IIB 

114TH CONGRESS 

1ST SESSION H. R. 185 

IN THE SENATE OF THE UNITED STATES 

JANUARY 16, 2015 

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

Governmental Affairs 

AN ACT 

To reform the process by which Federal agencies analyze 

and formulate new regulations and guidance documents. 

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


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Regulatory Account3 ability Act of 2015’’. 

4 SEC. 2. DEFINITIONS. 

5 Section 551 of title 5, United States Code, is amend6 ed— 

7 (1) in paragraph (13), by striking ‘‘and’’ at the 

8 end; 

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

10 the end and inserting a semicolon; and 

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

12 ‘‘(15) ‘major rule’ means any rule that the Ad13 ministrator of the Office of Information and Regu14 latory Affairs determines is likely to impose— 

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

16 $100,000,000 or more, adjusted annually for 

17 inflation; 

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

19 consumers, individual industries, Federal, 

20 State, local, or tribal government agencies, or 

21 geographic regions; 

22 ‘‘(C) significant adverse effects on competi23 tion, employment, investment, productivity, in24 novation, or on the ability of United States25 based enterprises to compete with foreign-based 

26 enterprises in domestic and export markets; or 


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1 ‘‘(D) significant impacts on multiple sec2 tors of the economy; 

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

4 the Administrator of the Office of Information and 

5 Regulatory Affairs determines is likely to impose an 

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

7 more, adjusted annually for inflation; 

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

9 means any rule that the agency that made the rule 

10 or the Administrator of the Office of Information 

11 and Regulatory Affairs determines is likely to— 

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

13 that has a 6-digit code under the North Amer14 ican Industry Classification System, reduce em15 ployment not related to new regulatory compli16 ance by 1 percent or more annually during the 

17 1-year, 5-year, or 10-year period after imple18 mentation; 

19 ‘‘(B) in one or more sectors of the econ20 omy that has a 6-digit code under the North 

21 American Industry Classification System, re22 duce average weekly wages for employment not 

23 related to new regulatory compliance by 1 per24 cent or more annually during the 1-year, 5- 

25 year, or 10-year period after implementation; 


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

2 defined in the Current Population Survey con3 ducted by the Bureau of Labor Statistics) in 

4 which the most recent annual unemployment 

5 rate for the industry area is greater than 5 per6 cent, as determined by the Bureau of Labor 

7 Statistics in the Current Population Survey, re8 duce employment not related to new regulatory 

9 compliance during the first year after imple10 mentation; or 

11 ‘‘(D) in any industry area in which the Bu12 reau of Labor Statistics projects in the Occupa13 tional Employment Statistics program that the 

14 employment level will decrease by 1 percent or 

15 more, further reduce employment not related to 

16 new regulatory compliance during the first year 

17 after implementation; 

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

19 general applicability and future effect, other than a 

20 regulatory action, that sets forth a policy on a statu21 tory, regulatory or technical issue or an interpreta22 tion of a statutory or regulatory issue; 

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

24 Administrator of the Office of Information and Reg25 ulatory Affairs finds is likely to lead to— 


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

2 $100,000,000 or more, adjusted annually for 

3 inflation; 

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

5 consumers, individual industries, Federal, 

6 State, local or tribal government agencies, or 

7 geographic regions; 

8 ‘‘(C) significant adverse effects on competi9 tion, employment, investment, productivity, in10 novation, or on the ability of United States11 based enterprises to compete with foreign-based 

12 enterprises in domestic and export markets; or 

13 ‘‘(D) significant impacts on multiple sec14 tors of the economy; 

15 ‘‘(20) the ‘Information Quality Act’ means sec16 tion 515 of Public Law 106–554, the Treasury and 

17 General Government Appropriations Act for Fiscal 

18 Year 2001, and guidelines issued by the Adminis19 trator of the Office of Information and Regulatory 

20 Affairs or other agencies pursuant to the Act; and 

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

22 Affairs’ means the office established under section 

23 3503 of chapter 35 of title 44 and any successor to 

24 that office.’’. 


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1 SEC. 3. RULE MAKING. 

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

3 amended by striking ‘‘(a) This section applies’’ and insert4 ing ‘‘(a) APPLICABILITY.—This section applies’’. 

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

6 amended by striking subsections (b) through (e) and in7 serting the following: 

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

9 making, an agency shall make all preliminary and final 

10 factual determinations based on evidence and consider, in 

11 addition to other applicable considerations, the following: 

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

13 may be proposed, including whether a rule making 

14 is required by statute, and if so, whether by a spe15 cific date, or whether the agency has discretion to 

16 commence a rule making. 

17 ‘‘(2) Other statutory considerations applicable 

18 to whether the agency can or should propose a rule 

19 or undertake other agency action. 

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

21 problem the agency may address with a rule (includ22 ing the degree and nature of risks the problem poses 

23 and the priority of addressing those risks compared 

24 to other matters or activities within the agency’s ju25 risdiction), whether the problem warrants new agenVerDate Sep 11 2014 21:07 Jan 16, 2015 Jkt 049200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H185.RFS H185

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1 cy action, and the countervailing risks that may be 

2 posed by alternatives for new agency action. 

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

4 contributed to the problem the agency may address 

5 with a rule and whether those rules could be amend6 ed or rescinded to address the problem in whole or 

7 part. 

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

9 or other response identified by the agency or inter10 ested persons, including not only responses that 

11 mandate particular conduct or manners of compli12 ance, but also— 

13 ‘‘(A) the alternative of no Federal re14 sponse; 

15 ‘‘(B) amending or rescinding existing 

16 rules; 

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

18 tribal regulatory action or other responses that 

19 could be taken in lieu of agency action; and 

20 ‘‘(D) potential responses that— 

21 ‘‘(i) specify performance objectives 

22 rather than conduct or manners of compli23 ance; 

24 ‘‘(ii) establish economic incentives to 

25 encourage desired behavior; 


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1 ‘‘(iii) provide information upon which 

2 choices can be made by the public; or 

3 ‘‘(iv) incorporate other innovative al4 ternatives rather than agency actions that 

5 specify conduct or manners of compliance. 

6 ‘‘(6) Notwithstanding any other provision of 

7 law— 

8 ‘‘(A) the potential costs and benefits asso9 ciated with potential alternative rules and other 

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

11 including direct, indirect, and cumulative costs 

12 and benefits and estimated impacts on jobs (in13 cluding an estimate of the net gain or loss in 

14 domestic jobs), wages, economic growth, innova15 tion, economic competitiveness, and impacts on 

16 low income populations; 

17 ‘‘(B) means to increase the cost-effective18 ness of any Federal response; and 

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

20 predictability, lower costs of enforcement and 

21 compliance (to government entities, regulated 

22 entities, and the public), and flexibility. 

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

24 FOR MAJOR RULES, HIGH-IMPACT RULES, NEGATIVE-IM25 PACT ON JOBS AND WAGES RULES, AND RULES INVOLVVerDate Sep 11 2014 21:07 Jan 16, 2015 Jkt 049200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H185.RFS H185

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1 ING NOVEL LEGAL OR POLICY ISSUES.—In the case of 

2 a rule making for a major rule, a high-impact rule, a nega3 tive-impact on jobs and wages rule, or a rule that involves 

4 a novel legal or policy issue arising out of statutory man5 dates, not later than 90 days before a notice of proposed 

6 rule making is published in the Federal Register, an agen7 cy shall publish advance notice of proposed rule making 

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

9 the agency shall— 

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

11 a minimum— 

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

13 problem the agency may address with a rule, in14 cluding data and other evidence and informa15 tion on which the agency expects to rely for the 

16 proposed rule; 

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

18 may be proposed, including whether a rule mak19 ing is required by statute, and if so, whether by 

20 a specific date, or whether the agency has dis21 cretion to commence a rule making; 

22 ‘‘(C) preliminary information available to 

23 the agency concerning the other considerations 

24 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 

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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 proVerDate Sep 11 2014 21:07 Jan 16, 2015 Jkt 049200 PO 00000 Frm 00015 Fmt 6652 Sfmt 6201 E:\BILLS\H185.RFS H185

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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 comVerDate Sep 11 2014 21:07 Jan 16, 2015 Jkt 049200 PO 00000 Frm 00016 Fmt 6652 Sfmt 6201 E:\BILLS\H185.RFS H185

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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 obVerDate Sep 11 2014 21:07 Jan 16, 2015 Jkt 049200 PO 00000 Frm 00017 Fmt 6652 Sfmt 6201 E:\BILLS\H185.RFS H185

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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 

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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. 4. AGENCY GUIDANCE; PROCEDURES TO ISSUE MAJOR 

9 GUIDANCE; PRESIDENTIAL AUTHORITY TO 

10 ISSUE GUIDELINES FOR ISSUANCE OF GUID11 ANCE. 

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 

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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. 5. 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. 6. 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. 7. 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. 8. 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. 9. EFFECTIVE DATE. 

19 The amendments made by this Act 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 Act. 

Passed the House of Representatives January 13, 

2015. 

Attest: KAREN L. HAAS, 

Clerk. 


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