II 

116TH CONGRESS 

1ST SESSION S. 1419 

To require agencies to publish an advance notice of proposed rulemaking 

for major rules. 

IN THE SENATE OF THE UNITED STATES 

MAY 13, 2019 

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 2019’’. 

6 SEC. 2. ADVANCE NOTICE OF PROPOSED RULEMAKING. 

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 on the abil18 ity of United States-based enterprises to com19 pete with foreign-based enterprises in domestic 

20 and export 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 RULEMAKING

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 rule8 making for a major rule in the Federal Register, the 

9 agency shall publish an advance notice of proposed 

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

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

13 proposed rulemaking 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 and other 

20 information on which the agency at the 

21 time expects to rely for the proposed major 

22 rule; 

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


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1 ‘‘(iii) the legal authority under which 

2 a major rule may be proposed; and 

3 ‘‘(iv) an achievable objective for the 

4 major rule; 

5 ‘‘(B) solicit written data, views, and argu6 ment from interested persons concerning the in7 formation and issues identified in the advance 

8 notice; and 

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

10 60 days for interested persons to submit such 

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

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

13 apply to a major rule if— 

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

15 is not required to publish a notice of proposed 

16 rulemaking in the Federal Register for the 

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

18 subsection (b); or 

19 ‘‘(B) the Administrator of the Office of In20 formation and Regulatory Affairs determines 

21 that complying with the requirements described 

22 in this subsection— 

23 ‘‘(i) would not serve the public inter24 est; or 


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1 ‘‘(ii) would be unduly burdensome and 

2 duplicative of processes required by specific 

3 statutory requirements as rigorous as 

4 those prescribed in paragraph (2). 

5 ‘‘(4) JUDICIAL REVIEW.— 

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

7 by the Administrator of the Office of Informa8 tion and Regulatory Affairs in accordance with 

9 paragraph (3)(B) shall not be subject to judi10 cial review. 

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

12 difference between policies set forth in the writ13 ten statement of an agency under paragraph 

14 (2)(A) and the notice of proposed rulemaking 

15 shall not be reviewable under section 

16 706(2)(A).’’. 

Æ 


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