II 

112TH CONGRESS 

1ST SESSION S. 1338 

To amend chapter 5 of title 31, United States Code, to establish the Office 

of Regulatory Integrity within the Office of Management and Budget. 

IN THE SENATE OF THE UNITED STATES 

JULY 7, 2011 

Mr. WHITEHOUSE introduced the following bill; which was read twice and 

referred to the Committee on Homeland Security and Governmental Affairs 

A BILL 

To amend chapter 5 of title 31, United States Code, to 

establish the Office of Regulatory Integrity within the 

Office of Management and Budget. 

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 Capture 

5 Prevention Act of 2011’’. 

6 SEC. 2. OFFICE OF REGULATORY INTEGRITY. 

7 (a) IN GENERAL.—Chapter 5 of title 31, United 

8 States Code, is amended by inserting after section 507 the 

9 following: 


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1 ‘‘§ 508. Office of Regulatory Integrity 

2 ‘‘(a) DEFINITIONS.—In this section— 

3 ‘‘(1) the term ‘Administrator’ means the Ad4 ministrator of the Office of Regulatory Integrity; 

5 ‘‘(2) the term ‘agency’— 

6 ‘‘(A) means each authority of the Govern7 ment of the United States, whether or not it is 

8 within or subject to review by another agency; 

9 and 

10 ‘‘(B) does not include— 

11 ‘‘(i) the Government Accountability 

12 Office; or 

13 ‘‘(ii) the Congressional Budget Office; 

14 and 

15 ‘‘(3) the term ‘relevant committees of Congress’ 

16 means— 

17 ‘‘(A) the Committee on Homeland Security 

18 and Governmental Affairs of the Senate; 

19 ‘‘(B) the Committee on Appropriations of 

20 the Senate; 

21 ‘‘(C) the Committee on the Judiciary of 

22 the Senate; 

23 ‘‘(D) the Committee on Oversight and 

24 Government Reform of the House of Represent25 atives; 


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1 ‘‘(E) the Committee on Appropriations of 

2 the House of Representatives; 

3 ‘‘(F) the Committee on the Judiciary of 

4 the House of Representatives; and 

5 ‘‘(G) with respect to a report other than 

6 the annual report, any committee in the Senate 

7 or House of Representatives that exercises over8 sight authority over an agency discussed in the 

9 report. 

10 ‘‘(b) OFFICE OF REGULATORY INTEGRITY.— 

11 ‘‘(1) ESTABLISHMENT.—There is established in 

12 the Office of Management and Budget an office to 

13 be known as the Office of Regulatory Integrity. 

14 ‘‘(2) ADMINISTRATOR.—There shall be at the 

15 head of the Office of Regulatory Integrity an Admin16 istrator who shall be appointed by the President, by 

17 and with the advice and consent of the Senate. 

18 ‘‘(c) FUNCTIONS OF ADMINISTRATOR.— 

19 ‘‘(1) IN GENERAL.—In order to defeat regu20 latory capture and related threats to the integrity of 

21 Federal agencies, the Administrator shall investigate 

22 and report on the influence of concentrated economic 

23 interests on Federal agencies, and components 

24 thereof, that results in— 


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1 ‘‘(A) agency action or inaction that fails to 

2 advance the congressionally assigned mission of 

3 the agency or is otherwise inimical to the public 

4 interest; 

5 ‘‘(B) regulation, licensing, adjudication, 

6 grants, or other agency action that— 

7 ‘‘(i) favors a limited number of eco8 nomic interests at the expense of the agen9 cy’s congressionally assigned mission; or 

10 ‘‘(ii) is otherwise inimical to the public 

11 interest; 

12 ‘‘(C) enforcement priorities that are not 

13 reasonably calculated to accomplish the goals of 

14 the regulatory program in question; or 

15 ‘‘(D) a loss of confidence in the integrity 

16 of the regulatory process. 

17 ‘‘(2) RECOMMENDATIONS BY THE ADMINIS18 TRATOR.—When reporting on the influence of con19 centrated economic interests on an agency, the Ad20 ministrator shall include recommendations that, if 

21 implemented, would restore integrity to the regu22 latory process by enhancing the capacity of the 

23 agency to resist such influence. 

24 ‘‘(3) COMMENTS BY FEDERAL AGENCIES.—Un25 less the Administrator determines that the public inVerDate Mar 15 2010 03:01 Jul 08, 2011 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1338.IS S1338

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1 terest requires immediate release, the Administrator 

2 shall— 

3 ‘‘(A) provide a copy of a report to the rel4 evant Federal agencies not less than 30 days 

5 before the completion of a report by the Admin6 istrator; and 

7 ‘‘(B) include the comments of the relevant 

8 Federal agencies as addenda to the report upon 

9 release. 

10 ‘‘(4) COORDINATION WITH INSPECTORS GEN11 ERAL.—The Administrator shall inform the inspec12 tors general of the relevant Federal agencies upon 

13 initiation of an investigation and may coordinate 

14 with the inspectors general as the Administrator 

15 concludes is appropriate to fulfill the responsibilities 

16 established by this section. 

17 ‘‘(d) AUTHORITY OF ADMINISTRATOR.— 

18 ‘‘(1) IN GENERAL.—In addition to the authority 

19 otherwise provided by this section, the Adminis20 trator, in carrying out the provisions of this section, 

21 is authorized to— 

22 ‘‘(A) have access to all records, reports, 

23 audits, reviews, documents, papers, rec24 ommendations, or other material available to 

25 the applicable agency which relate to regulatory 


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1 activities with respect to which the Adminis2 trator has responsibilities under this section; 

3 ‘‘(B) make such investigations and reports 

4 relating to the administration of the programs 

5 and operations of the applicable agency as are, 

6 in the judgment of the Administrator, necessary 

7 or desirable; 

8 ‘‘(C) request such information or assist9 ance as may be necessary to carry out the du10 ties and responsibilities provided by this section 

11 from any Federal, State, or local governmental 

12 agency or unit thereof; 

13 ‘‘(D) require by subpoena the production 

14 of all information, documents, reports, answers, 

15 records, accounts, papers, and other data in 

16 any medium (including electronically stored in17 formation, as well as any tangible thing) and 

18 documentary evidence necessary in the perform19 ance of the functions assigned by this section, 

20 which subpoena, in the case of contumacy or re21 fusal to obey, shall be enforceable by order of 

22 any appropriate United States District Court, 

23 except that procedures other than subpoenas 

24 shall be used by the Administrator to obtain 


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1 documents and information from Federal agen2 cies; 

3 ‘‘(E) administer to or take from any per4 son an oath, affirmation, or affidavit, whenever 

5 necessary in the performance of the functions 

6 assigned by this section, which oath, affirma7 tion, or affidavit when administered or taken by 

8 or before an employee of the Office of Regu9 latory Integrity designated by the Adminis10 trator shall have the same force and effect as 

11 if administered or taken by or before an officer 

12 having a seal; 

13 ‘‘(F) have direct and prompt access to the 

14 head of the agency involved when necessary for 

15 any purpose pertaining to the performance of 

16 functions and responsibilities under this section; 

17 ‘‘(G) select, appoint, and employ such offi18 cers and employees as may be necessary to 

19 carry out the functions, powers, and duties of 

20 the Office of Regulatory Integrity subject to the 

21 provisions of title 5, governing appointments in 

22 the competitive service, and the provisions of 

23 chapter 51 and subchapter III of chapter 53 of 

24 such title relating to classification and General 

25 Schedule pay rates; 


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1 ‘‘(H) obtain services as authorized by sec2 tion 3109 of title 5 at daily rates not to exceed 

3 the equivalent rate prescribed for a position at 

4 level IV of the Executive Schedule; and 

5 ‘‘(I) the extent and in such amounts as 

6 may be provided in advance by appropriations 

7 Acts, enter into contracts and other arrange8 ments for audits, studies, analyses, and other 

9 services with public agencies and with private 

10 persons, and to make such payments as may be 

11 necessary to carry out the provisions of this 

12 section. 

13 ‘‘(2) INFORMATION AND ASSISTANCE.— 

14 ‘‘(A) INFORMATION AND ASSISTANCE BY

15 HEAD OF AGENCY.—Upon request of the Ad16 ministrator for information or assistance under 

17 paragraph (1), the head of any agency involved 

18 shall, insofar as is practicable and not in con19 travention of any statutory restriction or regu20 lation of the agency from which the information 

21 is requested, furnish to the Administrator, or to 

22 an authorized designee, such information or as23 sistance. 

24 ‘‘(B) INFORMATION AND ASSISTANCE BY

25 INSPECTORS GENERAL.—Upon request of the 


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1 Administrator for information or assistance 

2 under paragraph (1), the Inspector General of 

3 any agency involved shall, insofar as is prac4 ticable and not in contravention of any statu5 tory restriction or regulation of the agency from 

6 which the information is requested, furnish to 

7 the Administrator, or to an authorized designee, 

8 such information or assistance. 

9 ‘‘(C) REPORTS OF INSPECTORS GEN10 ERAL.—The inspector general of each agency 

11 shall provide copies of all reports issued by that 

12 inspector general to the Administrator in a 

13 timely manner, and may provide the Adminis14 trator at any time with information the inspec15 tor general believes relevant to the performance 

16 of the Administrator’s duties. 

17 ‘‘(D) DETAILS OF EMPLOYEES.—Upon re18 quest of the Administrator, the head of any 

19 agency shall, to the extent reasonably prac20 ticable, and on a reimbursable basis, detail per21 sonnel of that agency to the Office of Regu22 latory Integrity to assist it in carrying out its 

23 duties under this section. 

24 ‘‘(E) REPORTS TO HEADS OF AGENCIES.— 

25 Whenever information or assistance requested 


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1 under paragraph (1) is, in the judgment of the 

2 Administrator, unreasonably refused or not pro3 vided, the Administrator shall report the cir4 cumstances to the head of the agency involved 

5 without delay. 

6 ‘‘(3) LIMITATION ON AUTHORITY.—Except as 

7 provided in paragraphs (1) (A) and (F) and (2) (A), 

8 (B), and (D), the Administrator may not control or 

9 direct any law enforcement agency, including the 

10 Department of Justice, in the exercise of the Admin11 istrator’s investigative authority. 

12 ‘‘(e) CONSULTATION WITH GOVERNMENT ACCOUNT13 ABILITY OFFICE.— 

14 ‘‘(1) IN GENERAL.—The Administrator may 

15 consult with the Government Accountability Office 

16 as to the scope and focus of an investigation. 

17 ‘‘(2) COMMENTS BY THE GOVERNMENT AC18 COUNTABILITY OFFICE.—Unless the Administrator 

19 determines that the public interest requires imme20 diate release, the Administrator shall— 

21 ‘‘(A) provide a copy of a report to the Gov22 ernment Accountability Office not less than 30 

23 days before the completion of a report by the 

24 Administrator; and 


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1 ‘‘(B) include the comments of the Govern2 ment Accountability Office as addenda to the 

3 report upon release. 

4 ‘‘(3) AVAILABILITY OF REPORTS.—Subject to 

5 the restrictions under subsection (g), the Adminis6 trator shall make all reports available to the Govern7 ment Accountability Office. 

8 ‘‘(4) COMMENTS BY GOVERNMENT ACCOUNT9 ABILITY OFFICE.—Not later than 60 days after re10 ceipt of a report from the Administrator, the Gov11 ernment Accountability Office shall publish written 

12 comments on the methodology and conclusions of the 

13 report. 

14 ‘‘(5) FURTHER INVESTIGATIONS BY ADMINIS15 TRATOR.—Upon request for further investigation by 

16 the Government Accountability Office, the Adminis17 trator shall— 

18 ‘‘(A) perform the requested investigation 

19 as promptly as reasonably feasible; or 

20 ‘‘(B) provide the Government Account21 ability Office with a written explanation why 

22 the Administrator has chosen not to pursue fur23 ther investigation. 

24 ‘‘(6) FURTHER INVESTIGATIONS BY THE GOV25 ERNMENT ACCOUNTABILITY OFFICE.—Except as 


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1 otherwise proscribed by law, the Government Ac2 countability Office may perform any further inves3 tigation it determines appropriate. 

4 ‘‘(f) CONSULTATION WITH ADMINISTRATIVE CON5 FERENCE OF THE UNITED STATES.— 

6 ‘‘(1) IN GENERAL.—Not later than 180 days 

7 after the date of enactment of the Regulatory Cap8 ture Prevention Act of 2011, the Administrative 

9 Conference of the United States shall provide the 

10 Administrator with written guidance on— 

11 ‘‘(A) the principal means by which con12 centrated economic interests wield influence 

13 across the Federal agencies; 

14 ‘‘(B) the most salient threats to regulatory 

15 integrity arising from that influence; and 

16 ‘‘(C) effective measures to minimize regu17 latory capture. 

18 ‘‘(2) GUIDANCE.—On a continuing basis, the 

19 Administrator shall develop, in consultation with the 

20 Administrative Conference of the United States, 

21 written guidance describing the most pervasive 

22 threats to regulatory integrity and the factors that 

23 primarily inform the exercise of the Administrator’s 

24 investigatory discretion. 


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1 ‘‘(3) COMMENTS.—The Administrative Con2 ference of the United States shall, to the extent it 

3 determines appropriate, comment upon reports 

4 issued by the Administrator. 

5 ‘‘(g) REPORTS TO CONGRESS; PUBLIC RELEASE.— 

6 ‘‘(1) IN GENERAL.—Not later than 30 days 

7 after completion of each report, the Administrator 

8 shall submit that report to the relevant committees 

9 of Congress. The relevant committees of Congress 

10 shall hold hearings on the report as the committees 

11 determine appropriate. 

12 ‘‘(2) ANNUAL REPORTS.— 

13 ‘‘(A) IN GENERAL.—Not later than April 

14 30 of each year, the Administrator shall pre15 pare and provide to the relevant committees of 

16 Congress an annual report summarizing the ac17 tivities of the Office of Regulatory Integrity 

18 during the immediately preceding 12-month pe19 riod ending March 31. 

20 ‘‘(B) CONTENTS.—Reports under this 

21 paragraph shall include— 

22 ‘‘(i) a description of significant prob23 lems, abuses, and deficiencies relating to 

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1 centrated economic interests during the re2 porting period; 

3 ‘‘(ii) a description of the recommenda4 tions for corrective action made by the Of5 fice of Regulatory Integrity during the re6 porting period with respect to significant 

7 problems, abuses, or deficiencies identified 

8 under clause (i); 

9 ‘‘(iii) an identification of each signifi10 cant recommendation described in previous 

11 semiannual reports on which corrective ac12 tion has not been completed; 

13 ‘‘(iv) a summary of each report issued 

14 by the Office of Regulatory Integrity; and 

15 ‘‘(v) a financial report for the Office 

16 of Regulatory Integrity. 

17 ‘‘(3) PUBLIC DISCLOSURE.— 

18 ‘‘(A) IN GENERAL.—Not later than 30 

19 days after the transmission of the annual report 

20 to the Congress, the Administrator shall make 

21 copies of such report available on a publicly 

22 available Internet website. 

23 ‘‘(B) LIMITATIONS ON DISCLOSURES.— 

24 Nothing in this paragraph shall be construed to 


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1 authorize the public disclosure of information 

2 which is— 

3 ‘‘(i) specifically prohibited from disclo4 sure by any other provision of law; 

5 ‘‘(ii) specifically required by Executive 

6 order to be protected from disclosure in 

7 the interest of national defense or national 

8 security or in the conduct of foreign af9 fairs; or 

10 ‘‘(iii) a part of an ongoing criminal in11 vestigation. 

12 ‘‘(C) INFORMATION IN PUBLIC RECORD.— 

13 Notwithstanding subparagraph (B), any report 

14 under this subsection may be disclosed to the 

15 public in a form which includes information 

16 with respect to a part of an ongoing criminal 

17 investigation if such information has been in18 cluded in a public record. 

19 ‘‘(D) NO WITHHOLDING OF INFORMATION

20 FROM CONGRESS.—Nothing in this section shall 

21 be construed to authorize or permit the with22 holding of information from the Congress, or 

23 from any committee or subcommittee thereof, 

24 except as otherwise authorized by law. 


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1 ‘‘(h) AUTHORIZATION OF APPROPRIATIONS.—There 

2 are authorized to be appropriated for each fiscal year such 

3 sums as may be necessary to carry out this section.’’. 

4 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

5 The table of sections for chapter 5 of title 31, United 

6 States Code, is amended by inserting after the item relat7 ing to section 507 the following: 

‘‘Sec. 508. Office of Regulatory Integrity.’’. 

8 SEC. 3. EFFECTIVE DATE. 

9 The amendments made by section 2 shall take effect 

10 90 days after the date of enactment of this Act. 

Æ 


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