II 

112TH CONGRESS 

1ST SESSION S. 474 

To reform the regulatory process to ensure that small businesses are free 

to compete and to create jobs, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MARCH 3, 2011 

Ms. SNOWE (for herself, Mr. COBURN, Ms. AYOTTE, Mr. ENZI, and Mr. 

BROWN of Massachusetts) introduced the following bill; which was read 

twice and referred to the Committee on Homeland Security and Governmental Affairs 

A BILL 

To reform the regulatory process to ensure that small businesses are free to compete and to create jobs, 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; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Small Business Regulatory Freedom Act of 2011’’. 

6 (b) TABLE OF CONTENTS.—The table of contents of 

7 this Act is as follows: 

Sec. 1. Short title; table of contents. 

Sec. 2. Findings. 

Sec. 3. Including indirect economic impact in small entity analyses. 


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Sec. 4. Judicial review to allow small entities to challenge proposed regulations. 

Sec. 5. Periodic review and sunset of existing rules. 

Sec. 6. Requiring small business review panels for all agencies. 

Sec. 7. Expanding the Regulatory Flexibility Act to agency guidance documents. 

Sec. 8. Requiring the Internal Revenue Service to consider small entity impact. 

Sec. 9. Mitigating penalties on small entities. 

Sec. 10. Requiring more detailed small entity analyses. 

Sec. 11. Ensuring that agencies consider small entity impact during the rulemaking process. 

Sec. 12. Qualifications of the Chief Counsel for Advocacy and authority for the 

Office of Advocacy . 

Sec. 13. Technical and conforming amendments. 

1 SEC. 2. FINDINGS. 

2 Congress finds the following: 

3 (1) A vibrant and growing small business sector 

4 is critical to the recovery of the economy of the 

5 United States. 

6 (2) Regulations designed for application to 

7 large-scale entities have been applied uniformly to 

8 small businesses and other small entities, sometimes 

9 inhibiting the ability of small entities to create new 

10 jobs. 

11 (3) Uniform Federal regulatory and reporting 

12 requirements in many instances have imposed on 

13 small businesses and other small entities unneces14 sary and disproportionately burdensome demands, 

15 including legal, accounting, and consulting costs, 

16 thereby threatening the viability of small entities 

17 and the ability of small entities to compete and cre18 ate new jobs in a global marketplace. 


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1 (4) Since 1980, Federal agencies have been re2 quired to recognize and take account of the dif3 ferences in the scale and resources of regulated enti4 ties, but in many instances have failed to do so. 

5 (5) In 2009, there were nearly 70,000 pages in 

6 the Federal Register, and, according to research by 

7 the Office of Advocacy of the Small Business Admin8 istration, the annual cost of Federal regulations to9 tals $1,750,000,000,000. Small firms bear a dis10 proportionate burden, paying approximately 36 per11 cent more per employee than larger firms in annual 

12 regulatory compliance costs. 

13 (6) All agencies in the Federal Government 

14 should fully consider the costs, including indirect 

15 economic impacts and the potential for job creation 

16 and job loss, of proposed rules, periodically review 

17 existing regulations to determine their impact on 

18 small entities, and repeal regulations that are unnec19 essarily duplicative or have outlived their stated pur20 pose. 

21 (7) It is the intention of Congress to amend 

22 chapter 6 of title 5, United States Code, to ensure 

23 that all impacts, including foreseeable indirect ef24 fects, of proposed and final rules are considered by 

25 agencies during the rulemaking process and that the 


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1 agencies assess a full range of alternatives that will 

2 limit adverse economic consequences, enhance eco3 nomic benefits, and fully address potential job cre4 ation or job loss. 

5 SEC. 3. INCLUDING INDIRECT ECONOMIC IMPACT IN 

6 SMALL ENTITY ANALYSES. 

7 Section 601 of title 5, United States Code, is amend8 ed by adding at the end the following: 

9 ‘‘(9) the term ‘economic impact’ means, with 

10 respect to a proposed or final rule— 

11 ‘‘(A) any direct economic effect of the rule 

12 on small entities; and 

13 ‘‘(B) any indirect economic effect on small 

14 entities, including potential job creation or job 

15 loss, that is reasonably foreseeable and that re16 sults from the rule, without regard to whether 

17 small entities are directly regulated by the 

18 rule.’’. 

19 SEC. 4. JUDICIAL REVIEW TO ALLOW SMALL ENTITIES TO 

20 CHALLENGE PROPOSED REGULATIONS. 

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

22 amended— 

23 (1) in paragraph (1), by inserting ‘‘603,’’ after 

24 ‘‘601,’’; 


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1 (2) in paragraph (2), by inserting ‘‘603,’’ after 

2 ‘‘601,’’; 

3 (3) by striking paragraph (3) and inserting the 

4 following: 

5 ‘‘(3) A small entity may seek such review during the 

6 1-year period beginning on the date of final agency action, 

7 except that— 

8 ‘‘(A) if a provision of law requires that an ac9 tion challenging a final agency action be commenced 

10 before the expiration of 1 year, the lesser period 

11 shall apply to an action for judicial review under this 

12 section; and 

13 ‘‘(B) in the case of noncompliance with section 

14 603 or 605(b), a small entity may seek judicial re15 view of agency compliance with such section before 

16 the close of the public comment period.’’; and 

17 (4) in paragraph (4)— 

18 (A) in subparagraph (A), by striking ‘‘, 

19 and’’ and inserting a semicolon; 

20 (B) in subparagraph (B), by striking the 

21 period and inserting ‘‘; or’’; and 

22 (C) by adding at the end the following: 

23 ‘‘(C) issuing an injunction prohibiting an agen24 cy from taking any agency action with respect to a 


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1 rulemaking until that agency is in compliance with 

2 the requirements of section 603 or 605.’’. 

3 SEC. 5. PERIODIC REVIEW AND SUNSET OF EXISTING 

4 RULES. 

5 Section 610 of title 5, United States Code, is amend6 ed to read as follows: 

7 ‘‘§ 610. Periodic review of rules 

8 ‘‘(a)(1) Not later than 180 days after the date of en9 actment of the Small Business Regulatory Freedom Act 

10 of 2011, each agency shall establish a plan for the periodic 

11 review of— 

12 ‘‘(A) each rule issued by the agency that the 

13 head of the agency determines has a significant eco14 nomic impact on a substantial number of small enti15 ties, without regard to whether the agency per16 formed an analysis under section 604 with respect to 

17 the rule; and 

18 ‘‘(B) any small entity compliance guide required 

19 to be published by the agency under section 212 of 

20 the Small Business Regulatory Enforcement Fair21 ness Act of 1996 (5 U.S.C. 601 note). 

22 ‘‘(2) In reviewing rules and small entity compliance 

23 guides under paragraph (1), the agency shall determine 

24 whether the rules and guides should— 


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1 ‘‘(A) be amended or rescinded, consistent with 

2 the stated objectives of applicable statutes, to mini3 mize any significant adverse economic impacts on a 

4 substantial number of small entities (including an 

5 estimate of any adverse impacts on job creation and 

6 employment by small entities); or 

7 ‘‘(B) continue in effect without change. 

8 ‘‘(3) Each agency shall publish the plan established 

9 under paragraph (1) in the Federal Register and on the 

10 Web site of the agency. 

11 ‘‘(4) An agency may amend the plan established 

12 under paragraph (1) at any time by publishing the amend13 ment in the Federal Register and on the Web site of the 

14 agency. 

15 ‘‘(b)(1) Each plan established under subsection (a) 

16 shall provide for— 

17 ‘‘(A) the review of each rule and small entity 

18 compliance guide described in subsection (a)(1) in 

19 effect on the date of enactment of the Small Busi20 ness Regulatory Freedom Act of 2011— 

21 ‘‘(i) not later than 8 years after the date 

22 of publication of the plan in the Federal Reg23 ister; and 

24 ‘‘(ii) every 8 years thereafter; and 


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1 ‘‘(B) the review of each rule adopted and small 

2 entity compliance guide described in subsection 

3 (a)(1) that is published after the date of enactment 

4 of the Small Business Regulatory Freedom Act of 

5 2011— 

6 ‘‘(i) not later than 8 years after the publi7 cation of the final rule in the Federal Register; 

8 and 

9 ‘‘(ii) every 8 years thereafter. 

10 ‘‘(2)(A) If an agency determines that the review of 

11 the rules and guides described in paragraph (1)(A) cannot 

12 be completed before the date described in paragraph 

13 (1)(A)(i), the agency— 

14 ‘‘(i) shall publish a statement in the Federal 

15 Register certifying that the review cannot be com16 pleted; and 

17 ‘‘(ii) may extend the period for the review of 

18 the rules and guides described in paragraph (1)(A) 

19 for a period of not more than 2 years, if the agency 

20 publishes notice of the extension in the Federal Reg21 ister. 

22 ‘‘(B) An agency shall transmit to the Chief Counsel 

23 for Advocacy of the Small Business Administration and 

24 Congress notice of any statement or notice described in 

25 subparagraph (A). 


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1 ‘‘(c) In reviewing rules under the plan required under 

2 subsection (a), the agency shall consider— 

3 ‘‘(1) the continued need for the rule; 

4 ‘‘(2) the nature of complaints received by the 

5 agency from small entities concerning the rule; 

6 ‘‘(3) comments by the Regulatory Enforcement 

7 Ombudsman and the Chief Counsel for Advocacy of 

8 the Small Business Administration; 

9 ‘‘(4) the complexity of the rule; 

10 ‘‘(5) the extent to which the rule overlaps, du11 plicates, or conflicts with other Federal rules and, 

12 unless the head of the agency determines it to be in13 feasible, State and local rules; 

14 ‘‘(6) the contribution of the rule to the cumu15 lative economic impact of all Federal rules on the 

16 class of small entities affected by the rule, unless the 

17 head of the agency determines that such a calcula18 tion cannot be made; 

19 ‘‘(7) the length of time since the rule has been 

20 evaluated, or the degree to which technology, eco21 nomic conditions, or other factors have changed in 

22 the area affected by the rule; and 

23 ‘‘(8) the impact of the rule, including— 

24 ‘‘(A) the estimated number of small enti25 ties to which the rule will apply; 


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1 ‘‘(B) the estimated number of small entity 

2 jobs that will be lost or created due to the rule; 

3 and 

4 ‘‘(C) the projected reporting, record5 keeping, and other compliance requirements of 

6 the proposed rule, including— 

7 ‘‘(i) an estimate of the classes of small 

8 entities that will be subject to the require9 ment; and 

10 ‘‘(ii) the type of professional skills 

11 necessary for preparation of the report or 

12 record. 

13 ‘‘(d)(1) Each agency shall submit an annual report 

14 regarding the results of the review required under sub15 section (a) to— 

16 ‘‘(A) Congress; and 

17 ‘‘(B) in the case of an agency that is not an 

18 independent regulatory agency (as defined in section 

19 3502(5) of title 44), the Administrator of the Office 

20 of Information and Regulatory Affairs of the Office 

21 of Management and Budget. 

22 ‘‘(2) Each report required under paragraph (1) shall 

23 include a description of any rule or guide with respect to 

24 which the agency made a determination of infeasibility 

25 under paragraph (5) or (6) of subsection (c), together with 


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1 a detailed explanation of the reasons for the determina2 tion. 

3 ‘‘(e) Each agency shall publish in the Federal Reg4 ister and on the Web site of the agency a list of the rules 

5 and small entity compliance guides to be reviewed under 

6 the plan required under subsection (a) that includes— 

7 ‘‘(1) a brief description of each rule or guide; 

8 ‘‘(2) for each rule, the reason why the head of 

9 the agency determined that the rule has a significant 

10 economic impact on a substantial number of small 

11 entities (without regard to whether the agency had 

12 prepared a final regulatory flexibility analysis for the 

13 rule); and 

14 ‘‘(3) a request for comments from the public, 

15 the Chief Counsel for Advocacy of the Small Busi16 ness Administration, and the Regulatory Enforce17 ment Ombudsman concerning the enforcement of the 

18 rules or publication of the guides. 

19 ‘‘(f)(1) With respect to each agency, not later than 

20 6 months after each date described in subsection (b)(1), 

21 the Chief Counsel for Advocacy of the Small Business Ad22 ministration shall determine whether the agency has com23 pleted the review required under subsection (b). 

24 ‘‘(2) If, after a review under paragraph (1), the Chief 

25 Counsel for Advocacy of the Small Business AdministraVerDate Mar 15 2010 05:38 Mar 04, 2011 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S474.IS S474

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1 tion determines that an agency has failed to complete the 

2 review required under subsection (b), each rule issued by 

3 the agency that the head of the agency determined under 

4 subsection (a) has a significant economic impact on a sub5 stantial number of small entities shall immediately cease 

6 to have effect.’’. 

7 SEC. 6. REQUIRING SMALL BUSINESS REVIEW PANELS FOR 

8 ALL AGENCIES. 

9 (a) AGENCIES.—Section 609 of title 5, United States 

10 Code, is amended— 

11 (1) in subsection (b), by striking ‘‘a covered 

12 agency’’ each place it appears and inserting ‘‘an 

13 agency’’; and 

14 (2) in subsection (e)(1), by striking ‘‘the cov15 ered agency’’ and inserting ‘‘the agency’’. 

16 (b) TECHNICAL AND CONFORMING AMENDMENTS.— 

17 (1) SECTION 609.—Section 609 of title 5, 

18 United States Code, is amended— 

19 (A) by striking subsection (d), as amended 

20 by section 1100G(a) of Public Law 111–203 

21 (124 Stat. 2112); and 

22 (B) by redesignating subsection (e) as sub23 section (d). 

24 (2) SECTION 603.—Section 603(d) of title 5, 

25 United States Code, as added by section 1100G(b) 


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1 of Public Law 111–203 (124 Stat. 2112), is amend2 ed— 

3 (A) in paragraph (1), by striking ‘‘a cov4 ered agency, as defined in section 609(d)(2)’’ 

5 and inserting ‘‘the Bureau of Consumer Finan6 cial Protection’’; and 

7 (B) in paragraph (2), by striking ‘‘A cov8 ered agency, as defined in section 609(d)(2),’’ 

9 and inserting ‘‘The Bureau of Consumer Finan10 cial Protection’’. 

11 (3) SECTION 604.—Section 604(a) of title 5, 

12 United States Code, is amended— 

13 (A) by redesignating the second paragraph 

14 designated as paragraph (6) (relating to cov15 ered agencies), as added by section 1100G(c)(3) 

16 of Public Law 111–203 (124 Stat. 2113), as 

17 paragraph (7); and 

18 (B) in paragraph (7), as so redesignated— 

19 (i) by striking ‘‘a covered agency, as 

20 defined in section 609(d)(2)’’ and inserting 

21 ‘‘the Bureau of Consumer Financial Pro22 tection’’; and 

23 (ii) by striking ‘‘the agency’’ and in24 serting ‘‘the Bureau’’. 


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1 (4) EFFECTIVE DATE.—The amendments made 

2 by this subsection shall take effect on the date of en3 actment of this Act and apply on and after the des4 ignated transfer date established under section 1062 

5 of Public Law 111–203 (12 U.S.C. 5582). 

6 SEC. 7. EXPANDING THE REGULATORY FLEXIBILITY ACT TO 

7 AGENCY GUIDANCE DOCUMENTS. 

8 Section 601(2) of title 5, United States Code, is 

9 amended by inserting after ‘‘public comment’’ the fol10 lowing: ‘‘and any significant guidance document, as de11 fined in the Office of Management and Budget Final Bul12 letin for Agency Good Guidance Procedures (72 Fed. Reg. 

13 3432; January 25, 2007)’’. 

14 SEC. 8. REQUIRING THE INTERNAL REVENUE SERVICE TO 

15 CONSIDER SMALL ENTITY IMPACT. 

16 (a) IN GENERAL.—Section 603(a) of title 5, United 

17 States Code, is amended, in the fifth sentence, by striking 

18 ‘‘but only’’ and all that follows through the period at the 

19 end and inserting ‘‘but only to the extent that such inter20 pretative rules, or the statutes upon which such rules are 

21 based, impose on small entities a collection of information 

22 requirement or a recordkeeping requirement.’’. 

23 (b) DEFINITIONS.—Section 601 of title 5, United 

24 States Code, as amended by section 3 of this Act, is 

25 amended— 


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1 (1) in paragraph (6), by striking ‘‘and’’ at the 

2 end; and 

3 (2) by striking paragraphs (7) and (8) and in4 serting the following: 

5 ‘‘(7) the term ‘collection of information’ has the 

6 meaning given that term in section 3502(3) of title 

7 44; 

8 ‘‘(8) the term ‘recordkeeping requirement’ has 

9 the meaning given that term in section 3502(13) of 

10 title 44; and’’. 

11 SEC. 9. MITIGATING PENALTIES ON SMALL ENTITIES. 

12 Section 223 of the Small Business Regulatory En13 forcement Fairness Act of 1996 (Public Law 104–121; 

14 110 Stat. 862) is amended by adding at the end the fol15 lowing: 

16 ‘‘(d) REVIEW OF POLICIES AND PROGRAMS.— 

17 ‘‘(1) REVIEW REQUIRED.—Not later than 6 

18 months after the date of enactment of this sub19 section, and every 2 years thereafter, each agency 

20 regulating the activities of small entities shall review 

21 the policy or program established by the agency 

22 under subsection (a) and make any modifications to 

23 the policy or program necessary to comply with the 

24 requirements under this section. 


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1 ‘‘(2) REPORT.—Not later than 6 months after 

2 the date of enactment of this subsection, and every 

3 2 years thereafter, each agency described in para4 graph (1) shall submit a report on the review and 

5 modifications required under paragraph (1) to— 

6 ‘‘(A) the Committee on Small Business 

7 and Entrepreneurship and the Committee on 

8 Homeland Security and Governmental Affairs 

9 of the Senate; and 

10 ‘‘(B) the Committee on Small Business 

11 and the Committee on the Judiciary of the 

12 House of Representatives.’’. 

13 SEC. 10. REQUIRING MORE DETAILED SMALL ENTITY ANAL14 YSES. 

15 (a) INITIAL REGULATORY FLEXIBILITY ANALYSIS.— 

16 Section 603 of title 5, United States Code, as amended 

17 by section 1100G(b) of Public Law 111–203 (124 Stat. 

18 2112), is amended— 

19 (1) by striking subsection (b) and inserting the 

20 following: 

21 ‘‘(b) Each initial regulatory flexibility analysis re22 quired under this section shall contain a detailed state23 ment— 

24 ‘‘(1) describing the reasons why action by the 

25 agency is being considered; 


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1 ‘‘(2) describing the objectives of, and legal basis 

2 for, the proposed rule; 

3 ‘‘(3) estimating the number and type of small 

4 entities to which the proposed rule will apply; 

5 ‘‘(4) describing the projected reporting, record6 keeping, and other compliance requirements of the 

7 proposed rule, including an estimate of the classes of 

8 small entities which will be subject to the require9 ment and the type of professional skills necessary 

10 for preparation of the report and record; 

11 ‘‘(5) describing all relevant Federal rules which 

12 may duplicate, overlap, or conflict with the proposed 

13 rule, or the reasons why such a description could not 

14 be provided; and 

15 ‘‘(6) estimating the additional cumulative eco16 nomic impact of the proposed rule on small entities, 

17 including job creation and employment by small enti18 ties, beyond that already imposed on the class of 

19 small entities by the agency, or the reasons why 

20 such an estimate is not available.’’; and 

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

22 ‘‘(e) An agency shall notify the Chief Counsel for Ad23 vocacy of the Small Business Administration of any draft 

24 rules that may have a significant economic impact on a 

25 substantial number of small entities— 


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1 ‘‘(1) when the agency submits a draft rule to 

2 the Office of Information and Regulatory Affairs of 

3 the Office of Management and Budget under Execu4 tive Order 12866, if that order requires the submis5 sion; or 

6 ‘‘(2) if no submission to the Office of Informa7 tion and Regulatory Affairs is required— 

8 ‘‘(A) a reasonable period before publication 

9 of the rule by the agency; and 

10 ‘‘(B) in any event, not later than 3 months 

11 before the date on which the agency publishes 

12 the rule.’’. 

13 (b) FINAL REGULATORY FLEXIBILITY ANALYSIS.— 

14 (1) IN GENERAL.—Section 604(a) of title 5, 

15 United States Code, is amended— 

16 (A) by inserting ‘‘detailed’’ before ‘‘de17 scription’’ each place it appears; 

18 (B) in paragraph (2)— 

19 (i) by inserting ‘‘detailed’’ before 

20 ‘‘statement’’ each place it appears; and 

21 (ii) by inserting ‘‘(or certification of 

22 the proposed rule under section 605(b))’’ 

23 after ‘‘initial regulatory flexibility anal24 ysis’’; 


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1 (C) in paragraph (4), by striking ‘‘an ex2 planation’’ and inserting ‘‘a detailed expla3 nation’’; and 

4 (D) in paragraph (6) (relating to a de5 scription of steps taken to minimize significant 

6 economic impact), as added by section 1601 of 

7 the Small Business Jobs Act of 2010 (Public 

8 Law 111–240; 124 Stat. 2251), by inserting 

9 ‘‘detailed’’ before ‘‘statement’’. 

10 (2) PUBLICATION OF ANALYSIS ON WEB SITE, 

11 ETC.—Section 604(b) of title 5, United States Code, 

12 is amended to read as follows: 

13 ‘‘(b) The agency shall— 

14 ‘‘(1) make copies of the final regulatory flexi15 bility analysis available to the public, including by 

16 publishing the entire final regulatory flexibility anal17 ysis on the Web site of the agency; and 

18 ‘‘(2) publish in the Federal Register the final 

19 regulatory flexibility analysis, or a summary of the 

20 analysis that includes the telephone number, mailing 

21 address, and address of the Web site where the com22 plete final regulatory flexibility analysis may be ob23 tained.’’. 


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1 (c) CROSS-REFERENCES TO OTHER ANALYSES.— 

2 Section 605(a) of title 5, United States Code, is amended 

3 to read as follows: 

4 ‘‘(a) A Federal agency shall be deemed to have satis5 fied a requirement regarding the content of a regulatory 

6 flexibility agenda or regulatory flexibility analysis under 

7 section 602, 603, or 604, if the Federal agency provides 

8 in the agenda or regulatory flexibility analysis a cross-ref9 erence to the specific portion of an agenda or analysis that 

10 is required by another law and that satisfies the require11 ment under section 602, 603, or 604.’’. 

12 (d) CERTIFICATIONS.—Section 605(b) of title 5, 

13 United States Code, is amended, in the second sentence, 

14 by striking ‘‘statement providing the factual’’ and insert15 ing ‘‘detailed statement providing the factual and legal’’. 

16 (e) QUANTIFICATION REQUIREMENTS.—Section 607 

17 of title 5, United States Code, is amended to read as fol18 lows: 

19 ‘‘§ 607. Quantification requirements 

20 ‘‘In complying with sections 603 and 604, an agency 

21 shall provide— 

22 ‘‘(1) a quantifiable or numerical description of 

23 the effects of the proposed or final rule, including an 

24 estimate of the potential for job creation or job loss, 

25 and alternatives to the proposed or final rule; or 


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1 ‘‘(2) a more general descriptive statement re2 garding the potential for job creation or job loss and 

3 a detailed statement explaining why quantification 

4 under paragraph (1) is not practicable or reliable.’’. 

5 SEC. 11. ENSURING THAT AGENCIES CONSIDER SMALL EN6 TITY IMPACT DURING THE RULEMAKING 

7 PROCESS. 

8 Section 605(b) of title 5, United States Code, is 

9 amended— 

10 (1) by inserting ‘‘(1)’’ after ‘‘(b)’’; and 

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

12 ‘‘(2) If, after publication of the certification required 

13 under paragraph (1), the head of the agency determines 

14 that there will be a significant economic impact on a sub15 stantial number of small entities, the agency shall comply 

16 with the requirements of section 603 before the publica17 tion of the final rule, by— 

18 ‘‘(A) publishing an initial regulatory flexibility 

19 analysis for public comment; or 

20 ‘‘(B) re-proposing the rule with an initial regu21 latory flexibility analysis. 

22 ‘‘(3) The head of an agency may not make a certifi23 cation relating to a rule under this subsection, unless the 

24 head of the agency has determined— 


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1 ‘‘(A) the average cost of the rule for small enti2 ties affected or reasonably presumed to be affected 

3 by the rule; 

4 ‘‘(B) the number of small entities affected or 

5 reasonably presumed to be affected by the rule; and 

6 ‘‘(C) the number of affected small entities for 

7 which that cost will be significant. 

8 ‘‘(4) Before publishing a certification and a state9 ment providing the factual basis for the certification under 

10 paragraph (1), the head of an agency shall— 

11 ‘‘(A) transmit a copy of the certification and 

12 statement to the Chief Counsel for Advocacy of the 

13 Small Business Administration; and 

14 ‘‘(B) consult with the Chief Counsel for Advo15 cacy of the Small Business Administration on the 

16 accuracy of the certification and statement.’’. 

17 SEC. 12. QUALIFICATIONS OF THE CHIEF COUNSEL FOR AD18 VOCACY AND AUTHORITY FOR THE OFFICE 

19 OF ADVOCACY. 

20 (a) QUALIFICATIONS OF CHIEF COUNSEL FOR ADVO21 CACY.—Section 201 of Public Law 94–305 (15 U.S.C. 

22 634a) is amended by adding at the end the following: 

23 ‘‘The Chief Counsel for Advocacy shall be an attorney with 

24 business experience and expertise in or knowledge of the 

25 regulatory process.’’. 


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1 (b) ADDITIONAL POWERS OF OFFICE OF ADVO2 CACY.—Section 203 of Public Law 94–305 (15 U.S.C. 

3 634c) is amended— 

4 (1) in paragraph (5), by striking ‘‘and’’ at the 

5 end; 

6 (2) in paragraph (6), by striking the period at 

7 the end and inserting ‘‘; and’’; and 

8 (3) by inserting after paragraph (6) the fol9 lowing: 

10 ‘‘(7) at the discretion of the Chief Counsel for 

11 Advocacy, comment on regulatory action by an agen12 cy that affects small businesses, without regard to 

13 whether the agency is required to file a notice of 

14 proposed rulemaking under section 553 of title 5, 

15 United States Code, with respect to the action.’’. 

16 SEC. 13. TECHNICAL AND CONFORMING AMENDMENTS. 

17 (a) HEADING.—Section 605 of title 5, United States 

18 Code, is amended in the section heading by striking 

19 ‘‘Avoidance’’ and all that follows and inserting the fol20 lowing: ‘‘Incorporations by reference and cer21 tification.’’. 

22 (b) TABLE OF SECTIONS.—The table of sections for 

23 chapter 6 of title 5, United States Code, is amended— 

24 (1) by striking the item relating to section 605 

25 and inserting the following: 

‘‘605. Incorporations by reference and certifications.’’; 


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1 and 

2 (2) by striking the item relating to section 607 

3 inserting the following: 

‘‘607. Quantification requirements.’’. 

Æ 


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