II 112th CONGRESS 1st Session S. 1030 IN THE SENATE OF THE UNITED STATES May 19, 2011 Ms. Snowe (for herself, Mr. Coburn, Mr. Enzi, Ms. Ayotte, Mr. Moran, Mr. Thune, Mr. Barrasso, Mr. Coats, and Mr. Isakson) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs A BILL To reform the regulatory process to ensure that small businesses are free to compete and to create jobs, and for other purposes.

1.

Short title

This Act may be cited as the Freedom from Restrictive Excessive Executive Demands and Onerous Mandates Act of 2011.

2.

Findings

Congress finds the following: (1)A vibrant and growing small business sector is critical to the recovery of the economy of the United States. (2)Regulations designed for application to large-scale entities have been applied uniformly to small businesses and other small entities, sometimes inhibiting the ability of small entities to create new jobs. (3)Uniform Federal regulatory and reporting requirements in many instances have imposed on small businesses and other small entities unnecessary and disproportionately burdensome demands, including legal, accounting, and consulting costs, thereby threatening the viability of small entities and the ability of small entities to compete and create new jobs in a global marketplace. (4)Since 1980, Federal agencies have been required to recognize and take account of the differences in the scale and resources of regulated entities, but in many instances have failed to do so. (5)In 2009, there were nearly 70,000 pages in the Federal Register, and, according to research by the Office of Advocacy of the Small Business Administration, the annual cost of Federal regulations totals $1,750,000,000,000. Small firms bear a disproportionate burden, paying approximately 36 percent more per employee than larger firms in annual regulatory compliance costs. (6)All agencies in the Federal Government should fully consider the costs, including indirect economic impacts and the potential for job loss, of proposed rules, periodically review existing regulations to determine their impact on small entities, and repeal regulations that are unnecessarily duplicative or have outlived their stated purpose. (7)It is the intention of Congress to amend chapter 6 of title 5, United States Code, to ensure that all impacts, including foreseeable indirect effects, of proposed and final rules are considered by agencies during the rulemaking process and that the agencies assess a full range of alternatives that will limit adverse economic consequences, enhance economic benefits, and fully address potential job loss.

3.

Including indirect economic impact in small entity analyses

Section 601 of title 5, United States Code, is amended by adding at the end the following: (9)the term economic impact means, with respect to a proposed or final rule— (A)the economic effects on small entities directly regulated by the rule; and (B)the reasonably foreseeable economic effects of the rule on small entities that— (i)purchase products or services from, sell products or services to, or otherwise conduct business with entities directly regulated by the rule; (ii)are directly regulated by other governmental entities as a result of the rule; or (iii)are not directly regulated by the agency as a result of the rule but are otherwise subject to other agency regulations as a result of the rule. .

4.

Judicial review to allow small entities to challenge proposed regulations

Section 611(a) of title 5, United States Code, is amended— (1)in paragraph (1), by inserting 603, after 601,; (2)in paragraph (2), by inserting 603, after 601,; (3)by striking paragraph (3) and inserting the following: (3)A small entity may seek such review during the 1-year period beginning on the date of final agency action, except that— (A)if a provision of law requires that an action challenging a final agency action be commenced before the expiration of 1 year, the lesser period shall apply to an action for judicial review under this section; and (B)in the case of noncompliance with section 603 or 605(b), a small entity may seek judicial review of agency compliance with such section before the close of the public comment period. ; and (4)in paragraph (4)— (A)in subparagraph (A), by striking , and and inserting a semicolon; (B)in subparagraph (B), by striking the period and inserting ; or; and (C)by adding at the end the following: (C)issuing an injunction prohibiting an agency from taking any agency action with respect to a rulemaking until that agency is in compliance with the requirements of section 603 or 605. .

5.

Periodic review

Section 610 of title 5, United States Code, is amended to read as follows:

610.

Periodic review of rules

(a)(1)Not later than 180 days after the date of enactment of the Freedom from Restrictive Excessive Executive Demands and Onerous Mandates Act of 2011, each agency shall establish a plan for the periodic review of— (A)each rule issued by the agency that the head of the agency determines has a significant economic impact on a substantial number of small entities, without regard to whether the agency performed an analysis under section 604 with respect to the rule; and (B)any small entity compliance guide required to be published by the agency under section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 601 note). (2)In reviewing rules and small entity compliance guides under paragraph (1), the agency shall determine whether the rules and guides should— (A)be amended or rescinded, consistent with the stated objectives of applicable statutes, to minimize any significant adverse economic impacts on a substantial number of small entities (including an estimate of any adverse impacts on job creation and employment by small entities); or (B)continue in effect without change. (3)Each agency shall publish the plan established under paragraph (1) in the Federal Register and on the Web site of the agency. (4)An agency may amend the plan established under paragraph (1) at any time by publishing the amendment in the Federal Register and on the Web site of the agency. (b)Each plan established under subsection (a) shall provide for— (1)the review of each rule and small entity compliance guide described in subsection (a)(1) in effect on the date of enactment of the Freedom from Restrictive Excessive Executive Demands and Onerous Mandates Act of 2011— (A)not later than 9 years after the date of publication of the plan in the Federal Register; and (B)every 9 years thereafter; and (2)the review of each rule adopted and small entity compliance guide described in subsection (a)(1) that is published after the date of enactment of the Freedom from Restrictive Excessive Executive Demands and Onerous Mandates Act of 2011— (A)not later than 9 years after the publication of the final rule in the Federal Register; and (B)every 9 years thereafter. (c)In reviewing rules under the plan required under subsection (a), the agency shall consider— (1)the continued need for the rule; (2)the nature of complaints received by the agency from small entities concerning the rule; (3)comments by the Regulatory Enforcement Ombudsman and the Chief Counsel for Advocacy of the Small Business Administration; (4)the complexity of the rule; (5)the extent to which the rule overlaps, duplicates, or conflicts with other Federal rules and, unless the head of the agency determines it to be infeasible, State and local rules; (6)the contribution of the rule to the cumulative economic impact of all Federal rules on the class of small entities affected by the rule, unless the head of the agency determines that such a calculation cannot be made; (7)the length of time since the rule has been evaluated, or the degree to which technology, economic conditions, or other factors have changed in the area affected by the rule; and (8)the economic impact of the rule, including— (A)the estimated number of small entities to which the rule will apply; (B)the estimated number of small entity jobs that will be lost or created due to the rule; and (C)the projected reporting, recordkeeping, and other compliance requirements of the proposed rule, including— (i)an estimate of the classes of small entities that will be subject to the requirement; and (ii)the type of professional skills necessary for preparation of the report or record. (d)(1)Each agency shall submit an annual report regarding the results of the review required under subsection (a) to— (A)Congress; and (B)in the case of an agency that is not an independent regulatory agency (as defined in section 3502(5) of title 44), the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget. (2)Each report required under paragraph (1) shall include a description of any rule or guide with respect to which the agency made a determination of infeasibility under paragraph (5) or (6) of subsection (c), together with a detailed explanation of the reasons for the determination. (e)Each agency shall publish in the Federal Register and on the Web site of the agency a list of the rules and small entity compliance guides to be reviewed under the plan required under subsection (a) that includes— (1)a brief description of each rule or guide; (2)for each rule, the reason why the head of the agency determined that the rule has a significant economic impact on a substantial number of small entities (without regard to whether the agency had prepared a final regulatory flexibility analysis for the rule); and (3)a request for comments from the public, the Chief Counsel for Advocacy of the Small Business Administration, and the Regulatory Enforcement Ombudsman concerning the enforcement of the rules or publication of the guides. (f)(1)Not later than 6 months after each date described in subsection (b)(1), the Inspector General for each agency shall— (A)determine whether the agency has conducted the review required under subsection (b) appropriately; and (B)notify the head of the agency of— (i)the results of the determination under subparagraph (A); and (ii)any issues preventing the Inspector General from determining that the agency has conducted the review under subsection (b) appropriately. (2)(A)Not later than 6 months after the date on which the head of an agency receives a notice under paragraph (1)(B) that the agency has not conducted the review under subsection (b) appropriately, the agency shall address the issues identified in the notice. (B)Not later than 30 days after the last day of the 6-month period described in subparagraph (A), the Inspector General for an agency that receives a notice described in subparagraph (A) shall— (i)determine whether the agency has addressed the issues identified in the notice; and (ii)notify Congress if the Inspector General determines that the agency has not addressed the issues identified in the notice; and (C)Not later than 30 days after the date on which the Inspector General for an agency transmits a notice under subparagraph (B)(ii), an amount equal to 1 percent of the amount appropriated for the fiscal year to the appropriations account of the agency that is used to pay salaries shall be rescinded. (D)Nothing in this paragraph may be construed to prevent Congress from acting to prevent a rescission under subparagraph (C).

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6.

Requiring small business review panels for additional agencies

(a)

Agencies

Section 609 of title 5, United States Code, is amended— (1)in subsection (b)— (A)by striking a covered agency the first place it appears and inserting an agency designated under subsection (d); and (B)by striking a covered agency each place it appears and inserting the agency; (2)by striking subsection (d), as amended by section 1100G(a) of Public Law 111–203 (124 Stat. 2112), and inserting the following: (d)(1)(A)On and after the date of enactment of the Freedom from Restrictive Excessive Executive Demands and Onerous Mandates Act of 2011, the Environmental Protection Agency and the Occupational Safety and Health Administration of the Department of Labor shall be— (i)agencies designated under this subsection; and (ii)subject to the requirements of subsection (b). (B)On and after the designated transfer date established under section 1062 of Public Law 111–203 (12 U.S.C. 5582), the Bureau of Consumer Financial Protection shall be— (i)an agency designated under this subsection; and (ii)subject to the requirements of subsection (b). (2)The Chief Counsel for Advocacy shall designate as agencies that shall be subject to the requirements of subsection (b) on and after the date of the designation— (A)3 agencies for the first year after the date of enactment of the Freedom from Restrictive Excessive Executive Demands and Onerous Mandates Act of 2011; (B)in addition to the agencies designated under subparagraph (A), 3 agencies for the second year after the date of enactment of the Freedom from Restrictive Excessive Executive Demands and Onerous Mandates Act of 2011; and (C)in addition to the agencies designated under subparagraphs (A) and (B), 3 agencies for the third year after the date of enactment of the Freedom from Restrictive Excessive Executive Demands and Onerous Mandates Act of 2011. (3)The Chief Counsel for Advocacy shall designate agencies under paragraph (2) based on the economic impact of the rules of the agency on small entities, beginning with agencies with the largest economic impact on small entities. ; and (3)in subsection (e)(1), by striking the covered agency and inserting the agency. (b)

Technical and conforming amendments

(1)

Section 603

Section 603(d) of title 5, United States Code, as added by section 1100G(b) of Public Law 111–203 (124 Stat. 2112), is amended— (A)in paragraph (1), by striking a covered agency, as defined in section 609(d)(2) and inserting the Bureau of Consumer Financial Protection; and (B)in paragraph (2), by striking A covered agency, as defined in section 609(d)(2), and inserting The Bureau of Consumer Financial Protection. (2)

Section 604

Section 604(a) of title 5, United States Code, is amended— (A)by redesignating the second paragraph designated as paragraph (6) (relating to covered agencies), as added by section 1100G(c)(3) of Public Law 111–203 (124 Stat. 2113), as paragraph (7); and (B)in paragraph (7), as so redesignated— (i)by striking a covered agency, as defined in section 609(d)(2) and inserting the Bureau of Consumer Financial Protection; and (ii)by striking the agency and inserting the Bureau. (3)

Effective date

The amendments made by this subsection shall take effect on the date of enactment of this Act and apply on and after the designated transfer date established under section 1062 of Public Law 111–203 (12 U.S.C. 5582).

7.

Expanding the Regulatory Flexibility Act to agency guidance documents

Section 601(2) of title 5, United States Code, is amended by inserting after public comment the following: and any significant guidance document, as defined in the Office of Management and Budget Final Bulletin for Agency Good Guidance Procedures (72 Fed. Reg. 3432; January 25, 2007).

8.

Requiring the Internal Revenue Service to consider small entity impact

(a)

In general

Section 603(a) of title 5, United States Code, is amended, in the fifth sentence, by striking but only and all that follows through the period at the end and inserting but only to the extent that such interpretative rules, or the statutes upon which such rules are based, impose on small entities a collection of information requirement or a recordkeeping requirement.. (b)

Definitions

Section 601 of title 5, United States Code, as amended by section 3 of this Act, is amended— (1)in paragraph (6), by striking and at the end; and (2)by striking paragraphs (7) and (8) and inserting the following: (7)the term collection of information has the meaning given that term in section 3502(3) of title 44; (8)the term recordkeeping requirement has the meaning given that term in section 3502(13) of title 44; and .

9.

Reporting on enforcement actions relating to small entities

Section 223 of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 601 note) is amended— (1)in subsection (a)— (A)by striking Each agency and inserting the following: (1)

Establishment of policy or program

Each agency ; and (B)by adding at the end the following: (2)

Review of civil penalties

Not later than 2 years after the date of enactment of the Freedom from Restrictive Excessive Executive Demands and Onerous Mandates Act of 2011, and every 2 years thereafter, each agency regulating the activities of small entities shall review the civil penalties imposed by the agency for violations of a statutory or regulatory requirement by a small entity to determine whether a reduction or waiver of the civil penalties is appropriate. ; and (2)in subsection (c)— (A)by striking Agencies shall report and all that follows through the scope and inserting Not later than 2 years after the date of enactment of the Freedom from Restrictive Excessive Executive Demands and Onerous Mandates Act of 2011, and every 2 years thereafter, each agency shall submit to the Committee on Small Business and Entrepreneurship and the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Small Business and the Committee on the Judiciary of the House of Representatives a report discussing the scope; and (B)by striking and the total amount of penalty reductions and waivers and inserting the total amount of penalty reductions and waivers, and the results of the most recent review under subsection (a)(2).

10.

Requiring more detailed small entity analyses

(a)

Initial regulatory flexibility analysis

Section 603 of title 5, United States Code, as amended by section 1100G(b) of Public Law 111–203 (124 Stat. 2112), is amended— (1)by striking subsection (b) and inserting the following: (b)Each initial regulatory flexibility analysis required under this section shall contain a detailed statement— (1)describing the reasons why action by the agency is being considered; (2)describing the objectives of, and legal basis for, the proposed rule; (3)estimating the number and type of small entities to which the proposed rule will apply; (4)describing the projected reporting, recordkeeping, and other compliance requirements of the proposed rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report and record; (5)describing all relevant Federal rules which may duplicate, overlap, or conflict with the proposed rule, or the reasons why such a description could not be provided; and (6)estimating the additional cumulative economic impact of the proposed rule on small entities, including job loss by small entities, beyond that already imposed on the class of small entities by the agency, or the reasons why such an estimate is not available. ; and (2)by adding at the end the following: (e)An agency shall notify the Chief Counsel for Advocacy of the Small Business Administration of any draft rules that may have a significant economic impact on a substantial number of small entities— (1)when the agency submits a draft rule to the Office of Information and Regulatory Affairs of the Office of Management and Budget under Executive Order 12866, if that order requires the submission; or (2)if no submission to the Office of Information and Regulatory Affairs is required— (A)a reasonable period before publication of the rule by the agency; and (B)in any event, not later than 3 months before the date on which the agency publishes the rule. . (b)

Final regulatory flexibility analysis

(1)

In general

Section 604(a) of title 5, United States Code, is amended— (A)by inserting detailed before description each place it appears; (B)in paragraph (2)— (i)by inserting detailed before statement each place it appears; and (ii)by inserting (or certification of the proposed rule under section 605(b)) after initial regulatory flexibility analysis; (C)in paragraph (4), by striking an explanation and inserting a detailed explanation; and (D)in paragraph (6) (relating to a description of steps taken to minimize significant economic impact), as added by section 1601 of the Small Business Jobs Act of 2010 (Public Law 111–240; 124 Stat. 2251), by inserting detailed before statement. (2)

Publication of analysis on web site, etc

Section 604(b) of title 5, United States Code, is amended to read as follows: (b)The agency shall— (1)make copies of the final regulatory flexibility analysis available to the public, including by publishing the entire final regulatory flexibility analysis on the Web site of the agency; and (2)publish in the Federal Register the final regulatory flexibility analysis, or a summary of the analysis that includes the telephone number, mailing address, and address of the Web site where the complete final regulatory flexibility analysis may be obtained. . (c)

Cross-References to other analyses

Section 605(a) of title 5, United States Code, is amended to read as follows: (a)A Federal agency shall be deemed to have satisfied a requirement regarding the content of a regulatory flexibility agenda or regulatory flexibility analysis under section 602, 603, or 604, if the Federal agency provides in the agenda or regulatory flexibility analysis a cross-reference to the specific portion of an agenda or analysis that is required by another law and that satisfies the requirement under section 602, 603, or 604. . (d)

Certifications

Section 605(b) of title 5, United States Code, is amended, in the second sentence, by striking statement providing the factual and inserting detailed statement providing the factual and legal. (e)

Quantification requirements

Section 607 of title 5, United States Code, is amended to read as follows:

607.

Quantification requirements

In complying with sections 603 and 604, an agency shall provide— (1)a quantifiable or numerical description of the effects of the proposed or final rule, including an estimate of the potential for job loss, and alternatives to the proposed or final rule; or (2)a more general descriptive statement regarding the potential for job loss and a detailed statement explaining why quantification under paragraph (1) is not practicable or reliable.

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11.

Ensuring that agencies consider small entity impact during the rulemaking process

Section 605(b) of title 5, United States Code, is amended— (1)by inserting (1) after (b); and (2)by adding at the end the following: (2)If, after publication of the certification required under paragraph (1), the head of the agency determines that there will be a significant economic impact on a substantial number of small entities, the agency shall comply with the requirements of section 603 before the publication of the final rule, by— (A)publishing an initial regulatory flexibility analysis for public comment; or (B)re-proposing the rule with an initial regulatory flexibility analysis. (3)The head of an agency may not make a certification relating to a rule under this subsection, unless the head of the agency has determined— (A)the average cost of the rule for small entities affected or reasonably presumed to be affected by the rule; (B)the number of small entities affected or reasonably presumed to be affected by the rule; and (C)the number of affected small entities for which that cost will be significant. (4)Before publishing a certification and a statement providing the factual basis for the certification under paragraph (1), the head of an agency shall— (A)transmit a copy of the certification and statement to the Chief Counsel for Advocacy of the Small Business Administration; and (B)consult with the Chief Counsel for Advocacy of the Small Business Administration on the accuracy of the certification and statement. .

12.

Additional powers of the Office of Advocacy

Section 203 of Public Law 94–305 (15 U.S.C. 634c) is amended— (1)in paragraph (5), by striking and at the end; (2)in paragraph (6), by striking the period at the end and inserting ; and; and (3)by inserting after paragraph (6) the following: (7)at the discretion of the Chief Counsel for Advocacy, comment on regulatory action by an agency that affects small businesses, without regard to whether the agency is required to file a notice of proposed rulemaking under section 553 of title 5, United States Code, with respect to the action. .

13.

Funding and offsets

(a)

Authorization

There are authorized to be appropriated to the Small Business Administration, for any costs of carrying out this Act and the amendments made by this Act (including the costs of hiring additional employees)— (1)$1,000,000 for fiscal year 2012; (2)$2,000,000 for fiscal year 2013; and (3)$3,000,000 for fiscal year 2014. (b)

Repeals

In order to offset the costs of carrying out this Act and the amendments made by this Act and to reduce the Federal deficit, the following provisions of law are repealed, effective on the date of enactment of this Act: (1)Section 21(n) of the Small Business Act (15 U.S.C. 648). (2)Section 27 of the Small Business Act (15 U.S.C. 654). (3)Section 1203(c) of the Energy Security and Efficiency Act of 2007 (15 U.S.C. 657h(c)).

14.

Technical and conforming amendments

(a)

Heading

Section 605 of title 5, United States Code, is amended in the section heading by striking Avoidance and all that follows and inserting the following: Incorporations by reference and certification.. (b)

Table of sections

The table of sections for chapter 6 of title 5, United States Code, is amended— (1)by striking the item relating to section 605 and inserting the following: 605. Incorporations by reference and certifications. ; and(2)by striking the item relating to section 607 inserting the following: 607. Quantification requirements. .