II 

117TH CONGRESS 

1ST SESSION S. 2074 

To require greater transparency for Federal regulatory decisions that impact 

small businesses. 

IN THE SENATE OF THE UNITED STATES 

JUNE 16, 2021 

Ms. ERNST introduced the following bill; which was read twice and referred 

to the Committee on Homeland Security and Governmental Affairs 

A BILL 

To require greater transparency for Federal regulatory 

decisions that impact small businesses. 

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. 

4 This Act may be cited as the ‘‘Prove It Act of 2021’’. 

5 SEC. 2. REVIEW PROCEDURES RELATED TO THE CERTIFI6 CATION. 

7 (a) IN GENERAL.—Section 605(b) of title 5, United 

8 States Code, is amended— 

9 (1) by inserting ‘‘(1)’’ before ‘‘Sections 603’’; 

10 (2) in paragraph (1), as so designated— 


kjohnson on DSK79L0C42PROD with BILLS
2 

•S 2074 IS

1 (A) by striking ‘‘the preceding sentence’’ 

2 and inserting ‘‘this subsection’’; and 

3 (B) by striking ‘‘statement to the Chief 

4 Counsel for Advocacy of the Small Business 

5 Administration’’ and inserting ‘‘statement pro6 viding the factual basis to the Chief Counsel for 

7 Advocacy of the Small Business Administration 

8 (in this subsection referred to as the ‘Chief 

9 Counsel’)’’; and 

10 (3) by adding at the end the following: 

11 ‘‘(2)(A) If the Chief Counsel disagrees with a certifi12 cation and statement providing the factual basis for the 

13 certification published in the Federal Register under para14 graph (1) with respect to a proposed rule, the Chief Coun15 sel may, not later than 14 days after the date on which 

16 the statement and factual basis were published in the Fed17 eral Register, submit to the head of the Federal agency 

18 proposing the rule a letter (in this subsection referred to 

19 as an ‘advisement letter’) advising the head of the Federal 

20 agency to— 

21 ‘‘(i) review the certification and the detailed 

22 statement submitted by the Chief Counsel under 

23 subparagraph (B); and 

24 ‘‘(ii) reconsider the certification. 


kjohnson on DSK79L0C42PROD with BILLS
3 

•S 2074 IS

1 ‘‘(B) An advisement letter submitted by the Chief 

2 Counsel under subparagraph (A) shall— 

3 ‘‘(i) include a detailed statement of why the 

4 Chief Counsel disagreed with the certification or the 

5 statement providing the factual basis received under 

6 paragraph (1); and 

7 ‘‘(ii) be published on the website of the Office 

8 of Advocacy of the Small Business Administration. 

9 ‘‘(C) Not later than 7 days after the date on which 

10 the head of a Federal agency receives an advisement letter 

11 under subparagraph (A) with respect to a proposed rule, 

12 the head of the Federal agency shall— 

13 ‘‘(i) publish in the Federal Register and on the 

14 website of the Federal agency an acknowledgment of 

15 receipt of the advisement letter; 

16 ‘‘(ii) allow the public comment period for the 

17 rule to remain open for a period of not less than 30 

18 days; and 

19 ‘‘(iii) if, during the 30-day period described in 

20 clause (ii), the head of the Federal agency deter21 mines that the certification and statement providing 

22 the factual basis should be modified, shorten or 

23 eliminate the 30-day period. 

24 ‘‘(D)(i) Not later than 30 days after the date on 

25 which the Chief Counsel submits to the head of a Federal 


kjohnson on DSK79L0C42PROD with BILLS
4 

•S 2074 IS

1 agency an advisement letter under subparagraph (A), the 

2 Federal agency shall submit to the Chief Counsel and pub3 lish in the Federal Register and on the website of the Fed4 eral agency the results of the review and reconsideration. 

5 ‘‘(ii) If, after conducting the review and reconsider6 ation under subparagraph (A), the head of the Federal 

7 agency determines— 

8 ‘‘(I) that there was not a sufficient factual basis 

9 to support the certification, the Federal agency shall 

10 perform and publish in the Federal Register an ini11 tial regulatory flexibility analysis under section 603, 

12 with an opportunity for public comment, before pro13 mulgating the final rule; 

14 ‘‘(II) that the certification was appropriate but 

15 the factual basis was inadequate to support the cer16 tification, the Federal agency shall revise the factual 

17 basis to support the certification; or 

18 ‘‘(III) that the certification was appropriate and 

19 the factual basis was adequate to support the certifi20 cation, the Federal agency may continue with the 

21 rule making.’’. 

22 SEC. 3. JUDICIAL REVIEW. 

23 Section 611(a) of title 5, United States Code, is 

24 amended— 


kjohnson on DSK79L0C42PROD with BILLS
5 

•S 2074 IS

1 (1) in paragraph (1), by striking ‘‘605(b)’’ and 

2 inserting ‘‘605(b)(1)’’; and 

3 (2) in paragraph (2), by striking ‘‘605(b)’’ and 

4 inserting ‘‘605(b)(1)’’. 

Æ 


kjohnson on DSK79L0C42PROD with BILLS