II 

112TH CONGRESS 

1ST SESSION S. 1938 

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 

DECEMBER 1, 2011 

Ms. SNOWE 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; TABLE OF CONTENTS. 

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

5 ‘‘Regulatory Flexibility Improvements Act of 2011’’. 

6 (b) TABLE OF CONTENTS.—The table of contents of 

7 this Act is as follows: 

Sec. 1. Short title; table of contents. 

Sec. 2. Clarification and expansion of rules covered by the Regulatory Flexibility Act. 


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Sec. 3. Expansion of report of regulatory agenda. 

Sec. 4. Requirements providing for more detailed analyses. 

Sec. 5. Repeal of waiver and delay authority; Additional powers of the Chief 

Counsel for Advocacy. 

Sec. 6. Procedures for gathering comments. 

Sec. 7. Periodic review of rules. 

Sec. 8. Judicial review of compliance with the requirements of the Regulatory 

Flexibility Act available after publication of the final rule. 

Sec. 9. Jurisdiction of court of appeals over rules implementing the Regulatory 

Flexibility Act. 

Sec. 10. Clerical amendments. 

Sec. 11. Agency preparation of guides. 

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

3 ACT. 

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

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

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

7 given such term in section 551(4) of this title, ex8 cept that such term does not include a rule of par9 ticular (and not general) applicability relating to 

10 rates, wages, corporate or financial structures or re11 organizations thereof, prices, facilities, appliances, 

12 services, or allowances therefor or to valuations, 

13 costs or accounting, or practices relating to such 

14 rates, wages, structures, prices, appliances, services, 

15 or allowances.’’. 

16 (b) INCLUSION OF RULES WITH INDIRECT EF17 FECTS.—Section 601 of title 5, United States Code, is 

18 amended by adding at the end the following new para19 graph: 


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

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

3 rule— 

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

5 entities of such rule; and 

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

7 entities that is reasonably foreseeable and re8 sults from such rule (without regard to whether 

9 small entities will be directly regulated by the 

10 rule).’’. 

11 (c) INCLUSION OF RULES WITH BENEFICIAL EF12 FECTS.— 

13 (1) INITIAL REGULATORY FLEXIBILITY ANAL14 YSIS.—Subsection (c) of section 603 of title 5, 

15 United States Code, is amended by striking the first 

16 sentence and inserting ‘‘Each initial regulatory flexi17 bility analysis shall also contain a detailed descrip18 tion of alternatives to the proposed rule which mini19 mize any adverse significant economic impact or 

20 maximize any beneficial significant economic impact 

21 on small entities.’’. 

22 (2) FINAL REGULATORY FLEXIBILITY ANAL23 YSIS.—Section 604(a) of title 5, United States Code, 

24 is amended, in the first paragraph designated as 

25 paragraph (6), by striking ‘‘minimize the significant 


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1 economic impact’’ and inserting ‘‘minimize the ad2 verse significant economic impact or maximize the 

3 beneficial significant economic impact’’. 

4 (d) INCLUSION OF RULES AFFECTING TRIBAL ORGA5 NIZATIONS.—Paragraph (5) of section 601 of title 5, 

6 United States Code, is amended by striking ‘‘or special 

7 districts’’ and inserting ‘‘special districts, or tribal organi8 zations (as defined in section 4(l) of the Indian Self-Deter9 mination and Education Assistance Act (25 U.S.C. 

10 450b(l)))’’. 

11 (e) INCLUSION OF LAND MANAGEMENT PLANS AND

12 FORMAL RULE MAKING.— 

13 (1) INITIAL REGULATORY FLEXIBILITY ANAL14 YSIS.—Subsection (a) of section 603 of title 5, 

15 United States Code, is amended in the first sen16 tence— 

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

18 rule,’’; and 

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

20 amendment to a land management plan,’’ after 

21 ‘‘United States,’’. 

22 (2) FINAL REGULATORY FLEXIBILITY ANAL23 YSIS.—Subsection (a) of section 604 of title 5, 

24 United States Code, is amended, in the first sen25 tence— 


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1 (A) by striking ‘‘or’’ after ‘‘proposed rule2 making,’’; and 

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

4 amendment to a land management plan,’’ after 

5 ‘‘section 603(a),’’. 

6 (3) LAND MANAGEMENT PLAN DEFINED.—Sec7 tion 601 of title 5, United States Code, is amended 

8 by adding at the end the following new paragraph: 

9 ‘‘(10) LAND MANAGEMENT PLAN.— 

10 ‘‘(A) IN GENERAL.—The term ‘land man11 agement plan’ means— 

12 ‘‘(i) any plan developed by the Sec13 retary of Agriculture under section 6 of 

14 the Forest and Rangeland Renewable Re15 sources Planning Act of 1974 (16 U.S.C. 

16 1604); and 

17 ‘‘(ii) any plan developed by the Sec18 retary of Interior under section 202 of the 

19 Federal Land Policy and Management Act 

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

21 ‘‘(B) REVISION.—The term ‘revision’, 

22 when used with respect to a land management 

23 plan, means any change to a land management 

24 plan which— 


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

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

3 6(f)(5) of the Forest and Rangeland Re4 newable Resources Planning Act of 1974 

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

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

7 subparagraph (A)(ii), is made under sec8 tion 1610.5–6 of title 43, Code of Federal 

9 Regulations (or any successor regulation). 

10 ‘‘(C) AMENDMENT.—The term ‘amend11 ment’, when used with respect to a land man12 agement plan, means any change to a land 

13 management plan which— 

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

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

16 6(f)(4) of the Forest and Rangeland Re17 newable Resources Planning Act of 1974 

18 (16 U.S.C. 1604(f)(4)) and with respect to 

19 which the Secretary of Agriculture pre20 pares a statement described in section 

21 102(2)(C) of the National Environmental 

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

23 4332(2)(C)); or 

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

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1 tion 1610.5–5 of title 43, Code of Federal 

2 Regulations (or any successor regulation) 

3 and with respect to which the Secretary of 

4 the Interior prepares a statement described 

5 in section 102(2)(C) of the National Envi6 ronmental Policy Act of 1969 (42 U.S.C. 

7 4332(2)(C)).’’. 

8 (f) INCLUSION OF CERTAIN INTERPRETIVE RULES

9 INVOLVING THE INTERNAL REVENUE LAWS.— 

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

11 603 of title 5, United States Code, is amended by 

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

13 recordkeeping requirement, and without regard to 

14 whether such requirement is imposed by statute or 

15 regulation.’’. 

16 (2) COLLECTION OF INFORMATION.—Paragraph 

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

18 amended to read as follows: 

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

20 ‘collection of information’ has the meaning given 

21 such term in section 3502(3) of title 44.’’. 

22 (3) RECORDKEEPING REQUIREMENT.—Para23 graph (8) of section 601 of title 5, United States 

24 Code, is amended to read as follows: 


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1 ‘‘(8) RECORDKEEPING REQUIREMENT.—The 

2 term ‘recordkeeping requirement’ has the meaning 

3 given such term in section 3502(13) of title 44.’’. 

4 (g) DEFINITION OF SMALL ORGANIZATION.—Para5 graph (4) of section 601 of title 5, United States Code, 

6 is amended to read as follows: 

7 ‘‘(4) SMALL ORGANIZATION.— 

8 ‘‘(A) IN GENERAL.—The term ‘small orga9 nization’ means any not-for-profit enterprise 

10 that, as of the issuance of the notice of pro11 posed rulemaking— 

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

13 is described by a classification code of the 

14 North American Industrial Classification 

15 System, does not exceed the size standard 

16 established by the Administrator of the 

17 Small Business Administration pursuant to 

18 section 3 of the Small Business Act (15 

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

20 described by such classification code; and 

21 ‘‘(ii) in the case of any other enter22 prise, has a net worth that does not exceed 

23 $7,000,000 and has not more than 500 

24 employees. 


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

2 the case of any local labor organization, sub3 paragraph (A) shall be applied without regard 

4 to any national or international organization of 

5 which such local labor organization is a part. 

6 ‘‘(C) AGENCY DEFINITIONS.—Subpara7 graphs (A) and (B) shall not apply to the ex8 tent that an agency, after consultation with the 

9 Office of Advocacy of the Small Business Ad10 ministration and after opportunity for public 

11 comment, establishes one or more definitions 

12 for such term which are appropriate to the ac13 tivities of the agency and publishes such defini14 tions in the Federal Register.’’. 

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

16 Section 602 of title 5, United States Code, is amend17 ed— 

18 (1) in subsection (a)— 

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

20 at the end and inserting a semicolon; 

21 (B) by redesignating paragraph (3) as 

22 paragraph (4); and 

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

24 following: 


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

2 North American Industrial Classification System 

3 that is primarily affected by any rule which the 

4 agency expects to propose or promulgate which is 

5 likely to have a significant economic impact on a 

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

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

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

9 an agency publishes a regulatory flexibility agenda in the 

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

11 prominently display a plain language summary of the in12 formation contained in the regulatory flexibility agenda on 

13 the website of the agency. The Office of Advocacy of the 

14 Small Business Administration shall compile and promi15 nently display plain language summaries of each regu16 latory flexibility agenda published under subsection (a) on 

17 the website of the Office of Advocacy, not later than 3 

18 days after the date on which the agency publishes the reg19 ulatory flexibility agenda the Federal Register.’’. 

20 SEC. 4. REQUIREMENTS PROVIDING FOR MORE DETAILED 

21 ANALYSES. 

22 (a) INITIAL REGULATORY FLEXIBILITY ANALYSIS.— 

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

24 Code, is amended to read as follows: 


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1 ‘‘(b) Each initial regulatory flexibility analysis re2 quired under this section shall contain a detailed state3 ment— 

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

5 agency is being considered; 

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

7 for, the proposed rule; 

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

9 entities to which the proposed rule will apply; 

10 ‘‘(4) describing the projected reporting, record11 keeping, and other compliance requirements of the 

12 proposed rule, including an estimate of the classes of 

13 small entities which will be subject to the require14 ment and the type of professional skills necessary 

15 for preparation of the report and record; 

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

17 may duplicate, overlap, or conflict with the proposed 

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

19 be provided; 

20 ‘‘(6) estimating the additional cumulative eco21 nomic impact of the proposed rule on small entities 

22 beyond that already imposed on the class of small 

23 entities by the agency or why such an estimate is 

24 not available; and 


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1 ‘‘(7) describing any disproportionate economic 

2 impact on small entities or a specific class of small 

3 entities.’’. 

4 (b) FINAL REGULATORY FLEXIBILITY ANALYSIS.— 

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

6 United States Code, is amended— 

7 (A) in paragraph (4), by striking ‘‘an ex8 planation’’ and inserting ‘‘a detailed expla9 nation’’; 

10 (B) in each of paragraphs (4), (5), and the 

11 first paragraph designated as paragraph (6), by 

12 inserting ‘‘detailed’’ before ‘‘description’’; and 

13 (C) by adding at the end the following: 

14 ‘‘(7) a description any disproportionate eco15 nomic impact on small entities or a specific class of 

16 small entities.’’. 

17 (2) INCLUSION OF RESPONSE TO COMMENTS ON

18 CERTIFICATION OF PROPOSED RULE.—Paragraph 

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

20 is amended by inserting ‘‘(or certification of the pro21 posed rule under section 605(b))’’ after ‘‘initial reg22 ulatory flexibility analysis’’. 

23 (3) PUBLICATION OF ANALYSIS ON WEBSITE.— 

24 Subsection (b) of section 604 of title 5, United 

25 States Code, is amended to read as follows: 


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1 ‘‘(b) The agency shall make copies of the final regu2 latory flexibility analysis available to the public, including 

3 by making the entire analysis available on the website of 

4 the agency, and shall publish in the Federal Register the 

5 final regulatory flexibility analysis, or a summary thereof 

6 which includes the telephone number, mailing address, and 

7 link to the website where the complete analysis may be 

8 obtained.’’. 

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

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

11 Code, is amended to read as follows: 

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

13 any requirement regarding the content of an agenda or 

14 regulatory flexibility analysis under section 602, 603, or 

15 604, if such agency provides in such agenda or analysis 

16 a cross-reference to the specific portion of another agenda 

17 or analysis which is required by any other law and which 

18 satisfies such requirement.’’. 

19 (d) CERTIFICATIONS.—Subsection (b) of section 605 

20 of title 5, United States Code, is amended, in the second 

21 sentence, by striking ‘‘statement providing the factual’’ 

22 and inserting ‘‘detailed statement providing the factual 

23 and legal’’. 


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1 (e) QUANTIFICATION REQUIREMENTS.—Section 607 

2 of title 5, United States Code, is amended to read as fol3 lows: 

4 ‘‘§ 607. Quantification requirements 

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

6 shall provide— 

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

8 the effects of the proposed or final rule and alter9 natives to the proposed or final rule; or 

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

11 a detailed statement explaining why quantification is 

12 not practicable or reliable.’’. 

13 SEC. 5. REPEAL OF WAIVER AND DELAY AUTHORITY; ADDI14 TIONAL POWERS OF THE CHIEF COUNSEL 

15 FOR ADVOCACY. 

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

17 States Code, is amended to read as follows: 

18 ‘‘§ 608. Additional powers of Chief Counsel for Advo19 cacy 

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

21 enactment of the Regulatory Flexibility Improvements Act 

22 of 2011, the Chief Counsel for Advocacy of the Small 

23 Business Administration shall, after opportunity for notice 

24 and comment under section 553, issue rules governing 

25 agency compliance with this chapter. The Chief Counsel 


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1 may modify or amend such rules after notice and comment 

2 under section 553. This chapter (other than this sub3 section) shall not apply with respect to the issuance, modi4 fication, or amendment of rules under this paragraph. 

5 ‘‘(2) An agency shall not issue rules which supple6 ment the rules issued under subsection (a) unless such 

7 agency has first consulted with the Chief Counsel for Ad8 vocacy of the Small Business Administration to ensure 

9 that such supplemental rules comply with this chapter and 

10 the rules issued under paragraph (1). 

11 ‘‘(b) Notwithstanding any other provision of law, the 

12 Chief Counsel for Advocacy of the Small Business Admin13 istration may intervene in any agency adjudication (unless 

14 such agency is authorized to impose a fine or penalty 

15 under such adjudication), and may inform the agency of 

16 the impact that any decision on the record may have on 

17 small entities. The Chief Counsel shall not initiate an ap18 peal with respect to any adjudication in which the Chief 

19 Counsel intervenes under this subsection. 

20 ‘‘(c) The Chief Counsel for Advocacy of the Small 

21 Business Administration may file comments in response 

22 to any agency notice requesting comment, regardless of 

23 whether the agency is required to file a general notice of 

24 proposed rulemaking under section 553.’’. 


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

2 title 5, United States Code, is amended— 

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

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

5 and 

6 (3) in paragraph (3)— 

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

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

9 and inserting the following: 

10 ‘‘(3) A small entity’’. 

11 SEC. 6. PROCEDURES FOR GATHERING COMMENTS. 

12 Section 609 of title 5, United States Code, is amend13 ed by striking subsection (b) and all that follows through 

14 the end of the section and inserting the following: 

15 ‘‘(b)(1) Prior to publication of any proposed rule de16 scribed in subsection (e), the agency making such rule 

17 shall notify the Chief Counsel for Advocacy of the Small 

18 Business Administration and provide the Chief Counsel 

19 for Advocacy with— 

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

21 agency in making the proposed rule, including the 

22 draft of the proposed rule, except as provided in 

23 paragraph (2); 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 may provide a summary of any draft 

4 if the rule— 

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

6 United States; or 

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

8 agency (as defined in section 3502(5) of title 44). 

9 ‘‘(c) Not later than 15 days after the receipt of mate10 rials and information under subsection (b), the Chief 

11 Counsel for Advocacy of the Small Business Administra12 tion shall— 

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

14 small entities or a combination of both for the pur15 pose of obtaining advice, input, and recommenda16 tions from those persons about the potential eco17 nomic impacts of the proposed rule and the compli18 ance of the agency with section 603; and 

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

20 employee from the Office of Advocacy of the Small 

21 Business Administration, an employee from the 

22 agency making the rule, and in the case of an agen23 cy other than an independent regulatory agency (as 

24 defined in section 3502(5) of title 44), an employee 

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1 fairs of the Office of Management and Budget to re2 view the materials and information provided to the 

3 Chief Counsel for Advocacy of the Small Business 

4 Administration under subsection (b). 

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

6 described in subsection (c)(2) is convened, the Chief Coun7 sel for Advocacy of the Small Business Administration 

8 shall, after consultation with the members of such panel, 

9 submit a report to the agency and, in the case of an agen10 cy other than an independent regulatory agency (as de11 fined in section 3502(5) of title 44), the Office of Informa12 tion and Regulatory Affairs of the Office of Management 

13 and Budget. 

14 ‘‘(2) Such report shall include an assessment of the 

15 economic impact of the proposed rule on small entities, 

16 including an assessment of the proposed rule’s impact on 

17 the cost that small entities pay for energy, and a discus18 sion of any alternatives that will minimize adverse signifi19 cant economic impacts or maximize beneficial significant 

20 economic impacts on small entities. 

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

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

23 shall explain what actions, if any, the agency took in re24 sponse to such report. 


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

2 if the Administrator of the Office of Information and Reg3 ulatory Affairs of the Office of Management and Budget, 

4 the head of the agency (or the delegatee of the head of 

5 the agency), or an independent regulatory agency deter6 mines that the proposed rule is likely to result in— 

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

8 $100,000,000 or more; 

9 ‘‘(2) a major increase in costs or prices for con10 sumers, individual industries, Federal, State, or local 

11 governments, tribal organizations, or geographic re12 gions; 

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

14 employment, investment, productivity, innovation, or 

15 on the ability of United States-based enterprises to 

16 compete with foreign-based enterprises in domestic 

17 and export markets; or 

18 ‘‘(4) a significant economic impact on a sub19 stantial number of small entities. 

20 ‘‘(f) Upon application by the agency, the Chief Coun21 sel for Advocacy of the Small Business Administration 

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

23 if the Chief Counsel for Advocacy of the Small Business 

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1 quirements of such subsections are impracticable, unnec2 essary, or contrary to the public interest.’’. 

3 SEC. 7. PERIODIC REVIEW OF RULES. 

4 Section 610 of title 5, United States Code, is amend5 ed to read as follows: 

6 ‘‘§ 610. Periodic review of rules 

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

8 the Regulatory Flexibility Improvements Act of 2011, 

9 each agency shall publish in the Federal Register and 

10 make available on the website of the agency a plan for 

11 the periodic review of rules issued by the agency which 

12 the head of the agency determines have a significant eco13 nomic impact on a substantial number of small entities. 

14 Such determination shall be made without regard to 

15 whether the agency performed an analysis under section 

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

17 whether such rules should be continued without change, 

18 or should be amended or rescinded, consistent with the 

19 stated objectives of applicable statutes, to minimize any 

20 adverse significant economic impacts or maximize any 

21 beneficial significant economic impacts on a substantial 

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

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

24 Federal Register and subsequently making the amended 

25 plan available on the website of the agency. 


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

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

3 Regulatory Flexibility Improvements Act of 2011 within 

4 10 years of the date of publication of the plan in the Fed5 eral Register and for review of rules adopted after the date 

6 of enactment of the Regulatory Flexibility Improvements 

7 Act of 2011 within 10 years after the publication of the 

8 final rule in the Federal Register. If the head of the agen9 cy determines that completion of the review of existing 

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

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

12 Federal Register and may extend the review for not longer 

13 than 2 years after publication of notice of extension in 

14 the Federal Register. Such certification and notice shall 

15 be sent to the Chief Counsel for Advocacy of the Small 

16 Business Administration and the Congress. 

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

18 an agency will conduct outreach to and meaningfully in19 clude small entities for the purposes of carrying out this 

20 section. The agency shall include in this section a plan 

21 for how the agency will contact small entities and gather 

22 their input on existing agency rules. 

23 ‘‘(d) Each agency shall annually submit a report re24 garding the results of its review pursuant to such plan 

25 to the Congress, the Chief Counsel for Advocacy of the 


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1 Small Business Administration, and, in the case of agen2 cies other than independent regulatory agencies (as de3 fined in section 3502(5) of title 44) to the Administrator 

4 of the Office of Information and Regulatory Affairs of the 

5 Office of Management and Budget. Such report shall in6 clude the identification of any rule with respect to which 

7 the head of the agency made a determination described 

8 in paragraph (5) or (6) of subsection (e) and a detailed 

9 explanation of the reasons for such determination. 

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

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

12 to minimize any adverse significant economic impact on 

13 a substantial number of small entities or disproportionate 

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

15 maximize any beneficial significant economic impact of the 

16 rule on a substantial number of small entities to the great17 est extent possible, consistent with the stated objectives 

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

19 the agency shall consider the following factors: 

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

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

22 agency from small entities concerning the rule. 

23 ‘‘(3) Comments by the Regulatory Enforcement 

24 Ombudsman and the Chief Counsel for Advocacy of 

25 the Small Business Administration. 


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1 ‘‘(4) The complexity of the rule. 

2 ‘‘(5) The extent to which the rule overlaps, du3 plicates, or conflicts with other Federal rules and, 

4 unless the head of the agency determines it to be in5 feasible, State, territorial, and local rules. 

6 ‘‘(6) The contribution of the rule to the cumu7 lative economic impact of all Federal rules on the 

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

9 head of the agency determines that such calculations 

10 cannot be made and reports that determination in 

11 the annual report required under subsection (d). 

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

13 evaluated or the degree to which technology, eco14 nomic conditions, or other factors have changed in 

15 the area affected by the rule. 

16 ‘‘(f) The agency shall publish in the Federal Register 

17 and on the website of the agency a list of rules to be re18 viewed pursuant to such plan. Such publication shall in19 clude a brief description of the rule, the reason why the 

20 agency determined that the rule has a significant economic 

21 impact 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 

25 Business Administration, and the Regulatory EnforceVerDate Mar 15 2010 03:59 Dec 02, 2011 Jkt 019200 PO 00000 Frm 00023 Fmt 6652 Sfmt 6201 E:\BILLS\S1938.IS S1938

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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.—Paragraph (1) of section 611(a) 

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

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

10 (b) JURISDICTION.—Paragraph (2) of section 611(a) 

11 of title 5, United States Code, is amended by inserting 

12 ‘‘(or which would have such jurisdiction if publication of 

13 the final rule constituted final agency action)’’ after ‘‘pro14 vision of law,’’. 

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

16 section 611(a) of title 5, United States Code, is amend17 ed— 

18 (1) by striking ‘‘final agency action’’ and insert19 ing ‘‘publication of the final rule’’; and 

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

21 which the date of final agency action is the same 

22 date as the publication of the final rule,’’ after ‘‘ex23 cept that’’. 

24 (d) INTERVENTION BY CHIEF COUNSEL FOR ADVO25 CACY.—Subsection (b) of section 612 of title 5, United 


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1 States Code, is amended by inserting before the first pe2 riod ‘‘or agency compliance with section 601, 603, 604, 

3 605(b), 609, or 610’’. 

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

5 IMPLEMENTING THE REGULATORY FLEXI6 BILITY ACT. 

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

8 States Code, is amended— 

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

10 end; 

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

12 the end and inserting ‘‘; and’’; and 

13 (3) by inserting after paragraph (7) the fol14 lowing new paragraph: 

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

16 5.’’. 

17 (b) CONFORMING AMENDMENTS.—Paragraph (3) of 

18 section 2341 of title 28, United States Code, is amended— 

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

20 the end; 

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

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

23 (3) by adding at the end the following new sub24 paragraph: 


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

2 Business Administration, when the final rule is 

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

4 (c) AUTHORIZATION TO INTERVENE AND COMMENT

5 ON AGENCY COMPLIANCE WITH ADMINISTRATIVE PROCE6 DURE.—Subsection (b) of section 612 of title 5, United 

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

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

9 SEC. 10. TECHNICAL AND CONFORMING AMENDMENTS. 

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

11 States Code, is amended— 

12 (1) in paragraph (1)— 

13 (A) by striking the semicolon at the end 

14 and inserting a period; and 

15 (B) by striking ‘‘(1) the term’’ and insert16 ing the following: 

17 ‘‘(1) AGENCY.—The term’’; 

18 (2) in paragraph (3)— 

19 (A) by striking the semicolon at the end 

20 and inserting a period; and 

21 (B) by striking ‘‘(3) the term’’ and insert22 ing the following: 

23 ‘‘(3) SMALL BUSINESS.—The term’’; 

24 (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) SECTION 605.—The heading of section 605 of 

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

15 ‘‘§ 605. Incorporations by reference and certifi16 cations’’. 

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

18 chapter 6 of title 5, United States Code, is amended— 

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

20 and inserting the following new item: 

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

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

22 and inserting the following new item: 

‘‘607. Quantification requirements.’’; 

23 and 


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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 AMENDMENTS.—Chapter 6 of title 5, 

4 United States Code, is amended— 

5 (1) in section 603, by striking subsection (d); 

6 and 

7 (2) in section 604(a) by striking the second 

8 paragraph designated as paragraph (6). 

9 SEC. 11. AGENCY PREPARATION OF GUIDES. 

10 Section 212(a)(5) the Small Business Regulatory En11 forcement Fairness Act of 1996 (5 U.S.C. 601 note) is 

12 amended to read as follows: 

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

14 agency shall, in its sole discretion, taking into ac15 count the subject matter of the rule and the lan16 guage of relevant statutes, ensure that the guide is 

17 written using sufficiently plain language likely to be 

18 understood by affected small entities. Agencies may 

19 prepare separate guides covering groups or classes of 

20 similarly affected small entities and may cooperate 

21 with associations of small entities to distribute such 

22 guides. In developing guides, agencies shall solicit 

23 input from affected small entities or associations of 

24 affected small entities. An agency may prepare 


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1 guides and apply this section with respect to a rule 

2 or a group of related rules.’’. 

Æ 


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