[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.

                          ____________________