Regulatory Accountability Act

II 118TH CONGRESS 1ST SESSION S. 1615 To improve agency rulemaking, and for other purposes. IN THE SENATE OF THE UNITED STATES MAY 16, 2023 Mr. LANKFORD (for himself, Mr. THUNE, Mr. JOHNSON, and Mr. MARSHALL) 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 VerDate Sep 11 2014 22:22 May 25, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1615.IS S1615 pbinns on DSKJLVW7X2PROD with $$_JOB 2 •S 1615 IS (2) in paragraph (6), by striking ‘‘rule making’’ 1 and inserting ‘‘rulemaking’’; 2 (3) in paragraph (13), by striking ‘‘and’’ at the 3 end; 4 (4) in paragraph (14), by striking the period at 5 the end and inserting a semicolon; and 6 (5) by adding at the end the following: 7 ‘‘(15) ‘guidance’ means an agency statement of 8 general applicability that— 9 ‘‘(A) is not intended to have the force and 10 effect of law; and 11 ‘‘(B) sets forth a policy on a statutory, 12 regulatory, or technical issue or an interpreta- 13 tion of a statutory or regulatory issue; 14 ‘‘(16) ‘major guidance’ means guidance that the 15 Administrator finds is— 16 ‘‘(A) likely to lead to— 17 ‘‘(i) an annual effect on the economy 18 of $100,000,000 or more; 19 ‘‘(ii) a major increase in costs or 20 prices for consumers, individual industries, 21 Federal, State, local, or Tribal government 22 agencies, or geographic regions; or 23 ‘‘(iii) significant adverse effects on 24 competition, employment, investment, pro- 25 VerDate Sep 11 2014 22:22 May 25, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1615.IS S1615 pbinns on DSKJLVW7X2PROD with $$_JOB 3 •S 1615 IS ductivity, innovation, public health and 1 safety, or the ability of United States- 2 based enterprises to compete with foreign- 3 based enterprises in domestic and export 4 markets; or 5 ‘‘(B) a departure from a prior statutory in- 6 terpretation or agency policy; 7 ‘‘(17) ‘major rule’ means any rule that the Ad- 8 ministrator determines is likely to— 9 ‘‘(A) cause an annual effect on the econ- 10 omy of $100,000,000 or more; 11 ‘‘(B) cause a major increase in costs or 12 prices for consumers, individual industries, Fed- 13 eral, State, local, or Tribal government agen- 14 cies, or geographic regions; 15 ‘‘(C) cause significant adverse effects on 16 competition, employment, investment, produc- 17 tivity, innovation, public health and safety, or 18 the ability of United States-based enterprises to 19 compete with foreign-based enterprises in do- 20 mestic and export markets; or 21 ‘‘(D) raise novel legal or policy issues aris- 22 ing out of legal mandates; 23 ‘‘(18) ‘Office of Information and Regulatory Af- 24 fairs’ means the office established under section 25 VerDate Sep 11 2014 22:22 May 25, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1615.IS S1615 pbinns on DSKJLVW7X2PROD with $$_JOB 4 •S 1615 IS 3503 of title 44 and any successor to that office; 1 and 2 ‘‘(19) ‘Administrator’ means the Administrator 3 of the Office of Information and Regulatory Af- 4 fairs.’’. 5 SEC. 3. RULEMAKING. 6 Section 553 of title 5, United States Code, is amend- 7 ed— 8 (1) in the section heading, by striking ‘‘Rule 9 making’’ and inserting ‘‘Rulemaking’’; 10 (2) in subsection (a), by striking ‘‘(a) This sec- 11 tion applies’’ and inserting the following: 12 ‘‘(a) APPLICABILITY.—This section applies’’; and 13 (3) by striking subsections (b) through (e) and 14 inserting the following: 15 ‘‘(b) RULEMAKING CONSIDERATIONS.—In a rule- 16 making, an agency shall consider, in addition to other ap- 17 plicable considerations, the following: 18 ‘‘(1) The legal authority under which a rule 19 may be proposed, including whether rulemaking is 20 required by statute or is within the discretion of the 21 agency. 22 ‘‘(2) The nature and significance of the problem 23 the agency intends to address with a rule. 24 VerDate Sep 11 2014 22:22 May 25, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1615.IS S1615 pbinns on DSKJLVW7X2PROD with $$_JOB 5 •S 1615 IS ‘‘(3) Whether existing Federal laws or rules 1 have created or contributed to the problem the agen- 2 cy may address with a rule and, if so, whether those 3 Federal laws or rules could be amended or rescinded 4 to address the problem in whole or in part. 5 ‘‘(4) A reasonable number of alternatives for or 6 to a new rule, with the consideration of 3 alter- 7 natives presumed to be reasonable, that— 8 ‘‘(A) meet the objectives of the statutory 9 provision on which the rulemaking relies, in- 10 cluding substantial alternatives or other re- 11 sponses identified by the agency or by inter- 12 ested persons; and 13 ‘‘(B) consider not only mandating par- 14 ticular conduct or manners of compliance, but 15 also— 16 ‘‘(i) specifying performance objectives; 17 ‘‘(ii) establishing economic incentives, 18 including marketable permits, to encourage 19 desired behavior; 20 ‘‘(iii) establishing disclosure require- 21 ments that will provide information upon 22 which choices can be made by the public; 23 or 24 VerDate Sep 11 2014 22:22 May 25, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1615.IS S1615 pbinns on DSKJLVW7X2PROD with $$_JOB 6 •S 1615 IS ‘‘(iv) adopting other means of meeting 1 the objectives of the statutory provision on 2 which the rulemaking relies without man- 3 dating particular conduct or manners of 4 compliance. 5 ‘‘(5) For any major rule, unless prohibited by 6 law, the potential costs and benefits associated with 7 potential alternative rules and other responses con- 8 sidered under paragraph (4), including quantitative 9 and qualitative analyses of— 10 ‘‘(A) the direct costs and benefits, with 11 costs and benefits measured over equal time pe- 12 riods; 13 ‘‘(B) the nature and degree of risks ad- 14 dressed by the rule and the countervailing risks 15 that might be posed by agency action; and 16 ‘‘(C) to the extent practicable, the cumu- 17 lative costs and benefits, and an analysis of the 18 effects that the rule is anticipated to have on 19 entities that purchase products or services 20 from, sell products or services to, or otherwise 21 conduct business with entities to which the rule 22 will apply. 23 ‘‘(c) NOTICE OF PROPOSED RULEMAKING.— 24 VerDate Sep 11 2014 22:22 May 25, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1615.IS S1615 pbinns on DSKJLVW7X2PROD with $$_JOB 7 •S 1615 IS ‘‘(1) IN GENERAL.—If an agency determines 1 that the objectives of the agency require the agency 2 to issue a rule, the agency shall— 3 ‘‘(A) submit a notice of proposed rule- 4 making to the Administrator for review; 5 ‘‘(B) refrain from publishing the notice 6 until the Administrator concludes the review 7 under subparagraph (A); and 8 ‘‘(C) at the conclusion of review by the Ad- 9 ministrator, publish a notice of proposed rule- 10 making in the Federal Register, which shall in- 11 clude— 12 ‘‘(i) a statement of the time, place, 13 and nature of any public rulemaking pro- 14 ceedings; 15 ‘‘(ii) a reference to the legal authority 16 under which the rule is proposed, including 17 the specific statutory provision on which 18 the rulemaking relies; 19 ‘‘(iii) the text of the proposed rule; 20 ‘‘(iv) a summary of information 21 known to the agency concerning the con- 22 siderations described in subsection (b); and 23 ‘‘(v) where otherwise consistent with 24 applicable law, for any major rule— 25 VerDate Sep 11 2014 22:22 May 25, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1615.IS S1615 pbinns on DSKJLVW7X2PROD with $$_JOB 8 •S 1615 IS ‘‘(I) a reasoned preliminary ex- 1 planation regarding how— 2 ‘‘(aa) the proposed rule 3 meets the objectives of the statu- 4 tory provision on which the rule- 5 making relies; and 6 ‘‘(bb) the benefits of the 7 proposed rule justify the costs; 8 ‘‘(II) a discussion of— 9 ‘‘(aa) the costs and benefits 10 of alternatives considered by the 11 agency under subsection (b)(4); 12 ‘‘(bb) whether the alter- 13 natives considered by the agency 14 under subsection (b)(4) meet the 15 objectives of the statutory provi- 16 sion on which the rulemaking re- 17 lies; and 18 ‘‘(cc) the reasons why the 19 agency did not propose an alter- 20 native considered by the agency 21 under subsection (b)(4); and 22 ‘‘(III) a solicitation of public 23 comment, including on all issues and 24 alternatives discussed under sub- 25 VerDate Sep 11 2014 22:22 May 25, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1615.IS S1615 pbinns on DSKJLVW7X2PROD with $$_JOB 9 •S 1615 IS clauses (I) and (II) and subsection 1 (k)(1)(A). 2 ‘‘(2) ACCESSIBILITY.— 3 ‘‘(A) IN GENERAL.—Not later than the 4 date on which an agency publishes a notice of 5 proposed rulemaking under paragraph (1), all 6 studies, models, scientific literature, and other 7 information developed or relied upon by the 8 agency, and actions taken by the agency to ob- 9 tain that information, in connection with the 10 determination of the agency to propose the rule 11 that is the subject of the rulemaking shall be 12 placed in the docket for the proposed rule and 13 made accessible to the public. 14 ‘‘(B) INFORMATION CONTROLLED BY NON- 15 GOVERNMENTAL PERSON.—With respect to any 16 information to which a nongovernmental person 17 holds a legal right to prohibit or limit reproduc- 18 tion, distribution, or public display, the infor- 19 mation shall be— 20 ‘‘(i) placed in the docket through cita- 21 tion or incorporation by reference, includ- 22 ing a specification of the identity of the 23 nongovernmental person who holds a legal 24 right to prohibit or limit reproduction, dis- 25 VerDate Sep 11 2014 22:22 May 25, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1615.IS S1615 pbinns on DSKJLVW7X2PROD with $$_JOB 10 •S 1615 IS tribution, or public display of the informa- 1 tion and the means by which a member of 2 the public may request a full copy of the 3 information from that holder; and 4 ‘‘(ii) considered made accessible to the 5 public after a placement described in 6 clause (i), provided that the nongovern- 7 mental person who holds a legal right to 8 prohibit or limit reproduction, distribution, 9 or public display of the information makes 10 the information reasonably available upon 11 request in a timely manner to any member 12 of the public who requests a copy of the in- 13 formation. 14 ‘‘(C) EXCEPTION.—Subparagraphs (A) 15 and (B) shall not apply with respect to informa- 16 tion that is exempt from disclosure under sec- 17 tion 552(b). 18 ‘‘(3) INFORMATION QUALITY.—If an agency 19 proposes a rule that rests upon scientific, technical, 20 or economic information, the agency shall— 21 ‘‘(A) propose the rule on the basis of the 22 best publicly available scientific, technical, or 23 economic information; and 24 VerDate Sep 11 2014 22:22 May 25, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1615.IS S1615 pbinns on DSKJLVW7X2PROD with $$_JOB 11 •S 1615 IS ‘‘(B) to the maximum extent practicable, 1 use that information in compliance with the 2 guidelines issued under section 515 of the 3 Treasury and General Government Appropria- 4 tions Act, 2001 (Public Law 106–554; 114 5 Stat. 2763A–154). 6 ‘‘(4) PUBLIC COMMENT.— 7 ‘‘(A) IN GENERAL.—After publishing a no- 8 tice of proposed rulemaking under paragraph 9 (1), an agency shall provide interested persons 10 an opportunity to participate in the rulemaking 11 through the submission of written material, 12 data, views, or arguments with or without op- 13 portunity for oral presentation, except that 14 when a rule is required by statute to be made 15 on the record after opportunity for an agency 16 hearing, sections 556 and 557 shall apply. 17 ‘‘(B) TIMELINE.— 18 ‘‘(i) IN GENERAL.—Subject to sub- 19 paragraph (C), an agency shall provide not 20 less than 60 days, or, with respect to a 21 proposed major rule, not less than 90 days, 22 for interested persons to submit written 23 material, data, views, or arguments under 24 subparagraph (A). 25 VerDate Sep 11 2014 22:22 May 25, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1615.IS S1615 pbinns on DSKJLVW7X2PROD with $$_JOB 12 •S 1615 IS ‘‘(ii) ADEQUATE REVIEW PERIOD.—If 1 a proposed rule relies on information 2 placed in the docket through citation or in- 3 corporation by reference as described in 4 paragraph (3)(B), the comment period re- 5 quired under clause (i) shall be adequate 6 to allow interested persons to receive and 7 review that information to inform their 8 submission. 9 ‘‘(C) RESPONSIVE COMMENT PERIOD FOR 10 MAJOR RULES.—With respect to a proposed 11 major rule, an interested person who made a 12 submission under subparagraph (A) during the 13 comment period under subparagraph (B) with 14 respect to the rule may, during the period be- 15 ginning on the day after the date on which that 16 comment period closes and ending on the date 17 that is 30 days after that day, respond to any 18 other submission made by any other interested 19 person under subparagraph (A) during the ini- 20 tial comment period. 21 ‘‘(D) ACCESSIBILITY.—All comments and 22 responses submitted under this paragraph shall 23 be promptly placed in the docket and made ac- 24 cessible to the public. 25 VerDate Sep 11 2014 22:22 May 25, 2023 Jkt 039200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S1615.IS S1615 pbinns on DSKJLVW7X2PROD with $$_JOB 13 •S 1615 IS ‘‘(5) CHANGE OF CLASSIFICATION AFTER PUB- 1 LICATION OF NOTICE.—If, after an agency submits 2 for review and publishes the notice of proposed rule- 3 making required under paragraph (1), a proposed 4 rule is determined to be a major rule, the agency 5 shall— 6 ‘‘(A) publish a notice in the Federal Reg- 7 ister with respect to the change of the classi- 8 fication of the rule; and 9 ‘‘(B) allow interested persons an additional 10 opportunity of not less than 30 days to com- 11 ment on— 12 ‘‘(i) the rule; and 13 ‘‘(ii) the change of the classification of 14 the rule. 15 ‘‘(6) PROHIBITION ON CERTAIN COMMUNICA- 16 TIONS.— 17 ‘‘(A) IN GENERAL.—Except as provided in 18 subparagraph (B), after an agency publishes a 19 notice of proposed rulemaking required under 20 paragraph (1), or after an agency publishes a 21 notice of initiation of rul [Text truncated for display. 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