```

[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[S. 1607 Reported in Senate (RS)]

<DOC>

                                                       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.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

<DELETED>SECTION 1. SHORT TITLE.</DELETED>

<DELETED>    This Act may be cited as the ``Independent Agency 
Regulatory Analysis Act of 2015''.</DELETED>

<DELETED>SEC. 2. DEFINITIONS.</DELETED>

<DELETED>    In this Act--</DELETED>
        <DELETED>    (1) the term ``Administrator'' means the 
        Administrator of the Office of Information and Regulatory 
        Affairs;</DELETED>
        <DELETED>    (2) the term ``agency'' has the meaning given that 
        term in section 3502(1) of title 44, United States 
        Code;</DELETED>
        <DELETED>    (3) the term ``economically significant rule'' 
        means any rule that the Administrator determines is likely to--
        </DELETED>
                <DELETED>    (A) have an annual effect on the economy 
                of $100,000,000 or more; or</DELETED>
                <DELETED>    (B) adversely affect in a material way the 
                economy, a sector of the economy, productivity, 
                competition, jobs, the environment, public health or 
                safety, or State, local, or tribal governments or 
                communities;</DELETED>
        <DELETED>    (4) the term ``independent regulatory agency'' has 
        the meaning given that term in section 3502(5) of title 44, 
        United States Code; and</DELETED>
        <DELETED>    (5) the term ``rule''--</DELETED>
                <DELETED>    (A) means a rule, as that term is defined 
                in section 551 of title 5, United States Code; 
                and</DELETED>
                <DELETED>    (B) does not include a rule of the Board 
                of Governors of the Federal Reserve System or the 
                Federal Open Market Committee relating to monetary 
                policy.</DELETED>

<DELETED>SEC. 3. REGULATORY ANALYSIS BY INDEPENDENT AGENCIES.</DELETED>

<DELETED>    (a) In General.--The President may by Executive order 
require an independent regulatory agency to comply, to the extent 
permitted by law, with regulatory analysis requirements applicable to 
other agencies, including the requirements to--</DELETED>
        <DELETED>    (1) identify the problem that the agency intends 
        to address by a new rule (including, where applicable, the 
        failures of private markets or public institutions that warrant 
        new agency action) and assess the significance of that 
        problem;</DELETED>
        <DELETED>    (2) examine whether any existing rule (or other 
        law) has created, or contributed to, the problem that a new 
        rule is intended to correct and whether the existing rule (or 
        other law) should be modified to achieve the intended goal of 
        the new rule more effectively;</DELETED>
        <DELETED>    (3) identify and assess available alternatives to 
        direct regulation, including providing economic incentives to 
        encourage the desired behavior, or providing information upon 
        which choices can be made by the public;</DELETED>
        <DELETED>    (4) consider to the extent reasonable in setting 
        regulatory priorities, the degree and nature of the risks posed 
        by various substances or activities within its 
        jurisdiction;</DELETED>
        <DELETED>    (5) design its rules in the most cost-effective 
        manner to achieve the regulatory objective and, in doing so, 
        consider incentives for innovation, consistency, 
        predictability, the costs of enforcement and compliance (to the 
        Federal Government, regulated entities, and the public), 
        flexibility, distributive impacts, and equity;</DELETED>
        <DELETED>    (6) assess the costs and the benefits of the 
        intended rule and, recognizing some costs and benefits are 
        difficult to quantify, propose or adopt a rule only upon a 
        reasoned determination that the benefits of the rule justify 
        its costs;</DELETED>
        <DELETED>    (7) base its rulemaking decisions on the best 
        reasonably obtainable scientific, technical, economic, and 
        other information concerning the need for, and consequences of, 
        the intended rule;</DELETED>
        <DELETED>    (8) identify and assess alternative forms of 
        regulation and, to the extent feasible, specify performance 
        objectives, rather than specifying the behavior or manner of 
        compliance that regulated entities must adopt;</DELETED>
        <DELETED>    (9) seek the views of appropriate State, local, 
        and tribal officials before imposing regulatory requirements 
        that might significantly or uniquely affect State, local, or 
        tribal governmental entities, whenever feasible;</DELETED>
        <DELETED>    (10) avoid rules that are inconsistent or 
        incompatible with, or duplicative of, other rules of the 
        independent regulatory agency or other agencies;</DELETED>
        <DELETED>    (11) tailor rules to impose the least burden on 
        society, including individuals, businesses of differing sizes, 
        and other entities (including small communities and 
        governmental entities), consistent with achieving the 
        regulatory objectives, and taking into account, among other 
        factors, and to the extent practicable, the cost of cumulative 
        rules;</DELETED>
        <DELETED>    (12) draft each rule to be simple and easy to 
        understand, with the goal of minimizing the potential for 
        uncertainty and litigation arising from uncertainty; 
        and</DELETED>
        <DELETED>    (13) periodically review its existing economically 
        significant rules to determine whether any such rules should be 
        modified, streamlined, expanded, or repealed so as to make the 
        regulatory program of the agency more effective or less 
        burdensome in achieving the regulatory objectives.</DELETED>
<DELETED>    (b) Economically Significant Rules.--For any proposed or 
final rule identified by an independent regulatory agency as, or 
determined by the Administrator to be, an economically significant 
rule, the President may by Executive order require the independent 
regulatory agency to provide to the Administrator and publish with the 
proposed and final rule the following information, to the extent 
permitted by law:</DELETED>
        <DELETED>    (1) An assessment, including the underlying 
        analysis, of benefits anticipated from the rule together with, 
        to the extent feasible, a quantification of those 
        benefits.</DELETED>
        <DELETED>    (2) An assessment, including the underlying 
        analysis, of costs anticipated from the rule together with, to 
        the extent feasible, a quantification of those costs.</DELETED>
        <DELETED>    (3) An assessment, including the underlying 
        analysis, of costs and benefits of potentially effective and 
        reasonably feasible alternatives to the rule, identified by the 
        agencies or the public, including improving existing 
        regulations and reasonably viable nonregulatory actions, and an 
        explanation of why the planned regulatory action is preferable 
        to the identified potential alternatives.</DELETED>
<DELETED>    (c) Review by Office of Information and Regulatory 
Affairs.--</DELETED>
        <DELETED>    (1) Requirement to seek review.--The President 
        may, by Executive order, require an independent regulatory 
        agency to submit to the Administrator for review--</DELETED>
                <DELETED>    (A) any proposed economically significant 
                rule, either prior to publication of the notice of 
                proposed rulemaking or, if the head of the independent 
                regulatory agency elects, during the general public 
                comment period; and</DELETED>
                <DELETED>    (B) any final economically significant 
                rule, prior to publication of the final rule.</DELETED>
        <DELETED>    (2) Nonbinding assessment.--An Executive order 
        issued under this Act may require that, not later than 90 days 
        after the independent regulatory agency submits a proposed or 
        final economically significant rule for review, the 
        Administrator submit for inclusion in the rulemaking record the 
        assessment of the Administrator of the extent to which the 
        independent regulatory agency has complied with any of the 
        regulatory analysis requirements made applicable by Executive 
        order.</DELETED>
        <DELETED>    (3) Determination and explanation by independent 
        agency.--An Executive order issued under this Act may require 
        that, if the Administrator concludes under paragraph (2) that 
        the independent regulatory agency did not comply with 1 or more 
        requirements of the Executive order with respect to a proposed 
        or final economically significant rule, the head of the 
        independent regulatory agency that issued the economically 
        significant rule shall include with the final rule--</DELETED>
                <DELETED>    (A) a determination that the rule complies 
                with the specified requirement or requirements and an 
                explanation of that determination; and</DELETED>
                <DELETED>    (B) if applicable, an explanation why the 
                independent regulatory agency did not comply with 1 or 
                more of the specified requirements, based on the 
                statutory provision authorizing the rule.</DELETED>

<DELETED>SEC. 4. LIMITATION ON JUDICIAL REVIEW.</DELETED>

<DELETED>    (a) In General.--The compliance or noncompliance of an 
independent regulatory agency with the requirements of an Executive 
order issued under this Act shall not be subject to judicial 
review.</DELETED>
<DELETED>    (b) Agency Record.--When an action for judicial review of 
a rule promulgated by an independent regulatory agency is instituted, 
any determination, analysis, or explanation produced by the independent 
regulatory agency, and any assessment produced by the Administrator, 
pursuant to an Executive order issued under this Act, shall constitute 
part of the whole record of agency action in connection with the 
review.</DELETED>
<DELETED>    (c) Rule of Construction.--Nothing in this section shall 
be construed to bar judicial review of any other impact statement or 
similar analysis required by any other provision of law if judicial 
review of such statement or analysis is otherwise permitted by 
law.</DELETED>

<DELETED>SEC. 5. RULE OF CONSTRUCTION.</DELETED>

<DELETED>    Nothing in this Act shall be construed to limit the 
authority of the President with respect to independent regulatory 
agencies under any other applicable law.</DELETED>

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Independent Agency Regulatory 
Analysis Act of 2015''.

SEC. 2. DEFINITIONS.

    In this Act--
            (1) the term ``Administrator'' means the Administrator of 
        the Office of Information and Regulatory Affairs;
            (2) the term ``agency'' has the meaning given that term in 
        section 3502(1) of title 44, United States Code;
            (3) the term ``economically significant rule'' means any 
        rule that the Administrator determines is likely to--
                    (A) have an annual effect on the economy of 
                $100,000,000 or more; or
                    (B) adversely affect in a material way the economy, 
                a sector of the economy, productivity, competition, 
                jobs, the environment, public health or safety, or 
                State, local, or tribal governments or communities;
            (4) the term ``independent regulatory agency'' has the 
        meaning given that term in section 3502(5) of title 44, United 
        States Code; and
            (5) the term ``rule''--
                    (A) means a rule, as that term is defined in 
                section 551 of title 5, United States Code; and
                    (B) does not include a rule of the Board of 
                Governors of the Federal Reserve System or the Federal 
                Open Market Committee relating to monetary policy.

SEC. 3. REGULATORY ANALYSIS BY INDEPENDENT AGENCIES.

    (a) In General.--The President may by Executive order require an 
independent regulatory agency, while maximizing net benefits and 
considering costs, to comply, to the extent permitted by law, with 
regulatory analysis requirements applicable to other agencies, 
including the requirements to--
            (1) identify the problem that the agency intends to address 
        by a new rule (including, where applicable, the failures of 
        private markets or public institutions that warrant new agency 
        action) and assess the significance of that problem;
            (2) examine whether any existing rule (or other law) has 
        created, or contributed to, the problem that a new rule is 
        intended to correct and whether the existing rule (or other 
        law) should be modified to achieve the intended goal of the new 
        rule more effectively;
            (3) identify and assess available alternatives to direct 
        regulation, including providing economic incentives to 
        encourage the desired behavior, or providing information upon 
        which choices can be made by the public;
            (4) consider to the extent reasonable in setting regulatory 
        priorities, the degree and nature of the risks posed by various 
        substances or activities within its jurisdiction;
            (5) design its rules in the most cost-effective manner to 
        achieve the regulatory objective and, in doing so, consider 
        incentives for innovation, consistency, predictability, the 
        costs of enforcement and compliance (to the Federal Government, 
        regulated entities, and the public), flexibility, distributive 
        impacts, and equity;
            (6) assess the costs and the benefits of the intended rule 
        and, recognizing some costs and benefits are difficult to 
        quantify, propose or adopt a rule only upon a reasoned 
        determination that the benefits of the rule justify its costs;
            (7) base its rulemaking decisions on the best reasonably 
        obtainable scientific, technical, economic, and other 
        information concerning the need for, and consequences of, the 
        intended rule;
            (8) identify and assess alternative forms of regulation 
        and, to the extent feasible, specify performance objectives, 
        rather than specifying the behavior or manner of compliance 
        that regulated entities must adopt;
            (9) seek the views of appropriate State, local, and tribal 
        officials before imposing regulatory requirements that might 
        significantly or uniquely affect State, local, or tribal 
        governmental entities, whenever feasible;
            (10) avoid rules that are inconsistent or incompatible 
        with, or duplicative of, other rules of the independent 
        regulatory agency or other agencies;
            (11) tailor rules to impose the least burden on society, 
        including individuals, businesses of differing sizes, and other 
        entities (including small communities and governmental 
        entities), consistent with achieving the regulatory objectives, 
        and taking into account, among other factors, and to the extent 
        practicable, the cost of cumulative rules;
            (12) draft each rule to be simple and easy to understand, 
        with the goal of minimizing the potential for uncertainty and 
        litigation arising from uncertainty; and
            (13) periodically review its existing economically 
        significant rules to determine whether any such rules should be 
        modified, streamlined, expanded, or repealed so as to make the 
        regulatory program of the agency more effective or less 
        burdensome in achieving the regulatory objectives.
    (b) Economically Significant Rules.--
            (1) In general.--For any proposed or final rule identified 
        by an independent regulatory agency as, or determined by the 
        Administrator to be, an economically significant rule, the 
        President may by Executive order require the independent 
        regulatory agency to provide to the Administrator and publish 
        with the proposed and final rule the following information, to 
        the extent permitted by law:
                    (A) An assessment, including the underlying 
                analysis, of benefits anticipated from the rule 
                together with, to the extent feasible, a quantification 
                of those benefits.
                    (B) An assessment, including the underlying 
                analysis, of costs anticipated from the rule together 
                with, to the extent feasible, a quantification of those 
                costs.
                    (C) An assessment, including the underlying 
                analysis, of costs and benefits of potentially 
                effective and reasonably feasible alternatives to the 
                rule, identified by the agencies or the public, 
                including improving existing regulations and reasonably 
                viable nonregulatory actions, and an explanation of why 
                the planned regulatory action is preferable to the 
                identified potential alternatives.
            (2) Submission to administrator.--An independent regulatory 
        agency described in paragraph (1) may provide to the 
        Administrator any assessment or underlying analysis that 
        substantially meets the requirements described in subparagraphs 
        (A), (B), and (C) of paragraph (1).
            (3) Format.--Nothing in this subsection shall require an 
        assessment or underlying analysis to be provided or published 
        under this subsection in a manner that conforms to any specific 
        formatting standard.
    (c) Review by Office of Information and Regulatory Affairs.--
            (1) Requirement to seek review.--The President may by 
        Executive order require an independent regulatory agency to 
        submit to the Administrator for review--
                    (A) any proposed economically significant rule, 
                either prior to publication of the notice of proposed 
                rulemaking or, if the head of the independent 
                regulatory agency elects, during the general public 
                comment period; and
                    (B) any final economically significant rule, prior 
                to publication of the final rule.
            (2) Nonbinding assessment.--An Executive order issued under 
        this Act may require that, not later than 90 days after the 
        independent regulatory agency submits a proposed or final 
        economically significant rule for review, the Administrator 
        submit for inclusion in the rulemaking record the assessment of 
        the Administrator of the extent to which the independent 
        regulatory agency has complied with any of the regulatory 
        analysis requirements made applicable by Executive order.
            (3) Determination and explanation by independent agency.--
        An Executive order issued under this Act may require that, if 
        the Administrator concludes under paragraph (2) that the 
        independent regulatory agency did not comply with 1 or more 
        requirements of the Executive order with respect to a proposed 
        or final economically significant rule, the head of the 
        independent regulatory agency that issued the economically 
        significant rule shall include with the final rule--
                    (A) a determination that the rule complies with the 
                specified requirement or requirements and an 
                explanation of that determination; and
                    (B) if applicable, an explanation why the 
                independent regulatory agency did not comply with 1 or 
                more of the specified requirements, based on the 
                statutory provision authorizing the rule.
            (4) Failure to complete assessment.--An Executive order 
        issued under this Act may provide that, if the Administrator 
        does not complete an assessment under paragraph (2) within 90 
        days after the independent regulatory agency submits a proposed 
        or final economically significant rule for review--
                    (A) the independent regulatory agency shall be 
                deemed to have met the requirement for review by the 
                Administrator under paragraph (1); and
                    (B) the independent regulatory agency may publish 
                the final economically significant rule without 
                inclusion of an assessment in the rulemaking record.

SEC. 4. LIMITATION ON JUDICIAL REVIEW.

    (a) In General.--The compliance or noncompliance of an independent 
regulatory agency with the requirements of an Executive order issued 
under this Act shall not be subject to judicial review.
    (b) Agency Record.--When an action for judicial review of a rule 
promulgated by an independent regulatory agency is instituted, any 
determination, analysis, or explanation produced by the independent 
regulatory agency, and any assessment produced by the Administrator, 
pursuant to an Executive order issued under this Act, shall constitute 
part of the whole record of agency action in connection with the 
review.
    (c) Rule of Construction.--Nothing in this section shall be 
construed to bar judicial review of any other impact statement or 
similar analysis required by any other provision of law if judicial 
review of such statement or analysis is otherwise permitted by law.

SEC. 5. RULES OF CONSTRUCTION.

    Nothing in this Act shall be construed to--
            (1) limit the authority of the President with respect to 
        independent regulatory agencies under any other applicable law;
            (2) limit, diminish, or otherwise affect the independence 
        from the President of independent regulatory agencies; or
            (3) confer on the Administrator or the President any 
        authority to affect the decisionmaking or regulatory authority 
        of independent regulatory agencies.
                                                       Calendar No. 721

114th CONGRESS

  2d Session

                                S. 1607

_______________________________________________________________________

                                 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.

_______________________________________________________________________

                            December 9, 2016

                       Reported with an amendment
```