IIB 

112TH CONGRESS 

1ST SESSION H. R. 3010 

IN THE SENATE OF THE UNITED STATES 

DECEMBER 5, 2011 

Received; read twice and referred to the Committee on Homeland Security and 

Governmental Affairs 

AN ACT 

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, 

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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Regulatory Account3 ability Act of 2011’’. 

4 SEC. 2. DEFINITIONS. 

5 Section 551 of title 5, United States Code, is amend6 ed— 

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

8 end; 

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

10 the end and inserting a semicolon; and 

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

12 ‘‘(15) ‘major rule’ means any rule that the Ad13 ministrator of the Office of Information and Regu14 latory Affairs determines is likely to impose— 

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

16 $100,000,000 or more, adjusted annually for 

17 inflation; 

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

19 consumers, individual industries, Federal, 

20 State, local, or tribal government agencies, or 

21 geographic regions; 

22 ‘‘(C) significant adverse effects on competi23 tion, employment, investment, productivity, in24 novation, or on the ability of United States25 based enterprises to compete with foreign-based 

26 enterprises in domestic and export markets; or 

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1 ‘‘(D) significant impacts on multiple sec2 tors of the economy; 

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

4 the Administrator of the Office of Information and 

5 Regulatory Affairs determines is likely to impose an 

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

7 more, adjusted annually for inflation; 

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

9 general applicability and future effect, other than a 

10 regulatory action, that sets forth a policy on a statu11 tory, regulatory or technical issue or an interpreta12 tion of a statutory or regulatory issue; 

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

14 Administrator of the Office of Information and Reg15 ulatory Affairs finds is likely to lead to— 

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

17 $100,000,000 or more, adjusted annually for 

18 inflation; 

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

20 consumers, individual industries, Federal, 

21 State, local or tribal government agencies, or 

22 geographic regions; 

23 ‘‘(C) significant adverse effects on competi24 tion, employment, investment, productivity, in25 novation, or on the ability of United Statesmstockstill on DSK4VPTVN1PROD with BILLS

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1 based enterprises to compete with foreign-based 

2 enterprises in domestic and export markets; or 

3 ‘‘(D) significant impacts on multiple sec4 tors of the economy; 

5 ‘‘(19) the ‘Information Quality Act’ means sec6 tion 515 of Public Law 106–554, the Treasury and 

7 General Government Appropriations Act for Fiscal 

8 Year 2001, and guidelines issued by the Adminis9 trator of the Office of Information and Regulatory 

10 Affairs or other agencies pursuant to the Act; and 

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

12 Affairs’ means the office established under section 

13 3503 of chapter 35 of title 44 and any successor to 

14 that office.’’. 

15 SEC. 3. RULE MAKING. 

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

17 amended by striking ‘‘(a) This section applies’’ and insert18 ing ‘‘(a) APPLICABILITY.—This section applies’’. 

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

20 amended by striking subsections (b) through (e) and in21 serting the following: 

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

23 making, an agency shall make all preliminary and final 

24 factual determinations based on evidence and consider, in 

25 addition to other applicable considerations, the following: 

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

2 may be proposed, including whether a rule making 

3 is required by statute, and if so, whether by a spe4 cific date, or whether the agency has discretion to 

5 commence a rule making. 

6 ‘‘(2) Other statutory considerations applicable 

7 to whether the agency can or should propose a rule 

8 or undertake other agency action. 

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

10 problem the agency may address with a rule (includ11 ing the degree and nature of risks the problem poses 

12 and the priority of addressing those risks compared 

13 to other matters or activities within the agency’s ju14 risdiction), whether the problem warrants new agen15 cy action, and the countervailing risks that may be 

16 posed by alternatives for new agency action. 

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

18 contributed to the problem the agency may address 

19 with a rule and whether those rules could be amend20 ed or rescinded to address the problem in whole or 

21 part. 

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

23 or other response identified by the agency or inter24 ested persons, including not only responses that 

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1 mandate particular conduct or manners of compli2 ance, but also— 

3 ‘‘(A) the alternative of no Federal re4 sponse; 

5 ‘‘(B) amending or rescinding existing 

6 rules; 

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

8 tribal regulatory action or other responses that 

9 could be taken in lieu of agency action; and 

10 ‘‘(D) potential responses that— 

11 ‘‘(i) specify performance objectives 

12 rather than conduct or manners of compli13 ance; 

14 ‘‘(ii) establish economic incentives to 

15 encourage desired behavior; 

16 ‘‘(iii) provide information upon which 

17 choices can be made by the public; or 

18 ‘‘(iv) incorporate other innovative al19 ternatives rather than agency actions that 

20 specify conduct or manners of compliance. 

21 ‘‘(6) Notwithstanding any other provision of 

22 law— 

23 ‘‘(A) the potential costs and benefits asso24 ciated with potential alternative rules and other 

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

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1 including direct, indirect, and cumulative costs 

2 and benefits and estimated impacts on jobs (in3 cluding an estimate of the net gain or loss in 

4 domestic jobs), economic growth, innovation, 

5 and economic competitiveness; 

6 ‘‘(B) means to increase the cost-effective7 ness of any Federal response; and 

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

9 predictability, lower costs of enforcement and 

10 compliance (to government entities, regulated 

11 entities, and the public), and flexibility. 

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

13 FOR MAJOR RULES, HIGH-IMPACT RULES, AND RULES

14 INVOLVING NOVEL LEGAL OR POLICY ISSUES.—In the 

15 case of a rule making for a major rule or high-impact rule 

16 or a rule that involves a novel legal or policy issue arising 

17 out of statutory mandates, not later than 90 days before 

18 a notice of proposed rule making is published in the Fed19 eral Register, an agency shall publish advance notice of 

20 proposed rule making in the Federal Register. In pub21 lishing such advance notice, the agency shall— 

22 ‘‘(1) include a written statement identifying, at 

23 a minimum— 

24 ‘‘(A) the nature and significance of the 

25 problem the agency may address with a rule, inmstockstill on DSK4VPTVN1PROD with BILLS

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1 cluding data and other evidence and informa2 tion on which the agency expects to rely for the 

3 proposed rule; 

4 ‘‘(B) the legal authority under which a rule 

5 may be proposed, including whether a rule mak6 ing is required by statute, and if so, whether by 

7 a specific date, or whether the agency has dis8 cretion to commence a rule making; 

9 ‘‘(C) preliminary information available to 

10 the agency concerning the other considerations 

11 specified in subsection (b); and 

12 ‘‘(D) in the case of a rule that involves a 

13 novel legal or policy issue arising out of statu14 tory mandates, the nature of and potential rea15 sons to adopt the novel legal or policy position 

16 upon which the agency may base a proposed 

17 rule; 

18 ‘‘(2) solicit written data, views or argument 

19 from interested persons concerning the information 

20 and issues addressed in the advance notice; and 

21 ‘‘(3) provide for a period of not fewer than 60 

22 days for interested persons to submit such written 

23 data, views, or argument to the agency. 

24 ‘‘(d) NOTICES OF PROPOSED RULE MAKING; DETER25 MINATIONS OF OTHER AGENCY COURSE.—(1) Before it 

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1 determines to propose a rule, and following completion of 

2 procedures under subsection (c), if applicable, the agency 

3 shall consult with the Administrator of the Office of Infor4 mation and Regulatory Affairs. If the agency thereafter 

5 determines to propose a rule, the agency shall publish a 

6 notice of proposed rule making, which shall include— 

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

8 of public rule making proceedings; 

9 ‘‘(B) reference to the legal authority under 

10 which the rule is proposed; 

11 ‘‘(C) the terms of the proposed rule; 

12 ‘‘(D) a description of information known to the 

13 agency on the subject and issues of the proposed 

14 rule, including but not limited to— 

15 ‘‘(i) a summary of information known to 

16 the agency concerning the considerations speci17 fied in subsection (b); 

18 ‘‘(ii) a summary of additional information 

19 the agency provided to and obtained from inter20 ested persons under subsection (c); 

21 ‘‘(iii) a summary of any preliminary risk 

22 assessment or regulatory impact analysis per23 formed by the agency; and 

24 ‘‘(iv) information specifically identifying all 

25 data, studies, models, and other evidence or inmstockstill on DSK4VPTVN1PROD with BILLS

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1 formation considered or used by the agency in 

2 connection with its determination to propose 

3 the rule; 

4 ‘‘(E)(i) a reasoned preliminary determination of 

5 need for the rule based on the information described 

6 under subparagraph (D); and 

7 ‘‘(ii) an additional statement of whether a rule 

8 is required by statute; 

9 ‘‘(F) a reasoned preliminary determination that 

10 the benefits of the proposed rule meet the relevant 

11 statutory objectives and justify the costs of the pro12 posed rule (including all costs to be considered under 

13 subsection (b)(6)), based on the information de14 scribed under subparagraph (D); 

15 ‘‘(G) a discussion of— 

16 ‘‘(i) the alternatives to the proposed rule, 

17 and other alternative responses, considered by 

18 the agency under subsection (b); 

19 ‘‘(ii) the costs and benefits of those alter20 natives (including all costs to be considered 

21 under subsection (b)(6)); 

22 ‘‘(iii) whether those alternatives meet rel23 evant statutory objectives; and 

24 ‘‘(iv) why the agency did not propose any 

25 of those alternatives; and 

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1 ‘‘(H)(i) a statement of whether existing rules 

2 have created or contributed to the problem the agen3 cy seeks to address with the proposed rule; and 

4 ‘‘(ii) if so, whether or not the agency proposes 

5 to amend or rescind any such rules, and why. 

6 All information provided to or considered by the 

7 agency, and steps to obtain information by the agen8 cy, in connection with its determination to propose 

9 the rule, including any preliminary risk assessment 

10 or regulatory impact analysis prepared by the agen11 cy and all other information prepared or described 

12 by the agency under subparagraph (D) and, at the 

13 discretion of the President or the Administrator of 

14 the Office of Information and Regulatory Affairs, in15 formation provided by that Office in consultations 

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

17 proposed rule and made accessible to the public by 

18 electronic means and otherwise for the public’s use 

19 when the notice of proposed rule making is pub20 lished. 

21 ‘‘(2)(A) If the agency undertakes procedures under 

22 subsection (c) and determines thereafter not to propose 

23 a rule, the agency shall, following consultation with the 

24 Office of Information and Regulatory Affairs, publish a 

25 notice of determination of other agency course. A notice 

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1 of determination of other agency course shall include in2 formation required by paragraph (1)(D) to be included in 

3 a notice of proposed rule making and a description of the 

4 alternative response the agency determined to adopt. 

5 ‘‘(B) If in its determination of other agency course 

6 the agency makes a determination to amend or rescind 

7 an existing rule, the agency need not undertake additional 

8 proceedings under subsection (c) before it publishes a no9 tice of proposed rule making to amend or rescind the exist10 ing rule. 

11 All information provided to or considered by the agency, 

12 and steps to obtain information by the agency, in connec13 tion with its determination of other agency course, includ14 ing but not limited to any preliminary risk assessment or 

15 regulatory impact analysis prepared by the agency and all 

16 other information that would be required to be prepared 

17 or described by the agency under paragraph (1)(D) if the 

18 agency had determined to publish a notice of proposed rule 

19 making and, at the discretion of the President or the Ad20 ministrator of the Office of Information and Regulatory 

21 Affairs, information provided by that Office in consulta22 tions with the agency, shall be placed in the docket for 

23 the determination and made accessible to the public by 

24 electronic means and otherwise for the public’s use when 

25 the notice of determination is published. 

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1 ‘‘(3) After notice of proposed rule making required 

2 by this section, the agency shall provide interested persons 

3 an opportunity to participate in the rule making through 

4 submission of written data, views, or arguments with or 

5 without opportunity for oral presentation, except that— 

6 ‘‘(A) if a hearing is required under paragraph 

7 (4)(B) or subsection (e), opportunity for oral presen8 tation shall be provided pursuant to that require9 ment; or 

10 ‘‘(B) when other than under subsection (e) of 

11 this section rules are required by statute or at the 

12 discretion of the agency to be made on the record 

13 after opportunity for an agency hearing, sections 

14 556 and 557 shall apply, and paragraph (4), the re15 quirements of subsection (e) to receive comment out16 side of the procedures of sections 556 and 557, and 

17 the petition procedures of subsection (e)(6) shall not 

18 apply. 

19 The agency shall provide not fewer than 60 days for inter20 ested persons to submit written data, views, or argument 

21 (or 120 days in the case of a proposed major or high22 impact rule). 

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

24 proposed rule making, a member of the public may peti25 tion for a hearing in accordance with section 556 to determstockstill on DSK4VPTVN1PROD with BILLS

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1 mine whether any evidence or other information upon 

2 which the agency bases the proposed rule fails to comply 

3 with the Information Quality Act. 

4 ‘‘(B)(i) The agency may, upon review of the petition, 

5 determine without further process to exclude from the rule 

6 making the evidence or other information that is the sub7 ject of the petition and, if appropriate, withdraw the pro8 posed rule. The agency shall promptly publish any such 

9 determination. 

10 ‘‘(ii) If the agency does not resolve the petition under 

11 the procedures of clause (i), it shall grant any such peti12 tion that presents a prima facie case that evidence or other 

13 information upon which the agency bases the proposed 

14 rule fails to comply with the Information Quality Act, hold 

15 the requested hearing not later than 30 days after receipt 

16 of the petition, provide a reasonable opportunity for cross17 examination at the hearing, and decide the issues pre18 sented by the petition not later than 60 days after receipt 

19 of the petition. The agency may deny any petition that 

20 it determines does not present such a prima facie case. 

21 ‘‘(C) There shall be no judicial review of the agency’s 

22 disposition of issues considered and decided or determined 

23 under subparagraph (B)(ii) until judicial review of the 

24 agency’s final action. There shall be no judicial review of 

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1 an agency’s determination to withdraw a proposed rule 

2 under subparagraph (B)(i) on the basis of the petition. 

3 ‘‘(D) Failure to petition for a hearing under this 

4 paragraph shall not preclude judicial review of any claim 

5 based on the Information Quality Act under chapter 7 of 

6 this title. 

7 ‘‘(e) HEARINGS FOR HIGH-IMPACT RULES.—Fol8 lowing notice of a proposed rule making, receipt of com9 ments on the proposed rule, and any hearing held under 

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

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

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

13 all participants in the rule making other than the agency. 

14 The agency shall provide a reasonable opportunity for 

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

16 limited to the following issues of fact, except that partici17 pants at the hearing other than the agency may waive de18 termination of any such issue: 

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

20 predicate for the rule is supported by the evidence. 

21 ‘‘(2) Whether there is an alternative to the pro22 posed rule that would achieve the relevant statutory 

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

24 considered under subsection (b)(6)) than the pro25 posed rule. 

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

2 proposed rule that would achieve the relevant statu3 tory objectives at a lower cost than the proposed 

4 rule, which alternative would achieve the relevant 

5 statutory objectives at the lowest cost. 

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

7 a rule that is more costly than the least costly alter8 native that would achieve the relevant statutory ob9 jectives (including all costs to be considered under 

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

11 more costly rule exceed the additional costs of the 

12 more costly rule. 

13 ‘‘(5) Whether the evidence and other informa14 tion upon which the agency bases the proposed rule 

15 meets the requirements of the Information Quality 

16 Act. 

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

18 has participated in the rule making, other issues rel19 evant to the rule making, unless the agency deter20 mines that consideration of the issues at the hearing 

21 would not advance consideration of the rule or 

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

23 action, unreasonably delay completion of the rule 

24 making. An agency shall grant or deny a petition 

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1 under this paragraph within 30 days of its receipt 

2 of the petition. 

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

4 subsection or sections 556 and 557, the agency shall pub5 lish in the Federal Register a notice specifying the pro6 posed rule to be considered at such hearing, the issues 

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

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

9 not later than 15 days before a hearing held under sub10 section (d)(4)(B). 

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

12 rule only following consultation with the Administrator of 

13 the Office of Information and Regulatory Affairs to facili14 tate compliance with applicable rule making requirements. 

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

16 of the best reasonably obtainable scientific, technical, eco17 nomic, and other evidence and information concerning the 

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

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

20 agency shall adopt the least costly rule considered during 

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

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

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

24 than the least costly alternative that would achieve the rel25 evant statutory objectives only if the additional benefits 

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

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

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

4 within the scope of the statutory provision authorizing the 

5 rule. 

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

7 publish a notice of final rule making. The notice shall in8 clude— 

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

10 basis and purpose; 

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

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

13 seeks to address with the rule, including a statement 

14 of whether a rule is required by statute and a sum15 mary of any final risk assessment or regulatory im16 pact analysis prepared by the agency; 

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

18 that the benefits of the rule meet the relevant statu19 tory objectives and justify the rule’s costs (including 

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

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

22 not to adopt any of the alternatives to the proposed 

23 rule considered by the agency during the rule mak24 ing, including— 

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1 ‘‘(i) the agency’s reasoned final determina2 tion that no alternative considered achieved the 

3 relevant statutory objectives with lower costs 

4 (including all costs to be considered under sub5 section (b)(6)) than the rule; or 

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

7 that its adoption of a more costly rule complies 

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

9 ‘‘(E) the agency’s reasoned final determina10 tion— 

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

12 contributed to the problem the agency seeks to 

13 address with the rule; or 

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

15 contributed to the problem the agency seeks to 

16 address with the rule, and, if so— 

17 ‘‘(I) why amendment or rescission of 

18 such existing rules is not alone sufficient 

19 to respond to the problem; and 

20 ‘‘(II) whether and how the agency in21 tends to amend or rescind the existing rule 

22 separate from adoption of the rule; 

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

24 that the evidence and other information upon which 

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1 the agency bases the rule complies with the Informa2 tion Quality Act; and 

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

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

5 every ten years to determine whether, based upon 

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

7 the rule is in fact achieving statutory objectives, 

8 whether the rule’s benefits continue to justify its 

9 costs, and whether the rule can be modified or re10 scinded to reduce costs while continuing to achieve 

11 statutory objectives. 

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

13 clause (i) of this subparagraph shall take into ac14 count the factors and criteria set forth in sub15 sections (b) through (f) of section 553 of this title. 

16 All information considered by the agency in connection 

17 with its adoption of the rule, and, at the discretion of the 

18 President or the Administrator of the Office of Informa19 tion and Regulatory Affairs, information provided by that 

20 Office in consultations with the agency, shall be placed 

21 in the docket for the rule and made accessible to the public 

22 for the public’s use no later than when the rule is adopted. 

23 ‘‘(g) EXCEPTIONS FROM NOTICE AND HEARING RE24 QUIREMENTS.—(1) Except when notice or hearing is re25 quired by statute, the following do not apply to interpremstockstill on DSK4VPTVN1PROD with BILLS

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1 tive rules, general statements of policy, or rules of agency 

2 organization, procedure, or practice: 

3 ‘‘(A) Subsections (c) through (e). 

4 ‘‘(B) Paragraphs (1) through (3) of subsection 

5 (f). 

6 ‘‘(C) Subparagraphs (B) through (H) of sub7 section (f)(4). 

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

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

10 statement of reasons therefor in the rules issued) that 

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

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

13 section before the issuance of an interim rule is impracti14 cable or contrary to the public interest, including interests 

15 of national security, such subsections or requirements to 

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

17 adoption of an interim rule. 

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

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

20 shall commence proceedings that comply fully with sub21 sections (d) through (f) of this section immediately upon 

22 publication of the interim rule, shall treat the publication 

23 of the interim rule as publication of a notice of proposed 

24 rule making and shall not be required to issue supple25 mental notice other than to complete full compliance with 

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1 subsection (d). No less than 270 days from publication 

2 of the interim rule (or 18 months in the case of a major 

3 rule or high-impact rule), the agency shall complete rule 

4 making under subsections (d) through (f) of this sub5 section and take final action to adopt a final rule or re6 scind the interim rule. If the agency fails to take timely 

7 final action, the interim rule will cease to have the effect 

8 of law. 

9 ‘‘(C) Other than in cases involving interests of na10 tional security, upon the agency’s publication of an interim 

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

12 or requirements to render final determinations under sub13 section (f) of this section, an interested party may seek 

14 immediate judicial review under chapter 7 of this title of 

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

16 record on such review shall include all documents and in17 formation considered by the agency and any additional in18 formation presented by a party that the court determines 

19 necessary to consider to assure justice. 

20 ‘‘(3) When the agency for good cause finds (and in21 corporates the finding and a brief statement of reasons 

22 therefor in the rules issued) that notice and public proce23 dure thereon are unnecessary, including because agency 

24 rule making is undertaken only to correct a de minimis 

25 technical or clerical error in a previously issued rule or 

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1 for other noncontroversial purposes, the agency may pub2 lish a rule without compliance with subsections (c), (d), 

3 (e), or (f)(1)–(3) and (f)(4)(B)–(F). If the agency receives 

4 significant adverse comment within 60 days after publica5 tion of the rule, it shall treat the notice of the rule as 

6 a notice of proposed rule making and complete rule mak7 ing in compliance with subsections (d) and (f). 

8 ‘‘(h) ADDITIONAL REQUIREMENTS FOR HEARINGS.— 

9 When a hearing is required under subsection (e) or is oth10 erwise required by statute or at the agency’s discretion 

11 before adoption of a rule, the agency shall comply with 

12 the requirements of sections 556 and 557 in addition to 

13 the requirements of subsection (f) in adopting the rule and 

14 in providing notice of the rule’s adoption. 

15 ‘‘(i) DATE OF PUBLICATION OF RULE.—The required 

16 publication or service of a substantive final or interim rule 

17 shall be made not less than 30 days before the effective 

18 date of the rule, except— 

19 ‘‘(1) a substantive rule which grants or recog20 nizes an exemption or relieves a restriction; 

21 ‘‘(2) interpretive rules and statements of policy; 

22 or 

23 ‘‘(3) as otherwise provided by the agency for 

24 good cause found and published with the rule. 

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1 ‘‘(j) RIGHT TO PETITION.—Each agency shall give an 

2 interested person the right to petition for the issuance, 

3 amendment, or repeal of a rule. 

4 ‘‘(k) RULE MAKING GUIDELINES.—(1)(A) The Ad5 ministrator of the Office of Information and Regulatory 

6 Affairs shall establish guidelines for the assessment, in7 cluding quantitative and qualitative assessment, of the 

8 costs and benefits of proposed and final rules and other 

9 economic issues or issues related to risk that are relevant 

10 to rule making under this title. The rigor of cost-benefit 

11 analysis required by such guidelines shall be commensu12 rate, in the Administrator’s determination, with the eco13 nomic impact of the rule. 

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

15 techniques to quantify and evaluate anticipated present 

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

17 as accurately as possible, the Administrator of the Office 

18 of Information and Regulatory Affairs shall regularly up19 date guidelines established under paragraph (1)(A) of this 

20 subsection. 

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

22 and Regulatory Affairs shall also issue guidelines to pro23 mote coordination, simplification and harmonization of 

24 agency rules during the rule making process and other25 wise. Such guidelines shall assure that each agency avoids 

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1 regulations that are inconsistent or incompatible with, or 

2 duplicative of, its other regulations and those of other 

3 Federal agencies and drafts its regulations to be simple 

4 and easy to understand, with the goal of minimizing the 

5 potential for uncertainty and litigation arising from such 

6 uncertainty. 

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

8 the Administrator of the Office of Information and Regu9 latory Affairs shall— 

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

11 to ensure that rule makings conducted in whole or 

12 in part under procedures specified in provisions of 

13 law other than those of subchapter II of this title 

14 conform to the fullest extent allowed by law with the 

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

16 ‘‘(B) issue guidelines for the conduct of hear17 ings under subsections 553(d)(4) and 553(e) of this 

18 section, including to assure a reasonable opportunity 

19 for cross-examination. Each agency shall adopt regu20 lations for the conduct of hearings consistent with 

21 the guidelines issued under this subparagraph. 

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

23 and Regulatory Affairs shall issue guidelines pursuant to 

24 the Information Quality Act to apply in rule making pro25 ceedings under sections 553, 556, and 557 of this title. 

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1 In all cases, such guidelines, and the Administrator’s spe2 cific determinations regarding agency compliance with 

3 such guidelines, shall be entitled to judicial deference. 

4 ‘‘(l) INCLUSION IN THE RECORD OF CERTAIN DOCU5 MENTS AND INFORMATION.—The agency shall include in 

6 the record for a rule making, and shall make available by 

7 electronic means and otherwise, all documents and infor8 mation prepared or considered by the agency during the 

9 proceeding, including, at the discretion of the President 

10 or the Administrator of the Office of Information and Reg11 ulatory Affairs, documents and information communicated 

12 by that Office during consultation with the Agency. 

13 ‘‘(m) MONETARY POLICY EXEMPTION.—Nothing in 

14 subsection (b)(6), subparagraphs (F) and (G) of sub15 section (d)(1), subsection (e), subsection (f)(3), and sub16 paragraphs (C) and (D) of subsection (f)(5) shall apply 

17 to rule makings that concern monetary policy proposed or 

18 implemented by the Board of Governors of the Federal 

19 Reserve System or the Federal Open Market Committee.’’. 

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1 SEC. 4. AGENCY GUIDANCE; PROCEDURES TO ISSUE MAJOR 

2 GUIDANCE; PRESIDENTIAL AUTHORITY TO 

3 ISSUE GUIDELINES FOR ISSUANCE OF GUID4 ANCE. 

5 (a) IN GENERAL.—Chapter 5 of title 5, United 

6 States Code, is amended by inserting after section 553 the 

7 following new section: 

8 ‘‘§ 553a. Agency guidance; procedures to issue major 

9 guidance; authority to issue guidelines 

10 for issuance of guidance 

11 ‘‘(a) Before issuing any major guidance, or guidance 

12 that involves a novel legal or policy issue arising out of 

13 statutory mandates, an agency shall— 

14 ‘‘(1) make and document a reasoned determina15 tion that— 

16 ‘‘(A) assures that such guidance is under17 standable and complies with relevant statutory 

18 objectives and regulatory provisions (including 

19 any statutory deadlines for agency action); 

20 ‘‘(B) summarizes the evidence and data on 

21 which the agency will base the guidance; 

22 ‘‘(C) identifies the costs and benefits (in23 cluding all costs to be considered during a rule 

24 making under section 553(b) of this title) of 

25 conduct conforming to such guidance and 

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1 assures that such benefits justify such costs; 

2 and 

3 ‘‘(D) describes alternatives to such guid4 ance and their costs and benefits (including all 

5 costs to be considered during a rule making 

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

7 why the agency rejected those alternatives; and 

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

9 of Information and Regulatory Affairs on the 

10 issuance of such guidance to assure that the guid11 ance is reasonable, understandable, consistent with 

12 relevant statutory and regulatory provisions and re13 quirements or practices of other agencies, does not 

14 produce costs that are unjustified by the guidance’s 

15 benefits, and is otherwise appropriate. 

16 Upon issuing major guidance, or guidance that involves 

17 a novel legal or policy issue arising out of statutory man18 dates, the agency shall publish the documentation required 

19 by subparagraph (1) by electronic means and otherwise. 

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 by electronic means 

4 and otherwise. 

5 Agencies shall avoid the issuance of guidance that is in6 consistent or incompatible with, or duplicative of, the 

7 agency’s governing statutes or regulations, with the goal 

8 of minimizing the potential for uncertainty and litigation 

9 arising from such uncertainty. 

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

11 and Regulatory Affairs shall have authority to issue guide12 lines for use by the agencies in the issuance of major guid13 ance and other guidance. Such guidelines shall assure that 

14 each agency avoids issuing guidance documents that are 

15 inconsistent or incompatible with, or duplicative of, the 

16 law, its other regulations, or the regulations of other Fed17 eral agencies and drafts its guidance documents to be sim18 ple and easy to understand, with the goal of minimizing 

19 the potential for uncertainty and litigation arising from 

20 such uncertainty.’’. 

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

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

23 by inserting after the item relating to section 553 the fol24 lowing new item: 

‘‘553a. Agency guidance; procedures to issue major guidance; authority to issue 

guidelines for issuance of guidance.’’. 

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

2 DUTIES; BURDEN OF PROOF; EVIDENCE; 

3 RECORD AS BASIS OF DECISION. 

4 Section 556 of title 5, United States Code, is amend5 ed by striking subsection (e) and inserting the following: 

6 ‘‘(e)(1) The transcript of testimony and exhibits, to7 gether with all papers and requests filed in the proceeding, 

8 constitutes the exclusive record for decision in accordance 

9 with section 557 and shall be made available to the parties 

10 and the public by electronic means and, upon payment of 

11 lawfully prescribed costs, otherwise. When an agency deci12 sion rests on official notice of a material fact not appear13 ing in the evidence in the record, a party is entitled, on 

14 timely request, to an opportunity to show the contrary. 

15 ‘‘(2) Notwithstanding paragraph (1) of this sub16 section, in a proceeding held under this section pursuant 

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

18 shall also include any information that is part of the 

19 record of proceedings under section 553. 

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

21 section and section 557 directly after concluding pro22 ceedings upon an advance notice of proposed rule making 

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

24 determinations to be made shall include, among other rel25 evant matters and determinations, the matters and determstockstill on DSK4VPTVN1PROD with BILLS

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1 minations described in subsections (b) and (f) of section 

2 553. 

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

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

5 of any major rule, unless the agency reasonably deter6 mines that a hearing would not advance consideration of 

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

8 unreasonably delay completion of the rule making. The 

9 agency shall publish its decision to grant or deny the peti10 tion when it renders the decision, including an explanation 

11 of the grounds for decision. The information contained in 

12 the petition shall in all cases be included in the adminis13 trative record. This subsection shall not apply to rule mak14 ings that concern monetary policy proposed or imple15 mented by the Board of Governors of the Federal Reserve 

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

17 SEC. 6. ACTIONS REVIEWABLE. 

18 Section 704 of title 5, United States Code, is amend19 ed— 

20 (1) by striking ‘‘Agency action made’’ and in21 serting ‘‘(a) Agency action made’’; and 

22 (2) by adding at the end the following: ‘‘Denial 

23 by an agency of a correction request or, where ad24 ministrative appeal is provided for, denial of an ap25 peal, under an administrative mechanism described 

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1 in subsection (b)(2)(B) of the Information Quality 

2 Act, or the failure of an agency within 90 days to 

3 grant or deny such request or appeal, shall be final 

4 action for purposes of this section. 

5 ‘‘(b) Other than in cases involving interests of na6 tional security, notwithstanding subsection (a) of this sec7 tion, upon the agency’s publication of an interim rule with8 out compliance with section 553(c), (d), or (e) or require9 ments to render final determinations under subsection (f) 

10 of section 553, an interested party may seek immediate 

11 judicial review under this chapter of the agency’s deter12 mination to adopt such rule on an interim basis. Review 

13 shall be limited to whether the agency abused its discre14 tion to adopt the interim rule without compliance with sec15 tion 553(c), (d), or (e) or without rendering final deter16 minations under subsection (f) of section 553.’’. 

17 SEC. 7. SCOPE OF REVIEW. 

18 Section 706 of title 5, United States Code is amend19 ed— 

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

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

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

23 designated by paragraph (1) of this section), by in24 serting after ‘‘in accordance with law’’ the following: 

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

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

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

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

4 agency did not comply with the procedures of section 

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

6 issue the interpretation; 

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

8 other economic or risk assessment of the action, if 

9 the agency failed to conform to guidelines on such 

10 determinations and assessments established by the 

11 Administrator of the Office of Information and Reg12 ulatory Affairs under section 553(k); 

13 ‘‘(3) determinations made in the adoption of an 

14 interim rule; or 

15 ‘‘(4) guidance. 

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

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

18 under sections 556 and 557 for abuse of agency discre19 tion.’’. 

20 SEC. 8. ADDED DEFINITION. 

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

22 amended— 

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

24 end; 

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

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

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

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

5 evidence as a reasonable mind might accept as ade6 quate to support a conclusion in light of the record 

7 considered as a whole, taking into account whatever 

8 in the record fairly detracts from the weight of the 

9 evidence relied upon by the agency to support its de10 cision.’’. 

11 SEC. 9. EFFECTIVE DATE. 

12 The amendments made by this Act to— 

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

14 United States Code; 

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

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

17 such title; and 

18 (4) subsection (c) of section 706 of such title, 

19 shall not apply to any rule makings pending or completed 

20 on the date of enactment of this Act. 

Passed the House of Representatives December 2, 

2011. 

Attest: KAREN L. HAAS, 

Clerk. 

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