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[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[S. 1029 Introduced in Senate (IS)]

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.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Regulatory Accountability Act of 
2013''.

SEC. 2. DEFINITIONS.

    Section 551 of title 5, United States Code, is amended--
            (1) in paragraph (13), by striking ``and'' at the end;
            (2) in paragraph (14), by striking the period at the end 
        and inserting a semicolon; and
            (3) by adding at the end the following:
            ``(15) `guidance' means an agency statement of general 
        applicability, other than a rule, that is not intended to have 
        the force and effect of law but that sets forth a policy on a 
        statutory, regulatory, or technical issue or an interpretation 
        of a statutory or regulatory issue;
            ``(16) `high-impact rule' means any rule that the 
        Administrator of the Office of Information and Regulatory 
        Affairs determines is likely to impose a cost on the economy in 
        any 1 year of $1,000,000,000 or more, adjusted annually for 
        inflation;
            ``(17) `major rule' means any rule that the Administrator 
        of the Office of Information and Regulatory Affairs determines 
        is likely to impose--
                    ``(A) a cost on the economy in any 1 year of 
                $100,000,000 or more, adjusted annually for inflation;
                    ``(B) a major increase in costs or prices for 
                consumers, individual industries, Federal, State, 
                local, or tribal government agencies, or geographic 
                regions; or
                    ``(C) significant adverse effects on competition, 
                employment, investment, productivity, innovation, or on 
                the ability of United States-based enterprises to 
                compete with foreign-based enterprises in domestic and 
                export markets;
            ``(18) `major guidance' means guidance that the 
        Administrator of the Office of Information and Regulatory 
        Affairs finds is likely to lead to--
                    ``(A) a cost on the economy in any 1 year of 
                $100,000,000 or more, adjusted annually for inflation;
                    ``(B) a major increase in costs or prices for 
                consumers, individual industries, Federal, State, local 
                or tribal government agencies, or geographic regions; 
                or
                    ``(C) significant adverse effects on competition, 
                employment, investment, productivity, innovation, or on 
                the ability of United States-based enterprises to 
                compete with foreign-based enterprises in domestic and 
                export markets; and
            ``(19) `Office of Information and Regulatory Affairs' means 
        the office established under section 3503 of title 44 and any 
        successor to that office.''.

SEC. 3. RULEMAKING.

    Section 553 of title 5, United States Code, is amended--
            (1) in subsection (a), by striking ``(a) This section 
        applies'' and inserting ``(a) Applicability.--This section 
        applies''; and
            (2) by striking subsections (b) through (e) and inserting 
        the following:
    ``(b) Rulemaking Considerations.--In a rulemaking, an agency shall 
consider, in addition to other applicable considerations, the 
following:
            ``(1) The legal authority under which a rule may be 
        proposed, including whether rulemaking is required by statute 
        or is within the discretion of the agency.
            ``(2) The nature and significance of the problem the agency 
        intends to address with a rule.
            ``(3) Whether existing Federal laws or rules have created 
        or contributed to the problem the agency may address with a 
        rule and, if so, whether those Federal laws or rules could be 
        amended or rescinded to address the problem in whole or in 
        part.
            ``(4) A reasonable number of alternatives for a new rule, 
        including any substantial alternatives or other responses 
        identified by interested persons.
            ``(5) For any major rule or high-impact rule, the potential 
        costs and benefits associated with potential alternative rules 
        and other responses considered under paragraph (4), including 
        an analysis of--
                    ``(A) the nature and degree of risks addressed by 
                the rule and the countervailing risks that might be 
                posed by agency action;
                    ``(B) direct, indirect, and cumulative costs and 
                benefits; and
                    ``(C) estimated impacts on jobs, competitiveness, 
                and productivity.
    ``(c) Initiation of Rulemaking.--
            ``(1) Notice for major and high-impact rules.--When an 
        agency determines to initiate a rulemaking that may result in a 
        major rule or high-impact rule, the agency shall--
                    ``(A) establish an electronic docket for that 
                rulemaking, which may have a physical counterpart; and
                    ``(B) publish a notice of initiation of rulemaking 
                in the Federal Register, which shall--
                            ``(i) briefly describe the subject, the 
                        problem to be solved, and the objectives of the 
                        rule;
                            ``(ii) reference the legal authority under 
                        which the rule would be proposed;
                            ``(iii) invite interested persons to 
                        propose alternatives for accomplishing the 
                        objectives of the agency in the most effective 
                        manner and with the lowest cost; and
                            ``(iv) indicate how interested persons may 
                        submit written material for the docket.
            ``(2) Accessibility.--All information provided to the 
        agency under paragraph (1) shall be promptly placed in the 
        docket and made accessible to the public.
    ``(d) Notice of Proposed Rulemaking.--
            ``(1) In general.--If an agency determines that the 
        objectives of the agency require the agency to issue a rule, 
        the agency shall notify the Administrator of the Office of 
        Information and Regulatory Affairs and publish a notice of 
        proposed rulemaking in the Federal Register, which shall 
        include--
                    ``(A) a statement of the time, place, and nature of 
                any public rulemaking proceedings;
                    ``(B) reference to the legal authority under which 
                the rule is proposed;
                    ``(C) the text of the proposed rule;
                    ``(D) a summary of information known to the agency 
                concerning the considerations specified in subsection 
                (b); and
                    ``(E) for any major rule or high impact-rule--
                            ``(i) a reasoned preliminary determination 
                        that the benefits of the proposed rule justify 
                        the costs of the proposed rule; and
                            ``(ii) a discussion of--
                                    ``(I) the costs and benefits of 
                                alternatives considered by the agency 
                                under subsection (b), as determined by 
                                the agency at its discretion or 
                                provided under subsection (c) by a 
                                proponent of an alternative;
                                    ``(II) whether those alternatives 
                                meet relevant statutory objectives; and
                                    ``(III) the reasons why the agency 
                                did not propose any of those 
                                alternatives.
            ``(2) Accessibility.--Not later than the date of 
        publication of the notice of proposed rulemaking by an agency 
        under paragraph (1), all data, studies, models, and other 
        information considered by the agency, and actions by the agency 
        to obtain information, in connection with the determination of 
        the agency to propose the rule, shall be placed in the docket 
        for the proposed rule and made accessible to the public.
            ``(3) Public comment.--
                    ``(A) After publishing a notice of proposed 
                rulemaking, the agency shall provide interested persons 
                an opportunity to participate in the rulemaking through 
                the submission of written material, data, views, or 
                arguments with or without opportunity for oral 
                presentation, except that--
                            ``(i) if a public hearing is convened under 
                        subsection (e), reasonable opportunity for oral 
                        presentation shall be provided at the public 
                        hearing under the requirements of subsection 
                        (e); and
                            ``(ii) when, other than under subsection 
                        (e), a rule is required by statute or at the 
                        discretion of the agency to be made on the 
                        record after opportunity for an agency hearing, 
                        sections 556 and 557 shall apply, and the 
                        petition procedures of subsection (e) shall not 
                        apply.
                    ``(B) The agency shall provide not less than 60 
                days, or 90 days in the case of a proposed major rule 
                or proposed high-impact rule, for interested persons to 
                submit written material, data, views, or arguments.
            ``(4) Expiration of notice.--
                    ``(A) Except as provided in subparagraph (B), a 
                notice of proposed rulemaking shall, 2 years after the 
                date on which the notice is published in the Federal 
                Register, be considered as expired and may not be used 
                to satisfy the requirements of subsection (d).
                    ``(B) An agency may, at the sole discretion of the 
                agency, extend the expiration of a notice of proposed 
                rulemaking under subparagraph (A) for a 1 year period 
                by publishing a supplemental notice in the Federal 
                Register explaining why the agency requires additional 
                time to complete the rulemaking.
    ``(e) Public Hearing for High-Impact Rules.--
            ``(1) Petition for public hearing.--
                    ``(A)(i) Before the close of the comment period for 
                any proposed high-impact rule, any interested person 
                may petition the agency to hold a public hearing in 
                accordance with this subsection.
                    ``(ii) Not later than 30 days after receipt of a 
                petition made pursuant to clause (i), the agency shall 
                grant the petition if the petition shows that--
                            ``(I) the proposed rule is based on 
                        conclusions with respect to one or more 
                        specific scientific, technical, economic or 
                        other complex factual issues that are genuinely 
                        disputed; and
                            ``(II) the resolution of those disputed 
                        factual issues would likely have an effect on 
                        the costs and benefits of the proposed rule.
                    ``(B) If the agency denies a petition under this 
                subsection in whole or in part, it shall include in the 
                rulemaking record an explanation for the denial 
                sufficient for judicial review, including--
                            ``(i) findings by the agency that there is 
                        no genuine dispute as to the factual issues 
                        raised by the petition; or
                            ``(ii) a reasoned determination by the 
                        agency that the factual issues raised by the 
                        petition, even if subject to genuine dispute, 
                        will not have an effect on the costs and 
                        benefits of the proposed rule.
            ``(2) Notice of hearing.--Not later than 45 days before any 
        hearing held under this subsection, the agency shall publish in 
        the Federal Register a notice specifying the proposed rule to 
        be considered at the hearing and the factual issues to be 
        considered at the hearing.
            ``(3) Hearing procedure.--
                    ``(A) A hearing held under this subsection shall be 
                limited to the specific factual issues raised in the 
                petition or petitions granted in whole or in part under 
                paragraph (1) and any other factual issues the 
                resolution of which the agency, in its discretion, 
                determines will advance its consideration of the 
                proposed rule.
                    ``(B)(i) Except as otherwise provided by statute, 
                the proponent of the rule has the burden of proof in a 
                hearing held under this subsection. Any documentary or 
                oral evidence may be received, but the agency as a 
                matter of policy shall provide for the exclusion of 
                immaterial or unduly repetitious evidence.
                    ``(ii) To govern hearings held under this 
                subsection, each agency shall adopt rules that provide 
                for--
                            ``(I) the appointment of an agency official 
                        or administrative law judge to preside at the 
                        hearing;
                            ``(II) the presentation by interested 
                        parties of relevant documentary or oral 
                        evidence, unless the evidence is immaterial or 
                        unduly repetitious;
                            ``(III) a reasonable and adequate 
                        opportunity for cross-examination by interested 
                        parties concerning genuinely disputed factual 
                        issues raised by the petition, provided that in 
                        the case of multiple interested parties with 
                        the same or similar interests, the agency may 
                        require the use of common counsel where the 
                        common counsel may adequately represent the 
                        interests that will be significantly affected 
                        by the proposed rule; and
                            ``(IV) the provision of fees and costs 
                        under the circumstances described in section 
                        6(c)(4) of the Toxic Substances Control Act (15 
                        U.S.C. 2605(c)(4)).
                    ``(C) The transcript of testimony and exhibits, 
                together with all papers and requests filed in the 
                hearing, shall constitute the exclusive record for 
                decision of the factual issues addressed in a hearing 
                held under this subsection.
            ``(4) Petition for public hearing for major rules.--In the 
        case of any major rule, any interested person may petition for 
        a hearing under this subsection on the grounds and within the 
        time limitation set forth in paragraph (1). The agency may deny 
        the petition if the agency reasonably determines that a hearing 
        would not advance the consideration of the proposed rule by the 
        agency or would, in light of the need for agency action, 
        unreasonably delay completion of the rulemaking. The petition 
        and the decision of the agency with respect to the petition 
        shall be included in the rulemaking record.
            ``(5) Judicial review.--
                    ``(A) Failure to petition for a hearing under this 
                subsection shall not preclude judicial review of any 
                claim that could have been raised in the hearing 
                petition or at the hearing.
                    ``(B) There shall be no judicial review of the 
                disposition of a petition by an agency under this 
                subsection until judicial review of the final action of 
                the agency.
    ``(f) Final Rules.--
            ``(1) Cost of major or high-impact rule.--
                    ``(A) Except as provided in subparagraph (B), in a 
                rulemaking for a major rule or high-impact rule, the 
                agency shall adopt the least costly rule considered 
                during the rulemaking that meets relevant statutory 
                objectives.
                    ``(B) The agency may adopt a rule that is more 
                costly than the least costly alternative that would 
                achieve the relevant statutory objectives only if--
                            ``(i) the additional benefits of the more 
                        costly rule justify its additional costs; and
                            ``(ii) the agency explains why the agency 
                        adopted a rule that is more costly than the 
                        least costly alternative, based on interests 
                        that are within the scope of the statutory 
                        provision authorizing the rule.
            ``(2) Publication of notice of final rulemaking.--When the 
        agency adopts a final rule, the agency shall publish a notice 
        of final rulemaking in the Federal Register, which shall 
        include--
                    ``(A) a concise, general statement of the basis and 
                purpose of the rule;
                    ``(B) a reasoned determination by the agency 
                regarding the considerations specified in subsection 
                (c);
                    ``(C) in a rulemaking for a major rule or high-
                impact rule, a reasoned determination by the agency 
                that the benefits of the rule advance the relevant 
                statutory objectives and justify the costs of the rule;
                    ``(D) in a rulemaking for a major rule or high-
                impact rule, a reasoned determination by the agency 
                that--
                            ``(i) no alternative considered would 
                        achieve the relevant statutory objectives at a 
                        lower cost than the rule; or
                            ``(ii) the adoption by the agency of a more 
                        costly rule complies with paragraph (2)(B); and
                    ``(E) a response to each significant issue raised 
                in the comments on the proposed rule.
            ``(3) Information quality.--If an agency rulemaking rests 
        upon scientific, technical, or economic information, the agency 
        shall adopt a rule only on the basis of the best available 
        scientific, technical, or economic information.
            ``(4) Accessibility.--Not later than the date of 
        publication of the rule, all data, studies, models, and other 
        information considered by the agency, and actions by the agency 
        to obtain information in connection with its adoption of the 
        rule, shall be placed in the docket for the rule and made 
        accessible to the public.
            ``(5) Rules adopted at the end of a presidential 
        administration.--
                    ``(A) During the 60-day period beginning on a 
                transitional inauguration day (as defined in section 
                3349a), with respect to any final rule that had been 
                placed on file for public inspection by the Office of 
                the Federal Register or published in the Federal 
                Register as of the date of the inauguration, but which 
                had not yet become effective by the date of the 
                inauguration, the agency issuing the rule may, by 
                order, delay the effective date of the rule for not 
                more than 90 days for the purpose of obtaining public 
                comment on whether the rule should be amended or 
                rescinded or its effective date further delayed.
                    ``(B) If an agency delays the effective date of a 
                rule under subparagraph (A), the agency shall give the 
                public not less than 30 days to submit comments.
    ``(g) Applicability of This Section.--
            ``(1) In general.--Except as otherwise provided by law, 
        this section does not apply to guidance or rules of agency 
        organization, procedure, or practice.
            ``(2) Adoption of interim rules.--
                    ``(A) If an agency for good cause finds, and 
                incorporates the finding and a brief statement of 
                reasons for the finding in the rule issued, that 
                compliance with subsection (c), (d), or (e) or 
                requirements to render final determinations under 
                subsection (f) before the issuance of an interim rule 
                is unnecessary, such subsections and requirements under 
                subsection (f) shall not apply and the agency may issue 
                a final rule.
                    ``(B) If an agency for good cause finds, and 
                incorporates the finding and a brief statement of 
                reasons for the finding in the rule issued, that 
                compliance with subsection (c), (d), or (e) or 
                requirements to render final determinations under 
                subsection (f) before the issuance of an interim rule 
                is impracticable or contrary to the public interest, 
                such subsections and requirements under subsection (f) 
                shall not apply to the adoption of an interim rule by 
                the agency.
                    ``(C) If, following compliance with subparagraph 
                (B), an agency adopts an interim rule, the agency shall 
                commence proceedings that fully comply with subsections 
                (c) through (f) immediately upon publication of the 
                interim rule. Not less than 270 days from publication 
                of the interim rule, or 18 months in the case of a 
                major rule or high-impact rule, the agency shall 
                complete rulemaking in accordance with subsections (c) 
                through (f) and take final action to adopt a final rule 
                or rescind the interim rule. If the agency fails to 
                take timely final action under this subparagraph, the 
                interim rule shall cease to have the effect of law.
    ``(h) Date of Publication of Rule.--A rule shall be published not 
less than 30 days before the effective date of the rule, except--
            ``(1) for a rule that grants or recognizes an exemption or 
        relieves a restriction;
            ``(2) for guidance; or
            ``(3) as otherwise provided by an agency for good cause and 
        as published with the rule.
    ``(i) Right To Petition and Review of Rules.--
            ``(1) Each agency shall give interested persons the right 
        to petition for the issuance, amendment, or repeal of a rule.
            ``(2) Each agency shall, on a continuing basis, invite 
        interested persons to submit, by electronic means, suggestions 
        for rules that warrant retrospective review and possible 
        modification or repeal.
    ``(j) Rulemaking Guidelines.--
            ``(1) Assessment of rules.--
                    ``(A) The Administrator of the Office of 
                Information and Regulatory Affairs (in this subsection 
                referred to as the `Administrator') shall establish 
                guidelines for the assessment, including quantitative 
                and qualitative assessment, of--
                            ``(i) the costs and benefits of proposed 
                        and final rules;
                            ``(ii) other economic issues that are 
                        relevant to rulemaking under this section or 
                        other sections of this title; and
                            ``(iii) risk assessments that are relevant 
                        to rulemaking under this section and other 
                        sections of this title.
                    ``(B) The rigor of cost-benefit analysis required 
                by the guidelines established under subparagraph (A) 
                shall be commensurate, as determined by the 
                Administrator, with the economic impact of the rule. 
                Guidelines for risk assessment shall include criteria 
                for selecting studies and models, evaluating and 
                weighing evidence, and conducting peer reviews.
                    ``(C) The Administrator shall regularly update 
                guidelines established under subparagraph (A) to enable 
                agencies to use the best available techniques to 
                quantify and evaluate present and future benefits, 
                costs, other economic issues, and risks as objectively 
                and accurately as practicable.
            ``(2) Simplification of rules.--The Administrator may issue 
        guidelines to promote coordination, simplification, and 
        harmonization of agency rules during the rulemaking process. 
        The guidelines shall advise each agency to avoid regulations 
        that are inconsistent or incompatible with, or duplicative of, 
        other regulations of the agency and those of other Federal 
        agencies, and to draft its regulations to be simple and easy to 
        understand, with the goal of minimizing the potential for 
        uncertainty and litigation arising from the uncertainty.
            ``(3) Consistency in rulemaking.--
                    ``(A) To promote consistency in Federal rulemaking, 
                the Administrator shall--
                            ``(i) issue guidelines to ensure that 
                        rulemaking conducted in whole or in part under 
                        procedures specified in provisions of law other 
                        than those under this subchapter conform with 
                        the procedures set forth in this section to the 
                        fullest extent allowed by law; and
                            ``(ii) issue guidelines for the conduct of 
                        hearings under subsection (e), which shall 
                        provide a reasonable opportunity for cross-
                        examination.
                    ``(B) Each agency shall adopt regulations for the 
                conduct of hearings consistent with the guidelines 
                issued under this paragraph.
    ``(k) Exemption for Monetary Policy.--Nothing in subsection (b)(5), 
(d)(1)(E), (e), (f)(1), (f)(2)(C), or (f)(2)(D) shall apply to a 
rulemaking that concerns monetary policy proposed or implemented by the 
Board of Governors of the Federal Reserve System or the Federal Open 
Market Committee.''.

SEC. 4. SCOPE OF REVIEW.

    Section 706 of title 5, United States Code is amended--
            (1) by striking ``To the extent necessary'' and inserting 
        ``In General.--To the extent necessary''; and
            (2) by adding at the end the following:
    ``(b) Judicial Review.--The determination of whether a rule is a 
major rule within the meaning of subparagraphs (B) and (C) of section 
551(17) shall not be subject to judicial review.
    ``(c) Statement of Policy.--Agency guidance that does not interpret 
a statute or regulation shall be reviewable only under subsection 
(a)(2)(D).
    ``(d) Agency Interpretation of Rules.--The weight that a court 
shall give an interpretation by an agency of its own rule shall depend 
on the thoroughness evident in its consideration, the validity of its 
reasoning, and its consistency with earlier and later pronouncements.
    ``(e) Standard of Review.--A court shall review--
            ``(1) the denial of a petition by an agency under section 
        553(e) for whether the denial was based on substantial 
        evidence; and
            ``(2) any petition for review of a high-impact rule under 
        the substantial evidence standard, regardless of whether a 
        hearing was held under section 553(e).''.

SEC. 5. AGENCY GUIDANCE; PROCEDURES TO ISSUE MAJOR GUIDANCE; 
              PRESIDENTIAL AUTHORITY TO ISSUE GUIDELINES FOR ISSUANCE 
              OF GUIDANCE.

    Section 553 of title 5, United States Code, as amended by this Act, 
is amended by adding at the end the following:
    ``(l) Agency Guidance; Procedures To Issue Major Guidance; 
Authority To Issue Guidelines for Issuance of Guidance.--
            ``(1) Agency guidance shall--
                    ``(A) not be used by an agency to foreclose 
                consideration of issues as to which the document 
                expresses a conclusion;
                    ``(B) state that it is not legally binding; and
                    ``(C) at the time it is issued or upon request, be 
                made available by the issuing agency to interested 
                persons and the public.
            ``(2) Before issuing any major guidance, an agency shall--
                    ``(A) make and document a reasoned determination 
                that--
                            ``(i) such guidance is understandable and 
                        complies with relevant statutory objectives and 
                        regulatory provisions; and
                            ``(ii) identifies the costs and benefits, 
                        including all costs to be considered during a 
                        rulemaking under subsection (b), of requiring 
                        conduct conforming to such guidance and assures 
                        that such benefits justify such costs; and
                    ``(B) confer with the Administrator of the Office 
                of Information and Regulatory Affairs on the issuance 
                of the major guidance to assure that the guidance is 
                reasonable, understandable, consistent with relevant 
                statutory and regulatory provisions and requirements or 
                practices of other agencies, does not produce costs 
                that are unjustified by the benefits of the major 
                guidance, and is otherwise appropriate.
            ``(3) The Administrator of the Office of Information and 
        Regulatory Affairs shall issue updated guidelines for use by 
        the agencies in the issuance of guidance documents. The 
        guidelines shall advise each agency not to issue guidance 
        documents that are inconsistent or incompatible with, or 
        duplicative of, other regulations of the agency and those of 
        other Federal agencies, and to draft its guidance documents to 
        be simple and easy to understand, with the goal of minimizing 
        the potential for uncertainty and litigation arising from the 
        uncertainty.''.

SEC. 6. ADDED DEFINITION.

    Section 701(b) of title 5, United States Code, is amended--
            (1) in paragraph (1)(H), by striking ``and'' at the end;
            (2) in paragraph (2), by striking the period at the end, 
        and inserting ``; and''; and
            (3) by adding at the end the following:
            ``(3) `substantial evidence' means such relevant evidence 
        as a reasonable mind might accept as adequate to support a 
        conclusion in light of the record considered as a whole, taking 
        into account whatever in the record fairly detracts from the 
        weight of the evidence relied upon by the agency to support its 
        decision.''.

SEC. 7. EFFECTIVE DATE.

    The amendments made by this Act to sections 553, 556, 701(b), 704, 
706(b)(4), 706(b)(5), and 706(c) of title 5, United States Code, shall 
not apply to any rulemakings pending or completed on the date of 
enactment of this Act.
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