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                                                            Calendar No. 614

114th Congress  }                                            {   Report
 2d Session     }                 SENATE                     {  114-343
                                                                
_______________________________________________________________________

                                     

                                                      


             EARLY PARTICIPATION IN REGULATIONS ACT OF 2015

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                             together with

                            ADDITIONAL VIEWS

                              to accompany

                                S. 1820

TO REQUIRE AGENCIES TO PUBLISH AN ADVANCE NOTICE OF PROPOSED RULEMAKING 
                            FOR MAJOR RULES
                            





               September 6, 2016.--Ordered to be printed
               
               
               
                              _________ 
                                 
                  U.S. GOVERNMENT PUBLISHING OFFICE
                          WASHINGTON : 2016       
                          
                          
                          
                          
               
               
               
        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                    RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona                 THOMAS R. CARPER, Delaware
ROB PORTMAN, Ohio                    CLAIRE McCASKILL, Missouri
RAND PAUL, Kentucky                  JON TESTER, Montana
JAMES LANKFORD, Oklahoma             TAMMY BALDWIN, Wisconsin
MICHAEL B. ENZI, Wyoming             HEIDI HEITKAMP, North Dakota
KELLY AYOTTE, New Hampshire          CORY A. BOOKER, New Jersey
JONI ERNST, Iowa                     GARY C. PETERS, Michigan
BEN SASSE, Nebraska

                  Christopher R. Hixon, Staff Director
                Gabrielle D'Adamo Singer, Chief Counsel
                   Satya P. Thallam, Chief Economist
              Gabrielle A. Batkin, Minority Staff Director
           John P. Kilvington, Minority Deputy Staff Director
               Mary Beth Schultz, Minority Chief Counsel
 Katherine C. Sybenga, Minority Chief Counsel for Governmental Affairs
                     Laura W. Kilbride, Chief Clerk
                     
                     
                     
                     
                     

                                                       Calendar No. 614
                                                       
114th Congress   }                                           {   Report
                                 SENATE
 2d Session      }                                           {   114-343         
                                                      

======================================================================



 
             EARLY PARTICIPATION IN REGULATIONS ACT OF 2015

                                _______
                                

               September 6, 2016.--Ordered to be printed

                                _______
                                

 Mr. Johnson, from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                         [To accompany S. 1820]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 1820) to require 
agencies to publish an advance notice of proposed rulemaking 
for major rules, having considered the same, reports favorably 
thereon with an amendment and recommends that the bill, as 
amended, do pass.

                                CONTENTS

                                                                   Page
  I. Purpose and Summary..............................................1
 II. Background and Need for the Legislation..........................2
III. Legislative History..............................................4
 IV. Section-by-Section Analysis......................................5
  V. Evaluation of Regulatory Impact..................................6
 VI. Congressional Budget Office Cost Estimate........................6
VII. Additional Views.................................................8
VIII.Changes in Existing Law Made by the Bill, as Reported...........12


                         I. Purpose and Summary

    The Early Participation in Regulations Act of 2015 requires 
Federal agencies to solicit and consider public comment early 
in the rulemaking process through an advanced notice of 
proposed rulemaking (ANPRM). Considering alternative solutions, 
articulated by or flowing from public comment at an earlier 
stage, ensures that agencies will consider a broader range of 
policies before they give preference to a particular position 
to the exclusion of others. The bill requires that for certain 
major rules, agencies must publish an ANPRM in the Federal 
Register at least 90 days before publishing a notice of 
proposed rulemaking (NPRM).
    The ANPRM must identify the nature and significance of the 
problem the agency seeks to address and the legal authority 
under which the agency may do so, generally describe regulatory 
alternatives under consideration, and describe an achievable 
objective and metrics by which the agency will measure progress 
on that objective. The agency must then allow at least 60 days 
for public comment. The bill provides an exemption, upon the 
determination of the Administrator of the Office of Information 
and Regulatory Affairs (OIRA), for rules in which complying 
with the requirements of the legislation would not serve the 
public interest, or would be both unduly burdensome and 
duplicative of processes otherwise required by law. The bill 
also exempts those rules that do not require a notice of 
proposed rulemaking, and those otherwise exempted by law. The 
bill does not require nor preclude agencies from responding to 
comments submitted under the ANPRM.

              II. Background and the Need for Legislation

    The Administrative Procedure Act (APA), enacted nearly 70 
years ago, establishes the basic procedures for agency 
rulemaking--the guidelines governing the administrative 
state.\1\ As one scholar put it, it is ``the bill of rights for 
the new regulatory state . . . establish[ing] the fundamental 
relationship between regulatory agencies and those whom they 
regulate--between government, on the one hand, and private 
citizens, business, and the economy, on the other hand.''\2\ 
The APA codified ``patterns of good behavior'' by 
administrative agencies, patterns that had become ``general, 
though not universal'' in practice.\3\
---------------------------------------------------------------------------
    \1\Administrative Procedure Act, 5 U.S.C. Sec. 553; see also 5 
U.S.C. Sec. 551(4) (defining the parameters of rulemaking: it can 
include ``formulating, amending, or repealing a rule'').
    \2\George B. Shepherd, Fierce Compromise: the Administrative 
Procedure Act Emerges from New Deal Politics, 1996 Northwestern U. L. 
Rev. 90, 1558.
    \3\Walter Gellhorn, The Administrative Procedure Act: The 
Beginnings, 1986 Va. L. Rev. 72, 232.
---------------------------------------------------------------------------
    The APA, however, does not contemplate the use of an ANPRM. 
Instead, it only requires that agencies, where applicable, 
issue a NPRM in the Federal Register before formulating a final 
rule. NPRMs, which articulate the agency's proposed rule on a 
certain policy issue, require much more specificity than their 
ANPRM counterparts. Part of this specificity arises from the 
fact that at the NPRM stage, the agency has already chosen a 
policy trajectory, and so must detail the specifics of that 
policy, including ``the terms or substance of the proposed rule 
or a description of the subjects and issues involved.''\4\ More 
starkly, ``[b]ecause of the incentives they face, agencies make 
decisions to regulate before any evidence that might suggest 
regulations are not needed. They do so purposely with little--
if any--input from stakeholders or internal analysis.''\5\ 
Because the agency has to dedicate time and resources to the 
contents of an NPRM later in the rulemaking process than would 
be required of an ANPRM, while both provide notice and 
opportunity to comment, the public's ability to persuade the 
agency of alternatives may be less effective by the NPRM phase. 
Put another way, ``[a]gencies often write regulations before 
they do the basic homework that would help them design the best 
possible regulation,'' resulting in the ``'[r]eady-fire-aim' 
rulemaking'' problem.\6\
---------------------------------------------------------------------------
    \4\Administrative Procedure Act, 5 U.S.C. Sec. 553(b)(3).
    \5\Raising the Agencies' Grades: Protecting the Economy, Assuring 
Regulatory Quality and Improving Assessments of Regulatory Need: 
Hearing Before the H. Comm. on the Judiciary Subcomm. on the Courts, 
Commercial and Administrative Law, 111th Cong. (2011) (focusing on the 
statement of Richard Williams).
    \6\Jerry Ellig, Ready-fire-aim Rulemaking, The Hill, Sep. 27, 2013.
---------------------------------------------------------------------------
    In a recent hearing, former OIRA Administrator John Graham 
echoed this sentiment:

          One of the things I think members should be aware of 
        is that agencies take public comment and public 
        participation after they have proposed a solution. And 
        like all human beings, once we think we know what the 
        solution is, we put it on the table, it is not that 
        easy to move people off that original proposal. . . . 
        In some of these rules it is probably better if the 
        agency says, `Hey we are thinking about regulating in 
        this area. We are going to do this advance notice where 
        we are going to lay out some of the data, what we think 
        the problems are, look at a range of ideas,' and not 
        lock themselves into anything. Take comment at that 
        stage, and then once they have that, then they go to a 
        proposal.\7\
---------------------------------------------------------------------------
    \7\Examining Federal Rulemaking Challenges and Areas of Improvement 
Within the Existing Regulatory Process: Hearing Before the S. Comm. on 
Homeland Sec. & Governmental Affairs Subcomm. on Regulatory Affairs & 
Fed. Mgmt., 114th Cong. (2015) 27-28 (focusing on the statement of Hon. 
John Graham).

    ANPRMs would give notice of and invite public comment on a 
much more generalized policy proposal before it reaches the 
proposed rule stage. Comments responsive to ANPRMs can be as 
diverse as to include underlying information the agency should 
weigh, or the benefits of alternative policy proposals the 
agency should consider.
    While the APA does not require ANPRMs as part of the 
rulemaking process, some agencies, such as the National Oceanic 
and Atmospheric Administration, the Department of 
Transportation, and Consumer Product Safety Commission, 
routinely issue ANPRMs for rules promulgated under their 
authority.\8\ However, the majority of agencies do so for 
significant rules only infrequently.\9\
---------------------------------------------------------------------------
    \8\Sofie E. Miller & Saayee Arumugam, Notice & Comment: How 
Agencies Use Advance Notices of Proposed Rulemaking, 2015 Geo. Wash. 
Univ. Reg. Studies Ctr. 6 (Jan. 23, 2015).
    \9\Id. For example, from 2005 through 2014, 59 percent of ANPRMs 
were for ``Nonsignificant'' and ``Substantive, but not `Significant''' 
rules. Only eight percent were for ``Economically Significant'' or 
``Major'' rules. More generally, during that same period, all agencies 
combined issued an average of less than 50 ANPRMs per year, whereas the 
number of final rules is in the thousands.
---------------------------------------------------------------------------
    A recent report concludes that ``[i]f regulatory reform 
proposals seek to increase opportunities for the public to 
influence important regulatory decisions, agency use of advance 
notices has room for improvement.''\10\ As another former OIRA 
Administrator, Susan Dudley, stated, the use of ANPRMs ``could 
be valuable for soliciting input from knowledgeable parties on 
a range of possible approaches, data, models, etc., before 
particular policy options have been selected.''\11\
---------------------------------------------------------------------------
    \10\Id. at 6.
    \11\A Review of Regulatory Reform Proposals: Hearing Before the S. 
Comm. on Homeland Sec. & Governmental Affairs, 114th Cong. (2015) 
(offering the prepared statement of Hon. Susan Dudley) (Sept. 16, 
2015).
---------------------------------------------------------------------------
    Worries that adding additional statutory requirements 
requiring time for public comment will inhibit or otherwise 
delay agency efforts to promulgate necessary regulations--the 
so-called ``ossification theory''--has been questioned.\12\ A 
2012 report noted that ``statutory and executive order 
analytical requirements, while potentially time consuming, were 
not the major factor in determining the amount of time that it 
took for the agencies to issue these rules . . . [instead] they 
said most of the time is taken up with doing the basic science 
and other preparations for the rule, not the crosscutting 
analytical requirements.''\13\ Additionally, whereas 
``economically significant'' rules do trigger additional 
analytical requirements on agencies--notably a ``require[ment] 
to complete a detailed cost-benefit analysis''\14\--the OIRA 
review for such rules is on average shorter than rules that do 
not entail such requirements.\15\
---------------------------------------------------------------------------
    \12\Jason Webb Yackee & Susan Webb Yackee, Testing the Ossification 
Thesis: An Empirical Examination of Federal Regulatory Volume and Speed 
from 1950-1990, 2012 Geo. Wash. L. Rev. 80, 1414; see also Stephen M. 
Johnson, Ossification's Demise? An Empirical Analysis of EPA Rulemaking 
from 2001-2005, 2008 ENVIRONMENTAL L. REV. 38, 101.
    \13\Curtis Copeland, Regulatory Analysis Requirements: A Review and 
Recommendations for Reform, Report for the Administrative Conference of 
the United States (2012) at 67 (citing internal Government 
Accountability Office interviews).
    \14\Maeve P. Carey, Counting Regulations: An Overview of 
Rulemaking, Types of Federal Regulations, and Pages in the Federal 
Register, Report R43056, Cong. Research Serv. (2015) at 11.
    \15\Id. at 13. The author notes there are potentially pre-review 
reasons why this is the case. Nevertheless, it belies the intuition 
that adding rulemaking requirements necessarily results in delays.
---------------------------------------------------------------------------
    S. 1820 would require agencies to publish an ANPRM in the 
Federal Register for certain major rules at least 90 days 
before publishing a NPRM. Building ANPRMs into the rulemaking 
process for major rules would allow public participation at a 
crucial time in the rulemaking process, just as--but not 
after--policy proposals are formulated. The value of public 
comment, both for the public to be heard, and for the agency to 
gather useful input, is highest at this earlier stage. Here, 
public comment can help inform the rulemaking process, instead 
of merely corroborating or justifying inceptive preferences.

                        III. Legislative History

    Senator James Lankford (R-OK) introduced S. 1820 on July 
21, 2015. The bill was referred to the Committee on Homeland 
Security and Governmental Affairs. Senators Heidi Heitkamp (D-
ND), Kelly Ayotte (R-NH), Joni Ernst (R-IA), and Mark Kirk (R-
IL) later joined as co-sponsors of the bill. The Committee 
considered S. 1820 at an October 7, 2015 business meeting.
    During the business meeting, Senator Lankford offered a 
substitute amendment with clarifying language. The substitute 
amendment was adopted without objection by unanimous consent 
with Senators Johnson, Portman, Lankford, Enzi, Ernst, Sasse, 
Carper, McCaskill, Baldwin, Heitkamp, Booker, and Peters 
present.
    Senator Carper offered an amendment during the business 
meeting that proposed to replace the requirement to employ an 
``advance notice of proposed rulemaking'' with a broader 
``notice'' requirement that would provide the public with 
information on how they could weigh in on the rule that is 
being developed at this earlier stage in the process. The 
amendment was not adopted by roll call vote of 6 yeas to 10 
nays. Senators voting in the affirmative were Senators Carper, 
McCaskill, Baldwin, Booker, and Peters, and Senator Tester by 
proxy. Senators voting in the negative were Senators Johnson, 
Portman, Lankford, Enzi, Ernst, Sasse, and Heitkamp, and 
Senators McCain, Paul and Ayotte by proxy.
    The Committee ordered S. 1820, as amended, reported 
favorably on October 7, 2015, by a roll call vote of 8 yeas to 
4 nays. Senators voting in the affirmative were Senators 
Johnson, Portman, Lankford, Enzi, Ernst, Sasse, McCaskill, and 
Heitkamp. For the record only, Senators McCain, Paul, and 
Ayotte voted yea by proxy. Senators voting in the negative were 
Senators Carper, Baldwin, Booker, and Peters. For the record 
only, Senator Tester voted nay by proxy.

        IV. Section-by-Section Analysis of the Bill, as Reported


Section 1. Short title

    This section provides the bill's short title, the ``Early 
Participation in Regulations Act of 2015.''

Section 2. Advance notice of proposed rulemaking

    This section defines the term ``major rule'' as any rule 
that the Administrator of the Office of Information and 
Regulatory Affairs determines is likely to impose annual 
economic effects of $100,000,000 or more, or cause similar 
deleterious economic effects. The section also defines ``Office 
of Information and Regulatory Affairs'' as that established 
under 44 U.S.C. Sec. 3503.
    Subsection (1) provides that ANPRMs must be published in 
the Federal Register at least 90 days prior to publication of a 
NPRM.
    Subsection (2) lays out the required contents of any ANPRM. 
The ANPRM must identify the nature and significance of the 
problem the agency seeks to address with the major rule; any 
regulatory alternatives under consideration; the legal 
authority under which the major rule may be proposed; and an 
achievable objective for the major rule and metrics by which 
the agency can measure progress. The agency must solicit 
comment from interested persons, leaving the comment period 
open for at least 60 days.
    Subsection (3) lists four circumstances in which an agency 
is excepted from having to issue the ANPRM required by the 
bill: (1) If the agency is not required to publish a notice of 
proposed rulemaking for the major rule; (2) if the OIRA 
Administrator determines that complying with the bill's 
requirements for the major rule would not be in the public 
interest, or would be both unduly burdensome and duplicative of 
processes already required by existing statutory requirements; 
or (3) if the agency is otherwise specifically exempted by law.
    Subsection (4) exempts the OIRA Administrator's 
determinations pursuant to subsection (3) from judicial review. 
This subsection additionally provides that any deviation 
between the policies set forth in the agency's ANPRM under 
section (2) and any final agency action shall not be considered 
by a reviewing court to be arbitrary, capricious, an abuse of 
discretion, or otherwise not in accordance with the law under 
the APA.

                   V. Evaluation of Regulatory Impact

    Pursuant to the requirements of paragraph 11(b) of rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory impact of this bill and determined 
that the bill will have no regulatory impact within the meaning 
of the rules. The Committee agrees with the Congressional 
Budget Office's statement that the bill contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act (UMRA) and would impose no costs 
on state, local, or tribal governments.

             VI. Congressional Budget Office Cost Estimate

                                                   August 31, 2016.
Hon. Ron Johnson, Chairman, Committee on Homeland Security and 
    Governmental Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 1820, the Early 
Participation in Regulations Act of 2015.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                                        Keith Hall.
    Enclosure.

S. 1820--Early Participation in Regulations Act of 2015

    S. 1820 would amend the Administrative Procedures Act to 
require agencies to publish an Advance Notice of Proposed 
Rulemaking (ANPRM) for major rules in the Federal Register at 
least 90 days before it publishes a Notice of Proposed 
Rulemaking (NPRM). Under the bill, major rules would include 
all regulations that are likely to result in an annual effect 
on the economy of $100 million or more; a major increase in 
prices or costs for consumers, industry, government agencies or 
individual regions; or a significant impact on U.S. companies 
that compete with foreign companies.
    Based on an analysis of information provided by the 
Congressional Research Service and selected agencies on the 
current regulatory process, CBO estimates that the executive 
branch usually issues between 3,000 and 4,000 final rules each 
year, of which approximately 70 would be defined as major under 
the bill. Agencies seldom issue an ANPRM; however, CBO expects 
that most of the information needed to publish one also is 
needed for the NPRM. Based on the costs of printing such 
notices and the necessary work to publish one additional 
notice, CBO estimates that preparing and publishing 
approximately 70 ANPRMs would cost about $1 million a year 
government wide. Such spending would be subject to the 
availability of appropriated funds. Additionally, CBO expects 
that adding the requirement to publish an ANPRM would not 
significantly delay the implementation of final regulations.
    CBO expects that any change to the regulatory process, 
including more public involvement, could lead to changes in 
proposed and final rules. However, CBO has no basis to estimate 
any budgetary effects from such changes.
    Enacting the bill could affect direct spending by agencies 
not funded though annual appropriations; therefore pay-as-you- 
go procedures apply. CBO estimates, however, that any net 
increase in spending by those agencies would be negligible. 
Enacting S. 1820 would not affect revenues.
    CBO estimates that enacting S. 1820 would not increase net 
direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2027.
    S. 1820 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Matthew 
Pickford. The estimate was approved by H. Samuel Papenfuss, 
Deputy Assistant Director for Budget Analysis.

 VII. ADDITIONAL VIEWS OF SENATORS THOMAS R. CARPER AND GARY C. PETERS

    While we agree that it is important that agencies solicit 
and consider public input early in the process when 
contemplating a new rule, we have serious concerns with the 
requirement in this bill that agencies file a formal Advanced 
Notice of Rulemaking (ANPRM) for all major rules. First, not 
all rules will benefit from adding a formal ANPRM to the 
process. Agencies are in the best position to determine if an 
ANPRM will be helpful in a given situation. Second, limiting 
agencies to the very specific ANPRM process instead of allowing 
them the flexibility to use their resources to engage 
stakeholders in other ways may provide the agency with less 
diverse viewpoints and, therefore, limit the benefits to the 
final rule being proposed. And finally, this bill's requirement 
that all major rules be required to go through this additional 
step will only serve to further slow down the regulatory 
process, causing even more regulatory delays without 
necessarily gaining significant benefits.
Agencies are in the Best Position to Determine if an ANPRM will be 
        Beneficial to the Particular Rulemaking
    An Advanced Notice of Proposed Rulemaking is not required 
under the Administrative Procedures Act (APA),\1\ though some 
agencies are required under other statutes to issue ANPRMs for 
at least some rules.\2\ Under current law, when contemplating a 
new regulation, an agency is often required to issue a Notice 
of Proposed Rulemaking (NPRM) which provides opportunity for 
public comment prior to issuing the final rule.\3\ Though not 
required, an agency may use an ANPRM when the agency determines 
the benefits of doing so exceed the drawbacks that may come 
from any delay that adding this extra step may cause. While 
this extra step could be very useful in some cases, it may not 
be in others. For example, when an agency is regulating in an 
area that is new, it may be helpful to solicit formal comments 
earlier in the process through an ANPRM. However, when an 
agency is regulating in an area where it is already very 
familiar with the subject matter and the issues surrounding the 
proposed regulation, going through the formal ANPRM process may 
not be necessary or helpful.
---------------------------------------------------------------------------
    \1\5 U.S.C. Sec. 553.
    \2\See, e.g., 15 U.S.C. Sec. 57a(b)(2), which requires the Federal 
Trade Commission to issue ANPRMs for many of their rules.
    \3\5 U.S.C. Sec. 553(b).
---------------------------------------------------------------------------
    The American Bar Association's (ABA) Section of 
Administrative Law and Regulatory Practice has said that while 
it believes that it is important to encourage the use of 
ANPRMs, their use should be voluntary, saying it ``continues to 
believe that an amended APA should not make ANPRMs mandatory, 
even in proceedings to issue expensive rules.''\4\ The ABA's 
statement also said that ``[a]gencies are in the best position 
to be able to determine the relative benefits and burdens of 
utilizing ANPRMs . . .''\5\
---------------------------------------------------------------------------
    \4\Amer. Bar Assoc. (ABA) Section of Admin. L. and Reg. Practice, 
Comments on H.R. 3010, The Regulatory Accountability Act of 2011 15 
(2011).
    \5\Id. at 16.
---------------------------------------------------------------------------
    Sidney A. Shapiro, the Frank U. Fletcher Chair of 
Administrative Law at Wake Forest University School of Law and 
Vice President of the Center for Progressive Reform, testified 
before the Committee in September 2015 that agencies find 
ANPRMs useful at times. His testimony listed a number of 
agencies, including the Occupational Safety and Health 
Administration (OSHA), the Environmental Protection Agency 
(EPA), and the Consumer Product Safety Commission (CPSC), that 
frequently use advanced notices for rulemakings.\6\ However, in 
other cases Congress has actually eliminated requirements in 
certain laws that required an ANPRM for regulations authorized 
by those laws in order to allow agencies to act more quickly to 
protect public health, safety, and the environment. For 
example, the CPSC used to be statutorily required to use 
ANPRMs, but in 2008, in response to public concerns about the 
inability of the CPSC to ensure the safety of toys and 
children's products, Congress passed the Consumer Product 
Safety Improvement Act.\7\ This law, among other things, took 
steps to expedite the rulemaking process by eliminating the 
requirement that the agency begin every rulemaking with an 
ANPRM, instead making it voluntary.\8\
---------------------------------------------------------------------------
    \6\Testimony of Sidney A. Shapiro, hearing before the Senate 
Committee on Homeland Security and Governmental Affairs, ``A Review of 
Regulatory Reform Proposals,'' September 16, 2015.
    \7\P.L. 110-314.
    \8\P.L. 110-314, Section 204 (amending 15 U.S.C. Sec. 2058); (For 
another example, see P.L. 110-140, Sec. 307, removing from 42 U.S.C. 
Sec. 6295(p) a requirement for the Secretary of Energy to publish an 
ANPRM when issuing certain energy efficiency standards).
---------------------------------------------------------------------------
S. 1820 could Limit Public Engagement and Input that could Benefit the 
        Final Rule
    Limiting agencies to the specific and formal ANPRM process 
could limit the type of input the agency receives. An ANPRM is 
just one tool agencies can use to gain early input from 
stakeholders and the public. Other tools at their disposal for 
gaining early input from the public include public hearings, 
focus groups and public meetings. Some of these other forms of 
public outreach may provide an agency with more diverse 
opinions and may provide the general public with more 
opportunities to participate in developing the regulation early 
in the process.
    Howard Shelanski, the current Administrator of the Office 
of Information and Regulatory Affairs, questioned the wisdom of 
requiring agencies to use a particular process to solicit early 
stakeholder input when he testified before the Regulatory 
Affairs and Federal Management Subcommittee. While he agreed 
that it is important for agencies to have a development process 
in which they gather stakeholder input, and that they are 
encouraged to do so, the particular procedural vehicle for 
gaining that evidence and understanding could vary.\9\
---------------------------------------------------------------------------
    \9\Testimony of Howard Shelanski, hearing before the Senate 
Committee on Homeland Security and Governmental Affairs Subcommittee on 
Regulatory Affairs and Federal Management, ``Reviewing the Office of 
Information and Regulatory Affairs' Role in the Regulatory Process,'' 
July 16, 2015.
---------------------------------------------------------------------------
    A number of studies have shown that the notice and comment 
period already required by the Notice of Proposed Rulemaking 
(NPRM) can be biased toward industry or industrial associations 
and fail to give the general public any real say in the final 
regulation.\10\ In addition to showing that parties that would 
be regulated under a proposed rule submitted the large majority 
of comments, studies have found that these entities had more 
influence over the changes made by the agency in final rules 
since changes made after the notice and comment period were 
more likely to benefit them than the public interest 
generally.\11\ Given the limited resources agencies are working 
with, requiring an ANPRM could make agencies less likely to be 
proactive in reaching out to a wider range of stakeholders and 
using other methods of soliciting early input that may be more 
appropriate for a given rule because they would have to focus 
those limited resources on this particular requirement.
---------------------------------------------------------------------------
    \10\See e.g. Wendy Wagner, Katherine Barnes & Lisa Peters, 
Rulemaking in the Shade: Empirical Study of EPA's Toxic Emissions 
Standards, 63 Admin. L. Rev. 99, 128-29 (2011); Jason Webb Yackee & 
Susan Webb Yackee, A Bias Towards Business? Assessing Interest Group 
Influence on the U.S. Bureaucracy, The Journal of Politics Vol. 68, No. 
1 (Feb., 2006), 128-139.
    \11\Yakee & Yakee at 133-35.
---------------------------------------------------------------------------
S. 1820 would Create Additional Regulatory Delays and Opportunities for 
        Judicial Review
    In his testimony before the Committee, Professor Shapiro 
estimated that significant rules can take anywhere between four 
and eight years to complete.\12\ Adding an ANPRM to the already 
slow regulatory process for every major rule will just 
exacerbate the regulatory delays that already plague our 
regulatory system without gaining much benefit. As the ABA has 
said, ``ANPRMs can significantly extend the time involved in 
rulemaking, and often the costs of the delay will be greater 
than the benefits associated with an improved final regulation, 
which may be nil.''\13\
---------------------------------------------------------------------------
    \12\Testimony of Sidney A. Shapiro, hearing before the Senate 
Committee on Homeland Security and Governmental Affairs, ``A Review of 
Regulatory Reform Proposals,'' September 16, 2015.
    \13\ABA at 16.
---------------------------------------------------------------------------
    A recent report released by Public Citizen, which analyzed 
over 20 years of data in the Unified Agenda on federal 
regulations, found that when an ANPRM was used, significant 
rules took between 59 and 100 percent longer to complete than 
when the agency did not issue an ANPRM.\14\ Even conservative 
estimates by some who support a requirement for an ANPRM 
anticipate that it would add at least another three to six 
months to the regulatory process.\15\ But even more extreme 
delays can result from the use of an ANPRM. For example, as 
Pamela Gilbert discussed in her testimony before the Regulatory 
Affairs and Federal Management Subcommittee last year, the 
CSPC's use of an ANPRM on a potential regulation on safety 
technology that has been proven to prevent serious injuries, 
including amputations, from table saws has contributed to over 
four years of delays that have prevented the agency from even 
issuing a NPRM to address this significant safety issue.\16\
---------------------------------------------------------------------------
    \14\Public Citizen, Unsafe Delays: An Empirical Analysis Shows That 
Federal Rulemakings To Protect the Public Are Taking Longer Than Ever, 
retrieved at: http://www.citizen.org/unsafedelaysreport.
    \15\See e.g., Testimony of John Graham, hearing before the Senate 
Committee on Homeland Security and Governmental Affairs Subcommittee on 
Regulatory Affairs and Federal Management, ``Examining Federal 
Rulemaking Challenges and Areas of Improvement Within the Existing 
Regulatory Process,'' March 19, 2015.
    \16\Testimony of Pamela Gilbert, hearing before the Senate 
Committee on Homeland Security and Governmental Affairs Subcommittee on 
Regulatory Affairs and Financial Management, ``Examining Federal 
Rulemaking Challenges and Areas of Improvement Within the Existing 
Regulatory Process,'' March 19, 2015.
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    In addition, many agencies are under statutory or judicial 
deadlines for promulgating regulations that may not give the 
agency time to add an extra step to the regulatory process. 
Agencies already routinely miss statutory deadlines for 
rulemaking. In fact, according to an August 2015 report by the 
libertarian think tank J Street, in the past 20 years, agencies 
have met only half of the regulatory deadlines set by Congress 
in statutes.\17\
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    \17\Scott Atherly, Federal Agency Compliance with Congressional 
Regulatory Deadlines, R Street Policy Study No. 30 (August 2015).
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    To try to address these concerns, we offered an amendment 
during the Committee's consideration of this bill that still 
would have required agencies to provide notice to the public 
prior to a notice of proposed rulemaking, but allow agencies 
more flexibility to decide the particular procedure for 
soliciting feedback for the development of the regulation. We 
believe this amendment was a common-sense compromise that still 
achieved the objective of the bill's sponsors while still 
allowing agencies to determine which process would help 
agencies the achieve the best regulatory outcome. 
Unfortunately, this amendment was not adopted.
    Regulatory delays are not only frustrating to those who 
follow these issues closely, but can also have real and lasting 
impacts on public health, safety, the environment and the 
economy. Adding requirements that will lead to additional 
delays should not be done without careful consideration and 
clear evidence that these new requirements would significantly 
improve the process and the resulting regulations. That case 
has not been made here. Agencies are in the best position to 
decide if this particular process will improve the regulation 
or just lead to unnecessary delays and they should be able to 
continue to make this determination. Therefore, we oppose this 
measure.

      VIII. Changes in Existing Law Made by the Bill, as Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
S. 1820 as reported are shown as follows (existing law proposed 
to be omitted is enclosed in brackets, new matter is printed in 
italic, and existing law in which no change is proposed is 
shown in roman):

UNITED STATES CODE

           *       *       *       *       *       *       *


TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES

           *       *       *       *       *       *       *


PART I--THE AGENCIES GENERALLY

           *       *       *       *       *       *       *


CHAPTER 5--ADMINISTRATIVE PROCEDURE

           *       *       *       *       *       *       *


Subchapter II--Administrative Procedure

           *       *       *       *       *       *       *


SEC. 551. DEFINITIONS

          (1) * * *

           *       *       *       *       *       *       *

          (13) ``agency action'' includes the whole or a part 
        of an agency rule, order, license, sanction, relief, or 
        the equivalent or denial thereof, or failure to act; 
        [and]
          (14) ``ex parte communication'' means an oral or 
        written communication not on the public record with 
        respect to which reasonable prior notice to all parties 
        is not given, but it shall not include requests for 
        status reports on any matter or proceeding covered by 
        this subchapter[.];
          (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, or on the ability of United States-
                based enterprises to compete with foreign-based 
                enterprises in domestic and export markets; and
                  (16) 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. 553. RULE MAKING

    (a) * * *

           *       *       *       *       *       *       *

    (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 data and other 
                        evidence and information on which the 
                        agency 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, 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; and
                          (iv) an achievable objective for the 
                        major rule and metrics by which the 
                        agency expects to measure progress 
                        toward that objective;
                  (B) solicit written data, views, and argument 
                from interested persons concerning the 
                information and issues addressed 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 subsection (b)(3)(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; or
          (ii) would be unduly burdensome and duplicative of 
        processes required by specific statutory requirements 
        as rigorous as those prescribed in paragraph (2); or
                  (C) the agency proposing the major rule is 
                otherwise specifically exempted by law from the 
                notice and comment rule making procedures under 
                this section.
          (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 deviation 
                between policies set forth in the written 
                statement of an agency under paragraph (2)(A) 
                and any final agency action shall not be 
                considered arbitrary, capricious, an abuse of 
                discretion, or otherwise not in accordance with 
                the law under section 706(2)(A).