II 

118TH CONGRESS 

1ST SESSION S. 1411 

To amend title 5, United States Code, to require greater transparency for 

Federal regulatory decisions that impact small businesses, and for other 

purposes. 

IN THE SENATE OF THE UNITED STATES 

MAY 3, 2023 

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

to the Committee on Homeland Security and Governmental Affairs 

A BILL 

To amend title 5, United States Code, to require greater 

transparency for Federal regulatory decisions that impact 

small businesses, 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, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Prove It Act of 2023’’. 

5 SEC. 2. INITIAL REGULATORY FLEXIBILITY ANALYSIS. 

6 (a) IN GENERAL.—Chapter 6 of title 5, United 

7 States Code, is amended— 

8 (1) in section 603(b)— 


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1 (A) in paragraph (5), by striking the pe2 riod at the end and inserting ‘‘; and’’; and 

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

4 ‘‘(6) where feasible, any reasonably foreseeable 

5 potential indirect costs the proposed rule may im6 pose on small entities, which shall include small enti7 ties that— 

8 ‘‘(A) purchase products or services from, 

9 sell products or services to, or otherwise con10 duct business with entities directly regulated by 

11 the rule; 

12 ‘‘(B) are directly regulated by other gov13 ernmental entities as a result of the rule; or 

14 ‘‘(C) are not directly regulated by the 

15 agency as a result of the rule but are otherwise 

16 subject to other agency rules as a result of the 

17 rule.’’; and 

18 (2) in section 605(b), by striking ‘‘The agency’’ 

19 and inserting ‘‘Not later than 10 days after com20 pleting the certification described in this paragraph, 

21 the agency’’; and 

22 (3) by inserting after section 605 the following: 


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1 ‘‘§ 605A. Review procedures relating to initial regu2 latory flexibility analysis certifications 

3 ‘‘(a) FILING A PETITION TO REVIEW AGENCY CER4 TIFICATION OF A PROPOSED RULE.— 

5 ‘‘(1) IN GENERAL.—Any small entity, group of 

6 small entities, or organization representing the inter7 ests of small entities may petition the Chief Counsel 

8 for Advocacy of the Small Business Administration 

9 (in this section referred to as the ‘Chief Counsel’) to 

10 review a certification published under section 605(b) 

11 that a proposed rule will not, if promulgated, have 

12 a significant economic impact on a substantial num13 ber of small entities. 

14 ‘‘(2) FORM.—The Chief Counsel shall— 

15 ‘‘(A) determine the method, timing, and 

16 form of disseminating a petition described in 

17 paragraph (1); and 

18 ‘‘(B) display the information described in 

19 subparagraph (A) on the website of the Office 

20 of Advocacy of the Small Business Administra21 tion in a conspicuous manner. 

22 ‘‘(3) CONTENTS.—Each petition described in 

23 paragraph (1) with respect to a certification pub24 lished under section 605(a) for a proposed rule shall 

25 clearly and concisely— 


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1 ‘‘(A) specify the name of the petitioner and 

2 a telephone number, a mailing address, and an 

3 email address that the Chief Counsel may use 

4 to communicate with the petitioner; 

5 ‘‘(B) if the petitioner is an organization, 

6 provide additional identifying information, as 

7 applicable, including the organizational or cor8 porate status of the petitioner, the State of in9 corporation of the petitioner, the registered 

10 agent of the petitioner, the interest of the peti11 tioner in representing small entities affected by 

12 the proposed rule and the certification at issue, 

13 and the name and authority of the individual 

14 who signed the petition on behalf of the organi15 zational or corporate petitioner; 

16 ‘‘(C) present the specific problems or 

17 issues that the petitioner believes should be ad18 dressed or considered through a review of the 

19 certification, such as— 

20 ‘‘(i) any specific circumstances in 

21 which the determination of the certification 

22 that the proposed rule will not, if promul23 gated, have a significant economic impact 

24 on a substantial number of small entities is 

25 incorrect, incomplete, or inadequate; and 


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1 ‘‘(ii) why the proposed rule would, if 

2 promulgated, have a significant economic 

3 impact on a substantial number of small 

4 entities; 

5 ‘‘(D) cite, enclose, or reference any rel6 evant and non-protected or confidential tech7 nical, scientific, or other data or information 

8 supporting any assertion of the problems or 

9 issues with the certification; 

10 ‘‘(E) present a proposed solution to the 

11 problems or issues raised in the petition, includ12 ing potential regulatory or compliance alter13 natives to the proposed rule; 

14 ‘‘(F) provide an analysis, discussion, or ar15 gument that explains how the proposed solution 

16 described in subparagraph (E) solves the prob17 lems or issues raised in the petition; and 

18 ‘‘(G) cite, enclose, or reference any other 

19 publicly available data or information sup20 porting the proposed solution described in sub21 paragraph (E). 

22 ‘‘(b) CONSULTATION.— 

23 ‘‘(1) IN GENERAL.—Any entity desiring to file 

24 a petition under subsection (a) may request a conVerDate Sep 11 2014 00:25 May 11, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1411.IS S1411

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1 sultation with the Chief Counsel before or after fil2 ing the petition. 

3 ‘‘(2) FORM.—The Chief Counsel shall— 

4 ‘‘(A) determine the method, timing, and 

5 form of requesting a consultation with the Chief 

6 Counsel under paragraph (1); and 

7 ‘‘(B) display the information described in 

8 subparagraph (A) on the website of the Office 

9 of Advocacy of the Small Business Administra10 tion in a conspicuous manner. 

11 ‘‘(3) LIMITATIONS ON ASSISTANCE.—In any 

12 consultation regarding a petition under paragraph 

13 (1), the Chief Counsel— 

14 ‘‘(A) may only— 

15 ‘‘(i) describe the process for filing, 

16 docketing, tracking, closing, amending, 

17 withdrawing, and resolving the petition; 

18 and 

19 ‘‘(ii) assist the petitioner to clarify the 

20 petition so that the Chief Counsel is able 

21 to understand the issues of concern to the 

22 petitioner; and 

23 ‘‘(B) may not advise a petitioner on wheth24 er the petition should be amended or with25 drawn. 


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1 ‘‘(c) PRIMA FACIE REVIEW.— 

2 ‘‘(1) IN GENERAL.—Upon receipt of a petition 

3 filed under this section with respect to the certifi4 cation of a proposed rule, the Chief Counsel shall 

5 make an initial prima facie determination on the 

6 merit of the issues raised in petition as to the 

7 properness of the certification and whether the pro8 posed rule in question would, if promulgated, have 

9 a significant economic impact on a substantial num10 ber of small entities. 

11 ‘‘(2) NO FURTHER REVIEW.—If, following the 

12 prima facie review of a petition under paragraph (1), 

13 the Chief Counsel determines that the issues raised 

14 in the petition do not merit further review by the 

15 Chief Counsel, the Chief Counsel shall, not later 

16 than 10 days after receipt of the petition, inform the 

17 petitioner of that determination and the matter shall 

18 be closed. 

19 ‘‘(3) FURTHER REVIEW.—If, following the 

20 prima facie review of a petition under paragraph (1), 

21 the Chief Counsel determines that the issues raised 

22 in the petition do merit further review by the Chief 

23 Counsel, the Chief Counsel shall, not later than 10 

24 days after receipt of the petition, inform the peti25 tioner and the agency that promulgated the proVerDate Sep 11 2014 00:25 May 11, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1411.IS S1411

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1 posed rule that the Chief Counsel shall conduct a 

2 full review of the certification and proposed rule to 

3 which the petition relates under subsection (d). 

4 ‘‘(d) FULL REVIEW.— 

5 ‘‘(1) CONSIDERATIONS; MEETING.—In con6 ducting a full review under this subsection with re7 spect to the certification made under section 605(b), 

8 the Chief Counsel shall— 

9 ‘‘(A) consider— 

10 ‘‘(i) whether the agency that promul11 gated the proposed rule correctly deter12 mined which small entities will be affected 

13 by the proposed rule; 

14 ‘‘(ii) whether the agency considered 

15 adequate economic data to assess whether 

16 the proposed rule will have a significant 

17 impact on a substantial number of small 

18 entities; and 

19 ‘‘(iii) the economic implications of the 

20 proposed rule; and 

21 ‘‘(B) convene a virtual or in-person meet22 ing between the Chief Counsel, the petitioner, 

23 representatives of the agency that promulgated 

24 the proposed rule who are determined appro25 priate by the Chief Counsel, and the AdminisVerDate Sep 11 2014 00:25 May 11, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1411.IS S1411

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1 trator of the Office of Information and Regu2 latory affairs to— 

3 ‘‘(i) provide positions and support for 

4 those positions regarding the certification 

5 of the proposed rule; and 

6 ‘‘(ii) allow the Chief Counsel to ask 

7 questions as the Chief Counsel determines 

8 necessary to make a final determination as 

9 to the validity of the certification. 

10 ‘‘(2) PUBLICATION.—Not later than 30 days 

11 after the date on which the Chief Counsel begins a 

12 full review of a certification made with respect to a 

13 proposed rule under paragraph (1), the Chief Coun14 sel shall submit to the petitioner and the agency that 

15 promulgated the proposed rule, and publish in the 

16 Federal Register and on the website of the Office of 

17 Advocacy of the Small Business Administration, the 

18 results of the review conducted under paragraph (1). 

19 ‘‘(3) REQUIREMENT TO PERFORM ANALYSES.— 

20 If, after a full review of a certification made with re21 spect to a proposed rule under paragraph (1), the 

22 Chief Counsel determines that the proposed rule 

23 will, if promulgated, have a significant economic im24 pact on a substantial number of small entities, the 

25 agency that promulgated the proposed rule shall perVerDate Sep 11 2014 00:25 May 11, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1411.IS S1411

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1 form an initial regulatory flexibility analysis and a 

2 final regulatory flexibility analysis for the proposed 

3 rule under sections 603 and 604, respectively. 

4 ‘‘(4) PENALTY.—If an agency fails to attend 

5 the required meeting under paragraph (1)(B) or in 

6 any other way fails to assist the Chief Counsel in a 

7 full review under paragraph (1) with respect to a 

8 proposed rule of the agency, as determined by the 

9 Chief Counsel, the final rule shall not apply to small 

10 entities. 

11 ‘‘(5) JUDICIAL REVIEW.—For purposes of judi12 cial review under chapter 7 of this title, a certifi13 cation made by an agency under section 605(b) for 

14 which a petition is filed under subsection (a) shall 

15 be considered final agency action as of the date on 

16 which the Chief Counsel— 

17 ‘‘(A) makes a determination under sub18 section (c)(2) that the issues raised in the peti19 tion do not merit further review; or 

20 ‘‘(B) publishes the results of a full review 

21 of the certification under paragraph (1).’’. 

22 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

23 The table of sections for chapter 6 of title 5, United States 

24 Code, is amended by inserting after the item relating to 

25 section 605 the following: 


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‘‘605A. Review procedures relating to initial regulatory flexibility analysis certifications.’’. 

1 SEC. 3. PUBLICATION OF GUIDANCE. 

2 Section 609 of title 5, United States Code, is amend3 ed by adding at the end the following: 

4 ‘‘(f) With respect to any rule that an agency deter5 mines is likely to have a significant economic impact on 

6 a substantial number of small entities, the head of the 

7 agency shall, on regulations.gov or any similar internet 

8 website— 

9 ‘‘(1) publish all guidance documents and other 

10 relevant documents, as determined by the agency, 

11 including any updated guidance documents that set 

12 forth interpretations of the rule; and 

13 ‘‘(2) allow for comments on the documents de14 scribed in paragraph (1) to ensure that small enti15 ties may access and provide feedback on those docu16 ments.’’. 

17 SEC. 4. REVIEW PROCEDURES FOR SECTION 610 PERIODIC 

18 REVIEW OF RULES. 

19 (a) IN GENERAL.—Section 610 of title 5, United 

20 States Code, is amended— 

21 (1) in subsection (b)— 

22 (A) in the matter preceding paragraph (1), 

23 by striking ‘‘the following factors’’; 


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1 (B) in paragraph (4), by striking ‘‘and’’ at 

2 the end; 

3 (C) in paragraph (5), by striking the pe4 riod at the end and inserting ‘‘; and’’; and 

5 (D) by adding at the end the following: 

6 ‘‘(6) any indirect costs described in the initial 

7 regulatory flexibility analysis under section 

8 603(b)(6), and any other indirect costs that may 

9 have arisen during the 10-year period described in 

10 subsection (a).’’; and 

11 (2) by adding at the end the following: 

12 ‘‘(d) If an agency fails to conduct a review of a rule 

13 as required under this section within the 10-year period 

14 described in subsection (a)— 

15 ‘‘(1) the Chief Counsel for Advocacy of the 

16 Small Business Administration shall notify the agen17 cy that the rule has ceased to be effective; 

18 ‘‘(2) the agency shall publish in the Federal 

19 Register a notification that the rule has ceased to be 

20 effective, and solicit comments for why the rule 

21 should be reinstated; and 

22 ‘‘(3) if, based on the comments received under 

23 paragraph (2), the agency determines that the rule 

24 should be reinstated— 


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1 ‘‘(A) the agency shall have 180 days begin2 ning on the date of that determination to com3 plete the review of the rule under this section; 

4 and 

5 ‘‘(B) upon completion of the review under 

6 subparagraph (A), the rule shall be reinstated, 

7 notwithstanding the notice and comment rule8 making procedures under section 553 of this 

9 title.’’. 

10 (b) APPLICATION.—The amendment made by sub11 section (a)(2) shall apply with respect to any final rule 

12 issued by an agency— 

13 (1) during the 5-year period preceding the date 

14 of enactment of this Act; or 

15 (2) on or after the date of enactment of this 

16 Act. 

Æ 


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