II 

113TH CONGRESS 

1ST SESSION S. 320 

To amend chapter 8 of title 5, United States Code, to provide for 

congressional review of agency guidance documents. 

IN THE SENATE OF THE UNITED STATES 

FEBRUARY 13, 2013 

Mr. JOHANNS (for himself, Mr. BARRASSO, Mr. PAUL, Ms. COLLINS, Mr. 

GRASSLEY, Mr. COATS, Mr. JOHNSON of Wisconsin, and Mrs. FISCHER) 

introduced the following bill; which was read twice and referred to the 

Committee on Homeland Security and Governmental Affairs 

A BILL 

To amend chapter 8 of title 5, United States Code, to provide 

for congressional review of agency guidance documents. 

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 ‘‘Closing Regulatory 

5 Loopholes Act of 2013’’. 


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1 SEC. 2. CONGRESSIONAL REVIEW OF AGENCY GUIDANCE 

2 DOCUMENTS. 

3 (a) DEFINITIONS.—Chapter 8 of title 5, United 

4 States Code, is amended by striking section 804 and in5 serting the following: 

6 ‘‘§ 804. Definitions 

7 ‘‘In this chapter— 

8 ‘‘(1) the term ‘Federal agency’ means an agen9 cy, as that term is defined under section 551; 

10 ‘‘(2) the term ‘guidance document’ means a 

11 statement of general applicability and future effect 

12 by a Federal agency, other than a regulatory action, 

13 that sets forth a policy on a statutory, regulatory, or 

14 technical issue or an interpretation of a statutory or 

15 regulatory issue; 

16 ‘‘(3) the term ‘major guidance document’ 

17 means any guidance document that the Adminis18 trator of the Office of Information and Regulatory 

19 Affairs of the Office of Management and Budget 

20 finds has resulted in or is likely to result in— 

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

22 $100,000,000 or more; 

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

24 consumers, individual industries, Federal, 

25 State, or local government agencies, or geo26 graphic regions; or 


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1 ‘‘(C) significant adverse effects on competi2 tion, employment, investment, productivity, in3 novation, or on the ability of United States4 based enterprises to compete with foreign-based 

5 enterprises in domestic and export markets; 

6 ‘‘(4) the term ‘major rule’ means— 

7 ‘‘(A) any rule that the Administrator of 

8 the Office of Information and Regulatory Af9 fairs of the Office of Management and Budget 

10 finds has resulted in or is likely to result in— 

11 ‘‘(i) an annual effect on the economy 

12 of $100,000,000 or more; 

13 ‘‘(ii) a major increase in costs or 

14 prices for consumers, individual industries, 

15 Federal, State, or local government agen16 cies, or geographic regions; or 

17 ‘‘(iii) significant adverse effects on 

18 competition, employment, investment, pro19 ductivity, innovation, or on the ability of 

20 United States-based enterprises to compete 

21 with foreign-based enterprises in domestic 

22 and export markets; and 

23 ‘‘(B) does not include any rule promul24 gated under the Telecommunications Act of 

25 1996 or the amendments made by that Act; 


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1 ‘‘(5) the term ‘regulatory action’ means any 

2 substantive action by a Federal agency (normally 

3 published in the Federal Register) that promulgates 

4 or is expected to lead to the promulgation of a final 

5 regulation, including notices of inquiry, advance no6 tices of proposed rulemaking, and notices of pro7 posed rulemaking; and 

8 ‘‘(6) the term ‘rule’ has the meaning given the 

9 term in section 551, except that the term does not 

10 include— 

11 ‘‘(A) any rule of particular applicability, 

12 including a rule that approves or prescribes for 

13 the future rates, wages, prices, services, or al14 lowances therefor, corporate or financial struc15 tures, reorganizations, mergers, or acquisitions 

16 thereof, or accounting practices or disclosures 

17 bearing on any of the foregoing; 

18 ‘‘(B) any rule relating to a Federal agency 

19 management or personnel; or 

20 ‘‘(C) any rule of a Federal agency organi21 zation, procedure, or practice that does not sub22 stantially affect the rights or obligations of non23 agency parties.’’. 

24 (b) APPLICATION TO GUIDANCE DOCUMENTS.— 

25 Chapter 8 of title 5, United States Code, is amended— 


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1 (1) in section 801— 

2 (A) in subsection (a)— 

3 (i) in paragraph (1)— 

4 (I) in subparagraph (A)— 

5 (aa) in the matter preceding 

6 clause (i), by inserting ‘‘or guid7 ance document’’ after ‘‘rule’’ 

8 each place it appears; 

9 (bb) in clause (i), by insert10 ing ‘‘or guidance document’’ 

11 after ‘‘rule’’; 

12 (cc) in clause (ii)— 

13 (AA) by inserting ‘‘or 

14 guidance document’’ after 

15 ‘‘the rule’’; and 

16 (BB) by inserting ‘‘or 

17 major guidance document’’ 

18 after ‘‘major rule’’; and 

19 (dd) in clause (iii), by in20 serting ‘‘or guidance document’’ 

21 after ‘‘rule’’; 

22 (II) by striking subparagraph (B) 

23 and inserting the following: 

24 ‘‘(B) On the date of the submission of the 

25 report under subparagraph (A), the Federal 


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1 agency promulgating the rule or guidance docu2 ment shall submit to the Comptroller General 

3 and make available to each House of Con4 gress— 

5 ‘‘(i) in the case of a rule— 

6 ‘‘(I) a complete copy of the cost7 benefit analysis of the rule, if any; 

8 ‘‘(II) a description of the actions 

9 of the Federal agency relevant to sec10 tions 603, 604, 605, 607, and 609; 

11 and 

12 ‘‘(III) a description of the actions 

13 of the Federal agency relevant to sec14 tions 202, 203, 204, and 205 of the 

15 Unfunded Mandates Reform Act of 

16 1995; 

17 ‘‘(ii) in the case of a guidance docu18 ment, any relevant agency actions; and 

19 ‘‘(iii) any other relevant information 

20 or requirements under any other Act or 

21 any relevant Executive order.’’; and 

22 (III) in subparagraph (C), by in23 serting ‘‘or guidance document’’ after 

24 ‘‘rule’’; 


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1 (ii) in paragraph (2)(A), by inserting 

2 ‘‘or major guidance document’’ after 

3 ‘‘major rule’’; 

4 (iii) in paragraph (3)— 

5 (I) in the matter preceding sub6 paragraph (A), by inserting ‘‘or major 

7 guidance document’’ after ‘‘major 

8 rule’’; and 

9 (II) in subparagraphs (A), (B), 

10 and (C), by inserting ‘‘or guidance 

11 document’’ after ‘‘rule’’ each place it 

12 appears; 

13 (iv) in paragraph (4)— 

14 (I) by inserting ‘‘or major guid15 ance document’’ after ‘‘major rule’’; 

16 and 

17 (II) by inserting ‘‘or guidance 

18 document’’ after ‘‘a rule’’; and 

19 (v) in paragraph (5), by inserting ‘‘or 

20 guidance document’’ after ‘‘rule’’; 

21 (B) in subsections (b), (c), and (d), by in22 serting ‘‘or guidance document’’ after ‘‘rule’’ 

23 each place it appears; and 


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1 (C) in subsections (f) and (g), by inserting 

2 ‘‘or guidance document’’ after ‘‘rule’’ each place 

3 that term appears; 

4 (2) in section 802— 

5 (A) in subsection (a)— 

6 (i) by inserting ‘‘in the case of a 

7 rule,’’ after ‘‘as follows:’’; and 

8 (ii) by inserting ‘‘or in the case of a 

9 guidance document, ‘That Congress dis10 approves the guidance document submitted 

11 by the ll relating to ll, and such 

12 guidance document shall have no force or 

13 effect.’ (The blank spaces being appro14 priately filled in)’’ before the period; 

15 (B) in subsection (b)(2)(B), by inserting 

16 ‘‘or guidance document’’ after ‘‘rule’’; and 

17 (C) in subsection (e), by inserting ‘‘or 

18 guidance document’’ after ‘‘rule’’; 

19 (3) in section 803(a)— 

20 (A) by inserting ‘‘or guidance document’’ 

21 after ‘‘rule’’; and 

22 (B) by inserting ‘‘or guidance document’s’’ 

23 after ‘‘rule’s’’; 

24 (4) in section 807, by inserting ‘‘or guidance 

25 documents’’ after ‘‘rules’’; 


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1 (5) in section 808— 

2 (A) by striking the section heading and in3 serting the following: 

4 ‘‘§ 808. Effective date of certain rules or guidance 

5 documents’’; 

6 and 

7 (B) by inserting ‘‘or guidance document’’ 

8 after ‘‘rule’’ each place that term appears; and 

9 (6) in the table of sections by striking the item 

10 relating to section 808 and inserting the following: 

‘‘808. Effective date of certain rules or guidance documents.’’. 

Æ 


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