II 

112TH CONGRESS 

1ST SESSION S. 1606 

To reform the process by which Federal agencies analyze and formulate 

new regulations and guidance documents. 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 22, 2011 

Mr. PORTMAN (for himself, Mr. PRYOR, and Ms. COLLINS) 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. 

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 2011’’. 

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; 


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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) ‘guidance’ means an agency statement of 

5 general applicability and future effect, other than a 

6 regulatory action, that sets forth a policy on a statu7 tory, regulatory or technical issue or an interpreta8 tion of a statutory or regulatory issue; 

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

10 the Administrator of the Office of Information and 

11 Regulatory Affairs determines is likely to impose an 

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

13 more, adjusted annually for inflation; 

14 ‘‘(17) ‘Information Quality Act’ means section 

15 515 of Public Law 106–554, the Treasury and Gen16 eral Government Appropriations Act for Fiscal Year 

17 2001, and guidelines issued by the Administrator of 

18 the Office of Information and Regulatory Affairs or 

19 other agencies under that Act; 

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

21 Administrator of the Office of Information and Reg22 ulatory Affairs finds is likely to lead to— 

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

24 $100,000,000 or more, adjusted annually for 

25 inflation; 


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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, or on the ability of United States8 based enterprises to compete with foreign-based 

9 enterprises in domestic and export markets; 

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

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

14 $100,000,000 or more, adjusted annually for 

15 inflation; 

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

17 consumers, individual industries, Federal, 

18 State, local, or tribal government agencies, or 

19 geographic regions; or 

20 ‘‘(C) significant adverse effects on competi21 tion, employment, investment, productivity, in22 novation, or on the ability of United States23 based enterprises to compete with foreign-based 

24 enterprises in domestic and export markets; and 


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1 ‘‘(20) ‘Office of Information and Regulatory Af2 fairs’ means the office established under section 

3 3503 of chapter 35 of title 44 and any successor to 

4 that office.’’. 

5 SEC. 3. RULEMAKING. 

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

7 amended by striking ‘‘(a) This section applies’’ and insert8 ing ‘‘(a) APPLICABILITY.—This section applies’’. 

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

10 amended by striking subsections (b) through (e) and in11 serting the following: 

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

13 making, an agency shall make all preliminary and final 

14 determinations based on evidence and consider, in addition 

15 to other applicable considerations, the following: 

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

17 may be proposed, including whether a rule making 

18 is required by statute, and if so, whether by a spe19 cific date, or whether the agency has discretion to 

20 commence a rule making. 

21 ‘‘(2) Other statutory considerations applicable 

22 to whether the agency can or should propose a rule 

23 or undertake other agency action. 

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

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1 ing the degree and nature of risks the problem poses 

2 and the priority of addressing those risks compared 

3 to other matters or activities within the jurisdiction 

4 of the agency), whether the problem warrants new 

5 agency action, and the countervailing risks that may 

6 be posed by alternatives for new agency action. 

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

8 contributed to the problem the agency may address 

9 with a rule and whether those rules could be amend10 ed or rescinded to address the problem in whole or 

11 part. 

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

13 or other response identified by the agency or inter14 ested persons, including not only responses that 

15 mandate particular conduct or manners of compli16 ance, but also— 

17 ‘‘(A) the alternative of no Federal re18 sponse; 

19 ‘‘(B) amending or rescinding existing 

20 rules; 

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

22 tribal regulatory action or other responses that 

23 could be taken instead of agency action; and 

24 ‘‘(D) potential responses that— 


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1 ‘‘(i) specify performance objectives 

2 rather than conduct or manners of compli3 ance; 

4 ‘‘(ii) establish economic incentives to 

5 encourage desired behavior; 

6 ‘‘(iii) provide information upon which 

7 choices can be made by the public; or 

8 ‘‘(iv) incorporate other innovative al9 ternatives rather than agency actions that 

10 specify conduct or manners of compliance. 

11 ‘‘(6) Notwithstanding any other provision of 

12 law— 

13 ‘‘(A) the potential costs and benefits asso14 ciated with potential alternative rules and other 

15 responses considered under paragraph (5), in16 cluding direct, indirect, and cumulative costs 

17 and benefits and estimated impacts on jobs, 

18 economic growth, innovation, and economic 

19 competitiveness; 

20 ‘‘(B) the means to increase the cost-effec21 tiveness of any Federal response; and 

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

23 predictability, lower costs of enforcement and 

24 compliance (to government entities, regulated 

25 entities, and the public), and flexibility. 


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

2 FOR MAJOR RULES AND HIGH-IMPACT RULES.— 

3 ‘‘(1) In the case of a rule making for a major 

4 rule or high-impact rule, not later than 90 days be5 fore a notice of proposed rule making is published 

6 in the Federal Register, an agency shall publish ad7 vance notice of proposed rule making in the Federal 

8 Register. 

9 ‘‘(2) In publishing advance notice under para10 graph (1), the agency shall— 

11 ‘‘(A) include a written statement identi12 fying, at a minimum— 

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

14 problem the agency may address with a 

15 rule, including data and other evidence and 

16 information on which the agency expects to 

17 rely for the proposed rule; 

18 ‘‘(ii) the legal authority under which a 

19 rule may be proposed, including whether a 

20 rule making is required by statute, and if 

21 so, whether by a specific date, or whether 

22 the agency has discretion to commence a 

23 rule making; and 


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1 ‘‘(iii) preliminary information avail2 able to the agency concerning the other 

3 considerations specified in subsection (b); 

4 ‘‘(B) solicit written data, views or argu5 ments from interested persons concerning the 

6 information and issues addressed in the ad7 vance notice; and 

8 ‘‘(C) provide for a period of not fewer than 

9 60 days for interested persons to submit such 

10 written data, views, or arguments to the agen11 cy. 

12 ‘‘(d) NOTICES OF PROPOSED RULE MAKING; DETER13 MINATIONS OF OTHER AGENCY COURSE.—Following com14 pletion of procedures under subsection (c), if applicable, 

15 and consultation with the Administrator of the Office of 

16 Information and Regulatory Affairs, the agency shall pub17 lish either a notice of proposed rule making or a deter18 mination of other agency course, in accordance with the 

19 following: 

20 ‘‘(1) A notice of proposed rule making shall in21 clude— 

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

23 nature of public rule making proceedings; 

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

25 which the rule is proposed; 


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

2 ‘‘(D) a description of information known to 

3 the agency on the subject and issues of the pro4 posed rule, including— 

5 ‘‘(i) a summary of information known 

6 to the agency concerning the consider7 ations specified in subsection (b); 

8 ‘‘(ii) a summary of additional infor9 mation the agency provided to and ob10 tained from interested persons under sub11 section (c); and 

12 ‘‘(iii) information specifically identi13 fying all data, studies, models, and other 

14 evidence or information considered or used 

15 by the agency in connection with the deter16 mination by the agency to propose the 

17 rule; 

18 ‘‘(E)(i) a reasoned preliminary determina19 tion of need for the rule based on the informa20 tion described under subparagraph (D); and 

21 ‘‘(ii) an additional statement of whether a 

22 rule is required by statute; 

23 ‘‘(F) a reasoned preliminary determination 

24 that the benefits of the proposed rule meet the 

25 relevant statutory objectives and justify the 


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1 costs of the proposed rule, including all costs to 

2 be considered under subsection (b)(6), based on 

3 the information described under subparagraph 

4 (D); 

5 ‘‘(G) a discussion of— 

6 ‘‘(i) the alternatives to the proposed 

7 rule, and other alternative responses, con8 sidered by the agency under subsection (b); 

9 ‘‘(ii) the costs and benefits of those 

10 alternatives, including all costs to be con11 sidered under subsection (b)(6); 

12 ‘‘(iii) whether those alternatives meet 

13 relevant statutory objectives; and 

14 ‘‘(iv) why the agency did not propose 

15 any of those alternatives; and 

16 ‘‘(H)(i) a statement of whether existing 

17 rules have created or contributed to the prob18 lem the agency seeks to address with the pro19 posed rule; and 

20 ‘‘(ii) if so, whether or not the agency pro21 poses to amend or rescind any such rules, and 

22 why. 

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1 cluding all information described by the agency 

2 under subparagraph (D) and, at the discretion of 

3 the President or the Administrator of the Office of 

4 Information and Regulatory Affairs, information 

5 provided by that Office in consultations with the 

6 agency, shall be placed in the docket for the pro7 posed rule and made accessible to the public for the 

8 public’s use when the notice of proposed rule making 

9 is published. 

10 ‘‘(2)(A) A notice of determination of other 

11 agency course shall include a description of the al12 ternative response the agency determined to adopt. 

13 ‘‘(B) If in its determination of other agency 

14 course the agency makes a determination to amend 

15 or rescind an existing rule, the agency need not un16 dertake additional proceedings under subsection (c) 

17 before the agency publishes a notice of proposed rule 

18 making to amend or rescind the existing rule. 

19 All information considered by the agency, and ac20 tions to obtain information by the agency, in connec21 tion with its determination of other agency course, 

22 including the information specified under paragraph 

23 (1)(D) and, at the discretion of the President or the 

24 Administrator of the Office of Information and Reg25 ulatory Affairs, information provided by that Office 


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1 in consultations with the agency, shall be placed in 

2 the docket for the determination and made acces3 sible to the public for the public’s use when the no4 tice of determination is published. 

5 ‘‘(3) After notice of proposed rule making re6 quired by this section, the agency shall provide inter7 ested persons an opportunity to participate in the 

8 rule making through submission of written data, 

9 views, or arguments with or without opportunity for 

10 oral presentation, except that— 

11 ‘‘(A) if a hearing is required under para12 graph (4)(B) or subsection (e), reasonable op13 portunity for oral presentation shall be provided 

14 under that requirement; or 

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

16 rules are required by statute or at the discre17 tion of the agency to be made on the record 

18 after opportunity for an agency hearing, sec19 tions 556 and 557 shall apply, and paragraph 

20 (4), requirements of subsection (e) to receive 

21 comment outside of the procedures of sections 

22 556 and 557, and the petition procedures of 

23 subsection (e)(6) shall not apply. 

24 The agency shall provide not fewer than 90 days for 

25 interested persons to submit written data, views, or 


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1 arguments (or 120 days in the case of a proposed 

2 major rule or high-impact rule). 

3 ‘‘(4)(A) Within 30 days after publication of no4 tice of proposed rule making, a member of the public 

5 may petition for a hearing in accordance with sec6 tion 556 to determine whether any evidence or other 

7 information upon which the agency bases the pro8 posed rule fails to comply with of the Information 

9 Quality Act. 

10 ‘‘(B)(i) The agency may, upon review of the pe11 tition, determine without further process to exclude 

12 from the rule making the evidence or other informa13 tion that is the subject of the petition and, if appro14 priate, withdraw the proposed rule. The agency shall 

15 promptly publish any such determination. 

16 ‘‘(ii) If the agency does not resolve the petition 

17 under the procedures of clause (i), it shall grant any 

18 such petition that presents a prima facie case that 

19 evidence or other information upon which the agency 

20 bases the proposed rule fails to comply with the In21 formation Quality Act, hold the requested hearing 

22 not later than 30 days after receipt of the petition, 

23 provide for a reasonable opportunity for cross-exam24 ination at the hearing, and decide the issues pre25 sented by the petition not later than 60 days after 


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1 receipt of the petition. The agency may deny any pe2 tition that it determines does not present such a 

3 prima facie case. 

4 ‘‘(C) There shall be no judicial review of the 

5 agency’s disposition of issues considered and decided 

6 or determined under subparagraph (B)(ii) until judi7 cial review of the agency’s final action. There shall 

8 be no judicial review of an agency’s determination to 

9 withdraw a proposed rule under subparagraph 

10 (B)(i). 

11 ‘‘(D) Failure to petition for a hearing under 

12 this paragraph shall not preclude judicial review of 

13 any claim based on the Information Quality Act 

14 under chapter 7 of this title. 

15 ‘‘(e) HEARINGS FOR HIGH-IMPACT RULES.—Fol16 lowing notice of a proposed rule making, receipt of com17 ments on the proposed rule, and any hearing held under 

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

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

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

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

22 The agency shall provide a reasonable opportunity for 

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

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1 pants at the hearing other than the agency may waive de2 termination of any such issue: 

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

4 predicate for the rule is supported by the evidence. 

5 ‘‘(2) Whether there is an alternative to the pro6 posed rule that would achieve the relevant statutory 

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

8 considered under subsection (b)(6)) than the pro9 posed rule. 

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

11 proposed rule that would achieve the relevant statu12 tory objectives at a lower cost than the proposed 

13 rule, which alternative would achieve the relevant 

14 statutory objectives at the lowest cost. 

15 ‘‘(4) If the agency proposes to adopt a rule that 

16 is more costly than the least costly alternative that 

17 would achieve the relevant statutory objectives (in18 cluding all costs to be considered under subsection 

19 (b)(6)), whether the additional benefits of the more 

20 costly rule exceed the additional costs of the more 

21 costly rule. 

22 ‘‘(5) Whether the evidence and other informa23 tion upon which the agency bases the proposed rule 

24 meets the requirements of the Information Quality 

25 Act. 


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

2 has participated in the rule making, other issues rel3 evant to the rule making, unless the agency deter4 mines that consideration of the issues at the hearing 

5 would not advance consideration of the rule or 

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

7 action, unreasonably delay completion of the rule 

8 making. An agency shall grant or deny a petition 

9 under this paragraph within 30 days after the re10 ceipt of the petition. 

11 No later than 45 days before any hearing held under 

12 this subsection or sections 556 and 557, the agency 

13 shall publish in the Federal Register a notice speci14 fying the proposed rule to be considered at such 

15 hearing, the issues to be considered at the hearing, 

16 and the time and place for such hearing, except that 

17 such notice may be issued not later than 15 days be18 fore a hearing held under subsection (d)(4)(B). 

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

20 rule only following consultation with the Administrator of 

21 the Office of Information and Regulatory Affairs to facili22 tate compliance with applicable rule making requirements. 

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

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1 nomic, and other evidence and information concerning the 

2 need for and consequences of the rule. 

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

4 agency shall adopt the least costly rule considered during 

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

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

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

8 than the least costly alternative that would achieve the rel9 evant statutory objectives only if— 

10 ‘‘(i) the additional benefits of the more costly 

11 rule justify its additional costs; and 

12 ‘‘(ii) the agency explains its reason for doing so 

13 based on interests of public health, safety or welfare 

14 (including protection of the environment) that are 

15 clearly within the scope of the statutory provision 

16 authorizing the rule. 

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

18 shall publish a notice of final rule making. The notice shall 

19 include— 

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

21 basis and purpose; 

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

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

24 seeks to address with the rule, including a statement 

25 of whether a rule is required by statute. 


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

2 that the benefits of the rule meet the relevant statu3 tory objectives and justify the rule’s costs (including 

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

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

6 not to adopt any of the alternatives to the proposed 

7 rule considered by the agency during the rule mak8 ing, including— 

9 ‘‘(i) the agency’s reasoned final determina10 tion that no alternative considered achieved the 

11 relevant statutory objectives with lower costs 

12 (including costs to be considered under sub13 section (b)(6)) than the rule; or 

14 ‘‘(ii) the agency’s reasoned final determina15 tion that its adoption of a more costly rule com16 plies with paragraph (3)(B); 

17 ‘‘(E) the agency’s reasoned final determina18 tion— 

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

20 contributed to the problem the agency seeks to 

21 address with the rule; or 

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

23 contributed to the problem the agency seeks to 

24 address with the rule, and, if so— 


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1 ‘‘(I) why amendment or rescission of 

2 such existing rules is not alone sufficient 

3 to respond to the problem; and 

4 ‘‘(II) whether and how the agency in5 tends to amend or rescind the existing rule 

6 separate from adoption of the rule; 

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

8 that the evidence and other information upon which 

9 the agency bases the rule complies with of the Infor10 mation Quality Act; and 

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

12 the agency’s plan for review of the rule no less fre13 quently than every ten years to determine whether, 

14 based upon evidence, there remains a need for the 

15 rule, whether the rule is in fact achieving statutory 

16 objectives, whether the rule’s benefits continue to 

17 justify its costs, and whether the rule can be modi18 fied or rescinded to reduce costs while continuing to 

19 achieve statutory objectives. 

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

21 clause (i) of this subparagraph shall take into ac22 count the factors and criteria set forth in sub23 sections (b) through (e) and this subsection. 

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1 tion of the President or the Administrator of the Of2 fice of Information and Regulatory Affairs, informa3 tion provided by that Office in consultations with the 

4 agency, shall be placed in the docket for the rule and 

5 made accessible to the public for the public’s use not 

6 later than the date on which the rule is adopted. 

7 ‘‘(g) EXCEPTIONS FROM NOTICE AND HEARING RE8 QUIREMENTS.—(1) Except when notice or hearing is re9 quired by statute, subsections (c) through (e) of this sec10 tion do not apply to interpretive rules, general statements 

11 of policy, or rules of agency organization, procedure, or 

12 practice. 

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 (c) through (f) of this section immediately upon 

2 publication of the interim rule. No less than 270 days 

3 from publication of the interim rule (or 18 months in the 

4 case of a major rule or high-impact rule), the agency shall 

5 complete rule making under subsections (c) through (f) 

6 of this subsection and take final action to adopt a final 

7 rule or rescind the interim rule. If the agency fails to take 

8 timely final action, the interim rule shall cease to have 

9 the effect of law. 

10 ‘‘(C) Other than in cases involving interests of na11 tional security, upon the agency’s publication of an interim 

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

13 or requirements to render final determinations under sub14 section (f) of this section, an interested party may seek 

15 immediate judicial review under chapter 7 of this title of 

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

17 record on such review shall include all documents and in18 formation considered by the agency and any additional in19 formation presented by a party that the court determines 

20 necessary to consider to assure justice. 

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

22 When a hearing is required under subsection (e) or is oth23 erwise required by statute or at the agency’s discretion 

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

25 the requirements of sections 556 and 557 in addition to 


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

2 in providing notice of the rule’s adoption. 

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

4 publication or service of a substantive final or interim rule 

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

6 date of the rule, except— 

7 ‘‘(1) a substantive rule which grants or recog8 nizes an exemption or relieves a restriction; 

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

10 or 

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

12 good cause found and published with the rule. 

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

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

15 amendment, or repeal of a rule. 

16 ‘‘(k) RULE MAKING GUIDELINES.—(1)(A) The Ad17 ministrator of the Office of Information and Regulatory 

18 Affairs shall have authority to establish guidelines for the 

19 assessment, including quantitative and qualitative assess20 ment, of the costs and benefits of potential, proposed, and 

21 final rules and other economic issues or issues related to 

22 risk that are relevant to rule making under this section 

23 and other sections of this title. The rigor of cost-benefit 

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1 rate, in the Administrator’s determination, with the eco2 nomic impact of the rule. 

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

4 techniques to quantify and evaluate anticipated present 

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

6 as accurately as possible, the Administrator of the Office 

7 of Information and Regulatory Affairs shall regularly up8 date guidelines established under subparagraph (A). 

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

10 and Regulatory Affairs shall also have authority to issue 

11 guidelines to promote coordination, simplification and har12 monization of agency rules during the rule making process 

13 and otherwise. Such guidelines shall assure that each 

14 agency avoids regulations that are inconsistent or incom15 patible with, or duplicative of, its other regulations and 

16 those of other Federal agencies and drafts its regulations 

17 to be simple and easy to understand, with the goal of mini18 mizing the potential for uncertainty and litigation arising 

19 from such uncertainty. 

20 ‘‘(3)(A) To ensure consistency in Federal rule mak21 ing, the Administrator of the Office of Information and 

22 Regulatory Affairs shall— 

23 ‘‘(i) issue guidelines and otherwise take action 

24 to ensure that rule makings conducted in whole or 

25 in part under procedures specified in provisions of 


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1 law other than those under this subchapter conform 

2 to the fullest extent allowed by law with the proce3 dures set forth in this section; and 

4 ‘‘(ii) issue guidelines for the conduct of hear5 ings under subsections (d)(4) and (e), including to 

6 assure a reasonable opportunity for cross-examina7 tion. 

8 ‘‘(B) Each agency shall adopt regulations for the con9 duct of hearings consistent with the guidelines issued 

10 under this subparagraph. 

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

12 and Regulatory Affairs shall issue guidelines under the In13 formation Quality Act to apply in rule making proceedings 

14 under this section and sections 556 and 557. In all cases, 

15 the guidelines, and the Administrator’s specific determina16 tions regarding agency compliance with the guidelines, 

17 shall be entitled to judicial deference. 

18 ‘‘(l) RECORD.—The agency shall include in the record 

19 for a rule making all documents and information consid20 ered by the agency during the proceeding, including, at 

21 the discretion of the President or the Administrator of the 

22 Office of Information and Regulatory Affairs, documents 

23 and information communicated by that Office during con24 sultation with the agency. 


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1 ‘‘(m) EXEMPTION FOR MONETARY POLICY.—Noth2 ing in subsections (b)(6), (d)(1) (F) through (G), (e), or 

3 (f)(3) or (4) (C) through (D) shall apply to rule makings 

4 that concern monetary policy proposed or implemented by 

5 the Board of Governors of the Federal Reserve System 

6 or the Federal Open Market Committee.’’. 

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

8 GUIDANCE; PRESIDENTIAL AUTHORITY TO 

9 ISSUE GUIDELINES FOR ISSUANCE OF GUID10 ANCE. 

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

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

13 following new section: 

14 ‘‘§ 553a. Agency guidance; procedures to issue major 

15 guidance; authority to issue guidelines 

16 for issuance of guidance 

17 ‘‘(a) Before issuing any major guidance, an agency 

18 shall— 

19 ‘‘(1) make and document a reasoned determina20 tion that— 

21 ‘‘(A) assures that such guidance is under22 standable and complies with relevant statutory 

23 objectives and regulatory provisions; 

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


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

2 of conduct conforming to such guidance and 

3 assures that such benefits justify such costs; 

4 and 

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

7 costs to be considered during 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 ‘‘(b) AGENCY GUIDANCE.— 

19 ‘‘(1) is not legally binding and may not be re20 lied upon by an agency as legal grounds for agency 

21 action; 

22 ‘‘(2) shall state in a plain, prominent and per23 manent manner that it is not legally binding; and 


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1 ‘‘(3) shall, at the time it is issued or upon re2 quest, be made available by the issuing agency to in3 terested persons and the public. 

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

5 and Regulatory Affairs shall have authority to issue guide6 lines for use by the agencies in the issuance of major guid7 ance and other guidance. Such guidelines shall assure that 

8 each agency avoids issuing guidance documents that are 

9 inconsistent or incompatible with, or duplicative of, its 

10 other regulations and those of other Federal agencies and 

11 drafts its guidance documents to be simple and easy to 

12 understand, with the goal of minimizing the potential for 

13 uncertainty and litigation arising from such uncertainty.’’. 

14 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

15 The table of sections for chapter 5 of title 5, United States 

16 Code, is amended by inserting after the item relating to 

17 section 553 the following: 

‘‘553a. Agency guidance; procedures to issue major guidance; presidential 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, 


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1 constitutes the exclusive record for decision in accordance 

2 with section 557 and, on payment of lawfully prescribed 

3 costs, shall be made available to the parties. When an 

4 agency decision rests on official notice of a material fact 

5 not appearing in the evidence in the record, a party is 

6 entitled, on timely request, to an opportunity to show the 

7 contrary. 

8 ‘‘(2) Notwithstanding paragraph (1) of this sub9 section, in a proceeding held under this section under sec10 tion 553(d)(4) or 553(e), the record for decision shall in11 clude any information that is part of the record of pro12 ceedings 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)(1) 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, 


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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. 

7 ‘‘(2) This subsection shall not apply to rule makings 

8 that concern monetary policy proposed or implemented by 

9 the Board of Governors of the Federal Reserve System 

10 or the Federal Open Market Committee.’’. 

11 SEC. 6. ACTIONS REVIEWABLE. 

12 Section 704 of title 5, United States Code, is amend13 ed— 

14 (1) by striking ‘‘Agency action made’’ and in15 serting ‘‘(a) Agency action made’’; and 

16 (2) by adding at the end the following: 

17 ‘‘(b)(1) Except as provided under paragraph (2) and 

18 notwithstanding subsection (a), upon the agency’s publica19 tion of an interim rule without compliance with section 

20 553 (c), (d), or (e) or requirements to render final deter21 minations under subsection (f) of section 553, an inter22 ested party may seek immediate judicial review under this 

23 chapter of the agency’s determination to adopt such rule 

24 on an interim basis. Review shall be limited to whether 

25 the agency abused its discretion to adopt the interim rule 


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1 without compliance with section 553 (c), (d), or (e) or 

2 without rendering final determinations under subsection 

3 (f) of section 553. 

4 ‘‘(2) This subsection shall not apply in cases involving 

5 interests of national security. 

6 ‘‘(c) For rules other than major rules and high-im7 pact rules, compliance with sections 553(b)(6), (d)(1) (F) 

8 through (G), and (f)(3) and (4) (C) through (D) shall not 

9 be subject to judicial review. In all cases, the determina10 tion that a rule is not a major rule within the meaning 

11 of section 551(19)(A) or a high-impact rule shall be sub12 ject to judicial review under section 706(a)(2)(A). 

13 ‘‘(d) Nothing in this section shall be construed to 

14 limit judicial review of an agency’s consideration of costs 

15 or benefits as a mandatory or discretionary factor under 

16 the statute authorizing the rule or any other applicable 

17 statute.’’. 

18 SEC. 7. SCOPE OF REVIEW. 

19 Section 706 of title 5, United States Code is amend20 ed— 

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

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

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

24 redesignated by paragraph (1) of this section), by in25 serting after ‘‘in accordance with law’’ the following: 


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1 ‘‘(including the Information Quality Act as defined 

2 under section 551(17))’’; and 

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

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

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

6 agency did not comply with the procedures of section 

7 553 or sections 556 and 557 to issue the interpreta8 tion; 

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

10 other economic or risk assessment of the regulatory 

11 action, if the agency failed to conform to guidelines 

12 on such determinations and assessments established 

13 by the Administrator of the Office of Information 

14 and Regulatory Affairs under section 553(k); or 

15 ‘‘(3) determinations under interlocutory review 

16 under sections 553(g)(2)(C) and 704(2). 

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

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

19 under sections 556 and 557 for abuse of agency discre20 tion.’’. 

21 SEC. 8. ADDED DEFINITION. 

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

23 amended— 

24 (1) in paragraph (1), by striking ‘‘and’’; 


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

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

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

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

5 evidence as a reasonable mind might accept as ade6 quate to support a conclusion in light of the record 

7 considered as a whole, taking into account whatever 

8 in the record fairly detracts from the weight of the 

9 evidence relied upon by the agency to support its de10 cision.’’. 

11 SEC. 9. EFFECTIVE DATE. 

12 The amendments made by this Act to— 

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

14 United States Code; 

15 (2) subsection (b) of section 701 of that title; 

16 (3) paragraphs (4) and (5) of section 706(b) of 

17 that title; and 

18 (4) subsection (c) of section 706 of that title; 

19 shall not apply to any rule makings pending or completed 

20 on the date of enactment of this Act. 

Æ 


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