[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 839 Introduced in Senate (IS)]

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118th CONGRESS
  1st Session
                                 S. 839

  To require agencies to complete a regulatory impact analysis before 
          issuing a significant rule, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 16, 2023

Mr. Thune (for himself 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 require agencies to complete a regulatory impact analysis before 
          issuing a significant rule, 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 ``Regulatory Transparency Act of 
2023''.

SEC. 2. DEFINITIONS.

    Section 601 of title 5, 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 a semicolon;
            (3) in paragraph (8)--
                    (A) by striking ``Recordkeeping requirement.--The'' 
                and inserting ``the''; and
                    (B) by striking the period at the end and inserting 
                ``; and''; and
            (4) by adding at the end the following:
            ``(9) the term `significant rule' means any final rule that 
        the Administrator of the Office of Information and Regulatory 
        Affairs of the Office of Management and Budget determines is 
        likely to--
                    ``(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 significant inconsistency or 
                otherwise interfere with an action taken or planned by 
                another Federal 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.''.

SEC. 3. REGULATORY IMPACT ANALYSES; CONSIDERATION OF SUNSET DATES.

    (a) In General.--Chapter 6 of title 5, United States Code, is 
amended by adding at the end the following:
``Sec. 613. Regulatory impact analyses
    ``(a) In General.--Before issuing any proposed rule, final rule, or 
interim final rule that meets the economic threshold of a significant 
rule described in section 601(9)(A), an agency shall conduct a 
regulatory impact analysis to evaluate the proposed rule, final rule, 
or interim final rule, as applicable.
    ``(b) Regulatory Impact Analyses.--An analysis under subsection (a) 
shall--
            ``(1) be based upon the best reasonably obtainable 
        supporting information, consistent with Executive Order 12866 
        (5 U.S.C. 601 note; relating to regulatory planning and review) 
        and any other relevant guidance from the Office of Management 
        and Budget;
            ``(2) be transparent, replicable, and objective;
            ``(3) describe the need to be addressed and how the rule 
        would address that need;
            ``(4) analyze the potential effects, including the benefits 
        and costs, of the rule;
            ``(5) to the maximum extent practicable, consider the 
        cumulative regulatory burden on the regulated entity under 
        subsection (c);
            ``(6) consider the potential effects on different types and 
        sizes of businesses, if applicable;
            ``(7) for a proposed rule that is likely to lead to a 
        significant rule, or a final or interim final rule that is a 
        significant rule--
                    ``(A) describe the need to be addressed, 
                including--
                            ``(i) the supporting information 
                        demonstrating the need;
                            ``(ii) the failures of private markets that 
                        warrant new agency action, if applicable; and
                            ``(iii) whether existing law, including 
                        regulations, has created or contributed to the 
                        need;
                    ``(B) define the baseline for the analysis;
                    ``(C) set the timeframe of the analysis;
                    ``(D) analyze any available regulatory 
                alternatives, including--
                            ``(i) if rulemaking is not specifically 
                        directed by statute, the alternative of not 
                        regulating;
                            ``(ii) any alternatives that specify 
                        performance objectives rather than identify or 
                        require the specific manner of compliance that 
                        regulated entities must adopt;
                            ``(iii) any alternatives that involve the 
                        deployment of innovative technology or 
                        practices; and
                            ``(iv) any alternatives that involve 
                        different requirements for different types or 
                        sizes of businesses, if applicable;
                    ``(E) identify the effects of the available 
                regulatory alternatives described in subparagraph (D);
                    ``(F) identify the effectiveness of tort law to 
                address the identified need;
                    ``(G) to the maximum extent practicable, quantify 
                and monetize the benefits and costs of the selected 
                regulatory alternative and the available alternatives 
                under consideration;
                    ``(H) discount future benefits and costs quantified 
                and monetized under subparagraph (G);
                    ``(I) to the maximum extent practicable, evaluate 
                non-quantified and non-monetized benefits and costs of 
                the selected regulatory alternative and the available 
                alternatives under consideration; and
                    ``(J) characterize any uncertainty in benefits, 
                costs, and net benefits.
    ``(c) Cumulative Regulatory Burden.--In considering the cumulative 
regulatory burden under subsection (b)(5), an agency shall--
            ``(1) identify and assess the benefits and costs of other 
        regulations require compliance by the same regulated entities 
        to attempt to achieve similar regulatory objectives;
            ``(2) evaluate whether the rule is inconsistent with, 
        incompatible with, or duplicative of other regulations; and
            ``(3) consider whether the estimated benefits and costs of 
        the rule increase or decrease as a result of other regulations 
        issued by the agency, including regulations that are not yet 
        fully implemented, compared to the benefits and costs of that 
        rule in the absence of such regulations.
    ``(d) Less Burdensome Alternatives.--If, after conducting an 
analysis under subsection (a) for a proposed rule that is likely to 
lead to a significant rule, or a final rule or interim final that is a 
significant rule, the agency selects a regulatory approach that is not 
the least burdensome compared to an available regulatory alternative, 
the agency shall include--
            ``(1) in the summary section of the preamble a statement 
        that the selected approach is more burdensome than an available 
        regulatory alternative; and
            ``(2) a justification, with supporting information, for the 
        selected approach.
    ``(e) Regulatory Determination.--
            ``(1) In general.--Except as expressly provided otherwise 
        by law, an agency may issue a proposed rule, final rule, or 
        interim final rule only upon a reasoned determination that the 
        benefits of the rule justify the costs of the rule.
            ``(2) Requirements.--
                    ``(A) Alternative.--Whenever an agency is expressly 
                required by law to issue a rule, the agency shall 
                select a regulatory alternative that has benefits that 
                exceed costs and complies with law.
                    ``(B) Compliance.--If it is not possible to comply 
                with the law by selecting a regulatory alternative that 
                has benefits that exceed costs, an agency shall select 
                the regulatory alternative that has the least costs and 
                complies with law.
``Sec. 614. Consideration of sunset dates
    ``(a) Sunset.--Not later than July 1, 2023, an agency shall, for 
each proposed rule or interim final rule of the agency that meets the 
economic threshold of a significant rule described in section 
601(9)(A), include an explicit consideration of a sunset date for the 
rule.
    ``(b) Elements.--The consideration described in subsection (a) for 
a proposed rule or interim final rule described in that subsection 
shall include an assessment of whether the rule--
            ``(1) could become outmoded or outdated in light of changed 
        circumstances, including the availability of new technologies; 
        or
            ``(2) could become excessively burdensome after a period of 
        time due to, among other things--
                    ``(A) disproportionate costs on small businesses;
                    ``(B) the net effect on employment, including jobs 
                added or lost in the private sector; and
                    ``(C) costs that exceed benefits.
    ``(c) Publication.--A summary of the consideration described in 
subsection (a) for a proposed rule or interim final rule described in 
that subsection shall be published in the Federal Register along with 
the proposed or interim final rule, as applicable.''.
    (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. Regulatory impact analyses.
``614. Consideration of sunset dates.''.

SEC. 4. JUDICIAL REVIEW.

    Section 611(a) of title 5, United States Code, is amended, in 
paragraphs (1) and (2), by striking ``and 610'' and inserting ``610, 
and 613''.
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