[Senate Report 115-208]
[From the U.S. Government Publishing Office]
Calendar No. 312
115th Congress } { Report
SENATE
2d Session } { 115-208
_______________________________________________________________________
REGULATORY ACCOUNTABILITY ACT OF 2017
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
together with
MINORITY VIEWS
to accompany
S. 951
To reform the process by which Federal agencies analyze and formulate
new regulations and guidance documents, and for other purposes
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
February 14, 2018.--Ordered to be printed
______
U.S. GOVERNMENT PUBLISHING OFFICE
79-010 WASHINGTON : 2018
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona CLAIRE McCASKILL, Missouri
ROB PORTMAN, Ohio THOMAS R. CARPER, Delaware
RAND PAUL, Kentucky HEIDI HEITKAMP, North Dakota
JAMES LANKFORD, Oklahoma GARY C. PETERS, Michigan
MICHAEL B. ENZI, Wyoming MAGGIE HASSAN, New Hampshire
JOHN HOEVEN, North Dakota KAMALA D. HARRIS, California
STEVE DAINES, Montana DOUG JONES, Alabama
Christopher R. Hixon, Staff Director
Gabrielle D'Adamo Singer, Chief Counsel
Satya P. Thallam, Chief Economist
Margaret E. Daum, Minority Staff Director
Stacia M. Cardille, Minority Chief Counsel
Charles A. Moskowitz, Minority Senior Legislative Counsel
Katherine C. Sybenga, Minority Counsel
Laura W. Kilbride, Chief Clerk
Calendar No. 312
115th Congress } { Report
SENATE
2d Session } { 115-208
======================================================================
REGULATORY ACCOUNTABILITY ACT OF 2017
_______
February 14, 2018.--Ordered to be printed
_______
Mr. Johnson, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany S. 951]
[Including cost estimate of the Congressional Budget Office]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 951) to reform the
process by which Federal agencies analyze and formulate new
regulations and guidance documents, and for other purposes,
having considered the same, reports favorably thereon with an
amendment in the nature of a substitute, and recommends that
the bill, as amended, do pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background and Need for the Legislation..........................2
III. Legislative History..............................................9
IV. Section-by-Section Analysis.....................................10
V. Evaluation of Regulatory Impact.................................16
VI. Congressional Budget Office Cost Estimate.......................16
VII. Minority Views..................................................21
VIII.Changes in Existing Law Made by the Bill, as Reported...........27
I. Purpose and Summary
The Regulatory Accountability Act of 2017, S. 951, reforms
the process by which Federal agencies analyze and formulate new
regulations and guidance documents by codifying longstanding
regulatory analytical principles within the agency rulemaking
process. It amends the Administrative Procedure Act (APA) and
modernizes the regulatory process with an emphasis on
regulatory impact analysis (including cost-benefit analysis).
This bill promotes transparency and accountability in the
Federal regulatory process, and provides safeguards to protect
public safety and health.
II. Background and the Need for Legislation
Background and Existing Executive Orders
In 1946, Congress enacted the APA in response to the
substantial increase in Federal regulations driven by the New
Deal.\1\ The APA established guidelines for Federal agency
rulemaking by incorporating public participation requirements
in the rulemaking process.\2\ Since its enactment, Congress has
amended the statute sixteen times,\3\ but none of these
amendments substantially changed the process by which Federal
agencies produce regulations. Congress has not amended the APA
at all over the last two decades.\4\
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\1\See APA, Pub. L. No. 79-404 (codified as amended in scattered
sections of Title 5 of the United States Code).
\2\George B. Shepherd, Fierce Compromise: The Administrative
Procedure Act Emerges from New Deal Politics, 90 Nw U. L. Rev. 1557,
1560 (1996).
\3\Christopher Walker, The Regulatory Accountability Act Is a Model
of Bipartisan Reform, Reg. Rev. (May 18, 2017), https://
www.theregreview.org/2017/05/18/walker-model-bipartisan-reform/ (``In
the past seven decades, Congress has only amended the APA 16 times--
arguably only four of which constituted significant changes: the
Freedom of Information Act (FOIA) in 1966, the Privacy Act in 1974, the
Government in the Sunshine Act in 1976, and amendments, also in 1976,
waiving certain claims of sovereign immunity in suits against the
government.''). See Act of Aug. 8, 1946, ch.870, Title III, Sec. 302,
60 Stat. 918 (amending 5 U.S.C. Sec. 551(a) to exclude functions
conferred by the Veterans' Emergency Housing Act of 1946); Act of Aug.
10, 1946, ch. 951, Title VI, Sec. 601, 60 Stat. 993 (also amending 5
U.S.C. Sec. 551(a) to exclude functions conferred by the Veteran's
Emergency Housing Act of 1946); Act of Mar. 31, 1947, ch. 30, Sec.
6(a), 61 Stat. 37 (amending definition of agency in 5 U.S.C. Sec.
551(a) to exclude functions conferred by the Surplus Control Extension
Act of 1947); Act of June 30, 1947, ch. 163, Title II, Sec. 210, 61
Stat. 201 (amending definition of agency in 5 U.S.C. Sec. 551(a) to
exclude functions conferred by the Housing Rent Act of 1947); Act of
Mar. 30, 1948, ch. 161, Title III, Sec. 301, 62 Stat. 99 (amending
definition of agency in 5 U.S.C. Sec. 551(a) to exclude functions
conferred by the 1948 amendments to the Housing and Rent Act of 1947);
Freedom of Information Act of 1966, Pub. L. No. 89-487, 80 Stat. 250
(amending 5 U.S.C. Sec. 552); Act of Oct. 22, 1968, Pub. L. No. 90-
623, Sec. 1(1), 82 Stat. 1312 (amending 5 U.S.C. Sec. 559 to insert
``of this title''); Privacy Act of 1974, Pub. L. No. 93-579, 88 Stat.
1896 (codified at 5 U.S.C. Sec. 552(a)); see also Act of Dec. 31,
1975, Pub. L. No. 94-183, Sec. 2(2), 89 Stat. 1057 (amending 5 U.S.C.
Sec. 552a(g)(5) to replace ``to the effective date of this section''
with ``to September 27, 1975''); Government in the Sunshine Act of
1976, Pub. L. No. 94-409, Sec. Sec. 3(a), 4, 5(b), 90 Stat. 1241-1247
(adding 5 U.S.C. Sec. 552b and Sec. 557(d)(1) and conforming language
in Sec. Sec. 551, 552, and 556); Act of Oct. 21, 1976, Pub. L. No. 94-
574, Sec. 1, 90 Stat. 2721 (amending 5 U.S.C. Sec. Sec. 702, 703);
Act of Mar. 27, 1978, Pub. L. No. 95-251, Sec. Sec. 2(a)(1), 2(b)(1),
(2), 92 Stat. 183 (amending 5 U.S.C. Sec. Sec. 554, 556 and 559); Act
of Oct. 13, 1978, Pub. L. No. 95-454, Sec. 801(a)(3)(B)(iii), 92 Stat.
1222 (amending 5 U.S.C. Sec. 559 to replace ``5362'' with ``5372'');
Debt Collection Act of 1982, Pub. L. No. 97-365, Sec. 2, 96 Stat. 1749
(amending 5 U.S.C. Sec. 552a); Congressional Reports Elimination Act
of 1982, Pub. L. No. 97-375, Title II, Sec. 201(a), (b), 96 Stat. 1821
(amending Sec. 552a(p)); Act of Jan. 12, 1983, Pub. L. No. 97-452,
Sec. 2(a)(1), 96 Stat. 2478 (amending Sec. Sec. 552a(b), 552a(m));
Electronic Freedom of Information Act Amendments of 1996, Pub. L. No.
104-231, Sec. Sec. 3-11, 110 Stat. 3049-3054 (amending 5 U.S.C. Sec.
552).
\4\Walker, supra note 3.
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Although the APA has not significantly changed over the
last seventy years, the Executive Branch's role in governing
all facets of American life has changed and grown tremendously.
Each year Federal agencies add thousands of pages of rules to
the Code of Federal Regulations.\5\ As the administrative state
has grown larger and more complicated, presidents of both
parties have recognized the need for regulators to engage in
thoughtful, transparent analysis before promulgating final
regulations. For thirty-six years, Presidents have issued
executive orders intended to make the regulatory process more
transparent and accountable.
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\5\See Clyde Wayne Crews., New Data: Code of Federal Regulations
Expanding, Faster Pace Under Obama, Competitive Enterprise Inst. (Mar.
17, 2014), https://cei.org/blog/new-data-code-federal-regulations-
expanding-faster-pace-under-obama; see also Clyde Wayne Crews Jr., Ten
Thousand Commandments: An Annual Snapshot of the Federal Regulatory
State, Competitive Enterprise Inst. 22 fig.14 (2016), https://cei.org/
sites/default/files/Wayne%20Crews%20-
%20Ten%20Thousand%20Commandments%202016%20-%20May%204%202016.pdf;
Geo.Wash. Reg. Studies Ctr., Total Pages; Code of Federal Regulations
(1950-2016), Geo. Wash. Reg. Studies Ctr., https://
regulatorystudies.columbian.gwu.edu/sites/
regulatorystudies.columbian.gwu.edu/files/downloads/CFR_pages.JPG (last
visited Oct. 11, 2017).
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In 1981, President Reagan issued Executive Order (E.O.)
12291 ``to reduce the burdens of existing and future
regulations, increase agency accountability for regulatory
actions, provide for presidential oversight of the regulatory
process, minimize duplication and conflict of regulations, and
insure [sic] well-reasoned regulations.''\6\ E.O. 12291
required all agencies to meet five requirements when writing
new rules, reviewing existing rules, and developing legislative
proposals regarding legislation, including: (1) ``adequate
information concerning the need for and consequences of
proposed government action''; (2) ``benefits to society for the
regulation outweigh the potential costs to society''; (3)
``[r]egulatory objectives shall be chosen to maximize the net
benefits to society''; (4) ``the alternative involving the
least net cost to society shall be chosen''; and (5)
``maximizing the aggregate net benefits to society.''\7\
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\6\Exec. Order No. 12291, 46 Fed. Reg. 13193 (Feb. 17, 1981).
\7\Id.
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E.O. 12291 required agencies to prepare, and to the extent
permitted by law, consider a Regulatory Impact Analysis (RIA)
for every ``major rule.'' A major rule is defined as a
regulation likely to result in ``(1) an annual effect on the
economy of $100 million or more; (2) A major increase in costs
or prices for consumers, individual industries, Federal, State,
or local government agencies, or geographic regions; or (3)
Significant adverse effects on competition, employment,
investment, productivity, innovation, or on the ability of
United States-based enterprises to compete with foreign-based
enterprises in domestic or export markets.''\8\
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\8\Id.
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This E.O. also authorized the Director of the Office of
Management and Budget (OMB) to review any preliminary or final
RIA, notice of proposed rulemaking (NPRM), and final rule and
required an agency to consult with the Director about that
review. It also required agencies to review and perform RIAs of
currently effective major rules and authorized the Director to
designate rules for review.\9\
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\9\Id.
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Before approving any major regulation, E.O. 12291 required
agencies to determine whether the regulation is ``clearly
within the authority delegated by law and consistent with
congressional intent.''\10\ Agencies also have to ensure that
the ``factual conclusions upon which the rule is based have
substantial support in the agency record.''\11\
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\10\Id.
\11\Id.
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On September 30, 1993, President Clinton issued E.O.
12866,\12\ which built on the foundations of E.O. 12291 to
establish the current cost-benefit analysis requirements for
Executive Branch agencies.\13\ In the introduction to E.O.
12866, President Clinton remarked:
\12\Exec. Order No. 12866, 58 Fed. Reg. 190 (Oct. 4, 1993).
\13\Note that E.O. 12866 revoked and replaced E.O. 12291; E.O.
12866 requirements are currently the effective requirements.
The American people deserve a regulatory system that
works for them, not against them: a regulatory system
that protects and improves their health, safety,
environment, and well-being and improves the
performance of the economy without imposing
unacceptable or unreasonable costs on society;
regulatory policies that recognize that the private
sector and private markets are the best engine for
economic growth; regulatory approaches that respect the
role of State, local, and tribal governments; and
regulations that are effective, consistent, sensible,
and understandable. We do not have such a regulatory
system today.\14\
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\14\Exec. Order No. 12866, supra note 12.
He explained the goals of E.O. 12866 were to ``enhance
planning and coordination with respect to both new and existing
regulations; to reaffirm the primacy of Federal agencies in the
regulatory decision-making process; to restore the integrity
and legitimacy of regulatory review and oversight; and to make
the process more accessible and open to the public.'' E.O.
12866 announced the nation's ``regulatory philosophy,'' similar
to that in President Reagan's Executive Order, stating that
``Federal agencies should promulgate only such regulations as
are required by law, are necessary to interpret the law, or are
made necessary by compelling public need, such as material
failures of private markets to protect or improve the health
and safety of the public, the environment, or the well-being of
the American people.''\15\
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\15\Id.
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E.O. 12866 expressed the principle that ``[i]n deciding
whether and how to regulate, agencies should assess all costs
and benefits of available regulatory alternatives, including
the alternative of not regulating.'' Thus, the agencies are to
choose the approach that maximizes net benefits unless a
statute requires otherwise.\16\
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\16\Id.
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It also directs OMB to review all Executive Branch agency
rulemaking to ensure the regulations are consistent with
applicable law and do not conflict with another agency's
actions, and instructs the Office of Information and Regulatory
Affairs (OIRA) to provide guidance to agencies regarding
regulatory planning and to review individual regulations.\17\
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\17\Id.
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Finally, E.O. 12866 requires agencies to periodically
review its existing significant regulations\18\ and provides
that each agency should ``provide the public with meaningful
participation in the regulatory process,'' including seeking
stakeholder opinions before issuing an NPRM and providing a
comment period of at least 60 days after proposing a
regulation.\19\ It provides that for each significant
regulatory action, each agency shall provide the draft to OIRA
with a description of the need for the regulation and how the
regulation meets that need and an assessment of the action's
potential costs and benefits and potential alternatives' costs
and benefits.\20\ OIRA is then to provide ``meaningful guidance
and oversight'' to the agencies and has authority to return a
regulation to an agency for further consideration with a
written explanation.\21\ Agencies may not publish significant
regulatory actions until OIRA notifies the agency that OIRA has
waived or completed its review without requests for further
consideration, or until 90 days have passed since agency
submission to OIRA without OIRA taking action.\22\
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\18\Id. (defining ``significant regulatory action'' as ``any
regulatory action that is likely to result in a rule that may: (1) have
an annual effect on the economy of $100 million or more or adversely
affect in a material way the economy, a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local, or tribal governments or communities; (2)
create a serious inconsistency or otherwise interfere with an action
taken or planned by another agency; (3) materially alter the budgetary
impact of entitlements, grants, user fees, or loan programs or the
rights and obligations of recipients thereof; or (4) raise novel legal
or policy issues arising out of legal mandates, the President's
priorities, or the principles set forth in this Executive order.'').
\19\Id.
\20\Id.
\21\Id.
\22\Id.
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Presidents George W. Bush, Barack Obama, and Donald Trump
have left President Clinton's E.O. 12866 in place. In 2011,
President Obama supplemented E.O. 12866 with E.O. 13563,
Improving Regulation and Regulatory Review.\23\ E.O. 13563
provides that in applying the principles of E.O. 12866,
agencies should use the ``best available techniques to quantify
present and future benefits and costs as accurately as
possible, and where appropriate and permitted by law, agencies
may consider ``values that are difficult or impossible to
quantify, including equity, human dignity, fairness, and
distributive impacts.''\24\ E.O. 13563 also brought the public
participation elements of E.O. 12866 online, providing that
each agency must afford the public an opportunity to comment on
proposed regulations via the Internet and ``timely online
access to the rulemaking docket on regulations.gov.''\25\ It
also instructed agencies to consider how best to promote
retrospective review of rules and to release retrospective
analyses online when possible.\26\
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\23\Exec. Order No. 13563, 76 Fed. Reg. 3821 (Jan. 21, 2011).
\24\Id.
\25\Id.
\26\Id.
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On July 11, 2011, President Obama released E.O. 13579,
Regulation and Independent Regulatory Agencies,\27\ which built
on E.O. 13563, providing that independent agencies\28\ should
also comply, to the extent permitted by law, with provisions
set forth in E.O. 13563. It states that independent agencies
should meet the same general requirements regarding ``public
participation, integration and innovation, flexible approaches,
and science.''\29\ It also directed agencies to consider ``how
best to promote retrospective analysis of rules that may be
outmoded, ineffective, insufficient, or excessively burdensome,
and to modify, streamline, expand, or repeal them in accordance
with what has been learned.''\30\ Independent agencies are to
release the data and evaluations underlying those reviews
whenever possible.\31\
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\27\Exec. Order No. 13579, 76 Fed. Reg. 41585 (July 14, 2011).
\28\Defined in Exec. Order No. 13579 as ``hav[ing] the meaning set
forth in 44 U.S.C. 3502(5).''
\29\Exec. Order No. 13579, supra note 27.
\30\Id.
\31\Id.
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OIRA Administrators from both parties have recognized the
importance of the principles underlying these Executive Orders
and of maintaining them across administrations.\32\ The current
OIRA Administrator, Neomi Rao, observed during her confirmation
hearing: ``[r]eading through OIRA's statutory authorities as
well as EOs and OMB guidance, I have been struck by the
consistency of the principles guiding the work of the office
across administrations.''\33\ Similarly, Susan Dudley,
Administrator of OIRA from 2007 to 2009 under President George
W. Bush, testified during her nomination hearing: ``I think
there are a lot of things that we do right. I think that the
analytical framework that President Clinton put in place with
Executive Order 12866, which has been continued, I think that
shows that it is not partisan. There is a nonpartisan approach
to understand regulations to make sure that they are having the
intended effects.''\34\
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\32\Infra, notes 33-34.
\33\Nominations of Brock Long to be Administrator, Federal
Emergency Management Agency, U.S. Department of Homeland Security;
Russell Vought to be Deputy Director, Office of Management and Budget;
and Neomi Rao to be Administrator, Office of Information and Regulatory
Affairs, Office of Management and Budget Before the S. Comm. on
Homeland Sec. & Governmental Aff., 115th Cong. 2 (2017) (statement of
Neomi Rao, to be Admin., Off. of Info. & Reg. Aff.).
\34\Nomination of Susan E. Dudley to be Administer, Office of
Information and Regulatory Affairs, Office of Management and Budget
Before the S. Comm. On Homeland Sec. & Governmental Aff., 109th Cong.
15-16 (2006).
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Need for codifying the principles outlined in the Executive Orders
Former OIRA Administrators have expressed support for the
regulatory review mandates included in EOs 12291, 12866, 13563,
and 13579. On the need for cost-benefit analysis, Sally Katzen,
Administrator of OIRA from 1993 to 1998 during the Clinton
Administration, has stated, ``[e]conomic analysis is useful and
clearly instructive; indeed, I cannot imagine making regulatory
choices (or legislative choices for that matter) without a
systematic consideration of the intended (and unintended)
consequences of a proposed action.''\35\ Ms. Dudley has
testified that while the EOs ``have done little to slow the
growth in new regulation, they have focused attention on
understanding the effects of regulations, and some argue that
they have resulted in `smarter regulation' that produces more
benefits than costs.''\36\
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\35\Federal Regulation: A Review of Legislative Proposals, Part II
Before the S. Comm. On Homeland Sec. & Governmental Aff., 112th Cong. 7
(2011) (statement of Sally Katzen, Former Admin., Off. of Info. & Reg.
Aff.).
\36\Reducing Unnecessary and Costly Red Tape Through Smarter
Regulations Before the U.S. Cong. Joint Econ. Comm., 113th Cong. 14-15
(2013) (statement of Susan E. Dudley, Former Admin., Off. of Info. &
Reg. Aff.).
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However, Ms. Dudley has also observed that mandates
contained in an executive order, by themselves, are constrained
in their enforceability, noting: ``statements of principles
from the President are not enforceable in court and will
accomplish little unless the President is willing and able to
enforce them in practice.''\37\
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\37\Id. (citing John D. Graham, Paul R. Noe & Elizabeth L. Branch,
Managing the Regulatory State: The Experience of the Bush
Administration, 33 Fordham Urb. L. J. 953 (2005), and Cass Sunstein,
Smarter Regulation: Remarks from Cass Sunstein, Admin. L. Rev. 63
(2011)).
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Over the last thirty years, these EOs have required
agencies to conduct cost-benefit analyses to support new
regulations; ensure consistency between agencies' regulations;
and review existing regulations. The process established by the
EOs works reasonably well, but without codification, any
President may change the process at any time through a new
executive order, which inherently creates uncertainty in the
current process.
The Committee has previously expressed several additional
reasons to codify the principles outlined in the EOs:\38\
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\38\S. Rep. No. 114-342, at 2-3 (2016).
Despite the longstanding nature of the rulemaking
principles outlined in the aforementioned executive
orders, there are two structural limitations to relying
solely on executive orders to guide agency rulemaking.
The first is that despite a ``usual presumption of
reviewability''\39\ for executive orders, both
executive orders [12866 and 13563] include (nearly
identical) language specifically precluding judicial
review.\40\ This creates a situation in which agencies
cannot be challenged in court when failing to comply
with provisions of prevailing executive orders.
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\39\Peter Raven-Hansen, Making Agencies Follow Orders: Judicial
Review of Agency Violations of Executive Order 12,291, 1983 Duke L.
Rev. 285, 330 (1982).
\40\Exec. Order No. 12866, supra note 12 (In President Clinton's
1993 executive order, this language reads, in part: the order ``does
not create any right or benefit, substantive or procedural, enforceable
at law or equity by a party against the United States. . . .'').
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The second limitation is that these executive orders
have been considered to have only limited application
to independent regulatory agencies. For example,
President Obama's Executive Order 13579--a companion to
Executive Order 13563--notes that ``[i]ndependent
regulatory agencies . . . should promote'' the same
principles and aims of the earlier order, and that they
``should comply with these provisions as well.''\41\
The language notably avoids the more prescriptive
language of ``must'' or ``shall'' in applying the order
to independent agencies . . . . This means that despite
the fact that regulations promulgated by independent
regulatory agencies carry the same weight and force of
law as those by Executive Branch agencies, they are
nonetheless not subject to the same requirements.
Therefore it should come as no surprise that
independent agencies include ``the key elements of
cost-benefit analysis'' (as outlined in the current
executive order) in their published analysis less often
than Executive Branch agencies.\42\ A different study
using a different sample of rulemakings indicated that
no major rule issued by an independent agency in 2012
contained a complete cost-benefit analysis.\43\
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\41\Exec. Order No. 13579, supra note 22.
\42\Exec. Order No. 12866, supra note 12.
\43\Curtis W. Copeland, Economic Analysis and Independent
Regulatory Agencies, Draft Rep. for the Admin. Conf. of the U.S. 87-88
(April 30, 2013), https://www.acus.gov/sites/default/files/documents/
Copeland%20Final%20BCA%20Report%204-30-13.pdf.
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S. 951, the Regulatory Accountability Act of 2017
S. 951 builds on the success of the previous EOs by: (1)
increasing stability in the regulatory process by codifying the
longstanding rulemaking principles established under these
executive orders; (2) increasing transparency by enhancing
comment periods and requiring the underlying data the agency
relied upon in its rulemaking to be posted to an online docket;
(3) providing accountability through a public hearing process
for major and high-impact rules, judicial review, and
retrospective review; and (4) improving agencies' use of
guidance documents.\44\ Moreover, S. 951 makes the application
of these requirements uniform across agencies.
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\44\The American Bar Association has called for nine significant
reforms, at least six of which are addressed by S. 951, including (1)
codify of the requirement that an agency fully disclose data and
studies it relies on during the rulemaking process; (2) provide for the
systematic development of a rulemaking record for agency factual
determinations and judicial review that is made available to the public
online; (3) establish a minimum comment period of 60 days for major
rules; (4) authorize new presidential administrations to delay the
effective date of rules finalized by not yet effective at the end of
the prior administration while the new administration reviews the
merits of the rule; (5) promote retrospective review; and (5) allow the
public to submit post-promulgation comments and allow for ongoing
review of rules by the agencies. See Am. Bar Ass'n, House of Delegates
Resolution 106B, Am. Bar. Ass'n (Feb. 8, 2016), https://
www.americanbar.org/content/dam/aba/images/abanews/2016mymres/106b.pdf.
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For major and high impact rules, S. 951 would require
agencies to consider a reasonable number of alternatives for a
new rule (with the consideration of three such alternatives
presumed to be reasonable) and provide a cost-benefit analysis
of both the quantitative and qualitative costs and benefits of
those alternatives. Once the agency proposes a rule, if the
proposed rule relies on scientific, technical, or economic
information, the agency would have to ensure that the
information is the best reasonably available information. S.
951 would then set a minimum public comment period of 30 days
for most rules and 60 days for major and high-impact rules,
with a good-cause exception for public health and safety risks.
Agencies would then have to adopt the most cost-effective of
the alternatives considered, unless the agency explains why it
took a different course of action.
To ensure the public can easily access the information an
agency relied upon in its rulemaking, S. 951 would require all
of this information--including analytical information, cost-
benefit analyses, and public comments--to be posted to an
online docket. Nothing in this title is intended to alter or
divest copyright owners of their lawfully vested rights, or
require copyright owners to provide access at no cost.
S. 951 would increase accountability in the rulemaking
process in three ways: (a) allowing public hearings to resolve
disputed facts underlying high-impact and major rules; (b)
providing for judicial review of agency compliance with the
rulemaking requirements; and (c) requiring agencies to develop
a plan for periodic review of major and high-impact rules at
the time the agency promulgates those rules.
Judicial review will incentivize agencies to better support
their rules on the front-end and allow for correction of error
after promulgation of the rules.\45\ Recognizing the economic
significance of high-impact rules, S. 951 requires courts to
review the factual findings supporting those rules under the
substantial evidence standard. S. 951 also replaces the more
deferential Auer deference\46\ with Skidmore deference,\47\
providing that when agencies interpret their own rules, the
weight a reviewing court should give to that interpretation
depends on the thoroughness evident in the agency's
consideration of the rule, the validity of the agency's
reasoning, and the consistency of the interpretation with
earlier and later pronouncements. This provision will reduce
agency incentive to write unclear regulations knowing that they
later can interpret the regulation as they see fit.
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\45\Jerry Ellig, Improvements in SEC Economic Analysis Since
Business Roundtable: A Structured Assessment, (Mercatus Ctr., Working
Paper, 2016) (showing that following decisions by the DC Circuit
requiring more robust economic analysis of proposed regulations, the
quality of economic analysis at the Securities and Exchange Commission
``improved substantially.'').
\46\See Auer v. Robbins, 519 U.S. 452 (1997).
\47\See Skidmore v. Swift & Co., 323 U.S. 134 (1944).
---------------------------------------------------------------------------
Finally, reflecting occasional judicial practice,\48\ S.
951 will grant courts the discretion to remand rules for
further consideration while allowing the decision to stay in
place whenever it is appropriate. Current law provides that
reviewing courts shall ``hold unlawful and set aside''
deficient agency actions, findings, and conclusions.\49\ This
amendment will clarify that courts may remand rules to agencies
while keeping them in effect if undoing the rule entirely is
unnecessary.
---------------------------------------------------------------------------
\48\Stephanie J. Tatham, The Unusual Remedy of Remand Without
Vacatur, Final Rep. for the Admin. Conf. of the U.S. 1 (January 30,
2014) (``This remedial approach appears to have arisen relatively
recently and as a matter of judicial instigation. Empirically, it is
uncommon . . . . Remand without vacatur has been used to avoid severely
disruptive consequences of vacatur.'').
\49\5 U.S.C. Sec. 706(2).
---------------------------------------------------------------------------
As President Obama recognized in E.O.s 13563 and 13579,
over time, rules can become outdated and ineffective or may no
longer be the most efficient way to accomplish their purpose.
S. 951 expands and strengthens retrospective review
requirements by requiring agencies to build in a plan for
review when writing major or high-impact rules so that agencies
will regularly assess whether rules are meeting their
objectives.
In 2007, OMB (under then-Director Rob Portman) issued the
final bulletin for Agency Good Guidance Practices, which
established ``policies and procedure for the development,
issuance, and use of significant guidance.''\50\ S. 951 would
codify many of those practices to ensure agencies do not use
guidance to avoid public participation and analysis
requirements involved in writing new legislative rules.
---------------------------------------------------------------------------
\50\Final Bulletin for Agency Good Guidance Practices, 72 Fed. Reg.
3432 (Jan. 25, 2007).
---------------------------------------------------------------------------
While S. 951 primarily focuses on improving the analysis
underlying the rules with the biggest impact on the economy, it
also promotes measures that will improve the entire rulemaking
process. Ultimately, S. 951 will modernize the regulatory
process by putting in place well-established rulemaking
principles that have contributed to better regulations over the
past decades, such as requiring agencies to engage in
meaningful cost-benefit analysis, consider reasonable
alternatives, and continuously engage with the public. These
processes will reduce unnecessary regulatory burdens while
taking public health, safety, and environmental concerns into
consideration. This legislation represents a long-overdue
effort to make the regulatory process more accountable and
effective by improving analysis, transparency, and
accountability through commonsense reforms.
III. Legislative History
Senator Rob Portman (R-OH) introduced S. 951 on April 26,
2017, with Senators Heidi Heitkamp (D-ND), Orrin Hatch (R-UT),
and Joe Manchin (D-WV). Senators Rand Paul (R-KY), Ron Johnson
(R-WI), Luther Strange (R-AL), James Lankford (R-OK), and Deb
Fischer (R-NE) later joined as cosponsors. The bill was
referred to the Committee on Homeland Security and Governmental
Affairs. The Committee considered S. 951 at a May 17, 2017
business meeting.
During the business meeting, Senator Portman offered a
substitute amendment with clarifying language. The substitute
amendment was adopted without objection by unanimous consent
with Senators Johnson, McCain, Portman, Paul, Lankford, Enzi,
Hoeven, Daines, McCaskill, Tester, Heitkamp, Peters, Hassan,
and Harris present.
The Committee ordered S. 951, as amended, reported
favorably on May 17, 2017, by a roll call vote of 9 yeas to 5
nays. Senators voting in the affirmative were Johnson, McCain,
Portman, Paul, Lankford, Enzi, Hoeven, Daines, and Heitkamp.
Senators voting in the negative were McCaskill, Tester, Peters,
Hassan, and Harris. For the record only, Senator Carper voted
nay by proxy.
IV. Section-by-Section Analysis of the Bill, as Reported
Section 1. Short title
This section provides the bill's short title, the
``Regulatory Accountability Act of 2017.''
Section 2. Definitions
This section defines the terms ``Guidance'', ``High-impact
Rule'', ``Major Guidance'', ``Major Rule'', ``Office of
Information and Regulatory Affairs,'' and ``Administrator''.
Section 3. Rulemaking
This section describes changes to the agency rulemaking
process. It strikes the existing subsections (b) through (e) of
Title 5 Section 553, United States Code, and replaces them with
new subsections (b) through (m).
The new subsection (b) adds new ``rulemaking
considerations'' which an agency must undertake before issuing
a rule. These include: the rule's legal basis; identification
of the problem to be solved by the rule; whether existing
Federal policy contributes to that problem and if changes to
existing Federal policy could partially solve the problem;
identifying a reasonable number of alternatives to the rule as
a means of addressing the problem (with the consideration of
three such alternatives presumed to be reasonable). This also
includes, for major or high-impact rules, a requirement to
analyze quantitative and qualitative costs and benefits of the
alternatives identified. In conducting this analysis, the
agency must consider ``direct costs and benefits,'' risks that
may be both attended to and created by the rule, and,
``cumulative and indirect costs and benefits,'' unless
prohibited by law.
The new subsection (c) (``Notice of Proposed Rulemaking'')
outlines the requirements for providing notice of the proposed
rule to both the public and the OIRA Administrator.
Paragraph (1) itemizes the content required to be included
in an NPRM published in the Federal Register: information about
rulemaking proceedings, legal authority, the proposed rule
text, and ``summary of information . . . [about] considerations
described in subsection (b).'' For major or high-impact rules,
the notice must also include: ``reasoned preliminary
explanation'' of the rule's satisfaction of statutory
objectives and whether benefits ``justify the costs.'' It must
also include discussion of considered alternatives including
their costs and benefits, whether they achieve statutory
objectives, and why they were not pursued instead of the
proposed rule.
Paragraph (2) requires, by the date of publication of the
NPRM, the agency to publish in the publicly available
rulemaking docket, all relevant information (e.g., ``studies,
models, and scientific literature'') relied upon by the agency
in developing the proposed rule, unless exempted under 5 U.S.C.
552(b).
Paragraph (3) requires that the agency use the ``best
reasonably available scientific, technical, or economic
information'' in justifying the proposed rule.
Paragraph (4) requires the agency to allow an opportunity
for public input about the proposal, except where a hearing
procedure is required under subsection (e) or otherwise
required under statute. This input period must be at least 90
days for major and high-impact proposed rules, or 60 days
otherwise.
Paragraph (5) requires an additional 30-day public comment
period and additional notice in the Federal Register if the
proposed rule is reclassified as a major or high-impact rule
after publication of the initial notice.
Paragraph (6) prohibits, after public notice or initiation
of rulemaking under subsection (d)(1)(B), the agency and agency
officials from engaging in advocacy ``in support of or
against'' the rule, appeals to others for such advocacy, or
``publicity or propaganda.'' This prohibition also applies to
the use of Federal funds from that agency by an outside party.
The prohibition does not apply to communicating impartial
information or requests for comment about the rule.
The new subsection (d) describes the requirements on
agencies when ``initiat[ing] a rulemaking that may result in a
major rule or a high-impact rule.''
Paragraph (1) describes requirements for notice, including
creating an electronic rulemaking docket; publishing a ``notice
of initiation of rulemaking'' in the Federal Register which
will include description of the rule's objectives, reference to
legal authority, invitation for suggestion of alternatives and
potentially better approaches to achieve desired outcomes, and
instructions for submitting such suggestions.
Paragraph (2) states that all information collected under
paragraph (1) must be made available in the rulemaking docket.
Paragraph (3) clarifies that the suggestions collected
under paragraph (1) are for the benefit of both the agency and
the public and that the agency may respond to those
suggestions.
Paragraph (4) describes requirements concerning
establishing a timetable in the electronic docket for
completion dates for certain agency tasks. This timetable must
include the date of completion of the comment period in
paragraph (1). If the agency proceeds to a rulemaking, it must
include: the dates on which the agency plans to publish an
NPRM, the length of that comment period, and ``final completion
date'' for agency actions. Factors the agency must consider in
establishing the timeline include: ``size and complexity of the
rulemaking,'' available resources, the rulemaking's national
significance, and statutory requirements governing timing. If
an agency fails to meet a final completion date, the agency
must submit to Congress and the OMB Director, and publish in
the Federal Register and the docket, a report explaining the
reason for failure to meet the deadline and an updated
timeline. For other established completion dates the agency
changes, the agency must update the timeline in the docket and
include an explanation for the change.
Paragraph (5) outlines requirements should the agency
choose to not pursue a major or high-impact rule after
publishing a notice of initiation of rulemaking. After
consulting with the Administrator of OIRA, the agency must
``publish a notice of determination of other agency course''
which describes the alternative agency course. If the new
agency course is to propose a rule (other than a major or high-
impact rule), the agency must proceed with the requirements in
subsection (c).
The new subsection (e) describes the use of a ``public
hearing for high-impact rules and certain major rules.''
Subparagraph (1)(A) describes the petition process for such
hearings. During the comment period for proposed major or high-
impact rules, a party can petition the agency for a public
hearing.
Subparagraph (1)(B) applies to high-impact rules. The
agency must grant the petition within 30 days if the petition:
raises a ``genuinely disputed'' factual issue(s) on which the
rule is based and shows that those issues are likely to affect
the rule's benefits and costs or achievement of purpose. For a
rule that an agency must reissue not less frequently than once
every three years, a petition also must show that the
petitioner could not have raised the disputed factual issues
during the preceding five years. An agency can deny a petition
if the agency finds that: (1) the petition does not demonstrate
a genuine dispute of fact; (2) for rules that must be re-
written at least every three years, the petitioner could have
raised the same issues within the past five years; or (3) the
factual issues raised will not have an effect on benefits and
costs or achievement of purpose. If the agency denies the
petition, it must include the petition as well as an
explanation of why it denied the petition in the rulemaking
record.
Under subparagraph (1)(C), a petition for a public hearing
on a major rule must occur in the same timeframe and include
the same criteria as that for high-impact rules. The agency may
deny the petition if it would lead to ``unreasonable delay'' or
otherwise not ``advance consideration'' of the rule, or, for
rules that must be issued not less frequently than once every
three years, the petitioner had the opportunity to raise the
same issue within the previous five years. The petition will be
included in the rulemaking record.
Paragraph (2) requires the agency to provide notice of the
hearing, the rule at issue, and issues to be considered in the
Federal Register at least 45 days in advance.
Paragraph (3) describes required elements of the hearing,
which must be limited to the resolution of issues raised and
any other issues the agency believes will further development
of the rule. With respect to such a hearing, the burden of
proof falls on the rule's proponent; ``any documentary or oral
evidence may be received'' except where immaterial or
repetitious; the agency adopts the rules concerning who
presides over the hearing proceedings, and the manner in which
parties present evidence and cross-examine opposing parties,
and whether it is appropriate to combine multiple hearings.
Paragraph (4) stipulates that judicial review is not
precluded for issues that were not raised in a petition under
this subsection. Additionally there is not judicial review
regarding agency disposition of a petition until review of the
final agency action.
The new subsection (f) establishes new analytical
requirements for issuing final rules.
Paragraph (1) requires that for major or high-impact rules,
the agency adopt the most ``cost-effective'' rule from among
the alternatives considered that achieves ``relevant statutory
objectives.'' A more costly rule may be adopted only where the
higher cost is justified by additional benefits, these benefits
and associated additional costs are made explicit, and the
agency explains the decision to adopt a more costly rule.
Under paragraph (2), final rules must be accompanied by the
publication of a notice in the Federal Register, which contains
a short explanation of the rule, reasoning for determinations
required under subsection (b), and responses to significant
issues raised in comments. For major or high-impact rules, the
notice must also include justification for: the rule's costs
and achievement of objectives; why no considered alternative
would have been more cost-effective; or adoption of a more
costly rule.
Under paragraph (3), a final rule dependent on scientific,
technical, or economic information shall be based on ``the
based reasonably available'' information.
Under paragraph (4), by the time the agency issues the
final rule, it must make available through the docket any
technical information used as the basis of its determination in
the rulemaking, except where exempted from disclosure under
section 552(b).
Paragraph (5) allows an incoming administration to postpone
the effective date for up to 90 days for any final rules that
have not yet become effective by inauguration day. An agency
can choose such a delay to gather additional public comment,
for at least 30 days, on whether to amend, rescind, or further
postpone the effective date of the rule.
The new subsection (g) stipulates that when an agency is
required to follow or comply with specific procedural or
analytical requirements under another law other than those
required under S. 951, the specific requirements of the other
law apply and the requirements under S. 951 do not.
Paragraph (1) states that, with respect to rulemaking
considerations, if the requirements under section 553 are
inconsistent or conflict with another Federal law, the other
Federal law will apply to the agency. Similarly, if the
rulemaking procedures required under section 553 are
duplicative or conflicting with another Federal law, the other
Federal law will apply to the agency.
Paragraph (2) states that section 553 does not apply to
agency guidance or internal agency rules.
Paragraph (3) permits agencies to proceed to a final rule
without meeting the requirements of subsections (c) through (e)
or (f)(2)(B) if they make a finding of good cause, which they
must include along with a justification, in the final rule. If
the agency makes such a finding for a direct final rule, it
must provide a minimum 30-day comment period, and publish the
rule in the Federal Register along with the effective date. If
the agency receives ``significant adverse comments,'' the
agency must then withdraw the rule and proceed under the
requirements in subsections (c) through (f). The agency may
avoid these requirements if it determines compliance would not
expedite the rulemaking. If an agency finds good cause that
compliance with subsections (c) through (e) and (f)(2)(B) ``is
impracticable or contrary to the public interest'' with respect
to an interim final rule, it must publish the rule in the
Federal Register with a request for comment. Within six months,
the agency must withdraw the rule, proceed with rulemaking
under subsections (c) through (f), or adopt a final rule.
Failure to undertake one of those actions results in nullifying
the rule. This section does not apply to monetary policy rules
or guidance.
New subsection (h) requires a direct or interim final as
described in subsection (g)(3) to have an effective date at
least 30 days after publication, or 60 days for major or high-
impact rules. This delay does not apply to guidance or where an
agency finds ``good cause.''
New subsection (i) requires agencies to provide an
opportunity for the public to request ``issuance, amendment, or
repeal of a rule'' and make suggestions for retrospective
review of rules.
New subsection (j) requires the OIRA Administrator to issue
guidelines to aid in the development of rules.
Paragraph (1) describes the guidelines for assessing
regulations' quantitative and qualitative costs, benefits,
economic impacts, and risks. The Administrator will update
these guidelines within every 10 years to reflect ``best
available techniques.''
Paragraph (2) describes the ``guidelines to promote
coordination, simplification, and harmonization'' of rules.
Paragraph (3) describes the guidelines ``[t]o promote
consistency.'' Additionally, agencies must adopt policies
governing rulemaking hearings consistent with these guidelines.
New subsection (k) describes requirements around agencies'
use and issuance of guidance.
Paragraph (1) stipulates that guidance cannot ``foreclose
consideration of issues,'' is explicitly not legally binding,
and must be publicly available.
To issue major guidance, paragraph (2) requires an agency
to make the guidance understandable and compliant with relevant
statute, and determine at least those benefits and costs
required to be considered in a rulemaking under subsection (b).
Additionally, the OIRA Administrator must determine that the
guidance is reasonable, understandable, and consistent with the
statute, and that the costs are justified by the benefits.
Paragraph (3) requires the OIRA Administrator to issue new
guidelines to agencies on the development of guidance such that
it is simple, consistent, and not duplicative.
New subsection (l) describes a retrospective review
requirement for major and high-impact rules.
Paragraph (1) requires agencies, starting six months after
S. 951's enactment, to include in proposed or final rules a
framework for future assessment of the rule's effectiveness,
including the intended objectives of the rule, methodology to
determine effectiveness, process to collect data, and a
timeframe for the assessment of no more than ten years after
the rule's effective date.
Paragraph (2) stipulates that the agency will use the data
collected and the methodology it included in the rule framework
to determine whether the major rule ``is accomplishing its
regulatory objective,'' ``has been rendered unnecessary,''
``needs to be modified,'' or otherwise modified to ``better
achieve the regulatory objective while imposing a smaller
burden.'' This paragraph also provides a procedure whereby an
agency can use a different methodology than that outlined in
the prior framework. It describes the requirements for
subsequent reassessments for rules the agency determines should
remain in effect. This includes the authority of the OIRA
Administrator to exempt certain rules from these requirements.
It also requires that the agency publish the results of the
assessment, including the time frame for subsequent assessment,
in the Federal Register within 180 days.
Paragraph (3) delineates required oversight by the OIRA
Administrator, including issuing guidance to agencies,
overseeing timely compliance (including publication online and
in the Federal Register), providing assistance in streamlining
of major rule assessments, issuing exemptions for rules where
assessment would be ``unnecessary, impractical, or contrary to
the public interest,'' or issuing an extension of requirement
deadlines in response to sufficient agency justification.
Paragraph (4) clarifies that this subsection does not limit
an agency's authority to ``assess or modify'' major or high-
impact rules ahead of the specified time frame.
Paragraph (5) clarifies that this subsection does not apply
to major or high-impact rules reviewed by the Administrator of
OIRA prior to the bill's date of enactment, to agencies with
existing retrospective review requirements that meet or exceed
those in the bill, or to agencies subject to periodic
reauthorization within ten years. It also does not apply to:
interpretative rules; statements of policy; rules of agency
procedure; administrative rules; or rules subject to review
under section 12 U.S.C. Sec. 3311. For direct and interim final
rules, the agency will publish the framework within 180 days of
the rule's publication date.
Paragraph (6) permits agencies to make recommendations to
Congress for legislation to facilitate changes in a rule based
on the assessment.
Paragraph (7) describes the scope for judicial review of
compliance with this subsection, which includes ``whether an
agency published the framework for assessment'' or ``whether an
agency completed'' the required assessment. The reviewing court
may remand the rule to the agency to comply with the framework
established for assessment or the requirement for the
assessment itself. Notwithstanding a court order, the rule
under review will take effect. The decisions and actions of the
Administrator of OIRA will not be subject to review.
Section 4. Scope of review
This section amends 5 U.S.C. Sec. 706 which prescribes the
basis on which courts may review agency actions. Section 4
allows courts the ability to remand a rule back to the agency
without vacating it, ``when appropriate.'' It also adds that
when reviewing a high-impact rule the court must determine
whether the agency's factual findings ``are supported by
substantial evidence.''
New subsection 706(b) requires courts to consider the
entirety of the rulemaking record or those parts cited by a
party and ``take due account . . . of the rule of prejudicial
error.''
New subsection 706(c) precludes review of the rule's
determination as a major rule if the determination that a rule
is a major rule was made on the basis of its increase in costs
or prices to consumers, industries, governments or geographic
regions, or based on its significant adverse effects on
competition, employment, investment, productivity, innovation,
public health and safety, or the country's ability to compete
internationally.
New subsection 706(d) limits review of guidance that is not
a statutory or rule interpretation to whether the agency
complied with required procedure.
New subsection 706(e) states that when reviewing an agency
interpretation of its own rule, a court will give weight to
that interpretation according to factors such as the
thoroughness of the rule's consideration, the agency's
reasoning, and degree of interpretive consistency.
Section 5. Added definitions
This section cross-references the definition of
``guidance'' and defines ``substantial evidence.''
Section 6. Application
This section clarifies that this bill does not apply to
rules in process or completed by date of enactment.
Section 7. Technical and conforming amendments
This section contains changes to other laws in order to
conform to changes in this bill.
V. Evaluation of Regulatory Impact
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill and determined
that the bill will have no regulatory impact within the meaning
of the rules. The Committee agrees with the Congressional
Budget Office's statement that the bill contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act and would impose no costs on
state, local, or tribal governments.
VI. Congressional Budget Office Cost Estimate
U.S. Congress,
Congressional Budget Office,
Washington, DC, February 8, 2018.
Hon. Ron Johnson
Chairman, Committee on Homeland Security and Governmental Affairs, U.S.
Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 951, the Regulatory
Accountability Act of 2017.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Janani
Shankaran.
Sincerely,
Keith Hall,
Director.
Enclosure.
S. 951--Regulatory Accountability Act of 2017
Summary: S. 951 would amend the Administrative Procedures
Act (APA), which governs the way that government agencies
propose and establish federal regulations. Enacting the bill
would codify some current practices under executive orders that
aim at increasing transparency. However, S. 951 also would
impose new requirements concerning agencies' issuance of rules
that have an estimated economic effect of $100 million or more
annually. S. 951 also would make some existing requirements
under executive orders apply to independent regulatory agencies
that currently are exempt from those orders.
CBO estimates that implementing S. 951 would have a net
cost of about $55 million over the 2018-2022 period, assuming
appropriation of the necessary funds. That amount would pay for
the work of additional agency personnel and contractors and
would cover other administrative expenses.
CBO expects that enacting S. 951 could delay the issuance
and change the content of some final rules each year. As a
result, CBO and the staff of the Joint Committee on Taxation
(JCT) expect that enacting S. 951 could affect both direct
spending and revenues. In addition, enacting the bill would
affect direct spending of agencies that are not funded by
annual appropriations (such as the Consumer Financial
Protection Bureau, or CFPB). Therefore, pay-as-you-go
procedures apply. However, given the large number of rules
issued each year and the variations in their nature and scope,
CBO cannot estimate whether delaying some rules or changing
their content would result in costs or savings.
CBO cannot determine whether enacting S. 951 would increase
net direct spending or on-budget deficits by more than $5
billion in any of the four consecutive 10-year periods
beginning in 2028.
S. 951 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA).
Estimated Cost to the Federal Government: The estimated
budgetary effect of S. 951 is shown in the following table. The
costs of this legislation fall within all budget functions that
include agencies that issue regulations.
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollarsa--
------------------------------------------------------------
2018 2019 2020 2021 2022 2018-2022
----------------------------------------------------------------------------------------------------------------
INCREASES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level...................... 0 15 15 15 15 60
Estimated Outlays.................................. 0 10 15 15 15 55
----------------------------------------------------------------------------------------------------------------
\a\Enacting S. 951 also would affect direct spending and revenues, but CBO and staff of the Joint Committee on
Taxation cannot determine the magnitude of those costs or savings.
Basis of Estimate: For this estimate, CBO assumes that the
legislation will be enacted before the end of 2018 and that the
necessary amounts will be appropriated near the start of each
fiscal year. Estimated spending is based on historical patterns
for similar activities.
Background
CBO is unaware of any comprehensive information on the
current governmentwide cost of rulemaking. However, according
to the Congressional Research Service, federal agencies issue
between 2,500 and 4,500 final rules each year. Over the past
five years, the Department of Health and Human Services, the
Department of the Interior, and the Securities and Exchange
Commission have issued the largest numbers of major rules
(those with an estimated economic impact of $100 million or
more per year).
S. 951 would amend the APA to codify certain practices
currently required under Executive Orders 12866 and 13563,
among others. Those instructions require executive branch
agencies to analyze the economic effects of proposed rules
(including costs and benefits), to coordinate with the Office
of Information and Regulatory Affairs (OIRA) during the
rulemaking process, and to perform other activities and
analyses related to the process. The legislation would define
several terms, including major rule, major guidance, and high-
impact rule.
The bill defines major rule as any rule that OIRA
determines is likely to impose:
An annual effect on the economy of $100
million or more, adjusted for inflation;
A major increase in costs or prices for
consumers, individual industries, federal, state,
local, or tribal government agencies or geographic
regions; or
Significant adverse effects on competition,
employment, investment, or productivity innovation or
on the ability of U.S. based enterprises to compete
with foreign-based enterprises in domestic and export
markets.
The bill defines major guidance to incorporate the same
criteria used for a major rule, but as applied to agency
guidance documents. A high-impact rule would be any rule that
OIRA determines is likely to impose an annual effect on the
economy of $1 billion or more. That threshold would be adjusted
every five years for inflation.
Enacting S. 951 also would add several new requirements
that would broadly change the rulemaking process under the APA.
For all major and high-impact rules, agencies would be required
to:
Publish a notice of the initiation of a
rulemaking;
Establish and continuously update a
timetable for the rulemaking;
Evaluate the costs and benefits of three
alternatives;
Conduct risk assessments;
Accept public comments on the proposed rule
for 90 days (rather than 60 days, as typically is the
case under executive orders and current law);
Permit members of the public to petition the
rulemaking agency for a hearing on certain major and
high-impact rules;
Place all information used in the adoption
of a final rule in a docket that is accessible to the
public; and
In the notice of final rulemaking, respond
to significant issues raised during the public comment
period.
After adoption of a final rule, agencies would be required
to conduct ongoing assessments to determine whether a rule
accomplishes its regulatory objectives.
Spending Subject to Appropriation
CBO contacted several agencies to determine whether or how
the legislation would affect rulemaking procedures and costs.
The extent to which S. 951 would impose new requirements on
individual agencies depends in part on whether an agency's
rulemaking process is governed by laws beyond the APA. (For
example, the Toxic Substances Control Act requires the
Environmental Protection Agency to consider the costs and
benefits of each proposed rule and to present at least one
alternative.) Although some agencies may already be conducting
the activities that would be required by the bill, others would
face a larger increase in workload and higher administrative
costs. Those costs also would depend on the number of major and
high-impact rules an agency issues each year. CBO estimates
that the administrative costs to comply with S. 951 would vary
by agency. In total, CBO estimates that implementing S. 951
would cost $15 million annually, assuming appropriation of the
necessary funds. CBO estimates that level of effort would be
reached in about two years.
CBO anticipates that additional federal employees and
contractors would be needed to undertake cost-benefit analyses,
complete risk assessments, respond to public comments, conduct
post-rulemaking assessments, and perform other administrative
tasks required by the bill. Using information from several
agencies, CBO estimates that the government would spend about
$13 million annually to meet the bill's requirements. Of the 22
agencies that have issued major rules over the last 5 years,
CBO expects that half of them would need an average of 5 to 10
additional people at an average annual cost of $150,000--or
about $1 million annually to implement the bill. CBO estimates
that the remaining agencies would spend less than $500,000 a
year to implement the bill.
By subjecting independent regulatory agencies to the
requirements followed by executive branch agencies, the bill
also would expand OIRA's consultation and oversight duties,
thus requiring additional staff. Using information from OIRA,
CBO estimates that the resulting cost to the agency would be $2
million per year for 10 to 15 new staff.
Direct spending
CBO expects independent regulatory agencies would face an
increased workload associated with rulemaking. Enacting S. 951
would affect the direct spending of several agencies not funded
through annual appropriations; including the Federal Deposit
Insurance Corporation, the Federal Housing Finance Agency, the
Office of the Comptroller of the Currency, and the Office of
Financial Research. Those agencies collect premiums and fees to
support administrative expenses; therefore, CBO estimates that
the net effect on spending for those agencies would be
negligible. However, CBO estimates that implementing S. 951
could increase direct spending by the CFPB; that spending would
not be offset by any premiums or fees.
CBO expects that enacting S. 951 could delay some major and
high-impact rules from taking effect each year. Therefore, in
assessing the budgetary effects of S. 951, CBO considered the
costs or savings that might be realized if anticipated rules
were delayed or modified. Delaying issuance of some major or
high-impact rules, which would delay when they take effect,
could result in costs; delaying others could result in savings.
CBO expects that the rules with the largest effects on
federal spending would be related to federal health programs,
particularly Medicare. Such budgetary effects would largely be
driven by delaying annual updates to payment schedules for
providing Medicare services and other routine revisions to
other government programs. Thus, enacting S. 951 could
significantly affect Medicare spending relative to current law.
However, CBO cannot estimate the magnitude of any costs or
savings in direct spending over the 2018-2027 period from
enacting S. 951. If delaying a Medicare rule increased or
decreased costs by 1 percent a year, the total budgetary
effects could be tens of billions of dollars over the 2018-2027
period.
Revenues
CBO expects that under S. 951, the Federal Reserve could
incur additional administrative costs to conduct some types of
rulemaking, although any rulemaking by the Federal Reserve
concerning monetary policy would be exempt. Such costs are
treated as reductions in remittances to the Treasury, which are
recorded in the budget as reductions in revenues.
CBO expects that enacting the bill also would affect
revenues by changing the way that the Internal Revenue Service
issues guidance and by slowing rulemaking generally. JCT
expects that those delays would reduce revenue collections in
some cases and increase them in others. However, JCT cannot
estimate the magnitude of any costs or savings from those
possible effects.
Pay-As-You-Go considerations: The Statutory Pay-As-You-Go
Act of 2010 establishes budget-reporting and enforcement
procedures for legislation affecting direct spending or
revenues. Pay-as-you-go procedures apply to S. 951 because
enacting the legislation would affect direct spending and
revenues. However, CBO and JCT cannot determine the size of the
costs or savings associated with those effects.
Increase in long-term direct spending and deficits: CBO
cannot determine whether enacting S. 951 would increase net
direct spending or on-budget deficits by more than $5 billion
in any of the four consecutive 10-year periods beginning in
2028.
Mandates: CBO expects that S. 951 would impose no
intergovernmental or private-sector mandates as defined in
UMRA. By potentially delaying federal rules, the bill could
affect public or private entities in other ways, for example,
by slowing reimbursements or delaying the implementation of
regulatory requirements. The costs and savings associated with
such effects could be significant, but CBO has no basis for
estimating them because CBO cannot predict the number or nature
of regulations that could be delayed.
Estimate prepared by: Federal Costs: Janani Shankaran (for
federal agencies) and Nathaniel Frentz (for the Federal
Reserve); Mandates: Zachary Byrum.
Estimate approved by: H. Samuel Papenfuss, Deputy Assistant
Director for Budget Analysis.
VII. Minority Views
MINORITY VIEWS OF SENATORS CLAIRE McCASKILL, THOMAS CARPER, AND GARY C.
PETERS
While the regulatory process is complicated and some
reforms could improve the efficacy of the process, we do not
believe the Regulatory Accountability Act (S. 951, RAA) would
lead to an improved regulatory process. Instead, this bill is
likely to open the process to questionable science, lead to
more court challenges, and slow down agency rulemaking--which
can already take a decade or longer for major rules--creating
greater uncertainty in regulated communities and undermining
public health and safety standards.
S. 951 Would Lead to a Significant Increase in Litigation and Delay
Ensuring stakeholder input and thorough, in-depth analysis
to improve regulatory outcomes are shared goals. However, we
are concerned that this bill does not actually meet those
goals. Proponents of RAA argue that the bill would actually
reduce the amount of litigation over federal regulations and
the time it takes to issue final rules by allowing for more
collaboration with stakeholders earlier in the process. We
disagree with that assessment. This bill would lead to
additional litigation and delay the implementation of important
regulations, many of which are intended to protect the health
and safety of our citizens.
The RAA would establish new regulatory requirements and
codify and expand many of the principles found in existing,
widely-supported executive orders that guide executive agency
rulemaking.\1\ In doing so, this bill goes well beyond the
intent of these executive actions. Since Executive Order (E.O.)
12291 was issued by President Reagan, each subsequent executive
order related to the regulatory process has specifically
precluded judicial review of agency compliance with the
principles laid out in the executive orders, stating or
upholding the view that the executive order was ``intended only
to improve the internal management of the Federal government,
and is not intended to create any right or benefit, substantive
or procedural, enforceable at law by a party against the United
States, its agencies, its officers or any person.''\2\
---------------------------------------------------------------------------
\1\Exec. Order No. 12291, 46 Fed. Reg. 13193 (Feb. 19, 1981); Exec.
Order No. 12866, 58 Fed. Reg. 51,735 (Oct. 4, 1993); Exec. Order No.
13563, 76 Fed. Reg. 3,821 (Jan. 21, 2011).
\2\Exec. Order. No. 12291, Sec. 9 (See also E.O. 12866, Sec. 10;
E.O. 13563, Sec. 7(d)).
---------------------------------------------------------------------------
The committee report correctly points out that without
codification, any future president ``may change the process at
any time through a new executive order.''\3\ However,
administrations from both parties have continued these
requirements, and have not felt the need to advocate for
codifying them since they were first adopted by the Reagan
Administration in the 1980s.\4\ Howard Shelanski, the
Administrator of the Office of Information and Regulatory
Affairs (OIRA) at the Office of Management and Budget at the
end of President Obama's second term, testified in 2015 that he
does not believe codification is necessary, saying ``[w]e at
OIRA think that we have the tools that we need under the
Executive Orders to achieve what we need to achieve.''\5\ He
further stated that, ``the Executive Orders are on very solid
ground having stayed firm and really only been reaffirmed
across Administrations of both parties.''\6\ Should a future
president repeal E.O. 12866 and forbid any agency of the
Executive Branch from conducting cost benefit analysis, then
legislation would be the appropriate remedy. However, barring
such a drastic move, which no president has suggested doing,
the drawbacks of codification outweigh their potential
benefits.
---------------------------------------------------------------------------
\3\See supra.
\4\Id.
\5\Senate Committee on Homeland Security and Governmental Affairs,
Subcommittee on Regulatory Affairs and Federal Management, Testimony of
Howard Shelanski, hearing on Reviewing the Office of Information and
Regulatory Affairs' Role in the Regulatory Process, 114th Cong. (July
16, 2015) (S. Hrg. 114-84).
\6\Id.
---------------------------------------------------------------------------
While, as the committee report notes, former OIRA
Administrator Sally Katzen supports the use of cost benefit
analysis as one public policy making tool, it should be noted
that she is not in support of codifying regulatory procedural
requirements. In fact, she specifically testified against
codification before this committee in February 2015, in part
due to the concern that courts would struggle to determine the
sufficiency of agencies' efforts to meet the requirements,
saying, ``casting [the executive orders] in statute only
compounds the problems'' because of a lack of agency resources
and because these requirements would be hard to review, ``. . .
like qualifying costs, what does that mean and how would
somebody say that is sufficient?''\7\
---------------------------------------------------------------------------
\7\Senate Committee on Homeland Security and Government Affairs
Committee, Testimony of Sally Katzen, Towards a 21st Century Regulatory
System, 114th Cong. (February 25, 2015) (S. Hrg. 114-418).
---------------------------------------------------------------------------
The committee has previously considered codifying these
executive orders\8\ and many of the same concerns raised in the
additional views\9\ of that report remain our primary concerns
with codifying these regulatory requirements:
---------------------------------------------------------------------------
\8\S.1818, 114th Cong. (2015).
\9\S. Rep. No. 114-342, at 8-12 (2016).
``While there has been strong bipartisan support for
the principles in the Executive Orders that guide
agency rulemakings through multiple administrations
since at least the 1980s, codifying these principles
raises a number of significant concerns and could
significantly slow down the already slow regulatory
process. First, this bill would make these principles
legal requirements, subjecting each step of the process
to judicial review, taking away agency flexibility, and
overriding provisions of certain health, safety, and
environmental laws that exempt regulations authorized
by those laws from some of these requirements. In
addition, this bill would extend these requirements to
the independent agencies that often have their own
statutory requirements.''\10\
---------------------------------------------------------------------------
\10\Id.
This additional opportunity for judicial review is
problematic for a number of reasons, and we believe it would
have significant consequences. The regulatory process is
designed to produce regulations backed by sound, evidence-based
science and allow for robust stakeholder input. When regulated
industries disagree with the result, the current process also
allows stakeholders to challenge the rules in court. The system
is not intended to give the largest corporations with the most
highly-paid lawyers an opportunity to endlessly delay the
finalization of federal rules. However, the current regulatory
process is already stagnating to the point that some rules are
taking multiple administrations.
A 2012 GAO review of significant health and safety
standards found that the average time it took to finalize rules
increased from six years and ten months in the 1980s to nine
years and ten months in the 1990s.\11\ That timing fell back to
seven years and seven months in the 2000s, but to do so,
agencies reduced the number of standards issued by more than
half.\12\
---------------------------------------------------------------------------
\11\Marc Allen Eisner, Regulatory Politics in an Age of
Polarization and Drift: Beyond Deregulation (2017).
\12\Id.
---------------------------------------------------------------------------
While some of the requirements in S. 951 could arguably
improve transparency and public participation in the rulemaking
process, other requirements, in the name of greater public
participation and agency analysis, would certainly result in a
far slower rulemaking process and would have the practical
effect of deterring agencies from pursuing justifiable and
necessary rulemakings due to resource constraints.
One of the more concerning aspects of the bill is the
creation of quasi-judicial, adversarial hearings to resolve
``complex factual issues that are genuinely disputed.''\13\
These hearings would significantly slow the regulatory process
and tilt it in favor of large special interests with the
resources to petition and participate in such an open-ended
process. It would allow corporations to endlessly dispute
agency findings with no minimum standards or burdens to
demonstrate a genuine factual dispute. This process alone could
add years to the finalization of every major regulation,
diluting the input of the general public at large.
---------------------------------------------------------------------------
\13\S. 951, Section 2, new 5 Sec. U.S.C. 553(e).
---------------------------------------------------------------------------
The bill also opens the door to putting established science
on trial. The term ``factual issues that are genuinely
disputed'' is left undefined in the bill,\14\ potentially
opening the door to attack virtually every agency
determination. Widely-held accepted scientific principles, such
as evolution, for example, could come under attack simply
because, according to one survey, 34% of Americans reject
evolution entirely.\15\ Regulations related to vaccines could
be disputed because, according to one survey, 12% of Americans
believes that the benefits of vaccinations are not outweighed
by the risks.\16\
---------------------------------------------------------------------------
\14\Id.
\15\Religious Landscape Study, Pew Research Center (2015)
(www.pewforum.org/2015/11/03/chapter-4-social-and-political-attitudes/
).
\16\Pew Research Center, Vast Majority of Americans Say Benefits of
Childhood Vaccines Outweigh Risks (Feb. 2, 2017) (www.pewinternet.org/
2017/02/02/vast-majority-of-americans-say-benefits-of-childhood-
vaccines-outweigh-risks/).
---------------------------------------------------------------------------
Such arguments could then be litigated as part of the
judicial review of the final rule and those who wish to
disagree with widely accepted facts could use evidence of those
disagreements to delay or even stop a regulation from going
into effect. Chemical manufacturers could endlessly fight the
toxicity of new chemicals, and pharmaceutical manufacturers
could use this language to endlessly delay additional
regulations of opioids.
In addition, this bill would turn back the standard of
deference given to agency decision-making, shifting from the
more deferential Seminole RockAuer deference\17\ to Skidmore
deference.\18\ Instead of giving agencies deference absent
``plainly erroneous or inconsistent'' action by the agency,\19\
as was the holding in Auer, Skidmore, deference applies a more
subjective standard based on ``the thoroughness evident in [the
agency's] consideration, the validity of its reason, and its
consistency with earlier and later pronouncements.''\20\ This
shift to a less deferential standard of review will allow
generalist judges to intervene and use their judgement over
that of agency technical experts.
---------------------------------------------------------------------------
\17\Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945); Auer
v. Robbins, 519 U.S. 452 (1997).
\18\Skidmore v. Swift & Co., 323 U.S. 134 (1944).
\19\Auer at 461.
\20\Skidmore at 140.
---------------------------------------------------------------------------
Creating a less deferential standard for courts to apply to
agency rulemaking incentivizes additional lawsuits against
agencies because there is a higher likelihood of success. It is
therefore likely that this change will increase litigation over
federal rules, further delaying their implementation and
raising the likelihood that agency decisions will be
overturned. When agency rules are delayed for years, businesses
are left with significant uncertainty knowing that a new
regulation has been written, but unsure when and if it will be
implemented. If more and more of these rules are eventually
overturned, that is time and money wasted by these companies
waiting and preparing for a rule that is never implemented. In
other words, increased second-guessing of agency decision-
making that is based on technical expertise would result in
more uncertainty and instability, not less.
We are also concerned that the language in the bill
requiring an agency to choose the most ``cost-effective''
alternative when issuing a final ``major'' or ``high-impact''
rule will paralyze agencies and prevent implementation of final
rules.\21\ The appropriate balance between costs and
effectiveness is inherently subjective. For example, requiring
hard hats at construction sites is more costly than posting
``warning'' signs about the dangers of the site, but it likely
saves more lives.
---------------------------------------------------------------------------
\21\S. 951, Section 2, new 5 U.S.C. Sec. 553(f).
---------------------------------------------------------------------------
Although requirements like ``most cost-effective'' and
``least burdensome'' may sound practical, when statutes utilize
absolutist language like that, courts are required to interpret
the requirement literally, resulting in endless litigation and
an inability to issue final rules protecting Americans' health
and safety. That is what happened with the ``least burdensome''
standard in the Toxic Substances Control Act, which prevented
the regulation of toxic chemicals and known carcinogens like
asbestos under the Toxic Substances Control Act for decades,
finally forcing broad bipartisan majorities to recognize the
futility of this requirement and act to change the law in a
rare bipartisan moment.\22\
---------------------------------------------------------------------------
\22\Corrosion Proof Fittings v. EPA, 947 F. 2d 1201 (1991).
---------------------------------------------------------------------------
Agencies already face considerable pressure to select the
least expensive and most effective option that meets the goals
of the law and the administration when issuing regulations.
Including such rigid requirements in statute makes their
regulatory function virtually impossible to accomplish.
As we have noted, the principle of using cost-benefit
analysis to inform the development of public policy is both
commonsense and has been shown by administrations of both
parties to be beneficial over the last 40 years. However not
all public policy and regulation can be reduced to dollars and
cents and weighed against each other. Public policy and the
statutes and regulations that implement those policies are also
an expression of the values of the American people as reflected
by government action.
For example, in 2012, the Department of Justice (DOJ)
completed cost-benefit analyses as it wrote rules to implement
the Prison Rape Elimination Act.\23\ The absurdity of the DOJ
developing monetary values for avoiding 17 different types of
sexual assault is clear in hindsight. However, it was
apparently not clear to DOJ when as they went through the long
process to implement rules, which at its core, was about human
dignity and not monetary concerns. As noted by Georgetown Law
Professor Lisa Heinzerling in her analysis of this rulemaking,
``[i]n its 168-page Regulatory Impact Analysis, DOJ treats the
reader to a labored, distasteful, and gratuitous essay on the
economics of rape and sexual abuse.''\24\
---------------------------------------------------------------------------
\23\Prison Rape Elimination Act, Pub. L. No. 108-79 (2003).
\24\Lisa Heinzerling, Cost-Benefit Jumps the Shark, Georgetown Law
Faculty (blog) (June 13, 2012) (www.gulcfac.typepad.com/
georgetown_university_law/2012/06/cost-benefit-jumps-the-shark.html).
---------------------------------------------------------------------------
While the current system does provide some flexibility to
forgo cost-benefit analysis when warranted, agencies are
already hesitant to use that flexibility. In the case of DOJ's
Prison Rape Elimination Act regulations, even though the
Administration likely had the flexibility to determine that a
cost-benefit analysis was not appropriate, it chose not to use
it. One can only imagine the number of equally ridiculous and
inappropriate cost-benefit analyses that would take place if
agencies are further constrained from exercising discretionary
judgement.
As much as we would like the government to function like a
machine, we must recognize that reasonable human judgement must
be part of the rulemaking process. This means that there are
limits to when the use of cost-benefit analysis is appropriate
and codifying and expanding these principles, turning them into
judicially reviewable requirements with no flexibility would
result in actions that do not pass the commonsense test that is
needed for regulatory actions.
S. 951 Would Override Current Statutes and Impose a Supermandate on
Agencies
A number of health, safety and environmental statutes
specifically bar agencies from undertaking certain
considerations or specifically provide the decision-making
criteria that the agency should use in rulemakings. However,
this bill seems to require agencies to adhere to its
requirements for all regulations, regardless of the original
intent of the authorizing statutes, overturning the clear
congressional intent of many statutes.
Instead of Congress taking up and amending how the Clean
Air Act, the Packers and Stockyards Act or the
Telecommunications Act work, for example, S. 951 would
effectively change how all of those statutes function. This
point is highlighted by the fact that S. 951 amends at least 16
existing statutes to ensure they conform with the changes made
by this bill, including the Consumer Product Safety Act, the
Endangered Species Act, the Federal Hazardous Substances Act,
the Flammable Fabrics Act, the Homeless Assistance Act, the
Native American Programs Act, the Poison Prevention Packaging
Act, the Poultry Products Inspection Act, the Rural
Electrification Act, the Social Security Act, and the Toxic
Substance Control Act.
Therefore, while courts have found that the provisions of
certain existing statutes specifically bar the use of cost-
benefit analysis for regulations authorized by those
statutes,\25\ agencies would no longer be able to rely on the
agency-specific requirements in their authorizing statutes and
would instead be required to follow the mandatory requirements
of this bill. The American Bar Association has criticized
similar ``supermandates'' saying that ``[much], perhaps most,
of the safety and health legislation now on the books would
seemingly be displaced.''\26\ Imposing these requirements onto
these statutes goes against the original intent of the
legislation that created the statutes and will have a
significant impact on agencies' ability to carry out their
missions.
---------------------------------------------------------------------------
\25\See, Whitman v Am. Trucking Assn's., Inc. 531 U.S. 457, 471
(2001).
\26\Amer. Bar Assoc. Section of Admin. L. and Reg. Practice,
Comments on H.R. 3010, The Regulatory Accountability Act of 2011 12-13
(2011), citing Sidney A. Shapiro & Robert L. Glicksman, Risk Regulation
at Risk: restoring a Pragmatic Approach 32 (2003) (which surveyed 22
health, safety, and environmental laws and found that only two contain
a substantive cost-benefit mandate).
---------------------------------------------------------------------------
S. 951 Would Politicize Independent Regulatory Agency Rulemaking
A major reason that Congress establishes independent
agencies is to safeguard against political interference in
their rulemaking process. S. 951 would extend the bill's
regulatory requirements to the independent regulatory agencies
that, while they may have their own statutory requirements, are
not currently subject to the executive orders relating to the
promulgation of regulations. It would require independent
regulatory agencies to submit their regulatory analyses to the
Office of Information and Regulatory Affairs (OIRA),
unquestionably giving the White House control over the shape,
content and timing of regulations issued by independent
agencies. We appreciate the need to ensure thoughtful analysis
and understand the desire for independent review of the impacts
of a proposed rule during the regulatory process. However, we
are concerned with the impact this would have on the regulatory
process of independent agencies, which is intended to be
insulated from political considerations.
In the past, members of both parties have expressed concern
over a president's ability to influence rulemakings at
independent regulatory agencies. For example, in February 2016,
the majority staff of this committee released a report alleging
that President Obama improperly interfered with open internet
rulemaking promulgated by the Federal Communications Commission
(FCC). Their report concluded that, ``[p]olitics should never
trump policy, especially not when an agency, like the FCC, was
created for the expressed purpose of being independent and
above the political fray.''\27\
---------------------------------------------------------------------------
\27\Staff Report of the Majority Office of the Senate Committee on
Homeland Security and Governmental Affairs, Regulating the Internet:
How the White House Bowled over FCC Independence, 114th Cong. (February
29, 2016).
---------------------------------------------------------------------------
It is important that we do not further politicize the
regulatory process at these independent regulatory agencies by
giving any president of either party the ability to interfere
with these independent rulemakings. This bill would give
Congress' approval to political interference in the rulemaking
at these independent regulatory agencies and provide a
president with the ability to exert more influence on
independent regulatory agencies, which Congress intended to be
independent and above the political fray.
Conclusion
The work we do here in Congress and in this committee to
reform the regulatory process should encourage reducing burdens
and increasing transparency, while achieving the greatest
public benefit. It should be our goal to have the most
efficient, effective, and transparent regulatory process
possible, and to ensure that process results in common-sense
regulations. We do not believe this bill would improve the
regulatory process, and in fact, would make the process far
less efficient and insert additional political considerations
into the process. For these reasons, we oppose S. 951 and urge
our colleagues to join us in opposition.
VIII. Changes in Existing Law Made by the Bill, as Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
S. 951 as reported are shown as follows (existing law proposed
to be omitted is enclosed in brackets, new matter is printed in
italic, and existing law in which no change is proposed is
shown in roman):
UNITED STATES CODE
* * * * * * *
TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I--THE AGENCIES GENERALLY
* * * * * * *
CHAPTER 5--ADMINISTRATIVE PROCEDURE
* * * * * * *
Subchapter II--Administrative Procedure
* * * * * * *
SEC. 551. DEFINITIONS
* * * * * * *
(1) * * *
* * * * * * *
(5) [``rule making''] ``rulemaking'' means agency
process for formulating, amending, or repealing a rule;
(6) ``order'' means the whole or a part of a final
disposition, whether affirmative, negative, injunctive,
or declaratory in form, of an agency in a matter other
than [rule making] rulemaking but including licensing;
* * * * * * *
(13) ``agency action'' includes the whole or a part
of an agency rule, order, license, sanction, relief, or
the equivalent or denial thereof, or failure to act;
[and]
(14) ``ex parte communication'' means an oral or
written communication not on the public record with
respect to which reasonable prior notice to all parties
is not given, but it shall not include requests for
status reports on any matter or proceeding covered by
this subchapter[.];
(15) ``guidance'' means an agency statement of
general applicability, other than a rule, that--
(A) is not intended to have the force and
effect of law; and
(B) sets forth a policy on a statutory,
regulatory, or technical issue or an
interpretation of a statutory or regulatory
issue;
(16) ``high-impact rule'' means any rule that the
Administrator determines is likely to cause an annual
effect on the economy of $1,000,000,000 or more,
adjusted once every 5 years to reflect increases in the
Consumer Price Index for All Urban Consumers, as
published by the Bureau of Labor Statistics of the
Department of Labor;
(17) ``major guidance'' means guidance that the
Administrator finds is likely to lead to--
(A) an annual effect on the economy of
$100,000,000 or more, adjusted once every 5
years to reflect increases in the Consumer
Price Index for All Urban Consumer, as
published by the Bureau of Labor Statistics of
the Department of Labor;
(B) a major increase in costs or prices for
consumers, individual industries, Federal,
State, local, or tribal government agencies, or
geographic regions; or
(C) significant adverse effects on
competition, employment, investment,
productivity, innovation, public health and
safety, or the ability of United States-based
enterprises to compete with foreign-based
enterprises in domestic and export markets;
(18) ``major rule'' means any rule that the
Administrator determines is likely to cause--
(A) an annual effect on the economy of
$100,000,000 or more, adjusted once every 5
years to reflect increases in the Consumer
Price Index for All Urban Consumer, as
published by the Bureau of Labor Statistics of
the Department of Labor;
(B) a major increase in costs or prices for
consumers, individual industries, Federal,
State, local, or tribal government agencies, or
geographic regions; or
(C) significant adverse effects on
competition, employment, investment,
productivity, innovation, public health and
safety, or the ability of United States-based
enterprises to compete with foreign-based
enterprises in domestic and export markets;
(19) ``Office of Information and Regulatory Affairs''
means the office established under section 3503 of
title 44 and any successor to that office; and
(20) ``Administrator'' means the Administrator of the
Office of Information and Regulatory Affairs.
SEC. 552. * * *
SEC. 553. [RULE MAKING] RULEMAKING.
[(a) This section applies] (a) Applicability.--This section
applies, according to the provisions thereof, except to the
extent that there is involved--
(1) * * *
(2) * * *
[(b) General notice of proposed rule making shall be
published in the Federal Register, unless persons subject
thereto are named and either personally served or otherwise
have actual notice thereof in accordance with law. The notice
shall include--
[(1) a statement of the time, place, and nature of
public rule making proceedings;
[(2) reference to the legal authority under which the
rule is proposed; and
[(3) either the terms or substance of the proposed
rule or a description of the subjects and issues
involved.
[Except when notice or hearing is required by statute,
this subsection does not apply--
[(A) to interpretative rules, general
statements of policy, or rules of agency
organization, procedure, or practice; or
[(B) when the agency for good cause finds
(and incorporates the finding and a brief
statement of reasons therefor in the rules
issued) that notice and public procedure
thereon are impracticable, unnecessary, or
contrary to the public interest.
[(c) After notice required by this section, the agency
shall give interested persons an opportunity to participate in
the rule making through submission of written data, views, or
arguments with or without opportunity for oral presentation.
After consideration of the relevant matter presented, the
agency shall incorporate in the rules adopted a concise general
statement of their basis and purpose. When rules are required
by statute to be made on the record after opportunity for an
agency hearing, sections 556 and 557 of this title apply
instead of this subsection.
[(d) The required publication or service of a substantive
rule shall be made not less than 30 days before its effective
date, except--
[(1) a substantive rule which grants or recognizes an
exemption or relieves a restriction;
[(2) interpretative rules and statements of policy;
or
[(3) as otherwise provided by the agency for good
cause found and published with the rule.
[(e) Each agency shall give an interested person the right
to petition for the issuance, amendment, or repeal of a rule.]
(b) Rulemaking Considerations.--In a rulemaking, an agency
shall consider, in addition to other applicable considerations,
the following:
(1) The legal authority under which a rule may be
proposed, including whether rulemaking is required by
statute or is within the discretion of the agency.
(2) The nature and significance of the problem the
agency intends to address with a rule.
(3) Whether existing Federal laws or rules have
created or contributed to the problem the agency may
address with a rule and, if so, whether those Federal
laws or rules could be amended or rescinded to address
the problem in whole or in part.
(4) A reasonable number of alternatives for a new
rule that meet the statutory objective, including
substantial alternatives or other responses identified
by interested persons, with the consideration of 3
alternatives presumed to be reasonable.
(5) For any major rule or high-impact rule, unless
prohibited by law, the potential costs and benefits
associated with potential alternative rules and other
responses considered under paragraph (4), including
quantitative and qualitative analyses of--
(A) the direct costs and benefits;
(B) the nature and degree of risks addressed
by the rule and the countervailing risks that
might be posed by agency actions; and
(C) to the extent practicable, the cumulative
and indirect costs and benefits.
(c) Notice of Proposed Rulemaking.--
(1) In general.--If an agency determines that the
objectives of the agency require the agency to issue a
rule, the agency shall notify the Administrator and
publish a notice of proposed rulemaking in the Federal
Register, which shall include--
(A) a statement of the time, place, and
nature of any public rulemaking proceedings;
(B) reference to the legal authority under
which the rule is proposed;
(C) the text of the proposed rule;
(D) a summary of information known to the
agency concerning the considerations described
in subsection (b); and
(E) where otherwise consistent with
applicable law, for any major rule or high-
impact rule--
(i) a reasoned preliminary
explanation regarding how--
(I) the proposed rule meets
the statutory objectives; and
(II) the benefits of the
proposed rule justify the
costs; and
(ii) a discussion of--
(I) the costs and benefits of
alternatives considered by the
agency under subsection (b)(4);
(II) whether the alternatives
considered by the agency under
subsection (b)(4) meet relevant
statutory objectives; and
(III) the reasons why the
agency did not propose an
alternative considered by the
agency under subsection (b)(4).
(2) Accessibility.--
(A) In general.--Except as provided in
subparagraph (B), not later than the date on
which an agency publishes a notice of proposed
rulemaking under paragraph (1), all studies,
models, scientific literature, and other
information developed or relied upon by the
agency, and actions taken by the agency to
obtain that information, in connection with the
determination of the agency to propose the rule
that is the subject of the rulemaking shall be
placed in the docket for the proposed rule and
made accessible to the public.
(B) Exception.--Subparagraph (A) shall not
apply with respect to information that is
exempt from disclosure under section 552(b).
(3) Information quality.--If an agency proposes a
rule that rests upon scientific, technical, or economic
information, the agency shall propose the rule on the
basis of the best reasonably available scientific,
technical, or economic information.
(4) Public comment.--If an agency proposes a rule
that rests upon scientific, technical, or economic
information, the agency shall propose the rule on the
basis of the best reasonably available scientific,
technical, or economic information.
(A) In general.--After publishing a notice of
proposed rulemaking under paragraph (1), an
agency shall provide interested persons an
opportunity to participate in the rulemaking
through submission of written material, data,
views, or arguments with or without opportunity
for oral presentation, except that--
(i) if a public hearing is convened
under subsection (e), reasonable
opportunity for oral presentation shall
be provided at the public hearing as
provided in subsection (e); and
(ii) when, other than as provided in
subsection (e), a rule is required by
statute to be made on the record after
opportunity for an agency hearing--
(I) sections 556 and 557
shall apply; and
(II) the petition procedures
of subsection (e) shall not
apply.
(B) Timeline.--An agency shall provide not
less than 60 days, or, with respect to a
proposed major rule or a proposed high-impact
rule, not less than 90 days, for interested
persons to submit written material, data,
views, or arguments under subparagraph (A).
(5) Change of classification after publication of
notice.--If, after an agency submits notification and
publishes the notice of proposed rulemaking required
under paragraph (1), a proposed rule is determined to
be a major rule or a high-impact rule, the agency
shall--
(A) publish a notice in the Federal Register
with respect to the change of the
classification of the rule; and
(B) allow interested persons an additional
opportunity of not less than 30 days to comment
on--
(i) the rule; and
(ii) the change of the classification
of the rule.
(6) Prohibition on certain communications.--
(A) In general.--Except as provided in
subparagraph (B), after an agency publishes a
notice of proposed rulemaking required under
paragraph (1), or after an agency publishes a
notice of initiation of rulemaking under
subsection (d)(1)(B), the agency, and any
individual acting in an official capacity on
behalf of the agency, may not communicate, and
a person who receives Federal funds from the
agency may not use those funds to communicate,
through written, oral, electronic, or other
means, to the public with respect to the
proposed rule in a manner than--
(i) directly advocates, in support of
or against the proposed rule, for the
submission of information that will
form part of the record for the
proposed rule;
(ii) appeals to the public, or
solicits a third party, to undertake
advocacy in support of or against the
proposed rule; or
(iii) is directly or indirectly for
the purpose of publicity or propaganda
within the United States in a manner
that Congress has not authorized.
(B) Exception.--The prohibition under
subparagraph (A) shall not apply to a
communication that requests comments on, or
provides information regarding, a proposed rule
in an impartial manner.
(d) Initiation of Rulemaking for Major and High-Impact
Rules.--
(1) Notice for major and high-impact rules.--When an
agency determines to initiate a rulemaking that may
result in a major rule or high-impact rule, the agency
shall--
(A) establish an electronic docket for that
rulemaking, which may have a physical
counterpart; and
(B) publish a notice of initiation of
rulemaking in the Federal Register, which
shall--
(i) briefly describe the subject and
objectives of, and the problem to be
solved by, the rule;
(ii) reference the legal authority
under which the rule would be proposed;
(iii) invite interested persons to
propose alternatives and other ideas
regarding how best to accomplish the
objectives of the agency in the most
effective manner; and
(iv) indicate how interested persons
may submit written material for the
docket.
(2) Accessibility.--All information provided to the
agency under paragraph (1) shall be promptly placed in
the docket and made accessible to the public.
(3) Applicability.--With respect to the alternatives
and other ideas proposed under paragraph (1)(B)(iii)--
(A) the alternatives and other ideas are for
the benefit of--
(i) the agency receiving the
alternatives and other ideas; and
(ii) the public; and
(B) the agency receiving the alternatives and
other ideas may respond to the alternatives and
other ideas.
(4) Timetable.--
(A) In general.--With respect to a rulemaking
for a major rule or a high-impact rule, the
agency proposing the rule shall establish a
timetable for the rulemaking that--
(i) includes intermediate and final
completion dates for actions of the
agency; and
(ii) shall be published in the
electronic docket established under
paragraph (1)(A) with respect to the
rulemaking.
(B) Consideration of factors.--In
establishing the timetable required under
subparagraph (A), an agency shall consider
relevant factors, including--
(i) the size and complexity of the
rulemaking;
(ii) the resources available to the
agency;
(iii) the national significance of
the rulemaking; and
(iv) all statutory requirements that
govern the timing of the rulemaking.
(C) Report required.--
(i) In general.--An agency that fails
to meet an intermediate or final
completion date for an action
established under subparagraph (A)
shall submit to Congress and the
Director of the Office of Management
and Budget a report regarding why the
agency failed to meet the completion
date.
(ii) Contents; publication in Federal
Register.--A report submitted under
clause (i) shall--
(I) include an amended
timetable for the rulemaking;
and
(II) be published--
(aa) in the Federal
Register; and
(bb) in the
electronic docket
established under
paragraph (1)(A) with
respect to the
rulemaking.
(5) Notice of determination of other agency course.--
(A) In general.--If after publishing the
notice required under paragraph (1), an agency
determines not to issue a major rule or a high-
impact rule, the agency shall, after consulting
with the Administrator--
(i) publish a notice of determination
of other agency course; and
(ii) if the agency intends to issue a
rule, comply with the procedures
required under subsection (c).
(B) Contents.--A notice of determination of
other agency course published under
subparagraph (A)(i) shall include--
(i) a description of the alternative
response the agency has determined to
adopt; and
(ii) if the agency intends to issue a
rule, any information required under
subsection (c).
(e) Public Hearing for High-Impact Rules and Certain Major
Rules.--
(1) Petition for public hearing.--
(A) In general.-- Before the date on which
the comment period closes with respect to a
proposed high-impact rule or a proposed major
rule described in section 551(18)(A), an
interested person may petition the agency that
proposed the rule to hold a public hearing in
accordance with this subsection.
(B) Petition for public hearing for high-
impact rules.--
(i) Granting of petition.--Not later
than 30 days after the date on which an
agency receives a petition submitted
under subparagraph (A) with respect to
a high-impact rule, the agency shall
grant the petition if the petition
shows that--
(I) the proposed rule is
based on conclusions with
respect to 1 or more specific
scientific, technical,
economic, or other complex
factual issues that are
genuinely disputed;
(II) with respect to a rule
that the agency is required to
reissue not less frequently
than once every 3 years, the
interested person submitting
the petition could not have
raised the disputed factual
issues described in subclause
(I) during the 5-year period
preceding the date on which the
petition is submitted; and
(III) the resolution of the
disputed factual issues
described in subclause (I)
would likely have an effect
on--
(aa) the costs and
benefits of the
proposed rule; or
(bb) whether the
proposed rule achieves
the statutory purpose.
(ii) Denial of petition.--If an
agency denies a petition submitted
under clause (i) in whole or in part,
the agency shall include in the
rulemaking record an explanation for
the denial sufficient for judicial
review, including--
(I) findings by the agency
that--
(aa) there is no
genuine dispute as to
factual issues raised
by the petition; or
(bb) with respect to
a rule that the agency
is required to reissue
not less frequently
than once every 3
years, the interested
person submitting the
petition could have
raised the disputed
factual issues in the
petition during the 5-
year period preceding
the date on which the
petition is submitted;
and
(II) a reasoned determination
by the agency that the factual
issues raised by the petition,
even if subject to genuine
dispute and not subject to
subclause (I)(bb), will not
have an effect on--
(aa) the costs and
benefits of the
proposed rule; or
(bb) whether the
proposed rule achieves
the statutory purpose.
(iii) Inclusion in the record.--A
petition submitted under subparagraph
(A) with respect to a high-impact rule
and the decision of an agency with
respect to the petition shall be
included in the rulemaking record.
(C) Petition for public hearing for certain
major rules.--
(i) In general.--In the case of a
major rule described in section
551(18)(A), any interested person may
petition for a hearing under this
subsection on the grounds and within
the time limitation described in
subparagraph (B)(i).
(ii) Agency authority to deny
petition.--An agency may deny a
petition submitted to the agency under
clause (i) if the agency reasonably
determines that--
(I) a hearing--
(aa) would not
advance the
consideration of the
proposed rule by the
agency; or
(bb) would, in light
of the need for agency
action, unreasonably
delay completion of the
rulemaking; or
(II) with respect to a rule
that the agency is required to
reissue not less frequently
than once every 3 years, the
interested person submitting
the petition could have raised
the disputed factual issues in
the petition during the 5-year
period preceding the date on
which the petition is
submitted.
(iii) Inclusion in the record.--A
petition submitted under clause (i) and
the decision of an agency with respect
to the petition shall be included in
the rulemaking record.
(2) Notice of hearing.--Not later than 45 days before
the date on which a hearing is held under this
subsection, agency shall publish in the Federal
Register a notice specifying--
(A) the proposed rule to be considered at the
hearing; and
(B) the factual issues to be considered at
the hearing.
(3) Hearing requirements.--
(A) Limited nature of hearing.--A hearing
held under this subsection shall be limited
to--
(i) the specific factual issues
raised in a petition granted in whole
or in part under paragraph (1); and
(ii) any other factual issues the
resolution of which an agency, in the
discretion of the agency, determines
will advance consideration by the
agency of the proposed rule.
(B) Procedures.--
(i) Burden of proof.--Except as
otherwise provided by statute, a
proponent of a rule has the burden of
proof in a hearing held under this
subsection.
(ii) Admission of evidence.--In a
hearing held under this subsection, any
documentary or oral evidence may be
received, except that an agency, as a
matter of policy, shall provide for the
exclusion of immaterial or unduly
repetitious evidence.
(iii) Adoption of rule governing
hearings.--To govern a hearing held
under this subsection, each agency
shall adopt rules that provide for--
(I) the appointment of an
agency official or
administrative law judge to
preside at the hearing;
(II) the presentation by
interested parties of relevant
documentary or oral evidence,
unless the evidence is
immaterial or unduly
repetitious;
(III) a reasonable and
adequate opportunity for cross-
examination by interested
parties concerning genuinely
disputed factual issues raised
by the petition, provided that,
in the case of multiple
interested parties with the
same or similar interests, the
agency may require the use of
common counsel where common
counsel may adequately
represent the interests that
will be significantly affected
by the proposed rule; and
(IV) when appropriate, and to
the extent practicable, the
consolidation of proceedings
with respect to multiple
petitions submitted under this
subsection into a single
hearing.
(C) Record of hearing.--A transcript of
testimony and exhibits, together with all
papers and requests filed in the hearing, shall
constitute the exclusive record for decision of
the factual issues addressed in a hearing held
under this subsection.
(3) Judicial review.--
(A) In general.--Failure to petition for a
hearing under this subsection shall not
preclude review of any claim that could have
been raised in the hearing petition or at the
hearing.
(B) Timing of judicial review.--There shall
be no judicial review of the disposition of a
petition by an agency under this subsection
until judicial review of the final agency
action.
(f) Final Rules.--
(1) Effectiveness of major or high-impact rule.--
(A) In general.--Except as provided in
subparagraph (B), in a rulemaking for a major
rule or a high-impact rule, an agency shall
adopt the most cost-effective rule that--
(i) is considered under subsection
(b)(4); and
(ii) meets relevant statutory
objectives.
(B) Exception.--In a rulemaking for a major
rule or a high-impact rule, an agency may adopt
a rule that is more costly than the most cost-
effective alternative that would achieve the
relevant statutory objectives only if--
(i) the additional benefits of the
more costly rule justify the additional
costs of that rule;
(ii) the agency specifically
identifies each additional benefit
described in clause (i) and the cost of
each such additional benefit; and
(iii) the agency explains why the
agency adopted a rule that is more
costly than the most cost-effective
alternative.
(2) Publication of notice of final rulemaking.--When
an agency adopts a final rule, the agency shall publish
a notice of final rulemaking in the Federal Register,
which shall include--
(A) a concise, general statement of the basis
and purpose of the rule;
(B) a reasoned determination by the agency
regarding the considerations described in
subsection (b);
(C) a response to each significant issue
raised in the comments on the proposed rule;
and
(D) with respect to a major rule or a high-
impact rule, a reasoned determination by the
agency that--
(i) the benefits of the rule advance
the relevant statutory objectives and
justify the costs of the rule; and
(ii) * * *
(I) no alternative considered
would achieve the relevant
statutory objectives in a more
cost-effective manner than the
rule; or
(II) the adoption by the
agency of a more costly rule
complies with paragraph (1)(B).
(3) Information quality.--If an agency rulemaking
rests upon scientific, technical, or economic
information, the agency shall adopt a final rule on the
basis of the best reasonably available scientific,
technical, or economic information.
(4) Accessibility.--
(A) In general.--Except as provided in
subparagraph (B), not later than the date on
which an agency publishes a notice of final
rulemaking under paragraph (2), all studies,
models, scientific literature, and other
information developed or relied upon by the
agency, and actions taken by the agency to
obtain that information, in connection with the
determination of the agency to finalize the
rule that is the subject of the rulemaking
shall be placed in the docket for the rule and
made accessible to the public.
(B) Exception.--Subparagraph (A) shall not
apply with respect to information that is
exempt from disclosure under section 552(b).
(5) Rules adopted at the end of a presidential
administration.--
(A) In general.--During the 60-day period
beginning on a transitional inauguration day
(as defined in section 3349a), with respect to
any final rule that had been placed on file for
public inspection by the Office of the Federal
Register or published in the Federal Register
as of the date of the inauguration, but which
had not become effective by the date of the
inauguration, the agency issuing the rule may,
by order, delay the effective date of the rule
for not more than 90 days for the purpose of
obtaining public comment on whether--
(i) the rule should be amended or
rescinded; or
(ii) the effective date of the rule
should be further delayed.
(B) Opportunity for comment.--If an agency
delays the effective date of a rule under
subparagraph (A), the agency shall give the
public not less than 30 days to submit
comments.
(g) Applicability.--
(1) Primacy of certain rulemaking considerations and
procedures in other federal laws.--
(A) Considerations.--If a rulemaking is
authorized under a Federal law that requires an
agency to consider, or prohibits an agency from
considering, a factor in a manner that is
inconsistent with, or that conflicts with, the
requirements under this section, for the
purposes of this section, the requirement or
prohibition, as applicable, in that other
Federal law shall apply to the agency in the
rulemaking.
(B) Procedural requirements.--If a rulemaking
is authorized under a Federal law that requires
an agency to follow or use, or prohibits an
agency from following or using, a procedure in
a manner that is duplicative of, or that
conflicts with, a procedural requirement under
this section, for the purposes of this section,
the requirement or prohibition, as applicable,
in that other Federal law shall apply to the
agency in the rulemaking.
(2) Guidance and rules of organization.--Except as
otherwise provided by law, this section shall not apply
to guidance or rules of agency organization, procedure,
or practice.
(3) Exceptions for good cause.--
(A) Finding of good cause.--
(i) In general.--If an agency for
good cause finds that compliance with
subsection (c), (d), (e), or (f)(2)(B)
before issuing a final rule is
unnecessary, impracticable, or contrary
to the public interest, that subsection
shall not apply and the agency may
issue the final rule or an interim
final rule, as applicable, under
subparagraph (B) or (C).
(ii) Incorporation of good cause
finding.--If an agency makes a finding
under clause (i), the agency shall
include that finding and a brief
statement with respect to the reasons
for that finding in the final rule or
interim final rule, as applicable,
issued by the agency.
(B) Direct final rules.--
(i) In general.--Except as provided
in clause (ii), if an agency makes a
finding under subparagraph (A)(i) that
compliance with subsection (c), (d),
(e), or (f)(2)(B) before issuing a
final rule is unnecessary, the agency
shall, before issuing the final rule--
(I) publish in the Federal
Register the text of the final
rule, the brief statement
required under subparagraph
(A)(ii), and a notice of
opportunity for public comment;
(II) establish a comment
period of not less than 30 days
for any interested person to
submit written material, data,
views, or arguments with
respect to the final rule; and
(III) provide notice of the
date on which the rule will
take effect.
(ii) Exception.--An agency that made
a finding described in clause (i) may
choose not to follow the requirements
under that clause if the agency
determines that following the
requirements would not expedite the
issuance of the final rule.
(iii) Adverse comments.--If an agency
receives significant adverse comments
with respect to a rule during the
comment period established under clause
(i)(II), the agency shall--
(I) withdraw the notice of
final rulemaking published by
the agency with respect to the
rule; and
(II) complete rulemaking in
accordance with subsections
(c), (d), (e), and (f), as
applicable.
(C) Interim final rules.--
(i) In general.--If an agency for
good cause finds that compliance with
subsection (c), (d), (e), or (f)(2)(B)
before issuing a final rule is
impracticable or contrary to the public
interest, the agency shall issue an
interim final rule by--
(I) publishing the interim
final rule and a request for
public comment in the portion
of the Federal Register
relating to final rules; and
(II) providing a cross-
reference in the portion of the
Federal Register relating to
proposed rules that requests
public comment with respect to
the rule not later than 60 days
after the rule is published
under subclause (I).
(ii) Interim period.--
(I) In general.--Not later
than 180 days after the date on
which an agency issues an
interim final rule under clause
(i), the agency shall--
(aa) rescind the
interim rule;
(bb) initiate
rulemaking in
accordance with
subsections (c) through
(f); or
(cc) take final
action to adopt a final
rule.
(II) No force or effect.--If,
as of the end of the 180-day
period described in subclause
(I), an agency fails to take an
action described in item (aa),
(bb), or (cc) of that
subclause, the interim final
rule issued by the agency shall
have no force or effect.
(4) Exemption for monetary policy.--This section
shall not apply to a rulemaking or to guidance that
concerns monetary policy proposed or implemented by the
Board of Governors of the Federal Reserve System or the
Federal Open Market Committee.
(h) Date of Publication.--A final rule, a direct final rule
described in subsection (g)(3)(B), or an interim final rule
described in subsection (g)(3)(C) shall be published not later
than 30 days (or, in the case of a major rule or a high-impact
rule, not later than 60 days) before the effective date of the
rule, except--
(1) for guidance; or
(2) as otherwise provided by an agency for good cause
and as published with the rule.
(i) Right to Petition and Review of Rules.--Each agency
shall--
(1) give interested persons the right to petition for
the issuance, amendment, or repeal of a rule; and
(2) on a continuing basis, invite interested persons
to submit, by electronic means, suggestions for rules
that warrant retrospective review and possible
modification or repeal.
(j) Rulemaking Guidelines.--
(1) Assessment of rules.--
(A) In general.--The Administrator shall
establish guidelines for the assessment,
including the quantitative and qualitative
assessment, of--
(i) the costs and benefits of
proposed and final rules;
(ii) the cost-effectiveness of
proposed and final rules;
(iii) other economic issues that are
relevant to rulemaking under this
section or other sections of this part;
and
(iv) risk assessments that are
relevant to rulemaking under this
section and other sections of this
part.
(B) Agency analysis of rules.--
(i) In general.--The rigor of the
cost-benefit analysis required by the
guidelines established under
subparagraph (A) shall be commensurate,
as determined by the Administrator,
with the economic impact of a rule.
(ii) Risk assessment guidelines.--
Guidelines for a risk assessment
described in subparagraph (A)(iv) shall
include criteria for--
(I) selecting studies and
models;
(II) evaluating and weighing
evidence; and
(III) conducting peer
reviews.
(C) Updating guidelines.--Not less frequently
than once every 10 years, the Administrator
shall update the guidelines established under
subparagraph (A) to enable each agency to use
the best available techniques to quantify and
evaluate present and future benefits, costs,
other economic issues, and risks as objectively
and accurately as practicable.
(2) Simplification of rules.--
(A) Issuance of guidelines.--The
Administrator shall issue guidelines to promote
coordination, simplification, and harmonization
of agency rules during the rulemaking process.
(B) Requirements.--The guidelines issued by
the Administrator under subparagraph (A) shall
advise each agency to--
(i) avoid rules that are inconsistent
or incompatible with, or duplicative
of, other regulations of the agency and
those of other agencies; and
(ii) draft the rules of the agency to
be simple and easy to understand, with
the goal of minimizing the potential
for uncertainty and litigation arising
from the uncertainty.
(3) Consistency in rulemaking.--
(A) In general.--To promote consistency in
rulemaking, the Administrator shall--
(i) issue guidelines to ensure that
rulemaking conducted in whole or in
part under procedures specified in
provisions of law other than those
under this section conform with the
procedures set forth in this section to
the fullest extent allowed by law; and
(ii) issue guidelines for the conduct
of hearings under subsection (e), which
shall provide a reasonable opportunity
for cross-examination.
(B) Agency adoption of regulations.--Each
agency shall adopt regulations for the conduct
of hearings consistent with the guidelines
issued under this paragraph.
(k) Agency Guidance; Procedures To Issue Major Guidance;
Authority To Issue Guidelines for Issuance of Guidance.--
(1) In general.--Agency guidance shall--
(A) not be used by an agency to foreclose
consideration of issues as to which the
guidance expresses a conclusion;
(B) state that the guidance is not legally
binding; and
(C) at the time the guidance is issued, or
upon request, be made available by the issuing
agency to interested persons and the public.
(2) Procedures to issue major guidance.--Before
issuing any major guidance, an agency shall--
(A) make and document a reasoned
determination that--
(i) such guidance is understandable
and complies with relevant statutory
objectives and regulatory provisions;
and
(ii) identifies the costs and
benefits, including all costs and
benefits to be considered during a
rulemaking under subsection (b), of
requiring conduct conforming to such
guidance and assures that such benefits
justify such costs; and
(B) confer with the Administrator on the
issuance of the major guidance to ensure that
the guidance--
(i) is reasonable;
(ii) is understandable;
(iii) is consistent with relevant
statutory and regulatory provisions and
requirements or practices of other
agencies;
(iv) does not produce costs that are
unjustified by the benefits of the
major guidance; and
(v) is otherwise appropriate.
(3) Issuance of updated guidance.--
(A) In general.--The Administrator shall
issue updated guidelines for use by agencies in
the issuance of guidance documents.
(B) Requirements.--The guidelines issued by
the Administrator under subparagraph (A) shall
advise each agency--
(i) not to issue guidance documents
that are inconsistent or incompatible
with, or duplicative of, other rules of
the agency and those of other agencies;
(ii) to draft the guidance documents
of the agency to be simple and easy to
understand, with the goal of minimizing
the potential for uncertainty and
litigation arising from the
uncertainty; and
(iii) how to develop and implement a
strategy to ensure the proper use of
guidance by the agency.
(l) Major Rule and High-Impact Rule Frameworks.--
(1) In general.--Beginning on the date that is 180
days after the date of enactment of this subsection,
when an agency publishes in the Federal Register--
(A) a proposed major rule or a proposed high-
impact rule, the agency shall include a
potential framework for assessing the rule,
which shall include a general statement of how
the agency intends to measure the effectiveness
of the rule; or
(B) a final major rule or a final high-impact
rule, the agency shall include a framework for
assessing the rule under paragraph (2), which
shall include--
(i) a clear statement of the
regulatory objectives of the rule,
including a summary of the benefit and
cost of the rule;
(ii) the methodology by which the
agency plans to analyze the rule,
including metrics by which the agency
can measure--
(I) the effectiveness and
benefits of the rule in
producing the regulatory
objectives of the rule; and
(II) the impacts, including
any costs, of the rule on
regulated and other impacted
entities;
(iii) a plan for gathering data
regarding the metrics described in
clause (ii) on an ongoing basis, or at
periodic times, including a method by
which the agency will invite the public
to participate in the review process
and seek input from other agencies; and
(iv) a specific timeframe, as
appropriate to the rule and not more
than 10 years after the effective date
of the rule, under which the agency
shall conduct the assessment of the
rule in accordance with paragraph
(2)(A).
(2) Assessment.--
(A) In general.--Each agency shall assess the
data collected under paragraph (1)(B)(iii),
using the methodology set forth in paragraph
(1)(B)(ii) or any other appropriate methodology
developed after the issuance of a final major
rule or a final high-impact rule to better
determine whether the regulatory objective was
achieved, with respect to the rule--
(i) to analyze how the actual
benefits and costs of the rule may have
varied from those anticipated at the
time the rule was issued; and
(ii) to determine whether--
(I) the rule is accomplishing
the regulatory objective of the
rule;
(II) the rule has been
rendered unnecessary, taking
into consideration--
(aa) changes in the
subject area affected
by the rule; and
(bb) whether the rule
overlaps, duplicates,
or conflicts with--
(AA) other
rules; or
(BB) to the
extent
feasible, State
and local
government
regulations;
(III) the rule needs to be
modified in order to accomplish
the regulatory objective; and
(IV) other alternatives to
the rule or modification of the
rule could better achieve the
regulatory objective while
imposing a smaller burden on
society or increase cost-
effectiveness, taking into
consideration any cost already
incurred.
(B) Different methodology.--If an agency uses
a methodology other than the methodology under
paragraph (1)(B)(ii) to assess data under
subparagraph (A), the agency shall include as
part of the notice required to be published
under subparagraph (D) an explanation of the
changes in circumstances that necessitated the
use of that other methodology.
(C) Subsequent assessments.--
(i) In general.--Except as provided
in clause (ii), if, after an assessment
of a major rule or a high-impact rule
under subparagraph (A), an agency
determines that the rule will remain in
effect with or without modification,
the agency shall--
(I) determine a specific
time, as appropriate to the
rule and not more than 10 years
after the date on which the
agency completes the
assessment, under which the
agency shall conduct another
assessment of the rule in
accordance with subparagraph
(A); and
(II) if the assessment
conducted under subclause (I)
does not result in a repeal of
the rule, periodically assess
the rule in accordance with
subparagraph (A) to ensure that
the rule continues to meet the
regulatory objective.
(ii) Exemption.--The Administrator
may exempt an agency from conducting a
subsequent assessment of a rule under
clause (i) if the Administrator
determines that there is a foreseeable
and apparent need for the rule beyond
the timeframe required under clause
(i)(I).
(D) Publication.--Not later than 180 days
after the date on which an agency completes an
assessment of a major rule or a high-impact
rule under subparagraph (A), the agency shall
publish a notice of availability of the results
of the assessment in the Federal Register,
including the specific time for any subsequent
assessment of the rule under subparagraph
(C)(i), if applicable.
(3) OIRA oversight.--The Administrator shall--
(A) issue guidance for agencies regarding the
development of the framework under paragraph
(1) and the conduct of the assessments under
paragraph (2)(A);
(B) oversee the timely compliance of agencies
with this subsection;
(C) ensure that the results of each
assessment conducted under paragraph (2)(A)
are--
(i) published promptly on a
centralized Federal website; and
(ii) noticed in the Federal Register
in accordance with paragraph (2)(D);
(D) encourage and assist agencies to
streamline and coordinate the assessment of
major rules or high-impact rules with similar
or related regulatory objectives;
(E) exempt an agency from including the
framework required under paragraph (1)(B) when
publishing a final major rule or a final high-
impact rule if the Administrator determines
that compliance with paragraph (1)(B) is
unnecessary, impracticable, or contrary to the
public interest, as described in subsection
(g)(3)(A)(i); and
(F) extend the deadline specified by an
agency for an assessment of a major rule or a
high-impact rule under paragraph (1)(B)(iv) or
paragraph (2)(C)(i)(I) for a period of not more
than 90 days if the agency justifies why the
agency is unable to complete the assessment by
that deadline.
(4) Rule of construction.--Nothing in this subsection
shall be construed to affect--
(A) the authority of an agency to assess or
modify a major rule or a high-impact rule of
the agency earlier than the end of the
timeframe specified for the rule under
paragraph (1)(B)(iv); or
(B) any other provision of law that requires
an agency to conduct retrospective reviews of
rules issued by the agency.
(5) Applicability.--
(A) In general.--This subsection shall not
apply to--
(i) a major rule or a high-impact
rule of an agency--
(I) that the Administrator
reviewed before the date of
enactment of this subsection;
(II) for which the agency is
required to conduct a
retrospective review under any
other provision of law that
meets or exceeds the
requirements of this
subsection, as determined by
the Administrator; or
(III) for which the
authorizing statute is subject
to periodic reauthorization by
Congress not less frequently
than once every 10 years;
(ii) interpretative rules, general
statements of policy, or rules of
agency organization, procedure, or
practice;
(iii) routine and administrative
rules; or
(iv) a rule that is reviewed under
section 2222 of the Economic Growth and
Regulatory Paperwork Reduction Act of
1996 (12 U.S.C. 3311).
(B) Direct and interim final major rule or
high-impact rule.--In the case of a major rule
or a high-impact rule of an agency for which
the agency is not required to issue a notice of
proposed rulemaking in response to an emergency
or a statutorily imposed deadline, the agency
shall publish the framework required under
paragraph (1)(B) in the Federal Register not
later than 180 days after the date on which the
agency publishes the rule.
(6) Recommendations to congress.--If, under an
assessment conducted under paragraph (2), an agency
determines that a major rule or a high-impact rule
should be modified or repealed, the agency may submit
to Congress recommendations for legislation to amend
applicable provisions of law if the agency is
prohibited from modifying or repealing the rule under
another provision of law.
(7) Judicial review.--
(A) In general.--Judicial review of agency
compliance with this subsection is limited to
whether an agency--
(i) published the framework for
assessment of a major rule or a high-
impact rule in accordance with
paragraph (1); or
(ii) completed and published the
required assessment of a major rule or
a high-impact rule in accordance with
subparagraphs (A) and (D) of paragraph
(2).
(B) Remedy available.--In granting relief in
an action brought under subparagraph (A), a
court may only issue an order remanding the
major rule or the high-impact rule, as
applicable, to the agency to comply with
paragraph (1) or subparagraph (A) or (D) of
paragraph (2), as applicable.
(C) Effective date of major rule.--If, in an
action brought under subparagraph (A)(i), a
court determines that the agency did not
comply, the major rule or the high-impact rule,
as applicable, shall take effect
notwithstanding any order issued by the court.
(D) Administrator.--Any determination,
action, or inaction of the Administrator under
this subsection shall not be subject to
judicial review.
* * * * * * *
SEC. 556. * * *
(a) * * *
* * * * * * *
(d) Except as otherwise provided by statute, the proponent
of a rule or order has the burden of proof. Any oral or
documentary evidence may be received, but the agency as a
matter of policy shall provide for the exclusion of irrelevant,
immaterial, or unduly repetitious evidence. A sanction may not
be imposed or rule or order issued except on consideration of
the whole record or those parts thereof cited by a party and
supported by and in accordance with the reliable, probative,
and substantial evidence. The agency may, to the extent
consistent with the interests of justice and the policy of the
underlying statutes administered by the agency, consider a
violation of section 557(d) of this title sufficient grounds
for a decision adverse to a party who has knowingly committed
such violation or knowingly caused such violation to occur. A
party is entitled to present his case or defense by oral or
documentary evidence, to submit rebuttal evidence, and to
conduct such cross-examination as may be required for a full
and true disclosure of the facts. In [rule making] rulemaking
or determining claims for money or benefits or applications for
initial licenses an agency may, when a party will not be
prejudiced thereby, adopt procedures for the submission of all
or part of the evidence in written form.
* * * * * * *
SEC. 557. * * *
(a) * * *
(b) When the agency did not preside at the reception of the
evidence, the presiding employee or, in cases not subject to
section 554(d) of this title, an employee qualified to preside
at hearings pursuant to section 556 of this title, shall
initially decide the case unless the agency requires, either in
specific cases or by general rule, the entire record to be
certified to it for decision. When the presiding employee makes
an initial decision, that decision then becomes the decision of
the agency without further proceedings unless there is an
appeal to, or review on motion of, the agency within time
provided by rule. On appeal from or review of the initial
decision, the agency has all the powers which it would have in
making the initial decision except as it may limit the issues
on notice or by rule. When the agency makes the decision
without having presided at the reception of the evidence, the
presiding employee or an employee qualified to preside at
hearings pursuant to section 556 of this title shall first
recommend a decision, except that in [rule making] rulemaking
or determining applications for initial licenses--
* * * * * * *
Subchapter III--Negotiated Rulemaking Procedure
* * * * * * *
SEC. 562. * * *
* * * * * * *
(1) * * *
* * * * * * *
(11) ``rulemaking'' [means ``rule making'' as that
term is defined in section 551(5) of this title] has
the meaning given the term in section 551.
* * * * * * *
CHAPTER 6--ANALYSIS OF REGULATORY FUNCTIONS
SEC. 601. * * *
(1) * * *
(2) the term ``rule'' means any rule for which the
agency publishes a general notice of proposed
rulemaking pursuant to [section 553(b)] section 553(c)
of this title, or any other law, including any rule of
general applicability governing Federal grants to State
and local governments for which the agency provides an
opportunity for notice and public comment, except that
the term ``rule'' does not include a rule of particular
applicability relating to rates, wages, corporate or
financial structures or reorganizations thereof,
prices, facilities, appliances, services, or allowances
therefor or to valuations, costs or accounting, or
practices relating to such rates, wages, structures,
prices, appliances, services, or allowances;
* * * * * * *
CHAPTER 7--JUDICIAL REVIEW
SEC. 701. APPLICATION; DEFINITIONS.
(a) * * *
(b) * * *
(1) * * *
(A) * * *
* * * * * * *
(H) functions conferred by sections 1738,
1739, 1743, and 1744 of title 12; subchapter II
of chapter 471 of title 49; or sections 1884,
1891-1902, and former section 1641(b)(2), of
title 50, appendix; 1 [and]
(2) ``guidance'' has the meaning given the term in
section 551;
([2]3) ``person'', ``rule'', ``order'', ``license'',
``sanction'', ``relief'', and ``agency action'' have
the meanings given them by section 551 of this
title[.]; and
(4) ``substantial evidence'' means such relevant
evidence as a reasonable mind might accept as adequate
to support a conclusion in light of the record
considered as a whole.
* * * * * * *
SEC. 706. SCOPE OF REVIEW.
[To the extent necessary] (a) In General.--To the extent
necessary to decision and when presented, the reviewing court
shall decide all relevant questions of law, interpret
constitutional and statutory provisions, and determine the
meaning or applicability of the terms of an agency action. The
reviewing court shall--
(1) compel agency action unlawfully withheld or
unreasonably delayed; [and]
(2) hold unlawful and set aside, or, when
appropriate, remand a matter to an agency without
setting aside, agency action, findings, and conclusions
found to be--
(A) * * *
* * * * * * *
(F) unwarranted by the facts to the extent
that the facts are subject to trial de novo by
the reviewing court[.]; and
(3) with respect to the review of a high-impact rule,
as defined in section 551(16), determine whether the
factual findings of the agency issuing the rule are
supported by substantial evidence.
(b) Review of Entire Record; Prejudicial Error.--In making
a determination under subsection (a), the court shall review
the whole record or those parts of it cited by a party, and due
account shall be taken of the rule of prejudicial error.
(c) Preclusion of Review.--The determination of whether a
rule is a major rule within the meaning of subparagraphs (B)
and (C) of section 551(18) shall not be subject to judicial
review.
(d) Review of Certain Guidance.--Agency guidance that does
not interpret a statute or rule may be reviewed only under
subsection (a)(2)(D).
(e) Agency Interpretation of Rules.--The weight that a
reviewing court gives an interpretation by an agency of a rule
of that agency shall depend on the thoroughness evident in the
consideration of the rule by the agency, the validity of the
reasoning of the agency, and the consistency of the
interpretation with earlier and later pronouncements.
* * * * * * *
PART II--CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES
* * * * * * *
CHAPTER 11--OFFICE OF PERSONNEL MANAGEMENT
* * * * * * *
SEC. 1103. * * *
(a) * * *
(b) * * *
(1) The Director shall publish in the Federal
Register general notice of any rule or regulation which
is proposed by the Office and the application of which
does not apply solely to the Office or its employees.
Any such notice shall include the matter required under
[section 553(b)(1), (2), and (3)] section 553(c) of
this title.
SEC. 1104 * * *
SEC. 1105. ADMINISTRATIVE PROCEDURE.
Subject to section 1103(b) of this title, in the exercise
of the functions assigned under this chapter, the Director
shall be subject to [subsections (b), (c), and (d)] subsections
(b) through (h) and (j) of section 553 of this title,
notwithstanding subsection (a) of such section 553.
* * * * * * *
TITLE 7--AGRICULTURE
* * * * * * *
CHAPTER 31--RURAL ELECTRIFICATION AND TELEPHONE SERVICE
* * * * * * *
Subchapter II--Rural Telephone Service
SEC. 927. * * *
(a) Duties.--The Secretary and the Governor of the
telephone bank shall--
(1) notwithstanding section 553(a)(2) of title 5,
cause to be published in the Federal Register, in
accordance with [subsections (b) through (e)]
subsections (b) through (k) of section 553 of such
title, all rules, regulations, bulletins, and other
written policy standards governing the operations of
the telephone loan and loan guarantee programs
administered under this chapter other than those
relating to agency management and personnel;
* * * * * * *
TITLE 15--COMMERCE AND TRADE
* * * * * * *
CHAPTER 25--FLAMMABLE FABRICS
SEC. 1193. * * *
(a) * * *
* * * * * * *
(k) Petition to Initiate Rulemaking.--The Commission shall
grant, in whole or in part, or deny any petition under [section
553(e)] section 553(i) of title 5 requesting the Commission to
initiate a rulemaking, within a reasonable time after the date
on which such petition is filed. The Commission shall state the
reasons for granting or denying such petition. The Commission
may not deny any such petition on the basis of a voluntary
standard unless the voluntary standard is in existence at the
time of the denial of the petition, the Commission has
determined that the voluntary standard is likely to result in
the elimination or adequate reduction of the risk of injury
identified in the petition, and it is likely that there will be
substantial compliance with the standard.
* * * * * * *
SEC. 1203. * * *
(a) * * *
(b) * * *
(c) * * *
(1) * * *
(2) A regulation under paragraph (1) granting an
exemption for a flammability standard or other
regulation of a State or political subdivision of a
State may be promulgated by the Commission only after
it has provided, in accordance with [section 553(b)]
section 553(c) of title 5, notice with respect to the
promulgation of the regulation and has provided
opportunity for the oral presentation of views
respecting its promulgation.
* * * * * * *
CHAPTER 30--HAZARDOUS SUBSTANCES
* * * * * * *
SEC. 1262. * * *
(a) * * *
* * * * * * *
(e) Regulation of Toys and Articles Intended for Use by
Children.--
(1) A determination by the Commission that a toy or
other article intended for use by children presents an
electrical, mechanical, or thermal hazard shall be made
by regulation in accordance with the procedures
prescribed by section 553 [(other than clause (B) of
the last sentence of subsection (b) of such section) of
title 5] of title 5, United States Code, other than
subsection (g)(3) of such section unless the Commission
elects the procedures prescribed by subsection (e) of
section 371 of title 21, in which event such subsection
and subsections (f) and (g) of such section 371 of
title 21 shall apply to the making of such
determination. If the Commission makes such election,
it shall publish that fact with the proposal required
to be published under paragraph (1) of such subsection
(e).
* * * * * * *
(j) Petition to Initiate Rulemaking.--The Commission shall
grant, in whole or in part, or deny any petition under [section
553(e)] section 553(i) of title 5 requesting the Commission to
initiate a rulemaking, within a reasonable time after the date
on which such petition is filed. The Commission shall state the
reasons for granting or denying such petition. The Commission
may not deny any such petition on the basis of a voluntary
standard unless the voluntary standard is in existence at the
time of the denial of the petition, the Commission has
determined that the voluntary standard is likely to result in
the elimination or adequate reduction of the risk of injury
identified in the petition, and it is likely that there will be
substantial compliance with the standard.
* * * * * * *
CHAPTER 39A--SPECIAL PACKAGING OF HOUSEHOLD SUBSTANCES FOR PROTECTION
OF CHILDREN
* * * * * * *
SEC. 1474. * * *
(a) Rule Making Procedure; Election and Application of
Procedure Under Section 371 of Title 21; Publication of
Election and Proposal.--Proceedings to issue, amend, or repeal
a regulation prescribing a standard under section 1472 of this
title shall be conducted in accordance with the procedures
prescribed by section 553 ([other than paragraph (3)(B) of the
last sentence of subsection (b) of such section] other than
subsection (g)(3) of such section) of title 5 unless the
Commission elects the procedures prescribed by subsection (e)
of section 371 of title 21, in which event such subsection and
subsections (f) and (g) of such section 371 shall apply to such
proceedings. If the Commission makes such election, it shall
publish that fact with the proposal required to be published
under paragraph (1) of such subsection (e).
* * * * * * *
SEC. 1476. * * *
(a) * * *
(b) * * *
(c) * * *
(1) * * *
(2) A regulation under paragraph (1) granting an
exemption for a standard or requirement of a State or
political subdivision of a State may be promulgated by
the Commission only after it has provided, in
accordance with [section 553(b)] section 553(c) of
title 5 notice with respect to the promulgation of the
regulation and has provided opportunity for the oral
presentation of views respecting its promulgation.
* * * * * * *
CHAPTER 47--CONSUMER PRODUCT SAFETY
* * * * * * *
SEC. 2058. * * *
(a) * * *
* * * * * * *
(i) Petition to Initiate Rulemaking.--The Commission shall
grant, in whole or in part, or deny any petition under [section
553(e)] section 553(i) of title 5 requesting the Commission to
initiate a rulemaking, within a reasonable time after the date
on which such petition is filed. The Commission shall state the
reasons for granting or denying such petition. The Commission
may not deny any such petition on the basis of a voluntary
standard unless the voluntary standard is in existence at the
time of the denial of the petition, the Commission has
determined that the voluntary standard is likely to result in
the elimination or adequate reduction of the risk of injury
identified in the petition, and it is likely that there will be
substantial compliance with the standard.
* * * * * * *
CHAPTER 53--TOXIC SUBSTANCES CONTROL
* * * * * * *
SUBCHAPTER I--CONTROL OF TOXIC SUBSTANCES
* * * * * * *
SEC. 2618. * * *
(a) * * *
(b) * * *
(c) Standard of Review.--
(1) * * *
(A) Upon the filing of a petition under
subsection (a)(1) for judicial review of a rule
or order, the court shall have jurisdiction (i)
to grant appropriate relief, including interim
relief, as provided in chapter 7 of title 5,
and (ii) except as otherwise provided in
subparagraph (B), to review such rule or order
in accordance with chapter 7 of title 5.
(B) * * *
(i) * * *
(ii) the court may not review the
contents and adequacy of any statement
of basis and purpose required by
section [553(c) of title 5] section
553(f)(2) to be incorporated in the
rule or order, except as part of the
record, taken as a whole.
* * * * * * *
CHAPTER 60--NATURAL GAS POLICY
* * * * * * *
SEC. 3412. * * *
(a) * * *
(b) Opportunity for Oral Presentations.--To the maximum
extent practicable, an opportunity for oral presentation of
data, views, and arguments shall be afforded with respect to
any proposed rule or order described in subsection (a) (other
than an order under section 3361, 3362, or 3363 of this title).
To the maximum extent practicable, such opportunity shall be
afforded before the effective date of such rule or order. Such
opportunity shall be afforded no later than 30 days after such
date in the case of a waiver of the entire comment period under
[section 553(d)(3)] section 553(h)(2) of title 5, and no later
than 45 days after such date in all other cases. A transcript
shall be made of any such oral presentation.
* * * * * * *
TITLE 16--CONSERVATION
* * * * * * *
CHAPTER 31--MARINE MAMMAL PROTECTION
* * * * * * *
SEC. 1379. * * *
(a) * * *
* * * * * * *
(d) * * *
(1) * * *
(2) If the State agency requests the Secretary to
regulate the taking of a species to which paragraph (1)
applies within the zone described in section
1362(14)(B) 1 of this title for subsistence uses or for
hunting, or both, in a manner consistent with the
regulation by the State agency of such taking within
the State, the Secretary shall adopt, and enforce
within such zone, such of the State agency's regulatory
provisions as the Secretary considers to be consistent
with his administration of section 1371(a) of this
title within such zone. The Secretary shall adopt such
provisions through the issuance of regulations under
section 553 of title 5, and with respect to such
issuance the Regulatory Flexibility Act [5 U.S.C. 601
et seq.], the Paperwork Reduction Act, Executive Order
Numbered 12291, dated February 17, 1981, and the
thirty-day notice requirement in [subsection (d) of
such section 553] subsection (h) of such section 553
shall not apply. For purposes of sections 1375, 1376,
and 1377 of this title, such regulations shall be
treated as having been issued under this subchapter.
* * * * * * *
CHAPTER 35--ENDANGERED SPECIES
SEC. 1533. * * *
(a) * * *
(b) * * *
(1) * * *
(2) * * *
(3) * * *
(A) To the maximum extent practicable, within
90 days after receiving the petition of an
interested person under [section 553(e)]
section 553(i) of title 5, to add a species to,
or to remove a species from, either of the
lists published under subsection (c), the
Secretary shall make a finding as to whether
the petition presents substantial scientific or
commercial information indicating that the
petitioned action may be warranted. If such a
petition is found to present such information,
the Secretary shall promptly commence a review
of the status of the species concerned. The
Secretary shall promptly publish each finding
made under this subparagraph in the Federal
Register.
* * * * * * *
(D) * * *
(i) To the maximum extent
practicable, within 90 days after
receiving the petition of an interested
person under [section 553(e)] section
553(i) of title 5, to revise a critical
habitat designation, the Secretary
shall make a finding as to whether the
petition presents substantial
scientific information indicating that
the revision may be warranted. The
Secretary shall promptly publish such
finding in the Federal Register.
* * * * * * *
TITLE 20--EDUCATION
* * * * * * *
CHAPTER 31--GENERAL PROVISIONS CONCERNING EDUCATION
* * * * * * *
SEC. 1221E-4. EDUCATIONAL IMPACT STATEMENT.
Notwithstanding any other provision of law, no regulation
affecting any institution of higher education in the United
States, promulgated on or after October 3, 1980, shall become
effective unless such agency causes to be published in the
Federal Register a copy of such proposed regulation together
with an educational impact assessment statement which shall
determine whether any information required to be transmitted
under such regulation is already being gathered by or is
available from any other agency or authority of the United
States. [Notwithstanding the exception provided under section
553(b) of title 5, such] Such statement shall be based upon the
record established under the provisions of section 553 of title
5, compiled during the rulemaking proceeding regarding such
regulation.
* * * * * * *
TITLE 21--FOOD AND DRUGS
* * * * * * *
CHAPTER 10--POULTRY AND POULTRY PRODUCTS INSPECTION
* * * * * * *
SEC. 463. * * *
(a) * * *
(b) * * *
(c) Oral Presentation of Views.--In applying the provisions
of [section 553(c) of title 5] section 553(c)(4) of title 5,
United States Code, to proposed rule making under this chapter,
an opportunity for the oral presentation of views shall be
accorded all interested persons.
* * * * * * *
TITLE 42--THE PUBLIC HEALTH AND WELFARE
* * * * * * *
CHAPTER 7--SOCIAL SECURITY
* * * * * * *
Subchapter II--Federal Old-Age, Survivors, and Disability Insurance
Benefits
* * * * * * *
SEC. 421. * * *
(a) * * *
* * * * * * *
(j) * * *
(1) * * *
(2) * * *
(3) procedures by which the Commissioner of Social
Security will monitor both the referral processes used
and the product of professionals to whom cases are
referred.
Nothing in this subsection shall be construed to preclude
the issuance, [in accordance with section 553(b)(A) of title 5,
of interpretive rules, general statements of policy, and rules
of agency organization relating to consultative examinations if
such rules and statements] in accordance with section 553(g)(2)
of title 5, United States Code, of guidance or rules of agency
organization, procedure, or practice relating to consultative
examinations if such guidance and rules are consistent with
such regulations.
* * * * * * *
Subchapter XVIII--Health Insurance for Aged and Disabled
* * * * * * *
PART E--MISCELLANEOUS PROVISIONS
* * * * * * *
SEC. 1395HH. * * *
(a) * * *
(b) * * *
(1) * * *
(2) * * *
(A) * * *
(B) * * *
[(C) subsection (b) of section 553 of title 5
does not apply pursuant to subparagraph (B) of
such subsection.] (C) subsection (c) of section
553 of title 5, United States Code, does not
apply pursuant to subsection (g)(3) of such
section.
* * * * * * *
CHAPTER 119--HOMELESS ASSISTANCE
* * * * * * *
Subchapter IV--Housing Assistance
* * * * * * *
PART C--CONTINUUM OF CARE PROGRAM
* * * * * * *
SEC. 11387. REGULATIONS.
Not later than the expiration of the 90-day period
beginning on October 28, 1992, the Secretary shall issue
interim regulations to carry out this part, which shall take
effect upon issuance. The Secretary shall issue final
regulations to carry out this part after notice and opportunity
for public comment regarding the interim regulations, pursuant
to the provisions of section 553 of title 5 [(notwithstanding
subsections (a)(2), (b)(B), and (d)(3) of such section)]
(notwithstanding subsections (a)(2), (g)(3), and (h)(2) of such
section). The duration of the period for public comment shall
not be less than 60 days, and the final regulations shall be
issued not later than the expiration of the 60-day period
beginning upon the conclusion of the comment period and shall
take effect upon issuance.
* * * * * * *
CHAPTER 34--ECONOMIC OPPORTUNITY PROGRAM
* * * * * * *
SEC. 2992B-1. * * *
(a) * * *
(b) * * *
(1) [Subparagraph (A) of the last sentence of section
553(b) of title 5 shall not apply with respect to any
interpretative rule or general statement of policy]
Section 553(c) of title 5, United States Code, shall
apply with respect to guidance--
(A) * * *
(B) * * *
(2) [Subparagraph (B) of the last sentence of section
553(b)] Section 553(g)(3) of title 5, shall not apply
with respect to any rule (other than [an interpretative
rule or a general statement of policy] guidance)--
(A) * * *
(B) * * *
(3) [The first 2 sentences of section 553(b)] Section
553(c) of title 5 shall apply with respect to any rule
(other than [an interpretative rule, a general
statement of policy,] guidance or a rule of agency
organization, procedure, or practice) that is--
(A) * * *
(B) * * *
(c) Effective Date of Rule or General Statement of
Policy.--Notwithstanding [section 553(d)] section 553(h) of
title 5, no rule (including [an interpretative rule)] guidance)
or general statement of policy that--
(1) * * *
(2) applies exclusively to any program, project, or
activity authorized by, or carried out under, this
subchapter;
may take effect until 30 days after the publication required
under [the first 2 sentences of section 553(b)] section 553(c)
of title 5.
(d) Statutory Citation Required.--Each rule (including [an
interpretative rule) and each general statement of policy]
guidance to which this section applies shall contain after each
of its sections, paragraphs, or similar textual units a
citation to the particular provision of statutory or other law
that is the legal authority for such section, paragraph, or
unit.
(e) Rule or General Statement of Policy Necessary as Result
of Legislation; Time for Issuance.--Except as provided in
subsection (c), if as a result of the enactment of any law
affecting the administration of this subchapter it is necessary
or appropriate for the Secretary to issue any rule (including
[any interpretative rule) or a general statement of policy]
guidance), the Secretary shall issue such rule [or such general
statement of policy] not later than 180 days after the date of
the enactment of such law.
(f) Copy of Rule or General Statement of Policy to
Congressional Leaders.--Whenever an agency publishes in the
Federal Register a rule (including [an interpretative rule) or
a general statement of policy] guidance) to which subsection
(c) applies, such agency shall transmit a copy of such rule [or
such general statement of policy] to the Speaker of the House
of Representatives and the President pro tempore of the Senate.
(g) In this section, the term `guidance' has the meaning
given the term in section 551 of title 5, United States Code.
* * * * * * *
CHAPTER 65--NOISE CONTROL
* * * * * * *
SEC. 4905. * * *
(a) * * *
(b) * * *
(c) * * *
(2) After publication of any proposed regulations
under this section, the Administrator shall allow
interested persons an opportunity to participate in
rulemaking in accordance with [the first sentence of
section 553(c) of title 5] section 553(c)(4)(A) of
title 5.
* * * * * * *
CHAPTER 135--RESIDENCY AND SERVICE REQUIREMENTS IN FEDERALLY ASSISTED
HOUSING
* * * * * * *
Subchapter 1--Standards and Obligations of Residency in Federally
Assisted Housing
* * * * * * *
SEC. 13603. * * *
(a) * * *
(b) * * *
(1) * * *
(2) * * *
(3) Procedure.--Not later than 90 days after the
submission of the final report under subsection (a)(7),
the Secretary shall issue a notice of proposed
rulemaking of the regulations under this subsection
providing for notice and opportunity for public comment
regarding the regulations, pursuant to the provisions
of section 553 of title 5 [(notwithstanding subsections
(a)(2), (b)(B), and (d)(3) of such section)]
(notwithstanding subsections (a)(2), (g)(3), and (h)(2)
of such section). The duration of the period for public
comment under such section 553 shall not be less than
60 days. The Secretary shall issue final regulations
under this subsection not later than the expiration of
the 60-day period beginning upon the conclusion of the
comment period, which shall take effect upon issuance.
* * * * * * *
SEC. 13643. REGULATIONS.
The Secretary shall issue regulations necessary to carry
out subtitles B through F of this title and the amendments made
by such subtitles not later than the expiration of the 6-month
period beginning on October 28, 1992. The regulations shall be
issued after notice and opportunity for public comment pursuant
to the provisions of section 553 of title 5 [(notwithstanding
subsections (a)(2), (b)(B), and (d)(3) of such section)]
(notwithstanding subsections (a)(2), (g)(3), and (h)(2) of such
section).
* * * * * * *
TITLE 41--PUBLIC CONTRACTS
* * * * * * *
Subtitle IV--Miscellaneous
* * * * * * *
CHAPTER 85--COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR
SEVERELY DISABLED
* * * * * * *
SEC. 8503. * * *
(a) * * *
(1) * * *
(2) Changes to list.--The Committee may, by rule made
in accordance with the requirements of section [553(b)
to (e)] section 553 of title 5, add to and remove from
the procurement list products so produced and services
so provided.
* * * * * * *
TITLE 46--SHIPPING
* * * * * * *
Subtitle II--Vessels and Seamen
* * * * * * *
PART J--MEASUREMENT OF VESSELS
* * * * * * *
CHAPTER 141--GENERAL
* * * * * * *
SEC. 14104. * * *
(a) * * *
(b) If a statute allows for an alternate tonnage to be
prescribed under this section, the Secretary may prescribe it
by regulation. Any such regulation [shall be considered to be
an interpretive regulation for purposes of section 553 of title
5] shall be subject to section 553 of title 5. Until an
alternate tonnage is prescribed, the statutorily established
tonnage shall apply to vessels measured under chapter 143 or
chapter 145 of this title.
* * * * * * *
TITLE 50--WAR AND NATIONAL DEFENSE
* * * * * * *
CHAPTER 55--DEFENSE PRODUCTION
* * * * * * *
SEC. 4559. * * *
(a) * * *
(b) * * *
(1) In general.--Except as provided in subsection
(c), any regulation issued under this chapter shall be
published in the Federal Register and opportunity for
public comment shall be provided [for not less than 30
days, consistent with the requirements of section
553(b)] in a manner consistent with the requirements of
section 553(c) of title 5.
[all]