1.This Act may be cited as the
Regulatory Sunset and Review Act of
2011
.
2.The purposes of this Act are—
(1)to require
agencies to regularly review their significant rules to determine whether they
should be continued without change, modified, consolidated with another rule,
or terminated;
(2)to require
agencies to consider the comments of the public, the regulated community, and
the Congress regarding the actual costs and burdens of rules being reviewed
under this Act, and whether the rules are obsolete, unnecessary, duplicative,
conflicting, or otherwise inconsistent;
(3)to require that
any rules continued in effect under this Act meet all the legal requirements
that would apply to the issuance of a new rule, including any applicable
Federal cost-benefit and risk assessment requirements;
(4)to provide for the
review of significant rules and other rules through a sunset review process and
to provide for the repeal or other change in such rules in accordance with
chapters 5 and 7 of title 5, United States Code;
(5)to provide for a
petition process that allows the public and appropriate committees of the
Congress to request that other rules that are not significant be reviewed in
the same manner as significant rules; and
(6)to require the
Administrator to coordinate and be responsible for sunset reviews conducted by
the agencies.
3.A covered rule
shall be subject to review in accordance with this Act. Upon completion of such
review, the agency which has jurisdiction over such rule shall—
(1)issue a final
report under section 8(c)(2) continuing such rule, or
(2)conduct a
rulemaking in accordance with section 8(d) to modify, consolidate with another
rule, or terminate such rule.
4.
(a)For purposes of this Act, a covered rule is a rule
that—
(1)is determined by
the Administrator to be a significant rule under subsection (b); or
(2)is any other rule
designated by the agency which has jurisdiction over such rule or the
Administrator under this Act for sunset review.
(b)For purposes of this Act, a significant rule is a rule that
the Administrator determines—
(1)has resulted in or
is likely to result in an annual effect on the economy of $100,000,000 or
more;
(2)is a major rule;
or
(3)was issued
pursuant to a significant regulatory action, as that term is defined in
Executive order 12866 (as in effect on the first date that Executive order was
in effect).
(c)
(1)Any person adversely affected by a rule that is not a
significant rule may submit a petition to the agency which has jurisdiction
over the rule requesting that such agency designate the rule for sunset review.
Such agency shall designate the rule for sunset review unless such agency
determines that it would not be in the public interest to conduct a sunset
review of the rule. In making such determination, such agency shall take into
account the number and nature of other petitions received on the same rule and
whether or not such petitions have been denied.
(2)Form and content
of petitionA petition under paragraph (1)—
(A)shall be in
writing, but is not otherwise required to be in any particular form; and
(B)shall identify the
rule for which sunset review is requested with reasonable specificity and state
on its face that the petitioner seeks sunset review of the rule.
(3)Response
required for noncomplying petitionsIf an agency determines that
a petition does not meet the requirements of this subsection, the agency shall
provide a response to the petitioner within 30 days after receiving the
petition, notifying the petitioner of the problem and providing information on
how to formulate a petition that meets those requirements.
(4)Within the 90-day period beginning on the date of
receiving a petition that meets the requirements of this subsection, the agency
shall transmit a response to the petitioner stating whether the petition was
granted or denied, except that the agency may extend such period by a total of
not more than 30 days.
(5)Petitions deemed
granted for substantial inexcusable delayA petition for sunset
review of a rule is deemed to have been granted by an agency, and such agency
is deemed to have designated the rule for sunset review, if a court finds there
is a substantial and inexcusable delay, beyond the period specified in
paragraph (4), in notifying the petitioner of the agency’s determination to
grant or deny the petition.
(6)Each agency shall maintain a public log of petitions
submitted under this subsection, that includes the status or disposition of
each petition.
(d)
(1)An appropriate committee of the Congress, or a majority
of the majority party members or a majority of nonmajority party members of
such committee, may request in writing that the Administrator designate any
rule that is not a significant rule for sunset review. The Administrator shall
designate such rule for sunset review within 30 days after receipt of such
request unless the Administrator determines that it would not be in the public
interest to conduct a sunset review of such rule.
(2)If the Administrator denies a congressional request under
this subsection, the Administrator shall transmit to the congressional
committee making the request a notice stating the reasons for the
denial.
(e)Publication of
notice of designation for sunset reviewAfter designating a rule
under subsection (c) or (d) for sunset review, the agency or the Administrator
shall promptly publish a notice of that designation in the Federal
Register.
5.Criteria for
sunset review
(a)Compliance with
other lawsIn order for any rule subject to sunset review to
continue without change or to be modified or consolidated in accordance with
this Act, such rule must be authorized by law and meet all applicable
requirements that would apply if it were issued as a new rule pursuant to
section 553 of title 5, United States Code, or other statutory rulemaking
procedures required for that rule. For purposes of this section, the term
applicable requirements includes any requirement for cost-benefit
analysis and any requirement for standardized risk analysis and risk
assessment.
(b)If there is a conflict between applicable requirements and an
Act under which a rule was issued, the conflict shall be resolved in the same
manner as such conflict would be resolved if the agency were issuing a new
rule.
6.
(a)Functions of the
administrator
(1)Notice of rules
subject to review
(A)Within 6 months after the date of the enactment of
this Act, the Administrator shall conduct an inventory of existing rules and
publish a first list of covered rules. The list shall—
(i)specify the
particular group to which each significant rule is assigned under paragraph
(2), and state the review deadline for all significant rules in each such
group; and
(ii)include other
rules subject to sunset review for any other reason, and state the review
deadline for each such rule.
(B)After publication of the first list under subparagraph (A),
the Administrator shall publish an updated list of covered rules at least
annually, specifying the review deadline for each rule on the list.
(2)Grouping of
significant rules in first list
(A)The Administrator shall assign each significant rule in
effect on the date of enactment of this Act to one of 4 groups established by
the Administrator to permit orderly and prioritized sunset reviews, and specify
for each group an initial review deadline in accordance with section
7(a)(1).
(B)In
determining which rules shall be given priority in time in that assignment, the
Administrator shall consult with appropriate agencies, and shall prioritize
rule based on—
(i)the
grouping of related rules in accordance with paragraph (3);
(ii)the
extent of the cost of each rule and on the regulated community and the public,
with priority in time given to those rules that impose the greatest
cost;
(iii)consideration of
the views of regulated persons, including State and local governments;
(iv)whether a
particular rule has recently been subject to cost-benefit analysis and risk
assessment, with priority in time given to those rules that have not been
subject to such analysis and assessment;
(v)whether a
particular rule was issued under a statutory provision that provides relatively
greater discretion to an official in issuing the rule, with priority in time
given to those rules that were issued under provisions that provide relatively
greater discretion;
(vi)the
burden of reviewing each rule on the reviewing agency; and
(vii)the need for
orderly processing and the timely completion of the sunset reviews of existing
rules.
(3)Grouping of
related rulesThe Administrator shall group related rules under
paragraph (2) (and designate other rules) for simultaneous sunset review based
upon their subject matter similarity, functional interrelationships, and other
relevant factors to ensure comprehensive and coordinated review of redundant,
overlapping, and conflicting rules and requirements. The Administrator shall
ensure simultaneous sunset reviews of covered rules without regard to whether
they were issued by the same agency, and shall designate any other rule for
sunset review that is necessary for a comprehensive sunset review whether or
not such other rule is otherwise a covered rule under this Act.
(4)The Administrator shall provide timely
guidance to agencies on the conduct of sunset reviews and the preparation of
sunset review notices and reports required by this Act to ensure uniform,
complete, and timely sunset reviews and to ensure notice and opportunity for
public comment consistent with section 8.
(5)Review and
evaluation of reportsThe Administrator shall review and evaluate
each preliminary and final report submitted by the agency pursuant to this
section. Within 90 days after receiving a preliminary report, the Administrator
shall transmit comments to the head of the agency regarding—
(A)the quality of the
analysis in the report, including whether the agency has properly applied
section 5;
(B)the consistency of
the agency’s proposed action with actions of other agencies; and
(C)whether the rule
should be continued without change, modified, consolidated with another rule,
or terminated.
(b)Agency sunset
review procedure
(1)At least 30 months before the review deadline under
section 7(a) for a covered rule issued by an agency, the agency shall—
(A)publish a sunset
review notice in accordance with section 8(a) in the Federal Register and, to
the extent reasonable and practicable, in other publications or media that are
designed to reach those persons most affected by the covered rule; and
(B)request the views
of the Administrator and the appropriate committees of the Congress on whether
to continue without change, modify, consolidate, or terminate the covered
rule.
(2)In reviewing a covered rule, the agency shall—
(A)consider public
comments and other recommendations generated by a sunset review notice under
paragraph (1); and
(B)at least 1 year
before the review deadline under section 7(a) for the covered rule, publish in
the Federal Register, in accordance with section 8(b), and transmit to the
Administrator and the appropriate committees of the Congress a preliminary
report.
(3)The agency shall consider the public comments and other
recommendations generated by the preliminary report under paragraph (2) for a
covered rule, and shall consult with the appropriate committees of the Congress
before issuing a final report. At least 90 days before the review deadline of
the covered rule, the agency shall publish in the Federal Register, in
accordance with section 8(c)(2) or 8(d), and transmit a final report to the
Administrator and the appropriate committees of the Congress.
(4)Open procedures
regarding sunset reviewIn any sunset review conducted pursuant
to this Act, the agency conducting the review shall make a written record
describing the subject of all contacts the agency or Administrator made with
non-governmental persons outside the agency relating to such review. The
written record of such contact shall be made available, upon request, to the
public.
(c)Effectiveness of
agency recommendationIf a final report under subsection (b)(3)
recommends that a covered rule should be continued without change, the covered
rule shall be continued. If a final report under subsection (b)(3) recommends
that a covered rule should be modified, consolidated with another rule, or
terminated, the rule may be modified, so consolidated, or terminated in
accordance with section 8(d).
(d)Preservation of
independence of federal bank regulatory agenciesThe head of any
appropriate Federal banking agency (as that term is defined in section 3(q) of
the Federal Deposit Insurance Act (12 U.S.C. 1813(q)), the Federal Housing
Finance Board, the National Credit Union Administration, and the Office of
Federal Housing Enterprise Oversight shall have the authority with respect to
that agency that would otherwise be granted under section 7(a)(2)(B) to the
Administrator or other officer designated by the President.
7.Review deadlines
for covered rules
(a)For purposes of this Act, the review deadline of a
covered rule is as follows:
(1)Existing
significant rulesFor a significant rule in effect on the date of
the enactment of this Act, the initial review deadline is the last day of the
4-year, 5-year, 6-year, or 7-year period beginning on the date of the enactment
of this Act, as specified by the Administrator under section 6(a)(2)(A). For
any significant rule that 6 months after the date of enactment is not assigned
to such a group specified under section 6(a)(2)(A), the initial review deadline
is the last day of the 4-year period beginning on the date of enactment of this
Act.
(2)For a significant rule that first takes effect after the
date of the enactment of this Act, the initial review deadline is the last day
of either—
(A)the 3-year period
beginning on the date the rule takes effect, or
(B)if the
Administrator determines as part of the rulemaking process that the rule is
issued pursuant to negotiated rulemaking procedures or that compliance with the
rule requires substantial capital investment, the 7-year period beginning on
the date the rule takes effect.
(3)Rules covered
pursuant to public petition or congressional requestFor any rule
subject to sunset review pursuant to a public petition under section 4(c) or a
congressional request under section 4(d), the initial review deadline is the
last day of the 3-year period beginning on—
(A)the date the
agency or Administrator so designates the rule for review; or
(B)the date of
issuance of a final court order that the agency is deemed to have designated
the rule for sunset review.
(4)Related rule
designated for reviewFor a rule that the Administrator
designates under section 6(a)(3) for sunset review because it is related to
another covered rule and that is grouped with that other rule for simultaneous
review, the initial review deadline is the same as the review deadline for that
other rule.
(b)The review deadline under subsection (a) for a covered
rule may be extended by the Administrator for not more than 6 months by
publishing notice thereof in the Federal Register that describes reasons why
the temporary extension is necessary to respond to or prevent an emergency
situation.
(c)Determinations
where rules have been amendedFor purposes of this Act, if
various provisions of a covered rule were issued at different times, then the
rule as a whole shall be treated as if it were issued on the later of—
(1)the date of
issuance of the provision of the rule that was issued first; or
(2)the date the most
recent review and revision of the rule under this Act was completed.
8.Sunset review
notices and agency reports
(a)The sunset review notice under section 6(b)(1) for a rule
shall—
(1)request comments
regarding whether the rule should be continued without change, modified,
consolidated with another rule, or terminated;
(2)if applicable,
request comments regarding whether the rule meets the applicable Federal
cost-benefit and risk assessment criteria; and
(3)solicit comments
about the past implementation and effects of the rule, including—
(A)the direct and
indirect costs incurred because of the rule, including the net reduction in the
value of private property (whether real, personal, tangible, or intangible),
and whether the incremental benefits of the rule exceeded the incremental costs
of the rule, both generally and regarding each of the specific industries and
sectors it covers;
(B)whether the rule
as a whole, or any major feature of it, is outdated, obsolete, or unnecessary,
whether by change of technology, the marketplace, or otherwise;
(C)the extent to
which the rule or information required to comply with the rule duplicated,
conflicted, or overlapped with requirements under rules of other
agencies;
(D)in the case of a
rule addressing a risk to health or safety or the environment, what the
perceived risk was at the time of issuance and to what extent the risk
predictions were accurate;
(E)whether the rule
unnecessarily impeded domestic or international competition or unnecessarily
intruded on free market forces, and whether the rule unnecessarily interfered
with opportunities or efforts to transfer to the private sector duties carried
out by the Government;
(F)whether, and to
what extent, the rule imposed unfunded mandates on, or otherwise affected,
State and local governments;
(G)whether compliance
with the rule required substantial capital investment and whether terminating
the rule on the next review deadline would create an unfair advantage to those
who are not in compliance with it;
(H)whether the rule
constituted the least cost method of achieving its objective consistent with
the criteria of the Act under which the rule was issued, and to what extent the
rule provided flexibility to those who were subject to it;
(I)whether the rule
was worded simply and clearly, including clear identification of those who were
subject to the rule;
(J)whether the rule
created negative unintended consequences;
(K)the extent to
which information requirements under the rule can be reduced; and
(L)the extent to
which the rule has contributed positive benefits, particularly health or safety
or environmental benefits.
(b)Preliminary
reports on sunset reviewsThe preliminary report under section
6(b)(2) on the sunset review of a rule shall request public comments and
contain—
(1)specific requests
for factual findings and recommended legal conclusions regarding the
application of section 5 to the rule, the continued need for the rule, and
whether the rule duplicates functions of another rule;
(2)a
request for comments on whether the rule should be continued without change,
modified, consolidated with another rule, or terminated; and
(3)if consolidation
or modification of the rule is recommended, suggestions for the proposed text
of the consolidated or modified rule.
(c)Final reports on
sunset reviewsThe report under section 6(b)(3) on the sunset
review of a rule shall—
(1)contain the
factual findings and legal conclusions of the agency conducting the review
regarding the application of section 5 to the rule and the agency’s proposed
recommendation as to whether the rule should be continued without change,
modified, consolidated with another rule, or terminated;
(2)in the case of a
rule that the agency proposes to continue without change, so state;
(3)in the case of a
rule that the agency proposes to modify or consolidate with another rule,
contain—
(A)a notice of
proposed rulemaking under section 553 of title 5, United States Code or under
other statutory rulemaking procedures required for that rule, and
(B)the text of the
rule as so modified or consolidated; and
(4)in the case of a
rule that the agency proposes to terminate, contain a notice of proposed
rulemaking for termination consistent with paragraph (3)(A).
A final
report described in paragraph (2) shall be published in the Federal
Register.(d)The
final report under subsection (c)(3) or (c)(4) shall be published in the
Federal Register and its publication shall constitute publication of the notice
required by subsection (c)(3)(A). After publication of the final report under
subsection (c)(3) or (c)(4) on a sunset review of a rule, the agency which
conducted such review shall conduct the rulemaking which is called for in such
report.
(e)Legislative
recommendationsIn any case
in which the head of an agency determines that a rule in a final report under
subsection (c)(3) or (c)(4) cannot be changed, modified, or consolidated with
another rule without legislative action, such head shall include in such final
report a description of what legislative changes are required to implement the
recommendations in such final report with regard to such rule.
9.Designation of
agency regulatory review officersThe head of each agency shall designate an
officer of the agency as the Regulatory Review Officer of the agency. The
Regulatory Review Officer of an agency shall be responsible for the
implementation of this Act by the agency and shall report directly to the head
of the agency and the Administrator with respect to that responsibility.
10.Relationship to
the Administrative Procedure ActNothing in this Act is intended to supersede
the provisions of chapters 5, 6, and 7 of title 5, United States Code.
11.Effect of
termination of a covered rule
(a)Effect of
termination, generallyIf a covered rule is terminated pursuant
to this Act—
(1)this Act shall not
be construed to prevent the President or an agency from exercising any
authority that otherwise exists to implement the statute under which the rule
was issued;
(2)in an agency
proceeding or court action between an agency and a non-agency party, the rule
shall be given no conclusive legal effect but may be submitted as evidence of
prior agency practice and procedure; and
(3)this Act shall not
be construed to prevent the continuation or institution of any enforcement
action that is based on a violation of the rule that occurred before the
effectiveness of the rule terminated.
(b)
(1)Notwithstanding subsection (a), any deadline for,
relating to, or involving any action dependent upon, any rule terminated under
this Act is suspended until the agency that issued the rule issues a new rule
on the same matter, unless otherwise provided by a law.
(2)In this subsection, the term deadline means
any date certain for fulfilling any obligation or exercising any authority
established by or under any Federal rule, or by or under any court order
implementing any Federal rule.
12.
(a)A denial or substantial inexcusable delay in granting or
denying a petition under section 4(c) shall be considered final agency action
subject to review under section 702 of title 5, United States Code. A denial of
a congressional request under section 4(d) shall not be subject to judicial
review.
(b)Time limitation
on filing a civil actionNotwithstanding any other provisions of
law, an action seeking judicial review of a final agency action under this Act
may not be brought—
(1)in the case of a
final agency action denying a public petition under section 4(c) or continuing
without change, modifying, consolidating, or terminating a covered rule, more
than 30 days after the date of that agency action; or
(2)in the case of an action challenging a
delay in deciding on a petition for a rule under section 4(c), more than 1 year
after the period applicable to the rule under section 4(c)(4).
(c)Availability of
judicial review unaffectedExcept to the extent that there is a direct
conflict with the provisions of this Act, nothing in this Act is intended to
affect the availability or standard of judicial review for agency regulatory
action.
13.In this Act:
(1)The
term Administrator means the Administrator of the Office of
Information and Regulatory Affairs in the Office of Management and
Budget.
(2)The
term agency has the meaning given that term in section 551(1) of
title 5, United States Code.
(3)Appropriate
committee of the congressThe term appropriate committee of
the Congress means, with respect to a rule, each standing committee of
Congress having authority under the rules of the House of Representatives or
the Senate to report a bill to amend the provision of law under which the rule
is issued.
(4)The term major
rule means any rule that the Administrator of the Office of Information
and Regulatory Affairs in the Office of Management and Budget finds has
resulted in or is likely to result in—
(A)an annual effect
on the economy of $100,000,000 or more;
(B)a major increase
in costs or prices for consumers, individual industries, Federal, State, or
local government agencies, or geographic regions; or
(C)significant
adverse effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based enterprises to compete
with foreign-based enterprises in domestic and export markets.
(5)
(A)Subject to subparagraph (B), the term rule
means any agency statement of general applicability and future effect,
including agency guidance documents, designed to implement, interpret, or
prescribe law or policy, or describing the procedures or practices of an
agency, or intended to assist in such actions, but does not include—
(i)regulations or
other agency statements issued in accordance with formal rulemaking provisions
of sections 556 and 557 of title 5, United States Code, or in accordance with
other statutory formal rulemaking procedures required for such regulations or
statements;
(ii)regulations or
other agency statements that are limited to agency organization, management, or
personnel matters;
(iii)regulations or
other agency statements issued with respect to a military or foreign affairs
function of the United States;
(iv)regulations,
statements, or other agency actions that are reviewed and usually modified each
year (or more frequently), or are reviewed regularly and usually modified based
on changing economic or seasonal conditions;
(v)regulations or
other agency actions that grant an approval, license, permit, registration, or
similar authority or that grant or recognize an exemption or relieve a
restriction, or any agency action necessary to permit new or improved
applications of technology or to allow the manufacture, distribution, sale, or
use of a substance or product; and
(vi)regulations or
other agency statements that the Administrator certifies in writing are
necessary for the enforcement of the Federal criminal laws.
(B)For purposes of this Act, each set of rules designated in
the Code of Federal Regulations as a part shall be treated as one rule. Each
set of rules that do not appear in the Code of Federal Regulations and that are
comparable to a part of that Code under guidelines established by the
Administrator shall be treated as one rule.
(6)The term sunset review means a review of the
rule under this Act.
14.This Act shall have no
force or effect after the 10-year period beginning on the date of the enactment
of this Act.