I 

108TH CONGRESS 

1ST SESSION H. R. 2345

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 HOUSE OF REPRESENTATIVES 

JUNE 5, 2003

Mr. MANZULLO (for himself, Mr. OSE, Mr. PENCE, and Mr. TERRY) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Small Business, for a period 

to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee 

concerned 

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.

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; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Regulatory Flexibility Improvements Act of 2003’’. 
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1 (b) TABLE OF CONTENTS.—The table of contents of 

2 this Act is as follows:

Sec. 1. Short title; table of contents. 

Sec. 2. Findings. 

Sec. 3. Clarification and expansion of rules covered by the Regulatory Flexibility Act. 

Sec. 4. Requirements providing for more detailed analyses. 

Sec. 5. Repeal of procedure for waiver and delay. 

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. Establishment and approval of small business concern size standards by 

Chief Counsel for Advocacy. 

Sec. 10. Additional powers of the Chief Counsel for Advocacy. 

Sec. 11. Clerical amendments.

3 SEC. 2. FINDINGS. 

4 The Congress finds the following: 

5 (1) A vibrant and growing small business sector 

6 is critical to creating jobs in a dynamic economy. 

7 (2) Regulations designed for application to 

8 large-scale entities have been applied uniformly to 

9 small businesses and other small entities even 

10 though the problems sought to be solved by such 

11 regulations are not usually caused by these small 

12 businesses and other small entities. 

13 (3) Uniform Federal regulatory and reporting 

14 requirements in many instances have imposed on 

15 small entities unnecessary and disproportionately 

16 burdensome demands, including legal, accounting, 

17 and consulting costs. 

18 (4) Since 1980 Federal agencies have been re19 quired to recognize and take account of the dif-
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1 ferences in the scale and resources of regulated enti2 ties but have failed to do so. 

3 (5) Alternative regulatory approaches that do 

4 not conflict with the stated objectives of the statutes 

5 the regulations seek to implement may be available 

6 and may minimize the significant economic impact 

7 of regulations on small businesses and other small 

8 entities. 

9 (6) Federal agencies have failed to analyze and 

10 uncover less costly alternative regulatory approaches, 

11 despite the fact that the chapter 6 of title 5, United 

12 States Code (commonly known as the Regulatory 

13 Flexibility Act) requires them to do so. 

14 (7) Federal agencies continue to interpret chap15 ter 6 of title 5, United States Code, in a manner 

16 that permits them to avoid their analytical respon17 sibilities. 

18 (8) The existing oversight of the compliance of 

19 Federal agencies with the analytical requirements to 

20 assess regulatory impacts on small businesses and 

21 other small entities and obtain input from the Chief 

22 Counsel for Advocacy has not sufficiently modified 

23 the Federal agency regulatory culture. 

24 (9) Significant changes are needed in the meth25 ods by which Federal agencies develop and analyze 
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1 regulations, receive input from affected entities, and 

2 develop regulatory alternatives that will lessen the 

3 burden or maximize the benefits of final rules to 

4 small businesses and other small entities. 

5 (10) It is the intention of the Congress to 

6 amend chapter 6 of title 5, United States Code, to 

7 ensure that all impacts, including foreseeable indi8 rect effects, of proposed and final rules are consid9 ered by agencies during the rulemaking process and 

10 that the agencies assess a full range of alternatives 

11 that will limit adverse economic consequences or en12 hance economic benefits. 

13 (11) Federal agencies should be capable of as14 sessing the impact of proposed and final rules with15 out delaying the regulatory process or impinging on 

16 the ability of Federal agencies to fulfill their statu17 tory mandates. 

18 SEC. 3. CLARIFICATION AND EXPANSION OF RULES COV19 ERED BY THE REGULATORY FLEXIBILITY 

20 ACT. 

21 (a) IN GENERAL.—Paragraph (2) of section 601 of 

22 title 5, United States Code, is amended to read as follows: 

23 ‘‘(2) RULE.—The term ‘rule’ has the meaning 

24 given such term in section 551(4) of this title, ex25 cept that—
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1 ‘‘(A) such term includes any rule of gen2 eral applicability governing grants to State and 

3 local governments for which the agency provides 

4 an opportunity for notice and comment; and 

5 ‘‘(B) such term does not include a rule of 

6 particular (and not general) applicability relat7 ing to rates, wages, corporate or financial struc8 tures or reorganizations thereof, prices, facili9 ties, appliances, services, or allowances therefor 

10 or to valuations, costs or accounting, or prac11 tices relating to such rates, wages, structures, 

12 prices, appliances, services, or allowances.’’. 

13 (b) INCLUSION OF RULES WITH INDIRECT EF14 FECTS.—Section 601 of title 5, United States Code, is 

15 amended by adding at the end the following new para16 graph: 

17 ‘‘(9) ECONOMIC IMPACT.—The term ‘economic 

18 impact’ means, with respect to a proposed or final 

19 rule—

20 ‘‘(A) any direct economic effect on small 

21 entities of such rule; and 

22 ‘‘(B) any indirect economic effect on small 

23 entities which is reasonably foreseeable and re24 sults from such rule (without regard to whether 
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1 small entities will be directly regulated by the 

2 rule).’’. 

3 (c) INCLUSION OF RULES WITH BENEFICIAL EF4 FECTS.— 

5 (1) INITIAL REGULATORY FLEXIBILITY ANAL6 YSIS.—Subsection (c) of section 603 of title 5, 

7 United States Code, is amended by striking the first 

8 sentence and inserting ‘‘Each initial regulatory flexi9 bility analysis shall also contain a detailed descrip10 tion of alternatives to the proposed rule which mini11 mize any significant adverse economic impact or 

12 maximize any significant beneficial economic impact 

13 on small entities.’’. 

14 (2) FINAL REGULATORY FLEXIBILITY ANAL15 YSIS.—Paragraph (5) of section 604(a) of title 5, 

16 United States Code, is amended by striking ‘‘mini17 mize the significant economic impact’’ and inserting 

18 ‘‘minimize the significant adverse economic impact 

19 or maximize the significant beneficial economic im20 pact’’. 

21 (d) INCLUSION OF RULES AFFECTING TRIBAL ORGA22 NIZATIONS.—Paragraph (5) of section 601 of title 5, 

23 United States Code, is amended by inserting ‘‘and tribal 

24 organizations (as defined in section 4(l) of the Indian Self-
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1 Determination and Education Assistance Act (25 U.S.C. 

2 450b(l))),’’ after ‘‘special districts,’’. 

3 (e) INCLUSION OF LAND MANAGEMENT PLANS AND

4 FORMAL RULEMAKING.—

5 (1) INITIAL REGULATORY FLEXIBILITY ANAL6 YSIS.—Subsection (a) of section 603 of title 5, 

7 United States Code, is amended in the first sen8 tence—

9 (A) by striking ‘‘or’’ after ‘‘proposed 

10 rule,’’; and 

11 (B) by inserting ‘‘publishes a revision or 

12 amendment to a land management plan, or 

13 issues a proposed rule made on the record after 

14 opportunity for an agency hearing,’’ after 

15 ‘‘United States,’’. 

16 (2) FINAL REGULATORY FLEXIBILITY ANAL17 YSIS.—Subsection (a) of section 604 of title 5, 

18 United States Code, is amended in the first sen19 tence—

20 (A) by striking ‘‘or’’ after ‘‘proposed rule21 making,’’; and 

22 (B) by inserting ‘‘, adopts a revision or 

23 amendment to a land management plan, or 

24 issues a final rule made on the record after op-
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1 portunity for an agency hearing,’’ after ‘‘section 

2 603(a),’’. 

3 (3) LAND MANAGEMENT PLAN DEFINED.—Sec4 tion 601 of title 5, United States Code (as amended 

5 by subsection (b)), is further amended by adding at 

6 the end the following new paragraph: 

7 ‘‘(10) LAND MANAGEMENT PLAN.—

8 ‘‘(A) IN GENERAL.—The term ‘land man9 agement plan’ means—

10 ‘‘(i) any plan developed by the Sec11 retary of Agriculture under section 6 of 

12 the Forest and Rangeland Renewable Re13 sources Planning Act of 1974 (16 U.S.C. 

14 1604); and 

15 ‘‘(ii) any plan developed by the Sec16 retary of Interior under section 202 of the 

17 Federal Land Policy and Management Act 

18 of 1976 (43 U.S.C. 1712). 

19 ‘‘(B) REVISION.—The term ‘revision’ 

20 means any change to a land management plan 

21 which—

22 ‘‘(i) in the case of a plan described in 

23 subparagraph (A)(i), is made under section 

24 6(f)(5) of the Forest and Rangeland Re-
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1 newable Resources Planning Act of 1974 

2 (16 U.S.C. 1604(f)(5)); or 

3 ‘‘(ii) in the case of a plan described in 

4 subparagraph (A)(ii), is made under sec5 tion 1610.5–6 of title 43, Code of Federal 

6 Regulations (or any successor regulation). 

7 ‘‘(C) AMENDMENT.—The term ‘amend8 ment’ means any change to a land management 

9 plan which—

10 ‘‘(i) in the case of a plan described in 

11 subparagraph (A)(i), is made under section 

12 6(f)(4) of the Forest and Rangeland Re13 newable Resources Planning Act of 1974 

14 (16 U.S.C. 1604(f)(4)) and with respect to 

15 which the Secretary of Agriculture pre16 pares a statement described in section 

17 102(2)(C) of the National Environmental 

18 Policy Act of 1969 (42 U.S.C. 

19 4332(2)(C)); or 

20 ‘‘(ii) in the case of a plan described in 

21 subparagraph (A)(ii), is made under sec22 tion 1610.5–5 of title 43, Code of Federal 

23 Regulations (or any successor regulation) 

24 and with respect to which the Secretary of 

25 the Interior prepares a statement described
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1 in section 102(2)(C) of the National Envi2 ronmental Policy Act of 1969 (42 U.S.C. 

3 4332(2)(C)).’’. 

4 (f) INCLUSION OF CERTAIN INTERPRETIVE RULES

5 INVOLVING THE INTERNAL REVENUE LAWS WHICH IM6 POSE RECORDKEEPING REQUIREMENTS, ETC.—

7 (1) IN GENERAL.—Subsection (a) of section 

8 603 of title 5, United States Code, is amended by 

9 striking the period at the end and inserting ‘‘or a 

10 recordkeeping requirement, and without regard to 

11 whether such requirement is imposed by statute or 

12 regulation.’’. 

13 (2) COLLECTION OF INFORMATION.—Paragraph 

14 (7) of section 601 of title 5, United States Code, is 

15 amended to read as follows: 

16 ‘‘(7) COLLECTION OF INFORMATION.—The term 

17 ‘collection of information’ has the meaning given 

18 such term in section 3502(3) of title 44, United 

19 States Code.’’. 

20 (3) RECORDKEEPING REQUIREMENT.—Para21 graph (8) of section 601 of title 5, United States 

22 Code, is amended to read as follows: 

23 ‘‘(8) RECORDKEEPING REQUIREMENT.—The 

24 term ‘recordkeeping requirement’ has the meaning 
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1 given such term in section 3502(13) of title 44, 

2 United States Code.’’. 

3 (g) DEFINITION OF SMALL ORGANIZATION.—Para4 graph (4) of section 601 of title 5, United States Code, 

5 is amended to read as follows: 

6 ‘‘(4) SMALL ORGANIZATION.—

7 ‘‘(A) IN GENERAL.—The term ‘small orga8 nization’ means any not-for-profit enterprise 

9 which, as of the issuance of the notice of pro10 posed rulemaking—

11 ‘‘(i) in the case of an enterprise which 

12 is described by a classification code of the 

13 North American Industrial Classification 

14 System, does not exceed the size standard 

15 established by the Administrator of the 

16 Small Business Administration pursuant to 

17 section 3 of the Small Business Act (15 

18 U.S.C. 632) for small business concerns 

19 described by such classification code, and 

20 ‘‘(ii) in the case of any other enter21 prise, has a net worth that does not exceed 

22 $7,000,000 and has not more than 500 

23 employees. 

24 ‘‘(B) LOCAL LABOR ORGANIZATIONS.—In 

25 the case of any local labor organization, sub-
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1 paragraph (A) shall be applied without regard 

2 to any national or international organization of 

3 which such local labor organization is a part. 

4 ‘‘(C) PROFESSIONAL AND TRADE ASSOCIA5 TIONS.—In the case of any professional or 

6 trade association, subparagraph (A) shall be ap7 plied without regard to the net worth or num8 ber of employees of any member of such asso9 ciation. 

10 ‘‘(D) AGENCY DEFINITIONS.—Subpara11 graphs (A), (B), and (C) shall not apply to the 

12 extent that an agency establishes, after oppor13 tunity for public comment, one or more defini14 tions for such term which are appropriate to 

15 the activities of the agency and publishes such 

16 definition(s) in the Federal Register.’’. 

17 SEC. 4. REQUIREMENTS PROVIDING FOR MORE DETAILED 

18 ANALYSES. 

19 (a) INITIAL REGULATORY FLEXIBILITY ANALYSIS.—

20 Subsection (b) of section 603 of title 5, United States 

21 Code, is amended to read as follows: 

22 ‘‘(b) Each initial regulatory flexibility analysis re23 quired under this section shall contain a detailed state24 ment—
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1 ‘‘(1) describing the reasons why action by the 

2 agency is being considered; 

3 ‘‘(2) describing the objectives of, and legal basis 

4 for, the proposed rule; 

5 ‘‘(3) estimating the number and type of small 

6 entities to which the proposed rule will apply; 

7 ‘‘(4) describing the projected reporting, record8 keeping, and other compliance requirements of the 

9 proposed rule, including an estimate of the classes of 

10 small entities which will be subject to the require11 ment and the type of professional skills necessary 

12 for preparation of the report and record; 

13 ‘‘(5) describing all relevant Federal rules which 

14 may duplicate, overlap, or conflict with the proposed 

15 rule, or the reasons why such a description could not 

16 be provided; and 

17 ‘‘(6) estimating the additional cumulative eco18 nomic impact of the proposed rule on small entities 

19 beyond that already imposed on the class of small 

20 entities by the agency or why such an estimate is 

21 not available.’’. 

22 (b) FINAL REGULATORY FLEXIBILITY ANALYSIS.—

23 (1) IN GENERAL.—
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1 (A) Paragraph (1) of section 604(a) of 

2 title 5, United States Code, is amended by 

3 striking ‘‘succinct’’. 

4 (B) Paragraph (2) of such section is 

5 amended by striking ‘‘summary’’ each place it 

6 appears and inserting ‘‘statement’’. 

7 (C) Paragraph (3) of such section is 

8 amended by striking ‘‘an explanation’’ and in9 serting ‘‘a detailed explanation’’. 

10 (D) Paragraphs (3), (4), and (5) of such 

11 section are each amended by inserting ‘‘de12 tailed’’ before ‘‘description’’. 

13 (2) INCLUSION OF RESPONSE TO COMMENTS ON

14 CERTIFICATION OF PROPOSED RULE.—Paragraph 

15 (2) of section 604(a) of title 5, United States Code, 

16 is amended by inserting ‘‘(or certification of the pro17 posed rule under section 605(b))’’ after ‘‘initial reg18 ulatory flexibility analysis’’. 

19 (3) INCLUSION OF RESPONSE TO COMMENTS

20 FILED BY CHIEF COUNSEL FOR ADVOCACY.—Sub21 section (a) of section 604 of title 5, United States 

22 Code, is amended by redesignating paragraphs (3), 

23 (4), and (5) as paragraphs (4), (5), and (6), respec24 tively, and inserting after paragraph (2) the fol25 lowing new paragraph:
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1 ‘‘(3) the agency’s response to any comments 

2 filed by the Chief Counsel for Advocacy in response 

3 to the proposed rule, and a detailed statement of 

4 any changes made to the proposed rule in the final 

5 rule as a result of such comments;’’. 

6 (4) PUBLICATION OF ANALYSIS ON WEBSITE, 

7 ETC.—Subsection (b) of section 604 of title 5, 

8 United States Code, is amended to read as follows: 

9 ‘‘(b) The agency shall make copies of the final regu10 latory flexibility analysis available to the public, including 

11 placement of the entire analysis on the agency’s website, 

12 and shall publish in the Federal Register the final regu13 latory flexibility analysis, or a summary thereof which in14 cludes the telephone number, mailing address, and link to 

15 the website where the complete analysis may be ob16 tained.’’. 

17 (c) CROSS-REFERENCES TO OTHER ANALYSES.—

18 Subsection (a) of section 605 of title 5, United States 

19 Code, is amended to read as follows: 

20 ‘‘(a) A Federal agency shall be treated as satisfying 

21 any requirement regarding the content of an agenda or 

22 regulatory flexibility analysis under section 602, 603, or 

23 604, if such agency provides in such agenda or analysis 

24 a cross-reference to the specific portion of another agenda 
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1 or analysis which is required by any other law and which 

2 satisfies such requirement.’’. 

3 (d) CERTIFICATIONS.—Subsection (b) of such section 

4 is amended—

5 (1) by inserting ‘‘detailed’’ before ‘‘statement’’; 

6 and 

7 (2) by inserting ‘‘and legal’’ after ‘‘factual’’. 

8 (e) QUANTIFICATION REQUIREMENTS.—Section 607 

9 of title 5, United States Code, is amended to read as fol10 lows: 

11 ‘‘§ 607. Quantification requirements 

12 ‘‘In complying with sections 603 and 604, an agency 

13 shall provide—

14 ‘‘(1) a quantifiable or numerical description of 

15 the effects of the proposed or final rule and alter16 natives to the proposed or final rule; or 

17 ‘‘(2) a more general descriptive statement and 

18 a detailed statement explaining why quantification is 

19 not practicable or reliable.’’. 

20 SEC. 5. REPEAL OF PROCEDURE FOR WAIVER AND DELAY. 

21 (a) IN GENERAL.—Title 5, United States Code, is 

22 amended by striking section 608. 

23 (b) CONFORMING AMENDMENTS.—
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1 (1) Paragraphs (1) and (2) of section 611(a) of 

2 title 5, United States Code, are each amended by 

3 striking ‘‘608(b),’’. 

4 (2) Paragraph (3) of such section is amended—

5 (A) by striking subparagraph (B); and 

6 (B) by striking ‘‘(3)(A) A small entity’’ 

7 and inserting the following: 

8 ‘‘(3) A small entity’’. 

9 SEC. 6. PROCEDURES FOR GATHERING COMMENTS.

10 Section 609 of title 5, United States Code, is amend11 ed by striking subsection (b) and all that follows and in12 serting the following new subsections: 

13 ‘‘(b)(1) Prior to publication of any proposed rule de14 scribed in subsection (e), the agency making such rule 

15 shall notify the Chief Counsel for Advocacy and provide 

16 the Chief Counsel with—

17 ‘‘(A) all materials prepared or utilized by the 

18 agency in making the proposed rule, including the 

19 draft of the proposed rule; and 

20 ‘‘(B) information on the potential adverse and 

21 beneficial economic impacts of the proposed rule on 

22 small entities and the type of small entities that 

23 might be affected. 

24 ‘‘(2) An agency shall not be required under para25 graph (1) to provide the exact language of any draft of 
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1 a proposed rule relating to the internal revenue laws of 

2 the United States or implementing the Communications 

3 Act of 1934. 

4 ‘‘(c) Not later than 15 days after the receipt of such 

5 information, the Chief Counsel for Advocacy shall—

6 ‘‘(1) identify small entities or representatives of 

7 small entities or a combination of both for the pur8 pose of obtaining advice, input, and recommenda9 tions from those persons about the potential eco10 nomic impacts of the proposed rule and the compli11 ance of the agency with section 603 or section 

12 605(b) of this title; and 

13 ‘‘(2) convene a review panel consisting of an 

14 employee from the Office of Advocacy, an employee 

15 from the agency making the rule, and an employee 

16 from the Office of Information and Regulatory Af17 fairs of the Office of Management and Budget to re18 view the information provided to the Chief Counsel 

19 under subsection (b). 

20 ‘‘(d)(1) Not later than 60 days after the review panel 

21 described in subsection (c)(2) is convened, the Chief Coun22 sel for Advocacy shall, after consultation with the mem23 bers of such panel, submit a report to the agency and the 

24 Office of Information and Regulatory Affairs of the Office 

25 of Management and Budget. 
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1 ‘‘(2) Such report shall include an assessment of the 

2 impact of the proposed rule on small entities and a discus3 sion of any alternatives that will minimize adverse eco4 nomic impacts or maximize beneficial economic impacts on 

5 small entities. 

6 ‘‘(3) Such report shall become part of the rulemaking 

7 record. In the publication of the proposed rule, the agency 

8 shall explain what actions, if any, the agency took in re9 sponse to such report. 

10 ‘‘(e) A proposed rule is described by this subsection 

11 if the Administrator of the Office of Information and Reg12 ulatory Affairs of the Office of Management and Budget, 

13 the Administrator of the Environmental Protection Agen14 cy, the Assistant Secretary of the Occupational Safety and 

15 Health Administration, the Commissioner of the Internal 

16 Revenue Service, the Administrator of the Centers for 

17 Medicare & Medicaid Services, or the Federal Communica18 tions Commission determines that the proposed rule is 

19 likely to result in—

20 ‘‘(1) an annual effect on the economy of 

21 $100,000,000 or more; 

22 ‘‘(2) a major increase in costs or prices for con23 sumers, individual industries, Federal, State, or local 

24 governments, tribal organizations, or geographic re25 gions;
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1 ‘‘(3) significant adverse effects on competition, 

2 employment, investment, productivity, innovation, or 

3 on the ability of United States-based enterprises to 

4 compete with foreign-based enterprises in domestic 

5 and export markets; or 

6 ‘‘(4) a significant economic impact on a sub7 stantial number of small entities. 

8 ‘‘(f) Upon application by the agency, the Chief Coun9 sel for Advocacy may waive the requirements of sub10 sections (b) through (e) if the Chief Counsel determines 

11 that compliance with the requirements of such subsections 

12 are impracticable, unnecessary, or contrary to the public 

13 interest.’’. 

14 SEC. 7. PERIODIC REVIEW OF RULES. 

15 Section 610 of title 5, United States Code is amended 

16 to read as follows: 

17 ‘‘§ 610. Periodic review of rules 

18 ‘‘(a) Not later than 180 days after the enactment of 

19 the Regulatory Flexibility Improvements Act of 2002, 

20 each agency shall publish in the Federal Register and 

21 place on its website a plan for the periodic review of rules 

22 issued by the agency which the head of the agency deter23 mines has a significant economic impact on a substantial 

24 number of small entities. Such determination shall be 

25 made without regard to whether the agency performed an 
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1 analysis under section 604. The purpose of the review 

2 shall be to determine whether such rules should be contin3 ued without change, or should be amended or rescinded, 

4 consistent with the stated objectives of applicable statutes, 

5 to minimize any significant adverse economic impacts or 

6 maximize any significant beneficial economic impacts on 

7 a substantial number of small entities. Such plan may be 

8 amended by the agency at any time by publishing the revi9 sion in the Federal Register and subsequently placing the 

10 amended plan on the agency’s website. 

11 ‘‘(b) The plan shall provide for the review of all such 

12 agency rules existing on the date of the enactment of the 

13 Regulatory Flexibility Improvements Act of 2002 within 

14 10 years of the date of publication of the plan in the Fed15 eral Register and for review of rules adopted after the date 

16 of enactment of the Regulatory Flexibility Improvements 

17 Act of 2002 within 10 years after the publication of the 

18 final rule in the Federal Register. If the head of the agen19 cy determines that completion of the review of existing 

20 rules is not feasible by the established date, the head of 

21 the agency shall so certify in a statement published in the 

22 Federal Register and may extend the review for not longer 

23 than 2 years after publication of notice of extension in 

24 the Federal Register. Such certification and notice shall 
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1 be sent to the Chief Counsel for Advocacy and the Con2 gress. 

3 ‘‘(c) Each agency shall annually submit a report re4 garding the results of its review pursuant to such plan 

5 to the Congress and, in the case of agencies other than 

6 independent regulatory agencies (as defined in section 

7 3502(5) of title 44, United States Code) to the Adminis8 trator of the Office of Information and Regulatory Affairs 

9 of the Office of Management and Budget. Such report 

10 shall include the identification of any rule with respect to 

11 which the head of the agency made a determination de12 scribed in paragraph (5) or (6) of subsection (d) and a 

13 detailed explanation of the reasons for such determination. 

14 ‘‘(d) In reviewing rules under such plan, the agency 

15 shall consider the following factors: 

16 ‘‘(1) The continued need for the rule. 

17 ‘‘(2) The nature of complaints received by the 

18 agency from small entities concerning the rule. 

19 ‘‘(3) Comments by the Regulatory Enforcement 

20 Ombudsman and the Chief Counsel for Advocacy. 

21 ‘‘(4) The complexity of the rule. 

22 ‘‘(5) The extent to which the rule overlaps, du23 plicates, or conflicts with other Federal rules and, 

24 unless the head of the agency determines it to be in25 feasible, State and local rules. 
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1 ‘‘(6) The contribution of the rule to the cumu2 lative economic impact of all Federal rules on the 

3 class of small entities affected by the rule, unless the 

4 head of the agency determines that such calculations 

5 cannot be made and reports that determination in 

6 the annual report required under subsection (c). 

7 ‘‘(7) The length of time since the rule has been 

8 evaluated or the degree to which technology, eco9 nomic conditions, or other factors have changed in 

10 the area affected by the rule. 

11 ‘‘(e) The agency shall publish in the Federal Register 

12 and on its website a list of rules to be reviewed pursuant 

13 to such plan. Such publication shall include a brief de14 scription of the rule, the reason why the agency deter15 mined that it has a significant economic impact on a sub16 stantial number of small entities (without regard to wheth17 er it had prepared a final regulatory flexibility analysis 

18 for the rule), and request comments from the public, the 

19 Chief Counsel for Advocacy, and the Regulatory Enforce20 ment Ombudsman concerning the enforcement of the 

21 rule.’’. 
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1 SEC. 8. JUDICIAL REVIEW OF COMPLIANCE WITH THE RE2 QUIREMENTS OF THE REGULATORY FLEXI3 BILITY ACT AVAILABLE AFTER PUBLICATION 

4 OF THE FINAL RULE.

5 (a) IN GENERAL.—Paragraph (1) of section 611(a) 

6 of title 5, United States Code, is amended by striking 

7 ‘‘final agency action’’ and inserting ‘‘such rule’’. 

8 (b) JURISDICTION.—Paragraph (2) of such section is 

9 amended by inserting ‘‘(or which would have such jurisdic10 tion if publication of the final rule constituted final agency 

11 action)’’ after ‘‘provision of law,’’. 

12 (c) TIME FOR BRINGING ACTION.—Paragraph (3) of 

13 such section (as amended by section 5(b)(2)) is amend14 ed—

15 (1) by striking ‘‘final agency action’’ and insert16 ing ‘‘publication of the final rule’’; and 

17 (2) by inserting ‘‘, in the case of a rule for 

18 which the date of final agency action is the same 

19 date as the publication of the final rule,’’ after ‘‘ex20 cept that’’. 

21 (d) INTERVENTION BY CHIEF COUNSEL FOR ADVO22 CACY.—Subsection (b) of section 612 of title 5, United 

23 States Code, is amended by inserting before the first pe24 riod ‘‘or agency compliance with section 601, 604, 605(b), 

25 609, or 610’’.
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1 SEC. 9. ESTABLISHMENT AND APPROVAL OF SMALL BUSI2 NESS CONCERN SIZE STANDARDS BY CHIEF 

3 COUNSEL FOR ADVOCACY. 

4 (a) IN GENERAL.—Subparagraph (A) of section 

5 3(a)(2) of the Small Business Act (15 U.S.C. 

6 632(a)(2)(A)) is amended to read as follows: 

7 ‘‘(A) IN GENERAL.—In addition to the cri8 teria specified in paragraph (1)—

9 ‘‘(i) the Administrator may specify de10 tailed definitions or standards by which a 

11 business concern may be determined to be 

12 a small business concern for purposes of 

13 this Act or the Small Business Investment 

14 Act of 1958; and 

15 ‘‘(ii) the Chief Counsel for Advocacy 

16 may specify such definitions or standards 

17 for purposes of any other Act.’’. 

18 (b) APPROVAL BY CHIEF COUNSEL.—Clause (iii) of 

19 section 3(a)(2)(C) of the Small Business Act (15 U.S.C. 

20 632(a)(2)(C)(iii)) is amended to read as follows: 

21 ‘‘(iii) except in the case of a size 

22 standard prescribed by the Administrator, 

23 is approved by the Chief Counsel for Advo24 cacy.’’. 
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1 (c) INDUSTRY VARIATION.—Paragraph (3) of section 

2 3(a) of the Small Business Act (15 U.S.C. 632(a)(3)) is 

3 amended—

4 (1) by inserting ‘‘and Chief Counsel for Advo5 cacy’’ before ‘‘shall ensure’’; and 

6 (2) by inserting ‘‘or Chief Counsel for Advo7 cacy’’ before the period at the end. 

8 (d) JUDICIAL REVIEW OF SIZE STANDARDS AP9 PROVED BY CHIEF COUNSEL.—Section 3(a) of the Small 

10 Business Act (15 U.S.C. 632(a)) is amended by adding 

11 at the end the following new paragraph: 

12 ‘‘(4) JUDICIAL REVIEW OF STANDARDS APPROVED BY

13 CHIEF COUNSEL.—In the case of an action for judicial re14 view of a rule which includes a definition or standard ap15 proved by the Chief Counsel for Advocacy under this sub16 section, the party seeking such review shall be entitled to 

17 join the Chief Counsel as a party in such action.’’. 

18 SEC. 10. ADDITIONAL POWERS OF THE CHIEF COUNSEL 

19 FOR ADVOCACY. 

20 (a) IN GENERAL.—Chapter 6 of title 5, United 

21 States Code, is amended by adding at the end the fol22 lowing new section: 
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1 ‘‘§ 613. Additional powers of Chief Counsel for Advo2 cacy 

3 ‘‘(a)(1) Not later than 270 days after the date of the 

4 enactment of the Regulatory Flexibility Improvements Act 

5 of 2002, the Chief Counsel for Advocacy shall, after oppor6 tunity for notice and comment under section 553, issue 

7 rules governing agency compliance with this chapter. The 

8 Chief Counsel may modify or amend such rules after no9 tice and comment under section 553. This chapter (other 

10 than this subsection and section 614) shall not apply with 

11 respect to the issuance, modification, and amendment of 

12 rules under this paragraph. 

13 ‘‘(2) An agency shall not issue rules which supple14 ment the rules issued under subsection (a) unless such 

15 agency has first consulted with the Chief Counsel for Ad16 vocacy to ensure that such supplemental rules comply with 

17 this chapter and the rules issued under paragraph (1). 

18 ‘‘(b) Notwithstanding any other law, the Chief Coun19 sel for Advocacy may intervene in any adjudication before 

20 any Federal agency (unless such agency is authorized to 

21 impose a fine or penalty under such adjudication), and 

22 may inform the agency of the impact that any decision 

23 on the record may have on small entities. The Chief Coun24 sel shall not initiate an appeal with respect to any adju25 dication in which the Chief Counsel intervenes under this 

26 subsection.
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1 ‘‘(c) The Chief Counsel for Advocacy may file com2 ments in response to any agency notice requesting com3 ment, regardless of whether the agency is required to file

4 a general notice of proposed rulemaking under section

5 553.’’.

6 (b) JURISDICTION OF COURT OF APPEALS OVER

7 RULES IMPLEMENTING THE REGULATORY FLEXIBILITY

8 ACT.—

9 (1) IN GENERAL.—Section 2342 of title 28,

10 United States Code, is amended—

11 (A) in paragraph (6), by striking ‘‘and’’ at

12 the end;

13 (B) in paragraph (7), by striking the pe14 riod at the end and inserting ‘‘; and’’; and

15 (C) by adding at the end the following new

16 paragraph:

17 ‘‘(8) all final rules under section 613(a) of title

18 5, United States Code.’’.

19 (2) CONFORMING AMENDMENTS.—Paragraph

20 (3) of section 2341 of title 28, United States Code,

21 is amended—

22 (A) in subparagraph (D), by striking

23 ‘‘and’’ at the end;

24 (B) in subparagraph (E), by striking the

25 period at the end and inserting ‘‘; and’’; and
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1 (C) by adding at the end the following new 

2 subparagraph: 

3 ‘‘(F) the Office of Advocacy of the Small 

4 Business Administration, when the final rule is 

5 under section 613(a) of title 5, United States 

6 Code.’’. 

7 (c) AUTHORIZATION TO INTERVENE AND COMMENT

8 ON AGENCY COMPLIANCE WITH ADMINISTRATIVE PROCE9 DURE.—Subsection (b) of section 612 of title 5, United 

10 States Code, is amended by inserting ‘‘chapter 5, and 

11 chapter 7,’’ after ‘‘this chapter,’’. 

12 SEC. 11. CLERICAL AMENDMENTS. 

13 (a) Section 601 of title 5, United States Code, is 

14 amended—

15 (1) in paragraph (1)—

16 (A) by striking the semicolon at the end 

17 and inserting a period; and 

18 (B) by striking ‘‘(1) the term’’ and insert19 ing the following: 

20 ‘‘(1) AGENCY.—The term’’; 

21 (2) in paragraph (3)—

22 (A) by striking the semicolon at the end 

23 and inserting a period, and 

24 (B) by striking ‘‘(3) the term’’ and insert25 ing the following: 
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1 ‘‘(3) SMALL BUSINESS.—The term’’; 

2 (3) in paragraph (5)—

3 (A) by striking the semicolon at the end 

4 and inserting a period, and 

5 (B) by striking ‘‘(5) the term’’ and insert6 ing the following: 

7 ‘‘(5) SMALL GOVERNMENTAL JURISDICTION.—

8 The term’’; and 

9 (4) in paragraph (6)—

10 (A) by striking ‘‘; and’’ and inserting a pe11 riod, and 

12 (B) by striking ‘‘(6) the term’’ and insert13 ing the following: 

14 ‘‘(6) SMALL ENTITY.—The term’’. 

15 (b) The heading of section 605 of title 5, United 

16 States Code, is amended to read as follows: 

17 ‘‘§ 605. Incorporations by reference and certifi18 cations’’. 

19 (c) The table of sections for chapter 6 of title 5, 

20 United States Code, is amended—

21 (1) by striking the item relating to section 605 

22 and inserting the following new item:

‘‘605. Incorporations by reference and certifications.’’;

23 (2) by striking the item relating to section 607 

24 and inserting the following new item:

‘‘607. Quantification requirements.’’;
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1 (3) by striking the item relating to section 608; 

2 and 

3 (4) by inserting at the end the following new 

4 item:

‘‘613. Additional powers of Chief Counsel for Advocacy.’’.

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