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. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Regulatory Account-
ability Act of 2011’’. 
SEC. 2. DEFINITIONS. 
Section 551 of title 5, United States Code, is amend-
ed— 
(1) in paragraph (13), by striking ‘‘and’’ at the 
end; 
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(2) in paragraph (14), by striking the period at 
the end and inserting a semicolon; and 
(3) by adding at the end the following: 
‘‘(15) ‘major rule’ means any rule that the Ad-
ministrator of the Office of Information and Regu-
latory Affairs determines is likely to impose— 
‘‘(A) an annual cost on the economy of 
$100,000,000 or more, adjusted annually for 
inflation; 
‘‘(B) a major increase in costs or prices for 
consumers, 
individual 
industries, 
Federal, 
State, local, or tribal government agencies, or 
geographic regions; 
‘‘(C) significant adverse effects on competi-
tion, employment, investment, productivity, in-
novation, or on the ability of United States- 
based enterprises to compete with foreign-based 
enterprises in domestic and export markets; or 
‘‘(D) significant costs on multiple sectors 
of the economy; 
‘‘(16) ‘high-impact rule’ means any rule that 
the Administrator of the Office of Information and 
Regulatory Affairs determines is likely to impose an 
annual cost on the economy of $1,000,000,000 or 
more, adjusted annually for inflation; 
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‘‘(17) ‘guidance’ means an agency statement of 
general applicability and future effect, other than a 
regulatory action, that sets forth a policy on a statu-
tory, regulatory or technical issue or an interpreta-
tion of a statutory or regulatory issue; 
‘‘(18) ‘major guidance’ means guidance that the 
Administrator of the Office of Information and Reg-
ulatory Affairs finds is likely to lead to— 
‘‘(A) an annual cost on the economy of 
$100,000,000 or more, adjusted annually for 
inflation; 
‘‘(B) a major increase in costs or prices for 
consumers, 
individual 
industries, 
Federal, 
State, local or tribal government agencies, or 
geographic regions; 
‘‘(C) significant adverse effects on competi-
tion, employment, investment, productivity, in-
novation, or on the ability of United States- 
based enterprises to compete with foreign-based 
enterprises in domestic and export markets; or 
‘‘(D) significant costs for multiple sectors 
of the economy; 
‘‘(19) the ‘Information Quality Act’ means sec-
tion 515 of Public Law 106–554, the Treasury and 
General Government Appropriations Act for Fiscal 
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Year 2001, and guidelines issued by the Adminis-
trator of the Office of Information and Regulatory 
Affairs or other agencies pursuant to the Act; and 
‘‘(20) the ‘Office of Information and Regulatory 
Affairs’ means the office established under section 
3503 of chapter 35 of title 44 and any successor to 
that office.’’. 
SEC. 3. RULEMAKING. 
(a) Section 553(a) of title 5, United States Code, is 
amended by striking ‘‘(a) This section applies’’ and insert-
ing ‘‘(a) APPLICABILITY.—This section applies’’. 
(b) Section 553 of title 5, United States Code, is 
amended by striking subsections (b) through (e) and in-
serting the following: 
‘‘(b) RULE MAKING CONSIDERATIONS.—In a rule 
making, an agency shall make all preliminary and final 
determinations based on evidence and consider, in addition 
to other applicable considerations, the following: 
‘‘(1) The legal authority under which a rule 
may be proposed, including whether a rule making 
is required by statute, and if so, whether by a spe-
cific date, or whether the agency has discretion to 
commence a rule making. 
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‘‘(C) potential regional, State, local, or 
tribal regulatory action or other responses that 
could be taken in lieu of agency action; and 
‘‘(D) potential responses that— 
‘‘(i) specify performance objectives 
rather than conduct or manners of compli-
ance; 
‘‘(ii) establish economic incentives to 
encourage desired behavior; 
‘‘(iii) provide information upon which 
choices can be made by the public; or 
‘‘(iv) incorporate other innovative al-
ternatives rather than agency actions that 
specify conduct or manners of compliance. 
‘‘(6) Notwithstanding any other provision of 
law— 
‘‘(A) the potential costs and benefits asso-
ciated with potential alternative rules and other 
responses considered under section 553(b)(5), 
including direct, indirect, and cumulative costs 
and benefits and estimated impacts on jobs, 
economic growth, innovation, and economic 
competitiveness; 
‘‘(B) means to increase the cost-effective-
ness of any Federal response; and 
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‘‘(C) incentives for innovation, consistency, 
predictability, lower costs of enforcement and 
compliance (to government entities, regulated 
entities, and the public), and flexibility. 
‘‘(c) ADVANCE NOTICE OF PROPOSED RULE MAKING 
FOR MAJOR RULES AND HIGH-IMPACT RULES.— 
‘‘(1) In the case of a rule making for a major 
rule or high-impact rule, not later than 90 days be-
fore a notice of proposed rule making is published 
in the Federal Register, an agency shall publish ad-
vance notice of proposed rule making in the Federal 
Register. In publishing such advance notice, the 
agency shall— 
‘‘(A) include a written statement identi-
fying, at a minimum— 
‘‘(i) the nature and significance of the 
problem the agency may address with a 
rule, including data and other evidence and 
information on which the agency expects to 
rely for the proposed rule; 
‘‘(ii) the legal authority under which a 
rule may be proposed, including whether a 
rule making is required by statute, and if 
so, whether by a specific date, or whether 
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the agency has discretion to commence a 
rule making; and 
‘‘(iii) preliminary information avail-
able to the agency concerning the other 
considerations specified in subsection (b); 
‘‘(B) solicit written data, views or argu-
ment from interested persons concerning the in-
formation and issues addressed in the advance 
notice; and 
‘‘(C) provide for a period of not fewer than 
60 days for interested persons to submit such 
written data, views, or argument to the agency. 
‘‘(d) NOTICES OF PROPOSED RULE MAKING; DETER-
MINATIONS OF OTHER AGENCY COURSE.—Following com-
pletion of procedures under subsection (c), if applicable, 
and consultation with the Administrator of the Office of 
Information and Regulatory Affairs, the agency shall pub-
lish either a notice of proposed rule making or a deter-
mination of other agency course, in accordance with the 
following: 
‘‘(1) A notice of proposed rule making shall in-
clude— 
‘‘(A) a statement of the time, place, and 
nature of public rule making proceedings; 
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‘‘(B) reference to the legal authority under 
which the rule is proposed; 
‘‘(C) the terms of the proposed rule; 
‘‘(D) a description of information known to 
the agency on the subject and issues of the pro-
posed rule, including but not limited to— 
‘‘(i) a summary of information known 
to the agency concerning the consider-
ations specified in subsection (b); 
‘‘(ii) a summary of additional infor-
mation the agency provided to and ob-
tained from interested persons under sub-
section (c); and 
‘‘(iii) information specifically identi-
fying all data, studies, models, and other 
evidence or information considered or used 
by the agency in connection with its deter-
mination to propose the rule; 
‘‘(E)(i) a reasoned preliminary determina-
tion of need for the rule based on the informa-
tion described under subparagraph (D); and 
‘‘(ii) an additional statement of whether a 
rule is required by statute; 
‘‘(F) a reasoned preliminary determination 
that the benefits of the proposed rule meet the 
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relevant statutory objectives and justify the 
costs of the proposed rule (including all costs to 
be considered under subsection (b)(6)), based 
on the information described under subpara-
graph (D); 
‘‘(G) a discussion of— 
‘‘(i) the alternatives to the proposed 
rule, and other alternative responses, con-
sidered by the agency under subsection (b); 
‘‘(ii) the costs and benefits of those 
alternatives (including all costs to be con-
sidered under subsection (b)(6)); 
‘‘(iii) whether those alternatives meet 
relevant statutory objectives; and 
‘‘(iv) why the agency did not propose 
any of those alternatives; and 
‘‘(H)(i) a statement of whether existing 
rules have created or contributed to the prob-
lem the agency seeks to address with the pro-
posed rule; and 
‘‘(ii) if so, whether or not the agency pro-
poses to amend or rescind any such rules, and 
why. 
All information considered by the agency, and 
steps to obtain information by the agency, in 
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connection with its determination to propose 
the rule, including all information described by 
the agency under subparagraph (D) and, at the 
discretion of the President or the Administrator 
of the Office of Information and Regulatory Af-
fairs, information provided by that Office in 
consultations with the agency, shall be placed in 
the docket for the proposed rule and made ac-
cessible to the public for the public’s use when 
the notice of proposed rule making is published. 
‘‘(2)(A) A notice of determination of other 
agency course shall include a description of the al-
ternative response the agency determined to adopt. 
‘‘(B) If in its determination of other agency 
course the agency makes a determination to amend 
or rescind an existing rule, the agency need not un-
dertake additional proceedings under subsection (c) 
before it publishes a notice of proposed rule making 
to amend or rescind the existing rule. 
All information considered by the agency, and steps 
to obtain information by the agency, in connection 
with its determination of other agency course, in-
cluding but not limited to all information that would 
be required to be described by the agency under 
paragraph (1)(D) if the agency had determined to 
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publish a notice of proposed rule making and, at the 
discretion of the President or the Administrator of 
the Office of Information and Regulatory Affairs, in-
formation provided by that Office in consultations 
with the agency, shall be placed in the docket for the 
determination and made accessible to the public for 
the public’s use when the notice of determination is 
published. 
‘‘(3) After notice of proposed rule making re-
quired by this section, the agency shall provide inter-
ested persons an opportunity to participate in the 
rule making through submission of written data, 
views, or arguments with or without opportunity for 
oral presentation, except that— 
‘‘(A) if a hearing is required under para-
graph (4)(B) or subsection (e), opportunity for 
oral presentation shall be provided pursuant to 
that requirement; or 
‘‘(B) when other than under subsection (e) 
of this section rules are required by statute or 
at the discretion of the agency to be made on 
the record after opportunity for an agency hear-
ing, sections 556 and 557 shall apply, and 
paragraph (4), requirements of subsection (e) 
to receive comment outside of the procedures of 
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sections 556 and 557, and the petition proce-
dures of subsection (e)(6) shall not apply. 
The agency shall provide not fewer than 90 days for 
interested persons to submit written data, views, or 
argument (or 120 days in the case of a proposed 
major or high-impact rule). 
‘‘(4)(A) Within 30 days of publication of notice 
of proposed rulemaking, a member of the public may 
petition for a hearing in accordance with section 556 
to determine whether any evidence or other informa-
tion upon which the agency bases the proposed rule 
fails to comply with of the Information Quality Act. 
‘‘(B)(i) The agency may, upon review of the pe-
tition, determine without further process to exclude 
from the rule making the evidence or other informa-
tion that is the subject of the petition and, if appro-
priate, withdraw the proposed rule. The agency shall 
promptly publish any such determination. 
‘‘(ii) If the agency does not resolve the petition 
under the procedures of clause (i), it shall grant any 
such petition that presents a prima facie case that 
evidence or other information upon which the agency 
bases the proposed rule fails to comply with the In-
formation Quality Act, hold the requested hearing 
not later than 30 days after receipt of the petition, 
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provide a reasonable opportunity for cross-examina-
tion at the hearing, and decide the issues presented 
by the petition not later than 60 days after receipt 
of the petition. The agency may deny any petition 
that it determines does not present such a prima 
facie case. 
‘‘(C) There shall be no judicial review of the 
agency’s disposition of issues considered and decided 
or determined under subparagraph (B)(ii) until judi-
cial review of the agency’s final action. There shall 
be no judicial review of an agency’s determination to 
withdraw a proposed rule under subparagraph 
(B)(i). 
‘‘(D) Failure to petition for a hearing under 
this paragraph shall not preclude judicial review of 
any claim based on the Information Quality Act 
under chapter 7 of this title. 
‘‘(e) HEARINGS
FOR HIGH-IMPACT RULES.—Fol-
lowing notice of a proposed rule making, receipt of com-
ments on the proposed rule, and any hearing held under 
subsection (d)(4), and before adoption of any high-impact 
rule, the agency shall hold a hearing in accordance with 
sections 556 and 557, unless such hearing is waived by 
all participants in the rulemaking other than the agency. 
The agency shall provide a reasonable opportunity for 
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cross-examination at such hearing. The hearing shall be 
limited to the following issues of fact, except that partici-
pants at the hearing other than the agency may waive de-
termination of any such issue: 
‘‘(1) Whether the agency’s asserted factual 
predicate for the rule is supported by the evidence. 
‘‘(2) Whether there is an alternative to the pro-
posed rule that would achieve the relevant statutory 
objectives at a lower cost (including all costs to be 
considered under subsection (b)(6)) than the pro-
posed rule. 
‘‘(3) If there is more than one alternative to the 
proposed rule that would achieve the relevant statu-
tory objectives at a lower cost than the proposed 
rule, which alternative would achieve the relevant 
statutory objectives at the lowest cost. 
‘‘(4) Whether, if the agency proposes to adopt 
a rule that is more costly than the least costly alter-
native that would achieve the relevant statutory ob-
jectives (including all costs to be considered under 
subsection (b)(6)), the additional benefits of the 
more costly rule exceed the additional costs of the 
more costly rule. 
‘‘(5) Whether the evidence and other informa-
tion upon which the agency bases the proposed rule 
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meets the requirements of the Information Quality 
Act. 
‘‘(6) Upon petition by an interested person who 
has participated in the rulemaking, other issues rel-
evant to the rule making, unless the agency deter-
mines that consideration of the issues at the hearing 
would not advance consideration of the rule or 
would, in light of the nature of the need for agency 
action, unreasonably delay completion of the rule 
making. An agency shall grant or deny a petition 
under this paragraph within 30 days of its receipt 
of the petition. 
No later than 45 days before any hearing held under this 
subsection or sections 556 and 557, the agency shall pub-
lish in the Federal Register a notice specifying the pro-
posed rule to be considered at such hearing, the issues 
to be considered at the hearing, and the time and place 
for such hearing, except that such notice may be issued 
not later than 15 days before a hearing held under sub-
section (d)(4)(B). 
‘‘(f) FINAL RULES.—(1) The agency shall adopt a 
rule only following consultation with the Administrator of 
the Office of Information and Regulatory Affairs to facili-
tate compliance with applicable rule making requirements. 
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‘‘(2) The agency shall adopt a rule only on the basis 
of the best reasonably obtainable scientific, technical, eco-
nomic, and other evidence and information concerning the 
need for, consequences of, and alternatives to the rule. 
‘‘(3)(A) Except as provided in subparagraph (B), the 
agency shall adopt the least costly rule considered during 
the rule making (including all costs to be considered under 
subsection (b)(6)) that meets relevant statutory objectives. 
‘‘(B) The agency may adopt a rule that is more costly 
than the least costly alternative that would achieve the rel-
evant statutory objectives only if the additional benefits 
of the more costly rule justify its additional costs and only 
if the agency explains its reason for doing so based on 
interests of public health, safety or welfare that are clearly 
within the scope of the statutory provision authorizing the 
rule. 
‘‘(4) When it adopts a final rule, the agency shall 
publish a notice of final rule making. The notice shall in-
clude— 
‘‘(A) a concise, general statement of the rule’s 
basis and purpose; 
‘‘(B) the agency’s reasoned final determination 
of need for a rule to address the problem the agency 
seeks to address with the rule, including a statement 
of whether a rule is required by statute; 
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‘‘(C) the agency’s reasoned final determination 
that the benefits of the rule meet the relevant statu-
tory objectives and justify the rule’s costs (including 
all costs to be considered under subsection (b)(6)); 
‘‘(D) the agency’s reasoned final determination 
not to adopt any of the alternatives to the proposed 
rule considered by the agency during the rule mak-
ing, including— 
‘‘(i) the agency’s reasoned final determina-
tion that no alternative considered achieved the 
relevant statutory objectives with lower costs 
(including all costs to be considered under sub-
section (b)(6)) than the rule; or 
‘‘(ii) the agency’s reasoned determination 
that its adoption of a more costly rule complies 
with subsection (f)(3)(B); 
‘‘(E) the agency’s reasoned final determina-
tion— 
‘‘(i) that existing rules have not created or 
contributed to the problem the agency seeks to 
address with the rule; or 
‘‘(ii) that existing rules have created or 
contributed to the problem the agency seeks to 
address with the rule, and, if so— 
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‘‘(I) why amendment or rescission of 
such existing rules is not alone sufficient 
to respond to the problem; and 
‘‘(II) whether and how the agency in-
tends to amend or rescind the existing rule 
separate from adoption of the rule; 
‘‘(F) the agency’s reasoned final determination 
that the evidence and other information upon which 
the agency bases the rule complies with the Informa-
tion Quality Act; and 
‘‘(G)(i) for any major rule or high-impact rule, 
the agency’s plan for review of the rule no less than 
every ten years to determine whether, based upon 
evidence, there remains a need for the rule, whether 
the rule is in fact achieving statutory objectives, 
whether the rule’s benefits continue to justify its 
costs, and whether the rule can be modified or re-
scinded to reduce costs while continuing to achieve 
statutory objectives; 
‘‘(ii) review of a rule under a plan required by 
clause (i) of this subparagraph shall take into ac-
count the factors and criteria set forth in sub-
sections (b) through (f) of section 553 of this title. 
All information considered by the agency in connec-
tion with its adoption of the rule, and, at the discre-
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tion of the President or the Administrator of the Of-
fice of Information and Regulatory Affairs, informa-
tion provided by that Office in consultations with the 
agency, shall be placed in the docket for the rule and 
made accessible to the public for the public’s use no 
later than when the rule is adopted. 
‘‘(g) EXCEPTIONS FROM NOTICE AND HEARING RE-
QUIREMENTS.—(1) Except when notice or hearing is re-
quired by statute, subsections (c) through (e) of this sec-
tion do not apply to interpretive rules, general statements 
of policy, or rules of agency organization, procedure, or 
practice. 
‘‘(2)(A) When the agency for good cause, based upon 
evidence, finds (and incorporates the finding and a brief 
statement of reasons therefor in the rules issued) that 
compliance with subsection (c), (d), or (e) or requirements 
to render final determinations under subsection (f) of this 
section before the issuance of an interim rule is impracti-
cable or contrary to the public interest, including interests 
of national security, such subsections or requirements to 
render final determinations shall not apply to the agency’s 
adoption of an interim rule. 
‘‘(B) If, following compliance with subparagraph (A) 
of this paragraph, the agency adopts an interim rule, it 
shall commence proceedings that comply fully with sub-
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sections (c) through (f) of this section immediately upon 
publication of the interim rule. No less than 270 days 
from publication of the interim rule (or 18 months in the 
case of a major rule or high-impact rule), the agency shall 
complete rule making under subsections (c) through (f) 
of this subsection and take final action to adopt a final 
rule or rescind the interim rule. If the agency fails to take 
timely final action, the interim rule will cease to have the 
effect of law. 
‘‘(C) Other than in cases involving interests of na-
tional security, upon the agency’s publication of an interim 
rule without compliance with subsections (c), (d), or (e) 
or requirements to render final determinations under sub-
section (f) of this section, an interested party may seek 
immediate judicial review under chapter 7 of this title of 
the agency’s determination to adopt such interim rule. The 
record on such review shall include all documents and in-
formation considered by the agency and any additional in-
formation presented by a party that the court determines 
necessary to consider to assure justice. 
‘‘(h) ADDITIONAL REQUIREMENTS FOR HEARINGS.— 
When a hearing is required under subsection (e) or is oth-
erwise required by statute or at the agency’s discretion 
before adoption of a rule, the agency shall comply with 
the requirements of sections 556 and 557 in addition to 
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the requirements of subsection (f) in adopting the rule and 
in providing notice of the rule’s adoption. 
‘‘(i) DATE OF PUBLICATION OF RULE.—The required 
publication or service of a substantive final or interim rule 
shall be made not less than 30 days before the effective 
date of the rule, except— 
‘‘(1) a substantive rule which grants or recog-
nizes an exemption or relieves a restriction; 
‘‘(2) interpretive rules and statements of policy; 
or 
‘‘(3) as otherwise provided by the agency for 
good cause found and published with the rule. 
‘‘(j) RIGHT TO PETITION.—Each agency shall give 
an interested person the right to petition for the issuance, 
amendment, or repeal of a rule. 
‘‘(k) RULE MAKING GUIDELINES.—(1)(A) The Ad-
ministrator of the Office of Information and Regulatory 
Affairs shall have authority to establish guidelines for the 
assessment, including quantitative and qualitative assess-
ment, of the costs and benefits of potential, proposed, and 
final rules and other economic issues or issues related to 
risk that are relevant to rule making under this section 
and other sections of this title. The rigor of cost-benefit 
analysis required by such guidelines shall be commensu-
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rate, in the Administrator’s determination, with the eco-
nomic impact of the rule. 
‘‘(B) To ensure that agencies use the best available 
techniques to quantify and evaluate anticipated present 
and future benefits, costs, other economic issues, and risks 
as accurately as possible, the Administrator of the Office 
of Information and Regulatory Affairs shall regularly up-
date guidelines established under paragraph (1)(A) of this 
subsection. 
‘‘(2) The Administrator of the Office of Information 
and Regulatory Affairs shall also have authority to issue 
guidelines to promote coordination, simplification and har-
monization of agency rules during the rule making process 
and otherwise. Such guidelines shall assure that each 
agency avoids regulations that are inconsistent or incom-
patible with, or duplicative of, its other regulations and 
those of other Federal agencies and drafts its regulations 
to be simple and easy to understand, with the goal of mini-
mizing the potential for uncertainty and litigation arising 
from such uncertainty. 
‘‘(3) To ensure consistency in Federal rule making, 
the Administrator of the Office of Information and Regu-
latory Affairs shall— 
‘‘(A) issue guidelines and otherwise take action 
to ensure that rule makings conducted in whole or 
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in part under procedures specified in provisions of 
law other than those of subchapter II of this title 
conform to the fullest extent allowed by law with the 
procedures set forth in section 553 of this title; and 
‘‘(B) issue guidelines for the conduct of hear-
ings under subsections 553(d)(4) and 553(e) of this 
section, including to assure a reasonable opportunity 
for cross-examination. Each agency shall adopt regu-
lations for the conduct of hearings consistent with 
the guidelines issued under this subparagraph. 
‘‘(4) The Administrator of the Office of Information 
and Regulatory Affairs shall issue guidelines pursuant to 
the Information Quality Act to apply in rule making pro-
ceedings under sections 553, 556 and 557 of this title. 
In all cases, such guidelines, and the Administrator’s spe-
cific determinations regarding agency compliance with 
such guidelines, shall be entitled to judicial deference. 
‘‘(l) INCLUSION IN THE RECORD OF CERTAIN DOCU-
MENTS AND INFORMATION.—The agency shall include in 
the record for a rule making all documents and informa-
tion considered by the agency during the proceeding, in-
cluding, at the discretion of the President or the Adminis-
trator of the Office of Information and Regulatory Affairs, 
documents and information communicated by that Office 
during consultation with the Agency. 
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‘‘(m) MONETARY POLICY EXEMPTION.—Nothing in 
subsection (b)(6), subparagraphs (F) and (G) of sub-
section (d)(1), subsection (e), subsection (f)(3), and sub-
paragraphs (C) and (D) of subsection (f)(5) shall apply 
to rule makings that concern monetary policy proposed or 
implemented by the Board of Governors of the Federal 
Reserve System or the Federal Open Market Committee.’’. 
SEC. 4. AGENCY GUIDANCE; PROCEDURES TO ISSUE MAJOR 
GUIDANCE; PRESIDENTIAL AUTHORITY TO 
ISSUE GUIDELINES FOR ISSUANCE OF GUID-
ANCE. 
(a) IN GENERAL.—Chapter 5 of title 5, United 
States Code, is amended by inserting after section 553 the 
following new section: 
‘‘§ 553a. Agency guidance; procedures to issue major 
guidance; authority to issue guidelines 
for issuance of guidance 
‘‘(a) Before issuing any major guidance, an agency 
shall— 
‘‘(1) make and document a reasoned determina-
tion that— 
‘‘(A) assures that such guidance is under-
standable and complies with relevant statutory 
objectives and regulatory provisions; 
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‘‘(B) identifies the costs and benefits (in-
cluding all costs to be considered during the 
rule making under section 553(b) of this title) 
of conduct conforming to such guidance and 
assures that such benefits justify such costs; 
and 
‘‘(C) describes alternatives to such guid-
ance and their costs and benefits (including all 
costs to be considered during rule making 
under section 553(b) of this title) and explains 
why the agency rejected those alternatives; and 
‘‘(2) confer with the Administrator of the Office 
of Information and Regulatory Affairs on the 
issuance of such guidance to assure that the guid-
ance is reasonable, understandable, consistent with 
relevant statutory and regulatory provisions and re-
quirements or practices of other agencies, does not 
produce costs that are unjustified by the guidance’s 
benefits, and is otherwise appropriate. 
‘‘(b) Agency guidance— 
‘‘(1) is not legally binding and may not be re-
lied upon by an agency as legal grounds for agency 
action; 
‘‘(2) shall state in a plain, prominent and per-
manent manner that it is not legally binding; and 
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‘‘(3) shall, at the time it is issued or upon re-
quest, be made available by the issuing agency to in-
terested persons and the public. 
‘‘(c) The Administrator of the Office of Information 
and Regulatory Affairs shall have authority to issue guide-
lines for use by the agencies in the issuance of major guid-
ance and other guidance. Such guidelines shall assure that 
each agency avoids issuing guidance documents that are 
inconsistent or incompatible with, or duplicative of, with 
its other regulations and those of other Federal agencies 
and drafts its guidance documents to be simple and easy 
to understand, with the goal of minimizing the potential 
for uncertainty and litigation arising from such uncer-
tainty.’’. 
(b) CLERICAL AMENDMENT.—The table of sections 
for chapter 5 of title 5, United States Code, is amended 
by inserting after the item relating to section 553 the fol-
lowing new item: 
‘‘553a. Agency guidance; procedures to issue major guidance; presidential au-
thority to issue guidelines for issuance of guidance.’’. 
SEC. 5. HEARINGS; PRESIDING EMPLOYEES; POWERS AND 
DUTIES; 
BURDEN 
OF 
PROOF; 
EVIDENCE; 
RECORD AS BASIS OF DECISION. 
Section 556 of title 5, United States Code, is amend-
ed by striking subsection (e) and inserting the following: 
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‘‘(e)(1) The transcript of testimony and exhibits, to-
gether with all papers and requests filed in the proceeding, 
constitutes the exclusive record for decision in accordance 
with section 557 and, on payment of lawfully prescribed 
costs, shall be made available to the parties. When an 
agency decision rests on official notice of a material fact 
not appearing in the evidence in the record, a party is 
entitled, on timely request, to an opportunity to show the 
contrary. 
‘‘(2) Notwithstanding paragraph (1) of this sub-
section, in a proceeding held under this section pursuant 
to section 553(d)(4) or 553(e), the record for decision 
shall include any information that is part of the record 
of proceedings under section 553. 
‘‘(f) When an agency conducts rule making under this 
section and section 557 directly after concluding pro-
ceedings upon an advance notice of proposed rulemaking 
under section 553(c), the matters to be considered and 
determinations to be made shall include, among other rel-
evant matters and determinations, the matters and deter-
minations described in subsections (b) and (f) of section 
553. 
‘‘(g) Upon receipt of a petition for a hearing under 
this section, the agency shall grant the petition in the case 
of any major rule, unless the agency reasonably deter-
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mines that a hearing would not advance consideration of 
the rule or would, in light of the need for agency action, 
unreasonably delay completion of the rule making. The 
agency shall publish its decision to grant or deny the peti-
tion when it renders the decision, including an explanation 
of the grounds for decision. The information contained in 
the petition shall in all cases be included in the adminis-
trative record. This subsection shall not apply to rule mak-
ings that concern monetary policy proposed or imple-
mented by the Board of Governors of the Federal Reserve 
System or the Federal Open Market Committee.’’. 
SEC. 6. ACTIONS REVIEWABLE. 
Section 704 of title 5, United States Code, is amend-
ed— 
(1) by striking ‘‘Agency action made’’ and in-
serting ‘‘(a) Agency action made’’; and 
(2) by adding at the end the following: 
‘‘(b) Other than in cases involving interests of na-
tional security, notwithstanding subsection (a) of this sec-
tion, upon the agency’s publication of an interim rule with-
out compliance with section 553 (c), (d), or (e) or require-
ments to render final determinations under subsection (f) 
of section 553, an interested party may seek immediate 
judicial review under this chapter of the agency’s deter-
mination to adopt such rule on an interim basis. Review 
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shall be limited to whether the agency abused its discre-
tion to adopt the interim rule without compliance with sec-
tion 553 (c), (d), or (e) or without rendering final deter-
minations under subsection (f) of section 553.’’. 
SEC. 7. SCOPE OF REVIEW. 
Section 706 of title 5, United States Code is amend-
ed— 
(1) by striking ‘‘To the extent necessary’’ and 
inserting ‘‘(a) To the extent necessary’’; 
(2) in paragraph (2)(A) of subsection (a) (as 
redesignated by paragraph (1) of this section), by in-
serting after ‘‘in accordance with law’’ the following: 
‘‘(including the Information Quality Act)’’; and 
(3) by adding at the end the following: 
‘‘(b) The court shall not defer to the agency’s— 
‘‘(1) interpretation of an agency rule if the 
agency did not comply with the procedures of section 
553 or sections 556–557 of chapter 5 of this title to 
issue the interpretation; 
‘‘(2) determination of the costs and benefits or 
other economic or risk assessment of the action, if 
the agency failed to conform to guidelines on such 
determinations and assessments established by the 
Administrator of the Office of Information and Reg-
ulatory Affairs under section 553(k); or 
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