Report text available as:

  • TXT
  • PDF   (PDF provides a complete and accurate display of this text.) Tip ?
                                                      Calendar No. 312
115th Congress     }                                    {       Report
                                SENATE
 2d Session        }                                    {      115-208
_______________________________________________________________________

                                     

                 REGULATORY ACCOUNTABILITY ACT OF 2017

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                             together with

                             MINORITY VIEWS

                              to accompany

                                 S. 951

 To reform the process by which Federal agencies analyze and formulate 
     new regulations and guidance documents, and for other purposes

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


               February 14, 2018.--Ordered to be printed
                                   ______

                         U.S. GOVERNMENT PUBLISHING OFFICE 

79-010                         WASHINGTON : 2018 
















        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                    RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona                 CLAIRE McCASKILL, Missouri
ROB PORTMAN, Ohio                    THOMAS R. CARPER, Delaware
RAND PAUL, Kentucky                  HEIDI HEITKAMP, North Dakota
JAMES LANKFORD, Oklahoma             GARY C. PETERS, Michigan
MICHAEL B. ENZI, Wyoming             MAGGIE HASSAN, New Hampshire
JOHN HOEVEN, North Dakota            KAMALA D. HARRIS, California
STEVE DAINES, Montana                DOUG JONES, Alabama

                  Christopher R. Hixon, Staff Director
                Gabrielle D'Adamo Singer, Chief Counsel
                   Satya P. Thallam, Chief Economist
               Margaret E. Daum, Minority Staff Director
               Stacia M. Cardille, Minority Chief Counsel
       Charles A. Moskowitz, Minority Senior Legislative Counsel
                 Katherine C. Sybenga, Minority Counsel
                     Laura W. Kilbride, Chief Clerk


















                                                      Calendar No. 312
115th Congress     }                                    {       Report
                                SENATE
 2d Session        }                                    {      115-208

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



 
                 REGULATORY ACCOUNTABILITY ACT OF 2017

                                _______
                                

               February 14, 2018.--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

                             MINORITY VIEWS

                         [To accompany S. 951]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 951) to reform the 
process by which Federal agencies analyze and formulate new 
regulations and guidance documents, and for other purposes, 
having considered the same, reports favorably thereon with an 
amendment in the nature of a substitute, 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..............................................9
 IV. Section-by-Section Analysis.....................................10
  V. Evaluation of Regulatory Impact.................................16
 VI. Congressional Budget Office Cost Estimate.......................16
VII. Minority Views..................................................21
VIII.Changes in Existing Law Made by the Bill, as Reported...........27


                         I. Purpose and Summary

    The Regulatory Accountability Act of 2017, S. 951, reforms 
the process by which Federal agencies analyze and formulate new 
regulations and guidance documents by codifying longstanding 
regulatory analytical principles within the agency rulemaking 
process. It amends the Administrative Procedure Act (APA) and 
modernizes the regulatory process with an emphasis on 
regulatory impact analysis (including cost-benefit analysis). 
This bill promotes transparency and accountability in the 
Federal regulatory process, and provides safeguards to protect 
public safety and health.

              II. Background and the Need for Legislation


Background and Existing Executive Orders

    In 1946, Congress enacted the APA in response to the 
substantial increase in Federal regulations driven by the New 
Deal.\1\ The APA established guidelines for Federal agency 
rulemaking by incorporating public participation requirements 
in the rulemaking process.\2\ Since its enactment, Congress has 
amended the statute sixteen times,\3\ but none of these 
amendments substantially changed the process by which Federal 
agencies produce regulations. Congress has not amended the APA 
at all over the last two decades.\4\
---------------------------------------------------------------------------
    \1\See APA, Pub. L. No. 79-404 (codified as amended in scattered 
sections of Title 5 of the United States Code).
    \2\George B. Shepherd, Fierce Compromise: The Administrative 
Procedure Act Emerges from New Deal Politics, 90 Nw U. L. Rev. 1557, 
1560 (1996).
    \3\Christopher Walker, The Regulatory Accountability Act Is a Model 
of Bipartisan Reform, Reg. Rev. (May 18, 2017), https://
www.theregreview.org/2017/05/18/walker-model-bipartisan-reform/ (``In 
the past seven decades, Congress has only amended the APA 16 times--
arguably only four of which constituted significant changes: the 
Freedom of Information Act (FOIA) in 1966, the Privacy Act in 1974, the 
Government in the Sunshine Act in 1976, and amendments, also in 1976, 
waiving certain claims of sovereign immunity in suits against the 
government.''). See Act of Aug. 8, 1946, ch.870, Title III, Sec.  302, 
60 Stat. 918 (amending 5 U.S.C. Sec.  551(a) to exclude functions 
conferred by the Veterans' Emergency Housing Act of 1946); Act of Aug. 
10, 1946, ch. 951, Title VI, Sec.  601, 60 Stat. 993 (also amending 5 
U.S.C. Sec.  551(a) to exclude functions conferred by the Veteran's 
Emergency Housing Act of 1946); Act of Mar. 31, 1947, ch. 30, Sec.  
6(a), 61 Stat. 37 (amending definition of agency in 5 U.S.C. Sec.  
551(a) to exclude functions conferred by the Surplus Control Extension 
Act of 1947); Act of June 30, 1947, ch. 163, Title II, Sec.  210, 61 
Stat. 201 (amending definition of agency in 5 U.S.C. Sec.  551(a) to 
exclude functions conferred by the Housing Rent Act of 1947); Act of 
Mar. 30, 1948, ch. 161, Title III, Sec.  301, 62 Stat. 99 (amending 
definition of agency in 5 U.S.C. Sec.  551(a) to exclude functions 
conferred by the 1948 amendments to the Housing and Rent Act of 1947); 
Freedom of Information Act of 1966, Pub. L. No. 89-487, 80 Stat. 250 
(amending 5 U.S.C. Sec.  552); Act of Oct. 22, 1968, Pub. L. No. 90-
623, Sec.  1(1), 82 Stat. 1312 (amending 5 U.S.C. Sec.  559 to insert 
``of this title''); Privacy Act of 1974, Pub. L. No. 93-579, 88 Stat. 
1896 (codified at 5 U.S.C. Sec.  552(a)); see also Act of Dec. 31, 
1975, Pub. L. No. 94-183, Sec.  2(2), 89 Stat. 1057 (amending 5 U.S.C. 
Sec.  552a(g)(5) to replace ``to the effective date of this section'' 
with ``to September 27, 1975''); Government in the Sunshine Act of 
1976, Pub. L. No. 94-409, Sec. Sec.  3(a), 4, 5(b), 90 Stat. 1241-1247 
(adding 5 U.S.C. Sec.  552b and Sec.  557(d)(1) and conforming language 
in Sec. Sec.  551, 552, and 556); Act of Oct. 21, 1976, Pub. L. No. 94-
574, Sec.  1, 90 Stat. 2721 (amending 5 U.S.C. Sec. Sec.  702, 703); 
Act of Mar. 27, 1978, Pub. L. No. 95-251, Sec. Sec.  2(a)(1), 2(b)(1), 
(2), 92 Stat. 183 (amending 5 U.S.C. Sec. Sec.  554, 556 and 559); Act 
of Oct. 13, 1978, Pub. L. No. 95-454, Sec.  801(a)(3)(B)(iii), 92 Stat. 
1222 (amending 5 U.S.C. Sec.  559 to replace ``5362'' with ``5372''); 
Debt Collection Act of 1982, Pub. L. No. 97-365, Sec.  2, 96 Stat. 1749 
(amending 5 U.S.C. Sec.  552a); Congressional Reports Elimination Act 
of 1982, Pub. L. No. 97-375, Title II, Sec.  201(a), (b), 96 Stat. 1821 
(amending Sec.  552a(p)); Act of Jan. 12, 1983, Pub. L. No. 97-452, 
Sec.  2(a)(1), 96 Stat. 2478 (amending Sec. Sec.  552a(b), 552a(m)); 
Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 
104-231, Sec. Sec.  3-11, 110 Stat. 3049-3054 (amending 5 U.S.C. Sec.  
552).
    \4\Walker, supra note 3.
---------------------------------------------------------------------------
    Although the APA has not significantly changed over the 
last seventy years, the Executive Branch's role in governing 
all facets of American life has changed and grown tremendously. 
Each year Federal agencies add thousands of pages of rules to 
the Code of Federal Regulations.\5\ As the administrative state 
has grown larger and more complicated, presidents of both 
parties have recognized the need for regulators to engage in 
thoughtful, transparent analysis before promulgating final 
regulations. For thirty-six years, Presidents have issued 
executive orders intended to make the regulatory process more 
transparent and accountable.
---------------------------------------------------------------------------
    \5\See Clyde Wayne Crews., New Data: Code of Federal Regulations 
Expanding, Faster Pace Under Obama, Competitive Enterprise Inst. (Mar. 
17, 2014), https://cei.org/blog/new-data-code-federal-regulations-
expanding-faster-pace-under-obama; see also Clyde Wayne Crews Jr., Ten 
Thousand Commandments: An Annual Snapshot of the Federal Regulatory 
State, Competitive Enterprise Inst. 22 fig.14 (2016), https://cei.org/
sites/default/files/Wayne%20Crews%20-
%20Ten%20Thousand%20Commandments%202016%20-%20May%204%202016.pdf; 
Geo.Wash. Reg. Studies Ctr., Total Pages; Code of Federal Regulations 
(1950-2016), Geo. Wash. Reg. Studies Ctr., https://
regulatorystudies.columbian.gwu.edu/sites/
regulatorystudies.columbian.gwu.edu/files/downloads/CFR_pages.JPG (last 
visited Oct. 11, 2017).
---------------------------------------------------------------------------
    In 1981, President Reagan issued Executive Order (E.O.) 
12291 ``to reduce the burdens of existing and future 
regulations, increase agency accountability for regulatory 
actions, provide for presidential oversight of the regulatory 
process, minimize duplication and conflict of regulations, and 
insure [sic] well-reasoned regulations.''\6\ E.O. 12291 
required all agencies to meet five requirements when writing 
new rules, reviewing existing rules, and developing legislative 
proposals regarding legislation, including: (1) ``adequate 
information concerning the need for and consequences of 
proposed government action''; (2) ``benefits to society for the 
regulation outweigh the potential costs to society''; (3) 
``[r]egulatory objectives shall be chosen to maximize the net 
benefits to society''; (4) ``the alternative involving the 
least net cost to society shall be chosen''; and (5) 
``maximizing the aggregate net benefits to society.''\7\
---------------------------------------------------------------------------
    \6\Exec. Order No. 12291, 46 Fed. Reg. 13193 (Feb. 17, 1981).
    \7\Id.
---------------------------------------------------------------------------
    E.O. 12291 required agencies to prepare, and to the extent 
permitted by law, consider a Regulatory Impact Analysis (RIA) 
for every ``major rule.'' A major rule is defined as a 
regulation likely to result in ``(1) an annual effect on the 
economy of $100 million or more; (2) A major increase in costs 
or prices for consumers, individual industries, Federal, State, 
or local government agencies, or geographic regions; or (3) 
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 or export markets.''\8\
---------------------------------------------------------------------------
    \8\Id.
---------------------------------------------------------------------------
    This E.O. also authorized the Director of the Office of 
Management and Budget (OMB) to review any preliminary or final 
RIA, notice of proposed rulemaking (NPRM), and final rule and 
required an agency to consult with the Director about that 
review. It also required agencies to review and perform RIAs of 
currently effective major rules and authorized the Director to 
designate rules for review.\9\
---------------------------------------------------------------------------
    \9\Id.
---------------------------------------------------------------------------
    Before approving any major regulation, E.O. 12291 required 
agencies to determine whether the regulation is ``clearly 
within the authority delegated by law and consistent with 
congressional intent.''\10\ Agencies also have to ensure that 
the ``factual conclusions upon which the rule is based have 
substantial support in the agency record.''\11\
---------------------------------------------------------------------------
    \10\Id.
    \11\Id.
---------------------------------------------------------------------------
    On September 30, 1993, President Clinton issued E.O. 
12866,\12\ which built on the foundations of E.O. 12291 to 
establish the current cost-benefit analysis requirements for 
Executive Branch agencies.\13\ In the introduction to E.O. 
12866, President Clinton remarked:

    \12\Exec. Order No. 12866, 58 Fed. Reg. 190 (Oct. 4, 1993).
    \13\Note that E.O. 12866 revoked and replaced E.O. 12291; E.O. 
12866 requirements are currently the effective requirements.

          The American people deserve a regulatory system that 
        works for them, not against them: a regulatory system 
        that protects and improves their health, safety, 
        environment, and well-being and improves the 
        performance of the economy without imposing 
        unacceptable or unreasonable costs on society; 
        regulatory policies that recognize that the private 
        sector and private markets are the best engine for 
        economic growth; regulatory approaches that respect the 
        role of State, local, and tribal governments; and 
        regulations that are effective, consistent, sensible, 
        and understandable. We do not have such a regulatory 
        system today.\14\
---------------------------------------------------------------------------
    \14\Exec. Order No. 12866, supra note 12.

    He explained the goals of E.O. 12866 were to ``enhance 
planning and coordination with respect to both new and existing 
regulations; to reaffirm the primacy of Federal agencies in the 
regulatory decision-making process; to restore the integrity 
and legitimacy of regulatory review and oversight; and to make 
the process more accessible and open to the public.'' E.O. 
12866 announced the nation's ``regulatory philosophy,'' similar 
to that in President Reagan's Executive Order, stating that 
``Federal agencies should promulgate only such regulations as 
are required by law, are necessary to interpret the law, or are 
made necessary by compelling public need, such as material 
failures of private markets to protect or improve the health 
and safety of the public, the environment, or the well-being of 
the American people.''\15\
---------------------------------------------------------------------------
    \15\Id.
---------------------------------------------------------------------------
    E.O. 12866 expressed the principle that ``[i]n deciding 
whether and how to regulate, agencies should assess all costs 
and benefits of available regulatory alternatives, including 
the alternative of not regulating.'' Thus, the agencies are to 
choose the approach that maximizes net benefits unless a 
statute requires otherwise.\16\
---------------------------------------------------------------------------
    \16\Id.
---------------------------------------------------------------------------
    It also directs OMB to review all Executive Branch agency 
rulemaking to ensure the regulations are consistent with 
applicable law and do not conflict with another agency's 
actions, and instructs the Office of Information and Regulatory 
Affairs (OIRA) to provide guidance to agencies regarding 
regulatory planning and to review individual regulations.\17\
---------------------------------------------------------------------------
    \17\Id.
---------------------------------------------------------------------------
    Finally, E.O. 12866 requires agencies to periodically 
review its existing significant regulations\18\ and provides 
that each agency should ``provide the public with meaningful 
participation in the regulatory process,'' including seeking 
stakeholder opinions before issuing an NPRM and providing a 
comment period of at least 60 days after proposing a 
regulation.\19\ It provides that for each significant 
regulatory action, each agency shall provide the draft to OIRA 
with a description of the need for the regulation and how the 
regulation meets that need and an assessment of the action's 
potential costs and benefits and potential alternatives' costs 
and benefits.\20\ OIRA is then to provide ``meaningful guidance 
and oversight'' to the agencies and has authority to return a 
regulation to an agency for further consideration with a 
written explanation.\21\ Agencies may not publish significant 
regulatory actions until OIRA notifies the agency that OIRA has 
waived or completed its review without requests for further 
consideration, or until 90 days have passed since agency 
submission to OIRA without OIRA taking action.\22\
---------------------------------------------------------------------------
    \18\Id. (defining ``significant regulatory action'' as ``any 
regulatory action that is likely to result in a rule that may: (1) have 
an annual effect on the economy of $100 million or more or adversely 
affect in a material way the economy, a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local, or tribal governments or communities; (2) 
create a serious inconsistency or otherwise interfere with an action 
taken or planned by another agency; (3) materially alter the budgetary 
impact of entitlements, grants, user fees, or loan programs or the 
rights and obligations of recipients thereof; or (4) raise novel legal 
or policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in this Executive order.'').
    \19\Id.
    \20\Id.
    \21\Id.
    \22\Id.
---------------------------------------------------------------------------
    Presidents George W. Bush, Barack Obama, and Donald Trump 
have left President Clinton's E.O. 12866 in place. In 2011, 
President Obama supplemented E.O. 12866 with E.O. 13563, 
Improving Regulation and Regulatory Review.\23\ E.O. 13563 
provides that in applying the principles of E.O. 12866, 
agencies should use the ``best available techniques to quantify 
present and future benefits and costs as accurately as 
possible, and where appropriate and permitted by law, agencies 
may consider ``values that are difficult or impossible to 
quantify, including equity, human dignity, fairness, and 
distributive impacts.''\24\ E.O. 13563 also brought the public 
participation elements of E.O. 12866 online, providing that 
each agency must afford the public an opportunity to comment on 
proposed regulations via the Internet and ``timely online 
access to the rulemaking docket on regulations.gov.''\25\ It 
also instructed agencies to consider how best to promote 
retrospective review of rules and to release retrospective 
analyses online when possible.\26\
---------------------------------------------------------------------------
    \23\Exec. Order No. 13563, 76 Fed. Reg. 3821 (Jan. 21, 2011).
    \24\Id.
    \25\Id.
    \26\Id.
---------------------------------------------------------------------------
    On July 11, 2011, President Obama released E.O. 13579, 
Regulation and Independent Regulatory Agencies,\27\ which built 
on E.O. 13563, providing that independent agencies\28\ should 
also comply, to the extent permitted by law, with provisions 
set forth in E.O. 13563. It states that independent agencies 
should meet the same general requirements regarding ``public 
participation, integration and innovation, flexible approaches, 
and science.''\29\ It also directed agencies to consider ``how 
best to promote retrospective analysis of rules that may be 
outmoded, ineffective, insufficient, or excessively burdensome, 
and to modify, streamline, expand, or repeal them in accordance 
with what has been learned.''\30\ Independent agencies are to 
release the data and evaluations underlying those reviews 
whenever possible.\31\
---------------------------------------------------------------------------
    \27\Exec. Order No. 13579, 76 Fed. Reg. 41585 (July 14, 2011).
    \28\Defined in Exec. Order No. 13579 as ``hav[ing] the meaning set 
forth in 44 U.S.C. 3502(5).''
    \29\Exec. Order No. 13579, supra note 27.
    \30\Id.
    \31\Id.
---------------------------------------------------------------------------
    OIRA Administrators from both parties have recognized the 
importance of the principles underlying these Executive Orders 
and of maintaining them across administrations.\32\ The current 
OIRA Administrator, Neomi Rao, observed during her confirmation 
hearing: ``[r]eading through OIRA's statutory authorities as 
well as EOs and OMB guidance, I have been struck by the 
consistency of the principles guiding the work of the office 
across administrations.''\33\ Similarly, Susan Dudley, 
Administrator of OIRA from 2007 to 2009 under President George 
W. Bush, testified during her nomination hearing: ``I think 
there are a lot of things that we do right. I think that the 
analytical framework that President Clinton put in place with 
Executive Order 12866, which has been continued, I think that 
shows that it is not partisan. There is a nonpartisan approach 
to understand regulations to make sure that they are having the 
intended effects.''\34\
---------------------------------------------------------------------------
    \32\Infra, notes 33-34.
    \33\Nominations of Brock Long to be Administrator, Federal 
Emergency Management Agency, U.S. Department of Homeland Security; 
Russell Vought to be Deputy Director, Office of Management and Budget; 
and Neomi Rao to be Administrator, Office of Information and Regulatory 
Affairs, Office of Management and Budget Before the S. Comm. on 
Homeland Sec. & Governmental Aff., 115th Cong. 2 (2017) (statement of 
Neomi Rao, to be Admin., Off. of Info. & Reg. Aff.).
    \34\Nomination of Susan E. Dudley to be Administer, Office of 
Information and Regulatory Affairs, Office of Management and Budget 
Before the S. Comm. On Homeland Sec. & Governmental Aff., 109th Cong. 
15-16 (2006).
---------------------------------------------------------------------------

Need for codifying the principles outlined in the Executive Orders

    Former OIRA Administrators have expressed support for the 
regulatory review mandates included in EOs 12291, 12866, 13563, 
and 13579. On the need for cost-benefit analysis, Sally Katzen, 
Administrator of OIRA from 1993 to 1998 during the Clinton 
Administration, has stated, ``[e]conomic analysis is useful and 
clearly instructive; indeed, I cannot imagine making regulatory 
choices (or legislative choices for that matter) without a 
systematic consideration of the intended (and unintended) 
consequences of a proposed action.''\35\ Ms. Dudley has 
testified that while the EOs ``have done little to slow the 
growth in new regulation, they have focused attention on 
understanding the effects of regulations, and some argue that 
they have resulted in `smarter regulation' that produces more 
benefits than costs.''\36\
---------------------------------------------------------------------------
    \35\Federal Regulation: A Review of Legislative Proposals, Part II 
Before the S. Comm. On Homeland Sec. & Governmental Aff., 112th Cong. 7 
(2011) (statement of Sally Katzen, Former Admin., Off. of Info. & Reg. 
Aff.).
    \36\Reducing Unnecessary and Costly Red Tape Through Smarter 
Regulations Before the U.S. Cong. Joint Econ. Comm., 113th Cong. 14-15 
(2013) (statement of Susan E. Dudley, Former Admin., Off. of Info. & 
Reg. Aff.).
---------------------------------------------------------------------------
    However, Ms. Dudley has also observed that mandates 
contained in an executive order, by themselves, are constrained 
in their enforceability, noting: ``statements of principles 
from the President are not enforceable in court and will 
accomplish little unless the President is willing and able to 
enforce them in practice.''\37\
---------------------------------------------------------------------------
    \37\Id. (citing John D. Graham, Paul R. Noe & Elizabeth L. Branch, 
Managing the Regulatory State: The Experience of the Bush 
Administration, 33 Fordham Urb. L. J. 953 (2005), and Cass Sunstein, 
Smarter Regulation: Remarks from Cass Sunstein, Admin. L. Rev. 63 
(2011)).
---------------------------------------------------------------------------
    Over the last thirty years, these EOs have required 
agencies to conduct cost-benefit analyses to support new 
regulations; ensure consistency between agencies' regulations; 
and review existing regulations. The process established by the 
EOs works reasonably well, but without codification, any 
President may change the process at any time through a new 
executive order, which inherently creates uncertainty in the 
current process.
    The Committee has previously expressed several additional 
reasons to codify the principles outlined in the EOs:\38\
---------------------------------------------------------------------------
    \38\S. Rep. No. 114-342, at 2-3 (2016).

          Despite the longstanding nature of the rulemaking 
        principles outlined in the aforementioned executive 
        orders, there are two structural limitations to relying 
        solely on executive orders to guide agency rulemaking.
          The first is that despite a ``usual presumption of 
        reviewability''\39\ for executive orders, both 
        executive orders [12866 and 13563] include (nearly 
        identical) language specifically precluding judicial 
        review.\40\ This creates a situation in which agencies 
        cannot be challenged in court when failing to comply 
        with provisions of prevailing executive orders.
---------------------------------------------------------------------------
    \39\Peter Raven-Hansen, Making Agencies Follow Orders: Judicial 
Review of Agency Violations of Executive Order 12,291, 1983 Duke L. 
Rev. 285, 330 (1982).
    \40\Exec. Order No. 12866, supra note 12 (In President Clinton's 
1993 executive order, this language reads, in part: the order ``does 
not create any right or benefit, substantive or procedural, enforceable 
at law or equity by a party against the United States. . . .'').
---------------------------------------------------------------------------
          The second limitation is that these executive orders 
        have been considered to have only limited application 
        to independent regulatory agencies. For example, 
        President Obama's Executive Order 13579--a companion to 
        Executive Order 13563--notes that ``[i]ndependent 
        regulatory agencies . . . should promote'' the same 
        principles and aims of the earlier order, and that they 
        ``should comply with these provisions as well.''\41\ 
        The language notably avoids the more prescriptive 
        language of ``must'' or ``shall'' in applying the order 
        to independent agencies . . . . This means that despite 
        the fact that regulations promulgated by independent 
        regulatory agencies carry the same weight and force of 
        law as those by Executive Branch agencies, they are 
        nonetheless not subject to the same requirements. 
        Therefore it should come as no surprise that 
        independent agencies include ``the key elements of 
        cost-benefit analysis'' (as outlined in the current 
        executive order) in their published analysis less often 
        than Executive Branch agencies.\42\ A different study 
        using a different sample of rulemakings indicated that 
        no major rule issued by an independent agency in 2012 
        contained a complete cost-benefit analysis.\43\
---------------------------------------------------------------------------
    \41\Exec. Order No. 13579, supra note 22.
    \42\Exec. Order No. 12866, supra note 12.
    \43\Curtis W. Copeland, Economic Analysis and Independent 
Regulatory Agencies, Draft Rep. for the Admin. Conf. of the U.S. 87-88 
(April 30, 2013), https://www.acus.gov/sites/default/files/documents/
Copeland%20Final%20BCA%20Report%204-30-13.pdf.
---------------------------------------------------------------------------

S. 951, the Regulatory Accountability Act of 2017

    S. 951 builds on the success of the previous EOs by: (1) 
increasing stability in the regulatory process by codifying the 
longstanding rulemaking principles established under these 
executive orders; (2) increasing transparency by enhancing 
comment periods and requiring the underlying data the agency 
relied upon in its rulemaking to be posted to an online docket; 
(3) providing accountability through a public hearing process 
for major and high-impact rules, judicial review, and 
retrospective review; and (4) improving agencies' use of 
guidance documents.\44\ Moreover, S. 951 makes the application 
of these requirements uniform across agencies.
---------------------------------------------------------------------------
    \44\The American Bar Association has called for nine significant 
reforms, at least six of which are addressed by S. 951, including (1) 
codify of the requirement that an agency fully disclose data and 
studies it relies on during the rulemaking process; (2) provide for the 
systematic development of a rulemaking record for agency factual 
determinations and judicial review that is made available to the public 
online; (3) establish a minimum comment period of 60 days for major 
rules; (4) authorize new presidential administrations to delay the 
effective date of rules finalized by not yet effective at the end of 
the prior administration while the new administration reviews the 
merits of the rule; (5) promote retrospective review; and (5) allow the 
public to submit post-promulgation comments and allow for ongoing 
review of rules by the agencies. See Am. Bar Ass'n, House of Delegates 
Resolution 106B, Am. Bar. Ass'n (Feb. 8, 2016), https://
www.americanbar.org/content/dam/aba/images/abanews/2016mymres/106b.pdf.
---------------------------------------------------------------------------
    For major and high impact rules, S. 951 would require 
agencies to consider a reasonable number of alternatives for a 
new rule (with the consideration of three such alternatives 
presumed to be reasonable) and provide a cost-benefit analysis 
of both the quantitative and qualitative costs and benefits of 
those alternatives. Once the agency proposes a rule, if the 
proposed rule relies on scientific, technical, or economic 
information, the agency would have to ensure that the 
information is the best reasonably available information. S. 
951 would then set a minimum public comment period of 30 days 
for most rules and 60 days for major and high-impact rules, 
with a good-cause exception for public health and safety risks. 
Agencies would then have to adopt the most cost-effective of 
the alternatives considered, unless the agency explains why it 
took a different course of action.
    To ensure the public can easily access the information an 
agency relied upon in its rulemaking, S. 951 would require all 
of this information--including analytical information, cost-
benefit analyses, and public comments--to be posted to an 
online docket. Nothing in this title is intended to alter or 
divest copyright owners of their lawfully vested rights, or 
require copyright owners to provide access at no cost.
    S. 951 would increase accountability in the rulemaking 
process in three ways: (a) allowing public hearings to resolve 
disputed facts underlying high-impact and major rules; (b) 
providing for judicial review of agency compliance with the 
rulemaking requirements; and (c) requiring agencies to develop 
a plan for periodic review of major and high-impact rules at 
the time the agency promulgates those rules.
    Judicial review will incentivize agencies to better support 
their rules on the front-end and allow for correction of error 
after promulgation of the rules.\45\ Recognizing the economic 
significance of high-impact rules, S. 951 requires courts to 
review the factual findings supporting those rules under the 
substantial evidence standard. S. 951 also replaces the more 
deferential Auer deference\46\ with Skidmore deference,\47\ 
providing that when agencies interpret their own rules, the 
weight a reviewing court should give to that interpretation 
depends on the thoroughness evident in the agency's 
consideration of the rule, the validity of the agency's 
reasoning, and the consistency of the interpretation with 
earlier and later pronouncements. This provision will reduce 
agency incentive to write unclear regulations knowing that they 
later can interpret the regulation as they see fit.
---------------------------------------------------------------------------
    \45\Jerry Ellig, Improvements in SEC Economic Analysis Since 
Business Roundtable: A Structured Assessment, (Mercatus Ctr., Working 
Paper, 2016) (showing that following decisions by the DC Circuit 
requiring more robust economic analysis of proposed regulations, the 
quality of economic analysis at the Securities and Exchange Commission 
``improved substantially.'').
    \46\See Auer v. Robbins, 519 U.S. 452 (1997).
    \47\See Skidmore v. Swift & Co., 323 U.S. 134 (1944).
---------------------------------------------------------------------------
    Finally, reflecting occasional judicial practice,\48\ S. 
951 will grant courts the discretion to remand rules for 
further consideration while allowing the decision to stay in 
place whenever it is appropriate. Current law provides that 
reviewing courts shall ``hold unlawful and set aside'' 
deficient agency actions, findings, and conclusions.\49\ This 
amendment will clarify that courts may remand rules to agencies 
while keeping them in effect if undoing the rule entirely is 
unnecessary.
---------------------------------------------------------------------------
    \48\Stephanie J. Tatham, The Unusual Remedy of Remand Without 
Vacatur, Final Rep. for the Admin. Conf. of the U.S. 1 (January 30, 
2014) (``This remedial approach appears to have arisen relatively 
recently and as a matter of judicial instigation. Empirically, it is 
uncommon . . . . Remand without vacatur has been used to avoid severely 
disruptive consequences of vacatur.'').
    \49\5 U.S.C. Sec.  706(2).
---------------------------------------------------------------------------
    As President Obama recognized in E.O.s 13563 and 13579, 
over time, rules can become outdated and ineffective or may no 
longer be the most efficient way to accomplish their purpose. 
S. 951 expands and strengthens retrospective review 
requirements by requiring agencies to build in a plan for 
review when writing major or high-impact rules so that agencies 
will regularly assess whether rules are meeting their 
objectives.
    In 2007, OMB (under then-Director Rob Portman) issued the 
final bulletin for Agency Good Guidance Practices, which 
established ``policies and procedure for the development, 
issuance, and use of significant guidance.''\50\ S. 951 would 
codify many of those practices to ensure agencies do not use 
guidance to avoid public participation and analysis 
requirements involved in writing new legislative rules.
---------------------------------------------------------------------------
    \50\Final Bulletin for Agency Good Guidance Practices, 72 Fed. Reg. 
3432 (Jan. 25, 2007).
---------------------------------------------------------------------------
    While S. 951 primarily focuses on improving the analysis 
underlying the rules with the biggest impact on the economy, it 
also promotes measures that will improve the entire rulemaking 
process. Ultimately, S. 951 will modernize the regulatory 
process by putting in place well-established rulemaking 
principles that have contributed to better regulations over the 
past decades, such as requiring agencies to engage in 
meaningful cost-benefit analysis, consider reasonable 
alternatives, and continuously engage with the public. These 
processes will reduce unnecessary regulatory burdens while 
taking public health, safety, and environmental concerns into 
consideration. This legislation represents a long-overdue 
effort to make the regulatory process more accountable and 
effective by improving analysis, transparency, and 
accountability through commonsense reforms.

                        III. Legislative History

    Senator Rob Portman (R-OH) introduced S. 951 on April 26, 
2017, with Senators Heidi Heitkamp (D-ND), Orrin Hatch (R-UT), 
and Joe Manchin (D-WV). Senators Rand Paul (R-KY), Ron Johnson 
(R-WI), Luther Strange (R-AL), James Lankford (R-OK), and Deb 
Fischer (R-NE) later joined as cosponsors. The bill was 
referred to the Committee on Homeland Security and Governmental 
Affairs. The Committee considered S. 951 at a May 17, 2017 
business meeting.
    During the business meeting, Senator Portman offered a 
substitute amendment with clarifying language. The substitute 
amendment was adopted without objection by unanimous consent 
with Senators Johnson, McCain, Portman, Paul, Lankford, Enzi, 
Hoeven, Daines, McCaskill, Tester, Heitkamp, Peters, Hassan, 
and Harris present.
    The Committee ordered S. 951, as amended, reported 
favorably on May 17, 2017, by a roll call vote of 9 yeas to 5 
nays. Senators voting in the affirmative were Johnson, McCain, 
Portman, Paul, Lankford, Enzi, Hoeven, Daines, and Heitkamp. 
Senators voting in the negative were McCaskill, Tester, Peters, 
Hassan, and Harris. For the record only, Senator Carper 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 
``Regulatory Accountability Act of 2017.''

Section 2. Definitions

    This section defines the terms ``Guidance'', ``High-impact 
Rule'', ``Major Guidance'', ``Major Rule'', ``Office of 
Information and Regulatory Affairs,'' and ``Administrator''.

Section 3. Rulemaking

    This section describes changes to the agency rulemaking 
process. It strikes the existing subsections (b) through (e) of 
Title 5 Section 553, United States Code, and replaces them with 
new subsections (b) through (m).
    The new subsection (b) adds new ``rulemaking 
considerations'' which an agency must undertake before issuing 
a rule. These include: the rule's legal basis; identification 
of the problem to be solved by the rule; whether existing 
Federal policy contributes to that problem and if changes to 
existing Federal policy could partially solve the problem; 
identifying a reasonable number of alternatives to the rule as 
a means of addressing the problem (with the consideration of 
three such alternatives presumed to be reasonable). This also 
includes, for major or high-impact rules, a requirement to 
analyze quantitative and qualitative costs and benefits of the 
alternatives identified. In conducting this analysis, the 
agency must consider ``direct costs and benefits,'' risks that 
may be both attended to and created by the rule, and, 
``cumulative and indirect costs and benefits,'' unless 
prohibited by law.
    The new subsection (c) (``Notice of Proposed Rulemaking'') 
outlines the requirements for providing notice of the proposed 
rule to both the public and the OIRA Administrator.
    Paragraph (1) itemizes the content required to be included 
in an NPRM published in the Federal Register: information about 
rulemaking proceedings, legal authority, the proposed rule 
text, and ``summary of information . . . [about] considerations 
described in subsection (b).'' For major or high-impact rules, 
the notice must also include: ``reasoned preliminary 
explanation'' of the rule's satisfaction of statutory 
objectives and whether benefits ``justify the costs.'' It must 
also include discussion of considered alternatives including 
their costs and benefits, whether they achieve statutory 
objectives, and why they were not pursued instead of the 
proposed rule.
    Paragraph (2) requires, by the date of publication of the 
NPRM, the agency to publish in the publicly available 
rulemaking docket, all relevant information (e.g., ``studies, 
models, and scientific literature'') relied upon by the agency 
in developing the proposed rule, unless exempted under 5 U.S.C. 
552(b).
    Paragraph (3) requires that the agency use the ``best 
reasonably available scientific, technical, or economic 
information'' in justifying the proposed rule.
    Paragraph (4) requires the agency to allow an opportunity 
for public input about the proposal, except where a hearing 
procedure is required under subsection (e) or otherwise 
required under statute. This input period must be at least 90 
days for major and high-impact proposed rules, or 60 days 
otherwise.
    Paragraph (5) requires an additional 30-day public comment 
period and additional notice in the Federal Register if the 
proposed rule is reclassified as a major or high-impact rule 
after publication of the initial notice.
    Paragraph (6) prohibits, after public notice or initiation 
of rulemaking under subsection (d)(1)(B), the agency and agency 
officials from engaging in advocacy ``in support of or 
against'' the rule, appeals to others for such advocacy, or 
``publicity or propaganda.'' This prohibition also applies to 
the use of Federal funds from that agency by an outside party. 
The prohibition does not apply to communicating impartial 
information or requests for comment about the rule.
    The new subsection (d) describes the requirements on 
agencies when ``initiat[ing] a rulemaking that may result in a 
major rule or a high-impact rule.''
    Paragraph (1) describes requirements for notice, including 
creating an electronic rulemaking docket; publishing a ``notice 
of initiation of rulemaking'' in the Federal Register which 
will include description of the rule's objectives, reference to 
legal authority, invitation for suggestion of alternatives and 
potentially better approaches to achieve desired outcomes, and 
instructions for submitting such suggestions.
    Paragraph (2) states that all information collected under 
paragraph (1) must be made available in the rulemaking docket.
    Paragraph (3) clarifies that the suggestions collected 
under paragraph (1) are for the benefit of both the agency and 
the public and that the agency may respond to those 
suggestions.
    Paragraph (4) describes requirements concerning 
establishing a timetable in the electronic docket for 
completion dates for certain agency tasks. This timetable must 
include the date of completion of the comment period in 
paragraph (1). If the agency proceeds to a rulemaking, it must 
include: the dates on which the agency plans to publish an 
NPRM, the length of that comment period, and ``final completion 
date'' for agency actions. Factors the agency must consider in 
establishing the timeline include: ``size and complexity of the 
rulemaking,'' available resources, the rulemaking's national 
significance, and statutory requirements governing timing. If 
an agency fails to meet a final completion date, the agency 
must submit to Congress and the OMB Director, and publish in 
the Federal Register and the docket, a report explaining the 
reason for failure to meet the deadline and an updated 
timeline. For other established completion dates the agency 
changes, the agency must update the timeline in the docket and 
include an explanation for the change.
    Paragraph (5) outlines requirements should the agency 
choose to not pursue a major or high-impact rule after 
publishing a notice of initiation of rulemaking. After 
consulting with the Administrator of OIRA, the agency must 
``publish a notice of determination of other agency course'' 
which describes the alternative agency course. If the new 
agency course is to propose a rule (other than a major or high-
impact rule), the agency must proceed with the requirements in 
subsection (c).
    The new subsection (e) describes the use of a ``public 
hearing for high-impact rules and certain major rules.''
    Subparagraph (1)(A) describes the petition process for such 
hearings. During the comment period for proposed major or high-
impact rules, a party can petition the agency for a public 
hearing.
    Subparagraph (1)(B) applies to high-impact rules. The 
agency must grant the petition within 30 days if the petition: 
raises a ``genuinely disputed'' factual issue(s) on which the 
rule is based and shows that those issues are likely to affect 
the rule's benefits and costs or achievement of purpose. For a 
rule that an agency must reissue not less frequently than once 
every three years, a petition also must show that the 
petitioner could not have raised the disputed factual issues 
during the preceding five years. An agency can deny a petition 
if the agency finds that: (1) the petition does not demonstrate 
a genuine dispute of fact; (2) for rules that must be re-
written at least every three years, the petitioner could have 
raised the same issues within the past five years; or (3) the 
factual issues raised will not have an effect on benefits and 
costs or achievement of purpose. If the agency denies the 
petition, it must include the petition as well as an 
explanation of why it denied the petition in the rulemaking 
record.
    Under subparagraph (1)(C), a petition for a public hearing 
on a major rule must occur in the same timeframe and include 
the same criteria as that for high-impact rules. The agency may 
deny the petition if it would lead to ``unreasonable delay'' or 
otherwise not ``advance consideration'' of the rule, or, for 
rules that must be issued not less frequently than once every 
three years, the petitioner had the opportunity to raise the 
same issue within the previous five years. The petition will be 
included in the rulemaking record.
    Paragraph (2) requires the agency to provide notice of the 
hearing, the rule at issue, and issues to be considered in the 
Federal Register at least 45 days in advance.
    Paragraph (3) describes required elements of the hearing, 
which must be limited to the resolution of issues raised and 
any other issues the agency believes will further development 
of the rule. With respect to such a hearing, the burden of 
proof falls on the rule's proponent; ``any documentary or oral 
evidence may be received'' except where immaterial or 
repetitious; the agency adopts the rules concerning who 
presides over the hearing proceedings, and the manner in which 
parties present evidence and cross-examine opposing parties, 
and whether it is appropriate to combine multiple hearings.
    Paragraph (4) stipulates that judicial review is not 
precluded for issues that were not raised in a petition under 
this subsection. Additionally there is not judicial review 
regarding agency disposition of a petition until review of the 
final agency action.
    The new subsection (f) establishes new analytical 
requirements for issuing final rules.
    Paragraph (1) requires that for major or high-impact rules, 
the agency adopt the most ``cost-effective'' rule from among 
the alternatives considered that achieves ``relevant statutory 
objectives.'' A more costly rule may be adopted only where the 
higher cost is justified by additional benefits, these benefits 
and associated additional costs are made explicit, and the 
agency explains the decision to adopt a more costly rule.
    Under paragraph (2), final rules must be accompanied by the 
publication of a notice in the Federal Register, which contains 
a short explanation of the rule, reasoning for determinations 
required under subsection (b), and responses to significant 
issues raised in comments. For major or high-impact rules, the 
notice must also include justification for: the rule's costs 
and achievement of objectives; why no considered alternative 
would have been more cost-effective; or adoption of a more 
costly rule.
    Under paragraph (3), a final rule dependent on scientific, 
technical, or economic information shall be based on ``the 
based reasonably available'' information.
    Under paragraph (4), by the time the agency issues the 
final rule, it must make available through the docket any 
technical information used as the basis of its determination in 
the rulemaking, except where exempted from disclosure under 
section 552(b).
    Paragraph (5) allows an incoming administration to postpone 
the effective date for up to 90 days for any final rules that 
have not yet become effective by inauguration day. An agency 
can choose such a delay to gather additional public comment, 
for at least 30 days, on whether to amend, rescind, or further 
postpone the effective date of the rule.
    The new subsection (g) stipulates that when an agency is 
required to follow or comply with specific procedural or 
analytical requirements under another law other than those 
required under S. 951, the specific requirements of the other 
law apply and the requirements under S. 951 do not.
    Paragraph (1) states that, with respect to rulemaking 
considerations, if the requirements under section 553 are 
inconsistent or conflict with another Federal law, the other 
Federal law will apply to the agency. Similarly, if the 
rulemaking procedures required under section 553 are 
duplicative or conflicting with another Federal law, the other 
Federal law will apply to the agency.
    Paragraph (2) states that section 553 does not apply to 
agency guidance or internal agency rules.
    Paragraph (3) permits agencies to proceed to a final rule 
without meeting the requirements of subsections (c) through (e) 
or (f)(2)(B) if they make a finding of good cause, which they 
must include along with a justification, in the final rule. If 
the agency makes such a finding for a direct final rule, it 
must provide a minimum 30-day comment period, and publish the 
rule in the Federal Register along with the effective date. If 
the agency receives ``significant adverse comments,'' the 
agency must then withdraw the rule and proceed under the 
requirements in subsections (c) through (f). The agency may 
avoid these requirements if it determines compliance would not 
expedite the rulemaking. If an agency finds good cause that 
compliance with subsections (c) through (e) and (f)(2)(B) ``is 
impracticable or contrary to the public interest'' with respect 
to an interim final rule, it must publish the rule in the 
Federal Register with a request for comment. Within six months, 
the agency must withdraw the rule, proceed with rulemaking 
under subsections (c) through (f), or adopt a final rule. 
Failure to undertake one of those actions results in nullifying 
the rule. This section does not apply to monetary policy rules 
or guidance.
    New subsection (h) requires a direct or interim final as 
described in subsection (g)(3) to have an effective date at 
least 30 days after publication, or 60 days for major or high-
impact rules. This delay does not apply to guidance or where an 
agency finds ``good cause.''
    New subsection (i) requires agencies to provide an 
opportunity for the public to request ``issuance, amendment, or 
repeal of a rule'' and make suggestions for retrospective 
review of rules.
    New subsection (j) requires the OIRA Administrator to issue 
guidelines to aid in the development of rules.
    Paragraph (1) describes the guidelines for assessing 
regulations' quantitative and qualitative costs, benefits, 
economic impacts, and risks. The Administrator will update 
these guidelines within every 10 years to reflect ``best 
available techniques.''
    Paragraph (2) describes the ``guidelines to promote 
coordination, simplification, and harmonization'' of rules.
    Paragraph (3) describes the guidelines ``[t]o promote 
consistency.'' Additionally, agencies must adopt policies 
governing rulemaking hearings consistent with these guidelines.
    New subsection (k) describes requirements around agencies' 
use and issuance of guidance.
    Paragraph (1) stipulates that guidance cannot ``foreclose 
consideration of issues,'' is explicitly not legally binding, 
and must be publicly available.
    To issue major guidance, paragraph (2) requires an agency 
to make the guidance understandable and compliant with relevant 
statute, and determine at least those benefits and costs 
required to be considered in a rulemaking under subsection (b). 
Additionally, the OIRA Administrator must determine that the 
guidance is reasonable, understandable, and consistent with the 
statute, and that the costs are justified by the benefits.
    Paragraph (3) requires the OIRA Administrator to issue new 
guidelines to agencies on the development of guidance such that 
it is simple, consistent, and not duplicative.
    New subsection (l) describes a retrospective review 
requirement for major and high-impact rules.
    Paragraph (1) requires agencies, starting six months after 
S. 951's enactment, to include in proposed or final rules a 
framework for future assessment of the rule's effectiveness, 
including the intended objectives of the rule, methodology to 
determine effectiveness, process to collect data, and a 
timeframe for the assessment of no more than ten years after 
the rule's effective date.
    Paragraph (2) stipulates that the agency will use the data 
collected and the methodology it included in the rule framework 
to determine whether the major rule ``is accomplishing its 
regulatory objective,'' ``has been rendered unnecessary,'' 
``needs to be modified,'' or otherwise modified to ``better 
achieve the regulatory objective while imposing a smaller 
burden.'' This paragraph also provides a procedure whereby an 
agency can use a different methodology than that outlined in 
the prior framework. It describes the requirements for 
subsequent reassessments for rules the agency determines should 
remain in effect. This includes the authority of the OIRA 
Administrator to exempt certain rules from these requirements. 
It also requires that the agency publish the results of the 
assessment, including the time frame for subsequent assessment, 
in the Federal Register within 180 days.
    Paragraph (3) delineates required oversight by the OIRA 
Administrator, including issuing guidance to agencies, 
overseeing timely compliance (including publication online and 
in the Federal Register), providing assistance in streamlining 
of major rule assessments, issuing exemptions for rules where 
assessment would be ``unnecessary, impractical, or contrary to 
the public interest,'' or issuing an extension of requirement 
deadlines in response to sufficient agency justification.
    Paragraph (4) clarifies that this subsection does not limit 
an agency's authority to ``assess or modify'' major or high-
impact rules ahead of the specified time frame.
    Paragraph (5) clarifies that this subsection does not apply 
to major or high-impact rules reviewed by the Administrator of 
OIRA prior to the bill's date of enactment, to agencies with 
existing retrospective review requirements that meet or exceed 
those in the bill, or to agencies subject to periodic 
reauthorization within ten years. It also does not apply to: 
interpretative rules; statements of policy; rules of agency 
procedure; administrative rules; or rules subject to review 
under section 12 U.S.C. Sec. 3311. For direct and interim final 
rules, the agency will publish the framework within 180 days of 
the rule's publication date.
    Paragraph (6) permits agencies to make recommendations to 
Congress for legislation to facilitate changes in a rule based 
on the assessment.
    Paragraph (7) describes the scope for judicial review of 
compliance with this subsection, which includes ``whether an 
agency published the framework for assessment'' or ``whether an 
agency completed'' the required assessment. The reviewing court 
may remand the rule to the agency to comply with the framework 
established for assessment or the requirement for the 
assessment itself. Notwithstanding a court order, the rule 
under review will take effect. The decisions and actions of the 
Administrator of OIRA will not be subject to review.

Section 4. Scope of review

    This section amends 5 U.S.C. Sec. 706 which prescribes the 
basis on which courts may review agency actions. Section 4 
allows courts the ability to remand a rule back to the agency 
without vacating it, ``when appropriate.'' It also adds that 
when reviewing a high-impact rule the court must determine 
whether the agency's factual findings ``are supported by 
substantial evidence.''
    New subsection 706(b) requires courts to consider the 
entirety of the rulemaking record or those parts cited by a 
party and ``take due account . . . of the rule of prejudicial 
error.''
    New subsection 706(c) precludes review of the rule's 
determination as a major rule if the determination that a rule 
is a major rule was made on the basis of its increase in costs 
or prices to consumers, industries, governments or geographic 
regions, or based on its significant adverse effects on 
competition, employment, investment, productivity, innovation, 
public health and safety, or the country's ability to compete 
internationally.
    New subsection 706(d) limits review of guidance that is not 
a statutory or rule interpretation to whether the agency 
complied with required procedure.
    New subsection 706(e) states that when reviewing an agency 
interpretation of its own rule, a court will give weight to 
that interpretation according to factors such as the 
thoroughness of the rule's consideration, the agency's 
reasoning, and degree of interpretive consistency.

Section 5. Added definitions

    This section cross-references the definition of 
``guidance'' and defines ``substantial evidence.''

Section 6. Application

    This section clarifies that this bill does not apply to 
rules in process or completed by date of enactment.

Section 7. Technical and conforming amendments

    This section contains changes to other laws in order to 
conform to changes in this bill.

                   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 and would impose no costs on 
state, local, or tribal governments.

             VI. Congressional Budget Office Cost Estimate

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, February 8, 2018.
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. 951, the Regulatory 
Accountability Act of 2017.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Janani 
Shankaran.
            Sincerely,
                                                Keith Hall,
                                                          Director.
    Enclosure.

S. 951--Regulatory Accountability Act of 2017

    Summary: S. 951 would amend the Administrative Procedures 
Act (APA), which governs the way that government agencies 
propose and establish federal regulations. Enacting the bill 
would codify some current practices under executive orders that 
aim at increasing transparency. However, S. 951 also would 
impose new requirements concerning agencies' issuance of rules 
that have an estimated economic effect of $100 million or more 
annually. S. 951 also would make some existing requirements 
under executive orders apply to independent regulatory agencies 
that currently are exempt from those orders.
    CBO estimates that implementing S. 951 would have a net 
cost of about $55 million over the 2018-2022 period, assuming 
appropriation of the necessary funds. That amount would pay for 
the work of additional agency personnel and contractors and 
would cover other administrative expenses.
    CBO expects that enacting S. 951 could delay the issuance 
and change the content of some final rules each year. As a 
result, CBO and the staff of the Joint Committee on Taxation 
(JCT) expect that enacting S. 951 could affect both direct 
spending and revenues. In addition, enacting the bill would 
affect direct spending of agencies that are not funded by 
annual appropriations (such as the Consumer Financial 
Protection Bureau, or CFPB). Therefore, pay-as-you-go 
procedures apply. However, given the large number of rules 
issued each year and the variations in their nature and scope, 
CBO cannot estimate whether delaying some rules or changing 
their content would result in costs or savings.
    CBO cannot determine whether enacting S. 951 would increase 
net direct spending or on-budget deficits by more than $5 
billion in any of the four consecutive 10-year periods 
beginning in 2028.
    S. 951 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA).
    Estimated Cost to the Federal Government: The estimated 
budgetary effect of S. 951 is shown in the following table. The 
costs of this legislation fall within all budget functions that 
include agencies that issue regulations.

----------------------------------------------------------------------------------------------------------------
                                                              By fiscal year, in millions of dollarsa--
                                                    ------------------------------------------------------------
                                                       2018      2019      2020      2021      2022    2018-2022
----------------------------------------------------------------------------------------------------------------
                                 INCREASES IN SPENDING SUBJECT TO APPROPRIATION
 
Estimated Authorization Level......................         0        15        15        15        15         60
Estimated Outlays..................................         0        10        15        15        15         55
----------------------------------------------------------------------------------------------------------------
\a\Enacting S. 951 also would affect direct spending and revenues, but CBO and staff of the Joint Committee on
  Taxation cannot determine the magnitude of those costs or savings.

    Basis of Estimate: For this estimate, CBO assumes that the 
legislation will be enacted before the end of 2018 and that the 
necessary amounts will be appropriated near the start of each 
fiscal year. Estimated spending is based on historical patterns 
for similar activities.

Background

    CBO is unaware of any comprehensive information on the 
current governmentwide cost of rulemaking. However, according 
to the Congressional Research Service, federal agencies issue 
between 2,500 and 4,500 final rules each year. Over the past 
five years, the Department of Health and Human Services, the 
Department of the Interior, and the Securities and Exchange 
Commission have issued the largest numbers of major rules 
(those with an estimated economic impact of $100 million or 
more per year).
    S. 951 would amend the APA to codify certain practices 
currently required under Executive Orders 12866 and 13563, 
among others. Those instructions require executive branch 
agencies to analyze the economic effects of proposed rules 
(including costs and benefits), to coordinate with the Office 
of Information and Regulatory Affairs (OIRA) during the 
rulemaking process, and to perform other activities and 
analyses related to the process. The legislation would define 
several terms, including major rule, major guidance, and high-
impact rule.
    The bill defines major rule as any rule that OIRA 
determines is likely to impose:
           An annual effect on the economy of $100 
        million or more, adjusted for inflation;
           A major increase in costs or prices for 
        consumers, individual industries, federal, state, 
        local, or tribal government agencies or geographic 
        regions; or
           Significant adverse effects on competition, 
        employment, investment, or productivity innovation or 
        on the ability of U.S. based enterprises to compete 
        with foreign-based enterprises in domestic and export 
        markets.
    The bill defines major guidance to incorporate the same 
criteria used for a major rule, but as applied to agency 
guidance documents. A high-impact rule would be any rule that 
OIRA determines is likely to impose an annual effect on the 
economy of $1 billion or more. That threshold would be adjusted 
every five years for inflation.
    Enacting S. 951 also would add several new requirements 
that would broadly change the rulemaking process under the APA. 
For all major and high-impact rules, agencies would be required 
to:
           Publish a notice of the initiation of a 
        rulemaking;
           Establish and continuously update a 
        timetable for the rulemaking;
           Evaluate the costs and benefits of three 
        alternatives;
           Conduct risk assessments;
           Accept public comments on the proposed rule 
        for 90 days (rather than 60 days, as typically is the 
        case under executive orders and current law);
           Permit members of the public to petition the 
        rulemaking agency for a hearing on certain major and 
        high-impact rules;
           Place all information used in the adoption 
        of a final rule in a docket that is accessible to the 
        public; and
           In the notice of final rulemaking, respond 
        to significant issues raised during the public comment 
        period.
    After adoption of a final rule, agencies would be required 
to conduct ongoing assessments to determine whether a rule 
accomplishes its regulatory objectives.

Spending Subject to Appropriation

    CBO contacted several agencies to determine whether or how 
the legislation would affect rulemaking procedures and costs. 
The extent to which S. 951 would impose new requirements on 
individual agencies depends in part on whether an agency's 
rulemaking process is governed by laws beyond the APA. (For 
example, the Toxic Substances Control Act requires the 
Environmental Protection Agency to consider the costs and 
benefits of each proposed rule and to present at least one 
alternative.) Although some agencies may already be conducting 
the activities that would be required by the bill, others would 
face a larger increase in workload and higher administrative 
costs. Those costs also would depend on the number of major and 
high-impact rules an agency issues each year. CBO estimates 
that the administrative costs to comply with S. 951 would vary 
by agency. In total, CBO estimates that implementing S. 951 
would cost $15 million annually, assuming appropriation of the 
necessary funds. CBO estimates that level of effort would be 
reached in about two years.
    CBO anticipates that additional federal employees and 
contractors would be needed to undertake cost-benefit analyses, 
complete risk assessments, respond to public comments, conduct 
post-rulemaking assessments, and perform other administrative 
tasks required by the bill. Using information from several 
agencies, CBO estimates that the government would spend about 
$13 million annually to meet the bill's requirements. Of the 22 
agencies that have issued major rules over the last 5 years, 
CBO expects that half of them would need an average of 5 to 10 
additional people at an average annual cost of $150,000--or 
about $1 million annually to implement the bill. CBO estimates 
that the remaining agencies would spend less than $500,000 a 
year to implement the bill.
    By subjecting independent regulatory agencies to the 
requirements followed by executive branch agencies, the bill 
also would expand OIRA's consultation and oversight duties, 
thus requiring additional staff. Using information from OIRA, 
CBO estimates that the resulting cost to the agency would be $2 
million per year for 10 to 15 new staff.

Direct spending

    CBO expects independent regulatory agencies would face an 
increased workload associated with rulemaking. Enacting S. 951 
would affect the direct spending of several agencies not funded 
through annual appropriations; including the Federal Deposit 
Insurance Corporation, the Federal Housing Finance Agency, the 
Office of the Comptroller of the Currency, and the Office of 
Financial Research. Those agencies collect premiums and fees to 
support administrative expenses; therefore, CBO estimates that 
the net effect on spending for those agencies would be 
negligible. However, CBO estimates that implementing S. 951 
could increase direct spending by the CFPB; that spending would 
not be offset by any premiums or fees.
    CBO expects that enacting S. 951 could delay some major and 
high-impact rules from taking effect each year. Therefore, in 
assessing the budgetary effects of S. 951, CBO considered the 
costs or savings that might be realized if anticipated rules 
were delayed or modified. Delaying issuance of some major or 
high-impact rules, which would delay when they take effect, 
could result in costs; delaying others could result in savings.
    CBO expects that the rules with the largest effects on 
federal spending would be related to federal health programs, 
particularly Medicare. Such budgetary effects would largely be 
driven by delaying annual updates to payment schedules for 
providing Medicare services and other routine revisions to 
other government programs. Thus, enacting S. 951 could 
significantly affect Medicare spending relative to current law. 
However, CBO cannot estimate the magnitude of any costs or 
savings in direct spending over the 2018-2027 period from 
enacting S. 951. If delaying a Medicare rule increased or 
decreased costs by 1 percent a year, the total budgetary 
effects could be tens of billions of dollars over the 2018-2027 
period.

Revenues

    CBO expects that under S. 951, the Federal Reserve could 
incur additional administrative costs to conduct some types of 
rulemaking, although any rulemaking by the Federal Reserve 
concerning monetary policy would be exempt. Such costs are 
treated as reductions in remittances to the Treasury, which are 
recorded in the budget as reductions in revenues.
    CBO expects that enacting the bill also would affect 
revenues by changing the way that the Internal Revenue Service 
issues guidance and by slowing rulemaking generally. JCT 
expects that those delays would reduce revenue collections in 
some cases and increase them in others. However, JCT cannot 
estimate the magnitude of any costs or savings from those 
possible effects.
    Pay-As-You-Go considerations: The Statutory Pay-As-You-Go 
Act of 2010 establishes budget-reporting and enforcement 
procedures for legislation affecting direct spending or 
revenues. Pay-as-you-go procedures apply to S. 951 because 
enacting the legislation would affect direct spending and 
revenues. However, CBO and JCT cannot determine the size of the 
costs or savings associated with those effects.
    Increase in long-term direct spending and deficits: CBO 
cannot determine whether enacting S. 951 would increase net 
direct spending or on-budget deficits by more than $5 billion 
in any of the four consecutive 10-year periods beginning in 
2028.
    Mandates: CBO expects that S. 951 would impose no 
intergovernmental or private-sector mandates as defined in 
UMRA. By potentially delaying federal rules, the bill could 
affect public or private entities in other ways, for example, 
by slowing reimbursements or delaying the implementation of 
regulatory requirements. The costs and savings associated with 
such effects could be significant, but CBO has no basis for 
estimating them because CBO cannot predict the number or nature 
of regulations that could be delayed.
    Estimate prepared by: Federal Costs: Janani Shankaran (for 
federal agencies) and Nathaniel Frentz (for the Federal 
Reserve); Mandates: Zachary Byrum.
    Estimate approved by: H. Samuel Papenfuss, Deputy Assistant 
Director for Budget Analysis.

                          VII. Minority Views

MINORITY VIEWS OF SENATORS CLAIRE McCASKILL, THOMAS CARPER, AND GARY C. 
                                 PETERS

    While the regulatory process is complicated and some 
reforms could improve the efficacy of the process, we do not 
believe the Regulatory Accountability Act (S. 951, RAA) would 
lead to an improved regulatory process. Instead, this bill is 
likely to open the process to questionable science, lead to 
more court challenges, and slow down agency rulemaking--which 
can already take a decade or longer for major rules--creating 
greater uncertainty in regulated communities and undermining 
public health and safety standards.
S. 951 Would Lead to a Significant Increase in Litigation and Delay
    Ensuring stakeholder input and thorough, in-depth analysis 
to improve regulatory outcomes are shared goals. However, we 
are concerned that this bill does not actually meet those 
goals. Proponents of RAA argue that the bill would actually 
reduce the amount of litigation over federal regulations and 
the time it takes to issue final rules by allowing for more 
collaboration with stakeholders earlier in the process. We 
disagree with that assessment. This bill would lead to 
additional litigation and delay the implementation of important 
regulations, many of which are intended to protect the health 
and safety of our citizens.
    The RAA would establish new regulatory requirements and 
codify and expand many of the principles found in existing, 
widely-supported executive orders that guide executive agency 
rulemaking.\1\ In doing so, this bill goes well beyond the 
intent of these executive actions. Since Executive Order (E.O.) 
12291 was issued by President Reagan, each subsequent executive 
order related to the regulatory process has specifically 
precluded judicial review of agency compliance with the 
principles laid out in the executive orders, stating or 
upholding the view that the executive order was ``intended only 
to improve the internal management of the Federal government, 
and is not intended to create any right or benefit, substantive 
or procedural, enforceable at law by a party against the United 
States, its agencies, its officers or any person.''\2\
---------------------------------------------------------------------------
    \1\Exec. Order No. 12291, 46 Fed. Reg. 13193 (Feb. 19, 1981); Exec. 
Order No. 12866, 58 Fed. Reg. 51,735 (Oct. 4, 1993); Exec. Order No. 
13563, 76 Fed. Reg. 3,821 (Jan. 21, 2011).
    \2\Exec. Order. No. 12291, Sec. 9 (See also E.O. 12866, Sec. 10; 
E.O. 13563, Sec. 7(d)).
---------------------------------------------------------------------------
    The committee report correctly points out that without 
codification, any future president ``may change the process at 
any time through a new executive order.''\3\ However, 
administrations from both parties have continued these 
requirements, and have not felt the need to advocate for 
codifying them since they were first adopted by the Reagan 
Administration in the 1980s.\4\ Howard Shelanski, the 
Administrator of the Office of Information and Regulatory 
Affairs (OIRA) at the Office of Management and Budget at the 
end of President Obama's second term, testified in 2015 that he 
does not believe codification is necessary, saying ``[w]e at 
OIRA think that we have the tools that we need under the 
Executive Orders to achieve what we need to achieve.''\5\ He 
further stated that, ``the Executive Orders are on very solid 
ground having stayed firm and really only been reaffirmed 
across Administrations of both parties.''\6\ Should a future 
president repeal E.O. 12866 and forbid any agency of the 
Executive Branch from conducting cost benefit analysis, then 
legislation would be the appropriate remedy. However, barring 
such a drastic move, which no president has suggested doing, 
the drawbacks of codification outweigh their potential 
benefits.
---------------------------------------------------------------------------
    \3\See supra.
    \4\Id.
    \5\Senate Committee on Homeland Security and Governmental Affairs, 
Subcommittee on Regulatory Affairs and Federal Management, Testimony of 
Howard Shelanski, hearing on Reviewing the Office of Information and 
Regulatory Affairs' Role in the Regulatory Process, 114th Cong. (July 
16, 2015) (S. Hrg. 114-84).
    \6\Id.
---------------------------------------------------------------------------
    While, as the committee report notes, former OIRA 
Administrator Sally Katzen supports the use of cost benefit 
analysis as one public policy making tool, it should be noted 
that she is not in support of codifying regulatory procedural 
requirements. In fact, she specifically testified against 
codification before this committee in February 2015, in part 
due to the concern that courts would struggle to determine the 
sufficiency of agencies' efforts to meet the requirements, 
saying, ``casting [the executive orders] in statute only 
compounds the problems'' because of a lack of agency resources 
and because these requirements would be hard to review, ``. . . 
like qualifying costs, what does that mean and how would 
somebody say that is sufficient?''\7\
---------------------------------------------------------------------------
    \7\Senate Committee on Homeland Security and Government Affairs 
Committee, Testimony of Sally Katzen, Towards a 21st Century Regulatory 
System, 114th Cong. (February 25, 2015) (S. Hrg. 114-418).
---------------------------------------------------------------------------
    The committee has previously considered codifying these 
executive orders\8\ and many of the same concerns raised in the 
additional views\9\ of that report remain our primary concerns 
with codifying these regulatory requirements:
---------------------------------------------------------------------------
    \8\S.1818, 114th Cong. (2015).
    \9\S. Rep. No. 114-342, at 8-12 (2016).

          ``While there has been strong bipartisan support for 
        the principles in the Executive Orders that guide 
        agency rulemakings through multiple administrations 
        since at least the 1980s, codifying these principles 
        raises a number of significant concerns and could 
        significantly slow down the already slow regulatory 
        process. First, this bill would make these principles 
        legal requirements, subjecting each step of the process 
        to judicial review, taking away agency flexibility, and 
        overriding provisions of certain health, safety, and 
        environmental laws that exempt regulations authorized 
        by those laws from some of these requirements. In 
        addition, this bill would extend these requirements to 
        the independent agencies that often have their own 
        statutory requirements.''\10\
---------------------------------------------------------------------------
    \10\Id.

    This additional opportunity for judicial review is 
problematic for a number of reasons, and we believe it would 
have significant consequences. The regulatory process is 
designed to produce regulations backed by sound, evidence-based 
science and allow for robust stakeholder input. When regulated 
industries disagree with the result, the current process also 
allows stakeholders to challenge the rules in court. The system 
is not intended to give the largest corporations with the most 
highly-paid lawyers an opportunity to endlessly delay the 
finalization of federal rules. However, the current regulatory 
process is already stagnating to the point that some rules are 
taking multiple administrations.
    A 2012 GAO review of significant health and safety 
standards found that the average time it took to finalize rules 
increased from six years and ten months in the 1980s to nine 
years and ten months in the 1990s.\11\ That timing fell back to 
seven years and seven months in the 2000s, but to do so, 
agencies reduced the number of standards issued by more than 
half.\12\
---------------------------------------------------------------------------
    \11\Marc Allen Eisner, Regulatory Politics in an Age of 
Polarization and Drift: Beyond Deregulation (2017).
    \12\Id.
---------------------------------------------------------------------------
    While some of the requirements in S. 951 could arguably 
improve transparency and public participation in the rulemaking 
process, other requirements, in the name of greater public 
participation and agency analysis, would certainly result in a 
far slower rulemaking process and would have the practical 
effect of deterring agencies from pursuing justifiable and 
necessary rulemakings due to resource constraints.
    One of the more concerning aspects of the bill is the 
creation of quasi-judicial, adversarial hearings to resolve 
``complex factual issues that are genuinely disputed.''\13\ 
These hearings would significantly slow the regulatory process 
and tilt it in favor of large special interests with the 
resources to petition and participate in such an open-ended 
process. It would allow corporations to endlessly dispute 
agency findings with no minimum standards or burdens to 
demonstrate a genuine factual dispute. This process alone could 
add years to the finalization of every major regulation, 
diluting the input of the general public at large.
---------------------------------------------------------------------------
    \13\S. 951, Section 2, new 5 Sec. U.S.C. 553(e).
---------------------------------------------------------------------------
    The bill also opens the door to putting established science 
on trial. The term ``factual issues that are genuinely 
disputed'' is left undefined in the bill,\14\ potentially 
opening the door to attack virtually every agency 
determination. Widely-held accepted scientific principles, such 
as evolution, for example, could come under attack simply 
because, according to one survey, 34% of Americans reject 
evolution entirely.\15\ Regulations related to vaccines could 
be disputed because, according to one survey, 12% of Americans 
believes that the benefits of vaccinations are not outweighed 
by the risks.\16\
---------------------------------------------------------------------------
    \14\Id.
    \15\Religious Landscape Study, Pew Research Center (2015) 
(www.pewforum.org/2015/11/03/chapter-4-social-and-political-attitudes/
).
    \16\Pew Research Center, Vast Majority of Americans Say Benefits of 
Childhood Vaccines Outweigh Risks (Feb. 2, 2017) (www.pewinternet.org/
2017/02/02/vast-majority-of-americans-say-benefits-of-childhood-
vaccines-outweigh-risks/).
---------------------------------------------------------------------------
    Such arguments could then be litigated as part of the 
judicial review of the final rule and those who wish to 
disagree with widely accepted facts could use evidence of those 
disagreements to delay or even stop a regulation from going 
into effect. Chemical manufacturers could endlessly fight the 
toxicity of new chemicals, and pharmaceutical manufacturers 
could use this language to endlessly delay additional 
regulations of opioids.
    In addition, this bill would turn back the standard of 
deference given to agency decision-making, shifting from the 
more deferential Seminole RockAuer deference\17\ to Skidmore 
deference.\18\ Instead of giving agencies deference absent 
``plainly erroneous or inconsistent'' action by the agency,\19\ 
as was the holding in Auer, Skidmore, deference applies a more 
subjective standard based on ``the thoroughness evident in [the 
agency's] consideration, the validity of its reason, and its 
consistency with earlier and later pronouncements.''\20\ This 
shift to a less deferential standard of review will allow 
generalist judges to intervene and use their judgement over 
that of agency technical experts.
---------------------------------------------------------------------------
    \17\Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945); Auer 
v. Robbins, 519 U.S. 452 (1997).
    \18\Skidmore v. Swift & Co., 323 U.S. 134 (1944).
    \19\Auer at 461.
    \20\Skidmore at 140.
---------------------------------------------------------------------------
    Creating a less deferential standard for courts to apply to 
agency rulemaking incentivizes additional lawsuits against 
agencies because there is a higher likelihood of success. It is 
therefore likely that this change will increase litigation over 
federal rules, further delaying their implementation and 
raising the likelihood that agency decisions will be 
overturned. When agency rules are delayed for years, businesses 
are left with significant uncertainty knowing that a new 
regulation has been written, but unsure when and if it will be 
implemented. If more and more of these rules are eventually 
overturned, that is time and money wasted by these companies 
waiting and preparing for a rule that is never implemented. In 
other words, increased second-guessing of agency decision-
making that is based on technical expertise would result in 
more uncertainty and instability, not less.
    We are also concerned that the language in the bill 
requiring an agency to choose the most ``cost-effective'' 
alternative when issuing a final ``major'' or ``high-impact'' 
rule will paralyze agencies and prevent implementation of final 
rules.\21\ The appropriate balance between costs and 
effectiveness is inherently subjective. For example, requiring 
hard hats at construction sites is more costly than posting 
``warning'' signs about the dangers of the site, but it likely 
saves more lives.
---------------------------------------------------------------------------
    \21\S. 951, Section 2, new 5 U.S.C. Sec. 553(f).
---------------------------------------------------------------------------
    Although requirements like ``most cost-effective'' and 
``least burdensome'' may sound practical, when statutes utilize 
absolutist language like that, courts are required to interpret 
the requirement literally, resulting in endless litigation and 
an inability to issue final rules protecting Americans' health 
and safety. That is what happened with the ``least burdensome'' 
standard in the Toxic Substances Control Act, which prevented 
the regulation of toxic chemicals and known carcinogens like 
asbestos under the Toxic Substances Control Act for decades, 
finally forcing broad bipartisan majorities to recognize the 
futility of this requirement and act to change the law in a 
rare bipartisan moment.\22\
---------------------------------------------------------------------------
    \22\Corrosion Proof Fittings v. EPA, 947 F. 2d 1201 (1991).
---------------------------------------------------------------------------
    Agencies already face considerable pressure to select the 
least expensive and most effective option that meets the goals 
of the law and the administration when issuing regulations. 
Including such rigid requirements in statute makes their 
regulatory function virtually impossible to accomplish.
    As we have noted, the principle of using cost-benefit 
analysis to inform the development of public policy is both 
commonsense and has been shown by administrations of both 
parties to be beneficial over the last 40 years. However not 
all public policy and regulation can be reduced to dollars and 
cents and weighed against each other. Public policy and the 
statutes and regulations that implement those policies are also 
an expression of the values of the American people as reflected 
by government action.
    For example, in 2012, the Department of Justice (DOJ) 
completed cost-benefit analyses as it wrote rules to implement 
the Prison Rape Elimination Act.\23\ The absurdity of the DOJ 
developing monetary values for avoiding 17 different types of 
sexual assault is clear in hindsight. However, it was 
apparently not clear to DOJ when as they went through the long 
process to implement rules, which at its core, was about human 
dignity and not monetary concerns. As noted by Georgetown Law 
Professor Lisa Heinzerling in her analysis of this rulemaking, 
``[i]n its 168-page Regulatory Impact Analysis, DOJ treats the 
reader to a labored, distasteful, and gratuitous essay on the 
economics of rape and sexual abuse.''\24\
---------------------------------------------------------------------------
    \23\Prison Rape Elimination Act, Pub. L. No. 108-79 (2003).
    \24\Lisa Heinzerling, Cost-Benefit Jumps the Shark, Georgetown Law 
Faculty (blog) (June 13, 2012) (www.gulcfac.typepad.com/
georgetown_university_law/2012/06/cost-benefit-jumps-the-shark.html).
---------------------------------------------------------------------------
    While the current system does provide some flexibility to 
forgo cost-benefit analysis when warranted, agencies are 
already hesitant to use that flexibility. In the case of DOJ's 
Prison Rape Elimination Act regulations, even though the 
Administration likely had the flexibility to determine that a 
cost-benefit analysis was not appropriate, it chose not to use 
it. One can only imagine the number of equally ridiculous and 
inappropriate cost-benefit analyses that would take place if 
agencies are further constrained from exercising discretionary 
judgement.
    As much as we would like the government to function like a 
machine, we must recognize that reasonable human judgement must 
be part of the rulemaking process. This means that there are 
limits to when the use of cost-benefit analysis is appropriate 
and codifying and expanding these principles, turning them into 
judicially reviewable requirements with no flexibility would 
result in actions that do not pass the commonsense test that is 
needed for regulatory actions.

S. 951 Would Override Current Statutes and Impose a Supermandate on 
        Agencies

    A number of health, safety and environmental statutes 
specifically bar agencies from undertaking certain 
considerations or specifically provide the decision-making 
criteria that the agency should use in rulemakings. However, 
this bill seems to require agencies to adhere to its 
requirements for all regulations, regardless of the original 
intent of the authorizing statutes, overturning the clear 
congressional intent of many statutes.
    Instead of Congress taking up and amending how the Clean 
Air Act, the Packers and Stockyards Act or the 
Telecommunications Act work, for example, S. 951 would 
effectively change how all of those statutes function. This 
point is highlighted by the fact that S. 951 amends at least 16 
existing statutes to ensure they conform with the changes made 
by this bill, including the Consumer Product Safety Act, the 
Endangered Species Act, the Federal Hazardous Substances Act, 
the Flammable Fabrics Act, the Homeless Assistance Act, the 
Native American Programs Act, the Poison Prevention Packaging 
Act, the Poultry Products Inspection Act, the Rural 
Electrification Act, the Social Security Act, and the Toxic 
Substance Control Act.
    Therefore, while courts have found that the provisions of 
certain existing statutes specifically bar the use of cost-
benefit analysis for regulations authorized by those 
statutes,\25\ agencies would no longer be able to rely on the 
agency-specific requirements in their authorizing statutes and 
would instead be required to follow the mandatory requirements 
of this bill. The American Bar Association has criticized 
similar ``supermandates'' saying that ``[much], perhaps most, 
of the safety and health legislation now on the books would 
seemingly be displaced.''\26\ Imposing these requirements onto 
these statutes goes against the original intent of the 
legislation that created the statutes and will have a 
significant impact on agencies' ability to carry out their 
missions.
---------------------------------------------------------------------------
    \25\See, Whitman v Am. Trucking Assn's., Inc. 531 U.S. 457, 471 
(2001).
    \26\Amer. Bar Assoc. Section of Admin. L. and Reg. Practice, 
Comments on H.R. 3010, The Regulatory Accountability Act of 2011 12-13 
(2011), citing Sidney A. Shapiro & Robert L. Glicksman, Risk Regulation 
at Risk: restoring a Pragmatic Approach 32 (2003) (which surveyed 22 
health, safety, and environmental laws and found that only two contain 
a substantive cost-benefit mandate).
---------------------------------------------------------------------------

S. 951 Would Politicize Independent Regulatory Agency Rulemaking

    A major reason that Congress establishes independent 
agencies is to safeguard against political interference in 
their rulemaking process. S. 951 would extend the bill's 
regulatory requirements to the independent regulatory agencies 
that, while they may have their own statutory requirements, are 
not currently subject to the executive orders relating to the 
promulgation of regulations. It would require independent 
regulatory agencies to submit their regulatory analyses to the 
Office of Information and Regulatory Affairs (OIRA), 
unquestionably giving the White House control over the shape, 
content and timing of regulations issued by independent 
agencies. We appreciate the need to ensure thoughtful analysis 
and understand the desire for independent review of the impacts 
of a proposed rule during the regulatory process. However, we 
are concerned with the impact this would have on the regulatory 
process of independent agencies, which is intended to be 
insulated from political considerations.
    In the past, members of both parties have expressed concern 
over a president's ability to influence rulemakings at 
independent regulatory agencies. For example, in February 2016, 
the majority staff of this committee released a report alleging 
that President Obama improperly interfered with open internet 
rulemaking promulgated by the Federal Communications Commission 
(FCC). Their report concluded that, ``[p]olitics should never 
trump policy, especially not when an agency, like the FCC, was 
created for the expressed purpose of being independent and 
above the political fray.''\27\
---------------------------------------------------------------------------
    \27\Staff Report of the Majority Office of the Senate Committee on 
Homeland Security and Governmental Affairs, Regulating the Internet: 
How the White House Bowled over FCC Independence, 114th Cong. (February 
29, 2016).
---------------------------------------------------------------------------
    It is important that we do not further politicize the 
regulatory process at these independent regulatory agencies by 
giving any president of either party the ability to interfere 
with these independent rulemakings. This bill would give 
Congress' approval to political interference in the rulemaking 
at these independent regulatory agencies and provide a 
president with the ability to exert more influence on 
independent regulatory agencies, which Congress intended to be 
independent and above the political fray.

Conclusion

    The work we do here in Congress and in this committee to 
reform the regulatory process should encourage reducing burdens 
and increasing transparency, while achieving the greatest 
public benefit. It should be our goal to have the most 
efficient, effective, and transparent regulatory process 
possible, and to ensure that process results in common-sense 
regulations. We do not believe this bill would improve the 
regulatory process, and in fact, would make the process far 
less efficient and insert additional political considerations 
into the process. For these reasons, we oppose S. 951 and urge 
our colleagues to join us in opposition.

      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. 951 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) * * *

           *       *       *       *       *       *       *

          (5) [``rule making''] ``rulemaking'' means agency 
        process for formulating, amending, or repealing a rule;
          (6) ``order'' means the whole or a part of a final 
        disposition, whether affirmative, negative, injunctive, 
        or declaratory in form, of an agency in a matter other 
        than [rule making] rulemaking but including licensing;

           *       *       *       *       *       *       *

          (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) ``guidance'' means an agency statement of 
        general applicability, other than a rule, that--
                  (A) is not intended to have the force and 
                effect of law; and
                  (B) sets forth a policy on a statutory, 
                regulatory, or technical issue or an 
                interpretation of a statutory or regulatory 
                issue;
          (16) ``high-impact rule'' means any rule that the 
        Administrator determines is likely to cause an annual 
        effect on the economy of $1,000,000,000 or more, 
        adjusted once every 5 years to reflect increases in the 
        Consumer Price Index for All Urban Consumers, as 
        published by the Bureau of Labor Statistics of the 
        Department of Labor;
          (17) ``major guidance'' means guidance that the 
        Administrator finds is likely to lead to--
                  (A) an annual effect on the economy of 
                $100,000,000 or more, adjusted once every 5 
                years to reflect increases in the Consumer 
                Price Index for All Urban Consumer, as 
                published by the Bureau of Labor Statistics of 
                the Department of Labor;
                  (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 adverse effects on 
                competition, employment, investment, 
                productivity, innovation, public health and 
                safety, or the ability of United States-based 
                enterprises to compete with foreign-based 
                enterprises in domestic and export markets;
          (18) ``major rule'' means any rule that the 
        Administrator determines is likely to cause--
                  (A) an annual effect on the economy of 
                $100,000,000 or more, adjusted once every 5 
                years to reflect increases in the Consumer 
                Price Index for All Urban Consumer, as 
                published by the Bureau of Labor Statistics of 
                the Department of Labor;
                  (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 adverse effects on 
                competition, employment, investment, 
                productivity, innovation, public health and 
                safety, or the ability of United States-based 
                enterprises to compete with foreign-based 
                enterprises in domestic and export markets;
          (19) ``Office of Information and Regulatory Affairs'' 
        means the office established under section 3503 of 
        title 44 and any successor to that office; and
          (20) ``Administrator'' means the Administrator of the 
        Office of Information and Regulatory Affairs.

SEC. 552. * * *

SEC. 553. [RULE MAKING] RULEMAKING.

    [(a) This section applies] (a) Applicability.--This section 
applies, according to the provisions thereof, except to the 
extent that there is involved--
          (1) * * *
          (2) * * *
    [(b) General notice of proposed rule making shall be 
published in the Federal Register, unless persons subject 
thereto are named and either personally served or otherwise 
have actual notice thereof in accordance with law. The notice 
shall include--
          [(1) a statement of the time, place, and nature of 
        public rule making proceedings;
          [(2) reference to the legal authority under which the 
        rule is proposed; and
          [(3) either the terms or substance of the proposed 
        rule or a description of the subjects and issues 
        involved.
        [Except when notice or hearing is required by statute, 
        this subsection does not apply--
                  [(A) to interpretative rules, general 
                statements of policy, or rules of agency 
                organization, procedure, or practice; or
                  [(B) 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 impracticable, unnecessary, or 
                contrary to the public interest.
    [(c) After notice required by this section, the agency 
shall give 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. 
After consideration of the relevant matter presented, the 
agency shall incorporate in the rules adopted a concise general 
statement of their basis and purpose. When rules are required 
by statute to be made on the record after opportunity for an 
agency hearing, sections 556 and 557 of this title apply 
instead of this subsection.
    [(d) The required publication or service of a substantive 
rule shall be made not less than 30 days before its effective 
date, except--
          [(1) a substantive rule which grants or recognizes an 
        exemption or relieves a restriction;
          [(2) interpretative rules and statements of policy; 
        or
          [(3) as otherwise provided by the agency for good 
        cause found and published with the rule.
    [(e) Each agency shall give an interested person the right 
to petition for the issuance, amendment, or repeal of a rule.]
    (b) Rulemaking Considerations.--In a rulemaking, an agency 
shall consider, in addition to other applicable considerations, 
the following:
          (1) The legal authority under which a rule may be 
        proposed, including whether rulemaking is required by 
        statute or is within the discretion of the agency.
          (2) The nature and significance of the problem the 
        agency intends to address with a rule.
          (3) Whether existing Federal laws or rules have 
        created or contributed to the problem the agency may 
        address with a rule and, if so, whether those Federal 
        laws or rules could be amended or rescinded to address 
        the problem in whole or in part.
          (4) A reasonable number of alternatives for a new 
        rule that meet the statutory objective, including 
        substantial alternatives or other responses identified 
        by interested persons, with the consideration of 3 
        alternatives presumed to be reasonable.
          (5) For any major rule or high-impact rule, unless 
        prohibited by law, the potential costs and benefits 
        associated with potential alternative rules and other 
        responses considered under paragraph (4), including 
        quantitative and qualitative analyses of--
                  (A) the direct costs and benefits;
                  (B) the nature and degree of risks addressed 
                by the rule and the countervailing risks that 
                might be posed by agency actions; and
                  (C) to the extent practicable, the cumulative 
                and indirect costs and benefits.
    (c) Notice of Proposed Rulemaking.--
          (1) In general.--If an agency determines that the 
        objectives of the agency require the agency to issue a 
        rule, the agency shall notify the Administrator and 
        publish a notice of proposed rulemaking in the Federal 
        Register, which shall include--
                  (A) a statement of the time, place, and 
                nature of any public rulemaking proceedings;
                  (B) reference to the legal authority under 
                which the rule is proposed;
                  (C) the text of the proposed rule;
                  (D) a summary of information known to the 
                agency concerning the considerations described 
                in subsection (b); and
                  (E) where otherwise consistent with 
                applicable law, for any major rule or high-
                impact rule--
                          (i) a reasoned preliminary 
                        explanation regarding how--
                                  (I) the proposed rule meets 
                                the statutory objectives; and
                                  (II) the benefits of the 
                                proposed rule justify the 
                                costs; and
                          (ii) a discussion of--
                                  (I) the costs and benefits of 
                                alternatives considered by the 
                                agency under subsection (b)(4);
                                  (II) whether the alternatives 
                                considered by the agency under 
                                subsection (b)(4) meet relevant 
                                statutory objectives; and
                                  (III) the reasons why the 
                                agency did not propose an 
                                alternative considered by the 
                                agency under subsection (b)(4).
          (2) Accessibility.--
                  (A) In general.--Except as provided in 
                subparagraph (B), not later than the date on 
                which an agency publishes a notice of proposed 
                rulemaking under paragraph (1), all studies, 
                models, scientific literature, and other 
                information developed or relied upon by the 
                agency, and actions taken by the agency to 
                obtain that information, in connection with the 
                determination of the agency to propose the rule 
                that is the subject of the rulemaking shall be 
                placed in the docket for the proposed rule and 
                made accessible to the public.
                  (B) Exception.--Subparagraph (A) shall not 
                apply with respect to information that is 
                exempt from disclosure under section 552(b).
          (3) Information quality.--If an agency proposes a 
        rule that rests upon scientific, technical, or economic 
        information, the agency shall propose the rule on the 
        basis of the best reasonably available scientific, 
        technical, or economic information.
          (4) Public comment.--If an agency proposes a rule 
        that rests upon scientific, technical, or economic 
        information, the agency shall propose the rule on the 
        basis of the best reasonably available scientific, 
        technical, or economic information.
                  (A) In general.--After publishing a notice of 
                proposed rulemaking under paragraph (1), an 
                agency shall provide interested persons an 
                opportunity to participate in the rulemaking 
                through submission of written material, data, 
                views, or arguments with or without opportunity 
                for oral presentation, except that--
                          (i) if a public hearing is convened 
                        under subsection (e), reasonable 
                        opportunity for oral presentation shall 
                        be provided at the public hearing as 
                        provided in subsection (e); and
                          (ii) when, other than as provided in 
                        subsection (e), a rule is required by 
                        statute to be made on the record after 
                        opportunity for an agency hearing--
                                  (I) sections 556 and 557 
                                shall apply; and
                                  (II) the petition procedures 
                                of subsection (e) shall not 
                                apply.
                  (B) Timeline.--An agency shall provide not 
                less than 60 days, or, with respect to a 
                proposed major rule or a proposed high-impact 
                rule, not less than 90 days, for interested 
                persons to submit written material, data, 
                views, or arguments under subparagraph (A).
          (5) Change of classification after publication of 
        notice.--If, after an agency submits notification and 
        publishes the notice of proposed rulemaking required 
        under paragraph (1), a proposed rule is determined to 
        be a major rule or a high-impact rule, the agency 
        shall--
                  (A) publish a notice in the Federal Register 
                with respect to the change of the 
                classification of the rule; and
                  (B) allow interested persons an additional 
                opportunity of not less than 30 days to comment 
                on--
                          (i) the rule; and
                          (ii) the change of the classification 
                        of the rule.
          (6) Prohibition on certain communications.--
                  (A) In general.--Except as provided in 
                subparagraph (B), after an agency publishes a 
                notice of proposed rulemaking required under 
                paragraph (1), or after an agency publishes a 
                notice of initiation of rulemaking under 
                subsection (d)(1)(B), the agency, and any 
                individual acting in an official capacity on 
                behalf of the agency, may not communicate, and 
                a person who receives Federal funds from the 
                agency may not use those funds to communicate, 
                through written, oral, electronic, or other 
                means, to the public with respect to the 
                proposed rule in a manner than--
                          (i) directly advocates, in support of 
                        or against the proposed rule, for the 
                        submission of information that will 
                        form part of the record for the 
                        proposed rule;
                          (ii) appeals to the public, or 
                        solicits a third party, to undertake 
                        advocacy in support of or against the 
                        proposed rule; or
                          (iii) is directly or indirectly for 
                        the purpose of publicity or propaganda 
                        within the United States in a manner 
                        that Congress has not authorized.
                  (B) Exception.--The prohibition under 
                subparagraph (A) shall not apply to a 
                communication that requests comments on, or 
                provides information regarding, a proposed rule 
                in an impartial manner.
    (d) Initiation of Rulemaking for Major and High-Impact 
Rules.--
          (1) Notice for major and high-impact rules.--When an 
        agency determines to initiate a rulemaking that may 
        result in a major rule or high-impact rule, the agency 
        shall--
                  (A) establish an electronic docket for that 
                rulemaking, which may have a physical 
                counterpart; and
                  (B) publish a notice of initiation of 
                rulemaking in the Federal Register, which 
                shall--
                          (i) briefly describe the subject and 
                        objectives of, and the problem to be 
                        solved by, the rule;
                          (ii) reference the legal authority 
                        under which the rule would be proposed;
                          (iii) invite interested persons to 
                        propose alternatives and other ideas 
                        regarding how best to accomplish the 
                        objectives of the agency in the most 
                        effective manner; and
                          (iv) indicate how interested persons 
                        may submit written material for the 
                        docket.
          (2) Accessibility.--All information provided to the 
        agency under paragraph (1) shall be promptly placed in 
        the docket and made accessible to the public.
          (3) Applicability.--With respect to the alternatives 
        and other ideas proposed under paragraph (1)(B)(iii)--
                  (A) the alternatives and other ideas are for 
                the benefit of--
                          (i) the agency receiving the 
                        alternatives and other ideas; and
                          (ii) the public; and
                  (B) the agency receiving the alternatives and 
                other ideas may respond to the alternatives and 
                other ideas.
          (4) Timetable.--
                  (A) In general.--With respect to a rulemaking 
                for a major rule or a high-impact rule, the 
                agency proposing the rule shall establish a 
                timetable for the rulemaking that--
                          (i) includes intermediate and final 
                        completion dates for actions of the 
                        agency; and
                          (ii) shall be published in the 
                        electronic docket established under 
                        paragraph (1)(A) with respect to the 
                        rulemaking.
                  (B) Consideration of factors.--In 
                establishing the timetable required under 
                subparagraph (A), an agency shall consider 
                relevant factors, including--
                          (i) the size and complexity of the 
                        rulemaking;
                          (ii) the resources available to the 
                        agency;
                          (iii) the national significance of 
                        the rulemaking; and
                          (iv) all statutory requirements that 
                        govern the timing of the rulemaking.
                  (C) Report required.--
                          (i) In general.--An agency that fails 
                        to meet an intermediate or final 
                        completion date for an action 
                        established under subparagraph (A) 
                        shall submit to Congress and the 
                        Director of the Office of Management 
                        and Budget a report regarding why the 
                        agency failed to meet the completion 
                        date.
                          (ii) Contents; publication in Federal 
                        Register.--A report submitted under 
                        clause (i) shall--
                                  (I) include an amended 
                                timetable for the rulemaking; 
                                and
                                  (II) be published--
                                          (aa) in the Federal 
                                        Register; and
                                          (bb) in the 
                                        electronic docket 
                                        established under 
                                        paragraph (1)(A) with 
                                        respect to the 
                                        rulemaking.
          (5) Notice of determination of other agency course.--
                  (A) In general.--If after publishing the 
                notice required under paragraph (1), an agency 
                determines not to issue a major rule or a high-
                impact rule, the agency shall, after consulting 
                with the Administrator--
                          (i) publish a notice of determination 
                        of other agency course; and
                          (ii) if the agency intends to issue a 
                        rule, comply with the procedures 
                        required under subsection (c).
                  (B) Contents.--A notice of determination of 
                other agency course published under 
                subparagraph (A)(i) shall include--
                          (i) a description of the alternative 
                        response the agency has determined to 
                        adopt; and
                          (ii) if the agency intends to issue a 
                        rule, any information required under 
                        subsection (c).
    (e) Public Hearing for High-Impact Rules and Certain Major 
Rules.--
          (1) Petition for public hearing.--
                  (A) In general.-- Before the date on which 
                the comment period closes with respect to a 
                proposed high-impact rule or a proposed major 
                rule described in section 551(18)(A), an 
                interested person may petition the agency that 
                proposed the rule to hold a public hearing in 
                accordance with this subsection.
                  (B) Petition for public hearing for high-
                impact rules.--
                          (i) Granting of petition.--Not later 
                        than 30 days after the date on which an 
                        agency receives a petition submitted 
                        under subparagraph (A) with respect to 
                        a high-impact rule, the agency shall 
                        grant the petition if the petition 
                        shows that--
                                  (I) the proposed rule is 
                                based on conclusions with 
                                respect to 1 or more specific 
                                scientific, technical, 
                                economic, or other complex 
                                factual issues that are 
                                genuinely disputed;
                                  (II) with respect to a rule 
                                that the agency is required to 
                                reissue not less frequently 
                                than once every 3 years, the 
                                interested person submitting 
                                the petition could not have 
                                raised the disputed factual 
                                issues described in subclause 
                                (I) during the 5-year period 
                                preceding the date on which the 
                                petition is submitted; and
                                  (III) the resolution of the 
                                disputed factual issues 
                                described in subclause (I) 
                                would likely have an effect 
                                on--
                                          (aa) the costs and 
                                        benefits of the 
                                        proposed rule; or
                                          (bb) whether the 
                                        proposed rule achieves 
                                        the statutory purpose.
                          (ii) Denial of petition.--If an 
                        agency denies a petition submitted 
                        under clause (i) in whole or in part, 
                        the agency shall include in the 
                        rulemaking record an explanation for 
                        the denial sufficient for judicial 
                        review, including--
                                  (I) findings by the agency 
                                that--
                                          (aa) there is no 
                                        genuine dispute as to 
                                        factual issues raised 
                                        by the petition; or
                                          (bb) with respect to 
                                        a rule that the agency 
                                        is required to reissue 
                                        not less frequently 
                                        than once every 3 
                                        years, the interested 
                                        person submitting the 
                                        petition could have 
                                        raised the disputed 
                                        factual issues in the 
                                        petition during the 5-
                                        year period preceding 
                                        the date on which the 
                                        petition is submitted; 
                                        and
                                  (II) a reasoned determination 
                                by the agency that the factual 
                                issues raised by the petition, 
                                even if subject to genuine 
                                dispute and not subject to 
                                subclause (I)(bb), will not 
                                have an effect on--
                                          (aa) the costs and 
                                        benefits of the 
                                        proposed rule; or
                                          (bb) whether the 
                                        proposed rule achieves 
                                        the statutory purpose.
                          (iii) Inclusion in the record.--A 
                        petition submitted under subparagraph 
                        (A) with respect to a high-impact rule 
                        and the decision of an agency with 
                        respect to the petition shall be 
                        included in the rulemaking record.
                  (C) Petition for public hearing for certain 
                major rules.--
                          (i) In general.--In the case of a 
                        major rule described in section 
                        551(18)(A), any interested person may 
                        petition for a hearing under this 
                        subsection on the grounds and within 
                        the time limitation described in 
                        subparagraph (B)(i).
                          (ii) Agency authority to deny 
                        petition.--An agency may deny a 
                        petition submitted to the agency under 
                        clause (i) if the agency reasonably 
                        determines that--
                                  (I) a hearing--
                                          (aa) would not 
                                        advance the 
                                        consideration of the 
                                        proposed rule by the 
                                        agency; or
                                          (bb) would, in light 
                                        of the need for agency 
                                        action, unreasonably 
                                        delay completion of the 
                                        rulemaking; or
                                  (II) with respect to a rule 
                                that the agency is required to 
                                reissue not less frequently 
                                than once every 3 years, the 
                                interested person submitting 
                                the petition could have raised 
                                the disputed factual issues in 
                                the petition during the 5-year 
                                period preceding the date on 
                                which the petition is 
                                submitted.
                          (iii) Inclusion in the record.--A 
                        petition submitted under clause (i) and 
                        the decision of an agency with respect 
                        to the petition shall be included in 
                        the rulemaking record.
          (2) Notice of hearing.--Not later than 45 days before 
        the date on which a hearing is held under this 
        subsection, agency shall publish in the Federal 
        Register a notice specifying--
                  (A) the proposed rule to be considered at the 
                hearing; and
                  (B) the factual issues to be considered at 
                the hearing.
          (3) Hearing requirements.--
                  (A) Limited nature of hearing.--A hearing 
                held under this subsection shall be limited 
                to--
                          (i) the specific factual issues 
                        raised in a petition granted in whole 
                        or in part under paragraph (1); and
                          (ii) any other factual issues the 
                        resolution of which an agency, in the 
                        discretion of the agency, determines 
                        will advance consideration by the 
                        agency of the proposed rule.
                  (B) Procedures.--
                          (i) Burden of proof.--Except as 
                        otherwise provided by statute, a 
                        proponent of a rule has the burden of 
                        proof in a hearing held under this 
                        subsection.
                          (ii) Admission of evidence.--In a 
                        hearing held under this subsection, any 
                        documentary or oral evidence may be 
                        received, except that an agency, as a 
                        matter of policy, shall provide for the 
                        exclusion of immaterial or unduly 
                        repetitious evidence.
                          (iii) Adoption of rule governing 
                        hearings.--To govern a hearing held 
                        under this subsection, each agency 
                        shall adopt rules that provide for--
                                  (I) the appointment of an 
                                agency official or 
                                administrative law judge to 
                                preside at the hearing;
                                  (II) the presentation by 
                                interested parties of relevant 
                                documentary or oral evidence, 
                                unless the evidence is 
                                immaterial or unduly 
                                repetitious;
                                  (III) a reasonable and 
                                adequate opportunity for cross-
                                examination by interested 
                                parties concerning genuinely 
                                disputed factual issues raised 
                                by the petition, provided that, 
                                in the case of multiple 
                                interested parties with the 
                                same or similar interests, the 
                                agency may require the use of 
                                common counsel where common 
                                counsel may adequately 
                                represent the interests that 
                                will be significantly affected 
                                by the proposed rule; and
                                  (IV) when appropriate, and to 
                                the extent practicable, the 
                                consolidation of proceedings 
                                with respect to multiple 
                                petitions submitted under this 
                                subsection into a single 
                                hearing.
                  (C) Record of hearing.--A transcript of 
                testimony and exhibits, together with all 
                papers and requests filed in the hearing, shall 
                constitute the exclusive record for decision of 
                the factual issues addressed in a hearing held 
                under this subsection.
          (3) Judicial review.--
                  (A) In general.--Failure to petition for a 
                hearing under this subsection shall not 
                preclude review of any claim that could have 
                been raised in the hearing petition or at the 
                hearing.
                  (B) Timing of judicial review.--There shall 
                be no judicial review of the disposition of a 
                petition by an agency under this subsection 
                until judicial review of the final agency 
                action.
    (f) Final Rules.--
          (1) Effectiveness of major or high-impact rule.--
                  (A) In general.--Except as provided in 
                subparagraph (B), in a rulemaking for a major 
                rule or a high-impact rule, an agency shall 
                adopt the most cost-effective rule that--
                          (i) is considered under subsection 
                        (b)(4); and
                          (ii) meets relevant statutory 
                        objectives.
                  (B) Exception.--In a rulemaking for a major 
                rule or a high-impact rule, an agency may adopt 
                a rule that is more costly than the most cost-
                effective alternative that would achieve the 
                relevant statutory objectives only if--
                          (i) the additional benefits of the 
                        more costly rule justify the additional 
                        costs of that rule;
                          (ii) the agency specifically 
                        identifies each additional benefit 
                        described in clause (i) and the cost of 
                        each such additional benefit; and
                          (iii) the agency explains why the 
                        agency adopted a rule that is more 
                        costly than the most cost-effective 
                        alternative.
          (2) Publication of notice of final rulemaking.--When 
        an agency adopts a final rule, the agency shall publish 
        a notice of final rulemaking in the Federal Register, 
        which shall include--
                  (A) a concise, general statement of the basis 
                and purpose of the rule;
                  (B) a reasoned determination by the agency 
                regarding the considerations described in 
                subsection (b);
                  (C) a response to each significant issue 
                raised in the comments on the proposed rule; 
                and
                  (D) with respect to a major rule or a high-
                impact rule, a reasoned determination by the 
                agency that--
                          (i) the benefits of the rule advance 
                        the relevant statutory objectives and 
                        justify the costs of the rule; and
                          (ii) * * *
                                  (I) no alternative considered 
                                would achieve the relevant 
                                statutory objectives in a more 
                                cost-effective manner than the 
                                rule; or
                                  (II) the adoption by the 
                                agency of a more costly rule 
                                complies with paragraph (1)(B).
          (3) Information quality.--If an agency rulemaking 
        rests upon scientific, technical, or economic 
        information, the agency shall adopt a final rule on the 
        basis of the best reasonably available scientific, 
        technical, or economic information.
          (4) Accessibility.--
                  (A) In general.--Except as provided in 
                subparagraph (B), not later than the date on 
                which an agency publishes a notice of final 
                rulemaking under paragraph (2), all studies, 
                models, scientific literature, and other 
                information developed or relied upon by the 
                agency, and actions taken by the agency to 
                obtain that information, in connection with the 
                determination of the agency to finalize the 
                rule that is the subject of the rulemaking 
                shall be placed in the docket for the rule and 
                made accessible to the public.
                  (B) Exception.--Subparagraph (A) shall not 
                apply with respect to information that is 
                exempt from disclosure under section 552(b).
          (5) Rules adopted at the end of a presidential 
        administration.--
                  (A) In general.--During the 60-day period 
                beginning on a transitional inauguration day 
                (as defined in section 3349a), with respect to 
                any final rule that had been placed on file for 
                public inspection by the Office of the Federal 
                Register or published in the Federal Register 
                as of the date of the inauguration, but which 
                had not become effective by the date of the 
                inauguration, the agency issuing the rule may, 
                by order, delay the effective date of the rule 
                for not more than 90 days for the purpose of 
                obtaining public comment on whether--
                          (i) the rule should be amended or 
                        rescinded; or
                          (ii) the effective date of the rule 
                        should be further delayed.
                  (B) Opportunity for comment.--If an agency 
                delays the effective date of a rule under 
                subparagraph (A), the agency shall give the 
                public not less than 30 days to submit 
                comments.
    (g) Applicability.--
          (1) Primacy of certain rulemaking considerations and 
        procedures in other federal laws.--
                  (A) Considerations.--If a rulemaking is 
                authorized under a Federal law that requires an 
                agency to consider, or prohibits an agency from 
                considering, a factor in a manner that is 
                inconsistent with, or that conflicts with, the 
                requirements under this section, for the 
                purposes of this section, the requirement or 
                prohibition, as applicable, in that other 
                Federal law shall apply to the agency in the 
                rulemaking.
                  (B) Procedural requirements.--If a rulemaking 
                is authorized under a Federal law that requires 
                an agency to follow or use, or prohibits an 
                agency from following or using, a procedure in 
                a manner that is duplicative of, or that 
                conflicts with, a procedural requirement under 
                this section, for the purposes of this section, 
                the requirement or prohibition, as applicable, 
                in that other Federal law shall apply to the 
                agency in the rulemaking.
          (2) Guidance and rules of organization.--Except as 
        otherwise provided by law, this section shall not apply 
        to guidance or rules of agency organization, procedure, 
        or practice.
          (3) Exceptions for good cause.--
                  (A) Finding of good cause.--
                          (i) In general.--If an agency for 
                        good cause finds that compliance with 
                        subsection (c), (d), (e), or (f)(2)(B) 
                        before issuing a final rule is 
                        unnecessary, impracticable, or contrary 
                        to the public interest, that subsection 
                        shall not apply and the agency may 
                        issue the final rule or an interim 
                        final rule, as applicable, under 
                        subparagraph (B) or (C).
                          (ii) Incorporation of good cause 
                        finding.--If an agency makes a finding 
                        under clause (i), the agency shall 
                        include that finding and a brief 
                        statement with respect to the reasons 
                        for that finding in the final rule or 
                        interim final rule, as applicable, 
                        issued by the agency.
                  (B) Direct final rules.--
                          (i) In general.--Except as provided 
                        in clause (ii), if an agency makes a 
                        finding under subparagraph (A)(i) that 
                        compliance with subsection (c), (d), 
                        (e), or (f)(2)(B) before issuing a 
                        final rule is unnecessary, the agency 
                        shall, before issuing the final rule--
                                  (I) publish in the Federal 
                                Register the text of the final 
                                rule, the brief statement 
                                required under subparagraph 
                                (A)(ii), and a notice of 
                                opportunity for public comment;
                                  (II) establish a comment 
                                period of not less than 30 days 
                                for any interested person to 
                                submit written material, data, 
                                views, or arguments with 
                                respect to the final rule; and
                                  (III) provide notice of the 
                                date on which the rule will 
                                take effect.
                          (ii) Exception.--An agency that made 
                        a finding described in clause (i) may 
                        choose not to follow the requirements 
                        under that clause if the agency 
                        determines that following the 
                        requirements would not expedite the 
                        issuance of the final rule.
                          (iii) Adverse comments.--If an agency 
                        receives significant adverse comments 
                        with respect to a rule during the 
                        comment period established under clause 
                        (i)(II), the agency shall--
                                  (I) withdraw the notice of 
                                final rulemaking published by 
                                the agency with respect to the 
                                rule; and
                                  (II) complete rulemaking in 
                                accordance with subsections 
                                (c), (d), (e), and (f), as 
                                applicable.
                  (C) Interim final rules.--
                          (i) In general.--If an agency for 
                        good cause finds that compliance with 
                        subsection (c), (d), (e), or (f)(2)(B) 
                        before issuing a final rule is 
                        impracticable or contrary to the public 
                        interest, the agency shall issue an 
                        interim final rule by--
                                  (I) publishing the interim 
                                final rule and a request for 
                                public comment in the portion 
                                of the Federal Register 
                                relating to final rules; and
                                  (II) providing a cross-
                                reference in the portion of the 
                                Federal Register relating to 
                                proposed rules that requests 
                                public comment with respect to 
                                the rule not later than 60 days 
                                after the rule is published 
                                under subclause (I).
                          (ii) Interim period.--
                                  (I) In general.--Not later 
                                than 180 days after the date on 
                                which an agency issues an 
                                interim final rule under clause 
                                (i), the agency shall--
                                          (aa) rescind the 
                                        interim rule;
                                          (bb) initiate 
                                        rulemaking in 
                                        accordance with 
                                        subsections (c) through 
                                        (f); or
                                          (cc) take final 
                                        action to adopt a final 
                                        rule.
                                  (II) No force or effect.--If, 
                                as of the end of the 180-day 
                                period described in subclause 
                                (I), an agency fails to take an 
                                action described in item (aa), 
                                (bb), or (cc) of that 
                                subclause, the interim final 
                                rule issued by the agency shall 
                                have no force or effect.
          (4) Exemption for monetary policy.--This section 
        shall not apply to a rulemaking or to guidance that 
        concerns monetary policy proposed or implemented by the 
        Board of Governors of the Federal Reserve System or the 
        Federal Open Market Committee.
    (h) Date of Publication.--A final rule, a direct final rule 
described in subsection (g)(3)(B), or an interim final rule 
described in subsection (g)(3)(C) shall be published not later 
than 30 days (or, in the case of a major rule or a high-impact 
rule, not later than 60 days) before the effective date of the 
rule, except--
          (1) for guidance; or
          (2) as otherwise provided by an agency for good cause 
        and as published with the rule.
    (i) Right to Petition and Review of Rules.--Each agency 
shall--
          (1) give interested persons the right to petition for 
        the issuance, amendment, or repeal of a rule; and
          (2) on a continuing basis, invite interested persons 
        to submit, by electronic means, suggestions for rules 
        that warrant retrospective review and possible 
        modification or repeal.
    (j) Rulemaking Guidelines.--
          (1) Assessment of rules.--
                  (A) In general.--The Administrator shall 
                establish guidelines for the assessment, 
                including the quantitative and qualitative 
                assessment, of--
                          (i) the costs and benefits of 
                        proposed and final rules;
                          (ii) the cost-effectiveness of 
                        proposed and final rules;
                          (iii) other economic issues that are 
                        relevant to rulemaking under this 
                        section or other sections of this part; 
                        and
                          (iv) risk assessments that are 
                        relevant to rulemaking under this 
                        section and other sections of this 
                        part.
                  (B) Agency analysis of rules.--
                          (i) In general.--The rigor of the 
                        cost-benefit analysis required by the 
                        guidelines established under 
                        subparagraph (A) shall be commensurate, 
                        as determined by the Administrator, 
                        with the economic impact of a rule.
                          (ii) Risk assessment guidelines.--
                        Guidelines for a risk assessment 
                        described in subparagraph (A)(iv) shall 
                        include criteria for--
                                  (I) selecting studies and 
                                models;
                                  (II) evaluating and weighing 
                                evidence; and
                                  (III) conducting peer 
                                reviews.
                  (C) Updating guidelines.--Not less frequently 
                than once every 10 years, the Administrator 
                shall update the guidelines established under 
                subparagraph (A) to enable each agency to use 
                the best available techniques to quantify and 
                evaluate present and future benefits, costs, 
                other economic issues, and risks as objectively 
                and accurately as practicable.
          (2) Simplification of rules.--
                  (A) Issuance of guidelines.--The 
                Administrator shall issue guidelines to promote 
                coordination, simplification, and harmonization 
                of agency rules during the rulemaking process.
                  (B) Requirements.--The guidelines issued by 
                the Administrator under subparagraph (A) shall 
                advise each agency to--
                          (i) avoid rules that are inconsistent 
                        or incompatible with, or duplicative 
                        of, other regulations of the agency and 
                        those of other agencies; and
                          (ii) draft the rules of the agency to 
                        be simple and easy to understand, with 
                        the goal of minimizing the potential 
                        for uncertainty and litigation arising 
                        from the uncertainty.
          (3) Consistency in rulemaking.--
                  (A) In general.--To promote consistency in 
                rulemaking, the Administrator shall--
                          (i) issue guidelines to ensure that 
                        rulemaking conducted in whole or in 
                        part under procedures specified in 
                        provisions of law other than those 
                        under this section conform with the 
                        procedures set forth in this section to 
                        the fullest extent allowed by law; and
                          (ii) issue guidelines for the conduct 
                        of hearings under subsection (e), which 
                        shall provide a reasonable opportunity 
                        for cross-examination.
                  (B) Agency adoption of regulations.--Each 
                agency shall adopt regulations for the conduct 
                of hearings consistent with the guidelines 
                issued under this paragraph.
    (k) Agency Guidance; Procedures To Issue Major Guidance; 
Authority To Issue Guidelines for Issuance of Guidance.--
          (1) In general.--Agency guidance shall--
                  (A) not be used by an agency to foreclose 
                consideration of issues as to which the 
                guidance expresses a conclusion;
                  (B) state that the guidance is not legally 
                binding; and
                  (C) at the time the guidance is issued, or 
                upon request, be made available by the issuing 
                agency to interested persons and the public.
          (2) Procedures to issue major guidance.--Before 
        issuing any major guidance, an agency shall--
                  (A) make and document a reasoned 
                determination that--
                          (i) such guidance is understandable 
                        and complies with relevant statutory 
                        objectives and regulatory provisions; 
                        and
                          (ii) identifies the costs and 
                        benefits, including all costs and 
                        benefits to be considered during a 
                        rulemaking under subsection (b), of 
                        requiring conduct conforming to such 
                        guidance and assures that such benefits 
                        justify such costs; and
                  (B) confer with the Administrator on the 
                issuance of the major guidance to ensure that 
                the guidance--
                          (i) is reasonable;
                          (ii) is understandable;
                          (iii) is consistent with relevant 
                        statutory and regulatory provisions and 
                        requirements or practices of other 
                        agencies;
                          (iv) does not produce costs that are 
                        unjustified by the benefits of the 
                        major guidance; and
                          (v) is otherwise appropriate.
          (3) Issuance of updated guidance.--
                  (A) In general.--The Administrator shall 
                issue updated guidelines for use by agencies in 
                the issuance of guidance documents.
                  (B) Requirements.--The guidelines issued by 
                the Administrator under subparagraph (A) shall 
                advise each agency--
                          (i) not to issue guidance documents 
                        that are inconsistent or incompatible 
                        with, or duplicative of, other rules of 
                        the agency and those of other agencies;
                          (ii) to draft the guidance documents 
                        of the agency to be simple and easy to 
                        understand, with the goal of minimizing 
                        the potential for uncertainty and 
                        litigation arising from the 
                        uncertainty; and
                          (iii) how to develop and implement a 
                        strategy to ensure the proper use of 
                        guidance by the agency.
    (l) Major Rule and High-Impact Rule Frameworks.--
          (1) In general.--Beginning on the date that is 180 
        days after the date of enactment of this subsection, 
        when an agency publishes in the Federal Register--
                  (A) a proposed major rule or a proposed high-
                impact rule, the agency shall include a 
                potential framework for assessing the rule, 
                which shall include a general statement of how 
                the agency intends to measure the effectiveness 
                of the rule; or
                  (B) a final major rule or a final high-impact 
                rule, the agency shall include a framework for 
                assessing the rule under paragraph (2), which 
                shall include--
                          (i) a clear statement of the 
                        regulatory objectives of the rule, 
                        including a summary of the benefit and 
                        cost of the rule;
                          (ii) the methodology by which the 
                        agency plans to analyze the rule, 
                        including metrics by which the agency 
                        can measure--
                                  (I) the effectiveness and 
                                benefits of the rule in 
                                producing the regulatory 
                                objectives of the rule; and
                                  (II) the impacts, including 
                                any costs, of the rule on 
                                regulated and other impacted 
                                entities;
                          (iii) a plan for gathering data 
                        regarding the metrics described in 
                        clause (ii) on an ongoing basis, or at 
                        periodic times, including a method by 
                        which the agency will invite the public 
                        to participate in the review process 
                        and seek input from other agencies; and
                          (iv) a specific timeframe, as 
                        appropriate to the rule and not more 
                        than 10 years after the effective date 
                        of the rule, under which the agency 
                        shall conduct the assessment of the 
                        rule in accordance with paragraph 
                        (2)(A).
          (2) Assessment.--
                  (A) In general.--Each agency shall assess the 
                data collected under paragraph (1)(B)(iii), 
                using the methodology set forth in paragraph 
                (1)(B)(ii) or any other appropriate methodology 
                developed after the issuance of a final major 
                rule or a final high-impact rule to better 
                determine whether the regulatory objective was 
                achieved, with respect to the rule--
                          (i) to analyze how the actual 
                        benefits and costs of the rule may have 
                        varied from those anticipated at the 
                        time the rule was issued; and
                          (ii) to determine whether--
                                  (I) the rule is accomplishing 
                                the regulatory objective of the 
                                rule;
                                  (II) the rule has been 
                                rendered unnecessary, taking 
                                into consideration--
                                          (aa) changes in the 
                                        subject area affected 
                                        by the rule; and
                                          (bb) whether the rule 
                                        overlaps, duplicates, 
                                        or conflicts with--
                                                  (AA) other 
                                                rules; or
                                                  (BB) to the 
                                                extent 
                                                feasible, State 
                                                and local 
                                                government 
                                                regulations;
                                  (III) the rule needs to be 
                                modified in order to accomplish 
                                the regulatory objective; and
                                  (IV) other alternatives to 
                                the rule or modification of the 
                                rule could better achieve the 
                                regulatory objective while 
                                imposing a smaller burden on 
                                society or increase cost-
                                effectiveness, taking into 
                                consideration any cost already 
                                incurred.
                  (B) Different methodology.--If an agency uses 
                a methodology other than the methodology under 
                paragraph (1)(B)(ii) to assess data under 
                subparagraph (A), the agency shall include as 
                part of the notice required to be published 
                under subparagraph (D) an explanation of the 
                changes in circumstances that necessitated the 
                use of that other methodology.
                  (C) Subsequent assessments.--
                          (i) In general.--Except as provided 
                        in clause (ii), if, after an assessment 
                        of a major rule or a high-impact rule 
                        under subparagraph (A), an agency 
                        determines that the rule will remain in 
                        effect with or without modification, 
                        the agency shall--
                                  (I) determine a specific 
                                time, as appropriate to the 
                                rule and not more than 10 years 
                                after the date on which the 
                                agency completes the 
                                assessment, under which the 
                                agency shall conduct another 
                                assessment of the rule in 
                                accordance with subparagraph 
                                (A); and
                                  (II) if the assessment 
                                conducted under subclause (I) 
                                does not result in a repeal of 
                                the rule, periodically assess 
                                the rule in accordance with 
                                subparagraph (A) to ensure that 
                                the rule continues to meet the 
                                regulatory objective.
                          (ii) Exemption.--The Administrator 
                        may exempt an agency from conducting a 
                        subsequent assessment of a rule under 
                        clause (i) if the Administrator 
                        determines that there is a foreseeable 
                        and apparent need for the rule beyond 
                        the timeframe required under clause 
                        (i)(I).
                  (D) Publication.--Not later than 180 days 
                after the date on which an agency completes an 
                assessment of a major rule or a high-impact 
                rule under subparagraph (A), the agency shall 
                publish a notice of availability of the results 
                of the assessment in the Federal Register, 
                including the specific time for any subsequent 
                assessment of the rule under subparagraph 
                (C)(i), if applicable.
          (3) OIRA oversight.--The Administrator shall--
                  (A) issue guidance for agencies regarding the 
                development of the framework under paragraph 
                (1) and the conduct of the assessments under 
                paragraph (2)(A);
                  (B) oversee the timely compliance of agencies 
                with this subsection;
                  (C) ensure that the results of each 
                assessment conducted under paragraph (2)(A) 
                are--
                          (i) published promptly on a 
                        centralized Federal website; and
                          (ii) noticed in the Federal Register 
                        in accordance with paragraph (2)(D);
                  (D) encourage and assist agencies to 
                streamline and coordinate the assessment of 
                major rules or high-impact rules with similar 
                or related regulatory objectives;
                  (E) exempt an agency from including the 
                framework required under paragraph (1)(B) when 
                publishing a final major rule or a final high-
                impact rule if the Administrator determines 
                that compliance with paragraph (1)(B) is 
                unnecessary, impracticable, or contrary to the 
                public interest, as described in subsection 
                (g)(3)(A)(i); and
                  (F) extend the deadline specified by an 
                agency for an assessment of a major rule or a 
                high-impact rule under paragraph (1)(B)(iv) or 
                paragraph (2)(C)(i)(I) for a period of not more 
                than 90 days if the agency justifies why the 
                agency is unable to complete the assessment by 
                that deadline.
          (4) Rule of construction.--Nothing in this subsection 
        shall be construed to affect--
                  (A) the authority of an agency to assess or 
                modify a major rule or a high-impact rule of 
                the agency earlier than the end of the 
                timeframe specified for the rule under 
                paragraph (1)(B)(iv); or
                  (B) any other provision of law that requires 
                an agency to conduct retrospective reviews of 
                rules issued by the agency.
          (5) Applicability.--
                  (A) In general.--This subsection shall not 
                apply to--
                          (i) a major rule or a high-impact 
                        rule of an agency--
                                  (I) that the Administrator 
                                reviewed before the date of 
                                enactment of this subsection;
                                  (II) for which the agency is 
                                required to conduct a 
                                retrospective review under any 
                                other provision of law that 
                                meets or exceeds the 
                                requirements of this 
                                subsection, as determined by 
                                the Administrator; or
                                  (III) for which the 
                                authorizing statute is subject 
                                to periodic reauthorization by 
                                Congress not less frequently 
                                than once every 10 years;
                          (ii) interpretative rules, general 
                        statements of policy, or rules of 
                        agency organization, procedure, or 
                        practice;
                          (iii) routine and administrative 
                        rules; or
                          (iv) a rule that is reviewed under 
                        section 2222 of the Economic Growth and 
                        Regulatory Paperwork Reduction Act of 
                        1996 (12 U.S.C. 3311).
                  (B) Direct and interim final major rule or 
                high-impact rule.--In the case of a major rule 
                or a high-impact rule of an agency for which 
                the agency is not required to issue a notice of 
                proposed rulemaking in response to an emergency 
                or a statutorily imposed deadline, the agency 
                shall publish the framework required under 
                paragraph (1)(B) in the Federal Register not 
                later than 180 days after the date on which the 
                agency publishes the rule.
          (6) Recommendations to congress.--If, under an 
        assessment conducted under paragraph (2), an agency 
        determines that a major rule or a high-impact rule 
        should be modified or repealed, the agency may submit 
        to Congress recommendations for legislation to amend 
        applicable provisions of law if the agency is 
        prohibited from modifying or repealing the rule under 
        another provision of law.
          (7) Judicial review.--
                  (A) In general.--Judicial review of agency 
                compliance with this subsection is limited to 
                whether an agency--
                          (i) published the framework for 
                        assessment of a major rule or a high-
                        impact rule in accordance with 
                        paragraph (1); or
                          (ii) completed and published the 
                        required assessment of a major rule or 
                        a high-impact rule in accordance with 
                        subparagraphs (A) and (D) of paragraph 
                        (2).
                  (B) Remedy available.--In granting relief in 
                an action brought under subparagraph (A), a 
                court may only issue an order remanding the 
                major rule or the high-impact rule, as 
                applicable, to the agency to comply with 
                paragraph (1) or subparagraph (A) or (D) of 
                paragraph (2), as applicable.
                  (C) Effective date of major rule.--If, in an 
                action brought under subparagraph (A)(i), a 
                court determines that the agency did not 
                comply, the major rule or the high-impact rule, 
                as applicable, shall take effect 
                notwithstanding any order issued by the court.
                  (D) Administrator.--Any determination, 
                action, or inaction of the Administrator under 
                this subsection shall not be subject to 
                judicial review.

           *       *       *       *       *       *       *


SEC. 556. * * *

    (a) * * *

           *       *       *       *       *       *       *

    (d) Except as otherwise provided by statute, the proponent 
of a rule or order has the burden of proof. Any oral or 
documentary evidence may be received, but the agency as a 
matter of policy shall provide for the exclusion of irrelevant, 
immaterial, or unduly repetitious evidence. A sanction may not 
be imposed or rule or order issued except on consideration of 
the whole record or those parts thereof cited by a party and 
supported by and in accordance with the reliable, probative, 
and substantial evidence. The agency may, to the extent 
consistent with the interests of justice and the policy of the 
underlying statutes administered by the agency, consider a 
violation of section 557(d) of this title sufficient grounds 
for a decision adverse to a party who has knowingly committed 
such violation or knowingly caused such violation to occur. A 
party is entitled to present his case or defense by oral or 
documentary evidence, to submit rebuttal evidence, and to 
conduct such cross-examination as may be required for a full 
and true disclosure of the facts. In [rule making] rulemaking 
or determining claims for money or benefits or applications for 
initial licenses an agency may, when a party will not be 
prejudiced thereby, adopt procedures for the submission of all 
or part of the evidence in written form.

           *       *       *       *       *       *       *


SEC. 557. * * *

    (a) * * *
    (b) When the agency did not preside at the reception of the 
evidence, the presiding employee or, in cases not subject to 
section 554(d) of this title, an employee qualified to preside 
at hearings pursuant to section 556 of this title, shall 
initially decide the case unless the agency requires, either in 
specific cases or by general rule, the entire record to be 
certified to it for decision. When the presiding employee makes 
an initial decision, that decision then becomes the decision of 
the agency without further proceedings unless there is an 
appeal to, or review on motion of, the agency within time 
provided by rule. On appeal from or review of the initial 
decision, the agency has all the powers which it would have in 
making the initial decision except as it may limit the issues 
on notice or by rule. When the agency makes the decision 
without having presided at the reception of the evidence, the 
presiding employee or an employee qualified to preside at 
hearings pursuant to section 556 of this title shall first 
recommend a decision, except that in [rule making] rulemaking 
or determining applications for initial licenses--

           *       *       *       *       *       *       *


Subchapter III--Negotiated Rulemaking Procedure

           *       *       *       *       *       *       *



SEC. 562. * * *

           *       *       *       *       *       *       *


          (1) * * *

           *       *       *       *       *       *       *

          (11) ``rulemaking'' [means ``rule making'' as that 
        term is defined in section 551(5) of this title] has 
        the meaning given the term in section 551.

           *       *       *       *       *       *       *


              CHAPTER 6--ANALYSIS OF REGULATORY FUNCTIONS


SEC. 601. * * *

          (1) * * *
          (2) the term ``rule'' means any rule for which the 
        agency publishes a general notice of proposed 
        rulemaking pursuant to [section 553(b)] section 553(c) 
        of this title, or any other law, including any rule of 
        general applicability governing Federal grants to State 
        and local governments for which the agency provides an 
        opportunity for notice and public comment, except that 
        the term ``rule'' does not include a rule of particular 
        applicability relating to rates, wages, corporate or 
        financial structures or reorganizations thereof, 
        prices, facilities, appliances, services, or allowances 
        therefor or to valuations, costs or accounting, or 
        practices relating to such rates, wages, structures, 
        prices, appliances, services, or allowances;

           *       *       *       *       *       *       *


                       CHAPTER 7--JUDICIAL REVIEW


SEC. 701. APPLICATION; DEFINITIONS.

    (a) * * *
    (b) * * *
          (1) * * *
                  (A) * * *

           *       *       *       *       *       *       *

                  (H) functions conferred by sections 1738, 
                1739, 1743, and 1744 of title 12; subchapter II 
                of chapter 471 of title 49; or sections 1884, 
                1891-1902, and former section 1641(b)(2), of 
                title 50, appendix; 1 [and]
          (2) ``guidance'' has the meaning given the term in 
        section 551;
          ([2]3) ``person'', ``rule'', ``order'', ``license'', 
        ``sanction'', ``relief'', and ``agency action'' have 
        the meanings given them by section 551 of this 
        title[.]; and
          (4) ``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.

           *       *       *       *       *       *       *


SEC. 706. SCOPE OF REVIEW.

    [To the extent necessary] (a) In General.--To the extent 
necessary to decision and when presented, the reviewing court 
shall decide all relevant questions of law, interpret 
constitutional and statutory provisions, and determine the 
meaning or applicability of the terms of an agency action. The 
reviewing court shall--
          (1) compel agency action unlawfully withheld or 
        unreasonably delayed; [and]
          (2) hold unlawful and set aside, or, when 
        appropriate, remand a matter to an agency without 
        setting aside, agency action, findings, and conclusions 
        found to be--
                  (A) * * *

           *       *       *       *       *       *       *

                  (F) unwarranted by the facts to the extent 
                that the facts are subject to trial de novo by 
                the reviewing court[.]; and
          (3) with respect to the review of a high-impact rule, 
        as defined in section 551(16), determine whether the 
        factual findings of the agency issuing the rule are 
        supported by substantial evidence.
    (b) Review of Entire Record; Prejudicial Error.--In making 
a determination under subsection (a), the court shall review 
the whole record or those parts of it cited by a party, and due 
account shall be taken of the rule of prejudicial error.
    (c) Preclusion of Review.--The determination of whether a 
rule is a major rule within the meaning of subparagraphs (B) 
and (C) of section 551(18) shall not be subject to judicial 
review.
    (d) Review of Certain Guidance.--Agency guidance that does 
not interpret a statute or rule may be reviewed only under 
subsection (a)(2)(D).
    (e) Agency Interpretation of Rules.--The weight that a 
reviewing court gives an interpretation by an agency of a rule 
of that agency shall depend on the thoroughness evident in the 
consideration of the rule by the agency, the validity of the 
reasoning of the agency, and the consistency of the 
interpretation with earlier and later pronouncements.

           *       *       *       *       *       *       *


PART II--CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES

           *       *       *       *       *       *       *



CHAPTER 11--OFFICE OF PERSONNEL MANAGEMENT

           *       *       *       *       *       *       *



SEC. 1103. * * *

    (a) * * *
    (b) * * *
          (1) The Director shall publish in the Federal 
        Register general notice of any rule or regulation which 
        is proposed by the Office and the application of which 
        does not apply solely to the Office or its employees. 
        Any such notice shall include the matter required under 
        [section 553(b)(1), (2), and (3)] section 553(c) of 
        this title.

SEC. 1104 * * *

SEC. 1105. ADMINISTRATIVE PROCEDURE.

    Subject to section 1103(b) of this title, in the exercise 
of the functions assigned under this chapter, the Director 
shall be subject to [subsections (b), (c), and (d)] subsections 
(b) through (h) and (j) of section 553 of this title, 
notwithstanding subsection (a) of such section 553.

           *       *       *       *       *       *       *


TITLE 7--AGRICULTURE

           *       *       *       *       *       *       *


CHAPTER 31--RURAL ELECTRIFICATION AND TELEPHONE SERVICE

           *       *       *       *       *       *       *



                 Subchapter II--Rural Telephone Service


SEC. 927. * * *

    (a) Duties.--The Secretary and the Governor of the 
telephone bank shall--
          (1) notwithstanding section 553(a)(2) of title 5, 
        cause to be published in the Federal Register, in 
        accordance with [subsections (b) through (e)] 
        subsections (b) through (k) of section 553 of such 
        title, all rules, regulations, bulletins, and other 
        written policy standards governing the operations of 
        the telephone loan and loan guarantee programs 
        administered under this chapter other than those 
        relating to agency management and personnel;

           *       *       *       *       *       *       *


TITLE 15--COMMERCE AND TRADE

           *       *       *       *       *       *       *


                     CHAPTER 25--FLAMMABLE FABRICS


SEC. 1193. * * *

    (a) * * *

           *       *       *       *       *       *       *

    (k) Petition to Initiate Rulemaking.--The Commission shall 
grant, in whole or in part, or deny any petition under [section 
553(e)] section 553(i) of title 5 requesting the Commission to 
initiate a rulemaking, within a reasonable time after the date 
on which such petition is filed. The Commission shall state the 
reasons for granting or denying such petition. The Commission 
may not deny any such petition on the basis of a voluntary 
standard unless the voluntary standard is in existence at the 
time of the denial of the petition, the Commission has 
determined that the voluntary standard is likely to result in 
the elimination or adequate reduction of the risk of injury 
identified in the petition, and it is likely that there will be 
substantial compliance with the standard.

           *       *       *       *       *       *       *


SEC. 1203. * * *

    (a) * * *
    (b) * * *
    (c) * * *
          (1) * * *
          (2) A regulation under paragraph (1) granting an 
        exemption for a flammability standard or other 
        regulation of a State or political subdivision of a 
        State may be promulgated by the Commission only after 
        it has provided, in accordance with [section 553(b)] 
        section 553(c) of title 5, notice with respect to the 
        promulgation of the regulation and has provided 
        opportunity for the oral presentation of views 
        respecting its promulgation.

           *       *       *       *       *       *       *


CHAPTER 30--HAZARDOUS SUBSTANCES

           *       *       *       *       *       *       *



SEC. 1262. * * *

    (a) * * *

           *       *       *       *       *       *       *

    (e) Regulation of Toys and Articles Intended for Use by 
Children.--
          (1) A determination by the Commission that a toy or 
        other article intended for use by children presents an 
        electrical, mechanical, or thermal hazard shall be made 
        by regulation in accordance with the procedures 
        prescribed by section 553 [(other than clause (B) of 
        the last sentence of subsection (b) of such section) of 
        title 5] of title 5, United States Code, other than 
        subsection (g)(3) of such section unless the Commission 
        elects the procedures prescribed by subsection (e) of 
        section 371 of title 21, in which event such subsection 
        and subsections (f) and (g) of such section 371 of 
        title 21 shall apply to the making of such 
        determination. If the Commission makes such election, 
        it shall publish that fact with the proposal required 
        to be published under paragraph (1) of such subsection 
        (e).

           *       *       *       *       *       *       *

    (j) Petition to Initiate Rulemaking.--The Commission shall 
grant, in whole or in part, or deny any petition under [section 
553(e)] section 553(i) of title 5 requesting the Commission to 
initiate a rulemaking, within a reasonable time after the date 
on which such petition is filed. The Commission shall state the 
reasons for granting or denying such petition. The Commission 
may not deny any such petition on the basis of a voluntary 
standard unless the voluntary standard is in existence at the 
time of the denial of the petition, the Commission has 
determined that the voluntary standard is likely to result in 
the elimination or adequate reduction of the risk of injury 
identified in the petition, and it is likely that there will be 
substantial compliance with the standard.

           *       *       *       *       *       *       *


 CHAPTER 39A--SPECIAL PACKAGING OF HOUSEHOLD SUBSTANCES FOR PROTECTION 
OF CHILDREN

           *       *       *       *       *       *       *



SEC. 1474. * * *

    (a) Rule Making Procedure; Election and Application of 
Procedure Under Section 371 of Title 21; Publication of 
Election and Proposal.--Proceedings to issue, amend, or repeal 
a regulation prescribing a standard under section 1472 of this 
title shall be conducted in accordance with the procedures 
prescribed by section 553 ([other than paragraph (3)(B) of the 
last sentence of subsection (b) of such section] other than 
subsection (g)(3) of such section) of title 5 unless the 
Commission elects the procedures prescribed by subsection (e) 
of section 371 of title 21, in which event such subsection and 
subsections (f) and (g) of such section 371 shall apply to such 
proceedings. If the Commission makes such election, it shall 
publish that fact with the proposal required to be published 
under paragraph (1) of such subsection (e).

           *       *       *       *       *       *       *


SEC. 1476. * * *

    (a) * * *
    (b) * * *
    (c) * * *
          (1) * * *
          (2) A regulation under paragraph (1) granting an 
        exemption for a standard or requirement of a State or 
        political subdivision of a State may be promulgated by 
        the Commission only after it has provided, in 
        accordance with [section 553(b)] section 553(c) of 
        title 5 notice with respect to the promulgation of the 
        regulation and has provided opportunity for the oral 
        presentation of views respecting its promulgation.

           *       *       *       *       *       *       *


CHAPTER 47--CONSUMER PRODUCT SAFETY

           *       *       *       *       *       *       *



SEC. 2058. * * *

    (a) * * *

           *       *       *       *       *       *       *

    (i) Petition to Initiate Rulemaking.--The Commission shall 
grant, in whole or in part, or deny any petition under [section 
553(e)] section 553(i) of title 5 requesting the Commission to 
initiate a rulemaking, within a reasonable time after the date 
on which such petition is filed. The Commission shall state the 
reasons for granting or denying such petition. The Commission 
may not deny any such petition on the basis of a voluntary 
standard unless the voluntary standard is in existence at the 
time of the denial of the petition, the Commission has 
determined that the voluntary standard is likely to result in 
the elimination or adequate reduction of the risk of injury 
identified in the petition, and it is likely that there will be 
substantial compliance with the standard.

           *       *       *       *       *       *       *


CHAPTER 53--TOXIC SUBSTANCES CONTROL

           *       *       *       *       *       *       *



SUBCHAPTER I--CONTROL OF TOXIC SUBSTANCES

           *       *       *       *       *       *       *



SEC. 2618. * * *

    (a) * * *
    (b) * * *
    (c) Standard of Review.--
          (1) * * *
                  (A) Upon the filing of a petition under 
                subsection (a)(1) for judicial review of a rule 
                or order, the court shall have jurisdiction (i) 
                to grant appropriate relief, including interim 
                relief, as provided in chapter 7 of title 5, 
                and (ii) except as otherwise provided in 
                subparagraph (B), to review such rule or order 
                in accordance with chapter 7 of title 5.
                  (B) * * *
                          (i) * * *
                          (ii) the court may not review the 
                        contents and adequacy of any statement 
                        of basis and purpose required by 
                        section [553(c) of title 5] section 
                        553(f)(2) to be incorporated in the 
                        rule or order, except as part of the 
                        record, taken as a whole.

           *       *       *       *       *       *       *


CHAPTER 60--NATURAL GAS POLICY

           *       *       *       *       *       *       *



SEC. 3412. * * *

    (a) * * *
    (b) Opportunity for Oral Presentations.--To the maximum 
extent practicable, an opportunity for oral presentation of 
data, views, and arguments shall be afforded with respect to 
any proposed rule or order described in subsection (a) (other 
than an order under section 3361, 3362, or 3363 of this title). 
To the maximum extent practicable, such opportunity shall be 
afforded before the effective date of such rule or order. Such 
opportunity shall be afforded no later than 30 days after such 
date in the case of a waiver of the entire comment period under 
[section 553(d)(3)] section 553(h)(2) of title 5, and no later 
than 45 days after such date in all other cases. A transcript 
shall be made of any such oral presentation.

           *       *       *       *       *       *       *


TITLE 16--CONSERVATION

           *       *       *       *       *       *       *


CHAPTER 31--MARINE MAMMAL PROTECTION

           *       *       *       *       *       *       *



SEC. 1379. * * *

    (a) * * *

           *       *       *       *       *       *       *

    (d) * * *
          (1) * * *
          (2) If the State agency requests the Secretary to 
        regulate the taking of a species to which paragraph (1) 
        applies within the zone described in section 
        1362(14)(B) 1 of this title for subsistence uses or for 
        hunting, or both, in a manner consistent with the 
        regulation by the State agency of such taking within 
        the State, the Secretary shall adopt, and enforce 
        within such zone, such of the State agency's regulatory 
        provisions as the Secretary considers to be consistent 
        with his administration of section 1371(a) of this 
        title within such zone. The Secretary shall adopt such 
        provisions through the issuance of regulations under 
        section 553 of title 5, and with respect to such 
        issuance the Regulatory Flexibility Act [5 U.S.C. 601 
        et seq.], the Paperwork Reduction Act, Executive Order 
        Numbered 12291, dated February 17, 1981, and the 
        thirty-day notice requirement in [subsection (d) of 
        such section 553] subsection (h) of such section 553 
        shall not apply. For purposes of sections 1375, 1376, 
        and 1377 of this title, such regulations shall be 
        treated as having been issued under this subchapter.

           *       *       *       *       *       *       *


                     CHAPTER 35--ENDANGERED SPECIES


SEC. 1533. * * *

    (a) * * *
    (b) * * *
          (1) * * *
          (2) * * *
          (3) * * *
                  (A) To the maximum extent practicable, within 
                90 days after receiving the petition of an 
                interested person under [section 553(e)] 
                section 553(i) of title 5, to add a species to, 
                or to remove a species from, either of the 
                lists published under subsection (c), the 
                Secretary shall make a finding as to whether 
                the petition presents substantial scientific or 
                commercial information indicating that the 
                petitioned action may be warranted. If such a 
                petition is found to present such information, 
                the Secretary shall promptly commence a review 
                of the status of the species concerned. The 
                Secretary shall promptly publish each finding 
                made under this subparagraph in the Federal 
                Register.

           *       *       *       *       *       *       *

                  (D) * * *
                          (i) To the maximum extent 
                        practicable, within 90 days after 
                        receiving the petition of an interested 
                        person under [section 553(e)] section 
                        553(i) of title 5, to revise a critical 
                        habitat designation, the Secretary 
                        shall make a finding as to whether the 
                        petition presents substantial 
                        scientific information indicating that 
                        the revision may be warranted. The 
                        Secretary shall promptly publish such 
                        finding in the Federal Register.

           *       *       *       *       *       *       *


TITLE 20--EDUCATION

           *       *       *       *       *       *       *


CHAPTER 31--GENERAL PROVISIONS CONCERNING EDUCATION

           *       *       *       *       *       *       *



SEC. 1221E-4. EDUCATIONAL IMPACT STATEMENT.

    Notwithstanding any other provision of law, no regulation 
affecting any institution of higher education in the United 
States, promulgated on or after October 3, 1980, shall become 
effective unless such agency causes to be published in the 
Federal Register a copy of such proposed regulation together 
with an educational impact assessment statement which shall 
determine whether any information required to be transmitted 
under such regulation is already being gathered by or is 
available from any other agency or authority of the United 
States. [Notwithstanding the exception provided under section 
553(b) of title 5, such] Such statement shall be based upon the 
record established under the provisions of section 553 of title 
5, compiled during the rulemaking proceeding regarding such 
regulation.

           *       *       *       *       *       *       *


TITLE 21--FOOD AND DRUGS

           *       *       *       *       *       *       *


CHAPTER 10--POULTRY AND POULTRY PRODUCTS INSPECTION

           *       *       *       *       *       *       *



SEC. 463. * * *

    (a) * * *
    (b) * * *
    (c) Oral Presentation of Views.--In applying the provisions 
of [section 553(c) of title 5] section 553(c)(4) of title 5, 
United States Code, to proposed rule making under this chapter, 
an opportunity for the oral presentation of views shall be 
accorded all interested persons.

           *       *       *       *       *       *       *


TITLE 42--THE PUBLIC HEALTH AND WELFARE

           *       *       *       *       *       *       *


CHAPTER 7--SOCIAL SECURITY

           *       *       *       *       *       *       *



  Subchapter II--Federal Old-Age, Survivors, and Disability Insurance 
Benefits

           *       *       *       *       *       *       *



SEC. 421. * * *

    (a) * * *

           *       *       *       *       *       *       *

    (j) * * *
          (1) * * *
          (2) * * *
          (3) procedures by which the Commissioner of Social 
        Security will monitor both the referral processes used 
        and the product of professionals to whom cases are 
        referred.
    Nothing in this subsection shall be construed to preclude 
the issuance, [in accordance with section 553(b)(A) of title 5, 
of interpretive rules, general statements of policy, and rules 
of agency organization relating to consultative examinations if 
such rules and statements] in accordance with section 553(g)(2) 
of title 5, United States Code, of guidance or rules of agency 
organization, procedure, or practice relating to consultative 
examinations if such guidance and rules are consistent with 
such regulations.

           *       *       *       *       *       *       *


Subchapter XVIII--Health Insurance for Aged and Disabled

           *       *       *       *       *       *       *



PART E--MISCELLANEOUS PROVISIONS

           *       *       *       *       *       *       *



SEC. 1395HH. * * *

    (a) * * *
    (b) * * *
          (1) * * *
          (2) * * *
                  (A) * * *
                  (B) * * *
                  [(C) subsection (b) of section 553 of title 5 
                does not apply pursuant to subparagraph (B) of 
                such subsection.] (C) subsection (c) of section 
                553 of title 5, United States Code, does not 
                apply pursuant to subsection (g)(3) of such 
                section.

           *       *       *       *       *       *       *


CHAPTER 119--HOMELESS ASSISTANCE

           *       *       *       *       *       *       *



Subchapter IV--Housing Assistance

           *       *       *       *       *       *       *



PART C--CONTINUUM OF CARE PROGRAM

           *       *       *       *       *       *       *



SEC. 11387. REGULATIONS.

    Not later than the expiration of the 90-day period 
beginning on October 28, 1992, the Secretary shall issue 
interim regulations to carry out this part, which shall take 
effect upon issuance. The Secretary shall issue final 
regulations to carry out this part after notice and opportunity 
for public comment regarding the interim regulations, pursuant 
to the provisions of section 553 of title 5 [(notwithstanding 
subsections (a)(2), (b)(B), and (d)(3) of such section)] 
(notwithstanding subsections (a)(2), (g)(3), and (h)(2) of such 
section). The duration of the period for public comment shall 
not be less than 60 days, and the final regulations shall be 
issued not later than the expiration of the 60-day period 
beginning upon the conclusion of the comment period and shall 
take effect upon issuance.

           *       *       *       *       *       *       *


CHAPTER 34--ECONOMIC OPPORTUNITY PROGRAM

           *       *       *       *       *       *       *



SEC. 2992B-1. * * *

    (a) * * *
    (b) * * *
          (1) [Subparagraph (A) of the last sentence of section 
        553(b) of title 5 shall not apply with respect to any 
        interpretative rule or general statement of policy] 
        Section 553(c) of title 5, United States Code, shall 
        apply with respect to guidance--
                  (A) * * *
                  (B) * * *
          (2) [Subparagraph (B) of the last sentence of section 
        553(b)] Section 553(g)(3) of title 5, shall not apply 
        with respect to any rule (other than [an interpretative 
        rule or a general statement of policy] guidance)--
                  (A) * * *
                  (B) * * *
          (3) [The first 2 sentences of section 553(b)] Section 
        553(c) of title 5 shall apply with respect to any rule 
        (other than [an interpretative rule, a general 
        statement of policy,] guidance or a rule of agency 
        organization, procedure, or practice) that is--
                  (A) * * *
                  (B) * * *
    (c) Effective Date of Rule or General Statement of 
Policy.--Notwithstanding [section 553(d)] section 553(h) of 
title 5, no rule (including [an interpretative rule)] guidance) 
or general statement of policy that--
          (1) * * *
          (2) applies exclusively to any program, project, or 
        activity authorized by, or carried out under, this 
        subchapter;
may take effect until 30 days after the publication required 
under [the first 2 sentences of section 553(b)] section 553(c) 
of title 5.
    (d) Statutory Citation Required.--Each rule (including [an 
interpretative rule) and each general statement of policy] 
guidance to which this section applies shall contain after each 
of its sections, paragraphs, or similar textual units a 
citation to the particular provision of statutory or other law 
that is the legal authority for such section, paragraph, or 
unit.
    (e) Rule or General Statement of Policy Necessary as Result 
of Legislation; Time for Issuance.--Except as provided in 
subsection (c), if as a result of the enactment of any law 
affecting the administration of this subchapter it is necessary 
or appropriate for the Secretary to issue any rule (including 
[any interpretative rule) or a general statement of policy] 
guidance), the Secretary shall issue such rule [or such general 
statement of policy] not later than 180 days after the date of 
the enactment of such law.
    (f) Copy of Rule or General Statement of Policy to 
Congressional Leaders.--Whenever an agency publishes in the 
Federal Register a rule (including [an interpretative rule) or 
a general statement of policy] guidance) to which subsection 
(c) applies, such agency shall transmit a copy of such rule [or 
such general statement of policy] to the Speaker of the House 
of Representatives and the President pro tempore of the Senate.
    (g) In this section, the term `guidance' has the meaning 
given the term in section 551 of title 5, United States Code.

           *       *       *       *       *       *       *


CHAPTER 65--NOISE CONTROL

           *       *       *       *       *       *       *



SEC. 4905. * * *

    (a) * * *
    (b) * * *
    (c) * * *
          (2) After publication of any proposed regulations 
        under this section, the Administrator shall allow 
        interested persons an opportunity to participate in 
        rulemaking in accordance with [the first sentence of 
        section 553(c) of title 5] section 553(c)(4)(A) of 
        title 5.

           *       *       *       *       *       *       *


 CHAPTER 135--RESIDENCY AND SERVICE REQUIREMENTS IN FEDERALLY ASSISTED 
HOUSING

           *       *       *       *       *       *       *



   Subchapter 1--Standards and Obligations of Residency in Federally 
Assisted Housing

           *       *       *       *       *       *       *



SEC. 13603. * * *

    (a) * * *
    (b) * * *
          (1) * * *
          (2) * * *
          (3) Procedure.--Not later than 90 days after the 
        submission of the final report under subsection (a)(7), 
        the Secretary shall issue a notice of proposed 
        rulemaking of the regulations under this subsection 
        providing for notice and opportunity for public comment 
        regarding the regulations, pursuant to the provisions 
        of section 553 of title 5 [(notwithstanding subsections 
        (a)(2), (b)(B), and (d)(3) of such section)] 
        (notwithstanding subsections (a)(2), (g)(3), and (h)(2) 
        of such section). The duration of the period for public 
        comment under such section 553 shall not be less than 
        60 days. The Secretary shall issue final regulations 
        under this subsection not later than the expiration of 
        the 60-day period beginning upon the conclusion of the 
        comment period, which shall take effect upon issuance.

           *       *       *       *       *       *       *


SEC. 13643. REGULATIONS.

    The Secretary shall issue regulations necessary to carry 
out subtitles B through F of this title and the amendments made 
by such subtitles not later than the expiration of the 6-month 
period beginning on October 28, 1992. The regulations shall be 
issued after notice and opportunity for public comment pursuant 
to the provisions of section 553 of title 5 [(notwithstanding 
subsections (a)(2), (b)(B), and (d)(3) of such section)] 
(notwithstanding subsections (a)(2), (g)(3), and (h)(2) of such 
section).

           *       *       *       *       *       *       *


TITLE 41--PUBLIC CONTRACTS

           *       *       *       *       *       *       *


Subtitle IV--Miscellaneous

           *       *       *       *       *       *       *


    CHAPTER 85--COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR 
SEVERELY DISABLED

           *       *       *       *       *       *       *



SEC. 8503. * * *

    (a) * * *
          (1) * * *
          (2) Changes to list.--The Committee may, by rule made 
        in accordance with the requirements of section [553(b) 
        to (e)] section 553 of title 5, add to and remove from 
        the procurement list products so produced and services 
        so provided.

           *       *       *       *       *       *       *


TITLE 46--SHIPPING

           *       *       *       *       *       *       *


Subtitle II--Vessels and Seamen

           *       *       *       *       *       *       *


PART J--MEASUREMENT OF VESSELS

           *       *       *       *       *       *       *


CHAPTER 141--GENERAL

           *       *       *       *       *       *       *



SEC. 14104. * * *

    (a) * * *
    (b) If a statute allows for an alternate tonnage to be 
prescribed under this section, the Secretary may prescribe it 
by regulation. Any such regulation [shall be considered to be 
an interpretive regulation for purposes of section 553 of title 
5] shall be subject to section 553 of title 5. Until an 
alternate tonnage is prescribed, the statutorily established 
tonnage shall apply to vessels measured under chapter 143 or 
chapter 145 of this title.

           *       *       *       *       *       *       *


TITLE 50--WAR AND NATIONAL DEFENSE

           *       *       *       *       *       *       *


CHAPTER 55--DEFENSE PRODUCTION

           *       *       *       *       *       *       *



SEC. 4559. * * *

    (a) * * *
    (b) * * *
          (1) In general.--Except as provided in subsection 
        (c), any regulation issued under this chapter shall be 
        published in the Federal Register and opportunity for 
        public comment shall be provided [for not less than 30 
        days, consistent with the requirements of section 
        553(b)] in a manner consistent with the requirements of 
        section 553(c) of title 5.

                                  [all]