[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 602 Introduced in Senate (IS)]
112th CONGRESS
1st Session
S. 602
To require regulatory reform.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 16, 2011
Ms. Collins (for herself, Mr. Roberts, and Mr. Barrasso) introduced the
following bill; which was read twice and referred to the Committee on
Homeland Security and Governmental Affairs
_______________________________________________________________________
A BILL
To require regulatory reform.
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 ``Clearing Unnecessary Regulatory
Burdens Act'' or the ``CURB Act''.
SEC. 2. REGULATORY REFORM.
(a) Definitions.--In this section--
(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 same meaning as in section
3502(1) of title 44, United States Code;
(3) the term ``economically significant guidance document''
means a significant guidance document that may reasonably be
anticipated to lead to an annual effect on the economy of
$100,000,000 or more or adversely affect in a material way the
economy or a sector of the economy, except that economically
significant guidance documents do not include guidance
documents on Federal expenditures and receipts;
(4) the term ``disseminated''--
(A) means prepared by an agency and distributed to
the public or regulated entities; and
(B) does not include--
(i) distribution limited to Federal
Government employees;
(ii) intra- or interagency use or sharing
of Federal Government information; and
(iii) responses to requests for agency
records under section 552 of title 5, United
States Code (commonly referred to as the
``Freedom of Information Act''), section 552a
of title 5, United States Code, (commonly
referred to as the ``Privacy Act''), the
Federal Advisory Committee Act (5 U.S.C. App.),
or other similar laws;
(5) the term ``guidance document'' means an agency
statement of general applicability and future effect, other
than a regulatory action, that sets forth a policy on a
statutory, regulatory or technical issue or an interpretation
of a statutory or regulatory issue;
(6) the term ``regulation'' means an agency statement of
general applicability and future effect, which the agency
intends to have the force and effect of law, that is designed
to implement, interpret, or prescribe law or policy or to
describe the procedure or practice requirements of an agency;
(7) the term ``regulatory action'' means any substantive
action by an agency (normally published in the Federal
Register) that promulgates or is expected to lead to the
promulgation of a final regulation, including notices of
inquiry, advance notices of proposed rulemaking, and notices of
proposed rulemaking;
(8) the term ``significant guidance document''--
(A) means a guidance document disseminated to
regulated entities or the general public that may
reasonably be anticipated to--
(i) lead to an annual effect on the economy
of $100,000,000 or more or affect in a material
way the economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or State,
local, or tribal governments or communities;
(ii) create a serious inconsistency or
otherwise interfere with an action taken or
planned by another agency;
(iii) materially alter the budgetary impact
of entitlements, grants, user fees, or loan
programs or the rights and obligations of
recipients thereof; or
(iv) raise novel legal or policy issues
arising out of legal mandates and the
priorities, principles, and provisions of this
section; and
(B) does not include--
(i) legal advisory opinions for internal
Executive Branch use and not for release (such
as Department of Justice Office of Legal
Counsel opinions);
(ii) briefs and other positions taken by
agencies in investigations, pre-litigation,
litigation, or other enforcement proceedings;
(iii) speeches;
(iv) editorials;
(v) media interviews;
(vi) press materials;
(vii) congressional correspondence;
(viii) guidance documents that pertain to a
military or foreign affairs function of the
United States (other than guidance on
procurement or the import or export of non-
defense articles and services);
(ix) grant solicitations;
(x) warning letters;
(xi) case or investigatory letters
responding to complaints involving fact-
specific determinations;
(xii) purely internal agency policies;
(xiii) guidance documents that pertain to
the use, operation or control of a government
facility;
(xiv) internal guidance documents directed
solely to other agencies; and
(xv) any other category of significant
guidance documents exempted by an agency head
in consultation with the Administrator; and
(9) the term ``significant regulatory action'' means any
regulatory action that is likely to result in a regulation that
may--
(A) have an annual effect on the economy of
$100,000,000 or more or adversely affect in a material
way the economy, a sector of the economy, productivity,
competition, jobs, the environment, public health or
safety, or State, local, or tribal governments or
communities;
(B) create a serious inconsistency or otherwise
interfere with an action taken or planned by another
agency;
(C) materially alter the budgetary impact of
entitlements, grants, user fees, or loan programs or
the rights and obligations of recipients thereof; or
(D) raise novel legal or policy issues arising out
of legal mandates and the priorities, principles, and
provisions of this section.
(b) Agency Assessment of Significant Regulatory Actions.--For each
significant regulatory action, each agency shall submit, at such times
specified by the Administrator, a report to the Office of Information
and Regulatory Affairs that includes--
(1) an assessment, including the underlying analysis, of
benefits anticipated from the significant regulatory action,
such as--
(A) the promotion of the efficient functioning of
the economy and private markets;
(B) the enhancement of health and safety;
(C) the protection of the natural environment; and
(D) the elimination or reduction of discrimination
or bias;
(2) to the extent feasible, a quantification of the
benefits assessed under paragraph (1);
(3) an assessment, including the underlying analysis, of
costs anticipated from the regulatory action, such as--
(A) the direct cost both to the Federal Government
in administering the significant regulatory action and
to businesses, consumers, and others (including State,
local, and tribal officials) in complying with the
regulation; and
(B) any adverse effects on the efficient
functioning of the economy, private markets (including
productivity, employment, and competitiveness), health,
safety, the natural environment, job creation, the
prices of consumer goods, and energy costs;
(4) to the extent feasible, a quantification of the costs
assessed under paragraph (3); and
(5) an assessment, including the underlying analysis, of
costs and benefits of potentially effective and reasonably
feasible alternatives to the planned significant regulatory
action, identified by the agency or the public (including
improving the current regulation and reasonably viable
nonregulatory actions), and an explanation why the planned
regulatory action is preferable to the identified potential
alternatives.
(c) Agency Good Guidance Practices.--
(1) Agency standards for significant guidance documents.--
(A) Approval procedures.--
(i) In general.--Each agency shall develop
or have written procedures for the approval of
significant guidance documents, which shall
ensure that the issuance of significant
guidance documents is approved by appropriate
senior agency officials.
(ii) Requirement.--Employees of an agency
may not depart from significant guidance
documents without appropriate justification and
supervisory concurrence.
(B) Standard elements.--Each significant guidance
document--
(i) shall--
(I) include the term ``guidance''
or its functional equivalent;
(II) identify the agency or office
issuing the document;
(III) identify the activity to
which and the persons to whom the
significant guidance document applies;
(IV) include the date of issuance;
(V) note if the significant
guidance document is a revision to a
previously issued guidance document
and, if so, identify the document that
the significant guidance document
replaces;
(VI) provide the title of the
document and a document identification
number; and
(VII) include the citation to the
statutory provision or regulation (in
Code of Federal Regulations format)
which the significant guidance document
applies to or interprets; and
(ii) shall not include mandatory terms such
as ``shall'', ``must'', ``required'', or
``requirement'' unless--
(I) the agency is using those terms
to describe a statutory or regulatory
requirement; or
(II) the terminology is addressed
to agency staff and will not foreclose
agency consideration of positions
advanced by affected private parties.
(2) Public access and feedback for significant guidance
documents.--
(A) Internet access.--
(i) In general.--Each agency shall--
(I) maintain on the Web site for
the agency, or as a link on the Web
site of the agency to the electronic
list posted on a Web site of a
component of the agency a list of the
significant guidance documents in
effect of the agency, including a link
to the text of each significant
guidance document that is in effect;
and
(II) not later than 30 days after
the date on which a significant
guidance document is issued, update the
list described in clause (i).
(ii) List requirements.--The list described
in subparagraph (A)(i) shall--
(I) include the name of each--
(aa) significant guidance
document;
(bb) document
identification number; and
(cc) issuance and revision
dates; and
(II) identify significant guidance
documents that have been added,
revised, or withdrawn in the preceding
year.
(B) Public feedback.--
(i) In general.--Each agency shall
establish and clearly advertise on the Web site
for the agency a means for the public to
electronically submit--
(I) comments on significant
guidance documents; and
(II) a request for issuance,
reconsideration, modification, or
rescission of significant guidance
documents.
(ii) Agency response.--Any comments or
requests submitted under subparagraph (A)--
(I) are for the benefit of the
agency; and
(II) shall not require a formal
response from the agency.
(iii) Office for public comments.--
(I) In general.--Each agency shall
designate an office to receive and
address complaints from the public
relating to--
(aa) the failure of the
agency to follow the procedures
described in this section; or
(bb) the failure to treat a
significant guidance document
as a binding requirement.
(II) Web site.--The agency shall
provide, on the Web site of the agency,
the name and contact information for
the office designated under clause (i).
(3) Notice and public comment for economically significant
guidance documents.--
(A) In general.--Except as provided in paragraph
(2), in preparing a draft of an economically
significant guidance document, and before issuance of
the final significant guidance document, each agency
shall--
(i) publish a notice in the Federal
Register announcing that the draft document is
available;
(ii) post the draft document on the
Internet and make a tangible copy of that
document publicly available (or notify the
public how the public can review the guidance
document if the document is not in a format
that permits such electronic posting with
reasonable efforts);
(iii) invite public comment on the draft
document; and
(iv) prepare and post on the Web site of
the agency a document with responses of the
agency to public comments.
(B) Exceptions.--In consultation with the
Administrator, an agency head may identify a particular
economically significant guidance document or category
of such documents for which the procedures of this
subsection are not feasible or appropriate.
(4) Emergencies.--
(A) In general.--In emergency situations or when an
agency is obligated by law to act more quickly than
normal review procedures allow, the agency shall notify
the Administrator as soon as possible and, to the
extent practicable, comply with this subsection.
(B) Significant guidance documents subject to
statutory or court-imposed deadline.--For a significant
guidance document that is governed by a statutory or
court-imposed deadline, the agency shall, to the extent
practicable, schedule the proceedings of the agency to
permit sufficient time to comply with this subsection.
(5) Effective date.--This section shall take effect 60 days
after the date of enactment of this Act.
SEC. 3. REDUCTION OR WAIVER OF CIVIL PENALTIES IMPOSED ON SMALL
ENTITIES.
(a) In General.--Chapter 6 of title 5, United States Code, is
amended by adding at the end the following:
``Sec. 613. Reduction or waiver of civil penalties imposed on small
entities
``(a) Upon the request of a small entity, a Regional Advocate of
the Office of Advocacy of the Small Business Administration (referred
to in this section as a `Regional Advocate') shall submit to an agency
a request that the agency reduce or waive a civil penalty imposed on
the small entity, if the Regional Advocate determines that--
``(1) the civil penalty was the result of a first-time
violation by the small entity of a requirement to report
information to the agency; and
``(2) the reduction or waiver is consistent with the
conditions and exclusions described in paragraphs (1), (3),
(4), (5), and (6) of section 223(b) of the Small Business
Regulatory Enforcement Fairness Act of 1996 (Public Law 104-
121; 110 Stat. 862).
``(b) Not later than 60 days after the receipt of a request from a
Regional Advocate under subsection (a), an agency shall send written
notice of the decision of the agency with respect to the request,
together with the reasons for the decision, to the Regional Advocate
that made the request and the relevant small entity.
``(c) The Chief Counsel for Advocacy shall submit to Congress an
annual report summarizing--
``(1) the requests received by the Regional Advocates from
small entities under subsection (a); and
``(2) the requests submitted by the Regional Advocates to
agencies under subsection (a) and the results of the
requests.''.
(b) Technical and Conforming Amendment.--The table of sections for
chapter 6 of title 5, United States Code, is amended by adding at the
end the following:
``613. Reduction or waiver of civil penalties imposed on small
entities.''.
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