IIB 

113TH CONGRESS 

2D SESSION H. R. 2804 

IN THE SENATE OF THE UNITED STATES 

MARCH 4, 2014 

Received; read twice and referred to the Committee on Homeland Security and 

Governmental Affairs 

AN ACT 

To amend title 5, United States Code, to require the Administrator of the Office of Information and Regulatory Affairs to publish information about rules on the Internet, 

and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

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1 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

2 (a) SHORT TITLE.—This Act may be cited as the 

3 ‘‘Achieving Less Excess in Regulation and Requiring 

4 Transparency Act of 2014’’ or as the ‘‘ALERRT Act of 

5 2014’’. 

6 (b) TABLE OF CONTENTS.—The table of contents for 

7 this Act is as follows: 

Sec. 1. Short title; table of contents. 

TITLE I—ALL ECONOMIC REGULATIONS ARE TRANSPARENT ACT 

Sec. 101. Short title. 

Sec. 102. Office of Information and Regulatory Affairs publication of information relating to rules. 

TITLE II—REGULATORY ACCOUNTABILITY ACT 

Sec. 201. Short title. 

Sec. 202. Definitions. 

Sec. 203. Rule making. 

Sec. 204. Agency guidance; procedures to issue major guidance; presidential authority to issue guidelines for issuance of guidance. 

Sec. 205. Hearings; presiding employees; powers and duties; burden of proof; 

evidence; record as basis of decision. 

Sec. 206. Actions reviewable. 

Sec. 207. Scope of review. 

Sec. 208. Added definition. 

Sec. 209. Effective date. 

TITLE III—REGULATORY FLEXIBILITY IMPROVEMENTS ACT 

Sec. 301. Short title. 

Sec. 302. Clarification and expansion of rules covered by the Regulatory Flexibility Act. 

Sec. 303. Expansion of report of regulatory agenda. 

Sec. 304. Requirements providing for more detailed analyses. 

Sec. 305. Repeal of waiver and delay authority; additional powers of the Chief 

Counsel for Advocacy. 

Sec. 306. Procedures for gathering comments. 

Sec. 307. Periodic review of rules. 

Sec. 308. Judicial review of compliance with the requirements of the Regulatory 

Flexibility Act available after publication of the final rule. 

Sec. 309. Jurisdiction of court of appeals over rules implementing the Regulatory Flexibility Act. 

Sec. 310. Establishment and approval of small business concern size standards 

by Chief Counsel for Advocacy. 

Sec. 311. Clerical amendments. 

Sec. 312. Agency preparation of guides. 

Sec. 313. Comptroller General report. 

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TITLE IV—SUNSHINE FOR REGULATORY DECREES AND 

SETTLEMENTS ACT 

Sec. 401. Short title. 

Sec. 402. Definitions. 

Sec. 403. Consent decree and settlement reform. 

Sec. 404. Motions to modify consent decrees. 

Sec. 405. Effective date. 

1 TITLE I—ALL ECONOMIC REGU2 LATIONS ARE TRANSPARENT 

3 ACT 

4 SEC. 101. SHORT TITLE. 

5 This title may be cited as the ‘‘All Economic Regula6 tions are Transparent Act of 2014’’ or the ‘‘ALERT Act 

7 of 2014’’. 

8 SEC. 102. OFFICE OF INFORMATION AND REGULATORY AF9 FAIRS PUBLICATION OF INFORMATION RE10 LATING TO RULES. 

11 (a) AMENDMENT.—Title 5, United States Code, is 

12 amended by inserting after chapter 6, the following new 

13 chapter: 

14 ‘‘CHAPTER 6A—OFFICE OF INFORMATION 

15 AND REGULATORY AFFAIRS PUBLICA16 TION OF INFORMATION RELATING TO 

17 RULES 

‘‘Sec. 

‘‘651. Agency monthly submission to Office of Information and Regulatory Affairs. 

‘‘652. Office of Information and Regulatory Affairs Publications. 

‘‘653. Requirement for rules to appear in agency-specific monthly publication. 

‘‘654. Definitions. 

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1 ‘‘§ 651. Agency monthly submission to Office of Infor2 mation and Regulatory Affairs 

3 ‘‘On a monthly basis, the head of each agency shall 

4 submit to the Administrator of the Office of Information 

5 and Regulatory Affairs (referred to in this chapter as the 

6 ‘Administrator’), in such a manner as the Administrator 

7 may reasonably require, the following information: 

8 ‘‘(1) For each rule that the agency expects to 

9 propose or finalize during the following year: 

10 ‘‘(A) A summary of the nature of the rule, 

11 including the regulation identifier number and 

12 the docket number for the rule. 

13 ‘‘(B) The objectives of and legal basis for 

14 the issuance of the rule, including— 

15 ‘‘(i) any statutory or judicial deadline; 

16 and 

17 ‘‘(ii) whether the legal basis restricts 

18 or precludes the agency from conducting 

19 an analysis of the costs or benefits of the 

20 rule during the rule making, and if not, 

21 whether the agency plans to conduct an 

22 analysis of the costs or benefits of the rule 

23 during the rule making. 

24 ‘‘(C) Whether the agency plans to claim an 

25 exemption from the requirements of section 553 

26 pursuant to section 553(b)(B). 

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1 ‘‘(D) The stage of the rule making as of 

2 the date of submission. 

3 ‘‘(E) Whether the rule is subject to review 

4 under section 610. 

5 ‘‘(2) For any rule for which the agency expects 

6 to finalize during the following year and has issued 

7 a general notice of proposed rule making— 

8 ‘‘(A) an approximate schedule for com9 pleting action on the rule; 

10 ‘‘(B) an estimate of whether the rule will 

11 cost— 

12 ‘‘(i) less than $50,000,000; 

13 ‘‘(ii) $50,000,000 or more but less 

14 than $100,000,000; 

15 ‘‘(iii) $100,000,000 or more but less 

16 than $500,000,000; 

17 ‘‘(iv) $500,000,000 or more but less 

18 than $1,000,000,000; 

19 ‘‘(v) $1,000,000,000 or more but less 

20 than $5,000,000,000; 

21 ‘‘(vi) $5,000,000,000 or more but less 

22 than $10,000,000,000; or 

23 ‘‘(vii) $10,000,000,000 or more; and 

24 ‘‘(C) any estimate of the economic effects 

25 of the rule, including any estimate of the net efmstockstill on DSK4VPTVN1PROD with BILLS

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1 fect that the rule will have on the number of 

2 jobs in the United States, that was considered 

3 in drafting the rule. If such estimate is not 

4 available, a statement affirming that no infor5 mation on the economic effects, including the 

6 effect on the number of jobs, of the rule has 

7 been considered. 

8 ‘‘§ 652. Office of Information and Regulatory Affairs 

9 Publications 

10 ‘‘(a) AGENCY-SPECIFIC INFORMATION PUBLISHED

11 MONTHLY.—Not later than 30 days after the submission 

12 of information pursuant to section 651, the Administrator 

13 shall make such information publicly available on the 

14 Internet. 

15 ‘‘(b) CUMULATIVE ASSESSMENT OF AGENCY RULE

16 MAKING PUBLISHED ANNUALLY.— 

17 ‘‘(1) PUBLICATION IN THE FEDERAL REG18 ISTER.—Not later than October 1 of each year, the 

19 Administrator shall publish in the Federal Register, 

20 for the previous year the following: 

21 ‘‘(A) The information that the Adminis22 trator received from the head of each agency 

23 under section 651. 

24 ‘‘(B) The number of rules and a list of 

25 each such rule— 

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1 ‘‘(i) that was proposed by each agen2 cy, including, for each such rule, an indica3 tion of whether the issuing agency con4 ducted an analysis of the costs or benefits 

5 of the rule; and 

6 ‘‘(ii) that was finalized by each agen7 cy, including for each such rule an indica8 tion of whether— 

9 ‘‘(I) the issuing agency conducted 

10 an analysis of the costs or benefits of 

11 the rule; 

12 ‘‘(II) the agency claimed an ex13 emption from the procedures under 

14 section 553 pursuant to section 

15 553(b)(B); and 

16 ‘‘(III) the rule was issued pursu17 ant to a statutory mandate or the rule 

18 making is committed to agency discre19 tion by law. 

20 ‘‘(C) The number of agency actions and a 

21 list of each such action taken by each agency 

22 that— 

23 ‘‘(i) repealed a rule; 

24 ‘‘(ii) reduced the scope of a rule; 

25 ‘‘(iii) reduced the cost of a rule; or 

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1 ‘‘(iv) accelerated the expiration date 

2 of a rule. 

3 ‘‘(D) The total cost (without reducing the 

4 cost by any offsetting benefits) of all rules pro5 posed or finalized, and the number of rules for 

6 which an estimate of the cost of the rule was 

7 not available. 

8 ‘‘(2) PUBLICATION ON THE INTERNET.—Not 

9 later than October 1 of each year, the Administrator 

10 shall make publicly available on the Internet the fol11 lowing: 

12 ‘‘(A) The analysis of the costs or benefits, 

13 if conducted, for each proposed rule or final 

14 rule issued by an agency for the previous year. 

15 ‘‘(B) The docket number and regulation 

16 identifier number for each proposed or final 

17 rule issued by an agency for the previous year. 

18 ‘‘(C) The number of rules and a list of 

19 each such rule reviewed by the Director of the 

20 Office of Management and Budget for the pre21 vious year, and the authority under which each 

22 such review was conducted. 

23 ‘‘(D) The number of rules and a list of 

24 each such rule for which the head of an agency 

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1 completed a review under section 610 for the 

2 previous year. 

3 ‘‘(E) The number of rules and a list of 

4 each such rule submitted to the Comptroller 

5 General under section 801. 

6 ‘‘(F) The number of rules and a list of 

7 each such rule for which a resolution of dis8 approval was introduced in either the House of 

9 Representatives or the Senate under section 

10 802. 

11 ‘‘§ 653. Requirement for rules to appear in agency12 specific monthly publication 

13 ‘‘(a) IN GENERAL.—Subject to subsection (b), a rule 

14 may not take effect until the information required to be 

15 made publicly available on the Internet regarding such 

16 rule pursuant to section 652(a) has been so available for 

17 not less than 6 months. 

18 ‘‘(b) EXCEPTIONS.—The requirement of subsection 

19 (a) shall not apply in the case of a rule— 

20 ‘‘(1) for which the agency issuing the rule 

21 claims an exception under section 553(b)(B); or 

22 ‘‘(2) which the President determines by Execu23 tive order should take effect because the rule is— 

24 ‘‘(A) necessary because of an imminent 

25 threat to health or safety or other emergency; 

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1 ‘‘(B) necessary for the enforcement of 

2 criminal laws; 

3 ‘‘(C) necessary for national security; or 

4 ‘‘(D) issued pursuant to any statute imple5 menting an international trade agreement. 

6 ‘‘§ 654. Definitions 

7 ‘‘In this chapter, the terms ‘agency’, ‘agency action’, 

8 ‘rule’, and ‘rule making’ have the meanings given those 

9 terms in section 551.’’. 

10 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

11 The table of chapters for part I of title 5, United States 

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

13 chapter 5, the following: 

‘‘6. The Analysis of Regulatory Functions ............................................. 601

‘‘6A. Office of Information and Regulatory Affairs Publication of Information Relating to Rules .......................................... 651’’. 

14 (c) EFFECTIVE DATES.— 

15 (1) AGENCY MONTHLY SUBMISSION TO THE OF16 FICE OF INFORMATION AND REGULATORY AF17 FAIRS.—The first submission required pursuant to 

18 section 651 of title 5, United States Code, as added 

19 by subsection (a), shall be submitted not later than 

20 30 days after the date of the enactment of this title, 

21 and monthly thereafter. 

22 (2) CUMULATIVE ASSESSMENT OF AGENCY

23 RULE MAKING.— 

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1 (A) IN GENERAL.—Subsection (b) of sec2 tion 652 of title 5, United States Code, as 

3 added by subsection (a), shall take effect on the 

4 date that is 60 days after the date of the enact5 ment of this title. 

6 (B) DEADLINE.—The first requirement to 

7 publish or make available, as the case may be, 

8 under subsection (b) of section 652 of title 5, 

9 United States Code, as added by subsection (a), 

10 shall be the first October 1 after the effective 

11 date of such subsection. 

12 (C) FIRST PUBLICATION.—The require13 ment under section 652(b)(2)(A) of title 5, 

14 United States Code, as added by subsection (a), 

15 shall include for the first publication, any anal16 ysis of the costs or benefits conducted for a 

17 proposed or final rule, for the 10 years before 

18 the date of the enactment of this title. 

19 (3) REQUIREMENT FOR RULES TO APPEAR IN

20 AGENCY-SPECIFIC MONTHLY PUBLICATION.—Section 

21 653 of title 5, United States Code, as added by sub22 section (a), shall take effect on the date that is 8 

23 months after the date of the enactment of this title. 

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1 TITLE II—REGULATORY 

2 ACCOUNTABILITY ACT 

3 SEC. 201. SHORT TITLE. 

4 This title may be cited as the ‘‘Regulatory Account5 ability Act of 2014’’. 

6 SEC. 202. 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; 

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

12 the end and inserting a semicolon; and 

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

14 ‘‘(15) ‘major rule’ means any rule that the Ad15 ministrator of the Office of Information and Regu16 latory Affairs determines is likely to impose— 

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

18 $100,000,000 or more, adjusted annually for 

19 inflation; 

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

21 consumers, individual industries, Federal, 

22 State, local, or tribal government agencies, or 

23 geographic regions; 

24 ‘‘(C) significant adverse effects on competi25 tion, employment, investment, productivity, inmstockstill on DSK4VPTVN1PROD with BILLS

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1 novation, or on the ability of United States2 based enterprises to compete with foreign-based 

3 enterprises in domestic and export markets; or 

4 ‘‘(D) significant impacts on multiple sec5 tors of the economy; 

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

7 the Administrator of the Office of Information and 

8 Regulatory Affairs determines is likely to impose an 

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

10 more, adjusted annually for inflation; 

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

12 means any rule that the agency that made the rule 

13 or the Administrator of the Office of Information 

14 and Regulatory Affairs determines is likely to— 

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

16 that has a 6-digit code under the North Amer17 ican Industry Classification System, reduce em18 ployment not related to new regulatory compli19 ance by 1 percent or more annually during the 

20 1-year, 5-year, or 10-year period after imple21 mentation; 

22 ‘‘(B) in one or more sectors of the econ23 omy that has a 6-digit code under the North 

24 American Industry Classification System, re25 duce average weekly wages for employment not 

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1 related to new regulatory compliance by 1 per2 cent or more annually during the 1-year, 5- 

3 year, or 10-year period after implementation; 

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

5 defined in the Current Population Survey con6 ducted by the Bureau of Labor Statistics) in 

7 which the most recent annual unemployment 

8 rate for the industry area is greater than 5 per9 cent, as determined by the Bureau of Labor 

10 Statistics in the Current Population Survey, re11 duce employment not related to new regulatory 

12 compliance during the first year after imple13 mentation; or 

14 ‘‘(D) in any industry area in which the Bu15 reau of Labor Statistics projects in the Occupa16 tional Employment Statistics program that the 

17 employment level will decrease by 1 percent or 

18 more, further reduce employment not related to 

19 new regulatory compliance during the first year 

20 after implementation; 

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

22 general applicability and future effect, other than a 

23 regulatory action, that sets forth a policy on a statu24 tory, regulatory or technical issue or an interpreta25 tion of a statutory or regulatory issue; 

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

2 Administrator of the Office of Information and Reg3 ulatory Affairs finds is likely to lead to— 

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

5 $100,000,000 or more, adjusted annually for 

6 inflation; 

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

8 consumers, individual industries, Federal, 

9 State, local or tribal government agencies, or 

10 geographic regions; 

11 ‘‘(C) significant adverse effects on competi12 tion, employment, investment, productivity, in13 novation, or on the ability of United States14 based enterprises to compete with foreign-based 

15 enterprises in domestic and export markets; or 

16 ‘‘(D) significant impacts on multiple sec17 tors of the economy; 

18 ‘‘(20) the ‘Information Quality Act’ means sec19 tion 515 of Public Law 106–554, the Treasury and 

20 General Government Appropriations Act for Fiscal 

21 Year 2001, and guidelines issued by the Adminis22 trator of the Office of Information and Regulatory 

23 Affairs or other agencies pursuant to the Act; and 

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

25 Affairs’ means the office established under section 

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1 3503 of chapter 35 of title 44 and any successor to 

2 that office.’’. 

3 SEC. 203. RULE MAKING. 

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

5 amended by striking ‘‘(a) This section applies’’ and insert6 ing ‘‘(a) APPLICABILITY.—This section applies’’. 

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

8 amended by striking subsections (b) through (e) and in9 serting the following: 

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

11 making, an agency shall make all preliminary and final 

12 factual determinations based on evidence and consider, in 

13 addition to other applicable considerations, the following: 

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

15 may be proposed, including whether a rule making 

16 is required by statute, and if so, whether by a spe17 cific date, or whether the agency has discretion to 

18 commence a rule making. 

19 ‘‘(2) Other statutory considerations applicable 

20 to whether the agency can or should propose a rule 

21 or undertake other agency action. 

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

23 problem the agency may address with a rule (includ24 ing the degree and nature of risks the problem poses 

25 and the priority of addressing those risks compared 

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1 to other matters or activities within the agency’s ju2 risdiction), whether the problem warrants new agen3 cy action, and the countervailing risks that may be 

4 posed by alternatives for new agency action. 

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

6 contributed to the problem the agency may address 

7 with a rule and whether those rules could be amend8 ed or rescinded to address the problem in whole or 

9 part. 

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

11 or other response identified by the agency or inter12 ested persons, including not only responses that 

13 mandate particular conduct or manners of compli14 ance, but also— 

15 ‘‘(A) the alternative of no Federal re16 sponse; 

17 ‘‘(B) amending or rescinding existing 

18 rules; 

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

20 tribal regulatory action or other responses that 

21 could be taken in lieu of agency action; and 

22 ‘‘(D) potential responses that— 

23 ‘‘(i) specify performance objectives 

24 rather than conduct or manners of compli25 ance; 

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1 ‘‘(ii) establish economic incentives to 

2 encourage desired behavior; 

3 ‘‘(iii) provide information upon which 

4 choices can be made by the public; or 

5 ‘‘(iv) incorporate other innovative al6 ternatives rather than agency actions that 

7 specify conduct or manners of compliance. 

8 ‘‘(6) Notwithstanding any other provision of 

9 law— 

10 ‘‘(A) the potential costs and benefits asso11 ciated with potential alternative rules and other 

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

13 including direct, indirect, and cumulative costs 

14 and benefits and estimated impacts on jobs (in15 cluding an estimate of the net gain or loss in 

16 domestic jobs), wages, economic growth, innova17 tion, and economic competitiveness; 

18 ‘‘(B) means to increase the cost-effective19 ness of any Federal response; and 

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

21 predictability, lower costs of enforcement and 

22 compliance (to government entities, regulated 

23 entities, and the public), and flexibility. 

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

25 FOR MAJOR RULES, HIGH-IMPACT RULES, NEGATIVE-IMmstockstill on DSK4VPTVN1PROD with BILLS

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1 PACT ON JOBS AND WAGES RULES, AND RULES INVOLV2 ING NOVEL LEGAL OR POLICY ISSUES.—In the case of 

3 a rule making for a major rule, a high-impact rule, a nega4 tive-impact on jobs and wages rule, or a rule that involves 

5 a novel legal or policy issue arising out of statutory man6 dates, not later than 90 days before a notice of proposed 

7 rule making is published in the Federal Register, an agen8 cy shall publish advance notice of proposed rule making 

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

10 the agency shall— 

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

12 a minimum— 

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

14 problem the agency may address with a rule, in15 cluding data and other evidence and informa16 tion on which the agency expects to rely for the 

17 proposed rule; 

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

19 may be proposed, including whether a rule mak20 ing is required by statute, and if so, whether by 

21 a specific date, or whether the agency has dis22 cretion to commence a rule making; 

23 ‘‘(C) preliminary information available to 

24 the agency concerning the other considerations 

25 specified in subsection (b); 

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

2 novel legal or policy issue arising out of statu3 tory mandates, the nature of and potential rea4 sons to adopt the novel legal or policy position 

5 upon which the agency may base a proposed 

6 rule; and 

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

8 and metrics by which the agency will measure 

9 progress toward that objective; 

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

11 from interested persons concerning the information 

12 and issues addressed in the advance notice; and 

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

14 days for interested persons to submit such written 

15 data, views, or argument to the agency. 

16 ‘‘(d) NOTICES OF PROPOSED RULE MAKING; DETER17 MINATIONS OF OTHER AGENCY COURSE.—(1) Before it 

18 determines to propose a rule, and following completion of 

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

20 shall consult with the Administrator of the Office of Infor21 mation and Regulatory Affairs. If the agency thereafter 

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

23 notice of proposed rule making, which shall include— 

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

25 of public rule making proceedings; 

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

2 which the rule is proposed; 

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

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

5 agency on the subject and issues of the proposed 

6 rule, including but not limited to— 

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

8 the agency concerning the considerations speci9 fied in subsection (b); 

10 ‘‘(ii) a summary of additional information 

11 the agency provided to and obtained from inter12 ested persons under subsection (c); 

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

14 assessment or regulatory impact analysis per15 formed by the agency; and 

16 ‘‘(iv) information specifically identifying all 

17 data, studies, models, and other evidence or in18 formation considered or used by the agency in 

19 connection with its determination to propose 

20 the rule; 

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

22 need for the rule based on the information described 

23 under subparagraph (D); 

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

25 is required by statute; and 

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

2 metrics by which the agency will measure progress 

3 toward that objective; 

4 ‘‘(F) a reasoned preliminary determination that 

5 the benefits of the proposed rule meet the relevant 

6 statutory objectives and justify the costs of the pro7 posed rule (including all costs to be considered under 

8 subsection (b)(6)), based on the information de9 scribed under subparagraph (D); 

10 ‘‘(G) a discussion of— 

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

12 and other alternative responses, considered by 

13 the agency under subsection (b); 

14 ‘‘(ii) the costs and benefits of those alter15 natives (including all costs to be considered 

16 under subsection (b)(6)); 

17 ‘‘(iii) whether those alternatives meet rel18 evant statutory objectives; and 

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

20 of those alternatives; and 

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

22 have created or contributed to the problem the agen23 cy seeks to address with the proposed rule; and 

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

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

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1 All information provided to or considered by the agency, 

2 and steps to obtain information by the agency, in connec3 tion with its determination to propose the rule, including 

4 any preliminary risk assessment or regulatory impact 

5 analysis prepared by the agency and all other information 

6 prepared or described by the agency under subparagraph 

7 (D) and, at the discretion of the President or the Adminis8 trator of the Office of Information and Regulatory Affairs, 

9 information provided by that Office in consultations with 

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

11 rule and made accessible to the public by electronic means 

12 and otherwise for the public’s use when the notice of pro13 posed rule making is published. 

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

15 subsection (c) and determines thereafter not to propose 

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

17 Office of Information and Regulatory Affairs, publish a 

18 notice of determination of other agency course. A notice 

19 of determination of other agency course shall include in20 formation required by paragraph (1)(D) to be included in 

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

22 alternative response the agency determined to adopt. 

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

24 the agency makes a determination to amend or rescind 

25 an existing rule, the agency need not undertake additional 

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1 proceedings under subsection (c) before it publishes a no2 tice of proposed rule making to amend or rescind the exist3 ing rule. 

4 All information provided to or considered by the agency, 

5 and steps to obtain information by the agency, in connec6 tion with its determination of other agency course, includ7 ing but not limited to any preliminary risk assessment or 

8 regulatory impact analysis prepared by the agency and all 

9 other information that would be required to be prepared 

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

11 agency had determined to publish a notice of proposed rule 

12 making and, at the discretion of the President or the Ad13 ministrator of the Office of Information and Regulatory 

14 Affairs, information provided by that Office in consulta15 tions with the agency, shall be placed in the docket for 

16 the determination and made accessible to the public by 

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

18 the notice of determination is published. 

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

20 by this section, the agency shall provide interested persons 

21 an opportunity to participate in the rule making through 

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

23 without opportunity for oral presentation, except that— 

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

25 (4)(B) or subsection (e), opportunity for oral presenmstockstill on DSK4VPTVN1PROD with BILLS

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1 tation shall be provided pursuant to that require2 ment; or 

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

4 this section rules are required by statute or at the 

5 discretion of the agency to be made on the record 

6 after opportunity for an agency hearing, sections 

7 556 and 557 shall apply, and paragraph (4), the re8 quirements of subsection (e) to receive comment out9 side of the procedures of sections 556 and 557, and 

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

11 apply. 

12 The agency shall provide not fewer than 60 days for inter13 ested persons to submit written data, views, or argument 

14 (or 120 days in the case of a proposed major or high15 impact rule). 

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

17 proposed rule making, a member of the public may peti18 tion for a hearing in accordance with section 556 to deter19 mine whether any evidence or other information upon 

20 which the agency bases the proposed rule fails to comply 

21 with the Information Quality Act. 

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

23 determine without further process to exclude from the rule 

24 making the evidence or other information that is the sub25 ject of the petition and, if appropriate, withdraw the promstockstill on DSK4VPTVN1PROD with BILLS

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1 posed rule. The agency shall promptly publish any such 

2 determination. 

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

4 the procedures of clause (i), it shall grant any such peti5 tion that presents a prima facie case that evidence or other 

6 information upon which the agency bases the proposed 

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

8 the requested hearing not later than 30 days after receipt 

9 of the petition, provide a reasonable opportunity for cross10 examination at the hearing, and decide the issues pre11 sented by the petition not later than 60 days after receipt 

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

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

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

15 disposition of issues considered and decided or determined 

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

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

18 an agency’s determination to withdraw a proposed rule 

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

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

21 paragraph shall not preclude judicial review of any claim 

22 based on the Information Quality Act under chapter 7 of 

23 this title. 

24 ‘‘(e) HEARINGS FOR HIGH-IMPACT RULES.—Fol25 lowing notice of a proposed rule making, receipt of commstockstill on DSK4VPTVN1PROD with BILLS

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1 ments on the proposed rule, and any hearing held under 

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

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

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

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

6 The agency shall provide a reasonable opportunity for 

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

8 limited to the following issues of fact, except that partici9 pants at the hearing other than the agency may waive de10 termination of any such issue: 

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

12 predicate for the rule is supported by the evidence. 

13 ‘‘(2) Whether there is an alternative to the pro14 posed rule that would achieve the relevant statutory 

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

16 considered under subsection (b)(6)) than the pro17 posed rule. 

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

19 proposed rule that would achieve the relevant statu20 tory objectives at a lower cost than the proposed 

21 rule, which alternative would achieve the relevant 

22 statutory objectives at the lowest cost. 

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

24 a rule that is more costly than the least costly alter25 native that would achieve the relevant statutory obmstockstill on DSK4VPTVN1PROD with BILLS

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1 jectives (including all costs to be considered under 

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

3 more costly rule exceed the additional costs of the 

4 more costly rule. 

5 ‘‘(5) Whether the evidence and other informa6 tion upon which the agency bases the proposed rule 

7 meets the requirements of the Information Quality 

8 Act. 

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

10 has participated in the rule making, other issues rel11 evant to the rule making, unless the agency deter12 mines that consideration of the issues at the hearing 

13 would not advance consideration of the rule or 

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

15 action, unreasonably delay completion of the rule 

16 making. An agency shall grant or deny a petition 

17 under this paragraph within 30 days of its receipt 

18 of the petition. 

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

20 subsection or sections 556 and 557, the agency shall pub21 lish in the Federal Register a notice specifying the pro22 posed rule to be considered at such hearing, the issues 

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

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

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1 not later than 15 days before a hearing held under sub2 section (d)(4)(B). 

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

4 rule only following consultation with the Administrator of 

5 the Office of Information and Regulatory Affairs to facili6 tate compliance with applicable rule making requirements. 

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

8 of the best reasonably obtainable scientific, technical, eco9 nomic, and other evidence and information concerning the 

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

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

12 agency shall adopt the least costly rule considered during 

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

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

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

16 than the least costly alternative that would achieve the rel17 evant statutory objectives only if the additional benefits 

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

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

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

21 within the scope of the statutory provision authorizing the 

22 rule. 

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

24 publish a notice of final rule making. The notice shall in25 clude— 

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

2 basis and purpose; 

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

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

5 seeks to address with the rule, including a statement 

6 of whether a rule is required by statute and a sum7 mary of any final risk assessment or regulatory im8 pact analysis prepared by the agency; 

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

10 that the benefits of the rule meet the relevant statu11 tory objectives and justify the rule’s costs (including 

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

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

14 not to adopt any of the alternatives to the proposed 

15 rule considered by the agency during the rule mak16 ing, including— 

17 ‘‘(i) the agency’s reasoned final determina18 tion that no alternative considered achieved the 

19 relevant statutory objectives with lower costs 

20 (including all costs to be considered under sub21 section (b)(6)) than the rule; or 

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

23 that its adoption of a more costly rule complies 

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

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1 ‘‘(E) the agency’s reasoned final determina2 tion— 

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

4 contributed to the problem the agency seeks to 

5 address with the rule; or 

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

7 contributed to the problem the agency seeks to 

8 address with the rule, and, if so— 

9 ‘‘(I) why amendment or rescission of 

10 such existing rules is not alone sufficient 

11 to respond to the problem; and 

12 ‘‘(II) whether and how the agency in13 tends to amend or rescind the existing rule 

14 separate from adoption of the rule; 

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

16 that the evidence and other information upon which 

17 the agency bases the rule complies with the Informa18 tion Quality Act; 

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

20 that the rule meets the objectives that the agency 

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

22 objectives are more appropriate in light of the full 

23 administrative record and the rule meets those ob24 jectives; 

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

2 that it did not deviate from the metrics the agency 

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

4 metrics are more appropriate in light of the full ad5 ministrative record and the agency did not deviate 

6 from those metrics; 

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

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

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

10 years to determine whether, based upon evidence, 

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

12 is in fact achieving statutory objectives, whether the 

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

14 whether the rule can be modified or rescinded to re15 duce costs while continuing to achieve statutory ob16 jectives; and 

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

18 clause (i) of this subparagraph shall take into ac19 count the factors and criteria set forth in sub20 sections (b) through (f) of section 553 of this title; 

21 and 

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

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

24 made the rule approved the rule knowing about the 

25 findings and determination of the agency or the Admstockstill on DSK4VPTVN1PROD with BILLS

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1 ministrator of the Office of Information and Regu2 latory Affairs that qualified the rule as a negative 

3 impact on jobs and wages rule. 

4 All information considered by the agency in connection 

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

6 President or the Administrator of the Office of Informa7 tion and Regulatory Affairs, information provided by that 

8 Office in consultations with the agency, shall be placed 

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

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

11 ‘‘(g) EXCEPTIONS FROM NOTICE AND HEARING RE12 QUIREMENTS.—(1) Except when notice or hearing is re13 quired by statute, the following do not apply to interpre14 tive rules, general statements of policy, or rules of agency 

15 organization, procedure, or practice: 

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

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

18 (f). 

19 ‘‘(C) Subparagraphs (B) through (H) of sub20 section (f)(4). 

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

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

23 statement of reasons therefor in the rules issued) that 

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

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

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1 section before the issuance of an interim rule is impracti2 cable or contrary to the public interest, including interests 

3 of national security, such subsections or requirements to 

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

5 adoption of an interim rule. 

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

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

8 shall commence proceedings that comply fully with sub9 sections (d) through (f) of this section immediately upon 

10 publication of the interim rule, shall treat the publication 

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

12 rule making and shall not be required to issue supple13 mental notice other than to complete full compliance with 

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

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

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

17 making under subsections (d) through (f) of this sub18 section and take final action to adopt a final rule or re19 scind the interim rule. If the agency fails to take timely 

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

21 of law. 

22 ‘‘(C) Other than in cases involving interests of na23 tional security, upon the agency’s publication of an interim 

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

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1 section (f) of this section, an interested party may seek 

2 immediate judicial review under chapter 7 of this title of 

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

4 record on such review shall include all documents and in5 formation considered by the agency and any additional in6 formation presented by a party that the court determines 

7 necessary to consider to assure justice. 

8 ‘‘(3) When the agency for good cause finds (and in9 corporates the finding and a brief statement of reasons 

10 therefor in the rules issued) that notice and public proce11 dure thereon are unnecessary, including because agency 

12 rule making is undertaken only to correct a de minimis 

13 technical or clerical error in a previously issued rule or 

14 for other noncontroversial purposes, the agency may pub15 lish a rule without compliance with subsection (c), (d), (e), 

16 or (f)(1)–(3) and (f)(4)(B)–(F). If the agency receives sig17 nificant adverse comment within 60 days after publication 

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

19 of proposed rule making and complete rule making in com20 pliance with subsections (d) and (f). 

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

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

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

25 the requirements of sections 556 and 557 in addition to 

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

2 in providing notice of the rule’s adoption. 

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

4 publication or service of a substantive final or interim rule 

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

6 date of the rule, except— 

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

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

10 or 

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

12 good cause found and published with the rule. 

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

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

15 amendment, or repeal of a rule. 

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

18 Affairs shall establish guidelines for the assessment, in19 cluding quantitative and qualitative assessment, of the 

20 costs and benefits of proposed and final rules and other 

21 economic issues or issues related to risk that are relevant 

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

23 analysis required by such guidelines shall be commensu24 rate, in the Administrator’s determination, with the eco25 nomic impact of the rule. 

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

2 techniques to quantify and evaluate anticipated present 

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

4 as accurately as possible, the Administrator of the Office 

5 of Information and Regulatory Affairs shall regularly up6 date guidelines established under paragraph (1)(A) of this 

7 subsection. 

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

9 and Regulatory Affairs shall also issue guidelines to pro10 mote coordination, simplification and harmonization of 

11 agency rules during the rule making process and other12 wise. Such guidelines shall assure that each agency avoids 

13 regulations that are inconsistent or incompatible with, or 

14 duplicative of, its other regulations and those of other 

15 Federal agencies and drafts its regulations to be simple 

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

17 potential for uncertainty and litigation arising from such 

18 uncertainty. 

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

20 the Administrator of the Office of Information and Regu21 latory Affairs shall— 

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

23 to ensure that rule makings conducted in whole or 

24 in part under procedures specified in provisions of 

25 law other than those of subchapter II of this title 

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1 conform to the fullest extent allowed by law with the 

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

3 ‘‘(B) issue guidelines for the conduct of hear4 ings under subsections 553(d)(4) and 553(e) of this 

5 section, including to assure a reasonable opportunity 

6 for cross-examination. Each agency shall adopt regu7 lations for the conduct of hearings consistent with 

8 the guidelines issued under this subparagraph. 

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

10 and Regulatory Affairs shall issue guidelines pursuant to 

11 the Information Quality Act to apply in rule making pro12 ceedings under sections 553, 556, and 557 of this title. 

13 In all cases, such guidelines, and the Administrator’s spe14 cific determinations regarding agency compliance with 

15 such guidelines, shall be entitled to judicial deference. 

16 ‘‘(l) INCLUSION IN THE RECORD OF CERTAIN DOCU17 MENTS AND INFORMATION.—The agency shall include in 

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

19 electronic means and otherwise, all documents and infor20 mation prepared or considered by the agency during the 

21 proceeding, including, at the discretion of the President 

22 or the Administrator of the Office of Information and Reg23 ulatory Affairs, documents and information communicated 

24 by that Office during consultation with the Agency. 

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

2 subsection (b)(6), subparagraphs (F) and (G) of sub3 section (d)(1), subsection (e), subsection (f)(3), and sub4 paragraphs (C) and (D) of subsection (f)(5) shall apply 

5 to rule makings that concern monetary policy proposed or 

6 implemented by the Board of Governors of the Federal 

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

8 SEC. 204. AGENCY GUIDANCE; PROCEDURES TO ISSUE 

9 MAJOR GUIDANCE; PRESIDENTIAL AUTHOR10 ITY TO ISSUE GUIDELINES FOR ISSUANCE OF 

11 GUIDANCE. 

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

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

14 following new section: 

15 ‘‘§ 553a. Agency guidance; procedures to issue major 

16 guidance; authority to issue guidelines 

17 for issuance of guidance 

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

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

20 statutory mandates, an agency shall— 

21 ‘‘(1) make and document a reasoned determina22 tion that— 

23 ‘‘(A) assures that such guidance is under24 standable and complies with relevant statutory 

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1 objectives and regulatory provisions (including 

2 any statutory deadlines for agency action); 

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

4 which the agency will base the guidance; 

5 ‘‘(C) identifies the costs and benefits (in6 cluding all costs to be considered during a rule 

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

8 conduct conforming to such guidance and 

9 assures that such benefits justify such costs; 

10 and 

11 ‘‘(D) describes alternatives to such guid12 ance and their costs and benefits (including all 

13 costs to be considered during a rule making 

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

15 why the agency rejected those alternatives; and 

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

17 of Information and Regulatory Affairs on the 

18 issuance of such guidance to assure that the guid19 ance is reasonable, understandable, consistent with 

20 relevant statutory and regulatory provisions and re21 quirements or practices of other agencies, does not 

22 produce costs that are unjustified by the guidance’s 

23 benefits, and is otherwise appropriate. 

24 Upon issuing major guidance, or guidance that involves 

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1 dates, the agency shall publish the documentation required 

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

3 ‘‘(b) Agency guidance— 

4 ‘‘(1) is not legally binding and may not be re5 lied upon by an agency as legal grounds for agency 

6 action; 

7 ‘‘(2) shall state in a plain, prominent and per8 manent manner that it is not legally binding; and 

9 ‘‘(3) shall, at the time it is issued or upon re10 quest, be made available by the issuing agency to in11 terested persons and the public by electronic means 

12 and otherwise. 

13 Agencies shall avoid the issuance of guidance that is in14 consistent or incompatible with, or duplicative of, the 

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

16 of minimizing the potential for uncertainty and litigation 

17 arising from such uncertainty. 

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

19 and Regulatory Affairs shall have authority to issue guide20 lines for use by the agencies in the issuance of major guid21 ance and other guidance. Such guidelines shall assure that 

22 each agency avoids issuing guidance documents that are 

23 inconsistent or incompatible with, or duplicative of, the 

24 law, its other regulations, or the regulations of other Fed25 eral agencies and drafts its guidance documents to be simmstockstill on DSK4VPTVN1PROD with BILLS

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1 ple and easy to understand, with the goal of minimizing 

2 the potential for uncertainty and litigation arising from 

3 such uncertainty.’’. 

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

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

6 by inserting after the item relating to section 553 the fol7 lowing new item: 

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

guidelines for issuance of guidance.’’. 

8 SEC. 205. HEARINGS; PRESIDING EMPLOYEES; POWERS AND 

9 DUTIES; BURDEN OF PROOF; EVIDENCE; 

10 RECORD AS BASIS OF DECISION. 

11 Section 556 of title 5, United States Code, is amend12 ed by striking subsection (e) and inserting the following: 

13 ‘‘(e)(1) The transcript of testimony and exhibits, to14 gether with all papers and requests filed in the proceeding, 

15 constitutes the exclusive record for decision in accordance 

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

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

18 lawfully prescribed costs, otherwise. When an agency deci19 sion rests on official notice of a material fact not appear20 ing in the evidence in the record, a party is entitled, on 

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

22 ‘‘(2) Notwithstanding paragraph (1) of this sub23 section, in a proceeding held under this section pursuant 

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

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1 shall also include any information that is part of the 

2 record of proceedings under section 553. 

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

4 section and section 557 directly after concluding pro5 ceedings upon an advance notice of proposed rule making 

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

7 determinations to be made shall include, among other rel8 evant matters and determinations, the matters and deter9 minations described in subsections (b) and (f) of section 

10 553. 

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

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

13 of any major rule, unless the agency reasonably deter14 mines that a hearing would not advance consideration of 

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

16 unreasonably delay completion of the rule making. The 

17 agency shall publish its decision to grant or deny the peti18 tion when it renders the decision, including an explanation 

19 of the grounds for decision. The information contained in 

20 the petition shall in all cases be included in the adminis21 trative record. This subsection shall not apply to rule mak22 ings that concern monetary policy proposed or imple23 mented by the Board of Governors of the Federal Reserve 

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

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1 SEC. 206. ACTIONS REVIEWABLE. 

2 Section 704 of title 5, United States Code, is amend3 ed— 

4 (1) by striking ‘‘Agency action made’’ and in5 serting ‘‘(a) Agency action made’’; and 

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

7 by an agency of a correction request or, where ad8 ministrative appeal is provided for, denial of an ap9 peal, under an administrative mechanism described 

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

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

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

13 action for purposes of this section. 

14 ‘‘(b) Other than in cases involving interests of na15 tional security, notwithstanding subsection (a) of this sec16 tion, upon the agency’s publication of an interim rule with17 out compliance with section 553(c), (d), or (e) or require18 ments to render final determinations under subsection (f) 

19 of section 553, an interested party may seek immediate 

20 judicial review under this chapter of the agency’s deter21 mination to adopt such rule on an interim basis. Review 

22 shall be limited to whether the agency abused its discre23 tion to adopt the interim rule without compliance with sec24 tion 553(c), (d), or (e) or without rendering final deter25 minations under subsection (f) of section 553.’’. 

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1 SEC. 207. SCOPE OF REVIEW. 

2 Section 706 of title 5, United States Code is amend3 ed— 

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

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

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

7 designated by paragraph (1) of this section), by in8 serting after ‘‘in accordance with law’’ the following: 

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

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

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

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

13 agency did not comply with the procedures of section 

14 553 or sections 556–557 of chapter 5 of this title to 

15 issue the interpretation; 

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

17 other economic or risk assessment of the action, if 

18 the agency failed to conform to guidelines on such 

19 determinations and assessments established by the 

20 Administrator of the Office of Information and Reg21 ulatory Affairs under section 553(k); 

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

23 interim rule; or 

24 ‘‘(4) guidance. 

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

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

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1 under sections 556 and 557 for abuse of agency discre2 tion.’’. 

3 SEC. 208. ADDED DEFINITION. 

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

5 amended— 

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

7 end; 

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

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

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

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

12 evidence as a reasonable mind might accept as ade13 quate to support a conclusion in light of the record 

14 considered as a whole, taking into account whatever 

15 in the record fairly detracts from the weight of the 

16 evidence relied upon by the agency to support its de17 cision.’’. 

18 SEC. 209. EFFECTIVE DATE. 

19 The amendments made by this title to— 

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

21 United States Code; 

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

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

24 such title; and 

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

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1 shall not apply to any rule makings pending or completed 

2 on the date of enactment of this title. 

3 TITLE III—REGULATORY FLEXI4 BILITY IMPROVEMENTS ACT 

5 SEC. 301. SHORT TITLE. 

6 This title may be cited as the ‘‘Regulatory Flexibility 

7 Improvements Act of 2014’’. 

8 SEC. 302. CLARIFICATION AND EXPANSION OF RULES COV9 ERED BY THE REGULATORY FLEXIBILITY 

10 ACT. 

11 (a) IN GENERAL.—Paragraph (2) of section 601 of 

12 title 5, United States Code, is amended to read as follows: 

13 ‘‘(2) RULE.—The term ‘rule’ has the meaning 

14 given such term in section 551(4) of this title, ex15 cept that such term does not include a rule per16 taining to the protection of the rights of and benefits 

17 for veterans or a rule of particular (and not general) 

18 applicability relating to rates, wages, corporate or fi19 nancial structures or reorganizations thereof, prices, 

20 facilities, appliances, services, or allowances therefor 

21 or to valuations, costs or accounting, or practices re22 lating to such rates, wages, structures, prices, appli23 ances, services, or allowances.’’. 

24 (b) INCLUSION OF RULES WITH INDIRECT EF25 FECTS.—Section 601 of title 5, United States Code, is 

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1 amended by adding at the end the following new para2 graph: 

3 ‘‘(9) ECONOMIC IMPACT.—The term ‘economic 

4 impact’ means, with respect to a proposed or final 

5 rule— 

6 ‘‘(A) any direct economic effect on small 

7 entities of such rule; and 

8 ‘‘(B) any indirect economic effect (includ9 ing compliance costs and effects on revenue) on 

10 small entities which is reasonably foreseeable 

11 and results from such rule (without regard to 

12 whether small entities will be directly regulated 

13 by the rule).’’. 

14 (c) INCLUSION OF RULES WITH BENEFICIAL EF15 FECTS.— 

16 (1) INITIAL REGULATORY FLEXIBILITY ANAL17 YSIS.—Subsection (c) of section 603 of title 5, 

18 United States Code, is amended by striking the first 

19 sentence and inserting ‘‘Each initial regulatory flexi20 bility analysis shall also contain a detailed descrip21 tion of alternatives to the proposed rule which mini22 mize any adverse significant economic impact or 

23 maximize any beneficial significant economic impact 

24 on small entities.’’. 

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1 (2) FINAL REGULATORY FLEXIBILITY ANAL2 YSIS.—The first paragraph (6) of section 604(a) of 

3 title 5, United States Code, is amended by striking 

4 ‘‘minimize the significant economic impact’’ and in5 serting ‘‘minimize the adverse significant economic 

6 impact or maximize the beneficial significant eco7 nomic impact’’. 

8 (d) INCLUSION OF RULES AFFECTING TRIBAL ORGA9 NIZATIONS.—Paragraph (5) of section 601 of title 5, 

10 United States Code, is amended by inserting ‘‘and tribal 

11 organizations (as defined in section 4(l) of the Indian Self12 Determination and Education Assistance Act (25 U.S.C. 

13 450b(l))),’’ after ‘‘special districts,’’. 

14 (e) INCLUSION OF LAND MANAGEMENT PLANS AND

15 FORMAL RULEMAKING.— 

16 (1) INITIAL REGULATORY FLEXIBILITY ANAL17 YSIS.—Subsection (a) of section 603 of title 5, 

18 United States Code, is amended in the first sen19 tence— 

20 (A) by striking ‘‘or’’ after ‘‘proposed 

21 rule,’’; and 

22 (B) by inserting ‘‘or publishes a revision or 

23 amendment to a land management plan,’’ after 

24 ‘‘United States,’’. 

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1 (2) FINAL REGULATORY FLEXIBILITY ANAL2 YSIS.—Subsection (a) of section 604 of title 5, 

3 United States Code, is amended in the first sen4 tence— 

5 (A) by striking ‘‘or’’ after ‘‘proposed rule6 making,’’; and 

7 (B) by inserting ‘‘or adopts a revision or 

8 amendment to a land management plan,’’ after 

9 ‘‘section 603(a),’’. 

10 (3) LAND MANAGEMENT PLAN DEFINED.—Sec11 tion 601 of title 5, United States Code, is amended 

12 by adding at the end the following new paragraph: 

13 ‘‘(10) LAND MANAGEMENT PLAN.— 

14 ‘‘(A) IN GENERAL.—The term ‘land man15 agement plan’ means— 

16 ‘‘(i) any plan developed by the Sec17 retary of Agriculture under section 6 of 

18 the Forest and Rangeland Renewable Re19 sources Planning Act of 1974 (16 U.S.C. 

20 1604); and 

21 ‘‘(ii) any plan developed by the Sec22 retary of the Interior under section 202 of 

23 the Federal Land Policy and Management 

24 Act of 1976 (43 U.S.C. 1712). 

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1 ‘‘(B) REVISION.—The term ‘revision’ 

2 means any change to a land management plan 

3 which— 

4 ‘‘(i) in the case of a plan described in 

5 subparagraph (A)(i), is made under section 

6 6(f)(5) of the Forest and Rangeland Re7 newable Resources Planning Act of 1974 

8 (16 U.S.C. 1604(f)(5)); or 

9 ‘‘(ii) in the case of a plan described in 

10 subparagraph (A)(ii), is made under sec11 tion 1610.5–6 of title 43, Code of Federal 

12 Regulations (or any successor regulation). 

13 ‘‘(C) AMENDMENT.—The term ‘amend14 ment’ means any change to a land management 

15 plan which— 

16 ‘‘(i) in the case of a plan described in 

17 subparagraph (A)(i), is made under section 

18 6(f)(4) of the Forest and Rangeland Re19 newable Resources Planning Act of 1974 

20 (16 U.S.C. 1604(f)(4)) and with respect to 

21 which the Secretary of Agriculture pre22 pares a statement described in section 

23 102(2)(C) of the National Environmental 

24 Policy Act of 1969 (42 U.S.C. 

25 4332(2)(C)); or 

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1 ‘‘(ii) in the case of a plan described in 

2 subparagraph (A)(ii), is made under sec3 tion 1610.5–5 of title 43, Code of Federal 

4 Regulations (or any successor regulation) 

5 and with respect to which the Secretary of 

6 the Interior prepares a statement described 

7 in section 102(2)(C) of the National Envi8 ronmental Policy Act of 1969 (42 U.S.C. 

9 4332(2)(C)).’’. 

10 (f) INCLUSION OF CERTAIN INTERPRETIVE RULES

11 INVOLVING THE INTERNAL REVENUE LAWS.— 

12 (1) IN GENERAL.—Subsection (a) of section 

13 603 of title 5, United States Code, is amended by 

14 striking the period at the end and inserting ‘‘or a 

15 recordkeeping requirement, and without regard to 

16 whether such requirement is imposed by statute or 

17 regulation.’’. 

18 (2) COLLECTION OF INFORMATION.—Paragraph 

19 (7) of section 601 of title 5, United States Code, is 

20 amended to read as follows: 

21 ‘‘(7) COLLECTION OF INFORMATION.—The term 

22 ‘collection of information’ has the meaning given 

23 such term in section 3502(3) of title 44.’’. 

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1 (3) RECORDKEEPING REQUIREMENT.—Para2 graph (8) of section 601 of title 5, United States 

3 Code, is amended to read as follows: 

4 ‘‘(8) RECORDKEEPING REQUIREMENT.—The 

5 term ‘recordkeeping requirement’ has the meaning 

6 given such term in section 3502(13) of title 44.’’. 

7 (g) DEFINITION OF SMALL ORGANIZATION.—Para8 graph (4) of section 601 of title 5, United States Code, 

9 is amended to read as follows: 

10 ‘‘(4) SMALL ORGANIZATION.— 

11 ‘‘(A) IN GENERAL.—The term ‘small orga12 nization’ means any not-for-profit enterprise 

13 which, as of the issuance of the notice of pro14 posed rulemaking— 

15 ‘‘(i) in the case of an enterprise which 

16 is described by a classification code of the 

17 North American Industrial Classification 

18 System, does not exceed the size standard 

19 established by the Administrator of the 

20 Small Business Administration pursuant to 

21 section 3 of the Small Business Act (15 

22 U.S.C. 632) for small business concerns 

23 described by such classification code; and 

24 ‘‘(ii) in the case of any other enter25 prise, has a net worth that does not exceed 

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1 $7,000,000 and has not more than 500 

2 employees. 

3 ‘‘(B) LOCAL LABOR ORGANIZATIONS.—In 

4 the case of any local labor organization, sub5 paragraph (A) shall be applied without regard 

6 to any national or international organization of 

7 which such local labor organization is a part. 

8 ‘‘(C) AGENCY DEFINITIONS.—Subpara9 graphs (A) and (B) shall not apply to the ex10 tent that an agency, after consultation with the 

11 Office of Advocacy of the Small Business Ad12 ministration and after opportunity for public 

13 comment, establishes one or more definitions 

14 for such term which are appropriate to the ac15 tivities of the agency and publishes such defini16 tions in the Federal Register.’’. 

17 SEC. 303. EXPANSION OF REPORT OF REGULATORY 

18 AGENDA. 

19 Section 602 of title 5, United States Code, is amend20 ed— 

21 (1) in subsection (a)— 

22 (A) in paragraph (2), by striking ‘‘, and’’ 

23 at the end and inserting ‘‘;’’; 

24 (B) by redesignating paragraph (3) as 

25 paragraph (4); and 

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1 (C) by inserting after paragraph (2) the 

2 following: 

3 ‘‘(3) a brief description of the sector of the 

4 North American Industrial Classification System 

5 that is primarily affected by any rule which the 

6 agency expects to propose or promulgate which is 

7 likely to have a significant economic impact on a 

8 substantial number of small entities; and’’; and 

9 (2) in subsection (c), to read as follows: 

10 ‘‘(c) Each agency shall prominently display a plain 

11 language summary of the information contained in the 

12 regulatory flexibility agenda published under subsection 

13 (a) on its website within 3 days of its publication in the 

14 Federal Register. The Office of Advocacy of the Small 

15 Business Administration shall compile and prominently 

16 display a plain language summary of the regulatory agen17 das referenced in subsection (a) for each agency on its 

18 website within 3 days of their publication in the Federal 

19 Register.’’. 

20 SEC. 304. REQUIREMENTS PROVIDING FOR MORE DE21 TAILED ANALYSES. 

22 (a) INITIAL REGULATORY FLEXIBILITY ANALYSIS.— 

23 Subsection (b) of section 603 of title 5, United States 

24 Code, is amended to read as follows: 

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1 ‘‘(b) Each initial regulatory flexibility analysis re2 quired under this section shall contain a detailed state3 ment— 

4 ‘‘(1) describing the reasons why action by the 

5 agency is being considered; 

6 ‘‘(2) describing the objectives of, and legal basis 

7 for, the proposed rule; 

8 ‘‘(3) estimating the number and type of small 

9 entities to which the proposed rule will apply; 

10 ‘‘(4) describing the projected reporting, record11 keeping, and other compliance requirements of the 

12 proposed rule, including an estimate of the classes of 

13 small entities which will be subject to the require14 ment and the type of professional skills necessary 

15 for preparation of the report and record; 

16 ‘‘(5) describing all relevant Federal rules which 

17 may duplicate, overlap, or conflict with the proposed 

18 rule, or the reasons why such a description could not 

19 be provided; 

20 ‘‘(6) estimating the additional cumulative eco21 nomic impact of the proposed rule on small entities 

22 beyond that already imposed on the class of small 

23 entities by the agency or why such an estimate is 

24 not available; 

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1 ‘‘(7) describing any disproportionate economic 

2 impact on small entities or a specific class of small 

3 entities; and 

4 ‘‘(8) describing any impairment of the ability of 

5 small entities to have access to credit.’’. 

6 (b) FINAL REGULATORY FLEXIBILITY ANALYSIS.— 

7 (1) IN GENERAL.—Section 604(a) of title 5, 

8 United States Code, is amended— 

9 (A) in paragraph (4), by striking ‘‘an ex10 planation’’ and inserting ‘‘a detailed expla11 nation’’; 

12 (B) in each of paragraphs (4), (5), and the 

13 first paragraph (6), by inserting ‘‘detailed’’ be14 fore ‘‘description’’; and 

15 (C) by adding at the end the following: 

16 ‘‘(7) describing any disproportionate economic 

17 impact on small entities or a specific class of small 

18 entities.’’. 

19 (2) INCLUSION OF RESPONSE TO COMMENTS ON

20 CERTIFICATION OF PROPOSED RULE.—Paragraph 

21 (2) of section 604(a) of title 5, United States Code, 

22 is amended by inserting ‘‘(or certification of the pro23 posed rule under section 605(b))’’ after ‘‘initial reg24 ulatory flexibility analysis’’. 

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1 (3) PUBLICATION OF ANALYSIS ON WEBSITE.— 

2 Subsection (b) of section 604 of title 5, United 

3 States Code, is amended to read as follows: 

4 ‘‘(b) The agency shall make copies of the final regu5 latory flexibility analysis available to the public, including 

6 placement of the entire analysis on the agency’s website, 

7 and shall publish in the Federal Register the final regu8 latory flexibility analysis, or a summary thereof which in9 cludes the telephone number, mailing address, and link to 

10 the website where the complete analysis may be ob11 tained.’’. 

12 (c) CROSS-REFERENCES TO OTHER ANALYSES.— 

13 Subsection (a) of section 605 of title 5, United States 

14 Code, is amended to read as follows: 

15 ‘‘(a) A Federal agency shall be treated as satisfying 

16 any requirement regarding the content of an agenda or 

17 regulatory flexibility analysis under section 602, 603, or 

18 604, if such agency provides in such agenda or analysis 

19 a cross-reference to the specific portion of another agenda 

20 or analysis which is required by any other law and which 

21 satisfies such requirement.’’. 

22 (d) CERTIFICATIONS.—Subsection (b) of section 605 

23 of title 5, United States Code, is amended— 

24 (1) by inserting ‘‘detailed’’ before ‘‘statement’’ 

25 the first place it appears; and 

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1 (2) by inserting ‘‘and legal’’ after ‘‘factual’’. 

2 (e) QUANTIFICATION REQUIREMENTS.—Section 607 

3 of title 5, United States Code, is amended to read as fol4 lows: 

5 ‘‘§ 607. Quantification requirements 

6 ‘‘In complying with sections 603 and 604, an agency 

7 shall provide— 

8 ‘‘(1) a quantifiable or numerical description of 

9 the effects of the proposed or final rule and alter10 natives to the proposed or final rule; or 

11 ‘‘(2) a more general descriptive statement and 

12 a detailed statement explaining why quantification is 

13 not practicable or reliable.’’. 

14 SEC. 305. REPEAL OF WAIVER AND DELAY AUTHORITY; AD15 DITIONAL POWERS OF THE CHIEF COUNSEL 

16 FOR ADVOCACY. 

17 (a) IN GENERAL.—Section 608 is amended to read 

18 as follows: 

19 ‘‘§ 608. Additional powers of Chief Counsel for Advo20 cacy 

21 ‘‘(a)(1) Not later than 270 days after the date of the 

22 enactment of this section, the Chief Counsel for Advocacy 

23 of the Small Business Administration shall, after oppor24 tunity for notice and comment under section 553, issue 

25 rules governing agency compliance with this chapter. The 

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1 Chief Counsel may modify or amend such rules after no2 tice and comment under section 553. This chapter (other 

3 than this subsection) shall not apply with respect to the 

4 issuance, modification, and amendment of rules under this 

5 paragraph. 

6 ‘‘(2) An agency shall not issue rules which supple7 ment the rules issued under subsection (a) unless such 

8 agency has first consulted with the Chief Counsel for Ad9 vocacy to ensure that such supplemental rules comply with 

10 this chapter and the rules issued under paragraph (1). 

11 ‘‘(b) Notwithstanding any other law, the Chief Coun12 sel for Advocacy of the Small Business Administration 

13 may intervene in any agency adjudication (unless such 

14 agency is authorized to impose a fine or penalty under 

15 such adjudication), and may inform the agency of the im16 pact that any decision on the record may have on small 

17 entities. The Chief Counsel shall not initiate an appeal 

18 with respect to any adjudication in which the Chief Coun19 sel intervenes under this subsection. 

20 ‘‘(c) The Chief Counsel for Advocacy may file com21 ments in response to any agency notice requesting com22 ment, regardless of whether the agency is required to file 

23 a general notice of proposed rulemaking under section 

24 553.’’. 

25 (b) CONFORMING AMENDMENTS.— 

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1 (1) Section 611(a)(1) of such title is amended 

2 by striking ‘‘608(b),’’. 

3 (2) Section 611(a)(2) of such title is amended 

4 by striking ‘‘608(b),’’. 

5 (3) Section 611(a)(3) of such title is amend6 ed— 

7 (A) by striking subparagraph (B); and 

8 (B) by striking ‘‘(3)(A) A small entity’’ 

9 and inserting the following: 

10 ‘‘(3) A small entity’’. 

11 SEC. 306. PROCEDURES FOR GATHERING COMMENTS. 

12 Section 609 of title 5, United States Code, is amend13 ed by striking subsection (b) and all that follows through 

14 the end of the section and inserting the following: 

15 ‘‘(b)(1) Prior to publication of any proposed rule de16 scribed in subsection (e), an agency making such rule shall 

17 notify the Chief Counsel for Advocacy of the Small Busi18 ness Administration and provide the Chief Counsel with— 

19 ‘‘(A) all materials prepared or utilized by the 

20 agency in making the proposed rule, including the 

21 draft of the proposed rule; and 

22 ‘‘(B) information on the potential adverse and 

23 beneficial economic impacts of the proposed rule on 

24 small entities and the type of small entities that 

25 might be affected. 

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1 ‘‘(2) An agency shall not be required under para2 graph (1) to provide the exact language of any draft if 

3 the rule— 

4 ‘‘(A) relates to the internal revenue laws of the 

5 United States; or 

6 ‘‘(B) is proposed by an independent regulatory 

7 agency (as defined in section 3502(5) of title 44). 

8 ‘‘(c) Not later than 15 days after the receipt of such 

9 materials and information under subsection (b), the Chief 

10 Counsel for Advocacy of the Small Business Administra11 tion shall— 

12 ‘‘(1) identify small entities or representatives of 

13 small entities or a combination of both for the pur14 pose of obtaining advice, input, and recommenda15 tions from those persons about the potential eco16 nomic impacts of the proposed rule and the compli17 ance of the agency with section 603; and 

18 ‘‘(2) convene a review panel consisting of an 

19 employee from the Office of Advocacy of the Small 

20 Business Administration, an employee from the 

21 agency making the rule, and in the case of an agen22 cy other than an independent regulatory agency (as 

23 defined in section 3502(5) of title 44), an employee 

24 from the Office of Information and Regulatory Af25 fairs of the Office of Management and Budget to remstockstill on DSK4VPTVN1PROD with BILLS

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1 view the materials and information provided to the 

2 Chief Counsel under subsection (b). 

3 ‘‘(d)(1) Not later than 60 days after the review panel 

4 described in subsection (c)(2) is convened, the Chief Coun5 sel for Advocacy of the Small Business Administration 

6 shall, after consultation with the members of such panel, 

7 submit a report to the agency and, in the case of an agen8 cy other than an independent regulatory agency (as de9 fined in section 3502(5) of title 44), the Office of Informa10 tion and Regulatory Affairs of the Office of Management 

11 and Budget. 

12 ‘‘(2) Such report shall include an assessment of the 

13 economic impact of the proposed rule on small entities, 

14 including an assessment of the proposed rule’s impact on 

15 the cost that small entities pay for energy, an assessment 

16 of the proposed rule’s impact on start-up costs for small 

17 entities, and a discussion of any alternatives that will min18 imize adverse significant economic impacts or maximize 

19 beneficial significant economic impacts on small entities. 

20 ‘‘(3) Such report shall become part of the rulemaking 

21 record. In the publication of the proposed rule, the agency 

22 shall explain what actions, if any, the agency took in re23 sponse to such report. 

24 ‘‘(e) A proposed rule is described by this subsection 

25 if the Administrator of the Office of Information and Regmstockstill on DSK4VPTVN1PROD with BILLS

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1 ulatory Affairs of the Office of Management and Budget, 

2 the head of the agency (or the delegatee of the head of 

3 the agency), or an independent regulatory agency deter4 mines that the proposed rule is likely to result in— 

5 ‘‘(1) an annual effect on the economy of 

6 $100,000,000 or more; 

7 ‘‘(2) a major increase in costs or prices for con8 sumers, individual industries, Federal, State, or local 

9 governments, tribal organizations, or geographic re10 gions; 

11 ‘‘(3) significant adverse effects on competition, 

12 employment, investment, productivity, innovation, or 

13 on the ability of United States-based enterprises to 

14 compete with foreign-based enterprises in domestic 

15 and export markets; or 

16 ‘‘(4) a significant economic impact on a sub17 stantial number of small entities. 

18 ‘‘(f) Upon application by the agency, the Chief Coun19 sel for Advocacy of the Small Business Administration 

20 may waive the requirements of subsections (b) through (e) 

21 if the Chief Counsel determines that compliance with the 

22 requirements of such subsections are impracticable, un23 necessary, or contrary to the public interest. 

24 ‘‘(g) A small entity or a representative of a small enti25 ty may submit a request that the agency provide a copy 

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1 of the report prepared under subsection (d) and all mate2 rials and information provided to the Chief Counsel for 

3 Advocacy of the Small Business Administration under 

4 subsection (b). The agency receiving such request shall 

5 provide the report, materials and information to the re6 questing small entity or representative of a small entity 

7 not later than 10 business days after receiving such re8 quest, except that the agency shall not disclose any infor9 mation that is prohibited from disclosure to the public 

10 pursuant to section 552(b) of this title.’’. 

11 SEC. 307. PERIODIC REVIEW OF RULES. 

12 Section 610 of title 5, United States Code, is amend13 ed to read as follows: 

14 ‘‘§ 610. Periodic review of rules 

15 ‘‘(a) Not later than 180 days after the enactment of 

16 this section, each agency shall publish in the Federal Reg17 ister and place on its website a plan for the periodic review 

18 of rules issued by the agency which the head of the agency 

19 determines have a significant economic impact on a sub20 stantial number of small entities. Such determination shall 

21 be made without regard to whether the agency performed 

22 an analysis under section 604. The purpose of the review 

23 shall be to determine whether such rules should be contin24 ued without change, or should be amended or rescinded, 

25 consistent with the stated objectives of applicable statutes, 

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1 to minimize any adverse significant economic impacts or 

2 maximize any beneficial significant economic impacts on 

3 a substantial number of small entities. Such plan may be 

4 amended by the agency at any time by publishing the revi5 sion in the Federal Register and subsequently placing the 

6 amended plan on the agency’s website. 

7 ‘‘(b) The plan shall provide for the review of all such 

8 agency rules existing on the date of the enactment of this 

9 section within 10 years of the date of publication of the 

10 plan in the Federal Register and for review of rules adopt11 ed after the date of enactment of this section within 10 

12 years after the publication of the final rule in the Federal 

13 Register. If the head of the agency determines that com14 pletion of the review of existing rules is not feasible by 

15 the established date, the head of the agency shall so certify 

16 in a statement published in the Federal Register and may 

17 extend the review for not longer than 2 years after publi18 cation of notice of extension in the Federal Register. Such 

19 certification and notice shall be sent to the Chief Counsel 

20 for Advocacy of the Small Business Administration and 

21 the Congress. 

22 ‘‘(c) The plan shall include a section that details how 

23 an agency will conduct outreach to and meaningfully in24 clude small businesses (including small business concerns 

25 owned and controlled by women, small business concerns 

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1 owned and controlled by veterans, and small business con2 cerns owned and controlled by socially and economically 

3 disadvantaged individuals (as such terms are defined in 

4 the Small Business Act)) for the purposes of carrying out 

5 this section. The agency shall include in this section a plan 

6 for how the agency will contact small businesses and gath7 er their input on existing agency rules. 

8 ‘‘(d) Each agency shall annually submit a report re9 garding the results of its review pursuant to such plan 

10 to the Congress, the Chief Counsel for Advocacy of the 

11 Small Business Administration, and, in the case of agen12 cies other than independent regulatory agencies (as de13 fined in section 3502(5) of title 44) to the Administrator 

14 of the Office of Information and Regulatory Affairs of the 

15 Office of Management and Budget. Such report shall in16 clude the identification of any rule with respect to which 

17 the head of the agency made a determination described 

18 in paragraph (5) or (6) of subsection (e) and a detailed 

19 explanation of the reasons for such determination. 

20 ‘‘(e) In reviewing a rule pursuant to subsections (a) 

21 through (d), the agency shall amend or rescind the rule 

22 to minimize any adverse significant economic impact on 

23 a substantial number of small entities or disproportionate 

24 economic impact on a specific class of small entities, or 

25 maximize any beneficial significant economic impact of the 

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1 rule on a substantial number of small entities to the great2 est extent possible, consistent with the stated objectives 

3 of applicable statutes. In amending or rescinding the rule, 

4 the agency shall consider the following factors: 

5 ‘‘(1) The continued need for the rule. 

6 ‘‘(2) The nature of complaints received by the 

7 agency from small entities concerning the rule. 

8 ‘‘(3) Comments by the Regulatory Enforcement 

9 Ombudsman and the Chief Counsel for Advocacy of 

10 the Small Business Administration. 

11 ‘‘(4) The complexity of the rule. 

12 ‘‘(5) The extent to which the rule overlaps, du13 plicates, or conflicts with other Federal rules and, 

14 unless the head of the agency determines it to be in15 feasible, State, territorial, and local rules. 

16 ‘‘(6) The contribution of the rule to the cumu17 lative economic impact of all Federal rules on the 

18 class of small entities affected by the rule, unless the 

19 head of the agency determines that such calculations 

20 cannot be made and reports that determination in 

21 the annual report required under subsection (d). 

22 ‘‘(7) The length of time since the rule has been 

23 evaluated or the degree to which technology, eco24 nomic conditions, or other factors have changed in 

25 the area affected by the rule. 

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1 ‘‘(f) Each year, each agency shall publish in the Fed2 eral Register and on its website a list of rules to be re3 viewed pursuant to such plan. The agency shall include 

4 in the publication a solicitation of public comments on any 

5 further inclusions or exclusions of rules from the list, and 

6 shall respond to such comments. Such publication shall 

7 include a brief description of the rule, the reason why the 

8 agency determined that it has a significant economic im9 pact on a substantial number of small entities (without 

10 regard to whether it had prepared a final regulatory flexi11 bility analysis for the rule), and request comments from 

12 the public, the Chief Counsel for Advocacy of the Small 

13 Business Administration, and the Regulatory Enforce14 ment Ombudsman concerning the enforcement of the 

15 rule.’’. 

16 SEC. 308. JUDICIAL REVIEW OF COMPLIANCE WITH THE RE17 QUIREMENTS OF THE REGULATORY FLEXI18 BILITY ACT AVAILABLE AFTER PUBLICATION 

19 OF THE FINAL RULE. 

20 (a) IN GENERAL.—Paragraph (1) of section 611(a) 

21 of title 5, United States Code, is amended by striking 

22 ‘‘final agency action’’ and inserting ‘‘such rule’’. 

23 (b) JURISDICTION.—Paragraph (2) of such section is 

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1 tion if publication of the final rule constituted final agency 

2 action)’’ after ‘‘provision of law,’’. 

3 (c) TIME FOR BRINGING ACTION.—Paragraph (3) of 

4 such section is amended— 

5 (1) by striking ‘‘final agency action’’ and insert6 ing ‘‘publication of the final rule’’; and 

7 (2) by inserting ‘‘, in the case of a rule for 

8 which the date of final agency action is the same 

9 date as the publication of the final rule,’’ after ‘‘ex10 cept that’’. 

11 (d) INTERVENTION BY CHIEF COUNSEL FOR ADVO12 CACY.—Subsection (b) of section 612 of title 5, United 

13 States Code, is amended by inserting before the first pe14 riod ‘‘or agency compliance with section 601, 603, 604, 

15 605(b), 609, or 610’’. 

16 SEC. 309. JURISDICTION OF COURT OF APPEALS OVER 

17 RULES IMPLEMENTING THE REGULATORY 

18 FLEXIBILITY ACT. 

19 (a) IN GENERAL.—Section 2342 of title 28, United 

20 States Code, is amended— 

21 (1) in paragraph (6), by striking ‘‘and’’ at the 

22 end; 

23 (2) in paragraph (7), by striking the period at 

24 the end and inserting ‘‘; and’’; and 

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1 (3) by inserting after paragraph (7) the fol2 lowing new paragraph: 

3 ‘‘(8) all final rules under section 608(a) of title 

4 5.’’. 

5 (b) CONFORMING AMENDMENTS.—Paragraph (3) of 

6 section 2341 of title 28, United States Code, is amended— 

7 (1) in subparagraph (D), by striking ‘‘and’’ at 

8 the end; 

9 (2) in subparagraph (E), by striking the period 

10 at the end and inserting ‘‘; and’’; and 

11 (3) by adding at the end the following new sub12 paragraph: 

13 ‘‘(F) the Office of Advocacy of the Small 

14 Business Administration, when the final rule is 

15 under section 608(a) of title 5.’’. 

16 (c) AUTHORIZATION TO INTERVENE AND COMMENT

17 ON AGENCY COMPLIANCE WITH ADMINISTRATIVE PROCE18 DURE.—Subsection (b) of section 612 of title 5, United 

19 States Code, is amended by inserting ‘‘chapter 5, and 

20 chapter 7,’’ after ‘‘this chapter,’’. 

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1 SEC. 310. ESTABLISHMENT AND APPROVAL OF SMALL BUSI2 NESS CONCERN SIZE STANDARDS BY CHIEF 

3 COUNSEL FOR ADVOCACY. 

4 (a) IN GENERAL.—Subparagraph (A) of section 

5 3(a)(2) of the Small Business Act (15 U.S.C. 

6 632(a)(2)(A)) is amended to read as follows: 

7 ‘‘(A) IN GENERAL.—In addition to the cri8 teria specified in paragraph (1)— 

9 ‘‘(i) the Administrator may specify de10 tailed definitions or standards by which a 

11 business concern may be determined to be 

12 a small business concern for purposes of 

13 this Act or the Small Business Investment 

14 Act of 1958; and 

15 ‘‘(ii) the Chief Counsel for Advocacy 

16 may specify such definitions or standards 

17 for purposes of any other Act.’’. 

18 (b) APPROVAL BY CHIEF COUNSEL.—Clause (iii) of 

19 section 3(a)(2)(C) of the Small Business Act (15 U.S.C. 

20 632(a)(2)(C)(iii)) is amended to read as follows: 

21 ‘‘(iii) except in the case of a size 

22 standard prescribed by the Administrator, 

23 is approved by the Chief Counsel for Advo24 cacy.’’. 

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1 (c) INDUSTRY VARIATION.—Paragraph (3) of section 

2 3(a) of the Small Business Act (15 U.S.C. 632(a)(3)) is 

3 amended— 

4 (1) by inserting ‘‘or Chief Counsel for Advo5 cacy, as appropriate’’ before ‘‘shall ensure’’; and 

6 (2) by inserting ‘‘or Chief Counsel for Advo7 cacy’’ before the period at the end. 

8 (d) JUDICIAL REVIEW OF SIZE STANDARDS AP9 PROVED BY CHIEF COUNSEL.—Section 3(a) of the Small 

10 Business Act (15 U.S.C. 632(a)) is amended by adding 

11 at the end the following new paragraph: 

12 ‘‘(9) JUDICIAL REVIEW OF STANDARDS AP13 PROVED BY CHIEF COUNSEL.—In the case of an ac14 tion for judicial review of a rule which includes a 

15 definition or standard approved by the Chief Counsel 

16 for Advocacy under this subsection, the party seek17 ing such review shall be entitled to join the Chief 

18 Counsel as a party in such action.’’. 

19 SEC. 311. CLERICAL AMENDMENTS. 

20 (a) DEFINITIONS.—Section 601 of title 5, United 

21 States Code, is amended— 

22 (1) in paragraph (1)— 

23 (A) by striking the semicolon at the end 

24 and inserting a period; and 

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1 (B) by striking ‘‘(1) the term’’ and insert2 ing the following: 

3 ‘‘(1) AGENCY.—The term’’; 

4 (2) in paragraph (3)— 

5 (A) by striking the semicolon at the end 

6 and inserting a period; and 

7 (B) by striking ‘‘(3) the term’’ and insert8 ing the following: 

9 ‘‘(3) SMALL BUSINESS.—The term’’; 

10 (3) in paragraph (5)— 

11 (A) by striking the semicolon at the end 

12 and inserting a period; and 

13 (B) by striking ‘‘(5) the term’’ and insert14 ing the following: 

15 ‘‘(5) SMALL GOVERNMENTAL JURISDICTION.— 

16 The term’’; and 

17 (4) in paragraph (6)— 

18 (A) by striking ‘‘; and’’ and inserting a pe19 riod; and 

20 (B) by striking ‘‘(6) the term’’ and insert21 ing the following: 

22 ‘‘(6) SMALL ENTITY.—The term’’. 

23 (b) INCORPORATIONS BY REFERENCE AND CERTIFI24 CATIONS.—The heading of section 605 of title 5, United 

25 States Code, is amended to read as follows: 

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1 ‘‘§ 605. Incorporations by reference and certifi2 cations’’. 

3 (c) TABLE OF SECTIONS.—The table of sections for 

4 chapter 6 of title 5, United States Code, is amended— 

5 (1) by striking the item relating to section 605 

6 and inserting the following new item: 

‘‘605. Incorporations by reference and certifications.’’; 

7 (2) by striking the item relating to section 607 

8 and inserting the following new item: 

‘‘607. Quantification requirements.’’; 

9 and 

10 (3) by striking the item relating to section 608 

11 and inserting the following: 

‘‘608. Additional powers of Chief Counsel for Advocacy.’’. 

12 (d) OTHER CLERICAL AMENDMENTS TO CHAPTER

13 6.—Chapter 6 of title 5, United States Code, is amended 

14 as follows: 

15 (1) In section 603, by striking subsection (d). 

16 (2) In section 604(a) by striking the second 

17 paragraph (6). 

18 SEC. 312. AGENCY PREPARATION OF GUIDES. 

19 Section 212(a)(5) the Small Business Regulatory En20 forcement Fairness Act of 1996 (5 U.S.C. 601 note) is 

21 amended to read as follows: 

22 ‘‘(5) AGENCY PREPARATION OF GUIDES.—The 

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1 count the subject matter of the rule and the lan2 guage of relevant statutes, ensure that the guide is 

3 written using sufficiently plain language likely to be 

4 understood by affected small entities. Agencies may 

5 prepare separate guides covering groups or classes of 

6 similarly affected small entities and may cooperate 

7 with associations of small entities to distribute such 

8 guides. In developing guides, agencies shall solicit 

9 input from affected small entities or associations of 

10 affected small entities. An agency may prepare 

11 guides and apply this section with respect to a rule 

12 or a group of related rules.’’. 

13 SEC. 313. COMPTROLLER GENERAL REPORT. 

14 Not later than 90 days after the date of enactment 

15 of this title, the Comptroller General of the United States 

16 shall complete and publish a study that examines whether 

17 the Chief Counsel for Advocacy of the Small Business Ad18 ministration has the capacity and resources to carry out 

19 the duties of the Chief Counsel under this title and the 

20 amendments made by this title. 

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1 TITLE IV—SUNSHINE FOR REGU2 LATORY DECREES AND SET3 TLEMENTS ACT 

4 SEC. 401. SHORT TITLE. 

5 This title may be cited as the ‘‘Sunshine for Regu6 latory Decrees and Settlements Act of 2014’’. 

7 SEC. 402. DEFINITIONS. 

8 In this title— 

9 (1) the terms ‘‘agency’’ and ‘‘agency action’’ 

10 have the meanings given those terms under section 

11 551 of title 5, United States Code; 

12 (2) the term ‘‘covered civil action’’ means a civil 

13 action— 

14 (A) seeking to compel agency action; 

15 (B) alleging that the agency is unlawfully 

16 withholding or unreasonably delaying an agency 

17 action relating to a regulatory action that would 

18 affect the rights of— 

19 (i) private persons other than the per20 son bringing the action; or 

21 (ii) a State, local, or tribal govern22 ment; and 

23 (C) brought under— 

24 (i) chapter 7 of title 5, United States 

25 Code; or 

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1 (ii) any other statute authorizing such 

2 an action; 

3 (3) the term ‘‘covered consent decree’’ means— 

4 (A) a consent decree entered into in a cov5 ered civil action; and 

6 (B) any other consent decree that requires 

7 agency action relating to a regulatory action 

8 that affects the rights of— 

9 (i) private persons other than the per10 son bringing the action; or 

11 (ii) a State, local, or tribal govern12 ment; 

13 (4) the term ‘‘covered consent decree or settle14 ment agreement’’ means a covered consent decree 

15 and a covered settlement agreement; and 

16 (5) the term ‘‘covered settlement agreement’’ 

17 means— 

18 (A) a settlement agreement entered into in 

19 a covered civil action; and 

20 (B) any other settlement agreement that 

21 requires agency action relating to a regulatory 

22 action that affects the rights of— 

23 (i) private persons other than the per24 son bringing the action; or 

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1 (ii) a State, local, or tribal govern2 ment. 

3 SEC. 403. CONSENT DECREE AND SETTLEMENT REFORM. 

4 (a) PLEADINGS AND PRELIMINARY MATTERS.— 

5 (1) IN GENERAL.—In any covered civil action, 

6 the agency against which the covered civil action is 

7 brought shall publish the notice of intent to sue and 

8 the complaint in a readily accessible manner, includ9 ing by making the notice of intent to sue and the 

10 complaint available online not later than 15 days 

11 after receiving service of the notice of intent to sue 

12 or complaint, respectively. 

13 (2) ENTRY OF A COVERED CONSENT DECREE

14 OR SETTLEMENT AGREEMENT.—A party may not 

15 make a motion for entry of a covered consent decree 

16 or to dismiss a civil action pursuant to a covered set17 tlement agreement until after the end of proceedings 

18 in accordance with paragraph (1) and subpara19 graphs (A) and (B) of paragraph (2) of subsection 

20 (d) or subsection (d)(3)(A), whichever is later. 

21 (b) INTERVENTION.— 

22 (1) REBUTTABLE PRESUMPTION.—In consid23 ering a motion to intervene in a covered civil action 

24 or a civil action in which a covered consent decree 

25 or settlement agreement has been proposed that is 

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1 filed by a person who alleges that the agency action 

2 in dispute would affect the person, the court shall 

3 presume, subject to rebuttal, that the interests of 

4 the person would not be represented adequately by 

5 the existing parties to the action. 

6 (2) STATE, LOCAL, AND TRIBAL GOVERN7 MENTS.—In considering a motion to intervene in a 

8 covered civil action or a civil action in which a cov9 ered consent decree or settlement agreement has 

10 been proposed that is filed by a State, local, or tribal 

11 government, the court shall take due account of 

12 whether the movant— 

13 (A) administers jointly with an agency that 

14 is a defendant in the action the statutory provi15 sions that give rise to the regulatory action to 

16 which the action relates; or 

17 (B) administers an authority under State, 

18 local, or tribal law that would be preempted by 

19 the regulatory action to which the action re20 lates. 

21 (c) SETTLEMENT NEGOTIATIONS.—Efforts to settle 

22 a covered civil action or otherwise reach an agreement on 

23 a covered consent decree or settlement agreement shall— 

24 (1) be conducted pursuant to the mediation or 

25 alternative dispute resolution program of the court 

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1 or by a district judge other than the presiding judge, 

2 magistrate judge, or special master, as determined 

3 appropriate by the presiding judge; and 

4 (2) include any party that intervenes in the ac5 tion. 

6 (d) PUBLICATION OF AND COMMENT ON COVERED

7 CONSENT DECREES OR SETTLEMENT AGREEMENTS.— 

8 (1) IN GENERAL.—Not later than 60 days be9 fore the date on which a covered consent decree or 

10 settlement agreement is filed with a court, the agen11 cy seeking to enter the covered consent decree or 

12 settlement agreement shall publish in the Federal 

13 Register and online— 

14 (A) the proposed covered consent decree or 

15 settlement agreement; and 

16 (B) a statement providing— 

17 (i) the statutory basis for the covered 

18 consent decree or settlement agreement; 

19 and 

20 (ii) a description of the terms of the 

21 covered consent decree or settlement agree22 ment, including whether it provides for the 

23 award of attorneys’ fees or costs and, if so, 

24 the basis for including the award. 

25 (2) PUBLIC COMMENT.— 

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1 (A) IN GENERAL.—An agency seeking to 

2 enter a covered consent decree or settlement 

3 agreement shall accept public comment during 

4 the period described in paragraph (1) on any 

5 issue relating to the matters alleged in the com6 plaint in the applicable civil action or addressed 

7 or affected by the proposed covered consent de8 cree or settlement agreement. 

9 (B) RESPONSE TO COMMENTS.—An agency 

10 shall respond to any comment received under 

11 subparagraph (A). 

12 (C) SUBMISSIONS TO COURT.—When mov13 ing that the court enter a proposed covered con14 sent decree or settlement agreement or for dis15 missal pursuant to a proposed covered consent 

16 decree or settlement agreement, an agency 

17 shall— 

18 (i) inform the court of the statutory 

19 basis for the proposed covered consent de20 cree or settlement agreement and its 

21 terms; 

22 (ii) submit to the court a summary of 

23 the comments received under subparagraph 

24 (A) and the response of the agency to the 

25 comments; 

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1 (iii) submit to the court a certified 

2 index of the administrative record of the 

3 notice and comment proceeding; and 

4 (iv) make the administrative record 

5 described in clause (iii) fully accessible to 

6 the court. 

7 (D) INCLUSION IN RECORD.—The court 

8 shall include in the court record for a civil ac9 tion the certified index of the administrative 

10 record submitted by an agency under subpara11 graph (C)(iii) and any documents listed in the 

12 index which any party or amicus curiae appear13 ing before the court in the action submits to the 

14 court. 

15 (3) PUBLIC HEARINGS PERMITTED.— 

16 (A) IN GENERAL.—After providing notice 

17 in the Federal Register and online, an agency 

18 may hold a public hearing regarding whether to 

19 enter into a proposed covered consent decree or 

20 settlement agreement. 

21 (B) RECORD.—If an agency holds a public 

22 hearing under subparagraph (A)— 

23 (i) the agency shall— 

24 (I) submit to the court a sum25 mary of the proceedings; 

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1 (II) submit to the court a cer2 tified index of the hearing record; and 

3 (III) provide access to the hear4 ing record to the court; and 

5 (ii) the full hearing record shall be in6 cluded in the court record. 

7 (4) MANDATORY DEADLINES.—If a proposed 

8 covered consent decree or settlement agreement re9 quires an agency action by a date certain, the agen10 cy shall, when moving for entry of the covered con11 sent decree or settlement agreement or dismissal 

12 based on the covered consent decree or settlement 

13 agreement, inform the court of— 

14 (A) any required regulatory action the 

15 agency has not taken that the covered consent 

16 decree or settlement agreement does not ad17 dress; 

18 (B) how the covered consent decree or set19 tlement agreement, if approved, would affect 

20 the discharge of the duties described in sub21 paragraph (A); and 

22 (C) why the effects of the covered consent 

23 decree or settlement agreement on the manner 

24 in which the agency discharges its duties is in 

25 the public interest. 

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1 (e) SUBMISSION BY THE GOVERNMENT.— 

2 (1) IN GENERAL.—For any proposed covered 

3 consent decree or settlement agreement that con4 tains a term described in paragraph (2), the Attor5 ney General or, if the matter is being litigated inde6 pendently by an agency, the head of the agency shall 

7 submit to the court a certification that the Attorney 

8 General or head of the agency approves the proposed 

9 covered consent decree or settlement agreement. The 

10 Attorney General or head of the agency shall person11 ally sign any certification submitted under this para12 graph. 

13 (2) TERMS.—A term described in this para14 graph is— 

15 (A) in the case of a covered consent decree, 

16 a term that— 

17 (i) converts into a nondiscretionary 

18 duty a discretionary authority of an agency 

19 to propose, promulgate, revise, or amend 

20 regulations; 

21 (ii) commits an agency to expend 

22 funds that have not been appropriated and 

23 that have not been budgeted for the regu24 latory action in question; 

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1 (iii) commits an agency to seek a par2 ticular appropriation or budget authoriza3 tion; 

4 (iv) divests an agency of discretion 

5 committed to the agency by statute or the 

6 Constitution of the United States, without 

7 regard to whether the discretion was 

8 granted to respond to changing cir9 cumstances, to make policy or managerial 

10 choices, or to protect the rights of third 

11 parties; or 

12 (v) otherwise affords relief that the 

13 court could not enter under its own au14 thority upon a final judgment in the civil 

15 action; or 

16 (B) in the case of a covered settlement 

17 agreement, a term— 

18 (i) that provides a remedy for a fail19 ure by the agency to comply with the 

20 terms of the covered settlement agreement 

21 other than the revival of the civil action re22 solved by the covered settlement agree23 ment; and 

24 (ii) that— 

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1 (I) interferes with the authority 

2 of an agency to revise, amend, or 

3 issue rules under the procedures set 

4 forth in chapter 5 of title 5, United 

5 States Code, or any other statute or 

6 Executive order prescribing rule7 making procedures for a rulemaking 

8 that is the subject of the covered set9 tlement agreement; 

10 (II) commits the agency to ex11 pend funds that have not been appro12 priated and that have not been budg13 eted for the regulatory action in ques14 tion; or 

15 (III) for such a covered settle16 ment agreement that commits the 

17 agency to exercise in a particular way 

18 discretion which was committed to the 

19 agency by statute or the Constitution 

20 of the United States to respond to 

21 changing circumstances, to make pol22 icy or managerial choices, or to pro23 tect the rights of third parties. 

24 (f) REVIEW BY COURT.— 

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1 (1) AMICUS.—A court considering a proposed 

2 covered consent decree or settlement agreement shall 

3 presume, subject to rebuttal, that it is proper to 

4 allow amicus participation relating to the covered 

5 consent decree or settlement agreement by any per6 son who filed public comments or participated in a 

7 public hearing on the covered consent decree or set8 tlement agreement under paragraph (2) or (3) of 

9 subsection (d). 

10 (2) REVIEW OF DEADLINES.— 

11 (A) PROPOSED COVERED CONSENT DE12 CREES.—For a proposed covered consent de13 cree, a court shall not approve the covered con14 sent decree unless the proposed covered consent 

15 decree allows sufficient time and incorporates 

16 adequate procedures for the agency to comply 

17 with chapter 5 of title 5, United States Code, 

18 and other applicable statutes that govern rule19 making and, unless contrary to the public inter20 est, the provisions of any Executive order that 

21 governs rulemaking. 

22 (B) PROPOSED COVERED SETTLEMENT

23 AGREEMENTS.—For a proposed covered settle24 ment agreement, a court shall ensure that the 

25 covered settlement agreement allows sufficient 

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1 time and incorporates adequate procedures for 

2 the agency to comply with chapter 5 of title 5, 

3 United States Code, and other applicable stat4 utes that govern rulemaking and, unless con5 trary to the public interest, the provisions of 

6 any Executive order that governs rulemaking. 

7 (g) ANNUAL REPORTS.—Each agency shall submit to 

8 Congress an annual report that, for the year covered by 

9 the report, includes— 

10 (1) the number, identity, and content of covered 

11 civil actions brought against and covered consent de12 crees or settlement agreements entered against or 

13 into by the agency; and 

14 (2) a description of the statutory basis for— 

15 (A) each covered consent decree or settle16 ment agreement entered against or into by the 

17 agency; and 

18 (B) any award of attorneys fees or costs in 

19 a civil action resolved by a covered consent de20 cree or settlement agreement entered against or 

21 into by the agency. 

22 SEC. 404. MOTIONS TO MODIFY CONSENT DECREES. 

23 If an agency moves a court to modify a covered con24 sent decree or settlement agreement and the basis of the 

25 motion is that the terms of the covered consent decree or 

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1 settlement agreement are no longer fully in the public in2 terest due to the obligations of the agency to fulfill other 

3 duties or due to changed facts and circumstances, the 

4 court shall review the motion and the covered consent de5 cree or settlement agreement de novo. 

6 SEC. 405. EFFECTIVE DATE. 

7 This title shall apply to— 

8 (1) any covered civil action filed on or after the 

9 date of enactment of this title; and 

10 (2) any covered consent decree or settlement 

11 agreement proposed to a court on or after the date 

12 of enactment of this title. 

Passed the House of Representatives February 27, 

2014. 

Attest: KAREN L. HAAS, 

Clerk. 

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