Title: Early Participation in Regulations Act of 2021
Policy area: Government Operations and Politics

Summary:
Early Participation in Regulations Act of 2021
This bill directs agencies to publish advance notice of a proposed rulemaking at least 90 days before publishing a notice of proposed rulemaking for a major rule that the Office of Information and Regulatory Affairs (OIRA) determines is likely to impose (1) an annual effect on the economy of $100 million or more; (2) a major increase in costs or prices for consumers, individual industries, government agencies, or geographic regions; or (3) significant adverse effects on competition, employment, investment, productivity, innovation, health, safety, the environment, or the ability of U.S. enterprises to compete with foreign-based enterprises.
The advance notice must
Any difference between such advance notice and the notice of proposed rulemaking may not be considered arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the Administrative Procedure Act.
Advance notice is not required if the proposing agency is not required to publish notice of proposed rulemaking or OIRA finds that such advance notice is (1) not in the public interest, (2) duplicative of another statutory requirement, (3) not practicable due to a required deadline, or (4) for a rule that is routine or periodic in nature. Such a determination made by OIRA is not subject to judicial review.

[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 2804 Introduced in Senate (IS)]

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117th CONGRESS
  1st Session
                                S. 2804

To require agencies to publish an advance notice of proposed rulemaking 
                            for major rules.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

           September 22 (legislative day, September 21), 2021

  Mr. Lankford (for himself and Ms. Sinema) introduced the following 
 bill; which was read twice and referred to the Committee on Homeland 
                   Security and Governmental Affairs

_______________________________________________________________________

                                 A BILL


 
To require agencies to publish an advance notice of proposed rulemaking 
                            for major rules.

    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 ``Early Participation in Regulations 
Act of 2021''.

SEC. 2. ADVANCE NOTICE OF PROPOSED RULE MAKING.

    Subchapter II of chapter 5 of title 5, United States Code, is 
amended--
            (1) in section 551--
                    (A) in paragraph (13), by striking ``and'' at the 
                end;
                    (B) in paragraph (14), by striking the period at 
                the end and inserting a semicolon; and
                    (C) by adding at the end the following:
            ``(15) `major rule' means any rule that the Administrator 
        of the Office of Information and Regulatory Affairs determines 
        is likely to impose--
                    ``(A) an annual effect on the economy of 
                $100,000,000 or more;
                    ``(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 effects on competition, 
                employment, investment, productivity, innovation, 
                health, safety, the environment, or the ability of 
                United States-based enterprises to compete with 
                foreign-based enterprises in domestic and export 
                markets; and
            ``(16) `Office of Information and Regulatory Affairs' means 
        the office established under section 3503 of title 44 and any 
        successor to that office.''; and
            (2) in section 553, by adding at the end the following:
    ``(f) Advance Notice of Proposed Rule Making for Major Rules.--
            ``(1) In general.--Except as provided in paragraph (3), not 
        later than 90 days before the date on which an agency publishes 
        a notice of proposed rule making for a major rule in the 
        Federal Register, the agency shall publish an advance notice of 
        proposed rule making for the major rule in the Federal 
        Register.
            ``(2) Requirements.--An advance notice of proposed rule 
        making published under paragraph (1) shall--
                    ``(A) include a written statement identifying, at a 
                minimum--
                            ``(i) the nature and significance of the 
                        problem the agency may address with a major 
                        rule, including any data or categories of data 
                        that the agency has identified as relevant or 
                        that the agency intends to consult for the 
                        proposed major rule;
                            ``(ii) a general description of regulatory 
                        alternatives under consideration; and
                            ``(iii) the legal authority under which a 
                        major rule may be proposed;
                    ``(B) solicit written data, views, and argument 
                from interested persons concerning the information and 
                issues identified in the advance notice; and
                    ``(C) provide for a period of not less than 30 days 
                for interested persons to submit such written data, 
                views, or argument to the agency.
            ``(3) Exceptions.--This subsection shall not apply to a 
        major rule if--
                    ``(A) the agency proposing the major rule is not 
                required to publish a notice of proposed rule making in 
                the Federal Register for the major rule under 
                subparagraph (A) or (B) of subsection (b);
                    ``(B) the Administrator of the Office of 
                Information and Regulatory Affairs determines that 
                complying with the requirements described in this 
                subsection--
                            ``(i) would not serve the public interest;
                            ``(ii) would be duplicative of processes as 
                        rigorous and effective as those prescribed in 
                        paragraph (2) and would be unnecessary to 
                        ensure meaningful public participation; or
                            ``(iii) would not be practicable due to a 
                        statutory or court-imposed deadline; or
                    ``(C) the Administrator of the Office of 
                Information and Regulatory Affairs determines that the 
                major rule falls within a category of major rules that 
                are routine or periodic in nature.
            ``(4) Judicial review.--
                    ``(A) In general.--A determination made by the 
                Administrator of the Office of Information and 
                Regulatory Affairs in accordance with subparagraph (B) 
                or (C) of paragraph (3) shall not be subject to 
                judicial review.
                    ``(B) Arbitrary and capricious.--Any difference 
                between policies set forth in the written statement of 
                an agency under paragraph (2)(A) and the notice of 
                proposed rule making shall not be reviewable under 
                section 706(2)(A).''.
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