IB 

Union Calendar No. 195 

112TH CONGRESS 

1ST SESSION H. R. 3010 

[Report No. 112–294] 

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 

NOVEMBER 22, 2011 

Additional sponsors: Mr. GOODLATTE, Mr. GOWDY, Mr. FRANKS of Arizona, 

Mr. GALLEGLY, Mr. ROSS of Florida, Mr. QUAYLE, Mr. PENCE, Mr. 

MICA, Mr. KLINE, Mr. SHUSTER, Mr. CHAFFETZ, Mr. GRIFFIN of Arkansas, Mrs. ADAMS, Mr. GOHMERT, Mr. AUSTRIA, Mr. DAVIS of Kentucky, 

Mr. JOHNSON of Ohio, Mr. COSTA, Mr. CALVERT, Mr. CARDOZA, Mr. 

CARTER, Mr. MATHESON, Mr. CONAWAY, Mr. ISSA, Mr. DONNELLY of 

Indiana, Mr. WHITFIELD, Mr. JONES, Mr. KING of Iowa, Mrs. LUMMIS, 

Mr. WILSON of South Carolina, Mr. AUSTIN SCOTT of Georgia, Mr. 

FLAKE, Ms. JENKINS, and Mr. SHULER

NOVEMBER 22, 2011 

Deleted sponsor: Mr. BACA (added November 2, 2011; deleted November 16, 

2011) 

NOVEMBER 22, 2011 

Reported with an amendment, committed to the Committee of the Whole 

House on the State of the Union, and ordered to be printed 

[Strike out all after the enacting clause and insert the part printed in italic] 

[For text of introduced bill, see copy of bill as introduced on September 22, 2011] 


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A BILL 

To reform the process by which Federal agencies analyze 

and formulate new regulations and guidance documents. 


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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; 

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

12 the end and inserting a semicolon; and 

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

14 ‘‘(15) ‘major rule’ means any rule that the Ad15 ministrator of the Office of Information and Regu16 latory Affairs determines is likely to impose— 

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

18 $100,000,000 or more, adjusted annually for in19 flation; 

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

21 consumers, individual industries, Federal, State, 

22 local, or tribal government agencies, or geo23 graphic regions; 

24 ‘‘(C) significant adverse effects on competi25 tion, employment, investment, productivity, inVerDate Mar 15 2010 21:33 Nov 22, 2011 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6203 E:\BILLS\H3010.RH H3010

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1 novation, or on the ability of United States2 based enterprises to compete with foreign-based 

3 enterprises in domestic and export markets; or 

4 ‘‘(D) significant impacts on multiple sectors 

5 of the economy; 

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

7 Administrator of the Office of Information and Regu8 latory Affairs determines is likely to impose an an9 nual cost on the economy of $1,000,000,000 or more, 

10 adjusted annually for inflation; 

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

12 general applicability and future effect, other than a 

13 regulatory action, that sets forth a policy on a statu14 tory, regulatory or technical issue or an interpreta15 tion of a statutory or regulatory issue; 

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

17 Administrator of the Office of Information and Regu18 latory Affairs finds is likely to lead to— 

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

20 $100,000,000 or more, adjusted annually for in21 flation; 

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

23 consumers, individual industries, Federal, State, 

24 local or tribal government agencies, or geo25 graphic regions; 


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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; or 

6 ‘‘(D) significant impacts on multiple sectors 

7 of the economy; 

8 ‘‘(19) the ‘Information Quality Act’ means sec9 tion 515 of Public Law 106–554, the Treasury and 

10 General Government Appropriations Act for Fiscal 

11 Year 2001, and guidelines issued by the Adminis12 trator of the Office of Information and Regulatory Af13 fairs or other agencies pursuant to the Act; and 

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

15 Affairs’ means the office established under section 

16 3503 of chapter 35 of title 44 and any successor to 

17 that office.’’. 

18 SEC. 3. RULE MAKING. 

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

20 amended by striking ‘‘(a) This section applies’’ and insert21 ing ‘‘(a) APPLICABILITY.—This section applies’’. 

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

23 amended by striking subsections (b) through (e) and insert24 ing the following: 


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

2 making, an agency shall make all preliminary and final 

3 factual determinations based on evidence and consider, in 

4 addition to other applicable considerations, the following: 

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

6 be proposed, including whether a rule making is re7 quired by statute, and if so, whether by a specific 

8 date, or whether the agency has discretion to com9 mence a rule making. 

10 ‘‘(2) Other statutory considerations applicable to 

11 whether the agency can or should propose a rule or 

12 undertake other agency action. 

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

14 problem the agency may address with a rule (includ15 ing the degree and nature of risks the problem poses 

16 and the priority of addressing those risks compared to 

17 other matters or activities within the agency’s juris18 diction), whether the problem warrants new agency 

19 action, and the countervailing risks that may be 

20 posed by alternatives for new agency action. 

21 ‘‘(4) Whether existing rules have created or con22 tributed to the problem the agency may address with 

23 a rule and whether those rules could be amended or 

24 rescinded to address the problem in whole or part. 


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

2 or other response identified by the agency or inter3 ested persons, including not only responses that man4 date particular conduct or manners of compliance, 

5 but also— 

6 ‘‘(A) the alternative of no Federal response; 

7 ‘‘(B) amending or rescinding existing rules; 

8 ‘‘(C) potential regional, State, local, or trib9 al regulatory action or other responses that could 

10 be taken in lieu of agency action; and 

11 ‘‘(D) potential responses that— 

12 ‘‘(i) specify performance objectives 

13 rather than conduct or manners of compli14 ance; 

15 ‘‘(ii) establish economic incentives to 

16 encourage desired behavior; 

17 ‘‘(iii) provide information upon which 

18 choices can be made by the public; or 

19 ‘‘(iv) incorporate other innovative al20 ternatives rather than agency actions that 

21 specify conduct or manners of compliance. 

22 ‘‘(6) Notwithstanding any other provision of 

23 law— 

24 ‘‘(A) the potential costs and benefits associ25 ated with potential alternative rules and other 


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1 responses considered under section 553(b)(5), in2 cluding direct, indirect, and cumulative costs 

3 and benefits and estimated impacts on jobs, eco4 nomic growth, innovation, and economic com5 petitiveness; 

6 ‘‘(B) means to increase the cost-effectiveness 

7 of any Federal response; and 

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

9 predictability, lower costs of enforcement and 

10 compliance (to government entities, regulated en11 tities, and the public), and flexibility. 

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

13 FOR MAJOR RULES, HIGH-IMPACT RULES, AND RULES IN14 VOLVING NOVEL LEGAL OR POLICY ISSUES.—In the case 

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

16 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 Federal 

19 Register, an agency shall publish advance notice of proposed 

20 rule making in the Federal Register. In publishing such ad21 vance 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, inVerDate Mar 15 2010 21:33 Nov 22, 2011 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6203 E:\BILLS\H3010.RH H3010

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1 cluding data and other evidence and information 

2 on which the agency expects to rely for the pro3 posed 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 discre8 tion 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 deVerDate Mar 15 2010 21:33 Nov 22, 2011 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6203 E:\BILLS\H3010.RH H3010

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1 termines to propose a rule, and following completion of pro2 cedures under subsection (c), if applicable, the agency shall 

3 consult with the Administrator of the Office of Information 

4 and Regulatory Affairs. If the agency thereafter determines 

5 to propose a rule, the agency shall publish a notice of pro6 posed 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 which 

10 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 rule, 

14 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 

25 all data, studies, models, and other evidence or 


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1 information considered or used by the agency in 

2 connection with its determination to propose the 

3 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 described 

14 under subparagraph (D); 

15 ‘‘(G) a discussion of— 

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

17 and other alternative responses, considered by the 

18 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 agency 

3 seeks to address with the proposed rule; and 

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

5 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 agency 

11 and all other information prepared or described by 

12 the agency under subparagraph (D) and, at the dis13 cretion of the President or the Administrator of the 

14 Office of Information and Regulatory Affairs, infor15 mation provided by that Office in consultations with 

16 the agency, shall be placed in the docket for the pro17 posed rule and made accessible to the public by elec18 tronic means and otherwise for the public’s use when 

19 the notice of proposed rule making is published. 

20 ‘‘(2)(A) If the agency undertakes procedures under sub21 section (c) and determines thereafter not to propose a rule, 

22 the agency shall, following consultation with the Office of 

23 Information and Regulatory Affairs, publish a notice of de24 termination of other agency course. A notice of determina25 tion of other agency course shall include information reVerDate Mar 15 2010 21:33 Nov 22, 2011 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6203 E:\BILLS\H3010.RH H3010

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1 quired by paragraph (1)(D) to be included in a notice of 

2 proposed rule making and a description of the alternative 

3 response the agency determined to adopt. 

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

5 agency makes a determination to amend or rescind an ex6 isting rule, the agency need not undertake additional pro7 ceedings under subsection (c) before it publishes a notice 

8 of proposed rule making to amend or rescind the existing 

9 rule. 

10 All information provided to or considered by the agency, 

11 and steps to obtain information by the agency, in connec12 tion with its determination of other agency course, includ13 ing but not limited to any preliminary risk assessment or 

14 regulatory impact analysis prepared by the agency and all 

15 other information that would be required to be prepared 

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

17 agency had determined to publish a notice of proposed rule 

18 making and, at the discretion of the President or the Ad19 ministrator of the Office of Information and Regulatory Af20 fairs, information provided by that Office in consultations 

21 with the agency, shall be placed in the docket for the deter22 mination and made accessible to the public by electronic 

23 means and otherwise for the public’s use when the notice 

24 of determination is published. 


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

2 this section, the agency shall provide interested persons an 

3 opportunity to participate in the rule making through sub4 mission of written data, views, or arguments with or with5 out 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 requirement; 

9 or 

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

11 section rules are required by statute or at the discre12 tion of the agency to be made on the record after op13 portunity for an agency hearing, sections 556 and 

14 557 shall apply, and paragraph (4), the requirements 

15 of subsection (e) to receive comment outside of the 

16 procedures of sections 556 and 557, and the petition 

17 procedures of subsection (e)(6) shall not apply. 

18 The agency shall provide not fewer than 60 days for inter19 ested persons to submit written data, views, or argument 

20 (or 120 days in the case of a proposed major or high-impact 

21 rule). 

22 ‘‘(4)(A) Within 30 days of publication of notice of pro23 posed rule making, a member of the public may petition 

24 for a hearing in accordance with section 556 to determine 

25 whether any evidence or other information upon which the 


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1 agency bases the proposed rule fails to comply with the In2 formation Quality Act. 

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

4 determine without further process to exclude from the rule 

5 making the evidence or other information that is the subject 

6 of the petition and, if appropriate, withdraw the proposed 

7 rule. The agency shall promptly publish any such deter8 mination. 

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

10 the procedures of clause (i), it shall grant any such petition 

11 that presents a prima facie case that evidence or other infor12 mation upon which the agency bases the proposed rule fails 

13 to comply with the Information Quality Act, hold the re14 quested hearing not later than 30 days after receipt of the 

15 petition, provide a reasonable opportunity for cross-exam16 ination at the hearing, and decide the issues presented by 

17 the petition not later than 60 days after receipt of the peti18 tion. The agency may deny any petition that it determines 

19 does not present such a prima facie case. 

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

21 disposition of issues considered and decided or determined 

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

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

24 an agency’s determination to withdraw a proposed rule 

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


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1 ‘‘(D) Failure to petition for a hearing under this para2 graph shall not preclude judicial review of any claim based 

3 on the Information Quality Act under chapter 7 of this title. 

4 ‘‘(e) HEARINGS FOR HIGH-IMPACT RULES.—Following 

5 notice of a proposed rule making, receipt of comments on 

6 the proposed rule, and any hearing held under subsection 

7 (d)(4), and before adoption of any high-impact rule, the 

8 agency shall hold a hearing in accordance with sections 556 

9 and 557, unless such hearing is waived by all participants 

10 in the rule making other than the agency. The agency shall 

11 provide a reasonable opportunity for cross-examination at 

12 such hearing. The hearing shall be limited to the following 

13 issues of fact, except that participants at the hearing other 

14 than the agency may waive determination of any such 

15 issue: 

16 ‘‘(1) Whether the agency’s asserted factual predi17 cate for the rule is supported by the evidence. 

18 ‘‘(2) Whether there is an alternative to the pro19 posed rule that would achieve the relevant statutory 

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

21 considered under subsection (b)(6)) than the proposed 

22 rule. 

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

24 proposed rule that would achieve the relevant statu25 tory objectives at a lower cost than the proposed rule, 


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1 which alternative would achieve the relevant statutory 

2 objectives at the lowest cost. 

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

4 rule that is more costly than the least costly alter5 native that would achieve the relevant statutory objec6 tives (including all costs to be considered under sub7 section (b)(6)), the additional benefits of the more 

8 costly rule exceed the additional costs of the more cost9 ly rule. 

10 ‘‘(5) Whether the evidence and other information 

11 upon which the agency bases the proposed rule meets 

12 the requirements of the Information Quality Act. 

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

14 has participated in the rule making, other issues rel15 evant to the rule making, unless the agency deter16 mines that consideration of the issues at the hearing 

17 would not advance consideration of the rule or would, 

18 in light of the nature of the need for agency action, 

19 unreasonably delay completion of the rule making. An 

20 agency shall grant or deny a petition under this 

21 paragraph within 30 days of its receipt of the peti22 tion. 

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

24 subsection or sections 556 and 557, the agency shall publish 

25 in the Federal Register a notice specifying the proposed rule 


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1 to be considered at such hearing, the issues to be considered 

2 at the hearing, and the time and place for such hearing, 

3 except that such notice may be issued not later than 15 days 

4 before a hearing held under subsection (d)(4)(B). 

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

6 only following consultation with the Administrator of the 

7 Office of Information and Regulatory Affairs to facilitate 

8 compliance with applicable rule making requirements. 

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

10 of the best reasonably obtainable scientific, technical, eco11 nomic, and other evidence and information concerning the 

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

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

14 agency shall adopt the least costly rule considered during 

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

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

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

18 than the least costly alternative that would achieve the rel19 evant statutory objectives only if the additional benefits of 

20 the more costly rule justify its additional costs and only 

21 if the agency explains its reason for doing so based on inter22 ests of public health, safety or welfare that are clearly with23 in the scope of the statutory provision authorizing the rule. 


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1 ‘‘(4) When it adopts a final rule, the agency shall pub2 lish a notice of final rule making. The notice shall in3 clude— 

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

5 basis and purpose; 

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

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

8 seeks to address with the rule, including a statement 

9 of whether a rule is required by statute and a sum10 mary of any final risk assessment or regulatory im11 pact analysis prepared by the agency; 

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

13 that the benefits of the rule meet the relevant statutory 

14 objectives and justify the rule’s costs (including all 

15 costs to be considered under subsection (b)(6)); 

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

17 not to adopt any of the alternatives to the proposed 

18 rule considered by the agency during the rule making, 

19 including— 

20 ‘‘(i) the agency’s reasoned final determina21 tion that no alternative considered achieved the 

22 relevant statutory objectives with lower costs (in23 cluding all costs to be considered under sub24 section (b)(6)) than the rule; or 


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

2 that its adoption of a more costly rule complies 

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

4 ‘‘(E) the agency’s reasoned final determination— 

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

6 contributed to the problem the agency seeks to 

7 address with the rule; or 

8 ‘‘(ii) that existing rules have created or con9 tributed to the problem the agency seeks to ad10 dress with the rule, and, if so— 

11 ‘‘(I) why amendment or rescission of 

12 such existing rules is not alone sufficient to 

13 respond to the problem; and 

14 ‘‘(II) whether and how the agency in15 tends to amend or rescind the existing rule 

16 separate from adoption of the rule; 

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

18 that the evidence and other information upon which 

19 the agency bases the rule complies with the Informa20 tion Quality Act; and 

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

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

23 every ten years to determine whether, based upon evi24 dence, there remains a need for the rule, whether the 

25 rule is in fact achieving statutory objectives, whether 


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1 the rule’s benefits continue to justify its costs, and 

2 whether the rule can be modified or rescinded to re3 duce costs while continuing to achieve statutory objec4 tives. 

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

6 clause (i) of this subparagraph shall take into account 

7 the factors and criteria set forth in subsections (b) 

8 through (f) of section 553 of this title. 

9 All information considered by the agency in connection 

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

11 President or the Administrator of the Office of Information 

12 and Regulatory Affairs, information provided by that Office 

13 in consultations with the agency, shall be placed in the 

14 docket for the rule and made accessible to the public for 

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

16 ‘‘(g) EXCEPTIONS FROM NOTICE AND HEARING RE17 QUIREMENTS.—(1) Except when notice or hearing is re18 quired by statute, the following do not apply to interpretive 

19 rules, general statements of policy, or rules of agency orga20 nization, procedure, or practice: 

21 ‘‘(A) Subsections (c) through (e). 

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

23 (f). 

24 ‘‘(C) Subparagraphs (B) through (H) of sub25 section (f)(4). 


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

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

3 statement of reasons therefor in the rules issued) that com4 pliance with subsection (c), (d), or (e) or requirements to 

5 render final determinations under subsection (f) of this sec6 tion before the issuance of an interim rule is impracticable 

7 or contrary to the public interest, including interests of na8 tional security, such subsections or requirements to render 

9 final determinations shall not apply to the agency’s adop10 tion of an interim rule. 

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

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

13 shall commence proceedings that comply fully with sub14 sections (d) through (f) of this section immediately upon 

15 publication of the interim rule, shall treat the publication 

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

17 rule making and shall not be required to issue supplemental 

18 notice other than to complete full compliance with sub19 section (d). No less than 270 days from publication of the 

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

21 high-impact rule), the agency shall complete rule making 

22 under subsections (d) through (f) of this subsection and take 

23 final action to adopt a final rule or rescind the interim 

24 rule. If the agency fails to take timely final action, the in25 terim rule will cease to have the effect of law. 


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1 ‘‘(C) Other than in cases involving interests of na2 tional security, upon the agency’s publication of an interim 

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

4 requirements to render final determinations under sub5 section (f) of this section, an interested party may seek im6 mediate judicial review under chapter 7 of this title of the 

7 agency’s determination to adopt such interim rule. The 

8 record on such review shall include all documents and infor9 mation considered by the agency and any additional infor10 mation presented by a party that the court determines nec11 essary to consider to assure justice. 

12 ‘‘(3) When the agency for good cause finds (and incor13 porates the finding and a brief statement of reasons therefor 

14 in the rules issued) that notice and public procedure thereon 

15 are unnecessary, including because agency rule making is 

16 undertaken only to correct a de minimis technical or cler17 ical error in a previously issued rule or for other non18 controversial purposes, the agency may publish a rule with19 out compliance with subsections (c), (d), (e), or (f)(1)-(3) 

20 and (f)(4)(B)-(F). If the agency receives significant adverse 

21 comment within 60 days after publication of the rule, it 

22 shall treat the notice of the rule as a notice of proposed 

23 rule making and complete rule making in compliance with 

24 subsections (d) and (f). 


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

2 When a hearing is required under subsection (e) or is other3 wise required by statute or at the agency’s discretion before 

4 adoption of a rule, the agency shall comply with the re5 quirements of sections 556 and 557 in addition to the re6 quirements of subsection (f) in adopting the rule and in 

7 providing notice of the rule’s adoption. 

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

9 publication or service of a substantive final or interim rule 

10 shall be made not less than 30 days before the effective date 

11 of the rule, except— 

12 ‘‘(1) a substantive rule which grants or recog13 nizes an exemption or relieves a restriction; 

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

15 or 

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

17 good cause found and published with the rule. 

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

19 interested person the right to petition for the issuance, 

20 amendment, or repeal of a rule. 

21 ‘‘(k) RULE MAKING GUIDELINES.—(1)(A) The Admin22 istrator of the Office of Information and Regulatory Affairs 

23 shall establish guidelines for the assessment, including 

24 quantitative and qualitative assessment, of the costs and 

25 benefits of proposed and final rules and other economic 


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1 issues or issues related to risk that are relevant to rule mak2 ing under this title. The rigor of cost-benefit analysis re3 quired by such guidelines shall be commensurate, in the Ad4 ministrator’s determination, with the economic impact of 

5 the rule. 

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

7 techniques to quantify and evaluate anticipated present and 

8 future benefits, costs, other economic issues, and risks as ac9 curately as possible, the Administrator of the Office of In10 formation and Regulatory Affairs shall regularly update 

11 guidelines established under paragraph (1)(A) of this sub12 section. 

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

14 and Regulatory Affairs shall also issue guidelines to pro15 mote coordination, simplification and harmonization of 

16 agency rules during the rule making process and otherwise. 

17 Such guidelines shall assure that each agency avoids regula18 tions that are inconsistent or incompatible with, or duplica19 tive of, its other regulations and those of other Federal agen20 cies and drafts its regulations to be simple and easy to un21 derstand, with the goal of minimizing the potential for un22 certainty and litigation arising from such uncertainty. 

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

24 Administrator of the Office of Information and Regulatory 

25 Affairs shall— 


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

2 to ensure that rule makings conducted in whole or in 

3 part under procedures specified in provisions of law 

4 other than those of subchapter II of this title conform 

5 to the fullest extent allowed by law with the proce6 dures set forth in section 553 of this title; and 

7 ‘‘(B) issue guidelines for the conduct of hearings 

8 under subsections 553(d)(4) and 553(e) of this section, 

9 including to assure a reasonable opportunity for 

10 cross-examination. Each agency shall adopt regula11 tions for the conduct of hearings consistent with the 

12 guidelines issued under this subparagraph. 

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

14 and Regulatory Affairs shall issue guidelines pursuant to 

15 the Information Quality Act to apply in rule making pro16 ceedings under sections 553, 556, and 557 of this title. In 

17 all cases, such guidelines, and the Administrator’s specific 

18 determinations regarding agency compliance with such 

19 guidelines, shall be entitled to judicial deference. 

20 ‘‘(l) INCLUSION IN THE RECORD OF CERTAIN DOCU21 MENTS AND INFORMATION.—The agency shall include in the 

22 record for a rule making, and shall make available by elec23 tronic means and otherwise, all documents and information 

24 prepared or considered by the agency during the proceeding, 

25 including, at the discretion of the President or the AdminisVerDate Mar 15 2010 21:33 Nov 22, 2011 Jkt 019200 PO 00000 Frm 00026 Fmt 6652 Sfmt 6203 E:\BILLS\H3010.RH H3010

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1 trator of the Office of Information and Regulatory Affairs, 

2 documents and information communicated by that Office 

3 during consultation with the Agency. 

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

5 subsection (b)(6), subparagraphs (F) and (G) of subsection 

6 (d)(1), subsection (e), subsection (f)(3), and subparagraphs 

7 (C) and (D) of subsection (f)(5) shall apply to rule makings 

8 that concern monetary policy proposed or implemented by 

9 the Board of Governors of the Federal Reserve System or 

10 the Federal Open Market Committee.’’. 

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

12 GUIDANCE; PRESIDENTIAL AUTHORITY TO 

13 ISSUE GUIDELINES FOR ISSUANCE OF GUID14 ANCE. 

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

16 Code, is amended by inserting after section 553 the fol17 lowing new section: 

18 ‘‘§ 553a. Agency guidance; procedures to issue major 

19 guidance; authority to issue guidelines for 

20 issuance of guidance 

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

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

23 statutory mandates, an agency shall— 

24 ‘‘(1) make and document a reasoned determina25 tion that— 


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1 ‘‘(A) assures that such guidance is under2 standable and complies with relevant statutory 

3 objectives and regulatory provisions (including 

4 any statutory deadlines for agency action); 

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

6 which the agency will base the guidance; 

7 ‘‘(C) identifies the costs and benefits (in8 cluding all costs to be considered during a rule 

9 making under section 553(b) of this title) of con10 duct conforming to such guidance and assures 

11 that such benefits justify such costs; and 

12 ‘‘(D) describes alternatives to such guidance 

13 and their costs and benefits (including all costs 

14 to be considered during a rule making under sec15 tion 553(b) of this title) and explains why the 

16 agency rejected those alternatives; and 

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

18 of Information and Regulatory Affairs on the 

19 issuance of such guidance to assure that the guidance 

20 is reasonable, understandable, consistent with relevant 

21 statutory and regulatory provisions and requirements 

22 or practices of other agencies, does not produce costs 

23 that are unjustified by the guidance’s benefits, and is 

24 otherwise appropriate. 


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1 Upon issuing major guidance, or guidance that involves a 

2 novel legal or policy issue arising out of statutory man3 dates, the agency shall publish the documentation required 

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

5 ‘‘(b) Agency guidance— 

6 ‘‘(1) is not legally binding and may not be relied 

7 upon by an agency as legal grounds for agency ac8 tion; 

9 ‘‘(2) shall state in a plain, prominent and per10 manent manner that it is not legally binding; and 

11 ‘‘(3) shall, at the time it is issued or upon re12 quest, be made available by the issuing agency to in13 terested persons and the public by electronic means 

14 and otherwise. 

15 Agencies shall avoid the issuance of guidance that is incon16 sistent or incompatible with, or duplicative of, the agency’s 

17 governing statutes or regulations, with the goal of mini18 mizing the potential for uncertainty and litigation arising 

19 from such uncertainty. 

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

21 and Regulatory Affairs shall have authority to issue guide22 lines for use by the agencies in the issuance of major guid23 ance and other guidance. Such guidelines shall assure that 

24 each agency avoids issuing guidance documents that are in25 consistent or incompatible with, or duplicative of, the law, 


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1 its other regulations, or the regulations of other Federal 

2 agencies and drafts its guidance documents to be simple and 

3 easy to understand, with the goal of minimizing the poten4 tial for uncertainty and litigation arising from such uncer5 tainty.’’. 

6 (b) CLERICAL AMENDMENT.—The table of sections for 

7 chapter 5 of title 5, United States Code, is amended by in8 serting after the item relating to section 553 the following 

9 new item: 

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

guidelines for issuance of guidance.’ ’’’. 

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

11 DUTIES; BURDEN OF PROOF; EVIDENCE; 

12 RECORD AS BASIS OF DECISION. 

13 Section 556 of title 5, United States Code, is amended 

14 by striking subsection (e) and inserting the following: 

15 ‘‘(e)(1) The transcript of testimony and exhibits, to16 gether with all papers and requests filed in the proceeding, 

17 constitutes the exclusive record for decision in accordance 

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

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

20 lawfully prescribed costs, otherwise. When an agency deci21 sion rests on official notice of a material fact not appearing 

22 in the evidence in the record, a party is entitled, on timely 

23 request, to an opportunity to show the contrary. 


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1 ‘‘(2) Notwithstanding paragraph (1) of this subsection, 

2 in a proceeding held under this section pursuant to section 

3 553(d)(4) or 553(e), the record for decision shall also in4 clude any information that is part of the record of pro5 ceedings under section 553. 

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

7 section and section 557 directly after concluding pro8 ceedings upon an advance notice of proposed rule making 

9 under section 553(c), the matters to be considered and deter10 minations to be made shall include, among other relevant 

11 matters and determinations, the matters and determina12 tions described in subsections (b) and (f) of section 553. 

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

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

15 of any major rule, unless the agency reasonably determines 

16 that a hearing would not advance consideration of the rule 

17 or would, in light of the need for agency action, unreason18 ably delay completion of the rule making. The agency shall 

19 publish its decision to grant or deny the petition when it 

20 renders the decision, including an explanation of the 

21 grounds for decision. The information contained in the peti22 tion shall in all cases be included in the administrative 

23 record. This subsection shall not apply to rule makings that 

24 concern monetary policy proposed or implemented by the 


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1 Board of Governors of the Federal Reserve System or the 

2 Federal Open Market Committee.’’. 

3 SEC. 6. ACTIONS REVIEWABLE. 

4 Section 704 of title 5, United States Code, is amend5 ed— 

6 (1) by striking ‘‘Agency action made’’ and in7 serting ‘‘(a) Agency action made’’; and 

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

9 by an agency of a correction request or, where admin10 istrative appeal is provided for, denial of an appeal, 

11 under an administrative mechanism described in sub12 section (b)(2)(B) of the Information Quality Act, or 

13 the failure of an agency within 90 days to grant or 

14 deny such request or appeal, shall be final action for 

15 purposes of this section. 

16 ‘‘(b) Other than in cases involving interests of national 

17 security, notwithstanding subsection (a) of this section, 

18 upon the agency’s publication of an interim rule without 

19 compliance with section 553(c), (d), or (e) or requirements 

20 to render final determinations under subsection (f) of sec21 tion 553, an interested party may seek immediate judicial 

22 review under this chapter of the agency’s determination to 

23 adopt such rule on an interim basis. Review shall be limited 

24 to whether the agency abused its discretion to adopt the in25 terim rule without compliance with section 553(c), (d), or 


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1 (e) or without rendering final determinations under sub2 section (f) of section 553.’’. 

3 SEC. 7. SCOPE OF REVIEW. 

4 Section 706 of title 5, United States Code is amend5 ed— 

6 (1) by striking ‘‘To the extent necessary’’ and in7 serting ‘‘(a) To the extent necessary’’; 

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

9 designated by paragraph (1) of this section), by in10 serting after ‘‘in accordance with law’’ the following: 

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

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

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

14 ‘‘(1) interpretation of an agency rule if the agen15 cy did not comply with the procedures of section 553 

16 or sections 556-557 of chapter 5 of this title to issue 

17 the interpretation; 

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

19 other economic or risk assessment of the action, if the 

20 agency failed to conform to guidelines on such deter21 minations and assessments established by the Admin22 istrator of the Office of Information and Regulatory 

23 Affairs under section 553(k); 

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

25 interim rule; or 


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1 ‘‘(4) guidance. 

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

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

4 under sections 556 and 557 for abuse of agency discretion.’’. 

5 SEC. 8. ADDED DEFINITION. 

6 Section 701(b) of title 5, United States Code, is amend7 ed— 

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

9 end; 

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

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

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

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

14 evidence as a reasonable mind might accept as ade15 quate to support a conclusion in light of the record 

16 considered as a whole, taking into account whatever 

17 in the record fairly detracts from the weight of the 

18 evidence relied upon by the agency to support its deci19 sion.’’. 

20 SEC. 9. EFFECTIVE DATE. 

21 The amendments made by this Act to— 

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

23 States Code; 

24 (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. 


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Union Calendar No. 195 

112TH CONGRESS 

1ST SESSION H. R. 3010 

[Report No. 112–294] 

A BILL 

To reform the process by which Federal agencies 

ance documents. analyze and formulate new regulations and guidNOVEMBER 22, 2011 

Reported with an amendment, committed to the Comand ordered to be printed mittee of the Whole House on the State of the Union, 


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