[Congressional Record Volume 157, Number 183 (Thursday, December 1, 2011)]
[Senate]
[Pages S8151-S8156]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
By Ms. SNOWE:
S. 1938. A bill to amend chapter 6 of title 5, United States Code
(commonly
[[Page S8152]]
known as the Regulatory Flexibility Act), to ensure complete analysis
of potential impacts on small entities of rules, and for other
purposes; to the Committee on Homeland Security and Governmental
Affairs.
Ms. SNOWE. Mr. President, I rise today to introduce the Regulatory
Flexibility Improvements Act of 2011. Originally introduced in the
House by Representative Lamar Smith of Texas, this targeted regulatory
reform bill would amend the Regulatory Flexibility Act, RFA, the
seminal legislation enacted in 1980 that requires Federal agencies to
consider the cost and impact of proposed regulations on small
businesses if such regulation would significantly affect a substantial
number of small entities.
As a steadfast proponent for regulatory reform, I have been deeply
troubled by this chamber's unwillingness to act on an issue so critical
to our Nation's job creators. In stark contrast, our House counterparts
are poised to pass this legislation, offering relief to our Nation's
small business job creators. I encourage my colleagues in the Senate to
seize this opportunity and support this legislation.
If anyone believes this is a solution in need of a problem, there is
ample evidence to the contrary. In fact, an October 24 Gallup poll of
American small business owners revealed that the number one problem
they face is ``complying with government regulations.'' What I find
increasingly frustrating is that although small businesses repeatedly
express their concerns, the Senate continues to sit idly by, failing to
take serious action!
At a time when unemployment stands at an unacceptable nine percent,
and small businesses are struggling to create jobs, the imperative to
focus our attention on regulatory reform couldn't be clearer.
Unfortunately, small businesses, which historically create two-thirds
of all new jobs, face an unequal federal regulatory burden. A September
2010, study commissioned by the Small Business Administration, SBA,
Office of Advocacy found that small firms with fewer than 20 employees
bear a disproportionate burden in complying with federal regulations.
They pay an annual regulatory cost of $10,585 per employee, which is 36
percent higher than the regulatory cost facing larger firms.
This must change, and the Regulatory Flexibility Improvements Act of
2011 aims to do just that. This bill reforms the flawed rulemaking
process to ensure that federal agencies consider small business impact
before a rule is promulgated, not after. For example, one provision of
this legislation would expand the small business review panel process
to apply to all agencies. These panels currently only apply to the
Environmental Protection Agency, EPA, Occupational Safety and Health
Administration, OSHA, and, thanks to an amendment that I included in
the Wall Street Reform legislation, the new Consumer Financial
Protection Bureau, CFPB. These panels have worked well at EPA and OSHA
since 1996. Why not apply this stipulation to every Federal agency, so
small businesses are considered at the forefront of the rulemaking
process?
Another provision would require agencies to consider foreseeable
``indirect'' economic effects when determining whether a rule will have
a significant impact on a substantial number of small businesses.
Currently, only ``direct'' economic impacts are considered in the
analysis. The RFA has already saved billions for small businesses by
forcing government regulators to address the direct impact of proposed
rules on small firms. If billions of dollars can be saved by filtering
out overly cumbersome or duplicative direct regulatory mandates upon
small business while improving workplace safety and environmental
conditions, even more can be saved by filtering out unnecessary or
burdensome costs to those small businesses indirectly impacted by
regulation.
This type of commonsense reform is why the Regulatory Flexibility
Improvements Act enjoys the support of more than 150 small business
advocacy organizations, including the U.S. Chamber of Commerce and the
National Federation of Independent Business, NFIB.
President Obama himself has identified government regulations as
harmful to job creation. In a January 18 Wall Street Journal op-ed, he
wrote that, ``[s]ometimes, those rules have gotten out of balance,
placing unreasonable burdens on business--burdens that have stifled
innovation and have had a chilling effect on growth and jobs.'' More
recently, my friend, former Democratic Senator Blanche Lincoln,
partnered with NFIB President Dan Danner to write an open letter to
President Obama calling for sensible regulatory reform.
Winston Churchill once said, ``If you have 10,000 regulations, you
destroy all respect for the law!'' And certainly, looking at the
expanding universe of rules waiting on the horizon, and the vast
labyrinth of existing ones, we should ponder how business can dedicate
any time and resources to their principal mission of creating products,
offering services, innovating and growing.
Consider that, since President Obama took office, his administration
has approved 613 Federal rules, 129 of which have an economic impact
topping $100 million. In fact, the President's health reform
legislation alone mandates 41 separate rulemakings, at least 100
additional regulatory guidance documents, and 129 reports, according to
the U.S. Chamber of Commerce. How can our Nation's small businesses
compete in a global economy when Washington, DC agencies continue to
saddle them with overwhelming regulatory burdens year after year? How
can entrepreneurs grow their companies when the regulatory environment
dissuades them from investing in new equipment or hiring additional
workers?
While members of both parties are now calling for small business
regulatory reform, the United States Senate remains regrettably
disengaged. I urge my colleagues to change course and put the interest
of small business, our Nation's economic engines, ahead of petty
politics at a time when more than 14 million Americans are unemployed
and have been so for the longest time since World War II.
The days of working together to craft innovative solutions for the
good of the American people do not have to be over. It is well beyond
time for this body to pass small business regulatory reform and I urge
my colleagues to support this critical legislation.
Mr. President, I ask unanimous consent that the text of the bill and
a letter of support be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
S. 1938
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Regulatory
Flexibility Improvements Act of 2011''.
(b) Table of Contents.--The table of contents of this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Clarification and expansion of rules covered by the Regulatory
Flexibility Act.
Sec. 3. Expansion of report of regulatory agenda.
Sec. 4. Requirements providing for more detailed analyses.
Sec. 5. Repeal of waiver and delay authority; Additional powers of the
Chief Counsel for Advocacy.
Sec. 6. Procedures for gathering comments.
Sec. 7. Periodic review of rules.
Sec. 8. Judicial review of compliance with the requirements of the
Regulatory Flexibility Act available after publication of
the final rule.
Sec. 9. Jurisdiction of court of appeals over rules implementing the
Regulatory Flexibility Act.
Sec. 10. Clerical amendments.
Sec. 11. Agency preparation of guides.
SEC. 2. CLARIFICATION AND EXPANSION OF RULES COVERED BY THE
REGULATORY FLEXIBILITY ACT.
(a) In General.--Paragraph (2) of section 601 of title 5,
United States Code, is amended to read as follows:
``(2) Rule.--The term `rule' has the meaning given such
term in section 551(4) of this title, except that such term
does not include 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 new paragraph:
``(9) Economic impact.--The term `economic impact' means,
with respect to a proposed or final rule--
[[Page S8153]]
``(A) any direct economic effect on small entities of such
rule; and
``(B) any indirect economic effect on small entities that
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.--Subsection
(c) of section 603 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, in the first
paragraph designated as 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.--
Paragraph (5) of section 601 of title 5, United States Code,
is amended by striking ``or special districts'' and inserting
``special districts, or tribal organizations (as defined in
section 4(l) of the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450b(l)))''.
(e) Inclusion of Land Management Plans and Formal Rule
Making.--
(1) Initial regulatory flexibility analysis.--Subsection
(a) of section 603 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.--Subsection (a)
of section 604 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, is amended by adding at the end the
following new paragraph:
``(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 Interior
under section 202 of the Federal Land Policy and Management
Act of 1976 (43 U.S.C. 1712).
``(B) Revision.--The term `revision', when used with
respect to a land management plan, 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', when used with
respect to a land management plan, 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.--Subsection (a) of section 603 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.--Paragraph (7) of section
601 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 such term in section
3502(3) of title 44.''.
(3) Recordkeeping requirement.--Paragraph (8) of section
601 of title 5, United States Code, is amended to read as
follows:
``(8) Recordkeeping requirement.--The term `recordkeeping
requirement' has the meaning given such term in section
3502(13) of title 44.''.
(g) Definition of Small Organization.--Paragraph (4) of
section 601 of title 5, United States Code, is amended to
read as follows:
``(4) Small organization.--
``(A) In general.--The term `small organization' means any
not-for-profit enterprise that, as of the issuance of the
notice of proposed rulemaking--
``(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) 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 a plain language summary of the
information contained in the regulatory flexibility agenda on
the website of the agency. The Office of Advocacy of the
Small Business Administration shall compile and prominently
display plain language summaries of each regulatory
flexibility agenda published under subsection (a) on the
website of the Office of Advocacy, not later than 3 days
after the date on which the agency publishes the regulatory
flexibility agenda the Federal Register.''.
SEC. 4. REQUIREMENTS PROVIDING FOR MORE DETAILED ANALYSES.
(a) Initial Regulatory Flexibility Analysis.--Subsection
(b) of section 603 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; and
``(7) describing any disproportionate economic impact on
small entities or a specific class of small entities.''.
(b) Final Regulatory Flexibility Analysis.--
(1) In general.--Section 604(a) of title 5, United States
Code, is amended--
(A) in paragraph (4), by striking ``an explanation'' and
inserting ``a detailed explanation'';
(B) in each of paragraphs (4), (5), and the first paragraph
designated as paragraph (6), by inserting ``detailed'' before
``description''; and
(C) by adding at the end the following:
``(7) a description 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.--Paragraph (2) of section 604(a) 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.--Subsection (b) of
section 604 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 by
making the entire analysis available on the website of the
[[Page S8154]]
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.--Subsection (a) of
section 605 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 an agenda or regulatory
flexibility analysis under section 602, 603, or 604, if such
agency provides in such 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 such
requirement.''.
(d) Certifications.--Subsection (b) of section 605 of title
5, United States Code, is amended, in the second sentence, by
striking ``statement providing the factual'' and inserting
``detailed statement providing the factual and legal''.
(e) Quantification Requirements.--Section 607 of title 5,
United States Code, is amended to read as follows:
``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 the
enactment of the Regulatory Flexibility Improvements Act of
2011, 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, or 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 of the
Small Business Administration to ensure that such
supplemental rules comply with this chapter and the rules
issued under paragraph (1).
``(b) Notwithstanding any other provision of 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 of the Small Business
Administration 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 rulemaking
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), the agency making such rule
shall notify the Chief Counsel for Advocacy of the Small
Business Administration and provide the Chief Counsel for
Advocacy with--
``(A) all materials prepared or utilized by the agency in
making the proposed rule, including the draft of the proposed
rule, except as provided in paragraph (2); 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 may provide a summary 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 (as
defined in section 3502(5) of title 44).
``(c) Not later than 15 days after the receipt of 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 (as
defined in section 3502(5) of title 44), 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 for Advocacy of the Small
Business Administration 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 such panel, submit a
report to the agency and, in the case of an agency other than
an independent regulatory agency (as defined in section
3502(5) of title 44), the Office of Information and
Regulatory Affairs of the Office of Management and Budget.
``(2) Such report shall include an assessment of the
economic impact of the proposed rule on small entities,
including an assessment of the proposed rule's impact on the
cost that small entities pay for energy, and a discussion of
any alternatives that will minimize adverse significant
economic impacts or maximize beneficial significant economic
impacts on small entities.
``(3) Such report shall become part of the rulemaking
record. In the publication of the proposed rule, the agency
shall explain what actions, if any, the agency took in
response to such 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 for Advocacy of the Small Business Administration
determines that compliance with the requirements of such
subsections are impracticable, unnecessary, or contrary to
the public interest.''.
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 enactment of the
Regulatory Flexibility Improvements Act of 2011, each agency
shall publish in the Federal Register and make available on
the 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 making the amended plan available
on the website of the agency.
``(b) The plan shall provide for the review of all such
agency rules existing on the date of the enactment of the
Regulatory Flexibility Improvements Act of 2011 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 the Regulatory Flexibility Improvements Act of
2011 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 entities for the purposes of carrying out this section.
The agency shall include in this section a plan for how the
agency will contact small
[[Page S8155]]
entities 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 the
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(5) 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) The agency shall publish in the Federal Register and
on the website of the agency a list of rules to be reviewed
pursuant to such plan. Such publication shall include a brief
description of the rule, the reason why the agency determined
that the rule 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.--Paragraph (1) of section 611(a) of title
5, United States Code, is amended by striking ``final agency
action'' and inserting ``such rule''.
(b) Jurisdiction.--Paragraph (2) of section 611(a) of title
5, United States Code, is amended by inserting ``(or which
would have such jurisdiction if publication of the final rule
constituted final agency action)'' after ``provision of
law,''.
(c) Time for Bringing Action.--Paragraph (3) of section
611(a) of title 5, United States Code, is amended--
(1) by striking ``final agency action'' and inserting
``publication of the final rule''; and
(2) 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''.
(d) Intervention by Chief Counsel for Advocacy.--Subsection
(b) of section 612 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 new
paragraph:
``(8) all final rules under section 608(a) of title 5.''.
(b) Conforming Amendments.--Paragraph (3) of section 2341
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 new subparagraph:
``(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.--Subsection (b) of
section 612 of title 5, United States Code, is amended by
inserting ``chapter 5, and chapter 7,'' after ``this
chapter,''.
SEC. 10. TECHNICAL AND CONFORMING 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) Section 605.--The heading of section 605 of title 5,
United States Code, is amended to read as follows:
``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--
(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.''; and
(3) by striking the item relating to section 608 and
inserting the following:
``608. Additional powers of Chief Counsel for Advocacy.''.
(d) Other Amendments.--Chapter 6 of title 5, United States
Code, is amended--
(1) in section 603, by striking subsection (d); and
(2) in section 604(a) by striking the second paragraph
designated as paragraph (6).
SEC. 11. 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.''.
September 21, 2011.
Re Business Letter on H.R. 527, the Regulatory Flexibility
Improvements Act of 2011
Members of the U.S. House of Representatives: We are
writing to express our support for H.R. 527, the Regulatory
Flexibility Improvements Act of 2011, and to ask you to
cosponsor this legislation, if you have not done so already.
The legislation improves the regulatory process by
strengthening agency analysis of a rule's impact on small
businesses.
Small businesses are the backbone of our nation's economy,
and their ability to operate efficiently and free of
unnecessary regulatory burdens is critical for our country's
economic recovery. Research from a 2010 study released by the
Small Business Administration (SBA) Office of Advocacy
illustrates that the small business community is
disproportionately affected by burdensome federal
regulations. This legislation addresses that small business
challenge directly.
H.R. 527 gives the SBA Office of Advocacy additional
authorities and requires the office to establish standards
for conducting a ``regulatory flexibility analysis'' during
the rulemaking process. It improves transparency and ensures
that agencies thoughtfully consider the impact of regulations
on small businesses.
The legislation would also improve the accuracy of benefit-
cost analysis by requiring agencies to consider the indirect
impact of regulations on small business.
Finally, the legislation's provisions on periodic review of
rules are in line with President Obama's Executive Order
13563, which requires agencies to conduct a retrospective
analysis of existing rules to identify and modify rules in
need of reform.
The legislation strengthens the regulatory process and
builds upon the intent of Congress when the Regulatory
Flexibility Act was originally enacted in 1980.
[[Page S8156]]
Thank you for your support of small business and we urge
you to cosponsor the Regulatory Flexibility Improvements Act
of 2011, H.R. 527.
Sincerely,
Alabama Restaurant Association; American Architectural
Manufacturers Association; American Beverage Association;
American Coatings Association; American Composites
Manufacturers Association; American Council of Engineering
Companies; American Farm Bureau Federation; American Fiber
Manufacturers Association; American Foundry Society; American
Home Furnishings Alliance; American Hotel & Lodging
Association; American Institute for International Steel;
American Nursery and Landscape Association; American
Sportfishing Association; American Trucking Associations; AR
State Chamber of Commerce/Associated Industries of AR;
Arizona Nursery Association; Arkansas Hospitality
Association; Associated Builders & Contractors, Inc.;
Associated General Contractors of America; Associated
Industries of Massachusetts; Association For Hose and
Accessories Distribution; Association of Washington Business
Brick Industry Association; Business Council of Alabama;
Business Council of New York State; California Manufacturers
& Technology Association; California Restaurant Association;
Carpet and Rug Institute; Colorado Association of Commerce &
Industry; Colorado Restaurant Association; Connecticut
Restaurant Association; Edison Electric Institute; European-
American Business Council; Florida Restaurant & Lodging
Association; Food Marketing Institute; Forging Industry
Association; Georgia Restaurant Association; Golf Course
Superintendents Association of America; Greeting Card
Association; Hearth, Patio & Barbecue Association; Idaho
Lodging & Restaurant Association; Idaho Retailers
Association; Illinois Manufacturers' Association; Illinois
Retail Merchants Association; Independent Electrical
Contractors, Inc.; Independent Lubricant Manufacturers
Association; Indiana Chamber of Commerce; Indiana Hotel &
Lodging Association; Indiana Manufacturers Association;
Industrial Fasteners Institute; Industrial Minerals
Association--North America; Interlocking Concrete Pavement
Institute; International Council of Shopping Centers;
International Sign Association; Iowa Restaurant Association;
IPC--Association Connecting Electronics Industries; Kansas
Restaurant & Hospitality Association; Kentucky Restaurant
Association; Kentucky Retail Federation; Kitchen Cabinet
Manufacturers Association; Louisiana Association of Business
and Industry; Louisiana Restaurant Association; Louisiana
Retailers Association; Maine Merchants Association; Maine
Restaurant Association; Manufacturers Association of Florida;
Maryland Retailers Association; Maryland Retailers
Association; Massachusetts Restaurant Association; Michigan
Restaurant Association; Minnesota Restaurant Association;
Minnesota Retailers Association; Mississippi Hospitality and
Restaurant Association; Missouri Association of
Manufacturers; Montana Chamber of Commerce; Montana
Restaurant Association; Montana Retail Association; Motor and
Equipment Manufacturers Association; National Association for
the Self-Employed; National Association of Convenience
Stores; National Association of Home Builders; National
Association of Manufacturers; National Association of
REALTORS; National Association of the Remodeling Industry;
National Automatic Merchandising Association; National Black
Chamber of Commerce; National Club Association; National
Community Pharmacists Association; National Council of Chain
Restaurants; National Federation of Independent Business;
National Grocers Association; National Lumber and Building
Material Dealers Association; National Marine Manufacturers
Association; National On-site Testing Associates; National
Restaurant Association; National Retail Federation; National
Roofing Contractors Association; National Shooting Sports
Foundation; Nebraska Chamber of Commerce & Industry; Nevada
Manufacturers Association; Nevada Restaurant Association; New
Mexico Restaurant Association; Non-Ferrous Founders' Society;
North American Association of Food Equipment Manufacturers;
North American Die Casting Association; North Dakota
Hospitality Association; Northeast Pennsylvania Manufacturers
and Employers Association; NPES The Association for Suppliers
of Printing, Publishing and Converting Technologies; Ohio
Restaurant Association; Oklahoma Restaurant Association;
Oregon Restaurant and Lodging Association; Pennsylvania
Manufacturers' Association; Pennsylvania Restaurant
Association; Pennsylvania Retailers Association; Plumbing-
Heating-Cooling Contractors--National Association; Precision
Machined Products Association; Printing Industries of
America; Puerto Rico Manufacturers Association; Resilient
Floor Covering Institute; Restaurant Association of Maryland;
Retailers Association of Massachusetts; Rhode Island
Hospitality Association; Security Industry Association; Small
Business & Entrepreneurship Council; Snack Food Association;
Society of American Florists; Society of Chemical
Manufacturers and Affiliates; Society of Glass & Ceramic
Decorators Products; South Carolina Hospitality Association;
South Dakota Retailers Association; Southeastern Lumber
Manufacturers Association; Specialty Equipment Market
Association; SPI: The Plastics Industry Trade Association;
Tennessee Hospitality Association; Texas Association of
Business; Texas Restaurant Association; Textile Care Allied
Trades Association; The Greater El Paso Chamber of Commerce;
Treated Wood Council; Tree Care Industry Association; U.S.
Chamber of Commerce; U.S. Travel Association; Utah Food
Industry Association; Utah Manufacturers Association; Utah
Restaurant Association; Utah Retail Merchants Association;
Ventura County Agricultural Association; Virginia Hospitality
& Travel Association; Washington Restaurant Association;
Washington Retail Association; West Virginia Manufacturers
Association; Window & Door Manufacturers Association;
Wisconsin Manufacturers & Commerce; Wisconsin Restaurant
Association; Wood Machinery Manufacturers of America; Wyoming
Lodging and Restaurant Association.
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