II 

118TH CONGRESS 

1ST SESSION S. 839 

To require agencies to complete a regulatory impact analysis before issuing 

a significant rule, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MARCH 16, 2023 

Mr. THUNE (for himself and Mr. LANKFORD) introduced the following bill; 

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

A BILL 

To require agencies to complete a regulatory impact analysis 

before issuing a significant rule, 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 ‘‘Regulatory Trans5 parency Act of 2023’’. 

6 SEC. 2. DEFINITIONS. 

7 Section 601 of title 5, United States Code, is amend8 ed— 

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

10 end; 


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1 (2) in paragraph (7) by striking the period at 

2 the end and inserting a semicolon; 

3 (3) in paragraph (8)— 

4 (A) by striking ‘‘RECORDKEEPING RE5 QUIREMENT.—The’’ and inserting ‘‘the’’; and 

6 (B) by striking the period at the end and 

7 inserting ‘‘; and’’; and 

8 (4) by adding at the end the following: 

9 ‘‘(9) the term ‘significant rule’ means any final 

10 rule that the Administrator of the Office of Informa11 tion and Regulatory Affairs of the Office of Manage12 ment and Budget determines is likely to— 

13 ‘‘(A) have an annual effect on the economy 

14 of $100,000,000 or more or adversely affect in 

15 a material way the economy, a sector of the 

16 economy, productivity, competition, jobs, the 

17 environment, public health or safety, or State, 

18 local, or tribal governments or communities; 

19 ‘‘(B) create a significant inconsistency or 

20 otherwise interfere with an action taken or 

21 planned by another Federal agency; 

22 ‘‘(C) materially alter the budgetary impact 

23 of entitlements, grants, user fees, or loan pro24 grams or the rights and obligations of recipi25 ents thereof; or 


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1 ‘‘(D) raise novel legal or policy issues.’’. 

2 SEC. 3. REGULATORY IMPACT ANALYSES; CONSIDERATION 

3 OF SUNSET DATES. 

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

5 States Code, is amended by adding at the end the fol6 lowing: 

7 ‘‘§ 613. Regulatory impact analyses 

8 ‘‘(a) IN GENERAL.—Before issuing any proposed 

9 rule, final rule, or interim final rule that meets the eco10 nomic threshold of a significant rule described in section 

11 601(9)(A), an agency shall conduct a regulatory impact 

12 analysis to evaluate the proposed rule, final rule, or in13 terim final rule, as applicable. 

14 ‘‘(b) REGULATORY IMPACT ANALYSES.—An analysis 

15 under subsection (a) shall— 

16 ‘‘(1) be based upon the best reasonably obtain17 able supporting information, consistent with Execu18 tive Order 12866 (5 U.S.C. 601 note; relating to 

19 regulatory planning and review) and any other rel20 evant guidance from the Office of Management and 

21 Budget; 

22 ‘‘(2) be transparent, replicable, and objective; 

23 ‘‘(3) describe the need to be addressed and how 

24 the rule would address that need; 


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1 ‘‘(4) analyze the potential effects, including the 

2 benefits and costs, of the rule; 

3 ‘‘(5) to the maximum extent practicable, con4 sider the cumulative regulatory burden on the regu5 lated entity under subsection (c); 

6 ‘‘(6) consider the potential effects on different 

7 types and sizes of businesses, if applicable; 

8 ‘‘(7) for a proposed rule that is likely to lead 

9 to a significant rule, or a final or interim final rule 

10 that is a significant rule— 

11 ‘‘(A) describe the need to be addressed, in12 cluding— 

13 ‘‘(i) the supporting information dem14 onstrating the need; 

15 ‘‘(ii) the failures of private markets 

16 that warrant new agency action, if applica17 ble; and 

18 ‘‘(iii) whether existing law, including 

19 regulations, has created or contributed to 

20 the need; 

21 ‘‘(B) define the baseline for the analysis; 

22 ‘‘(C) set the timeframe of the analysis; 

23 ‘‘(D) analyze any available regulatory al24 ternatives, including— 


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1 ‘‘(i) if rulemaking is not specifically 

2 directed by statute, the alternative of not 

3 regulating; 

4 ‘‘(ii) any alternatives that specify per5 formance objectives rather than identify or 

6 require the specific manner of compliance 

7 that regulated entities must adopt; 

8 ‘‘(iii) any alternatives that involve the 

9 deployment of innovative technology or 

10 practices; and 

11 ‘‘(iv) any alternatives that involve dif12 ferent requirements for different types or 

13 sizes of businesses, if applicable; 

14 ‘‘(E) identify the effects of the available 

15 regulatory alternatives described in subpara16 graph (D); 

17 ‘‘(F) identify the effectiveness of tort law 

18 to address the identified need; 

19 ‘‘(G) to the maximum extent practicable, 

20 quantify and monetize the benefits and costs of 

21 the selected regulatory alternative and the avail22 able alternatives under consideration; 

23 ‘‘(H) discount future benefits and costs 

24 quantified and monetized under subparagraph 

25 (G); 


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1 ‘‘(I) to the maximum extent practicable, 

2 evaluate non-quantified and non-monetized ben3 efits and costs of the selected regulatory alter4 native and the available alternatives under con5 sideration; and 

6 ‘‘(J) characterize any uncertainty in bene7 fits, costs, and net benefits. 

8 ‘‘(c) CUMULATIVE REGULATORY BURDEN.—In con9 sidering the cumulative regulatory burden under sub10 section (b)(5), an agency shall— 

11 ‘‘(1) identify and assess the benefits and costs 

12 of other regulations require compliance by the same 

13 regulated entities to attempt to achieve similar regu14 latory objectives; 

15 ‘‘(2) evaluate whether the rule is inconsistent 

16 with, incompatible with, or duplicative of other regu17 lations; and 

18 ‘‘(3) consider whether the estimated benefits 

19 and costs of the rule increase or decrease as a result 

20 of other regulations issued by the agency, including 

21 regulations that are not yet fully implemented, com22 pared to the benefits and costs of that rule in the 

23 absence of such regulations. 

24 ‘‘(d) LESS BURDENSOME ALTERNATIVES.—If, after 

25 conducting an analysis under subsection (a) for a proposed 


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1 rule that is likely to lead to a significant rule, or a final 

2 rule or interim final that is a significant rule, the agency 

3 selects a regulatory approach that is not the least burden4 some compared to an available regulatory alternative, the 

5 agency shall include— 

6 ‘‘(1) in the summary section of the preamble a 

7 statement that the selected approach is more bur8 densome than an available regulatory alternative; 

9 and 

10 ‘‘(2) a justification, with supporting informa11 tion, for the selected approach. 

12 ‘‘(e) REGULATORY DETERMINATION.— 

13 ‘‘(1) IN GENERAL.—Except as expressly pro14 vided otherwise by law, an agency may issue a pro15 posed rule, final rule, or interim final rule only upon 

16 a reasoned determination that the benefits of the 

17 rule justify the costs of the rule. 

18 ‘‘(2) REQUIREMENTS.— 

19 ‘‘(A) ALTERNATIVE.—Whenever an agency 

20 is expressly required by law to issue a rule, the 

21 agency shall select a regulatory alternative that 

22 has benefits that exceed costs and complies with 

23 law. 

24 ‘‘(B) COMPLIANCE.—If it is not possible to 

25 comply with the law by selecting a regulatory 


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1 alternative that has benefits that exceed costs, 

2 an agency shall select the regulatory alternative 

3 that has the least costs and complies with law. 

4 ‘‘§ 614. Consideration of sunset dates 

5 ‘‘(a) SUNSET.—Not later than July 1, 2023, an agen6 cy shall, for each proposed rule or interim final rule of 

7 the agency that meets the economic threshold of a signifi8 cant rule described in section 601(9)(A), include an ex9 plicit consideration of a sunset date for the rule. 

10 ‘‘(b) ELEMENTS.—The consideration described in 

11 subsection (a) for a proposed rule or interim final rule 

12 described in that subsection shall include an assessment 

13 of whether the rule— 

14 ‘‘(1) could become outmoded or outdated in 

15 light of changed circumstances, including the avail16 ability of new technologies; or 

17 ‘‘(2) could become excessively burdensome after 

18 a period of time due to, among other things— 

19 ‘‘(A) disproportionate costs on small busi20 nesses; 

21 ‘‘(B) the net effect on employment, includ22 ing jobs added or lost in the private sector; and 

23 ‘‘(C) costs that exceed benefits. 

24 ‘‘(c) PUBLICATION.—A summary of the consideration 

25 described in subsection (a) for a proposed rule or interim 


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1 final rule described in that subsection shall be published 

2 in the Federal Register along with the proposed or interim 

3 final rule, as applicable.’’. 

4 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

5 The table of sections for chapter 6 of title 5, United States 

6 Code, is amended by adding at the end the following: 

‘‘613. Regulatory impact analyses. 

‘‘614. Consideration of sunset dates.’’. 

7 SEC. 4. JUDICIAL REVIEW. 

8 Section 611(a) of title 5, United States Code, is 

9 amended, in paragraphs (1) and (2), by striking ‘‘and 

10 610’’ and inserting ‘‘610, and 613’’. 

Æ 


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