[Congressional Record Volume 169, Number 49 (Thursday, March 16, 2023)]
[Senate]
[Pages S828-S829]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. THUNE (for himself and Mr. Lankford):
  S. 839. A bill to require agencies to complete a regulatory impact 
analysis before issuing a significant rule, and for other purposes; to 
the Committee on Homeland Security and Governmental Affairs.
  Mr. THUNE. Madam President, I am also introducing legislation today 
to help prevent economically damaging regulations from going into 
effect in the first place. My bill, the Regulatory Transparency Act, 
would require Federal Agencies to conduct a more transparent and 
objective analysis of the impact a proposed regulation would have on 
the economy, especially on small businesses. It would also require 
Agencies to justify the need for the regulation and consider other less 
burdensome ways of meeting the same goal. And, importantly, it would 
require Agencies to consider whether a sunset date for the regulation 
would be appropriate, which could help reduce the long-term buildup of 
irrelevant or outdated Federal regulations.
  There is a lot more that I could say about the regulations the Biden 
administration has implemented or is trying to put in place, but I will 
stop here. Suffice it to say that President Biden has made use of the 
regulatory system to advance an agenda that will negatively affect our 
Nation, and I will continue to do everything I can to push back against 
the Biden administration's many troubling regulations and to protect 
our economy and the American people from the regulatory burden the 
administration has put in place.
  Madam President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                 S. 839

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Regulatory Transparency Act 
     of 2023''.

     SEC. 2. DEFINITIONS.

       Section 601 of title 5, United States Code, is amended--
       (1) in paragraph (6), by striking ``and'' at the end;
       (2) in paragraph (7) by striking the period at the end and 
     inserting a semicolon;
       (3) in paragraph (8)--
       (A) by striking ``Recordkeeping requirement.--The'' and 
     inserting ``the''; and
       (B) by striking the period at the end and inserting ``; 
     and''; and
       (4) by adding at the end the following:
       ``(9) the term `significant rule' means any final rule that 
     the Administrator of the Office of Information and Regulatory 
     Affairs of the Office of Management and Budget determines is 
     likely to--
       ``(A) have an annual effect on the economy of $100,000,000 
     or more or adversely affect in a material way the economy, a 
     sector of the economy, productivity, competition, jobs, the 
     environment, public health or safety, or State, local, or 
     tribal governments or communities;
       ``(B) create a significant inconsistency or otherwise 
     interfere with an action taken or planned by another Federal 
     agency;
       ``(C) materially alter the budgetary impact of 
     entitlements, grants, user fees, or loan programs or the 
     rights and obligations of recipients thereof; or
       ``(D) raise novel legal or policy issues.''.

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

       (a) In General.--Chapter 6 of title 5, United States Code, 
     is amended by adding at the end the following:

     ``Sec. 613. Regulatory impact analyses

       ``(a) In General.--Before issuing any proposed rule, final 
     rule, or interim final rule that meets the economic threshold 
     of a significant rule described in section 601(9)(A), an 
     agency shall conduct a regulatory impact analysis to evaluate 
     the proposed rule, final rule, or interim final rule, as 
     applicable.
       ``(b) Regulatory Impact Analyses.--An analysis under 
     subsection (a) shall--
       ``(1) be based upon the best reasonably obtainable 
     supporting information, consistent with Executive Order 12866 
     (5 U.S.C. 601 note; relating to regulatory planning and 
     review) and any other relevant guidance from the Office of 
     Management and Budget;
       ``(2) be transparent, replicable, and objective;
       ``(3) describe the need to be addressed and how the rule 
     would address that need;
       ``(4) analyze the potential effects, including the benefits 
     and costs, of the rule;
       ``(5) to the maximum extent practicable, consider the 
     cumulative regulatory burden on the regulated entity under 
     subsection (c);
       ``(6) consider the potential effects on different types and 
     sizes of businesses, if applicable;
       ``(7) for a proposed rule that is likely to lead to a 
     significant rule, or a final or interim final rule that is a 
     significant rule--
       ``(A) describe the need to be addressed, including--
       ``(i) the supporting information demonstrating the need;
       ``(ii) the failures of private markets that warrant new 
     agency action, if applicable; and
       ``(iii) whether existing law, including regulations, has 
     created or contributed to the need;
       ``(B) define the baseline for the analysis;
       ``(C) set the timeframe of the analysis;
       ``(D) analyze any available regulatory alternatives, 
     including--
       ``(i) if rulemaking is not specifically directed by 
     statute, the alternative of not regulating;
       ``(ii) any alternatives that specify performance objectives 
     rather than identify or require the specific manner of 
     compliance that regulated entities must adopt;
       ``(iii) any alternatives that involve the deployment of 
     innovative technology or practices; and
       ``(iv) any alternatives that involve different requirements 
     for different types or sizes of businesses, if applicable;
       ``(E) identify the effects of the available regulatory 
     alternatives described in subparagraph (D);
       ``(F) identify the effectiveness of tort law to address the 
     identified need;
       ``(G) to the maximum extent practicable, quantify and 
     monetize the benefits and costs of the selected regulatory 
     alternative and the available alternatives under 
     consideration;
       ``(H) discount future benefits and costs quantified and 
     monetized under subparagraph (G);
       ``(I) to the maximum extent practicable, evaluate non-
     quantified and non-monetized benefits and costs of the 
     selected regulatory alternative and the available 
     alternatives under consideration; and
       ``(J) characterize any uncertainty in benefits, costs, and 
     net benefits.
       ``(c) Cumulative Regulatory Burden.--In considering the 
     cumulative regulatory burden under subsection (b)(5), an 
     agency shall--
       ``(1) identify and assess the benefits and costs of other 
     regulations require compliance by the same regulated entities 
     to attempt to achieve similar regulatory objectives;

[[Page S829]]

       ``(2) evaluate whether the rule is inconsistent with, 
     incompatible with, or duplicative of other regulations; and
       ``(3) consider whether the estimated benefits and costs of 
     the rule increase or decrease as a result of other 
     regulations issued by the agency, including regulations that 
     are not yet fully implemented, compared to the benefits and 
     costs of that rule in the absence of such regulations.
       ``(d) Less Burdensome Alternatives.--If, after conducting 
     an analysis under subsection (a) for a proposed rule that is 
     likely to lead to a significant rule, or a final rule or 
     interim final that is a significant rule, the agency selects 
     a regulatory approach that is not the least burdensome 
     compared to an available regulatory alternative, the agency 
     shall include--
       ``(1) in the summary section of the preamble a statement 
     that the selected approach is more burdensome than an 
     available regulatory alternative; and
       ``(2) a justification, with supporting information, for the 
     selected approach.
       ``(e) Regulatory Determination.--
       ``(1) In general.--Except as expressly provided otherwise 
     by law, an agency may issue a proposed rule, final rule, or 
     interim final rule only upon a reasoned determination that 
     the benefits of the rule justify the costs of the rule.
       ``(2) Requirements.--
       ``(A) Alternative.--Whenever an agency is expressly 
     required by law to issue a rule, the agency shall select a 
     regulatory alternative that has benefits that exceed costs 
     and complies with law.
       ``(B) Compliance.--If it is not possible to comply with the 
     law by selecting a regulatory alternative that has benefits 
     that exceed costs, an agency shall select the regulatory 
     alternative that has the least costs and complies with law.

     ``Sec. 614. Consideration of sunset dates

       ``(a) Sunset.--Not later than July 1, 2023, an agency 
     shall, for each proposed rule or interim final rule of the 
     agency that meets the economic threshold of a significant 
     rule described in section 601(9)(A), include an explicit 
     consideration of a sunset date for the rule.
       ``(b) Elements.--The consideration described in subsection 
     (a) for a proposed rule or interim final rule described in 
     that subsection shall include an assessment of whether the 
     rule--
       ``(1) could become outmoded or outdated in light of changed 
     circumstances, including the availability of new 
     technologies; or
       ``(2) could become excessively burdensome after a period of 
     time due to, among other things--
       ``(A) disproportionate costs on small businesses;
       ``(B) the net effect on employment, including jobs added or 
     lost in the private sector; and
       ``(C) costs that exceed benefits.
       ``(c) Publication.--A summary of the consideration 
     described in subsection (a) for a proposed rule or interim 
     final rule described in that subsection shall be published in 
     the Federal Register along with the proposed or interim final 
     rule, as applicable.''.
       (b) Technical and Conforming Amendment.--The table of 
     sections for chapter 6 of title 5, United States Code, is 
     amended by adding at the end the following:

``613. Regulatory impact analyses.
``614. Consideration of sunset dates.''.

     SEC. 4. JUDICIAL REVIEW.

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