I 

112TH CONGRESS 

1ST SESSION H. R. 3010 

To reform the process by which Federal agencies analyze and formulate 

new regulations and guidance documents. 

IN THE HOUSE OF REPRESENTATIVES 

SEPTEMBER 22, 2011 

Mr. SMITH of Texas (for himself, Mr. COBLE, and Mr. PETERSON) introduced 

the following bill; which was referred to the Committee on the Judiciary 

A BILL 

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, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Regulatory Account5 ability Act of 2011’’. 

6 SEC. 2. DEFINITIONS. 

7 Section 551 of title 5, United States Code, is amend8 ed— 

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

10 end; 


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

2 the end and inserting a semicolon; and 

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

4 ‘‘(15) ‘major rule’ means any rule that the Ad5 ministrator of the Office of Information and Regu6 latory Affairs determines is likely to impose— 

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

8 $100,000,000 or more, adjusted annually for 

9 inflation; 

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

11 consumers, individual industries, Federal, 

12 State, local, or tribal government agencies, or 

13 geographic regions; 

14 ‘‘(C) significant adverse effects on competi15 tion, employment, investment, productivity, in16 novation, or on the ability of United States17 based enterprises to compete with foreign-based 

18 enterprises in domestic and export markets; or 

19 ‘‘(D) significant costs on multiple sectors 

20 of the economy; 

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

22 the Administrator of the Office of Information and 

23 Regulatory Affairs determines is likely to impose an 

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

25 more, adjusted annually for inflation; 


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1 ‘‘(17) ‘guidance’ means an agency statement of 

2 general applicability and future effect, other than a 

3 regulatory action, that sets forth a policy on a statu4 tory, regulatory or technical issue or an interpreta5 tion of a statutory or regulatory issue; 

6 ‘‘(18) ‘major guidance’ means guidance that the 

7 Administrator of the Office of Information and Reg8 ulatory Affairs finds is likely to lead to— 

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

10 $100,000,000 or more, adjusted annually for 

11 inflation; 

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

13 consumers, individual industries, Federal, 

14 State, local or tribal government agencies, or 

15 geographic regions; 

16 ‘‘(C) significant adverse effects on competi17 tion, employment, investment, productivity, in18 novation, or on the ability of United States19 based enterprises to compete with foreign-based 

20 enterprises in domestic and export markets; or 

21 ‘‘(D) significant costs for multiple sectors 

22 of the economy; 

23 ‘‘(19) the ‘Information Quality Act’ means sec24 tion 515 of Public Law 106–554, the Treasury and 

25 General Government Appropriations Act for Fiscal 


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1 Year 2001, and guidelines issued by the Adminis2 trator of the Office of Information and Regulatory 

3 Affairs or other agencies pursuant to the Act; and 

4 ‘‘(20) the ‘Office of Information and Regulatory 

5 Affairs’ means the office established under section 

6 3503 of chapter 35 of title 44 and any successor to 

7 that office.’’. 

8 SEC. 3. RULEMAKING. 

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

10 amended by striking ‘‘(a) This section applies’’ and insert11 ing ‘‘(a) APPLICABILITY.—This section applies’’. 

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

13 amended by striking subsections (b) through (e) and in14 serting the following: 

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

16 making, an agency shall make all preliminary and final 

17 determinations based on evidence and consider, in addition 

18 to other applicable considerations, the following: 

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

20 may be proposed, including whether a rule making 

21 is required by statute, and if so, whether by a spe22 cific date, or whether the agency has discretion to 

23 commence a rule making. 


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1 ‘‘(2) Other statutory considerations applicable 

2 to whether the agency can or should propose a rule 

3 or undertake other agency action. 

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

5 problem the agency may address with a rule (includ6 ing the degree and nature of risks the problem poses 

7 and the priority of addressing those risks compared 

8 to other matters or activities within the agency’s ju9 risdiction), whether the problem warrants new agen10 cy action, and the countervailing risks that may be 

11 posed by alternatives for new agency action. 

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

13 contributed to the problem the agency may address 

14 with a rule and whether those rules could be amend15 ed or rescinded to address the problem in whole or 

16 part. 

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

18 or other response identified by the agency or inter19 ested persons, including not only responses that 

20 mandate particular conduct or manners of compli21 ance, but also— 

22 ‘‘(A) the alternative of no Federal re23 sponse; 

24 ‘‘(B) amending or rescinding existing 

25 rules; 


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

2 tribal regulatory action or other responses that 

3 could be taken in lieu of agency action; and 

4 ‘‘(D) potential responses that— 

5 ‘‘(i) specify performance objectives 

6 rather than conduct or manners of compli7 ance; 

8 ‘‘(ii) establish economic incentives to 

9 encourage desired behavior; 

10 ‘‘(iii) provide information upon which 

11 choices can be made by the public; or 

12 ‘‘(iv) incorporate other innovative al13 ternatives rather than agency actions that 

14 specify conduct or manners of compliance. 

15 ‘‘(6) Notwithstanding any other provision of 

16 law— 

17 ‘‘(A) the potential costs and benefits asso18 ciated with potential alternative rules and other 

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

20 including direct, indirect, and cumulative costs 

21 and benefits and estimated impacts on jobs, 

22 economic growth, innovation, and economic 

23 competitiveness; 

24 ‘‘(B) means to increase the cost-effective25 ness of any Federal response; and 


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

2 predictability, lower costs of enforcement and 

3 compliance (to government entities, regulated 

4 entities, and the public), and flexibility. 

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

6 FOR MAJOR RULES AND HIGH-IMPACT RULES.— 

7 ‘‘(1) In the case of a rule making for a major 

8 rule or high-impact rule, not later than 90 days be9 fore a notice of proposed rule making is published 

10 in the Federal Register, an agency shall publish ad11 vance notice of proposed rule making in the Federal 

12 Register. In publishing such advance notice, the 

13 agency shall— 

14 ‘‘(A) include a written statement identi15 fying, at a minimum— 

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

17 problem the agency may address with a 

18 rule, including data and other evidence and 

19 information on which the agency expects to 

20 rely for the proposed rule; 

21 ‘‘(ii) the legal authority under which a 

22 rule may be proposed, including whether a 

23 rule making is required by statute, and if 

24 so, whether by a specific date, or whether 


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1 the agency has discretion to commence a 

2 rule making; and 

3 ‘‘(iii) preliminary information avail4 able to the agency concerning the other 

5 considerations specified in subsection (b); 

6 ‘‘(B) solicit written data, views or argu7 ment from interested persons concerning the in8 formation and issues addressed in the advance 

9 notice; and 

10 ‘‘(C) provide for a period of not fewer than 

11 60 days for interested persons to submit such 

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

13 ‘‘(d) NOTICES OF PROPOSED RULE MAKING; DETER14 MINATIONS OF OTHER AGENCY COURSE.—Following com15 pletion of procedures under subsection (c), if applicable, 

16 and consultation with the Administrator of the Office of 

17 Information and Regulatory Affairs, the agency shall pub18 lish either a notice of proposed rule making or a deter19 mination of other agency course, in accordance with the 

20 following: 

21 ‘‘(1) A notice of proposed rule making shall in22 clude— 

23 ‘‘(A) a statement of the time, place, and 

24 nature 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 

5 the agency on the subject and issues of the pro6 posed rule, including but not limited to— 

7 ‘‘(i) a summary of information known 

8 to the agency concerning the consider9 ations specified in subsection (b); 

10 ‘‘(ii) a summary of additional infor11 mation the agency provided to and ob12 tained from interested persons under sub13 section (c); and 

14 ‘‘(iii) information specifically identi15 fying all data, studies, models, and other 

16 evidence or information considered or used 

17 by the agency in connection with its deter18 mination to propose the rule; 

19 ‘‘(E)(i) a reasoned preliminary determina20 tion of need for the rule based on the informa21 tion described under subparagraph (D); and 

22 ‘‘(ii) an additional statement of whether a 

23 rule is required by statute; 

24 ‘‘(F) a reasoned preliminary determination 

25 that the benefits of the proposed rule meet the 


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1 relevant statutory objectives and justify the 

2 costs of the proposed rule (including all costs to 

3 be considered under subsection (b)(6)), based 

4 on the information described under subpara5 graph (D); 

6 ‘‘(G) a discussion of— 

7 ‘‘(i) the alternatives to the proposed 

8 rule, and other alternative responses, con9 sidered by the agency under subsection (b); 

10 ‘‘(ii) the costs and benefits of those 

11 alternatives (including all costs to be con12 sidered under subsection (b)(6)); 

13 ‘‘(iii) whether those alternatives meet 

14 relevant statutory objectives; and 

15 ‘‘(iv) why the agency did not propose 

16 any of those alternatives; and 

17 ‘‘(H)(i) a statement of whether existing 

18 rules have created or contributed to the prob19 lem the agency seeks to address with the pro20 posed rule; and 

21 ‘‘(ii) if so, whether or not the agency pro22 poses to amend or rescind any such rules, and 

23 why. 

24 All information considered by the agency, and 

25 steps to obtain information by the agency, in 


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1 connection with its determination to propose 

2 the rule, including all information described by 

3 the agency under subparagraph (D) and, at the 

4 discretion of the President or the Administrator 

5 of the Office of Information and Regulatory Af6 fairs, information provided by that Office in 

7 consultations with the agency, shall be placed in 

8 the docket for the proposed rule and made ac9 cessible to the public for the public’s use when 

10 the notice of proposed rule making is published. 

11 ‘‘(2)(A) A notice of determination of other 

12 agency course shall include a description of the al13 ternative response the agency determined to adopt. 

14 ‘‘(B) If in its determination of other agency 

15 course the agency makes a determination to amend 

16 or rescind an existing rule, the agency need not un17 dertake additional proceedings under subsection (c) 

18 before it publishes a notice of proposed rule making 

19 to amend or rescind the existing rule. 

20 All information considered by the agency, and steps 

21 to obtain information by the agency, in connection 

22 with its determination of other agency course, in23 cluding but not limited to all information that would 

24 be required to be described by the agency under 

25 paragraph (1)(D) if the agency had determined to 


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1 publish a notice of proposed rule making and, at the 

2 discretion of the President or the Administrator of 

3 the Office of Information and Regulatory Affairs, in4 formation provided by that Office in consultations 

5 with the agency, shall be placed in the docket for the 

6 determination and made accessible to the public for 

7 the public’s use when the notice of determination is 

8 published. 

9 ‘‘(3) After notice of proposed rule making re10 quired by this section, the agency shall provide inter11 ested persons an opportunity to participate in the 

12 rule making through submission of written data, 

13 views, or arguments with or without opportunity for 

14 oral presentation, except that— 

15 ‘‘(A) if a hearing is required under para16 graph (4)(B) or subsection (e), opportunity for 

17 oral presentation shall be provided pursuant to 

18 that requirement; or 

19 ‘‘(B) when other than under subsection (e) 

20 of this section rules are required by statute or 

21 at the discretion of the agency to be made on 

22 the record after opportunity for an agency hear23 ing, sections 556 and 557 shall apply, and 

24 paragraph (4), requirements of subsection (e) 

25 to receive comment outside of the procedures of 


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1 sections 556 and 557, and the petition proce2 dures of subsection (e)(6) shall not apply. 

3 The agency shall provide not fewer than 90 days for 

4 interested persons to submit written data, views, or 

5 argument (or 120 days in the case of a proposed 

6 major or high-impact rule). 

7 ‘‘(4)(A) Within 30 days of publication of notice 

8 of proposed rulemaking, a member of the public may 

9 petition for a hearing in accordance with section 556 

10 to determine whether any evidence or other informa11 tion upon which the agency bases the proposed rule 

12 fails to comply with of the Information Quality Act. 

13 ‘‘(B)(i) The agency may, upon review of the pe14 tition, determine without further process to exclude 

15 from the rule making the evidence or other informa16 tion that is the subject of the petition and, if appro17 priate, withdraw the proposed rule. The agency shall 

18 promptly publish any such determination. 

19 ‘‘(ii) If the agency does not resolve the petition 

20 under the procedures of clause (i), it shall grant any 

21 such petition that presents a prima facie case that 

22 evidence or other information upon which the agency 

23 bases the proposed rule fails to comply with the In24 formation Quality Act, hold the requested hearing 

25 not later than 30 days after receipt of the petition, 


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1 provide a reasonable opportunity for cross-examina2 tion at the hearing, and decide the issues presented 

3 by the petition not later than 60 days after receipt 

4 of the petition. The agency may deny any petition 

5 that it determines does not present such a prima 

6 facie case. 

7 ‘‘(C) There shall be no judicial review of the 

8 agency’s disposition of issues considered and decided 

9 or determined under subparagraph (B)(ii) until judi10 cial review of the agency’s final action. There shall 

11 be no judicial review of an agency’s determination to 

12 withdraw a proposed rule under subparagraph 

13 (B)(i). 

14 ‘‘(D) Failure to petition for a hearing under 

15 this paragraph shall not preclude judicial review of 

16 any claim based on the Information Quality Act 

17 under chapter 7 of this title. 

18 ‘‘(e) HEARINGS FOR HIGH-IMPACT RULES.—Fol19 lowing notice of a proposed rule making, receipt of com20 ments on the proposed rule, and any hearing held under 

21 subsection (d)(4), and before adoption of any high-impact 

22 rule, the agency shall hold a hearing in accordance with 

23 sections 556 and 557, unless such hearing is waived by 

24 all participants in the rulemaking other than the agency. 

25 The agency shall provide a reasonable opportunity for 


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1 cross-examination at such hearing. The hearing shall be 

2 limited to the following issues of fact, except that partici3 pants at the hearing other than the agency may waive de4 termination of any such issue: 

5 ‘‘(1) Whether the agency’s asserted factual 

6 predicate for the rule is supported by the evidence. 

7 ‘‘(2) Whether there is an alternative to the pro8 posed rule that would achieve the relevant statutory 

9 objectives at a lower cost (including all costs to be 

10 considered under subsection (b)(6)) than the pro11 posed rule. 

12 ‘‘(3) If there is more than one alternative to the 

13 proposed rule that would achieve the relevant statu14 tory objectives at a lower cost than the proposed 

15 rule, which alternative would achieve the relevant 

16 statutory objectives at the lowest cost. 

17 ‘‘(4) Whether, if the agency proposes to adopt 

18 a rule that is more costly than the least costly alter19 native that would achieve the relevant statutory ob20 jectives (including all costs to be considered under 

21 subsection (b)(6)), the additional benefits of the 

22 more costly rule exceed the additional costs of the 

23 more costly rule. 

24 ‘‘(5) Whether the evidence and other informa25 tion upon which the agency bases the proposed rule 


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1 meets the requirements of the Information Quality 

2 Act. 

3 ‘‘(6) Upon petition by an interested person who 

4 has participated in the rulemaking, other issues rel5 evant to the rule making, unless the agency deter6 mines that consideration of the issues at the hearing 

7 would not advance consideration of the rule or 

8 would, in light of the nature of the need for agency 

9 action, unreasonably delay completion of the rule 

10 making. An agency shall grant or deny a petition 

11 under this paragraph within 30 days of its receipt 

12 of the petition. 

13 No later than 45 days before any hearing held under this 

14 subsection or sections 556 and 557, the agency shall pub15 lish in the Federal Register a notice specifying the pro16 posed rule to be considered at such hearing, the issues 

17 to be considered at the hearing, and the time and place 

18 for such hearing, except that such notice may be issued 

19 not later than 15 days before a hearing held under sub20 section (d)(4)(B). 

21 ‘‘(f) FINAL RULES.—(1) The agency shall adopt a 

22 rule only following consultation with the Administrator of 

23 the Office of Information and Regulatory Affairs to facili24 tate compliance with applicable rule making requirements. 


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1 ‘‘(2) The agency shall adopt a rule only on the basis 

2 of the best reasonably obtainable scientific, technical, eco3 nomic, and other evidence and information concerning the 

4 need for, consequences of, and alternatives to the rule. 

5 ‘‘(3)(A) Except as provided in subparagraph (B), the 

6 agency shall adopt the least costly rule considered during 

7 the rule making (including all costs to be considered under 

8 subsection (b)(6)) that meets relevant statutory objectives. 

9 ‘‘(B) The agency may adopt a rule that is more costly 

10 than the least costly alternative that would achieve the rel11 evant statutory objectives only if the additional benefits 

12 of the more costly rule justify its additional costs and only 

13 if the agency explains its reason for doing so based on 

14 interests of public health, safety or welfare that are clearly 

15 within the scope of the statutory provision authorizing the 

16 rule. 

17 ‘‘(4) When it adopts a final rule, the agency shall 

18 publish a notice of final rule making. The notice shall in19 clude— 

20 ‘‘(A) a concise, general statement of the rule’s 

21 basis and purpose; 

22 ‘‘(B) the agency’s reasoned final determination 

23 of need for a rule to address the problem the agency 

24 seeks to address with the rule, including a statement 

25 of whether a rule is required by statute; 


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1 ‘‘(C) the agency’s reasoned final determination 

2 that the benefits of the rule meet the relevant statu3 tory objectives and justify the rule’s costs (including 

4 all costs to be considered under subsection (b)(6)); 

5 ‘‘(D) the agency’s reasoned final determination 

6 not to adopt any of the alternatives to the proposed 

7 rule considered by the agency during the rule mak8 ing, including— 

9 ‘‘(i) the agency’s reasoned final determina10 tion that no alternative considered achieved the 

11 relevant statutory objectives with lower costs 

12 (including all costs to be considered under sub13 section (b)(6)) than the rule; or 

14 ‘‘(ii) the agency’s reasoned determination 

15 that its adoption of a more costly rule complies 

16 with subsection (f)(3)(B); 

17 ‘‘(E) the agency’s reasoned final determina18 tion— 

19 ‘‘(i) that existing rules have not created or 

20 contributed to the problem the agency seeks to 

21 address with the rule; or 

22 ‘‘(ii) that existing rules have created or 

23 contributed to the problem the agency seeks to 

24 address with the rule, and, if so— 


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1 ‘‘(I) why amendment or rescission of 

2 such existing rules is not alone sufficient 

3 to respond to the problem; and 

4 ‘‘(II) whether and how the agency in5 tends to amend or rescind the existing rule 

6 separate from adoption of the rule; 

7 ‘‘(F) the agency’s reasoned final determination 

8 that the evidence and other information upon which 

9 the agency bases the rule complies with the Informa10 tion Quality Act; and 

11 ‘‘(G)(i) for any major rule or high-impact rule, 

12 the agency’s plan for review of the rule no less than 

13 every ten years to determine whether, based upon 

14 evidence, there remains a need for the rule, whether 

15 the rule is in fact achieving statutory objectives, 

16 whether the rule’s benefits continue to justify its 

17 costs, and whether the rule can be modified or re18 scinded to reduce costs while continuing to achieve 

19 statutory objectives; 

20 ‘‘(ii) review of a rule under a plan required by 

21 clause (i) of this subparagraph shall take into ac22 count the factors and criteria set forth in sub23 sections (b) through (f) of section 553 of this title. 

24 All information considered by the agency in connec25 tion with its adoption of the rule, and, at the discreVerDate Mar 15 2010 01:04 Sep 27, 2011 Jkt 099200 PO 00000 Frm 00019 Fmt 6652 Sfmt 6201 E:\BILLS\H3010.IH H3010

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1 tion of the President or the Administrator of the Of2 fice of Information and Regulatory Affairs, informa3 tion provided by that Office in consultations with the 

4 agency, shall be placed in the docket for the rule and 

5 made accessible to the public for the public’s use no 

6 later than when the rule is adopted. 

7 ‘‘(g) EXCEPTIONS FROM NOTICE AND HEARING RE8 QUIREMENTS.—(1) Except when notice or hearing is re9 quired by statute, subsections (c) through (e) of this sec10 tion do not apply to interpretive rules, general statements 

11 of policy, or rules of agency organization, procedure, or 

12 practice. 

13 ‘‘(2)(A) When the agency for good cause, based upon 

14 evidence, finds (and incorporates the finding and a brief 

15 statement of reasons therefor in the rules issued) that 

16 compliance with subsection (c), (d), or (e) or requirements 

17 to render final determinations under subsection (f) of this 

18 section before the issuance of an interim rule is impracti19 cable or contrary to the public interest, including interests 

20 of national security, such subsections or requirements to 

21 render final determinations shall not apply to the agency’s 

22 adoption of an interim rule. 

23 ‘‘(B) If, following compliance with subparagraph (A) 

24 of this paragraph, the agency adopts an interim rule, it 

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1 sections (c) through (f) of this section immediately upon 

2 publication of the interim rule. No less than 270 days 

3 from publication of the interim rule (or 18 months in the 

4 case of a major rule or high-impact rule), the agency shall 

5 complete rule making under subsections (c) through (f) 

6 of this subsection and take final action to adopt a final 

7 rule or rescind the interim rule. If the agency fails to take 

8 timely final action, the interim rule will cease to have the 

9 effect of law. 

10 ‘‘(C) Other than in cases involving interests of na11 tional security, upon the agency’s publication of an interim 

12 rule without compliance with subsections (c), (d), or (e) 

13 or requirements to render final determinations under sub14 section (f) of this section, an interested party may seek 

15 immediate judicial review under chapter 7 of this title of 

16 the agency’s determination to adopt such interim rule. The 

17 record on such review shall include all documents and in18 formation considered by the agency and any additional in19 formation presented by a party that the court determines 

20 necessary to consider to assure justice. 

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 have authority to establish guidelines for the 

19 assessment, including quantitative and qualitative assess20 ment, of the costs and benefits of potential, proposed, and 

21 final rules and other economic issues or issues related to 

22 risk that are relevant to rule making under this section 

23 and other sections of this title. The rigor of cost-benefit 

24 analysis required by such guidelines shall be commensuVerDate Mar 15 2010 03:08 Sep 27, 2011 Jkt 099200 PO 00000 Frm 00022 Fmt 6652 Sfmt 6201 E:\BILLS\H3010.IH H3010

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1 rate, in the Administrator’s determination, with the eco2 nomic impact of the rule. 

3 ‘‘(B) To ensure that agencies use the best available 

4 techniques to quantify and evaluate anticipated present 

5 and future benefits, costs, other economic issues, and risks 

6 as accurately as possible, the Administrator of the Office 

7 of Information and Regulatory Affairs shall regularly up8 date guidelines established under paragraph (1)(A) of this 

9 subsection. 

10 ‘‘(2) The Administrator of the Office of Information 

11 and Regulatory Affairs shall also have authority to issue 

12 guidelines to promote coordination, simplification and har13 monization of agency rules during the rule making process 

14 and otherwise. Such guidelines shall assure that each 

15 agency avoids regulations that are inconsistent or incom16 patible with, or duplicative of, its other regulations and 

17 those of other Federal agencies and drafts its regulations 

18 to be simple and easy to understand, with the goal of mini19 mizing the potential for uncertainty and litigation arising 

20 from such uncertainty. 

21 ‘‘(3) To ensure consistency in Federal rule making, 

22 the Administrator of the Office of Information and Regu23 latory Affairs shall— 

24 ‘‘(A) issue guidelines and otherwise take action 

25 to ensure that rule makings conducted in whole or 


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1 in part under procedures specified in provisions of 

2 law other than those of subchapter II of this title 

3 conform to the fullest extent allowed by law with the 

4 procedures set forth in section 553 of this title; and 

5 ‘‘(B) issue guidelines for the conduct of hear6 ings under subsections 553(d)(4) and 553(e) of this 

7 section, including to assure a reasonable opportunity 

8 for cross-examination. Each agency shall adopt regu9 lations for the conduct of hearings consistent with 

10 the guidelines issued under this subparagraph. 

11 ‘‘(4) The Administrator of the Office of Information 

12 and Regulatory Affairs shall issue guidelines pursuant to 

13 the Information Quality Act to apply in rule making pro14 ceedings under sections 553, 556 and 557 of this title. 

15 In all cases, such guidelines, and the Administrator’s spe16 cific determinations regarding agency compliance with 

17 such guidelines, shall be entitled to judicial deference. 

18 ‘‘(l) INCLUSION IN THE RECORD OF CERTAIN DOCU19 MENTS AND INFORMATION.—The agency shall include in 

20 the record for a rule making all documents and informa21 tion considered by the agency during the proceeding, in22 cluding, at the discretion of the President or the Adminis23 trator of the Office of Information and Regulatory Affairs, 

24 documents and information communicated by that Office 

25 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, an agency 

19 shall— 

20 ‘‘(1) make and document a reasoned determina21 tion that— 

22 ‘‘(A) assures that such guidance is under23 standable and complies with relevant statutory 

24 objectives and regulatory provisions; 


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1 ‘‘(B) identifies the costs and benefits (in2 cluding all costs to be considered during the 

3 rule making under section 553(b) of this title) 

4 of conduct conforming to such guidance and 

5 assures that such benefits justify such costs; 

6 and 

7 ‘‘(C) describes alternatives to such guid8 ance and their costs and benefits (including all 

9 costs to be considered during rule making 

10 under section 553(b) of this title) and explains 

11 why the agency rejected those alternatives; and 

12 ‘‘(2) confer with the Administrator of the Office 

13 of Information and Regulatory Affairs on the 

14 issuance of such guidance to assure that the guid15 ance is reasonable, understandable, consistent with 

16 relevant statutory and regulatory provisions and re17 quirements or practices of other agencies, does not 

18 produce costs that are unjustified by the guidance’s 

19 benefits, and is otherwise appropriate. 

20 ‘‘(b) Agency guidance— 

21 ‘‘(1) is not legally binding and may not be re22 lied upon by an agency as legal grounds for agency 

23 action; 

24 ‘‘(2) shall state in a plain, prominent and per25 manent manner that it is not legally binding; and 


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1 ‘‘(3) shall, at the time it is issued or upon re2 quest, be made available by the issuing agency to in3 terested persons and the public. 

4 ‘‘(c) The Administrator of the Office of Information 

5 and Regulatory Affairs shall have authority to issue guide6 lines for use by the agencies in the issuance of major guid7 ance and other guidance. Such guidelines shall assure that 

8 each agency avoids issuing guidance documents that are 

9 inconsistent or incompatible with, or duplicative of, with 

10 its other regulations and those of other Federal agencies 

11 and drafts its guidance documents to be simple and easy 

12 to understand, with the goal of minimizing the potential 

13 for uncertainty and litigation arising from such uncer14 tainty.’’. 

15 (b) CLERICAL AMENDMENT.—The table of sections 

16 for chapter 5 of title 5, United States Code, is amended 

17 by inserting after the item relating to section 553 the fol18 lowing new item: 

‘‘553a. Agency guidance; procedures to issue major guidance; presidential authority to issue guidelines for issuance of guidance.’’. 

19 SEC. 5. HEARINGS; PRESIDING EMPLOYEES; POWERS AND 

20 DUTIES; BURDEN OF PROOF; EVIDENCE; 

21 RECORD AS BASIS OF DECISION. 

22 Section 556 of title 5, United States Code, is amend23 ed by striking subsection (e) and inserting the following: 


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1 ‘‘(e)(1) The transcript of testimony and exhibits, to2 gether with all papers and requests filed in the proceeding, 

3 constitutes the exclusive record for decision in accordance 

4 with section 557 and, on payment of lawfully prescribed 

5 costs, shall be made available to the parties. When an 

6 agency decision rests on official notice of a material fact 

7 not appearing in the evidence in the record, a party is 

8 entitled, on timely request, to an opportunity to show the 

9 contrary. 

10 ‘‘(2) Notwithstanding paragraph (1) of this sub11 section, in a proceeding held under this section pursuant 

12 to section 553(d)(4) or 553(e), the record for decision 

13 shall include any information that is part of the record 

14 of proceedings under section 553. 

15 ‘‘(f) When an agency conducts rule making under this 

16 section and section 557 directly after concluding pro17 ceedings upon an advance notice of proposed rulemaking 

18 under section 553(c), the matters to be considered and 

19 determinations to be made shall include, among other rel20 evant matters and determinations, the matters and deter21 minations described in subsections (b) and (f) of section 

22 553. 

23 ‘‘(g) Upon receipt of a petition for a hearing under 

24 this section, the agency shall grant the petition in the case 

25 of any major rule, unless the agency reasonably deterVerDate Mar 15 2010 01:04 Sep 27, 2011 Jkt 099200 PO 00000 Frm 00028 Fmt 6652 Sfmt 6201 E:\BILLS\H3010.IH H3010

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1 mines that a hearing would not advance consideration of 

2 the rule or would, in light of the need for agency action, 

3 unreasonably delay completion of the rule making. The 

4 agency shall publish its decision to grant or deny the peti5 tion when it renders the decision, including an explanation 

6 of the grounds for decision. The information contained in 

7 the petition shall in all cases be included in the adminis8 trative record. This subsection shall not apply to rule mak9 ings that concern monetary policy proposed or imple10 mented by the Board of Governors of the Federal Reserve 

11 System or the Federal Open Market Committee.’’. 

12 SEC. 6. ACTIONS REVIEWABLE. 

13 Section 704 of title 5, United States Code, is amend14 ed— 

15 (1) by striking ‘‘Agency action made’’ and in16 serting ‘‘(a) Agency action made’’; and 

17 (2) by adding at the end the following: 

18 ‘‘(b) Other than in cases involving interests of na19 tional security, notwithstanding subsection (a) of this sec20 tion, upon the agency’s publication of an interim rule with21 out compliance with section 553 (c), (d), or (e) or require22 ments to render final determinations under subsection (f) 

23 of section 553, an interested party may seek immediate 

24 judicial review under this chapter of the agency’s deter25 mination to adopt such rule on an interim basis. Review 


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1 shall be limited to whether the agency abused its discre2 tion to adopt the interim rule without compliance with sec3 tion 553 (c), (d), or (e) or without rendering final deter4 minations under subsection (f) of section 553.’’. 

5 SEC. 7. SCOPE OF REVIEW. 

6 Section 706 of title 5, United States Code is amend7 ed— 

8 (1) by striking ‘‘To the extent necessary’’ and 

9 inserting ‘‘(a) To the extent necessary’’; 

10 (2) in paragraph (2)(A) of subsection (a) (as 

11 redesignated by paragraph (1) of this section), by in12 serting after ‘‘in accordance with law’’ the following: 

13 ‘‘(including the Information Quality Act)’’; and 

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

15 ‘‘(b) The court shall not defer to the agency’s— 

16 ‘‘(1) interpretation of an agency rule if the 

17 agency did not comply with the procedures of section 

18 553 or sections 556–557 of chapter 5 of this title to 

19 issue the interpretation; 

20 ‘‘(2) determination of the costs and benefits or 

21 other economic or risk assessment of the action, if 

22 the agency failed to conform to guidelines on such 

23 determinations and assessments established by the 

24 Administrator of the Office of Information and Reg25 ulatory Affairs under section 553(k); or 


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1 ‘‘(3) determinations under interlocutory review 

2 pursuant to sections 553(g)(2)(C) and 704(b). 

3 ‘‘(c) The court shall review agency denials of petitions 

4 under section 553(e)(6) or any other petition for a hearing 

5 under sections 556 and 557 for abuse of agency discre6 tion.’’. 

7 SEC. 8. ADDED DEFINITION. 

8 Section 701(b) of title 5, United States Code, is 

9 amended— 

10 (1) in paragraph (1), by striking ‘‘and’’; 

11 (2) in paragraph (2), by striking the period at 

12 the end, and inserting ‘‘; and’’; and 

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

14 ‘‘(3) ‘substantial evidence’ means such relevant 

15 evidence as a reasonable mind might accept as ade16 quate to support a conclusion in light of the record 

17 considered as a whole, taking into account whatever 

18 in the record fairly detracts from the weight of the 

19 evidence relied upon by the agency to support its de20 cision.’’. 

21 SEC. 9. EFFECTIVE DATE. 

22 The amendments made by this Act to— 

23 (1) sections 553, 556, and 704 of title 5, 

24 United States Code; 

25 (2) subsection (b) of section 701 of such title; 


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1 (3) paragraphs (2) and (3) of section 706(b) of 

2 such title; and 

3 (4) subsection (c) of section 706 of such title; 

4 shall not apply to any rule makings pending or completed 

5 on the date of enactment of this Act. 

Æ 


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