[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3010 Referred in Senate (RFS)]

112th CONGRESS
  1st Session
                                H. R. 3010


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            December 5, 2011

Received; read twice and referred to the Committee on Homeland Security 
                        and Governmental Affairs

_______________________________________________________________________

                                 AN ACT


 
 To reform the process by which Federal agencies analyze and formulate 
                new regulations and guidance documents.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Regulatory Accountability Act of 
2011''.

SEC. 2. DEFINITIONS.

    Section 551 of title 5, United States Code, is amended--
            (1) in paragraph (13), by striking ``and'' at the end;
            (2) in paragraph (14), by striking the period at the end 
        and inserting a semicolon; and
            (3) by adding at the end the following:
            ``(15) `major rule' means any rule that the Administrator 
        of the Office of Information and Regulatory Affairs determines 
        is likely to impose--
                    ``(A) an annual cost on the economy of $100,000,000 
                or more, adjusted annually for inflation;
                    ``(B) a major increase in costs or prices for 
                consumers, individual industries, Federal, State, 
                local, or tribal government agencies, or geographic 
                regions;
                    ``(C) significant adverse effects on competition, 
                employment, investment, productivity, innovation, or on 
                the ability of United States-based enterprises to 
                compete with foreign-based enterprises in domestic and 
                export markets; or
                    ``(D) significant impacts on multiple sectors of 
                the economy;
            ``(16) `high-impact rule' means any rule that the 
        Administrator of the Office of Information and Regulatory 
        Affairs determines is likely to impose an annual cost on the 
        economy of $1,000,000,000 or more, adjusted annually for 
        inflation;
            ``(17) `guidance' means an agency statement of general 
        applicability and future effect, other than a regulatory 
        action, that sets forth a policy on a statutory, regulatory or 
        technical issue or an interpretation of a statutory or 
        regulatory issue;
            ``(18) `major guidance' means guidance that the 
        Administrator of the Office of Information and Regulatory 
        Affairs finds is likely to lead to--
                    ``(A) an annual cost on the economy of $100,000,000 
                or more, adjusted annually for inflation;
                    ``(B) a major increase in costs or prices for 
                consumers, individual industries, Federal, State, local 
                or tribal government agencies, or geographic regions;
                    ``(C) significant adverse effects on competition, 
                employment, investment, productivity, innovation, or on 
                the ability of United States-based enterprises to 
                compete with foreign-based enterprises in domestic and 
                export markets; or
                    ``(D) significant impacts on multiple sectors of 
                the economy;
            ``(19) the `Information Quality Act' means section 515 of 
        Public Law 106-554, the Treasury and General Government 
        Appropriations Act for Fiscal Year 2001, and guidelines issued 
        by the Administrator of the Office of Information and 
        Regulatory Affairs or other agencies pursuant to the Act; and
            ``(20) the `Office of Information and Regulatory Affairs' 
        means the office established under section 3503 of chapter 35 
        of title 44 and any successor to that office.''.

SEC. 3. RULE MAKING.

    (a) Section 553(a) of title 5, United States Code, is amended by 
striking ``(a) This section applies'' and inserting ``(a) 
Applicability.--This section applies''.
    (b) Section 553 of title 5, United States Code, is amended by 
striking subsections (b) through (e) and inserting the following:
    ``(b) Rule Making Considerations.--In a rule making, an agency 
shall make all preliminary and final factual determinations based on 
evidence and consider, in addition to other applicable considerations, 
the following:
            ``(1) The legal authority under which a rule may be 
        proposed, including whether a rule making is required by 
        statute, and if so, whether by a specific date, or whether the 
        agency has discretion to commence a rule making.
            ``(2) Other statutory considerations applicable to whether 
        the agency can or should propose a rule or undertake other 
        agency action.
            ``(3) The specific nature and significance of the problem 
        the agency may address with a rule (including the degree and 
        nature of risks the problem poses and the priority of 
        addressing those risks compared to other matters or activities 
        within the agency's jurisdiction), whether the problem warrants 
        new agency action, and the countervailing risks that may be 
        posed by alternatives for new agency action.
            ``(4) Whether existing rules have created or contributed to 
        the problem the agency may address with a rule and whether 
        those rules could be amended or rescinded to address the 
        problem in whole or part.
            ``(5) Any reasonable alternatives for a new rule or other 
        response identified by the agency or interested persons, 
        including not only responses that mandate particular conduct or 
        manners of compliance, but also--
                    ``(A) the alternative of no Federal response;
                    ``(B) amending or rescinding existing rules;
                    ``(C) potential regional, State, local, or tribal 
                regulatory action or other responses that could be 
                taken in lieu of agency action; and
                    ``(D) potential responses that--
                            ``(i) specify performance objectives rather 
                        than conduct or manners of compliance;
                            ``(ii) establish economic incentives to 
                        encourage desired behavior;
                            ``(iii) provide information upon which 
                        choices can be made by the public; or
                            ``(iv) incorporate other innovative 
                        alternatives rather than agency actions that 
                        specify conduct or manners of compliance.
            ``(6) Notwithstanding any other provision of law--
                    ``(A) the potential costs and benefits associated 
                with potential alternative rules and other responses 
                considered under section 553(b)(5), including direct, 
                indirect, and cumulative costs and benefits and 
                estimated impacts on jobs (including an estimate of the 
                net gain or loss in domestic jobs), economic growth, 
                innovation, and economic competitiveness;
                    ``(B) means to increase the cost-effectiveness of 
                any Federal response; and
                    ``(C) incentives for innovation, consistency, 
                predictability, lower costs of enforcement and 
                compliance (to government entities, regulated entities, 
                and the public), and flexibility.
    ``(c) Advance Notice of Proposed Rule Making for Major Rules, High-
impact Rules, and Rules Involving Novel Legal or Policy Issues.--In the 
case of a rule making for a major rule or high-impact rule or a rule 
that involves a novel legal or policy issue arising out of statutory 
mandates, not later than 90 days before a notice of proposed rule 
making is published in the Federal Register, an agency shall publish 
advance notice of proposed rule making in the Federal Register. In 
publishing such advance notice, the agency shall--
            ``(1) include a written statement identifying, at a 
        minimum--
                    ``(A) the nature and significance of the problem 
                the agency may address with a rule, including data and 
                other evidence and information on which the agency 
                expects to rely for the proposed rule;
                    ``(B) the legal authority under which a rule may be 
                proposed, including whether a rule making is required 
                by statute, and if so, whether by a specific date, or 
                whether the agency has discretion to commence a rule 
                making;
                    ``(C) preliminary information available to the 
                agency concerning the other considerations specified in 
                subsection (b); and
                    ``(D) in the case of a rule that involves a novel 
                legal or policy issue arising out of statutory 
                mandates, the nature of and potential reasons to adopt 
                the novel legal or policy position upon which the 
                agency may base a proposed rule;
            ``(2) solicit written data, views or argument from 
        interested persons concerning the information and issues 
        addressed in the advance notice; and
            ``(3) provide for a period of not fewer than 60 days for 
        interested persons to submit such written data, views, or 
        argument to the agency.
    ``(d) Notices of Proposed Rule Making; Determinations of Other 
Agency Course.--(1) Before it determines to propose a rule, and 
following completion of procedures under subsection (c), if applicable, 
the agency shall consult with the Administrator of the Office of 
Information and Regulatory Affairs. If the agency thereafter determines 
to propose a rule, the agency shall publish a notice of proposed rule 
making, which shall include--
            ``(A) a statement of the time, place, and nature of public 
        rule making proceedings;
            ``(B) reference to the legal authority under which the rule 
        is proposed;
            ``(C) the terms of the proposed rule;
            ``(D) a description of information known to the agency on 
        the subject and issues of the proposed rule, including but not 
        limited to--
                    ``(i) a summary of information known to the agency 
                concerning the considerations specified in subsection 
                (b);
                    ``(ii) a summary of additional information the 
                agency provided to and obtained from interested persons 
                under subsection (c);
                    ``(iii) a summary of any preliminary risk 
                assessment or regulatory impact analysis performed by 
                the agency; and
                    ``(iv) information specifically identifying all 
                data, studies, models, and other evidence or 
                information considered or used by the agency in 
                connection with its determination to propose the rule;
            ``(E)(i) a reasoned preliminary determination of need for 
        the rule based on the information described under subparagraph 
        (D); and
            ``(ii) an additional statement of whether a rule is 
        required by statute;
            ``(F) a reasoned preliminary determination that the 
        benefits of the proposed rule meet the relevant statutory 
        objectives and justify the costs of the proposed rule 
        (including all costs to be considered under subsection (b)(6)), 
        based on the information described under subparagraph (D);
            ``(G) a discussion of--
                    ``(i) the alternatives to the proposed rule, and 
                other alternative responses, considered by the agency 
                under subsection (b);
                    ``(ii) the costs and benefits of those alternatives 
                (including all costs to be considered under subsection 
                (b)(6));
                    ``(iii) whether those alternatives meet relevant 
                statutory objectives; and
                    ``(iv) why the agency did not propose any of those 
                alternatives; and
            ``(H)(i) a statement of whether existing rules have created 
        or contributed to the problem the agency seeks to address with 
        the proposed rule; and
            ``(ii) if so, whether or not the agency proposes to amend 
        or rescind any such rules, and why.
        All information provided to or considered by the agency, and 
        steps to obtain information by the agency, in connection with 
        its determination to propose the rule, including any 
        preliminary risk assessment or regulatory impact analysis 
        prepared by the agency and all other information prepared or 
        described by the agency under subparagraph (D) and, at the 
        discretion of the President or the Administrator of the Office 
        of Information and Regulatory Affairs, information provided by 
        that Office in consultations with the agency, shall be placed 
        in the docket for the proposed rule and made accessible to the 
        public by electronic means and otherwise for the public's use 
        when the notice of proposed rule making is published.
    ``(2)(A) If the agency undertakes procedures under subsection (c) 
and determines thereafter not to propose a rule, the agency shall, 
following consultation with the Office of Information and Regulatory 
Affairs, publish a notice of determination of other agency course. A 
notice of determination of other agency course shall include 
information required by paragraph (1)(D) to be included in a notice of 
proposed rule making and a description of the alternative response the 
agency determined to adopt.
    ``(B) If in its determination of other agency course the agency 
makes a determination to amend or rescind an existing rule, the agency 
need not undertake additional proceedings under subsection (c) before 
it publishes a notice of proposed rule making to amend or rescind the 
existing rule.
All information provided to or considered by the agency, and steps to 
obtain information by the agency, in connection with its determination 
of other agency course, including but not limited to any preliminary 
risk assessment or regulatory impact analysis prepared by the agency 
and all other information that would be required to be prepared or 
described by the agency under paragraph (1)(D) if the agency had 
determined to publish a notice of proposed rule making and, at the 
discretion of the President or the Administrator of the Office of 
Information and Regulatory Affairs, information provided by that Office 
in consultations with the agency, shall be placed in the docket for the 
determination and made accessible to the public by electronic means and 
otherwise for the public's use when the notice of determination is 
published.
    ``(3) After notice of proposed rule making required by this 
section, the agency shall provide interested persons an opportunity to 
participate in the rule making through submission of written data, 
views, or arguments with or without opportunity for oral presentation, 
except that--
            ``(A) if a hearing is required under paragraph (4)(B) or 
        subsection (e), opportunity for oral presentation shall be 
        provided pursuant to that requirement; or
            ``(B) when other than under subsection (e) of this section 
        rules are required by statute or at the discretion of the 
        agency to be made on the record after opportunity for an agency 
        hearing, sections 556 and 557 shall apply, and paragraph (4), 
        the requirements of subsection (e) to receive comment outside 
        of the procedures of sections 556 and 557, and the petition 
        procedures of subsection (e)(6) shall not apply.
The agency shall provide not fewer than 60 days for interested persons 
to submit written data, views, or argument (or 120 days in the case of 
a proposed major or high-impact rule).
    ``(4)(A) Within 30 days of publication of notice of proposed rule 
making, a member of the public may petition for a hearing in accordance 
with section 556 to determine whether any evidence or other information 
upon which the agency bases the proposed rule fails to comply with the 
Information Quality Act.
    ``(B)(i) The agency may, upon review of the petition, determine 
without further process to exclude from the rule making the evidence or 
other information that is the subject of the petition and, if 
appropriate, withdraw the proposed rule. The agency shall promptly 
publish any such determination.
    ``(ii) If the agency does not resolve the petition under the 
procedures of clause (i), it shall grant any such petition that 
presents a prima facie case that evidence or other information upon 
which the agency bases the proposed rule fails to comply with the 
Information Quality Act, hold the requested hearing not later than 30 
days after receipt of the petition, provide a reasonable opportunity 
for cross-examination at the hearing, and decide the issues presented 
by the petition not later than 60 days after receipt of the petition. 
The agency may deny any petition that it determines does not present 
such a prima facie case.
    ``(C) There shall be no judicial review of the agency's disposition 
of issues considered and decided or determined under subparagraph 
(B)(ii) until judicial review of the agency's final action. There shall 
be no judicial review of an agency's determination to withdraw a 
proposed rule under subparagraph (B)(i) on the basis of the petition.
    ``(D) Failure to petition for a hearing under this paragraph shall 
not preclude judicial review of any claim based on the Information 
Quality Act under chapter 7 of this title.
    ``(e) Hearings for High-impact Rules.--Following notice of a 
proposed rule making, receipt of comments on the proposed rule, and any 
hearing held under subsection (d)(4), and before adoption of any high-
impact rule, the agency shall hold a hearing in accordance with 
sections 556 and 557, unless such hearing is waived by all participants 
in the rule making other than the agency. The agency shall provide a 
reasonable opportunity for cross-examination at such hearing. The 
hearing shall be limited to the following issues of fact, except that 
participants at the hearing other than the agency may waive 
determination of any such issue:
            ``(1) Whether the agency's asserted factual predicate for 
        the rule is supported by the evidence.
            ``(2) Whether there is an alternative to the proposed rule 
        that would achieve the relevant statutory objectives at a lower 
        cost (including all costs to be considered under subsection 
        (b)(6)) than the proposed rule.
            ``(3) If there is more than one alternative to the proposed 
        rule that would achieve the relevant statutory objectives at a 
        lower cost than the proposed rule, which alternative would 
        achieve the relevant statutory objectives at the lowest cost.
            ``(4) Whether, if the agency proposes to adopt a rule that 
        is more costly than the least costly alternative that would 
        achieve the relevant statutory objectives (including all costs 
        to be considered under subsection (b)(6)), the additional 
        benefits of the more costly rule exceed the additional costs of 
        the more costly rule.
            ``(5) Whether the evidence and other information upon which 
        the agency bases the proposed rule meets the requirements of 
        the Information Quality Act.
            ``(6) Upon petition by an interested person who has 
        participated in the rule making, other issues relevant to the 
        rule making, unless the agency determines that consideration of 
        the issues at the hearing would not advance consideration of 
        the rule or would, in light of the nature of the need for 
        agency action, unreasonably delay completion of the rule 
        making. An agency shall grant or deny a petition under this 
        paragraph within 30 days of its receipt of the petition.
No later than 45 days before any hearing held under this subsection or 
sections 556 and 557, the agency shall publish in the Federal Register 
a notice specifying the proposed rule to be considered at such hearing, 
the issues to be considered at the hearing, and the time and place for 
such hearing, except that such notice may be issued not later than 15 
days before a hearing held under subsection (d)(4)(B).
    ``(f) Final Rules.--(1) The agency shall adopt a rule only 
following consultation with the Administrator of the Office of 
Information and Regulatory Affairs to facilitate compliance with 
applicable rule making requirements.
    ``(2) The agency shall adopt a rule only on the basis of the best 
reasonably obtainable scientific, technical, economic, and other 
evidence and information concerning the need for, consequences of, and 
alternatives to the rule.
    ``(3)(A) Except as provided in subparagraph (B), the agency shall 
adopt the least costly rule considered during the rule making 
(including all costs to be considered under subsection (b)(6)) that 
meets relevant statutory objectives.
    ``(B) The agency may adopt a rule that is more costly than the 
least costly alternative that would achieve the relevant statutory 
objectives only if the additional benefits of the more costly rule 
justify its additional costs and only if the agency explains its reason 
for doing so based on interests of public health, safety or welfare 
that are clearly within the scope of the statutory provision 
authorizing the rule.
    ``(4) When it adopts a final rule, the agency shall publish a 
notice of final rule making. The notice shall include--
            ``(A) a concise, general statement of the rule's basis and 
        purpose;
            ``(B) the agency's reasoned final determination of need for 
        a rule to address the problem the agency seeks to address with 
        the rule, including a statement of whether a rule is required 
        by statute and a summary of any final risk assessment or 
        regulatory impact analysis prepared by the agency;
            ``(C) the agency's reasoned final determination that the 
        benefits of the rule meet the relevant statutory objectives and 
        justify the rule's costs (including all costs to be considered 
        under subsection (b)(6));
            ``(D) the agency's reasoned final determination not to 
        adopt any of the alternatives to the proposed rule considered 
        by the agency during the rule making, including--
                    ``(i) the agency's reasoned final determination 
                that no alternative considered achieved the relevant 
                statutory objectives with lower costs (including all 
                costs to be considered under subsection (b)(6)) than 
                the rule; or
                    ``(ii) the agency's reasoned determination that its 
                adoption of a more costly rule complies with subsection 
                (f)(3)(B);
            ``(E) the agency's reasoned final determination--
                    ``(i) that existing rules have not created or 
                contributed to the problem the agency seeks to address 
                with the rule; or
                    ``(ii) that existing rules have created or 
                contributed to the problem the agency seeks to address 
                with the rule, and, if so--
                            ``(I) why amendment or rescission of such 
                        existing rules is not alone sufficient to 
                        respond to the problem; and
                            ``(II) whether and how the agency intends 
                        to amend or rescind the existing rule separate 
                        from adoption of the rule;
            ``(F) the agency's reasoned final determination that the 
        evidence and other information upon which the agency bases the 
        rule complies with the Information Quality Act; and
            ``(G)(i) for any major rule or high-impact rule, the 
        agency's plan for review of the rule no less than every ten 
        years to determine whether, based upon evidence, there remains 
        a need for the rule, whether the rule is in fact achieving 
        statutory objectives, whether the rule's benefits continue to 
        justify its costs, and whether the rule can be modified or 
        rescinded to reduce costs while continuing to achieve statutory 
        objectives.
            ``(ii) review of a rule under a plan required by clause (i) 
        of this subparagraph shall take into account the factors and 
        criteria set forth in subsections (b) through (f) of section 
        553 of this title.
All information considered by the agency in connection with its 
adoption of the rule, and, at the discretion of the President or the 
Administrator of the Office of Information and Regulatory Affairs, 
information provided by that Office in consultations with the agency, 
shall be placed in the docket for the rule and made accessible to the 
public for the public's use no later than when the rule is adopted.
    ``(g) Exceptions From Notice and Hearing Requirements.--(1) Except 
when notice or hearing is required by statute, the following do not 
apply to interpretive rules, general statements of policy, or rules of 
agency organization, procedure, or practice:
            ``(A) Subsections (c) through (e).
            ``(B) Paragraphs (1) through (3) of subsection (f).
            ``(C) Subparagraphs (B) through (H) of subsection (f)(4).
    ``(2)(A) When the agency for good cause, based upon evidence, finds 
(and incorporates the finding and a brief statement of reasons therefor 
in the rules issued) that compliance with subsection (c), (d), or (e) 
or requirements to render final determinations under subsection (f) of 
this section before the issuance of an interim rule is impracticable or 
contrary to the public interest, including interests of national 
security, such subsections or requirements to render final 
determinations shall not apply to the agency's adoption of an interim 
rule.
    ``(B) If, following compliance with subparagraph (A) of this 
paragraph, the agency adopts an interim rule, it shall commence 
proceedings that comply fully with subsections (d) through (f) of this 
section immediately upon publication of the interim rule, shall treat 
the publication of the interim rule as publication of a notice of 
proposed rule making and shall not be required to issue supplemental 
notice other than to complete full compliance with subsection (d). No 
less than 270 days from publication of the interim rule (or 18 months 
in the case of a major rule or high-impact rule), the agency shall 
complete rule making under subsections (d) through (f) of this 
subsection and take final action to adopt a final rule or rescind the 
interim rule. If the agency fails to take timely final action, the 
interim rule will cease to have the effect of law.
    ``(C) Other than in cases involving interests of national security, 
upon the agency's publication of an interim rule without compliance 
with subsections (c), (d), or (e) or requirements to render final 
determinations under subsection (f) of this section, an interested 
party may seek immediate judicial review under chapter 7 of this title 
of the agency's determination to adopt such interim rule. The record on 
such review shall include all documents and information considered by 
the agency and any additional information presented by a party that the 
court determines necessary to consider to assure justice.
    ``(3) When the agency for good cause finds (and incorporates the 
finding and a brief statement of reasons therefor in the rules issued) 
that notice and public procedure thereon are unnecessary, including 
because agency rule making is undertaken only to correct a de minimis 
technical or clerical error in a previously issued rule or for other 
noncontroversial purposes, the agency may publish a rule without 
compliance with subsections (c), (d), (e), or (f)(1)-(3) and (f)(4)(B)-
(F). If the agency receives significant adverse comment within 60 days 
after publication of the rule, it shall treat the notice of the rule as 
a notice of proposed rule making and complete rule making in compliance 
with subsections (d) and (f).
    ``(h) Additional Requirements for Hearings.--When a hearing is 
required under subsection (e) or is otherwise required by statute or at 
the agency's discretion before adoption of a rule, the agency shall 
comply with the requirements of sections 556 and 557 in addition to the 
requirements of subsection (f) in adopting the rule and in providing 
notice of the rule's adoption.
    ``(i) Date of Publication of Rule.--The required publication or 
service of a substantive final or interim rule shall be made not less 
than 30 days before the effective date of the rule, except--
            ``(1) a substantive rule which grants or recognizes an 
        exemption or relieves a restriction;
            ``(2) interpretive rules and statements of policy; or
            ``(3) as otherwise provided by the agency for good cause 
        found and published with the rule.
    ``(j) Right to Petition.--Each agency shall give an interested 
person the right to petition for the issuance, amendment, or repeal of 
a rule.
    ``(k) Rule Making Guidelines.--(1)(A) The Administrator of the 
Office of Information and Regulatory Affairs shall establish guidelines 
for the assessment, including quantitative and qualitative assessment, 
of the costs and benefits of proposed and final rules and other 
economic issues or issues related to risk that are relevant to rule 
making under this title. The rigor of cost-benefit analysis required by 
such guidelines shall be commensurate, in the Administrator's 
determination, with the economic impact of the rule.
    ``(B) To ensure that agencies use the best available techniques to 
quantify and evaluate anticipated present and future benefits, costs, 
other economic issues, and risks as accurately as possible, the 
Administrator of the Office of Information and Regulatory Affairs shall 
regularly update guidelines established under paragraph (1)(A) of this 
subsection.
    ``(2) The Administrator of the Office of Information and Regulatory 
Affairs shall also issue guidelines to promote coordination, 
simplification and harmonization of agency rules during the rule making 
process and otherwise. Such guidelines shall assure that each agency 
avoids regulations that are inconsistent or incompatible with, or 
duplicative of, its other regulations and those of other Federal 
agencies and drafts its regulations to be simple and easy to 
understand, with the goal of minimizing the potential for uncertainty 
and litigation arising from such uncertainty.
    ``(3) To ensure consistency in Federal rule making, the 
Administrator of the Office of Information and Regulatory Affairs 
shall--
            ``(A) issue guidelines and otherwise take action to ensure 
        that rule makings conducted in whole or in part under 
        procedures specified in provisions of law other than those of 
        subchapter II of this title conform to the fullest extent 
        allowed by law with the procedures set forth in section 553 of 
        this title; and
            ``(B) issue guidelines for the conduct of hearings under 
        subsections 553(d)(4) and 553(e) of this section, including to 
        assure a reasonable opportunity for cross-examination. Each 
        agency shall adopt regulations for the conduct of hearings 
        consistent with the guidelines issued under this subparagraph.
    ``(4) The Administrator of the Office of Information and Regulatory 
Affairs shall issue guidelines pursuant to the Information Quality Act 
to apply in rule making proceedings under sections 553, 556, and 557 of 
this title. In all cases, such guidelines, and the Administrator's 
specific determinations regarding agency compliance with such 
guidelines, shall be entitled to judicial deference.
    ``(l) Inclusion in the Record of Certain Documents and 
Information.--The agency shall include in the record for a rule making, 
and shall make available by electronic means and otherwise, all 
documents and information prepared or considered by the agency during 
the proceeding, including, at the discretion of the President or the 
Administrator of the Office of Information and Regulatory Affairs, 
documents and information communicated by that Office during 
consultation with the Agency.
    ``(m) Monetary Policy Exemption.--Nothing in subsection (b)(6), 
subparagraphs (F) and (G) of subsection (d)(1), subsection (e), 
subsection (f)(3), and subparagraphs (C) and (D) of subsection (f)(5) 
shall apply to rule makings that concern monetary policy proposed or 
implemented by the Board of Governors of the Federal Reserve System or 
the Federal Open Market Committee.''.

SEC. 4. AGENCY GUIDANCE; PROCEDURES TO ISSUE MAJOR GUIDANCE; 
              PRESIDENTIAL AUTHORITY TO ISSUE GUIDELINES FOR ISSUANCE 
              OF GUIDANCE.

    (a) In General.--Chapter 5 of title 5, United States Code, is 
amended by inserting after section 553 the following new section:
``Sec. 553a. Agency guidance; procedures to issue major guidance; 
              authority to issue guidelines for issuance of guidance
    ``(a) Before issuing any major guidance, or guidance that involves 
a novel legal or policy issue arising out of statutory mandates, an 
agency shall--
            ``(1) make and document a reasoned determination that--
                    ``(A) assures that such guidance is understandable 
                and complies with relevant statutory objectives and 
                regulatory provisions (including any statutory 
                deadlines for agency action);
                    ``(B) summarizes the evidence and data on which the 
                agency will base the guidance;
                    ``(C) identifies the costs and benefits (including 
                all costs to be considered during a rule making under 
                section 553(b) of this title) of conduct conforming to 
                such guidance and assures that such benefits justify 
                such costs; and
                    ``(D) describes alternatives to such guidance and 
                their costs and benefits (including all costs to be 
                considered during a rule making under section 553(b) of 
                this title) and explains why the agency rejected those 
                alternatives; and
            ``(2) confer with the Administrator of the Office of 
        Information and Regulatory Affairs on the issuance of such 
        guidance to assure that the guidance is reasonable, 
        understandable, consistent with relevant statutory and 
        regulatory provisions and requirements or practices of other 
        agencies, does not produce costs that are unjustified by the 
        guidance's benefits, and is otherwise appropriate.
Upon issuing major guidance, or guidance that involves a novel legal or 
policy issue arising out of statutory mandates, the agency shall 
publish the documentation required by subparagraph (1) by electronic 
means and otherwise.
    ``(b) Agency guidance--
            ``(1) is not legally binding and may not be relied upon by 
        an agency as legal grounds for agency action;
            ``(2) shall state in a plain, prominent and permanent 
        manner that it is not legally binding; and
            ``(3) shall, at the time it is issued or upon request, be 
        made available by the issuing agency to interested persons and 
        the public by electronic means and otherwise.
Agencies shall avoid the issuance of guidance that is inconsistent or 
incompatible with, or duplicative of, the agency's governing statutes 
or regulations, with the goal of minimizing the potential for 
uncertainty and litigation arising from such uncertainty.
    ``(c) The Administrator of the Office of Information and Regulatory 
Affairs shall have authority to issue guidelines for use by the 
agencies in the issuance of major guidance and other guidance. Such 
guidelines shall assure that each agency avoids issuing guidance 
documents that are inconsistent or incompatible with, or duplicative 
of, the law, its other regulations, or the regulations of other Federal 
agencies and drafts its guidance documents to be simple and easy to 
understand, with the goal of minimizing the potential for uncertainty 
and litigation arising from such uncertainty.''.
    (b) Clerical Amendment.--The table of sections for chapter 5 of 
title 5, United States Code, is amended by inserting after the item 
relating to section 553 the following new item:

``553a. Agency guidance; procedures to issue major guidance; authority 
                            to issue guidelines for issuance of 
                            guidance.''.

SEC. 5. HEARINGS; PRESIDING EMPLOYEES; POWERS AND DUTIES; BURDEN OF 
              PROOF; EVIDENCE; RECORD AS BASIS OF DECISION.

    Section 556 of title 5, United States Code, is amended by striking 
subsection (e) and inserting the following:
    ``(e)(1) The transcript of testimony and exhibits, together with 
all papers and requests filed in the proceeding, constitutes the 
exclusive record for decision in accordance with section 557 and shall 
be made available to the parties and the public by electronic means 
and, upon payment of lawfully prescribed costs, otherwise. When an 
agency decision rests on official notice of a material fact not 
appearing in the evidence in the record, a party is entitled, on timely 
request, to an opportunity to show the contrary.
    ``(2) Notwithstanding paragraph (1) of this subsection, in a 
proceeding held under this section pursuant to section 553(d)(4) or 
553(e), the record for decision shall also include any information that 
is part of the record of proceedings under section 553.
    ``(f) When an agency conducts rule making under this section and 
section 557 directly after concluding proceedings upon an advance 
notice of proposed rule making under section 553(c), the matters to be 
considered and determinations to be made shall include, among other 
relevant matters and determinations, the matters and determinations 
described in subsections (b) and (f) of section 553.
    ``(g) Upon receipt of a petition for a hearing under this section, 
the agency shall grant the petition in the case of any major rule, 
unless the agency reasonably determines that a hearing would not 
advance consideration of the rule or would, in light of the need for 
agency action, unreasonably delay completion of the rule making. The 
agency shall publish its decision to grant or deny the petition when it 
renders the decision, including an explanation of the grounds for 
decision. The information contained in the petition shall in all cases 
be included in the administrative record. This subsection shall not 
apply to rule makings that concern monetary policy proposed or 
implemented by the Board of Governors of the Federal Reserve System or 
the Federal Open Market Committee.''.

SEC. 6. ACTIONS REVIEWABLE.

    Section 704 of title 5, United States Code, is amended--
            (1) by striking ``Agency action made'' and inserting ``(a) 
        Agency action made''; and
            (2) by adding at the end the following: ``Denial by an 
        agency of a correction request or, where administrative appeal 
        is provided for, denial of an appeal, under an administrative 
        mechanism described in subsection (b)(2)(B) of the Information 
        Quality Act, or the failure of an agency within 90 days to 
        grant or deny such request or appeal, shall be final action for 
        purposes of this section.
    ``(b) Other than in cases involving interests of national security, 
notwithstanding subsection (a) of this section, upon the agency's 
publication of an interim rule without compliance with section 553(c), 
(d), or (e) or requirements to render final determinations under 
subsection (f) of section 553, an interested party may seek immediate 
judicial review under this chapter of the agency's determination to 
adopt such rule on an interim basis. Review shall be limited to whether 
the agency abused its discretion to adopt the interim rule without 
compliance with section 553(c), (d), or (e) or without rendering final 
determinations under subsection (f) of section 553.''.

SEC. 7. SCOPE OF REVIEW.

    Section 706 of title 5, United States Code is amended--
            (1) by striking ``To the extent necessary'' and inserting 
        ``(a) To the extent necessary'';
            (2) in paragraph (2)(A) of subsection (a) (as designated by 
        paragraph (1) of this section), by inserting after ``in 
        accordance with law'' the following: ``(including the 
        Information Quality Act)''; and
            (3) by adding at the end the following:
    ``(b) The court shall not defer to the agency's--
            ``(1) interpretation of an agency rule if the agency did 
        not comply with the procedures of section 553 or sections 556-
        557 of chapter 5 of this title to issue the interpretation;
            ``(2) determination of the costs and benefits or other 
        economic or risk assessment of the action, if the agency failed 
        to conform to guidelines on such determinations and assessments 
        established by the Administrator of the Office of Information 
        and Regulatory Affairs under section 553(k);
            ``(3) determinations made in the adoption of an interim 
        rule; or
            ``(4) guidance.
    ``(c) The court shall review agency denials of petitions under 
section 553(e)(6) or any other petition for a hearing under sections 
556 and 557 for abuse of agency discretion.''.

SEC. 8. ADDED DEFINITION.

    Section 701(b) of title 5, United States Code, is amended--
            (1) in paragraph (1), by striking ``and'' at the end;
            (2) in paragraph (2), by striking the period at the end, 
        and inserting ``; and''; and
            (3) by adding at the end the following:
            ``(3) `substantial evidence' means such relevant evidence 
        as a reasonable mind might accept as adequate to support a 
        conclusion in light of the record considered as a whole, taking 
        into account whatever in the record fairly detracts from the 
        weight of the evidence relied upon by the agency to support its 
        decision.''.

SEC. 9. EFFECTIVE DATE.

    The amendments made by this Act to--
            (1) sections 553, 556, and 704 of title 5, United States 
        Code;
            (2) subsection (b) of section 701 of such title;
            (3) paragraphs (2) and (3) of section 706(b) of such title; 
        and
            (4) subsection (c) of section 706 of such title,
shall not apply to any rule makings pending or completed on the date of 
enactment of this Act.

            Passed the House of Representatives December 2, 2011.

            Attest:

                                                 KAREN L. HAAS,

                                                                 Clerk.