II 118th CONGRESS 1st Session S. 839 IN THE SENATE OF THE UNITED STATES March 16, 2023 Mr. Thune (for himself and Mr. Lankford ) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs A BILL To require agencies to complete a regulatory impact analysis before issuing a significant rule, and for other purposes.

1. Short title This Act may be cited as the Regulatory Transparency Act of 2023 . 2. Definitions Section 601 of title 5, United States Code, is amended— (1) in paragraph (6), by striking and at the end; (2) in paragraph (7) by striking the period at the end and inserting a semicolon; (3) in paragraph (8)— (A) by striking Recordkeeping requirement .—The and inserting the ; and (B) by striking the period at the end and inserting ; and ; and (4) by adding at the end the following: (9) the term significant rule means any final rule that the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget determines is likely to— (A) have an annual effect on the economy of $100,000,000 or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (B) create a significant inconsistency or otherwise interfere with an action taken or planned by another Federal agency; (C) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (D) raise novel legal or policy issues. . 3. Regulatory impact analyses; consideration of sunset dates (a) In general Chapter 6 of title 5, United States Code, is amended by adding at the end the following: 613. Regulatory impact analyses (a) In general Before issuing any proposed rule, final rule, or interim final rule that meets the economic threshold of a significant rule described in section 601(9)(A), an agency shall conduct a regulatory impact analysis to evaluate the proposed rule, final rule, or interim final rule, as applicable. (b) Regulatory impact analyses An analysis under subsection (a) shall— (1) be based upon the best reasonably obtainable supporting information, consistent with Executive Order 12866 ( 5 U.S.C. 601 note; relating to regulatory planning and review) and any other relevant guidance from the Office of Management and Budget; (2) be transparent, replicable, and objective; (3) describe the need to be addressed and how the rule would address that need; (4) analyze the potential effects, including the benefits and costs, of the rule; (5) to the maximum extent practicable, consider the cumulative regulatory burden on the regulated entity under subsection (c); (6) consider the potential effects on different types and sizes of businesses, if applicable; (7) for a proposed rule that is likely to lead to a significant rule, or a final or interim final rule that is a significant rule— (A) describe the need to be addressed, including— (i) the supporting information demonstrating the need; (ii) the failures of private markets that warrant new agency action, if applicable; and (iii) whether existing law, including regulations, has created or contributed to the need; (B) define the baseline for the analysis; (C) set the timeframe of the analysis; (D) analyze any available regulatory alternatives, including— (i) if rulemaking is not specifically directed by statute, the alternative of not regulating; (ii) any alternatives that specify performance objectives rather than identify or require the specific manner of compliance that regulated entities must adopt; (iii) any alternatives that involve the deployment of innovative technology or practices; and (iv) any alternatives that involve different requirements for different types or sizes of businesses, if applicable; (E) identify the effects of the available regulatory alternatives described in subparagraph (D); (F) identify the effectiveness of tort law to address the identified need; (G) to the maximum extent practicable, quantify and monetize the benefits and costs of the selected regulatory alternative and the available alternatives under consideration; (H) discount future benefits and costs quantified and monetized under subparagraph (G); (I) to the maximum extent practicable, evaluate non-quantified and non-monetized benefits and costs of the selected regulatory alternative and the available alternatives under consideration; and (J) characterize any uncertainty in benefits, costs, and net benefits. (c) Cumulative regulatory burden In considering the cumulative regulatory burden under subsection (b)(5), an agency shall— (1) identify and assess the benefits and costs of other regulations require compliance by the same regulated entities to attempt to achieve similar regulatory objectives; (2) evaluate whether the rule is inconsistent with, incompatible with, or duplicative of other regulations; and (3) consider whether the estimated benefits and costs of the rule increase or decrease as a result of other regulations issued by the agency, including regulations that are not yet fully implemented, compared to the benefits and costs of that rule in the absence of such regulations. (d) Less burdensome alternatives If, after conducting an analysis under subsection (a) for a proposed rule that is likely to lead to a significant rule, or a final rule or interim final that is a significant rule, the agency selects a regulatory approach that is not the least burdensome compared to an available regulatory alternative, the agency shall include— (1) in the summary section of the preamble a statement that the selected approach is more burdensome than an available regulatory alternative; and (2) a justification, with supporting information, for the selected approach. (e) Regulatory determination (1) In general Except as expressly provided otherwise by law, an agency may issue a proposed rule, final rule, or interim final rule only upon a reasoned determination that the benefits of the rule justify the costs of the rule. (2) Requirements (A) Alternative Whenever an agency is expressly required by law to issue a rule, the agency shall select a regulatory alternative that has benefits that exceed costs and complies with law. (B) Compliance If it is not possible to comply with the law by selecting a regulatory alternative that has benefits that exceed costs, an agency shall select the regulatory alternative that has the least costs and complies with law. 614. Consideration of sunset dates (a) Sunset Not later than July 1, 2023, an agency shall, for each proposed rule or interim final rule of the agency that meets the economic threshold of a significant rule described in section 601(9)(A), include an explicit consideration of a sunset date for the rule. (b) Elements The consideration described in subsection (a) for a proposed rule or interim final rule described in that subsection shall include an assessment of whether the rule— (1) could become outmoded or outdated in light of changed circumstances, including the availability of new technologies; or (2) could become excessively burdensome after a period of time due to, among other things— (A) disproportionate costs on small businesses; (B) the net effect on employment, including jobs added or lost in the private sector; and (C) costs that exceed benefits. (c) Publication A summary of the consideration described in subsection (a) for a proposed rule or interim final rule described in that subsection shall be published in the Federal Register along with the proposed or interim final rule, as applicable. . (b) Technical and conforming amendment The table of sections for chapter 6 of title 5, United States Code, is amended by adding at the end the following: 613. Regulatory impact analyses. 614. Consideration of sunset dates. . 4. Judicial review Section 611(a) of title 5, United States Code, is amended, in paragraphs (1) and (2), by striking and 610 and inserting 610, and 613 .