II 

116TH CONGRESS 

1ST SESSION S. 869 

To affirm the authority of the President to require independent regulatory 

agencies to comply with regulatory analysis requirements applicable to 

executive agencies, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MARCH 26, 2019 

Mr. PORTMAN (for himself, Mr. JOHNSON, Ms. COLLINS, Ms. ERNST, and Mr. 

LANKFORD) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs 

A BILL 

To affirm the authority of the President to require independent regulatory agencies to comply with regulatory 

analysis requirements applicable to executive agencies, 

and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Independent Agency 

5 Regulatory Analysis Act’’. 

6 SEC. 2. DEFINITIONS. 

7 In this Act— 


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1 (1) the term ‘‘Administrator’’ means the Ad2 ministrator of the Office of Information and Regu3 latory Affairs; 

4 (2) the term ‘‘agency’’ has the meaning given 

5 the term in section 3502(1) of title 44, United 

6 States Code; 

7 (3) the term ‘‘economically significant rule’’ 

8 means any rule that the Administrator determines is 

9 likely to— 

10 (A) have an annual effect on the economy 

11 of $100,000,000 or more; or 

12 (B) adversely affect in a material way the 

13 economy, a sector of the economy, productivity, 

14 competition, jobs, the environment, public 

15 health or safety, or State, local, or Tribal gov16 ernments or communities; 

17 (4) the term ‘‘independent regulatory agency’’ 

18 has the meaning given the term in section 3502(5) 

19 of title 44, United States Code; and 

20 (5) the term ‘‘rule’’— 

21 (A) means a rule, as that term is defined 

22 in section 551 of title 5, United States Code; 

23 and 

24 (B) does not include a rule of the Board 

25 of Governors of the Federal Reserve System or 


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1 the Federal Open Market Committee relating to 

2 monetary policy. 

3 SEC. 3. REGULATORY ANALYSIS BY INDEPENDENT AGEN4 CIES. 

5 (a) IN GENERAL.—The President may by Executive 

6 order require an independent regulatory agency to comply, 

7 to the extent permitted by law, with regulatory analysis 

8 requirements applicable to other agencies, including the 

9 requirements to— 

10 (1) identify the problem that the agency intends 

11 to address by a new rule (including, where applica12 ble, the failures of private markets or public institu13 tions that warrant new agency action) and assess 

14 the significance of that problem; 

15 (2) examine whether any existing rule (or other 

16 law) has created, or contributed to, the problem that 

17 a new rule is intended to correct and whether the ex18 isting rule (or other law) should be modified to 

19 achieve the intended goal of the new rule more effec20 tively; 

21 (3) identify and assess available alternatives to 

22 direct regulation, including providing economic in23 centives to encourage the desired behavior, or pro24 viding information upon which choices can be made 

25 by the public; 


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1 (4) consider to the extent reasonable in setting 

2 regulatory priorities, the degree and nature of the 

3 risks posed by various substances or activities within 

4 its jurisdiction; 

5 (5) design its rules in the most cost-effective 

6 manner to achieve the regulatory objective and, in 

7 doing so, consider incentives for innovation, consist8 ency, predictability, the costs of enforcement and 

9 compliance (to the Federal Government, regulated 

10 entities, and the public), flexibility, distributive im11 pacts, and equity; 

12 (6) assess the costs and the benefits of the in13 tended rule and, recognizing some costs and benefits 

14 are difficult to quantify, propose or adopt a rule only 

15 upon a reasoned determination that the benefits of 

16 the rule justify its costs; 

17 (7) base its rulemaking decisions on the best 

18 reasonably obtainable scientific, technical, economic, 

19 and other information concerning the need for, and 

20 consequences of, the intended rule; 

21 (8) identify and assess alternative forms of reg22 ulation and, to the extent feasible, specify perform23 ance objectives, rather than specifying the behavior 

24 or manner of compliance that regulated entities 

25 must adopt; 


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1 (9) seek the views of appropriate State, local, 

2 and Tribal officials before imposing regulatory re3 quirements that might significantly or uniquely af4 fect State, local, or Tribal governmental entities, 

5 whenever feasible; 

6 (10) avoid rules that are inconsistent or incom7 patible with, or duplicative of, other rules of the 

8 independent regulatory agency or other agencies; 

9 (11) tailor rules to impose the least burden on 

10 society, including individuals, businesses of differing 

11 sizes, and other entities (including small commu12 nities and governmental entities), consistent with 

13 achieving the regulatory objectives, and taking into 

14 account, among other factors, and to the extent 

15 practicable, the cost of cumulative rules; 

16 (12) draft each rule to be simple and easy to 

17 understand, with the goal of minimizing the poten18 tial for uncertainty and litigation arising from un19 certainty; and 

20 (13) periodically review its existing economically 

21 significant rules to determine whether any such rules 

22 should be modified, streamlined, expanded, or re23 pealed so as to make the regulatory program of the 

24 agency more effective or less burdensome in achiev25 ing the regulatory objectives. 


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1 (b) ECONOMICALLY SIGNIFICANT RULES.—For any 

2 proposed or final rule identified by an independent regu3 latory agency as, or determined by the Administrator to 

4 be, an economically significant rule, the President may by 

5 Executive order require the independent regulatory agency 

6 to provide to the Administrator and publish with the pro7 posed and final rule the following information, to the ex8 tent permitted by law: 

9 (1) An assessment, including the underlying 

10 analysis, of benefits anticipated from the rule to11 gether with, to the extent feasible, a quantification 

12 of those benefits. 

13 (2) An assessment, including the underlying 

14 analysis, of costs anticipated from the rule together 

15 with, to the extent feasible, a quantification of those 

16 costs. 

17 (3) An assessment, including the underlying 

18 analysis, of costs and benefits of potentially effective 

19 and reasonably feasible alternatives to the rule, iden20 tified by the agencies or the public, including im21 proving existing regulations and reasonably viable 

22 nonregulatory actions, and an explanation of why 

23 the planned regulatory action is preferable to the 

24 identified potential alternatives. 


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1 (c) REVIEW BY OFFICE OF INFORMATION AND REGU2 LATORY AFFAIRS.— 

3 (1) REQUIREMENT TO SEEK REVIEW.—The 

4 President may, by Executive order, require an inde5 pendent regulatory agency to submit to the Adminis6 trator for review— 

7 (A) any proposed economically significant 

8 rule, either prior to publication of the notice of 

9 proposed rulemaking or, if the head of the inde10 pendent regulatory agency elects, during the 

11 general public comment period; and 

12 (B) any final economically significant rule, 

13 prior to publication of the final rule. 

14 (2) NONBINDING ASSESSMENT.—An Executive 

15 order issued under this Act may require that, not 

16 later than 90 days after the independent regulatory 

17 agency submits a proposed or final economically sig18 nificant rule for review, the Administrator submit 

19 for inclusion in the rulemaking record the assess20 ment of the Administrator of the extent to which the 

21 independent regulatory agency has complied with 

22 any of the regulatory analysis requirements made 

23 applicable by Executive order. 

24 (3) DETERMINATION AND EXPLANATION BY

25 INDEPENDENT AGENCY.—An Executive order issued 


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1 under this Act may require that, if the Adminis2 trator concludes under paragraph (2) that the inde3 pendent regulatory agency did not comply with 1 or 

4 more requirements of the Executive order with re5 spect to a proposed or final economically significant 

6 rule, the head of the independent regulatory agency 

7 that issued the economically significant rule shall in8 clude with the final rule— 

9 (A) a determination that the rule complies 

10 with the specified requirement or requirements 

11 and an explanation of that determination; and 

12 (B) if applicable, an explanation why the 

13 independent regulatory agency did not comply 

14 with one or more of the specified requirements, 

15 based on the statutory provision authorizing the 

16 rule. 

17 SEC. 4. LIMITATION ON JUDICIAL REVIEW. 

18 (a) IN GENERAL.—The compliance or noncompliance 

19 of an independent regulatory agency with the require20 ments of an Executive order issued under this Act shall 

21 not be subject to judicial review. 

22 (b) AGENCY RECORD.—When an action for judicial 

23 review of a rule promulgated by an independent regulatory 

24 agency is instituted, any determination, analysis, or expla25 nation produced by the independent regulatory agency, 


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1 and any assessment produced by the Administrator, pur2 suant to an Executive order issued under this Act, shall 

3 constitute part of the whole record of agency action in con4 nection with the review. 

5 (c) RULE OF CONSTRUCTION.—Nothing in this sec6 tion shall be construed to bar judicial review of any other 

7 impact statement or similar analysis required by any other 

8 provision of law if judicial review of the statement or anal9 ysis is otherwise permitted by law. 

10 SEC. 5. RULE OF CONSTRUCTION. 

11 Nothing in this Act shall be construed to limit the 

12 authority of the President with respect to independent reg13 ulatory agencies under any other applicable law. 

Æ 


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