[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 3208 Introduced in Senate (IS)]

<DOC>






116th CONGRESS
  2d Session
                                S. 3208

         To improve agency rulemaking, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            January 16, 2020

  Mr. Portman introduced the following bill; which was read twice and 
referred to the Committee on Homeland Security and Governmental Affairs

_______________________________________________________________________

                                 A BILL


 
         To improve agency rulemaking, and for other purposes.

    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''.

SEC. 2. DEFINITIONS.

    Section 551 of title 5, United States Code, is amended--
            (1) in paragraph (5), by striking ``rule making'' and 
        inserting ``rulemaking'';
            (2) in paragraph (6), by striking ``rule making'' and 
        inserting ``rulemaking'';
            (3) in paragraph (13), by striking ``and'' at the end;
            (4) in paragraph (14), by striking the period at the end 
        and inserting a semicolon; and
            (5) by adding at the end the following:
            ``(15) `guidance' means an agency statement of general 
        applicability 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 $500,000,000 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 Consumers, 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 Consumers, 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. 3. RULEMAKING.

    Section 553 of title 5, United States Code, is amended--
            (1) in the section heading, by striking ``Rule making'' and 
        inserting ``Rulemaking'';
            (2) in subsection (a), by striking ``(a) This section 
        applies'' and inserting the following:
    ``(a) Applicability.--This section applies''; and
            (3) by striking subsections (b) through (e) and inserting 
        the following:
    ``(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 or to a new 
        rule, with the consideration of 3 alternatives presumed to be 
        reasonable, that--
                    ``(A) meet the objectives of the statutory 
                provision on which the rulemaking relies, including 
                substantial alternatives or other responses identified 
                by the agency or by interested persons; and
                    ``(B) consider not only mandating particular 
                conduct or manners of compliance, but also--
                            ``(i) specifying performance objectives;
                            ``(ii) establishing economic incentives, 
                        including marketable permits, to encourage 
                        desired behavior;
                            ``(iii) establishing disclosure 
                        requirements that will provide information upon 
                        which choices can be made by the public; or
                            ``(iv) adopting other means of meeting the 
                        objectives of the statutory provision on which 
                        the rulemaking relies without mandating 
                        particular conduct or manners of compliance.
            ``(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 action; and
                    ``(C) to the extent practicable, the cumulative 
                costs and benefits, and an analysis of the effects that 
                the rule is anticipated to have on entities that 
                purchase products or services from, sell products or 
                services to, or otherwise conduct business with 
                entities to which the rule will apply.
    ``(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--
                    ``(A) submit a notice of proposed rulemaking to the 
                Administrator for review;
                    ``(B) refrain from publishing the notice until the 
                Administrator determines that review by the 
                Administrator has concluded; and
                    ``(C) at the conclusion of review by the 
                Administrator, publish a notice of proposed rulemaking 
                in the Federal Register, which shall include--
                            ``(i) a statement of the time, place, and 
                        nature of any public rulemaking proceedings;
                            ``(ii) a reference to the legal authority 
                        under which the rule is proposed, including the 
                        specific statutory provision on which the 
                        rulemaking relies;
                            ``(iii) the text of the proposed rule;
                            ``(iv) a summary of information known to 
                        the agency concerning the considerations 
                        described in subsection (b); and
                            ``(v) where otherwise consistent with 
                        applicable law, for any major rule or high-
                        impact rule--
                                    ``(I) a reasoned preliminary 
                                explanation regarding how--
                                            ``(aa) the proposed rule 
                                        meets the objectives of the 
                                        statutory provision on which 
                                        the rulemaking relies; and
                                            ``(bb) the benefits of the 
                                        proposed rule justify the 
                                        costs;
                                    ``(II) a discussion of--
                                            ``(aa) the costs and 
                                        benefits of alternatives 
                                        considered by the agency under 
                                        subsection (b)(4);
                                            ``(bb) whether the 
                                        alternatives considered by the 
                                        agency under subsection (b)(4) 
                                        meet the objectives of the 
                                        statutory provision on which 
                                        the rulemaking relies; and
                                            ``(cc) the reasons why the 
                                        agency did not propose an 
                                        alternative considered by the 
                                        agency under subsection (b)(4); 
                                        and
                                    ``(III) a solicitation of public 
                                comment, including on all issues and 
                                alternatives discussed under subclauses 
                                (I) and (II) and subsection (l)(1)(A).
            ``(2) Accessibility.--
                    ``(A) In general.--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) Information controlled by nongovernmental 
                person.--With respect to any information to which a 
                nongovernmental person holds a legal right to prohibit 
                or limit reproduction, distribution, or public display, 
                the information shall be--
                            ``(i) placed in the docket through citation 
                        or incorporation by reference, including a 
                        specification of the identity of the 
                        nongovernmental person who holds a legal right 
                        to prohibit or limit reproduction, 
                        distribution, or public display of the 
                        information and the means by which a member of 
                        the public may request a full copy of the 
                        information from that holder; and
                            ``(ii) considered made accessible to the 
                        public after a placement described in clause 
                        (i), provided that the nongovernmental person 
                        who holds a legal right to prohibit or limit 
                        reproduction, distribution, or public display 
                        of the information makes the information 
                        reasonably available upon request in a timely 
                        manner to any member of the public who requests 
                        a copy of the information.
                    ``(C) Exception.--Subparagraphs (A) and (B) 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--
                    ``(A) propose the rule on the basis of the best 
                reasonably available scientific, technical, or economic 
                information; and
                    ``(B) to the maximum extent practicable, use that 
                information in compliance with the guidelines issued 
                under section 515 of the Treasury and General 
                Government Appropriations Act, 2001 (Public Law 106-
                554; 114 Stat. 2763A-154).
            ``(4) Public comment.--
                    ``(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 the 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.--
                            ``(i) In general.--Subject to subparagraph 
                        (C), 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).
                            ``(ii) Adequate review period.--If a 
                        proposed rule relies on information placed in 
                        the docket through citation or incorporation by 
                        reference as described in paragraph (3)(B), the 
                        comment period required under clause (i) shall 
                        be adequate to allow interested persons to 
                        receive and review that information to inform 
                        their submission.
                    ``(C) Responsive comment period for major and high-
                impact rules.--With respect to a proposed major rule or 
                a proposed high-impact rule, an interested person who 
                made a submission under subparagraph (A) during the 
                comment period under subparagraph (B) with respect to 
                the rule may, during the period beginning on the day 
                after the date on which that comment period closes and 
                ending on the date that is 30 days after that day, 
                respond to any other submission made by any other 
                interested person under subparagraph (A) during the 
                initial comment period.
                    ``(D) Accessibility.--All comments and responses 
                submitted under this paragraph shall be promptly placed 
                in the docket and made accessible to the public.
            ``(5) Change of classification after publication of 
        notice.--If, after an agency submits for review 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 that--
                            ``(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 a 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) refer to the legal authority under 
                        which the rule would be proposed, including the 
                        specific statutory provision that authorizes 
                        the rulemaking;
                            ``(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;
                            ``(iv) indicate how interested persons may 
                        submit written material for the docket; and
                            ``(v) appear in the Federal Register not 
                        later than 90 days before the date on which the 
                        agency publishes a notice of proposed 
                        rulemaking for the rule.
            ``(2) Accessibility.--All information provided to the 
        agency under paragraph (1) shall be promptly placed in the 
        docket and made accessible to the public, unless the 
        information--
                    ``(A) is information to which the submitter does 
                not hold a legal right to authorize disclosure; or
                    ``(B) is exempt from disclosure under section 
                552(b).
            ``(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.--After considering any written 
                material submitted by interested persons under 
                paragraph (1), if an agency determines to proceed with 
                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) contains intermediate completion 
                        dates for actions of the agency, including--
                                    ``(I) the anticipated date on which 
                                the agency shall publish the notice 
                                required under subsection (c)(1) with 
                                respect to the rule; and
                                    ``(II) the duration of the comment 
                                period required under subsection 
                                (c)(4), including the date on which the 
                                comment period shall end; and
                            ``(ii) includes a final completion date for 
                        actions by the agency.
                    ``(B) Publication.--The timetable required under 
                subparagraph (A) shall be published in the electronic 
                docket established under paragraph (1)(A) with respect 
                to the rulemaking.
                    ``(C) 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.
                    ``(D) 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.
                    ``(E) Changes to intermediate dates published in 
                electronic docket.--If an agency changes an 
                intermediate completion date for an action of the 
                agency established under subparagraph (A)(i), the 
                agency shall publish in the electronic docket 
                established under paragraph (1)(A)--
                            ``(i) the updated completion date for the 
                        action; and
                            ``(ii) a brief explanation regarding the 
                        reason for the change to the completion date.
            ``(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--
                            ``(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.--
            ``(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, an interested person may petition the 
                agency that proposed the rule to hold a public hearing 
                in accordance with this subsection.
                    ``(B) Granting and denial of petition.--
                            ``(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 rule, the 
                        agency shall grant the petition, in whole or in 
                        part, 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 relevant 
                                        statutory objectives, including 
                                        the objectives of the statutory 
                                        provision on which the 
                                        rulemaking relies.
                            ``(ii) Denial of petition.--If an agency 
                        denies a petition submitted under subparagraph 
                        (A) in whole or in part, the agency shall 
                        include in the rulemaking record an explanation 
                        for the denial that is sufficient for judicial 
                        review, including--
                                    ``(I) findings by the agency that--
                                            ``(aa) there is no genuine 
                                        dispute as to the 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 relevant 
                                        statutory objectives, including 
                                        the objectives of the statutory 
                                        provision on which the 
                                        rulemaking relies.
                            ``(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.
            ``(2) Notice of hearing.--Not later than 45 days before the 
        date on which a hearing is held under this subsection, an 
        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 rules 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 the 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.
            ``(4) Judicial review.--
                    ``(A) In general.--Failure to petition for a 
                hearing under this subsection shall not preclude 
                judicial 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 action of the agency.
    ``(f) Final Rules.--
            ``(1) Net benefits 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 alternative 
                considered under subsection (b)(5) that maximizes net 
                benefits, taking into consideration only the costs and 
                benefits that arise within the scope of the statutory 
                provision that authorizes the rulemaking.
                    ``(B) Exceptions.--In a rulemaking for a major rule 
                or a high-impact rule, an agency may adopt an 
                alternative other than as required under subparagraph 
                (A) only if--
                            ``(i) the Administrator approves the 
                        adoption by the agency of the alternative; and
                            ``(ii) the alternative is adopted to--
                                    ``(I) account for costs or benefits 
                                that cannot be quantified, including 
                                costs or benefits related to 
                                constitutional or civil rights, 
                                provided that the agency identifies all 
                                such costs and benefits and explains 
                                why those costs and benefits justify 
                                the adoption of the alternative; or
                                    ``(II) achieve additional benefits 
                                or cost reductions, provided that the 
                                agency--
                                            ``(aa) identifies--

                                                    ``(AA) all such 
                                                additional benefits and 
                                                the associated costs of 
                                                those benefits; and

                                                    ``(BB) all such 
                                                cost reductions and the 
                                                associated benefits of 
                                                those cost reductions; 
                                                and

                                            ``(bb) explains why--

                                                    ``(AA) the 
                                                additional benefits 
                                                justify the additional 
                                                costs; or

                                                    ``(BB) the 
                                                additional cost 
                                                reductions justify any 
                                                benefits foregone.

                    ``(C) Rule of construction.--Nothing in 
                subparagraph (A) may be construed to preclude an agency 
                from including in an alternative adopted pursuant to 
                such subparagraph changes made as a result of agency 
                analysis or review performed under chapter 6 of this 
                title.
            ``(2) Publication of notice of final rulemaking.--After 
        submitting a final rule to the Administrator for review and 
        obtaining a certification from the Administrator that the 
        review has concluded, 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 and a reference to the legal 
                authority under which the rule is made, including the 
                specific statutory provision on which the rulemaking 
                relies;
                    ``(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 objectives of the statutory provision 
                        on which the rulemaking relies and justify the 
                        costs of the rule; and
                            ``(ii)(I) no other alternative considered 
                        would achieve the relevant objectives of the 
                        statutory provision on which the rulemaking 
                        relies in a manner that more greatly maximizes 
                        net benefits as required under paragraph 
                        (1)(A); or
                            ``(II) the adoption by the agency of a more 
                        costly or less costly rule complies with 
                        paragraph (1)(B).
            ``(3) Information quality.--If an agency rulemaking rests 
        upon scientific, technical, or economic information, the agency 
        shall--
                    ``(A) adopt a final rule on the basis of the best 
                reasonably available scientific, technical, or economic 
                information; and
                    ``(B) to the maximum extent practicable, use that 
                information in compliance with the guidelines issued 
                under section 515 of the Treasury and General 
                Government Appropriations Act, 2001 (Public Law 106-
                554; 114 Stat. 2763A-154).
            ``(4) Accessibility.--
                    ``(A) In general.--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) Information controlled by nongovernmental 
                person.--With respect to any information to which a 
                nongovernmental person holds a legal right to prohibit 
                or limit reproduction, distribution, or public display, 
                the information shall be--
                            ``(i) placed in the docket through citation 
                        or incorporation by reference, including a 
                        specification of the identity of the 
                        nongovernmental person who holds a legal right 
                        to prohibit or limit reproduction, 
                        distribution, or public display of the 
                        information and the means by which a member of 
                        the public may request a full copy of the 
                        information from that holder; and
                            ``(ii) considered made accessible to the 
                        public after a placement described in clause 
                        (i), provided that the nongovernmental person 
                        who holds a legal right to prohibit or limit 
                        reproduction, distribution, or public display 
                        of the information makes the information 
                        reasonably available upon request in a timely 
                        manner.
                    ``(C) Exception.--Subparagraphs (A) and (B) 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) through 
                                (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.
            ``(5) Rule of construction.--Nothing in this subsection 
        shall be construed to modify, alter, or abridge exclusive 
        rights held pursuant to title 17.
    ``(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 regarding rulemaking as follows:
                            ``(i) Identification of need for rules.--
                        Guidelines setting forth how needs for 
                        rulemaking should be identified, including--
                                    ``(I) whether rulemaking is made 
                                necessary by compelling public need, 
                                such as material failures of private 
                                markets or public institutions to 
                                protect or improve the health and 
                                safety of the public, the environment, 
                                or the well-being of the public; and
                                    ``(II) whether rulemaking needs 
                                could be lessened by reliance on 
                                potential State, local, Tribal, or 
                                regional regulatory action or other 
                                responses that could be taken in lieu 
                                of agency action.
                            ``(ii) Assessment of rules.--Guidelines 
                        setting forth how the assessment, including the 
                        quantitative and qualitative assessment, of 
                        proposed and final rules should occur, 
                        including how to determine--
                                    ``(I) the costs and benefits of 
                                proposed and final rules and 
                                alternatives to them, including 
                                quantifiable and non-quantifiable costs 
                                and benefits;
                                    ``(II) whether proposed and final 
                                rules maximize net benefits;
                                    ``(III) estimated impacts on jobs, 
                                wages, competition, innovation, and 
                                low-income populations;
                                    ``(IV) other economic issues that 
                                are relevant to rulemaking under this 
                                section or other sections of this part; 
                                and
                                    ``(V) risk assessments that are 
                                relevant to rulemaking under this 
                                section and other sections of this 
                                part.
                            ``(iii) Numbers of alternatives.--
                        Guidelines regarding when it may be reasonable 
                        to consider in a rulemaking more alternatives 
                        than the number presumed to be reasonable under 
                        subsection (b)(4).
                            ``(iv) Adoption of alternatives for major 
                        or high-impact rules.--Guidelines regarding 
                        when it may be appropriate, in a rulemaking for 
                        a major or high-impact rule, to adopt an 
                        alternative final rule under subsection 
                        (f)(1)(B).
                            ``(v) Administrator review.--Guidelines 
                        regarding the efficient submission and review 
                        of proposed and final rules under subsections 
                        (c)(1) and (f)(2).''
                    ``(B) Agency analysis of rules.--
                            ``(i) In general.--The rigor of the cost-
                        benefit analysis required or recommended 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 identify, quantify, and evaluate the need 
                for rulemaking and 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 adoption of 
                        rules under subsection (e)(3)(B)(iii), which 
                        shall provide a reasonable opportunity for 
                        cross-examination, as described in subsection 
                        (e)(3)(B)(iii)(III).
                    ``(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 make and document a 
        reasoned determination that--
                    ``(A) such guidance is understandable and complies 
                with relevant statutory objectives and regulatory 
                provisions; and
                    ``(B) identifies the costs and benefits, including 
                all costs and benefits to be considered during a 
                rulemaking as required under subsection (b), of 
                requiring conduct conforming to such guidance and 
                assures that such benefits justify such costs.
            ``(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) ensure that agencies 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) guidance;
                            ``(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 or high-impact 
                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.
    ``(m) Rule of Construction.--Nothing in this section shall be 
construed to limit the scope of the authority of the Office of 
Information and Regulatory Affairs under subchapter I of chapter 35 of 
title 44, section 515 of the Treasury and General Government 
Appropriations Act, 2001 (Public Law 106-554; 114 Stat. 2763A-154), 
chapter 8 of this title, or any other law or Executive Order.''.

SEC. 4. SCOPE OF REVIEW.

    Section 706 of title 5, United States Code, is amended--
            (1) in the first sentence of the matter preceding paragraph 
        (1), by striking ``To the extent necessary'' and inserting the 
        following:
    ``(a) In General.--To the extent necessary''; and
            (2) in subsection (a), as so designated--
                    (A) in paragraph (1), by striking ``and'' at the 
                end;
                    (B) in paragraph (2)--
                            (i) in the matter preceding subparagraph 
                        (A), by inserting ``, or, when appropriate, 
                        remand a matter to an agency without setting 
                        aside,'' after ``set aside''; and
                            (ii) in subparagraph (F), by striking the 
                        period at the end and inserting ``; and''; and
                    (C) by striking the flush text following paragraph 
                (2)(F) and inserting the following:
            ``(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 the record cited by a party, and due account 
shall be taken of the rule of prejudicial error.
    ``(c) Preclusion of Review.--
            ``(1) In general.--Any action or inaction of the 
        Administrator under subchapter II of chapter 5, except sections 
        552 and 552a, shall not be subject to judicial review.
            ``(2) Rule of construction.--The preclusion of judicial 
        review under this subsection shall not be construed or used to 
        construe any other provision of law to provide any cause of 
        action against the Administrator, except as explicitly provided 
        by law.
    ``(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.''.

SEC. 5. ADDED DEFINITIONS.

    Section 701(b) of title 5, United States Code, is amended--
            (1) in paragraph (1)(H), by striking ``and'' at the end;
            (2) in paragraph (2)--
                    (A) by inserting ```guidance','' after 
                ```relief',''; and
                    (B) 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.''.

SEC. 6. APPLICATION.

    The amendments made by this Act to sections 553, 701(b), and 706 of 
title 5, United States Code, shall not apply to any rulemaking, as 
defined in section 551 of title 5, United States Code, as amended by 
section 2 of this Act, that is pending or completed as of the date of 
enactment of this Act.

SEC. 7. RULE OF CONSTRUCTION WITH RESPECT TO COPYRIGHTS.

    Nothing in this Act, or in the amendments made by this Act, may be 
construed as altering, modifying, or abridging an exclusive right 
granted under title 17, United States Code.

SEC. 8. TECHNICAL AND CONFORMING AMENDMENTS.

    (a) Alaska National Interest Lands Conservation Act.--Section 
1002(g)(2) of the Alaska National Interest Lands Conservation Act (16 
U.S.C. 3142(g)(2)) is amended, in the third sentence, by striking 
``section 706(2)(E)'' and inserting ``section 706(a)(2)(E)''.
    (b) Antarctic Marine Living Resources Convention Act of 1984.--
Section 308(c) of the Antarctic Marine Living Resources Convention Act 
of 1984 (16 U.S.C. 2437(c)) is amended, in the third sentence, by 
striking ``section 706(2)(E)'' and inserting ``section 706(a)(2)(E)''.
    (c) Congressional Accountability Act of 1995.--Section 409 of the 
Congressional Accountability Act of 1995 (2 U.S.C. 1409) is amended, in 
the first sentence--
            (1) by striking ``section 706(2)'' and inserting ``section 
        706(a)(2)''; and
            (2) by striking ``section 706(2)(B)'' and inserting 
        ``section 706(a)(2)(B)''.
    (d) Consumer Product Safety Act.--Section 9(i) of the Consumer 
Product Safety Act (15 U.S.C. 2058(i)) is amended, in the first 
sentence, by striking ``section 553(e)'' and inserting ``section 
553(i)''.
    (e) Deep Seabed Hard Mineral Resources Act.--Section 302(b) of the 
Deep Seabed Hard Mineral Resources Act (30 U.S.C. 1462(b)) is amended, 
in the third sentence, by striking ``section 706(2)(E)'' and inserting 
``section 706(a)(2)(E)''.
    (f) Defense Production Act of 1950.--Section 709(b)(1) of the 
Defense Production Act of 1950 (50 U.S.C. 4559(b)(1)) is amended by 
striking ``for not less than 30 days, consistent with the requirements 
of section 553(b)'' and inserting ``in a manner consistent with the 
requirements of section 553(c)''.
    (g) Endangered Species Act of 1973.--Section 4(b)(3) of the 
Endangered Species Act of 1973 (16 U.S.C. 1533(b)(3)) is amended--
            (1) in subparagraph (A), in the first sentence, by striking 
        ``section 553(e)'' and inserting ``section 553(i)''; and
            (2) in subparagraph (D)(i), in the first sentence, by 
        striking ``section 553(e)'' and inserting ``section 553(i)''.
    (h) Expedited Funds Availability Act.--Section 609(a) of the 
Expedited Funds Availability Act (12 U.S.C. 4008(a)) is amended, in the 
matter preceding paragraph (1), by striking ``section 553(c)'' and 
inserting ``section 553''.
    (i) Fastener Quality Act.--Section 6(b)(3) of the Fastener Quality 
Act (15 U.S.C. 5408(b)(3)) is amended, in the second sentence, by 
striking ``section 706(2)'' and inserting ``section 706(a)(2)''.
    (j) Federal Food, Drug, and Cosmetic Act.--Section 912(b) of the 
Federal Food, Drug, and Cosmetic Act (21 U.S.C. 387l(b)) is amended, in 
the second sentence, by striking ``section 706(2)(A)'' and inserting 
``section 706(a)(2)(A)''.
    (k) Federal Hazardous Substances Act.--Section 3 of the Federal 
Hazardous Substances Act (15 U.S.C. 1262) is amended--
            (1) in subsection (e)(1), in the first sentence, by 
        striking ``(other than clause (B) of the last sentence of 
        subsection (b) of such section) of title 5 of the United States 
        Code'' and inserting ``of title 5, United States Code, other 
        than subsection (g)(3) of such section,''; and
            (2) in subsection (j), in the first sentence, by striking 
        ``section 553(e)'' and inserting ``section 553(i)''.
    (l) Federal Trade Commission Act.--Section 18(e) of the Federal 
Trade Commission Act (15 U.S.C. 57a(e)) is amended--
            (1) in paragraph (3), in the second sentence of the matter 
        preceding subparagraph (A), by striking ``section 706(2)'' and 
        inserting ``section 706(a)(2)''; and
            (2) in paragraph (5)(C), in the second sentence, by 
        striking ``Section 706(2)(E)'' and inserting ``Section 
        706(a)(2)(E)''.
    (m) Flammable Fabrics Act.--The Flammable Fabrics Act (15 U.S.C. 
1191 et seq.) is amended--
            (1) in section 4(k) (15 U.S.C. 1193(k)), in the first 
        sentence, by striking ``section 553(e)'' and inserting 
        ``section 553(i)''; and
            (2) in section 16(c)(2) (15 U.S.C. 1203(c)(2)), by striking 
        ``section 553(b)'' and inserting ``section 553(c)''.
    (n) General Education Provisions Act.--Section 411 of the General 
Education Provisions Act (20 U.S.C. 1221e-4) is amended, in the second 
sentence, by striking ``Notwithstanding the exception provided under 
section 553(b) of title 5, such'' and inserting ``Such''.
    (o) High Seas Fishing Compliance Act of 1995.--Section 108(d) of 
the High Seas Fishing Compliance Act of 1995 (16 U.S.C. 5507(d)) is 
amended, in the third sentence, by striking ``section 706(2)'' and 
inserting ``section 706(a)(2)''.
    (p) Housing and Community Development Act of 1992.--The Housing and 
Community Development Act of 1992 (12 U.S.C. 4501 et seq.) is amended--
            (1) in section 643(b)(3) (42 U.S.C. 13603(b)(3)), in the 
        first sentence, by striking ``(notwithstanding subsections 
        (a)(2), (b)(B), and (d)(3) of such section)'' and inserting 
        ``(notwithstanding subsections (a)(2), (g)(3), and (h)(2) of 
        such section)''; and
            (2) in section 685 (42 U.S.C. 13643), in the second 
        sentence, by striking ``(notwithstanding subsections (a)(2), 
        (b)(B), and (d)(3) of such section)'' and inserting 
        ``(notwithstanding subsections (a)(2), (g)(3), and (h)(2) of 
        such section)''.
    (q) International Banking Act of 1978.--Section 7(f)(2) of the 
International Banking Act of 1978 (12 U.S.C. 3105(f)(2)) is amended by 
striking ``paragraph (2)(F)'' and inserting ``subsection (a)(2)(F)''.
    (r) Magnuson-Stevens Fishery Conservation and Management Act.--
Section 308(b) of the Magnuson-Stevens Fishery Conservation and 
Management Act (16 U.S.C. 1858(b)) is amended, in the third sentence, 
by striking ``section 706(2)'' and inserting ``section 706(a)(2)''.
    (s) Marine Mammal Protection Act of 1972.--Section 109 of the 
Marine Mammal Protection Act of 1972 (16 U.S.C. 1379) is amended--
            (1) in subsection (c)(4), in the first sentence, by 
        striking ``section 706(2) (A) through (E) of Title'' and 
        inserting ``subparagraphs (A) through (E) of section 706(a)(2) 
        of title''; and
            (2) in subsection (d)(2), in the second sentence--
                    (A) by striking ``Title'' and inserting ``title''; 
                and
                    (B) by striking ``subsection (d) of such section 
                553'' and inserting ``subsection (h) of such section 
                553''.
    (t) Mckinney-Vento Homeless Assistance Act.--Section 433 of the 
McKinney-Vento Homeless Assistance Act (42 U.S.C. 11387) is amended, in 
the second sentence, by striking ``(notwithstanding subsections (a)(2), 
(b)(B), and (d)(3) of such section)'' and inserting ``(notwithstanding 
subsections (a)(2), (g)(3), and (h)(2) of such section)''.
    (u) Migrant and Seasonal Agricultural Worker Protection Act.--The 
Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1801 
et seq.) is amended--
            (1) in section 103(c) (29 U.S.C. 1813(c)), in the third 
        sentence, by striking ``section 706(2)(E)'' and inserting 
        ``section 706(a)(2)(E)''; and
            (2) in section 503(c) (29 U.S.C. 1853(c)), in the third 
        sentence, by striking ``section 706(2)(E)'' and inserting 
        ``section 706(a)(2)(E)''.
    (v) Milwaukee Railroad Restructuring Act.--The Milwaukee Railroad 
Restructuring Act (45 U.S.C. 901 et seq.) is amended--
            (1) in section 5(b)(2) (45 U.S.C. 904(b)(2)), in the second 
        sentence, by striking ``sections 706(2)(A), 706(2)(B), 
        706(2)(C), and 706(2)(D) of title 5 of the United States Code'' 
        and inserting ``subparagraphs (A), (B), (C), and (D) of section 
        706(a)(2) of title 5, United States Code''; and
            (2) in section 17(b)(2) (45 U.S.C. 915(b)(2)), in the 
        second sentence, by striking ``sections 706(2)(A), 706(2)(B), 
        706(2)(C), and 706(2)(D) of title 5 of the United States Code'' 
        and inserting ``subparagraphs (A), (B), (C), and (D) of section 
        706(a)(2) of title 5, United States Code''.
    (w) Native American Programs Act of 1974.--Section 814 of the 
Native American Programs Act of 1974 (42 U.S.C. 2992b-1) is amended--
            (1) in subsection (b)--
                    (A) in paragraph (1), in the matter preceding 
                subparagraph (A), by striking ``Subparagraph (A) of the 
                last sentence of section 553(b) of title 5, United 
                States Code, shall not apply with respect to any 
                interpretative rule or general statement of policy'' 
                and inserting ``Section 553(c) of title 5, United 
                States Code, shall apply with respect to guidance'';
                    (B) in paragraph (2)--
                            (i) in the matter preceding subparagraph 
                        (A), by striking ``Subparagraph (B) of the last 
                        sentence of section 553(b)'' and inserting 
                        ``Section 553(g)(3)''; and
                            (ii) by striking ``an interpretative rule 
                        or a general statement of policy'' and 
                        inserting ``guidance''; and
                    (C) in paragraph (3), in the matter preceding 
                subparagraph (A)--
                            (i) by striking ``The first 2 sentences of 
                        section 553(b)'' and inserting ``Section 
                        553(c)''; and
                            (ii) by striking ``an interpretative rule, 
                        a general statement of policy,'' and inserting 
                        ``guidance'';
            (2) in subsection (c)--
                    (A) in the matter preceding paragraph (1)--
                            (i) by striking ``section 553(d)'' and 
                        inserting ``section 553(h)''; and
                            (ii) by striking ``an interpretative rule) 
                        or general statement of policy'' and inserting 
                        ``guidance)''; and
                    (B) in the flush text following paragraph (2), by 
                striking ``the first 2 sentences of section 553(b)'' 
                and inserting ``section 553(c)'';
            (3) in subsection (d), by striking ``an interpretative 
        rule) and each general statement of policy'' and inserting 
        ``guidance)'';
            (4) in subsection (e)--
                    (A) by striking ``any interpretative rule) or a 
                general statement of policy'' and inserting 
                ``guidance)''; and
                    (B) by striking ``or such general statement of 
                policy'';
            (5) in subsection (f)--
                    (A) by striking ``an interpretative rule) or a 
                general statement of policy'' and inserting 
                ``guidance)''; and
                    (B) by striking ``or such general statement of 
                policy''; and
            (6) by adding at the end the following:
    ``(g) In this section, the term `guidance' has the meaning given 
the term in section 551 of title 5, United States Code.''.
    (x) Natural Gas Policy Act of 1978.--Section 502(b) of the Natural 
Gas Policy Act of 1978 (15 U.S.C. 3412(b)) is amended, in the third 
sentence, by striking ``section 553(d)(3)'' and inserting ``section 
553(h)(2)''.
    (y) Noise Control Act of 1972.--Section 6(c)(2) of the Noise 
Control Act of 1972 (42 U.S.C. 4905(c)(2)) is amended by striking ``the 
first sentence of section 553(c)'' and inserting ``section 553(c)(4)''.
    (z) Northeast Rail Service Act of 1981.--Section 1152(c) of the 
Northeast Rail Service Act of 1981 (45 U.S.C. 1105(c)) is amended by 
striking ``paragraphs (2) (A), (B), (C), and (D) of section 706, title 
5'' and inserting ``subparagraphs (A) through (D) of section 706(a)(2) 
of title 5''.
    (aa) Northern Pacific Halibut Act of 1982.--Section 8(b) of the 
Northern Pacific Halibut Act of 1982 (16 U.S.C. 773f(b)) is amended, in 
the third sentence, by striking ``section 706(2)'' and inserting 
``section 706(a)(2)''.
    (bb) Poison Prevention Packaging Act of 1970.--The Poison 
Prevention Packaging Act of 1970 (15 U.S.C. 1471 et seq.) is amended--
            (1) in section 5 (15 U.S.C. 1474)--
                    (A) in subsection (a), in the first sentence, by 
                striking ``(other than paragraph (3)(B) of the last 
                sentence of subsection (b) of such section) of title 5 
                of the United States Code'' and inserting ``of title 5, 
                United States Code, other than subsection (g)(3) of 
                such section,''; and
                    (B) in subsection (b)--
                            (i) by striking ``of the United States 
                        Code'' each place that term appears and 
                        inserting ``, United States Code''; and
                            (ii) in paragraph (3), in the first 
                        sentence, by striking ``paragraph (2) of 
                        section 706'' and inserting ``section 
                        706(a)(2)''; and
            (2) in section 7(c)(2) (15 U.S.C. 1476(c)(2)), by striking 
        ``section 553(b)'' and inserting ``section 553(c)''.
    (cc) Poultry Products Inspection Act.--Section 14(c) of the Poultry 
Products Inspection Act (21 U.S.C. 463(c)) is amended by striking 
``section 553(c) of title 5, United States Code'' and inserting 
``section 553(c)(4) of title 5, United States Code,''.
    (dd) Public Health Service Act.--Section 2723(b)(2)(E)(iii) of the 
Public Health Service Act (42 U.S.C. 300gg-22(b)(2)(E)(iii)) is amended 
by striking ``section 706(2)(E)'' and inserting ``section 
706(a)(2)(E)''.
    (ee) Regional Rail Reorganization Act of 1973.--Section 216(c)(3) 
of the Regional Rail Reorganization Act of 1973 (45 U.S.C. 726(c)(3)) 
is amended, in the fourth sentence, by striking ``section 706(2)'' and 
inserting ``section 706(a)(2)''.
    (ff) Social Security Act.--The Social Security Act (42 U.S.C. 301 
et seq.) is amended--
            (1) in section 221(j) (42 U.S.C. 421(j)), in the flush text 
        following paragraph (3), by striking ``in accordance with 
        section 553(b)(A) of title 5, United States Code'' and all that 
        follows through ``and statements'' and inserting ``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''; and
            (2) in section 1871(b)(2) (42 U.S.C. 1395hh(b)(2)), by 
        striking subparagraph (C) and inserting the following:
                    ``(C) subsection (c) of section 553 of title 5, 
                United States Code, does not apply pursuant to 
                subsection (g)(3) of such section.''.
    (gg) South Pacific Tuna Act of 1988.--Section 8(b) of the South 
Pacific Tuna Act of 1988 (16 U.S.C. 973f(b)) is amended, in the third 
sentence, by striking ``section 706(2)'' and inserting ``section 
706(a)(2)''.
    (hh) Tariff Act of 1930.--Section 777(f)(5) of the Tariff Act of 
1930 (19 U.S.C. 1677f(f)(5)) is amended, in the third sentence, by 
striking ``section 706(2)'' and inserting ``section 706(a)(2)''.
    (ii) Title 5, United States Code.--Title 5, United States Code, is 
amended--
            (1) in section 556(d), in the sixth sentence, by striking 
        ``rule making'' and inserting ``rulemaking'';
            (2) in section 557(b), in the fourth sentence of the matter 
        preceding paragraph (1), by striking ``rule making'' and 
        inserting ``rulemaking'';
            (3) in section 562(11), by striking ``means `rule making' 
        as that term is defined in section 551(5)'' and inserting ``has 
        the meaning given the term in section 551'';
            (4) in section 601(2), by striking ``section 553(b)'' and 
        inserting ``section 553(c)'';
            (5) in section 1103(b)(1), by striking ``section 553(b)(1), 
        (2), and (3)'' and inserting ``section 553(c)''; and
            (6) in section 1105, by striking ``subsections (b), (c), 
        and (d)'' and inserting ``subsections (b) through (h) and 
        (j)''.
    (jj) Title 11, United States Code.--Section 1172(b) of title 11, 
United States Code, is amended, in the second sentence, by striking 
``sections 706(2)(A), 706(2)(B), 706(2)(C), and 706(2)(D) of title 5'' 
and inserting ``subparagraphs (A), (B), (C), and (D) of section 
706(a)(2) of title 5''.
    (kk) Title 14, United States Code.--Section 2507(b)(2)(A) of title 
14, United States Code, is amended by striking ``section 706(1)'' and 
inserting ``section 706(a)(1)''.
    (ll) Title 28, United States Code.--Section 3902 of title 28, 
United States Code, is amended, in the first sentence, by striking 
``section 706(2)'' and inserting ``section 706(a)(2)''.
    (mm) Title 41, United States Code.--Section 8503(a)(2) of title 41, 
United States Code, is amended by striking ``section 553(b) to (e)'' 
and inserting ``section 553''.
    (nn) Title 46, United States Code.--Title 46, United States Code, 
is amended--
            (1) in section 14104(b), in the second sentence, by 
        striking ``shall be considered to be an interpretive regulation 
        for purposes of section 553 of title 5'' and inserting ``shall 
        be subject to section 553 of title 5''; and
            (2) in section 70105(c)(3)(B), in the second sentence, by 
        striking ``section 706(2)(E)'' and inserting ``section 
        706(a)(2)(E)''.
    (oo) Toxic Substances Control Act.--Section 19(c)(1)(B) of the 
Toxic Substances Control Act (15 U.S.C. 2618(c)(1)(B)) is amended--
            (1) in clause (i)--
                    (A) in subclause (I), by striking ``paragraph 
                (2)(E)'' and inserting ``subsection (a)(2)(E)''; and
                    (B) in subclause (II), by striking ``paragraph 
                (2)(E)'' and inserting ``subsection (a)(2)(E)''; and
            (2) in clause (ii), by striking ``section 553(c)'' and 
        inserting ``section 553(f)(2)''.
    (pp) Unfunded Mandates Reform Act of 1995.--Section 401(a)(2)(A) of 
the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1571(a)(2)(A)) is 
amended by striking ``section 706(1)'' and inserting ``section 
706(a)(1)''.
    (qq) United States Warehouse Act.--Section 13(d)(2) of the United 
States Warehouse Act (7 U.S.C. 252(d)(2)) is amended by striking 
``section 706(2)'' and inserting ``section 706(a)(2)''.
                                 <all>