[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2122 Introduced in House (IH)]
113th CONGRESS
1st Session
H. R. 2122
To reform the process by which Federal agencies analyze and formulate
new regulations and guidance documents.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
May 23, 2013
Mr. Goodlatte (for himself, Mr. Peterson, Mr. Smith of Texas, Mr.
Owens, Mr. Coble, Mr. Schrader, and Mr. Bachus) introduced the
following bill; which was referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To reform the process by which Federal agencies analyze and formulate
new regulations and guidance documents.
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 ``Regulatory Accountability Act of
2013''.
SEC. 2. DEFINITIONS.
Section 551 of title 5, United States Code, is amended--
(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 Administrator
of the Office of Information and Regulatory 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 competition,
employment, investment, productivity, innovation, or on
the ability of United States-based enterprises to
compete with foreign-based enterprises in domestic and
export markets; or
``(D) significant impacts on multiple sectors 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 statutory, regulatory or
technical issue or an interpretation of a statutory or
regulatory issue;
``(18) `major guidance' means guidance that the
Administrator of the Office of Information and Regulatory
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 competition,
employment, investment, productivity, innovation, or on
the ability of United States-based enterprises to
compete with foreign-based enterprises in domestic and
export markets; or
``(D) significant impacts on multiple sectors of
the economy;
``(19) the `Information Quality Act' means section 515 of
Public Law 106-554, the Treasury and General Government
Appropriations Act for Fiscal Year 2001, and guidelines issued
by the Administrator 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 inserting ``(a)
Applicability.--This section applies''.
(b) Section 553 of title 5, United States Code, is amended by
striking subsections (b) through (e) and inserting 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:
``(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 specific 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 (including 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 jurisdiction), whether the problem warrants
new agency 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 amended 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 interested persons,
including not only responses that mandate particular conduct or
manners of compliance, but also--
``(A) the alternative of no Federal response;
``(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 compliance;
``(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
alternatives rather than agency actions that
specify conduct or manners of compliance.
``(6) Notwithstanding any other provision of law--
``(A) the potential costs and benefits associated
with potential alternative rules and other responses
considered under section 553(b)(5), including direct,
indirect, and cumulative costs and benefits and
estimated impacts on jobs (including an estimate of the
net gain or loss in domestic jobs), economic growth,
innovation, and economic competitiveness;
``(B) means to increase the cost-effectiveness 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 Federal Register, an agency shall publish
advance notice of proposed rule making in the Federal Register. In
publishing 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, including data and
other evidence and information 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 making is required
by statute, and if so, whether by a specific date, or
whether the agency has discretion 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 statutory
mandates, the nature of and potential reasons 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; Determinations of Other
Agency Course.--(1) Before it 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
Information 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 specified in subsection
(b);
``(ii) a summary of additional information the
agency provided to and obtained from interested persons
under subsection (c);
``(iii) a summary of any preliminary risk
assessment or regulatory impact analysis performed by
the agency; and
``(iv) information specifically identifying all
data, studies, models, and other evidence or
information 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 proposed rule
(including all costs to be considered under subsection (b)(6)),
based on the information described 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 alternatives
(including all costs to be considered under subsection
(b)(6));
``(iii) whether those alternatives meet relevant
statutory objectives; and
``(iv) why the agency did not propose any of those
alternatives; and
``(H)(i) a statement of whether existing rules have created
or contributed to the problem the agency 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 agency, in connection with
its determination to propose the rule, including any
preliminary risk assessment or regulatory impact analysis
prepared by the agency 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, information 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 published.
``(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 of determination of other agency course shall include
information 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 notice of proposed rule making to amend or rescind the
existing rule.
All information provided to or considered by the agency, and steps to
obtain information by the agency, in connection with its determination
of other agency course, including 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 Administrator of the Office of
Information and Regulatory Affairs, information provided by that Office
in consultations 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.
``(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 presentation shall be
provided pursuant to that requirement; 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 requirements of subsection (e) to receive comment outside
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 interested 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 petition for a hearing in accordance
with section 556 to determine 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 subject of the petition and, if
appropriate, withdraw the proposed 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 petition 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 presented
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 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.--Following notice of a
proposed rule making, receipt of comments 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
participants at the hearing other than the agency may waive
determination 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 proposed rule
that would achieve the relevant statutory objectives at a lower
cost (including all costs to be considered under subsection
(b)(6)) than the proposed rule.
``(3) If there is more than one alternative to the proposed
rule that would achieve the relevant statutory 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 alternative that would
achieve the relevant statutory objectives (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 information 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 relevant to the
rule making, unless the agency determines 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 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 publish in the Federal Register
a notice specifying the proposed 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 subsection (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 facilitate compliance with
applicable rule making requirements.
``(2) The agency shall adopt a rule only on the basis of the best
reasonably obtainable scientific, technical, economic, 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 relevant statutory
objectives only if the additional benefits 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 include--
``(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 summary of any final risk assessment or
regulatory impact analysis prepared by the agency;
``(C) the agency's reasoned final determination that the
benefits of the rule meet the relevant statutory 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 making, including--
``(i) the agency's reasoned final determination
that no alternative considered achieved the relevant
statutory objectives with lower costs (including all
costs to be considered under subsection (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 determination--
``(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 intends
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 the agency bases the
rule complies with the Information 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
rescinded to reduce costs while continuing to achieve statutory
objectives; and
``(ii) review of a rule under a plan required by clause (i)
of this subparagraph shall take into account the factors and
criteria set forth in subsections (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 Information 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 Requirements.--(1) Except
when notice or hearing is required by statute, the following do not
apply to interpretive 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 subsection (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 impracticable 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 subsections (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 supplemental
notice other than to complete full compliance with subsection (d). No
less than 270 days from publication of the interim rule (or 18 months
in the case of a major rule or high-impact rule), the agency shall
complete rule making under subsections (d) through (f) of this
subsection and take final action to adopt a final rule or rescind the
interim rule. If the agency fails to take timely final action, the
interim rule will cease to have the effect of law.
``(C) Other than in cases involving interests of national security,
upon the agency's publication of an interim rule without compliance
with subsections (c), (d), or (e) or requirements to render final
determinations under subsection (f) of this section, an interested
party may seek immediate judicial review under chapter 7 of this title
of the agency's determination to adopt such interim rule. The record on
such review shall include all documents and information considered by
the agency and any additional information presented by a party that the
court determines necessary to consider to assure justice.
``(3) When the agency for good cause finds (and incorporates the
finding and a brief statement of reasons therefor in the rules issued)
that notice and public procedure thereon are unnecessary, including
because agency rule making is undertaken only to correct a de minimis
technical or clerical error in a previously issued rule or for other
noncontroversial purposes, the agency may publish a rule without
compliance with subsections (c), (d), (e), or (f)(1)-(3) and (f)(4)(B)-
(F). If the agency receives significant adverse comment within 60 days
after publication of the rule, it shall treat the notice of the rule as
a notice of proposed rule making and complete rule making in compliance
with subsections (d) and (f).
``(h) Additional Requirements for Hearings.--When a hearing is
required under subsection (e) or is otherwise required by statute or at
the agency's discretion before adoption of a rule, the agency shall
comply with the requirements of sections 556 and 557 in addition to the
requirements of subsection (f) in adopting the rule and in providing
notice of the rule's adoption.
``(i) Date of Publication of Rule.--The required publication or
service of a substantive final or interim rule shall be made not less
than 30 days before the effective date of the rule, except--
``(1) a substantive rule which grants or recognizes an
exemption or relieves a restriction;
``(2) interpretive rules and statements of policy; or
``(3) as otherwise provided by the agency for good cause
found and published with the rule.
``(j) Right To Petition.--Each agency shall give an interested
person the right to petition for the issuance, amendment, or repeal of
a rule.
``(k) Rule Making Guidelines.--(1)(A) The Administrator of the
Office of Information and Regulatory Affairs shall establish guidelines
for the assessment, including quantitative and qualitative assessment,
of the costs and benefits of proposed and final rules and other
economic issues or issues related to risk that are relevant to rule
making under this title. The rigor of cost-benefit analysis required by
such guidelines shall be commensurate, in the Administrator's
determination, with the economic impact of the rule.
``(B) To ensure that agencies use the best available techniques to
quantify and evaluate anticipated present and future benefits, costs,
other economic issues, and risks as accurately as possible, the
Administrator of the Office of Information and Regulatory Affairs shall
regularly update guidelines established under paragraph (1)(A) of this
subsection.
``(2) The Administrator of the Office of Information and Regulatory
Affairs shall also issue guidelines to promote coordination,
simplification and harmonization of agency rules during the rule making
process and otherwise. Such guidelines shall assure that each agency
avoids regulations that are inconsistent or incompatible with, or
duplicative of, its other regulations and those of other Federal
agencies and drafts its regulations to be simple and easy to
understand, with the goal of minimizing the potential for uncertainty
and litigation arising from such uncertainty.
``(3) To ensure consistency in Federal rule making, the
Administrator of the Office of Information and Regulatory Affairs
shall--
``(A) issue guidelines and otherwise take action to ensure
that rule makings conducted in whole or in part under
procedures specified in provisions of law other than those of
subchapter II of this title conform to the fullest extent
allowed by law with the procedures set forth in section 553 of
this title; and
``(B) issue guidelines for the conduct of hearings under
subsections 553(d)(4) and 553(e) of this section, including to
assure a reasonable opportunity for cross-examination. Each
agency shall adopt regulations for the conduct of hearings
consistent with the guidelines issued under this subparagraph.
``(4) The Administrator of the Office of Information and Regulatory
Affairs shall issue guidelines pursuant to the Information Quality Act
to apply in rule making proceedings under sections 553, 556, and 557 of
this title. In all cases, such guidelines, and the Administrator's
specific determinations regarding agency compliance with such
guidelines, shall be entitled to judicial deference.
``(l) Inclusion in the Record of Certain Documents and
Information.--The agency shall include in the record for a rule making,
and shall make available by electronic means and otherwise, all
documents and information prepared or considered by the agency during
the proceeding, including, at the discretion of the President or the
Administrator of the Office of Information and Regulatory Affairs,
documents and information communicated by that Office during
consultation with the Agency.
``(m) Monetary Policy Exemption.--Nothing in subsection (b)(6),
subparagraphs (F) and (G) of subsection (d)(1), subsection (e),
subsection (f)(3), and subparagraphs (C) and (D) of subsection (f)(5)
shall apply to rule makings that concern monetary policy proposed or
implemented by the Board of Governors of the Federal Reserve System or
the Federal Open Market Committee.''.
SEC. 4. AGENCY GUIDANCE; PROCEDURES TO ISSUE MAJOR GUIDANCE;
PRESIDENTIAL AUTHORITY TO ISSUE GUIDELINES FOR ISSUANCE
OF GUIDANCE.
(a) In General.--Chapter 5 of title 5, United States Code, is
amended by inserting after section 553 the following new section:
``Sec. 553a. Agency guidance; procedures to issue major guidance;
authority to issue guidelines for issuance of guidance
``(a) Before issuing any major guidance, or guidance that involves
a novel legal or policy issue arising out of statutory mandates, an
agency shall--
``(1) make and document a reasoned determination that--
``(A) assures that such guidance is understandable
and complies with relevant statutory objectives and
regulatory provisions (including any statutory
deadlines for agency action);
``(B) summarizes the evidence and data on which the
agency will base the guidance;
``(C) identifies the costs and benefits (including
all costs to be considered during a rule making under
section 553(b) of this title) of conduct conforming to
such guidance and assures that such benefits justify
such costs; and
``(D) describes alternatives to such guidance and
their costs and benefits (including all costs to be
considered during a rule making under section 553(b) of
this title) and explains why the agency rejected those
alternatives; and
``(2) confer with the Administrator of the Office of
Information and Regulatory Affairs on the issuance of such
guidance to assure that the guidance is reasonable,
understandable, consistent with relevant statutory and
regulatory provisions and requirements or practices of other
agencies, does not produce costs that are unjustified by the
guidance's benefits, and is otherwise appropriate.
Upon issuing major guidance, or guidance that involves a novel legal or
policy issue arising out of statutory mandates, the agency shall
publish the documentation required by subparagraph (1) by electronic
means and otherwise.
``(b) Agency guidance--
``(1) is not legally binding and may not be relied upon by
an agency as legal grounds for agency action;
``(2) shall state in a plain, prominent and permanent
manner that it is not legally binding; and
``(3) shall, at the time it is issued or upon request, be
made available by the issuing agency to interested persons and
the public by electronic means and otherwise.
Agencies shall avoid the issuance of guidance that is inconsistent or
incompatible with, or duplicative of, the agency's governing statutes
or regulations, with the goal of minimizing the potential for
uncertainty and litigation arising from such uncertainty.
``(c) The Administrator of the Office of Information and Regulatory
Affairs shall have authority to issue guidelines for use by the
agencies in the issuance of major guidance and other guidance. Such
guidelines shall assure that each agency avoids issuing guidance
documents that are inconsistent or incompatible with, or duplicative
of, the law, its other regulations, or the regulations of other Federal
agencies and drafts its guidance documents to be simple and easy to
understand, with the goal of minimizing the potential for uncertainty
and litigation arising from such uncertainty.''.
(b) Clerical Amendment.--The table of sections for chapter 5 of
title 5, United States Code, is amended by inserting after the item
relating to section 553 the following new item:
``553a. Agency guidance; procedures to issue major guidance; authority
to issue guidelines for issuance of
guidance.''.
SEC. 5. HEARINGS; PRESIDING EMPLOYEES; POWERS AND DUTIES; BURDEN OF
PROOF; EVIDENCE; RECORD AS BASIS OF DECISION.
Section 556 of title 5, United States Code, is amended by striking
subsection (e) and inserting the following:
``(e)(1) The transcript of testimony and exhibits, together with
all papers and requests filed in the proceeding, constitutes the
exclusive record for decision in accordance with section 557 and shall
be made available to the parties and the public by electronic means
and, upon payment of lawfully prescribed costs, otherwise. When an
agency decision rests on official notice of a material fact not
appearing in the evidence in the record, a party is entitled, on timely
request, to an opportunity to show the contrary.
``(2) Notwithstanding paragraph (1) of this subsection, in a
proceeding held under this section pursuant to section 553(d)(4) or
553(e), the record for decision shall also include any information that
is part of the record of proceedings under section 553.
``(f) When an agency conducts rule making under this section and
section 557 directly after concluding proceedings upon an advance
notice of proposed rule making under section 553(c), the matters to be
considered and determinations to be made shall include, among other
relevant matters and determinations, the matters and determinations
described in subsections (b) and (f) of section 553.
``(g) Upon receipt of a petition for a hearing under this section,
the agency shall grant the petition in the case of any major rule,
unless the agency reasonably determines that a hearing would not
advance consideration of the rule or would, in light of the need for
agency action, unreasonably delay completion of the rule making. The
agency shall publish its decision to grant or deny the petition when it
renders the decision, including an explanation of the grounds for
decision. The information contained in the petition shall in all cases
be included in the administrative record. This subsection shall not
apply to rule makings that concern monetary policy proposed or
implemented by the Board of Governors of the Federal Reserve System or
the Federal Open Market Committee.''.
SEC. 6. ACTIONS REVIEWABLE.
Section 704 of title 5, United States Code, is amended--
(1) by striking ``Agency action made'' and inserting ``(a)
Agency action made''; and
(2) by adding at the end the following: ``Denial by an
agency of a correction request or, where administrative appeal
is provided for, denial of an appeal, under an administrative
mechanism described in subsection (b)(2)(B) of the Information
Quality Act, or the failure of an agency within 90 days to
grant or deny such request or appeal, shall be final action for
purposes of this section.
``(b) Other than in cases involving interests of national security,
notwithstanding subsection (a) of this section, upon the agency's
publication of an interim rule without compliance with section 553(c),
(d), or (e) or requirements to render final determinations under
subsection (f) of section 553, an interested party may seek immediate
judicial review under this chapter of the agency's determination to
adopt such rule on an interim basis. Review shall be limited to whether
the agency abused its discretion to adopt the interim rule without
compliance with section 553(c), (d), or (e) or without rendering final
determinations under subsection (f) of section 553.''.
SEC. 7. SCOPE OF REVIEW.
Section 706 of title 5, United States Code is amended--
(1) by striking ``To the extent necessary'' and inserting
``(a) To the extent necessary'';
(2) in paragraph (2)(A) of subsection (a) (as designated by
paragraph (1) of this section), by inserting after ``in
accordance with law'' the following: ``(including the
Information Quality Act)''; and
(3) by adding at the end the following:
``(b) The court shall not defer to the agency's--
``(1) interpretation of an agency rule if the agency did
not comply with the procedures of section 553 or sections 556-
557 of chapter 5 of this title to issue the interpretation;
``(2) determination of the costs and benefits or other
economic or risk assessment of the action, if the agency failed
to conform to guidelines on such determinations and assessments
established by the Administrator of the Office of Information
and Regulatory Affairs under section 553(k);
``(3) determinations made in the adoption of an interim
rule; or
``(4) guidance.
``(c) The court shall review agency denials of petitions under
section 553(e)(6) or any other petition for a hearing under sections
556 and 557 for abuse of agency discretion.''.
SEC. 8. ADDED DEFINITION.
Section 701(b) of title 5, United States Code, is amended--
(1) in paragraph (1), by striking ``and'' at the end;
(2) in paragraph (2), by striking the period at the end,
and inserting ``; and''; and
(3) by adding at the end the following:
``(3) `substantial evidence' means such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion in light of the record considered as a whole, taking
into account whatever in the record fairly detracts from the
weight of the evidence relied upon by the agency to support its
decision.''.
SEC. 9. EFFECTIVE DATE.
The amendments made by this Act to--
(1) sections 553, 556, and 704 of title 5, United States
Code;
(2) subsection (b) of section 701 of such title;
(3) paragraphs (2) and (3) of section 706(b) of such title;
and
(4) subsection (c) of section 706 of such title,
shall not apply to any rule makings pending or completed on the date of
enactment of this Act.
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