II 

110TH CONGRESS 

1ST SESSION S. 1599 

To amend the National Energy Conservation Policy Act to provide for energyrelated regulatory reform, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JUNE 12, 2007 

Mr. HAGEL introduced the following bill; which was read twice and referred 

to the Committee on Energy and Natural Resources 

A BILL 

To amend the National Energy Conservation Policy Act to 

provide for energy-related regulatory reform, and for 

other purposes. 

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

3 SECTION 1. PROCESS COORDINATION AND RULES OF PRO4 CEDURE. 

5 (a) DEFINITIONS.—In this section: 

6 (1) ADMINISTRATOR.—The term ‘‘Adminis7 trator’’ means the Administrator of the Environ8 mental Protection Agency. 

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1 (2) CHAIRPERSON.—The term ‘‘Chairperson’’ 

2 means the Chairperson of the Nuclear Regulatory 

3 Commission. 

4 (3) FEDERAL ENERGY AUTHORIZATION.— 

5 (A) IN GENERAL.—The term ‘‘Federal en6 ergy authorization’’ means any authorization 

7 required under Federal law (including regula8 tions), regardless of whether the law is adminis9 tered by a Federal or State administrative 

10 agency or official, with respect to the siting, 

11 construction, expansion, or operation of an en12 ergy facility, including— 

13 (i) a coal-fired electric generating 

14 plant; 

15 (ii) a nuclear power electric gener16 ating plant; 

17 (iii) a natural gas-fired electric gener18 ating plant; 

19 (iv) a waste-to-energy facility; 

20 (v) a geothermal electric generating 

21 facility; 

22 (vi) a wind or solar electric generating 

23 facility; 

24 (vii) a petroleum refinery; 

25 (viii) a biorefinery; 

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1 (ix) a biogas conversion unit; 

2 (x) a shale-oil production site; or 

3 (xi) an oil or gas exploration and pro4 duction lease. 

5 (B) INCLUSIONS.—The term ‘‘Federal en6 ergy authorization’’ includes any permit, special 

7 use authorization, certification, opinion, or 

8 other approval required under Federal law (in9 cluding regulations) with respect to the siting, 

10 construction, expansion, or operation of an en11 ergy facility referred to in subparagraph (A). 

12 (b) DESIGNATION AS LEAD AGENCY.— 

13 (1) IN GENERAL.—Except as provided in para14 graph (2), the Environmental Protection Agency 

15 shall act as the lead agency for the purposes of co16 ordinating all Federal energy authorizations and re17 lated environmental reviews. 

18 (2) EXCEPTION.—In the case of a nuclear 

19 power electric generating facility, the Nuclear Regu20 latory Commission shall act as the lead agency for 

21 purposes of coordinating all Federal nuclear energy 

22 authorizations. 

23 (3) OTHER AGENCIES.—Each Federal or State 

24 agency or official required to provide a Federal en25 ergy authorization shall cooperate with the Adminismstockstill on PROD1PC66 with BILLS

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1 trator or the Chairperson, as applicable, including by 

2 complying with any applicable deadline relating to 

3 the Federal energy authorization established by the 

4 Administrator or Chairperson under subsection (c). 

5 (c) SCHEDULE.— 

6 (1) AUTHORITY OF ADMINISTRATOR.—The Ad7 ministrator shall establish a schedule for all Federal 

8 energy authorizations as the Administrator deter9 mines to be appropriate— 

10 (A) to ensure expeditious completion of all 

11 proceedings relating to Federal energy author12 izations; and 

13 (B) to accommodate any applicable related 

14 schedules established by Federal law (including 

15 regulations). 

16 (2) AUTHORITY OF CHAIRPERSON.—The Chair17 person shall collaborate with the Administrator to 

18 establish an appropriate schedule for all environ19 mental authorizations required with respect to facili20 ties described in subsection (b)(2) that— 

21 (A) takes into consideration the longer lead 

22 time required by the permitting process for nu23 clear power electric generating facilities; and 

24 (B) allows for simultaneous environmental 

25 and security reviews of potential sites to provide 

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1 for joint authorization of the sites by the Ad2 ministrator and the Chairperson. 

3 (3) FAILURE TO MEET SCHEDULE.—If a Fed4 eral or State administrative agency or official fails 

5 to complete a proceeding for any approval required 

6 for a Federal energy authorization in accordance 

7 with the schedule established under paragraph (1) or 

8 (2), any affected applicant for the Federal energy 

9 authorization may seek judicial review of the failure 

10 under subsection (e). 

11 (d) CONSOLIDATED RECORD.— 

12 (1) IN GENERAL.—Except as provided in para13 graph (2), the Administrator, in cooperation with 

14 Federal and State administrative agencies and offi15 cials, shall maintain a complete consolidated record 

16 of all decisions made and all actions carried out by 

17 the Administrator or a Federal or State administra18 tive agency or officer with respect to any Federal en19 ergy authorization. 

20 (2) EXCEPTION.—The Chairperson, in coopera21 tion with the Administrator and other Federal and 

22 State administrative agencies and officials, shall 

23 maintain a complete consolidated record of all deci24 sions made and all actions carried out by the Com25 missioner or a Federal or State administrative agenmstockstill on PROD1PC66 with BILLS

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1 cy or officer with respect to any Federal authoriza2 tion of a nuclear power electric generating facility. 

3 (3) TREATMENT.— 

4 (A) IN GENERAL.—Except as provided in 

5 subparagraph (B), the records under para6 graphs (1) and (2) shall serve as the record for 

7 a decision or action for purposes of judicial re8 view of the decision or action under subsection 

9 (e). 

10 (B) EXCEPTION.—If the United States 

11 Court of Appeals for the District of Columbia 

12 determines that a record under paragraph (1) 

13 or (2) contains insufficient information, the 

14 court may remand the proceeding to the Ad15 ministrator for development of the record. 

16 (e) JUDICIAL REVIEW.— 

17 (1) IN GENERAL.—The United States Court of 

18 Appeals for the District of Columbia shall have 

19 original and exclusive jurisdiction over any civil ac20 tion for the review of— 

21 (A) an order or action by a Federal or 

22 State administrative agency or official relating 

23 to a Federal energy authorization; or 

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1 (B) an alleged failure to act by a Federal 

2 or State administrative agency or official with 

3 respect to a Federal energy authorization. 

4 (2) REMAND.— 

5 (A) IN GENERAL.—The court shall remand 

6 a proceeding to the applicable agency or official 

7 in any case in which the court determines under 

8 paragraph (1) that— 

9 (i)(I) an order or action described in 

10 paragraph (1)(A) is inconsistent with the 

11 Federal law applicable to the Federal en12 ergy authorization; 

13 (II) a failure to act described in para14 graph (1)(B) has occurred; or 

15 (III) a Federal or State administra16 tive agency or official failed to meet an ap17 plicable deadline under subsection (c) with 

18 respect to a Federal energy authorization; 

19 and 

20 (ii) the order, action, or failure to act 

21 would prevent the siting, construction, ex22 pansion, or operation of an energy facility 

23 referred to in subsection (a)(2)(A). 

24 (B) SCHEDULE.—On remand of an order, 

25 action, or failure to act under subparagraph 

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1 (A), the court shall establish a reasonable 

2 schedule and deadline for the agency or official 

3 to act with respect to the remand. 

4 (3) ACTION BY LEAD AGENCY.— 

5 (A) IN GENERAL.—Except as provided in 

6 subparagraph (B), for any civil action brought 

7 under this subsection, the Administrator shall 

8 promptly file with the court the consolidated 

9 record compiled by the Administrator pursuant 

10 to subsection (d)(1). 

11 (B) EXCEPTION.—For any civil action 

12 brought under this subsection with respect to a 

13 nuclear power electric generating facility, the 

14 Chairperson shall promptly file with the court 

15 the consolidated record compiled by the Chair16 person pursuant to subsection (d)(2). 

17 (4) EXPEDITED CONSIDERATION.—The Court 

18 shall provide expedited consideration of any civil ac19 tion brought under this subsection. 

20 (5) ATTORNEY’S FEES.— 

21 (A) IN GENERAL.—Except as provided in 

22 subparagraph (B), in any action challenging a 

23 Federal energy authorization that has been 

24 granted, reasonable attorney’s fees and other 

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1 expenses of the litigation shall be awarded to 

2 the prevailing party. 

3 (B) EXCEPTION.—Subparagraph (A) shall 

4 not apply to any action seeking a remedy for— 

5 (i) denial of a Federal energy author6 ization; or 

7 (ii) failure to act on an application for 

8 a Federal energy authorization. 

9 SEC. 2. ENERGY SECURITY AND REGULATORY REFORM. 

10 (a) ENERGY-RELATED REGULATORY REFORM.— 

11 Title V of the National Energy Conservation Policy Act 

12 (42 U.S.C. 8241 et seq.) is amended by adding at the end 

13 the following: 

14 ‘‘PART 5—ENERGY-RELATED REGULATORY 

15 REFORM 

16 ‘‘SEC. 571. DEFINITIONS. 

17 ‘‘In this part: 

18 ‘‘(1) ADVISORY COMMITTEE.—The term ‘advi19 sory committee’ means an advisory committee estab20 lished under section 572(a). 

21 ‘‘(2) APPLICABLE AGENCY.—The term ‘applica22 ble agency’ means any Federal department or agen23 cy that, during the 10-year period ending on the 

24 date on which an advisory committee is established, 

25 promulgated a major rule. 

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1 ‘‘(3) BENEFIT.—The term ‘benefit’, with re2 spect to a rule, means any reasonably identifiable, 

3 significant, and favorable effect (whether quantifi4 able or unquantifiable), including a social, health, 

5 safety, environmental, economic, energy, or distribu6 tional effect, that is expected to result, directly or 

7 indirectly, from the implementation of, or compli8 ance with, the rule. 

9 ‘‘(4) COST.—The term ‘cost’, with respect to a 

10 rule, means any reasonably identifiable and signifi11 cant adverse effect (whether quantifiable or 

12 unquantifiable), including a social, health, safety, en13 vironmental, economic, energy, or distributional ef14 fect, that is expected to result, directly or indirectly, 

15 from the implementation of, or compliance with, the 

16 rule. 

17 ‘‘(5) ENERGY RULE.—The term ‘energy rule’ 

18 means a major rule that has a direct impact on the 

19 production, distribution, or consumption of energy, 

20 as determined by the Secretary of Energy. 

21 ‘‘(6) FLEXIBLE REGULATORY OPTION.— 

22 ‘‘(A) IN GENERAL.—The term ‘flexible reg23 ulatory option’ means an option at a point in 

24 the regulatory process that provides flexibility 

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1 to any person subject to an applicable rule with 

2 respect to complying with the rule. 

3 ‘‘(B) INCLUSION.—The term ‘flexible regu4 latory option’ includes any option described in 

5 subparagraph (A) that uses— 

6 ‘‘(i) a market-based mechanism; 

7 ‘‘(ii) an outcome-oriented, perform8 ance-based standard; or 

9 ‘‘(iii) any other option that promotes 

10 flexibility, as determined by the head of 

11 the applicable agency. 

12 ‘‘(7) MAJOR RULE.—The term ‘major rule’ 

13 means a rule or group of closely related rules— 

14 ‘‘(A) the reasonably quantifiable increased 

15 direct and indirect costs of which are likely to 

16 have a gross annual effect on the United States 

17 economy of at least $100,000,000, or that has 

18 a significant impact on a sector of the economy, 

19 as determined by— 

20 ‘‘(i) the head of the agency proposing 

21 the rule; or 

22 ‘‘(ii) the President (or a designee); or 

23 ‘‘(B) that is otherwise designated as a 

24 major rule by the head of the agency proposing 

25 the rule or the President (or a designee), based 

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1 on a determination that the rule is likely to re2 sult in— 

3 ‘‘(i) a substantial increase in costs 

4 for— 

5 ‘‘(I) consumers; 

6 ‘‘(II) an industrial sector; 

7 ‘‘(III) nonprofit organizations; 

8 ‘‘(IV) any Federal, State, or local 

9 governmental agency; or 

10 ‘‘(V) a geographical region; 

11 ‘‘(ii) a significant adverse effect on— 

12 ‘‘(I) competition, employment, in13 vestment, productivity, innovation, 

14 health, safety, or the environment; or 

15 ‘‘(II) the ability of enterprises 

16 with principal places of business in 

17 the United States to compete in do18 mestic or international markets; 

19 ‘‘(iii) a serious inconsistency or inter20 ference with an action carried out or 

21 planned to be carried out by another Fed22 eral agency; 

23 ‘‘(iv) the material alteration of the 

24 budgetary impact of— 

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1 ‘‘(I) entitlements, grants, user 

2 fees, or loan programs; or 

3 ‘‘(II) the rights and obligations 

4 of recipients of such a program; or 

5 ‘‘(v) disproportionate costs to a class 

6 of regulated persons, including relatively 

7 severe economic consequences for that 

8 class. 

9 ‘‘(8) RULE.— 

10 ‘‘(A) IN GENERAL.—The term ‘rule’ has 

11 the meaning given the term in section 551 of 

12 title 5, United States Code. 

13 ‘‘(B) INCLUSION.—The term ‘rule’ includes 

14 any statement of general applicability that al15 ters or creates a right or obligation of a person 

16 not employed by the applicable regulatory agen17 cy. 

18 ‘‘(C) EXCLUSIONS.—The term ‘rule’ does 

19 not include— 

20 ‘‘(i) a rule of particular applicability 

21 that approves or prescribes— 

22 ‘‘(I) future rates, wages, prices, 

23 services, corporate or financial struc24 tures, reorganizations, mergers, acqui25 sitions, or accounting practices; or 

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1 ‘‘(II) any disclosure relating to 

2 an item described in subclause (I); 

3 ‘‘(ii) a rule relating to monetary policy 

4 or to the safety or soundness of an institu5 tion (including any affiliate, branch, agen6 cy, commercial lending company, or rep7 resentative office of the institution (within 

8 the meaning of the International Banking 

9 Act of 1956 (12 U.S.C. 1841 et seq.)) that 

10 is— 

11 ‘‘(I) a federally-insured deposi12 tory institution or any affiliate of such 

13 an institution (as defined in section 

14 2(k) of the Bank Holding Company 

15 Act of 1956 (12 U.S.C. 1841(k)); 

16 ‘‘(II) a credit union; 

17 ‘‘(III) a Federal home loan bank; 

18 ‘‘(IV) a government-sponsored 

19 housing enterprise; 

20 ‘‘(V) a farm credit institution; or 

21 ‘‘(VI) a foreign bank that oper22 ates in the United States; or 

23 ‘‘(iii) a rule relating to— 

24 ‘‘(I) the payment system; or 

25 ‘‘(II) the protection of— 

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1 ‘‘(aa) deposit insurance 

2 funds; or 

3 ‘‘(bb) the farm credit insur4 ance fund. 

5 ‘‘SEC. 572. ADVISORY COMMITTEES FOR ENERGY RULES. 

6 ‘‘(a) ESTABLISHMENT.—Not later than 90 days after 

7 the date of enactment of this part, and every 5 years 

8 thereafter, the head of each applicable agency shall estab9 lish an advisory committee to review all energy rules pro10 mulgated by the applicable agency during the 10-calendar11 year period ending on the date on which the advisory com12 mittee is established. 

13 ‘‘(b) MEMBERSHIP.— 

14 ‘‘(1) IN GENERAL.—The head of an applicable 

15 agency shall appoint not more than 15 members to 

16 serve on an advisory committee. 

17 ‘‘(2) REQUIREMENT.—In appointing members 

18 to serve on an advisory committee under paragraph 

19 (1), the head of the applicable agency shall ensure 

20 that the membership of the advisory committee re21 flects a balanced cross-section of public and private 

22 parties affected by energy rules issued by the appli23 cable agency, including— 

24 ‘‘(A) small businesses; 

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1 ‘‘(B) units of State and local government; 

2 and 

3 ‘‘(C) public interest groups. 

4 ‘‘(3) PROHIBITION ON FEDERAL GOVERNMENT

5 EMPLOYMENT.—A member of an advisory committee 

6 appointed under paragraph (1) shall not be an em7 ployee of the applicable agency for which the advi8 sory committee is established. 

9 ‘‘(c) TERM; VACANCIES.— 

10 ‘‘(1) TERM.—A member shall be appointed for 

11 the life of an advisory committee. 

12 ‘‘(2) VACANCIES.—A vacancy on an advisory 

13 committee— 

14 ‘‘(A) shall not affect the powers of the ad15 visory committee; and 

16 ‘‘(B) shall be filled in the same manner as 

17 the original appointment was made. 

18 ‘‘(d) CHAIRPERSON; PANELS.—The head of an appli19 cable agency— 

20 ‘‘(1) shall select a Chairperson from among the 

21 members of an advisory committee; and 

22 ‘‘(2) may establish such panels as the head de23 termines to be necessary to assist an advisory com24 mittee in carrying out duties of the advisory com25 mittee. 

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1 ‘‘(e) DUTIES.— 

2 ‘‘(1) IN GENERAL.—An advisory committee 

3 shall review all energy rules promulgated by the ap4 plicable agency for which the advisory committee is 

5 established during the 10-calendar-year period end6 ing on the date on which the advisory committee is 

7 established, in accordance with section 573. 

8 ‘‘(2) PUBLIC PARTICIPATION.—An advisory 

9 committee shall solicit public comment with respect 

10 to energy rules reviewed by the advisory committee 

11 through appropriate means, including— 

12 ‘‘(A) hearings; 

13 ‘‘(B) written comments; 

14 ‘‘(C) public meetings; and 

15 ‘‘(D) electronic mail. 

16 ‘‘(f) TRAVEL EXPENSES.—A member of an advisory 

17 committee shall be allowed travel expenses, including per 

18 diem in lieu of subsistence, at rates authorized for an em19 ployee of an agency under subchapter I of chapter 57 of 

20 title 5, United States Code, while away from the home 

21 or regular place of business of the member in the perform22 ance of the duties of the advisory committee. 

23 ‘‘(g) TERMINATION.—An advisory committee shall 

24 terminate on the date that is 5 years after the date on 

25 which the advisory committee is established. 

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1 ‘‘SEC. 573. REVIEW OF ENERGY RULES. 

2 ‘‘(a) LIST.— 

3 ‘‘(1) IN GENERAL.—An advisory committee 

4 shall develop a list describing each energy rule pro5 mulgated during the preceding 10-year period by the 

6 applicable agency for which the advisory committee 

7 is established that, as determined by the advisory 

8 committee— 

9 ‘‘(A) should be reviewed by the head of the 

10 applicable agency; and 

11 ‘‘(B) reasonably could be subject to such a 

12 review during the 5-calendar-year period begin13 ning on the date on which the energy rule is in14 cluded on the list. 

15 ‘‘(2) FACTORS FOR CONSIDERATION.—In devel16 oping a list under paragraph (1), an advisory com17 mittee shall take into consideration— 

18 ‘‘(A) the cost of an energy rule with re19 spect to energy production or energy efficiency 

20 of any individual or entity subject to the energy 

21 rule; 

22 ‘‘(B) the extent to which an energy rule 

23 could be revised to substantially increase net 

24 benefits of the energy rule, including through 

25 flexible regulatory options; 

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1 ‘‘(C) the relative importance of an energy 

2 rule, as compared to other energy rules consid3 ered for inclusion on the list; and 

4 ‘‘(D) the discretion of the applicable agen5 cy under an applicable authorizing law or regu6 lation to modify or repeal the energy rule. 

7 ‘‘(3) SUBMISSION.—Not later than 1 year after 

8 the date on which an advisory committee is estab9 lished and annually thereafter, the advisory com10 mittee shall submit to the head of the applicable 

11 agency for which the advisory committee is estab12 lished the list developed under paragraph (1), with 

13 each energy rule represented on the list in descend14 ing order of importance, in accordance with the pri15 ority assigned to review of the energy rule by the ad16 visory committee. 

17 ‘‘(4) ACTION BY APPLICABLE AGENCY.—As 

18 soon as practicable after receipt of a list under para19 graph (3), the head of an applicable agency shall— 

20 ‘‘(A) publish the list in the Federal Reg21 ister; and 

22 ‘‘(B) submit to Congress a copy of the list. 

23 ‘‘(b) SCHEDULES FOR REVIEW.— 

24 ‘‘(1) PRELIMINARY SCHEDULE.— 

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1 ‘‘(A) IN GENERAL.—Not later than 60 

2 days after the date of receipt of a list under 

3 subsection (a)(3), the head of an applicable 

4 agency shall develop and publish in the Federal 

5 Register a preliminary schedule for review by 

6 the applicable agency of the energy rules in7 cluded on the list, including an explanation for 

8 each modification of the list by the applicable 

9 agency. 

10 ‘‘(B) NOTICE AND COMMENT.—The head 

11 of an applicable agency shall provide notice and 

12 an opportunity for public comment on a pre13 liminary schedule for a period of not less than 

14 60 days after the date of publication of the pre15 liminary schedule under subparagraph (A). 

16 ‘‘(2) FINAL SCHEDULE.— 

17 ‘‘(A) IN GENERAL.—Not later than 60 

18 days after the date of expiration of the applica19 ble comment period under paragraph (1)(B), 

20 the head of the applicable agency shall develop 

21 and publish in the Federal Register a final 

22 schedule for review of the energy rules by the 

23 applicable agency. 

24 ‘‘(B) CONTENTS.— 

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1 ‘‘(i) IN GENERAL.—A final schedule 

2 under subparagraph (A) shall include a 

3 deadline by which the applicable agency 

4 shall review each energy rule included on 

5 the list. 

6 ‘‘(ii) REQUIREMENT.—A deadline de7 scribed in clause (i) shall be not later than 

8 5 years after the date of publication of the 

9 final schedule. 

10 ‘‘(3) REQUIREMENT.—In developing a prelimi11 nary or final schedule under this subsection, the 

12 head of an applicable agency— 

13 ‘‘(A) shall defer, to the maximum extent 

14 practicable, to the recommendations of the advi15 sory committee; but 

16 ‘‘(B) may modify the list of the advisory 

17 committee, taking into consideration— 

18 ‘‘(i) the factors described in sub19 section (a)(2); and 

20 ‘‘(ii) any limitation on resources or 

21 authority of the applicable agency. 

22 ‘‘(c) REVIEW.— 

23 ‘‘(1) REQUIRED PUBLICATIONS.—For each en24 ergy rule included on the final schedule of an appli25 cable agency under subsection (b)(2), the head of 

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1 the applicable agency shall publish in the Federal 

2 Register— 

3 ‘‘(A) not later than the date that is 2 years 

4 before the deadline applicable to the energy rule 

5 under the final schedule, a notice that solicits 

6 public comment regarding whether the energy 

7 rule should be continued in effect, modified, or 

8 repealed; 

9 ‘‘(B) not later than the date that is 1 year 

10 before the deadline applicable to the energy rule 

11 under the final schedule, a notice that— 

12 ‘‘(i) addresses public comments re13 ceived as a result of the notice under sub14 paragraph (A); 

15 ‘‘(ii) contains a preliminary analysis 

16 by the applicable agency relating to the en17 ergy rule; 

18 ‘‘(iii) contains a preliminary deter19 mination of the applicable agency regard20 ing whether the energy rule should be con21 tinued in effect, modified, or repealed; and 

22 ‘‘(iv) solicits public comment on that 

23 preliminary determination; and 

24 ‘‘(C) not later than the date that is 60 

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1 ergy rule under the final schedule, a final notice 

2 relating to the energy rule that— 

3 ‘‘(i) addresses public comments re4 ceived as a result of the notice under sub5 paragraph (B); 

6 ‘‘(ii) contains— 

7 ‘‘(I) a determination of the appli8 cable agency regarding whether to 

9 continue in effect, modify, or repeal 

10 the energy rule; and 

11 ‘‘(II) an explanation of the deter12 mination; and 

13 ‘‘(iii) if the applicable agency deter14 mines to modify or repeal the energy rule, 

15 a notice of proposed rulemaking under sec16 tion 553 of title 5, United States Code, as 

17 applicable. 

18 ‘‘(2) DETERMINATIONS.— 

19 ‘‘(A) IN GENERAL.—Not later than the 

20 deadline applicable to an energy rule under the 

21 final schedule under subsection (b)(2), the head 

22 of the applicable agency shall make a deter23 mination— 

24 ‘‘(i) to continue the energy rule in ef25 fect; 

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1 ‘‘(ii) to modify the energy rule; or 

2 ‘‘(iii) to repeal the energy rule. 

3 ‘‘(B) CONTINUING IN EFFECT.—A deter4 mination by the head of an applicable agency 

5 under subparagraph (A)(i) to continue an en6 ergy rule in effect— 

7 ‘‘(i) shall be published in the Federal 

8 Register; and 

9 ‘‘(ii) shall be considered to be a final 

10 agency action effective beginning on the 

11 date that is 60 days after the date of pub12 lication of the determination. 

13 ‘‘(C) MODIFICATION OR REPEAL.—On a 

14 determination by the head of an applicable 

15 agency to modify or repeal an energy rule under 

16 clause (ii) or (iii) of subparagraph (A), the ap17 plicable agency shall complete final agency ac18 tion with respect to the modification or repeal 

19 by not later than 2 years after the deadline ap20 plicable to the energy rule under the final 

21 schedule under subsection (b)(2). 

22 ‘‘(d) JUDICIAL REVIEW.— 

23 ‘‘(1) IN GENERAL.—No preliminary or final 

24 schedule under this section shall be subject to judi25 cial review. 

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1 ‘‘(2) DETERMINATION TO CONTINUE IN EF2 FECT.— 

3 ‘‘(A) DEFINITION OF REASONABLE ALTER4 NATIVE.— 

5 ‘‘(i) IN GENERAL.—In this paragraph, 

6 the term ‘reasonable alternative’, with re7 spect to an option at a point in the regu8 latory process, means an option that— 

9 ‘‘(I) would achieve the purpose of 

10 the applicable rule; and 

11 ‘‘(II) the head of the applicable 

12 Federal agency has the authority to 

13 elect. 

14 ‘‘(ii) INCLUSION.—The term ‘reason15 able alternative’ includes a flexible regu16 latory option. 

17 ‘‘(B) ACTION BY COURT.—A court of com18 petent jurisdiction may remand a determination 

19 to continue an energy rule in effect under sub20 section (c)(2)(B) only on clear and convincing 

21 evidence that a reasonable alternative was avail22 able to the energy rule. 

23 ‘‘(3) FAILURE TO ACT.—A failure of the head 

24 of an applicable agency to carry out an action re25 quired under this section shall be subject to judicial 

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1 review only as provided in section 706(1) of title 5, 

2 United States Code. 

3 ‘‘(e) EFFECT OF SECTION.— 

4 ‘‘(1) IN GENERAL.—Nothing in this section lim5 its the discretion of an applicable agency, on making 

6 a determination described in clause (ii) or (iii) of 

7 subsection (c)(2)(A), to elect not to modify or repeal 

8 the applicable energy rule. 

9 ‘‘(2) TREATMENT.—An election of an applicable 

10 agency described in paragraph (1) shall be consid11 ered to be a final agency action for purposes of judi12 cial review. 

13 ‘‘SEC. 574. PROSPECTIVE CONSIDERATION OF ENERGY 

14 RULES. 

15 ‘‘(a) DETERMINATION.— 

16 ‘‘(1) IN GENERAL.—In promulgating any rule, 

17 the head of an applicable agency shall determine 

18 whether the rule is an energy rule. 

19 ‘‘(2) TREATMENT.—The head of an applicable 

20 agency may determine under paragraph (1) that a 

21 set of related rules proposed to be promulgated by 

22 the applicable agency shall be considered to be an 

23 energy rule. 

24 ‘‘(b) REGULATORY IMPACT ANALYSIS.— 

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1 ‘‘(1) IN GENERAL.—In promulgating an energy 

2 rule, the head of an applicable agency shall pre3 pare— 

4 ‘‘(A) by not later than the date that is 60 

5 days before the date of publication of notice of 

6 the proposed rulemaking, a preliminary regu7 latory impact analysis relating to the energy 

8 rule; and 

9 ‘‘(B) a final regulatory impact analysis re10 lating to the energy rule, which shall be sub11 mitted together with the final energy rule by 

12 not later than the date that is 30 days before 

13 the date of publication of the final energy rule. 

14 ‘‘(2) CONTENTS.—A preliminary or final regu15 lator impact analysis relating to an energy rule 

16 under paragraph (1) shall contain— 

17 ‘‘(A) a description of the potential benefits 

18 of the energy rule, including a description of— 

19 ‘‘(i) any beneficial effects that cannot 

20 be quantified in monetary terms; and 

21 ‘‘(ii) an identification of individuals 

22 and entities likely to receive the benefits; 

23 ‘‘(B) an explanation of the necessity, legal 

24 authority, and reasonableness of the energy rule 

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•S 1599 IS

1 together with a description of the condition that 

2 the energy rule is intended to address; 

3 ‘‘(C) a description of the potential costs of 

4 the energy rule, including a description of— 

5 ‘‘(i) any costs that cannot be quan6 tified in monetary terms; and 

7 ‘‘(ii) an identification of the individ8 uals and entities likely to bear the costs; 

9 ‘‘(D)(i) an analysis of any alternative ap10 proach, including market-based mechanisms, 

11 that could substantially achieve the regulatory 

12 goal of the energy rule at a lower cost; and 

13 ‘‘(ii) an explanation of the reasons why the 

14 alternative approach was not adopted, together 

15 with a demonstration that the energy rule pro16 vides the least-costly approach with respect to 

17 the regulatory goal; 

18 ‘‘(E)(i) an analysis of the benefits and 

19 costs of the energy rule to the national energy 

20 supply and national energy security; and 

21 ‘‘(ii) an explanation in any case in which 

22 the energy rule will cause undue harm to the 

23 energy stability of any region; 

24 ‘‘(F) a statement that, as applicable— 

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1 ‘‘(i) the energy rule does not conflict 

2 with, or duplicate, any other rule; or 

3 ‘‘(ii) describes the reasons why such a 

4 conflict or duplication exists; and 

5 ‘‘(G) a statement that describes whether 

6 the energy rule will require— 

7 ‘‘(i) any onsite inspection; or 

8 ‘‘(ii) any individual or entity— 

9 ‘‘(I) to maintain records that will 

10 be subject to inspection; or 

11 ‘‘(II) to obtain any license, per12 mit, or other certification, including a 

13 description of any associated fees or 

14 fines. 

15 ‘‘(3) COMBINATION WITH FLEXIBILITY ANAL16 YSIS.—An energy rule regulatory impact analysis 

17 under paragraph (1) may be prepared together with 

18 the regulatory flexibility analysis relating to the en19 ergy rule under sections 603 and 604 of title 5, 

20 United States Code. 

21 ‘‘(c) REVIEW OF REGULATORY IMPACT ANALYSES.— 

22 ‘‘(1) IN GENERAL.—The head of an applicable 

23 agency shall review, and prepare comments regard24 ing— 

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1 ‘‘(A) each notice of proposed rulemaking 

2 relating to an energy rule of the applicable 

3 agency; 

4 ‘‘(B) each preliminary and final regulatory 

5 impact analysis relating to an energy rule of the 

6 applicable agency under this section; and 

7 ‘‘(C) each final energy rule of the applica8 ble agency. 

9 ‘‘(2) CONSULTATION.—On receipt of a request 

10 of a head of an applicable agency, any officer or em11 ployee of another applicable agency shall consult 

12 with the head regarding a review under paragraph 

13 (1). 

14 ‘‘(3) REQUIREMENT.—The head of an applica15 ble agency shall not promulgate an energy rule until 

16 the date on which the final regulatory impact anal17 ysis relating to the energy rule is published in the 

18 Federal Register. 

19 ‘‘(4) REVIEW OF OTHER APPLICABLE AGEN20 CIES.— 

21 ‘‘(A) IN GENERAL.—On receipt of a re22 quest of a head of an applicable agency, an23 other applicable agency— 

24 ‘‘(i) shall permit the head to review, 

25 and prepare comments regarding— 

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1 ‘‘(I) a notice of proposed rule2 making relating to an energy rule of 

3 the applicable agency; or 

4 ‘‘(II) a preliminary or final regu5 latory impact analysis relating to an 

6 energy rule of the applicable agency 

7 under this section; and 

8 ‘‘(ii) shall not publish the notice of 

9 proposed rulemaking or preliminary or 

10 final regulatory impact analysis until the 

11 earlier of— 

12 ‘‘(I) the date on which— 

13 ‘‘(aa) the head completes the 

14 review; and 

15 ‘‘(bb) the applicable agency 

16 submits to the head a response to 

17 any comments of the head and 

18 includes in the comments of the 

19 applicable agency the response, in 

20 accordance with subparagraph 

21 (B)(ii); and 

22 ‘‘(II) the expiration of the dead23 line described in subparagraph (B)(i). 

24 ‘‘(B) DEADLINES.— 

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1 ‘‘(i) REVIEW AND COMMENT BY

2 HEAD.—A head of an applicable agency 

3 shall complete a review of a notice of pro4 posed rulemaking or preliminary or final 

5 regulatory impact analysis of another ap6 plicable agency under subparagraph (A) by 

7 not later than 90 days after the date on 

8 which the head submits a request for the 

9 review. 

10 ‘‘(ii) RESPONSE BY APPLICABLE

11 AGENCY.—An applicable agency shall sub12 mit to the head of another applicable agen13 cy that conducted a review and submitted 

14 comments regarding an energy rule under 

15 subparagraph (A) a response to those com16 ments by not later than 90 days after the 

17 date on which the comments are received. 

18 ‘‘(d) PLAIN LANGUAGE REQUIREMENT.—The head 

19 of an applicable agency shall ensure, to the maximum ex20 tent practicable, that each energy rule and each regulatory 

21 impact analysis relating to an energy rule— 

22 ‘‘(1) is written in plain language; and 

23 ‘‘(2) provides adequate notice of the require24 ments of the rule to affected individuals and entities. 

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1 ‘‘(e) NONAPPLICABILITY TO CERTAIN RULES AND

2 AGENCIES.— 

3 ‘‘(1) DEFINITION OF EMERGENCY SITUATION.— 

4 In this subsection, the term ‘emergency situation’ 

5 means a situation that— 

6 ‘‘(A) is immediately impending and ex7 traordinary in nature; or 

8 ‘‘(B) demands attention due to a condition, 

9 circumstance, or practice that, if no action is 

10 taken, would be reasonably expected to cause— 

11 ‘‘(i) death, serious illness, or severe 

12 injury to an individual; or 

13 ‘‘(ii) substantial danger to private 

14 property or the environment. 

15 ‘‘(2) NONAPPLICABILITY.—This section shall 

16 not apply to— 

17 ‘‘(A) a major rule promulgated in response 

18 to an emergency situation, if a report describ19 ing the major rule and the emergency situation 

20 is submitted to the head of each affected appli21 cable agency as soon as practicable after pro22 mulgation of the major rule; 

23 ‘‘(B) a major rule proposed or promul24 gated in connection with the implementation of 

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1 monetary policy or to ensure the safety and 

2 soundness of— 

3 ‘‘(i) a federally-insured depository in4 stitution or an affiliate of such an institu5 tion; 

6 ‘‘(ii) a credit union; or 

7 ‘‘(iii) a government-sponsored housing 

8 enterprise regulated by the Office of Fed9 eral Housing Enterprise Oversight; 

10 ‘‘(C) an action by an applicable agency 

11 that the head of the applicable agency certifies 

12 is limited to interpreting, implementing, or ad13 ministering the internal revenue laws of the 

14 United States, including any regulation pro15 posed or issued in connection with ensuring the 

16 collection of taxes from a subsidiary of a for17 eign company doing business in the United 

18 States; or 

19 ‘‘(D) a major rule proposed or promul20 gated pursuant to section 553 of title 5, United 

21 States Code, in connection with imposing a 

22 trade sanction against any country that engages 

23 in illegal trade activities against the United 

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1 nology, jobs, pensions, or general economic well2 being.’’. 

3 (b) REPORT.—Not later than 2 years after the date 

4 of enactment of this Act, the Director of the Office of 

5 Management and Budget shall submit to Congress a re6 port that contains an analysis of— 

7 (1) rulemaking procedures of Federal depart8 ments and agencies; and 

9 (2) the impact of those procedures on— 

10 (A) the public; and 

11 (B) the regulatory process. 

12 (c) EFFECTIVE DATE.—The amendments made by 

13 subsection (a) shall apply only to final rules of Federal 

14 departments and agencies the rulemaking process for 

15 which begins after the date of enactment of this Act. 

16 (d) OTHER POLICIES AND GOALS.— 

17 (1) DECLARATION OF POLICY.—Section 101 of 

18 the National Environmental Policy Act of 1969 (42 

19 U.S.C. 4331) is amended— 

20 (A) by redesignating subsection (c) as sub21 section (d); and 

22 (B) by inserting after subsection (b) the 

23 following: 

24 ‘‘(c) ENERGY SECURITY.—Congress recognizes that, 

25 because the production and consumption of energy has a 

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1 profound impact on the environment, and the availability 

2 of affordable energy resources is essential to continued na3 tional security and economic security of the United States, 

4 it is the policy of the United States to ensure that— 

5 ‘‘(1) each proposed Federal action should be 

6 analyzed with respect to the impact of the proposed 

7 Federal action on the energy security of the United 

8 States; and 

9 ‘‘(2) an analysis under paragraph (1) should be 

10 taken into consideration in developing Federal plans, 

11 rules, programs, and actions.’’. 

12 (2) REPORTS.—Section 102(2)(C) of the Na13 tional Environmental Policy Act of 1969 (42 U.S.C. 

14 4332(2)(C)) is amended— 

15 (A) by redesignating clauses (iii) through 

16 (v) as clauses (iv) through (vi), respectively; 

17 and 

18 (B) by inserting after clause (ii) the fol19 lowing: 

20 ‘‘(iii) the impact on the energy secu21 rity of the United States in terms of the 

22 effects to the production, distribution, and 

23 consumption of energy of the proposal or 

24 Federal action;’’. 

Æ 

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