II 

Calendar No. 614 

114TH CONGRESS 

2D SESSION S. 1820 

[Report No. 114–343] 

To require agencies to publish an advance notice of proposed rule making 

for major rules. 

IN THE SENATE OF THE UNITED STATES 

JULY 21, 2015 

Mr. LANKFORD (for himself, Ms. HEITKAMP, Ms. AYOTTE, Mrs. ERNST, and 

Mr. KIRK) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs 

SEPTEMBER 6, 2016 

Reported by Mr. JOHNSON, with an amendment 

[Strike out all after the enacting clause and insert the part printed in italic] 

A BILL 

To require agencies to publish an advance notice of proposed 

rule making for major rules. 

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

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Early Participation 

5 in Regulations Act of 2015’’. 


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1 SEC. 2. ADVANCE NOTICE OF PROPOSED RULE MAKING. 

2 Subchapter II of chapter 5 of title 5, United States 

3 Code, is amended— 

4 (1) in section 551— 

5 (A) in paragraph (13), by striking ‘‘and’’ 

6 at the end; 

7 (B) in paragraph (14), by striking the pe8 riod at the end and inserting a semicolon; and 

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

10 ‘‘(15) ‘major rule’ means any rule that the Ad11 ministrator of the Office of Information and Regu12 latory Affairs determines is likely to impose— 

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

14 $100,000,000 or more; 

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

16 consumers, individual industries, Federal, 

17 State, local, or tribal government agencies, or 

18 geographic regions; or 

19 ‘‘(C) significant effects on competition, em20 ployment, investment, productivity, innovation, 

21 or on the ability of United States-based enter22 prises to compete with foreign-based enterprises 

23 in domestic and export markets; and 

24 ‘‘(16) 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.’’; and 

3 (2) in section 553, by adding at the end the fol4 lowing: 

5 ‘‘(f) ADVANCE NOTICE OF PROPOSED RULE MAKING

6 FOR MAJOR RULES.— 

7 ‘‘(1) IN GENERAL.—Except as provided in para8 graph (3), not later than 90 days before the date on 

9 which an agency publishes a notice of proposed rule 

10 making for a major rule in the Federal Register, the 

11 agency shall publish an advance notice of proposed 

12 rule making for the major rule in the Federal Reg13 ister. 

14 ‘‘(2) REQUIREMENTS.—An advance notice of 

15 proposed rule making published under paragraph (1) 

16 shall— 

17 ‘‘(A) include a written statement identi18 fying, at a minimum— 

19 ‘‘(i) the nature and significance of the 

20 problem the agency may address with a 

21 major rule, including data and other evi22 dence and information on which the agency 

23 expects to rely for the proposed major rule; 

24 ‘‘(ii) the legal authority under which a 

25 major rule may be proposed, including 


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1 whether a rule making is required by stat2 ute, and if so, whether by a specific date, 

3 or whether the agency has discretion to 

4 commence a rule making; and 

5 ‘‘(iii) an achievable objective for the 

6 major rule and metrics by which the agen7 cy will measure progress toward that objec8 tive; 

9 ‘‘(B) solicit written data, views, and argu10 ment from interested persons concerning the in11 formation and issues addressed in the advance 

12 notice; and 

13 ‘‘(C) provide for a period of not less than 

14 60 days for interested persons to submit such 

15 written data, views, or argument to the agency. 

16 ‘‘(3) EXCEPTIONS.—This subsection shall not 

17 apply to a major rule if— 

18 ‘‘(A) the agency proposing the major rule 

19 is not required to publish a notice of proposed 

20 rule making in the Federal Register for the 

21 major rule under subsection (b)(3)(B); 

22 ‘‘(B) the Administrator of the Office of In23 formation and Regulatory Affairs determines 

24 that the requirements described in this sub25 section would not serve the public interest; or 


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1 ‘‘(C) the agency proposing the major rule 

2 is otherwise specifically exempted by law from 

3 the notice and comment rule making procedures 

4 under this section.’’. 

5 SECTION 1. SHORT TITLE. 

6 This Act may be cited as the ‘‘Early Participation in 

7 Regulations Act of 2015’’. 

8 SEC. 2. ADVANCE NOTICE OF PROPOSED RULE MAKING. 

9 Subchapter II of chapter 5 of title 5, United States 

10 Code, is amended— 

11 (1) in section 551— 

12 (A) in paragraph (13), by striking ‘‘and’’ 

13 at the end; 

14 (B) in paragraph (14), by striking the pe15 riod at the end and inserting a semicolon; and 

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

17 ‘‘(15) ‘major rule’ means any rule that the Ad18 ministrator of the Office of Information and Regu19 latory Affairs determines is likely to impose— 

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

21 $100,000,000 or more; 

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

23 consumers, individual industries, Federal, State, 

24 local, or tribal government agencies, or geo25 graphic regions; or 


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1 ‘‘(C) significant effects on competition, em2 ployment, investment, productivity, innovation, 

3 or on the ability of United States-based enter4 prises to compete with foreign-based enterprises 

5 in domestic and export markets; and 

6 ‘‘(16) the ‘Office of Information and Regulatory 

7 Affairs’ means the office established under section 

8 3503 of chapter 35 of title 44 and any successor to 

9 that office.’’; and 

10 (2) in section 553, by adding at the end the fol11 lowing: 

12 ‘‘(f) ADVANCE NOTICE OF PROPOSED RULE MAKING

13 FOR MAJOR RULES.— 

14 ‘‘(1) IN GENERAL.—Except as provided in para15 graph (3), not later than 90 days before the date on 

16 which an agency publishes a notice of proposed rule 

17 making for a major rule in the Federal Register, the 

18 agency shall publish an advance notice of proposed 

19 rule making for the major rule in the Federal Reg20 ister. 

21 ‘‘(2) REQUIREMENTS.—An advance notice of 

22 proposed rule making published under paragraph (1) 

23 shall— 

24 ‘‘(A) include a written statement identi25 fying, at a minimum— 


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1 ‘‘(i) the nature and significance of the 

2 problem the agency may address with a 

3 major rule, including data and other evi4 dence and information on which the agency 

5 expects to rely for the proposed major rule; 

6 ‘‘(ii) a general description of regu7 latory alternatives under consideration; 

8 ‘‘(iii) the legal authority under which 

9 a major rule may be proposed, including 

10 whether a rule making is required by stat11 ute, and if so, whether by a specific date, or 

12 whether the agency has discretion to com13 mence a rule making; and 

14 ‘‘(iv) an achievable objective for the 

15 major rule and metrics by which the agency 

16 expects to measure progress toward that ob17 jective; 

18 ‘‘(B) solicit written data, views, and argu19 ment from interested persons concerning the in20 formation and issues addressed in the advance 

21 notice; and 

22 ‘‘(C) provide for a period of not less than 60 

23 days for interested persons to submit such writ24 ten data, views, or argument to the agency. 


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1 ‘‘(3) EXCEPTIONS.—This subsection shall not 

2 apply to a major rule if— 

3 ‘‘(A) the agency proposing the major rule is 

4 not required to publish a notice of proposed rule 

5 making in the Federal Register for the major 

6 rule under subsection (b)(3)(B); 

7 ‘‘(B) the Administrator of the Office of In8 formation and Regulatory Affairs determines 

9 that complying with the requirements described 

10 in this subsection— 

11 ‘‘(i) would not serve the public interest; 

12 or 

13 ‘‘(ii) would be unduly burdensome and 

14 duplicative of processes required by specific 

15 statutory requirements as rigorous as those 

16 prescribed in paragraph (2); or 

17 ‘‘(C) the agency proposing the major rule is 

18 otherwise specifically exempted by law from the 

19 notice and comment rule making procedures 

20 under this section. 

21 ‘‘(4) JUDICIAL REVIEW.— 

22 ‘‘(A) IN GENERAL.—A determination made 

23 by the Administrator of the Office of Information 

24 and Regulatory Affairs in accordance with paraVerDate Sep 11 2014 23:00 Sep 06, 2016 Jkt 059200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6203 E:\BILLS\S1820.RS S1820

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1 graph (3)(B) shall not be subject to judicial re2 view. 

3 ‘‘(B) ARBITRARY AND CAPRICIOUS.—Any 

4 deviation between policies set forth in the written 

5 statement of an agency under paragraph (2)(A) 

6 and any final agency action shall not be consid7 ered arbitrary, capricious, an abuse of discre8 tion, or otherwise not in accordance with the law 

9 under section 706(2)(A).’’. 


sradovich on DSK3GMQ082PROD with BILLS
Calendar No. 614 

114TH CONGRESS 

2D SESSION S. 1820 

[Report No. 114–343] 

A BILL 

To require agencies to publish an advance notice of 

proposed rule making for major rules. 

SEPTEMBER 6, 2016 

Reported with an amendment 


sradovich on DSK3GMQ082PROD with BILLS