II 

Calendar No. 721 

114TH CONGRESS 

2D SESSION S. 1607 

To affirm the authority of the President to require independent regulatory 

agencies to comply with regulatory analysis requirements applicable to 

executive agencies, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JUNE 18, 2015 

Mr. PORTMAN (for himself, Mr. WARNER, Ms. COLLINS, Mr. LANKFORD, Mrs. 

ERNST, Mr. KIRK, and Mr. JOHNSON) introduced the following bill; 

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

DECEMBER 9, 2016 

Reported by Mr. JOHNSON, with an amendment 

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

A BILL 

To affirm the authority of the President to require independent regulatory agencies to comply with regulatory 

analysis requirements applicable to executive agencies, 

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. 

2 This Act may be cited as the ‘‘Independent Agency 

3 Regulatory Analysis Act of 2015’’. 

4 SEC. 2. DEFINITIONS. 

5 In this Act— 

6 (1) the term ‘‘Administrator’’ means the Ad7 ministrator of the Office of Information and Regu8 latory Affairs; 

9 (2) the term ‘‘agency’’ has the meaning given 

10 that term in section 3502(1) of title 44, United 

11 States Code; 

12 (3) the term ‘‘economically significant rule’’ 

13 means any rule that the Administrator determines is 

14 likely to— 

15 (A) have an annual effect on the economy 

16 of $100,000,000 or more; or 

17 (B) adversely affect in a material way the 

18 economy, a sector of the economy, productivity, 

19 competition, jobs, the environment, public 

20 health or safety, or State, local, or tribal gov21 ernments or communities; 

22 (4) the term ‘‘independent regulatory agency’’ 

23 has the meaning given that term in section 3502(5) 

24 of title 44, United States Code; and 

25 (5) the term ‘‘rule’’— 


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1 (A) means a rule, as that term is defined 

2 in section 551 of title 5, United States Code; 

3 and 

4 (B) does not include a rule of the Board 

5 of Governors of the Federal Reserve System or 

6 the Federal Open Market Committee relating to 

7 monetary policy. 

8 SEC. 3. REGULATORY ANALYSIS BY INDEPENDENT AGEN9 CIES. 

10 (a) IN GENERAL.—The President may by Executive 

11 order require an independent regulatory agency to comply, 

12 to the extent permitted by law, with regulatory analysis 

13 requirements applicable to other agencies, including the 

14 requirements to— 

15 (1) identify the problem that the agency intends 

16 to address by a new rule (including, where applica17 ble, the failures of private markets or public institu18 tions that warrant new agency action) and assess 

19 the significance of that problem; 

20 (2) examine whether any existing rule (or other 

21 law) has created, or contributed to, the problem that 

22 a new rule is intended to correct and whether the ex23 isting rule (or other law) should be modified to 

24 achieve the intended goal of the new rule more effec25 tively; 


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1 (3) identify and assess available alternatives to 

2 direct regulation, including providing economic in3 centives to encourage the desired behavior, or pro4 viding information upon which choices can be made 

5 by the public; 

6 (4) consider to the extent reasonable in setting 

7 regulatory priorities, the degree and nature of the 

8 risks posed by various substances or activities within 

9 its jurisdiction; 

10 (5) design its rules in the most cost-effective 

11 manner to achieve the regulatory objective and, in 

12 doing so, consider incentives for innovation, consist13 ency, predictability, the costs of enforcement and 

14 compliance (to the Federal Government, regulated 

15 entities, and the public), flexibility, distributive im16 pacts, and equity; 

17 (6) assess the costs and the benefits of the in18 tended rule and, recognizing some costs and benefits 

19 are difficult to quantify, propose or adopt a rule only 

20 upon a reasoned determination that the benefits of 

21 the rule justify its costs; 

22 (7) base its rulemaking decisions on the best 

23 reasonably obtainable scientific, technical, economic, 

24 and other information concerning the need for, and 

25 consequences of, the intended rule; 


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1 (8) identify and assess alternative forms of reg2 ulation and, to the extent feasible, specify perform3 ance objectives, rather than specifying the behavior 

4 or manner of compliance that regulated entities 

5 must adopt; 

6 (9) seek the views of appropriate State, local, 

7 and tribal officials before imposing regulatory re8 quirements that might significantly or uniquely af9 fect State, local, or tribal governmental entities, 

10 whenever feasible; 

11 (10) avoid rules that are inconsistent or incom12 patible with, or duplicative of, other rules of the 

13 independent regulatory agency or other agencies; 

14 (11) tailor rules to impose the least burden on 

15 society, including individuals, businesses of differing 

16 sizes, and other entities (including small commu17 nities and governmental entities), consistent with 

18 achieving the regulatory objectives, and taking into 

19 account, among other factors, and to the extent 

20 practicable, the cost of cumulative rules; 

21 (12) draft each rule to be simple and easy to 

22 understand, with the goal of minimizing the poten23 tial for uncertainty and litigation arising from un24 certainty; and 


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1 (13) periodically review its existing economically 

2 significant rules to determine whether any such rules 

3 should be modified, streamlined, expanded, or re4 pealed so as to make the regulatory program of the 

5 agency more effective or less burdensome in achiev6 ing the regulatory objectives. 

7 (b) ECONOMICALLY SIGNIFICANT RULES.—For any 

8 proposed or final rule identified by an independent regu9 latory agency as, or determined by the Administrator to 

10 be, an economically significant rule, the President may by 

11 Executive order require the independent regulatory agency 

12 to provide to the Administrator and publish with the pro13 posed and final rule the following information, to the ex14 tent permitted by law: 

15 (1) An assessment, including the underlying 

16 analysis, of benefits anticipated from the rule to17 gether with, to the extent feasible, a quantification 

18 of those benefits. 

19 (2) An assessment, including the underlying 

20 analysis, of costs anticipated from the rule together 

21 with, to the extent feasible, a quantification of those 

22 costs. 

23 (3) An assessment, including the underlying 

24 analysis, of costs and benefits of potentially effective 

25 and reasonably feasible alternatives to the rule, idenVerDate Sep 11 2014 21:20 Dec 10, 2016 Jkt 069200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6401 E:\BILLS\S1607.RS S1607

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1 tified by the agencies or the public, including im2 proving existing regulations and reasonably viable 

3 nonregulatory actions, and an explanation of why 

4 the planned regulatory action is preferable to the 

5 identified potential alternatives. 

6 (c) REVIEW BY OFFICE OF INFORMATION AND REGU7 LATORY AFFAIRS.— 

8 (1) REQUIREMENT TO SEEK REVIEW.—The 

9 President may, by Executive order, require an inde10 pendent regulatory agency to submit to the Adminis11 trator for review— 

12 (A) any proposed economically significant 

13 rule, either prior to publication of the notice of 

14 proposed rulemaking or, if the head of the inde15 pendent regulatory agency elects, during the 

16 general public comment period; and 

17 (B) any final economically significant rule, 

18 prior to publication of the final rule. 

19 (2) NONBINDING ASSESSMENT.—An Executive 

20 order issued under this Act may require that, not 

21 later than 90 days after the independent regulatory 

22 agency submits a proposed or final economically sig23 nificant rule for review, the Administrator submit 

24 for inclusion in the rulemaking record the assess25 ment of the Administrator of the extent to which the 


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1 independent regulatory agency has complied with 

2 any of the regulatory analysis requirements made 

3 applicable by Executive order. 

4 (3) DETERMINATION AND EXPLANATION BY

5 INDEPENDENT AGENCY.—An Executive order issued 

6 under this Act may require that, if the Adminis7 trator concludes under paragraph (2) that the inde8 pendent regulatory agency did not comply with 1 or 

9 more requirements of the Executive order with re10 spect to a proposed or final economically significant 

11 rule, the head of the independent regulatory agency 

12 that issued the economically significant rule shall in13 clude with the final rule— 

14 (A) a determination that the rule complies 

15 with the specified requirement or requirements 

16 and an explanation of that determination; and 

17 (B) if applicable, an explanation why the 

18 independent regulatory agency did not comply 

19 with 1 or more of the specified requirements, 

20 based on the statutory provision authorizing the 

21 rule. 

22 SEC. 4. LIMITATION ON JUDICIAL REVIEW. 

23 (a) IN GENERAL.—The compliance or noncompliance 

24 of an independent regulatory agency with the requireVerDate Sep 11 2014 21:20 Dec 10, 2016 Jkt 069200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6401 E:\BILLS\S1607.RS S1607

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1 ments of an Executive order issued under this Act shall 

2 not be subject to judicial review. 

3 (b) AGENCY RECORD.—When an action for judicial 

4 review of a rule promulgated by an independent regulatory 

5 agency is instituted, any determination, analysis, or expla6 nation produced by the independent regulatory agency, 

7 and any assessment produced by the Administrator, pur8 suant to an Executive order issued under this Act, shall 

9 constitute part of the whole record of agency action in con10 nection with the review. 

11 (c) RULE OF CONSTRUCTION.—Nothing in this sec12 tion shall be construed to bar judicial review of any other 

13 impact statement or similar analysis required by any other 

14 provision of law if judicial review of such statement or 

15 analysis is otherwise permitted by law. 

16 SEC. 5. RULE OF CONSTRUCTION. 

17 Nothing in this Act shall be construed to limit the 

18 authority of the President with respect to independent reg19 ulatory agencies under any other applicable law. 

20 SECTION 1. SHORT TITLE. 

21 This Act may be cited as the ‘‘Independent Agency 

22 Regulatory Analysis Act of 2015’’. 

23 SEC. 2. DEFINITIONS. 

24 In this Act— 


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1 (1) the term ‘‘Administrator’’ means the Admin2 istrator of the Office of Information and Regulatory 

3 Affairs; 

4 (2) the term ‘‘agency’’ has the meaning given 

5 that term in section 3502(1) of title 44, United States 

6 Code; 

7 (3) the term ‘‘economically significant rule’’ 

8 means any rule that the Administrator determines is 

9 likely to— 

10 (A) have an annual effect on the economy of 

11 $100,000,000 or more; or 

12 (B) adversely affect in a material way the 

13 economy, a sector of the economy, productivity, 

14 competition, jobs, the environment, public health 

15 or safety, or State, local, or tribal governments 

16 or communities; 

17 (4) the term ‘‘independent regulatory agency’’ 

18 has the meaning given that term in section 3502(5) 

19 of title 44, United States Code; and 

20 (5) the term ‘‘rule’’— 

21 (A) means a rule, as that term is defined in 

22 section 551 of title 5, United States Code; and 

23 (B) does not include a rule of the Board of 

24 Governors of the Federal Reserve System or the 


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1 Federal Open Market Committee relating to 

2 monetary policy. 

3 SEC. 3. REGULATORY ANALYSIS BY INDEPENDENT AGEN4 CIES. 

5 (a) IN GENERAL.—The President may by Executive 

6 order require an independent regulatory agency, while 

7 maximizing net benefits and considering costs, to comply, 

8 to the extent permitted by law, with regulatory analysis re9 quirements applicable to other agencies, including the re10 quirements to— 

11 (1) identify the problem that the agency intends 

12 to address by a new rule (including, where applicable, 

13 the failures of private markets or public institutions 

14 that warrant new agency action) and assess the sig15 nificance of that problem; 

16 (2) examine whether any existing rule (or other 

17 law) has created, or contributed to, the problem that 

18 a new rule is intended to correct and whether the ex19 isting rule (or other law) should be modified to 

20 achieve the intended goal of the new rule more effec21 tively; 

22 (3) identify and assess available alternatives to 

23 direct regulation, including providing economic in24 centives to encourage the desired behavior, or proVerDate Sep 11 2014 21:20 Dec 10, 2016 Jkt 069200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6203 E:\BILLS\S1607.RS S1607

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1 viding information upon which choices can be made 

2 by the public; 

3 (4) consider to the extent reasonable in setting 

4 regulatory priorities, the degree and nature of the 

5 risks posed by various substances or activities within 

6 its jurisdiction; 

7 (5) design its rules in the most cost-effective 

8 manner to achieve the regulatory objective and, in 

9 doing so, consider incentives for innovation, consist10 ency, predictability, the costs of enforcement and com11 pliance (to the Federal Government, regulated enti12 ties, and the public), flexibility, distributive impacts, 

13 and equity; 

14 (6) assess the costs and the benefits of the in15 tended rule and, recognizing some costs and benefits 

16 are difficult to quantify, propose or adopt a rule only 

17 upon a reasoned determination that the benefits of the 

18 rule justify its costs; 

19 (7) base its rulemaking decisions on the best rea20 sonably obtainable scientific, technical, economic, and 

21 other information concerning the need for, and con22 sequences of, the intended rule; 

23 (8) identify and assess alternative forms of regu24 lation and, to the extent feasible, specify performance 

25 objectives, rather than specifying the behavior or 


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1 manner of compliance that regulated entities must 

2 adopt; 

3 (9) seek the views of appropriate State, local, 

4 and tribal officials before imposing regulatory re5 quirements that might significantly or uniquely affect 

6 State, local, or tribal governmental entities, whenever 

7 feasible; 

8 (10) avoid rules that are inconsistent or incom9 patible with, or duplicative of, other rules of the inde10 pendent regulatory agency or other agencies; 

11 (11) tailor rules to impose the least burden on 

12 society, including individuals, businesses of differing 

13 sizes, and other entities (including small communities 

14 and governmental entities), consistent with achieving 

15 the regulatory objectives, and taking into account, 

16 among other factors, and to the extent practicable, the 

17 cost of cumulative rules; 

18 (12) draft each rule to be simple and easy to un19 derstand, with the goal of minimizing the potential 

20 for uncertainty and litigation arising from uncer21 tainty; and 

22 (13) periodically review its existing economically 

23 significant rules to determine whether any such rules 

24 should be modified, streamlined, expanded, or re25 pealed so as to make the regulatory program of the 


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1 agency more effective or less burdensome in achieving 

2 the regulatory objectives. 

3 (b) ECONOMICALLY SIGNIFICANT RULES.— 

4 (1) IN GENERAL.—For any proposed or final 

5 rule identified by an independent regulatory agency 

6 as, or determined by the Administrator to be, an eco7 nomically significant rule, the President may by Ex8 ecutive order require the independent regulatory agen9 cy to provide to the Administrator and publish with 

10 the proposed and final rule the following information, 

11 to the extent permitted by law: 

12 (A) An assessment, including the under13 lying analysis, of benefits anticipated from the 

14 rule together with, to the extent feasible, a quan15 tification of those benefits. 

16 (B) An assessment, including the under17 lying analysis, of costs anticipated from the rule 

18 together with, to the extent feasible, a quantifica19 tion of those costs. 

20 (C) An assessment, including the under21 lying analysis, of costs and benefits of poten22 tially effective and reasonably feasible alter23 natives to the rule, identified by the agencies or 

24 the public, including improving existing regula25 tions and reasonably viable nonregulatory acVerDate Sep 11 2014 21:20 Dec 10, 2016 Jkt 069200 PO 00000 Frm 00014 Fmt 6652 Sfmt 6203 E:\BILLS\S1607.RS S1607

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1 tions, and an explanation of why the planned 

2 regulatory action is preferable to the identified 

3 potential alternatives. 

4 (2) SUBMISSION TO ADMINISTRATOR.—An inde5 pendent regulatory agency described in paragraph (1) 

6 may provide to the Administrator any assessment or 

7 underlying analysis that substantially meets the re8 quirements described in subparagraphs (A), (B), and 

9 (C) of paragraph (1). 

10 (3) FORMAT.—Nothing in this subsection shall 

11 require an assessment or underlying analysis to be 

12 provided or published under this subsection in a man13 ner that conforms to any specific formatting stand14 ard. 

15 (c) REVIEW BY OFFICE OF INFORMATION AND REGU16 LATORY AFFAIRS.— 

17 (1) REQUIREMENT TO SEEK REVIEW.—The 

18 President may by Executive order require an inde19 pendent regulatory agency to submit to the Adminis20 trator for review— 

21 (A) any proposed economically significant 

22 rule, either prior to publication of the notice of 

23 proposed rulemaking or, if the head of the inde24 pendent regulatory agency elects, during the gen25 eral public comment period; and 


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1 (B) any final economically significant rule, 

2 prior to publication of the final rule. 

3 (2) NONBINDING ASSESSMENT.—An Executive 

4 order issued under this Act may require that, not 

5 later than 90 days after the independent regulatory 

6 agency submits a proposed or final economically sig7 nificant rule for review, the Administrator submit for 

8 inclusion in the rulemaking record the assessment of 

9 the Administrator of the extent to which the inde10 pendent regulatory agency has complied with any of 

11 the regulatory analysis requirements made applicable 

12 by Executive order. 

13 (3) DETERMINATION AND EXPLANATION BY INDE14 PENDENT AGENCY.—An Executive order issued under 

15 this Act may require that, if the Administrator con16 cludes under paragraph (2) that the independent reg17 ulatory agency did not comply with 1 or more re18 quirements of the Executive order with respect to a 

19 proposed or final economically significant rule, the 

20 head of the independent regulatory agency that issued 

21 the economically significant rule shall include with 

22 the final rule— 

23 (A) a determination that the rule complies 

24 with the specified requirement or requirements 

25 and an explanation of that determination; and 


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1 (B) if applicable, an explanation why the 

2 independent regulatory agency did not comply 

3 with 1 or more of the specified requirements, 

4 based on the statutory provision authorizing the 

5 rule. 

6 (4) FAILURE TO COMPLETE ASSESSMENT.—An 

7 Executive order issued under this Act may provide 

8 that, if the Administrator does not complete an assess9 ment under paragraph (2) within 90 days after the 

10 independent regulatory agency submits a proposed or 

11 final economically significant rule for review— 

12 (A) the independent regulatory agency shall 

13 be deemed to have met the requirement for review 

14 by the Administrator under paragraph (1); and 

15 (B) the independent regulatory agency may 

16 publish the final economically significant rule 

17 without inclusion of an assessment in the rule18 making record. 

19 SEC. 4. LIMITATION ON JUDICIAL REVIEW. 

20 (a) IN GENERAL.—The compliance or noncompliance 

21 of an independent regulatory agency with the requirements 

22 of an Executive order issued under this Act shall not be 

23 subject to judicial review. 

24 (b) AGENCY RECORD.—When an action for judicial re25 view of a rule promulgated by an independent regulatory 


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1 agency is instituted, any determination, analysis, or expla2 nation produced by the independent regulatory agency, and 

3 any assessment produced by the Administrator, pursuant 

4 to an Executive order issued under this Act, shall constitute 

5 part of the whole record of agency action in connection with 

6 the review. 

7 (c) RULE OF CONSTRUCTION.—Nothing in this section 

8 shall be construed to bar judicial review of any other impact 

9 statement or similar analysis required by any other provi10 sion of law if judicial review of such statement or analysis 

11 is otherwise permitted by law. 

12 SEC. 5. RULES OF CONSTRUCTION. 

13 Nothing in this Act shall be construed to— 

14 (1) limit the authority of the President with re15 spect to independent regulatory agencies under any 

16 other applicable law; 

17 (2) limit, diminish, or otherwise affect the inde18 pendence from the President of independent regu19 latory agencies; or 

20 (3) confer on the Administrator or the President 

21 any authority to affect the decisionmaking or regu22 latory authority of independent regulatory agencies. 


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Calendar No. 721 

114TH CONGRESS 

2D SESSION S. 1607 

A BILL 

To affirm the authority of the President to require 

ecutive agencies, and for other purposes. regulatory analysis requirements applicable to exindependent regulatory agencies to comply with 

DECEMBER 9, 2016 

Reported with an amendment 


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