[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 584 Reported in Senate (RS)]

<DOC>





                                                       Calendar No. 284
115th CONGRESS
  1st Session
                                 S. 584

                          [Report No. 115-194]

 To amend chapter 6 of title 5, United States Code (commonly known as 
 the ``Regulatory Flexibility Act ''), to ensure complete analysis of 
 potential impacts on small entities of rules, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 8, 2017

  Mr. Lankford (for himself, Mr. Risch, Mr. Grassley, Mr. Hatch, Mr. 
  Hoeven, Mr. Roberts, and Mr. Rubio) introduced the following bill; 
which was read twice and referred to the Committee on Homeland Security 
                        and Governmental Affairs

                           December 14, 2017

                Reported by Mr. Johnson, with amendments
  [Omit the part struck through and insert the part printed in italic]

_______________________________________________________________________

                                 A BILL


 
 To amend chapter 6 of title 5, United States Code (commonly known as 
 the ``Regulatory Flexibility Act ''), to ensure complete analysis of 
 potential impacts on small entities of rules, 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 ``Small Business Regulatory 
Flexibility Improvements Act''.

SEC. 2. CLARIFICATION AND EXPANSION OF RULES COVERED BY THE REGULATORY 
              FLEXIBILITY ACT.

    (a) In General.--Section 601(2) of title 5, United States Code, is 
amended to read as follows:
            ``(2) Rule.--The term `rule'--
                    ``(A) has the meaning given such the term in 
                section 551(4)  of this title; and
                    ``(B) does not include--
                            ``(i) a rule pertaining to the protection 
                        of the rights of and benefits for veterans or 
                        part 232 of title 32, of the Code of Federal 
                        Regulations (as in effect on July 1, 2014), or 
                        any successor provisions thereto; or
                            ``(ii) a rule of particular (and not 
                        general) applicability relating to rates, 
                        wages, corporate or financial structures or 
                        reorganizations thereof, prices, facilities, 
                        appliances, services, or allowances therefor or 
                        to valuations, costs or accounting, or 
                        practices relating to such rates, wages, 
                        structures, prices, appliances, services, or 
                        allowances.''.
    (b) Inclusion of Rules With Indirect Effects.--Section 601 of title 
5, United States Code, is amended by adding at the end the following:
            ``(9) Economic impact.--The term `economic impact' means, 
        with respect to a proposed or final rule--
                    ``(A) any direct economic effect on small entities 
                of such rule; and
                    ``(B) any indirect economic effect (including 
                compliance costs and effects on revenue) on small 
                entities which is reasonably foreseeable and results 
                from such rule (without regard to whether small 
                entities will be directly regulated by the rule).''.
    (c) Inclusion of Rules With Beneficial Effects.--
            (1) Initial regulatory flexibility analysis.--Section 
        603(c) of title 5, United States Code, is amended by striking 
        the first sentence and inserting ``Each initial regulatory 
        flexibility analysis shall also contain a detailed description 
        of alternatives to the proposed rule which minimize any adverse 
        significant economic impact or maximize any beneficial 
        significant economic impact on small entities.''.
            (2) Final regulatory flexibility analysis.--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 paragraph (7); and
                    (B) in paragraph (6), by striking ``minimize the 
                significant economic impact'' and inserting ``minimize 
                the adverse significant economic impact or maximize the 
                beneficial significant economic impact''.
    (d) Inclusion of Rules Affecting Tribal Organizations.--Section 
601(5) of title 5, United States Code, is amended by inserting ``and 
tribal organizations (as defined in section 4(l) of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 450b 5304(l))),'' 
after ``special districts,''.
    (e) Inclusion of Land Management Plans and Formal Rule Making.--
            (1) Initial regulatory flexibility analysis.--Section 
        603(a) of title 5, United States Code, is amended in the first 
        sentence--
                    (A) by striking ``or'' after ``proposed rule,''; 
                and
                    (B) by inserting ``or publishes a revision or 
                amendment to a land management plan,'' after ``United 
                States,''.
            (2) Final regulatory flexibility analysis.--Section 604(a) 
        of title 5, United States Code, is amended in the first 
        sentence--
                    (A) by striking ``or'' after ``proposed 
                rulemaking,''; and
                    (B) by inserting ``or adopts a revision or 
                amendment to a land management plan,'' after ``section 
                603(a),''.
            (3) Land management plan defined.--Section 601 of title 5, 
        United States Code, as amended by subsection (b), is amended by 
        adding at the end the following:
            ``(10) Land management plan.--
                    ``(A) In general.--The term `land management plan' 
                means--
                            ``(i) any plan developed by the Secretary 
                        of Agriculture under section 6 of the Forest 
                        and Rangeland Renewable Resources Planning Act 
                        of 1974 (16 U.S.C. 1604); and
                            ``(ii) any plan developed by the Secretary 
                        of the Interior under section 202 of the 
                        Federal Land Policy and Management Act of 1976 
                        (43 U.S.C. 1712).
                    ``(B) Revision.--The term `revision' means any 
                change to a land management plan which--
                            ``(i) in the case of a plan described in 
                        subparagraph (A)(i), is made under section 
                        6(f)(5) of the Forest and Rangeland Renewable 
                        Resources Planning Act of 1974 (16 U.S.C. 
                        1604(f)(5)); or
                            ``(ii) in the case of a plan described in 
                        subparagraph (A)(ii), is made under section 
                        1610. 5-6 of title 43, Code of Federal 
                        Regulations (or any successor regulation).
                    ``(C) Amendment.--The term `amendment' means any 
                change to a land management plan which--
                            ``(i) in the case of a plan described in 
                        subparagraph (A)(i), is made under section 
                        6(f)(4) of the Forest and Rangeland Renewable 
                        Resources Planning Act of 1974 (16 U.S.C. 
                        1604(f)(4)) and with respect to which the 
                        Secretary of Agriculture prepares a statement 
                        described in section 102(2)(C) of the National 
                        Environmental Policy Act of 1969 (42 U.S.C. 
                        4332(2)(C)); or
                            ``(ii) in the case of a plan described in 
                        subparagraph (A)(ii), is made under section 
                        1610.5-5 of title 43, Code of Federal 
                        Regulations (or any successor regulation), and 
                        with respect to which the Secretary of the 
                        Interior prepares a statement described in 
                        section 102(2)(C) of the National Environmental 
                        Policy Act of 1969 (42 U.S.C. 4332(2)(C)).''.
    (f) Inclusion of Certain Interpretive Rules Involving the Internal 
Revenue Laws.--
            (1) In general.--Section 603(a) of title 5, United States 
        Code, is amended by striking the period at the end and 
        inserting ``or a recordkeeping requirement, and without regard 
        to whether such requirement is imposed by statute or 
        regulation.''.
            (2) Collection of information.--Section 601(7) of title 5, 
        United States Code, is amended to read as follows:
            ``(7) Collection of information.--The term `collection of 
        information' has the meaning given the term in section 3502 of 
        title 44.''.
            (3) Recordkeeping requirement.--Section 601(8) of title 5, 
        United States Code, is amended to read as follows:
            ``(8) Recordkeeping requirement.--The term `recordkeeping 
        requirement' has the meaning given the term in section 3502 of 
        title 44.''.
    (g) Definition of Small Organization.--Section 601(4) of title 5, 
United States Code, is amended to read as follows:
            ``(4) Small organization.--
                    ``(A) In general.--The term `small organization' 
                means any nonprofit enterprise which, as of the 
                issuance of the a notice of proposed rule making--
                            ``(i) in the case of an enterprise which is 
                        described by a classification code of the North 
                        American Industrial Classification System, does 
                        not exceed the size standard established by the 
                        Administrator of the Small Business 
                        Administration pursuant to section 3 of the 
                        Small Business Act (15 U.S.C. 632) for small 
                        business concerns described by such 
                        classification code; and
                            ``(ii) in the case of any other enterprise, 
                        has a net worth that does not exceed $7,000,000 
                        and has not more than 500 employees.
                    ``(B) Local labor organizations.--In the case of 
                any local labor organization, subparagraph (A) shall be 
                applied without regard to any national or international 
                organization of which such local labor organization is 
                a part.
                    ``(C) Agency definitions.--Subparagraphs (A) and 
                (B) shall not apply to the extent that an agency, after 
                consultation with the Office of Advocacy of the Small 
                Business Administration and after opportunity for 
                public comment, establishes one or more definitions for 
                such term which are appropriate to the activities of 
                the agency and publishes such definitions in the 
                Federal Register.''.

SEC. 3. EXPANSION OF REPORT OF REGULATORY AGENDA.

    Section 602 of title 5, United States Code, is amended--
            (1) in subsection (a)--
                    (A) in paragraph (2), by striking ``, and'' at the 
                end and inserting a semicolon;
                    (B) by redesignating paragraph (3) as paragraph 
                (4); and
                    (C) by inserting after paragraph (2) the following:
            ``(3) a brief description of the sector of the North 
        American Industrial Classification System that is primarily 
        affected by any rule which the agency expects to propose or 
        promulgate which is likely to have a significant economic 
        impact on a substantial number of small entities; and''; and
            (2) in subsection (c), to read as follows:
    ``(c)(1) Not later than 3 days after the date on which an agency 
publishes a regulatory flexibility agenda in the Federal Register under 
subsection (a), the agency shall prominently display on the website of 
the agency a plain language summary of the information contained in the 
regulatory flexibility agenda.
    ``(2) The Office of Advocacy of the Small Business Administration 
shall compile, by agency, and prominently display on the website of the 
Small Business Administration a plain language summary of each 
regulatory flexibility agenda published under subsection (a) not later 
than 3 days after the date of publication in the Federal Register.''.

SEC. 4. REQUIREMENTS PROVIDING FOR MORE DETAILED ANALYSES.

    (a) Initial Regulatory Flexibility Analysis.--Section 603(b) of 
title 5, United States Code, is amended to read as follows:
    ``(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;
            ``(6) estimating the additional cumulative economic impact 
        of the proposed rule on small entities beyond that already 
        imposed on the class of small entities by the agency or why 
        such an estimate is not available;
            ``(7) describing any disproportionate economic impact on 
        small entities or a specific class of small entities; and
            ``(8) describing any impairment of the ability of small 
        entities to have access to credit.''.
    (b) Final Regulatory Flexibility Analysis.--
            (1) In general.--Section 604(a) of title 5, United States 
        Code, is amended--
                    (A) in paragraph (4)--
                            (i) by inserting ``detailed'' before 
                        ``description''; and
                            (ii) by striking ``an explanation'' and 
                        inserting ``a detailed explanation'';
                    (B) in paragraph (5), by inserting ``detailed'' 
                before ``description'';
                    (C) in paragraph (6)--
                            (i) by inserting ``detailed'' before 
                        ``description''; and
                            (ii) by striking ``; and'' at the end;
                    (D) in paragraph (7), as so redesignated, by 
                striking the period at the end and inserting ``; and''; 
                and
                    (E) by adding at the end the following:
            ``(8) a detailed description of any disproportionate 
        economic impact on small entities or a specific class of small 
        entities.''.
            (2) Inclusion of response to comments on certification of 
        proposed rule.--Section 604(a)(2) of title 5, United States 
        Code, is amended by inserting ``(or certification of the 
        proposed rule under section 605(b))'' after ``initial 
        regulatory flexibility analysis''.
            (3) Publication of analysis on website.--Section 604(b) of 
        title 5, United States Code, is amended to read as follows:
    ``(b) The agency shall make copies of the final regulatory 
flexibility analysis available to the public, including placement of 
the entire analysis on the website of the agency, and shall publish in 
the Federal Register the final regulatory flexibility analysis, or a 
summary thereof which includes the telephone number, mailing address, 
and link to the website where the complete 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 treated as satisfying any 
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 analysis a cross-reference to 
the specific portion of another agenda or analysis which is required by 
any other law and which satisfies the requirement.''.
    (d) Certifications.--Section 605(b) of title 5, United States Code, 
is amended by striking ``statement providing the factual basis for such 
certification.'' and inserting ``detailed statement providing the 
factual and legal basis for such certification. The detailed statement 
shall include an economic assessment or a summary thereof that is 
sufficiently detailed to support the certification of the agency.''.
    (e) Quantification Requirements.--Section 607 of title 5, United 
States Code, is amended to read as follows:

<DELETED>``SEC. 607. QUANTIFICATION REQUIREMENTS.</DELETED>

<DELETED>    ``In complying with sections 603 and 604, an agency shall 
provide--</DELETED>
        <DELETED>    ``(1) a quantifiable or numerical description of 
        the effects of the proposed or final rule and alternatives to 
        the proposed or final rule; or</DELETED>
        <DELETED>    ``(2) a more general descriptive statement and a 
        detailed statement explaining why quantification is not 
        practicable or reliable.''.</DELETED>
``Sec. 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 and alternatives to the 
        proposed or final rule; or
            ``(2) a more general descriptive statement and a detailed 
        statement explaining why quantification is not practicable or 
        reliable.''.

SEC. 5. REPEAL OF WAIVER AND DELAY AUTHORITY; ADDITIONAL POWERS OF THE 
              CHIEF COUNSEL FOR ADVOCACY.

    (a) In General.--Section 608 of title 5, United States Code, is 
amended to read as follows:
``Sec. 608. Additional powers of chief counsel for advocacy
    ``(a)(1) Not later than 270 days after the date of enactment of 
this section the Small Business Regulatory Flexibility Improvements 
Act, the Chief Counsel for Advocacy of the Small Business 
Administration shall, after opportunity for notice and comment under 
section 553, issue rules governing agency compliance with this chapter. 
The Chief Counsel may modify or amend such rules after notice and 
comment under section 553. This chapter (other than this subsection) 
shall not apply with respect to the issuance, modification, and 
amendment of rules under this paragraph.
    ``(2) An agency shall not issue rules which supplement the rules 
issued under subsection (a) unless such agency has first consulted with 
the Chief Counsel for Advocacy to ensure that the supplemental rules 
comply with this chapter and the rules issued under paragraph (1).
    ``(b) Notwithstanding any other law, the Chief Counsel for Advocacy 
of the Small Business Administration may intervene in any agency 
adjudication (unless such agency is authorized to impose a fine or 
penalty under such adjudication), and may inform the agency of the 
impact that any decision on the record may have on small entities. The 
Chief Counsel shall not initiate an appeal with respect to any 
adjudication in which the Chief Counsel intervenes under this 
subsection.
    ``(c) The Chief Counsel for Advocacy may file comments in response 
to any agency notice requesting comment, regardless of whether the 
agency is required to file a general notice of proposed rule making 
under section 553.''.
    (b) Conforming Amendments.--Section 611(a) of title 5, United 
States Code, is amended--
            (1) in paragraph (1), by striking ``608(b),'';
            (2) in paragraph (2), by striking ``608(b),''; and
            (3) in paragraph (3)--
                    (A) by striking subparagraph (B); and
                    (B) by striking ``(3)(A) A small entity'' and 
                inserting the following:
            ``(3) A small entity''.

SEC. 6. PROCEDURES FOR GATHERING COMMENTS.

    Section 609 of title 5, United States Code, is amended by striking 
subsection (b) and all that follows through the end of the section and 
inserting the following:
    ``(b)(1) Prior to publication of any proposed rule described in 
subsection (e), an agency making the rule shall notify the Chief 
Counsel for Advocacy of the Small Business Administration and provide 
the Chief Counsel with--
            ``(A) all materials prepared or utilized by the agency in 
        making the proposed rule, including the draft of the proposed 
        rule; and
            ``(B) information on the potential adverse and beneficial 
        economic impacts of the proposed rule on small entities and the 
        type of small entities that might be affected.
    ``(2) An agency shall not be required under paragraph (1) to 
provide the exact language of any draft if the rule--
            ``(A) relates to the internal revenue laws of the United 
        States; or
            ``(B) is proposed by an independent regulatory agency.
    ``(c) Not later than 15 days after the receipt of the materials and 
information under subsection (b), the Chief Counsel for Advocacy of the 
Small Business Administration shall--
            ``(1) identify small entities or representatives of small 
        entities or a combination of both for the purpose of obtaining 
        advice, input, and recommendations from those persons about the 
        potential economic impacts of the proposed rule and the 
        compliance of the agency with section 603; and
            ``(2) convene a review panel consisting of an employee from 
        the Office of Advocacy of the Small Business Administration, an 
        employee from the agency making the rule, and, in the case of 
        an agency other than an independent regulatory agency, an 
        employee from the Office of Information and Regulatory Affairs 
        of the Office of Management and Budget to review the materials 
        and information provided to the Chief Counsel under subsection 
        (b).
    ``(d)(1) Not later than 60 days after the review panel described in 
subsection (c)(2) is convened, the Chief Counsel for Advocacy of the 
Small Business Administration shall, after consultation with the 
members of the panel, submit a report to the agency and, in the case of 
an agency other than an independent regulatory agency, the Office of 
Information and Regulatory Affairs of the Office of Management and 
Budget.
    ``(2) Each report described in paragraph (1) shall include an 
assessment of the economic impact of the proposed rule on small 
entities, including--
            ``(A) an assessment of the impact of the proposed rule on 
        the cost that small entities pay for energy;
            ``(B) an assessment of the impact of the proposed rule on 
        startup costs for small entities; and
            ``(C) a discussion of any alternatives that will minimize 
        adverse significant economic impacts or maximize beneficial 
        significant economic impacts on small entities.
    ``(3) Each report described in paragraph (1) shall become part of 
the rule making record. In the publication of the proposed rule, the 
agency shall explain what actions, if any, the agency took in response 
to the report.
    ``(e) A proposed rule is described by this subsection if the 
Administrator of the Office of Information and Regulatory Affairs of 
the Office of Management and Budget, the head of the agency (or the 
delegatee of the head of the agency), or an independent regulatory 
agency determines that the proposed rule is likely to result in--
            ``(1) an annual effect on the economy of $100,000,000 or 
        more;
            ``(2) a major increase in costs or prices for consumers, 
        individual industries, Federal, State, or local governments, 
        tribal organizations, or geographic regions;
            ``(3) 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; or
            ``(4) a significant economic impact on a substantial number 
        of small entities.
    ``(f) Upon application by the agency, the Chief Counsel for 
Advocacy of the Small Business Administration may waive the 
requirements of subsections (b) through (e) if the Chief Counsel 
determines that compliance with the requirements of such subsections 
are impracticable, unnecessary, or contrary to the public interest.
    ``(g) A small entity or a representative of a small entity may 
submit a request that the agency provide a copy of the report prepared 
under subsection (d) and all materials and information provided to the 
Chief Counsel for Advocacy of the Small Business Administration under 
subsection (b). The agency receiving such request shall provide the 
report, materials, and information to the requesting small entity or 
representative of a small entity not later than 10 business days after 
receiving such request, except that the agency shall not disclose any 
information that is prohibited from disclosure to the public pursuant 
to section 552(b) of this title.
    ``(h) In this section, the term `independent regulatory agency' has 
the meaning given the term in section 3502 of title 44.''.

SEC. 7. PERIODIC REVIEW OF RULES.

    Section 610 of title 5, United States Code, is amended to read as 
follows:
``Sec. 610. Periodic review of rules
    ``(a) Not later than 180 days after the date of enactment of this 
section the Small Business Regulatory Flexibility Improvements Act, 
each agency shall publish in the Federal Register and place on website 
of the agency a plan for the periodic review of rules issued by the 
agency which the head of the agency determines have a significant 
economic impact on a substantial number of small entities. Such 
determination shall be made without regard to whether the agency 
performed an analysis under section 604. The purpose of the review 
shall be to determine whether such rules should be continued without 
change, or should be amended or rescinded, consistent with the stated 
objectives of applicable statutes, to minimize any adverse significant 
economic impacts or maximize any beneficial significant economic 
impacts on a substantial number of small entities. Such plan may be 
amended by the agency at any time by publishing the revision in the 
Federal Register and subsequently placing the amended plan on the 
website of the agency.
    ``(b) The plan shall provide for the review of all such agency 
rules existing on the date of enactment of this section the Small 
Business Regulatory Flexibility Improvements Act within 10 years of the 
date of publication of the plan in the Federal Register and for review 
of rules adopted after the date of enactment of this section the Small 
Business Regulatory Flexibility Improvements Act within 10 years after 
the publication of the final rule in the Federal Register. If the head 
of the agency determines that completion of the review of existing 
rules is not feasible by the established date, the head of the agency 
shall so certify in a statement published in the Federal Register and 
may extend the review for not longer than 2 years after publication of 
notice of extension in the Federal Register. Such certification and 
notice shall be sent to the Chief Counsel for Advocacy of the Small 
Business Administration and the Congress.
    ``(c) The plan shall include a section that details how an agency 
will conduct outreach to and meaningfully include small businesses 
(including small business concerns owned and controlled by women, small 
business concerns owned and controlled by veterans, and small business 
concerns owned and controlled by socially and economically 
disadvantaged individuals (as such terms are defined in section 3 and 
section 8(d)(3)(C) of the Small Business Act (15 U.S.C. 632 and 
637(d)(3)(C)))) for the purposes of carrying out this section. The 
agency shall include in this section a plan for how the agency will 
contact small businesses and gather their input on existing agency 
rules.
    ``(d) Each agency shall annually submit a report regarding the 
results of its review pursuant to such plan to Congress, the Chief 
Counsel for Advocacy of the Small Business Administration, and, in the 
case of agencies other than independent regulatory agencies (as defined 
in section 3502 of title 44), to the Administrator of the Office of 
Information and Regulatory Affairs of the Office of Management and 
Budget. Such report shall include the identification of any rule with 
respect to which the head of the agency made a determination described 
in paragraph (5) or (6) of subsection (e) and a detailed explanation of 
the reasons for such determination.
    ``(e) In reviewing a rule pursuant to subsections (a) through (d), 
the agency shall amend or rescind the rule to minimize any adverse 
significant economic impact on a substantial number of small entities 
or disproportionate economic impact on a specific class of small 
entities, or maximize any beneficial significant economic impact of the 
rule on a substantial number of small entities to the greatest extent 
possible, consistent with the stated objectives of applicable statutes. 
In amending or rescinding the rule, the agency shall consider the 
following factors:
            ``(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, territorial, 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 calculations cannot be made and reports 
        that determination in the annual report required under 
        subsection (d).
            ``(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.
    ``(f) Each year, each agency shall publish in the Federal Register 
and on its website a list of rules to be reviewed pursuant to such 
plan. The agency shall include in the publication a solicitation of 
public comments on any further inclusions or exclusions of rules from 
the list, and shall respond to such comments. Such publication shall 
include a brief description of the rule, the reason why the agency 
determined that it has a significant economic impact on a substantial 
number of small entities (without regard to whether it had prepared a 
final regulatory flexibility analysis for the rule), and request 
comments from the public, the Chief Counsel for Advocacy of the Small 
Business Administration, and the Regulatory Enforcement Ombudsman 
concerning the enforcement of the rule.''.

SEC. 8. JUDICIAL REVIEW OF COMPLIANCE WITH THE REQUIREMENTS OF THE 
              REGULATORY FLEXIBILITY ACT AVAILABLE AFTER PUBLICATION OF 
              THE FINAL RULE.

    (a) In General.--Section 611(a) of title 5, United States Code, is 
amended--
            (1) in paragraph (1), by striking ``final agency action'' 
        and inserting ``such rule'';
            (2) in paragraph (2), by inserting ``(or which would have 
        such jurisdiction if publication of the final rule constituted 
        final agency action)'' after ``provision of law,''; and
            (3) in paragraph (3)--
                    (A) by striking ``final agency action'' and 
                inserting ``publication of the final rule''; and
                    (B) by inserting ``, in the case of a rule for 
                which the date of final agency action is the same date 
                as the publication of the final rule,'' after ``except 
                that''.
    (b) Intervention by Chief Counsel for Advocacy.--Section 612(b) of 
title 5, United States Code, is amended by inserting before the first 
period ``or agency compliance with section 601, 603, 604, 605(b), 609, 
or 610''.

SEC. 9. JURISDICTION OF COURT OF APPEALS OVER RULES IMPLEMENTING THE 
              REGULATORY FLEXIBILITY ACT.

    (a) In General.--Section 2342 of title 28, United States Code, is 
amended--
            (1) in paragraph (6), by striking ``and'' at the end;
            (2) in paragraph (7), by striking the period at the end and 
        inserting ``; and''; and
            (3) by inserting after paragraph (7) the following:
            ``(8) all final rules under section 608(a) of title 5.''.
    (b) Conforming Amendments.--Section 2341(3) of title 28, United 
States Code, is amended--
            (1) in subparagraph (D), by striking ``and'' at the end;
            (2) in subparagraph (E), by striking the period at the end 
        and inserting ``; and''; and
            (3) by adding at the end the following:
                    ``(F) the Office of Advocacy of the Small Business 
                Administration, when the final rule is under section 
                608(a) of title 5.''.
    (c) Authorization To Intervene and Comment on Agency Compliance 
With Administrative Procedure.--Section 612(b) of title 5, United 
States Code, is amended by inserting ``chapter 5, and chapter 7,'' 
after ``this chapter,''.

SEC. 10. ESTABLISHMENT AND APPROVAL OF SMALL BUSINESS CONCERN SIZE 
              STANDARDS BY CHIEF COUNSEL FOR ADVOCACY.

    (a) In General.--Section 3(a)(2)(A) of the Small Business Act (15 
U.S.C. 632(a)(2)(A)) is amended to read as follows:
                    ``(A) In general.--In addition to the criteria 
                specified in paragraph (1)--
                            ``(i) the Administrator may specify 
                        detailed definitions or standards by which a 
                        business concern may be determined to be a 
                        small business concern for purposes of this Act 
                        or the Small Business Investment Act of 1958 
                        (15 U.S.C. 661 et seq.); and
                            ``(ii) the Chief Counsel for Advocacy may 
                        specify such definitions or standards for 
                        purposes of any other Act.''.
    (b) Approval by Chief Counsel.--Section 3(a)(2)(C)(iii) of the 
Small Business Act (15 U.S.C. 632(a)(2)(C)(iii)) is amended to read as 
follows:
                            ``(iii) except in the case of a size 
                        standard prescribed by the Administrator, is 
                        approved by the Chief Counsel for Advocacy.''.
    (c) Industry Variation.--Section 3(a)(3) of the Small Business Act 
(15 U.S.C. 632(a)(3)) is amended--
            (1) by inserting ``or Chief Counsel for Advocacy, as 
        appropriate,'' before ``shall ensure''; and
            (2) by inserting ``or Chief Counsel for Advocacy'' before 
        the period at the end.
    (d) Judicial Review of Size Standards Approved by Chief Counsel.--
Section 3(a) of the Small Business Act (15 U.S.C. 632(a)) is amended by 
adding at the end the following:
            ``(10) Judicial review of standards approved by chief 
        counsel.--In the case of an action for judicial review of a 
        rule which includes a definition or standard approved by the 
        Chief Counsel for Advocacy under this subsection, the party 
        seeking such review shall be entitled to join the Chief Counsel 
        as a party in such action.''.

SEC. 11. CLERICAL AMENDMENTS.

    (a) Definitions.--Section 601 of title 5, United States Code, is 
amended--
            (1) in paragraph (1)--
                    (A) by striking the semicolon at the end and 
                inserting a period; and
                    (B) by striking ``(1) the term'' and inserting the 
                following:
            ``(1) Agency.--The term'';
            (2) in paragraph (3)--
                    (A) by striking the semicolon at the end and 
                inserting a period; and
                    (B) by striking ``(3) the term'' and inserting the 
                following:
            ``(3) Small business.--The term'';
            (3) in paragraph (5)--
                    (A) by striking the semicolon at the end and 
                inserting a period; and
                    (B) by striking ``(5) the term'' and inserting the 
                following:
            ``(5) Small governmental jurisdiction.--The term''; and
            (4) in paragraph (6)--
                    (A) by striking ``; and'' and inserting a period; 
                and
                    (B) by striking ``(6) the term'' and inserting the 
                following:
            ``(6) Small entity.--The term''.
    (b) Incorporations by Reference and Certifications.--The heading of 
section 605 of title 5, United States Code, is amended to read as 
follows:

<DELETED>``SEC. 605. INCORPORATIONS BY REFERENCE AND 
              CERTIFICATIONS.''.</DELETED>

``Sec. 605. Incorporations by reference and certifications''.
    (c) Table of Sections.--The table of sections for chapter 6 of 
title 5, United States Code, is amended as follows:
            (1) By striking the item relating to section 605 and 
        inserting the following new item:

``605. Incorporations by reference and certifications.''.
            (2) By striking the item relating to section 607 and 
        inserting the following new item:

``607. Quantification requirements.''.
            (3) By striking the item relating to section 608 and 
        inserting the following:

``608. Additional powers of Chief Counsel for Advocacy.''.
    (d) Other Clerical Amendments to Chapter 6.--Chapter 6 of title 5, 
United States Code, is amended--
            (1) in section 603(d)--
                    (A) by striking paragraph (2);
                    (B) by striking ``(1) For a covered agency, as 
                defined in section 609(d)(2), each initial regulatory 
                flexibility analysis'' and inserting ``Each initial 
                regulatory flexibility analysis by an agency'';
                    (C) by striking ``(A) any'' and inserting ``(1) 
                any'';
                    (D) by striking ``(B) any'' and inserting ``(2) 
                any''; and
                    (E) by striking ``(C) advice'' and inserting ``(3) 
                advice''; and
            (2) in paragraph (7) of section 604(a), as so redesignated 
        by section 2(c)(2)(A) of this Act, by striking ``for a covered 
        agency, as defined in section 609(d)(2),''.

SEC. 12. AGENCY PREPARATION OF GUIDES.

    Section 212(a)(5) the Small Business Regulatory Enforcement 
Fairness Act of 1996 (5 U.S.C. 601 note) is amended to read as follows:
            ``(5) Agency preparation of guides.--The agency shall, in 
        its sole discretion, taking into account the subject matter of 
        the rule and the language of relevant statutes, ensure that the 
        guide is written using sufficiently plain language likely to be 
        understood by affected small entities. Agencies may prepare 
        separate guides covering groups or classes of similarly 
        affected small entities and may cooperate with associations of 
        small entities to distribute such guides. In developing guides, 
        agencies shall solicit input from affected small entities or 
        associations of affected small entities. An agency may prepare 
        guides and apply this section with respect to a rule or a group 
        of related rules.''.

SEC. 13. COMPTROLLER GENERAL REPORT.

    Not later than 90 days after the date of enactment of this Act, the 
Comptroller General of the United States shall complete and publish a 
study that examines whether the Chief Counsel for Advocacy of the Small 
Business Administration has the capacity and resources to carry out the 
duties of the Chief Counsel under this Act and the amendments made by 
this Act.

SEC. 14. WAIVER OF FINES FOR FIRST-TIME PAPERWORK VIOLATIONS BY SMALL 
              BUSINESSES.

    Section 3506 of title 44, United States Code (commonly referred to 
as the ``Paperwork Reduction Act''), is amended by adding at the end 
the following:
    ``(j) Small Businesses.--
            ``(1) Definitions.--In this subsection:
                    ``(A) First -time violation.--The term `first-time 
                violation' means a violation by a small business 
                concern of a requirement regarding collection of 
                information by an agency, where the small business 
                concern has not previously violated any similar 
                requirement regarding collection of information by that 
                same agency during the 5-year period preceding the 
                violation.
                    ``(B) Small business concern.--The term `small 
                business concern' has the meaning given the term in 
                section 3 of the Small Business Act (15 U.S.C. 632).
            ``(2) First -time violation.--
                    ``(A) In general.--Except as provided in paragraph 
                (3), in the case of a first-time violation by a small 
                business concern of a requirement regarding the 
                collection of information by an agency, the head of the 
                agency shall not impose a civil fine on the small 
                business concern.
                    ``(B) Determination.--For purposes of determining 
                whether to impose a civil fine on a small business 
                concern under subparagraph (A), the head of an agency 
                shall not take into account any violation by the small 
                business concern of a requirement regarding collection 
                of information by another agency.
                    ``(C) Exception.--An agency may impose a civil fine 
                on a small business concern for a first-time violation 
                if the head of the agency determines that--
                            ``(i) the violation has the potential to 
                        cause serious harm to the public interest;
                            ``(ii) failure to impose a civil fine would 
                        impede or interfere with the detection of 
                        criminal activity;
                            ``(iii) the violation is a violation of an 
                        internal revenue law or a law concerning the 
                        assessment or collection of any tax, debt, 
                        revenue, or receipt;
                            ``(iv) the violation was not corrected on 
                        or before the date that is 6 months after the 
                        date on which the small business concern 
                        receives notification of the violation in 
                        writing from the agency; or
                            ``(v) except as provided in paragraph (3), 
                        the violation presents a danger to the public 
                        health or safety.
            ``(3) Danger to public health or safety.--
                    ``(A) In general.--In any case in which the head of 
                an agency determines under paragraph (2)(C)(v) that a 
                violation presents a danger to the public health or 
                safety, the head of the agency may determine not to 
                impose a civil fine on the small business concern if 
                the violation is corrected not later than 24 hours 
                after receipt by the owner of the small business 
                concern of notification of the violation in writing.
                    ``(B) Considerations.--In determining whether to 
                allow a small business concern 24 hours to correct a 
                violation under subparagraph (A), the head of an agency 
                shall take into account all of the facts and 
                circumstances regarding the violation, including--
                            ``(i) the nature and seriousness of the 
                        violation, including whether the violation is 
                        technical or inadvertent or involves willful or 
                        criminal conduct;
                            ``(ii) whether the small business concern 
                        had made a good faith effort to comply with 
                        applicable laws and to remedy the violation 
                        within the shortest practicable period of time; 
                        and
                            ``(iii) whether the small business concern 
                        has obtained a significant economic benefit 
                        from the violation.
                    ``(C) Notice to congress.--In any case in which the 
                head of an agency imposes a civil fine on a small 
                business concern for a violation that presents a danger 
                to the public health or safety and does not allow the 
                small business concern 24 hours to correct the 
                violation under subparagraph (A), the head of the 
                agency shall notify Congress regarding the 
                determination not later than 60 days after the date on 
                which the civil fine is imposed by the agency.''.
                                                       Calendar No. 284

115th CONGRESS

  1st Session

                                 S. 584

                          [Report No. 115-194]

_______________________________________________________________________

                                 A BILL

 To amend chapter 6 of title 5, United States Code (commonly known as 
 the ``Regulatory Flexibility Act ''), to ensure complete analysis of 
 potential impacts on small entities of rules, and for other purposes.

_______________________________________________________________________

                           December 14, 2017

                        Reported with amendments