,,ii #aacth ,,congress #ast ,session ,s4 #ajbi ,,in ,,the ,,senate ,,of ,,the ,,united ,,states ,may #bc1 #bjac ,mr4 ,portman 7for himself1 ,mr4 ,pryor1 ,ms4 ,collins1 ,mr4 ,nelson1 ,mr4 ,cornyn1 ,mr4 ,manchin1 ,ms4 ,ayotte1 ,mr4 ,king1 and ,mr4 ,johanns7 introduced the following bill2 which was read twice and referred to the ,committee on ,homeland ,security and ,governmental ,affairs ,a ,,bill ,to reform the process by which ,federal agencies analyze and formulate new regulations and guidance documents4 #a4 ,short title ,this ,act may be cited as the ,regulatory ,accountability ,act of #bjac4 #b4 ,definitions ,section #eea of title #e1 ,united ,states ,code1 is amended-- 7#a7 in paragraph 7#ac71 by striking and at the end2 7#b7 in paragraph 7#ad71 by striking the period at the end and inserting a semicolon2 and 7#c7 by adding at the end the following3 7#ae7 guidance means an agency statement of general applicability1 other than a rule1 that is not intended to have the force and effect of law but that sets forth a policy on a statutory1 regulatory1 or technical issue or an interpretation of a statutory or regulatory issue2 7#af7 high-impact rule means any rule that the ,administrator of the ,office of ,information and ,regulatory ,affairs determines is likely to impose a cost on the economy in any #a year of #a1jjj1jjj1jjj or more1 adjusted annually for inflation2 7#ag7 major rule means any rule that the ,administrator of the ,office of ,information and ,regulatory ,affairs determines is likely to impose-- 7,a7 a cost on the economy in any #a year of #ajj1jjj1jjj or more1 adjusted annually for inflation2 7,b7 a major increase in costs or prices for consumers1 individual industries1 ,federal1 ,state1 local1 or tribal government agencies1 or geographic regions2 or 7,c7 significant adverse effects on competition1 employment1 investment1 productivity1 innovation1 or on the ability of ,united ,states-based enterprises to compete with foreign-based enterprises in domestic and export markets2 7#ah7 major guidance means guidance that the ,administrator of the ,office of ,information and ,regulatory ,affairs finds is likely to lead to-- 7,a7 a cost on the economy in any #a year of #ajj1jjj1jjj or more1 adjusted annually for inflation2 7,b7 a major increase in costs or prices for consumers1 individual industries1 ,federal1 ,state1 local or tribal government agencies1 or geographic regions2 or 7,c7 significant adverse effects on competition1 employment1 investment1 productivity1 innovation1 or on the ability of ,united ,states-based enterprises to compete with foreign-based enterprises in domestic and export markets2 and 7#ai7 ,office of ,information and ,regulatory ,affairs means the office established under section #cejc of title #dd and any successor to that office4 4 #c4 ,rulemaking ,section #eec of title #e1 ,united ,states ,code1 is amended-- 7#a7 in subsection 7a71 by striking 7a7 ,this section applies and inserting 7a7 ,applicability4--,this section applies2 and 7#b7 by striking subsections 7b7 through 7e7 and inserting the following3 7b7 ,rulemaking considerations ,in a rulemaking1 an agency shall consider1 in addition to other applicable considerations1 the following3 7#a7 ,the legal authority under which a rule may be proposed1 including whether rulemaking is required by statute or is within the discretion of the agency4 7#b7 ,the nature and significance of the problem the agency intends to address with a rule4 7#c7 ,whether existing ,federal laws or rules have created or contributed to the problem the agency may address with a rule and1 if so1 whether those ,federal laws or rules could be amended or rescinded to address the problem in whole or in part4 7#d7 ,a reasonable number of alternatives for a new rule1 including any substantial alternatives or other responses identified by interested persons4 7#e7 ,for any major rule or high-impact rule1 the potential costs and benefits associated with potential alternative rules and other responses considered under paragraph 7#d71 including an analysis of-- 7,a7 the nature and degree of risks addressed by the rule and the countervailing risks that might be posed by agency action2 7,b7 direct1 indirect1 and cumulative costs and benefits2 and 7,c7 estimated impacts on jobs1 competitiveness1 and productivity4 7c7 ,initiation of rulemaking 7#a7 ,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 rule1 the agency shall-- 7,a7 establish an electronic docket for that rulemaking1 which may have a physical counterpart2 and 7,b7 publish a notice of initiation of rulemaking in the ,federal ,register1 which shall-- 7i7 briefly describe the subject1 the problem to be solved1 and the objectives of the rule2 7ii7 reference the legal authority under which the rule would be proposed2 7iii7 invite interested persons to propose alternatives for accomplishing the objectives of the agency in the most effective manner and with the lowest cost2 and 7iv7 indicate how interested persons may submit written material for the docket4 7#b7 ,accessibility ,all information provided to the agency under paragraph 7#a7 shall be promptly placed in the docket and made accessible to the public4 7d7 ,notice of proposed rulemaking 7#a7 ,in general ,if an agency determines that the objectives of the agency require the agency to issue a rule1 the agency shall notify the ,administrator of the ,office of ,information and ,regulatory ,affairs and publish a notice of proposed rulemaking in the ,federal ,register1 which shall include-- 7,a7 a statement of the time1 place1 and nature of any public rulemaking proceedings2 7,b7 reference to the legal authority under which the rule is proposed2 7,c7 the text of the proposed rule2 7,d7 a summary of information known to the agency concerning the considerations specified in subsection 7b72 and 7,e7 for any major rule or high impact-rule-- 7i7 a reasoned preliminary determination that the benefits of the proposed rule justify the costs of the proposed rule2 and 7ii7 a discussion of-- 7,i7 the costs and benefits of alternatives considered by the agency under subsection 7b71 as determined by the agency at its discretion or provided under subsection 7c7 by a proponent of an alternative2 7,,ii7 whether those alternatives meet relevant statutory objectives2 and 7,,iii7 the reasons why the agency did not propose any of those alternatives4 7#b7 ,accessibility ,not later than the date of publication of the notice of proposed rulemaking by an agency under paragraph 7#a71 all data1 studies1 models1 and other information considered by the agency1 and actions by the agency to obtain information1 in connection with the determination of the agency to propose the rule1 shall be placed in the docket for the proposed rule and made accessible to the public4 7#c7 ,public comment 7,a7 ,after publishing a notice of proposed rulemaking1 the agency shall provide interested persons an opportunity to participate in the rulemaking through the submission of written material1 data1 views1 or arguments with or without opportunity for oral presentation1 except that-- 7i7 if a public hearing is convened under subsection 7e71 reasonable opportunity for oral presentation shall be provided at the public hearing under the requirements of subsection 7e72 and 7ii7 when1 other than under subsection 7e71 a rule is required by statute or at the discretion of the agency to be made on the record after opportunity for an agency hearing1 sections #eef and #eeg shall apply1 and the petition procedures of subsection 7e7 shall not apply4 7,b7 ,the agency shall provide not less than #fj days1 or #ij days in the case of a proposed major rule or proposed high-impact rule1 for interested persons to submit written material1 data1 views1 or arguments4 7#d7 ,expiration of notice 7,a7 ,except as provided in subparagraph 7,b71 a notice of proposed rulemaking shall1 #b years after the date on which the notice is published in the ,federal ,register1 be considered as expired and may not be used to satisfy the requirements of subsection 7d74 7,b7 ,an agency may1 at the sole discretion of the agency1 extend the expiration of a notice of proposed rulemaking under subparagraph 7,a7 for a #a year period by publishing a supplemental notice in the ,federal ,register explaining why the agency requires additional time to complete the rulemaking4 7e7 ,public hearing for high-,impact rules 7#a7 ,petition for public hearing 7,a7 7i7 ,before the close of the comment period for any proposed high-impact rule1 any interested person may petition the agency to hold a public hearing in accordance with this subsection4 7ii7 ,not later than #cj days after receipt of a petition made pursuant to clause 7i71 the agency shall grant the petition if the petition shows that-- 7,i7 the proposed rule is based on conclusions with respect to one or more specific scientific1 technical1 economic or other complex factual issues that are genuinely disputed2 and 7,,ii7 the resolution of those disputed factual issues would likely have an effect on the costs and benefits of the proposed rule4 7,b7 ,if the agency denies a petition under this subsection in whole or in part1 it shall include in the rulemaking record an explanation for the denial sufficient for judicial review1 including-- 7i7 findings by the agency that there is no genuine dispute as to the factual issues raised by the petition2 or 7ii7 a reasoned determination by the agency that the factual issues raised by the petition1 even if subject to genuine dispute1 will not have an effect on the costs and benefits of the proposed rule4 7#b7 ,notice of hearing ,not later than #de days before any hearing held under this subsection1 the agency shall publish in the ,federal ,register a notice specifying the proposed rule to be considered at the hearing and the factual issues to be considered at the hearing4 7#c7 ,hearing procedure 7,a7 ,a hearing held under this subsection shall be limited to the specific factual issues raised in the petition or petitions granted in whole or in part under paragraph 7#a7 and any other factual issues the resolution of which the agency1 in its discretion1 determines will advance its consideration of the proposed rule4 7,b7 7i7 ,except as otherwise provided by statute1 the proponent of the rule has the burden of proof in a hearing held under this subsection4 ,any documentary or oral evidence may be received1 but the agency as a matter of policy shall provide for the exclusion of immaterial or unduly repetitious evidence4 7ii7 ,to govern hearings held under this subsection1 each agency shall adopt rules that provide for-- 7,i7 the appointment of an agency official or administrative law judge to preside at the hearing2 7,,ii7 the presentation by interested parties of relevant documentary or oral evidence1 unless the evidence is immaterial or unduly repetitious2 7,,iii7 a reasonable and adequate opportunity for cross-examination by interested parties concerning genuinely disputed factual issues raised by the petition1 provided that in the case of multiple interested parties with the same or similar interests1 the agency may require the use of common counsel where the common counsel may adequately represent the interests that will be significantly affected by the proposed rule2 and 7,,iv7 the provision of fees and costs under the circumstances described in section #f7;c77#d7 of the ,toxic ,substances ,control ,act 7#ae ,u4,s4,c4 #bfje7;c77#d774 7,c7 ,the transcript of testimony and exhibits1 together with all papers and requests filed in the hearing1 shall constitute the exclusive record for decision of the factual issues addressed in a hearing held under this subsection4 7#d7 ,petition for public hearing for major rules ,in the case of any major rule1 any interested person may petition for a hearing under this subsection on the grounds and within the time limitation set forth in paragraph 7#a74 ,the agency may deny the petition if the agency reasonably determines that a hearing would not advance the consideration of the proposed rule by the agency or would1 in light of the need for agency action1 unreasonably delay completion of the rulemaking4 ,the petition and the decision of the agency with respect to the petition shall be included in the rulemaking record4 7#e7 ,judicial review 7,a7 ,failure to petition for a hearing under this subsection shall not preclude judicial review of any claim that could have been raised in the hearing petition or at the hearing4 7,b7 ,there shall be no judicial review of the disposition of a petition by an agency under this subsection until judicial review of the final action of the agency4 7f7 ,final rules 7#a7 ,cost of major or high-impact rule 7,a7 ,except as provided in subparagraph 7,b71 in a rulemaking for a major rule or high-impact rule1 the agency shall adopt the least costly rule considered during the rulemaking that meets relevant statutory objectives4 7,b7 ,the agency may adopt a rule that is more costly than the least costly alternative that would achieve the relevant statutory objectives only if-- 7i7 the additional benefits of the more costly rule justify its additional costs2 and 7ii7 the agency explains why the agency adopted a rule that is more costly than the least costly alternative1 based on interests that are within the scope of the statutory provision authorizing the rule4 7#b7 ,publication of notice of final rulemaking ,when the agency adopts a final rule1 the agency shall publish a notice of final rulemaking in the ,federal ,register1 which shall include-- 7,a7 a concise1 general statement of the basis and purpose of the rule2 7,b7 a reasoned determination by the agency regarding the considerations specified in subsection 7c72 7,c7 in a rulemaking for a major rule or high-impact rule1 a reasoned determination by the agency that the benefits of the rule advance the relevant statutory objectives and justify the costs of the rule2 7,d7 in a rulemaking for a major rule or high-impact rule1 a reasoned determination by the agency that-- 7i7 no alternative considered would achieve the relevant statutory objectives at a lower cost than the rule2 or 7ii7 the adoption by the agency of a more costly rule complies with paragraph 7#b77;,b72 and 7,e7 a response to each significant issue raised in the comments on the proposed rule4 7#c7 ,information quality ,if an agency rulemaking rests upon scientific1 technical1 or economic information1 the agency shall adopt a rule only on the basis of the best available scientific1 technical1 or economic information4 7#d7 ,accessibility ,not later than the date of publication of the rule1 all data1 studies1 models1 and other information considered by the agency1 and actions by the agency to obtain information in connection with its adoption of the rule1 shall be placed in the docket for the rule and made accessible to the public4 7#e7 ,rules adopted at the end of a ,presidential administration 7,a7 ,during the #fj-;day period beginning on a transitional inauguration day 7as defined in section #ccdi;a71 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 inauguration1 but which had not yet become effective by the date of the inauguration1 the agency issuing the rule may1 by order1 delay the effective date of the rule for not more than #ij days for the purpose of obtaining public comment on whether the rule should be amended or rescinded or its effective date further delayed4 7,b7 ,if an agency delays the effective date of a rule under subparagraph 7,a71 the agency shall give the public not less than #cj days to submit comments4 7g7 ,applicability of this section 7#a7 ,in general ,except as otherwise provided by law1 this section does not apply to guidance or rules of agency organization1 procedure1 or practice4 7#b7 ,adoption of interim rules 7,a7 ,if an agency for good cause finds1 and incorporates the finding and a brief statement of reasons for the finding in the rule issued1 that compliance with subsection 7c71 7d71 or 7e7 or requirements to render final determinations under subsection 7f7 before the issuance of an interim rule is unnecessary1 such subsections and requirements under subsection 7f7 shall not apply and the agency may issue a final rule4 7,b7 ,if an agency for good cause finds1 and incorporates the finding and a brief statement of reasons for the finding in the rule issued1 that compliance with subsection 7c71 7d71 or 7e7 or requirements to render final determinations under subsection 7f7 before the issuance of an interim rule is impracticable or contrary to the public interest1 such subsections and requirements under subsection 7f7 shall not apply to the adoption of an interim rule by the agency4 7,c7 ,if1 following compliance with subparagraph 7,b71 an agency adopts an interim rule1 the agency shall commence proceedings that fully comply with subsections 7c7 through 7f7 immediately upon publication of the interim rule4 ,not less than #bgj days from publication of the interim rule1 or #ah months in the case of a major rule or high-impact rule1 the agency shall complete rulemaking in accordance with subsections 7c7 through 7f7 and take final action to adopt a final rule or rescind the interim rule4 ,if the agency fails to take timely final action under this subparagraph1 the interim rule shall cease to have the effect of law4 7h7 ,date of publication of rule ,a rule shall be published not less than #cj days before the effective date of the rule1 except-- 7#a7 for a rule that grants or recognizes an exemption or relieves a restriction2 7#b7 for guidance2 or 7#c7 as otherwise provided by an agency for good cause and as published with the rule4 7i7 ,right ,to petition and review of rules 7#a7 ,each agency shall give interested persons the right to petition for the issuance1 amendment1 or repeal of a rule4 7#b7 ,each agency shall1 on a continuing basis1 invite interested persons to submit1 by electronic means1 suggestions for rules that warrant retrospective review and possible modification or repeal4 7j7 ,rulemaking guidelines 7#a7 ,assessment of rules 7,a7 ,the ,administrator of the ,office of ,information and ,regulatory ,affairs 7in this subsection referred to as the ,administrator7 shall establish guidelines for the assessment1 including quantitative and qualitative assessment1 of-- 7i7 the costs and benefits of proposed and final rules2 7ii7 other economic issues that are relevant to rulemaking under this section or other sections of this title2 and 7iii7 risk assessments that are relevant to rulemaking under this section and other sections of this title4 7,b7 ,the rigor of cost-benefit analysis required by the guidelines established under subparagraph 7,a7 shall be commensurate1 as determined by the ,administrator1 with the economic impact of the rule4 ,guidelines for risk assessment shall include criteria for selecting studies and models1 evaluating and weighing evidence1 and conducting peer reviews4 7,c7 ,the ,administrator shall regularly update guidelines established under subparagraph 7,a7 to enable agencies to use the best available techniques to quantify and evaluate present and future benefits1 costs1 other economic issues1 and risks as objectively and accurately as practicable4 7#b7 ,simplification of rules ,the ,administrator may issue guidelines to promote coordination1 simplification1 and harmonization of agency rules during the rulemaking process4 ,the guidelines shall advise each agency to avoid regulations that are inconsistent or incompatible with1 or duplicative of1 other regulations of the agency and those of other ,federal agencies1 and to draft its regulations to be simple and easy to understand1 with the goal of minimizing the potential for uncertainty and litigation arising from the uncertainty4 7#c7 ,consistency in rulemaking 7,a7 ,to promote consistency in ,federal rulemaking1 the ,administrator shall-- 7i7 issue guidelines to ensure that rulemaking conducted in whole or in part under procedures specified in provisions of law other than those under this subchapter conform with the procedures set forth in this section to the fullest extent allowed by law2 and 7ii7 issue guidelines for the conduct of hearings under subsection 7e71 which shall provide a reasonable opportunity for cross-examination4 7,b7 ,each agency shall adopt regulations for the conduct of hearings consistent with the guidelines issued under this paragraph4 7k7 ,exemption for monetary policy ,nothing in subsection 7b77#e71 7d77#a77;,e71 7e71 7f77#a71 7f77#b77;,c71 or 7f77#b77;,d7 shall apply to a rulemaking that concerns monetary policy proposed or implemented by the ,board of ,governors of the ,federal ,reserve ,system or the ,federal ,open ,market ,committee4 4 #d4 ,scope of review ,section #gjf of title #e1 ,united ,states ,code is amended-- 7#a7 by striking ,to the extent necessary and inserting ,in general4--,to the extent necessary2 and 7#b7 by adding at the end the following3 7b7 ,judicial review ,the determination of whether a rule is a major rule within the meaning of subparagraphs 7,b7 and 7,c7 of section #eea7ag7 shall not be subject to judicial review4 7c7 ,statement of policy ,agency guidance that does not interpret a statute or regulation shall be reviewable only under subsection 7a77#b77;,d74 7d7 ,agency interpretation of rules ,the weight that a court shall give an interpretation by an agency of its own rule shall depend on the thoroughness evident in its consideration1 the validity of its reasoning1 and its consistency with earlier and later pronouncements4 7e7 ,standard of review ,a court shall review-- 7#a7 the denial of a petition by an agency under section #eec7;e7 for whether the denial was based on substantial evidence2 and 7#b7 any petition for review of a high-impact rule under the substantial evidence standard1 regardless of whether a hearing was held under section #eec7;e74 4 #e4 ,agency guidance2 procedures to issue major guidance2 presidential authority to issue guidelines for issuance of guidance ,section #eec of title #e1 ,united ,states ,code1 as amended by this ,act1 is amended by adding at the end the following3 7l7 ,agency guidance2 procedures ,to issue major guidance2 authority ,to issue guidelines for issuance of guidance 7#a7 ,agency guidance shall-- 7,a7 not be used by an agency to foreclose consideration of issues as to which the document expresses a conclusion2 7,b7 state that it is not legally binding2 and 7,c7 at the time it is issued or upon request1 be made available by the issuing agency to interested persons and the public4 7#b7 ,before issuing any major guidance1 an agency shall-- 7,a7 make and document a reasoned determination that-- 7i7 such guidance is understandable and complies with relevant statutory objectives and regulatory provisions2 and 7ii7 identifies the costs and benefits1 including all costs to be considered during a rulemaking under subsection 7b71 of requiring conduct conforming to such guidance and assures that such benefits justify such costs2 and 7,b7 confer with the ,administrator of the ,office of ,information and ,regulatory ,affairs on the issuance of the major guidance to assure that the guidance is reasonable1 understandable1 consistent with relevant statutory and regulatory provisions and requirements or practices of other agencies1 does not produce costs that are unjustified by the benefits of the major guidance1 and is otherwise appropriate4 7#c7 ,the ,administrator of the ,office of ,information and ,regulatory ,affairs shall issue updated guidelines for use by the agencies in the issuance of guidance documents4 ,the guidelines shall advise each agency not to issue guidance documents that are inconsistent or incompatible with1 or duplicative of1 other regulations of the agency and those of other ,federal agencies1 and to draft its guidance documents to be simple and easy to understand1 with the goal of minimizing the potential for uncertainty and litigation arising from the uncertainty4 4 #f4 ,added definition ,section #gja7;b7 of title #e1 ,united ,states ,code1 is amended-- 7#a7 in paragraph 7#a77;,h71 by striking and at the end2 7#b7 in paragraph 7#b71 by striking the period at the end1 and inserting 2 and2 and 7#c7 by adding at the end the following3 7#c7 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 whole1 taking into account whatever in the record fairly detracts from the weight of the evidence relied upon by the agency to support its decision4 4 #g4 ,effective date ,the amendments made by this ,act to sections #eec1 #eef1 #gja7;b71 #gjd1 #gjf7;b77#d71 #gjf7;b77#e71 and #gjf7;c7 of title #e1 ,united ,states ,code1 shall not apply to any rulemakings pending or completed on the date of enactment of this ,act4