Early Participation in Regulations Act of 2019

II Calendar No. 192 116TH CONGRESS 1ST SESSION S. 1419 [Report No. 116–88] To require agencies to publish an advance notice of proposed rulemaking for major rules. IN THE SENATE OF THE UNITED STATES MAY 13, 2019 Mr. LANKFORD (for himself and Ms. SINEMA) introduced the following bill; which was read twice and referred to the Committee on Homeland Secu- rity and Governmental Affairs SEPTEMBER 10, 2019 Reported by Mr. JOHNSON, with an amendment [Strike out all after the enacting clause and insert the part printed in italic] A BILL To require agencies to publish an advance notice of proposed rulemaking for major rules. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Early Participation 4 in Regulations Act of 2019’’. 5 VerDate Sep 11 2014 22:11 Sep 10, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6401 E:\BILLS\S1419.RS S1419 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 1419 RS SEC. 2. ADVANCE NOTICE OF PROPOSED RULEMAKING. 1 Subchapter II of chapter 5 of title 5, United States 2 Code, is amended— 3 (1) in section 551— 4 (A) in paragraph (13), by striking ‘‘and’’ 5 at the end; 6 (B) in paragraph (14), by striking the pe- 7 riod at the end and inserting a semicolon; and 8 (C) by adding at the end the following: 9 ‘‘(15) ‘major rule’ means any rule that the Ad- 10 ministrator of the Office of Information and Regu- 11 latory Affairs determines is likely to impose— 12 ‘‘(A) an annual effect on the economy of 13 $100,000,000 or more; 14 ‘‘(B) a major increase in costs or prices for 15 consumers, individual industries, Federal, 16 State, local, or tribal government agencies, or 17 geographic regions; or 18 ‘‘(C) significant effects on competition, em- 19 ployment, investment, productivity, innovation, 20 health, safety, the environment, or on the abil- 21 ity of United States-based enterprises to com- 22 pete with foreign-based enterprises in domestic 23 and export markets; and 24 ‘‘(16) ‘Office of Information and Regulatory Af- 25 fairs’ means the office established under section 26 VerDate Sep 11 2014 22:11 Sep 10, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6401 E:\BILLS\S1419.RS S1419 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 1419 RS 3503 of title 44 and any successor to that office.’’; 1 and 2 (2) in section 553, by adding at the end the fol- 3 lowing: 4 ‘‘(f) ADVANCE NOTICE OF PROPOSED RULEMAKING 5 FOR MAJOR RULES.— 6 ‘‘(1) IN GENERAL.—Except as provided in para- 7 graph (3), not later than 90 days before the date on 8 which an agency publishes a notice of proposed rule- 9 making for a major rule in the Federal Register, the 10 agency shall publish an advance notice of proposed 11 rulemaking for the major rule in the Federal Reg- 12 ister. 13 ‘‘(2) REQUIREMENTS.—An advance notice of 14 proposed rulemaking published under paragraph (1) 15 shall— 16 ‘‘(A) include a written statement identi- 17 fying, at a minimum— 18 ‘‘(i) the nature and significance of the 19 problem the agency may address with a 20 major rule, including any data and other 21 information on which the agency at the 22 time expects to rely for the proposed major 23 rule; 24 VerDate Sep 11 2014 22:11 Sep 10, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6401 E:\BILLS\S1419.RS S1419 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 1419 RS ‘‘(ii) a general description of regu- 1 latory alternatives under consideration; 2 ‘‘(iii) the legal authority under which 3 a major rule may be proposed; and 4 ‘‘(iv) an achievable objective for the 5 major rule; 6 ‘‘(B) solicit written data, views, and argu- 7 ment from interested persons concerning the in- 8 formation and issues identified in the advance 9 notice; and 10 ‘‘(C) provide for a period of not less than 11 60 days for interested persons to submit such 12 written data, views, or argument to the agency. 13 ‘‘(3) EXCEPTIONS.—This subsection shall not 14 apply to a major rule if— 15 ‘‘(A) the agency proposing the major rule 16 is not required to publish a notice of proposed 17 rulemaking in the Federal Register for the 18 major rule under subparagraph (A) or (B) of 19 subsection (b); or 20 ‘‘(B) the Administrator of the Office of In- 21 formation and Regulatory Affairs determines 22 that complying with the requirements described 23 in this subsection— 24 VerDate Sep 11 2014 22:11 Sep 10, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6401 E:\BILLS\S1419.RS S1419 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 1419 RS ‘‘(i) would not serve the public inter- 1 est; or 2 ‘‘(ii) would be unduly burdensome and 3 duplicative of processes required by specific 4 statutory requirements as rigorous as 5 those prescribed in paragraph (2). 6 ‘‘(4) JUDICIAL REVIEW.— 7 ‘‘(A) IN GENERAL.—A determination made 8 by the Administrator of the Office of Informa- 9 tion and Regulatory Affairs in accordance with 10 paragraph (3)(B) shall not be subject to judi- 11 cial review. 12 ‘‘(B) ARBITRARY AND CAPRICIOUS.—Any 13 difference between policies set forth in the writ- 14 ten statement of an agency under paragraph 15 (2)(A) and the notice of proposed rulemaking 16 shall not be reviewable under section 17 706(2)(A).’’. 18 SECTION 1. SHORT TITLE. 19 This Act may be cited as the ‘‘Early Participation in 20 Regulations Act of 2019’’. 21 SEC. 2. ADVANCE NOTICE OF PROPOSED RULE MAKING. 22 Subchapter II of chapter 5 of title 5, United States 23 Code, is amended— 24 (1) in section 551— 25 VerDate Sep 11 2014 22:11 Sep 10, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6203 E:\BILLS\S1419.RS S1419 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 1419 RS (A) in paragraph (13), by striking ‘‘and’’ 1 at the end; 2 (B) in paragraph (14), by striking the pe- 3 riod at the end and inserting a semicolon; and 4 (C) by adding at the end the following: 5 ‘‘(15) ‘major rule’ means any rule that the Ad- 6 ministrator of the Office of Information and Regu- 7 latory Affairs determines is likely to impose— 8 ‘‘(A) an annual effect on the economy of 9 $100,000,000 or more; 10 ‘‘(B) a major increase in costs or prices for 11 consumers, individual industries, Federal, State, 12 local, or tribal government agencies, or geo- 13 graphic regions; or 14 ‘‘(C) significant effects on competition, em- 15 ployment, investment, productivity, innovation, 16 health, safety, the environment, or the ability of 17 United States-based enterprises to compete with 18 foreign-based enterprises in domestic and export 19 markets; and 20 ‘‘(16) ‘Office of Information and Regulatory Af- 21 fairs’ means the office established under section 3503 22 of title 44 and any successor to that office.’’; and 23 (2) in section 553, by adding at the end the fol- 24 lowing: 25 VerDate Sep 11 2014 22:11 Sep 10, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6203 E:\BILLS\S1419.RS S1419 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 1419 RS ‘‘(f) ADVANCE NOTICE OF PROPOSED RULE MAKING 1 FOR MAJOR RULES.— 2 ‘‘(1) IN GENERAL.—Except as provided in para- 3 graph (3), not later than 90 days before the date on 4 which an agency publishes a notice of proposed rule 5 making for a major rule in the Federal Register, the 6 agency shall publish an advance notice of proposed 7 rule making for the major rule in the Federal Reg- 8 ister. 9 ‘‘(2) REQUIREMENTS.—An advance notice of 10 proposed rule making published under paragraph (1) 11 shall— 12 ‘‘(A) include a written statement identi- 13 fying, at a minimum— 14 ‘‘(i) the nature and significance of the 15 problem the agency may address with a 16 major rule, including any data or categories 17 of data that the agency has identified as rel- 18 evant or that the agency intends to consult 19 for the proposed major rule; 20 ‘‘(ii) a general description of regu- 21 latory alternatives under consideration; and 22 ‘‘(iii) the legal authority under which 23 a major rule may be proposed; 24 VerDate Sep 11 2014 22:11 Sep 10, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6203 E:\BILLS\S1419.RS S1419 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 1419 RS ‘‘(B) solicit written data, views, and argu- 1 ment from interested persons concerning the in- 2 formation and issues identified in the advance 3 notice; and 4 ‘‘(C) provide for a period of not less than 30 5 days for interested persons to submit such writ- 6 ten data, views, or argument to the agency. 7 ‘‘(3) EXCEPTIONS.—This subsection shall not 8 apply to a major rule if— 9 ‘‘(A) the agency proposing the major rule is 10 not required to publish a notice of proposed rule 11 making in the Federal Register for the major 12 rule under subparagraph (A) or (B) of subsection 13 (b); 14 ‘‘(B) the Administrator of the Office of In- 15 formation and Regulatory Affairs determines 16 that complying with the requirements described 17 in this subsection— 18 ‘‘(i) would not serve the public interest; 19 ‘‘(ii) would be duplicative of processes 20 as rigorous and effective as those prescribed 21 in paragraph (2) and would be unnecessary 22 to ensure meaningful public participation; 23 or 24 VerDate Sep 11 2014 22:11 Sep 10, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6203 E:\BILLS\S1419.RS S1419 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 1419 RS ‘‘(iii) would not be practicable due to 1 a statutory or court-imposed deadline; or 2 ‘‘(C) the Administrator of the Office of In- 3 formation and Regulatory Affairs determines 4 that the major rule falls within a category of 5 major rules that are routine or periodic in na- 6 ture. 7 ‘‘(4) JUDICIAL REVIEW.— 8 ‘‘(A) IN GENERAL.—A determination made 9 by the Administrator of the Office of Information 10 and Regulatory Affairs in accordance with sub- 11 paragraph (B) or (C) of paragraph (3) shall not 12 be subject to judicial review. 13 ‘‘(B) ARBITRARY AND CAPRICIOUS.—Any 14 difference between policies set forth in the writ- 15 ten statement of an agency under paragraph 16 (2)(A) and the notice of proposed rule making 17 shall not be reviewable under section 18 706(2)(A).’’. 19 VerDate Sep 11 2014 22:11 Sep 10, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6203 E:\BILLS\S1419.RS S1419 pamtmann on DSKBC07HB2PROD with BILLS Calendar No. 192 116TH CONGRESS 1ST SESSION S. 1419 [Report No. 116–88] A BILL To require agencies to publish an advance notice of proposed rulemaking for major rules. SEPTEMBER 10, 2019 Reported with an amendment VerDate Sep 11 2014 22:11 Sep 10, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6651 Sfmt 6651 E:\BILLS\S1419.RS S1419 pamtmann on DSKBC07HB2PROD with BILLS