, in light of the nature of the need for agency 

21 action, unreasonably delay completion of the rule 

22 making. An agency shall grant or deny a petition 

23 under this paragraph within 30 days of its receipt 

24 of the petition. 


jbell on DSK7SPTVN1PROD with BILLS
17 

•HR 2122 IH

1 No later than 45 days before any hearing held under this 

2 subsection or sections 556 and 557, the agency shall pub3 lish in the Federal Register a notice specifying the pro4 posed rule to be considered at such hearing, the issues 

5 to be considered at the hearing, and the time and place 

6 for such hearing, except that such notice may be issued 

7 not later than 15 days before a hearing held under sub8 section (d)(4)(B). 

9 ‘‘(f) FINAL RULES.—(1) The agency shall adopt a 

10 rule only following consultation with the Administrator of 

11 the Office of Information and Regulatory Affairs to facili12 tate compliance with applicable rule making requirements. 

13 ‘‘(2) The agency shall adopt a rule only on the basis 

14 of the best reasonably obtainable scientific, technical, eco15 nomic, and other evidence and information concerning the 

16 need for, consequences of, and alternatives to the rule. 

17 ‘‘(3)(A) Except as provided in subparagraph (B), the 

18 agency shall adopt the least costly rule considered during 

19 the rule making (including all costs to be considered under 

20 subsection (b)(6)) that meets relevant statutory objectives. 

21 ‘‘(B) The agency may adopt a rule that is more costly 

22 than the least costly alternative that would achieve the rel23 evant statutory objectives only if the additional benefits 

24 of the more costly rule justify its additional costs and only 

25 if the agency explains its reason for doing so based on 


jbell on DSK7SPTVN1PROD with BILLS
18 

•HR 2122 IH

1 interests of public health, safety or welfare that are clearly 

2 within the scope of the statutory provision authorizing the 

3 rule. 

4 ‘‘(4) When it adopts a final rule, the agency shall 

5 publish a notice of final rule making. The notice shall in6 clude— 

7 ‘‘(A) a concise, general statement of the rule’s 

8 basis and purpose; 

9 ‘‘(B) the agency’s reasoned final determination 

10 of need for a rule to address the problem the agency 

11 seeks to address with the rule, including a statement 

12 of whether a rule is required by statute and a sum13 mary of any final risk assessment or regulatory im14 pact analysis prepared by the agency; 

15 ‘‘(C) the agency’s reasoned final determination 

16 that the benefits of the rule meet the relevant statu17 tory objectives and justify the rule’s costs (including 

18 all costs to be considered under subsection (b)(6)); 

19 ‘‘(D) the agency’s reasoned final determination 

20 not to adopt any of the alternatives to the proposed 

21 rule considered by the agency during the rule mak22 ing, including— 

23 ‘‘(i) the agency’s reasoned final determina24 tion that no alternative considered achieved the 

25 relevant statutory objectives with lower costs 


jbell on DSK7SPTVN1PROD with BILLS
19 

•HR 2122 IH

1 (including all costs to be considered under sub2 section (b)(6)) than the rule; or 

3 ‘‘(ii) the agency’s reasoned determination 

4 that its adoption of a more costly rule complies 

5 with subsection (f)(3)(B); 

6 ‘‘(E) the agency’s reasoned final determina7 tion— 

8 ‘‘(i) that existing rules have not created or 

9 contributed to the problem the agency seeks to 

10 address with the rule; or 

11 ‘‘(ii) that existing rules have created or 

12 contributed to the problem the agency seeks to 

13 address with the rule, and, if so— 

14 ‘‘(I) why amendment or rescission of 

15 such existing rules is not alone sufficient 

16 to respond to the problem; and 

17 ‘‘(II) whether and how the agency in18 tends to amend or rescind the existing rule 

19 separate from adoption of the rule; 

20 ‘‘(F) the agency’s reasoned final determination 

21 that the evidence and other information upon which 

22 the agency bases the rule complies with the Informa23 tion Quality Act; and 

24 ‘‘(G)(i) for any major rule or high-impact rule, 

25 the agency’s plan for review of the rule no less than 


jbell on DSK7SPTVN1PROD with BILLS
20 

•HR 2122 IH

1 every ten years to determine whether, based upon 

2 evidence, there remains a need for the rule, whether 

3 the rule is in fact achieving statutory objectives, 

4 whether the rule’s benefits continue to justify its 

5 costs, and whether the rule can be modified or re6 scinded to reduce costs while continuing to achieve 

7 statutory objectives; and 

8 ‘‘(ii) review of a rule under a plan required by 

9 clause (i) of this subparagraph shall take into ac10 count the factors and criteria set forth in sub11 sections (b) through (f) of section 553 of this title. 

12 All information considered by the agency in connection 

13 with its adoption of the rule, and, at the discretion of the 

14 President or the Administrator of the Office of Informa15 tion and Regulatory Affairs, information provided by that 

16 Office in consultations with the agency, shall be placed 

17 in the docket for the rule and made accessible to the public 

18 for the public’s use no later than when the rule is adopted. 

19 ‘‘(g) EXCEPTIONS FROM NOTICE AND HEARING RE20 QUIREMENTS.—(1) Except when notice or hearing is re21 quired by statute, the following do not apply to interpre22 tive rules, general statements of policy, or rules of agency 

23 organization, procedure, or practice: 

24 ‘‘(A) Subsections (c) through (e). 


jbell on DSK7SPTVN1PROD with BILLS
21 

•HR 2122 IH

1 ‘‘(B) Paragraphs (1) through (3) of subsection 

2 (f). 

3 ‘‘(C) Subparagraphs (B) through (H) of sub4 section (f)(4). 

5 ‘‘(2)(A) When the agency for good cause, based upon 

6 evidence, finds (and incorporates the finding and a brief 

7 statement of reasons therefor in the rules issued) that 

8 compliance with subsection (c), (d), or (e) or requirements 

9 to render final determinations under subsection (f) of this 

10 section before the issuance of an interim rule is impracti11 cable or contrary to the public interest, including interests 

12 of national security, such subsections or requirements to 

13 render final determinations shall not apply to the agency’s 

14 adoption of an interim rule. 

15 ‘‘(B) If, following compliance with subparagraph (A) 

16 of this paragraph, the agency adopts an interim rule, it 

17 shall commence proceedings that comply fully with sub18 sections (d) through (f) of this section immediately upon 

19 publication of the interim rule, shall treat the publication 

20 of the interim rule as publication of a notice of proposed 

21 rule making and shall not be required to issue supple22 mental notice other than to complete full compliance with 

23 subsection (d). No less than 270 days from publication 

24 of the interim rule (or 18 months in the case of a major 

25 rule or high-impact rule), the agency shall complete rule 


jbell on DSK7SPTVN1PROD with BILLS
22 

•HR 2122 IH

1 making under subsections (d) through (f) of this sub2 section and take final action to adopt a final rule or re3 scind the interim rule. If the agency fails to take timely 

4 final action, the interim rule will cease to have the effect 

5 of law. 

6 ‘‘(C) Other than in cases involving interests of na7 tional security, upon the agency’s publication of an interim 

8 rule without compliance with subsections (c), (d), or (e) 

9 or requirements to render final determinations under sub10 section (f) of this section, an interested party may seek 

11 immediate judicial review under chapter 7 of this title of 

12 the agency’s determination to adopt such interim rule. The 

13 record on such review shall include all documents and in14 formation considered by the agency and any additional in15 formation presented by a party that the court determines 

16 necessary to consider to assure justice. 

17 ‘‘(3) When the agency for good cause finds (and in18 corporates the finding and a brief statement of reasons 

19 therefor in the rules issued) that notice and public proce20 dure thereon are unnecessary, including because agency 

21 rule making is undertaken only to correct a de minimis 

22 technical or clerical error in a previously issued rule or 

23 for other noncontroversial purposes, the agency may pub24 lish a rule without compliance with subsections (c), (d), 

25 (e), or (f)(1)–(3) and (f)(4)(B)–(F). If the agency receives 


jbell on DSK7SPTVN1PROD with BILLS
23 

•HR 2122 IH

1 significant adverse comment within 60 days after publica2 tion of the rule, it shall treat the notice of the rule as 

3 a notice of proposed rule making and complete rule mak4 ing in compliance with subsections (d) and (f). 

5 ‘‘(h) ADDITIONAL REQUIREMENTS FOR HEARINGS.— 

6 When a hearing is required under subsection (e) or is oth7 erwise required by statute or at the agency’s discretion 

8 before adoption of a rule, the agency shall comply with 

9 the requirements of sections 556 and 557 in addition to 

10 the requirements of subsection (f) in adopting the rule and 

11 in providing notice of the rule’s adoption. 

12 ‘‘(i) DATE OF PUBLICATION OF RULE.—The required 

13 publication or service of a substantive final or interim rule 

14 shall be made not less than 30 days before the effective 

15 date of the rule, except— 

16 ‘‘(1) a substantive rule which grants or recog17 nizes an exemption or relieves a restriction; 

18 ‘‘(2) interpretive rules and statements of policy; 

19 or 

20 ‘‘(3) as otherwise provided by the agency for 

21 good cause found and published with the rule. 

22 ‘‘(j) RIGHT TO PETITION.—Each agency shall give 

23 an interested person the right to petition for the issuance, 

24 amendment, or repeal of a rule. 


jbell on DSK7SPTVN1PROD with BILLS
24 

•HR 2122 IH

1 ‘‘(k) RULE MAKING GUIDELINES.—(1)(A) The Ad2 ministrator of the Office of Information and Regulatory 

3 Affairs shall establish guidelines for the assessment, in4 cluding quantitative and qualitative assessment, of the 

5 costs and benefits of proposed and final rules and other 

6 economic issues or issues related to risk that are relevant 

7 to rule making under this title. The rigor of cost-benefit 

8 analysis required by such guidelines shall be commensu9 rate, in the Administrator’s determination, with the eco10 nomic impact of the rule. 

11 ‘‘(B) To ensure that agencies use the best available 

12 techniques to quantify and evaluate anticipated present 

13 and future benefits, costs, other economic issues, and risks 

14 as accurately as possible, the Administrator of the Office 

15 of Information and Regulatory Affairs shall regularly up16 date guidelines established under paragraph (1)(A) of this 

17 subsection. 

18 ‘‘(2) The Administrator of the Office of Information 

19 and Regulatory Affairs shall also issue guidelines to pro20 mote coordination, simplification and harmonization of 

21 agency rules during the rule making process and other22 wise. Such guidelines shall assure that each agency avoids 

23 regulations that are inconsistent or incompatible with, or 

24 duplicative of, its other regulations and those of other 

25 Federal agencies and drafts its regulations to be simple 


jbell on DSK7SPTVN1PROD with BILLS
25 

•HR 2122 IH

1 and easy to understand, with the goal of minimizing the 

2 potential for uncertainty and litigation arising from such 

3 uncertainty. 

4 ‘‘(3) To ensure consistency in Federal rule making, 

5 the Administrator of the Office of Information and Regu6 latory Affairs shall— 

7 ‘‘(A) issue guidelines and otherwise take action 

8 to ensure that rule makings conducted in whole or 

9 in part under procedures specified in provisions of 

10 law other than those of subchapter II of this title 

11 conform to the fullest extent allowed by law with the 

12 procedures set forth in section 553 of this title; and 

13 ‘‘(B) issue guidelines for the conduct of hear14 ings under subsections 553(d)(4) and 553(e) of this 

15 section, including to assure a reasonable opportunity 

16 for cross-examination. Each agency shall adopt regu17 lations for the conduct of hearings consistent with 

18 the guidelines issued under this subparagraph. 

19 ‘‘(4) The Administrator of the Office of Information 

20 and Regulatory Affairs shall issue guidelines pursuant to 

21 the Information Quality Act to apply in rule making pro22 ceedings under sections 553, 556, and 557 of this title. 

23 In all cases, such guidelines, and the Administrator’s spe24 cific determinations regarding agency compliance with 

25 such guidelines, shall be entitled to judicial deference. 


jbell on DSK7SPTVN1PROD with BILLS
26 

•HR 2122 IH

1 ‘‘(l) INCLUSION IN THE RECORD OF CERTAIN DOCU2 MENTS AND INFORMATION.—The agency shall include in 

3 the record for a rule making, and shall make available by 

4 electronic means and otherwise, all documents and infor5 mation prepared or considered by the agency during the 

6 proceeding, including, at the discretion of the President 

7 or the Administrator of the Office of Information and Reg8 ulatory Affairs, documents and information communicated 

9 by that Office during consultation with the Agency. 

10 ‘‘(m) MONETARY POLICY EXEMPTION.—Nothing in 

11 subsection (b)(6), subparagraphs (F) and (G) of sub12 section (d)(1), subsection (e), subsection (f)(3), and sub13 paragraphs (C) and (D) of subsection (f)(5) shall apply 

14 to rule makings that concern monetary policy proposed or 

15 implemented by the Board of Governors of the Federal 

16 Reserve System or the Federal Open Market Committee.’’. 

17 SEC. 4. AGENCY GUIDANCE; PROCEDURES TO ISSUE MAJOR 

18 GUIDANCE; PRESIDENTIAL AUTHORITY TO 

19 ISSUE GUIDELINES FOR ISSUANCE OF GUID20 ANCE. 

21 (a) IN GENERAL.—Chapter 5 of title 5, United 

22 States Code, is amended by inserting after section 553 the 

23 following new section: 


jbell on DSK7SPTVN1PROD with BILLS
27 

•HR 2122 IH

1 ‘‘§ 553a. Agency guidance; procedures to issue major 

2 guidance; authority to issue guidelines 

3 for issuance of guidance 

4 ‘‘(a) Before issuing any major guidance, or guidance 

5 that involves a novel legal or policy issue arising out of 

6 statutory mandates, an agency shall— 

7 ‘‘(1) make and document a reasoned determina8 tion that— 

9 ‘‘(A) assures that such guidance is under10 standable and complies with relevant statutory 

11 objectives and regulatory provisions (including 

12 any statutory deadlines for agency action); 

13 ‘‘(B) summarizes the evidence and data on 

14 which the agency will base the guidance; 

15 ‘‘(C) identifies the costs and benefits (in16 cluding all costs to be considered during a rule 

17 making under section 553(b) of this title) of 

18 conduct conforming to such guidance and 

19 assures that such benefits justify such costs; 

20 and 

21 ‘‘(D) describes alternatives to such guid22 ance and their costs and benefits (including all 

23 costs to be considered during a rule making 

24 under section 553(b) of this title) and explains 

25 why the agency rejected those alternatives; and 


jbell on DSK7SPTVN1PROD with BILLS
28 

•HR 2122 IH

1 ‘‘(2) confer with the Administrator of the Office 

2 of Information and Regulatory Affairs on the 

3 issuance of such guidance to assure that the guid4 ance is reasonable, understandable, consistent with 

5 relevant statutory and regulatory provisions and re6 quirements or practices of other agencies, does not 

7 produce costs that are unjustified by the guidance’s 

8 benefits, and is otherwise appropriate. 

9 Upon issuing major guidance, or guidance that involves 

10 a novel legal or policy issue arising out of statutory man11 dates, the agency shall publish the documentation required 

12 by subparagraph (1) by electronic means and otherwise. 

13 ‘‘(b) Agency guidance— 

14 ‘‘(1) is not legally binding and may not be re15 lied upon by an agency as legal grounds for agency 

16 action; 

17 ‘‘(2) shall state in a plain, prominent and per18 manent manner that it is not legally binding; and 

19 ‘‘(3) shall, at the time it is issued or upon re20 quest, be made available by the issuing agency to in21 terested persons and the public by electronic means 

22 and otherwise. 

23 Agencies shall avoid the issuance of guidance that is in24 consistent or incompatible with, or duplicative of, the 

25 agency’s governing statutes or regulations, with the goal 


jbell on DSK7SPTVN1PROD with BILLS
29 

•HR 2122 IH

1 of minimizing the potential for uncertainty and litigation 

2 arising from such uncertainty. 

3 ‘‘(c) The Administrator of the Office of Information 

4 and Regulatory Affairs shall have authority to issue guide5 lines for use by the agencies in the issuance of major guid6 ance and other guidance. Such guidelines shall assure that 

7 each agency avoids issuing guidance documents that are 

8 inconsistent or incompatible with, or duplicative of, the 

9 law, its other regulations, or the regulations of other Fed10 eral agencies and drafts its guidance documents to be sim11 ple and easy to understand, with the goal of minimizing 

12 the potential for uncertainty and litigation arising from 

13 such uncertainty.’’. 

14 (b) CLERICAL AMENDMENT.—The table of sections 

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

16 by inserting after the item relating to section 553 the fol17 lowing new item: 

‘‘553a. Agency guidance; procedures to issue major guidance; authority to issue 

guidelines for issuance of guidance.’’. 

18 SEC. 5. HEARINGS; PRESIDING EMPLOYEES; POWERS AND 

19 DUTIES; BURDEN OF PROOF; EVIDENCE; 

20 RECORD AS BASIS OF DECISION. 

21 Section 556 of title 5, United States Code, is amend22 ed by striking subsection (e) and inserting the following: 

23 ‘‘(e)(1) The transcript of testimony and exhibits, to24 gether with all papers and requests filed in the proceeding, 


jbell on DSK7SPTVN1PROD with BILLS
30 

•HR 2122 IH

1 constitutes the exclusive record for decision in accordance 

2 with section 557 and shall be made available to the parties 

3 and the public by electronic means and, upon payment of 

4 lawfully prescribed costs, otherwise. When an agency deci5 sion rests on official notice of a material fact not appear6 ing in the evidence in the record, a party is entitled, on 

7 timely request, to an opportunity to show the contrary. 

8 ‘‘(2) Notwithstanding paragraph (1) of this sub9 section, in a proceeding held under this section pursuant 

10 to section 553(d)(4) or 553(e), the record for decision 

11 shall also include any information that is part of the 

12 record of proceedings under section 553. 

13 ‘‘(f) When an agency conducts rule making under this 

14 section and section 557 directly after concluding pro15 ceedings upon an advance notice of proposed rule making 

16 under section 553(c), the matters to be considered and 

17 determinations to be made shall include, among other rel18 evant matters and determinations, the matters and deter19 minations described in subsections (b) and (f) of section 

20 553. 

21 ‘‘(g) Upon receipt of a petition for a hearing under 

22 this section, the agency shall grant the petition in the case 

23 of any major rule, unless the agency reasonably deter24 mines that a hearing would not advance consideration of 

25 the rule or would, in light of the need for agency action, 


jbell on DSK7SPTVN1PROD with BILLS
31 

•HR 2122 IH

1 unreasonably delay completion of the rule making. The 

2 agency shall publish its decision to grant or deny the peti3 tion when it renders the decision, including an explanation 

4 of the grounds for decision. The information contained in 

5 the petition shall in all cases be included in the adminis6 trative record. This subsection shall not apply to rule mak7 ings that concern monetary policy proposed or imple8 mented by the Board of Governors of the Federal Reserve 

9 System or the Federal Open Market Committee.’’. 

10 SEC. 6. ACTIONS REVIEWABLE. 

11 Section 704 of title 5, United States Code, is amend12 ed— 

13 (1) by striking ‘‘Agency action made’’ and in14 serting ‘‘(a) Agency action made’’; and 

15 (2) by adding at the end the following: ‘‘Denial 

16 by an agency of a correction request or, where ad17 ministrative appeal is provided for, denial of an ap18 peal, under an administrative mechanism described 

19 in subsection (b)(2)(B) of the Information Quality 

20 Act, or the failure of an agency within 90 days to 

21 grant or deny such request or appeal, shall be final 

22 action for purposes of this section. 

23 ‘‘(b) Other than in cases involving interests of na24 tional security, notwithstanding subsection (a) of this sec25 tion, upon the agency’s publication of an interim rule withVerDate Mar 15 2010 02:33 May 31, 2013 Jkt 029200 PO 00000 Frm 00031 Fmt 6652 Sfmt 6201 E:\BILLS\H2122.IH H2122

jbell on DSK7SPTVN1PROD with BILLS
32 

•HR 2122 IH

1 out compliance with section 553(c), (d), or (e) or require2 ments to render final determinations under subsection (f) 

3 of section 553, an interested party may seek immediate 

4 judicial review under this chapter of the agency’s deter5 mination to adopt such rule on an interim basis. Review 

6 shall be limited to whether the agency abused its discre7 tion to adopt the interim rule without compliance with sec8 tion 553(c), (d), or (e) or without rendering final deter9 minations under subsection (f) of section 553.’’. 

10 SEC. 7. SCOPE OF REVIEW. 

11 Section 706 of title 5, United States Code is amend12 ed— 

13 (1) by striking ‘‘To the extent necessary’’ and 

14 inserting ‘‘(a) To the extent necessary’’; 

15 (2) in paragraph (2)(A) of subsection (a) (as 

16 designated by paragraph (1) of this section), by in17 serting after ‘‘in accordance with law’’ the following: 

18 ‘‘(including the Information Quality Act)’’; and 

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

20 ‘‘(b) The court shall not defer to the agency’s— 

21 ‘‘(1) interpretation of an agency rule if the 

22 agency did not comply with the procedures of section 

23 553 or sections 556–557 of chapter 5 of this title to 

24 issue the interpretation; 


jbell on DSK7SPTVN1PROD with BILLS
33 

•HR 2122 IH

1 ‘‘(2) determination of the costs and benefits or 

2 other economic or risk assessment of the action, if 

3 the agency failed to conform to guidelines on such 

4 determinations and assessments established by the 

5 Administrator of the Office of Information and Reg6 ulatory Affairs under section 553(k); 

7 ‘‘(3) determinations made in the adoption of an 

8 interim rule; or 

9 ‘‘(4) guidance. 

10 ‘‘(c) The court shall review agency denials of petitions 

11 under section 553(e)(6) or any other petition for a hearing 

12 under sections 556 and 557 for abuse of agency discre13 tion.’’. 

14 SEC. 8. ADDED DEFINITION. 

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

16 amended— 

17 (1) in paragraph (1), by striking ‘‘and’’ at the 

18 end; 

19 (2) in paragraph (2), by striking the period at 

20 the end, and inserting ‘‘; and’’; and 

21 (3) by adding at the end the following: 

22 ‘‘(3) ‘substantial evidence’ means such relevant 

23 evidence as a reasonable mind might accept as ade24 quate to support a conclusion in light of the record 

25 considered as a whole, taking into account whatever 


jbell on DSK7SPTVN1PROD with BILLS
34 

•HR 2122 IH

1 in the record fairly detracts from the weight of the 

2 evidence relied upon by the agency to support its de3 cision.’’. 

4 SEC. 9. EFFECTIVE DATE. 

5 The amendments made by this Act to— 

6 (1) sections 553, 556, and 704 of title 5, 

7 United States Code; 

8 (2) subsection (b) of section 701 of such title; 

9 (3) paragraphs (2) and (3) of section 706(b) of 

10 such title; and 

11 (4) subsection (c) of section 706 of such title, 

12 shall not apply to any rule makings pending or completed 

13 on the date of enactment of this Act. 

Æ 


jbell on DSK7SPTVN1PROD with BILLS