II 

Calendar No. 284 

115TH CONGRESS 

1ST SESSION S. 584 

[Report No. 115–194] 

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 

MARCH 8, 2017 

Mr. LANKFORD (for himself, Mr. RISCH, Mr. GRASSLEY, Mr. HATCH, Mr. 

HOEVEN, Mr. ROBERTS, and Mr. RUBIO) introduced the following bill; 

which was read twice and referred to the Committee on Homeland Security and Governmental Affairs 

DECEMBER 14, 2017 

Reported by Mr. JOHNSON, with amendments 

[Omit the part struck through and insert the part printed in italic] 

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, 


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Small Business Regu3 latory Flexibility Improvements Act’’. 

4 SEC. 2. CLARIFICATION AND EXPANSION OF RULES COV5 ERED BY THE REGULATORY FLEXIBILITY 

6 ACT. 

7 (a) IN GENERAL.—Section 601(2) of title 5, United 

8 States Code, is amended to read as follows: 

9 ‘‘(2) RULE.—The term ‘rule’— 

10 ‘‘(A) has the meaning given such the term 

11 in section 551(4) of this title; and 

12 ‘‘(B) does not include— 

13 ‘‘(i) a rule pertaining to the protection 

14 of the rights of and benefits for veterans 

15 or part 232 of title 32, of the Code of Fed16 eral Regulations (as in effect on July 1, 

17 2014), or any successor provisions thereto; 

18 or 

19 ‘‘(ii) a rule of particular (and not gen20 eral) applicability relating to rates, wages, 

21 corporate or financial structures or reorga22 nizations thereof, prices, facilities, appli23 ances, services, or allowances therefor or to 

24 valuations, costs or accounting, or prac25 tices relating to such rates, wages, strucVerDate Sep 11 2014 20:55 Dec 18, 2017 Jkt 079200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S584.RS S584

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1 tures, prices, appliances, services, or allow2 ances.’’. 

3 (b) INCLUSION OF RULES WITH INDIRECT EF4 FECTS.—Section 601 of title 5, United States Code, is 

5 amended by adding at the end the following: 

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

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

8 rule— 

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

10 entities of such rule; and 

11 ‘‘(B) any indirect economic effect (includ12 ing compliance costs and effects on revenue) on 

13 small entities which is reasonably foreseeable 

14 and results from such rule (without regard to 

15 whether small entities will be directly regulated 

16 by the rule).’’. 

17 (c) INCLUSION OF RULES WITH BENEFICIAL EF18 FECTS.— 

19 (1) INITIAL REGULATORY FLEXIBILITY ANAL20 YSIS.—Section 603(c) of title 5, United States Code, 

21 is amended by striking the first sentence and insert22 ing ‘‘Each initial regulatory flexibility analysis shall 

23 also contain a detailed description of alternatives to 

24 the proposed rule which minimize any adverse sigVerDate Sep 11 2014 20:55 Dec 18, 2017 Jkt 079200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S584.RS S584

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1 nificant economic impact or maximize any beneficial 

2 significant economic impact on small entities.’’. 

3 (2) FINAL REGULATORY FLEXIBILITY ANAL4 YSIS.—Section 604(a) of title 5, United States Code, 

5 is amended— 

6 (A) by redesignating the second paragraph 

7 designated as paragraph (6) (relating to cov8 ered agencies) as paragraph (7); and 

9 (B) in paragraph (6), by striking ‘‘mini10 mize the significant economic impact’’ and in11 serting ‘‘minimize the adverse significant eco12 nomic impact or maximize the beneficial signifi13 cant economic impact’’. 

14 (d) INCLUSION OF RULES AFFECTING TRIBAL ORGA15 NIZATIONS.—Section 601(5) of title 5, United States 

16 Code, is amended by inserting ‘‘and tribal organizations 

17 (as defined in section 4(l) of the Indian Self-Determina18 tion and Education Assistance Act (25 U.S.C. 450b 

19 5304(l))),’’ after ‘‘special districts,’’. 

20 (e) INCLUSION OF LAND MANAGEMENT PLANS AND

21 FORMAL RULE MAKING.— 

22 (1) INITIAL REGULATORY FLEXIBILITY ANAL23 YSIS.—Section 603(a) of title 5, United States Code, 

24 is amended in the first sentence— 


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

2 rule,’’; and 

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

4 amendment to a land management plan,’’ after 

5 ‘‘United States,’’. 

6 (2) FINAL REGULATORY FLEXIBILITY ANAL7 YSIS.—Section 604(a) of title 5, United States Code, 

8 is amended in the first sentence— 

9 (A) by striking ‘‘or’’ after ‘‘proposed rule10 making,’’; and 

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

12 amendment to a land management plan,’’ after 

13 ‘‘section 603(a),’’. 

14 (3) LAND MANAGEMENT PLAN DEFINED.—Sec15 tion 601 of title 5, United States Code, as amended 

16 by subsection (b), is amended by adding at the end 

17 the following: 

18 ‘‘(10) LAND MANAGEMENT PLAN.— 

19 ‘‘(A) IN GENERAL.—The term ‘land man20 agement plan’ means— 

21 ‘‘(i) any plan developed by the Sec22 retary of Agriculture under section 6 of 

23 the Forest and Rangeland Renewable Re24 sources Planning Act of 1974 (16 U.S.C. 

25 1604); and 


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1 ‘‘(ii) any plan developed by the Sec2 retary of the Interior under section 202 of 

3 the Federal Land Policy and Management 

4 Act of 1976 (43 U.S.C. 1712). 

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

6 means any change to a land management plan 

7 which— 

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

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

10 6(f)(5) of the Forest and Rangeland Re11 newable Resources Planning Act of 1974 

12 (16 U.S.C. 1604(f)(5)); or 

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

14 subparagraph (A)(ii), is made under sec15 tion 1610. 5–6 of title 43, Code of Federal 

16 Regulations (or any successor regulation). 

17 ‘‘(C) AMENDMENT.—The term ‘amend18 ment’ means any change to a land management 

19 plan which— 

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

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

22 6(f)(4) of the Forest and Rangeland Re23 newable Resources Planning Act of 1974 

24 (16 U.S.C. 1604(f)(4)) and with respect to 

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1 pares a statement described in section 

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

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

4 4332(2)(C)); or 

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

6 subparagraph (A)(ii), is made under sec7 tion 1610.5–5 of title 43, Code of Federal 

8 Regulations (or any successor regulation), 

9 and with respect to which the Secretary of 

10 the Interior prepares a statement described 

11 in section 102(2)(C) of the National Envi12 ronmental Policy Act of 1969 (42 U.S.C. 

13 4332(2)(C)).’’. 

14 (f) INCLUSION OF CERTAIN INTERPRETIVE RULES

15 INVOLVING THE INTERNAL REVENUE LAWS.— 

16 (1) IN GENERAL.—Section 603(a) of title 5, 

17 United States Code, is amended by striking the pe18 riod at the end and inserting ‘‘or a recordkeeping re19 quirement, and without regard to whether such re20 quirement is imposed by statute or regulation.’’. 

21 (2) COLLECTION OF INFORMATION.—Section 

22 601(7) of title 5, United States Code, is amended to 

23 read as follows: 


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

2 ‘collection of information’ has the meaning given the 

3 term in section 3502 of title 44.’’. 

4 (3) RECORDKEEPING REQUIREMENT.—Section 

5 601(8) of title 5, United States Code, is amended to 

6 read as follows: 

7 ‘‘(8) RECORDKEEPING REQUIREMENT.—The 

8 term ‘recordkeeping requirement’ has the meaning 

9 given the term in section 3502 of title 44.’’. 

10 (g) DEFINITION OF SMALL ORGANIZATION.—Section 

11 601(4) of title 5, United States Code, is amended to read 

12 as follows: 

13 ‘‘(4) SMALL ORGANIZATION.— 

14 ‘‘(A) IN GENERAL.—The term ‘small orga15 nization’ means any nonprofit enterprise which, 

16 as of the issuance of the a notice of proposed 

17 rule making— 

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

19 is described by a classification code of the 

20 North American Industrial Classification 

21 System, does not exceed the size standard 

22 established by the Administrator of the 

23 Small Business Administration pursuant to 

24 section 3 of the Small Business Act (15 


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

2 described by such classification code; and 

3 ‘‘(ii) in the case of any other enter4 prise, has a net worth that does not exceed 

5 $7,000,000 and has not more than 500 

6 employees. 

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

8 the case of any local labor organization, sub9 paragraph (A) shall be applied without regard 

10 to any national or international organization of 

11 which such local labor organization is a part. 

12 ‘‘(C) AGENCY DEFINITIONS.—Subpara13 graphs (A) and (B) shall not apply to the ex14 tent that an agency, after consultation with the 

15 Office of Advocacy of the Small Business Ad16 ministration and after opportunity for public 

17 comment, establishes one or more definitions 

18 for such term which are appropriate to the ac19 tivities of the agency and publishes such defini20 tions in the Federal Register.’’. 

21 SEC. 3. EXPANSION OF REPORT OF REGULATORY AGENDA. 

22 Section 602 of title 5, United States Code, is amend23 ed— 

24 (1) in subsection (a)— 


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1 (A) in paragraph (2), by striking ‘‘, and’’ 

2 at the end and inserting a semicolon; 

3 (B) by redesignating paragraph (3) as 

4 paragraph (4); and 

5 (C) by inserting after paragraph (2) the 

6 following: 

7 ‘‘(3) a brief description of the sector of the 

8 North American Industrial Classification System 

9 that is primarily affected by any rule which the 

10 agency expects to propose or promulgate which is 

11 likely to have a significant economic impact on a 

12 substantial number of small entities; and’’; and 

13 (2) in subsection (c), to read as follows: 

14 ‘‘(c)(1) Not later than 3 days after the date on which 

15 an agency publishes a regulatory flexibility agenda in the 

16 Federal Register under subsection (a), the agency shall 

17 prominently display on the website of the agency a plain 

18 language summary of the information contained in the 

19 regulatory flexibility agenda. 

20 ‘‘(2) The Office of Advocacy of the Small Business 

21 Administration shall compile, by agency, and prominently 

22 display on the website of the Small Business Administra23 tion a plain language summary of each regulatory flexi24 bility agenda published under subsection (a) not later than 


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1 3 days after the date of publication in the Federal Reg2 ister.’’. 

3 SEC. 4. REQUIREMENTS PROVIDING FOR MORE DETAILED 

4 ANALYSES. 

5 (a) INITIAL REGULATORY FLEXIBILITY ANALYSIS.— 

6 Section 603(b) of title 5, United States Code, is amended 

7 to read as follows: 

8 ‘‘(b) Each initial regulatory flexibility analysis re9 quired under this section shall contain a detailed state10 ment— 

11 ‘‘(1) describing the reasons why action by the 

12 agency is being considered; 

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

14 for, the proposed rule; 

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

16 entities to which the proposed rule will apply; 

17 ‘‘(4) describing the projected reporting, record18 keeping, and other compliance requirements of the 

19 proposed rule, including an estimate of the classes of 

20 small entities which will be subject to the require21 ment and the type of professional skills necessary 

22 for preparation of the report and record; 

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

24 may duplicate, overlap, or conflict with the proposed 


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

2 be provided; 

3 ‘‘(6) estimating the additional cumulative eco4 nomic impact of the proposed rule on small entities 

5 beyond that already imposed on the class of small 

6 entities by the agency or why such an estimate is 

7 not available; 

8 ‘‘(7) describing any disproportionate economic 

9 impact on small entities or a specific class of small 

10 entities; and 

11 ‘‘(8) describing any impairment of the ability of 

12 small entities to have access to credit.’’. 

13 (b) FINAL REGULATORY FLEXIBILITY ANALYSIS.— 

14 (1) IN GENERAL.—Section 604(a) of title 5, 

15 United States Code, is amended— 

16 (A) in paragraph (4)— 

17 (i) by inserting ‘‘detailed’’ before ‘‘de18 scription’’; and 

19 (ii) by striking ‘‘an explanation’’ and 

20 inserting ‘‘a detailed explanation’’; 

21 (B) in paragraph (5), by inserting ‘‘de22 tailed’’ before ‘‘description’’; 

23 (C) in paragraph (6)— 

24 (i) by inserting ‘‘detailed’’ before ‘‘de25 scription’’; and 


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1 (ii) by striking ‘‘; and’’ at the end; 

2 (D) in paragraph (7), as so redesignated, 

3 by striking the period at the end and inserting 

4 ‘‘; and’’; and 

5 (E) by adding at the end the following: 

6 ‘‘(8) a detailed description of any dispropor7 tionate economic impact on small entities or a spe8 cific class of small entities.’’. 

9 (2) INCLUSION OF RESPONSE TO COMMENTS ON

10 CERTIFICATION OF PROPOSED RULE.—Section 

11 604(a)(2) of title 5, United States Code, is amended 

12 by inserting ‘‘(or certification of the proposed rule 

13 under section 605(b))’’ after ‘‘initial regulatory flexi14 bility analysis’’. 

15 (3) PUBLICATION OF ANALYSIS ON WEBSITE.— 

16 Section 604(b) of title 5, United States Code, is 

17 amended to read as follows: 

18 ‘‘(b) The agency shall make copies of the final regu19 latory flexibility analysis available to the public, including 

20 placement of the entire analysis on the website of the 

21 agency, and shall publish in the Federal Register the final 

22 regulatory flexibility analysis, or a summary thereof which 

23 includes the telephone number, mailing address, and link 

24 to the website where the complete analysis may be ob25 tained.’’. 


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

2 Section 605(a) of title 5, United States Code, is amended 

3 to read as follows: 

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

5 any requirement regarding the content of a regulatory 

6 flexibility agenda or regulatory flexibility analysis under 

7 section 602, 603, or 604 if the Federal agency provides 

8 in the agenda or analysis a cross-reference to the specific 

9 portion of another agenda or analysis which is required 

10 by any other law and which satisfies the requirement.’’. 

11 (d) CERTIFICATIONS.—Section 605(b) of title 5, 

12 United States Code, is amended by striking ‘‘statement 

13 providing the factual basis for such certification.’’ and in14 serting ‘‘detailed statement providing the factual and legal 

15 basis for such certification. The detailed statement shall 

16 include an economic assessment or a summary thereof 

17 that is sufficiently detailed to support the certification of 

18 the agency.’’. 

19 (e) QUANTIFICATION REQUIREMENTS.—Section 607 

20 of title 5, United States Code, is amended to read as fol21 lows: 

22 ‘‘SEC. 607. QUANTIFICATION REQUIREMENTS. 

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

24 shall provide— 


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

2 the effects of the proposed or final rule and alter3 natives to the proposed or final rule; or 

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

5 a detailed statement explaining why quantification is 

6 not practicable or reliable.’’. 

7 ‘‘§ 607. Quantification requirements 

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

9 shall provide— 

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

11 the effects of the proposed or final rule and alter12 natives to the proposed or final rule; or 

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

14 detailed statement explaining why quantification is 

15 not practicable or reliable.’’. 

16 SEC. 5. REPEAL OF WAIVER AND DELAY AUTHORITY; ADDI17 TIONAL POWERS OF THE CHIEF COUNSEL 

18 FOR ADVOCACY. 

19 (a) IN GENERAL.—Section 608 of title 5, United 

20 States Code, is amended to read as follows: 

21 ‘‘§ 608. Additional powers of chief counsel for advo22 cacy 

23 ‘‘(a)(1) Not later than 270 days after the date of en24 actment of this section the Small Business Regulatory 

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1 cacy of the Small Business Administration shall, after op2 portunity for notice and comment under section 553, issue 

3 rules governing agency compliance with this chapter. The 

4 Chief Counsel may modify or amend such rules after no5 tice and comment under section 553. This chapter (other 

6 than this subsection) shall not apply with respect to the 

7 issuance, modification, and amendment of rules under this 

8 paragraph. 

9 ‘‘(2) An agency shall not issue rules which supple10 ment the rules issued under subsection (a) unless such 

11 agency has first consulted with the Chief Counsel for Ad12 vocacy to ensure that the supplemental rules comply with 

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

14 ‘‘(b) Notwithstanding any other law, the Chief Coun15 sel for Advocacy of the Small Business Administration 

16 may intervene in any agency adjudication (unless such 

17 agency is authorized to impose a fine or penalty under 

18 such adjudication), and may inform the agency of the im19 pact that any decision on the record may have on small 

20 entities. The Chief Counsel shall not initiate an appeal 

21 with respect to any adjudication in which the Chief Coun22 sel intervenes under this subsection. 

23 ‘‘(c) The Chief Counsel for Advocacy may file com24 ments in response to any agency notice requesting com25 ment, regardless of whether the agency is required to file 


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1 a general notice of proposed rule making under section 

2 553.’’. 

3 (b) CONFORMING AMENDMENTS.—Section 611(a) of 

4 title 5, United States Code, is amended— 

5 (1) in paragraph (1), by striking ‘‘608(b),’’; 

6 (2) in paragraph (2), by striking ‘‘608(b),’’; 

7 and 

8 (3) in paragraph (3)— 

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

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

11 and inserting the following: 

12 ‘‘(3) A small entity’’. 

13 SEC. 6. PROCEDURES FOR GATHERING COMMENTS. 

14 Section 609 of title 5, United States Code, is amend15 ed by striking subsection (b) and all that follows through 

16 the end of the section and inserting the following: 

17 ‘‘(b)(1) Prior to publication of any proposed rule de18 scribed in subsection (e), an agency making the rule shall 

19 notify the Chief Counsel for Advocacy of the Small Busi20 ness Administration and provide the Chief Counsel with— 

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

22 agency in making the proposed rule, including the 

23 draft of the proposed rule; and 

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

25 beneficial economic impacts of the proposed rule on 


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1 small entities and the type of small entities that 

2 might be affected. 

3 ‘‘(2) An agency shall not be required under para4 graph (1) to provide the exact language of any draft if 

5 the rule— 

6 ‘‘(A) relates to the internal revenue laws of the 

7 United States; or 

8 ‘‘(B) is proposed by an independent regulatory 

9 agency. 

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

11 materials and information under subsection (b), the Chief 

12 Counsel for Advocacy of the Small Business Administra13 tion shall— 

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

15 small entities or a combination of both for the pur16 pose of obtaining advice, input, and recommenda17 tions from those persons about the potential eco18 nomic impacts of the proposed rule and the compli19 ance of the agency with section 603; and 

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

21 employee from the Office of Advocacy of the Small 

22 Business Administration, an employee from the 

23 agency making the rule, and, in the case of an agen24 cy other than an independent regulatory agency, an 

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1 latory Affairs of the Office of Management and 

2 Budget to review the materials and information pro3 vided to the Chief Counsel under subsection (b). 

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

5 described in subsection (c)(2) is convened, the Chief Coun6 sel for Advocacy of the Small Business Administration 

7 shall, after consultation with the members of the panel, 

8 submit a report to the agency and, in the case of an agen9 cy other than an independent regulatory agency, the Office 

10 of Information and Regulatory Affairs of the Office of 

11 Management and Budget. 

12 ‘‘(2) Each report described in paragraph (1) shall in13 clude an assessment of the economic impact of the pro14 posed rule on small entities, including— 

15 ‘‘(A) an assessment of the impact of the pro16 posed rule on the cost that small entities pay for en17 ergy; 

18 ‘‘(B) an assessment of the impact of the pro19 posed rule on startup costs for small entities; and 

20 ‘‘(C) a discussion of any alternatives that will 

21 minimize adverse significant economic impacts or 

22 maximize beneficial significant economic impacts on 

23 small entities. 

24 ‘‘(3) Each report described in paragraph (1) shall be25 come part of the rule making record. In the publication 


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1 of the proposed rule, the agency shall explain what actions, 

2 if any, the agency took in response to the report. 

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

4 if the Administrator of the Office of Information and Reg5 ulatory Affairs of the Office of Management and Budget, 

6 the head of the agency (or the delegatee of the head of 

7 the agency), or an independent regulatory agency deter8 mines that the proposed rule is likely to result in— 

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

10 $100,000,000 or more; 

11 ‘‘(2) a major increase in costs or prices for con12 sumers, individual industries, Federal, State, or local 

13 governments, tribal organizations, or geographic re14 gions; 

15 ‘‘(3) significant adverse effects on competition, 

16 employment, investment, productivity, innovation, or 

17 on the ability of United States-based enterprises to 

18 compete with foreign-based enterprises in domestic 

19 and export markets; or 

20 ‘‘(4) a significant economic impact on a sub21 stantial number of small entities. 

22 ‘‘(f) Upon application by the agency, the Chief Coun23 sel for Advocacy of the Small Business Administration 

24 may waive the requirements of subsections (b) through (e) 

25 if the Chief Counsel determines that compliance with the 


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1 requirements of such subsections are impracticable, un2 necessary, or contrary to the public interest. 

3 ‘‘(g) A small entity or a representative of a small enti4 ty may submit a request that the agency provide a copy 

5 of the report prepared under subsection (d) and all mate6 rials and information provided to the Chief Counsel for 

7 Advocacy of the Small Business Administration under 

8 subsection (b). The agency receiving such request shall 

9 provide the report, materials, and information to the re10 questing small entity or representative of a small entity 

11 not later than 10 business days after receiving such re12 quest, except that the agency shall not disclose any infor13 mation that is prohibited from disclosure to the public 

14 pursuant to section 552(b) of this title. 

15 ‘‘(h) In this section, the term ‘independent regulatory 

16 agency’ has the meaning given the term in section 3502 

17 of title 44.’’. 

18 SEC. 7. PERIODIC REVIEW OF RULES. 

19 Section 610 of title 5, United States Code, is amend20 ed to read as follows: 

21 ‘‘§ 610. Periodic review of rules 

22 ‘‘(a) Not later than 180 days after the date of enact23 ment of this section the Small Business Regulatory Flexi24 bility Improvements Act, each agency shall publish in the 

25 Federal Register and place on website of the agency a plan 


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1 for the periodic review of rules issued by the agency which 

2 the head of the agency determines have a significant eco3 nomic impact on a substantial number of small entities. 

4 Such determination shall be made without regard to 

5 whether the agency performed an analysis under section 

6 604. The purpose of the review shall be to determine 

7 whether such rules should be continued without change, 

8 or should be amended or rescinded, consistent with the 

9 stated objectives of applicable statutes, to minimize any 

10 adverse significant economic impacts or maximize any 

11 beneficial significant economic impacts on a substantial 

12 number of small entities. Such plan may be amended by 

13 the agency at any time by publishing the revision in the 

14 Federal Register and subsequently placing the amended 

15 plan on the website of the agency. 

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

17 agency rules existing on the date of enactment of this sec18 tion the Small Business Regulatory Flexibility Improve19 ments Act within 10 years of the date of publication of 

20 the plan in the Federal Register and for review of rules 

21 adopted after the date of enactment of this section the 

22 Small Business Regulatory Flexibility Improvements Act 

23 within 10 years after the publication of the final rule in 

24 the Federal Register. If the head of the agency determines 

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1 sible by the established date, the head of the agency shall 

2 so certify in a statement published in the Federal Register 

3 and may extend the review for not longer than 2 years 

4 after publication of notice of extension in the Federal Reg5 ister. Such certification and notice shall be sent to the 

6 Chief Counsel for Advocacy of the Small Business Admin7 istration and the Congress. 

8 ‘‘(c) The plan shall include a section that details how 

9 an agency will conduct outreach to and meaningfully in10 clude small businesses (including small business concerns 

11 owned and controlled by women, small business concerns 

12 owned and controlled by veterans, and small business con13 cerns owned and controlled by socially and economically 

14 disadvantaged individuals (as such terms are defined in 

15 section 3 and section 8(d)(3)(C) of the Small Business Act 

16 (15 U.S.C. 632 and 637(d)(3)(C)))) for the purposes of 

17 carrying out this section. The agency shall include in this 

18 section a plan for how the agency will contact small busi19 nesses and gather their input on existing agency rules. 

20 ‘‘(d) Each agency shall annually submit a report re21 garding the results of its review pursuant to such plan 

22 to Congress, the Chief Counsel for Advocacy of the Small 

23 Business Administration, and, in the case of agencies 

24 other than independent regulatory agencies (as defined in 

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1 fice of Information and Regulatory Affairs of the Office 

2 of Management and Budget. Such report shall include the 

3 identification of any rule with respect to which the head 

4 of the agency made a determination described in para5 graph (5) or (6) of subsection (e) and a detailed expla6 nation of the reasons for such determination. 

7 ‘‘(e) In reviewing a rule pursuant to subsections (a) 

8 through (d), the agency shall amend or rescind the rule 

9 to minimize any adverse significant economic impact on 

10 a substantial number of small entities or disproportionate 

11 economic impact on a specific class of small entities, or 

12 maximize any beneficial significant economic impact of the 

13 rule on a substantial number of small entities to the great14 est extent possible, consistent with the stated objectives 

15 of applicable statutes. In amending or rescinding the rule, 

16 the agency shall consider the following factors: 

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

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

19 agency from small entities concerning the rule. 

20 ‘‘(3) Comments by the Regulatory Enforcement 

21 Ombudsman and the Chief Counsel for Advocacy of 

22 the Small Business Administration. 

23 ‘‘(4) The complexity of the rule. 

24 ‘‘(5) The extent to which the rule overlaps, du25 plicates, or conflicts with other Federal rules and, 


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1 unless the head of the agency determines it to be in2 feasible, State, territorial, and local rules. 

3 ‘‘(6) The contribution of the rule to the cumu4 lative economic impact of all Federal rules on the 

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

6 head of the agency determines that such calculations 

7 cannot be made and reports that determination in 

8 the annual report required under subsection (d). 

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

10 evaluated or the degree to which technology, eco11 nomic conditions, or other factors have changed in 

12 the area affected by the rule. 

13 ‘‘(f) Each year, each agency shall publish in the Fed14 eral Register and on its website a list of rules to be re15 viewed pursuant to such plan. The agency shall include 

16 in the publication a solicitation of public comments on any 

17 further inclusions or exclusions of rules from the list, and 

18 shall respond to such comments. Such publication shall 

19 include a brief description of the rule, the reason why the 

20 agency determined that it has a significant economic im21 pact on a substantial number of small entities (without 

22 regard to whether it had prepared a final regulatory flexi23 bility analysis for the rule), and request comments from 

24 the public, the Chief Counsel for Advocacy of the Small 

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1 ment Ombudsman concerning the enforcement of the 

2 rule.’’. 

3 SEC. 8. JUDICIAL REVIEW OF COMPLIANCE WITH THE RE4 QUIREMENTS OF THE REGULATORY FLEXI5 BILITY ACT AVAILABLE AFTER PUBLICATION 

6 OF THE FINAL RULE. 

7 (a) IN GENERAL.—Section 611(a) of title 5, United 

8 States Code, is amended— 

9 (1) in paragraph (1), by striking ‘‘final agency 

10 action’’ and inserting ‘‘such rule’’; 

11 (2) in paragraph (2), by inserting ‘‘(or which 

12 would have such jurisdiction if publication of the 

13 final rule constituted final agency action)’’ after 

14 ‘‘provision of law,’’; and 

15 (3) in paragraph (3)— 

16 (A) by striking ‘‘final agency action’’ and 

17 inserting ‘‘publication of the final rule’’; and 

18 (B) by inserting ‘‘, in the case of a rule for 

19 which the date of final agency action is the 

20 same date as the publication of the final rule,’’ 

21 after ‘‘except that’’. 

22 (b) INTERVENTION BY CHIEF COUNSEL FOR ADVO23 CACY.—Section 612(b) of title 5, United States Code, is 

24 amended by inserting before the first period ‘‘or agency 


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1 compliance with section 601, 603, 604, 605(b), 609, or 

2 610’’. 

3 SEC. 9. JURISDICTION OF COURT OF APPEALS OVER RULES 

4 IMPLEMENTING THE REGULATORY FLEXI5 BILITY ACT. 

6 (a) IN GENERAL.—Section 2342 of title 28, United 

7 States Code, is amended— 

8 (1) in paragraph (6), by striking ‘‘and’’ at the 

9 end; 

10 (2) in paragraph (7), by striking the period at 

11 the end and inserting ‘‘; and’’; and 

12 (3) by inserting after paragraph (7) the fol13 lowing: 

14 ‘‘(8) all final rules under section 608(a) of title 

15 5.’’. 

16 (b) CONFORMING AMENDMENTS.—Section 2341(3) 

17 of title 28, United States Code, is amended— 

18 (1) in subparagraph (D), by striking ‘‘and’’ at 

19 the end; 

20 (2) in subparagraph (E), by striking the period 

21 at the end and inserting ‘‘; and’’; and 

22 (3) by adding at the end the following: 

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

24 Business Administration, when the final rule is 

25 under section 608(a) of title 5.’’. 


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1 (c) AUTHORIZATION TO INTERVENE AND COMMENT

2 ON AGENCY COMPLIANCE WITH ADMINISTRATIVE PROCE3 DURE.—Section 612(b) of title 5, United States Code, is 

4 amended by inserting ‘‘chapter 5, and chapter 7,’’ after 

5 ‘‘this chapter,’’. 

6 SEC. 10. ESTABLISHMENT AND APPROVAL OF SMALL BUSI7 NESS CONCERN SIZE STANDARDS BY CHIEF 

8 COUNSEL FOR ADVOCACY. 

9 (a) IN GENERAL.—Section 3(a)(2)(A) of the Small 

10 Business Act (15 U.S.C. 632(a)(2)(A)) is amended to read 

11 as follows: 

12 ‘‘(A) IN GENERAL.—In addition to the cri13 teria specified in paragraph (1)— 

14 ‘‘(i) the Administrator may specify de15 tailed definitions or standards by which a 

16 business concern may be determined to be 

17 a small business concern for purposes of 

18 this Act or the Small Business Investment 

19 Act of 1958 (15 U.S.C. 661 et seq.); and 

20 ‘‘(ii) the Chief Counsel for Advocacy 

21 may specify such definitions or standards 

22 for purposes of any other Act.’’. 

23 (b) APPROVAL BY CHIEF COUNSEL.—Section 

24 3(a)(2)(C)(iii) of the Small Business Act (15 U.S.C. 

25 632(a)(2)(C)(iii)) is amended to read as follows: 


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

2 standard prescribed by the Administrator, 

3 is approved by the Chief Counsel for Advo4 cacy.’’. 

5 (c) INDUSTRY VARIATION.—Section 3(a)(3) of the 

6 Small Business Act (15 U.S.C. 632(a)(3)) is amended— 

7 (1) by inserting ‘‘or Chief Counsel for Advo8 cacy, as appropriate,’’ before ‘‘shall ensure’’; and 

9 (2) by inserting ‘‘or Chief Counsel for Advo10 cacy’’ before the period at the end. 

11 (d) JUDICIAL REVIEW OF SIZE STANDARDS AP12 PROVED BY CHIEF COUNSEL.—Section 3(a) of the Small 

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

14 at the end the following: 

15 ‘‘(10) JUDICIAL REVIEW OF STANDARDS AP16 PROVED BY CHIEF COUNSEL.—In the case of an ac17 tion for judicial review of a rule which includes a 

18 definition or standard approved by the Chief Counsel 

19 for Advocacy under this subsection, the party seek20 ing such review shall be entitled to join the Chief 

21 Counsel as a party in such action.’’. 

22 SEC. 11. CLERICAL AMENDMENTS. 

23 (a) DEFINITIONS.—Section 601 of title 5, United 

24 States Code, is amended— 

25 (1) in paragraph (1)— 


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1 (A) by striking the semicolon at the end 

2 and inserting a period; and 

3 (B) by striking ‘‘(1) the term’’ and insert4 ing the following: 

5 ‘‘(1) AGENCY.—The term’’; 

6 (2) in paragraph (3)— 

7 (A) by striking the semicolon at the end 

8 and inserting a period; and 

9 (B) by striking ‘‘(3) the term’’ and insert10 ing the following: 

11 ‘‘(3) SMALL BUSINESS.—The term’’; 

12 (3) in paragraph (5)— 

13 (A) by striking the semicolon at the end 

14 and inserting a period; and 

15 (B) by striking ‘‘(5) the term’’ and insert16 ing the following: 

17 ‘‘(5) SMALL GOVERNMENTAL JURISDICTION.— 

18 The term’’; and 

19 (4) in paragraph (6)— 

20 (A) by striking ‘‘; and’’ and inserting a pe21 riod; and 

22 (B) by striking ‘‘(6) the term’’ and insert23 ing the following: 

24 ‘‘(6) SMALL ENTITY.—The term’’. 


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1 (b) INCORPORATIONS BY REFERENCE AND CERTIFI2 CATIONS.—The heading of section 605 of title 5, United 

3 States Code, is amended to read as follows: 

4 ‘‘SEC. 605. INCORPORATIONS BY REFERENCE AND CERTIFI5 CATIONS.’’. 

6 ‘‘§ 605. Incorporations by reference and certifi7 cations’’. 

8 (c) TABLE OF SECTIONS.—The table of sections for 

9 chapter 6 of title 5, United States Code, is amended as 

10 follows: 

11 (1) By striking the item relating to section 605 

12 and inserting the following new item: 

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

13 (2) By striking the item relating to section 607 

14 and inserting the following new item: 

‘‘607. Quantification requirements.’’. 

15 (3) By striking the item relating to section 608 

16 and inserting the following: 

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

17 (d) OTHER CLERICAL AMENDMENTS TO CHAPTER

18 6.—Chapter 6 of title 5, United States Code, is amend19 ed— 

20 (1) in section 603(d)— 

21 (A) by striking paragraph (2); 

22 (B) by striking ‘‘(1) For a covered agency, 

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1 ulatory flexibility analysis’’ and inserting ‘‘Each 

2 initial regulatory flexibility analysis by an agen3 cy’’; 

4 (C) by striking ‘‘(A) any’’ and inserting 

5 ‘‘(1) any’’; 

6 (D) by striking ‘‘(B) any’’ and inserting 

7 ‘‘(2) any’’; and 

8 (E) by striking ‘‘(C) advice’’ and inserting 

9 ‘‘(3) advice’’; and 

10 (2) in paragraph (7) of section 604(a), as so re11 designated by section 2(c)(2)(A) of this Act, by 

12 striking ‘‘for a covered agency, as defined in section 

13 609(d)(2),’’. 

14 SEC. 12. AGENCY PREPARATION OF GUIDES. 

15 Section 212(a)(5) the Small Business Regulatory En16 forcement Fairness Act of 1996 (5 U.S.C. 601 note) is 

17 amended to read as follows: 

18 ‘‘(5) AGENCY PREPARATION OF GUIDES.—The 

19 agency shall, in its sole discretion, taking into ac20 count the subject matter of the rule and the lan21 guage of relevant statutes, ensure that the guide is 

22 written using sufficiently plain language likely to be 

23 understood by affected small entities. Agencies may 

24 prepare separate guides covering groups or classes of 

25 similarly affected small entities and may cooperate 


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1 with associations of small entities to distribute such 

2 guides. In developing guides, agencies shall solicit 

3 input from affected small entities or associations of 

4 affected small entities. An agency may prepare 

5 guides and apply this section with respect to a rule 

6 or a group of related rules.’’. 

7 SEC. 13. COMPTROLLER GENERAL REPORT. 

8 Not later than 90 days after the date of enactment 

9 of this Act, the Comptroller General of the United States 

10 shall complete and publish a study that examines whether 

11 the Chief Counsel for Advocacy of the Small Business Ad12 ministration has the capacity and resources to carry out 

13 the duties of the Chief Counsel under this Act and the 

14 amendments made by this Act. 

15 SEC. 14. WAIVER OF FINES FOR FIRST-TIME PAPERWORK 

16 VIOLATIONS BY SMALL BUSINESSES. 

17 Section 3506 of title 44, United States Code (com18 monly referred to as the ‘‘Paperwork Reduction Act’’), is 

19 amended by adding at the end the following: 

20 ‘‘(j) SMALL BUSINESSES.— 

21 ‘‘(1) DEFINITIONS.—In this subsection: 

22 ‘‘(A) FIRST -TIME VIOLATION.—The term 

23 ‘first-time violation’ means a violation by a 

24 small business concern of a requirement regard25 ing collection of information by an agency, 


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1 where the small business concern has not pre2 viously violated any similar requirement regard3 ing collection of information by that same agen4 cy during the 5-year period preceding the viola5 tion. 

6 ‘‘(B) SMALL BUSINESS CONCERN.—The 

7 term ‘small business concern’ has the meaning 

8 given the term in section 3 of the Small Busi9 ness Act (15 U.S.C. 632). 

10 ‘‘(2) FIRST -TIME VIOLATION.— 

11 ‘‘(A) IN GENERAL.—Except as provided in 

12 paragraph (3), in the case of a first-time viola13 tion by a small business concern of a require14 ment regarding the collection of information by 

15 an agency, the head of the agency shall not im16 pose a civil fine on the small business concern. 

17 ‘‘(B) DETERMINATION.—For purposes of 

18 determining whether to impose a civil fine on a 

19 small business concern under subparagraph (A), 

20 the head of an agency shall not take into ac21 count any violation by the small business con22 cern of a requirement regarding collection of in23 formation by another agency. 

24 ‘‘(C) EXCEPTION.—An agency may impose 

25 a civil fine on a small business concern for a 


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1 first-time violation if the head of the agency de2 termines that— 

3 ‘‘(i) the violation has the potential to 

4 cause serious harm to the public interest; 

5 ‘‘(ii) failure to impose a civil fine 

6 would impede or interfere with the detec7 tion of criminal activity; 

8 ‘‘(iii) the violation is a violation of an 

9 internal revenue law or a law concerning 

10 the assessment or collection of any tax, 

11 debt, revenue, or receipt; 

12 ‘‘(iv) the violation was not corrected 

13 on or before the date that is 6 months 

14 after the date on which the small business 

15 concern receives notification of the viola16 tion in writing from the agency; or 

17 ‘‘(v) except as provided in paragraph 

18 (3), the violation presents a danger to the 

19 public health or safety. 

20 ‘‘(3) DANGER TO PUBLIC HEALTH OR SAFE21 TY.— 

22 ‘‘(A) IN GENERAL.—In any case in which 

23 the head of an agency determines under para24 graph (2)(C)(v) that a violation presents a dan25 ger to the public health or safety, the head of 


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1 the agency may determine not to impose a civil 

2 fine on the small business concern if the viola3 tion is corrected not later than 24 hours after 

4 receipt by the owner of the small business con5 cern of notification of the violation in writing. 

6 ‘‘(B) CONSIDERATIONS.—In determining 

7 whether to allow a small business concern 24 

8 hours to correct a violation under subparagraph 

9 (A), the head of an agency shall take into ac10 count all of the facts and circumstances regard11 ing the violation, including— 

12 ‘‘(i) the nature and seriousness of the 

13 violation, including whether the violation is 

14 technical or inadvertent or involves willful 

15 or criminal conduct; 

16 ‘‘(ii) whether the small business con17 cern had made a good faith effort to com18 ply with applicable laws and to remedy the 

19 violation within the shortest practicable pe20 riod of time; and 

21 ‘‘(iii) whether the small business con22 cern has obtained a significant economic 

23 benefit from the violation. 

24 ‘‘(C) NOTICE TO CONGRESS.—In any case 

25 in which the head of an agency imposes a civil 


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1 fine on a small business concern for a violation 

2 that presents a danger to the public health or 

3 safety and does not allow the small business 

4 concern 24 hours to correct the violation under 

5 subparagraph (A), the head of the agency shall 

6 notify Congress regarding the determination 

7 not later than 60 days after the date on which 

8 the civil fine is imposed by the agency.’’. 


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Calendar No. 284 

115TH CONGRESS 

1ST SESSION S. 584 

[Report No. 115–194] 

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 purposes. impacts on small entities of rules, and for other 

DECEMBER 14, 2017 

Reported with amendments 


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