[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[S. 1607 Reported in Senate (RS)]
<DOC>
Calendar No. 721
114th CONGRESS
2d Session
S. 1607
To affirm the authority of the President to require independent
regulatory agencies to comply with regulatory analysis requirements
applicable to executive agencies, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
June 18, 2015
Mr. Portman (for himself, Mr. Warner, Ms. Collins, Mr. Lankford, Mrs.
Ernst, Mr. Kirk, and Mr. Johnson) introduced the following bill; which
was read twice and referred to the Committee on Homeland Security and
Governmental Affairs
December 9, 2016
Reported by Mr. Johnson, with an amendment
[Strike out all after the enacting clause and insert the part printed
in italic]
_______________________________________________________________________
A BILL
To affirm the authority of the President to require independent
regulatory agencies to comply with regulatory analysis requirements
applicable to executive agencies, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
<DELETED>SECTION 1. SHORT TITLE.</DELETED>
<DELETED> This Act may be cited as the ``Independent Agency
Regulatory Analysis Act of 2015''.</DELETED>
<DELETED>SEC. 2. DEFINITIONS.</DELETED>
<DELETED> In this Act--</DELETED>
<DELETED> (1) the term ``Administrator'' means the
Administrator of the Office of Information and Regulatory
Affairs;</DELETED>
<DELETED> (2) the term ``agency'' has the meaning given that
term in section 3502(1) of title 44, United States
Code;</DELETED>
<DELETED> (3) the term ``economically significant rule''
means any rule that the Administrator determines is likely to--
</DELETED>
<DELETED> (A) have an annual effect on the economy
of $100,000,000 or more; or</DELETED>
<DELETED> (B) 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;</DELETED>
<DELETED> (4) the term ``independent regulatory agency'' has
the meaning given that term in section 3502(5) of title 44,
United States Code; and</DELETED>
<DELETED> (5) the term ``rule''--</DELETED>
<DELETED> (A) means a rule, as that term is defined
in section 551 of title 5, United States Code;
and</DELETED>
<DELETED> (B) does not include a rule of the Board
of Governors of the Federal Reserve System or the
Federal Open Market Committee relating to monetary
policy.</DELETED>
<DELETED>SEC. 3. REGULATORY ANALYSIS BY INDEPENDENT AGENCIES.</DELETED>
<DELETED> (a) In General.--The President may by Executive order
require an independent regulatory agency to comply, to the extent
permitted by law, with regulatory analysis requirements applicable to
other agencies, including the requirements to--</DELETED>
<DELETED> (1) identify the problem that the agency intends
to address by a new rule (including, where applicable, the
failures of private markets or public institutions that warrant
new agency action) and assess the significance of that
problem;</DELETED>
<DELETED> (2) examine whether any existing rule (or other
law) has created, or contributed to, the problem that a new
rule is intended to correct and whether the existing rule (or
other law) should be modified to achieve the intended goal of
the new rule more effectively;</DELETED>
<DELETED> (3) identify and assess available alternatives to
direct regulation, including providing economic incentives to
encourage the desired behavior, or providing information upon
which choices can be made by the public;</DELETED>
<DELETED> (4) consider to the extent reasonable in setting
regulatory priorities, the degree and nature of the risks posed
by various substances or activities within its
jurisdiction;</DELETED>
<DELETED> (5) design its rules in the most cost-effective
manner to achieve the regulatory objective and, in doing so,
consider incentives for innovation, consistency,
predictability, the costs of enforcement and compliance (to the
Federal Government, regulated entities, and the public),
flexibility, distributive impacts, and equity;</DELETED>
<DELETED> (6) assess the costs and the benefits of the
intended rule and, recognizing some costs and benefits are
difficult to quantify, propose or adopt a rule only upon a
reasoned determination that the benefits of the rule justify
its costs;</DELETED>
<DELETED> (7) base its rulemaking decisions on the best
reasonably obtainable scientific, technical, economic, and
other information concerning the need for, and consequences of,
the intended rule;</DELETED>
<DELETED> (8) identify and assess alternative forms of
regulation and, to the extent feasible, specify performance
objectives, rather than specifying the behavior or manner of
compliance that regulated entities must adopt;</DELETED>
<DELETED> (9) seek the views of appropriate State, local,
and tribal officials before imposing regulatory requirements
that might significantly or uniquely affect State, local, or
tribal governmental entities, whenever feasible;</DELETED>
<DELETED> (10) avoid rules that are inconsistent or
incompatible with, or duplicative of, other rules of the
independent regulatory agency or other agencies;</DELETED>
<DELETED> (11) tailor rules to impose the least burden on
society, including individuals, businesses of differing sizes,
and other entities (including small communities and
governmental entities), consistent with achieving the
regulatory objectives, and taking into account, among other
factors, and to the extent practicable, the cost of cumulative
rules;</DELETED>
<DELETED> (12) draft each rule to be simple and easy to
understand, with the goal of minimizing the potential for
uncertainty and litigation arising from uncertainty;
and</DELETED>
<DELETED> (13) periodically review its existing economically
significant rules to determine whether any such rules should be
modified, streamlined, expanded, or repealed so as to make the
regulatory program of the agency more effective or less
burdensome in achieving the regulatory objectives.</DELETED>
<DELETED> (b) Economically Significant Rules.--For any proposed or
final rule identified by an independent regulatory agency as, or
determined by the Administrator to be, an economically significant
rule, the President may by Executive order require the independent
regulatory agency to provide to the Administrator and publish with the
proposed and final rule the following information, to the extent
permitted by law:</DELETED>
<DELETED> (1) An assessment, including the underlying
analysis, of benefits anticipated from the rule together with,
to the extent feasible, a quantification of those
benefits.</DELETED>
<DELETED> (2) An assessment, including the underlying
analysis, of costs anticipated from the rule together with, to
the extent feasible, a quantification of those costs.</DELETED>
<DELETED> (3) An assessment, including the underlying
analysis, of costs and benefits of potentially effective and
reasonably feasible alternatives to the rule, identified by the
agencies or the public, including improving existing
regulations and reasonably viable nonregulatory actions, and an
explanation of why the planned regulatory action is preferable
to the identified potential alternatives.</DELETED>
<DELETED> (c) Review by Office of Information and Regulatory
Affairs.--</DELETED>
<DELETED> (1) Requirement to seek review.--The President
may, by Executive order, require an independent regulatory
agency to submit to the Administrator for review--</DELETED>
<DELETED> (A) any proposed economically significant
rule, either prior to publication of the notice of
proposed rulemaking or, if the head of the independent
regulatory agency elects, during the general public
comment period; and</DELETED>
<DELETED> (B) any final economically significant
rule, prior to publication of the final rule.</DELETED>
<DELETED> (2) Nonbinding assessment.--An Executive order
issued under this Act may require that, not later than 90 days
after the independent regulatory agency submits a proposed or
final economically significant rule for review, the
Administrator submit for inclusion in the rulemaking record the
assessment of the Administrator of the extent to which the
independent regulatory agency has complied with any of the
regulatory analysis requirements made applicable by Executive
order.</DELETED>
<DELETED> (3) Determination and explanation by independent
agency.--An Executive order issued under this Act may require
that, if the Administrator concludes under paragraph (2) that
the independent regulatory agency did not comply with 1 or more
requirements of the Executive order with respect to a proposed
or final economically significant rule, the head of the
independent regulatory agency that issued the economically
significant rule shall include with the final rule--</DELETED>
<DELETED> (A) a determination that the rule complies
with the specified requirement or requirements and an
explanation of that determination; and</DELETED>
<DELETED> (B) if applicable, an explanation why the
independent regulatory agency did not comply with 1 or
more of the specified requirements, based on the
statutory provision authorizing the rule.</DELETED>
<DELETED>SEC. 4. LIMITATION ON JUDICIAL REVIEW.</DELETED>
<DELETED> (a) In General.--The compliance or noncompliance of an
independent regulatory agency with the requirements of an Executive
order issued under this Act shall not be subject to judicial
review.</DELETED>
<DELETED> (b) Agency Record.--When an action for judicial review of
a rule promulgated by an independent regulatory agency is instituted,
any determination, analysis, or explanation produced by the independent
regulatory agency, and any assessment produced by the Administrator,
pursuant to an Executive order issued under this Act, shall constitute
part of the whole record of agency action in connection with the
review.</DELETED>
<DELETED> (c) Rule of Construction.--Nothing in this section shall
be construed to bar judicial review of any other impact statement or
similar analysis required by any other provision of law if judicial
review of such statement or analysis is otherwise permitted by
law.</DELETED>
<DELETED>SEC. 5. RULE OF CONSTRUCTION.</DELETED>
<DELETED> Nothing in this Act shall be construed to limit the
authority of the President with respect to independent regulatory
agencies under any other applicable law.</DELETED>
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Independent Agency Regulatory
Analysis Act of 2015''.
SEC. 2. DEFINITIONS.
In this Act--
(1) the term ``Administrator'' means the Administrator of
the Office of Information and Regulatory Affairs;
(2) the term ``agency'' has the meaning given that term in
section 3502(1) of title 44, United States Code;
(3) the term ``economically significant rule'' means any
rule that the Administrator determines is likely to--
(A) have an annual effect on the economy of
$100,000,000 or more; or
(B) 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;
(4) the term ``independent regulatory agency'' has the
meaning given that term in section 3502(5) of title 44, United
States Code; and
(5) the term ``rule''--
(A) means a rule, as that term is defined in
section 551 of title 5, United States Code; and
(B) does not include a rule of the Board of
Governors of the Federal Reserve System or the Federal
Open Market Committee relating to monetary policy.
SEC. 3. REGULATORY ANALYSIS BY INDEPENDENT AGENCIES.
(a) In General.--The President may by Executive order require an
independent regulatory agency, while maximizing net benefits and
considering costs, to comply, to the extent permitted by law, with
regulatory analysis requirements applicable to other agencies,
including the requirements to--
(1) identify the problem that the agency intends to address
by a new rule (including, where applicable, the failures of
private markets or public institutions that warrant new agency
action) and assess the significance of that problem;
(2) examine whether any existing rule (or other law) has
created, or contributed to, the problem that a new rule is
intended to correct and whether the existing rule (or other
law) should be modified to achieve the intended goal of the new
rule more effectively;
(3) identify and assess available alternatives to direct
regulation, including providing economic incentives to
encourage the desired behavior, or providing information upon
which choices can be made by the public;
(4) consider to the extent reasonable in setting regulatory
priorities, the degree and nature of the risks posed by various
substances or activities within its jurisdiction;
(5) design its rules in the most cost-effective manner to
achieve the regulatory objective and, in doing so, consider
incentives for innovation, consistency, predictability, the
costs of enforcement and compliance (to the Federal Government,
regulated entities, and the public), flexibility, distributive
impacts, and equity;
(6) assess the costs and the benefits of the intended rule
and, recognizing some costs and benefits are difficult to
quantify, propose or adopt a rule only upon a reasoned
determination that the benefits of the rule justify its costs;
(7) base its rulemaking decisions on the best reasonably
obtainable scientific, technical, economic, and other
information concerning the need for, and consequences of, the
intended rule;
(8) identify and assess alternative forms of regulation
and, to the extent feasible, specify performance objectives,
rather than specifying the behavior or manner of compliance
that regulated entities must adopt;
(9) seek the views of appropriate State, local, and tribal
officials before imposing regulatory requirements that might
significantly or uniquely affect State, local, or tribal
governmental entities, whenever feasible;
(10) avoid rules that are inconsistent or incompatible
with, or duplicative of, other rules of the independent
regulatory agency or other agencies;
(11) tailor rules to impose the least burden on society,
including individuals, businesses of differing sizes, and other
entities (including small communities and governmental
entities), consistent with achieving the regulatory objectives,
and taking into account, among other factors, and to the extent
practicable, the cost of cumulative rules;
(12) draft each rule to be simple and easy to understand,
with the goal of minimizing the potential for uncertainty and
litigation arising from uncertainty; and
(13) periodically review its existing economically
significant rules to determine whether any such rules should be
modified, streamlined, expanded, or repealed so as to make the
regulatory program of the agency more effective or less
burdensome in achieving the regulatory objectives.
(b) Economically Significant Rules.--
(1) In general.--For any proposed or final rule identified
by an independent regulatory agency as, or determined by the
Administrator to be, an economically significant rule, the
President may by Executive order require the independent
regulatory agency to provide to the Administrator and publish
with the proposed and final rule the following information, to
the extent permitted by law:
(A) An assessment, including the underlying
analysis, of benefits anticipated from the rule
together with, to the extent feasible, a quantification
of those benefits.
(B) An assessment, including the underlying
analysis, of costs anticipated from the rule together
with, to the extent feasible, a quantification of those
costs.
(C) An assessment, including the underlying
analysis, of costs and benefits of potentially
effective and reasonably feasible alternatives to the
rule, identified by the agencies or the public,
including improving existing regulations and reasonably
viable nonregulatory actions, and an explanation of why
the planned regulatory action is preferable to the
identified potential alternatives.
(2) Submission to administrator.--An independent regulatory
agency described in paragraph (1) may provide to the
Administrator any assessment or underlying analysis that
substantially meets the requirements described in subparagraphs
(A), (B), and (C) of paragraph (1).
(3) Format.--Nothing in this subsection shall require an
assessment or underlying analysis to be provided or published
under this subsection in a manner that conforms to any specific
formatting standard.
(c) Review by Office of Information and Regulatory Affairs.--
(1) Requirement to seek review.--The President may by
Executive order require an independent regulatory agency to
submit to the Administrator for review--
(A) any proposed economically significant rule,
either prior to publication of the notice of proposed
rulemaking or, if the head of the independent
regulatory agency elects, during the general public
comment period; and
(B) any final economically significant rule, prior
to publication of the final rule.
(2) Nonbinding assessment.--An Executive order issued under
this Act may require that, not later than 90 days after the
independent regulatory agency submits a proposed or final
economically significant rule for review, the Administrator
submit for inclusion in the rulemaking record the assessment of
the Administrator of the extent to which the independent
regulatory agency has complied with any of the regulatory
analysis requirements made applicable by Executive order.
(3) Determination and explanation by independent agency.--
An Executive order issued under this Act may require that, if
the Administrator concludes under paragraph (2) that the
independent regulatory agency did not comply with 1 or more
requirements of the Executive order with respect to a proposed
or final economically significant rule, the head of the
independent regulatory agency that issued the economically
significant rule shall include with the final rule--
(A) a determination that the rule complies with the
specified requirement or requirements and an
explanation of that determination; and
(B) if applicable, an explanation why the
independent regulatory agency did not comply with 1 or
more of the specified requirements, based on the
statutory provision authorizing the rule.
(4) Failure to complete assessment.--An Executive order
issued under this Act may provide that, if the Administrator
does not complete an assessment under paragraph (2) within 90
days after the independent regulatory agency submits a proposed
or final economically significant rule for review--
(A) the independent regulatory agency shall be
deemed to have met the requirement for review by the
Administrator under paragraph (1); and
(B) the independent regulatory agency may publish
the final economically significant rule without
inclusion of an assessment in the rulemaking record.
SEC. 4. LIMITATION ON JUDICIAL REVIEW.
(a) In General.--The compliance or noncompliance of an independent
regulatory agency with the requirements of an Executive order issued
under this Act shall not be subject to judicial review.
(b) Agency Record.--When an action for judicial review of a rule
promulgated by an independent regulatory agency is instituted, any
determination, analysis, or explanation produced by the independent
regulatory agency, and any assessment produced by the Administrator,
pursuant to an Executive order issued under this Act, shall constitute
part of the whole record of agency action in connection with the
review.
(c) Rule of Construction.--Nothing in this section shall be
construed to bar judicial review of any other impact statement or
similar analysis required by any other provision of law if judicial
review of such statement or analysis is otherwise permitted by law.
SEC. 5. RULES OF CONSTRUCTION.
Nothing in this Act shall be construed to--
(1) limit the authority of the President with respect to
independent regulatory agencies under any other applicable law;
(2) limit, diminish, or otherwise affect the independence
from the President of independent regulatory agencies; or
(3) confer on the Administrator or the President any
authority to affect the decisionmaking or regulatory authority
of independent regulatory agencies.
Calendar No. 721
114th CONGRESS
2d Session
S. 1607
_______________________________________________________________________
A BILL
To affirm the authority of the President to require independent
regulatory agencies to comply with regulatory analysis requirements
applicable to executive agencies, and for other purposes.
_______________________________________________________________________
December 9, 2016
Reported with an amendment