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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; 
(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 
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‘‘(D) significant impacts on multiple sec-
tors 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; 
‘‘(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- 
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based enterprises to compete with foreign-based 
enterprises in domestic and export markets; or 
‘‘(D) significant impacts on multiple sec-
tors 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 
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. RULE MAKING. 
(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 
factual determinations based on evidence and consider, in 
addition to other applicable considerations, the following: 
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‘‘(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. 
‘‘(2) Other statutory considerations applicable 
to whether the agency can or should propose a rule 
or undertake other agency action. 
‘‘(3) The specific nature and significance of the 
problem the agency may address with a rule (includ-
ing the degree and nature of risks the problem poses 
and the priority of addressing those risks compared 
to other matters or activities within the agency’s ju-
risdiction), whether the problem warrants new agen-
cy action, and the countervailing risks that may be 
posed by alternatives for new agency action. 
‘‘(4) Whether existing rules have created or 
contributed to the problem the agency may address 
with a rule and whether those rules could be amend-
ed or rescinded to address the problem in whole or 
part. 
‘‘(5) Any reasonable alternatives for a new rule 
or other response identified by the agency or inter-
ested persons, including not only responses that 
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mandate particular conduct or manners of compli-
ance, but also— 
‘‘(A) the alternative of no Federal re-
sponse; 
‘‘(B) amending or rescinding existing 
rules; 
‘‘(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), 
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including direct, indirect, and cumulative costs 
and benefits and estimated impacts on jobs (in-
cluding an estimate of the net gain or loss in 
domestic jobs), economic growth, innovation, 
and economic competitiveness; 
‘‘(B) means to increase the cost-effective-
ness of any Federal response; and 
‘‘(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, HIGH-IMPACT RULES, AND RULES 
INVOLVING NOVEL LEGAL OR POLICY ISSUES.—In the 
case of a rule making for a major rule or high-impact rule 
or a rule that involves a novel legal or policy issue arising 
out of statutory mandates, not later than 90 days before 
a notice of proposed rule making is published in the Fed-
eral Register, an agency shall publish advance notice of 
proposed rule making in the Federal Register. In pub-
lishing such advance notice, the agency shall— 
‘‘(1) include a written statement identifying, at 
a minimum— 
‘‘(A) the nature and significance of the 
problem the agency may address with a rule, in-
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cluding data and other evidence and informa-
tion on which the agency expects to rely for the 
proposed rule; 
‘‘(B) the legal authority under which a rule 
may be proposed, including whether a rule mak-
ing is required by statute, and if so, whether by 
a specific date, or whether the agency has dis-
cretion to commence a rule making; 
‘‘(C) preliminary information available to 
the agency concerning the other considerations 
specified in subsection (b); and 
‘‘(D) in the case of a rule that involves a 
novel legal or policy issue arising out of statu-
tory mandates, the nature of and potential rea-
sons to adopt the novel legal or policy position 
upon which the agency may base a proposed 
rule; 
‘‘(2) solicit written data, views or argument 
from interested persons concerning the information 
and issues addressed in the advance notice; and 
‘‘(3) 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.—(1) Before it 
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determines to propose a rule, and following completion of 
procedures under subsection (c), if applicable, the agency 
shall consult with the Administrator of the Office of Infor-
mation and Regulatory Affairs. If the agency thereafter 
determines to propose a rule, the agency shall publish a 
notice of proposed rule making, which shall include— 
‘‘(A) a statement of the time, place, and nature 
of public rule making proceedings; 
‘‘(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 proposed 
rule, including but not limited to— 
‘‘(i) a summary of information known to 
the agency concerning the considerations speci-
fied in subsection (b); 
‘‘(ii) a summary of additional information 
the agency provided to and obtained from inter-
ested persons under subsection (c); 
‘‘(iii) a summary of any preliminary risk 
assessment or regulatory impact analysis per-
formed by the agency; and 
‘‘(iv) information specifically identifying all 
data, studies, models, and other evidence or in-
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formation considered or used by the agency in 
connection with its determination to propose 
the rule; 
‘‘(E)(i) a reasoned preliminary determination of 
need for the rule based on the information 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 relevant 
statutory objectives and justify the costs of the pro-
posed rule (including all costs to be considered under 
subsection (b)(6)), based on the information de-
scribed under subparagraph (D); 
‘‘(G) a discussion of— 
‘‘(i) the alternatives to the proposed rule, 
and other alternative responses, considered by 
the agency under subsection (b); 
‘‘(ii) the costs and benefits of those alter-
natives (including all costs to be considered 
under subsection (b)(6)); 
‘‘(iii) whether those alternatives meet rel-
evant statutory objectives; and 
‘‘(iv) why the agency did not propose any 
of those alternatives; and 
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‘‘(H)(i) a statement of whether existing rules 
have created or contributed to the problem the agen-
cy seeks to address with the proposed rule; and 
‘‘(ii) if so, whether or not the agency proposes 
to amend or rescind any such rules, and why. 
All information provided to or considered by the 
agency, and steps to obtain information by the agen-
cy, in connection with its determination to propose 
the rule, including any preliminary risk assessment 
or regulatory impact analysis prepared by the agen-
cy and all other information prepared or described 
by the agency under subparagraph (D) 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 
proposed rule and made accessible to the public by 
electronic means and otherwise for the public’s use 
when the notice of proposed rule making is pub-
lished. 
‘‘(2)(A) If the agency undertakes procedures under 
subsection (c) and determines thereafter not to propose 
a rule, the agency shall, following consultation with the 
Office of Information and Regulatory Affairs, publish a 
notice of determination of other agency course. A notice 
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of determination of other agency course shall include in-
formation required by paragraph (1)(D) to be included in 
a notice of proposed rule making and a description of the 
alternative 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 undertake additional 
proceedings under subsection (c) before it publishes a no-
tice of proposed rule making to amend or rescind the exist-
ing rule. 
All information provided to or considered by the agency, 
and steps to obtain information by the agency, in connec-
tion with its determination of other agency course, includ-
ing but not limited to any preliminary risk assessment or 
regulatory impact analysis prepared by the agency and all 
other information that would be required to be prepared 
or described by the agency under paragraph (1)(D) if the 
agency had determined to publish a notice of proposed rule 
making and, at the discretion of the President or the Ad-
ministrator of the Office of Information and Regulatory 
Affairs, information provided by that Office in consulta-
tions with the agency, shall be placed in the docket for 
the determination and made accessible to the public by 
electronic means and otherwise for the public’s use when 
the notice of determination is published. 
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‘‘(3) After notice of proposed rule making required 
by this section, the agency shall provide interested 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 paragraph 
(4)(B) or subsection (e), opportunity for oral presen-
tation shall be provided pursuant to that require-
ment; 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 hearing, sections 
556 and 557 shall apply, and paragraph (4), the re-
quirements of subsection (e) to receive comment out-
side of the procedures of sections 556 and 557, and 
the petition procedures of subsection (e)(6) shall not 
apply. 
The agency shall provide not fewer than 60 days for inter-
ested 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 rule making, a member of the public may peti-
tion for a hearing in accordance with section 556 to deter-
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mine whether any evidence or other information upon 
which the agency bases the proposed rule fails to comply 
with the Information Quality Act. 
‘‘(B)(i) The agency may, upon review of the petition, 
determine without further process to exclude from the rule 
making the evidence or other information that is the sub-
ject of the petition and, if appropriate, withdraw the pro-
posed 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 peti-
tion that presents a prima facie case that evidence or other 
information upon which the agency bases the proposed 
rule fails to comply with the Information Quality Act, hold 
the requested hearing not later than 30 days after receipt 
of the petition, provide a reasonable opportunity for cross- 
examination at the hearing, and decide the issues pre-
sented 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 judicial review of the 
agency’s final action. There shall be no judicial review of 
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an agency’s determination to withdraw a proposed rule 
under subparagraph (B)(i) on the basis of the petition. 
‘‘(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 rule making other than the agency. 
The agency shall provide a reasonable opportunity for 
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. 
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‘‘(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 
meets the requirements of the Information Quality 
Act. 
‘‘(6) Upon petition by an interested person who 
has participated in the rule making, 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 
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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. 
‘‘(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 
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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 and a sum-
mary of any final risk assessment or regulatory im-
pact analysis prepared by the agency; 
‘‘(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— 
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‘‘(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— 
‘‘(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 
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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 connection 
with its adoption of the rule, and, at the discretion of the 
President or the Administrator of the Office of Informa-
tion and Regulatory Affairs, information 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, the following do not apply to interpre-
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tive rules, general statements of policy, or rules of agency 
organization, procedure, or practice: 
‘‘(A) Subsections (c) through (e). 
‘‘(B) Paragraphs (1) through (3) of subsection 
(f). 
‘‘(C) Subparagraphs (B) through (H) of sub-
section (f)(4). 
‘‘(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-
sections (d) through (f) of this section immediately upon 
publication of the interim rule, shall treat the publication 
of the interim rule as publication of a notice of proposed 
rule making and shall not be required to issue supple-
mental notice other than to complete full compliance with 
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