II Calendar No. 192 116th CONGRESS 1st Session S. 1419 [Report No. 116–88] IN THE SENATE OF THE UNITED STATES May 13, 2019 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 September 10, 2019 Reported by Mr. Johnson , with an amendment Strike out all after the enacting clause and insert the part printed in italic A BILL To require agencies to publish an advance notice of proposed rulemaking for major rules.

1. Short title This Act may be cited as the Early Participation in Regulations Act of 2019 . 2. Advance notice of proposed rulemaking 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 on 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 rulemaking 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 rulemaking for a major rule in the Federal Register, the agency shall publish an advance notice of proposed rulemaking for the major rule in the Federal Register. (2) Requirements An advance notice of proposed rulemaking 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 and other information on which the agency at the time expects to rely for the proposed major rule; (ii) a general description of regulatory alternatives under consideration; (iii) the legal authority under which a major rule may be proposed; and (iv) an achievable objective for the major rule; (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 60 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 rulemaking in the Federal Register for the major rule under subparagraph (A) or (B) of subsection (b); or (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; or (ii) would be unduly burdensome and duplicative of processes required by specific statutory requirements as rigorous as those prescribed in paragraph (2). (4) Judicial review (A) In general A determination made by the Administrator of the Office of Information and Regulatory Affairs in accordance with paragraph (3)(B) 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 rulemaking shall not be reviewable under section 706(2)(A). .

1. Short title This Act may be cited as the Early Participation in Regulations Act of 2019 . 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). .

September 10, 2019 Reported with an amendment