‘‘(A) issue guidelines and otherwise take action 
to ensure that rule makings conducted in whole or 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 proce-
dures set forth in section 553 of this title; and 
‘‘(B) issue guidelines for the conduct of hearings 
under subsections 553(d)(4) and 553(e) of this section, 
including to assure a reasonable opportunity for 
cross-examination. Each agency shall adopt regula-
tions 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 specific 
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, and shall make available by elec-
tronic means and otherwise, all documents and information 
prepared or considered by the agency during the proceeding, 
including, at the discretion of the President or the Adminis-
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trator of the Office of Information and Regulatory Affairs, 
documents and information communicated by that Office 
during consultation with the Agency. 
‘‘(m) MONETARY POLICY EXEMPTION.—Nothing in 
subsection (b)(6), subparagraphs (F) and (G) of subsection 
(d)(1), subsection (e), subsection (f)(3), and subparagraphs 
(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 fol-
lowing new section: 
‘‘§ 553a. Agency guidance; procedures to issue major 
guidance; authority to issue guidelines for 
issuance of guidance 
‘‘(a) Before issuing any major guidance, or guidance 
that involves a novel legal or policy issue arising out of 
statutory mandates, an agency shall— 
‘‘(1) make and document a reasoned determina-
tion that— 
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‘‘(A) assures that such guidance is under-
standable and complies with relevant statutory 
objectives and regulatory provisions (including 
any statutory deadlines for agency action); 
‘‘(B) summarizes the evidence and data on 
which the agency will base the guidance; 
‘‘(C) identifies the costs and benefits (in-
cluding all costs to be considered during a rule 
making under section 553(b) of this title) of con-
duct conforming to such guidance and assures 
that such benefits justify such costs; and 
‘‘(D) describes alternatives to such guidance 
and their costs and benefits (including all costs 
to be considered during a rule making under sec-
tion 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 guidance 
is reasonable, understandable, consistent with relevant 
statutory and regulatory provisions and requirements 
or practices of other agencies, does not produce costs 
that are unjustified by the guidance’s benefits, and is 
otherwise appropriate. 
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Upon issuing major guidance, or guidance that involves a 
novel legal or policy issue arising out of statutory man-
dates, the agency shall publish the documentation required 
by subparagraph (1) by electronic means and otherwise. 
‘‘(b) Agency guidance— 
‘‘(1) is not legally binding and may not be relied 
upon by an agency as legal grounds for agency ac-
tion; 
‘‘(2) shall state in a plain, prominent and per-
manent manner that it is not legally binding; and 
‘‘(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 by electronic means 
and otherwise. 
Agencies shall avoid the issuance of guidance that is incon-
sistent or incompatible with, or duplicative of, the agency’s 
governing statutes or regulations, with the goal of mini-
mizing the potential for uncertainty and litigation arising 
from such uncertainty. 
‘‘(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 in-
consistent or incompatible with, or duplicative of, the law, 
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its other regulations, or the regulations of other Federal 
agencies and drafts its guidance documents to be simple and 
easy to understand, with the goal of minimizing the poten-
tial 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 in-
serting after the item relating to section 553 the following 
new item: 
‘‘553a. Agency guidance; procedures to issue major guidance; authority 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 amended 
by striking subsection (e) and inserting the following: 
‘‘(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 shall be made available to the parties 
and the public by electronic means and, upon payment of 
lawfully prescribed costs, otherwise. When an agency deci-
sion 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. 
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‘‘(2) Notwithstanding paragraph (1) of this subsection, 
in a proceeding held under this section pursuant to section 
553(d)(4) or 553(e), the record for decision shall also in-
clude any information that is part of the record of pro-
ceedings 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 rule making 
under section 553(c), the matters to be considered and deter-
minations to be made shall include, among other relevant 
matters and determinations, the matters and determina-
tions 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 determines 
that a hearing would not advance consideration of the rule 
or would, in light of the need for agency action, unreason-
ably delay completion of the rule making. The agency shall 
publish its decision to grant or deny the petition when it 
renders the decision, including an explanation of the 
grounds for decision. The information contained in the peti-
tion shall in all cases be included in the administrative 
record. This subsection shall not apply to rule makings that 
concern monetary policy proposed or implemented by the 
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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: ‘‘Denial 
by an agency of a correction request or, where admin-
istrative appeal is provided for, denial of an appeal, 
under an administrative mechanism described in sub-
section (b)(2)(B) of the Information Quality Act, or 
the failure of an agency within 90 days to grant or 
deny such request or appeal, shall be final action for 
purposes of this section. 
‘‘(b) Other than in cases involving interests of national 
security, notwithstanding subsection (a) of this section, 
upon the agency’s publication of an interim rule without 
compliance with section 553(c), (d), or (e) or requirements 
to render final determinations under subsection (f) of sec-
tion 553, an interested party may seek immediate judicial 
review under this chapter of the agency’s determination to 
adopt such rule on an interim basis. Review shall be limited 
to whether the agency abused its discretion to adopt the in-
terim rule without compliance with section 553(c), (d), or 
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(e) or without rendering final determinations under sub-
section (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 in-
serting ‘‘(a) To the extent necessary’’; 
(2) in paragraph (2)(A) of subsection (a) (as 
designated 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 agen-
cy 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 deter-
minations and assessments established by the Admin-
istrator of the Office of Information and Regulatory 
Affairs under section 553(k); 
‘‘(3) determinations made in the adoption of an 
interim rule; or 
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‘‘(4) guidance. 
‘‘(c) The court shall review agency denials of petitions 
under section 553(e)(6) or any other petition for a hearing 
under sections 556 and 557 for abuse of agency discretion.’’. 
SEC. 8. ADDED DEFINITION. 
Section 701(b) of title 5, United States Code, is amend-
ed— 
(1) in paragraph (1), by striking ‘‘and’’ at the 
end; 
(2) in paragraph (2), by striking the period at 
the end, and inserting ‘‘; and’’; and 
(3) by adding at the end the following: 
‘‘(3) ‘substantial evidence’ means such relevant 
evidence as a reasonable mind might accept as ade-
quate to support a conclusion in light of the record 
considered as a whole, taking into account whatever 
in the record fairly detracts from the weight of the 
evidence relied upon by the agency to support its deci-
sion.’’. 
SEC. 9. EFFECTIVE DATE. 
The amendments made by this Act to— 
(1) sections 553, 556, and 704 of title 5, United 
States Code; 
(2) subsection (b) of section 701 of such title; 
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(3) paragraphs (2) and (3) of section 706(b) of 
such title; and 
(4) subsection (c) of section 706 of such title; 
shall not apply to any rule makings pending or completed 
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 
analyze and formulate new regulations and guid-
ance documents. 
NOVEMBER 22, 2011 
Reported with an amendment, committed to the Com-
mittee of the Whole House on the State of the Union, 
and ordered to be printed 
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