[Congressional Record (Bound Edition), Volume 157 (2011), Part 4]
[Senate]
[Pages 5858-5860]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           TEXT OF AMENDMENTS

  SA 294. Ms. LANDRIEU submitted an amendment intended to be proposed 
by her to the bill S. 493, to reauthorize and improve the SBIR and STTR 
programs, and for other purposes; which was ordered to lie on the 
table; as follows:

       At the end, add the following:

              TITLE __--REGULATORY FLEXIBILITY IMPROVEMENT

     SEC. _01. SHORT TITLE.

       This title may be cited as the ``Regulatory Flexibility 
     Improvement Act of 2011''.

     SEC. _02. DEFINITIONS.

       Section 601 of title 5, United States Code, is amended--
       (1) by striking paragraph (2) and inserting the following:
       ``(2) the term `rule'--
       ``(A) has the meaning given that term in section 551(4);
       ``(B) includes any rule of general applicability governing 
     Federal grants to State and local governments for which the 
     agency provides an opportunity for notice and public comment; 
     and
       ``(C) does not include--
       ``(i) a rule of particular 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; or
       ``(ii) an interpretative rule involving the internal 
     revenue laws of the United States, published in the Federal 
     Register, that does not impose a collection of information 
     requirement;'';
       (2) in paragraph (5), by inserting after ``special 
     districts,'' the following: ``or tribal organizations (as 
     defined in section 4(l) of the Indian Self-Determination and 
     Education Assistance Act (25 U.S.C. 450b(l)),'';
       (3) in paragraph (6), by striking ``and'' at the end; and
       (4) by striking paragraphs (7) and (8) and inserting the 
     following:
       ``(7) the term `collection of information' has the meaning 
     given that term in section 3502(3) of title 44;
       ``(8) the term `recordkeeping requirement' has the meaning 
     given that term in section 3502(13) of title 44;
       ``(9) the term `interim final rule' means a rule which will 
     become effective without prior notice and comment, including 
     a rule for which the agency makes a finding under section 
     553(b)(3)(B) of this title; and
       ``(10) the term `impact', when used to describe the effect 
     of a rule, means--
       ``(A) the economic effects on small entities directly 
     regulated by the rule; and
       ``(B) the reasonably foreseeable economic effects of the 
     rule on small entities that--
       ``(i) purchase products or services from, sell products or 
     services to, or otherwise conduct business with entities 
     directly regulated by the rule;
       ``(ii) are directly regulated by other governmental 
     entities as a result of the rule; or
       ``(iii) are not directly regulated by the agency as a 
     result of the rule but are otherwise subject to other agency 
     regulations as a result of the rule.''.

     SEC. _03. REGULATORY AGENDA.

       Section 602(a) of title 5, United States Code, is amended--
       (1) in paragraph (2), by striking ``, and'' and inserting a 
     semicolon;
       (2) in paragraph (3), by striking the period at the end and 
     inserting ``; and''; and
       (3) by adding at the end the following:
       ``(4) the list of rules required to be published under 
     section 610(c).''.

     SEC. _04. INITIAL REGULATORY FLEXIBILITY ANALYSIS.

       Section 603 of title 5, United States Code, as amended by 
     section 1100G of the Dodd-Frank Wall Street Reform and 
     Consumer Protection Act (Public Law 111-203; 124 Stat. 2112), 
     is amended--
       (1) in subsection (a)--
       (A) in the first sentence, by striking ``or publishes a 
     notice of proposed rulemaking for an interpretative rule 
     involving the internal revenue laws of the United States'' 
     and inserting ``publishes a notice of proposed rulemaking for 
     an interpretative rule involving the internal revenue laws of 
     the United States, or publishes an interim final rule''; and
       (B) by striking ``The initial regulatory'' and all that 
     follows through the period at the end;
       (2) by redesignating subsections (b), (c), and (d) as 
     subsections (c), (d), and (e), respectively;
       (3) by inserting after subsection (a) the following:
       ``(b)(1) An agency shall notify the Chief Counsel for 
     Advocacy of the Small Business Administration electronically 
     of any draft rule (including a proposed rule, an interpretive 
     rule involving the internal revenue laws of the United 
     States, and an interim final rule) that may have a 
     significant economic impact on a substantial number of small 
     entities--
       ``(A) on the date on which the agency submits the draft 
     rule to the Office of Information and Regulatory Affairs of 
     the Office of Management and Budget under Executive Order 
     12866, if that order requires the submission; or
       ``(B) if no submission to the Office of Information and 
     Regulatory Affairs is required, at a reasonable time before 
     publication of the draft rule by the agency.
       ``(2) Each notice under paragraph (1) shall include the 
     draft rule and a draft of the initial regulatory flexibility 
     analysis.'';
       (4) in subsection (c), as so redesignated--
       (A) by striking ``proposed'' each place that term appears;
       (B) in paragraph (5), by striking the period at the end and 
     inserting a semicolon; and
       (C) by adding at the end the following:
       ``(6) a description of the economic impact of the rule on 
     small entities; and
       ``(7) a description of the cumulative economic impact on 
     small entities of the rules--
       ``(A) promulgated by the agency during the 10-year period 
     ending on the date of the initial regulatory flexibility 
     analysis; and
       ``(B) proposed, but not promulgated, by the agency before 
     the date of the initial regulatory flexibility analysis.'';
       (5) in subsection (d), as so redesignated--
       (A) by striking ``proposed'' each place that term appears;
       (B) in paragraph (3), by striking ``and'' at the end;
       (C) in paragraph (4), by striking the period at the end and 
     inserting ``; and''; and
       (D) by adding at the end the following:
       ``(6) the establishment of less stringent requirements for 
     all entities covered by the rule, including small 
     entities.'';
       (6) in subsection (e), as so redesignated--
       (A) by striking ``proposed'' each place that term appears;
       (B) in paragraph (1)(C), by striking ``subsection (b)'' and 
     inserting ``subsection (c)''; and
       (C) in paragraph (2)(B), by striking ``subsection (b)'' and 
     inserting ``subsection (c)'';
       (7) by adding at the end the following:
       ``(f) Except as provided in section 608, not later than the 
     date of publication of a notice of proposed rulemaking or an 
     interim final rule, an agency shall--
       ``(1) make the initial regulatory flexibility analysis 
     required under subsection (a) available electronically to the 
     public; and
       ``(2) publish the initial regulatory flexibility analysis, 
     or a summary of the initial regulatory flexibility analysis, 
     in the Federal Register.''.

     SEC. _05. FINAL REGULATORY FLEXIBILITY ANALYSIS.

       Section 604 of title 5, United States Code, is amended--
       (1) by striking ``proposed'' each place that term appears;
       (2) in subsection (a)--
       (A) in the matter preceding paragraph (1), by striking ``as 
     described in section 603(a)'';
       (B) by redesignating the second paragraph designated as 
     paragraph (6) (relating to covered agencies), as added by 
     section 1100G(c)(3) of the Dodd-Frank Wall Street Reform and 
     Consumer Protection Act (Public Law 111-203; 124 Stat. 2113), 
     as paragraph (8);
       (C) in paragraph (6) (relating to a description of steps 
     taken to minimize significant

[[Page 5859]]

     economic impact), as added by section 1601 of the Small 
     Business Jobs Act of 2010 (Public Law 111-240; 124 Stat. 
     2251), by striking ``and'' at the end;
       (D) by inserting after paragraph (6) (relating to a 
     description of steps taken to minimize significant economic 
     impact), as added by section 1601 of the Small Business Jobs 
     Act of 2010 (Public Law 111-240; 124 Stat. 2251), the 
     following:
       ``(7) a description of the cumulative impact on small 
     entities of the rules--
       ``(A) promulgated by the agency during the 10-year period 
     ending on the date of the final regulatory flexibility 
     analysis; and
       ``(B) proposed, but not promulgated, by the agency before 
     the date of the final regulatory flexibility analysis; and'';
       (3) in subsection (b)--
       (A) by striking ``The agency shall make copies of'' and 
     inserting ``Not later than the date of publication of a final 
     rule, the agency shall make''; and
       (B) by striking ``available to members of the public'' and 
     inserting ``for the final rule available electronically to 
     the public''; and
       (4) by adding at the end the following:
       ``(c)(1) If an agency publishes an interim final rule, the 
     agency shall prepare a final regulatory flexibility analysis 
     that contains the information required to be included in a 
     final regulatory flexibility analysis under subsection (a).
       ``(2) The agency shall prepare and make available to 
     members of the public the final regulatory flexibility 
     analysis not later than the earlier of--
       ``(A) 180 days after the end of the period for comment on 
     the initial regulatory flexibility analysis prepared under 
     section 603 of this title; and
       ``(B) the date of publication of a final rule following the 
     interim final rule.
       ``(d) An agency may not fulfill the requirements of this 
     section until the agency has complied with the requirements 
     of section 603.''.

     SEC. _06. AVOIDANCE OF DUPLICATIVE OR UNNECESSARY ANALYSIS.

       Section 605(b) of title 5, United States Code is amended--
       (1) in the first sentence, by inserting ``, interim 
     final,'' before ``or final'';
       (2) in the second sentence by inserting ``interim final 
     or'' before ``final rule''; and
       (3) in the third sentence, by inserting before the period 
     at the end the following: ``electronically, at a reasonable 
     time before the publication of the notice, interim final 
     rule, or final rule''.

     SEC. _07. PROCEDURE FOR DELAY OF COMPLETION.

       Section 608 of title 5, United States Code, is amended--
       (1) in the section heading, by striking ``WAIVER OR'';
       (2) by striking subsection (a) and inserting the following:
       ``(a) An agency head may delay the completion of some or 
     all of the requirements of section 603 for a period of not 
     more than 180 days after the date of publication in the 
     Federal Register of a notice of proposed rulemaking or 
     interim final rule by publishing in the Federal Register, not 
     later than the date of publication of the notice of proposed 
     rulemaking or interim final rule, a written finding, with 
     reasons therefor, that the notice of proposed rulemaking, 
     interim final rule, or final rule is being promulgated in 
     response to an emergency that makes timely compliance with 
     section 603 impracticable.'';
       (3) in subsection (b)--
       (A) by striking the first sentence; and
       (B) by striking ``If the agency has not prepared a final 
     regulatory analysis pursuant to section 604 of this title 
     within one hundred and eighty days from the date of 
     publication of the final rule'' and inserting the following:
       ``(c) If the agency has not prepared an initial regulatory 
     flexibility analysis under section 603 or a final regulatory 
     flexibility analysis under section 604 before the date that 
     is 180 days after the date of publication of the interim 
     final rule''; and
       (4) by adding at the end the following:
       ``(d) Except as provided in subsections (b) and (c) of 
     section 605, an agency head may not waive the requirements of 
     section 603 or 604.''.

     SEC. _08. PROCEDURES FOR GATHERING COMMENTS.

       Section 609 of title 5, United States Code, is amended--
       (1) in subsection (b)--
       (A) by redesignating paragraphs (4), (5), and (6) as 
     paragraphs (5), (6), and (7), respectively;
       (B) by inserting after paragraph (3) the following:
       ``(4) not later than 60 days before the date on which a 
     covered agency convenes a review panel under paragraph (3), 
     the covered agency shall submit written notification and a 
     statement to the Chief Counsel for Advocacy of the Small 
     Business Administration and the Office of Information and 
     Regulatory Affairs within the Office of Management and Budget 
     that includes--
       ``(A) the earliest date the review panel may convene;
       ``(B) the most recent draft regulatory text (if available) 
     and economic analysis;
       ``(C) a description of the most significant regulatory 
     components of the rule, with significant regulatory 
     alternatives, accompanied by a discussion of the costs, cost-
     effectiveness, benefits, advantages, and disadvantages of the 
     alternatives;
       ``(D) a description of the number and type of small 
     entities affected, related State and Federal regulatory 
     requirements, and the technical and legal bases for the rule;
       ``(E) a full description of the methodology that underlies 
     the analysis in subparagraphs (B), (C), and (D), including 
     any key assumptions; and
       ``(F) any other materials necessary for the individuals 
     identified under paragraph (2) and the members of the review 
     panel to make informed recommendations to the review panel 
     and the covered agency;'';
       (C) in paragraph (5), as so redesignated, by striking 
     ``subsections 603(b), paragraphs (3), (4) and (5) and 
     603(c)'' and inserting ``paragraphs (3) through (7) of 
     subsection (c) and subsection (d) of section 603''; and
       (D) in paragraph (6), as so redesignated, by striking 
     ``subsections 603(b), paragraphs (3), (4) and (5) and 
     603(c)'' and inserting ``paragraphs (3) through (7) of 
     subsection (c) and subsection (d) of section 603''; and
       (2) in subsection (e), by striking ``subsections (b)(3), 
     (b)(4), and (b)(5)'' and inserting ``paragraphs (3), (4), 
     (5), (6) of subsection (b)''.

     SEC. _09. PERIODIC REVIEW OF RULES.

       Section 610 of title 5, United States Code, is amended--
       (1) in subsection (a)--
       (A) by inserting ``(1)'' before ``Within''; and
       (B) by adding at the end the following:
       ``(2) Each agency shall allow an interested person to 
     petition the agency for the review of a rule of the agency 
     then in effect, if--
       ``(A) the head of the agency made a certification under 
     section 605(b) with respect to the rule;
       ``(B) evidence that is not in the rulemaking record exists 
     showing that the rule has a significant economic impact on a 
     substantial number of small entities; and
       ``(C) there are reasonable alternatives to the requirements 
     under the rule that would reduce the economic impact on small 
     entities.''; and
       (2) by striking subsection (c) and inserting the following:
       ``(c)(1) Each agency shall publish in the regulatory 
     flexibility agenda required under section 602 a list of the 
     rules of the agency that have a significant economic impact 
     on a substantial number of small entities, that the agency 
     will review under this section during the 6-month period 
     following the date of publication of the regulatory 
     flexibility agenda.
       ``(2) The list required under paragraph (1) shall include--
       ``(A) for a rule that is the subject of a petition under 
     subsection (a)(2) that the agency receives not later than 60 
     days before the date of publication of the list--
       ``(i) a statement that the agency will review the rule 
     under this section; or
       ``(ii) a detailed explanation of how the petition failed to 
     meet the requirements under subsection (a)(2), if the agency 
     determines it will not review the rule under this section;
       ``(B) for each rule, a brief description of the rule, the 
     need for the rule, and the legal basis of the rule; and
       ``(C) an invitation for public comment on the rules to be 
     reviewed.
       ``(d) Upon review of any rule under this section, an agency 
     shall publish notice of and accept comment on an initial 
     regulatory review with respect to the rule that contains--
       ``(1) an evaluation of the factors described in subsection 
     (b);
       ``(2) a statement of the objectives of and legal basis for 
     the rule;
       ``(3) a description of, and, if feasible, an estimate of 
     the number of, small entities to which the rule applies;
       ``(4) a description of the reporting, recordkeeping, and 
     other compliance requirements of the rule, including the 
     classes of small entities that are subject to the 
     requirements and the type of professional skills necessary 
     for preparation of any report or record required under the 
     rule;
       ``(5) a description of any significant alternatives to the 
     rule that accomplish the stated objectives of applicable 
     statutes and minimize any significant economic impact of the 
     rule on small entities, including, as applicable--
       ``(A) the establishment of differing compliance or 
     reporting requirements or timetables that take into account 
     the resources available to the small entities;
       ``(B) the clarification, consolidation, or simplification 
     of compliance and reporting requirement under the rule for 
     the small entities;
       ``(C) the use of performance standards rather than design 
     standards;
       ``(D) an exemption from application of the rule, or any 
     part thereof, for the small entities; and
       ``(E) any significant alternative proposed by a person that 
     submits a petition for review under subsection (a)(2) of this 
     section.
       ``(e)(1) Except as provided in paragraph (2), not later 
     than 180 days after the end of the comment period specified 
     by an agency under subsection (d), the agency shall publish 
     in the Federal Register and make available to the public a 
     final regulatory review that contains--

[[Page 5860]]

       ``(A) a statement of the need for, and objectives of, the 
     rule;
       ``(B) a description of any significant issues raised by 
     public comment in response to the initial regulatory review, 
     and a statement of the assessment of the agency of the 
     issues;
       ``(C) the response of the agency to any comment filed by 
     the Chief Counsel for Advocacy of the Small Business 
     Administration in response to the initial regulatory review;
       ``(D) a description, and an estimate of the number, of 
     small entities to which the rule applies, or an explanation 
     of why no such estimate is available;
       ``(E) a description of the reporting, recordkeeping, and 
     other compliance requirements of the rule, including the 
     classes of small entities that are subject to the requirement 
     and the type of professional skills necessary for preparation 
     of any report or record required under the rule; and
       ``(F) a description of the steps the agency has taken to 
     minimize the significant economic impact on small entities 
     consistent with the stated objectives of applicable statutes, 
     including a statement of the factual, policy, and legal 
     reasons for not selecting any significant alternative to the 
     rule considered by the agency that would affect the impact on 
     small entities.
       ``(2) An agency is not required to publish a final 
     regulatory review under paragraph (1) if, not later than 180 
     days after the end of the comment period specified by the 
     agency under subsection (d), the agency initiates a 
     rulemaking for the purpose of proposing the adoption of a 
     significant alternative to the rule under review.''.

     SEC. _10. JUDICIAL REVIEW.

       Section 611(a) of title 5, United States Code, is amended--
       (1) in paragraph (1), by striking ``608(b)'' and inserting 
     ``608'';
       (2) in paragraph (2), by striking ``608(b)'' and inserting 
     ``608''; and
       (3) in paragraph (3)(B), by inserting after ``the issuance 
     of'' the following: ``an initial regulatory flexibility 
     analysis on an interim final rule pursuant to section 608(a) 
     or''.

     SEC. _11. SMALL ENTITY COMPLIANCE GUIDES.

       (a) Small Entity Compliance Guides.--Chapter 6 of title 5, 
     United States Code, is amended by adding at the end the 
     following:

     ``Sec. 613. Small entity compliance guides

       ``(a)(1) For each rule or group of related rules for which 
     an agency is required to prepare a final regulatory 
     flexibility analysis under section 604, the agency shall 
     publish 1 or more guides to assist small entities in 
     complying with the rule and shall entitle such publications 
     `small entity compliance guides' (referred to in this section 
     as a `guide').
       ``(2) The publication of each guide under this subsection 
     shall include--
       ``(A) the posting of the guide in an easily identified 
     location on the website of the agency; and
       ``(B) distribution of the guide to known contacts 
     representing regulated small entities, including trade 
     associations and business organizations.
       ``(3) An agency shall publish each guide (including the 
     posting and distribution of the guide as described under 
     paragraph (2))--
       ``(A) on the same date as the date of publication of the 
     final rule (or as soon as possible after that date); and
       ``(B) not later than the date on which the requirements of 
     that rule become effective.
       ``(4)(A) Each guide shall explain the actions a small 
     entity is required to take to comply with a rule.
       ``(B) The explanation under subparagraph (A)--
       ``(i) shall include a description of actions needed to meet 
     the requirements of a rule, to enable a small entity to know 
     when such requirements are met; and
       ``(ii) if determined appropriate by the agency, may include 
     a description of possible procedures, such as conducting 
     tests, that may assist a small entity in meeting such 
     requirements, except that, compliance with any procedures 
     described pursuant to this section does not establish 
     compliance with the rule, or establish a presumption or 
     inference of such compliance.
       ``(C) Procedures described under subparagraph (B)(ii)--
       ``(i) shall be suggestions to assist small entities; and
       ``(ii) shall not be additional requirements, or diminish 
     requirements, relating to the rule.
       ``(5) An 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 trade associations and 
     business representatives of small entities to develop and 
     distribute such guides. An agency may prepare guides and 
     apply this section with respect to a rule or a group of 
     related rules.
       ``(6) The head of each agency shall submit an annual report 
     to the Committee on Small Business and Entrepreneurship of 
     the Senate, the Committee on Small Business of the House of 
     Representatives, and any other committee of relevant 
     jurisdiction describing the status of the agency's compliance 
     with paragraphs (1) through (5).
       ``(b) Agencies shall cooperate to make available to small 
     entities through comprehensive sources of information, the 
     small entity compliance guides and all other available 
     information on statutory and regulatory requirements 
     affecting small entities.
       ``(c) An agency's small entity compliance guide shall not 
     be subject to judicial review, except that in any civil or 
     administrative action against a small entity for a violation 
     occurring after the effective date of section 212 of the 
     Small Business Regulatory Enforcement Fairness Act of 1996 (5 
     U.S.C. 601 note), the content of the small entity compliance 
     guide may be considered as evidence of the reasonableness or 
     appropriateness of any proposed fines, penalties or 
     damages.''.
       (b) Technical and Conforming Amendment.--The Small Business 
     Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 601 
     note) is amended by striking section 212.
       (c) Savings Clause.--On and after the date of enactment of 
     this Act, an agency may use a small entity compliance guide 
     published under section 212 of the Small Business Regulatory 
     Enforcement Fairness Act of 1996 (5 U.S.C. 601 note) before 
     the date of enactment of this Act.

     SEC. _12. TECHNICAL AND CONFORMING AMENDMENTS.

       The table of sections for chapter 6 of title 5, United 
     States Code, is amended--
       (1) by striking the item relating to section 608 and 
     inserting the following:

``608. Procedure for delay of completion.''; and
       (2) by adding at the end the following:

``613. Small entity compliance guides.''.

                          ____________________