[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 839 Introduced in Senate (IS)]
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118th CONGRESS
1st Session
S. 839
To require agencies to complete a regulatory impact analysis before
issuing a significant rule, and for other purposes.
_______________________________________________________________________
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.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Regulatory Transparency Act of
2023''.
SEC. 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.''.
SEC. 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:
``Sec. 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.
``Sec. 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.''.
SEC. 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''.
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