[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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