US Codex
Bill
Notes

Title III — Rules and regulations

S. 4513 · 116th Congress · Aug 6, 2020 · Lineage

III Rules and regulations

Sec. 301 Climate and environmental justice accountability agenda

(a)
In general— During the months of October and April of each year, each agency shall publish in the Federal Register a climate and environmental justice accountability agenda (referred to in this section as the agenda) which shall contain—
(1)
a brief description of the subject area of any rule which the agency expects to propose or promulgate which is likely to have a significant positive or negative economic, public health, or environmental impact on a substantial number of residents within 1 or more frontline communities;
(2)
a summary of—
(A)
the nature of each rule under consideration for each subject area listed in the agenda pursuant to paragraph (1);
(B)
the objectives and legal basis for the issuance of each rule listed in the agenda pursuant to paragraph (1); and
(C)
an approximate schedule for completing action on any rule for which the agency has issued a general notice of proposed rulemaking; and
(3)
the name and telephone number of an agency official knowledgeable concerning the items listed in paragraph (1).
(b)
Submission— Each agenda shall be transmitted to the head of the Office for comment, if any.
(c)
Frontline communities— Each agency shall—
(1)
provide notice of each agenda to frontline communities or representatives of the frontline communities through—
(A)
direct notification of frontline communities; or
(B)
publication of the agenda in publications likely to be obtained by frontline communities; and
(2)
invite comments on each subject area on the agenda.
(d)
Savings provision— Nothing in this section—
(1)
precludes an agency from considering or acting on any matter not included in an agenda of the agency; or
(2)
requires an agency to consider or act on any matter listed in the agenda.

Sec. 302 Initial climate and environmental justice analysis

(a)
Determination of potential significant impact—
(1)
In general— Whenever an agency is required by section 553 of title 5, United States Code, or any other law, to publish a general notice of proposed rulemaking for a proposed rule, or publishes a notice of proposed rulemaking for an interpretative rule involving the internal revenue laws of the United States, the Board of Advisors, in coordination with the Director of the agency, shall determine whether the proposed rule may have a significant impact on 1 or more frontline communities.
(2)
Determination of no potential significant impact— If the Board of Advisors determines under paragraph (1) that a proposed rule will not have a significant impact on 1 or more frontline communities, the Board of Advisors shall make publicly available on the website of the Office and publish in the Federal Register a statement of the rationale for that determination.
(b)
Initial regulatory analysis—
(1)
In general— Subject to section 305(b), in the case of a proposed rule that the Board of Advisors determines may have a significant impact on 1 or more frontline communities under subsection (a)(1), the applicable agency shall—
(A)
in coordination with the Director of the agency, prepare an initial climate and environmental justice analysis; and
(B)
make available for public comment the initial climate and environmental justice analysis under subparagraph (A).
(2)
Requirements—
(A)
Impact on frontline communities— An initial climate and environmental justice analysis under paragraph (1)(A) shall describe the quantitative and qualitative impacts of the proposed rule on frontline communities, including cultural impacts.
(B)
Publication— The initial climate and environmental justice analysis under paragraph (1)(A), or a summary of that analysis, shall be published in the Federal Register at the time of the publication of the general notice of proposed rulemaking for the rule.
(3)
Transmission— The agency shall transmit a copy of the initial climate and environmental justice analysis under paragraph (1)(A) to the head of the Office.
(c)
Requirements— Each initial climate and environmental justice analysis under subsection (b)(1)(A) shall contain—
(1)
a description of the reasons why action by the agency is being considered;
(2)
a succinct statement of the objectives of, and legal basis for, the proposed rule;
(3)
a description of and, where feasible, an estimate of the number of residents of frontline communities on which the proposed rule will have a significant impact;
(4)
a description of the impact to individual frontline communities;
(5)
a description of input and comments from coordination with frontline communities under section 305;
(6)
a justification for the incorporation or rejection of any comments from coordination with frontline communities under section 305;
(7)
a description of the individuals and groups from the coordination with frontline communities under section 305; and
(8)
an identification, to the extent practicable, of all relevant Federal rules which may duplicate, overlap, or conflict with the proposed rule.
(d)
Significant alternatives— An initial climate and environmental justice analysis under subsection (b)(1)(A) shall contain a description of any significant alternatives to the proposed rule that—
(1)
accomplish the stated objectives of applicable statutes; and
(2)
(A)
minimize any significant negative economic, environmental, or public health impact of the proposed rule on frontline communities; or
(B)
maximize any significant positive economic, environmental, or public health impact of the proposed rule on frontline communities.
(e)
Projected impacts— An initial climate and environmental justice analysis under subsection (b)(1)(A) shall include a description of—
(1)
any projected economic, environmental, or public health impacts, positive or negative, on frontline communities as a result of the proposed rule;
(2)
any potential cumulative impact on frontline communities that results from the proposed rule, in combination with previously promulgated rules;
(3)
any significant alternatives to the proposed rule that—
(A)
accomplish the stated objectives of applicable statutes; and
(B)
(i)
minimize any significant negative economic, environmental, or public health impact of the proposed rule on frontline communities; or
(ii)
maximize any significant positive economic, environmental, or public health impact of the proposed rule on frontline communities; and
(4)
the advice and recommendations of representatives of frontline communities under section 305(c)(1) relating to issues described in paragraphs (1), (2), and (3).

Sec. 303 Final climate and environmental justice analysis

(a)
Final analysis—
(1)
In general— When an agency promulgates a final rule under section 553 of title 5, United States Code, after being required by that section or any other law to publish a general notice of proposed rulemaking, or promulgates a final interpretative rule involving the internal revenue laws of the United States as described in section 302(a), and the agency was required to prepare an initial climate and environmental justice analysis for the applicable proposed rule under section 302(b)(1)(A), the agency shall prepare a final climate and environmental justice analysis.
(2)
Requirements— Each final climate and environmental justice analysis under paragraph (1) shall contain—
(A)
a statement of the need for, and objectives of, the rule;
(B)
a statement of—
(i)
the issues raised by frontline communities through consultation under section 305 in preparing the initial climate and environmental justice analysis under section 302(b)(1)(A);
(ii)
an assessment of the issues described in clause (i); and
(iii)
any modification to the proposed rule as a result of the assessment described in clause (ii);
(C)
(i)
the response of the agency to any comments filed by the head of the Office or the Board of Advisors in response to the proposed rule; and
(ii)
a detailed statement of any change made to the proposed rule in the final rule as a result of the comments described in clause (i);
(D)
a description of and an estimate of the number of residents of frontline communities to which the rule will apply or an explanation of why no such estimate is available; and
(E)
a description of the steps the agency has taken to minimize the negative, or maximize the positive, significant economic, environmental, and public health impact on frontline communities that are consistent with the stated objectives of applicable statutes, including—
(i)
a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule; and
(ii)
a description of why each 1 of the other significant alternatives to the rule considered by the agency which affect the impact on frontline communities was rejected.
(3)
Consideration— In developing the final climate and environmental justice analysis under paragraph (1), the agency shall give strong consideration to the comments, recommendations, and findings within a report of a review panel under section 305(c)(6), if any, to ensure that benefits are maximized to impacted frontline communities.
(b)
Publication— The head of the agency shall publish in the Federal Register the final climate and environmental justice analysis under subsection (a)(1) or a summary of that analysis.

Sec. 304 Avoidance of duplicative or unnecessary analyses

(a)
Simultaneous analyses— An agency may perform the analyses required by sections 301, 302, and 303 in conjunction with or as a part of any other agenda or analysis required by any other law if the other analysis satisfies the provisions of those sections, including the analyses required under chapter 6 of title 5, United States Code.
(b)
Exceptions—
(1)
Small numbers affected— Sections 302 and 303 shall not apply to any proposed or final rule if—
(A)
the head of the agency certifies that the rule will not, if promulgated, have a significant economic, environmental, or public health impact on a substantial number of members of 1 or more frontline communities; and
(B)
the head of the Office, in consultation with the Board of Advisors, approves of the certification under subparagraph (A).
(2)
Certification— If the head of the agency makes a certification under paragraph (1)(A), the agency shall—
(A)
publish the certification in the Federal Register at the time of publication of general notice of proposed rulemaking for the rule or at the time of publication of the final rule, along with a statement providing the factual basis for such certification; and
(B)
provide the certification and statement described in subparagraph (A) to the head of the Office.
(c)
Similar rules— In order to avoid duplicative action, at the discretion of the Board of Advisors and in consultation with the applicable Director, an agency may consider a series of closely related rules as 1 rule for the purposes of sections 301, 302, 303, and 306.

Sec. 305 Procedures for gathering comments

(a)
In general— When a rule is promulgated that will have a significant economic, environmental, or public health impact on a substantial number of members of 1 or more frontline communities, the head of the agency promulgating the rule shall ensure that frontline communities have been given an opportunity to participate in the rulemaking for the rule through, at a minimum—
(1)
the inclusion in an advanced notice of proposed rulemaking, if issued, of a statement that the proposed rule may have a significant economic, environmental, or public health effect on a substantial number of members of 1 or more frontline communities;
(2)
the publication of general notice of proposed rulemaking in publications likely to be obtained by frontline communities;
(3)
the direct notification of interested frontline communities, including through community centers and schools;
(4)
the conduct of open conferences or public hearings concerning the rule for frontline communities, including soliciting and receiving comments over computer networks; and
(5)
the adoption or modification of agency procedural rules to reduce the cost or complexity of participation in the rulemaking by frontline communities.
(b)
Requirements— Prior to publication of an initial climate and environmental justice analysis under section 302(b)(1)(A) for a proposed rule—
(1)
an agency shall notify the head of the Office of the initial climate and environmental justice analysis and provide the head of the Office with information on—
(A)
the potential impacts of the proposed rule on frontline communities; and
(B)
the type of frontline communities that might be affected;
(2)
the agency shall ensure that frontline communities have been given an opportunity to participate through public comment in accordance with subsection (a);
(3)
the agency shall carry out the review panel process described in subsection (c) for the proposed rule; and
(4)
the agency shall—
(A)
incorporate comments, advice, and recommendations from frontline communities; and
(B)
where appropriate, modify—
(i)
the proposed rule; or
(ii)
the initial climate and environmental justice analysis.
(c)
Review panels—
(1)
Frontline community representative advisory committees—
(A)
Identification of representatives— Not later than 30 days after the date on which the head of the Office receives the materials described in subsection (b)(1) for a proposed rule, the head of the Office, in coordination with the Board of Advisors, shall—
(i)
identify individuals representative of affected frontline communities; and
(ii)
appoint those individuals to an advisory committee established for the purpose of obtaining advice and recommendations from those individuals about the potential impacts of the proposed rule.
(B)
Number of representatives—
(i)
In general— Subject to clause (ii), the number of individuals appointed to an advisory committee under subparagraph (A)(ii) shall be determined by the head of the Office, in coordination with the Board of Advisors, based on the scope of the proposed rule described in that paragraph.
(ii)
Minimum— Not fewer than 2 individuals shall be appointed under subparagraph (A)(ii) with respect to each proposed rule described in that subparagraph.
(C)
Compensation— A representative on an advisory committee who is not an officer or employee of the Federal Government shall be compensated at a rate equal to the daily equivalent of the annual rate of basic pay prescribed under chapter 51 and subchapter III of chapter 53 of title 5, United States Code, for each day (including travel time) during which the representative is engaged in the performance of the duties of the advisory committee.
(D)
Travel expenses— A representative on an advisory committee shall be allowed travel expenses, including per diem in lieu of subsistence, at rates authorized for employees of agencies under subchapter I of chapter 57 of title 5, United States Code, while away from their homes or regular places of business in the performance of services for the advisory committee.
(E)
Inapplicability of FACA— The Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to an advisory committee established under subparagraph (A)(ii).
(2)
Convention of review panels—
(A)
In general— An agency carrying out an initial climate and environmental justice analysis for a proposed rule under section 302(b)(1)(A) shall convene a review panel for the rule, consisting of—
(i)
full-time Federal employees of the office within the agency responsible for carrying out the proposed rule;
(ii)
the Director of the agency;
(iii)
full-time Federal employees of the Office of Information and Regulatory Affairs within the Office of Management and Budget;
(iv)
(I)
the head of the Office; or
(II)
1 or more employees of the Office; and
(v)
1 or more members of the Board of Advisors.
(B)
Functions— A review panel convened under subparagraph (A) shall—
(i)
review any material the agency has prepared in connection with this title, including any draft proposed rule; and
(ii)
collect advice and recommendations of the advisory committee of frontline community representatives established under paragraph (1)(A)(ii) on—
(I)
issues relating to the frontline community that are described in subsections (b), (c), (d), and (e) of section 302; and
(II)
any other relevant information relating to the potential impact of the proposed rule on the frontline community.
(C)
Report— Not later than 60 days after the date on which an agency convenes a review panel under subparagraph (A), the review panel shall submit a report to the head of the agency on—
(i)
the comments and recommendations of the advisory committee of frontline community representatives established under paragraph (1)(A)(ii); and
(ii)
the findings of the review panel as to the issues described in subparagraph (B)(ii).
(d)
Agency discretion— The head of an agency may apply subsection (b) to rules that the head of the agency intends to certify under section 304(b), but that the head of the agency believes may have a greater than de minimis impact on a substantial number of members of 1 or more frontline communities.

Sec. 306 Periodic review of rules

(a)
Periodic review—
(1)
In general— Not later than 180 days after the date of enactment of this Act, each agency shall publish in the Federal Register a plan for the periodic review of the rules issued by the agency that have or will have a significant economic, environmental, or public health impact on a substantial number of members of 1 or more frontline communities.
(2)
Amendments— The plan under paragraph (1) may be amended by an agency at any time by publishing the revision in the Federal Register.
(3)
Purpose— The purpose of the periodic review under paragraph (1) shall be to determine whether the rules subject to the review should be—
(A)
continued without change; or
(B)
amended, consistent with the statutes under which the rules were issued, to minimize any significant economic, environmental, or public health impact of the rules on a substantial number of members of 1 or more frontline communities.
(4)
Review of existing rules— The plan under paragraph (1) shall provide for the review of rules of the agency under that paragraph to be completed—
(A)
for rules of the agency existing on the date of enactment of this Act, not later than the date that is 10 years after the date of enactment of this Act; and
(B)
for rules of the agency adopted after the date of enactment of this Act, not later than the date that is 10 years after the date on which the final rule is issued.
(b)
Considerations— In reviewing rules under the plan under subsection (a)(1) to minimize negative or maximize positive significant economic, environmental, or public health impact of the rule on a substantial number of members of 1 or more frontline communities in a manner consistent with the stated objectives of applicable statutes, the agency shall consider—
(1)
the impact of the rule on the relevant frontline communities; and
(2)
the length of time since the rule has been evaluated or the degree to which technology, economic conditions, or other factors have changed that are relevant to the rule.
(c)
Annual list—
(1)
In general— Each year, the head of each agency shall publish in the Federal Register a list of the rules which have a significant economic, environmental, or public health impact on a substantial number of members of 1 or more frontline communities, which are to be reviewed pursuant to this section during the 12-month period starting on the date of the publication of the list.
(2)
Requirement— The list under paragraph (1) shall—
(A)
include—
(i)
a brief description of each rule; and
(ii)
the need for and legal basis of each rule; and
(B)
invite public comment on each rule.
(d)
Exceptions—
(1)
Small numbers affected— This section shall not apply to a rule if—
(A)
the head of the agency certifies that the rule does not or will not have a significant economic, environmental, or public health impact on a substantial number of members of 1 or more frontline communities; and
(B)
the head of the Office, in consultation with the Board of Advisors, approves of the certification under subparagraph (A).
(2)
Certification— If the head of the agency makes a certification under paragraph (1)(A), the agency shall—
(A)
publish the certification in the Federal Register, along with a statement providing the factual basis for such certification; and
(B)
provide the certification and statement described in subparagraph (A) to the head of the Office.

Sec. 307 Judicial review

(a)
Judicial review—
(1)
Final agency action—
(A)
In general— For any rule subject to this title, a frontline community that is relevant with regard to a final agency action is entitled to judicial review of agency compliance with the requirements of sections 303, 304(b), and 306 in accordance with chapter 7 of title 5, United States Code.
(B)
Compliance— Agency compliance with section 305(a) shall be judicially reviewable in connection with judicial review of section 303.
(2)
Jurisdiction—
(A)
In general— Each court having jurisdiction to review a rule for compliance with section 553 of title 5, United States Code, or under any other provision of law, shall have jurisdiction to review any claims of noncompliance with sections 303, 304(b), and 306 in accordance with chapter 7 of title 5, United States Code.
(B)
Compliance— Agency compliance with section 305(a) shall be judicially reviewable in connection with judicial review of section 303.
(3)
Limitation— A frontline community may seek a review described in paragraph (1) during the period—
(A)
beginning on the date of final agency action; and
(B)
ending on the later of—
(i)
the date required by the statute under which the applicable rule was issued; and
(ii)
1 year after the date described in subparagraph (A).
(4)
Relief— In granting any relief in an action under this section, the court shall order the agency to take corrective action consistent with this title and chapter 7 of title 5, United States Code, including—
(A)
remanding the rule to the agency for correction; and
(B)
deferring the enforcement of the rule against frontline communities unless the court finds that continued enforcement of the rule is in the public interest.
(5)
No limitation of authority— Nothing in this subsection limits the authority of a court to stay the effective date of a rule, or provision of a rule, under any other provision of law or to grant any other relief in addition to the requirements of this section.
(b)
Record— In an action for the judicial review of a rule, the climate and environmental justice analysis for that rule, including an initial climate and environmental justice analysis prepared or corrected pursuant to subsection (a)(4)(A), shall constitute part of the entire record of agency action in connection with such review.
(c)
Compliance— Compliance or noncompliance by an agency with the provisions of this title shall be subject to judicial review only in accordance with this section.
(d)
Savings— Nothing in this section bars judicial review of any other impact statement or similar analysis required by any other law if judicial review of such statement or analysis is otherwise permitted by law.

Sec. 308 Availability

Any analysis conducted, or other document prepared, under this title shall be made available to the public through the Office.