II 

116TH CONGRESS 

1ST SESSION S. 1120 

To amend chapter 6 of title 5, United States Code (commonly known as 

the ‘‘Regulatory Flexibility Act’’), to ensure complete analysis of potential 

impacts on small entities of rules, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

APRIL 10, 2019 

Mr. LANKFORD (for himself, Mr. GRASSLEY, Mr. RISCH, Mr. ROBERTS, and 

Mr. HOEVEN) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs 

A BILL 

To amend chapter 6 of title 5, United States Code (commonly known as the ‘‘Regulatory Flexibility Act’’), to 

ensure complete analysis of potential impacts on small 

entities of rules, 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 ‘‘Small Business Regu5 latory Flexibility Improvements Act’’. 


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1 SEC. 2. CLARIFICATION AND EXPANSION OF RULES COV2 ERED BY THE REGULATORY FLEXIBILITY 

3 ACT. 

4 (a) IN GENERAL.—Section 601(2) of title 5, United 

5 States Code, is amended to read as follows: 

6 ‘‘(2) RULE.—The term ‘rule’— 

7 ‘‘(A) has the meaning given the term in 

8 section 551(4); and 

9 ‘‘(B) does not include— 

10 ‘‘(i) a rule pertaining to the protection 

11 of the rights of and benefits for veterans 

12 or part 232 of title 32, Code of Federal 

13 Regulations (as in effect on July 1, 2014), 

14 or any successor provisions thereto; or 

15 ‘‘(ii) a rule of particular (and not gen16 eral) applicability relating to rates, wages, 

17 corporate or financial structures or reorga18 nizations thereof, prices, facilities, appli19 ances, services, or allowances therefor or to 

20 valuations, costs or accounting, or prac21 tices relating to such rates, wages, struc22 tures, prices, appliances, services, or allow23 ances.’’. 

24 (b) INCLUSION OF RULES WITH INDIRECT EF25 FECTS.—Section 601 of title 5, United States Code, is 

26 amended by adding at the end the following: 


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1 ‘‘(9) ECONOMIC IMPACT.—The term ‘economic 

2 impact’ means, with respect to a proposed or final 

3 rule— 

4 ‘‘(A) any direct economic effect on small 

5 entities of such rule; and 

6 ‘‘(B) any indirect economic effect (includ7 ing compliance costs and effects on revenue) on 

8 small entities which is reasonably foreseeable 

9 and results from such rule (without regard to 

10 whether small entities will be directly regulated 

11 by the rule).’’. 

12 (c) INCLUSION OF RULES WITH BENEFICIAL EF13 FECTS.— 

14 (1) INITIAL REGULATORY FLEXIBILITY ANAL15 YSIS.—Section 603(c) of title 5, United States Code, 

16 is amended by striking the first sentence and insert17 ing ‘‘Each initial regulatory flexibility analysis shall 

18 also contain a detailed description of alternatives to 

19 the proposed rule which minimize any adverse sig20 nificant economic impact or maximize any beneficial 

21 significant economic impact on small entities.’’. 

22 (2) FINAL REGULATORY FLEXIBILITY ANAL23 YSIS.—Section 604(a) of title 5, United States Code, 

24 is amended— 


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1 (A) by redesignating the second paragraph 

2 designated as paragraph (6) (relating to cov3 ered agencies) as paragraph (7); and 

4 (B) in paragraph (6), by striking ‘‘mini5 mize the significant economic impact’’ and in6 serting ‘‘minimize the adverse significant eco7 nomic impact or maximize the beneficial signifi8 cant economic impact’’. 

9 (d) INCLUSION OF RULES AFFECTING TRIBAL ORGA10 NIZATIONS.—Section 601(5) of title 5, United States 

11 Code, is amended by inserting ‘‘and tribal organizations 

12 (as defined in section 4(l) of the Indian Self-Determina13 tion and Education Assistance Act (25 U.S.C. 5304(l))),’’ 

14 after ‘‘special districts,’’. 

15 (e) INCLUSION OF LAND MANAGEMENT PLANS AND

16 FORMAL RULE MAKING.— 

17 (1) INITIAL REGULATORY FLEXIBILITY ANAL18 YSIS.—Section 603(a) of title 5, United States Code, 

19 is amended in the first sentence— 

20 (A) by striking ‘‘or’’ after ‘‘proposed 

21 rule,’’; and 

22 (B) by inserting ‘‘or publishes a revision or 

23 amendment to a land management plan,’’ after 

24 ‘‘United States,’’. 


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1 (2) FINAL REGULATORY FLEXIBILITY ANAL2 YSIS.—Section 604(a) of title 5, United States Code, 

3 is amended in the first sentence— 

4 (A) by striking ‘‘or’’ after ‘‘proposed rule5 making,’’; and 

6 (B) by inserting ‘‘or adopts a revision or 

7 amendment to a land management plan,’’ after 

8 ‘‘section 603(a),’’. 

9 (3) LAND MANAGEMENT PLAN DEFINED.—Sec10 tion 601 of title 5, United States Code, as amended 

11 by subsection (b), is amended by adding at the end 

12 the following: 

13 ‘‘(10) LAND MANAGEMENT PLAN.— 

14 ‘‘(A) IN GENERAL.—The term ‘land man15 agement plan’ means— 

16 ‘‘(i) any plan developed by the Sec17 retary of Agriculture under section 6 of 

18 the Forest and Rangeland Renewable Re19 sources Planning Act of 1974 (16 U.S.C. 

20 1604); and 

21 ‘‘(ii) any plan developed by the Sec22 retary of the Interior under section 202 of 

23 the Federal Land Policy and Management 

24 Act of 1976 (43 U.S.C. 1712). 


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1 ‘‘(B) REVISION.—The term ‘revision’ 

2 means any change to a land management plan 

3 which— 

4 ‘‘(i) in the case of a plan described in 

5 subparagraph (A)(i), is made under section 

6 6(f)(5) of the Forest and Rangeland Re7 newable Resources Planning Act of 1974 

8 (16 U.S.C. 1604(f)(5)); or 

9 ‘‘(ii) in the case of a plan described in 

10 subparagraph (A)(ii), is made under sec11 tion 1610.5–6 of title 43, Code of Federal 

12 Regulations (or any successor regulation). 

13 ‘‘(C) AMENDMENT.—The term ‘amend14 ment’ means any change to a land management 

15 plan which— 

16 ‘‘(i) in the case of a plan described in 

17 subparagraph (A)(i), is made under section 

18 6(f)(4) of the Forest and Rangeland Re19 newable Resources Planning Act of 1974 

20 (16 U.S.C. 1604(f)(4)) and with respect to 

21 which the Secretary of Agriculture pre22 pares a statement described in section 

23 102(2)(C) of the National Environmental 

24 Policy Act of 1969 (42 U.S.C. 

25 4332(2)(C)); or 


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1 ‘‘(ii) in the case of a plan described in 

2 subparagraph (A)(ii), is made under sec3 tion 1610.5–5 of title 43, Code of Federal 

4 Regulations (or any successor regulation), 

5 and with respect to which the Secretary of 

6 the Interior prepares a statement described 

7 in section 102(2)(C) of the National Envi8 ronmental Policy Act of 1969 (42 U.S.C. 

9 4332(2)(C)).’’. 

10 (f) INCLUSION OF CERTAIN INTERPRETIVE RULES

11 INVOLVING THE INTERNAL REVENUE LAWS.— 

12 (1) IN GENERAL.—Section 603(a) of title 5, 

13 United States Code, is amended by striking the pe14 riod at the end and inserting ‘‘or a recordkeeping re15 quirement, and without regard to whether such rec16 ordkeeping requirement is imposed by statute or reg17 ulation.’’. 

18 (2) COLLECTION OF INFORMATION.—Section 

19 601(7) of title 5, United States Code, is amended to 

20 read as follows: 

21 ‘‘(7) COLLECTION OF INFORMATION.—The term 

22 ‘collection of information’ has the meaning given the 

23 term in section 3502 of title 44.’’. 


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1 (3) RECORDKEEPING REQUIREMENT.—Section 

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

3 read as follows: 

4 ‘‘(8) RECORDKEEPING REQUIREMENT.—The 

5 term ‘recordkeeping requirement’ has the meaning 

6 given the term in section 3502 of title 44.’’. 

7 (g) DEFINITION OF SMALL ORGANIZATION.—Section 

8 601(4) of title 5, United States Code, is amended to read 

9 as follows: 

10 ‘‘(4) SMALL ORGANIZATION.— 

11 ‘‘(A) IN GENERAL.—The term ‘small orga12 nization’ means any nonprofit enterprise which, 

13 as of the issuance of a notice of proposed rule14 making— 

15 ‘‘(i) in the case of an enterprise which 

16 is described by a classification code of the 

17 North American Industrial Classification 

18 System, does not exceed the size standard 

19 established by the Administrator of the 

20 Small Business Administration pursuant to 

21 section 3 of the Small Business Act (15 

22 U.S.C. 632) for small business concerns 

23 described by such classification code; and 

24 ‘‘(ii) in the case of any other enter25 prise, has a net worth that does not exceed 


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1 $7,000,000 and has not more than 500 

2 employees. 

3 ‘‘(B) LOCAL LABOR ORGANIZATIONS.—In 

4 the case of any local labor organization, sub5 paragraph (A) shall be applied without regard 

6 to any national or international organization of 

7 which such local labor organization is a part. 

8 ‘‘(C) AGENCY DEFINITIONS.—Subpara9 graphs (A) and (B) shall not apply to the ex10 tent that an agency, after consultation with the 

11 Office of Advocacy of the Small Business Ad12 ministration and after opportunity for public 

13 comment, establishes one or more definitions 

14 for such term which are appropriate to the ac15 tivities of the agency and publishes such defini16 tions in the Federal Register.’’. 

17 SEC. 3. EXPANSION OF REPORT OF REGULATORY AGENDA. 

18 Section 602 of title 5, United States Code, is amend19 ed— 

20 (1) in subsection (a)— 

21 (A) in paragraph (2), by striking ‘‘, and’’ 

22 at the end and inserting a semicolon; 

23 (B) by redesignating paragraph (3) as 

24 paragraph (4); and 


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1 (C) by inserting after paragraph (2) the 

2 following: 

3 ‘‘(3) a brief description of the sector of the 

4 North American Industrial Classification System 

5 that is primarily affected by any rule which the 

6 agency expects to propose or promulgate which is 

7 likely to have a significant economic impact on a 

8 substantial number of small entities; and’’; and 

9 (2) in subsection (c), to read as follows: 

10 ‘‘(c)(1) Not later than 3 days after the date on which 

11 an agency publishes a regulatory flexibility agenda in the 

12 Federal Register under subsection (a), the agency shall 

13 prominently display on the website of the agency a plain 

14 language summary of the information contained in the 

15 regulatory flexibility agenda. 

16 ‘‘(2) The Office of Advocacy of the Small Business 

17 Administration shall compile, by agency, and prominently 

18 display on the website of the Small Business Administra19 tion a plain language summary of each regulatory flexi20 bility agenda published under subsection (a) not later than 

21 3 days after the date of publication in the Federal Reg22 ister.’’. 


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1 SEC. 4. REQUIREMENTS PROVIDING FOR MORE DETAILED 

2 ANALYSES. 

3 (a) INITIAL REGULATORY FLEXIBILITY ANALYSIS.— 

4 Section 603(b) of title 5, United States Code, is amended 

5 to read as follows: 

6 ‘‘(b) Each initial regulatory flexibility analysis re7 quired under this section shall contain a detailed state8 ment— 

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

10 agency is being considered; 

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

12 for, the proposed rule; 

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

14 entities to which the proposed rule will apply; 

15 ‘‘(4) describing the projected reporting, record16 keeping, and other compliance requirements of the 

17 proposed rule, including an estimate of the classes of 

18 small entities which will be subject to the require19 ment and the type of professional skills necessary 

20 for preparation of the report and record; 

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

22 may duplicate, overlap, or conflict with the proposed 

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

24 be provided; 

25 ‘‘(6) estimating the additional cumulative eco26 nomic impact of the proposed rule on small entities 


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1 beyond that already imposed on the class of small 

2 entities by the agency or why such an estimate is 

3 not available; 

4 ‘‘(7) describing any disproportionate economic 

5 impact on small entities or a specific class of small 

6 entities; and 

7 ‘‘(8) describing any impairment of the ability of 

8 small entities to have access to credit.’’. 

9 (b) FINAL REGULATORY FLEXIBILITY ANALYSIS.— 

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

11 United States Code, is amended— 

12 (A) in paragraph (4)— 

13 (i) by inserting ‘‘detailed’’ before ‘‘de14 scription’’; and 

15 (ii) by striking ‘‘an explanation’’ and 

16 inserting ‘‘a detailed explanation’’; 

17 (B) in paragraph (5), by inserting ‘‘de18 tailed’’ before ‘‘description’’; 

19 (C) in paragraph (6)— 

20 (i) by inserting ‘‘detailed’’ before ‘‘de21 scription’’; and 

22 (ii) by striking ‘‘and’’ at the end; 

23 (D) in paragraph (7), as so redesignated, 

24 by striking the period at the end and inserting 

25 ‘‘; and’’; and 


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1 (E) by adding at the end the following: 

2 ‘‘(8) a detailed description of any dispropor3 tionate economic impact on small entities or a spe4 cific class of small entities.’’. 

5 (2) INCLUSION OF RESPONSE TO COMMENTS ON

6 CERTIFICATION OF PROPOSED RULE.—Section 

7 604(a)(2) of title 5, United States Code, is amended 

8 by inserting ‘‘(or certification of the proposed rule 

9 under section 605(b))’’ after ‘‘initial regulatory flexi10 bility analysis’’. 

11 (3) PUBLICATION OF ANALYSIS ON WEBSITE.— 

12 Section 604(b) of title 5, United States Code, is 

13 amended to read as follows: 

14 ‘‘(b) The agency shall make copies of the final regu15 latory flexibility analysis available to the public, including 

16 placement of the entire analysis on the website of the 

17 agency, and shall publish in the Federal Register the final 

18 regulatory flexibility analysis, or a summary thereof which 

19 includes the telephone number, mailing address, and link 

20 to the website where the complete analysis may be ob21 tained.’’. 

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

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

24 to read as follows: 


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1 ‘‘(a) A Federal agency shall be treated as satisfying 

2 any requirement regarding the content of a regulatory 

3 flexibility agenda or regulatory flexibility analysis under 

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

5 in the agenda or analysis a cross-reference to the specific 

6 portion of another agenda or analysis which is required 

7 by any other law and which satisfies the requirement.’’. 

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

9 United States Code, is amended by striking ‘‘statement 

10 providing the factual basis for such certification.’’ and in11 serting ‘‘detailed statement providing the factual and legal 

12 basis for such certification. The detailed statement shall 

13 include an economic assessment or a summary thereof 

14 that is sufficiently detailed to support the certification of 

15 the agency.’’. 

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 and alter24 natives to the proposed or final rule; or 


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1 ‘‘(2) a more general descriptive statement and 

2 a detailed statement explaining why quantification is 

3 not practicable or reliable.’’. 

4 SEC. 5. REPEAL OF WAIVER AND DELAY AUTHORITY; ADDI5 TIONAL POWERS OF THE CHIEF COUNSEL 

6 FOR ADVOCACY. 

7 (a) IN GENERAL.—Section 608 of title 5, United 

8 States Code, is amended to read as follows: 

9 ‘‘§ 608. Additional powers of Chief Counsel for Advo10 cacy 

11 ‘‘(a)(1) Not later than 270 days after the date of en12 actment of the Small Business Regulatory Flexibility Im13 provements Act, the Chief Counsel for Advocacy of the 

14 Small Business Administration shall, after opportunity for 

15 notice and comment under section 553, issue rules gov16 erning agency compliance with this chapter. The Chief 

17 Counsel may modify or amend such rules after notice and 

18 comment under section 553. This chapter (other than this 

19 subsection) shall not apply with respect to the issuance, 

20 modification, and amendment of rules under this para21 graph. 

22 ‘‘(2) An agency shall not issue rules which supple23 ment the rules issued under paragraph (1) unless such 

24 agency has first consulted with the Chief Counsel for AdVerDate Sep 11 2014 04:22 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00015 Fmt 6652 Sfmt 6201 E:\BILLS\S1120.IS S1120

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1 vocacy to ensure that the supplemental rules comply with 

2 this chapter and the rules issued under paragraph (1). 

3 ‘‘(b) Notwithstanding any other law, the Chief Coun4 sel for Advocacy of the Small Business Administration 

5 may intervene in any agency adjudication (unless such 

6 agency is authorized to impose a fine or penalty under 

7 such adjudication) and may inform the agency of the im8 pact that any decision on the record may have on small 

9 entities. The Chief Counsel shall not initiate an appeal 

10 with respect to any adjudication in which the Chief Coun11 sel intervenes under this subsection. 

12 ‘‘(c) The Chief Counsel for Advocacy may file com13 ments in response to any agency notice requesting com14 ment, regardless of whether the agency is required to file 

15 a general notice of proposed rule making under section 

16 553.’’. 

17 (b) CONFORMING AMENDMENTS.—Section 611(a) of 

18 title 5, United States Code, is amended— 

19 (1) in paragraph (1), by striking ‘‘608(b),’’; 

20 (2) in paragraph (2), by striking ‘‘608(b),’’; 

21 and 

22 (3) in paragraph (3)— 

23 (A) by striking subparagraph (B); and 

24 (B) by striking ‘‘(3)(A) A small entity’’ 

25 and inserting the following: 


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1 ‘‘(3) A small entity’’. 

2 SEC. 6. PROCEDURES FOR GATHERING COMMENTS. 

3 Section 609 of title 5, United States Code, is amend4 ed by striking subsection (b) and all that follows through 

5 the end of the section and inserting the following: 

6 ‘‘(b)(1) Prior to publication of any proposed rule de7 scribed in subsection (e), an agency making the rule shall 

8 notify the Chief Counsel for Advocacy of the Small Busi9 ness Administration and provide the Chief Counsel with— 

10 ‘‘(A) all materials prepared or utilized by the 

11 agency in making the proposed rule, including the 

12 draft of the proposed rule; and 

13 ‘‘(B) information on the potential adverse and 

14 beneficial economic impacts of the proposed rule on 

15 small entities and the type of small entities that 

16 might be affected. 

17 ‘‘(2) An agency shall not be required under para18 graph (1) to provide the exact language of any draft if 

19 the rule— 

20 ‘‘(A) relates to the internal revenue laws of the 

21 United States; or 

22 ‘‘(B) is proposed by an independent regulatory 

23 agency. 

24 ‘‘(c) Not later than 15 days after the receipt of the 

25 materials and information under subsection (b), the Chief 


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1 Counsel for Advocacy of the Small Business Administra2 tion shall— 

3 ‘‘(1) identify small entities or representatives of 

4 small entities or a combination of both for the pur5 pose of obtaining advice, input, and recommenda6 tions from those persons about the potential eco7 nomic impacts of the proposed rule and the compli8 ance of the agency with section 603; and 

9 ‘‘(2) convene a review panel consisting of an 

10 employee from the Office of Advocacy of the Small 

11 Business Administration, an employee from the 

12 agency making the rule, and, in the case of an agen13 cy other than an independent regulatory agency, an 

14 employee from the Office of Information and Regu15 latory Affairs of the Office of Management and 

16 Budget to review the materials and information pro17 vided to the Chief Counsel under subsection (b). 

18 ‘‘(d)(1) Not later than 60 days after the review panel 

19 described in subsection (c)(2) is convened, the Chief Coun20 sel for Advocacy of the Small Business Administration 

21 shall, after consultation with the members of the panel, 

22 submit a report to the agency and, in the case of an agen23 cy other than an independent regulatory agency, the Office 

24 of Information and Regulatory Affairs of the Office of 

25 Management and Budget. 


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1 ‘‘(2) Each report described in paragraph (1) shall in2 clude an assessment of the economic impact of the pro3 posed rule on small entities, including— 

4 ‘‘(A) an assessment of the impact of the pro5 posed rule on the cost that small entities pay for en6 ergy; 

7 ‘‘(B) an assessment of the impact of the pro8 posed rule on startup costs for small entities; and 

9 ‘‘(C) a discussion of any alternatives that will 

10 minimize adverse significant economic impacts or 

11 maximize beneficial significant economic impacts on 

12 small entities. 

13 ‘‘(3) Each report described in paragraph (1) shall be14 come part of the rulemaking record. In the publication of 

15 the proposed rule, the agency shall explain what actions, 

16 if any, the agency took in response to the report. 

17 ‘‘(e) A proposed rule is described by this subsection 

18 if the Administrator of the Office of Information and Reg19 ulatory Affairs of the Office of Management and Budget, 

20 the head of the agency (or the delegatee of the head of 

21 the agency), or an independent regulatory agency deter22 mines that the proposed rule is likely to result in— 

23 ‘‘(1) an annual effect on the economy of 

24 $100,000,000 or more; 


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1 ‘‘(2) a major increase in costs or prices for con2 sumers, individual industries, the Federal Govern3 ment, State or local governments, tribal organiza4 tions, or geographic regions; 

5 ‘‘(3) significant adverse effects on competition, 

6 employment, investment, productivity, innovation, or 

7 the ability of United States-based enterprises to 

8 compete with foreign-based enterprises in domestic 

9 and export markets; or 

10 ‘‘(4) a significant economic impact on a sub11 stantial number of small entities. 

12 ‘‘(f) Upon application by the agency, the Chief Coun13 sel for Advocacy of the Small Business Administration 

14 may waive the requirements of subsections (b) through (e) 

15 if the Chief Counsel determines that compliance with the 

16 requirements of such subsections is impracticable, unnec17 essary, or contrary to the public interest. 

18 ‘‘(g) A small entity or a representative of a small enti19 ty may submit a request that the agency provide a copy 

20 of the report prepared under subsection (d) and all mate21 rials and information provided to the Chief Counsel for 

22 Advocacy of the Small Business Administration under 

23 subsection (b). The agency receiving such request shall 

24 provide the report, materials, and information to the re25 questing small entity or representative of a small entity 


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1 not later than 10 business days after receiving such re2 quest, except that the agency shall not disclose any infor3 mation that is prohibited from disclosure to the public 

4 pursuant to section 552(b) of this title. 

5 ‘‘(h) In this section, the term ‘independent regulatory 

6 agency’ has the meaning given the term in section 3502 

7 of title 44.’’. 

8 SEC. 7. PERIODIC REVIEW OF RULES. 

9 Section 610 of title 5, United States Code, is amend10 ed to read as follows: 

11 ‘‘§ 610. Periodic review of rules 

12 ‘‘(a) Not later than 180 days after the date of enact13 ment of the Small Business Regulatory Flexibility Im14 provements Act, each agency shall publish in the Federal 

15 Register and place on the website of the agency a plan 

16 for the periodic review of rules issued by the agency which 

17 the head of the agency determines have a significant eco18 nomic impact on a substantial number of small entities. 

19 Such determination shall be made without regard to 

20 whether the agency performed an analysis under section 

21 604. The purpose of the review shall be to determine 

22 whether such rules should be continued without change, 

23 or should be amended or rescinded, consistent with the 

24 stated objectives of applicable statutes, to minimize any 

25 adverse significant economic impacts or maximize any 


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1 beneficial significant economic impacts on a substantial 

2 number of small entities. Such plan may be amended by 

3 the agency at any time by publishing the revision in the 

4 Federal Register and subsequently placing the amended 

5 plan on the website of the agency. 

6 ‘‘(b) The plan shall provide for the review of all such 

7 agency rules existing on the date of enactment of the 

8 Small Business Regulatory Flexibility Improvements Act 

9 within 10 years of the date of publication of the plan in 

10 the Federal Register and for review of rules adopted after 

11 the date of enactment of the Small Business Regulatory 

12 Flexibility Improvements Act within 10 years after the 

13 publication of the final rule in the Federal Register. If 

14 the head of the agency determines that completion of the 

15 review of existing rules is not feasible by the established 

16 date, the head of the agency shall so certify in a statement 

17 published in the Federal Register and may extend the re18 view for not longer than 2 years after publication of notice 

19 of extension in the Federal Register. Such certification 

20 and notice shall be sent to the Chief Counsel for Advocacy 

21 of the Small Business Administration and Congress. 

22 ‘‘(c) The plan shall include a section that details how 

23 an agency will conduct outreach to and meaningfully in24 clude small businesses (including small business concerns 

25 owned and controlled by women, small business concerns 


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1 owned and controlled by veterans, and small business con2 cerns owned and controlled by socially and economically 

3 disadvantaged individuals (as such terms are defined in 

4 section 3 and section 8(d)(3)(C) of the Small Business Act 

5 (15 U.S.C. 632, 637(d)(3)(C)))) for the purposes of car6 rying out this section. The agency shall include in this sec7 tion a plan for how the agency will contact small busi8 nesses and gather their input on existing agency rules. 

9 ‘‘(d) Each agency shall annually submit a report re10 garding the results of its review pursuant to such plan 

11 to Congress, the Chief Counsel for Advocacy of the Small 

12 Business Administration, and, in the case of agencies 

13 other than independent regulatory agencies (as defined in 

14 section 3502 of title 44), to the Administrator of the Of15 fice of Information and Regulatory Affairs of the Office 

16 of Management and Budget. Such report shall include the 

17 identification of any rule with respect to which the head 

18 of the agency made a determination described in para19 graph (5) or (6) of subsection (e) and a detailed expla20 nation of the reasons for such determination. 

21 ‘‘(e) In reviewing a rule pursuant to subsections (a) 

22 through (d), the agency shall amend or rescind the rule 

23 to minimize any adverse significant economic impact on 

24 a substantial number of small entities or disproportionate 

25 economic impact on a specific class of small entities, or 


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1 maximize any beneficial significant economic impact of the 

2 rule on a substantial number of small entities to the great3 est extent possible, consistent with the stated objectives 

4 of applicable statutes. In amending or rescinding the rule, 

5 the agency shall consider the following factors: 

6 ‘‘(1) The continued need for the rule. 

7 ‘‘(2) The nature of complaints received by the 

8 agency from small entities concerning the rule. 

9 ‘‘(3) Comments by the Regulatory Enforcement 

10 Ombudsman and the Chief Counsel for Advocacy of 

11 the Small Business Administration. 

12 ‘‘(4) The complexity of the rule. 

13 ‘‘(5) The extent to which the rule overlaps, du14 plicates, or conflicts with other Federal rules and, 

15 unless the head of the agency determines it to be in16 feasible, State, territorial, and local rules. 

17 ‘‘(6) The contribution of the rule to the cumu18 lative economic impact of all Federal rules on the 

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

20 head of the agency determines that such calculations 

21 cannot be made and reports that determination in 

22 the annual report required under subsection (d). 

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

24 evaluated or the degree to which technology, ecoVerDate Sep 11 2014 04:22 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00024 Fmt 6652 Sfmt 6201 E:\BILLS\S1120.IS S1120

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1 nomic conditions, or other factors have changed in 

2 the area affected by the rule. 

3 ‘‘(f) Each year, each agency shall publish in the Fed4 eral Register and on its website a list of rules to be re5 viewed pursuant to such plan. The agency shall include 

6 in the publication a solicitation of public comments on any 

7 further inclusions or exclusions of rules from the list and 

8 shall respond to such comments. Such publication shall 

9 include a brief description of the rule, state the reason 

10 why the agency determined that it has a significant eco11 nomic impact on a substantial number of small entities 

12 (without regard to whether it had prepared a final regu13 latory flexibility analysis for the rule), and request com14 ments from the public, the Chief Counsel for Advocacy of 

15 the Small Business Administration, and the Regulatory 

16 Enforcement Ombudsman concerning the enforcement of 

17 the rule.’’. 

18 SEC. 8. JUDICIAL REVIEW OF COMPLIANCE WITH THE RE19 QUIREMENTS OF THE REGULATORY FLEXI20 BILITY ACT AVAILABLE AFTER PUBLICATION 

21 OF THE FINAL RULE. 

22 (a) IN GENERAL.—Section 611(a) of title 5, United 

23 States Code, is amended— 

24 (1) in paragraph (1), by striking ‘‘final agency 

25 action’’ and inserting ‘‘such rule’’; 


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1 (2) in paragraph (2), by inserting ‘‘(or which 

2 would have such jurisdiction if publication of the 

3 final rule constituted final agency action)’’ after 

4 ‘‘provision of law,’’; and 

5 (3) in paragraph (3)— 

6 (A) by striking ‘‘final agency action’’ and 

7 inserting ‘‘publication of the final rule’’; and 

8 (B) by inserting ‘‘, in the case of a rule for 

9 which the date of final agency action is the 

10 same date as the publication of the final rule,’’ 

11 after ‘‘except that’’. 

12 (b) INTERVENTION BY CHIEF COUNSEL FOR ADVO13 CACY.—Section 612(b) of title 5, United States Code, is 

14 amended by inserting before the first period ‘‘or agency 

15 compliance with section 601, 603, 604, 605(b), 609, or 

16 610’’. 

17 SEC. 9. JURISDICTION OF COURT OF APPEALS OVER RULES 

18 IMPLEMENTING THE REGULATORY FLEXI19 BILITY ACT. 

20 (a) IN GENERAL.—Section 2342 of title 28, United 

21 States Code, is amended— 

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

23 end; 

24 (2) in paragraph (7), by striking the period at 

25 the end and inserting ‘‘; and’’; and 


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1 (3) by inserting after paragraph (7) the fol2 lowing: 

3 ‘‘(8) all final rules under section 608(a) of title 

4 5.’’. 

5 (b) CONFORMING AMENDMENTS.—Section 2341(3) 

6 of title 28, United States Code, is amended— 

7 (1) in subparagraph (D), by striking ‘‘and’’ at 

8 the end; 

9 (2) in subparagraph (E), by striking the period 

10 at the end and inserting ‘‘; and’’; and 

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

12 ‘‘(F) the Office of Advocacy of the Small 

13 Business Administration, when the final rule is 

14 under section 608(a) of title 5.’’. 

15 (c) AUTHORIZATION TO INTERVENE AND COMMENT

16 ON AGENCY COMPLIANCE WITH ADMINISTRATIVE PROCE17 DURE.—Section 612(b) of title 5, United States Code, is 

18 amended by inserting ‘‘chapter 5, and chapter 7,’’ after 

19 ‘‘this chapter,’’. 

20 SEC. 10. ESTABLISHMENT AND APPROVAL OF SMALL BUSI21 NESS CONCERN SIZE STANDARDS BY CHIEF 

22 COUNSEL FOR ADVOCACY. 

23 (a) IN GENERAL.—Section 3(a)(2)(A) of the Small 

24 Business Act (15 U.S.C. 632(a)(2)(A)) is amended to read 

25 as follows: 


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1 ‘‘(A) IN GENERAL.—In addition to the cri2 teria specified in paragraph (1)— 

3 ‘‘(i) the Administrator may specify de4 tailed definitions or standards by which a 

5 business concern may be determined to be 

6 a small business concern for purposes of 

7 this Act or the Small Business Investment 

8 Act of 1958 (15 U.S.C. 661 et seq.); and 

9 ‘‘(ii) the Chief Counsel for Advocacy 

10 may specify such definitions or standards 

11 for purposes of any other Act.’’. 

12 (b) APPROVAL BY CHIEF COUNSEL.—Section 

13 3(a)(2)(C)(iii) of the Small Business Act (15 U.S.C. 

14 632(a)(2)(C)(iii)) is amended to read as follows: 

15 ‘‘(iii) except in the case of a size 

16 standard prescribed by the Administrator, 

17 is approved by the Chief Counsel for Advo18 cacy.’’. 

19 (c) INDUSTRY VARIATION.—Section 3(a)(3) of the 

20 Small Business Act (15 U.S.C. 632(a)(3)) is amended— 

21 (1) by inserting ‘‘or Chief Counsel for Advo22 cacy, as appropriate,’’ before ‘‘shall ensure’’; and 

23 (2) by inserting ‘‘or Chief Counsel for Advo24 cacy’’ before the period at the end. 


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1 (d) JUDICIAL REVIEW OF SIZE STANDARDS AP2 PROVED BY CHIEF COUNSEL.—Section 3(a) of the Small 

3 Business Act (15 U.S.C. 632(a)) is amended by adding 

4 at the end the following: 

5 ‘‘(10) JUDICIAL REVIEW OF STANDARDS AP6 PROVED BY CHIEF COUNSEL.—In the case of an ac7 tion for judicial review of a rule which includes a 

8 definition or standard approved by the Chief Counsel 

9 for Advocacy under this subsection, the party seek10 ing such review shall be entitled to join the Chief 

11 Counsel as a party in such action.’’. 

12 SEC. 11. CLERICAL AMENDMENTS. 

13 (a) DEFINITIONS.—Section 601 of title 5, United 

14 States Code, is amended— 

15 (1) in paragraph (1)— 

16 (A) by striking the semicolon at the end 

17 and inserting a period; and 

18 (B) by striking ‘‘(1) the term’’ and insert19 ing the following: 

20 ‘‘(1) AGENCY.—The term’’; 

21 (2) in paragraph (3)— 

22 (A) by striking the semicolon at the end 

23 and inserting a period; and 

24 (B) by striking ‘‘(3) the term’’ and insert25 ing the following: 


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1 ‘‘(3) SMALL BUSINESS.—The term’’; 

2 (3) in paragraph (5)— 

3 (A) by striking the semicolon at the end 

4 and inserting a period; and 

5 (B) by striking ‘‘(5) the term’’ and insert6 ing the following: 

7 ‘‘(5) SMALL GOVERNMENTAL JURISDICTION.— 

8 The term’’; and 

9 (4) in paragraph (6)— 

10 (A) by striking ‘‘; and’’ and inserting a pe11 riod; and 

12 (B) by striking ‘‘(6) the term’’ and insert13 ing the following: 

14 ‘‘(6) SMALL ENTITY.—The term’’. 

15 (b) INCORPORATIONS BY REFERENCE AND CERTIFI16 CATIONS.—The heading of section 605 of title 5, United 

17 States Code, is amended to read as follows: 

18 ‘‘§ 605. Incorporations by reference and certifi19 cations’’. 

20 (c) TABLE OF SECTIONS.—The table of sections for 

21 chapter 6 of title 5, United States Code, is amended as 

22 follows: 

23 (1) By striking the item relating to section 605 

24 and inserting the following new item: 

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


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1 (2) By striking the item relating to section 607 

2 and inserting the following new item: 

‘‘607. Quantification requirements.’’. 

3 (3) By striking the item relating to section 608 

4 and inserting the following: 

‘‘608. Additional powers of Chief Counsel for Advocacy.’’. 

5 (d) OTHER CLERICAL AMENDMENTS TO CHAPTER

6 6.—Chapter 6 of title 5, United States Code, is amend7 ed— 

8 (1) in section 603(d)— 

9 (A) by striking paragraph (2); 

10 (B) by striking ‘‘(1) For a covered agency, 

11 as defined in section 609(d)(2), each initial reg12 ulatory flexibility analysis’’ and inserting ‘‘Each 

13 initial regulatory flexibility analysis by an agen14 cy’’; 

15 (C) by striking ‘‘(A) any’’ and inserting 

16 ‘‘(1) any’’; 

17 (D) by striking ‘‘(B) any’’ and inserting 

18 ‘‘(2) any’’; and 

19 (E) by striking ‘‘(C) advice’’ and inserting 

20 ‘‘(3) advice’’; and 

21 (2) in paragraph (7) of section 604(a), as so re22 designated by section 2(c)(2)(A) of this Act, by 

23 striking ‘‘for a covered agency, as defined in section 

24 609(d)(2),’’. 


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1 SEC. 12. AGENCY PREPARATION OF GUIDES. 

2 Section 212(a)(5) the Small Business Regulatory En3 forcement Fairness Act of 1996 (5 U.S.C. 601 note) is 

4 amended to read as follows: 

5 ‘‘(5) AGENCY PREPARATION OF GUIDES.—The 

6 agency shall, in its sole discretion, taking into ac7 count the subject matter of the rule and the lan8 guage of relevant statutes, ensure that the guide is 

9 written using sufficiently plain language likely to be 

10 understood by affected small entities. Agencies may 

11 prepare separate guides covering groups or classes of 

12 similarly affected small entities and may cooperate 

13 with associations of small entities to distribute such 

14 guides. In developing guides, agencies shall solicit 

15 input from affected small entities or associations of 

16 affected small entities. An agency may prepare 

17 guides and apply this section with respect to a rule 

18 or a group of related rules.’’. 

19 SEC. 13. COMPTROLLER GENERAL REPORT. 

20 Not later than 90 days after the date of enactment 

21 of this Act, the Comptroller General of the United States 

22 shall complete and publish a study that examines whether 

23 the Chief Counsel for Advocacy of the Small Business Ad24 ministration has the capacity and resources to carry out 

25 the duties of the Chief Counsel under this Act and the 

26 amendments made by this Act. 


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1 SEC. 14. WAIVER OF FINES FOR FIRST-TIME PAPERWORK 

2 VIOLATIONS BY SMALL BUSINESSES. 

3 Section 3506 of title 44, United States Code (com4 monly referred to as the ‘‘Paperwork Reduction Act’’), is 

5 amended by adding at the end the following: 

6 ‘‘(j) SMALL BUSINESSES.— 

7 ‘‘(1) DEFINITIONS.—In this subsection: 

8 ‘‘(A) FIRST-TIME VIOLATION.—The term 

9 ‘first-time violation’ means a violation by a 

10 small business concern of a requirement regard11 ing collection of information by an agency, 

12 where the small business concern has not pre13 viously violated any similar requirement regard14 ing collection of information by that same agen15 cy during the 5-year period preceding the viola16 tion. 

17 ‘‘(B) SMALL BUSINESS CONCERN.—The 

18 term ‘small business concern’ has the meaning 

19 given the term in section 3 of the Small Busi20 ness Act (15 U.S.C. 632). 

21 ‘‘(2) FIRST-TIME VIOLATION.— 

22 ‘‘(A) IN GENERAL.—Except as provided in 

23 subparagraph (C), in the case of a first-time 

24 violation by a small business concern of a re25 quirement regarding the collection of informa26 tion by an agency, the head of the agency shall 


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1 not impose a civil fine on the small business 

2 concern. 

3 ‘‘(B) DETERMINATION.—For purposes of 

4 determining whether to impose a civil fine on a 

5 small business concern under subparagraph (A), 

6 the head of an agency shall not take into ac7 count any violation by the small business con8 cern of a requirement regarding collection of in9 formation by another agency. 

10 ‘‘(C) EXCEPTION.—An agency may impose 

11 a civil fine on a small business concern for a 

12 first-time violation if the head of the agency de13 termines that— 

14 ‘‘(i) the violation has the potential to 

15 cause serious harm to the public interest; 

16 ‘‘(ii) failure to impose a civil fine 

17 would impede or interfere with the detec18 tion of criminal activity; 

19 ‘‘(iii) the violation is a violation of an 

20 internal revenue law or a law concerning 

21 the assessment or collection of any tax, 

22 debt, revenue, or receipt; 

23 ‘‘(iv) the violation was not corrected 

24 on or before the date that is 6 months 

25 after the date on which the small business 


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1 concern receives notification of the viola2 tion in writing from the agency; or 

3 ‘‘(v) except as provided in paragraph 

4 (3), the violation presents a danger to the 

5 public health or safety. 

6 ‘‘(3) DANGER TO PUBLIC HEALTH OR SAFE7 TY.— 

8 ‘‘(A) IN GENERAL.—In any case in which 

9 the head of an agency determines under para10 graph (2)(C)(v) that a violation presents a dan11 ger to the public health or safety, the head of 

12 the agency may determine not to impose a civil 

13 fine on the small business concern if the viola14 tion is corrected not later than 24 hours after 

15 receipt by the owner of the small business con16 cern of notification of the violation in writing. 

17 ‘‘(B) CONSIDERATIONS.—In determining 

18 whether to allow a small business concern 24 

19 hours to correct a violation under subparagraph 

20 (A), the head of an agency shall take into ac21 count all of the facts and circumstances regard22 ing the violation, including— 

23 ‘‘(i) the nature and seriousness of the 

24 violation, including whether the violation is 


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1 technical or inadvertent or involves willful 

2 or criminal conduct; 

3 ‘‘(ii) whether the small business con4 cern had made a good faith effort to com5 ply with applicable laws and to remedy the 

6 violation within the shortest practicable pe7 riod of time; and 

8 ‘‘(iii) whether the small business con9 cern has obtained a significant economic 

10 benefit from the violation. 

11 ‘‘(C) NOTICE TO CONGRESS.—In any case 

12 in which the head of an agency imposes a civil 

13 fine on a small business concern for a violation 

14 that presents a danger to the public health or 

15 safety and does not allow the small business 

16 concern 24 hours to correct the violation under 

17 subparagraph (A), the head of the agency shall 

18 notify Congress regarding the determination 

19 not later than 60 days after the date on which 

20 the civil fine is imposed by the agency.’’. 

Æ 


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