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S. 2278: Regulatory Accountability Act


The text of the bill below is as of Jun 24, 2021 (Introduced).


II

117th CONGRESS

1st Session

S. 2278

IN THE SENATE OF THE UNITED STATES

June 24, 2021

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

A BILL

To improve agency rulemaking, and for other purposes.

1.

Short title

This Act may be cited as the Regulatory Accountability Act.

2.

Definitions

Section 551 of title 5, United States Code, is amended—

(1)

in paragraph (5), by striking rule making and inserting rulemaking;

(2)

in paragraph (6), by striking rule making and inserting rulemaking;

(3)

in paragraph (13), by striking and at the end;

(4)

in paragraph (14), by striking the period at the end and inserting a semicolon; and

(5)

by adding at the end the following:

(15)

guidance means an agency statement of general applicability that—

(A)

is not intended to have the force and effect of law; and

(B)

sets forth a policy on a statutory, regulatory, or technical issue or an interpretation of a statutory or regulatory issue;

(16)

high-impact rule means any rule that the Administrator determines is likely to cause an annual effect on the economy of $500,000,000 or more, adjusted once every 5 years to reflect increases in the Consumer Price Index for All Urban Consumers, as published by the Bureau of Labor Statistics of the Department of Labor;

(17)

major guidance means guidance that the Administrator finds is likely to lead to—

(A)

an annual effect on the economy of $100,000,000 or more, adjusted once every 5 years to reflect increases in the Consumer Price Index for All Urban Consumers, as published by the Bureau of Labor Statistics of the Department of Labor;

(B)

a major increase in costs or prices for consumers, individual industries, Federal, State, local, or Tribal government agencies, or geographic regions; or

(C)

significant adverse effects on competition, employment, investment, productivity, innovation, public health and safety, or the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets;

(18)

major rule means any rule that the Administrator determines is likely to cause—

(A)

an annual effect on the economy of $100,000,000 or more, adjusted once every 5 years to reflect increases in the Consumer Price Index for All Urban Consumers, as published by the Bureau of Labor Statistics of the Department of Labor;

(B)

a major increase in costs or prices for consumers, individual industries, Federal, State, local, or Tribal government agencies, or geographic regions; or

(C)

significant adverse effects on competition, employment, investment, productivity, innovation, public health and safety, or the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets;

(19)

Office of Information and Regulatory Affairs means the office established under section 3503 of title 44 and any successor to that office; and

(20)

Administrator means the Administrator of the Office of Information and Regulatory Affairs.

.

3.

Rulemaking

Section 553 of title 5, United States Code, is amended—

(1)

in the section heading, by striking Rule making and inserting Rulemaking;

(2)

in subsection (a), by striking (a) This section applies and inserting the following:

(a)

Applicability

This section applies

; and

(3)

by striking subsections (b) through (e) and inserting the following:

(b)

Rulemaking considerations

In a rulemaking, an agency shall consider, in addition to other applicable considerations, the following:

(1)

The legal authority under which a rule may be proposed, including whether rulemaking is required by statute or is within the discretion of the agency.

(2)

The nature and significance of the problem the agency intends to address with a rule.

(3)

Whether existing Federal laws or rules have created or contributed to the problem the agency may address with a rule and, if so, whether those Federal laws or rules could be amended or rescinded to address the problem in whole or in part.

(4)

A reasonable number of alternatives for or to a new rule, with the consideration of 3 alternatives presumed to be reasonable, that—

(A)

meet the objectives of the statutory provision on which the rulemaking relies, including substantial alternatives or other responses identified by the agency or by interested persons; and

(B)

consider not only mandating particular conduct or manners of compliance, but also—

(i)

specifying performance objectives;

(ii)

establishing economic incentives, including marketable permits, to encourage desired behavior;

(iii)

establishing disclosure requirements that will provide information upon which choices can be made by the public; or

(iv)

adopting other means of meeting the objectives of the statutory provision on which the rulemaking relies without mandating particular conduct or manners of compliance.

(5)

For any major rule or high-impact rule, unless prohibited by law, the potential costs and benefits associated with potential alternative rules and other responses considered under paragraph (4), including quantitative and qualitative analyses of—

(A)

the direct costs and benefits;

(B)

the nature and degree of risks addressed by the rule and the countervailing risks that might be posed by agency action; and

(C)

to the extent practicable, the cumulative costs and benefits, and an analysis of the effects that the rule is anticipated to have on entities that purchase products or services from, sell products or services to, or otherwise conduct business with entities to which the rule will apply.

(c)

Notice of proposed rulemaking

(1)

In general

If an agency determines that the objectives of the agency require the agency to issue a rule, the agency shall—

(A)

submit a notice of proposed rulemaking to the Administrator for review;

(B)

refrain from publishing the notice until the Administrator determines that review by the Administrator has concluded; and

(C)

at the conclusion of review by the Administrator, publish a notice of proposed rulemaking in the Federal Register, which shall include—

(i)

a statement of the time, place, and nature of any public rulemaking proceedings;

(ii)

a reference to the legal authority under which the rule is proposed, including the specific statutory provision on which the rulemaking relies;

(iii)

the text of the proposed rule;

(iv)

a summary of information known to the agency concerning the considerations described in subsection (b); and

(v)

where otherwise consistent with applicable law, for any major rule or high-impact rule—

(I)

a reasoned preliminary explanation regarding how—

(aa)

the proposed rule meets the objectives of the statutory provision on which the rulemaking relies; and

(bb)

the benefits of the proposed rule justify the costs;

(II)

a discussion of—

(aa)

the costs and benefits of alternatives considered by the agency under subsection (b)(4);

(bb)

whether the alternatives considered by the agency under subsection (b)(4) meet the objectives of the statutory provision on which the rulemaking relies; and

(cc)

the reasons why the agency did not propose an alternative considered by the agency under subsection (b)(4); and

(III)

a solicitation of public comment, including on all issues and alternatives discussed under subclauses (I) and (II) and subsection (l)(1)(A).

(2)

Accessibility

(A)

In general

Not later than the date on which an agency publishes a notice of proposed rulemaking under paragraph (1), all studies, models, scientific literature, and other information developed or relied upon by the agency, and actions taken by the agency to obtain that information, in connection with the determination of the agency to propose the rule that is the subject of the rulemaking shall be placed in the docket for the proposed rule and made accessible to the public.

(B)

Information controlled by nongovernmental person

With respect to any information to which a nongovernmental person holds a legal right to prohibit or limit reproduction, distribution, or public display, the information shall be—

(i)

placed in the docket through citation or incorporation by reference, including a specification of the identity of the nongovernmental person who holds a legal right to prohibit or limit reproduction, distribution, or public display of the information and the means by which a member of the public may request a full copy of the information from that holder; and

(ii)

considered made accessible to the public after a placement described in clause (i), provided that the nongovernmental person who holds a legal right to prohibit or limit reproduction, distribution, or public display of the information makes the information reasonably available upon request in a timely manner to any member of the public who requests a copy of the information.

(C)

Exception

Subparagraphs (A) and (B) shall not apply with respect to information that is exempt from disclosure under section 552(b).

(3)

Information quality

If an agency proposes a rule that rests upon scientific, technical, or economic information, the agency shall—

(A)

propose the rule on the basis of the best reasonably available scientific, technical, or economic information; and

(B)

to the maximum extent practicable, use that information in compliance with the guidelines issued under section 515 of the Treasury and General Government Appropriations Act, 2001 (Public Law 106–554; 114 Stat. 2763A–154).

(4)

Public comment

(A)

In general

After publishing a notice of proposed rulemaking under paragraph (1), an agency shall provide interested persons an opportunity to participate in the rulemaking through the submission of written material, data, views, or arguments with or without opportunity for oral presentation, except that—

(i)

if a public hearing is convened under subsection (e), reasonable opportunity for oral presentation shall be provided at the public hearing as provided in subsection (e); and

(ii)

when, other than as provided in subsection (e), a rule is required by statute to be made on the record after opportunity for an agency hearing—

(I)

sections 556 and 557 shall apply; and

(II)

the petition procedures of subsection (e) shall not apply.

(B)

Timeline

(i)

In general

Subject to subparagraph (C), an agency shall provide not less than 60 days, or, with respect to a proposed major rule or a proposed high-impact rule, not less than 90 days, for interested persons to submit written material, data, views, or arguments under subparagraph (A).

(ii)

Adequate review period

If a proposed rule relies on information placed in the docket through citation or incorporation by reference as described in paragraph (3)(B), the comment period required under clause (i) shall be adequate to allow interested persons to receive and review that information to inform their submission.

(C)

Responsive comment period for major and high-impact rules

With respect to a proposed major rule or a proposed high-impact rule, an interested person who made a submission under subparagraph (A) during the comment period under subparagraph (B) with respect to the rule may, during the period beginning on the day after the date on which that comment period closes and ending on the date that is 30 days after that day, respond to any other submission made by any other interested person under subparagraph (A) during the initial comment period.

(D)

Accessibility

All comments and responses submitted under this paragraph shall be promptly placed in the docket and made accessible to the public.

(5)

Change of classification after publication of notice

If, after an agency submits for review and publishes the notice of proposed rulemaking required under paragraph (1), a proposed rule is determined to be a major rule or a high-impact rule, the agency shall—

(A)

publish a notice in the Federal Register with respect to the change of the classification of the rule; and

(B)

allow interested persons an additional opportunity of not less than 30 days to comment on—

(i)

the rule; and

(ii)

the change of the classification of the rule.

(6)

Prohibition on certain communications

(A)

In general

Except as provided in subparagraph (B), after an agency publishes a notice of proposed rulemaking required under paragraph (1), or after an agency publishes a notice of initiation of rulemaking under subsection (d)(1)(B), the agency, and any individual acting in an official capacity on behalf of the agency, may not communicate, and a person who receives Federal funds from the agency may not use those funds to communicate, through written, oral, electronic, or other means, to the public with respect to the proposed rule in a manner that—

(i)

directly advocates, in support of or against the proposed rule, for the submission of information that will form part of the record for the proposed rule;

(ii)

appeals to the public, or solicits a third party, to undertake advocacy in support of or against the proposed rule; or

(iii)

is directly or indirectly for the purpose of publicity or propaganda within the United States in a manner that Congress has not authorized.

(B)

Exception

The prohibition under subparagraph (A) shall not apply to a communication that requests comments on, or provides information regarding, a proposed rule in an impartial manner.

(d)

Initiation of rulemaking for major and high-Impact rules

(1)

Notice for major and high-impact rules

When an agency determines to initiate a rulemaking that may result in a major rule or a high-impact rule, the agency shall—

(A)

establish an electronic docket for that rulemaking, which may have a physical counterpart; and

(B)

publish a notice of initiation of rulemaking in the Federal Register, which shall—

(i)

briefly describe the subject and objectives of, and the problem to be solved by, the rule;

(ii)

refer to the legal authority under which the rule would be proposed, including the specific statutory provision that authorizes the rulemaking;

(iii)

invite interested persons to propose alternatives and other ideas regarding how best to accomplish the objectives of the agency in the most effective manner;

(iv)

indicate how interested persons may submit written material for the docket; and

(v)

appear in the Federal Register not later than 90 days before the date on which the agency publishes a notice of proposed rulemaking for the rule.

(2)

Accessibility

All information provided to the agency under paragraph (1) shall be promptly placed in the docket and made accessible to the public, unless the information—

(A)

is information to which the submitter does not hold a legal right to authorize disclosure; or

(B)

is exempt from disclosure under section 552(b).

(3)

Applicability

With respect to the alternatives and other ideas proposed under paragraph (1)(B)(iii)—

(A)

the alternatives and other ideas are for the benefit of—

(i)

the agency receiving the alternatives and other ideas; and

(ii)

the public; and

(B)

the agency receiving the alternatives and other ideas may respond to the alternatives and other ideas.

(4)

Timetable

(A)

In general

After considering any written material submitted by interested persons under paragraph (1), if an agency determines to proceed with a rulemaking for a major rule or a high-impact rule, the agency proposing the rule shall establish a timetable for the rulemaking that—

(i)

contains intermediate completion dates for actions of the agency, including—

(I)

the anticipated date on which the agency shall publish the notice required under subsection (c)(1) with respect to the rule; and

(II)

the duration of the comment period required under subsection (c)(4), including the date on which the comment period shall end; and

(ii)

includes a final completion date for actions by the agency.

(B)

Publication

The timetable required under subparagraph (A) shall be published in the electronic docket established under paragraph (1)(A) with respect to the rulemaking.

(C)

Consideration of factors

In establishing the timetable required under subparagraph (A), an agency shall consider relevant factors, including—

(i)

the size and complexity of the rulemaking;

(ii)

the resources available to the agency;

(iii)

the national significance of the rulemaking; and

(iv)

all statutory requirements that govern the timing of the rulemaking.

(D)

Report required

(i)

In general

An agency that fails to meet an intermediate or final completion date for an action established under subparagraph (A) shall submit to Congress and the Director of the Office of Management and Budget a report regarding why the agency failed to meet the completion date.

(ii)

Contents; publication in federal register

A report submitted under clause (i) shall—

(I)

include an amended timetable for the rulemaking; and

(II)

be published—

(aa)

in the Federal Register; and

(bb)

in the electronic docket established under paragraph (1)(A) with respect to the rulemaking.

(E)

Changes to intermediate dates published in electronic docket

If an agency changes an intermediate completion date for an action of the agency established under subparagraph (A)(i), the agency shall publish in the electronic docket established under paragraph (1)(A)—

(i)

the updated completion date for the action; and

(ii)

a brief explanation regarding the reason for the change to the completion date.

(5)

Notice of determination of other agency course

(A)

In general

If, after publishing the notice required under paragraph (1), an agency determines not to issue a major rule or a high-impact rule, the agency shall—

(i)

publish a notice of determination of other agency course; and

(ii)

if the agency intends to issue a rule, comply with the procedures required under subsection (c).

(B)

Contents

A notice of determination of other agency course published under subparagraph (A)(i) shall include—

(i)

a description of the alternative response the agency has determined to adopt; and

(ii)

if the agency intends to issue a rule, any information required under subsection (c).

(e)

Public hearing for high-Impact rules

(1)

Petition for public hearing

(A)

In general

Before the date on which the comment period closes with respect to a proposed high-impact rule, an interested person may petition the agency that proposed the rule to hold a public hearing in accordance with this subsection.

(B)

Granting and denial of petition

(i)

Granting of petition

Not later than 30 days after the date on which an agency receives a petition submitted under subparagraph (A) with respect to a rule, the agency shall grant the petition, in whole or in part, if the petition shows that—

(I)

the proposed rule is based on conclusions with respect to 1 or more specific scientific, technical, economic, or other complex factual issues that are genuinely disputed;

(II)

with respect to a rule that the agency is required to reissue not less frequently than once every 3 years, the interested person submitting the petition could not have raised the disputed factual issues described in subclause (I) during the 5-year period preceding the date on which the petition is submitted; and

(III)

the resolution of the disputed factual issues described in subclause (I) would likely have an effect on—

(aa)

the costs and benefits of the proposed rule; or

(bb)

whether the proposed rule achieves relevant statutory objectives, including the objectives of the statutory provision on which the rulemaking relies.

(ii)

Denial of petition

If an agency denies a petition submitted under subparagraph (A) in whole or in part, the agency shall include in the rulemaking record an explanation for the denial that is sufficient for judicial review, including—

(I)

findings by the agency that—

(aa)

there is no genuine dispute as to the factual issues raised by the petition; or

(bb)

with respect to a rule that the agency is required to reissue not less frequently than once every 3 years, the interested person submitting the petition could have raised the disputed factual issues in the petition during the 5-year period preceding the date on which the petition is submitted; and

(II)

a reasoned determination by the agency that the factual issues raised by the petition, even if subject to genuine dispute and not subject to subclause (I)(bb), will not have an effect on—

(aa)

the costs and benefits of the proposed rule; or

(bb)

whether the proposed rule achieves relevant statutory objectives, including the objectives of the statutory provision on which the rulemaking relies.

(iii)

Inclusion in the record

A petition submitted under subparagraph (A) with respect to a high-impact rule and the decision of an agency with respect to the petition shall be included in the rulemaking record.

(2)

Notice of hearing

Not later than 45 days before the date on which a hearing is held under this subsection, an agency shall publish in the Federal Register a notice specifying—

(A)

the proposed rule to be considered at the hearing; and

(B)

the factual issues to be considered at the hearing.

(3)

Hearing requirements

(A)

Limited nature of hearing

A hearing held under this subsection shall be limited to—

(i)

the specific factual issues raised in a petition granted in whole or in part under paragraph (1); and

(ii)

any other factual issues the resolution of which an agency, in the discretion of the agency, determines will advance consideration by the agency of the proposed rule.

(B)

Procedures

(i)

Burden of proof

Except as otherwise provided by statute, a proponent of a rule has the burden of proof in a hearing held under this subsection.

(ii)

Admission of evidence

In a hearing held under this subsection, any documentary or oral evidence may be received, except that an agency, as a matter of policy, shall provide for the exclusion of immaterial or unduly repetitious evidence.

(iii)

Adoption of rules governing hearings

To govern a hearing held under this subsection, each agency shall adopt rules that provide for—

(I)

the appointment of an agency official or administrative law judge to preside at the hearing;

(II)

the presentation by interested parties of relevant documentary or oral evidence, unless the evidence is immaterial or unduly repetitious;

(III)

a reasonable and adequate opportunity for cross-examination by interested parties concerning genuinely disputed factual issues raised by the petition, provided that, in the case of multiple interested parties with the same or similar interests, the agency may require the use of common counsel where the common counsel may adequately represent the interests that will be significantly affected by the proposed rule; and

(IV)

when appropriate, and to the extent practicable, the consolidation of proceedings with respect to multiple petitions submitted under this subsection into a single hearing.

(C)

Record of hearing

A transcript of testimony and exhibits, together with all papers and requests filed in the hearing, shall constitute the exclusive record for decision of the factual issues addressed in a hearing held under this subsection.

(4)

Judicial review

(A)

In general

Failure to petition for a hearing under this subsection shall not preclude judicial review of any claim that could have been raised in the hearing petition or at the hearing.

(B)

Timing of judicial review

There shall be no judicial review of the disposition of a petition by an agency under this subsection until judicial review of the final action of the agency.

(f)

Final rules

(1)

Net benefits of major or high-impact rule

(A)

In general

Except as provided in subparagraph (B), in a rulemaking for a major rule or a high-impact rule, an agency shall adopt the alternative considered under subsection (b)(5) that maximizes net benefits, taking into consideration only the costs and benefits that arise within the scope of the statutory provision that authorizes the rulemaking.

(B)

Exceptions

In a rulemaking for a major rule or a high-impact rule, an agency may adopt an alternative other than as required under subparagraph (A) only if—

(i)

the Administrator approves the adoption by the agency of the alternative; and

(ii)

the alternative is adopted to—

(I)

account for costs or benefits that cannot be quantified, including costs or benefits related to constitutional or civil rights, provided that the agency identifies all such costs and benefits and explains why those costs and benefits justify the adoption of the alternative; or

(II)

achieve additional benefits or cost reductions, provided that the agency—

(aa)

identifies—

(AA)

all such additional benefits and the associated costs of those benefits; and

(BB)

all such cost reductions and the associated benefits of those cost reductions; and

(bb)

explains why—

(AA)

the additional benefits justify the additional costs; or

(BB)

the additional cost reductions justify any benefits foregone.

(C)

Rule of construction

Nothing in subparagraph (A) may be construed to preclude an agency from including in an alternative adopted pursuant to such subparagraph changes made as a result of agency analysis or review performed under chapter 6 of this title.

(2)

Publication of notice of final rulemaking

After submitting a final rule to the Administrator for review and obtaining a certification from the Administrator that the review has concluded, the agency shall publish a notice of final rulemaking in the Federal Register, which shall include—

(A)

a concise, general statement of the basis and purpose of the rule and a reference to the legal authority under which the rule is made, including the specific statutory provision on which the rulemaking relies;

(B)

a reasoned determination by the agency regarding the considerations described in subsection (b);

(C)

a response to each significant issue raised in the comments on the proposed rule; and

(D)

with respect to a major rule or a high-impact rule, a reasoned determination by the agency that—

(i)

the benefits of the rule advance the relevant objectives of the statutory provision on which the rulemaking relies and justify the costs of the rule; and

(ii)
(I)

no other alternative considered would achieve the relevant objectives of the statutory provision on which the rulemaking relies in a manner that more greatly maximizes net benefits as required under paragraph (1)(A); or

(II)

the adoption by the agency of a more costly or less costly rule complies with paragraph (1)(B).

(3)

Information quality

If an agency rulemaking rests upon scientific, technical, or economic information, the agency shall—

(A)

adopt a final rule on the basis of the best reasonably available scientific, technical, or economic information; and

(B)

to the maximum extent practicable, use that information in compliance with the guidelines issued under section 515 of the Treasury and General Government Appropriations Act, 2001 (Public Law 106–554; 114 Stat. 2763A–154).

(4)

Accessibility

(A)

In general

Not later than the date on which an agency publishes a notice of final rulemaking under paragraph (2), all studies, models, scientific literature, and other information developed or relied upon by the agency, and actions taken by the agency to obtain that information, in connection with the determination of the agency to finalize the rule that is the subject of the rulemaking shall be placed in the docket for the rule and made accessible to the public.

(B)

Information controlled by nongovernmental person

With respect to any information to which a nongovernmental person holds a legal right to prohibit or limit reproduction, distribution, or public display, the information shall be—

(i)

placed in the docket through citation or incorporation by reference, including a specification of the identity of the nongovernmental person who holds a legal right to prohibit or limit reproduction, distribution, or public display of the information and the means by which a member of the public may request a full copy of the information from that holder; and

(ii)

considered made accessible to the public after a placement described in clause (i), provided that the nongovernmental person who holds a legal right to prohibit or limit reproduction, distribution, or public display of the information makes the information reasonably available upon request in a timely manner.

(C)

Exception

Subparagraphs (A) and (B) shall not apply with respect to information that is exempt from disclosure under section 552(b).

(5)

Rules adopted at the end of a Presidential administration

(A)

In general

During the 60-day period beginning on a transitional inauguration day (as defined in section 3349a), with respect to any final rule that had been placed on file for public inspection by the Office of the Federal Register or published in the Federal Register as of the date of the inauguration, but which had not become effective by the date of the inauguration, the agency issuing the rule may, by order, delay the effective date of the rule for not more than 90 days for the purpose of obtaining public comment on whether—

(i)

the rule should be amended or rescinded; or

(ii)

the effective date of the rule should be further delayed.

(B)

Opportunity for comment

If an agency delays the effective date of a rule under subparagraph (A), the agency shall give the public not less than 30 days to submit comments.

(g)

Applicability

(1)

Primacy of certain rulemaking considerations and procedures in other federal laws

(A)

Considerations

If a rulemaking is authorized under a Federal law that requires an agency to consider, or prohibits an agency from considering, a factor in a manner that is inconsistent with, or that conflicts with, the requirements under this section, for the purposes of this section, the requirement or prohibition, as applicable, in that other Federal law shall apply to the agency in the rulemaking.

(B)

Procedural requirements

If a rulemaking is authorized under a Federal law that requires an agency to follow or use, or prohibits an agency from following or using, a procedure in a manner that is duplicative of, or that conflicts with, a procedural requirement under this section, for the purposes of this section, the requirement or prohibition, as applicable, in that other Federal law shall apply to the agency in the rulemaking.

(2)

Guidance and rules of organization

Except as otherwise provided by law, this section shall not apply to guidance or rules of agency organization, procedure, or practice.

(3)

Exceptions for good cause

(A)

Finding of good cause

(i)

In general

If an agency for good cause finds that compliance with subsection (c), (d), (e), or (f)(2)(B) before issuing a final rule is unnecessary, impracticable, or contrary to the public interest, that subsection shall not apply and the agency may issue the final rule or an interim final rule, as applicable, under subparagraph (B) or (C).

(ii)

Incorporation of good cause finding

If an agency makes a finding under clause (i), the agency shall include that finding and a brief statement with respect to the reasons for that finding in the final rule or interim final rule, as applicable, issued by the agency.

(B)

Direct final rules

(i)

In general

Except as provided in clause (ii), if an agency makes a finding under subparagraph (A)(i) that compliance with subsection (c), (d), (e), or (f)(2)(B) before issuing a final rule is unnecessary, the agency shall, before issuing the final rule—

(I)

publish in the Federal Register the text of the final rule, the brief statement required under subparagraph (A)(ii), and a notice of opportunity for public comment;

(II)

establish a comment period of not less than 30 days for any interested person to submit written material, data, views, or arguments with respect to the final rule; and

(III)

provide notice of the date on which the rule will take effect.

(ii)

Exception

An agency that made a finding described in clause (i) may choose not to follow the requirements under that clause if the agency determines that following the requirements would not expedite the issuance of the final rule.

(iii)

Adverse comments

If an agency receives significant adverse comments with respect to a rule during the comment period established under clause (i)(II), the agency shall—

(I)

withdraw the notice of final rulemaking published by the agency with respect to the rule; and

(II)

complete rulemaking in accordance with subsections (c) through (f), as applicable.

(C)

Interim final rules

(i)

In general

If an agency for good cause finds that compliance with subsection (c), (d), (e), or (f)(2)(B) before issuing a final rule is impracticable or contrary to the public interest, the agency shall issue an interim final rule by—

(I)

publishing the interim final rule and a request for public comment in the portion of the Federal Register relating to final rules; and

(II)

providing a cross-reference in the portion of the Federal Register relating to proposed rules that requests public comment with respect to the rule not later than 60 days after the rule is published under subclause (I).

(ii)

Interim period

(I)

In general

Not later than 180 days after the date on which an agency issues an interim final rule under clause (i), the agency shall—

(aa)

rescind the interim rule;

(bb)

initiate rulemaking in accordance with subsections (c) through (f); or

(cc)

take final action to adopt a final rule.

(II)

No force or effect

If, as of the end of the 180-day period described in subclause (I), an agency fails to take an action described in item (aa), (bb), or (cc) of that subclause, the interim final rule issued by the agency shall have no force or effect.

(4)

Exemption for monetary policy

This section shall not apply to a rulemaking or to guidance that concerns monetary policy proposed or implemented by the Board of Governors of the Federal Reserve System or the Federal Open Market Committee.

(5)

Rule of construction

Nothing in this subsection shall be construed to modify, alter, or abridge exclusive rights held pursuant to title 17.

(h)

Date of publication

A final rule, a direct final rule described in subsection (g)(3)(B), or an interim final rule described in subsection (g)(3)(C) shall be published not later than 30 days (or, in the case of a major rule or a high-impact rule, not later than 60 days) before the effective date of the rule, except—

(1)

for guidance; or

(2)

as otherwise provided by an agency for good cause and as published with the rule.

(i)

Right to petition and review of rules

Each agency shall—

(1)

give interested persons the right to petition for the issuance, amendment, or repeal of a rule; and

(2)

on a continuing basis, invite interested persons to submit, by electronic means, suggestions for rules that warrant retrospective review and possible modification or repeal.

(j)

Rulemaking guidelines

(1)

Assessment of rules

(A)

In general

The Administrator shall establish guidelines regarding rulemaking as follows:

(i)

Identification of need for rules

Guidelines setting forth how needs for rulemaking should be identified, including—

(I)

whether rulemaking is made necessary by compelling public need, such as material failures of private markets or public institutions to protect or improve the health and safety of the public, the environment, or the well-being of the public; and

(II)

whether rulemaking needs could be lessened by reliance on potential State, local, Tribal, or regional regulatory action or other responses that could be taken in lieu of agency action.

(ii)

Assessment of rules

Guidelines setting forth how the assessment, including the quantitative and qualitative assessment, of proposed and final rules should occur, including how to determine—

(I)

the costs and benefits of proposed and final rules and alternatives to them, including quantifiable and non-quantifiable costs and benefits;

(II)

whether proposed and final rules maximize net benefits;

(III)

estimated impacts on jobs, wages, competition, innovation, and low-income populations;

(IV)

other economic issues that are relevant to rulemaking under this section or other sections of this part; and

(V)

risk assessments that are relevant to rulemaking under this section and other sections of this part.

(iii)

Numbers of alternatives

Guidelines regarding when it may be reasonable to consider in a rulemaking more alternatives than the number presumed to be reasonable under subsection (b)(4).

(iv)

Adoption of alternatives for major or high-impact rules

Guidelines regarding when it may be appropriate, in a rulemaking for a major or high-impact rule, to adopt an alternative final rule under subsection (f)(1)(B).

(v)

Administrator review

Guidelines regarding the efficient submission and review of proposed and final rules under subsections (c)(1) and (f)(2).

(B)

Agency analysis of rules

(i)

In general

The rigor of the cost-benefit analysis required or recommended by the guidelines established under subparagraph (A) shall be commensurate, as determined by the Administrator, with the economic impact of a rule.

(ii)

Risk assessment guidelines

Guidelines for a risk assessment described in subparagraph (A)(iv) shall include criteria for—

(I)

selecting studies and models;

(II)

evaluating and weighing evidence; and

(III)

conducting peer reviews.

(C)

Updating guidelines

Not less frequently than once every 10 years, the Administrator shall update the guidelines established under subparagraph (A) to enable each agency to use the best available techniques to identify, quantify, and evaluate the need for rulemaking and present and future benefits, costs, other economic issues, and risks as objectively and accurately as practicable.

(2)

Simplification of rules

(A)

Issuance of guidelines

The Administrator shall issue guidelines to promote coordination, simplification, and harmonization of agency rules during the rulemaking process.

(B)

Requirements

The guidelines issued by the Administrator under subparagraph (A) shall advise each agency to—

(i)

avoid rules that are inconsistent or incompatible with, or duplicative of, other regulations of the agency and those of other agencies; and

(ii)

draft the rules of the agency to be simple and easy to understand, with the goal of minimizing the potential for uncertainty and litigation arising from the uncertainty.

(3)

Consistency in rulemaking

(A)

In general

To promote consistency in rulemaking, the Administrator shall—

(i)

issue guidelines to ensure that rulemaking conducted in whole or in part under procedures specified in provisions of law other than those under this section conform with the procedures set forth in this section to the fullest extent allowed by law; and

(ii)

issue guidelines for the adoption of rules under subsection (e)(3)(B)(iii), which shall provide a reasonable opportunity for cross-examination, as described in subsection (e)(3)(B)(iii)(III).

(B)

Agency adoption of regulations

Each agency shall adopt regulations for the conduct of hearings consistent with the guidelines issued under this paragraph.

(k)

Agency guidance; procedures To issue major guidance; authority To issue guidelines for issuance of guidance

(1)

In general

Agency guidance shall—

(A)

not be used by an agency to foreclose consideration of issues as to which the guidance expresses a conclusion;

(B)

state that the guidance is not legally binding; and

(C)

at the time the guidance is issued, or upon request, be made available by the issuing agency to interested persons and the public.

(2)

Procedures to issue major guidance

Before issuing any major guidance, an agency shall make and document a reasoned determination that—

(A)

such guidance is understandable and complies with relevant statutory objectives and regulatory provisions; and

(B)

identifies the costs and benefits, including all costs and benefits to be considered during a rulemaking as required under subsection (b), of requiring conduct conforming to such guidance and assures that such benefits justify such costs.

(3)

Issuance of updated guidance

(A)

In general

The Administrator shall issue updated guidelines for use by agencies in the issuance of guidance documents.

(B)

Requirements

The guidelines issued by the Administrator under subparagraph (A) shall advise each agency—

(i)

not to issue guidance documents that are inconsistent or incompatible with, or duplicative of, other rules of the agency and those of other agencies;

(ii)

to draft the guidance documents of the agency to be simple and easy to understand, with the goal of minimizing the potential for uncertainty and litigation arising from the uncertainty; and

(iii)

how to develop and implement a strategy to ensure the proper use of guidance by the agency.

(l)

Major rule and high-Impact rule frameworks

(1)

In general

Beginning on the date that is 180 days after the date of enactment of this subsection, when an agency publishes in the Federal Register—

(A)

a proposed major rule or a proposed high-impact rule, the agency shall include a potential framework for assessing the rule, which shall include a general statement of how the agency intends to measure the effectiveness of the rule; or

(B)

a final major rule or a final high-impact rule, the agency shall include a framework for assessing the rule under paragraph (2), which shall include—

(i)

a clear statement of the regulatory objectives of the rule, including a summary of the benefit and cost of the rule;

(ii)

the methodology by which the agency plans to analyze the rule, including metrics by which the agency can measure—

(I)

the effectiveness and benefits of the rule in producing the regulatory objectives of the rule; and

(II)

the impacts, including any costs, of the rule on regulated and other impacted entities;

(iii)

a plan for gathering data regarding the metrics described in clause (ii) on an ongoing basis, or at periodic times, including a method by which the agency will invite the public to participate in the review process and seek input from other agencies; and

(iv)

a specific timeframe, as appropriate to the rule and not more than 10 years after the effective date of the rule, under which the agency shall conduct the assessment of the rule in accordance with paragraph (2)(A).

(2)

Assessment

(A)

In general

Each agency shall assess the data collected under paragraph (1)(B)(iii), using the methodology set forth in paragraph (1)(B)(ii) or any other appropriate methodology developed after the issuance of a final major rule or a final high-impact rule to better determine whether the regulatory objective was achieved, with respect to the rule—

(i)

to analyze how the actual benefits and costs of the rule may have varied from those anticipated at the time the rule was issued; and

(ii)

to determine whether—

(I)

the rule is accomplishing the regulatory objective of the rule;

(II)

the rule has been rendered unnecessary, taking into consideration—

(aa)

changes in the subject area affected by the rule; and

(bb)

whether the rule overlaps, duplicates, or conflicts with—

(AA)

other rules; or

(BB)

to the extent feasible, State and local government regulations;

(III)

the rule needs to be modified in order to accomplish the regulatory objective; and

(IV)

other alternatives to the rule or modification of the rule could better achieve the regulatory objective while imposing a smaller burden on society or increase cost-effectiveness, taking into consideration any cost already incurred.

(B)

Different methodology

If an agency uses a methodology other than the methodology under paragraph (1)(B)(ii) to assess data under subparagraph (A), the agency shall include as part of the notice required to be published under subparagraph (D) an explanation of the changes in circumstances that necessitated the use of that other methodology.

(C)

Subsequent assessments

(i)

In general

Except as provided in clause (ii), if, after an assessment of a major rule or a high-impact rule under subparagraph (A), an agency determines that the rule will remain in effect with or without modification, the agency shall—

(I)

determine a specific time, as appropriate to the rule and not more than 10 years after the date on which the agency completes the assessment, under which the agency shall conduct another assessment of the rule in accordance with subparagraph (A); and

(II)

if the assessment conducted under subclause (I) does not result in a repeal of the rule, periodically assess the rule in accordance with subparagraph (A) to ensure that the rule continues to meet the regulatory objective.

(ii)

Exemption

The Administrator may exempt an agency from conducting a subsequent assessment of a rule under clause (i) if the Administrator determines that there is a foreseeable and apparent need for the rule beyond the timeframe required under clause (i)(I).

(D)

Publication

Not later than 180 days after the date on which an agency completes an assessment of a major rule or a high-impact rule under subparagraph (A), the agency shall publish a notice of availability of the results of the assessment in the Federal Register, including the specific time for any subsequent assessment of the rule under subparagraph (C)(i), if applicable.

(3)

OIRA oversight

The Administrator shall—

(A)

issue guidance for agencies regarding the development of the framework under paragraph (1) and the conduct of the assessments under paragraph (2)(A);

(B)

oversee the timely compliance of agencies with this subsection;

(C)

ensure that the results of each assessment conducted under paragraph (2)(A) are—

(i)

published promptly on a centralized Federal website; and

(ii)

noticed in the Federal Register in accordance with paragraph (2)(D);

(D)

ensure that agencies streamline and coordinate the assessment of major rules or high-impact rules with similar or related regulatory objectives;

(E)

exempt an agency from including the framework required under paragraph (1)(B) when publishing a final major rule or a final high-impact rule if the Administrator determines that compliance with paragraph (1)(B) is unnecessary, impracticable, or contrary to the public interest, as described in subsection (g)(3)(A)(i); and

(F)

extend the deadline specified by an agency for an assessment of a major rule or a high-impact rule under paragraph (1)(B)(iv) or paragraph (2)(C)(i)(I) for a period of not more than 90 days if the agency justifies why the agency is unable to complete the assessment by that deadline.

(4)

Rule of construction

Nothing in this subsection shall be construed to affect—

(A)

the authority of an agency to assess or modify a major rule or a high-impact rule of the agency earlier than the end of the timeframe specified for the rule under paragraph (1)(B)(iv); or

(B)

any other provision of law that requires an agency to conduct retrospective reviews of rules issued by the agency.

(5)

Applicability

(A)

In general

This subsection shall not apply to—

(i)

a major rule or a high-impact rule of an agency—

(I)

that the Administrator reviewed before the date of enactment of this subsection;

(II)

for which the agency is required to conduct a retrospective review under any other provision of law that meets or exceeds the requirements of this subsection, as determined by the Administrator; or

(III)

for which the authorizing statute is subject to periodic reauthorization by Congress not less frequently than once every 10 years;

(ii)

guidance;

(iii)

routine and administrative rules; or

(iv)

a rule that is reviewed under section 2222 of the Economic Growth and Regulatory Paperwork Reduction Act of 1996 (12 U.S.C. 3311).

(B)

Direct and interim final major rule or high-impact rule

In the case of a major rule or a high-impact rule of an agency for which the agency is not required to issue a notice of proposed rulemaking in response to an emergency or a statutorily imposed deadline, the agency shall publish the framework required under paragraph (1)(B) in the Federal Register not later than 180 days after the date on which the agency publishes the rule.

(6)

Recommendations to Congress

If, under an assessment conducted under paragraph (2), an agency determines that a major rule or a high-impact rule should be modified or repealed, the agency may submit to Congress recommendations for legislation to amend applicable provisions of law if the agency is prohibited from modifying or repealing the rule under another provision of law.

(7)

Judicial review

(A)

In general

Judicial review of agency compliance with this subsection is limited to whether an agency—

(i)

published the framework for assessment of a major rule or a high-impact rule in accordance with paragraph (1); or

(ii)

completed and published the required assessment of a major rule or a high-impact rule in accordance with subparagraphs (A) and (D) of paragraph (2).

(B)

Remedy available

In granting relief in an action brought under subparagraph (A), a court may only issue an order remanding the major rule or the high-impact rule, as applicable, to the agency to comply with paragraph (1) or subparagraph (A) or (D) of paragraph (2), as applicable.

(C)

Effective date of major or high-impact rule

If, in an action brought under subparagraph (A)(i), a court determines that the agency did not comply, the major rule or the high-impact rule, as applicable, shall take effect notwithstanding any order issued by the court.

(m)

Rule of construction

Nothing in this section shall be construed to limit the scope of the authority of the Office of Information and Regulatory Affairs under subchapter I of chapter 35 of title 44, section 515 of the Treasury and General Government Appropriations Act, 2001 (Public Law 106–554; 114 Stat. 2763A–154), chapter 8 of this title, or any other law or Executive Order.

.

4.

Scope of review

Section 706 of title 5, United States Code, is amended—

(1)

in the first sentence of the matter preceding paragraph (1), by striking To the extent necessary and inserting the following:

(a)

In general

To the extent necessary

; and

(2)

in subsection (a), as so designated—

(A)

in paragraph (1), by striking and at the end;

(B)

in paragraph (2)—

(i)

in the matter preceding subparagraph (A), by inserting , or, when appropriate, remand a matter to an agency without setting aside, after set aside; and

(ii)

in subparagraph (F), by striking the period at the end and inserting ; and; and

(C)

by striking the flush text following paragraph (2)(F) and inserting the following:

(3)

with respect to the review of a high-impact rule, as defined in section 551 of this title, determine whether the factual findings of the agency issuing the rule are supported by substantial evidence.

(b)

Review of entire record; prejudicial error

In making a determination under subsection (a), the court shall review the whole record or those parts of the record cited by a party, and due account shall be taken of the rule of prejudicial error.

(c)

Preclusion of review

(1)

In general

Any action or inaction of the Administrator under subchapter II of chapter 5, except sections 552 and 552a, shall not be subject to judicial review.

(2)

Rule of construction

The preclusion of judicial review under this subsection shall not be construed or used to construe any other provision of law to provide any cause of action against the Administrator, except as explicitly provided by law.

(d)

Review of certain guidance

Agency guidance that does not interpret a statute or rule may be reviewed only under subsection (a)(2)(D).

(e)

Agency interpretation of rules

The weight that a reviewing court gives an interpretation by an agency of a rule of that agency shall depend on the thoroughness evident in the consideration of the rule by the agency, the validity of the reasoning of the agency, and the consistency of the interpretation with earlier and later pronouncements.

.

5.

Added definitions

Section 701(b) of title 5, United States Code, is amended—

(1)

in paragraph (1)(H), by striking and at the end;

(2)

in paragraph (2)—

(A)

by inserting guidance, after relief,; and

(B)

by striking the period at the end and inserting ; and; and

(3)

by adding at the end the following:

(3)

substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of the record considered as a whole.

.

6.

Application

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

7.

Rule of construction with respect to copyrights

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

8.

Technical and conforming amendments

(a)

Alaska national interest lands conservation act

Section 1002(g)(2) of the Alaska National Interest Lands Conservation Act (16 U.S.C. 3142(g)(2)) is amended, in the third sentence, by striking section 706(2)(E) and inserting section 706(a)(2)(E).

(b)

Antarctic marine living resources convention act of 1984

Section 308(c) of the Antarctic Marine Living Resources Convention Act of 1984 (16 U.S.C. 2437(c)) is amended, in the third sentence, by striking section 706(2)(E) and inserting section 706(a)(2)(E).

(c)

Congressional accountability act of 1995

Section 409 of the Congressional Accountability Act of 1995 (2 U.S.C. 1409) is amended, in the first sentence—

(1)

by striking section 706(2) and inserting section 706(a)(2); and

(2)

by striking section 706(2)(B) and inserting section 706(a)(2)(B).

(d)

Consumer product safety act

Section 9(i) of the Consumer Product Safety Act (15 U.S.C. 2058(i)) is amended, in the first sentence, by striking section 553(e) and inserting section 553(i).

(e)

Deep seabed hard mineral resources act

Section 302(b) of the Deep Seabed Hard Mineral Resources Act (30 U.S.C. 1462(b)) is amended, in the third sentence, by striking section 706(2)(E) and inserting section 706(a)(2)(E).

(f)

Defense production act of 1950

Section 709(b)(1) of the Defense Production Act of 1950 (50 U.S.C. 4559(b)(1)) is amended by striking for not less than 30 days, consistent with the requirements of section 553(b) and inserting in a manner consistent with the requirements of section 553(c).

(g)

Endangered species act of 1973

Section 4(b)(3) of the Endangered Species Act of 1973 (16 U.S.C. 1533(b)(3)) is amended—

(1)

in subparagraph (A), in the first sentence, by striking section 553(e) and inserting section 553(i); and

(2)

in subparagraph (D)(i), in the first sentence, by striking section 553(e) and inserting section 553(i).

(h)

Expedited funds availability act

Section 609(a) of the Expedited Funds Availability Act (12 U.S.C. 4008(a)) is amended, in the matter preceding paragraph (1), by striking section 553(c) and inserting section 553.

(i)

Fastener quality act

Section 6(b)(3) of the Fastener Quality Act (15 U.S.C. 5408(b)(3)) is amended, in the second sentence, by striking section 706(2) and inserting section 706(a)(2).

(j)

Federal food, drug, and cosmetic act

Section 912(b) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 387l(b)) is amended, in the second sentence, by striking section 706(2)(A) and inserting section 706(a)(2)(A).

(k)

Federal hazardous substances act

Section 3 of the Federal Hazardous Substances Act (15 U.S.C. 1262) is amended—

(1)

in subsection (e)(1), in the first sentence, by striking (other than clause (B) of the last sentence of subsection (b) of such section) of title 5 of the United States Code and inserting of title 5, United States Code, other than subsection (g)(3) of such section,; and

(2)

in subsection (j), in the first sentence, by striking section 553(e) and inserting section 553(i).

(l)

Federal trade commission act

Section 18(e) of the Federal Trade Commission Act (15 U.S.C. 57a(e)) is amended—

(1)

in paragraph (3), in the second sentence of the matter preceding subparagraph (A), by striking section 706(2) and inserting section 706(a)(2); and

(2)

in paragraph (5)(C), in the second sentence, by striking Section 706(2)(E) and inserting Section 706(a)(2)(E).

(m)

Flammable fabrics act

The Flammable Fabrics Act (15 U.S.C. 1191 et seq.) is amended—

(1)

in section 4(k) (15 U.S.C. 1193(k)), in the first sentence, by striking section 553(e) and inserting section 553(i); and

(2)

in section 16(c)(2) (15 U.S.C. 1203(c)(2)), by striking section 553(b) and inserting section 553(c).

(n)

General education provisions act

Section 411 of the General Education Provisions Act (20 U.S.C. 1221e–4) is amended, in the second sentence, by striking Notwithstanding the exception provided under section 553(b) of title 5, such and inserting Such.

(o)

High seas fishing compliance act of 1995

Section 108(d) of the High Seas Fishing Compliance Act of 1995 (16 U.S.C. 5507(d)) is amended, in the third sentence, by striking section 706(2) and inserting section 706(a)(2).

(p)

Housing and community development act of 1992

The Housing and Community Development Act of 1992 (12 U.S.C. 4501 et seq.) is amended—

(1)

in section 643(b)(3) (42 U.S.C. 13603(b)(3)), in the first sentence, by striking (notwithstanding subsections (a)(2), (b)(B), and (d)(3) of such section) and inserting (notwithstanding subsections (a)(2), (g)(3), and (h)(2) of such section); and

(2)

in section 685 (42 U.S.C. 13643), in the second sentence, by striking (notwithstanding subsections (a)(2), (b)(B), and (d)(3) of such section) and inserting (notwithstanding subsections (a)(2), (g)(3), and (h)(2) of such section).

(q)

International banking act of 1978

Section 7(f)(2) of the International Banking Act of 1978 (12 U.S.C. 3105(f)(2)) is amended by striking paragraph (2)(F) and inserting subsection (a)(2)(F).

(r)

Magnuson-Stevens fishery conservation and management act

Section 308(b) of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1858(b)) is amended, in the third sentence, by striking section 706(2) and inserting section 706(a)(2).

(s)

Marine mammal protection act of 1972

Section 109 of the Marine Mammal Protection Act of 1972 (16 U.S.C. 1379) is amended—

(1)

in subsection (c)(4), in the first sentence, by striking section 706(2) (A) through (E) of Title and inserting subparagraphs (A) through (E) of section 706(a)(2) of title; and

(2)

in subsection (d)(2), in the second sentence—

(A)

by striking Title and inserting title; and

(B)

by striking subsection (d) of such section 553 and inserting subsection (h) of such section 553.

(t)

Mckinney-Vento homeless assistance act

Section 433 of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11387) is amended, in the second sentence, by striking (notwithstanding subsections (a)(2), (b)(B), and (d)(3) of such section) and inserting (notwithstanding subsections (a)(2), (g)(3), and (h)(2) of such section).

(u)

Migrant and seasonal agricultural worker protection act

The Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1801 et seq.) is amended—

(1)

in section 103(c) (29 U.S.C. 1813(c)), in the third sentence, by striking section 706(2)(E) and inserting section 706(a)(2)(E); and

(2)

in section 503(c) (29 U.S.C. 1853(c)), in the third sentence, by striking section 706(2)(E) and inserting section 706(a)(2)(E).

(v)

Milwaukee railroad restructuring act

The Milwaukee Railroad Restructuring Act (45 U.S.C. 901 et seq.) is amended—

(1)

in section 5(b)(2) (45 U.S.C. 904(b)(2)), in the second sentence, by striking sections 706(2)(A), 706(2)(B), 706(2)(C), and 706(2)(D) of title 5 of the United States Code and inserting subparagraphs (A), (B), (C), and (D) of section 706(a)(2) of title 5, United States Code; and

(2)

in section 17(b)(2) (45 U.S.C. 915(b)(2)), in the second sentence, by striking sections 706(2)(A), 706(2)(B), 706(2)(C), and 706(2)(D) of title 5 of the United States Code and inserting subparagraphs (A), (B), (C), and (D) of section 706(a)(2) of title 5, United States Code.

(w)

Native american programs act of 1974

Section 814 of the Native American Programs Act of 1974 (42 U.S.C. 2992b–1) is amended—

(1)

in subsection (b)—

(A)

in paragraph (1), in the matter preceding subparagraph (A), by striking Subparagraph (A) of the last sentence of section 553(b) of title 5, United States Code, shall not apply with respect to any interpretative rule or general statement of policy and inserting Section 553(c) of title 5, United States Code, shall apply with respect to guidance;

(B)

in paragraph (2)—

(i)

in the matter preceding subparagraph (A), by striking Subparagraph (B) of the last sentence of section 553(b) and inserting Section 553(g)(3); and

(ii)

by striking an interpretative rule or a general statement of policy and inserting guidance; and

(C)

in paragraph (3), in the matter preceding subparagraph (A)—

(i)

by striking The first 2 sentences of section 553(b) and inserting Section 553(c); and

(ii)

by striking an interpretative rule, a general statement of policy, and inserting guidance;

(2)

in subsection (c)—

(A)

in the matter preceding paragraph (1)—

(i)

by striking section 553(d) and inserting section 553(h); and

(ii)

by striking an interpretative rule) or general statement of policy and inserting guidance); and

(B)

in the flush text following paragraph (2), by striking the first 2 sentences of section 553(b) and inserting section 553(c);

(3)

in subsection (d), by striking an interpretative rule) and each general statement of policy and inserting guidance);

(4)

in subsection (e)—

(A)

by striking any interpretative rule) or a general statement of policy and inserting guidance); and

(B)

by striking or such general statement of policy;

(5)

in subsection (f)—

(A)

by striking an interpretative rule) or a general statement of policy and inserting guidance); and

(B)

by striking or such general statement of policy; and

(6)

by adding at the end the following:

(g)

In this section, the term guidance has the meaning given the term in section 551 of title 5, United States Code.

.

(x)

Natural gas policy act of 1978

Section 502(b) of the Natural Gas Policy Act of 1978 (15 U.S.C. 3412(b)) is amended, in the third sentence, by striking section 553(d)(3) and inserting section 553(h)(2).

(y)

Noise control act of 1972

Section 6(c)(2) of the Noise Control Act of 1972 (42 U.S.C. 4905(c)(2)) is amended by striking the first sentence of section 553(c) and inserting section 553(c)(4).

(z)

Northeast rail service act of 1981

Section 1152(c) of the Northeast Rail Service Act of 1981 (45 U.S.C. 1105(c)) is amended by striking paragraphs (2) (A), (B), (C), and (D) of section 706, title 5 and inserting subparagraphs (A) through (D) of section 706(a)(2) of title 5.

(aa)

Northern pacific halibut act of 1982

Section 8(b) of the Northern Pacific Halibut Act of 1982 (16 U.S.C. 773f(b)) is amended, in the third sentence, by striking section 706(2) and inserting section 706(a)(2).

(bb)

Poison prevention packaging act of 1970

The Poison Prevention Packaging Act of 1970 (15 U.S.C. 1471 et seq.) is amended—

(1)

in section 5 (15 U.S.C. 1474)—

(A)

in subsection (a), in the first sentence, by striking (other than paragraph (3)(B) of the last sentence of subsection (b) of such section) of title 5 of the United States Code and inserting of title 5, United States Code, other than subsection (g)(3) of such section,; and

(B)

in subsection (b)—

(i)

by striking of the United States Code each place that term appears and inserting , United States Code; and

(ii)

in paragraph (3), in the first sentence, by striking paragraph (2) of section 706 and inserting section 706(a)(2); and

(2)

in section 7(c)(2) (15 U.S.C. 1476(c)(2)), by striking section 553(b) and inserting section 553(c).

(cc)

Poultry products inspection act

Section 14(c) of the Poultry Products Inspection Act (21 U.S.C. 463(c)) is amended by striking section 553(c) of title 5, United States Code and inserting section 553(c)(4) of title 5, United States Code,.

(dd)

Public health service act

Section 2723(b)(2)(E)(iii) of the Public Health Service Act (42 U.S.C. 300gg–22(b)(2)(E)(iii)) is amended by striking section 706(2)(E) and inserting section 706(a)(2)(E).

(ee)

Regional rail reorganization act of 1973

Section 216(c)(3) of the Regional Rail Reorganization Act of 1973 (45 U.S.C. 726(c)(3)) is amended, in the fourth sentence, by striking section 706(2) and inserting section 706(a)(2).

(ff)

Social security act

The Social Security Act (42 U.S.C. 301 et seq.) is amended—

(1)

in section 221(j) (42 U.S.C. 421(j)), in the flush text following paragraph (3), by striking in accordance with section 553(b)(A) of title 5, United States Code and all that follows through and statements and inserting in accordance with section 553(g)(2) of title 5, United States Code, of guidance or rules of agency organization, procedure, or practice relating to consultative examinations if such guidance and rules; and

(2)

in section 1871(b)(2) (42 U.S.C. 1395hh(b)(2)), by striking subparagraph (C) and inserting the following:

(C)

subsection (c) of section 553 of title 5, United States Code, does not apply pursuant to subsection (g)(3) of such section.

.

(gg)

South pacific tuna act of 1988

Section 8(b) of the South Pacific Tuna Act of 1988 (16 U.S.C. 973f(b)) is amended, in the third sentence, by striking section 706(2) and inserting section 706(a)(2).

(hh)

Tariff act of 1930

Section 777(f)(5) of the Tariff Act of 1930 (19 U.S.C. 1677f(f)(5)) is amended, in the third sentence, by striking section 706(2) and inserting section 706(a)(2).

(ii)

Title 5, united states code

Title 5, United States Code, is amended—

(1)

in section 556(d), in the sixth sentence, by striking rule making and inserting rulemaking;

(2)

in section 557(b), in the fourth sentence of the matter preceding paragraph (1), by striking rule making and inserting rulemaking;

(3)

in section 562(11), by striking means rule making as that term is defined in section 551(5) and inserting has the meaning given the term in section 551;

(4)

in section 601(2), by striking section 553(b) and inserting section 553(c);

(5)

in section 1103(b)(1), by striking section 553(b)(1), (2), and (3) and inserting section 553(c); and

(6)

in section 1105, by striking subsections (b), (c), and (d) and inserting subsections (b) through (h) and (j).

(jj)

Title 11, united states code

Section 1172(b) of title 11, United States Code, is amended, in the second sentence, by striking sections 706(2)(A), 706(2)(B), 706(2)(C), and 706(2)(D) of title 5 and inserting subparagraphs (A), (B), (C), and (D) of section 706(a)(2) of title 5.

(kk)

Title 14, united states code

Section 2507(b)(2)(A) of title 14, United States Code, is amended by striking section 706(1) and inserting section 706(a)(1).

(ll)

Title 28, united states code

Section 3902 of title 28, United States Code, is amended, in the first sentence, by striking section 706(2) and inserting section 706(a)(2).

(mm)

Title 41, united states code

Section 8503(a)(2) of title 41, United States Code, is amended by striking section 553(b) to (e) and inserting section 553.

(nn)

Title 46, united states code

Title 46, United States Code, is amended—

(1)

in section 14104(b), in the second sentence, by striking shall be considered to be an interpretive regulation for purposes of section 553 of title 5 and inserting shall be subject to section 553 of title 5; and

(2)

in section 70105(c)(3)(B), in the second sentence, by striking section 706(2)(E) and inserting section 706(a)(2)(E).

(oo)

Toxic substances control act

Section 19(c)(1)(B) of the Toxic Substances Control Act (15 U.S.C. 2618(c)(1)(B)) is amended—

(1)

in clause (i)—

(A)

in subclause (I), by striking paragraph (2)(E) and inserting subsection (a)(2)(E); and

(B)

in subclause (II), by striking paragraph (2)(E) and inserting subsection (a)(2)(E); and

(2)

in clause (ii), by striking section 553(c) and inserting section 553(f)(2).

(pp)

Unfunded mandates reform act of 1995

Section 401(a)(2)(A) of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1571(a)(2)(A)) is amended by striking section 706(1) and inserting section 706(a)(1).

(qq)

United states warehouse act

Section 13(d)(2) of the United States Warehouse Act (7 U.S.C. 252(d)(2)) is amended by striking section 706(2) and inserting section 706(a)(2).