II 

Calendar No. 192 

116TH CONGRESS 

1ST SESSION S. 1419 

[Report No. 116–88] 

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 

SEPTEMBER 10, 2019 

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 

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’’. 


pamtmann on DSKBC07HB2PROD with BILLS
2 

•S 1419 RS

1 SEC. 2. ADVANCE NOTICE OF PROPOSED RULEMAKING. 

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 health, safety, the environment, or on the abil22 ity of United States-based enterprises to com23 pete with foreign-based enterprises in domestic 

24 and export markets; and 

25 ‘‘(16) ‘Office of Information and Regulatory Af26 fairs’ means the office established under section 


pamtmann on DSKBC07HB2PROD with BILLS
3 

•S 1419 RS

1 3503 of title 44 and any successor to that office.’’; 

2 and 

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

5 ‘‘(f) ADVANCE NOTICE OF PROPOSED RULEMAKING

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 rule10 making for a major rule in the Federal Register, the 

11 agency shall publish an advance notice of proposed 

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

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

15 proposed rulemaking 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 any data and other 

22 information on which the agency at the 

23 time expects to rely for the proposed major 

24 rule; 


pamtmann on DSKBC07HB2PROD with BILLS
4 

•S 1419 RS

1 ‘‘(ii) a general description of regu2 latory alternatives under consideration; 

3 ‘‘(iii) the legal authority under which 

4 a major rule may be proposed; and 

5 ‘‘(iv) an achievable objective for the 

6 major rule; 

7 ‘‘(B) solicit written data, views, and argu8 ment from interested persons concerning the in9 formation and issues identified in the advance 

10 notice; and 

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

12 60 days for interested persons to submit such 

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

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

15 apply to a major rule if— 

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

17 is not required to publish a notice of proposed 

18 rulemaking in the Federal Register for the 

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

20 subsection (b); or 

21 ‘‘(B) the Administrator of the Office of In22 formation and Regulatory Affairs determines 

23 that complying with the requirements described 

24 in this subsection— 


pamtmann on DSKBC07HB2PROD with BILLS
5 

•S 1419 RS

1 ‘‘(i) would not serve the public inter2 est; or 

3 ‘‘(ii) would be unduly burdensome and 

4 duplicative of processes required by specific 

5 statutory requirements as rigorous as 

6 those prescribed in paragraph (2). 

7 ‘‘(4) JUDICIAL REVIEW.— 

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

9 by the Administrator of the Office of Informa10 tion and Regulatory Affairs in accordance with 

11 paragraph (3)(B) shall not be subject to judi12 cial review. 

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

14 difference between policies set forth in the writ15 ten statement of an agency under paragraph 

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

17 shall not be reviewable under section 

18 706(2)(A).’’. 

19 SECTION 1. SHORT TITLE. 

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

21 Regulations Act of 2019’’. 

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

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

24 Code, is amended— 

25 (1) in section 551— 


pamtmann on DSKBC07HB2PROD with BILLS
6 

•S 1419 RS

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, State, 

13 local, or tribal government agencies, or geo14 graphic 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 export 

20 markets; and 

21 ‘‘(16) ‘Office of Information and Regulatory Af22 fairs’ means the office established under section 3503 

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

24 (2) in section 553, by adding at the end the fol25 lowing: 


pamtmann on DSKBC07HB2PROD with BILLS
7 

•S 1419 RS

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

2 FOR MAJOR RULES.— 

3 ‘‘(1) IN GENERAL.—Except as provided in para4 graph (3), not later than 90 days before the date on 

5 which an agency publishes a notice of proposed rule 

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

7 agency shall publish an advance notice of proposed 

8 rule making for the major rule in the Federal Reg9 ister. 

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

11 proposed rule making published under paragraph (1) 

12 shall— 

13 ‘‘(A) include a written statement identi14 fying, at a minimum— 

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

16 problem the agency may address with a 

17 major rule, including any data or categories 

18 of data that the agency has identified as rel19 evant or that the agency intends to consult 

20 for the proposed major rule; 

21 ‘‘(ii) a general description of regu22 latory alternatives under consideration; and 

23 ‘‘(iii) the legal authority under which 

24 a major rule may be proposed; 


pamtmann on DSKBC07HB2PROD with BILLS
8 

•S 1419 RS

1 ‘‘(B) solicit written data, views, and argu2 ment from interested persons concerning the in3 formation and issues identified in the advance 

4 notice; and 

5 ‘‘(C) provide for a period of not less than 30 

6 days for interested persons to submit such writ7 ten data, views, or argument to the agency. 

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

9 apply to a major rule if— 

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

11 not required to publish a notice of proposed rule 

12 making in the Federal Register for the major 

13 rule under subparagraph (A) or (B) of subsection 

14 (b); 

15 ‘‘(B) the Administrator of the Office of In16 formation and Regulatory Affairs determines 

17 that complying with the requirements described 

18 in this subsection— 

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

20 ‘‘(ii) would be duplicative of processes 

21 as rigorous and effective as those prescribed 

22 in paragraph (2) and would be unnecessary 

23 to ensure meaningful public participation; 

24 or 


pamtmann on DSKBC07HB2PROD with BILLS
9 

•S 1419 RS

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

2 a statutory or court-imposed deadline; or 

3 ‘‘(C) the Administrator of the Office of In4 formation and Regulatory Affairs determines 

5 that the major rule falls within a category of 

6 major rules that are routine or periodic in na7 ture. 

8 ‘‘(4) JUDICIAL REVIEW.— 

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

10 by the Administrator of the Office of Information 

11 and Regulatory Affairs in accordance with sub12 paragraph (B) or (C) of paragraph (3) shall not 

13 be subject to judicial review. 

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

15 difference between policies set forth in the writ16 ten statement of an agency under paragraph 

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

18 shall not be reviewable under section 

19 706(2)(A).’’. 


pamtmann on DSKBC07HB2PROD with BILLS
Calendar No. 192 

116TH CONGRESS 

1ST SESSION S. 1419 

[Report No. 116–88] 

A BILL 

To require agencies to publish an advance notice of 

proposed rulemaking for major rules. 

SEPTEMBER 10, 2019 

Reported with an amendment 


pamtmann on DSKBC07HB2PROD with BILLS