Small Business Regulatory Flexibility Improvements Act
This bill modifies the rulemaking requirements and procedures of federal agencies under the Regulatory Flexibility Act of 1980 and the Small Business Regulatory Enforcement Fairness Act of 1996, including, among others, how agencies consider economic impact.
[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 1120 Introduced in Senate (IS)]
<DOC>
116th CONGRESS
1st Session
S. 1120
To amend chapter 6 of title 5, United States Code (commonly known as
the ``Regulatory Flexibility Act''), to ensure complete analysis of
potential impacts on small entities of rules, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
April 10, 2019
Mr. Lankford (for himself, Mr. Grassley, Mr. Risch, Mr. Roberts, and
Mr. Hoeven) introduced the following bill; which was read twice and
referred to the Committee on Homeland Security and Governmental Affairs
_______________________________________________________________________
A BILL
To amend chapter 6 of title 5, United States Code (commonly known as
the ``Regulatory Flexibility Act''), to ensure complete analysis of
potential impacts on small entities of rules, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Small Business Regulatory
Flexibility Improvements Act''.
SEC. 2. CLARIFICATION AND EXPANSION OF RULES COVERED BY THE REGULATORY
FLEXIBILITY ACT.
(a) In General.--Section 601(2) of title 5, United States Code, is
amended to read as follows:
``(2) Rule.--The term `rule'--
``(A) has the meaning given the term in section
551(4); and
``(B) does not include--
``(i) a rule pertaining to the protection
of the rights of and benefits for veterans or
part 232 of title 32, Code of Federal
Regulations (as in effect on July 1, 2014), or
any successor provisions thereto; or
``(ii) 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:
``(9) Economic impact.--The term `economic impact' means,
with respect to a proposed or final rule--
``(A) any direct economic effect on small entities
of such rule; and
``(B) any indirect economic effect (including
compliance costs and effects on revenue) on small
entities which 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.--Section
603(c) 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--
(A) by redesignating the second paragraph
designated as paragraph (6) (relating to covered
agencies) as paragraph (7); and
(B) in 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.--Section
601(5) of title 5, United States Code, is amended by inserting ``and
tribal organizations (as defined in section 4(l) of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 5304(l))),''
after ``special districts,''.
(e) Inclusion of Land Management Plans and Formal Rule Making.--
(1) Initial regulatory flexibility analysis.--Section
603(a) 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.--Section 604(a)
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, as amended by subsection (b), is amended by
adding at the end the following:
``(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 the Interior under section 202 of the
Federal Land Policy and Management Act of 1976
(43 U.S.C. 1712).
``(B) Revision.--The term `revision' 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' 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.--Section 603(a) 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 recordkeeping requirement is imposed by statute
or regulation.''.
(2) Collection of information.--Section 601(7) 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 the term in section 3502 of
title 44.''.
(3) Recordkeeping requirement.--Section 601(8) of title 5,
United States Code, is amended to read as follows:
``(8) Recordkeeping requirement.--The term `recordkeeping
requirement' has the meaning given the term in section 3502 of
title 44.''.
(g) Definition of Small Organization.--Section 601(4) of title 5,
United States Code, is amended to read as follows:
``(4) Small organization.--
``(A) In general.--The term `small organization'
means any nonprofit enterprise which, as of the
issuance of a 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)(1) 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 on the website of
the agency a plain language summary of the information contained in the
regulatory flexibility agenda.
``(2) The Office of Advocacy of the Small Business Administration
shall compile, by agency, and prominently display on the website of the
Small Business Administration a plain language summary of each
regulatory flexibility agenda published under subsection (a) not later
than 3 days after the date of publication in the Federal Register.''.
SEC. 4. REQUIREMENTS PROVIDING FOR MORE DETAILED ANALYSES.
(a) Initial Regulatory Flexibility Analysis.--Section 603(b) 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;
``(7) describing any disproportionate economic impact on
small entities or a specific class of small entities; and
``(8) describing any impairment of the ability of small
entities to have access to credit.''.
(b) Final Regulatory Flexibility Analysis.--
(1) In general.--Section 604(a) of title 5, United States
Code, is amended--
(A) in paragraph (4)--
(i) by inserting ``detailed'' before
``description''; and
(ii) by striking ``an explanation'' and
inserting ``a detailed explanation'';
(B) in paragraph (5), by inserting ``detailed''
before ``description'';
(C) in paragraph (6)--
(i) by inserting ``detailed'' before
``description''; and
(ii) by striking ``and'' at the end;
(D) in paragraph (7), as so redesignated, by
striking the period at the end and inserting ``; and'';
and
(E) by adding at the end the following:
``(8) a detailed description of 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.--Section 604(a)(2) 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.--Section 604(b) 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 placement of
the entire analysis on the website of the 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.--Section 605(a) 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 a regulatory flexibility agenda or
regulatory flexibility analysis under section 602, 603, or 604 if the
Federal agency provides in the 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 the requirement.''.
(d) Certifications.--Section 605(b) of title 5, United States Code,
is amended by striking ``statement providing the factual basis for such
certification.'' and inserting ``detailed statement providing the
factual and legal basis for such certification. The detailed statement
shall include an economic assessment or a summary thereof that is
sufficiently detailed to support the certification of the agency.''.
(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 enactment of the
Small Business Regulatory Flexibility Improvements Act, 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, and amendment of rules under this
paragraph.
``(2) An agency shall not issue rules which supplement the rules
issued under paragraph (1) unless such agency has first consulted with
the Chief Counsel for Advocacy to ensure that the supplemental rules
comply with this chapter and the rules issued under paragraph (1).
``(b) Notwithstanding any other 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 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 rule making
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), an agency making the rule shall notify the Chief
Counsel for Advocacy of the Small Business Administration and provide
the Chief Counsel with--
``(A) all materials prepared or utilized by the agency in
making the proposed rule, including the draft of the proposed
rule; 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 shall not be required under paragraph (1) to
provide the exact language 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.
``(c) Not later than 15 days after the receipt of the 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, 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 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 the panel, submit a report to the agency and, in the case of
an agency other than an independent regulatory agency, the Office of
Information and Regulatory Affairs of the Office of Management and
Budget.
``(2) Each report described in paragraph (1) shall include an
assessment of the economic impact of the proposed rule on small
entities, including--
``(A) an assessment of the impact of the proposed rule on
the cost that small entities pay for energy;
``(B) an assessment of the impact of the proposed rule on
startup costs for small entities; and
``(C) a discussion of any alternatives that will minimize
adverse significant economic impacts or maximize beneficial
significant economic impacts on small entities.
``(3) Each report described in paragraph (1) 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 the 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, the Federal Government, State or local
governments, tribal organizations, or geographic regions;
``(3) significant adverse effects on competition,
employment, investment, productivity, innovation, or 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
determines that compliance with the requirements of such subsections is
impracticable, unnecessary, or contrary to the public interest.
``(g) A small entity or a representative of a small entity may
submit a request that the agency provide a copy of the report prepared
under subsection (d) and all materials and information provided to the
Chief Counsel for Advocacy of the Small Business Administration under
subsection (b). The agency receiving such request shall provide the
report, materials, and information to the requesting small entity or
representative of a small entity not later than 10 business days after
receiving such request, except that the agency shall not disclose any
information that is prohibited from disclosure to the public pursuant
to section 552(b) of this title.
``(h) In this section, the term `independent regulatory agency' has
the meaning given the term in section 3502 of title 44.''.
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 date of enactment of the
Small Business Regulatory Flexibility Improvements Act, each agency
shall publish in the Federal Register and place 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 placing the amended plan on the website of the agency.
``(b) The plan shall provide for the review of all such agency
rules existing on the date of enactment of the Small Business
Regulatory Flexibility Improvements Act 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 Small Business Regulatory
Flexibility Improvements Act 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 Congress.
``(c) The plan shall include a section that details how an agency
will conduct outreach to and meaningfully include small businesses
(including small business concerns owned and controlled by women, small
business concerns owned and controlled by veterans, and small business
concerns owned and controlled by socially and economically
disadvantaged individuals (as such terms are defined in section 3 and
section 8(d)(3)(C) of the Small Business Act (15 U.S.C. 632,
637(d)(3)(C)))) for the purposes of carrying out this section. The
agency shall include in this section a plan for how the agency will
contact small businesses 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 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 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) Each year, each agency shall publish in the Federal Register
and on its website a list of rules to be reviewed pursuant to such
plan. The agency shall include in the publication a solicitation of
public comments on any further inclusions or exclusions of rules from
the list and shall respond to such comments. Such publication shall
include a brief description of the rule, state the reason why the
agency determined that it 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.--Section 611(a) of title 5, United States Code, is
amended--
(1) in paragraph (1), by striking ``final agency action''
and inserting ``such rule'';
(2) in paragraph (2), by inserting ``(or which would have
such jurisdiction if publication of the final rule constituted
final agency action)'' after ``provision of law,''; and
(3) in paragraph (3)--
(A) by striking ``final agency action'' and
inserting ``publication of the final rule''; and
(B) 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''.
(b) Intervention by Chief Counsel for Advocacy.--Section 612(b) 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:
``(8) all final rules under section 608(a) of title 5.''.
(b) Conforming Amendments.--Section 2341(3) 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:
``(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.--Section 612(b) of title 5, United
States Code, is amended by inserting ``chapter 5, and chapter 7,''
after ``this chapter,''.
SEC. 10. ESTABLISHMENT AND APPROVAL OF SMALL BUSINESS CONCERN SIZE
STANDARDS BY CHIEF COUNSEL FOR ADVOCACY.
(a) In General.--Section 3(a)(2)(A) of the Small Business Act (15
U.S.C. 632(a)(2)(A)) is amended to read as follows:
``(A) In general.--In addition to the criteria
specified in paragraph (1)--
``(i) the Administrator may specify
detailed definitions or standards by which a
business concern may be determined to be a
small business concern for purposes of this Act
or the Small Business Investment Act of 1958
(15 U.S.C. 661 et seq.); and
``(ii) the Chief Counsel for Advocacy may
specify such definitions or standards for
purposes of any other Act.''.
(b) Approval by Chief Counsel.--Section 3(a)(2)(C)(iii) of the
Small Business Act (15 U.S.C. 632(a)(2)(C)(iii)) is amended to read as
follows:
``(iii) except in the case of a size
standard prescribed by the Administrator, is
approved by the Chief Counsel for Advocacy.''.
(c) Industry Variation.--Section 3(a)(3) of the Small Business Act
(15 U.S.C. 632(a)(3)) is amended--
(1) by inserting ``or Chief Counsel for Advocacy, as
appropriate,'' before ``shall ensure''; and
(2) by inserting ``or Chief Counsel for Advocacy'' before
the period at the end.
(d) Judicial Review of Size Standards Approved by Chief Counsel.--
Section 3(a) of the Small Business Act (15 U.S.C. 632(a)) is amended by
adding at the end the following:
``(10) Judicial review of standards approved by chief
counsel.--In the case of an action for judicial review of a
rule which includes a definition or standard approved by the
Chief Counsel for Advocacy under this subsection, the party
seeking such review shall be entitled to join the Chief Counsel
as a party in such action.''.
SEC. 11. CLERICAL 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) Incorporations by Reference and Certifications.--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 as follows:
(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.''.
(3) By striking the item relating to section 608 and
inserting the following:
``608. Additional powers of Chief Counsel for Advocacy.''.
(d) Other Clerical Amendments to Chapter 6.--Chapter 6 of title 5,
United States Code, is amended--
(1) in section 603(d)--
(A) by striking paragraph (2);
(B) by striking ``(1) For a covered agency, as
defined in section 609(d)(2), each initial regulatory
flexibility analysis'' and inserting ``Each initial
regulatory flexibility analysis by an agency'';
(C) by striking ``(A) any'' and inserting ``(1)
any'';
(D) by striking ``(B) any'' and inserting ``(2)
any''; and
(E) by striking ``(C) advice'' and inserting ``(3)
advice''; and
(2) in paragraph (7) of section 604(a), as so redesignated
by section 2(c)(2)(A) of this Act, by striking ``for a covered
agency, as defined in section 609(d)(2),''.
SEC. 12. 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.''.
SEC. 13. COMPTROLLER GENERAL REPORT.
Not later than 90 days after the date of enactment of this Act, the
Comptroller General of the United States shall complete and publish a
study that examines whether the Chief Counsel for Advocacy of the Small
Business Administration has the capacity and resources to carry out the
duties of the Chief Counsel under this Act and the amendments made by
this Act.
SEC. 14. WAIVER OF FINES FOR FIRST-TIME PAPERWORK VIOLATIONS BY SMALL
BUSINESSES.
Section 3506 of title 44, United States Code (commonly referred to
as the ``Paperwork Reduction Act''), is amended by adding at the end
the following:
``(j) Small Businesses.--
``(1) Definitions.--In this subsection:
``(A) First-time violation.--The term `first-time
violation' means a violation by a small business
concern of a requirement regarding collection of
information by an agency, where the small business
concern has not previously violated any similar
requirement regarding collection of information by that
same agency during the 5-year period preceding the
violation.
``(B) Small business concern.--The term `small
business concern' has the meaning given the term in
section 3 of the Small Business Act (15 U.S.C. 632).
``(2) First-time violation.--
``(A) In general.--Except as provided in
subparagraph (C), in the case of a first-time violation
by a small business concern of a requirement regarding
the collection of information by an agency, the head of
the agency shall not impose a civil fine on the small
business concern.
``(B) Determination.--For purposes of determining
whether to impose a civil fine on a small business
concern under subparagraph (A), the head of an agency
shall not take into account any violation by the small
business concern of a requirement regarding collection
of information by another agency.
``(C) Exception.--An agency may impose a civil fine
on a small business concern for a first-time violation
if the head of the agency determines that--
``(i) the violation has the potential to
cause serious harm to the public interest;
``(ii) failure to impose a civil fine would
impede or interfere with the detection of
criminal activity;
``(iii) the violation is a violation of an
internal revenue law or a law concerning the
assessment or collection of any tax, debt,
revenue, or receipt;
``(iv) the violation was not corrected on
or before the date that is 6 months after the
date on which the small business concern
receives notification of the violation in
writing from the agency; or
``(v) except as provided in paragraph (3),
the violation presents a danger to the public
health or safety.
``(3) Danger to public health or safety.--
``(A) In general.--In any case in which the head of
an agency determines under paragraph (2)(C)(v) that a
violation presents a danger to the public health or
safety, the head of the agency may determine not to
impose a civil fine on the small business concern if
the violation is corrected not later than 24 hours
after receipt by the owner of the small business
concern of notification of the violation in writing.
``(B) Considerations.--In determining whether to
allow a small business concern 24 hours to correct a
violation under subparagraph (A), the head of an agency
shall take into account all of the facts and
circumstances regarding the violation, including--
``(i) the nature and seriousness of the
violation, including whether the violation is
technical or inadvertent or involves willful or
criminal conduct;
``(ii) whether the small business concern
had made a good faith effort to comply with
applicable laws and to remedy the violation
within the shortest practicable period of time;
and
``(iii) whether the small business concern
has obtained a significant economic benefit
from the violation.
``(C) Notice to congress.--In any case in which the
head of an agency imposes a civil fine on a small
business concern for a violation that presents a danger
to the public health or safety and does not allow the
small business concern 24 hours to correct the
violation under subparagraph (A), the head of the
agency shall notify Congress regarding the
determination not later than 60 days after the date on
which the civil fine is imposed by the agency.''.
<all>
Introduced in Senate
Read twice and referred to the Committee on Homeland Security and Governmental Affairs.
Committee on Small Business and Entrepreneurship. Hearings held. Hearings printed: S.Hrg. 116-86.
Committee on Homeland Security and Governmental Affairs Subcommittee on Regulatory Affairs and Federal Management. Hearings held. With printed Hearing: S.Hrg. 116-86.
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