SB 3416 (Safeguarding U.S. Rulemaking Act) amends the Administrative Procedure Act’s informal rulemaking provision, 5 U.S.C. §553, to make ‘‘a foreign government that is determined by the Secretary of Commerce to be a foreign adversary under 15 C.F.R. §791.4(a), or a national of or entity incorporated in such foreign government’’ ineligible to participate in rulemaking or to petition an agency under §553. The bill also inserts cross‑references into subsections (c) and (e) so those subsections apply ‘‘except as provided in subsection (f).’’
This is a narrow textual change with broad operational consequences: it ties the exclusion from rulemaking to an existing Commerce Department designation and removes the administrative avenue of comments and petitions from a class of foreign actors. The change leaves agencies without express guidance on how to screen, reject, document, or contest excluded submissions, creating implementation questions for program lawyers and compliance teams across federal agencies.
At a Glance
What It Does
The bill inserts a new §553(f) making ineligible for participation in notice‑and‑comment rulemaking any foreign government the Commerce Secretary has designated as a ‘‘foreign adversary’’ under 15 C.F.R. §791.4(a), plus nationals and entities linked to that government. It amends subsections (c) and (e) to reflect that exception.
Who It Affects
Federal agencies conducting informal rulemaking, the Commerce Department as the designating authority, foreign governments and foreign‑linked nationals/entities, and U.S. organizations with foreign ownership or dual‑national stakeholders. Civil society and academics who collaborate with foreign partners may also be impacted.
Why It Matters
The bill converts an administrative security designation into a procedural bar from the federal rulemaking process, changing who may be heard on regulations. That shift raises legal, operational, and compliance issues — from screening comments to constitutional and due‑process risks — that agencies and regulated parties will need to address before and during rulemaking.
More articles like this one.
A weekly email with all the latest developments on this topic.
What This Bill Actually Does
SB 3416 changes one sentence in the Administrative Procedure Act and adds a short new subsection. On its face it does a single thing: if the Commerce Secretary has designated a foreign government as a ‘‘foreign adversary’’ under the cited CFR provision, that government — plus any ‘‘national of or entity incorporated in’’ that government — cannot submit comments on proposed rules or petition agencies under the §553 process.
Because the bill ties the prohibition to an existing Commerce designation, agencies do not create a new security test but must rely on Commerce’s list to determine who is ineligible. The statute does not prescribe how agencies will identify excluded commenters (for example, by citizenship self‑attestation, IP address, corporate ownership records, or other indicia), nor does it specify notice, recordkeeping, or appeal rights for blocked submitters.The practical effect will fall unevenly.
Agencies will need operational guidance to screen submissions and to document rejections, and regulated entities with cross‑border ownership or dual nationals on staff will face uncertainty about whether their input or petitions can be accepted. The lack of enforcement procedures or penalties means the change is primarily procedural: it removes a recognized avenue of participation rather than imposing a criminal or civil sanction for participation.
The Five Things You Need to Know
The bill amends 5 U.S.C. §553 by adding subsection (f) that explicitly makes certain foreign governments, their nationals, and entities ineligible to participate in rulemaking or petition under §553.
Eligibility is tied to the Commerce Department’s determination under 15 C.F.R. §791.4(a); the bill does not create a separate federal designation process.
The amendment also modifies §553(c) and §553(e) to add ‘‘Except as provided in subsection (f),’’ preserving existing notice‑and‑comment mechanics for all other participants.
SB 3416 contains no implementing procedures: it does not prescribe how agencies should identify, notify, record, or appeal the exclusion of a commenter or petitioner.
The term ‘‘entity incorporated in such foreign government’’ and the phrase ‘‘national of’’ are used without definition, creating ambiguity about subsidiaries, foreign‑owned U.S. companies, dual nationals, and permanent residents.
Section-by-Section Breakdown
Every bill we cover gets an analysis of its key sections.
Short title
Gives the bill the name ‘‘Safeguarding U.S. Rulemaking Act.’
Create exception to notice requirement
Edits subsection (c) by prepending ‘‘Except as provided in subsection (f),’’ so that the statute’s notice requirement for informal rulemaking expressly excludes those barred under the new subsection (f). Practically, agencies will still publish notices but must treat submissions they deem covered by §553(f) as outside the statute’s protections; the change in text forces agencies to reconcile routine notice procedures with an exclusionary rule.
Create exception to agency obligation to consider comments and petitions
Edits subsection (e) to limit its obligation that ‘‘Each agency’’ consider relevant matters and petitions ‘‘Except as provided in subsection (f).’’ That alters the agency duty language: agencies will have explicit statutory cover for declining to consider input from barred actors, but the bill does not instruct agencies how to document or publish the basis for excluding particular submissions.
Ineligibility based on Commerce Department foreign adversary designation
Adds the operative provision: any foreign government determined by the Commerce Secretary to be a foreign adversary under 15 C.F.R. §791.4(a), or any national of or entity incorporated in that government, is ineligible to participate in rulemaking or petition an agency under §553. The provision imports an external regulatory definition (15 C.F.R. §791.4(a)) rather than defining ‘‘foreign adversary’’ within the APA itself, effectively delegating determinations to Commerce and anchoring the ban to that agency’s process.
This bill is one of many.
Codify tracks hundreds of bills on Government across all five countries.
Explore Government in Codify Search →Who Benefits and Who Bears the Cost
Every bill creates winners and losers. Here's who stands to gain and who bears the cost.
Who Benefits
- Federal rulewriters and agency counsel, who gain statutory authority to exclude inputs tied to Commerce‑designated adversaries and thereby reduce the risk of foreign influence in regulatory development.
- National security and intelligence community stakeholders, who obtain an administrative tool to limit a specified class of foreign actors from formal participation in rulemaking.
- Domestic firms and industry groups that view foreign adversary submissions as coordinated interference; they may see the rule as leveling the playing field during contested regulatory dockets.
Who Bears the Cost
- Foreign governments designated as ‘‘foreign adversaries’’ and their nationals/entities, who lose the statutory right to submit comments or petitions under §553.
- U.S. companies with foreign ownership, subsidiaries, or significant foreign‑national leadership that may be treated as ‘‘entities incorporated in’’ or ‘‘nationals of’’ a designated government, creating compliance burdens and potential exclusion from participation.
- Federal agencies and program offices, which must design and operate screening processes, train staff, and handle contested rejections without statutory procedures or additional appropriations.
- Researchers, advocacy groups, and multilateral organizations that partner with foreign nationals or foreign‑incorporated entities and may see their contributions barred or subject to extra scrutiny.
Key Issues
The Core Tension
The central tension is between two legitimate aims: preventing adversarial foreign influence in the federal rulemaking process, and preserving open, reasoned administrative decisionmaking that welcomes input from affected parties — including multinational businesses and individuals with transnational ties. The statute solves the first concern by excluding a defined class of foreign actors, but it does so without clear procedural safeguards, definitions, or implementation rules, risking overbroad exclusion and legal challenge while leaving agencies to fill the gap.
The bill creates a binary eligibility rule but leaves open numerous implementation questions. It ties exclusion to a Commerce determination but does not require Commerce to notify agencies when it adds or removes a designation, nor does it set a recordkeeping, notice, or appeal mechanism for excluded commenters.
Agencies will have to decide operationally how to identify ‘‘nationals’’ and ‘‘entities incorporated in’’ a designated government — choices that could rely on self‑attestation, corporate ownership records, IP/geolocation data, or other proxies, each with accuracy and due‑process problems.
There are also legal risks. The statute removes an avenue of administrative participation without explaining whether excluded submissions can be received and retained in the administrative record, or whether exclusion implicates First Amendment or equal‑protection concerns when applied to non‑governmental foreign nationals or to U.S. persons with dual nationality.
The provision’s reliance on an external CFR definition creates an interagency dependency that could produce uneven application across agencies and over time as Commerce’s lists change. Finally, the ambiguous phrasing around ‘‘entities incorporated in such foreign government’’ could sweep in subsidiaries of U.S. companies or foreign‑registered affiliates, producing commercial and compliance spillovers for regulated parties.
Try it yourself.
Ask a question in plain English, or pick a topic below. Results in seconds.