I 
118TH CONGRESS 
1ST SESSION 
H. R. 442 
To improve agency rulemaking, and for other purposes. 
IN THE HOUSE OF REPRESENTATIVES 
JANUARY 20, 2023 
Ms. VAN DUYNE introduced the following bill; which was referred to the 
Committee on the Judiciary 
A BILL 
To improve agency rulemaking, and for other purposes. 
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’’. 
SEC. 2. DEFINITIONS. 
Section 551 of title 5, United States Code, is amend-
ed— 
(1) in paragraph (5), by striking ‘‘rule making’’ 
and inserting ‘‘rulemaking’’; 
(2) in paragraph (6), by striking ‘‘rule making’’ 
and inserting ‘‘rulemaking’’; 
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(3) in paragraph (13), by striking ‘‘and’’ at the 
end; 
(4) in paragraph (14), by striking the period at 
the end and inserting a semicolon; and 
(5) by adding at the end the following: 
‘‘(15) ‘guidance’ means an agency statement of 
general applicability that— 
‘‘(A) is not intended to have the force and 
effect of law; and 
‘‘(B) sets forth a policy on a statutory, 
regulatory, or technical issue or an interpreta-
tion of a statutory or regulatory issue; 
‘‘(16) ‘high-impact rule’ means any rule that 
the Administrator determines is likely to cause an 
annual effect on the economy of $500,000,000 or 
more, adjusted once every 5 years to reflect in-
creases in the Consumer Price Index for All Urban 
Consumers, as published by the Bureau of Labor 
Statistics of the Department of Labor; 
‘‘(17) ‘major guidance’ means guidance that the 
Administrator finds is likely to lead to— 
‘‘(A) an annual effect on the economy of 
$100,000,000 or more, adjusted once every 5 
years to reflect increases in the Consumer Price 
Index for All Urban Consumers, as published 
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by the Bureau of Labor Statistics of the De-
partment of Labor; 
‘‘(B) a major increase in costs or prices for 
consumers, 
individual 
industries, 
Federal, 
State, local, or Tribal government agencies, or 
geographic regions; or 
‘‘(C) significant adverse effects on competi-
tion, employment, investment, productivity, in-
novation, public health and safety, or the ability 
of United States-based enterprises to compete 
with foreign-based enterprises in domestic and 
export markets; 
‘‘(18) ‘major rule’ means any rule that the Ad-
ministrator determines is likely to cause— 
‘‘(A) an annual effect on the economy of 
$100,000,000 or more, adjusted once every 5 
years to reflect increases in the Consumer Price 
Index for All Urban Consumers, as published 
by the Bureau of Labor Statistics of the De-
partment of Labor; 
‘‘(B) a major increase in costs or prices for 
consumers, 
individual 
industries, 
Federal, 
State, local, or Tribal government agencies, or 
geographic regions; or 
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‘‘(C) significant adverse effects on competi-
tion, employment, investment, productivity, in-
novation, public health and safety, or the ability 
of United States-based enterprises to compete 
with foreign-based enterprises in domestic and 
export markets; 
‘‘(19) ‘Office of Information and Regulatory Af-
fairs’ means the office established under section 
3503 of title 44 and any successor to that office; 
and 
‘‘(20) ‘Administrator’ means the Administrator 
of the Office of Information and Regulatory Af-
fairs.’’. 
SEC. 3. RULEMAKING. 
Section 553 of title 5, United States Code, is amend-
ed— 
(1) in the section heading, by striking ‘‘Rule 
making’’ and inserting ‘‘Rulemaking’’; 
(2) in subsection (a), by striking ‘‘(a) This sec-
tion applies’’ and inserting the following: 
‘‘(a) APPLICABILITY.—This section applies’’; and 
(3) by striking subsections (b) through (e) and 
inserting the following: 
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‘‘(b) RULEMAKING CONSIDERATIONS.—In a rule-
making, an agency shall consider, in addition to other ap-
plicable considerations, the following: 
‘‘(1) The legal authority under which a rule 
may be proposed, including whether rulemaking is 
required by statute or is within the discretion of the 
agency. 
‘‘(2) The nature and significance of the problem 
the agency intends to address with a rule. 
‘‘(3) Whether existing Federal laws or rules 
have created or contributed to the problem the agen-
cy may address with a rule and, if so, whether those 
Federal laws or rules could be amended or rescinded 
to address the problem in whole or in part. 
‘‘(4) A reasonable number of alternatives for or 
to a new rule, with the consideration of 3 alter-
natives presumed to be reasonable, that— 
‘‘(A) meet the objectives of the statutory 
provision on which the rulemaking relies, in-
cluding substantial alternatives or other re-
sponses identified by the agency or by inter-
ested persons; and 
‘‘(B) consider not only mandating par-
ticular conduct or manners of compliance, but 
also— 
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‘‘(i) specifying performance objectives; 
‘‘(ii) establishing economic incentives, 
including marketable permits, to encourage 
desired behavior; 
‘‘(iii) establishing disclosure require-
ments that will provide information upon 
which choices can be made by the public; 
or 
‘‘(iv) adopting other means of meeting 
the objectives of the statutory provision on 
which the rulemaking relies without man-
dating particular conduct or manners of 
compliance. 
‘‘(5) For any major rule or high-impact rule, 
unless prohibited by law, the potential costs and 
benefits associated with potential alternative rules 
and other responses considered under paragraph (4), 
including quantitative and qualitative analyses of— 
‘‘(A) the direct costs and benefits; 
‘‘(B) the nature and degree of risks ad-
dressed by the rule and the countervailing risks 
that might be posed by agency action; and 
‘‘(C) to the extent practicable, the cumu-
lative costs and benefits, and an analysis of the 
effects that the rule is anticipated to have on 
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entities that purchase products or services 
from, sell products or services to, or otherwise 
conduct business with entities to which the rule 
will apply. 
‘‘(c) NOTICE OF PROPOSED RULEMAKING.— 
‘‘(1) IN
GENERAL.—If an agency determines 
that the objectives of the agency require the agency 
to issue a rule, the agency shall— 
‘‘(A) submit a notice of proposed rule-
making to the Administrator for review; 
‘‘(B) refrain from publishing the notice 
until the Administrator determines that review 
by the Administrator has concluded; and 
‘‘(C) at the conclusion of review by the Ad-
ministrator, publish a notice of proposed rule-
making in the Federal Register, which shall in-
clude— 
‘‘(i) a statement of the time, place, 
and nature of any public rulemaking pro-
ceedings; 
‘‘(ii) a reference to the legal authority 
under which the rule is proposed, including 
the specific statutory provision on which 
the rulemaking relies; 
‘‘(iii) the text of the proposed rule; 
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‘‘(iv) a summary of information 
known to the agency concerning the con-
siderations described in subsection (b); and 
‘‘(v) where otherwise consistent with 
applicable law, for any major rule or high- 
impact rule— 
‘‘(I) a reasoned preliminary ex-
planation regarding how— 
‘‘(aa) 
the 
proposed 
rule 
meets the objectives of the statu-
tory provision on which the rule-
making relies; and 
‘‘(bb) the benefits of the 
proposed rule justify the costs; 
‘‘(II) a discussion of— 
‘‘(aa) the costs and benefits 
of alternatives considered by the 
agency under subsection (b)(4); 
‘‘(bb) whether the alter-
natives considered by the agency 
under subsection (b)(4) meet the 
objectives of the statutory provi-
sion on which the rulemaking re-
lies; and 
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‘‘(cc) the reasons why the 
agency did not propose an alter-
native considered by the agency 
under subsection (b)(4); and 
‘‘(III) a solicitation of public 
comment, including on all issues and 
alternatives 
discussed 
under 
sub-
clauses (I) and (II) and subsection 
(l)(1)(A). 
‘‘(2) ACCESSIBILITY.— 
‘‘(A) IN
GENERAL.—Not later than the 
date on which an agency publishes a notice of 
proposed rulemaking under paragraph (1), all 
studies, models, scientific literature, and other 
information developed or relied upon by the 
agency, and actions taken by the agency to ob-
tain that information, in connection with the 
determination of the agency to propose the rule 
that is the subject of the rulemaking shall be 
placed in the docket for the proposed rule and 
made accessible to the public. 
‘‘(B) INFORMATION CONTROLLED BY NON-
GOVERNMENTAL PERSON.—With respect to any 
information to which a nongovernmental person 
holds a legal right to prohibit or limit reproduc-
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tion, distribution, or public display, the infor-
mation shall be— 
‘‘(i) placed in the docket through cita-
tion or incorporation by reference, includ-
ing a specification of the identity of the 
nongovernmental person who holds a legal 
right to prohibit or limit reproduction, dis-
tribution, or public display of the informa-
tion and the means by which a member of 
the public may request a full copy of the 
information from that holder; and 
‘‘(ii) considered made accessible to the 
public after a placement described in 
clause (i), provided that the nongovern-
mental person who holds a legal right to 
prohibit or limit reproduction, distribution, 
or public display of the information makes 
the information reasonably available upon 
request in a timely manner to any member 
of the public who requests a copy of the in-
formation. 
‘‘(C) 
EXCEPTION.—Subparagraphs 
(A) 
and (B) shall not apply with respect to informa-
tion that is exempt from disclosure under sec-
tion 552(b). 
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‘‘(3) INFORMATION
QUALITY.—If an agency 
proposes a rule that rests upon scientific, technical, 
or economic information, the agency shall— 
‘‘(A) propose the rule on the basis of the 
best reasonably available scientific, technical, or 
economic information; and 
‘‘(B) to the maximum extent practicable, 
use that information in compliance with the 
guidelines issued under section 515 of the 
Treasury and General Government Appropria-
tions Act, 2001 (Public Law 106–554; 114 
Stat. 2763A–154). 
‘‘(4) PUBLIC COMMENT.— 
‘‘(A) IN GENERAL.—After publishing a no-
tice of proposed rulemaking under paragraph 
(1), an agency shall provide interested persons 
an opportunity to participate in the rulemaking 
through the submission of written material, 
data, views, or arguments with or without op-
portunity for oral presentation, except that— 
‘‘(i) if a public hearing is convened 
under subsection (e), reasonable oppor-
tunity for oral presentation shall be pro-
vided at the public hearing as provided in 
subsection (e); and 
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‘‘(ii) when, other than as provided in 
subsection (e), a rule is required by statute 
to be made on the record after opportunity 
for an agency hearing— 
‘‘(I) sections 556 and 557 shall 
apply; and 
‘‘(II) the petition procedures of 
subsection (e) shall not apply. 
‘‘(B) TIMELINE.— 
‘‘(i) IN
GENERAL.—Subject to sub-
paragraph (C), an agency shall provide not 
less than 60 days, or, with respect to a 
proposed major rule or a proposed high-im-
pact rule, not less than 90 days, for inter-
ested persons to submit written material, 
data, views, or arguments under subpara-
graph (A). 
‘‘(ii) ADEQUATE REVIEW PERIOD.—If 
a proposed rule relies on information 
placed in the docket through citation or in-
corporation by reference as described in 
paragraph (3)(B), the comment period re-
quired under clause (i) shall be adequate 
to allow interested persons to receive and 
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review that information to inform their 
submission. 
‘‘(C) RESPONSIVE COMMENT PERIOD FOR 
MAJOR
AND
HIGH-IMPACT
RULES.—With re-
spect to a proposed major rule or a proposed 
high-impact rule, an interested person who 
made a submission under subparagraph (A) 
during the comment period under subparagraph 
(B) with respect to the rule may, during the pe-
riod beginning on the day after the date on 
which that comment period closes and ending 
on the date that is 30 days after that day, re-
spond to any other submission made by any 
other interested person under subparagraph (A) 
during the initial comment period. 
‘‘(D) ACCESSIBILITY.—All comments and 
responses submitted under this paragraph shall 
be promptly placed in the docket and made ac-
cessible to the public. 
‘‘(5) CHANGE OF CLASSIFICATION AFTER PUB-
LICATION OF NOTICE.—If, after an agency submits 
for review and publishes the notice of proposed rule-
making required under paragraph (1), a proposed 
rule is determined to be a major rule or a high-im-
pact rule, the agency shall— 
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‘‘(A) publish a notice in the Federal Reg-
ister with respect to the change of the classi-
fication of the rule; and 
‘‘(B) allow interested persons an additional 
opportunity of not less than 30 days to com-
ment on— 
‘‘(i) the rule; and 
‘‘(ii) the change of the classification of 
the rule. 
‘‘(6) PROHIBITION
ON
CERTAIN
COMMUNICA-
TIONS.— 
‘‘(A) IN GENERAL.—Except as provided in 
subparagraph (B), after an agency publishes a 
notice of proposed rulemaking required under 
paragraph (1), or after an agency publishes a 
notice of initiation of rulemaking under sub-
section (d)(1)(B), the agency, and any indi-
vidual acting in an official capacity on behalf of 
the agency, may not communicate, and a person 
who receives Federal funds from the agency 
may not use those funds to communicate, 
through written, oral, electronic, or other 
means, to the public with respect to the pro-
posed rule in a manner that— 
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‘‘(i) directly advocates, in support of 
or against the proposed rule, for the sub-
mission of information that will form part 
of the record for the proposed rule; 
‘‘(ii) appeals to the public, or solicits 
a third party, to undertake advocacy in 
support of or against the proposed rule; or 
‘‘(iii) is directly or indirectly for the 
purpose of publicity or propaganda within 
the United States in a manner that Con-
gress has not authorized. 
‘‘(B) EXCEPTION.—The prohibition under 
subparagraph (A) shall not apply to a commu-
nication that requests comments on, or provides 
information regarding, a proposed rule in an 
impartial manner. 
‘‘(d) INITIATION OF RULEMAKING FOR MAJOR AND 
HIGH-IMPACT RULES.— 
‘‘(1) NOTICE
FOR
MAJOR
AND
HIGH-IMPACT 
RULES.—When an agency determines to initiate a 
rulemaking that may result in a major rule or a 
high-impact rule, the agency shall— 
‘‘(A) establish an electronic docket for that 
rulemaking, which may have a physical counter-
part; and 
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‘‘(B) publish a notice of initiation of rule-
making in the Federal Register, which shall— 
‘‘(i) briefly describe the subject and 
objectives of, and the problem to be solved 
by, the rule; 
‘‘(ii) refer to the legal authority under 
which the rule would be proposed, includ-
ing the specific statutory provision that au-
thorizes the rulemaking; 
‘‘(iii) invite interested persons to pro-
pose alternatives and other ideas regarding 
how best to accomplish the objectives of 
the agency in the most effective manner; 
‘‘(iv) indicate how interested persons 
may submit written material for the dock-
et; and 
‘‘(v) appear in the Federal Register 
not later than 90 days before the date on 
which the agency publishes a notice of pro-
posed rulemaking for the rule. 
‘‘(2) ACCESSIBILITY.—All information provided 
to the agency under paragraph (1) shall be promptly 
placed in the docket and made accessible to the pub-
lic, unless the information— 
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‘‘(A) is information to which the submitter 
does not hold a legal right to authorize disclo-
sure; or 
‘‘(B) is exempt from disclosure under sec-
tion 552(b). 
‘‘(3) APPLICABILITY.—With respect to the al-
ternatives and other ideas proposed under paragraph 
(1)(B)(iii)— 
‘‘(A) the alternatives and other ideas are 
for the benefit of— 
‘‘(i) the agency receiving the alter-
natives and other ideas; and 
‘‘(ii) the public; and 
‘‘(B) the agency receiving the alternatives 
and other ideas may respond to the alternatives 
and other ideas. 
‘‘(4) TIMETABLE.— 
‘‘(A) IN GENERAL.—After considering any 
written material submitted by interested per-
sons under paragraph (1), if an agency deter-
mines to proceed with a rulemaking for a major 
rule or a high-impact rule, the agency proposing 
the rule shall establish a timetable for the rule-
making that— 
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‘‘(i) contains intermediate completion 
dates for actions of the agency, includ-
ing— 
‘‘(I) the anticipated date on 
which the agency shall publish the no-
tice required under subsection (c)(1) 
with respect to the rule; and 
‘‘(II) the duration of the com-
ment period required under subsection 
(c)(4), including the date on which the 
comment period shall end; and 
‘‘(ii) includes a final completion date 
for actions by the agency. 
‘‘(B) PUBLICATION.—The timetable re-
quired under subparagraph (A) shall be pub-
lished in the electronic docket established under 
paragraph (1)(A) with respect to the rule-
making. 
‘‘(C) CONSIDERATION
OF
FACTORS.—In 
establishing the timetable required under sub-
paragraph (A), an agency shall consider rel-
evant factors, including— 
‘‘(i) the size and complexity of the 
rulemaking; 
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‘‘(ii) the resources available to the 
agency; 
‘‘(iii) the national significance of the 
rulemaking; and 
‘‘(iv) all statutory requirements that 
govern the timing of the rulemaking. 
‘‘(D) REPORT REQUIRED.— 
‘‘(i) IN
GENERAL.—An agency that 
fails to meet an intermediate or final com-
pletion date for an action established under 
subparagraph (A) shall submit to Congress 
and the Director of the Office of Manage-
ment and Budget a report regarding why 
the agency failed to meet the completion 
date. 
‘‘(ii) CONTENTS; 
PUBLICATION
IN 
FEDERAL REGISTER.—A report submitted 
under clause (i) shall— 
‘‘(I) include an amended time-
table for the rulemaking; and 
‘‘(II) be published— 
‘‘(aa) in the Federal Reg-
ister; and 
‘‘(bb) in the electronic dock-
et established under paragraph 
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(1)(A) with respect to the rule-
making. 
‘‘(E) CHANGES TO INTERMEDIATE DATES 
PUBLISHED
IN
ELECTRONIC
DOCKET.—If an 
agency changes an intermediate completion date 
for an action of the agency established under 
subparagraph (A)(i), the agency shall publish in 
the electronic docket established under para-
graph (1)(A)— 
‘‘(i) the updated completion date for 
the action; and 
‘‘(ii) a brief explanation regarding the 
reason for the change to the completion 
date. 
‘‘(5) NOTICE
OF
DETERMINATION
OF
OTHER 
AGENCY COURSE.— 
‘‘(A) IN
GENERAL.—If, after publishing 
the notice required under paragraph (1), an 
agency determines not to issue a major rule or 
a high-impact rule, the agency shall— 
‘‘(i) publish a notice of determination 
of other agency course; and 
‘‘(ii) if the agency intends to issue a 
rule, comply with the procedures required 
under subsection (c). 
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‘‘(B) CONTENTS.—A notice of determina-
tion of other agency course published under 
subparagraph (A)(i) shall include— 
‘‘(i) a description of the alternative re-
sponse the agency has determined to 
adopt; and 
‘‘(ii) if the agency intends to issue a 
rule, any information required under sub-
section (c). 
‘‘(e) PUBLIC HEARING FOR HIGH-IMPACT RULES.— 
‘‘(1) PETITION FOR PUBLIC HEARING.— 
‘‘(A) IN
GENERAL.—Before the date on 
which the comment period closes with respect to 
a proposed high-impact rule, an interested per-
son may petition the agency that proposed the 
rule to hold a public hearing in accordance with 
this subsection. 
‘‘(B) GRANTING
AND
DENIAL
OF
PETI-
TION.— 
‘‘(i) GRANTING
OF
PETITION.—Not 
later than 30 days after the date on which 
an agency receives a petition submitted 
under subparagraph (A) with respect to a 
rule, the agency shall grant the petition, in 
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whole or in part, if the petition shows 
that— 
‘‘(I) the proposed rule is based 
on conclusions with respect to 1 or 
more specific scientific, technical, eco-
nomic, or other complex factual issues 
that are genuinely disputed; 
‘‘(II) with respect to a rule that 
the agency is required to reissue not 
less frequently than once every 3 
years, the interested person submit-
ting the petition could not have raised 
the disputed factual issues described 
in subclause (I) during the 5-year pe-
riod preceding the date on which the 
petition is submitted; and 
‘‘(III) the resolution of the dis-
puted factual issues described in sub-
clause (I) would likely have an effect 
on— 
‘‘(aa) the costs and benefits 
of the proposed rule; or 
‘‘(bb) whether the proposed 
rule achieves relevant statutory 
objectives, including the objec-
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tives of the statutory provision on 
which the rulemaking relies. 
‘‘(ii) DENIAL
OF
PETITION.—If an 
agency denies a petition submitted under 
subparagraph (A) in whole or in part, the 
agency shall include in the rulemaking 
record an explanation for the denial that is 
sufficient for judicial review, including— 
‘‘(I) findings by the agency 
that— 
‘‘(aa) there is no genuine 
dispute as to the factual issues 
raised by the petition; or 
‘‘(bb) with respect to a rule 
that the agency is required to re-
issue not less frequently than 
once every 3 years, the interested 
person submitting the petition 
could have raised the disputed 
factual issues in the petition dur-
ing the 5-year period preceding 
the date on which the petition is 
submitted; and 
‘‘(II) a reasoned determination 
by the agency that the factual issues 
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raised by the petition, even if subject 
to genuine dispute and not subject to 
subclause (I)(bb), will not have an ef-
fect on— 
‘‘(aa) the costs and benefits 
of the proposed rule; or 
‘‘(bb) whether the proposed 
rule achieves relevant statutory 
objectives, including the objec-
tives of the statutory provision on 
which the rulemaking relies. 
‘‘(iii) INCLUSION IN THE RECORD.—A 
petition submitted under subparagraph (A) 
with respect to a high-impact rule and the 
decision of an agency with respect to the 
petition shall be included in the rulemaking 
record. 
‘‘(2) NOTICE OF HEARING.—Not later than 45 
days before the date on which a hearing is held 
under this subsection, an agency shall publish in the 
Federal Register a notice specifying— 
‘‘(A) the proposed rule to be considered at 
the hearing; and 
‘‘(B) the factual issues to be considered at 
the hearing. 
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‘‘(3) HEARING REQUIREMENTS.— 
‘‘(A) LIMITED NATURE OF HEARING.—A 
hearing held under this subsection shall be lim-
ited to— 
‘‘(i) the specific factual issues raised 
in a petition granted in whole or in part 
under paragraph (1); and 
‘‘(ii) any other factual issues the reso-
lution of which an agency, in the discretion 
of the agency, determines will advance con-
sideration by the agency of the proposed 
rule. 
‘‘(B) PROCEDURES.— 
‘‘(i) BURDEN OF PROOF.—Except as 
otherwise provided by statute, a proponent 
of a rule has the burden of proof in a hear-
ing held under this subsection. 
‘‘(ii) ADMISSION OF EVIDENCE.—In a 
hearing held under this subsection, any 
documentary or oral evidence may be re-
ceived, except that an agency, as a matter 
of policy, shall provide for the exclusion of 
immaterial or unduly repetitious evidence. 
‘‘(iii) ADOPTION
OF
RULES
GOV-
ERNING HEARINGS.—To govern a hearing 
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held under this subsection, each agency 
shall adopt rules that provide for— 
‘‘(I) the appointment of an agen-
cy official or administrative law judge 
to preside at the hearing; 
‘‘(II) the presentation by inter-
ested parties of relevant documentary 
or oral evidence, unless the evidence is 
immaterial or unduly repetitious; 
‘‘(III) a reasonable and adequate 
opportunity for cross-examination by 
interested parties concerning genu-
inely disputed factual issues raised by 
the petition, provided that, in the case 
of multiple interested parties with the 
same or similar interests, the agency 
may require the use of common coun-
sel where the common counsel may 
adequately represent the interests that 
will be significantly affected by the 
proposed rule; and 
‘‘(IV) when appropriate, and to 
the extent practicable, the consolida-
tion of proceedings with respect to 
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multiple petitions submitted under 
this subsection into a single hearing. 
‘‘(C) RECORD OF HEARING.—A transcript 
of testimony and exhibits, together with all pa-
pers and requests filed in the hearing, shall 
constitute the exclusive record for decision of 
the factual issues addressed in a hearing held 
under this subsection. 
‘‘(4) JUDICIAL REVIEW.— 
‘‘(A) IN GENERAL.—Failure to petition for 
a hearing under this subsection shall not pre-
clude judicial review of any claim that could 
have been raised in the hearing petition or at 
the hearing. 
‘‘(B) TIMING
OF
JUDICIAL
REVIEW.— 
There shall be no judicial review of the disposi-
tion of a petition by an agency under this sub-
section until judicial review of the final action 
of the agency. 
‘‘(f) FINAL RULES.— 
‘‘(1) NET BENEFITS OF MAJOR OR HIGH-IM-
PACT RULE.— 
‘‘(A) IN GENERAL.—Except as provided in 
subparagraph (B), in a rulemaking for a major 
rule or a high-impact rule, an agency shall 
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adopt the alternative considered under sub-
section (b)(5) that maximizes net benefits, tak-
ing into consideration only the costs and bene-
fits that arise within the scope of the statutory 
provision that authorizes the rulemaking. 
‘‘(B) EXCEPTIONS.—In a rulemaking for a 
major rule or a high-impact rule, an agency 
may adopt an alternative other than as required 
under subparagraph (A) only if— 
‘‘(i) the Administrator approves the 
adoption by the agency of the alternative; 
and 
‘‘(ii) the alternative is adopted to— 
‘‘(I) account for costs or benefits 
that cannot be quantified, including 
costs or benefits related to constitu-
tional or civil rights, provided that the 
agency identifies all such costs and 
benefits and explains why those costs 
and benefits justify the adoption of 
the alternative; or 
‘‘(II) achieve additional benefits 
or cost reductions, provided that the 
agency— 
‘‘(aa) identifies— 
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‘‘(AA) all such addi-
tional benefits and the asso-
ciated costs of those bene-
fits; and 
‘‘(BB) all such cost re-
ductions and the associated 
benefits of those cost reduc-
tions; and 
‘‘(bb) explains why— 
‘‘(AA) the additional 
benefits justify the addi-
tional costs; or 
‘‘(BB) the additional 
cost reductions justify any 
benefits foregone. 
‘‘(C) RULE OF CONSTRUCTION.—Nothing 
in subparagraph (A) may be construed to pre-
clude an agency from including in an alter-
native adopted pursuant to such subparagraph 
changes made as a result of agency analysis or 
review performed under chapter 6 of this title. 
‘‘(2) PUBLICATION OF NOTICE OF FINAL RULE-
MAKING.—After submitting a final rule to the Ad-
ministrator for review and obtaining a certification 
from the Administrator that the review has con-
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