Title: Truth in Regulations Act of 2017
Policy area: Government Operations and Politics

Summary:
Truth in Regulations Act of 2017
This bill requires agencies to have written procedures to ensure that an issuance of policy guidance documents (other than regulatory actions) is approved by each appropriate senior agency official unless a supervisor or agency head has agreed to an employee's justification to deviate from the requirements. An agency must also maintain on its website a list of, links to, and a means for the public to comment on and request issuance, modification, or rescission of, such documents.
A guidance document may not include mandatory language unless: (1) the agency is describing a statutory or regulatory requirement, (2) the language is addressed to agency employees, or (3) the prohibition against that mandatory language prevents agency consideration of a position advanced by an affected private party.
The bill requires agencies to publish drafts of guidance documents for public comment.
The bill replaces the "good cause" exception to proposed rulemaking notice and publication requirements with an exception that applies if the agency determines that an imminent threat to public health or safety or a similar exigent circumstance exists. When such exception is applied, the agency, within 18 months after the rule takes effect, shall: (1) provide for a period in which interested persons may submit written data, views, or arguments; and (2) consider such submissions and, if appropriate, repeal or amend the rule.

[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 580 Introduced in Senate (IS)]

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115th CONGRESS
  1st Session
                                 S. 580

To establish agency procedures for the issuance of guidance documents, 
                        and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 8, 2017

 Mr. Lankford introduced the following bill; which was read twice and 
referred to the Committee on Homeland Security and Governmental Affairs

_______________________________________________________________________

                                 A BILL


 
To establish agency procedures for the issuance of guidance documents, 
                        and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Truth in Regulations Act of 2017''.

SEC. 2. AGENCY STANDARDS FOR GUIDANCE DOCUMENTS.

    (a) Definitions.--In this section:
            (1) Administrator.--The term ``Administrator'' means the 
        Administrator of the Office of Information and Regulatory 
        Affairs in the Office of Management and Budget.
            (2) Agency.--The term ``agency'' has the meaning given the 
        term in section 3502 of title 44, United States Code.
            (3) Guidance document.--The term ``guidance document''--
                    (A) means an agency statement of general 
                applicability and future effect, other than a 
                regulatory action, that sets forth a policy on a 
                statutory, regulatory, or technical issue or an 
                interpretation of a statutory or regulatory issue; and
                    (B) does not include--
                            (i) a legal advisory opinion for internal 
                        executive branch use and not for release (such 
                        as Department of Justice Office of Legal 
                        Counsel opinions);
                            (ii) a brief or other position taken by an 
                        agency in an investigation, pre-litigation, 
                        litigation, or other enforcement proceeding;
                            (iii) a speech, editorial, media interview, 
                        press material, or congressional 
                        correspondence;
                            (iv) a guidance document that relates to a 
                        military or foreign affairs function of the 
                        United States (other than a guidance document 
                        on procurement or the import or export of non-
                        defense articles and services);
                            (v) a grant solicitation, warning letter, 
                        or case or investigatory letter responding to a 
                        complaint involving a fact-specific 
                        determination;
                            (vi) a purely internal agency policy;
                            (vii) a guidance document that relates to 
                        the use, operation, or control of a government 
                        facility;
                            (viii) an internal guidance document 
                        directed solely to other agencies; or
                            (ix) any other category of guidance 
                        documents exempted by the head of an agency, in 
                        consultation with the Administrator.
            (4) Regulation.--The term ``regulation'' means an agency 
        statement of general applicability and future effect, which the 
        agency intends to have the force and effect of law, that is 
        designed to implement, interpret, or prescribe law or policy or 
        to describe the procedure or practice requirements of an 
        agency.
            (5) Regulatory action.--The term ``regulatory action'' 
        means any substantive action by an agency (normally published 
        in the Federal Register) that promulgates or is expected to 
        lead to the promulgation of a final regulation, including 
        notices of inquiry, advance notices of inquiry and notices of 
        proposed rule making.
    (b) Approval Procedures.--
            (1) In general.--Except as provided in paragraph (2), not 
        later than 210 days after the date of enactment of this Act, 
        the head of each agency shall develop or have written 
        procedures for the approval of guidance documents, which shall 
        ensure that the issuance of guidance documents is approved by 
        each appropriate senior agency official.
            (2) Exception.--An employee of an agency may not deviate 
        from the requirements of the procedures developed pursuant to 
        paragraph (1) unless--
                    (A) the employee has submitted an appropriate 
                justification to a supervisor who is an appropriate 
                senior agency official described paragraph (1) or the 
                head of the agency; and
                    (B) the supervisor or head of the agency has agreed 
                to the deviation.
    (c) Contents of Guidance Document.--
            (1) Requirements.--Each guidance document issued by an 
        agency shall include the following:
                    (A) The term ``guidance'' or a functional 
                equivalent of that term.
                    (B) An identification of each agency and office 
                issuing the document.
                    (C) An identification of the activity to which and 
                the person to whom the guidance document applies.
                    (D) The date of issuance.
                    (E) If the document is a revision to a previously 
                issued guidance document, a notation of such and an 
                identification of the document replaced.
                    (F) The title of the document and any 
                identification number, if applicable.
                    (G) A citation to the statutory provision or 
                regulation to which the document applies or interprets.
            (2) Prohibited.--A guidance document may not include 
        mandatory language such as ``shall'', ``must'', ``required'', 
        or ``requirement'', unless--
                    (A) the agency is using these words to describe a 
                statutory or regulatory requirement;
                    (B) the language is addressed to agency employees; 
                or
                    (C) the prohibition against that mandatory language 
                prevents agency consideration of a position advanced by 
                any affected private party.
    (d) Public Access and Feedback for Guidance Documents.--
            (1) Internet access.--
                    (A) List required.--The head of each agency shall 
                maintain on the website of the agency a list of each 
                guidance document in effect, which shall include the 
                following:
                            (i) The name of each guidance document.
                            (ii) Any document identification number.
                            (iii) The dates of issuance and revision.
                            (iv) An identification of which documents 
                        have been added, revised, or withdrawn during 
                        the previous year.
                    (B) Link to document required.--The head of the 
                agency shall provide a link from the list described in 
                subparagraph (A) to each such guidance document.
                    (C) Updates to website.--Not later than 30 days 
                after the date on which a guidance document is issued, 
                the head of the agency shall update the list of 
                guidance documents and links described in this 
                paragraph accordingly.
            (2) Public feedback.--
                    (A) Submission of public comments.--
                            (i) In general.--Not later than 60 days 
                        after the date of enactment of this Act, the 
                        head of each agency shall establish and 
                        prominently display on the website of the 
                        agency a means for the public--
                                    (I) to electronically submit 
                                comments on any guidance document; and
                                    (II) to electronically submit a 
                                request for issuance, reconsideration, 
                                modification, or rescission of any 
                                guidance document.
                            (ii) No response required.--Any public 
                        comment submitted under this paragraph is for 
                        the benefit of the agency, and a formal 
                        response to any such comment by the agency is 
                        not required.
                    (B) Complaints by the public.--The head of each 
                agency shall--
                            (i) designate one or more offices to 
                        receive and address complaints submitted by the 
                        public that the agency is not following the 
                        procedures in this section or is improperly 
                        treating a guidance document as a binding 
                        requirement; and
                            (ii) provide, on the website of the agency, 
                        the name and contact information for any office 
                        described in clause (i).
    (e) Notice and Public Comment for Guidance Documents.--
            (1) In general.--Except as provided in paragraph (2), not 
        later than 60 days after the date on which an agency prepares a 
        draft of a guidance document, the agency shall complete the 
        following requirements:
                    (A) Publish a notice in the Federal Register 
                announcing that the draft document is available.
                    (B) Post the draft document on the website of the 
                agency and make the draft publicly available in hard 
                copy (or notify the public how the guidance document 
                may be reviewed if not in a format that permits 
                electronic posting with reasonable efforts).
                    (C) Invite public comment on the draft document.
                    (D) Prepare and post on the website of the agency a 
                response-to-comments document.
            (2) Exemptions.--Notwithstanding paragraph (1), the head of 
        an agency, in consultation with the Administrator, may 
        designate a guidance document or group of guidance documents as 
        exempt from the requirements of this section for being not 
        feasible or appropriate.
    (f) Exigent Circumstances.--
            (1) In general.--In an imminent threat to public health or 
        safety or similar exigent circumstance exists or when an agency 
        is required by law to act more quickly than the procedures 
        described in this section allow, the head of the agency shall 
        certify the circumstance to the Administrator as soon as 
        possible and, to the extent practicable, comply with this 
        section.
            (2) Other deadlines.--For any guidance document that is 
        governed by a statutory or court-imposed deadline, the agency 
        shall, to the extent practicable, schedule any proceeding for 
        such document to permit sufficient time to comply with this 
        section.
    (g) Applicability.--This section does not affect the authority of 
an agency to communicate the views of the agency in court or in any 
other enforcement proceeding.
    (h) Effective Date.--The requirements of this section shall take 
effect 180 days after the date of enactment of this Act.

SEC. 3. LIMITATIONS ON USE OF INTERIM FINAL RULES.

    (a) Enhanced Showing Required for Interim Final Rules.--Section 
553(b)(B) of title 5, United States Code, is amended by striking ``for 
good cause'' and all that follows through the period at the end and 
inserting the following: ``determines that an imminent threat to public 
health or safety or similar exigent circumstance exists.''.
    (b) Required Publication or Service Date.--Section 553(d)(3) of 
title 5, United States Code, is amended to read as follows:
            ``(3) in the case of any rule to which the exception under 
        subsection (b)(B) applies.''.
    (c) Lookback Period for Interim Final Rules.--Section 553 of title 
5, United States Code, is amended by adding at the end the following:
    ``(f) In the case of a rule making in which the exception under 
subsection (b)(B) was applied, by not later than 18 months after the 
rule takes effect, the agency shall provide for a period in which 
interested persons may submit written data, views, or arguments, in the 
same manner as submissions under subsection (c), shall give such 
submissions due consideration, and, if appropriate, repeal or amend the 
rule accordingly.''.
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