I 

115TH CONGRESS 

1ST SESSION H. R. 45 

To reform the process by which Federal agencies analyze and formulate 

new regulations and guidance documents. 

IN THE HOUSE OF REPRESENTATIVES 

JANUARY 3, 2017 

Mr. GOODLATTE (for himself, Mr. PETERSON, Mr. SMITH of Texas, Mr. 

MARINO, Mr. SESSIONS, and Mr. FRANKS of Arizona) introduced the following bill; which was referred to the Committee on the Judiciary 

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 2017’’. 

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) ‘major rule’ means any rule that the Ad5 ministrator of the Office of Information and Regu6 latory Affairs determines is likely to impose— 

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

8 $100,000,000 or more, adjusted annually for 

9 inflation; 

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

11 consumers, individual industries, Federal, 

12 State, local, or tribal government agencies, or 

13 geographic regions; 

14 ‘‘(C) significant adverse effects on competi15 tion, employment, investment, productivity, in16 novation, or on the ability of United States17 based enterprises to compete with foreign-based 

18 enterprises in domestic and export markets; or 

19 ‘‘(D) significant impacts on multiple sec20 tors of the economy; 

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

22 the Administrator of the Office of Information and 

23 Regulatory Affairs determines is likely to impose an 

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

25 more, adjusted annually for inflation; 


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1 ‘‘(17) ‘negative-impact on jobs and wages rule’ 

2 means any rule that the agency that made the rule 

3 or the Administrator of the Office of Information 

4 and Regulatory Affairs determines is likely to— 

5 ‘‘(A) in one or more sectors of the economy 

6 that has a 6-digit code under the North Amer7 ican Industry Classification System, reduce em8 ployment not related to new regulatory compli9 ance by 1 percent or more annually during the 

10 1-year, 5-year, or 10-year period after imple11 mentation; 

12 ‘‘(B) in one or more sectors of the econ13 omy that has a 6-digit code under the North 

14 American Industry Classification System, re15 duce average weekly wages for employment not 

16 related to new regulatory compliance by 1 per17 cent or more annually during the 1-year, 5- 

18 year, or 10-year period after implementation; 

19 ‘‘(C) in any industry area (as such term is 

20 defined in the Current Population Survey con21 ducted by the Bureau of Labor Statistics) in 

22 which the most recent annual unemployment 

23 rate for the industry area is greater than 5 per24 cent, as determined by the Bureau of Labor 

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1 duce employment not related to new regulatory 

2 compliance during the first year after imple3 mentation; or 

4 ‘‘(D) in any industry area in which the Bu5 reau of Labor Statistics projects in the Occupa6 tional Employment Statistics program that the 

7 employment level will decrease by 1 percent or 

8 more, further reduce employment not related to 

9 new regulatory compliance during the first year 

10 after implementation; 

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

12 general applicability and future effect, other than a 

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

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

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

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

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

21 inflation; 

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

23 consumers, individual industries, Federal, 

24 State, local or tribal government agencies, or 

25 geographic regions; 


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

5 enterprises in domestic and export markets; or 

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

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

10 General Government Appropriations Act for Fiscal 

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

13 Affairs or other agencies pursuant to the Act; and 

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

15 Affairs’ means the office established under section 

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

17 that office.’’. 

18 SEC. 3. RULE MAKING. 

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

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

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

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


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

2 making, an agency shall make all preliminary and final 

3 factual determinations based on evidence and consider, in 

4 addition to other applicable considerations, the following: 

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

6 may be proposed, including whether a rule making 

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

9 commence a rule making. 

10 ‘‘(2) Other statutory considerations applicable 

11 to whether the agency can or should propose a rule 

12 or undertake other agency action. 

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

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

16 and the priority of addressing those risks compared 

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

20 posed by alternatives for new agency action. 

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

22 contributed to the problem the agency may address 

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

25 part. 


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

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

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

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

8 ‘‘(B) amending or rescinding existing 

9 rules; 

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

11 tribal regulatory action or other responses that 

12 could be taken in lieu of agency action; and 

13 ‘‘(D) potential responses that— 

14 ‘‘(i) specify performance objectives 

15 rather than conduct or manners of compli16 ance; 

17 ‘‘(ii) establish economic incentives to 

18 encourage desired behavior; 

19 ‘‘(iii) provide information upon which 

20 choices can be made by the public; or 

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

23 specify conduct or manners of compliance. 

24 ‘‘(6) Notwithstanding any other provision of 

25 law— 


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

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

4 including direct, indirect, and cumulative costs 

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

7 domestic jobs), wages, economic growth, innova8 tion, economic competitiveness, and impacts on 

9 low income populations; 

10 ‘‘(B) means to increase the cost-effective11 ness of any Federal response; and 

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

13 predictability, lower costs of enforcement and 

14 compliance (to government entities, regulated 

15 entities, and the public), and flexibility. 

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

17 FOR MAJOR RULES, HIGH-IMPACT RULES, NEGATIVE-IM18 PACT ON JOBS AND WAGES RULES, AND RULES INVOLV19 ING NOVEL LEGAL OR POLICY ISSUES.—In the case of 

20 a rule making for a major rule, a high-impact rule, a nega21 tive-impact on jobs and wages rule, or a rule that involves 

22 a novel legal or policy issue arising out of statutory man23 dates, not later than 90 days before a notice of proposed 

24 rule making is published in the Federal Register, an agen25 cy shall publish advance notice of proposed rule making 


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1 in the Federal Register. In publishing such advance notice, 

2 the agency shall— 

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

4 a minimum— 

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

6 problem the agency may address with a rule, in7 cluding data and other evidence and informa8 tion on which the agency expects to rely for the 

9 proposed rule; 

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

11 may be proposed, including whether a rule mak12 ing is required by statute, and if so, whether by 

13 a specific date, or whether the agency has dis14 cretion to commence a rule making; 

15 ‘‘(C) preliminary information available to 

16 the agency concerning the other considerations 

17 specified in subsection (b); 

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

19 novel legal or policy issue arising out of statu20 tory mandates, the nature of and potential rea21 sons to adopt the novel legal or policy position 

22 upon which the agency may base a proposed 

23 rule; and 


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1 ‘‘(E) an achievable objective for the rule 

2 and metrics by which the agency will measure 

3 progress toward that objective; 

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

5 from interested persons concerning the information 

6 and issues addressed in the advance notice; and 

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

8 days for interested persons to submit such written 

9 data, views, or argument to the agency. 

10 ‘‘(d) NOTICES OF PROPOSED RULE MAKING; DETER11 MINATIONS OF OTHER AGENCY COURSE.—(1) Before it 

12 determines to propose a rule, and following completion of 

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

14 shall consult with the Administrator of the Office of Infor15 mation and Regulatory Affairs. If the agency thereafter 

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

17 notice of proposed rule making, which shall include— 

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

19 of public rule making proceedings; 

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

21 which the rule is proposed; 

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

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

24 agency on the subject and issues of the proposed 

25 rule, including but not limited to— 


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

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

4 ‘‘(ii) a summary of additional information 

5 the agency provided to and obtained from inter6 ested persons under subsection (c); 

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

8 assessment or regulatory impact analysis per9 formed by the agency; and 

10 ‘‘(iv) information specifically identifying all 

11 data, studies, models, and other evidence or in12 formation considered or used by the agency in 

13 connection with its determination to propose 

14 the rule; 

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

16 need for the rule based on the information described 

17 under subparagraph (D); 

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

19 is required by statute; and 

20 ‘‘(iii) an achievable objective for the rule and 

21 metrics by which the agency will measure progress 

22 toward that objective; 

23 ‘‘(F) a reasoned preliminary determination that 

24 the benefits of the proposed rule meet the relevant 

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1 posed rule (including all costs to be considered under 

2 subsection (b)(6)), based on the information de3 scribed under subparagraph (D); 

4 ‘‘(G) a discussion of— 

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

6 and other alternative responses, considered by 

7 the agency under subsection (b); 

8 ‘‘(ii) the costs and benefits of those alter9 natives (including all costs to be considered 

10 under subsection (b)(6)); 

11 ‘‘(iii) whether those alternatives meet rel12 evant statutory objectives; and 

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

14 of those alternatives; and 

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

16 have created or contributed to the problem the agen17 cy seeks to address with the proposed rule; and 

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

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

20 All information provided to or considered by the agency, 

21 and steps to obtain information by the agency, in connec22 tion with its determination to propose the rule, including 

23 any preliminary risk assessment or regulatory impact 

24 analysis prepared by the agency and all other information 

25 prepared or described by the agency under subparagraph 


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1 (D) and, at the discretion of the President or the Adminis2 trator of the Office of Information and Regulatory Affairs, 

3 information provided by that Office in consultations with 

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

5 rule and made accessible to the public by electronic means 

6 and otherwise for the public’s use when the notice of pro7 posed rule making is published. 

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

9 subsection (c) and determines thereafter not to propose 

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

11 Office of Information and Regulatory Affairs, publish a 

12 notice of determination of other agency course. A notice 

13 of determination of other agency course shall include in14 formation required by paragraph (1)(D) to be included in 

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

16 alternative response the agency determined to adopt. 

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

18 the agency makes a determination to amend or rescind 

19 an existing rule, the agency need not undertake additional 

20 proceedings under subsection (c) before it publishes a no21 tice of proposed rule making to amend or rescind the exist22 ing rule. 

23 All information provided to or considered by the agency, 

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1 ing but not limited to any preliminary risk assessment or 

2 regulatory impact analysis prepared by the agency and all 

3 other information that would be required to be prepared 

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

5 agency had determined to publish a notice of proposed rule 

6 making and, at the discretion of the President or the Ad7 ministrator of the Office of Information and Regulatory 

8 Affairs, information provided by that Office in consulta9 tions with the agency, shall be placed in the docket for 

10 the determination and made accessible to the public by 

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

12 the notice of determination is published. 

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

14 by this section, the agency shall provide interested persons 

15 an opportunity to participate in the rule making through 

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

17 without opportunity for oral presentation, except that— 

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

19 (4)(B) or subsection (e), opportunity for oral presen20 tation shall be provided pursuant to that require21 ment; or 

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

23 this section rules are required by statute or at the 

24 discretion of the agency to be made on the record 

25 after opportunity for an agency hearing, sections 


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1 556 and 557 shall apply, and paragraph (4), the re2 quirements of subsection (e) to receive comment out3 side of the procedures of sections 556 and 557, and 

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

5 apply. 

6 The agency shall provide not fewer than 60 days for inter7 ested persons to submit written data, views, or argument 

8 (or 120 days in the case of a proposed major or high9 impact rule). 

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

11 proposed rule making, a member of the public may peti12 tion for a hearing in accordance with section 556 to deter13 mine whether any evidence or other information upon 

14 which the agency bases the proposed rule fails to comply 

15 with the Information Quality Act. 

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

17 determine without further process to exclude from the rule 

18 making the evidence or other information that is the sub19 ject of the petition and, if appropriate, withdraw the pro20 posed rule. The agency shall promptly publish any such 

21 determination. 

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

23 the procedures of clause (i), it shall grant any such peti24 tion that presents a prima facie case that evidence or other 

25 information upon which the agency bases the proposed 


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

2 the requested hearing not later than 30 days after receipt 

3 of the petition, provide a reasonable opportunity for cross4 examination at the hearing, and decide the issues pre5 sented by the petition not later than 60 days after receipt 

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

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

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

9 disposition of issues considered and decided or determined 

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

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

12 an agency’s determination to withdraw a proposed rule 

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

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

15 paragraph shall not preclude judicial review of any claim 

16 based on the Information Quality Act under chapter 7 of 

17 this title. 

18 ‘‘(e) HEARINGS FOR HIGH-IMPACT RULES.—Fol19 lowing notice of a proposed rule making, receipt of com20 ments on the proposed rule, and any hearing held under 

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

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

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

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

25 The agency shall provide a reasonable opportunity for 


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

2 limited to the following issues of fact, except that partici3 pants at the hearing other than the agency may waive de4 termination of any such issue: 

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

6 predicate for the rule is supported by the evidence. 

7 ‘‘(2) Whether there is an alternative to the pro8 posed rule that would achieve the relevant statutory 

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

10 considered under subsection (b)(6)) than the pro11 posed rule. 

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

13 proposed rule that would achieve the relevant statu14 tory objectives at a lower cost than the proposed 

15 rule, which alternative would achieve the relevant 

16 statutory objectives at the lowest cost. 

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

18 a rule that is more costly than the least costly alter19 native that would achieve the relevant statutory ob20 jectives (including all costs to be considered under 

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

22 more costly rule exceed the additional costs of the 

23 more costly rule. 

24 ‘‘(5) Whether the evidence and other informa25 tion upon which the agency bases the proposed rule 


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1 meets the requirements of the Information Quality 

2 Act. 

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

4 has participated in the rule making, other issues rel5 evant to the rule making, unless the agency deter6 mines that consideration of the issues at the hearing 

7 would not advance consideration of the rule or 

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

9 action, unreasonably delay completion of the rule 

10 making. An agency shall grant or deny a petition 

11 under this paragraph within 30 days of its receipt 

12 of the petition. 

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

14 subsection or sections 556 and 557, the agency shall pub15 lish in the Federal Register a notice specifying the pro16 posed rule to be considered at such hearing, the issues 

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

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

19 not later than 15 days before a hearing held under sub20 section (d)(4)(B). 

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

22 rule only following consultation with the Administrator of 

23 the Office of Information and Regulatory Affairs to facili24 tate compliance with applicable rule making requirements. 


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

2 of the best reasonably obtainable scientific, technical, eco3 nomic, and other evidence and information concerning the 

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

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

6 agency shall adopt the least costly rule considered during 

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

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

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

10 than the least costly alternative that would achieve the rel11 evant statutory objectives only if the additional benefits 

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

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

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

15 within the scope of the statutory provision authorizing the 

16 rule. 

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

18 publish a notice of final rule making. The notice shall in19 clude— 

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 

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1 mary of any final risk assessment or regulatory im2 pact analysis prepared by the agency; 

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

4 that the benefits of the rule meet the relevant statu5 tory objectives and justify the rule’s costs (including 

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

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

8 not to adopt any of the alternatives to the proposed 

9 rule considered by the agency during the rule mak10 ing, including— 

11 ‘‘(i) the agency’s reasoned final determina12 tion that no alternative considered achieved the 

13 relevant statutory objectives with lower costs 

14 (including all costs to be considered under sub15 section (b)(6)) than the rule; or 

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

17 that its adoption of a more costly rule complies 

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

19 ‘‘(E) the agency’s reasoned final determina20 tion— 

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

22 contributed to the problem the agency seeks to 

23 address with the rule; or 


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

2 contributed to the problem the agency seeks to 

3 address with the rule, and, if so— 

4 ‘‘(I) why amendment or rescission of 

5 such existing rules is not alone sufficient 

6 to respond to the problem; and 

7 ‘‘(II) whether and how the agency in8 tends to amend or rescind the existing rule 

9 separate from adoption of the rule; 

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

11 that the evidence and other information upon which 

12 the agency bases the rule complies with the Informa13 tion Quality Act; 

14 ‘‘(G) the agency’s reasoned final determination 

15 that the rule meets the objectives that the agency 

16 identified in subsection (d)(1)(E)(iii) or that other 

17 objectives are more appropriate in light of the full 

18 administrative record and the rule meets those ob19 jectives; 

20 ‘‘(H) the agency’s reasoned final determination 

21 that it did not deviate from the metrics the agency 

22 included in subsection (d)(1)(E)(iii) or that other 

23 metrics are more appropriate in light of the full ad24 ministrative record and the agency did not deviate 

25 from those metrics; 


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1 ‘‘(I)(i) for any major rule, high-impact rule, or 

2 negative-impact on jobs and wages rule, the agency’s 

3 plan for review of the rule no less than every ten 

4 years to determine whether, based upon evidence, 

5 there remains a need for the rule, whether the rule 

6 is in fact achieving statutory objectives, whether the 

7 rule’s benefits continue to justify its costs, and 

8 whether the rule can be modified or rescinded to re9 duce costs while continuing to achieve statutory ob10 jectives; and 

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

12 clause (i) of this subparagraph shall take into ac13 count the factors and criteria set forth in sub14 sections (b) through (f) of section 553 of this title; 

15 and 

16 ‘‘(J) for any negative-impact on jobs and wages 

17 rule, a statement that the head of the agency that 

18 made the rule approved the rule knowing about the 

19 findings and determination of the agency or the Ad20 ministrator of the Office of Information and Regu21 latory Affairs that qualified the rule as a negative 

22 impact on jobs and wages rule. 

23 All information considered by the agency in connection 

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

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1 tion and Regulatory Affairs, information provided by that 

2 Office in consultations with the agency, shall be placed 

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

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

5 ‘‘(g) EXCEPTIONS FROM NOTICE AND HEARING RE6 QUIREMENTS.—(1) Except when notice or hearing is re7 quired by statute, the following do not apply to interpre8 tive rules, general statements of policy, or rules of agency 

9 organization, procedure, or practice: 

10 ‘‘(A) Subsections (c) through (e). 

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

12 (f). 

13 ‘‘(C) Subparagraphs (B) through (H) of sub14 section (f)(4). 

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

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

17 statement of reasons therefor in the rules issued) that 

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

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

20 section before the issuance of an interim rule is impracti21 cable or contrary to the public interest, including interests 

22 of national security, such subsections or requirements to 

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

24 adoption of an interim rule. 


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

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

3 shall commence proceedings that comply fully with sub4 sections (d) through (f) of this section immediately upon 

5 publication of the interim rule, shall treat the publication 

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

7 rule making and shall not be required to issue supple8 mental notice other than to complete full compliance with 

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

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

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

12 making under subsections (d) through (f) of this sub13 section and take final action to adopt a final rule or re14 scind the interim rule. If the agency fails to take timely 

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

16 of law. 

17 ‘‘(C) Other than in cases involving interests of na18 tional security, upon the agency’s publication of an interim 

19 rule without compliance with subsection (c), (d), or (e) or 

20 requirements to render final determinations under sub21 section (f) of this section, an interested party may seek 

22 immediate judicial review under chapter 7 of this title of 

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

24 record on such review shall include all documents and in25 formation considered by the agency and any additional inVerDate Sep 11 2014 05:44 Jan 04, 2017 Jkt 069200 PO 00000 Frm 00024 Fmt 6652 Sfmt 6201 E:\BILLS\H45.IH H45

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1 formation presented by a party that the court determines 

2 necessary to consider to assure justice. 

3 ‘‘(3) When the agency for good cause finds (and in4 corporates the finding and a brief statement of reasons 

5 therefor in the rules issued) that notice and public proce6 dure thereon are unnecessary, including because agency 

7 rule making is undertaken only to correct a de minimis 

8 technical or clerical error in a previously issued rule or 

9 for other noncontroversial purposes, the agency may pub10 lish a rule without compliance with subsection (c), (d), (e), 

11 or (f)(1)–(3) and (f)(4)(B)–(F). If the agency receives sig12 nificant adverse comment within 60 days after publication 

13 of the rule, it shall treat the notice of the rule as a notice 

14 of proposed rule making and complete rule making in com15 pliance with subsections (d) and (f). 

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

17 When a hearing is required under subsection (e) or is oth18 erwise required by statute or at the agency’s discretion 

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

20 the requirements of sections 556 and 557 in addition to 

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

22 in providing notice of the rule’s adoption. 

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

24 publication or service of a substantive final or interim rule 


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

2 date of the rule, except— 

3 ‘‘(1) a substantive rule which grants or recog4 nizes an exemption or relieves a restriction; 

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

6 or 

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

8 good cause found and published with the rule. 

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

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

11 amendment, or repeal of a rule. 

12 ‘‘(k) RULE MAKING GUIDELINES.—(1)(A) The Ad13 ministrator of the Office of Information and Regulatory 

14 Affairs shall establish guidelines for the assessment, in15 cluding quantitative and qualitative assessment, of the 

16 costs and benefits of proposed and final rules and other 

17 economic issues or issues related to risk that are relevant 

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

19 analysis required by such guidelines shall be commensu20 rate, in the Administrator’s determination, with the eco21 nomic impact of the rule. 

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

23 techniques to quantify and evaluate anticipated present 

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

25 as accurately as possible, the Administrator of the Office 


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1 of Information and Regulatory Affairs shall regularly up2 date guidelines established under paragraph (1)(A) of this 

3 subsection. 

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

5 and Regulatory Affairs shall also issue guidelines to pro6 mote coordination, simplification and harmonization of 

7 agency rules during the rule making process and other8 wise. Such guidelines shall assure that each agency avoids 

9 regulations that are inconsistent or incompatible with, or 

10 duplicative of, its other regulations and those of other 

11 Federal agencies and drafts its regulations to be simple 

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

13 potential for uncertainty and litigation arising from such 

14 uncertainty. 

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

16 the Administrator of the Office of Information and Regu17 latory Affairs shall— 

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

19 to ensure that rule makings conducted in whole or 

20 in part under procedures specified in provisions of 

21 law other than those of subchapter II of this title 

22 conform to the fullest extent allowed by law with the 

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

24 ‘‘(B) issue guidelines for the conduct of hear25 ings under subsections 553(d)(4) and 553(e) of this 


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1 section, including to assure a reasonable opportunity 

2 for cross-examination. Each agency shall adopt regu3 lations for the conduct of hearings consistent with 

4 the guidelines issued under this subparagraph. 

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

6 and Regulatory Affairs shall issue guidelines pursuant to 

7 the Information Quality Act to apply in rule making pro8 ceedings under sections 553, 556, and 557 of this title. 

9 In all cases, such guidelines, and the Administrator’s spe10 cific determinations regarding agency compliance with 

11 such guidelines, shall be entitled to judicial deference. 

12 ‘‘(l) INCLUSION IN THE RECORD OF CERTAIN DOCU13 MENTS AND INFORMATION.—The agency shall include in 

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

15 electronic means and otherwise, all documents and infor16 mation prepared or considered by the agency during the 

17 proceeding, including, at the discretion of the President 

18 or the Administrator of the Office of Information and Reg19 ulatory Affairs, documents and information communicated 

20 by that Office during consultation with the Agency. 

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

22 subsection (b)(6), subparagraphs (F) and (G) of sub23 section (d)(1), subsection (e), subsection (f)(3), and sub24 paragraphs (C) and (D) of subsection (f)(5) shall apply 

25 to rule makings that concern monetary policy proposed or 


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1 implemented by the Board of Governors of the Federal 

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

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

4 GUIDANCE; PRESIDENTIAL AUTHORITY TO 

5 ISSUE GUIDELINES FOR ISSUANCE OF GUID6 ANCE. 

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

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

9 following new section: 

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

11 guidance; authority to issue guidelines 

12 for issuance of guidance 

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

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

15 statutory mandates, an agency shall— 

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

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

20 objectives and regulatory provisions (including 

21 any statutory deadlines for agency action); 

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

23 which the agency will base the guidance; 

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


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

2 conduct conforming to such guidance and 

3 assures that such benefits justify such costs; 

4 and 

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

7 costs to be considered during a rule making 

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

9 why the agency rejected those alternatives; and 

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

11 of Information and Regulatory Affairs on the 

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

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

16 produce costs that are unjustified by the guidance’s 

17 benefits, and is otherwise appropriate. 

18 Upon issuing major guidance, or guidance that involves 

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

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

22 ‘‘(b) Agency guidance— 

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

25 action; 


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

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

6 and otherwise. 

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

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

10 of minimizing the potential for uncertainty and litigation 

11 arising from such uncertainty. 

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

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

16 each agency avoids issuing guidance documents that are 

17 inconsistent or incompatible with, or duplicative of, the 

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

21 the potential for uncertainty and litigation arising from 

22 such uncertainty.’’. 

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

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


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

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

guidelines for issuance of guidance.’’. 

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

4 DUTIES; BURDEN OF PROOF; EVIDENCE; 

5 RECORD AS BASIS OF DECISION. 

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

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

10 constitutes the exclusive record for decision in accordance 

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

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

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

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

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

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

20 shall also include any information that is part of the 

21 record of proceedings under section 553. 

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

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


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

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

5 553. 

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

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

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

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

11 unreasonably delay completion of the rule making. The 

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

14 of the grounds for decision. The information contained in 

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

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

20 SEC. 6. ACTIONS REVIEWABLE. 

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

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


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

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

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

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

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

8 action for purposes of this section. 

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

14 of section 553, an interested party may seek immediate 

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

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

21 SEC. 7. SCOPE OF REVIEW. 

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

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

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


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

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

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

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

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

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

8 agency did not comply with the procedures of section 

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

10 issue the interpretation; 

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

12 other economic or risk assessment of the action, if 

13 the agency failed to conform to guidelines on such 

14 determinations and assessments established by the 

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

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

18 interim rule; or 

19 ‘‘(4) guidance. 

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

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

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


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1 SEC. 8. ADDED DEFINITION. 

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

3 amended— 

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

5 end; 

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

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

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

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

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

12 considered as a whole, taking into account whatever 

13 in the record fairly detracts from the weight of the 

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

16 SEC. 9. EFFECTIVE DATE. 

17 The amendments made by this Act to— 

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

19 United States Code; 

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

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

22 such title; and 

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

24 shall not apply to any rule makings pending or completed 

25 on the date of enactment of this Act. 

Æ 


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