II 

117TH CONGRESS 

1ST SESSION S. 2804 

To require agencies to publish an advance notice of proposed rulemaking 

for major rules. 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 22 (legislative day, SEPTEMBER 21), 2021 

Mr. LANKFORD (for himself and Ms. SINEMA) introduced the following bill; 

which was read twice and referred to the Committee on Homeland Security and Governmental Affairs 

A BILL 

To require agencies to publish an advance notice of proposed 

rulemaking 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 2021’’. 

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

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

8 Code, is amended— 

9 (1) in section 551— 


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

2 at the end; 

3 (B) in paragraph (14), by striking the pe4 riod at the end and inserting a semicolon; and 

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

6 ‘‘(15) ‘major rule’ means any rule that the Ad7 ministrator of the Office of Information and Regu8 latory Affairs determines is likely to impose— 

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

10 $100,000,000 or more; 

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

12 consumers, individual industries, Federal, 

13 State, local, or tribal government agencies, or 

14 geographic regions; or 

15 ‘‘(C) significant effects on competition, em16 ployment, investment, productivity, innovation, 

17 health, safety, the environment, or the ability of 

18 United States-based enterprises to compete with 

19 foreign-based enterprises in domestic and ex20 port markets; and 

21 ‘‘(16) ‘Office of Information and Regulatory Af22 fairs’ means the office established under section 

23 3503 of title 44 and any successor to that office.’’; 

24 and 


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1 (2) in section 553, by adding at the end the fol2 lowing: 

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

4 FOR MAJOR RULES.— 

5 ‘‘(1) IN GENERAL.—Except as provided in para6 graph (3), not later than 90 days before the date on 

7 which an agency publishes a notice of proposed rule 

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

9 agency shall publish an advance notice of proposed 

10 rule making for the major rule in the Federal Reg11 ister. 

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

13 proposed rule making published under paragraph (1) 

14 shall— 

15 ‘‘(A) include a written statement identi16 fying, at a minimum— 

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

18 problem the agency may address with a 

19 major rule, including any data or cat20 egories of data that the agency has identi21 fied as relevant or that the agency intends 

22 to consult for the proposed major rule; 

23 ‘‘(ii) a general description of regu24 latory alternatives under consideration; 

25 and 


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1 ‘‘(iii) the legal authority under which 

2 a major rule may be proposed; 

3 ‘‘(B) solicit written data, views, and argu4 ment from interested persons concerning the in5 formation and issues identified in the advance 

6 notice; and 

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

8 30 days for interested persons to submit such 

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

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

11 apply to a major rule if— 

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

13 is not required to publish a notice of proposed 

14 rule making in the Federal Register for the 

15 major rule under subparagraph (A) or (B) of 

16 subsection (b); 

17 ‘‘(B) the Administrator of the Office of In18 formation and Regulatory Affairs determines 

19 that complying with the requirements described 

20 in this subsection— 

21 ‘‘(i) would not serve the public inter22 est; 

23 ‘‘(ii) would be duplicative of processes 

24 as rigorous and effective as those pre25 scribed in paragraph (2) and would be unVerDate Sep 11 2014 01:24 Sep 25, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2804.IS S2804

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1 necessary to ensure meaningful public par2 ticipation; or 

3 ‘‘(iii) would not be practicable due to 

4 a statutory or court-imposed deadline; or 

5 ‘‘(C) the Administrator of the Office of In6 formation and Regulatory Affairs determines 

7 that the major rule falls within a category of 

8 major rules that are routine or periodic in na9 ture. 

10 ‘‘(4) JUDICIAL REVIEW.— 

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

12 by the Administrator of the Office of Informa13 tion and Regulatory Affairs in accordance with 

14 subparagraph (B) or (C) of paragraph (3) shall 

15 not be subject to judicial review. 

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

17 difference between policies set forth in the writ18 ten statement of an agency under paragraph 

19 (2)(A) and the notice of proposed rule making 

20 shall not be reviewable under section 

21 706(2)(A).’’. 

Æ 


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