[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[S. 849 Introduced in Senate (IS)]







107th CONGRESS
  1st Session
                                 S. 849

  To amend provisions of law enacted by the Small Business Regulatory 
 Enforcement Fairness Act of 1996 (Public Law 104-121) to ensure full 
 analysis of potential impacts on small entities of rules proposed by 
               certain agencies, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 9, 2001

   Mr. Bond introduced the following bill; which was read twice and 
              referred to the Committee on Small Business

_______________________________________________________________________

                                 A BILL


 
  To amend provisions of law enacted by the Small Business Regulatory 
 Enforcement Fairness Act of 1996 (Public Law 104-121) to ensure full 
 analysis of potential impacts on small entities of rules proposed by 
               certain agencies, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Agency Accountability Act of 2001''.

SEC. 2. FINDINGS AND PURPOSES.

    (a) Findings.--Congress finds the following:
            (1) A vibrant and growing small business sector is critical 
        to creating jobs in a dynamic economy.
            (2) Small businesses bear a disproportionate share of 
        regulatory costs and burdens.
            (3) Federal agencies must consider the impact of their 
        regulations on small businesses early in the rule making 
        process.
            (4) Small business input in rule makings contributes to 
        more effective and less burdensome regulations.
            (5) Federal agencies' decisions to certify regulations as 
        not having a significant economic impact on a substantial 
        number of small entities have frequently been supported by 
        inadequate analysis, data, and outreach.
            (6) The Small Business Advocacy Review Panel process that 
        was established by the Small Business Regulatory Enforcement 
        Fairness Act of 1996 (Public Law 104-121) is--
                    (A) effective in allowing small businesses to 
                participate in rules that are being developed by the 
                Environmental Protection Agency and the Occupational 
                Safety and Health Administration; and
                    (B) appropriate for use in rule making of other 
                agencies.
            (7) The Environmental Protection Agency, the Occupational 
        Safety and Health Administration, and other agencies often fail 
        to comply with chapter 6 of title 5, United States Code 
        (commonly referred to as the Regulatory Flexibility Act).
    (b) Purposes.--The purposes of this Act are the following:
            (1) To provide a forum for the effective participation of 
        small businesses in the Federal regulatory process.
            (2) To clarify and strengthen the Small Business Advocacy 
        Review Panel process.
            (3) To expand the number of Federal agencies that are 
        required to convene Small Business Advocacy Review Panels.
            (4) To provide more consistent compliance by agencies with 
        the requirements of chapter 6 of title 5, United States Code 
        (commonly referred to as the Regulatory Flexibility Act).
            (5) To provide a more effective way for small entities to 
        hold agencies accountable for their performance under the Small 
        Business Regulatory Enforcement Fairness Act of 1996 (Public 
        Law 104-121), including the amendments made by that Act.

SEC. 3. ENSURING FULL ANALYSIS OF POTENTIAL IMPACTS ON SMALL ENTITIES 
              OF RULES PROPOSED BY CERTAIN AGENCIES.

    Section 609(b) of title 5, United States Code, is amended to read 
as follows:
    ``(b)(1) Before the publication of an initial regulatory 
flexibility analysis that a covered agency is required to conduct under 
this chapter, the head of the covered agency shall--
            ``(A) notify the Chief Counsel for Advocacy of the Small 
        Business Administration (in this subsection referred to as the 
        `Chief Counsel') in writing;
            ``(B) provide the Chief Counsel with information on the 
        potential impacts of the proposed rule on small entities and 
        the type of small entities that might be affected; and
            ``(C) not later than 30 days after complying with 
        subparagraphs (A) and (B)--
                    ``(i) in consultation with the Chief Counsel, 
                identify affected small entity representatives; and
                    ``(ii) transmit to the identified small entity 
                representatives a detailed summary of the information 
                referred to in subparagraph (B) or the information in 
                full, if so requested by the small entity 
                representative, for the purposes of obtaining advice 
                and recommendations about the potential impacts of the 
                draft proposed rule.
    ``(2)(A) Not earlier than 30 days after the covered agency 
transmits information pursuant to paragraph (1)(C)(ii), the head of the 
covered agency shall convene a review panel for the draft proposed 
rule. The panel shall consist solely of full-time Federal employees of 
the office within the covered agency that will be responsible for 
carrying out the proposed rule, the Office of Information and 
Regulatory Affairs of the Office of Management and Budget, and the 
Chief Counsel.
    ``(B) The review panel shall--
            ``(i) review any material the covered agency has prepared 
        in connection with this chapter, including any draft proposed 
        rule;
            ``(ii) collect advice and recommendations from the small 
        entity representatives identified under paragraph (1)(C)(i) on 
        issues related to paragraphs (3), (4), (5), (6), and (7) of 
        section 603(b) and section 603(c); and
            ``(iii) allow any small entity representative identified 
        under paragraph (1)(C)(i) to make an oral presentation to the 
        panel, if requested.
    ``(C) Not later than 60 days after the date a covered agency 
convenes a review panel pursuant to this paragraph, the review panel 
shall report to the head of the covered agency on--
            ``(i) the comments received from the small entity 
        representatives identified under paragraph (1)(C)(i); and
            ``(ii) its findings regarding issues related to paragraphs 
        (3), (4), (5), (6), and (7) of section 603(b) and section 
        603(c).
    ``(3)(A) Except as provided in subparagraph (B), the head of the 
covered agency shall print in the Federal Register the report of the 
review panel under paragraph (2)(C), including any written comments 
submitted by the small entity representatives and any appendices cited 
in the report, as soon as practicable, but not later than--
            ``(i) 180 days after the date the head of the covered 
        agency receives the report; or
            ``(ii) the date of the publication of the notice of 
        proposed rulemaking for the proposed rule.
    ``(B) The head of the covered agency shall submit a copy of the 
report of the review panel under paragraph (2)(C) to the small entity 
representatives on the date that the report is submitted under 
subparagraph (A).
    ``(C) The report of the review panel printed in the Federal 
Register shall not include any confidential business information 
submitted by any small entity representative.
    ``(4) Where appropriate, the covered agency shall modify the draft 
proposed rule, the initial regulatory flexibility analysis for the 
draft proposed rule, or the decision on whether an initial regulatory 
flexibility analysis is required for the draft proposed rule.''.

SEC. 4. DEFINITIONS.

    (a) In General.--Section 609(d) of title 5, United States Code, is 
amended to read as follows:
    ``(d) In this section--
            ``(1) the term `covered agency' means--
                    ``(A) the Environmental Protection Agency;
                    ``(B) the Occupational Safety and Health 
                Administration of the Department of Labor;
                    ``(C) the Internal Revenue Service of the 
                Department of the Treasury;
                    ``(D) the United States Forest Service of the 
                Department of Agriculture;
                    ``(E) the National Marine Fisheries Service of the 
                Department of Commerce; and
                    ``(F) the United States Fish and Wildlife Service 
                of the Department of Interior; and
            ``(2) the term `small entity representative' means a small 
        entity, or an individual or organization that primarily 
        represents the interests of 1 or more small entities.''.
    (b) Regulatory Definitions.--Not later than 18 months after the 
date of enactment of this Act, the Chief Counsel for Advocacy of the 
United States Small Business Administration shall--
            (1) promulgate regulations to define the terms 
        ``significant economic impact'' and ``substantial number of 
        small entities'' for purposes of chapter 6 of title 5, United 
        States Code; and
            (2) in promulgating such regulations, consider the effect 
        indirect impacts from regulations have on small businesses.

SEC. 5. COLLECTION OF INFORMATION REQUIREMENT.

    (a) Definition.--Section 601 of title 5, United States Code, is 
amended--
            (1) in paragraph (5), by inserting ``and'' after the 
        semicolon;
            (2) in paragraph (6), by striking ``; and'' and inserting a 
        period; and
            (3) by striking paragraphs (7) and (8).
    (b) Initial Regulatory Flexibility Analysis.--Section 603(a) of 
title 5, United States Code, is amended--
            (1) by striking the fifth sentence;
            (2) by inserting ``(1)'' after ``(a)''; and
            (3) by adding at the end the following:
            ``(2)(A) In the case of an interpretative rule involving 
        the internal revenue laws of the United States, this chapter 
        applies to interpretative rules (including proposed, temporary, 
        and final regulations) published in the Federal Register for 
        codification in the Code of Federal Regulations.
            ``(B)(i) The Internal Revenue Service may make a 
        determination not to follow the procedures of this subsection 
        or to conduct a panel review as required under section 609(b) 
        with respect to a temporary regulation (as defined under 
        section 7805(e) of the Internal Revenue Code of 1986).
            ``(ii) If the Internal Revenue Service makes a 
        determination under clause (i), the Internal Revenue Service 
        shall provide the Chief Counsel for Advocacy at the time the 
        determination is made with--
                    ``(I) notice of the determination;
                    ``(II) an explanation of the reasons the temporary 
                regulation is impracticable, unnecessary, or contrary 
                to the public interest; and
                    ``(III) an explanation of the reasons the 
                circumstances warrant an exception from the panel 
                review of the regulation as required under section 
                609(b).
            ``(iii) The notice and explanation under clause (ii) shall 
        be published in the Federal Register with the notice 
        promulgating the temporary regulation.''.

SEC. 6. INITIAL REGULATORY FLEXIBILITY ANALYSIS.

    Section 603(b) of title 5, United States Code, is amended--
            (1) in paragraph (5), by striking the period and inserting 
        a semicolon; and
            (2) by adding at the end the following:
            ``(6) an initial assessment of the costs and benefits of 
        the proposed rule, including, to the extent practical, an 
        estimate of--
                    ``(A) the cumulative cost on small entities 
                effected by the proposed rule of all rules applicable 
                to those small entities; and
                    ``(B) the effect of the proposed rule on that 
                cumulative cost; and
            ``(7) an initial certification that the benefits of the 
        proposed rule justify the costs, of the rule to small 
        entities.''.

SEC. 7. FINAL REGULATORY FLEXIBILITY ANALYSIS.

    Section 604(a) of title 5, United States Code, is amended--
            (1) in paragraph (4), by striking ``and'' at the end;
            (2) in paragraph (5), by striking the period and inserting 
        ``; and''; and
            (3) by adding at the end the following:
            ``(6)(A) a final assessment of the costs and benefits of 
        the rule on the small entities affected by the rule; and
            ``(B)(i) a summary of comments received on the initial 
        assessment under section 603; and
            ``(ii) a statement of any change made as a result of those 
        comments; and
            ``(7)(A) a final certification that the benefits of the 
        rule justify the costs of the rule to the small entities that 
        will be subject to the rule; and
            ``(B)(i) a summary of comments received on the initial 
        certification under section 603; and
            ``(ii) a statement of any change made as a result of those 
        comments.''.

SEC. 8. PUBLICATION OF DECISION TO CERTIFY A RULE.

    Section 605 of title 5, United States Code, is amended--
            (1) by redesignating subsection (c) as subsection (d); and
            (2) by inserting after subsection (b) the following:
    ``(c)(1) Not later than 60 days before the publication of general 
notice of proposed rule making with respect to a rule for which an 
agency makes a certification under subsection (b), the agency shall 
publish in the Federal Register--
            ``(A) a notice of the decision to make that certification; 
        and
            ``(B) a summary of the analysis and data supporting the 
        decision; and
            ``(C) a statement on how small entities may obtain the 
        complete analysis and data used to support the decision.
    ``(2) The summary under paragraph (1)(B) shall include--
            ``(A) a summary of the potential costs and any methodology 
        and data used to determine the potential costs associated with 
        complying with the rule;
            ``(B) a description of each type of entity (regardless of 
        size) potentially subject to the requirements of the rule;
            ``(C) a description of each type of small entity 
        potentially subject to the requirements of the rule including--
                    ``(i) business types and the standard industrial 
                classification codes of those businesses;
                    ``(ii) all forms of government including county, 
                local, or special district; and
                    ``(iii) nonprofit organizations such as hospitals, 
                universities, or research institutes;
            ``(D) a description of the methodology and data used to 
        determine the potential economic impact on small entities of 
        the rule, including--
                    ``(i) data available to the agency collected from 
                sources other than the agency; and
                    ``(ii) lack of data that was not considered in the 
                analysis;
            ``(E) a description of the number of small entities, and 
        the economic impact on each type of small entity potentially 
        subject to the requirements of the rule;
            ``(F) a description of information collected from small 
        entities about the cumulative cost of compliance with the 
        regulations of that agency;
            ``(G) a description of the guidelines or methodology used 
        to determine--
                    ``(i) whether the potential small entity economic 
                impact of the rule would represent a significant 
                economic impact on a substantial number of small 
                entities; and
                    ``(ii) the application of such guidelines or 
                methodologies to the rule making;
            ``(H) a listing of the actual small entities or their 
        representatives or associations that participated in or 
        contributed information to the small entity economic impact 
        analysis; and
            ``(I) a determination of whether any small entities would 
        be forced to stop operating because of the regulation.
    ``(3) To the extent practicable, the complete analysis and data 
used to support the decision to make a certification shall be made 
available on the Internet.''.

SEC. 9. JUDICIAL REVIEW OF CERTIFICATION DECISION.

    Section 611(a) of title 5, United States Code, is amended--
            (1) in subsection (a)--
                    (A) in paragraph (1) by inserting ``or (c)'' after 
                ``605(b)''; and
                    (B) in paragraph (2) by inserting ``or (c)'' after 
                ``605(b)'';
            (2) by redesignating paragraph (5) as paragraph (6); and
            (3) by inserting after paragraph (4) the following:
            ``(5)(A) For the purpose of any judicial review under 
        paragraph (1) of agency compliance with section 605(c) a 
        decision to make a certification referred to under section 
        605(c)(1)(A) shall be treated as a final agency action.
            ``(B) A civil action for review under this paragraph may be 
        filed not later than 45 business days after the publication of 
        the notice of the decision under section 605(c)(1)(A).
            ``(C) A court may grant a stay of any rule making relating 
        to the applicable rule at any time after the filing of a civil 
        action under subparagraph (B) and during the period of review.
            ``(D) If a court rules in favor of the plaintiff in a civil 
        action filed under this paragraph, the court shall order that, 
        with respect to the applicable rule--
                    ``(i) certification under section 605 shall not 
                apply; and
                    ``(ii) sections 603 and 604 shall apply to rule 
                making.''.

SEC. 10. EXCLUSION OF AGENCY OUTREACH TO SMALL BUSINESSES FROM CERTAIN 
              COLLECTION OF INFORMATION REQUIREMENTS.

    Section 3502(3)(B) of title 44, United States Code, is amended to 
read as follows:
                    ``(B) shall not include a collection of 
                information--
                            ``(i) described under section 3518(c)(1); 
                        or
                            ``(ii) conducted for the purpose of 
                        determining the impact of regulations on small 
                        entities under section 603, 604, 605, or 609 of 
                        title 5.''.

SEC. 11. EFFECTIVE DATE.

    This Act shall take effect 90 days after the date of enactment of 
this Act.
                                 <all>