[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 1411 Introduced in Senate (IS)]

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118th CONGRESS
  1st Session
                                S. 1411

 To amend title 5, United States Code, to require greater transparency 
for Federal regulatory decisions that impact small businesses, and for 
                            other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 3, 2023

   Ms. Ernst introduced the following bill; which was read twice and 
referred to the Committee on Homeland Security and Governmental Affairs

_______________________________________________________________________

                                 A BILL


 
 To amend title 5, United States Code, to require greater transparency 
for Federal regulatory decisions that impact small businesses, 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 ``Prove It Act of 2023''.

SEC. 2. INITIAL REGULATORY FLEXIBILITY ANALYSIS.

    (a) In General.--Chapter 6 of title 5, United States Code, is 
amended--
            (1) in section 603(b)--
                    (A) in paragraph (5), by striking the period at the 
                end and inserting ``; and''; and
                    (B) by adding at the end the following:
            ``(6) where feasible, any reasonably foreseeable potential 
        indirect costs the proposed rule may impose on small entities, 
        which shall include small entities that--
                    ``(A) purchase products or services from, sell 
                products or services to, or otherwise conduct business 
                with entities directly regulated by the rule;
                    ``(B) are directly regulated by other governmental 
                entities as a result of the rule; or
                    ``(C) are not directly regulated by the agency as a 
                result of the rule but are otherwise subject to other 
                agency rules as a result of the rule.''; and
            (2) in section 605(b), by striking ``The agency'' and 
        inserting ``Not later than 10 days after completing the 
        certification described in this paragraph, the agency''; and
            (3) by inserting after section 605 the following:
``Sec. 605A. Review procedures relating to initial regulatory 
              flexibility analysis certifications
    ``(a) Filing a Petition To Review Agency Certification of a 
Proposed Rule.--
            ``(1) In general.--Any small entity, group of small 
        entities, or organization representing the interests of small 
        entities may petition the Chief Counsel for Advocacy of the 
        Small Business Administration (in this section referred to as 
        the `Chief Counsel') to review a certification published under 
        section 605(b) that a proposed rule will not, if promulgated, 
        have a significant economic impact on a substantial number of 
        small entities.
            ``(2) Form.--The Chief Counsel shall--
                    ``(A) determine the method, timing, and form of 
                disseminating a petition described in paragraph (1); 
                and
                    ``(B) display the information described in 
                subparagraph (A) on the website of the Office of 
                Advocacy of the Small Business Administration in a 
                conspicuous manner.
            ``(3) Contents.--Each petition described in paragraph (1) 
        with respect to a certification published under section 605(a) 
        for a proposed rule shall clearly and concisely--
                    ``(A) specify the name of the petitioner and a 
                telephone number, a mailing address, and an email 
                address that the Chief Counsel may use to communicate 
                with the petitioner;
                    ``(B) if the petitioner is an organization, provide 
                additional identifying information, as applicable, 
                including the organizational or corporate status of the 
                petitioner, the State of incorporation of the 
                petitioner, the registered agent of the petitioner, the 
                interest of the petitioner in representing small 
                entities affected by the proposed rule and the 
                certification at issue, and the name and authority of 
                the individual who signed the petition on behalf of the 
                organizational or corporate petitioner;
                    ``(C) present the specific problems or issues that 
                the petitioner believes should be addressed or 
                considered through a review of the certification, such 
                as--
                            ``(i) any specific circumstances in which 
                        the determination of the certification that the 
                        proposed rule will not, if promulgated, have a 
                        significant economic impact on a substantial 
                        number of small entities is incorrect, 
                        incomplete, or inadequate; and
                            ``(ii) why the proposed rule would, if 
                        promulgated, have a significant economic impact 
                        on a substantial number of small entities;
                    ``(D) cite, enclose, or reference any relevant and 
                non-protected or confidential technical, scientific, or 
                other data or information supporting any assertion of 
                the problems or issues with the certification;
                    ``(E) present a proposed solution to the problems 
                or issues raised in the petition, including potential 
                regulatory or compliance alternatives to the proposed 
                rule;
                    ``(F) provide an analysis, discussion, or argument 
                that explains how the proposed solution described in 
                subparagraph (E) solves the problems or issues raised 
                in the petition; and
                    ``(G) cite, enclose, or reference any other 
                publicly available data or information supporting the 
                proposed solution described in subparagraph (E).
    ``(b) Consultation.--
            ``(1) In general.--Any entity desiring to file a petition 
        under subsection (a) may request a consultation with the Chief 
        Counsel before or after filing the petition.
            ``(2) Form.--The Chief Counsel shall--
                    ``(A) determine the method, timing, and form of 
                requesting a consultation with the Chief Counsel under 
                paragraph (1); and
                    ``(B) display the information described in 
                subparagraph (A) on the website of the Office of 
                Advocacy of the Small Business Administration in a 
                conspicuous manner.
            ``(3) Limitations on assistance.--In any consultation 
        regarding a petition under paragraph (1), the Chief Counsel--
                    ``(A) may only--
                            ``(i) describe the process for filing, 
                        docketing, tracking, closing, amending, 
                        withdrawing, and resolving the petition; and
                            ``(ii) assist the petitioner to clarify the 
                        petition so that the Chief Counsel is able to 
                        understand the issues of concern to the 
                        petitioner; and
                    ``(B) may not advise a petitioner on whether the 
                petition should be amended or withdrawn.
    ``(c) Prima Facie Review.--
            ``(1) In general.--Upon receipt of a petition filed under 
        this section with respect to the certification of a proposed 
        rule, the Chief Counsel shall make an initial prima facie 
        determination on the merit of the issues raised in petition as 
        to the properness of the certification and whether the proposed 
        rule in question would, if promulgated, have a significant 
        economic impact on a substantial number of small entities.
            ``(2) No further review.--If, following the prima facie 
        review of a petition under paragraph (1), the Chief Counsel 
        determines that the issues raised in the petition do not merit 
        further review by the Chief Counsel, the Chief Counsel shall, 
        not later than 10 days after receipt of the petition, inform 
        the petitioner of that determination and the matter shall be 
        closed.
            ``(3) Further review.--If, following the prima facie review 
        of a petition under paragraph (1), the Chief Counsel determines 
        that the issues raised in the petition do merit further review 
        by the Chief Counsel, the Chief Counsel shall, not later than 
        10 days after receipt of the petition, inform the petitioner 
        and the agency that promulgated the proposed rule that the 
        Chief Counsel shall conduct a full review of the certification 
        and proposed rule to which the petition relates under 
        subsection (d).
    ``(d) Full Review.--
            ``(1) Considerations; meeting.--In conducting a full review 
        under this subsection with respect to the certification made 
        under section 605(b), the Chief Counsel shall--
                    ``(A) consider--
                            ``(i) whether the agency that promulgated 
                        the proposed rule correctly determined which 
                        small entities will be affected by the proposed 
                        rule;
                            ``(ii) whether the agency considered 
                        adequate economic data to assess whether the 
                        proposed rule will have a significant impact on 
                        a substantial number of small entities; and
                            ``(iii) the economic implications of the 
                        proposed rule; and
                    ``(B) convene a virtual or in-person meeting 
                between the Chief Counsel, the petitioner, 
                representatives of the agency that promulgated the 
                proposed rule who are determined appropriate by the 
                Chief Counsel, and the Administrator of the Office of 
                Information and Regulatory affairs to--
                            ``(i) provide positions and support for 
                        those positions regarding the certification of 
                        the proposed rule; and
                            ``(ii) allow the Chief Counsel to ask 
                        questions as the Chief Counsel determines 
                        necessary to make a final determination as to 
                        the validity of the certification.
            ``(2) Publication.--Not later than 30 days after the date 
        on which the Chief Counsel begins a full review of a 
        certification made with respect to a proposed rule under 
        paragraph (1), the Chief Counsel shall submit to the petitioner 
        and the agency that promulgated the proposed rule, and publish 
        in the Federal Register and on the website of the Office of 
        Advocacy of the Small Business Administration, the results of 
        the review conducted under paragraph (1).
            ``(3) Requirement to perform analyses.--If, after a full 
        review of a certification made with respect to a proposed rule 
        under paragraph (1), the Chief Counsel determines that the 
        proposed rule will, if promulgated, have a significant economic 
        impact on a substantial number of small entities, the agency 
        that promulgated the proposed rule shall perform an initial 
        regulatory flexibility analysis and a final regulatory 
        flexibility analysis for the proposed rule under sections 603 
        and 604, respectively.
            ``(4) Penalty.--If an agency fails to attend the required 
        meeting under paragraph (1)(B) or in any other way fails to 
        assist the Chief Counsel in a full review under paragraph (1) 
        with respect to a proposed rule of the agency, as determined by 
        the Chief Counsel, the final rule shall not apply to small 
        entities.
            ``(5) Judicial review.--For purposes of judicial review 
        under chapter 7 of this title, a certification made by an 
        agency under section 605(b) for which a petition is filed under 
        subsection (a) shall be considered final agency action as of 
        the date on which the Chief Counsel--
                    ``(A) makes a determination under subsection (c)(2) 
                that the issues raised in the petition do not merit 
                further review; or
                    ``(B) publishes the results of a full review of the 
                certification under paragraph (1).''.
    (b) Technical and Conforming Amendment.--The table of sections for 
chapter 6 of title 5, United States Code, is amended by inserting after 
the item relating to section 605 the following:

``605A. Review procedures relating to initial regulatory flexibility 
                            analysis certifications.''.

SEC. 3. PUBLICATION OF GUIDANCE.

    Section 609 of title 5, United States Code, is amended by adding at 
the end the following:
    ``(f) With respect to any rule that an agency determines is likely 
to have a significant economic impact on a substantial number of small 
entities, the head of the agency shall, on regulations.gov or any 
similar internet website--
            ``(1) publish all guidance documents and other relevant 
        documents, as determined by the agency, including any updated 
        guidance documents that set forth interpretations of the rule; 
        and
            ``(2) allow for comments on the documents described in 
        paragraph (1) to ensure that small entities may access and 
        provide feedback on those documents.''.

SEC. 4. REVIEW PROCEDURES FOR SECTION 610 PERIODIC REVIEW OF RULES.

    (a) In General.--Section 610 of title 5, United States Code, is 
amended--
            (1) in subsection (b)--
                    (A) in the matter preceding paragraph (1), by 
                striking ``the following factors'';
                    (B) in paragraph (4), by striking ``and'' at the 
                end;
                    (C) in paragraph (5), by striking the period at the 
                end and inserting ``; and''; and
                    (D) by adding at the end the following:
            ``(6) any indirect costs described in the initial 
        regulatory flexibility analysis under section 603(b)(6), and 
        any other indirect costs that may have arisen during the 10-
        year period described in subsection (a).''; and
            (2) by adding at the end the following:
    ``(d) If an agency fails to conduct a review of a rule as required 
under this section within the 10-year period described in subsection 
(a)--
            ``(1) the Chief Counsel for Advocacy of the Small Business 
        Administration shall notify the agency that the rule has ceased 
        to be effective;
            ``(2) the agency shall publish in the Federal Register a 
        notification that the rule has ceased to be effective, and 
        solicit comments for why the rule should be reinstated; and
            ``(3) if, based on the comments received under paragraph 
        (2), the agency determines that the rule should be reinstated--
                    ``(A) the agency shall have 180 days beginning on 
                the date of that determination to complete the review 
                of the rule under this section; and
                    ``(B) upon completion of the review under 
                subparagraph (A), the rule shall be reinstated, 
                notwithstanding the notice and comment rulemaking 
                procedures under section 553 of this title.''.
    (b) Application.--The amendment made by subsection (a)(2) shall 
apply with respect to any final rule issued by an agency--
            (1) during the 5-year period preceding the date of 
        enactment of this Act; or
            (2) on or after the date of enactment of this Act.
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