II 

112TH CONGRESS 

1ST SESSION S. 1530 

To amend chapter 8 of title 5, United States Code, to provide for 

congressional review of agency guidance documents. 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 8, 2011 

Mr. JOHANNS (for himself, Mr. BARRASSO, Ms. COLLINS, Mr. INHOFE, Ms. 

SNOWE, Mr. PAUL, Mr. JOHNSON of Wisconsin, Mr. GRASSLEY, and Mr. 

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

the Committee on Homeland Security and Governmental Affairs 

A BILL 

To amend chapter 8 of title 5, United States Code, to provide 

for congressional review of agency 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 ‘‘Closing Regulatory 

5 Loopholes Act of 2011’’. 


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1 SEC. 2. CONGRESSIONAL REVIEW OF AGENCY GUIDANCE 

2 DOCUMENTS. 

3 (a) DEFINITIONS.—Chapter 8 of title 5, United 

4 States Code, is amended by striking section 804 and in5 serting the following: 

6 ‘‘§ 804. Definitions 

7 ‘‘In this chapter— 

8 ‘‘(1) the term ‘Federal agency’ means any agen9 cy as that term is defined under section 551(1); 

10 ‘‘(2) the term ‘guidance document’ means an 

11 agency statement of general applicability and future 

12 effect, other than a regulatory action, that sets forth 

13 a policy on a statutory, regulatory or technical issue 

14 or an interpretation of a statutory or regulatory 

15 issue; 

16 ‘‘(3) the term ‘major guidance document’ 

17 means any guidance document that the Adminis18 trator of the Office of Information and Regulatory 

19 Affairs of the Office of Management and Budget 

20 finds has resulted in or is likely to result in— 

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

22 $100,000,000 or more; 

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

24 consumers, individual industries, Federal, 

25 State, or local government agencies, or geo26 graphic regions; or 


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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; 

6 ‘‘(4) the term ‘major rule’ means— 

7 ‘‘(A) any rule that the Administrator of 

8 the Office of Information and Regulatory Af9 fairs of the Office of Management and Budget 

10 finds has resulted in or is likely to result in— 

11 ‘‘(i) an annual effect on the economy 

12 of $100,000,000 or more; 

13 ‘‘(ii) a major increase in costs or 

14 prices for consumers, individual industries, 

15 Federal, State, or local government agen16 cies, or geographic regions; or 

17 ‘‘(iii) significant adverse effects on 

18 competition, employment, investment, pro19 ductivity, innovation, or on the ability of 

20 United States-based enterprises to compete 

21 with foreign-based enterprises in domestic 

22 and export markets; and 

23 ‘‘(B) does not include any rule promul24 gated under the Telecommunications Act of 

25 1996 and the amendments made by that Act; 


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1 ‘‘(5) the term ‘regulatory action’ means any 

2 substantive action by an agency (normally published 

3 in the Federal Register) that promulgates or is ex4 pected to lead to the promulgation of a final regula5 tion, including notices of inquiry, advance notices of 

6 proposed rulemaking, and notices of proposed rule7 making; and 

8 ‘‘(6) the term ‘rule’ has the meaning given such 

9 term in section 551, except that such term does not 

10 include— 

11 ‘‘(A) any rule of particular applicability, 

12 including a rule that approves or prescribes for 

13 the future rates, wages, prices, services, or al14 lowances therefor, corporate or financial struc15 tures, reorganizations, mergers, or acquisitions 

16 thereof, or accounting practices or disclosures 

17 bearing on any of the foregoing; 

18 ‘‘(B) any rule relating to agency manage19 ment or personnel; or 

20 ‘‘(C) any rule of agency organization, pro21 cedure, or practice that does not substantially 

22 affect the rights or obligations of non-agency 

23 parties.’’. 

24 (b) APPLICATION TO GUIDANCE DOCUMENTS.— 

25 Chapter 8 of title 5, United States Code, is amended— 


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1 (1) in section 801— 

2 (A) in subsection (a)(1)— 

3 (i) in subparagraph (A)— 

4 (I) by inserting ‘‘or guidance doc5 ument’’ after ‘‘rule’’ each place that 

6 term appears; and 

7 (II) by inserting ‘‘or major guid8 ance document’’ after ‘‘major rule’’; 

9 (ii) by striking subparagraph (B) and 

10 inserting the following: 

11 ‘‘(B) On the date of the submission of the 

12 report under subparagraph (A), the Federal 

13 agency promulgating the rule or guidance docu14 ment shall submit to the Comptroller General 

15 and make available to each House of Con16 gress— 

17 ‘‘(i) in the case of a rule— 

18 ‘‘(I) a complete copy of the cost19 benefit analysis of the rule, if any; 

20 ‘‘(II) the agency’s actions rel21 evant to sections 603, 604, 605, 607, 

22 and 609; 

23 ‘‘(III) the agency’s actions rel24 evant to sections 202, 203, 204, and 


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1 205 of the Unfunded Mandates Re2 form Act of 1995; 

3 ‘‘(ii) in the case of a guidance docu4 ment, any relevant agency actions; and 

5 ‘‘(iii) any other relevant information 

6 or requirements under any other Act and 

7 any relevant Executive orders.’’; and 

8 (iii) in subparagraph (C), by inserting 

9 ‘‘or guidance document’’ after ‘‘rule’’; 

10 (B) in subsection (a) (2), (3), (4), and 

11 (5)— 

12 (i) by inserting ‘‘or guidance docu13 ment’’ after ‘‘rule’’ each place that term 

14 appears; and 

15 (ii) by inserting ‘‘or major guidance 

16 document’’ after ‘‘major rule each place 

17 that term appears’’; and 

18 (C) in subsections (b) through (g)— 

19 (i) by inserting ‘‘or guidance docu20 ment’’ after ‘‘rule’’ each place that term 

21 appears; and 

22 (ii) by inserting ‘‘or major guidance 

23 document’’ after ‘‘major rule’’; and 

24 (2) in section 802— 


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1 (A) in subsection (a) by inserting ‘‘or in 

2 the case of a guidance document ‘That Con3 gress disapproves the guidance document sub4 mitted by the ll relating to ll, and such 

5 guidance document shall have no force or ef6 fect.’ (The blank spaces being appropriately 

7 filled in)’’ before the period; 

8 (B) in subsection (b)(2)(B), by inserting 

9 ‘‘or guidance document’’ after ‘‘rule’’; and 

10 (C) in subsection (e), by inserting ‘‘or 

11 guidance document’’ after ‘‘rule’’; 

12 (3) in section 803(a)— 

13 (A) by inserting ‘‘or guidance document’’ 

14 after ‘‘rule’’; and 

15 (B) by inserting ‘‘or guidance document’s’’ 

16 after ‘‘rule’s’’; 

17 (4) in section 807, by inserting ‘‘or guidance 

18 documents’’ after ‘‘rules’’; 

19 (5) in section 808— 

20 (A) by striking the section heading and in21 serting the following: 

22 ‘‘§ 808. Effective date of certain rules or guidance 

23 documents’’; 

24 and 


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1 (B) by inserting ‘‘or guidance document’’ 

2 after ‘‘rule’’ each place that term appears; and 

3 (6) in the table of sections by striking the item 

4 relating to section 808 and inserting the following: 

‘‘§808. Effective date of certain rules or guidance documents.’’. 

Æ 


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