IIB 

112TH CONGRESS 

1ST SESSION H. R. 527 

IN THE SENATE OF THE UNITED STATES 

DECEMBER 5, 2011 

Received; read twice and referred to the Committee on Homeland Security and 

Governmental Affairs 

AN ACT 

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, 

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1 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

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

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

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

5 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. 

6 SEC. 2. CLARIFICATION AND EXPANSION OF RULES COV7 ERED BY THE REGULATORY FLEXIBILITY 

8 ACT. 

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

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

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

12 given such term in section 551(4) of this title, ex13 cept that such term does not include a rule of par14 ticular (and not general) applicability relating to 

15 rates, wages, corporate or financial structures or re16 organizations thereof, prices, facilities, appliances, 

17 services, or allowances therefor or to valuations, 

18 costs or accounting, or practices relating to such 

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1 rates, wages, structures, prices, appliances, services, 

2 or allowances.’’. 

3 (b) INCLUSION OF RULES WITH INDIRECT EF4 FECTS.—Section 601 of title 5, United States Code, is 

5 amended by adding at the end the following new para6 graph: 

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

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

9 rule— 

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

11 entities of such rule; and 

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

13 entities which is reasonably foreseeable and re14 sults from such rule (without regard to whether 

15 small entities will be directly regulated by the 

16 rule).’’. 

17 (c) INCLUSION OF RULES WITH BENEFICIAL EF18 FECTS.— 

19 (1) INITIAL REGULATORY FLEXIBILITY ANAL20 YSIS.—Subsection (c) of section 603 of title 5, 

21 United States Code, is amended by striking the first 

22 sentence and inserting ‘‘Each initial regulatory flexi23 bility analysis shall also contain a detailed descrip24 tion of alternatives to the proposed rule which mini25 mize any adverse significant economic impact or 

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1 maximize any beneficial significant economic impact 

2 on small entities.’’. 

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 ORGA11 NIZATIONS.—Paragraph (5) of section 601 of title 5, 

12 United States Code, is amended by inserting ‘‘and tribal 

13 organizations (as defined in section 4(l) of the Indian Self14 Determination and Education Assistance Act (25 U.S.C. 

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

16 (e) INCLUSION OF LAND MANAGEMENT PLANS AND

17 FORMAL RULE MAKING.— 

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

20 United States Code, is amended in the first sen21 tence— 

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

23 rule,’’; and 

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

2 amendment to a land management plan,’’ after 

3 ‘‘United States,’’. 

4 (2) FINAL REGULATORY FLEXIBILITY ANAL5 YSIS.—Subsection (a) of section 604 of title 5, 

6 United States Code, is amended in the first sen7 tence— 

8 (A) by striking ‘‘or’’ after ‘‘proposed rule9 making,’’; and 

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

11 amendment to a land management plan,’’ after 

12 ‘‘section 603(a),’’. 

13 (3) LAND MANAGEMENT PLAN DEFINED.—Sec14 tion 601 of title 5, United States Code, is amended 

15 by adding at the end the following new paragraph: 

16 ‘‘(10) LAND MANAGEMENT PLAN.— 

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

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

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

23 1604); and 

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

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1 Federal Land Policy and Management Act 

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

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

4 means any change to a land management plan 

5 which— 

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

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

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

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

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

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

14 Regulations (or any successor regulation). 

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

17 plan which— 

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

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

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

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

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

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

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

2 4332(2)(C)); or 

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

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

6 Regulations (or any successor regulation) 

7 and with respect to which the Secretary of 

8 the Interior prepares a statement described 

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

11 4332(2)(C)).’’. 

12 (f) INCLUSION OF CERTAIN INTERPRETIVE RULES

13 INVOLVING THE INTERNAL REVENUE LAWS.— 

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

15 603 of title 5, United States Code, is amended by 

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

17 recordkeeping requirement, and without regard to 

18 whether such requirement is imposed by statute or 

19 regulation.’’. 

20 (2) COLLECTION OF INFORMATION.—Paragraph 

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

22 amended to read as follows: 

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

24 ‘collection of information’ has the meaning given 

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

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1 (3) RECORDKEEPING REQUIREMENT.—Para2 graph (8) of section 601 of title 5, United States 

3 Code, is amended to read as follows: 

4 ‘‘(8) RECORDKEEPING REQUIREMENT.—The 

5 term ‘recordkeeping requirement’ has the meaning 

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

7 (g) DEFINITION OF SMALL ORGANIZATION.—Para8 graph (4) of section 601 of title 5, United States Code, 

9 is amended to read as follows: 

10 ‘‘(4) SMALL ORGANIZATION.— 

11 ‘‘(A) IN GENERAL.—The term ‘small orga12 nization’ means any not-for-profit enterprise 

13 which, as of the issuance of the notice of pro14 posed rulemaking— 

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

16 is described by a classification code of the 

17 North American Industrial Classification 

18 System, does not exceed the size standard 

19 established by the Administrator of the 

20 Small Business Administration pursuant to 

21 section 3 of the Small Business Act (15 

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

23 described by such classification code; and 

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

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

2 employees. 

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

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

6 to any national or international organization of 

7 which such local labor organization is a part. 

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

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

13 comment, establishes one or more definitions 

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

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

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

20 (1) in subsection (a)— 

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

22 at the end and inserting ‘‘;’’; 

23 (B) by redesignating paragraph (3) as 

24 paragraph (4); and 

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

2 following: 

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

4 North American Industrial Classification System 

5 that is primarily affected by any rule which the 

6 agency expects to propose or promulgate which is 

7 likely to have a significant economic impact on a 

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

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

10 ‘‘(c) Each agency shall prominently display a plain 

11 language summary of the information contained in the 

12 regulatory flexibility agenda published under subsection 

13 (a) on its website within 3 days of its publication in the 

14 Federal Register. The Office of Advocacy of the Small 

15 Business Administration shall compile and prominently 

16 display a plain language summary of the regulatory agen17 das referenced in subsection (a) for each agency on its 

18 website within 3 days of their publication in the Federal 

19 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, or the cumulative 

22 impact of any other rule stemming from the imple23 mentation of the Free Trade Agreements, on small 

24 entities beyond that already imposed on the class of 

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1 small entities by the agency or why such an estimate 

2 is not available; and 

3 ‘‘(7) describing any disproportionate economic 

4 impact on small entities or a specific class of small 

5 entities.’’. 

6 (b) FINAL REGULATORY FLEXIBILITY ANALYSIS.— 

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

8 United States Code, is amended— 

9 (A) in paragraph (4), by striking ‘‘an ex10 planation’’ and inserting ‘‘a detailed expla11 nation’’; 

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

13 first paragraph (6), by inserting ‘‘detailed’’ be14 fore ‘‘description’’; and 

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

16 ‘‘(7) describing any disproportionate economic 

17 impact on small entities or a specific class of small 

18 entities.’’. 

19 (2) INCLUSION OF RESPONSE TO COMMENTS ON

20 CERTIFICATION OF PROPOSED RULE.—Paragraph 

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

22 is amended by inserting ‘‘(or certification of the pro23 posed rule under section 605(b))’’ after ‘‘initial reg24 ulatory flexibility analysis’’. 

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1 (3) PUBLICATION OF ANALYSIS ON WEBSITE.— 

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

3 States Code, is amended to read as follows: 

4 ‘‘(b) The agency shall make copies of the final regu5 latory flexibility analysis available to the public, including 

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

7 and shall publish in the Federal Register the final regu8 latory flexibility analysis, or a summary thereof which in9 cludes the telephone number, mailing address, and link to 

10 the website where the complete analysis may be ob11 tained.’’. 

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

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

14 Code, is amended to read as follows: 

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

16 any requirement regarding the content of an agenda or 

17 regulatory flexibility analysis under section 602, 603, or 

18 604, if such agency provides in such agenda or analysis 

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

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

21 satisfies such requirement.’’. 

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

23 of title 5, United States Code, is amended— 

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

25 the first place it appears; and 

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

2 (e) QUANTIFICATION REQUIREMENTS.—Section 607 

3 of title 5, United States Code, is amended to read as fol4 lows: 

5 ‘‘§ 607. Quantification requirements 

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

7 shall provide— 

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

9 the effects of the proposed or final rule and alter10 natives to the proposed or final rule; or 

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

12 a detailed statement explaining why quantification is 

13 not practicable or reliable.’’. 

14 SEC. 5. REPEAL OF WAIVER AND DELAY AUTHORITY; ADDI15 TIONAL POWERS OF THE CHIEF COUNSEL 

16 FOR ADVOCACY. 

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

18 as follows: 

19 ‘‘§ 608. Additional powers of Chief Counsel for Advo20 cacy 

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

22 enactment of the Regulatory Flexibility Improvements Act 

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

24 Business Administration shall, after opportunity for notice 

25 and comment under section 553, issue rules governing 

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1 agency compliance with this chapter. The Chief Counsel 

2 may modify or amend such rules after notice and comment 

3 under section 553. This chapter (other than this sub4 section) shall not apply with respect to the issuance, modi5 fication, and amendment of rules under this paragraph. 

6 ‘‘(2) An agency shall not issue rules which supple7 ment the rules issued under subsection (a) unless such 

8 agency has first consulted with the Chief Counsel for Ad9 vocacy to ensure that such supplemental rules comply with 

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

11 ‘‘(b) Notwithstanding any other law, the Chief Coun12 sel for Advocacy of the Small Business Administration 

13 may intervene in any agency adjudication (unless such 

14 agency is authorized to impose a fine or penalty under 

15 such adjudication), and may inform the agency of the im16 pact that any decision on the record may have on small 

17 entities. The Chief Counsel shall not initiate an appeal 

18 with respect to any adjudication in which the Chief Coun19 sel intervenes under this subsection. 

20 ‘‘(c) The Chief Counsel for Advocacy may file com21 ments in response to any agency notice requesting com22 ment, regardless of whether the agency is required to file 

23 a general notice 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 amended 

2 by striking ‘‘608(b),’’. 

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

4 by striking ‘‘608(b),’’. 

5 (3) Section 611(a)(3) of such title is amend6 ed— 

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), an agency making such rule shall 

17 notify the Chief Counsel for Advocacy of the Small Busi18 ness Administration and provide the Chief Counsel with— 

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

20 agency in making the proposed rule, including the 

21 draft of the proposed rule; and 

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

23 beneficial economic impacts of the proposed rule on 

24 small entities and the type of small entities that 

25 might be affected. 

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1 ‘‘(2) An agency shall not be required under para2 graph (1) to provide the exact language of any draft if 

3 the rule— 

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

5 United States; or 

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

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

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

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

10 Counsel for Advocacy of the Small Business Administra11 tion shall— 

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

13 small entities or a combination of both for the pur14 pose of obtaining advice, input, and recommenda15 tions from those persons about the potential eco16 nomic impacts of the proposed rule and the compli17 ance of the agency with section 603; and 

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

19 employee from the Office of Advocacy of the Small 

20 Business Administration, an employee from the 

21 agency making the rule, and in the case of an agen22 cy other than an independent regulatory agency (as 

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

24 from the Office of Information and Regulatory Af25 fairs of the Office of Management and Budget to remstockstill on DSK4VPTVN1PROD with BILLS

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1 view the materials and information provided to the 

2 Chief Counsel under subsection (b). 

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

4 described in subsection (c)(2) is convened, the Chief Coun5 sel for Advocacy of the Small Business Administration 

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

7 submit a report to the agency and, in the case of an agen8 cy other than an independent regulatory agency (as de9 fined in section 3502(5) of title 44), the Office of Informa10 tion and Regulatory Affairs of the Office of Management 

11 and Budget. 

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

13 economic impact of the proposed rule on small entities, 

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

15 the cost that small entities pay for energy, and a discus16 sion of any alternatives that will minimize adverse signifi17 cant economic impacts or maximize beneficial significant 

18 economic impacts on small entities. 

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

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

21 shall explain what actions, if any, the agency took in re22 sponse to such report. 

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

24 if the Administrator of the Office of Information and Reg25 ulatory Affairs of the Office of Management and Budget, 

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1 the head of the agency (or the delegatee of the head of 

2 the agency), or an independent regulatory agency deter3 mines that the proposed rule is likely to result in— 

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

5 $100,000,000 or more; 

6 ‘‘(2) a major increase in costs or prices for con7 sumers, individual industries, Federal, State, or local 

8 governments, tribal organizations, or geographic re9 gions; 

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

11 employment, investment, productivity, innovation, or 

12 on the ability of United States-based enterprises to 

13 compete with foreign-based enterprises in domestic 

14 and export markets; or 

15 ‘‘(4) a significant economic impact on a sub16 stantial number of small entities. 

17 ‘‘(f) Upon application by the agency, the Chief Coun18 sel for Advocacy of the Small Business Administration 

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

20 if the Chief Counsel determines that compliance with the 

21 requirements of such subsections are impracticable, un22 necessary, or contrary to the public interest.’’. 

23 SEC. 7. PERIODIC REVIEW OF RULES. 

24 Section 610 of title 5, United States Code, is amend25 ed to read as follows: 

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1 ‘‘§ 610. Periodic review of rules 

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

3 the Regulatory Flexibility Improvements Act of 2011, 

4 each agency shall publish in the Federal Register and 

5 place on its website a plan for the periodic review of rules 

6 issued by the agency which the head of the agency deter7 mines have a significant economic impact on a substantial 

8 number of small entities. Such determination shall be 

9 made without regard to whether the agency performed an 

10 analysis under section 604. The purpose of the review 

11 shall be to determine whether such rules should be contin12 ued without change, or should be amended or rescinded, 

13 consistent with the stated objectives of applicable statutes, 

14 to minimize any adverse significant economic impacts or 

15 maximize any beneficial significant economic impacts on 

16 a substantial number of small entities. Such plan may be 

17 amended by the agency at any time by publishing the revi18 sion in the Federal Register and subsequently placing the 

19 amended plan on the agency’s website. 

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

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

22 Regulatory Flexibility Improvements Act of 2011 within 

23 10 years of the date of publication of the plan in the Fed24 eral Register and for review of rules adopted after the date 

25 of enactment of the Regulatory Flexibility Improvements 

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

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1 final rule in the Federal Register. If the head of the agen2 cy determines that completion of the review of existing 

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

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

5 Federal Register and may extend the review for not longer 

6 than 2 years after publication of notice of extension in 

7 the Federal Register. Such certification and notice shall 

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

9 Business Administration and the Congress. 

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

11 an agency will conduct outreach to and meaningfully in12 clude small businesses for the purposes of carrying out 

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

14 for how the agency will contact small businesses and gath15 er their input on existing agency rules. 

16 ‘‘(d) Each agency shall annually submit a report re17 garding the results of its review pursuant to such plan 

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

19 Small Business Administration, and, in the case of agen20 cies other than independent regulatory agencies (as de21 fined in section 3502(5) of title 44) to the Administrator 

22 of the Office of Information and Regulatory Affairs of the 

23 Office of Management and Budget. Such report shall in24 clude the identification of any rule with respect to which 

25 the head of the agency made a determination described 

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

2 explanation of the reasons for such determination. 

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

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

5 to minimize any adverse significant economic impact on 

6 a substantial number of small entities or disproportionate 

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

8 maximize any beneficial significant economic impact of the 

9 rule on a substantial number of small entities to the great10 est extent possible, consistent with the stated objectives 

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

12 the agency shall consider the following factors: 

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

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

15 agency from small entities concerning the rule. 

16 ‘‘(3) Comments by the Regulatory Enforcement 

17 Ombudsman and the Chief Counsel for Advocacy of 

18 the Small Business Administration. 

19 ‘‘(4) The complexity of the rule. 

20 ‘‘(5) The extent to which the rule overlaps, du21 plicates, or conflicts with other Federal rules and, 

22 unless the head of the agency determines it to be in23 feasible, State, territorial, and local rules. 

24 ‘‘(6) The contribution of the rule to the cumu25 lative economic impact of all Federal rules on the 

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

2 head of the agency determines that such calculations 

3 cannot be made and reports that determination in 

4 the annual report required under subsection (d). 

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

6 evaluated or the degree to which technology, eco7 nomic conditions, or other factors have changed in 

8 the area affected by the rule. 

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

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

11 to such plan. Such publication shall include a brief de12 scription of the rule, the reason why the agency deter13 mined that it has a significant economic impact on a sub14 stantial number of small entities (without regard to wheth15 er it had prepared a final regulatory flexibility analysis 

16 for the rule), and request comments from the public, the 

17 Chief Counsel for Advocacy of the Small Business Admin18 istration, and the Regulatory Enforcement Ombudsman 

19 concerning the enforcement 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 611(a) 

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

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

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

9 amended by inserting ‘‘(or which would have such jurisdic10 tion if publication of the final rule constituted final agency 

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

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

13 such section is amended— 

14 (1) by striking ‘‘final agency action’’ and insert15 ing ‘‘publication of the final rule’’; and 

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

17 which the date of final agency action is the same 

18 date as the publication of the final rule,’’ after ‘‘ex19 cept that’’. 

20 (d) INTERVENTION BY CHIEF COUNSEL FOR ADVO21 CACY.—Subsection (b) of section 612 of title 5, United 

22 States Code, is amended by inserting before the first pe23 riod ‘‘or agency compliance with section 601, 603, 604, 

24 605(b), 609, or 610’’. 

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

2 IMPLEMENTING THE REGULATORY FLEXI3 BILITY ACT. 

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

5 States Code, is amended— 

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

7 end; 

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

9 the end and inserting ‘‘; and’’; and 

10 (3) by inserting after paragraph (7) the fol11 lowing new paragraph: 

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

13 5.’’. 

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

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

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

17 the end; 

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

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

20 (3) by adding at the end the following new sub21 paragraph: 

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

23 Business Administration, when the final rule is 

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

25 (c) AUTHORIZATION TO INTERVENE AND COMMENT

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1 DURE.—Subsection (b) of section 612 of title 5, United 

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

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

4 SEC. 10. CLERICAL AMENDMENTS. 

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

6 amended— 

7 (1) in paragraph (1)— 

8 (A) by striking the semicolon at the end 

9 and inserting a period; and 

10 (B) by striking ‘‘(1) the term’’ and insert11 ing the following: 

12 ‘‘(1) AGENCY.—The term’’; 

13 (2) in paragraph (3)— 

14 (A) by striking the semicolon at the end 

15 and inserting a period; and 

16 (B) by striking ‘‘(3) the term’’ and insert17 ing the following: 

18 ‘‘(3) SMALL BUSINESS.—The term’’; 

19 (3) in paragraph (5)— 

20 (A) by striking the semicolon at the end 

21 and inserting a period; and 

22 (B) by striking ‘‘(5) the term’’ and insert23 ing the following: 

24 ‘‘(5) SMALL GOVERNMENTAL JURISDICTION.— 

25 The term’’; and 

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1 (4) in paragraph (6)— 

2 (A) by striking ‘‘; and’’ and inserting a pe3 riod; and 

4 (B) by striking ‘‘(6) the term’’ and insert5 ing the following: 

6 ‘‘(6) SMALL ENTITY.—The term’’. 

7 (b) The heading of section 605 of title 5, United 

8 States Code, is amended to read as follows: 

9 ‘‘§ 605. Incorporations by reference and certifi10 cations’’. 

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

12 United States Code, is amended— 

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

14 and inserting the following new item: 

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

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

16 and inserting the following new item: 

‘‘607. Quantification requirements.’’; and 

17 (3) by striking the item relating to section 608 

18 and inserting the following: 

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

19 (d) Chapter 6 of title 5, United States Code, is 

20 amended as follows: 

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

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

2 paragraph (6). 

3 SEC. 11. AGENCY PREPARATION OF GUIDES. 

4 Section 212(a)(5) the Small Business Regulatory En5 forcement Fairness Act of 1996 (5 U.S.C. 601 note) is 

6 amended to read as follows: 

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

8 agency shall, in its sole discretion, taking into ac9 count the subject matter of the rule and the lan10 guage of relevant statutes, ensure that the guide is 

11 written using sufficiently plain language likely to be 

12 understood by affected small entities. Agencies may 

13 prepare separate guides covering groups or classes of 

14 similarly affected small entities and may cooperate 

15 with associations of small entities to distribute such 

16 guides. In developing guides, agencies shall solicit 

17 input from affected small entities or associations of 

18 affected small entities. An agency may prepare 

19 guides and apply this section with respect to a rule 

20 or a group of related rules.’’. 

Passed the House of Representatives December 1, 

2011. 

Attest: KAREN L. HAAS, 

Clerk. 

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