Regulatory Accountability Act

II 116TH CONGRESS 2D SESSION S. 3208 To improve agency rulemaking, and for other purposes. IN THE SENATE OF THE UNITED STATES JANUARY 16, 2020 Mr. PORTMAN introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs A BILL To improve agency rulemaking, and for other purposes. Be it enacted by the Senate and House of 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 ‘‘Regulatory Account- 4 ability Act’’. 5 SEC. 2. DEFINITIONS. 6 Section 551 of title 5, United States Code, is amend- 7 ed— 8 (1) in paragraph (5), by striking ‘‘rule making’’ 9 and inserting ‘‘rulemaking’’; 10 (2) in paragraph (6), by striking ‘‘rule making’’ 11 and inserting ‘‘rulemaking’’; 12 VerDate Sep 11 2014 19:27 Jan 17, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S3208.IS S3208 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 3208 IS (3) in paragraph (13), by striking ‘‘and’’ at the 1 end; 2 (4) in paragraph (14), by striking the period at 3 the end and inserting a semicolon; and 4 (5) by adding at the end the following: 5 ‘‘(15) ‘guidance’ means an agency statement of 6 general applicability that— 7 ‘‘(A) is not intended to have the force and 8 effect of law; and 9 ‘‘(B) sets forth a policy on a statutory, 10 regulatory, or technical issue or an interpreta- 11 tion of a statutory or regulatory issue; 12 ‘‘(16) ‘high-impact rule’ means any rule that 13 the Administrator determines is likely to cause an 14 annual effect on the economy of $500,000,000 or 15 more, adjusted once every 5 years to reflect in- 16 creases in the Consumer Price Index for All Urban 17 Consumers, as published by the Bureau of Labor 18 Statistics of the Department of Labor; 19 ‘‘(17) ‘major guidance’ means guidance that the 20 Administrator finds is likely to lead to— 21 ‘‘(A) an annual effect on the economy of 22 $100,000,000 or more, adjusted once every 5 23 years to reflect increases in the Consumer Price 24 Index for All Urban Consumers, as published 25 VerDate Sep 11 2014 19:27 Jan 17, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S3208.IS S3208 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 3208 IS by the Bureau of Labor Statistics of the De- 1 partment of Labor; 2 ‘‘(B) a major increase in costs or prices for 3 consumers, individual industries, Federal, 4 State, local, or Tribal government agencies, or 5 geographic regions; or 6 ‘‘(C) significant adverse effects on competi- 7 tion, employment, investment, productivity, in- 8 novation, public health and safety, or the ability 9 of United States-based enterprises to compete 10 with foreign-based enterprises in domestic and 11 export markets; 12 ‘‘(18) ‘major rule’ means any rule that the Ad- 13 ministrator determines is likely to cause— 14 ‘‘(A) an annual effect on the economy of 15 $100,000,000 or more, adjusted once every 5 16 years to reflect increases in the Consumer Price 17 Index for All Urban Consumers, as published 18 by the Bureau of Labor Statistics of the De- 19 partment of Labor; 20 ‘‘(B) a major increase in costs or prices for 21 consumers, individual industries, Federal, 22 State, local, or Tribal government agencies, or 23 geographic regions; or 24 VerDate Sep 11 2014 19:27 Jan 17, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S3208.IS S3208 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 3208 IS ‘‘(C) significant adverse effects on competi- 1 tion, employment, investment, productivity, in- 2 novation, public health and safety, or the ability 3 of United States-based enterprises to compete 4 with foreign-based enterprises in domestic and 5 export markets; 6 ‘‘(19) ‘Office of Information and Regulatory Af- 7 fairs’ means the office established under section 8 3503 of title 44 and any successor to that office; 9 and 10 ‘‘(20) ‘Administrator’ means the Administrator 11 of the Office of Information and Regulatory Af- 12 fairs.’’. 13 SEC. 3. RULEMAKING. 14 Section 553 of title 5, United States Code, is amend- 15 ed— 16 (1) in the section heading, by striking ‘‘Rule 17 making’’ and inserting ‘‘Rulemaking’’; 18 (2) in subsection (a), by striking ‘‘(a) This sec- 19 tion applies’’ and inserting the following: 20 ‘‘(a) APPLICABILITY.—This section applies’’; and 21 (3) by striking subsections (b) through (e) and 22 inserting the following: 23 VerDate Sep 11 2014 19:27 Jan 17, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S3208.IS S3208 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 3208 IS ‘‘(b) RULEMAKING CONSIDERATIONS.—In a rule- 1 making, an agency shall consider, in addition to other ap- 2 plicable considerations, the following: 3 ‘‘(1) The legal authority under which a rule 4 may be proposed, including whether rulemaking is 5 required by statute or is within the discretion of the 6 agency. 7 ‘‘(2) The nature and significance of the problem 8 the agency intends to address with a rule. 9 ‘‘(3) Whether existing Federal laws or rules 10 have created or contributed to the problem the agen- 11 cy may address with a rule and, if so, whether those 12 Federal laws or rules could be amended or rescinded 13 to address the problem in whole or in part. 14 ‘‘(4) A reasonable number of alternatives for or 15 to a new rule, with the consideration of 3 alter- 16 natives presumed to be reasonable, that— 17 ‘‘(A) meet the objectives of the statutory 18 provision on which the rulemaking relies, in- 19 cluding substantial alternatives or other re- 20 sponses identified by the agency or by inter- 21 ested persons; and 22 ‘‘(B) consider not only mandating par- 23 ticular conduct or manners of compliance, but 24 also— 25 VerDate Sep 11 2014 19:27 Jan 17, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S3208.IS S3208 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 3208 IS ‘‘(i) specifying performance objectives; 1 ‘‘(ii) establishing economic incentives, 2 including marketable permits, to encourage 3 desired behavior; 4 ‘‘(iii) establishing disclosure require- 5 ments that will provide information upon 6 which choices can be made by the public; 7 or 8 ‘‘(iv) adopting other means of meeting 9 the objectives of the statutory provision on 10 which the rulemaking relies without man- 11 dating particular conduct or manners of 12 compliance. 13 ‘‘(5) For any major rule or high-impact rule, 14 unless prohibited by law, the potential costs and 15 benefits associated with potential alternative rules 16 and other responses considered under paragraph (4), 17 including quantitative and qualitative analyses of— 18 ‘‘(A) the direct costs and benefits; 19 ‘‘(B) the nature and degree of risks ad- 20 dressed by the rule and the countervailing risks 21 that might be posed by agency action; and 22 ‘‘(C) to the extent practicable, the cumu- 23 lative costs and benefits, and an analysis of the 24 effects that the rule is anticipated to have on 25 VerDate Sep 11 2014 19:27 Jan 17, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S3208.IS S3208 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 3208 IS entities that purchase products or services 1 from, sell products or services to, or otherwise 2 conduct business with entities to which the rule 3 will apply. 4 ‘‘(c) NOTICE OF PROPOSED RULEMAKING.— 5 ‘‘(1) IN GENERAL.—If an agency determines 6 that the objectives of the agency require the agency 7 to issue a rule, the agency shall— 8 ‘‘(A) submit a notice of proposed rule- 9 making to the Administrator for review; 10 ‘‘(B) refrain from publishing the notice 11 until the Administrator determines that review 12 by the Administrator has concluded; and 13 ‘‘(C) at the conclusion of review by the Ad- 14 ministrator, publish a notice of proposed rule- 15 making in the Federal Register, which shall in- 16 clude— 17 ‘‘(i) a statement of the time, place, 18 and nature of any public rulemaking pro- 19 ceedings; 20 ‘‘(ii) a reference to the legal authority 21 under which the rule is proposed, including 22 the specific statutory provision on which 23 the rulemaking relies; 24 ‘‘(iii) the text of the proposed rule; 25 VerDate Sep 11 2014 19:27 Jan 17, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S3208.IS S3208 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 3208 IS ‘‘(iv) a summary of information 1 known to the agency concerning the con- 2 siderations described in subsection (b); and 3 ‘‘(v) where otherwise consistent with 4 applicable law, for any major rule or high- 5 impact rule— 6 ‘‘(I) a reasoned preliminary ex- 7 planation regarding how— 8 ‘‘(aa) the proposed rule 9 meets the objectives of the statu- 10 tory provision on which the rule- 11 making relies; and 12 ‘‘(bb) the benefits of the 13 proposed rule justify the costs; 14 ‘‘(II) a discussion of— 15 ‘‘(aa) the costs and benefits 16 of alternatives considered by the 17 agency under subsection (b)(4); 18 ‘‘(bb) whether the alter- 19 natives considered by the agency 20 under subsection (b)(4) meet the 21 objectives of the statutory provi- 22 sion on which the rulemaking re- 23 lies; and 24 VerDate Sep 11 2014 19:27 Jan 17, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S3208.IS S3208 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 3208 IS ‘‘(cc) the reasons why the 1 agency did not propose an alter- 2 native considered by the agency 3 under subsection (b)(4); and 4 ‘‘(III) a solicitation of public 5 comment, including on all issues and 6 alternatives discussed under sub- 7 clauses (I) and (II) and subsection 8 (l)(1)(A). 9 ‘‘(2) ACCESSIBILITY.— 10 ‘‘(A) IN GENERAL.—Not later than the 11 date on which an agency publishes a notice of 12 proposed rulemaking under paragraph (1), all 13 studies, models, scientific literature, and other 14 information developed or relied upon by the 15 agency, and actions taken by the agency to ob- 16 tain that information, in connection with the 17 determination of the agency to propose the rule 18 that is the subject of the rulemaking shall be 19 placed in the docket for the proposed rule and 20 made accessible to the public. 21 ‘‘(B) INFORMATION CONTROLLED BY NON- 22 GOVERNMENTAL PERSON.—With respect to any 23 information to which a nongovernmental person 24 holds a legal right to prohibit or limit reproduc- 25 VerDate Sep 11 2014 19:27 Jan 17, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S3208.IS S3208 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 3208 IS tion, distribution, or public display, the infor- 1 mation shall be— 2 ‘‘(i) placed in the docket through cita- 3 tion or incorporation by reference, includ- 4 ing a specification of the identity of the 5 nongovernmental person who holds a legal 6 right to prohibit or limit reproduction, dis- 7 tribution, or public display of the informa- 8 tion and the means by which a member of 9 the public may request a full copy of the 10 information from that holder; and 11 ‘‘(ii) considered made accessible to the 12 public after a placement described in 13 clause (i), provided that the nongovern- 14 mental person who holds a legal right to 15 prohibit or limit reproduction, distribution, 16 or public display of the information makes 17 the information reasonably available upon 18 request in a timely manner to any member 19 of the public who requests a copy of the in- 20 formation. 21 ‘‘(C) EXCEPTION.—Subparagraphs (A) 22 and (B) shall not apply with respect to informa- 23 tion that is exempt from disclosure under sec- 24 tion 552(b). 25 VerDate Sep 11 2014 19:27 Jan 17, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S3208.IS S3208 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 3208 IS ‘‘(3) INFORMATION QUALITY.—If an agency 1 proposes a rule that rests upon scientific, technical, 2 or economic information, the agency shall— 3 ‘‘(A) propose the rule on the basis of the 4 best reasonably available scientific, technical, or 5 economic information; and 6 ‘‘(B) to the maximum extent practicable, 7 use that information in compliance with the 8 guidelines issued under section 515 of the 9 Treasury and General Government Appropria- 10 tions Act, 2001 (Public Law 106–554; 114 11 Stat. 2763A–154). 12 ‘‘(4) PUBLIC COMMENT.— 13 ‘‘(A) IN GENERAL.—After publishing a no- 14 tice of proposed rulemaking under paragraph 15 (1), an agency shall provide interested persons 16 an opportunity to participate in the rulemaking 17 through the submission of written material, 18 data, views, or arguments with or without op- 19 portunity for oral presentation, except that— 20 ‘‘(i) if a public hearing is convened 21 under subsection (e), reasonable oppor- 22 tunity for oral presentation shall be pro- 23 vided at the public hearing as provided in 24 subsection (e); and 25 VerDate Sep 11 2014 19:27 Jan 17, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S3208.IS S3208 pamtmann on DSKBC07HB2PROD with BILLS 12 •S 3208 IS ‘‘(ii) when, other than as provided in 1 subsection (e), a rule is required by statute 2 to be made on the record after opportunity 3 for an agency hearing— 4 ‘‘(I) sections 556 and 557 shall 5 apply; and 6 ‘‘(II) the petition procedures of 7 subsection (e) shall not apply. 8 ‘‘(B) TIMELINE.— 9 ‘‘(i) IN GENERAL.—Subject to sub- 10 paragraph (C), an agency shall provide not 11 less than 60 days, or, with respect to a 12 proposed major rule or a proposed high-im- 13 pact rule, not less than 90 days, for inter- 14 ested persons to submit written material, 15 data, views, or arguments under subpara- 16 graph (A). 17 ‘‘(ii) ADEQUATE REVIEW PERIOD.—If 18 a proposed rule relies on information 19 placed in the docket through citation or in- 20 corporation by reference as described in 21 paragraph (3)(B), the comment period re- 22 quired under clause (i) shall be adequate 23 to allow interested persons to receive and 24 VerDate Sep 11 2014 19:27 Jan 17, 2020 Jkt 099200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S3208.IS S3208 pamtmann on DSKBC07HB2PROD with BILLS 13 •S 3208 IS review that information to inform their 1 submission. 2 ‘‘(C) RESPONSIVE COMMENT PERIOD FOR 3 MAJOR AND HIGH-IMPACT RULES.—With re- 4 spect to a proposed major rule or a proposed 5 high-impact rule, an interested person who 6 made a submission under subparagraph (A) 7 during the comment period under subparagraph 8 (B) with respect to the rule may, during the pe- 9 riod beginning on the day after the date on 10 which that comment period closes and ending 11 on the date that is 30 days after that day, re- 12 spond to any other submission made by any 13 other interested person under subparagraph (A) 14 during the initial comment period. 15 ‘‘(D) ACCESSIBILITY.—All comments and 16 responses submitted under this paragraph shall 17 be pro [Text truncated for display. 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