II 

112TH CONGRESS 

1ST SESSION S. 602 

To require regulatory reform. 

IN THE SENATE OF THE UNITED STATES 

MARCH 16, 2011 

Ms. COLLINS (for herself, Mr. ROBERTS, and Mr. BARRASSO) introduced the 

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

Homeland Security and Governmental Affairs 

A BILL 

To require regulatory reform. 

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 ‘‘Clearing Unnecessary 

5 Regulatory Burdens Act’’ or the ‘‘CURB Act’’. 

6 SEC. 2. REGULATORY REFORM. 

7 (a) DEFINITIONS.—In this section— 

8 (1) the term ‘‘Administrator’’ means the Ad9 ministrator of the Office of Information and Regu10 latory Affairs in the Office of Management and 

11 Budget; 


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

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

3 (3) the term ‘‘economically significant guidance 

4 document’’ means a significant guidance document 

5 that may reasonably be anticipated to lead to an an6 nual effect on the economy of $100,000,000 or more 

7 or adversely affect in a material way the economy or 

8 a sector of the economy, except that economically 

9 significant guidance documents do not include guid10 ance documents on Federal expenditures and re11 ceipts; 

12 (4) the term ‘‘disseminated’’— 

13 (A) means prepared by an agency and dis14 tributed to the public or regulated entities; and 

15 (B) does not include— 

16 (i) distribution limited to Federal 

17 Government employees; 

18 (ii) intra- or interagency use or shar19 ing of Federal Government information; 

20 and 

21 (iii) responses to requests for agency 

22 records under section 552 of title 5, 

23 United States Code (commonly referred to 

24 as the ‘‘Freedom of Information Act’’), 

25 section 552a of title 5, United States Code, 


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1 (commonly referred to as the ‘‘Privacy 

2 Act’’), the Federal Advisory Committee 

3 Act (5 U.S.C. App.), or other similar laws; 

4 (5) the term ‘‘guidance document’’ means an 

5 agency statement of general applicability and future 

6 effect, other than a regulatory action, that sets forth 

7 a policy on a statutory, regulatory or technical issue 

8 or an interpretation of a statutory or regulatory 

9 issue; 

10 (6) the term ‘‘regulation’’ means an agency 

11 statement of general applicability and future effect, 

12 which the agency intends to have the force and ef13 fect of law, that is designed to implement, interpret, 

14 or prescribe law or policy or to describe the proce15 dure or practice requirements of an agency; 

16 (7) the term ‘‘regulatory action’’ means any 

17 substantive action by an agency (normally published 

18 in the Federal Register) that promulgates or is ex19 pected to lead to the promulgation of a final regula20 tion, including notices of inquiry, advance notices of 

21 proposed rulemaking, and notices of proposed rule22 making; 

23 (8) the term ‘‘significant guidance document’’— 


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1 (A) means a guidance document dissemi2 nated to regulated entities or the general public 

3 that may reasonably be anticipated to— 

4 (i) lead to an annual effect on the 

5 economy of $100,000,000 or more or affect 

6 in a material way the economy, a sector of 

7 the economy, productivity, competition, 

8 jobs, the environment, public health or 

9 safety, or State, local, or tribal govern10 ments or communities; 

11 (ii) create a serious inconsistency or 

12 otherwise interfere with an action taken or 

13 planned by another agency; 

14 (iii) materially alter the budgetary im15 pact of entitlements, grants, user fees, or 

16 loan programs or the rights and obliga17 tions of recipients thereof; or 

18 (iv) raise novel legal or policy issues 

19 arising out of legal mandates and the pri20 orities, principles, and provisions of this 

21 section; and 

22 (B) does not include— 

23 (i) legal advisory opinions for internal 

24 Executive Branch use and not for release 


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1 (such as Department of Justice Office of 

2 Legal Counsel opinions); 

3 (ii) briefs and other positions taken by 

4 agencies in investigations, pre-litigation, 

5 litigation, or other enforcement pro6 ceedings; 

7 (iii) speeches; 

8 (iv) editorials; 

9 (v) media interviews; 

10 (vi) press materials; 

11 (vii) congressional correspondence; 

12 (viii) guidance documents that pertain 

13 to a military or foreign affairs function of 

14 the United States (other than guidance on 

15 procurement or the import or export of 

16 non-defense articles and services); 

17 (ix) grant solicitations; 

18 (x) warning letters; 

19 (xi) case or investigatory letters re20 sponding to complaints involving fact-spe21 cific determinations; 

22 (xii) purely internal agency policies; 

23 (xiii) guidance documents that pertain 

24 to the use, operation or control of a gov25 ernment facility; 


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1 (xiv) internal guidance documents di2 rected solely to other agencies; and 

3 (xv) any other category of significant 

4 guidance documents exempted by an agen5 cy head in consultation with the Adminis6 trator; and 

7 (9) the term ‘‘significant regulatory action’’ 

8 means any regulatory action that is likely to result 

9 in a regulation that may— 

10 (A) have an annual effect on the economy 

11 of $100,000,000 or more or adversely affect in 

12 a material way the economy, a sector of the 

13 economy, productivity, competition, jobs, the 

14 environment, public health or safety, or State, 

15 local, or tribal governments or communities; 

16 (B) create a serious inconsistency or other17 wise interfere with an action taken or planned 

18 by another agency; 

19 (C) materially alter the budgetary impact 

20 of entitlements, grants, user fees, or loan pro21 grams or the rights and obligations of recipi22 ents thereof; or 

23 (D) raise novel legal or policy issues aris24 ing out of legal mandates and the priorities, 

25 principles, and provisions of this section. 


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1 (b) AGENCY ASSESSMENT OF SIGNIFICANT REGU2 LATORY ACTIONS.—For each significant regulatory ac3 tion, each agency shall submit, at such times specified by 

4 the Administrator, a report to the Office of Information 

5 and Regulatory Affairs that includes— 

6 (1) an assessment, including the underlying 

7 analysis, of benefits anticipated from the significant 

8 regulatory action, such as— 

9 (A) the promotion of the efficient func10 tioning of the economy and private markets; 

11 (B) the enhancement of health and safety; 

12 (C) the protection of the natural environ13 ment; and 

14 (D) the elimination or reduction of dis15 crimination or bias; 

16 (2) to the extent feasible, a quantification of 

17 the benefits assessed under paragraph (1); 

18 (3) an assessment, including the underlying 

19 analysis, of costs anticipated from the regulatory ac20 tion, such as— 

21 (A) the direct cost both to the Federal 

22 Government in administering the significant 

23 regulatory action and to businesses, consumers, 

24 and others (including State, local, and tribal of25 ficials) in complying with the regulation; and 


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1 (B) any adverse effects on the efficient 

2 functioning of the economy, private markets 

3 (including productivity, employment, and com4 petitiveness), health, safety, the natural envi5 ronment, job creation, the prices of consumer 

6 goods, and energy costs; 

7 (4) to the extent feasible, a quantification of 

8 the costs assessed under paragraph (3); and 

9 (5) an assessment, including the underlying 

10 analysis, of costs and benefits of potentially effective 

11 and reasonably feasible alternatives to the planned 

12 significant regulatory action, identified by the agen13 cy or the public (including improving the current 

14 regulation and reasonably viable nonregulatory ac15 tions), and an explanation why the planned regu16 latory action is preferable to the identified potential 

17 alternatives. 

18 (c) AGENCY GOOD GUIDANCE PRACTICES.— 

19 (1) AGENCY STANDARDS FOR SIGNIFICANT

20 GUIDANCE DOCUMENTS.— 

21 (A) APPROVAL PROCEDURES.— 

22 (i) IN GENERAL.—Each agency shall 

23 develop or have written procedures for the 

24 approval of significant guidance docu25 ments, which shall ensure that the issuance 


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1 of significant guidance documents is ap2 proved by appropriate senior agency offi3 cials. 

4 (ii) REQUIREMENT.—Employees of an 

5 agency may not depart from significant 

6 guidance documents without appropriate 

7 justification and supervisory concurrence. 

8 (B) STANDARD ELEMENTS.—Each signifi9 cant guidance document— 

10 (i) shall— 

11 (I) include the term ‘‘guidance’’ 

12 or its functional equivalent; 

13 (II) identify the agency or office 

14 issuing the document; 

15 (III) identify the activity to 

16 which and the persons to whom the 

17 significant guidance document applies; 

18 (IV) include the date of issuance; 

19 (V) note if the significant guid20 ance document is a revision to a pre21 viously issued guidance document and, 

22 if so, identify the document that the 

23 significant guidance document re24 places; 


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1 (VI) provide the title of the docu2 ment and a document identification 

3 number; and 

4 (VII) include the citation to the 

5 statutory provision or regulation (in 

6 Code of Federal Regulations format) 

7 which the significant guidance docu8 ment applies to or interprets; and 

9 (ii) shall not include mandatory terms 

10 such as ‘‘shall’’, ‘‘must’’, ‘‘required’’, or 

11 ‘‘requirement’’ unless— 

12 (I) the agency is using those 

13 terms to describe a statutory or regu14 latory requirement; or 

15 (II) the terminology is addressed 

16 to agency staff and will not foreclose 

17 agency consideration of positions ad18 vanced by affected private parties. 

19 (2) PUBLIC ACCESS AND FEEDBACK FOR SIG20 NIFICANT GUIDANCE DOCUMENTS.— 

21 (A) INTERNET ACCESS.— 

22 (i) IN GENERAL.—Each agency 

23 shall— 

24 (I) maintain on the Web site for 

25 the agency, or as a link on the Web 


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1 site of the agency to the electronic list 

2 posted on a Web site of a component 

3 of the agency a list of the significant 

4 guidance documents in effect of the 

5 agency, including a link to the text of 

6 each significant guidance document 

7 that is in effect; and 

8 (II) not later than 30 days after 

9 the date on which a significant guid10 ance document is issued, update the 

11 list described in clause (i). 

12 (ii) LIST REQUIREMENTS.—The list 

13 described in subparagraph (A)(i) shall— 

14 (I) include the name of each— 

15 (aa) significant guidance 

16 document; 

17 (bb) document identification 

18 number; and 

19 (cc) issuance and revision 

20 dates; and 

21 (II) identify significant guidance 

22 documents that have been added, re23 vised, or withdrawn in the preceding 

24 year. 

25 (B) PUBLIC FEEDBACK.— 


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1 (i) IN GENERAL.—Each agency shall 

2 establish and clearly advertise on the Web 

3 site for the agency a means for the public 

4 to electronically submit— 

5 (I) comments on significant guid6 ance documents; and 

7 (II) a request for issuance, recon8 sideration, modification, or rescission 

9 of significant guidance documents. 

10 (ii) AGENCY RESPONSE.—Any com11 ments or requests submitted under sub12 paragraph (A)— 

13 (I) are for the benefit of the 

14 agency; and 

15 (II) shall not require a formal re16 sponse from the agency. 

17 (iii) OFFICE FOR PUBLIC COM18 MENTS.— 

19 (I) IN GENERAL.—Each agency 

20 shall designate an office to receive and 

21 address complaints from the public re22 lating to— 

23 (aa) the failure of the agen24 cy to follow the procedures de25 scribed in this section; or 


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1 (bb) the failure to treat a 

2 significant guidance document as 

3 a binding requirement. 

4 (II) WEB SITE.—The agency 

5 shall provide, on the Web site of the 

6 agency, the name and contact infor7 mation for the office designated under 

8 clause (i). 

9 (3) NOTICE AND PUBLIC COMMENT FOR ECO10 NOMICALLY SIGNIFICANT GUIDANCE DOCUMENTS.— 

11 (A) IN GENERAL.—Except as provided in 

12 paragraph (2), in preparing a draft of an eco13 nomically significant guidance document, and 

14 before issuance of the final significant guidance 

15 document, each agency shall— 

16 (i) publish a notice in the Federal 

17 Register announcing that the draft docu18 ment is available; 

19 (ii) post the draft document on the 

20 Internet and make a tangible copy of that 

21 document publicly available (or notify the 

22 public how the public can review the guid23 ance document if the document is not in a 

24 format that permits such electronic posting 

25 with reasonable efforts); 


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1 (iii) invite public comment on the 

2 draft document; and 

3 (iv) prepare and post on the Web site 

4 of the agency a document with responses 

5 of the agency to public comments. 

6 (B) EXCEPTIONS.—In consultation with 

7 the Administrator, an agency head may identify 

8 a particular economically significant guidance 

9 document or category of such documents for 

10 which the procedures of this subsection are not 

11 feasible or appropriate. 

12 (4) EMERGENCIES.— 

13 (A) IN GENERAL.—In emergency situa14 tions or when an agency is obligated by law to 

15 act more quickly than normal review procedures 

16 allow, the agency shall notify the Administrator 

17 as soon as possible and, to the extent prac18 ticable, comply with this subsection. 

19 (B) SIGNIFICANT GUIDANCE DOCUMENTS

20 SUBJECT TO STATUTORY OR COURT-IMPOSED

21 DEADLINE.—For a significant guidance docu22 ment that is governed by a statutory or court23 imposed deadline, the agency shall, to the ex24 tent practicable, schedule the proceedings of the 


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1 agency to permit sufficient time to comply with 

2 this subsection. 

3 (5) EFFECTIVE DATE.—This section shall take 

4 effect 60 days after the date of enactment of this 

5 Act. 

6 SEC. 3. REDUCTION OR WAIVER OF CIVIL PENALTIES IM7 POSED ON SMALL ENTITIES. 

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

9 States Code, is amended by adding at the end the fol10 lowing: 

11 ‘‘§ 613. Reduction or waiver of civil penalties imposed 

12 on small entities 

13 ‘‘(a) Upon the request of a small entity, a Regional 

14 Advocate of the Office of Advocacy of the Small Business 

15 Administration (referred to in this section as a ‘Regional 

16 Advocate’) shall submit to an agency a request that the 

17 agency reduce or waive a civil penalty imposed on the 

18 small entity, if the Regional Advocate determines that— 

19 ‘‘(1) the civil penalty was the result of a first20 time violation by the small entity of a requirement 

21 to report information to the agency; and 

22 ‘‘(2) the reduction or waiver is consistent with 

23 the conditions and exclusions described in para24 graphs (1), (3), (4), (5), and (6) of section 223(b) 

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1 ness Act of 1996 (Public Law 104–121; 110 Stat. 

2 862). 

3 ‘‘(b) Not later than 60 days after the receipt of a 

4 request from a Regional Advocate under subsection (a), 

5 an agency shall send written notice of the decision of the 

6 agency with respect to the request, together with the rea7 sons for the decision, to the Regional Advocate that made 

8 the request and the relevant small entity. 

9 ‘‘(c) The Chief Counsel for Advocacy shall submit to 

10 Congress an annual report summarizing— 

11 ‘‘(1) the requests received by the Regional Ad12 vocates from small entities under subsection (a); and 

13 ‘‘(2) the requests submitted by the Regional 

14 Advocates to agencies under subsection (a) and the 

15 results of the requests.’’. 

16 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

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

18 Code, is amended by adding at the end the following: 

‘‘613. Reduction or waiver of civil penalties imposed on small entities.’’. 

Æ 


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