IB 

Union Calendar No. 191 

112TH CONGRESS 

1ST SESSION H. R. 527 

[Report No. 112–289, Parts I and II] 

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 HOUSE OF REPRESENTATIVES 

FEBRUARY 8, 2011 

Mr. SMITH of Texas (for himself, Mr. GRAVES of Missouri, and Mr. COBLE) 

introduced the following bill; which was referred to the Committee on the 

Judiciary, and in addition to the Committee on Small Business, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned 

NOVEMBER 16, 2011 

Additional sponsors: Mr. GALLEGLY, Mr. FRANKS of Arizona, Mr. GOWDY, 

Mr. REED, Mr. ROSS of Florida, Mr. KING of New York, Mr. MANZULLO, 

Ms. FOXX, Mr. SHUSTER, Mr. DANIEL E. LUNGREN of California, Mr. 

GRIFFIN of Arkansas, Mr. GIBBS, Mr. GRIMM, Mr. JOHNSON of Ohio, 

Mr. TURNER of Ohio, Mr. DAVIS of Kentucky, Mr. DUNCAN of Tennessee, Mr. SENSENBRENNER, Mr. GOODLATTE, Mr. POE of Texas, Mr. 

FRELINGHUYSEN, Mrs. BLACK, Mr. MCKINLEY, and Mr. BROOKS

NOVEMBER 16, 2011 

Reported from the Committee on the Judiciary with an amendment 

[Strike out all after the enacting clause and insert the part printed in italic] 

NOVEMBER 16, 2011 

Reported from the Committee on Small Business with an amendment 

[Strike out all after the enacting clause and insert the part printed in boldface roman] 

[For text of introduced bill, see copy of bill as introduced on February 8, 2011] 


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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. 


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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 this 

7 Act is as follows: 

Sec. 1. Short title; table of contents. 

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

Act. 

Sec. 3. Requirements providing for more detailed analyses. 

Sec. 4. Repeal of waiver and delay authority; additional powers of the Chief 

Counsel for Advocacy. 

Sec. 5. Procedures for gathering comments. 

Sec. 6. Periodic review of rules. 

Sec. 7. Judicial review of compliance with the requirements of the Regulatory 

Flexibility Act available after publication of the final rule. 

Sec. 8. Jurisdiction of court of appeals over rules implementing the Regulatory 

Flexibility Act. 

Sec. 9. Clerical amendments. 

8 SEC. 2. CLARIFICATION AND EXPANSION OF RULES COV9 ERED BY THE REGULATORY FLEXIBILITY ACT. 

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

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

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

13 given such term in section 551(4) of this title, except 

14 that such term does not include a rule of particular 

15 (and not general) applicability relating to rates, 

16 wages, corporate or financial structures or reorga17 nizations thereof, prices, facilities, appliances, serv18 ices, or allowances therefor or to valuations, costs or 

19 accounting, or practices relating to such rates, wages, 


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

3 (b) INCLUSION OF RULES WITH INDIRECT EFFECTS.— 

4 Section 601 of title 5, United States Code, is amended by 

5 adding at the end the following new paragraph: 

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

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

8 rule— 

9 ‘‘(A) any direct economic effect on small en10 tities of such rule; and 

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

12 entities which is reasonably foreseeable and re13 sults from such rule (without regard to whether 

14 small entities will be directly regulated by the 

15 rule).’’. 

16 (c) INCLUSION OF RULES WITH BENEFICIAL EF17 FECTS.— 

18 (1) INITIAL REGULATORY FLEXIBILITY ANAL19 YSIS.—Subsection (c) of section 603 of title 5, United 

20 States Code, is amended by striking the first sentence 

21 and inserting ‘‘Each initial regulatory flexibility 

22 analysis shall also contain a detailed description of 

23 alternatives to the proposed rule which minimize any 

24 adverse significant economic impact or maximize any 


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1 beneficial significant economic impact on small enti2 ties.’’. 

3 (2) FINAL REGULATORY FLEXIBILITY ANAL4 YSIS.—The first paragraph (6) of section 604(a) of 

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

6 ‘‘minimize the significant economic impact’’ and in7 serting ‘‘minimize the adverse significant economic 

8 impact or maximize the beneficial significant eco9 nomic impact’’. 

10 (d) INCLUSION OF RULES AFFECTING TRIBAL ORGANI11 ZATIONS.—Paragraph (5) of section 601 of title 5, United 

12 States Code, is amended by inserting ‘‘and tribal organiza13 tions (as defined in section 4(l) of the Indian Self-Deter14 mination and Education Assistance Act (25 U.S.C. 

15 450b(l))),’’ after ‘‘special districts,’’. 

16 (e) INCLUSION OF LAND MANAGEMENT PLANS AND

17 FORMAL RULEMAKING.— 

18 (1) INITIAL REGULATORY FLEXIBILITY ANAL19 YSIS.—Subsection (a) of section 603 of title 5, United 

20 States Code, is amended in the first sentence— 

21 (A) by striking ‘‘or’’ after ‘‘proposed rule,’’; 

22 and 

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

24 amendment to a land management plan,’’ after 

25 ‘‘United States,’’. 


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1 (2) FINAL REGULATORY FLEXIBILITY ANAL2 YSIS.—Subsection (a) of section 604 of title 5, United 

3 States Code, is amended in the first sentence— 

4 (A) by striking ‘‘or’’ after ‘‘proposed rule5 making,’’; and 

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

7 amendment to a land management plan,’’ after 

8 ‘‘section 603(a),’’. 

9 (3) LAND MANAGEMENT PLAN DEFINED.—Section 

10 601 of title 5, United States Code, is amended by 

11 adding at the end the following new paragraph: 

12 ‘‘(10) LAND MANAGEMENT PLAN.— 

13 ‘‘(A) IN GENERAL.—The term ‘land man14 agement plan’ means— 

15 ‘‘(i) any plan developed by the Sec16 retary of Agriculture under section 6 of the 

17 Forest and Rangeland Renewable Resources 

18 Planning Act of 1974 (16 U.S.C. 1604); 

19 and 

20 ‘‘(ii) any plan developed by the Sec21 retary of Interior under section 202 of the 

22 Federal Land Policy and Management Act 

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

24 ‘‘(B) REVISION.—The term ‘revision’ means 

25 any change to a land management 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 Renew4 able Resources Planning Act of 1974 (16 

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

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

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

8 1610.5–6 of title 43, Code of Federal Regu9 lations (or any successor regulation). 

10 ‘‘(C) AMENDMENT.—The term ‘amendment’ 

11 means any change to a land management plan 

12 which— 

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

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

15 6(f)(4) of the Forest and Rangeland Renew16 able Resources Planning Act of 1974 (16 

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

18 which the Secretary of Agriculture prepares 

19 a statement described in section 102(2)(C) 

20 of the National Environmental Policy Act 

21 of 1969 (42 U.S.C. 4332(2)(C)); or 

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

23 subparagraph (A)(ii), is made under section 

24 1610.5–5 of title 43, Code of Federal Regu25 lations (or any successor regulation) and 


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1 with respect to which the Secretary of the 

2 Interior prepares a statement described in 

3 section 102(2)(C) of the National Environ4 mental Policy Act of 1969 (42 U.S.C. 

5 4332(2)(C)).’’. 

6 (f) INCLUSION OF CERTAIN INTERPRETIVE RULES IN7 VOLVING THE INTERNAL REVENUE LAWS.— 

8 (1) IN GENERAL.—Subsection (a) of section 603 

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

10 the period at the end and inserting ‘‘or a record11 keeping requirement, and without regard to whether 

12 such requirement is imposed by statute or regula13 tion.’’. 

14 (2) COLLECTION OF INFORMATION.—Paragraph 

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

16 amended to read as follows: 

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

18 ‘collection of information’ has the meaning given such 

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

20 (3) RECORDKEEPING REQUIREMENT.—Para21 graph (8) of section 601 of title 5, United States 

22 Code, is amended to read as follows: 

23 ‘‘(8) RECORDKEEPING REQUIREMENT.—The term 

24 ‘recordkeeping requirement’ has the meaning given 

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


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1 (g) DEFINITION OF SMALL ORGANIZATION.—Para2 graph (4) of section 601 of title 5, United States Code, is 

3 amended to read as follows: 

4 ‘‘(4) SMALL ORGANIZATION.— 

5 ‘‘(A) IN GENERAL.—The term ‘small organi6 zation’ means any not-for-profit enterprise 

7 which, as of the issuance of the notice of pro8 posed rulemaking— 

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

10 is described by a classification code of the 

11 North American Industrial Classification 

12 System, does not exceed the size standard es13 tablished by the Administrator of the Small 

14 Business Administration pursuant to sec15 tion 3 of the Small Business Act (15 U.S.C. 

16 632) for small business concerns described 

17 by such classification code; and 

18 ‘‘(ii) in the case of any other enter19 prise, has a net worth that does not exceed 

20 $7,000,000 and has not more than 500 em21 ployees. 

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

23 the case of any local labor organization, sub24 paragraph (A) shall be applied without regard to 


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1 any national or international organization of 

2 which such local labor organization is a part. 

3 ‘‘(C) AGENCY DEFINITIONS.—Subpara4 graphs (A) and (B) shall not apply to the extent 

5 that an agency, after consultation with the Office 

6 of Advocacy of the Small Business Administra7 tion and after opportunity for public comment, 

8 establishes one or more definitions for such term 

9 which are appropriate to the activities of the 

10 agency and publishes such definitions in the 

11 Federal Register.’’. 

12 SEC. 3. REQUIREMENTS PROVIDING FOR MORE DETAILED 

13 ANALYSES. 

14 (a) INITIAL REGULATORY FLEXIBILITY ANALYSIS.— 

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

16 is amended to read as follows: 

17 ‘‘(b) Each initial regulatory flexibility analysis re18 quired under this section shall contain a detailed state19 ment— 

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

21 agency is being considered; 

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

23 for, the proposed rule; 

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

25 entities to which the proposed rule will apply; 


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1 ‘‘(4) describing the projected reporting, record2 keeping, and other compliance requirements of the 

3 proposed rule, including an estimate of the classes of 

4 small entities which will be subject to the requirement 

5 and the type of professional skills necessary for prepa6 ration of the report and record; 

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

8 may duplicate, overlap, or conflict with the proposed 

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

10 be provided; 

11 ‘‘(6) estimating the additional cumulative eco12 nomic impact of the proposed rule on small entities 

13 beyond that already imposed on the class of small en14 tities by the agency or why such an estimate is not 

15 available; and 

16 ‘‘(7) describing any disproportionate economic 

17 impact on small entities or a specific class of small 

18 entities.’’. 

19 (b) FINAL REGULATORY FLEXIBILITY ANALYSIS.— 

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

21 United States Code, is amended— 

22 (A) in paragraph (4), by striking ‘‘an ex23 planation’’ and inserting ‘‘a detailed expla24 nation’’; 


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

2 first paragraph (6), by inserting ‘‘detailed’’ be3 fore ‘‘description’’; and 

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

5 ‘‘(7) describing any disproportionate economic 

6 impact on small entities or a specific class of small 

7 entities.’’. 

8 (2) INCLUSION OF RESPONSE TO COMMENTS ON

9 CERTIFICATION OF PROPOSED RULE.—Paragraph (2) 

10 of section 604(a) of title 5, United States Code, is 

11 amended by inserting ‘‘(or certification of the pro12 posed rule under section 605(b))’’ after ‘‘initial regu13 latory flexibility analysis’’. 

14 (3) PUBLICATION OF ANALYSIS ON WEBSITE.— 

15 Subsection (b) of section 604 of title 5, United States 

16 Code, is amended to read as follows: 

17 ‘‘(b) The agency shall make copies of the final regu18 latory flexibility analysis available to the public, including 

19 placement of the entire analysis on the agency’s website, 

20 and shall publish in the Federal Register the final regu21 latory flexibility analysis, or a summary thereof which in22 cludes the telephone number, mailing address, and link to 

23 the website where the complete analysis may be obtained.’’. 


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1 (c) CROSS-REFERENCES TO OTHER ANALYSES.—Sub2 section (a) of section 605 of title 5, United States Code, 

3 is amended to read as follows: 

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

5 any requirement regarding the content of an agenda or reg6 ulatory flexibility analysis under section 602, 603, or 604, 

7 if such agency provides in such agenda or analysis a cross8 reference to the specific portion of another agenda or anal9 ysis which is required by any other law and which satisfies 

10 such requirement.’’. 

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

12 title 5, United States Code, is amended— 

13 (1) by inserting ‘‘detailed’’ before ‘‘statement’’ 

14 the first place it appears; and 

15 (2) by inserting ‘‘and legal’’ after ‘‘factual’’. 

16 (e) QUANTIFICATION REQUIREMENTS.—Section 607 of 

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

18 ‘‘§ 607. Quantification requirements 

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

20 shall provide— 

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

22 the effects of the proposed or final rule and alter23 natives to the proposed or final rule; or 


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

2 detailed statement explaining why quantification is 

3 not practicable or reliable.’’. 

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

6 FOR ADVOCACY. 

7 (a) IN GENERAL.—Section 608 is amended to read as 

8 follows: 

9 ‘‘§ 608. Additional powers of Chief Counsel for Advo10 cacy 

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

12 enactment of the Regulatory Flexibility Improvements Act 

13 of 2011, the Chief Counsel for Advocacy of the Small Busi14 ness Administration shall, after opportunity for notice and 

15 comment under section 553, issue rules governing agency 

16 compliance with this chapter. The Chief Counsel may mod17 ify or amend such rules after notice and comment under 

18 section 553. This chapter (other than this subsection) shall 

19 not apply with respect to the issuance, modification, and 

20 amendment of rules under this paragraph. 

21 ‘‘(2) An agency shall not issue rules which supplement 

22 the rules issued under subsection (a) unless such agency has 

23 first consulted with the Chief Counsel for Advocacy to en24 sure that such supplemental rules comply with this chapter 

25 and the rules issued under paragraph (1). 


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1 ‘‘(b) Notwithstanding any other law, the Chief Counsel 

2 for Advocacy of the Small Business Administration may 

3 intervene in any agency adjudication (unless such agency 

4 is authorized to impose a fine or penalty under such adju5 dication), and may inform the agency of the impact that 

6 any decision on the record may have on small entities. The 

7 Chief Counsel shall not initiate an appeal with respect to 

8 any adjudication in which the Chief Counsel intervenes 

9 under this subsection. 

10 ‘‘(c) The Chief Counsel for Advocacy may file com11 ments in response to any agency notice requesting comment, 

12 regardless of whether the agency is required to file a general 

13 notice of proposed rulemaking under section 553.’’. 

14 (b) CONFORMING AMENDMENTS.— 

15 (1) Section 611(a)(1) of such title is amended by 

16 striking ‘‘608(b),’’. 

17 (2) Section 611(a)(2) of such title is amended by 

18 striking ‘‘608(b),’’. 

19 (3) Section 611(a)(3) of such title is amended— 

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

21 (B) by striking ‘‘(3)(A) A small entity’’ and 

22 inserting the following: 

23 ‘‘(3) A small entity’’. 


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1 SEC. 5. PROCEDURES FOR GATHERING COMMENTS. 

2 Section 609 of title 5, United States Code, is amended 

3 by striking subsection (b) and all that follows through the 

4 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 such rule shall 

7 notify the Chief Counsel for Advocacy of the Small Business 

8 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 paragraph 

17 (1) to provide the exact language of any draft if the rule— 

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

19 United States; or 

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

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

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

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

24 Counsel for Advocacy of the Small Business Administration 

25 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 recommendations 

4 from those persons about the potential economic im5 pacts of the proposed rule and the compliance of the 

6 agency with section 603; and 

7 ‘‘(2) convene a review panel consisting of an em8 ployee from the Office of Advocacy of the Small Busi9 ness Administration, an employee from the agency 

10 making the rule, and in the case of an agency other 

11 than an independent regulatory agency (as defined in 

12 section 3502(5) of title 44), an employee from the Of13 fice of Information and Regulatory Affairs of the Of14 fice of Management and Budget to review the mate15 rials and information provided to the Chief Counsel 

16 under subsection (b). 

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

18 described in subsection (c)(2) is convened, the Chief Counsel 

19 for Advocacy of the Small Business Administration shall, 

20 after consultation with the members of such panel, submit 

21 a report to the agency and, in the case of an agency other 

22 than an independent regulatory agency (as defined in sec23 tion 3502(5) of title 44), the Office of Information and Reg24 ulatory Affairs of the Office of Management and Budget. 


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1 ‘‘(2) Such report shall include an assessment of the eco2 nomic impact of the proposed rule on small entities and 

3 a discussion of any alternatives that will minimize adverse 

4 significant economic impacts or maximize beneficial sig5 nificant economic impacts on small entities. 

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

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

8 shall explain what actions, if any, the agency took in re9 sponse to such report. 

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

11 the Administrator of the Office of Information and Regu12 latory Affairs of the Office of Management and Budget, the 

13 head of the agency (or the delegatee of the head of the agen14 cy), or an independent regulatory agency determines that 

15 the proposed rule is likely to result in— 

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

17 $100,000,000 or more; 

18 ‘‘(2) a major increase in costs or prices for con19 sumers, individual industries, Federal, State, or local 

20 governments, tribal organizations, or geographic re21 gions; 

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

23 employment, investment, productivity, innovation, or 

24 on the ability of United States-based enterprises to 


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1 compete with foreign-based enterprises in domestic 

2 and export markets; or 

3 ‘‘(4) a significant economic impact on a substan4 tial number of small entities. 

5 ‘‘(f) Upon application by the agency, the Chief Counsel 

6 for Advocacy of the Small Business Administration may 

7 waive the requirements of subsections (b) through (e) if the 

8 Chief Counsel determines that compliance with the require9 ments of such subsections are impracticable, unnecessary, 

10 or contrary to the public interest.’’. 

11 SEC. 6. PERIODIC REVIEW OF RULES. 

12 Section 610 of title 5, United States Code, is amended 

13 to read as follows: 

14 ‘‘§ 610. Periodic review of rules 

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

16 the Regulatory Flexibility Improvements Act of 2011, each 

17 agency shall publish in the Federal Register and place on 

18 its website a plan for the periodic review of rules issued 

19 by the agency which the head of the agency determines have 

20 a significant economic impact on a substantial number of 

21 small entities. Such determination shall be made without 

22 regard to whether the agency performed an analysis under 

23 section 604. The purpose of the review shall be to determine 

24 whether such rules should be continued without change, or 

25 should be amended or rescinded, consistent with the stated 


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1 objectives of applicable statutes, to minimize any adverse 

2 significant economic impacts or maximize any beneficial 

3 significant economic impacts on a substantial number of 

4 small entities. Such plan may be amended by the agency 

5 at any time by publishing the revision in the Federal Reg6 ister and subsequently placing the amended plan on the 

7 agency’s website. 

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

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

10 Regulatory Flexibility Improvements Act of 2011 within 10 

11 years of the date of publication of the plan in the Federal 

12 Register and for review of rules adopted after the date of 

13 enactment of the Regulatory Flexibility Improvements Act 

14 of 2011 within 10 years after the publication of the final 

15 rule in the Federal Register. If the head of the agency deter16 mines that completion of the review of existing rules is not 

17 feasible by the established date, the head of the agency shall 

18 so certify in a statement published in the Federal Register 

19 and may extend the review for not longer than 2 years after 

20 publication of notice of extension in the Federal Register. 

21 Such certification and notice shall be sent to the Chief 

22 Counsel for Advocacy of the Small Business Administration 

23 and the Congress. 

24 ‘‘(c) Each agency shall annually submit a report re25 garding the results of its review pursuant to such plan to 


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1 the Congress, the Chief Counsel for Advocacy of the Small 

2 Business Administration, and, in the case of agencies other 

3 than independent regulatory agencies (as defined in section 

4 3502(5) of title 44) to the Administrator of the Office of 

5 Information and Regulatory Affairs of the Office of Man6 agement and Budget. Such report shall include the identi7 fication of any rule with respect to which the head of the 

8 agency made a determination described in paragraph (5) 

9 or (6) of subsection (d) and a detailed explanation of the 

10 reasons for such determination. 

11 ‘‘(d) In reviewing a rule pursuant to subsections (a) 

12 through (c), the agency shall amend or rescind the rule to 

13 minimize any adverse significant economic impact on a 

14 substantial number of small entities or disproportionate 

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

16 maximize any beneficial significant economic impact of the 

17 rule on a substantial number of small entities to the greatest 

18 extent possible, consistent with the stated objectives of appli19 cable statutes. In amending or rescinding the rule, the agen20 cy shall consider the following factors: 

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

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

23 agency from small entities concerning the rule. 


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1 ‘‘(3) Comments by the Regulatory Enforcement 

2 Ombudsman and the Chief Counsel for Advocacy of 

3 the Small Business Administration. 

4 ‘‘(4) The complexity of the rule. 

5 ‘‘(5) The extent to which the rule overlaps, dupli6 cates, or conflicts with other Federal rules and, unless 

7 the head of the agency determines it to be infeasible, 

8 State, territorial, and local rules. 

9 ‘‘(6) The contribution of the rule to the cumu10 lative economic impact of all Federal rules on the 

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

12 head of the agency determines that such calculations 

13 cannot be made and reports that determination in the 

14 annual report required under subsection (c). 

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

16 evaluated or the degree to which technology, economic 

17 conditions, or other factors have changed in the area 

18 affected by the rule. 

19 ‘‘(e) The agency shall publish in the Federal Register 

20 and on its website a list of rules to be reviewed pursuant 

21 to such plan. Such publication shall include a brief descrip22 tion of the rule, the reason why the agency determined that 

23 it has a significant economic impact on a substantial num24 ber of small entities (without regard to whether it had pre25 pared a final regulatory flexibility analysis for the rule), 


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1 and request comments from the public, the Chief Counsel 

2 for Advocacy of the Small Business Administration, and 

3 the Regulatory Enforcement Ombudsman concerning the 

4 enforcement of the rule.’’. 

5 SEC. 7. JUDICIAL REVIEW OF COMPLIANCE WITH THE RE6 QUIREMENTS OF THE REGULATORY FLEXI7 BILITY ACT AVAILABLE AFTER PUBLICATION 

8 OF THE FINAL RULE. 

9 (a) IN GENERAL.—Paragraph (1) of section 611(a) of 

10 title 5, United States Code, is amended by striking ‘‘final 

11 agency action’’ and inserting ‘‘such rule’’. 

12 (b) JURISDICTION.—Paragraph (2) of such section is 

13 amended by inserting ‘‘(or which would have such jurisdic14 tion if publication of the final rule constituted final agency 

15 action)’’ after ‘‘provision of law,’’. 

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

17 such section is amended— 

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 which 

21 the date of final agency action is the same date as the 

22 publication of the final rule,’’ after ‘‘except that’’. 

23 (d) INTERVENTION BY CHIEF COUNSEL FOR ADVO24 CACY.—Subsection (b) of section 612 of title 5, United 

25 States Code, is amended by inserting before the first period 


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

2 609, or 610’’. 

3 SEC. 8. JURISDICTION OF COURT OF APPEALS OVER RULES 

4 IMPLEMENTING THE REGULATORY FLEXI5 BILITY ACT. 

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

7 States Code, is amended— 

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

9 end; 

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

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

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

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

15 5.’’. 

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

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

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

19 the end; 

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

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

22 (3) by adding at the end the following new sub23 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 ON

5 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 chap8 ter 7,’’ after ‘‘this chapter,’’. 

9 SEC. 9. CLERICAL AMENDMENTS. 

10 (a) Section 601 of title 5, United States Code, is 

11 amended— 

12 (1) in paragraph (1)— 

13 (A) by striking the semicolon at the end and 

14 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 and 

20 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 and 

2 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) The heading of section 605 of title 5, United States 

14 Code, is amended to read as follows: 

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

17 (c) The table of sections for chapter 6 of title 5, United 

18 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) Chapter 6 of title 5, United States Code, is amend4 ed as follows: 

5 (1) In section 603, by striking subsection (d). 

6 (2) In section 604(a) by striking the second 

7 paragraph (6). 

8 SEC. 1. SHORT TITLE; TABLE OF CONTENTS. 

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

10 the ‘‘Regulatory Flexibility Improvements Act 

11 of 2011’’. 

12 (b) TABLE OF CONTENTS.—The table of con13 tents of 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. 

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. 


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

3 ACT. 

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

5 601 of title 5, United States Code, is amended 

6 to read as follows: 

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

8 meaning given such term in section 

9 551(4) of this title, except that such term 

10 does not include a rule of particular (and 

11 not general) applicability relating to 

12 rates, wages, corporate or financial struc13 tures or reorganizations thereof, prices, 

14 facilities, appliances, services, or allow15 ances therefor or to valuations, costs or 

16 accounting, or practices relating to such 

17 rates, wages, structures, prices, appli18 ances, services, or allowances.’’. 

19 (b) INCLUSION OF RULES WITH INDIRECT EF20 FECTS.—Section 601 of title 5, United States 

21 Code, is amended by adding at the end the fol22 lowing new paragraph: 

23 ‘‘(9) ECONOMIC IMPACT.—The term ‘eco24 nomic impact’ means, with respect to a 

25 proposed or final rule— 


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1 ‘‘(A) any direct economic effect on 

2 small entities of such rule; and 

3 ‘‘(B) any indirect economic effect 

4 on small entities which is reasonably 

5 foreseeable and results from such 

6 rule (without regard to whether small 

7 entities will be directly regulated by 

8 the rule).’’. 

9 (c) INCLUSION OF RULES WITH BENEFICIAL

10 EFFECTS.— 

11 (1) INITIAL REGULATORY FLEXIBILITY

12 ANALYSIS.—Subsection (c) of section 603 of 

13 title 5, United States Code, is amended by 

14 striking the first sentence and inserting 

15 ‘‘Each initial regulatory flexibility anal16 ysis shall also contain a detailed descrip17 tion of alternatives to the proposed rule 

18 which minimize any adverse significant 

19 economic impact or maximize any bene20 ficial significant economic impact on 

21 small entities.’’. 

22 (2) FINAL REGULATORY FLEXIBILITY

23 ANALYSIS.—The first paragraph (6) of sec24 tion 604(a) of title 5, United States Code, 

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1 nificant economic impact’’ and inserting 

2 ‘‘minimize the adverse significant eco3 nomic impact or maximize the beneficial 

4 significant economic impact’’. 

5 (d) INCLUSION OF RULES AFFECTING TRIBAL

6 ORGANIZATIONS.—Paragraph (5) of section 601 

7 of title 5, United States Code, is amended by 

8 inserting ‘‘and tribal organizations (as de9 fined in section 4(l) of the Indian Self-Deter10 mination and Education Assistance Act (25 

11 U.S.C. 450b(l))),’’ after ‘‘special districts,’’. 

12 (e) INCLUSION OF LAND MANAGEMENT PLANS

13 AND FORMAL RULE MAKING.— 

14 (1) INITIAL REGULATORY FLEXIBILITY

15 ANALYSIS.—Subsection (a) of section 603 of 

16 title 5, United States Code, is amended in 

17 the first sentence— 

18 (A) by striking ‘‘or’’ after ‘‘pro19 posed rule,’’; and 

20 (B) by inserting ‘‘or publishes a 

21 revision or amendment to a land 

22 management plan,’’ after ‘‘United 

23 States,’’. 

24 (2) FINAL REGULATORY FLEXIBILITY

25 ANALYSIS.—Subsection (a) of section 604 of 


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1 title 5, United States Code, is amended in 

2 the first sentence— 

3 (A) by striking ‘‘or’’ after ‘‘pro4 posed rulemaking,’’; and 

5 (B) by inserting ‘‘or adopts a revi6 sion or amendment to a land manage7 ment plan,’’ after ‘‘section 603(a),’’. 

8 (3) LAND MANAGEMENT PLAN DEFINED.— 

9 Section 601 of title 5, United States Code, 

10 is amended by adding at the end the fol11 lowing new paragraph: 

12 ‘‘(10) LAND MANAGEMENT PLAN.— 

13 ‘‘(A) IN GENERAL.—The term ‘land 

14 management plan’ means— 

15 ‘‘(i) any plan developed by the 

16 Secretary of Agriculture under 

17 section 6 of the Forest and Range18 land Renewable Resources Plan19 ning Act of 1974 (16 U.S.C. 1604); 

20 and 

21 ‘‘(ii) any plan developed by 

22 the Secretary of Interior under 

23 section 202 of the Federal Land 

24 Policy and Management Act of 

25 1976 (43 U.S.C. 1712). 


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1 ‘‘(B) REVISION.—The term ‘revi2 sion’ means any change to a land 

3 management plan which— 

4 ‘‘(i) in the case of a plan de5 scribed in subparagraph (A)(i), is 

6 made under section 6(f)(5) of the 

7 Forest and Rangeland Renewable 

8 Resources Planning Act of 1974 

9 (16 U.S.C. 1604(f)(5)); or 

10 ‘‘(ii) in the case of a plan de11 scribed in subparagraph (A)(ii), is 

12 made under section 1610.5–6 of 

13 title 43, Code of Federal Regula14 tions (or any successor regula15 tion). 

16 ‘‘(C) AMENDMENT.—The term 

17 ‘amendment’ means any change to a 

18 land management plan which— 

19 ‘‘(i) in the case of a plan de20 scribed in subparagraph (A)(i), is 

21 made under section 6(f)(4) of the 

22 Forest and Rangeland Renewable 

23 Resources Planning Act of 1974 

24 (16 U.S.C. 1604(f)(4)) and with re25 spect to which the Secretary of 


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1 Agriculture prepares a statement 

2 described in section 102(2)(C) of 

3 the National Environmental Pol4 icy Act of 1969 (42 U.S.C. 

5 4332(2)(C)); or 

6 ‘‘(ii) in the case of a plan de7 scribed in subparagraph (A)(ii), is 

8 made under section 1610.5–5 of 

9 title 43, Code of Federal Regula10 tions (or any successor regula11 tion) and with respect to which 

12 the Secretary of the Interior pre13 pares a statement described in 

14 section 102(2)(C) of the National 

15 Environmental Policy Act of 1969 

16 (42 U.S.C. 4332(2)(C)).’’. 

17 (f) INCLUSION OF CERTAIN INTERPRETIVE

18 RULES INVOLVING THE INTERNAL REVENUE

19 LAWS.— 

20 (1) IN GENERAL.—Subsection (a) of sec21 tion 603 of title 5, United States Code, is 

22 amended by striking the period at the 

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1 er such requirement is imposed by stat2 ute or regulation.’’. 

3 (2) COLLECTION OF INFORMATION.— 

4 Paragraph (7) of section 601 of title 5, 

5 United States Code, is amended to read 

6 as follows: 

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

8 term ‘collection of information’ has the 

9 meaning given such term in section 

10 3502(3) of title 44.’’. 

11 (3) RECORDKEEPING REQUIREMENT.— 

12 Paragraph (8) of section 601 of title 5, 

13 United States Code, is amended to read 

14 as follows: 

15 ‘‘(8) RECORDKEEPING REQUIREMENT.— 

16 The term ‘recordkeeping requirement’ 

17 has the meaning given such term in sec18 tion 3502(13) of title 44.’’. 

19 (g) DEFINITION OF SMALL ORGANIZATION.— 

20 Paragraph (4) of section 601 of title 5, United 

21 States Code, is amended to read as follows: 

22 ‘‘(4) SMALL ORGANIZATION.— 

23 ‘‘(A) IN GENERAL.—The term ‘small 

24 organization’ means any not-for-prof25 it enterprise which, as of the issuance 


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1 of the notice of proposed rule2 making— 

3 ‘‘(i) in the case of an enter4 prise which is described by a clas5 sification code of the North Amer6 ican Industrial Classification Sys7 tem, does not exceed the size 

8 standard established by the Ad9 ministrator of the Small Business 

10 Administration pursuant to sec11 tion 3 of the Small Business Act 

12 (15 U.S.C. 632) for small business 

13 concerns described by such classi14 fication code; and 

15 ‘‘(ii) in the case of any other 

16 enterprise, has a net worth that 

17 does not exceed $7,000,000 and 

18 has not more than 500 employees. 

19 ‘‘(B) LOCAL LABOR ORGANIZA20 TIONS.—In the case of any local labor 

21 organization, subparagraph (A) shall 

22 be applied without regard to any na23 tional or international organization 

24 of which such local labor organiza25 tion is a part. 


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1 ‘‘(C) AGENCY DEFINITIONS.—Sub2 paragraphs (A) and (B) shall not 

3 apply to the extent that an agency, 

4 after consultation with the Office of 

5 Advocacy of the Small Business Ad6 ministration and after opportunity 

7 for public comment, establishes one 

8 or more definitions for such term 

9 which are appropriate to the activi10 ties of the agency and publishes such 

11 definitions in the Federal Register.’’. 

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

13 Section 602 of title 5, United States Code, 

14 is amended— 

15 (1) in subsection (a)— 

16 (A) in paragraph (2), by striking ‘‘, 

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

18 (B) by redesignating paragraph 

19 (3) as paragraph (4); and 

20 (C) by inserting after paragraph 

21 (2) the following: 

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

23 of the North American Industrial Classi24 fication System that is primarily affected 

25 by any rule which the agency expects to 


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1 propose or promulgate which is likely to 

2 have a significant economic impact on a 

3 substantial number of small entities; 

4 and’’; and 

5 (2) in subsection (c), to read as fol6 lows: 

7 ‘‘(c) Each agency shall prominently dis8 play a plain language summary of the infor9 mation contained in the regulatory flexibility 

10 agenda published under subsection (a) on its 

11 website within 3 days of its publication in the 

12 Federal Register. The Office of Advocacy of 

13 the Small Business Administration shall com14 pile and prominently display a plain language 

15 summary of the regulatory agendas ref16 erenced in subsection (a) for each agency on 

17 its website within 3 days of their publication 

18 in the Federal Register.’’. 

19 SEC. 4. REQUIREMENTS PROVIDING FOR MORE DETAILED 

20 ANALYSES. 

21 (a) INITIAL REGULATORY FLEXIBILITY ANAL22 YSIS.—Subsection (b) of section 603 of title 5, 

23 United States Code, is amended to read as fol24 lows: 


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1 ‘‘(b) Each initial regulatory flexibility 

2 analysis required under this section shall con3 tain a detailed statement— 

4 ‘‘(1) describing the reasons why ac5 tion by the agency is being considered; 

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

7 legal basis for, the proposed rule; 

8 ‘‘(3) estimating the number and type 

9 of small entities to which the proposed 

10 rule will apply; 

11 ‘‘(4) describing the projected report12 ing, recordkeeping, and other compliance 

13 requirements of the proposed rule, in14 cluding an estimate of the classes of 

15 small entities which will be subject to the 

16 requirement and the type of professional 

17 skills necessary for preparation of the re18 port and record; 

19 ‘‘(5) describing all relevant Federal 

20 rules which may duplicate, overlap, or 

21 conflict with the proposed rule, or the 

22 reasons why such a description could not 

23 be provided; 

24 ‘‘(6) estimating the additional cumu25 lative economic impact of the proposed 


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1 rule on small entities beyond that already 

2 imposed on the class of small entities by 

3 the agency or why such an estimate is 

4 not available; and 

5 ‘‘(7) describing any disproportionate 

6 economic impact on small entities or a 

7 specific class of small entities.’’. 

8 (b) FINAL REGULATORY FLEXIBILITY ANAL9 YSIS.— 

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

11 5, United States Code, is amended— 

12 (A) in paragraph (4), by striking 

13 ‘‘an explanation’’ and inserting ‘‘a de14 tailed explanation’’; 

15 (B) in each of paragraphs (4), (5), 

16 and the first paragraph (6), by insert17 ing ‘‘detailed’’ before ‘‘description’’; 

18 and 

19 (C) by adding at the end the fol20 lowing: 

21 ‘‘(7) describing any disproportionate 

22 economic impact on small entities or a 

23 specific class of small entities.’’. 

24 (2) INCLUSION OF RESPONSE TO COM25 MENTS ON CERTIFICATION OF PROPOSED


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1 RULE.—Paragraph (2) of section 604(a) of 

2 title 5, United States Code, is amended by 

3 inserting ‘‘(or certification of the pro4 posed rule under section 605(b))’’ after 

5 ‘‘initial regulatory flexibility analysis’’. 

6 (3) PUBLICATION OF ANALYSIS ON

7 WEBSITE.—Subsection (b) of section 604 of 

8 title 5, United States Code, is amended to 

9 read as follows: 

10 ‘‘(b) The agency shall make copies of the 

11 final regulatory flexibility analysis available 

12 to the public, including placement of the en13 tire analysis on the agency’s website, and 

14 shall publish in the Federal Register the final 

15 regulatory flexibility analysis, or a summary 

16 thereof which includes the telephone number, 

17 mailing address, and link to the website 

18 where the complete analysis may be ob19 tained.’’. 

20 (c) CROSS-REFERENCES TO OTHER ANAL21 YSES.—Subsection (a) of section 605 of title 5, 

22 United States Code, is amended to read as fol23 lows: 

24 ‘‘(a) A Federal agency shall be treated as 

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1 tent of an agenda or regulatory flexibility 

2 analysis under section 602, 603, or 604, if such 

3 agency provides in such agenda or analysis a 

4 cross-reference to the specific portion of an5 other agenda or analysis which is required by 

6 any other law and which satisfies such re7 quirement.’’. 

8 (d) CERTIFICATIONS.—Subsection (b) of sec9 tion 605 of title 5, United States Code, is 

10 amended— 

11 (1) by inserting ‘‘detailed’’ before 

12 ‘‘statement’’ the first place it appears; and 

13 (2) by inserting ‘‘and legal’’ after ‘‘fac14 tual’’. 

15 (e) QUANTIFICATION REQUIREMENTS.—Sec16 tion 607 of title 5, United States Code, is 

17 amended to read as follows: 

18 ‘‘§ 607. Quantification requirements 

19 ‘‘In complying with sections 603 and 604, 

20 an agency shall provide— 

21 ‘‘(1) a quantifiable or numerical de22 scription of the effects of the proposed or 

23 final rule and alternatives to the pro24 posed or final rule; or 


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1 ‘‘(2) a more general descriptive state2 ment and a detailed statement explaining 

3 why quantification is not practicable or 

4 reliable.’’. 

5 SEC. 5. REPEAL OF WAIVER AND DELAY AUTHORITY; ADDI6 TIONAL POWERS OF THE CHIEF COUNSEL 

7 FOR ADVOCACY. 

8 (a) IN GENERAL.—Section 608 is amended 

9 to read as follows: 

10 ‘‘§ 608. Additional powers of Chief Counsel for Advo11 cacy 

12 ‘‘(a)(1) Not later than 270 days after the 

13 date of the enactment of the Regulatory Flexi14 bility Improvements Act of 2011, the Chief 

15 Counsel for Advocacy of the Small Business 

16 Administration shall, after opportunity for 

17 notice and comment under section 553, issue 

18 rules governing agency compliance with this 

19 chapter. The Chief Counsel may modify or 

20 amend such rules after notice and comment 

21 under section 553. This chapter (other than 

22 this subsection) shall not apply with respect 

23 to the issuance, modification, and amendment 

24 of rules under this paragraph. 


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1 ‘‘(2) An agency shall not issue rules which 

2 supplement the rules issued under subsection 

3 (a) unless such agency has first consulted 

4 with the Chief Counsel for Advocacy to en5 sure that such supplemental rules comply 

6 with this chapter and the rules issued under 

7 paragraph (1). 

8 ‘‘(b) Notwithstanding any other law, the 

9 Chief Counsel for Advocacy of the Small Busi10 ness Administration may intervene in any 

11 agency adjudication (unless such agency is 

12 authorized to impose a fine or penalty under 

13 such adjudication), and may inform the agen14 cy of the impact that any decision on the 

15 record may have on small entities. The Chief 

16 Counsel shall not initiate an appeal with re17 spect to any adjudication in which the Chief 

18 Counsel intervenes under this subsection. 

19 ‘‘(c) The Chief Counsel for Advocacy may 

20 file comments in response to any agency no21 tice requesting comment, regardless of wheth22 er the agency is required to file a general no23 tice of proposed rulemaking under section 

24 553.’’. 

25 (b) CONFORMING AMENDMENTS.— 


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1 (1) Section 611(a)(1) of such title is 

2 amended by striking ‘‘608(b),’’. 

3 (2) Section 611(a)(2) of such title is 

4 amended by striking ‘‘608(b),’’. 

5 (3) Section 611(a)(3) of such title is 

6 amended— 

7 (A) by striking subparagraph (B); 

8 and 

9 (B) by striking ‘‘(3)(A) A small en10 tity’’ and inserting the following: 

11 ‘‘(3) A small entity’’. 

12 SEC. 6. PROCEDURES FOR GATHERING COMMENTS. 

13 Section 609 of title 5, United States Code, 

14 is amended by striking subsection (b) and all 

15 that follows through the end of the section 

16 and inserting the following: 

17 ‘‘(b)(1) Prior to publication of any pro18 posed rule described in subsection (e), an 

19 agency making such rule shall notify the 

20 Chief Counsel for Advocacy of the Small Busi21 ness Administration and provide the Chief 

22 Counsel with— 

23 ‘‘(A) all materials prepared or utilized 

24 by the agency in making the proposed 


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1 rule, including the draft of the proposed 

2 rule; and 

3 ‘‘(B) information on the potential ad4 verse and beneficial economic impacts of 

5 the proposed rule on small entities and 

6 the type of small entities that might be 

7 affected. 

8 ‘‘(2) An agency shall not be required under 

9 paragraph (1) to provide the exact language 

10 of any draft if the rule— 

11 ‘‘(A) relates to the internal revenue 

12 laws of the United States; or 

13 ‘‘(B) is proposed by an independent 

14 regulatory agency (as defined in section 

15 3502(5) of title 44). 

16 ‘‘(c) Not later than 15 days after the re17 ceipt of such materials and information under 

18 subsection (b), the Chief Counsel for Advo19 cacy of the Small Business Administration 

20 shall— 

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1 tial economic impacts of the proposed 

2 rule and the compliance of the agency 

3 with section 603; and 

4 ‘‘(2) convene a review panel con5 sisting of an employee from the Office of 

6 Advocacy of the Small Business Adminis7 tration, an employee from the agency 

8 making the rule, and in the case of an 

9 agency other than an independent regu10 latory agency (as defined in section 

11 3502(5) of title 44), an employee from the 

12 Office of Information and Regulatory Af13 fairs of the Office of Management and 

14 Budget to review the materials and infor15 mation provided to the Chief Counsel 

16 under subsection (b). 

17 ‘‘(d)(1) Not later than 60 days after the re18 view panel described in subsection (c)(2) is 

19 convened, the Chief Counsel for Advocacy of 

20 the Small Business Administration shall, after 

21 consultation with the members of such panel, 

22 submit a report to the agency and, in the case 

23 of an agency other than an independent regu24 latory agency (as defined in section 3502(5) of 

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1 latory Affairs of the Office of Management 

2 and Budget. 

3 ‘‘(2) Such report shall include an assess4 ment of the economic impact of the proposed 

5 rule on small entities, including an assess6 ment of the proposed rule’s impact on the cost 

7 that small entities pay for energy, and a dis8 cussion of any alternatives that will minimize 

9 adverse significant economic impacts or 

10 maximize beneficial significant economic im11 pacts on small entities. 

12 ‘‘(3) Such report shall become part of the 

13 rulemaking record. In the publication of the 

14 proposed rule, the agency shall explain what 

15 actions, if any, the agency took in response to 

16 such report. 

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

18 subsection if the Administrator of the Office 

19 of Information and Regulatory Affairs of the 

20 Office of Management and Budget, the head of 

21 the agency (or the delegatee of the head of the 

22 agency), or an independent regulatory agency 

23 determines that the proposed rule is likely to 

24 result in— 


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

2 of $100,000,000 or more; 

3 ‘‘(2) a major increase in costs or 

4 prices for consumers, individual indus5 tries, Federal, State, or local govern6 ments, tribal organizations, or geo7 graphic regions; 

8 ‘‘(3) significant adverse effects on 

9 competition, employment, investment, 

10 productivity, innovation, or on the ability 

11 of United States-based enterprises to 

12 compete with foreign-based enterprises 

13 in domestic and export markets; or 

14 ‘‘(4) a significant economic impact on 

15 a substantial number of small entities. 

16 ‘‘(f) Upon application by the agency, the 

17 Chief Counsel for Advocacy of the Small Busi18 ness Administration may waive the require19 ments of subsections (b) through (e) if the 

20 Chief Counsel determines that compliance 

21 with the requirements of such subsections are 

22 impracticable, unnecessary, or contrary to 

23 the public interest.’’. 


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1 SEC. 7. PERIODIC REVIEW OF RULES. 

2 Section 610 of title 5, United States Code, 

3 is amended to read as follows: 

4 ‘‘§ 610. Periodic review of rules 

5 ‘‘(a) Not later than 180 days after the en6 actment of the Regulatory Flexibility Im7 provements Act of 2011, each agency shall 

8 publish in the Federal Register and place on 

9 its website a plan for the periodic review of 

10 rules issued by the agency which the head of 

11 the agency determines have a significant eco12 nomic impact on a substantial number of 

13 small entities. Such determination shall be 

14 made without regard to whether the agency 

15 performed an analysis under section 604. The 

16 purpose of the review shall be to determine 

17 whether such rules should be continued with18 out change, or should be amended or re19 scinded, consistent with the stated objectives 

20 of applicable statutes, to minimize any ad21 verse significant economic impacts or maxi22 mize any beneficial significant economic im23 pacts on a substantial number of small enti24 ties. Such plan may be amended by the agency 

25 at any time by publishing the revision in the 


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1 Federal Register and subsequently placing 

2 the amended plan on the agency’s website. 

3 ‘‘(b) The plan shall provide for the review 

4 of all such agency rules existing on the date 

5 of the enactment of the Regulatory Flexibility 

6 Improvements Act of 2011 within 10 years of 

7 the date of publication of the plan in the Fed8 eral Register and for review of rules adopted 

9 after the date of enactment of the Regulatory 

10 Flexibility Improvements Act of 2011 within 

11 10 years after the publication of the final rule 

12 in the Federal Register. If the head of the 

13 agency determines that completion of the re14 view of existing rules is not feasible by the es15 tablished date, the head of the agency shall so 

16 certify in a statement published in the Fed17 eral Register and may extend the review for 

18 not longer than 2 years after publication of 

19 notice of extension in the Federal Register. 

20 Such certification and notice shall be sent to 

21 the Chief Counsel for Advocacy of the Small 

22 Business Administration and the Congress. 

23 ‘‘(c) The plan shall include a section that 

24 details how an agency will conduct outreach 

25 to and meaningfully include small businesses 


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1 for the purposes of carrying out this section. 

2 The agency shall include in this section a plan 

3 for how the agency will contact small busi4 nesses and gather their input on existing 

5 agency rules. 

6 ‘‘(d) Each agency shall annually submit a 

7 report regarding the results of its review pur8 suant to such plan to the Congress, the Chief 

9 Counsel for Advocacy of the Small Business 

10 Administration, and, in the case of agencies 

11 other than independent regulatory agencies 

12 (as defined in section 3502(5) of title 44) to the 

13 Administrator of the Office of Information 

14 and Regulatory Affairs of the Office of Man15 agement and Budget. Such report shall in16 clude the identification of any rule with re17 spect to which the head of the agency made 

18 a determination described in paragraph (5) or 

19 (6) of subsection (e) and a detailed expla20 nation of the reasons for such determination. 

21 ‘‘(e) In reviewing a rule pursuant to sub22 sections (a) through (d), the agency shall 

23 amend or rescind the rule to minimize any ad24 verse significant economic impact on a sub25 stantial number of small entities or disproporVerDate Mar 15 2010 22:06 Nov 16, 2011 Jkt 019200 PO 00000 Frm 00051 Fmt 6652 Sfmt 6202 E:\BILLS\H527.RH H527

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1 tionate economic impact on a specific class of 

2 small entities, or maximize any beneficial sig3 nificant economic impact of the rule on a sub4 stantial number of small entities to the great5 est extent possible, consistent with the stated 

6 objectives of applicable statutes. In amending 

7 or rescinding the rule, the agency shall con8 sider the following factors: 

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

10 ‘‘(2) The nature of complaints re11 ceived by the agency from small entities 

12 concerning the rule. 

13 ‘‘(3) Comments by the Regulatory En14 forcement Ombudsman and the Chief 

15 Counsel for Advocacy of the Small Busi16 ness Administration. 

17 ‘‘(4) The complexity of the rule. 

18 ‘‘(5) The extent to which the rule 

19 overlaps, duplicates, or conflicts with 

20 other Federal rules and, unless the head 

21 of the agency determines it to be infeasi22 ble, State and local rules. 

23 ‘‘(6) The contribution of the rule to 

24 the cumulative economic impact of all 

25 Federal rules on the class of small entiVerDate Mar 15 2010 22:06 Nov 16, 2011 Jkt 019200 PO 00000 Frm 00052 Fmt 6652 Sfmt 6202 E:\BILLS\H527.RH H527

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1 ties affected by the rule, unless the head 

2 of the agency determines that such cal3 culations cannot be made and reports 

4 that determination in the annual report 

5 required under subsection (d). 

6 ‘‘(7) The length of time since the rule 

7 has been evaluated or the degree to 

8 which technology, economic conditions, 

9 or other factors have changed in the area 

10 affected by the rule. 

11 ‘‘(f) The agency shall publish in the Fed12 eral Register and on its website a list of rules 

13 to be reviewed pursuant to such plan. Such 

14 publication shall include a brief description 

15 of the rule, the reason why the agency deter16 mined that it has a significant economic im17 pact on a substantial number of small entities 

18 (without regard to whether it had prepared a 

19 final regulatory flexibility analysis for the 

20 rule), and request comments from the public, 

21 the Chief Counsel for Advocacy of the Small 

22 Business Administration, and the Regulatory 

23 Enforcement Ombudsman concerning the en24 forcement of the rule.’’. 


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1 SEC. 8. JUDICIAL REVIEW OF COMPLIANCE WITH THE RE2 QUIREMENTS OF THE REGULATORY FLEXI3 BILITY ACT AVAILABLE AFTER PUBLICATION 

4 OF THE FINAL RULE. 

5 (a) IN GENERAL.—Paragraph (1) of section 

6 611(a) of title 5, United States Code, is amend7 ed by striking ‘‘final agency action’’ and in8 serting ‘‘such rule’’. 

9 (b) JURISDICTION.—Paragraph (2) of such 

10 section is amended by inserting ‘‘(or which 

11 would have such jurisdiction if publication of 

12 the final rule constituted final agency action)’’ 

13 after ‘‘provision of law,’’. 

14 (c) TIME FOR BRINGING ACTION.—Para15 graph (3) of such section is amended— 

16 (1) by striking ‘‘final agency action’’ 

17 and inserting ‘‘publication of the final 

18 rule’’; and 

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

20 for which the date of final agency action 

21 is the same date as the publication of the 

22 final rule,’’ after ‘‘except that’’. 

23 (d) INTERVENTION BY CHIEF COUNSEL FOR

24 ADVOCACY.—Subsection (b) of section 612 of 

25 title 5, United States Code, is amended by in26 serting before the first period ‘‘or agency comVerDate Mar 15 2010 22:06 Nov 16, 2011 Jkt 019200 PO 00000 Frm 00054 Fmt 6652 Sfmt 6202 E:\BILLS\H527.RH H527

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

2 or 610’’. 

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

4 IMPLEMENTING THE REGULATORY FLEXI5 BILITY ACT. 

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

7 United States Code, is amended— 

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

9 at the end; 

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

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

12 and 

13 (3) by inserting after paragraph (7) 

14 the following new paragraph: 

15 ‘‘(8) all final rules under section 

16 608(a) of title 5.’’. 

17 (b) CONFORMING AMENDMENTS.—Paragraph 

18 (3) of section 2341 of title 28, United States 

19 Code, is amended— 

20 (1) in subparagraph (D), by striking 

21 ‘‘and’’ at the end; 

22 (2) in subparagraph (E), by striking 

23 the period at the end and inserting ‘‘; 

24 and’’; and 


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1 (3) by adding at the end the following 

2 new subparagraph: 

3 ‘‘(F) the Office of Advocacy of the 

4 Small Business Administration, when 

5 the final rule is under section 608(a) 

6 of title 5.’’. 

7 (c) AUTHORIZATION TO INTERVENE AND COM8 MENT ON AGENCY COMPLIANCE WITH ADMINIS9 TRATIVE PROCEDURE.—Subsection (b) of sec10 tion 612 of title 5, United States Code, is 

11 amended by inserting ‘‘chapter 5, and chapter 

12 7,’’ after ‘‘this chapter,’’. 

13 SEC. 10. CLERICAL AMENDMENTS. 

14 (a) Section 601 of title 5, United States 

15 Code, is amended— 

16 (1) in paragraph (1)— 

17 (A) by striking the semicolon at 

18 the end and inserting a period; and 

19 (B) by striking ‘‘(1) the term’’ and 

20 inserting the following: 

21 ‘‘(1) AGENCY.—The term’’; 

22 (2) in paragraph (3)— 

23 (A) by striking the semicolon at 

24 the end and inserting a period; and 


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1 (B) by striking ‘‘(3) the term’’ and 

2 inserting the following: 

3 ‘‘(3) SMALL BUSINESS.—The term’’; 

4 (3) in paragraph (5)— 

5 (A) by striking the semicolon at 

6 the end and inserting a period; and 

7 (B) by striking ‘‘(5) the term’’ and 

8 inserting the following: 

9 ‘‘(5) SMALL GOVERNMENTAL JURISDIC10 TION.—The term’’; and 

11 (4) in paragraph (6)— 

12 (A) by striking ‘‘; and’’ and insert13 ing a period; and 

14 (B) by striking ‘‘(6) the term’’ and 

15 inserting the following: 

16 ‘‘(6) SMALL ENTITY.—The term’’. 

17 (b) The heading of section 605 of title 5, 

18 United States Code, is amended to read as fol19 lows: 

20 ‘‘§ 605. Incorporations by reference and certifi21 cations’’. 

22 (c) The table of sections for chapter 6 of 

23 title 5, United States Code, is amended— 


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1 (1) by striking the item relating to 

2 section 605 and inserting the following 

3 new item: 

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

4 (2) by striking the item relating to 

5 section 607 and inserting the following 

6 new item: 

‘‘607. Quantification requirements.’’; and 

7 (3) by striking the item relating to 

8 section 608 and inserting the following: 

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

9 (d) Chapter 6 of title 5, United States 

10 Code, is amended as follows: 

11 (1) In section 603, by striking sub12 section (d). 

13 (2) In section 604(a) by striking the 

14 second paragraph (6). 

15 SEC. 11. AGENCY PREPARATION OF GUIDES. 

16 Section 212(a)(5) the Small Business Regu17 latory Enforcement Fairness Act of 1996 (5 

18 U.S.C. 601 note) is amended to read as follows: 

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

20 The agency shall, in its sole discretion, 

21 taking into account the subject matter of 

22 the rule and the language of relevant 

23 statutes, ensure that the guide is written 


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1 using sufficiently plain language likely to 

2 be understood by affected small entities. 

3 Agencies may prepare separate guides 

4 covering groups or classes of similarly af5 fected small entities and may cooperate 

6 with associations of small entities to dis7 tribute such guides. In developing guides, 

8 agencies shall solicit input from affected 

9 small entities or associations of affected 

10 small entities. An agency may prepare 

11 guides and apply this section with re12 spect to a rule or a group of related 

13 rules.’’. 


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Union Calendar No. 191 

112TH CONGRESS 

1ST SESSION H. R. 527 

[Report No. 112–289, Parts I and II] 

A BILL 

To amend chapter 6 of title 5, United States Code 

purposes. pacts on small entities of rules, and for other Act), to ensure complete analysis of potential im-(commonly known as the Regulatory Flexibility 

NOVEMBER 16, 2011 

Reported from the Committee on the Judiciary with an 

amendment 

NOVEMBER 16, 2011 

Reported from the Committee on Small Business with an 

amendment 


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