II 

113TH CONGRESS 

1ST SESSION S. 1029 

To reform the process by which Federal agencies analyze and formulate 

new regulations and guidance documents. 

IN THE SENATE OF THE UNITED STATES 

MAY 23, 2013 

Mr. PORTMAN (for himself, Mr. PRYOR, Ms. COLLINS, Mr. NELSON, Mr. CORNYN, Mr. MANCHIN, Ms. AYOTTE, Mr. KING, and Mr. JOHANNS) 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 2013’’. 

6 SEC. 2. DEFINITIONS. 

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


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

2 end; 

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

4 the end and inserting a semicolon; and 

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

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

7 general applicability, other than a rule, that is not 

8 intended to have the force and effect of law but that 

9 sets forth a policy on a statutory, regulatory, or 

10 technical issue or an interpretation of a statutory or 

11 regulatory issue; 

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

13 the Administrator of the Office of Information and 

14 Regulatory Affairs determines is likely to impose a 

15 cost on the economy in any 1 year of 

16 $1,000,000,000 or more, adjusted annually for infla17 tion; 

18 ‘‘(17) ‘major rule’ means any rule that the Ad19 ministrator of the Office of Information and Regu20 latory Affairs determines is likely to impose— 

21 ‘‘(A) a cost on the economy in any 1 year 

22 of $100,000,000 or more, adjusted annually for 

23 inflation; 

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

25 consumers, individual industries, Federal, 


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1 State, local, or tribal government agencies, or 

2 geographic regions; or 

3 ‘‘(C) significant adverse effects on competi4 tion, employment, investment, productivity, in5 novation, or on the ability of United States6 based enterprises to compete with foreign-based 

7 enterprises in domestic and export markets; 

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

9 Administrator of the Office of Information and Reg10 ulatory Affairs finds is likely to lead to— 

11 ‘‘(A) a cost on the economy in any 1 year 

12 of $100,000,000 or more, adjusted annually for 

13 inflation; 

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

15 consumers, individual industries, Federal, 

16 State, local or tribal government agencies, or 

17 geographic regions; or 

18 ‘‘(C) significant adverse effects on competi19 tion, employment, investment, productivity, in20 novation, or on the ability of United States21 based enterprises to compete with foreign-based 

22 enterprises in domestic and export markets; and 

23 ‘‘(19) ‘Office of Information and Regulatory Af24 fairs’ means the office established under section 

25 3503 of title 44 and any successor to that office.’’. 


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1 SEC. 3. RULEMAKING. 

2 Section 553 of title 5, United States Code, is amend3 ed— 

4 (1) in subsection (a), by striking ‘‘(a) This sec5 tion applies’’ and inserting ‘‘(a) APPLICABILITY.— 

6 This section applies’’; and 

7 (2) by striking subsections (b) through (e) and 

8 inserting the following: 

9 ‘‘(b) RULEMAKING CONSIDERATIONS.—In a rule10 making, an agency shall consider, in addition to other ap11 plicable considerations, the following: 

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

13 may be proposed, including whether rulemaking is 

14 required by statute or is within the discretion of the 

15 agency. 

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

17 the agency intends to address with a rule. 

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

19 have created or contributed to the problem the agen20 cy may address with a rule and, if so, whether those 

21 Federal laws or rules could be amended or rescinded 

22 to address the problem in whole or in part. 

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

24 new rule, including any substantial alternatives or 

25 other responses identified by interested persons. 


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

2 the potential costs and benefits associated with po3 tential alternative rules and other responses consid4 ered under paragraph (4), including an analysis of— 

5 ‘‘(A) the nature and degree of risks ad6 dressed by the rule and the countervailing risks 

7 that might be posed by agency action; 

8 ‘‘(B) direct, indirect, and cumulative costs 

9 and benefits; and 

10 ‘‘(C) estimated impacts on jobs, competi11 tiveness, and productivity. 

12 ‘‘(c) INITIATION OF RULEMAKING.— 

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

14 RULES.—When an agency determines to initiate a 

15 rulemaking that may result in a major rule or high16 impact rule, the agency shall— 

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

18 rulemaking, which may have a physical counter19 part; and 

20 ‘‘(B) publish a notice of initiation of rule21 making in the Federal Register, which shall— 

22 ‘‘(i) briefly describe the subject, the 

23 problem to be solved, and the objectives of 

24 the rule; 


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1 ‘‘(ii) reference the legal authority 

2 under which the rule would be proposed; 

3 ‘‘(iii) invite interested persons to pro4 pose alternatives for accomplishing the ob5 jectives of the agency in the most effective 

6 manner and with the lowest cost; and 

7 ‘‘(iv) indicate how interested persons 

8 may submit written material for the dock9 et. 

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

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

12 placed in the docket and made accessible to the pub13 lic. 

14 ‘‘(d) NOTICE OF PROPOSED RULEMAKING.— 

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

16 that the objectives of the agency require the agency 

17 to issue a rule, the agency shall notify the Adminis18 trator of the Office of Information and Regulatory 

19 Affairs and publish a notice of proposed rulemaking 

20 in the Federal Register, which shall include— 

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

22 nature of any public rulemaking proceedings; 

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

24 which the rule is proposed; 

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


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

2 the agency concerning the considerations speci3 fied in subsection (b); and 

4 ‘‘(E) for any major rule or high impact5 rule— 

6 ‘‘(i) a reasoned preliminary deter7 mination that the benefits of the proposed 

8 rule justify the costs of the proposed rule; 

9 and 

10 ‘‘(ii) a discussion of— 

11 ‘‘(I) the costs and benefits of al12 ternatives considered by the agency 

13 under subsection (b), as determined 

14 by the agency at its discretion or pro15 vided under subsection (c) by a pro16 ponent of an alternative; 

17 ‘‘(II) whether those alternatives 

18 meet relevant statutory objectives; and 

19 ‘‘(III) the reasons why the agen20 cy did not propose any of those alter21 natives. 

22 ‘‘(2) ACCESSIBILITY.—Not later than the date 

23 of publication of the notice of proposed rulemaking 

24 by an agency under paragraph (1), all data, studies, 

25 models, and other information considered by the 


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1 agency, and actions by the agency to obtain informa2 tion, in connection with the determination of the 

3 agency to propose the rule, shall be placed in the 

4 docket for the proposed rule and made accessible to 

5 the public. 

6 ‘‘(3) PUBLIC COMMENT.— 

7 ‘‘(A) After publishing a notice of proposed 

8 rulemaking, the agency shall provide interested 

9 persons an opportunity to participate in the 

10 rulemaking through the submission of written 

11 material, data, views, or arguments with or 

12 without opportunity for oral presentation, ex13 cept that— 

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

15 under subsection (e), reasonable oppor16 tunity for oral presentation shall be pro17 vided at the public hearing under the re18 quirements of subsection (e); and 

19 ‘‘(ii) when, other than under sub20 section (e), a rule is required by statute or 

21 at the discretion of the agency to be made 

22 on the record after opportunity for an 

23 agency hearing, sections 556 and 557 shall 

24 apply, and the petition procedures of sub25 section (e) shall not apply. 


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1 ‘‘(B) The agency shall provide not less 

2 than 60 days, or 90 days in the case of a pro3 posed major rule or proposed high-impact rule, 

4 for interested persons to submit written mate5 rial, data, views, or arguments. 

6 ‘‘(4) EXPIRATION OF NOTICE.— 

7 ‘‘(A) Except as provided in subparagraph 

8 (B), a notice of proposed rulemaking shall, 2 

9 years after the date on which the notice is pub10 lished in the Federal Register, be considered as 

11 expired and may not be used to satisfy the re12 quirements of subsection (d). 

13 ‘‘(B) An agency may, at the sole discretion 

14 of the agency, extend the expiration of a notice 

15 of proposed rulemaking under subparagraph 

16 (A) for a 1 year period by publishing a supple17 mental notice in the Federal Register explaining 

18 why the agency requires additional time to com19 plete the rulemaking. 

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

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

22 ‘‘(A)(i) Before the close of the comment 

23 period for any proposed high-impact rule, any 

24 interested person may petition the agency to 


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1 hold a public hearing in accordance with this 

2 subsection. 

3 ‘‘(ii) Not later than 30 days after receipt 

4 of a petition made pursuant to clause (i), the 

5 agency shall grant the petition if the petition 

6 shows that— 

7 ‘‘(I) the proposed rule is based on 

8 conclusions with respect to one or more 

9 specific scientific, technical, economic or 

10 other complex factual issues that are genu11 inely disputed; and 

12 ‘‘(II) the resolution of those disputed 

13 factual issues would likely have an effect 

14 on the costs and benefits of the proposed 

15 rule. 

16 ‘‘(B) If the agency denies a petition under 

17 this subsection in whole or in part, it shall in18 clude in the rulemaking record an explanation 

19 for the denial sufficient for judicial review, in20 cluding— 

21 ‘‘(i) findings by the agency that there 

22 is no genuine dispute as to the factual 

23 issues raised by the petition; or 

24 ‘‘(ii) a reasoned determination by the 

25 agency that the factual issues raised by the 


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1 petition, even if subject to genuine dispute, 

2 will not have an effect on the costs and 

3 benefits of the proposed rule. 

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

5 days before any hearing held under this subsection, 

6 the agency shall publish in the Federal Register a 

7 notice specifying the proposed rule to be considered 

8 at the hearing and the factual issues to be consid9 ered at the hearing. 

10 ‘‘(3) HEARING PROCEDURE.— 

11 ‘‘(A) A hearing held under this subsection 

12 shall be limited to the specific factual issues 

13 raised in the petition or petitions granted in 

14 whole or in part under paragraph (1) and any 

15 other factual issues the resolution of which the 

16 agency, in its discretion, determines will ad17 vance its consideration of the proposed rule. 

18 ‘‘(B)(i) Except as otherwise provided by 

19 statute, the proponent of the rule has the bur20 den of proof in a hearing held under this sub21 section. Any documentary or oral evidence may 

22 be received, but the agency as a matter of pol23 icy shall provide for the exclusion of immaterial 

24 or unduly repetitious evidence. 


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1 ‘‘(ii) To govern hearings held under this 

2 subsection, each agency shall adopt rules that 

3 provide for— 

4 ‘‘(I) the appointment of an agency of5 ficial or administrative law judge to preside 

6 at the hearing; 

7 ‘‘(II) the presentation by interested 

8 parties of relevant documentary or oral evi9 dence, unless the evidence is immaterial or 

10 unduly repetitious; 

11 ‘‘(III) a reasonable and adequate op12 portunity for cross-examination by inter13 ested parties concerning genuinely disputed 

14 factual issues raised by the petition, pro15 vided that in the case of multiple inter16 ested parties with the same or similar in17 terests, the agency may require the use of 

18 common counsel where the common coun19 sel may adequately represent the interests 

20 that will be significantly affected by the 

21 proposed rule; and 

22 ‘‘(IV) the provision of fees and costs 

23 under the circumstances described in sec24 tion 6(c)(4) of the Toxic Substances Con25 trol Act (15 U.S.C. 2605(c)(4)). 


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1 ‘‘(C) The transcript of testimony and ex2 hibits, together with all papers and requests 

3 filed in the hearing, shall constitute the exclu4 sive record for decision of the factual issues ad5 dressed in a hearing held under this subsection. 

6 ‘‘(4) PETITION FOR PUBLIC HEARING FOR

7 MAJOR RULES.—In the case of any major rule, any 

8 interested person may petition for a hearing under 

9 this subsection on the grounds and within the time 

10 limitation set forth in paragraph (1). The agency 

11 may deny the petition if the agency reasonably de12 termines that a hearing would not advance the con13 sideration of the proposed rule by the agency or 

14 would, in light of the need for agency action, unrea15 sonably delay completion of the rulemaking. The pe16 tition and the decision of the agency with respect to 

17 the petition shall be included in the rulemaking 

18 record. 

19 ‘‘(5) JUDICIAL REVIEW.— 

20 ‘‘(A) Failure to petition for a hearing 

21 under this subsection shall not preclude judicial 

22 review of any claim that could have been raised 

23 in the hearing petition or at the hearing. 

24 ‘‘(B) There shall be no judicial review of 

25 the disposition of a petition by an agency under 


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1 this subsection until judicial review of the final 

2 action of the agency. 

3 ‘‘(f) FINAL RULES.— 

4 ‘‘(1) COST OF MAJOR OR HIGH-IMPACT RULE.— 

5 ‘‘(A) Except as provided in subparagraph 

6 (B), in a rulemaking for a major rule or high7 impact rule, the agency shall adopt the least 

8 costly rule considered during the rulemaking 

9 that meets relevant statutory objectives. 

10 ‘‘(B) The agency may adopt a rule that is 

11 more costly than the least costly alternative 

12 that would achieve the relevant statutory objec13 tives only if— 

14 ‘‘(i) the additional benefits of the 

15 more costly rule justify its additional costs; 

16 and 

17 ‘‘(ii) the agency explains why the 

18 agency adopted a rule that is more costly 

19 than the least costly alternative, based on 

20 interests that are within the scope of the 

21 statutory provision authorizing the rule. 

22 ‘‘(2) PUBLICATION OF NOTICE OF FINAL RULE23 MAKING.—When the agency adopts a final rule, the 

24 agency shall publish a notice of final rulemaking in 

25 the Federal Register, which shall include— 


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

2 basis and purpose of the rule; 

3 ‘‘(B) a reasoned determination by the 

4 agency regarding the considerations specified in 

5 subsection (c); 

6 ‘‘(C) in a rulemaking for a major rule or 

7 high-impact rule, a reasoned determination by 

8 the agency that the benefits of the rule advance 

9 the relevant statutory objectives and justify the 

10 costs of the rule; 

11 ‘‘(D) in a rulemaking for a major rule or 

12 high-impact rule, a reasoned determination by 

13 the agency that— 

14 ‘‘(i) no alternative considered would 

15 achieve the relevant statutory objectives at 

16 a lower cost than the rule; or 

17 ‘‘(ii) the adoption by the agency of a 

18 more costly rule complies with paragraph 

19 (2)(B); and 

20 ‘‘(E) a response to each significant issue 

21 raised in the comments on the proposed rule. 

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

23 rulemaking rests upon scientific, technical, or eco24 nomic information, the agency shall adopt a rule 


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1 only on the basis of the best available scientific, 

2 technical, or economic information. 

3 ‘‘(4) ACCESSIBILITY.—Not later than the date 

4 of publication of the rule, all data, studies, models, 

5 and other information considered by the agency, and 

6 actions by the agency to obtain information in con7 nection with its adoption of the rule, shall be placed 

8 in the docket for the rule and made accessible to the 

9 public. 

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

12 ‘‘(A) During the 60-day period beginning 

13 on a transitional inauguration day (as defined 

14 in section 3349a), with respect to any final rule 

15 that had been placed on file for public inspec16 tion by the Office of the Federal Register or 

17 published in the Federal Register as of the date 

18 of the inauguration, but which had not yet be19 come effective by the date of the inauguration, 

20 the agency issuing the rule may, by order, delay 

21 the effective date of the rule for not more than 

22 90 days for the purpose of obtaining public 

23 comment on whether the rule should be amend24 ed or rescinded or its effective date further de25 layed. 


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1 ‘‘(B) If an agency delays the effective date 

2 of a rule under subparagraph (A), the agency 

3 shall give the public not less than 30 days to 

4 submit comments. 

5 ‘‘(g) APPLICABILITY OF THIS SECTION.— 

6 ‘‘(1) IN GENERAL.—Except as otherwise pro7 vided by law, this section does not apply to guidance 

8 or rules of agency organization, procedure, or prac9 tice. 

10 ‘‘(2) ADOPTION OF INTERIM RULES.— 

11 ‘‘(A) If an agency for good cause finds, 

12 and incorporates the finding and a brief state13 ment of reasons for the finding in the rule 

14 issued, that compliance with subsection (c), (d), 

15 or (e) or requirements to render final deter16 minations under subsection (f) before the 

17 issuance of an interim rule is unnecessary, such 

18 subsections and requirements under subsection 

19 (f) shall not apply and the agency may issue a 

20 final rule. 

21 ‘‘(B) If an agency for good cause finds, 

22 and incorporates the finding and a brief state23 ment of reasons for the finding in the rule 

24 issued, that compliance with subsection (c), (d), 

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1 minations under subsection (f) before the 

2 issuance of an interim rule is impracticable or 

3 contrary to the public interest, such subsections 

4 and requirements under subsection (f) shall not 

5 apply to the adoption of an interim rule by the 

6 agency. 

7 ‘‘(C) If, following compliance with subpara8 graph (B), an agency adopts an interim rule, 

9 the agency shall commence proceedings that 

10 fully comply with subsections (c) through (f) 

11 immediately upon publication of the interim 

12 rule. Not less than 270 days from publication 

13 of the interim rule, or 18 months in the case 

14 of a major rule or high-impact rule, the agency 

15 shall complete rulemaking in accordance with 

16 subsections (c) through (f) and take final action 

17 to adopt a final rule or rescind the interim rule. 

18 If the agency fails to take timely final action 

19 under this subparagraph, the interim rule shall 

20 cease to have the effect of law. 

21 ‘‘(h) DATE OF PUBLICATION OF RULE.—A rule shall 

22 be published not less than 30 days before the effective date 

23 of the rule, except— 

24 ‘‘(1) for a rule that grants or recognizes an ex25 emption or relieves a restriction; 


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1 ‘‘(2) for guidance; or 

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

3 good cause and as published with the rule. 

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

5 ‘‘(1) Each agency shall give interested persons 

6 the right to petition for the issuance, amendment, or 

7 repeal of a rule. 

8 ‘‘(2) Each agency shall, on a continuing basis, 

9 invite interested persons to submit, by electronic 

10 means, suggestions for rules that warrant retrospec11 tive review and possible modification or repeal. 

12 ‘‘(j) RULEMAKING GUIDELINES.— 

13 ‘‘(1) ASSESSMENT OF RULES.— 

14 ‘‘(A) The Administrator of the Office of 

15 Information and Regulatory Affairs (in this 

16 subsection referred to as the ‘Administrator’) 

17 shall establish guidelines for the assessment, in18 cluding quantitative and qualitative assessment, 

19 of— 

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

21 and final rules; 

22 ‘‘(ii) other economic issues that are 

23 relevant to rulemaking under this section 

24 or other sections of this title; and 


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1 ‘‘(iii) risk assessments that are rel2 evant to rulemaking under this section and 

3 other sections of this title. 

4 ‘‘(B) The rigor of cost-benefit analysis re5 quired by the guidelines established under sub6 paragraph (A) shall be commensurate, as deter7 mined by the Administrator, with the economic 

8 impact of the rule. Guidelines for risk assess9 ment shall include criteria for selecting studies 

10 and models, evaluating and weighing evidence, 

11 and conducting peer reviews. 

12 ‘‘(C) The Administrator shall regularly up13 date guidelines established under subparagraph 

14 (A) to enable agencies to use the best available 

15 techniques to quantify and evaluate present and 

16 future benefits, costs, other economic issues, 

17 and risks as objectively and accurately as prac18 ticable. 

19 ‘‘(2) SIMPLIFICATION OF RULES.—The Admin20 istrator may issue guidelines to promote coordina21 tion, simplification, and harmonization of agency 

22 rules during the rulemaking process. The guidelines 

23 shall advise each agency to avoid regulations that 

24 are inconsistent or incompatible with, or duplicative 

25 of, other regulations of the agency and those of 


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1 other Federal agencies, and to draft its regulations 

2 to be simple and easy to understand, with the goal 

3 of minimizing the potential for uncertainty and liti4 gation arising from the uncertainty. 

5 ‘‘(3) CONSISTENCY IN RULEMAKING.— 

6 ‘‘(A) To promote consistency in Federal 

7 rulemaking, the Administrator shall— 

8 ‘‘(i) issue guidelines to ensure that 

9 rulemaking conducted in whole or in part 

10 under procedures specified in provisions of 

11 law other than those under this subchapter 

12 conform with the procedures set forth in 

13 this section to the fullest extent allowed by 

14 law; and 

15 ‘‘(ii) issue guidelines for the conduct 

16 of hearings under subsection (e), which 

17 shall provide a reasonable opportunity for 

18 cross-examination. 

19 ‘‘(B) Each agency shall adopt regulations 

20 for the conduct of hearings consistent with the 

21 guidelines issued under this paragraph. 

22 ‘‘(k) EXEMPTION FOR MONETARY POLICY.—Nothing 

23 in subsection (b)(5), (d)(1)(E), (e), (f)(1), (f)(2)(C), or 

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1 ernors of the Federal Reserve System or the Federal Open 

2 Market Committee.’’. 

3 SEC. 4. SCOPE OF REVIEW. 

4 Section 706 of title 5, United States Code is amend5 ed— 

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

7 inserting ‘‘IN GENERAL.—To the extent necessary’’; 

8 and 

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

10 ‘‘(b) JUDICIAL REVIEW.—The determination of 

11 whether a rule is a major rule within the meaning of sub12 paragraphs (B) and (C) of section 551(17) shall not be 

13 subject to judicial review. 

14 ‘‘(c) STATEMENT OF POLICY.—Agency guidance that 

15 does not interpret a statute or regulation shall be review16 able only under subsection (a)(2)(D). 

17 ‘‘(d) AGENCY INTERPRETATION OF RULES.—The 

18 weight that a court shall give an interpretation by an 

19 agency of its own rule shall depend on the thoroughness 

20 evident in its consideration, the validity of its reasoning, 

21 and its consistency with earlier and later pronouncements. 

22 ‘‘(e) STANDARD OF REVIEW.—A court shall review— 

23 ‘‘(1) the denial of a petition by an agency under 

24 section 553(e) for whether the denial was based on 

25 substantial evidence; and 


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1 ‘‘(2) any petition for review of a high-impact 

2 rule under the substantial evidence standard, regard3 less of whether a hearing was held under section 

4 553(e).’’. 

5 SEC. 5. AGENCY GUIDANCE; PROCEDURES TO ISSUE MAJOR 

6 GUIDANCE; PRESIDENTIAL AUTHORITY TO 

7 ISSUE GUIDELINES FOR ISSUANCE OF GUID8 ANCE. 

9 Section 553 of title 5, United States Code, as amend10 ed by this Act, is amended by adding at the end the fol11 lowing: 

12 ‘‘(l) AGENCY GUIDANCE; PROCEDURES TO ISSUE

13 MAJOR GUIDANCE; AUTHORITY TO ISSUE GUIDELINES

14 FOR ISSUANCE OF GUIDANCE.— 

15 ‘‘(1) Agency guidance shall— 

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

17 consideration of issues as to which the docu18 ment expresses a conclusion; 

19 ‘‘(B) state that it is not legally binding; 

20 and 

21 ‘‘(C) at the time it is issued or upon re22 quest, be made available by the issuing agency 

23 to interested persons and the public. 

24 ‘‘(2) Before issuing any major guidance, an 

25 agency shall— 


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1 ‘‘(A) make and document a reasoned deter2 mination that— 

3 ‘‘(i) such guidance is understandable 

4 and complies with relevant statutory objec5 tives and regulatory provisions; and 

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

7 including all costs to be considered during 

8 a rulemaking under subsection (b), of re9 quiring conduct conforming to such guid10 ance and assures that such benefits justify 

11 such costs; and 

12 ‘‘(B) confer with the Administrator of the 

13 Office of Information and Regulatory Affairs on 

14 the issuance of the major guidance to assure 

15 that the guidance is reasonable, understandable, 

16 consistent with relevant statutory and regu17 latory provisions and requirements or practices 

18 of other agencies, does not produce costs that 

19 are unjustified by the benefits of the major 

20 guidance, and is otherwise appropriate. 

21 ‘‘(3) The Administrator of the Office of Infor22 mation and Regulatory Affairs shall issue updated 

23 guidelines for use by the agencies in the issuance of 

24 guidance documents. The guidelines shall advise 

25 each agency not to issue guidance documents that 


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1 are inconsistent or incompatible with, or duplicative 

2 of, other regulations of the agency and those of 

3 other Federal agencies, and to draft its guidance 

4 documents to be simple and easy to understand, 

5 with the goal of minimizing the potential for uncer6 tainty and litigation arising from the uncertainty.’’. 

7 SEC. 6. ADDED DEFINITION. 

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

9 amended— 

10 (1) in paragraph (1)(H), by striking ‘‘and’’ at 

11 the end; 

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

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

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

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

16 evidence as a reasonable mind might accept as ade17 quate to support a conclusion in light of the record 

18 considered as a whole, taking into account whatever 

19 in the record fairly detracts from the weight of the 

20 evidence relied upon by the agency to support its de21 cision.’’. 

22 SEC. 7. EFFECTIVE DATE. 

23 The amendments made by this Act to sections 553, 

24 556, 701(b), 704, 706(b)(4), 706(b)(5), and 706(c) of title 


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26 

•S 1029 IS

1 5, United States Code, shall not apply to any rulemakings 

2 pending or completed on the date of enactment of this Act. 

Æ 


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