[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 869 Introduced in Senate (IS)]

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116th CONGRESS
  1st Session
                                 S. 869

    To affirm the authority of the President to require independent 
  regulatory agencies to comply with regulatory analysis requirements 
       applicable to executive agencies, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 26, 2019

Mr. Portman (for himself, Mr. Johnson, Ms. Collins, Ms. Ernst, and Mr. 
   Lankford) introduced the following bill; which was read twice and 
referred to the Committee on Homeland Security and Governmental Affairs

_______________________________________________________________________

                                 A BILL


 
    To affirm the authority of the President to require independent 
  regulatory agencies to comply with regulatory analysis requirements 
       applicable to executive agencies, 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 ``Independent Agency Regulatory 
Analysis Act''.

SEC. 2. DEFINITIONS.

    In this Act--
            (1) the term ``Administrator'' means the Administrator of 
        the Office of Information and Regulatory Affairs;
            (2) the term ``agency'' has the meaning given the term in 
        section 3502(1) of title 44, United States Code;
            (3) the term ``economically significant rule'' means any 
        rule that the Administrator determines is likely to--
                    (A) have an annual effect on the economy of 
                $100,000,000 or more; or
                    (B) 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;
            (4) the term ``independent regulatory agency'' has the 
        meaning given the term in section 3502(5) of title 44, United 
        States Code; and
            (5) the term ``rule''--
                    (A) means a rule, as that term is defined in 
                section 551 of title 5, United States Code; and
                    (B) does not include a rule of the Board of 
                Governors of the Federal Reserve System or the Federal 
                Open Market Committee relating to monetary policy.

SEC. 3. REGULATORY ANALYSIS BY INDEPENDENT AGENCIES.

    (a) In General.--The President may by Executive order require an 
independent regulatory agency to comply, to the extent permitted by 
law, with regulatory analysis requirements applicable to other 
agencies, including the requirements to--
            (1) identify the problem that the agency intends to address 
        by a new rule (including, where applicable, the failures of 
        private markets or public institutions that warrant new agency 
        action) and assess the significance of that problem;
            (2) examine whether any existing rule (or other law) has 
        created, or contributed to, the problem that a new rule is 
        intended to correct and whether the existing rule (or other 
        law) should be modified to achieve the intended goal of the new 
        rule more effectively;
            (3) identify and assess available alternatives to direct 
        regulation, including providing economic incentives to 
        encourage the desired behavior, or providing information upon 
        which choices can be made by the public;
            (4) consider to the extent reasonable in setting regulatory 
        priorities, the degree and nature of the risks posed by various 
        substances or activities within its jurisdiction;
            (5) design its rules in the most cost-effective manner to 
        achieve the regulatory objective and, in doing so, consider 
        incentives for innovation, consistency, predictability, the 
        costs of enforcement and compliance (to the Federal Government, 
        regulated entities, and the public), flexibility, distributive 
        impacts, and equity;
            (6) assess the costs and the benefits of the intended rule 
        and, recognizing some costs and benefits are difficult to 
        quantify, propose or adopt a rule only upon a reasoned 
        determination that the benefits of the rule justify its costs;
            (7) base its rulemaking decisions on the best reasonably 
        obtainable scientific, technical, economic, and other 
        information concerning the need for, and consequences of, the 
        intended rule;
            (8) identify and assess alternative forms of regulation 
        and, to the extent feasible, specify performance objectives, 
        rather than specifying the behavior or manner of compliance 
        that regulated entities must adopt;
            (9) seek the views of appropriate State, local, and Tribal 
        officials before imposing regulatory requirements that might 
        significantly or uniquely affect State, local, or Tribal 
        governmental entities, whenever feasible;
            (10) avoid rules that are inconsistent or incompatible 
        with, or duplicative of, other rules of the independent 
        regulatory agency or other agencies;
            (11) tailor rules to impose the least burden on society, 
        including individuals, businesses of differing sizes, and other 
        entities (including small communities and governmental 
        entities), consistent with achieving the regulatory objectives, 
        and taking into account, among other factors, and to the extent 
        practicable, the cost of cumulative rules;
            (12) draft each rule to be simple and easy to understand, 
        with the goal of minimizing the potential for uncertainty and 
        litigation arising from uncertainty; and
            (13) periodically review its existing economically 
        significant rules to determine whether any such rules should be 
        modified, streamlined, expanded, or repealed so as to make the 
        regulatory program of the agency more effective or less 
        burdensome in achieving the regulatory objectives.
    (b) Economically Significant Rules.--For any proposed or final rule 
identified by an independent regulatory agency as, or determined by the 
Administrator to be, an economically significant rule, the President 
may by Executive order require the independent regulatory agency to 
provide to the Administrator and publish with the proposed and final 
rule the following information, to the extent permitted by law:
            (1) An assessment, including the underlying analysis, of 
        benefits anticipated from the rule together with, to the extent 
        feasible, a quantification of those benefits.
            (2) An assessment, including the underlying analysis, of 
        costs anticipated from the rule together with, to the extent 
        feasible, a quantification of those costs.
            (3) An assessment, including the underlying analysis, of 
        costs and benefits of potentially effective and reasonably 
        feasible alternatives to the rule, identified by the agencies 
        or the public, including improving existing regulations and 
        reasonably viable nonregulatory actions, and an explanation of 
        why the planned regulatory action is preferable to the 
        identified potential alternatives.
    (c) Review by Office of Information and Regulatory Affairs.--
            (1) Requirement to seek review.--The President may, by 
        Executive order, require an independent regulatory agency to 
        submit to the Administrator for review--
                    (A) any proposed economically significant rule, 
                either prior to publication of the notice of proposed 
                rulemaking or, if the head of the independent 
                regulatory agency elects, during the general public 
                comment period; and
                    (B) any final economically significant rule, prior 
                to publication of the final rule.
            (2) Nonbinding assessment.--An Executive order issued under 
        this Act may require that, not later than 90 days after the 
        independent regulatory agency submits a proposed or final 
        economically significant rule for review, the Administrator 
        submit for inclusion in the rulemaking record the assessment of 
        the Administrator of the extent to which the independent 
        regulatory agency has complied with any of the regulatory 
        analysis requirements made applicable by Executive order.
            (3) Determination and explanation by independent agency.--
        An Executive order issued under this Act may require that, if 
        the Administrator concludes under paragraph (2) that the 
        independent regulatory agency did not comply with 1 or more 
        requirements of the Executive order with respect to a proposed 
        or final economically significant rule, the head of the 
        independent regulatory agency that issued the economically 
        significant rule shall include with the final rule--
                    (A) a determination that the rule complies with the 
                specified requirement or requirements and an 
                explanation of that determination; and
                    (B) if applicable, an explanation why the 
                independent regulatory agency did not comply with one 
                or more of the specified requirements, based on the 
                statutory provision authorizing the rule.

SEC. 4. LIMITATION ON JUDICIAL REVIEW.

    (a) In General.--The compliance or noncompliance of an independent 
regulatory agency with the requirements of an Executive order issued 
under this Act shall not be subject to judicial review.
    (b) Agency Record.--When an action for judicial review of a rule 
promulgated by an independent regulatory agency is instituted, any 
determination, analysis, or explanation produced by the independent 
regulatory agency, and any assessment produced by the Administrator, 
pursuant to an Executive order issued under this Act, shall constitute 
part of the whole record of agency action in connection with the 
review.
    (c) Rule of Construction.--Nothing in this section shall be 
construed to bar judicial review of any other impact statement or 
similar analysis required by any other provision of law if judicial 
review of the statement or analysis is otherwise permitted by law.

SEC. 5. RULE OF CONSTRUCTION.

    Nothing in this Act shall be construed to limit the authority of 
the President with respect to independent regulatory agencies under any 
other applicable law.
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