II 

112TH CONGRESS 

2D SESSION S. 3468 

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 

AUGUST 1, 2012 

Mr. PORTMAN (for himself, Mr. WARNER, and Ms. COLLINS) introduced the 

following bill; which was read twice and referred to the Committee on 

Homeland Security and Governmental Affairs 

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, 

3 SECTION 1. SHORT TITLE. 

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

5 Regulatory Analysis Act of 2012’’. 

6 SEC. 2. DEFINITIONS. 

7 In this Act— 


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1 (1) the term ‘‘Administrator’’ means the Ad2 ministrator of the Office of Information and Regu3 latory Affairs; 

4 (2) the term ‘‘agency’’ has the same meaning as 

5 in section 3502(1) of title 44, United States Code; 

6 (3) the term ‘‘independent regulatory agency’’ 

7 has the same meaning as in section 3502(5) of title 

8 44, United States Code; 

9 (4) the term ‘‘rule’’— 

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

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

12 and 

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

14 of Governors of the Federal Reserve System or 

15 the Federal Open Market Committee relating to 

16 monetary policy; and 

17 (5) the term ‘‘significant rule’’ means any rule 

18 that the Administrator determines is likely to— 

19 (A) have an annual effect on the economy 

20 of $100,000,000 or more; 

21 (B) adversely affect in a material way the 

22 economy, a sector of the economy, productivity, 

23 competition, jobs, the environment, public 

24 health or safety, or State, local, or tribal gov25 ernments or communities; or 


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1 (C) create a serious inconsistency or other2 wise interfere with an action taken or planned 

3 by another agency. 

4 SEC. 3. REGULATORY ANALYSIS BY INDEPENDENT AGEN5 CIES. 

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

7 order require an independent regulatory agency to comply, 

8 to the extent permitted by law, with regulatory analysis 

9 requirements applicable to other agencies, including the 

10 requirements to— 

11 (1) identify the problem that the agency intends 

12 to address by a new rule (including, where applica13 ble, the failures of private markets or public institu14 tions that warrant new agency action) and assess 

15 the significance 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 Mar 15 2010 05:47 Aug 02, 2012 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S3468.IS S3468

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1 viding information upon which choices can be made 

2 by the public; 

3 (4) consider, in setting regulatory priorities and 

4 to the extent reasonable, the degree and nature of 

5 the risks posed by various substances or activities 

6 within 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 

11 compliance (to the Federal Government, regulated 

12 entities, and the public), flexibility, distributive im13 pacts, 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 

18 the rule justify its costs; 

19 (7) base its rulemaking decisions on the best 

20 reasonably obtainable scientific, technical, economic, 

21 and other information concerning the need for, and 

22 consequences of, the intended rule; 

23 (8) identify and assess alternative forms of reg24 ulation and, to the extent feasible, specify perform25 ance objectives, rather than specifying the behavior 


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1 or manner of compliance that regulated entities 

2 must adopt; 

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

4 and tribal officials before imposing regulatory re5 quirements that might significantly or uniquely af6 fect State, local, or tribal governmental entities, 

7 whenever feasible; 

8 (10) avoid rules that are inconsistent or incom9 patible with, or duplicative of, other rules of the 

10 independent 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 commu14 nities and governmental entities), consistent with 

15 achieving the regulatory objectives, and taking into 

16 account, among other factors, and to the extent 

17 practicable, the cost of cumulative rules; 

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

19 understand, with the goal of minimizing the poten20 tial for uncertainty and litigation arising from un21 certainty; and 

22 (13) periodically review its existing significant 

23 rules to determine whether any such rules should be 

24 modified, streamlined, expanded, or repealed so as to 

25 make the agency’s regulatory program more effective 


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1 or less burdensome in achieving the regulatory objec2 tives. 

3 (b) ECONOMICALLY SIGNIFICANT RULES.—For any 

4 proposed or final rule identified by an independent regu5 latory agency as, or determined by the Administrator to 

6 be, a significant rule described in subparagraph (A) or (B) 

7 of section 2(5), the President may by Executive order re8 quire the independent regulatory agency to provide to the 

9 Administrator the following information, to the extent per10 mitted by law: 

11 (1) An assessment, including the underlying 

12 analysis, of benefits anticipated from the rule to13 gether with, to the extent feasible, a quantification 

14 of those benefits. 

15 (2) An assessment, including the underlying 

16 analysis, of costs anticipated from the rule together 

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

18 costs. 

19 (3) An assessment, including the underlying 

20 analysis, of costs and benefits of potentially effective 

21 and reasonably feasible alternatives to the rule, iden22 tified by the agencies or the public, including im23 proving existing regulations and reasonable non24 regulatory actions, and an explanation why the 


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1 planned regulatory action is preferable to the identi2 fied potential alternatives. 

3 (c) REVIEW BY OFFICE OF INFORMATION AND REGU4 LATORY AFFAIRS.— 

5 (1) REQUIREMENT TO SEEK REVIEW.—The 

6 President may, by Executive order, require an inde7 pendent regulatory agency to submit to the Adminis8 trator for review— 

9 (A) any proposed significant rule, prior to 

10 publication of the notice of proposed rule11 making; and 

12 (B) any final significant rule, prior to pub13 lication of the final rule. 

14 (2) NONBINDING ASSESSMENT.—An Executive 

15 order issued under this Act may require that, not 

16 later than 90 days after the independent regulatory 

17 agency submits a proposed or final significant rule 

18 for review, the Administrator submit for inclusion in 

19 the rulemaking record the Administrator’s assess20 ment of the extent to which the agency has complied 

21 with the regulatory analysis requirements made ap22 plicable by Executive order. 

23 (3) DETERMINATION AND EXPLANATION BY

24 INDEPENDENT AGENCY.—An Executive order issued 

25 under this Act may require that, if the AdminisVerDate Mar 15 2010 05:47 Aug 02, 2012 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S3468.IS S3468

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1 trator concludes under paragraph (2) that the inde2 pendent regulatory agency did not comply with one 

3 or more requirements of the Executive order with re4 spect to a proposed or final significant rule, the head 

5 of the agency that issued the significant rule shall 

6 include with the proposed and final significant 

7 rule— 

8 (A) a determination that the rule complies 

9 with the requirements and an explanation of 

10 that determination; 

11 (B) if applicable, an explanation why the 

12 independent regulatory agency did not comply 

13 with one or more of the requirements, based on 

14 the statutory provision authorizing the rule; and 

15 (C) a clear statement of the issues on 

16 which the agency agrees or disagrees with the 

17 Administrator’s assessment of the rule. 

18 SEC. 4. LIMITATION ON JUDICIAL REVIEW. 

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

20 of an independent regulatory agency with the require21 ments of an Executive order issued under this Act shall 

22 not be subject to judicial review. 

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

24 review of a rule promulgated by an independent regulatory 

25 agency is instituted, any determination, analysis, or explaVerDate Mar 15 2010 05:47 Aug 02, 2012 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S3468.IS S3468

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1 nation produced by the agency, and any assessment pro2 duced by the Administrator, pursuant to an Executive 

3 order issued under this Act, shall constitute part of the 

4 whole record of agency action in connection with the re5 view. 

6 (c) RULE OF CONSTRUCTION.—Nothing in this sec7 tion shall be construed to bar judicial review of any other 

8 impact statement or similar analysis required by any other 

9 provision of law if judicial review of such statement or 

10 analysis is otherwise permitted by law. 

11 SEC. 5. RULE OF CONSTRUCTION. 

12 Nothing in this Act shall be construed to limit the 

13 authority of the President with respect to independent reg14 ulatory agencies under any other applicable law. 

Æ 


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