II 

115TH CONGRESS 

1ST SESSION S. 584 

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, and Mr. GRASSLEY) 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. 

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 ‘‘Small Business Regu5 latory Flexibility Improvements Act’’. 


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1 SEC. 2. CLARIFICATION AND EXPANSION OF RULES COV2 ERED BY THE REGULATORY FLEXIBILITY 

3 ACT. 

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

5 States Code, is amended to read as follows: 

6 ‘‘(2) RULE.—The term ‘rule’— 

7 ‘‘(A) has the meaning given such term in 

8 section 551(4) of this title; and 

9 ‘‘(B) does not include— 

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

11 of the rights of and benefits for veterans 

12 or part 232 of title 32 of the Code of Fed13 eral Regulations (as in effect on July 1, 

14 2014) or any successor provisions thereto; 

15 or 

16 ‘‘(ii) a rule of particular (and not gen17 eral) applicability relating to rates, wages, 

18 corporate or financial structures or reorga19 nizations thereof, prices, facilities, appli20 ances, services, or allowances therefor or to 

21 valuations, costs or accounting, or prac22 tices relating to such rates, wages, struc23 tures, prices, appliances, services, or allow24 ances.’’. 


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1 (b) INCLUSION OF RULES WITH INDIRECT EF2 FECTS.—Section 601 of title 5, United States Code, is 

3 amended by adding at the end the following: 

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

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

6 rule— 

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

8 entities of such rule; and 

9 ‘‘(B) any indirect economic effect (includ10 ing compliance costs and effects on revenue) on 

11 small entities which is reasonably foreseeable 

12 and results from such rule (without regard to 

13 whether small entities will be directly regulated 

14 by the rule).’’. 

15 (c) INCLUSION OF RULES WITH BENEFICIAL EF16 FECTS.— 

17 (1) INITIAL REGULATORY FLEXIBILITY ANAL18 YSIS.—Section 603(c) of title 5, United States Code, 

19 is amended by striking the first sentence and insert20 ing ‘‘Each initial regulatory flexibility analysis shall 

21 also contain a detailed description of alternatives to 

22 the proposed rule which minimize any adverse sig23 nificant economic impact or maximize any beneficial 

24 significant economic impact on small entities.’’. 


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1 (2) FINAL REGULATORY FLEXIBILITY ANAL2 YSIS.—Section 604(a) of title 5, United States Code, 

3 is amended— 

4 (A) by redesignating the second paragraph 

5 designated as paragraph (6) (relating to cov6 ered agencies) as paragraph (7); and 

7 (B) in paragraph (6), by striking ‘‘mini8 mize the significant economic impact’’ and in9 serting ‘‘minimize the adverse significant eco10 nomic impact or maximize the beneficial signifi11 cant economic impact’’. 

12 (d) INCLUSION OF RULES AFFECTING TRIBAL ORGA13 NIZATIONS.—Section 601(5) of title 5, United States 

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

15 (as defined in section 4(l) of the Indian Self-Determina16 tion and Education Assistance Act (25 U.S.C. 450b(l))),’’ 

17 after ‘‘special districts,’’. 

18 (e) INCLUSION OF LAND MANAGEMENT PLANS AND

19 FORMAL RULE MAKING.— 

20 (1) INITIAL REGULATORY FLEXIBILITY ANAL21 YSIS.—Section 603(a) of title 5, United States Code, 

22 is amended in the first sentence— 

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

24 rule,’’; and 


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

2 amendment to a land management plan,’’ after 

3 ‘‘United States,’’. 

4 (2) FINAL REGULATORY FLEXIBILITY ANAL5 YSIS.—Section 604(a) of title 5, United States Code, 

6 is amended in the first sentence— 

7 (A) by striking ‘‘or’’ after ‘‘proposed rule8 making,’’; and 

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

10 amendment to a land management plan,’’ after 

11 ‘‘section 603(a),’’. 

12 (3) LAND MANAGEMENT PLAN DEFINED.—Sec13 tion 601 of title 5, United States Code, as amended 

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

15 the following: 

16 ‘‘(10) LAND MANAGEMENT PLAN.— 

17 ‘‘(A) IN GENERAL.—The term ‘land man18 agement plan’ means— 

19 ‘‘(i) any plan developed by the Sec20 retary of Agriculture under section 6 of 

21 the Forest and Rangeland Renewable Re22 sources Planning Act of 1974 (16 U.S.C. 

23 1604); and 

24 ‘‘(ii) any plan developed by the Sec25 retary of the Interior under section 202 of 


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1 the Federal Land Policy and Management 

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

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

4 means any change to a land management plan 

5 which— 

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

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

8 6(f)(5) of the Forest and Rangeland Re9 newable Resources Planning Act of 1974 

10 (16 U.S.C. 1604(f)(5)); or 

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

12 subparagraph (A)(ii), is made under sec13 tion 1610.5–6 of title 43, Code of Federal 

14 Regulations (or any successor regulation). 

15 ‘‘(C) AMENDMENT.—The term ‘amend16 ment’ means any change to a land management 

17 plan which— 

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

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

20 6(f)(4) of the Forest and Rangeland Re21 newable Resources Planning Act of 1974 

22 (16 U.S.C. 1604(f)(4)) and with respect to 

23 which the Secretary of Agriculture pre24 pares a statement described in section 

25 102(2)(C) of the National Environmental 


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

2 4332(2)(C)); or 

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

4 subparagraph (A)(ii), is made under sec5 tion 1610.5–5 of title 43, Code of Federal 

6 Regulations (or any successor regulation), 

7 and with respect to which the Secretary of 

8 the Interior prepares a statement described 

9 in section 102(2)(C) of the National Envi10 ronmental Policy Act of 1969 (42 U.S.C. 

11 4332(2)(C)).’’. 

12 (f) INCLUSION OF CERTAIN INTERPRETIVE RULES

13 INVOLVING THE INTERNAL REVENUE LAWS.— 

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

15 United States Code, is amended by striking the pe16 riod at the end and inserting ‘‘or a recordkeeping re17 quirement, and without regard to whether such re18 quirement is imposed by statute or regulation.’’. 

19 (2) COLLECTION OF INFORMATION.—Section 

20 601(7) of title 5, United States Code, is amended to 

21 read as follows: 

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

23 ‘collection of information’ has the meaning given the 

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


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1 (3) RECORDKEEPING REQUIREMENT.—Section 

2 601(8) of title 5, United States Code, is amended to 

3 read as follows: 

4 ‘‘(8) RECORDKEEPING REQUIREMENT.—The 

5 term ‘recordkeeping requirement’ has the meaning 

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

7 (g) DEFINITION OF SMALL ORGANIZATION.—Section 

8 601(4) of title 5, United States Code, is amended to read 

9 as follows: 

10 ‘‘(4) SMALL ORGANIZATION.— 

11 ‘‘(A) IN GENERAL.—The term ‘small orga12 nization’ means any nonprofit enterprise which, 

13 as of the issuance of the notice of proposed rule 

14 making— 

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

16 is described by a classification code of the 

17 North American Industrial Classification 

18 System, does not exceed the size standard 

19 established by the Administrator of the 

20 Small Business Administration pursuant to 

21 section 3 of the Small Business Act (15 

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

23 described by such classification code; and 

24 ‘‘(ii) in the case of any other enter25 prise, has a net worth that does not exceed 


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1 $7,000,000 and has not more than 500 

2 employees. 

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

4 the case of any local labor organization, sub5 paragraph (A) shall be applied without regard 

6 to any national or international organization of 

7 which such local labor organization is a part. 

8 ‘‘(C) AGENCY DEFINITIONS.—Subpara9 graphs (A) and (B) shall not apply to the ex10 tent that an agency, after consultation with the 

11 Office of Advocacy of the Small Business Ad12 ministration and after opportunity for public 

13 comment, establishes one or more definitions 

14 for such term which are appropriate to the ac15 tivities of the agency and publishes such defini16 tions in the Federal Register.’’. 

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

18 Section 602 of title 5, United States Code, is amend19 ed— 

20 (1) in subsection (a)— 

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

22 at the end and inserting a semicolon; 

23 (B) by redesignating paragraph (3) as 

24 paragraph (4); and 


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

2 following: 

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

4 North American Industrial Classification System 

5 that is primarily affected by any rule which the 

6 agency expects to propose or promulgate which is 

7 likely to have a significant economic impact on a 

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

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

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

11 an agency publishes a regulatory flexibility agenda in the 

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

13 prominently display on the website of the agency a plain 

14 language summary of the information contained in the 

15 regulatory flexibility agenda. 

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

17 Administration shall compile, by agency, and prominently 

18 display on the website of the Small Business Administra19 tion a plain language summary of each regulatory flexi20 bility agenda published under subsection (a) not later than 

21 3 days after the date of publication in the Federal Reg22 ister.’’. 


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1 SEC. 4. REQUIREMENTS PROVIDING FOR MORE DETAILED 

2 ANALYSES. 

3 (a) INITIAL REGULATORY FLEXIBILITY ANALYSIS.— 

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

5 to read as follows: 

6 ‘‘(b) Each initial regulatory flexibility analysis re7 quired under this section shall contain a detailed state8 ment— 

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

10 agency is being considered; 

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

12 for, the proposed rule; 

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

14 entities to which the proposed rule will apply; 

15 ‘‘(4) describing the projected reporting, record16 keeping, and other compliance requirements of the 

17 proposed rule, including an estimate of the classes of 

18 small entities which will be subject to the require19 ment and the type of professional skills necessary 

20 for preparation of the report and record; 

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

22 may duplicate, overlap, or conflict with the proposed 

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

24 be provided; 

25 ‘‘(6) estimating the additional cumulative eco26 nomic impact of the proposed rule on small entities 


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1 beyond that already imposed on the class of small 

2 entities by the agency or why such an estimate is 

3 not available; 

4 ‘‘(7) describing any disproportionate economic 

5 impact on small entities or a specific class of small 

6 entities; and 

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

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

9 (b) FINAL REGULATORY FLEXIBILITY ANALYSIS.— 

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

11 United States Code, is amended— 

12 (A) in paragraph (4)— 

13 (i) by inserting ‘‘detailed’’ before ‘‘de14 scription’’; and 

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

16 inserting ‘‘a detailed explanation’’; 

17 (B) in paragraph (5), by inserting ‘‘de18 tailed’’ before ‘‘description’’; 

19 (C) in paragraph (6)— 

20 (i) by inserting ‘‘detailed’’ before ‘‘de21 scription’’; and 

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

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

24 by striking the period at the end and inserting 

25 ‘‘; and’’; and 


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

2 ‘‘(8) a detailed description of any dispropor3 tionate economic impact on small entities or a spe4 cific class of small entities.’’. 

5 (2) INCLUSION OF RESPONSE TO COMMENTS ON

6 CERTIFICATION OF PROPOSED RULE.—Section 

7 604(a)(2) of title 5, United States Code, is amended 

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

9 under section 605(b))’’ after ‘‘initial regulatory flexi10 bility analysis’’. 

11 (3) PUBLICATION OF ANALYSIS ON WEBSITE.— 

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

13 amended to read as follows: 

14 ‘‘(b) The agency shall make copies of the final regu15 latory flexibility analysis available to the public, including 

16 placement of the entire analysis on the website of the 

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

18 regulatory flexibility analysis, or a summary thereof which 

19 includes the telephone number, mailing address, and link 

20 to the website where the complete analysis may be ob21 tained.’’. 

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

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

24 to read as follows: 


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

2 any requirement regarding the content of a regulatory 

3 flexibility agenda or regulatory flexibility analysis under 

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

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

6 portion of another agenda or analysis which is required 

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

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

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

10 providing the factual basis for such certification.’’ and in11 serting ‘‘detailed statement providing the factual and legal 

12 basis for such certification. The detailed statement shall 

13 include an economic assessment or a summary thereof 

14 that is sufficiently detailed to support the certification of 

15 the agency.’’. 

16 (e) QUANTIFICATION REQUIREMENTS.—Section 607 

17 of title 5, United States Code, is amended to read as fol18 lows: 

19 ‘‘SEC. 607. QUANTIFICATION REQUIREMENTS. 

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

21 shall provide— 

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

23 the effects of the proposed or final rule and alter24 natives to the proposed or final rule; or 


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

2 a detailed statement explaining why quantification is 

3 not practicable or reliable.’’. 

4 SEC. 5. REPEAL OF WAIVER AND DELAY AUTHORITY; ADDI5 TIONAL POWERS OF THE CHIEF COUNSEL 

6 FOR ADVOCACY. 

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

8 States Code, is amended to read as follows: 

9 ‘‘§ 608. Additional powers of chief counsel for advo10 cacy 

11 ‘‘(a)(1) Not later than 270 days after the date of en12 actment of this section, the Chief Counsel for Advocacy 

13 of the Small Business Administration shall, after oppor14 tunity for notice and comment under section 553, issue 

15 rules governing agency compliance with this chapter. The 

16 Chief Counsel may modify or amend such rules after no17 tice and comment under section 553. This chapter (other 

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

19 issuance, modification, and amendment of rules under this 

20 paragraph. 

21 ‘‘(2) An agency shall not issue rules which supple22 ment the rules issued under subsection (a) unless such 

23 agency has first consulted with the Chief Counsel for Ad24 vocacy to ensure that the supplemental rules comply with 

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


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1 ‘‘(b) Notwithstanding any other law, the Chief Coun2 sel for Advocacy of the Small Business Administration 

3 may intervene in any agency adjudication (unless such 

4 agency is authorized to impose a fine or penalty under 

5 such adjudication), and may inform the agency of the im6 pact that any decision on the record may have on small 

7 entities. The Chief Counsel shall not initiate an appeal 

8 with respect to any adjudication in which the Chief Coun9 sel intervenes under this subsection. 

10 ‘‘(c) The Chief Counsel for Advocacy may file com11 ments in response to any agency notice requesting com12 ment, regardless of whether the agency is required to file 

13 a general notice of proposed rule making under section 

14 553.’’. 

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

16 title 5, United States Code, is amended— 

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

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

19 and 

20 (3) in paragraph (3)— 

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

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

23 and inserting the following: 

24 ‘‘(3) A small entity’’. 


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1 SEC. 6. PROCEDURES FOR GATHERING COMMENTS. 

2 Section 609 of title 5, United States Code, is amend3 ed by striking subsection (b) and all that follows through 

4 the end of the section and inserting the following: 

5 ‘‘(b)(1) Prior to publication of any proposed rule de6 scribed in subsection (e), an agency making the rule shall 

7 notify the Chief Counsel for Advocacy of the Small Busi8 ness Administration and provide the Chief Counsel with— 

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

10 agency in making the proposed rule, including the 

11 draft of the proposed rule; and 

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

13 beneficial economic impacts of the proposed rule on 

14 small entities and the type of small entities that 

15 might be affected. 

16 ‘‘(2) An agency shall not be required under para17 graph (1) to provide the exact language of any draft if 

18 the rule— 

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

20 United States; or 

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

22 agency. 

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

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

25 Counsel for Advocacy of the Small Business Administra26 tion shall— 


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

2 small entities or a combination of both for the pur3 pose of obtaining advice, input, and recommenda4 tions from those persons about the potential eco5 nomic impacts of the proposed rule and the compli6 ance of the agency with section 603; and 

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

8 employee from the Office of Advocacy of the Small 

9 Business Administration, an employee from the 

10 agency making the rule, and in the case of an agen11 cy other than an independent regulatory agency, an 

12 employee from the Office of Information and Regu13 latory Affairs of the Office of Management and 

14 Budget to review the materials and information pro15 vided to the Chief Counsel under subsection (b). 

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

17 described in subsection (c)(2) is convened, the Chief Coun18 sel for Advocacy of the Small Business Administration 

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

20 submit a report to the agency and, in the case of an agen21 cy other than an independent regulatory agency, the Office 

22 of Information and Regulatory Affairs of the Office of 

23 Management and Budget. 


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1 ‘‘(2) Each report described in paragraph (1) shall in2 clude an assessment of the economic impact of the pro3 posed rule on small entities, including— 

4 ‘‘(A) an assessment of the impact of the pro5 posed rule on the cost that small entities pay for en6 ergy; 

7 ‘‘(B) an assessment of the impact of the pro8 posed rule on startup costs for small entities; and 

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

10 minimize adverse significant economic impacts or 

11 maximize beneficial significant economic impacts on 

12 small entities. 

13 ‘‘(3) Each report described in paragraph (1) shall be14 come part of the rule making record. In the publication 

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

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

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

18 if the Administrator of the Office of Information and Reg19 ulatory Affairs of the Office of Management and Budget, 

20 the head of the agency (or the delegatee of the head of 

21 the agency), or an independent regulatory agency deter22 mines that the proposed rule is likely to result in— 

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

24 $100,000,000 or more; 


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1 ‘‘(2) a major increase in costs or prices for con2 sumers, individual industries, Federal, State, or local 

3 governments, tribal organizations, or geographic re4 gions; 

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

6 employment, investment, productivity, innovation, or 

7 on the ability of United States-based enterprises to 

8 compete with foreign-based enterprises in domestic 

9 and export markets; or 

10 ‘‘(4) a significant economic impact on a sub11 stantial number of small entities. 

12 ‘‘(f) Upon application by the agency, the Chief Coun13 sel for Advocacy of the Small Business Administration 

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

15 if the Chief Counsel determines that compliance with the 

16 requirements of such subsections are impracticable, un17 necessary, or contrary to the public interest. 

18 ‘‘(g) A small entity or a representative of a small enti19 ty may submit a request that the agency provide a copy 

20 of the report prepared under subsection (d) and all mate21 rials and information provided to the Chief Counsel for 

22 Advocacy of the Small Business Administration under 

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

24 provide the report, materials and information to the re25 questing small entity or representative of a small entity 


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1 not later than 10 business days after receiving such re2 quest, except that the agency shall not disclose any infor3 mation that is prohibited from disclosure to the public 

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

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

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

7 of title 44.’’. 

8 SEC. 7. PERIODIC REVIEW OF RULES. 

9 Section 610 of title 5, United States Code, is amend10 ed to read as follows: 

11 ‘‘§ 610. Periodic review of rules 

12 ‘‘(a) Not later than 180 days after the date of enact13 ment of this section, each agency shall publish in the Fed14 eral Register and place on website of the agency a plan 

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

16 the head of the agency determines have a significant eco17 nomic impact on a substantial number of small entities. 

18 Such determination shall be made without regard to 

19 whether the agency performed an analysis under section 

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

21 whether such rules should be continued without change, 

22 or should be amended or rescinded, consistent with the 

23 stated objectives of applicable statutes, to minimize any 

24 adverse significant economic impacts or maximize any 

25 beneficial significant economic impacts on a substantial 


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

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

3 Federal Register and subsequently placing the amended 

4 plan on the website of the agency. 

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

6 agency rules existing on the date of enactment of this sec7 tion within 10 years of the date of publication of the plan 

8 in the Federal Register and for review of rules adopted 

9 after the date of enactment of this section within 10 years 

10 after the publication of the final rule in the Federal Reg11 ister. If the head of the agency determines that completion 

12 of the review of existing rules is not feasible by the estab13 lished date, the head of the agency shall so certify in a 

14 statement published in the Federal Register and may ex15 tend the review for not longer than 2 years after publica16 tion of notice of extension in the Federal Register. Such 

17 certification and notice shall be sent to the Chief Counsel 

18 for Advocacy of the Small Business Administration and 

19 the Congress. 

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

21 an agency will conduct outreach to and meaningfully in22 clude small businesses (including small business concerns 

23 owned and controlled by women, small business concerns 

24 owned and controlled by veterans, and small business con25 cerns owned and controlled by socially and economically 


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1 disadvantaged individuals (as such terms are defined in 

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

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

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

5 section a plan for how the agency will contact small busi6 nesses and gather their input on existing agency rules. 

7 ‘‘(d) Each agency shall annually submit a report re8 garding the results of its review pursuant to such plan 

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

10 Business Administration, and, in the case of agencies 

11 other than independent regulatory agencies (as defined in 

12 section 3502 of title 44) to the Administrator of the Office 

13 of Information and Regulatory Affairs of the Office of 

14 Management and Budget. Such report shall include the 

15 identification of any rule with respect to which the head 

16 of the agency made a determination described in para17 graph (5) or (6) of subsection (e) and a detailed expla18 nation of the reasons for such determination. 

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

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

21 to minimize any adverse significant economic impact on 

22 a substantial number of small entities or disproportionate 

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

24 maximize any beneficial significant economic impact of the 

25 rule on a substantial number of small entities to the greatVerDate Sep 11 2014 00:34 Mar 15, 2017 Jkt 069200 PO 00000 Frm 00023 Fmt 6652 Sfmt 6201 E:\BILLS\S584.IS S584

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1 est extent possible, consistent with the stated objectives 

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

3 the agency shall consider the following factors: 

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

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

6 agency from small entities concerning the rule. 

7 ‘‘(3) Comments by the Regulatory Enforcement 

8 Ombudsman and the Chief Counsel for Advocacy of 

9 the Small Business Administration. 

10 ‘‘(4) The complexity of the rule. 

11 ‘‘(5) The extent to which the rule overlaps, du12 plicates, or conflicts with other Federal rules and, 

13 unless the head of the agency determines it to be in14 feasible, State, territorial, and local rules. 

15 ‘‘(6) The contribution of the rule to the cumu16 lative economic impact of all Federal rules on the 

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

18 head of the agency determines that such calculations 

19 cannot be made and reports that determination in 

20 the annual report required under subsection (d). 

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

22 evaluated or the degree to which technology, eco23 nomic conditions, or other factors have changed in 

24 the area affected by the rule. 


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1 ‘‘(f) Each year, each agency shall publish in the Fed2 eral Register and on its website a list of rules to be re3 viewed pursuant to such plan. The agency shall include 

4 in the publication a solicitation of public comments on any 

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

6 shall respond to such comments. Such publication shall 

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

8 agency determined that it has a significant economic im9 pact on a substantial number of small entities (without 

10 regard to whether it had prepared a final regulatory flexi11 bility analysis for the rule), and request comments from 

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

13 Business Administration, and the Regulatory Enforce14 ment Ombudsman concerning the enforcement of the 

15 rule.’’. 

16 SEC. 8. JUDICIAL REVIEW OF COMPLIANCE WITH THE RE17 QUIREMENTS OF THE REGULATORY FLEXI18 BILITY ACT AVAILABLE AFTER PUBLICATION 

19 OF THE FINAL RULE. 

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

21 States Code, is amended— 

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

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

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

25 would have such jurisdiction if publication of the 


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1 final rule constituted final agency action)’’ after 

2 ‘‘provision of law,’’; and 

3 (3) in paragraph (3)— 

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

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

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

7 which the date of final agency action is the 

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

9 after ‘‘except that’’. 

10 (b) INTERVENTION BY CHIEF COUNSEL FOR ADVO11 CACY.—Section 612(b) of title 5, United States Code, is 

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

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

14 610’’. 

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

16 IMPLEMENTING THE REGULATORY FLEXI17 BILITY ACT. 

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

19 States Code, is amended— 

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

21 end; 

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

23 the end and inserting ‘‘; and’’; and 

24 (3) by inserting after paragraph (7) the fol25 lowing: 


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

2 5.’’. 

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

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

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

6 the end; 

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

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

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

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

11 Business Administration, when the final rule is 

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

13 (c) AUTHORIZATION TO INTERVENE AND COMMENT

14 ON AGENCY COMPLIANCE WITH ADMINISTRATIVE PROCE15 DURE.—Section 612(b) of title 5, United States Code, is 

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

17 ‘‘this chapter,’’. 

18 SEC. 10. ESTABLISHMENT AND APPROVAL OF SMALL BUSI19 NESS CONCERN SIZE STANDARDS BY CHIEF 

20 COUNSEL FOR ADVOCACY. 

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

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

23 as follows: 

24 ‘‘(A) IN GENERAL.—In addition to the cri25 teria specified in paragraph (1)— 


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1 ‘‘(i) the Administrator may specify de2 tailed definitions or standards by which a 

3 business concern may be determined to be 

4 a small business concern for purposes of 

5 this Act or the Small Business Investment 

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

7 ‘‘(ii) the Chief Counsel for Advocacy 

8 may specify such definitions or standards 

9 for purposes of any other Act.’’. 

10 (b) APPROVAL BY CHIEF COUNSEL.—Section 

11 3(a)(2)(C)(iii) of the Small Business Act (15 U.S.C. 

12 632(a)(2)(C)(iii)) is amended to read as follows: 

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

14 standard prescribed by the Administrator, 

15 is approved by the Chief Counsel for Advo16 cacy.’’. 

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

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

19 (1) by inserting ‘‘or Chief Counsel for Advo20 cacy, as appropriate’’ before ‘‘shall ensure’’; and 

21 (2) by inserting ‘‘or Chief Counsel for Advo22 cacy’’ before the period at the end. 

23 (d) JUDICIAL REVIEW OF SIZE STANDARDS AP24 PROVED BY CHIEF COUNSEL.—Section 3(a) of the Small 


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

2 at the end the following: 

3 ‘‘(10) JUDICIAL REVIEW OF STANDARDS AP4 PROVED BY CHIEF COUNSEL.—In the case of an ac5 tion for judicial review of a rule which includes a 

6 definition or standard approved by the Chief Counsel 

7 for Advocacy under this subsection, the party seek8 ing such review shall be entitled to join the Chief 

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

10 SEC. 11. CLERICAL AMENDMENTS. 

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

12 States Code, is amended— 

13 (1) in paragraph (1)— 

14 (A) by striking the semicolon at the end 

15 and inserting a period; and 

16 (B) by striking ‘‘(1) the term’’ and insert17 ing the following: 

18 ‘‘(1) AGENCY.—The term’’; 

19 (2) in paragraph (3)— 

20 (A) by striking the semicolon at the end 

21 and inserting a period; and 

22 (B) by striking ‘‘(3) the term’’ and insert23 ing the following: 

24 ‘‘(3) SMALL BUSINESS.—The term’’; 

25 (3) in paragraph (5)— 


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1 (A) by striking the semicolon at the end 

2 and inserting a period; and 

3 (B) by striking ‘‘(5) the term’’ and insert4 ing the following: 

5 ‘‘(5) SMALL GOVERNMENTAL JURISDICTION.— 

6 The term’’; and 

7 (4) in paragraph (6)— 

8 (A) by striking ‘‘; and’’ and inserting a pe9 riod; and 

10 (B) by striking ‘‘(6) the term’’ and insert11 ing the following: 

12 ‘‘(6) SMALL ENTITY.—The term’’. 

13 (b) INCORPORATIONS BY REFERENCE AND CERTIFI14 CATIONS.—The heading of section 605 of title 5, United 

15 States Code, is amended to read as follows: 

16 ‘‘SEC. 605. INCORPORATIONS BY REFERENCE AND CERTIFI17 CATIONS.’’. 

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

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

20 follows: 

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 inserting the following: 

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

3 (d) OTHER CLERICAL AMENDMENTS TO CHAPTER

4 6.—Chapter 6 of title 5, United States Code, is amend5 ed— 

6 (1) in section 603(d)— 

7 (A) by striking paragraph (2); 

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

9 as defined in section 609(d)(2), each initial reg10 ulatory flexibility analysis’’ and inserting ‘‘Each 

11 initial regulatory flexibility analysis by an agen12 cy’’; 

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

14 ‘‘(1) any’’; 

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

16 ‘‘(2) any’’; and 

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

18 ‘‘(3) advice’’; and 

19 (2) in paragraph (7) of section 604(a), as so re20 designated by section 2(c)(2)(A) of this Act, by 

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

22 609(d)(2),’’. 


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1 SEC. 12. AGENCY PREPARATION OF GUIDES. 

2 Section 212(a)(5) the Small Business Regulatory En3 forcement Fairness Act of 1996 (5 U.S.C. 601 note) is 

4 amended to read as follows: 

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

6 agency shall, in its sole discretion, taking into ac7 count the subject matter of the rule and the lan8 guage of relevant statutes, ensure that the guide is 

9 written using sufficiently plain language likely to be 

10 understood by affected small entities. Agencies may 

11 prepare separate guides covering groups or classes of 

12 similarly affected small entities and may cooperate 

13 with associations of small entities to distribute such 

14 guides. In developing guides, agencies shall solicit 

15 input from affected small entities or associations of 

16 affected small entities. An agency may prepare 

17 guides and apply this section with respect to a rule 

18 or a group of related rules.’’. 

19 SEC. 13. COMPTROLLER GENERAL REPORT. 

20 Not later than 90 days after the date of enactment 

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

22 shall complete and publish a study that examines whether 

23 the Chief Counsel for Advocacy of the Small Business Ad24 ministration has the capacity and resources to carry out 

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

26 amendments made by this Act. 


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

2 VIOLATIONS BY SMALL BUSINESSES. 

3 Section 3506 of title 44, United States Code (com4 monly referred to as the ‘‘Paperwork Reduction Act’’), is 

5 amended by adding at the end the following: 

6 ‘‘(j) SMALL BUSINESSES.— 

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

8 ‘‘(A) FIRST TIME VIOLATION.—The term 

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

10 small business concern of a requirement regard11 ing collection of information by an agency, 

12 where the small business concern has not pre13 viously violated any similar requirement regard14 ing collection of information by that same agen15 cy during the 5-year period preceding the viola16 tion. 

17 ‘‘(B) SMALL BUSINESS CONCERN.—The 

18 term ‘small business concern’ has the meaning 

19 given the term in section 3 of the Small Busi20 ness Act (15 U.S.C. 632). 

21 ‘‘(2) FIRST TIME VIOLATION.— 

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

23 paragraph (3), in the case of a first-time viola24 tion by a small business concern of a require25 ment regarding the collection of information by 


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1 an agency, the head of the agency shall not im2 pose a civil fine on the small business concern. 

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

4 determining whether to impose a civil fine on a 

5 small business concern under subparagraph (A), 

6 the head of an agency shall not take into ac7 count any violation by the small business con8 cern of a requirement regarding collection of in9 formation by another agency. 

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

11 a civil fine on a small business concern for a 

12 first-time violation if the head of the agency de13 termines that— 

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

15 cause serious harm to the public interest; 

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

17 would impede or interfere with the detec18 tion of criminal activity; 

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

20 internal revenue law or a law concerning 

21 the assessment or collection of any tax, 

22 debt, revenue, or receipt; 

23 ‘‘(iv) the violation was not corrected 

24 on or before the date that is 6 months 

25 after the date on which the small business 


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1 concern receives notification of the viola2 tion in writing from the agency; or 

3 ‘‘(v) except as provided in paragraph 

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

5 public health or safety. 

6 ‘‘(3) DANGER TO PUBLIC HEALTH OR SAFE7 TY.— 

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

9 the head of an agency determines under para10 graph (2)(C)(v) that a violation presents a dan11 ger to the public health or safety, the head of 

12 the agency may determine not to impose a civil 

13 fine on the small business concern if the viola14 tion is corrected not later than 24 hours after 

15 receipt by the owner of the small business con16 cern of notification of the violation in writing. 

17 ‘‘(B) CONSIDERATIONS.—In determining 

18 whether to allow a small business concern 24 

19 hours to correct a violation under subparagraph 

20 (A), the head of an agency shall take into ac21 count all of the facts and circumstances regard22 ing the violation, including— 

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

24 violation, including whether the violation is 


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1 technical or inadvertent or involves willful 

2 or criminal conduct; 

3 ‘‘(ii) whether the small business con4 cern had made a good faith effort to com5 ply with applicable laws and to remedy the 

6 violation within the shortest practicable pe7 riod of time; and 

8 ‘‘(iii) whether the small business con9 cern has obtained a significant economic 

10 benefit from the violation. 

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

12 in which the head of an agency imposes a civil 

13 fine on a small business concern for a violation 

14 that presents a danger to the public health or 

15 safety and does not allow the small business 

16 concern 24 hours to correct the violation under 

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

18 notify Congress regarding the determination 

19 not later than 60 days after the date on which 

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

Æ 


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