IB 

Union Calendar No. 172 

113TH CONGRESS 

1ST SESSION H. R. 2122 

[Report No. 113–237] 

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 

SEPTEMBER 28, 2013 

Additional sponsors: Mr. GRIFFIN of Arkansas, Mr. BARR, Mr. SESSIONS, Mr. 

FRANKS of Arizona, Mr. HOLDING, Mr. KLINE, Mrs. NOEM, Mrs. BACHMANN, Mr. TERRY, Mr. CALVERT, Mr. COTTON, Mr. SMITH of Missouri, 

Mr. CRAWFORD, Mr. ISSA, Mr. MARCHANT, Mr. RODNEY DAVIS of Illinois, and Mr. GIBBS

SEPTEMBER 28, 2013 

Committed to the Committee of the Whole House on the State of the Union 

and ordered to be printed 


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A BILL 

To reform the process by which Federal agencies analyze 

and formulate new regulations and guidance documents. 


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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; 

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

12 the end and inserting a semicolon; and 

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

14 ‘‘(15) ‘major rule’ means any rule that the Ad15 ministrator of the Office of Information and Regu16 latory Affairs determines is likely to impose— 

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

18 $100,000,000 or more, adjusted annually for 

19 inflation; 

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

21 consumers, individual industries, Federal, 

22 State, local, or tribal government agencies, or 

23 geographic regions; 

24 ‘‘(C) significant adverse effects on competi25 tion, employment, investment, productivity, inVerDate Mar 15 2010 22:30 Sep 28, 2013 Jkt 029200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H2122.RH H2122

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1 novation, or on the ability of United States2 based enterprises to compete with foreign-based 

3 enterprises in domestic and export markets; or 

4 ‘‘(D) significant impacts on multiple sec5 tors of the economy; 

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

7 the Administrator of the Office of Information and 

8 Regulatory Affairs determines is likely to impose an 

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

10 more, adjusted annually for inflation; 

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

12 general applicability and future effect, other than a 

13 regulatory action, that sets forth a policy on a statu14 tory, regulatory or technical issue or an interpreta15 tion of a statutory or regulatory issue; 

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

17 Administrator of the Office of Information and Reg18 ulatory Affairs finds is likely to lead to— 

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

20 $100,000,000 or more, adjusted annually for 

21 inflation; 

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

23 consumers, individual industries, Federal, 

24 State, local or tribal government agencies, or 

25 geographic regions; 


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1 ‘‘(C) significant adverse effects on competi2 tion, employment, investment, productivity, in3 novation, or on the ability of United States4 based enterprises to compete with foreign-based 

5 enterprises in domestic and export markets; or 

6 ‘‘(D) significant impacts on multiple sec7 tors of the economy; 

8 ‘‘(19) the ‘Information Quality Act’ means sec9 tion 515 of Public Law 106–554, the Treasury and 

10 General Government Appropriations Act for Fiscal 

11 Year 2001, and guidelines issued by the Adminis12 trator of the Office of Information and Regulatory 

13 Affairs or other agencies pursuant to the Act; and 

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

15 Affairs’ means the office established under section 

16 3503 of chapter 35 of title 44 and any successor to 

17 that office.’’. 

18 SEC. 3. RULE MAKING. 

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

20 amended by striking ‘‘(a) This section applies’’ and insert21 ing ‘‘(a) APPLICABILITY.—This section applies’’. 

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

23 amended by striking subsections (b) through (e) and in24 serting the following: 


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

2 making, an agency shall make all preliminary and final 

3 factual determinations based on evidence and consider, in 

4 addition to other applicable considerations, the following: 

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

6 may be proposed, including whether a rule making 

7 is required by statute, and if so, whether by a spe8 cific date, or whether the agency has discretion to 

9 commence a rule making. 

10 ‘‘(2) Other statutory considerations applicable 

11 to whether the agency can or should propose a rule 

12 or undertake other agency action. 

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

14 problem the agency may address with a rule (includ15 ing the degree and nature of risks the problem poses 

16 and the priority of addressing those risks compared 

17 to other matters or activities within the agency’s ju18 risdiction), whether the problem warrants new agen19 cy action, and the countervailing risks that may be 

20 posed by alternatives for new agency action. 

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

22 contributed to the problem the agency may address 

23 with a rule and whether those rules could be amend24 ed or rescinded to address the problem in whole or 

25 part. 


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

2 or other response identified by the agency or inter3 ested persons, including not only responses that 

4 mandate particular conduct or manners of compli5 ance, but also— 

6 ‘‘(A) the alternative of no Federal re7 sponse; 

8 ‘‘(B) amending or rescinding existing 

9 rules; 

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

11 tribal regulatory action or other responses that 

12 could be taken in lieu of agency action; and 

13 ‘‘(D) potential responses that— 

14 ‘‘(i) specify performance objectives 

15 rather than conduct or manners of compli16 ance; 

17 ‘‘(ii) establish economic incentives to 

18 encourage desired behavior; 

19 ‘‘(iii) provide information upon which 

20 choices can be made by the public; or 

21 ‘‘(iv) incorporate other innovative al22 ternatives rather than agency actions that 

23 specify conduct or manners of compliance. 

24 ‘‘(6) Notwithstanding any other provision of 

25 law— 


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1 ‘‘(A) the potential costs and benefits asso2 ciated with potential alternative rules and other 

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

4 including direct, indirect, and cumulative costs 

5 and benefits and estimated impacts on jobs (in6 cluding an estimate of the net gain or loss in 

7 domestic jobs), economic growth, innovation, 

8 and economic competitiveness; 

9 ‘‘(B) means to increase the cost-effective10 ness of any Federal response; and 

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

12 predictability, lower costs of enforcement and 

13 compliance (to government entities, regulated 

14 entities, and the public), and flexibility. 

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

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

17 INVOLVING NOVEL LEGAL OR POLICY ISSUES.—In the 

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

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

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

21 a notice of proposed rule making is published in the Fed22 eral Register, an agency shall publish advance notice of 

23 proposed rule making in the Federal Register. In pub24 lishing such advance notice, the agency shall— 


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

2 a minimum— 

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

4 problem the agency may address with a rule, in5 cluding data and other evidence and informa6 tion on which the agency expects to rely for the 

7 proposed rule; 

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

9 may be proposed, including whether a rule mak10 ing is required by statute, and if so, whether by 

11 a specific date, or whether the agency has dis12 cretion to commence a rule making; 

13 ‘‘(C) preliminary information available to 

14 the agency concerning the other considerations 

15 specified in subsection (b); and 

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

17 novel legal or policy issue arising out of statu18 tory mandates, the nature of and potential rea19 sons to adopt the novel legal or policy position 

20 upon which the agency may base a proposed 

21 rule; 

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

23 from interested persons concerning the information 

24 and issues addressed in the advance notice; and 


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

2 days for interested persons to submit such written 

3 data, views, or argument to the agency. 

4 ‘‘(d) NOTICES OF PROPOSED RULE MAKING; DETER5 MINATIONS OF OTHER AGENCY COURSE.—(1) Before it 

6 determines to propose a rule, and following completion of 

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

8 shall consult with the Administrator of the Office of Infor9 mation and Regulatory Affairs. If the agency thereafter 

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

11 notice of proposed rule making, which shall include— 

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

13 of public rule making proceedings; 

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

15 which the rule is proposed; 

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

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

18 agency on the subject and issues of the proposed 

19 rule, including but not limited to— 

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

21 the agency concerning the considerations speci22 fied in subsection (b); 

23 ‘‘(ii) a summary of additional information 

24 the agency provided to and obtained from inter25 ested persons under subsection (c); 


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

2 assessment or regulatory impact analysis per3 formed by the agency; and 

4 ‘‘(iv) information specifically identifying all 

5 data, studies, models, and other evidence or in6 formation considered or used by the agency in 

7 connection with its determination to propose 

8 the rule; 

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

10 need for the rule based on the information described 

11 under subparagraph (D); and 

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

13 is required by statute; 

14 ‘‘(F) a reasoned preliminary determination that 

15 the benefits of the proposed rule meet the relevant 

16 statutory objectives and justify the costs of the pro17 posed rule (including all costs to be considered under 

18 subsection (b)(6)), based on the information de19 scribed under subparagraph (D); 

20 ‘‘(G) a discussion of— 

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

22 and other alternative responses, considered by 

23 the agency under subsection (b); 


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1 ‘‘(ii) the costs and benefits of those alter2 natives (including all costs to be considered 

3 under subsection (b)(6)); 

4 ‘‘(iii) whether those alternatives meet rel5 evant statutory objectives; and 

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

7 of those alternatives; and 

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

9 have created or contributed to the problem the agen10 cy seeks to address with the proposed rule; and 

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

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

13 All information provided to or considered by the agency, 

14 and steps to obtain information by the agency, in connec15 tion with its determination to propose the rule, including 

16 any preliminary risk assessment or regulatory impact 

17 analysis prepared by the agency and all other information 

18 prepared or described by the agency under subparagraph 

19 (D) and, at the discretion of the President or the Adminis20 trator of the Office of Information and Regulatory Affairs, 

21 information provided by that Office in consultations with 

22 the agency, shall be placed in the docket for the proposed 

23 rule and made accessible to the public by electronic means 

24 and otherwise for the public’s use when the notice of pro25 posed rule making is published. 


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

2 subsection (c) and determines thereafter not to propose 

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

4 Office of Information and Regulatory Affairs, publish a 

5 notice of determination of other agency course. A notice 

6 of determination of other agency course shall include in7 formation required by paragraph (1)(D) to be included in 

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

9 alternative response the agency determined to adopt. 

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

11 the agency makes a determination to amend or rescind 

12 an existing rule, the agency need not undertake additional 

13 proceedings under subsection (c) before it publishes a no14 tice of proposed rule making to amend or rescind the exist15 ing rule. 

16 All information provided to or considered by the agency, 

17 and steps to obtain information by the agency, in connec18 tion with its determination of other agency course, includ19 ing but not limited to any preliminary risk assessment or 

20 regulatory impact analysis prepared by the agency and all 

21 other information that would be required to be prepared 

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

23 agency had determined to publish a notice of proposed rule 

24 making and, at the discretion of the President or the Ad25 ministrator of the Office of Information and Regulatory 


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1 Affairs, information provided by that Office in consulta2 tions with the agency, shall be placed in the docket for 

3 the determination and made accessible to the public by 

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

5 the notice of determination is published. 

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

7 by this section, the agency shall provide interested persons 

8 an opportunity to participate in the rule making through 

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

10 without opportunity for oral presentation, except that— 

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

12 (4)(B) or subsection (e), opportunity for oral presen13 tation shall be provided pursuant to that require14 ment; or 

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

16 this section rules are required by statute or at the 

17 discretion of the agency to be made on the record 

18 after opportunity for an agency hearing, sections 

19 556 and 557 shall apply, and paragraph (4), the re20 quirements of subsection (e) to receive comment out21 side of the procedures of sections 556 and 557, and 

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

23 apply. 

24 The agency shall provide not fewer than 60 days for inter25 ested persons to submit written data, views, or argument 


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1 (or 120 days in the case of a proposed major or high2 impact rule). 

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

4 proposed rule making, a member of the public may peti5 tion for a hearing in accordance with section 556 to deter6 mine whether any evidence or other information upon 

7 which the agency bases the proposed rule fails to comply 

8 with the Information Quality Act. 

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

10 determine without further process to exclude from the rule 

11 making the evidence or other information that is the sub12 ject of the petition and, if appropriate, withdraw the pro13 posed rule. The agency shall promptly publish any such 

14 determination. 

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

16 the procedures of clause (i), it shall grant any such peti17 tion that presents a prima facie case that evidence or other 

18 information upon which the agency bases the proposed 

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

20 the requested hearing not later than 30 days after receipt 

21 of the petition, provide a reasonable opportunity for cross22 examination at the hearing, and decide the issues pre23 sented by the petition not later than 60 days after receipt 

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

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


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

2 disposition of issues considered and decided or determined 

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

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

5 an agency’s determination to withdraw a proposed rule 

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

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

8 paragraph shall not preclude judicial review of any claim 

9 based on the Information Quality Act under chapter 7 of 

10 this title. 

11 ‘‘(e) HEARINGS FOR HIGH-IMPACT RULES.—Fol12 lowing notice of a proposed rule making, receipt of com13 ments on the proposed rule, and any hearing held under 

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

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

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

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

18 The agency shall provide a reasonable opportunity for 

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

20 limited to the following issues of fact, except that partici21 pants at the hearing other than the agency may waive de22 termination of any such issue: 

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

24 predicate for the rule is supported by the evidence. 


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1 ‘‘(2) Whether there is an alternative to the pro2 posed rule that would achieve the relevant statutory 

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

4 considered under subsection (b)(6)) than the pro5 posed rule. 

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

7 proposed rule that would achieve the relevant statu8 tory objectives at a lower cost than the proposed 

9 rule, which alternative would achieve the relevant 

10 statutory objectives at the lowest cost. 

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

12 a rule that is more costly than the least costly alter13 native that would achieve the relevant statutory ob14 jectives (including all costs to be considered under 

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

16 more costly rule exceed the additional costs of the 

17 more costly rule. 

18 ‘‘(5) Whether the evidence and other informa19 tion upon which the agency bases the proposed rule 

20 meets the requirements of the Information Quality 

21 Act. 

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

23 has participated in the rule making, other issues rel24 evant to the rule making, unless the agency deter25 mines that consideration of the issues at the hearing 


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1 would not advance consideration of the rule or 

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

3 action, unreasonably delay completion of the rule 

4 making. An agency shall grant or deny a petition 

5 under this paragraph within 30 days of its receipt 

6 of the petition. 

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

8 subsection or sections 556 and 557, the agency shall pub9 lish in the Federal Register a notice specifying the pro10 posed rule to be considered at such hearing, the issues 

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

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

13 not later than 15 days before a hearing held under sub14 section (d)(4)(B). 

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

16 rule only following consultation with the Administrator of 

17 the Office of Information and Regulatory Affairs to facili18 tate compliance with applicable rule making requirements. 

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

20 of the best reasonably obtainable scientific, technical, eco21 nomic, and other evidence and information concerning the 

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

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

24 agency shall adopt the least costly rule considered during 


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

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

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

4 than the least costly alternative that would achieve the rel5 evant statutory objectives only if the additional benefits 

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

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

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

9 within the scope of the statutory provision authorizing the 

10 rule. 

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

12 publish a notice of final rule making. The notice shall in13 clude— 

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

15 basis and purpose; 

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

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

18 seeks to address with the rule, including a statement 

19 of whether a rule is required by statute and a sum20 mary of any final risk assessment or regulatory im21 pact analysis prepared by the agency; 

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

23 that the benefits of the rule meet the relevant statu24 tory objectives and justify the rule’s costs (including 

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


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

2 not to adopt any of the alternatives to the proposed 

3 rule considered by the agency during the rule mak4 ing, including— 

5 ‘‘(i) the agency’s reasoned final determina6 tion that no alternative considered achieved the 

7 relevant statutory objectives with lower costs 

8 (including all costs to be considered under sub9 section (b)(6)) than the rule; or 

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

11 that its adoption of a more costly rule complies 

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

13 ‘‘(E) the agency’s reasoned final determina14 tion— 

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

16 contributed to the problem the agency seeks to 

17 address with the rule; or 

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

19 contributed to the problem the agency seeks to 

20 address with the rule, and, if so— 

21 ‘‘(I) why amendment or rescission of 

22 such existing rules is not alone sufficient 

23 to respond to the problem; and 


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1 ‘‘(II) whether and how the agency in2 tends to amend or rescind the existing rule 

3 separate from adoption of the rule; 

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

5 that the evidence and other information upon which 

6 the agency bases the rule complies with the Informa7 tion Quality Act; and 

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

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

10 every ten years to determine whether, based upon 

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

12 the rule is in fact achieving statutory objectives, 

13 whether the rule’s benefits continue to justify its 

14 costs, and whether the rule can be modified or re15 scinded to reduce costs while continuing to achieve 

16 statutory objectives; and 

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

18 clause (i) of this subparagraph shall take into ac19 count the factors and criteria set forth in sub20 sections (b) through (f) of section 553 of this title. 

21 All information considered by the agency in connection 

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

23 President or the Administrator of the Office of Informa24 tion and Regulatory Affairs, information provided by that 

25 Office in consultations with the agency, shall be placed 


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

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

3 ‘‘(g) EXCEPTIONS FROM NOTICE AND HEARING RE4 QUIREMENTS.—(1) Except when notice or hearing is re5 quired by statute, the following do not apply to interpre6 tive rules, general statements of policy, or rules of agency 

7 organization, procedure, or practice: 

8 ‘‘(A) Subsections (c) through (e). 

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

10 (f). 

11 ‘‘(C) Subparagraphs (B) through (H) of sub12 section (f)(4). 

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

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

15 statement of reasons therefor in the rules issued) that 

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

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

18 section before the issuance of an interim rule is impracti19 cable or contrary to the public interest, including interests 

20 of national security, such subsections or requirements to 

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

22 adoption of an interim rule. 

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

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

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1 sections (d) through (f) of this section immediately upon 

2 publication of the interim rule, shall treat the publication 

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

4 rule making and shall not be required to issue supple5 mental notice other than to complete full compliance with 

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

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

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

9 making under subsections (d) through (f) of this sub10 section and take final action to adopt a final rule or re11 scind the interim rule. If the agency fails to take timely 

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

13 of law. 

14 ‘‘(C) Other than in cases involving interests of na15 tional security, upon the agency’s publication of an interim 

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

17 or requirements to render final determinations under sub18 section (f) of this section, an interested party may seek 

19 immediate judicial review under chapter 7 of this title of 

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

21 record on such review shall include all documents and in22 formation considered by the agency and any additional in23 formation presented by a party that the court determines 

24 necessary to consider to assure justice. 


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1 ‘‘(3) When the agency for good cause finds (and in2 corporates the finding and a brief statement of reasons 

3 therefor in the rules issued) that notice and public proce4 dure thereon are unnecessary, including because agency 

5 rule making is undertaken only to correct a de minimis 

6 technical or clerical error in a previously issued rule or 

7 for other noncontroversial purposes, the agency may pub8 lish a rule without compliance with subsections (c), (d), 

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

10 significant adverse comment within 60 days after publica11 tion of the rule, it shall treat the notice of the rule as 

12 a notice of proposed rule making and complete rule mak13 ing in compliance with subsections (d) and (f). 

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

15 When a hearing is required under subsection (e) or is oth16 erwise required by statute or at the agency’s discretion 

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

18 the requirements of sections 556 and 557 in addition to 

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

20 in providing notice of the rule’s adoption. 

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

22 publication or service of a substantive final or interim rule 

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

24 date of the rule, except— 


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1 ‘‘(1) a substantive rule which grants or recog2 nizes an exemption or relieves a restriction; 

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

4 or 

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

6 good cause found and published with the rule. 

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

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

9 amendment, or repeal of a rule. 

10 ‘‘(k) RULE MAKING GUIDELINES.—(1)(A) The Ad11 ministrator of the Office of Information and Regulatory 

12 Affairs shall establish guidelines for the assessment, in13 cluding quantitative and qualitative assessment, of the 

14 costs and benefits of proposed and final rules and other 

15 economic issues or issues related to risk that are relevant 

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

17 analysis required by such guidelines shall be commensu18 rate, in the Administrator’s determination, with the eco19 nomic impact of the rule. 

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

21 techniques to quantify and evaluate anticipated present 

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

23 as accurately as possible, the Administrator of the Office 

24 of Information and Regulatory Affairs shall regularly upVerDate Mar 15 2010 22:30 Sep 28, 2013 Jkt 029200 PO 00000 Frm 00025 Fmt 6652 Sfmt 6201 E:\BILLS\H2122.RH H2122

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1 date guidelines established under paragraph (1)(A) of this 

2 subsection. 

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

4 and Regulatory Affairs shall also issue guidelines to pro5 mote coordination, simplification and harmonization of 

6 agency rules during the rule making process and other7 wise. Such guidelines shall assure that each agency avoids 

8 regulations that are inconsistent or incompatible with, or 

9 duplicative of, its other regulations and those of other 

10 Federal agencies and drafts its regulations to be simple 

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

12 potential for uncertainty and litigation arising from such 

13 uncertainty. 

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

15 the Administrator of the Office of Information and Regu16 latory Affairs shall— 

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

18 to ensure that rule makings conducted in whole or 

19 in part under procedures specified in provisions of 

20 law other than those of subchapter II of this title 

21 conform to the fullest extent allowed by law with the 

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

23 ‘‘(B) issue guidelines for the conduct of hear24 ings under subsections 553(d)(4) and 553(e) of this 

25 section, including to assure a reasonable opportunity 


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1 for cross-examination. Each agency shall adopt regu2 lations for the conduct of hearings consistent with 

3 the guidelines issued under this subparagraph. 

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

5 and Regulatory Affairs shall issue guidelines pursuant to 

6 the Information Quality Act to apply in rule making pro7 ceedings under sections 553, 556, and 557 of this title. 

8 In all cases, such guidelines, and the Administrator’s spe9 cific determinations regarding agency compliance with 

10 such guidelines, shall be entitled to judicial deference. 

11 ‘‘(l) INCLUSION IN THE RECORD OF CERTAIN DOCU12 MENTS AND INFORMATION.—The agency shall include in 

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

14 electronic means and otherwise, all documents and infor15 mation prepared or considered by the agency during the 

16 proceeding, including, at the discretion of the President 

17 or the Administrator of the Office of Information and Reg18 ulatory Affairs, documents and information communicated 

19 by that Office during consultation with the Agency. 

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

21 subsection (b)(6), subparagraphs (F) and (G) of sub22 section (d)(1), subsection (e), subsection (f)(3), and sub23 paragraphs (C) and (D) of subsection (f)(5) shall apply 

24 to rule makings that concern monetary policy proposed or 


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1 implemented by the Board of Governors of the Federal 

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

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

4 GUIDANCE; PRESIDENTIAL AUTHORITY TO 

5 ISSUE GUIDELINES FOR ISSUANCE OF GUID6 ANCE. 

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

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

9 following new section: 

10 ‘‘§ 553a. Agency guidance; procedures to issue major 

11 guidance; authority to issue guidelines 

12 for issuance of guidance 

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

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

15 statutory mandates, an agency shall— 

16 ‘‘(1) make and document a reasoned determina17 tion that— 

18 ‘‘(A) assures that such guidance is under19 standable and complies with relevant statutory 

20 objectives and regulatory provisions (including 

21 any statutory deadlines for agency action); 

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

23 which the agency will base the guidance; 

24 ‘‘(C) identifies the costs and benefits (in25 cluding all costs to be considered during a rule 


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

2 conduct conforming to such guidance and 

3 assures that such benefits justify such costs; 

4 and 

5 ‘‘(D) describes alternatives to such guid6 ance and their costs and benefits (including all 

7 costs to be considered during a rule making 

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

9 why the agency rejected those alternatives; and 

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

11 of Information and Regulatory Affairs on the 

12 issuance of such guidance to assure that the guid13 ance is reasonable, understandable, consistent with 

14 relevant statutory and regulatory provisions and re15 quirements or practices of other agencies, does not 

16 produce costs that are unjustified by the guidance’s 

17 benefits, and is otherwise appropriate. 

18 Upon issuing major guidance, or guidance that involves 

19 a novel legal or policy issue arising out of statutory man20 dates, the agency shall publish the documentation required 

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

22 ‘‘(b) Agency guidance— 

23 ‘‘(1) is not legally binding and may not be re24 lied upon by an agency as legal grounds for agency 

25 action; 


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1 ‘‘(2) shall state in a plain, prominent and per2 manent manner that it is not legally binding; and 

3 ‘‘(3) shall, at the time it is issued or upon re4 quest, be made available by the issuing agency to in5 terested persons and the public by electronic means 

6 and otherwise. 

7 Agencies shall avoid the issuance of guidance that is in8 consistent or incompatible with, or duplicative of, the 

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

10 of minimizing the potential for uncertainty and litigation 

11 arising from such uncertainty. 

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

13 and Regulatory Affairs shall have authority to issue guide14 lines for use by the agencies in the issuance of major guid15 ance and other guidance. Such guidelines shall assure that 

16 each agency avoids issuing guidance documents that are 

17 inconsistent or incompatible with, or duplicative of, the 

18 law, its other regulations, or the regulations of other Fed19 eral agencies and drafts its guidance documents to be sim20 ple and easy to understand, with the goal of minimizing 

21 the potential for uncertainty and litigation arising from 

22 such uncertainty.’’. 

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

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


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1 by inserting after the item relating to section 553 the fol2 lowing new item: 

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

guidelines for issuance of guidance.’’. 

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

4 DUTIES; BURDEN OF PROOF; EVIDENCE; 

5 RECORD AS BASIS OF DECISION. 

6 Section 556 of title 5, United States Code, is amend7 ed by striking subsection (e) and inserting the following: 

8 ‘‘(e)(1) The transcript of testimony and exhibits, to9 gether with all papers and requests filed in the proceeding, 

10 constitutes the exclusive record for decision in accordance 

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

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

13 lawfully prescribed costs, otherwise. When an agency deci14 sion rests on official notice of a material fact not appear15 ing in the evidence in the record, a party is entitled, on 

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

17 ‘‘(2) Notwithstanding paragraph (1) of this sub18 section, in a proceeding held under this section pursuant 

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

20 shall also include any information that is part of the 

21 record of proceedings under section 553. 

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

23 section and section 557 directly after concluding pro24 ceedings upon an advance notice of proposed rule making 


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

2 determinations to be made shall include, among other rel3 evant matters and determinations, the matters and deter4 minations described in subsections (b) and (f) of section 

5 553. 

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

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

8 of any major rule, unless the agency reasonably deter9 mines that a hearing would not advance consideration of 

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

11 unreasonably delay completion of the rule making. The 

12 agency shall publish its decision to grant or deny the peti13 tion when it renders the decision, including an explanation 

14 of the grounds for decision. The information contained in 

15 the petition shall in all cases be included in the adminis16 trative record. This subsection shall not apply to rule mak17 ings that concern monetary policy proposed or imple18 mented by the Board of Governors of the Federal Reserve 

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

20 SEC. 6. ACTIONS REVIEWABLE. 

21 Section 704 of title 5, United States Code, is amend22 ed— 

23 (1) by striking ‘‘Agency action made’’ and in24 serting ‘‘(a) Agency action made’’; and 


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

2 by an agency of a correction request or, where ad3 ministrative appeal is provided for, denial of an ap4 peal, under an administrative mechanism described 

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

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

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

8 action for purposes of this section. 

9 ‘‘(b) Other than in cases involving interests of na10 tional security, notwithstanding subsection (a) of this sec11 tion, upon the agency’s publication of an interim rule with12 out compliance with section 553(c), (d), or (e) or require13 ments to render final determinations under subsection (f) 

14 of section 553, an interested party may seek immediate 

15 judicial review under this chapter of the agency’s deter16 mination to adopt such rule on an interim basis. Review 

17 shall be limited to whether the agency abused its discre18 tion to adopt the interim rule without compliance with sec19 tion 553(c), (d), or (e) or without rendering final deter20 minations under subsection (f) of section 553.’’. 

21 SEC. 7. SCOPE OF REVIEW. 

22 Section 706 of title 5, United States Code is amend23 ed— 

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

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


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

2 designated by paragraph (1) of this section), by in3 serting after ‘‘in accordance with law’’ the following: 

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

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

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

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

8 agency did not comply with the procedures of section 

9 553 or sections 556–557 of chapter 5 of this title to 

10 issue the interpretation; 

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

12 other economic or risk assessment of the action, if 

13 the agency failed to conform to guidelines on such 

14 determinations and assessments established by the 

15 Administrator of the Office of Information and Reg16 ulatory Affairs under section 553(k); 

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

18 interim rule; or 

19 ‘‘(4) guidance. 

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

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

22 under sections 556 and 557 for abuse of agency discre23 tion.’’. 


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1 SEC. 8. ADDED DEFINITION. 

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

3 amended— 

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

5 end; 

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

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

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

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

10 evidence as a reasonable mind might accept as ade11 quate to support a conclusion in light of the record 

12 considered as a whole, taking into account whatever 

13 in the record fairly detracts from the weight of the 

14 evidence relied upon by the agency to support its de15 cision.’’. 

16 SEC. 9. EFFECTIVE DATE. 

17 The amendments made by this Act to— 

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

19 United States Code; 

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

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

22 such title; and 

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

24 shall not apply to any rule makings pending or completed 

25 on the date of enactment of this Act. 


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Union Calendar No. 172 

113TH CONGRESS 

1ST SESSION H. R. 2122 

[Report No. 113–237] 

A BILL 

To reform the process by which Federal agencies 

ance documents. analyze and formulate new regulations and guidSEPTEMBER 28, 2013 

Committed to the Committee of the Whole House on the 

State of the Union and ordered to be printed 


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