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114th Congress   }                                   {     Rept. 114-12
                        HOUSE OF REPRESENTATIVES
 1st Session     }                                   {           Part 1

======================================================================



 
     SMALL BUSINESS REGULATORY FLEXIBILITY IMPROVEMENTS ACT OF 2015

                                _______
                                

February 2, 2015.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

   Mr. Goodlatte, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 527]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 527) 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, having considered the same, 
report favorably thereon without amendment and recommend that 
the bill do pass.

                                CONTENTS

                                                                   Page

Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     2
Hearings.........................................................    12
Committee Consideration..........................................    12
Committee Votes..................................................    12
Committee Oversight Findings.....................................    16
New Budget Authority and Tax Expenditures........................    17
Congressional Budget Office Cost Estimate........................    17
Duplication of Federal Programs..................................    17
Disclosure of Directed Rule Makings..............................    17
Performance Goals and Objectives.................................    17
Advisory on Earmarks.............................................    17
Section-by-Section Analysis......................................    17
Changes in Existing Law Made by the Bill, as Reported............    23
Dissenting Views.................................................    56

                          Purpose and Summary

    H.R. 527, the ``Small Business Regulatory Flexibility 
Improvements Act of 2015'' (SBRFIA), provides needed reforms to 
the Regulatory Flexibility Act of 1980 (RFA) and the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA). 
The RFA and SBREFA attempted to require agencies to account 
better for the impacts of proposed regulations on small 
businesses and other small entities and to tailor final 
regulations to minimize adverse impacts on these entities, but 
have not commanded full agency compliance.\1\ The SBRFIA 
updates the RFA and SBREFA to close loopholes and more 
effectively reduce the disproportionate burden that over-
regulation places on small entities, thereby enhancing job 
creation and hastening economic recovery.
---------------------------------------------------------------------------
    \1\See, e.g., U.S. General Accounting Office, Regulatory 
Flexibility Act: Agencies' Interpretations of Review Requirements Vary, 
GAO/GGD-99-55 (Apr. 2, 1999); U.S. General Accounting Office, Federal 
Rulemaking: Agencies Often Published Final Actions Without Proposed 
Rules, GAO/GGD-98-126 (Aug. 31, 1998); U.S. General Accounting Office, 
Regulatory Flexibility Act: Status of Agencies' Compliance, GAO/T-GGD-
95-112 (Mar. 8, 1995).
---------------------------------------------------------------------------

                Background and Need for the Legislation

                            I. INTRODUCTION

    Committee on Small Business Chairman and Judiciary Member 
Steve Chabot introduced H.R. 527 on January 26, 2015. The bill 
reforms the RFA for the first time since SBREFA's enactment in 
1996. The need for additional reform at this time is apparent 
from the increasing number and scope of regulations issued by 
Federal regulatory agencies; the disproportionate burden these 
regulations place on small businesses; and the failure of 
agencies thus far to comply fully with the RFA and SBREFA.\2\
---------------------------------------------------------------------------
    \2\See, e.g., U.S. General Accounting Office, Regulatory 
Flexibility Act: Agencies' Interpretations of Review Requirements Vary, 
GAO/GGD-99-55 (Apr. 2, 1999); U.S. General Accounting Office, Federal 
Rulemaking: Agencies Often Published Final Actions Without Proposed 
Rules, GAO/GGD-98-126 (Aug. 31, 1998); U.S. General Accounting Office, 
Regulatory Flexibility Act: Status of Agencies' Compliance, GAO/T-GGD-
95-112 (Mar. 8, 1995).
---------------------------------------------------------------------------
    H.R. 527's predecessor bills, H.R. 2542 and H.R. 527, 
passed the 113th and 112th Congresses respectively on 
bipartisan votes on September 18, 2014 (253-163, as part of 
H.R. 4), February 27, 2014 (236-179, as part of H.R. 2804), and 
December 1, 2011 (263-159, as part of H.R. 527). H.R. 527 
reintroduced this legislation in a form essentially identical 
to the text which most recently passed the House, as part of 
H.R. 4, renaming the bill the ``Small Business Regulatory 
Flexibility Improvements Act of 2015'' and otherwise preserving 
as written the text contained in H.R. 4. The Committee notes 
that the views expressed in this report should be read in 
conjunction with the report filed by the Committee on Small 
Business (H. Rep. No. 113-288, Part 2) on H.R. 2542 from the 
113th Congress, since the language of H.R. 527 is nearly 
identical to that of H.R. 2542.

                II. GENESIS AND EARLY HISTORY OF THE RFA

    During the 1970's, Congress enacted numerous regulatory 
statutes that dramatically increased the regulatory burden on 
businesses--and especially on small businesses. Regulatory 
requirements stifled innovation, limited small business growth, 
and contributed to the general economic malaise that permeated 
the latter half of the decade. Between 1970 and 1980, the 
Federal Register more than quadrupled, from a 20,000-page 
publication for the arcana of the Federal Government to a 
nearly 90,000-page blueprint for regulating many aspects of 
modern American life.\3\
---------------------------------------------------------------------------
    \3\See Figure 2: Federal Register Pages: 1940-2010, in Susan E. 
Dudley, ``Prospects for Regulatory Reform in 2011,'' Engage 11:1 (June 
2011).
---------------------------------------------------------------------------
    In a series of hearings during the late 1970's, Congress 
began to focus on the ever-growing burden Federal regulation 
imposed upon small businesses. Small businesses reiterated two 
major themes: (1) they were under-represented in Federal 
regulatory proceedings; and (2) Federal agency efforts to 
impose a ``one-size-fits-all'' body of regulation imposed 
disproportionate burdens on small businesses.\4\ These findings 
were supported and reinforced during the 1980 White House 
Conference on Small Business.
---------------------------------------------------------------------------
    \4\The finding on disproportionate impact was substantiated by an 
Office of Advocacy study in 1984; this has been re-affirmed by 
subsequent research. See, e.g., National Association of Manufacturers, 
The Cost of Federal Regulation to the U.S. Economy, Manufacturing and 
Small Business at 1 (Sept. 10, 2014), available at http://www.nam.org/
Data-and-Reports/Cost-of-Federal-Regulations/Federal-Regulation-Full-
Study.pdf (last accessed January 24, 2015).
---------------------------------------------------------------------------
    To address these concerns, Congress enacted the RFA as an 
additional component of a significantly broader mechanism to 
control agency decision-making: the Administrative Procedure 
Act of 1946 (APA). In general, the RFA requires Federal 
agencies to prepare a regulatory flexibility analysis that 
describes the rule's impact on small entities, including on 
small businesses, when proposed and final rules are published 
in the Federal Register.\5\ These analytical requirements are 
not triggered, however, if the head of the agency issuing the 
rule certifies pursuant to section 605(b) of the Act that the 
rule would not have a ``significant economic impact on a 
substantial number of small entities,''\6\ an undefined term of 
art in the RFA. The lack of a uniform definition for this term 
is a shortcoming that the U.S. Government Accountability Office 
(GAO) repeatedly has found contributes to inconsistent 
compliance across Federal agencies.\7\ Further, although the 
Congressional Research Service has advised that the annual 
total number of certifications by all agencies is not known (or 
even knowable), the GAO has found that in the 3-year period 
after SBREFA was enacted the certification rate at four EPA 
offices increased from 78% to 96%.\8\ Thus, the EPA avoided 
complying with the RFA and SBREFA by certifying more of its 
rules pursuant to Section 605(b). Finally, agencies only need 
to assess a new regulation's direct impacts on small entities; 
courts have held that indirect impacts--which often are 
significant--are irrelevant under the RFA.\9\
---------------------------------------------------------------------------
    \5\See 5 U.S.C. Sec. Sec. 603, 604.
    \6\See id. Sec. 605(b).
    \7\See, e.g., U.S. General Accounting Office, Regulatory 
Flexibility Act: Key Terms Still Need to Be Clarified, GAO-01-669T 
(Apr. 24, 2001), at 2 (``Over the past decade, we have recommended 
several times that Congress provide greater clarity with regard to 
these terms, but to date Congress has not acted on our 
recommendations.'').
    \8\U.S. General Accounting Office, Regulatory Flexibility Act: 
Implementation in EPA Program Offices and Proposed Lead Rule, GAO-GGD-
00-193 (Sept. 2000), at 16.
    \9\See, e.g., Mid-Tex Elec. Co-op., Inc. v. FERC, 773 F.2d 327, 343 
(D.C. Cir. 1985) (``the legislative history [of the RFA] . . . also 
gives rise to an inference that Congress did not intend to require that 
every agency consider every indirect effect that any regulation might 
have on small businesses in any stratum of the national economy.'').
---------------------------------------------------------------------------
    The RFA also requires each Federal agency to publish a 
``regulatory flexibility agenda'' in the Federal Register twice 
a year,\10\ similar to the Unified Agenda of Federal Regulatory 
and Deregulatory Actions required by Executive Order 12866. The 
Small Business Administration (SBA) Chief Counsel for Advocacy 
is required to monitor and report on agency compliance, and is 
authorized to appear as amicus curiae ``in any action brought 
in a court of the United States to review a rule'' and to 
present his or her views regarding the agency's compliance with 
the RFA and the rule's impacts on small entities.\11\ The RFA 
also requires agencies to conduct decennial rule reviews to 
identify whether the impacts of rules on small entities can be 
mitigated further.\12\ The effectiveness of this requirement 
remains unclear, however, as indicated by inconsistent agency 
practice.\13\
---------------------------------------------------------------------------
    \10\See 5 U.S.C. Sec. 602.
    \11\See id. Sec. 612(a), (b).
    \12\See id. Sec. 610.
    \13\For example, the EPA only reviews rules that it previously 
concluded had a significant economic impact on a substantial number of 
small entities when the final rules were promulgated. The Department of 
Transportation, on the other hand, interprets this section to require a 
review of all of its rules. See U.S. General Accounting Office, 
Regulatory Flexibility Act: Agencies' Interpretations of Review 
Requirements Vary, GAO/GGD-99-55 (Apr. 2, 1999), at 24.
---------------------------------------------------------------------------
    From the time of enactment until 1996, agency compliance 
with the RFA was at best sporadic. Agencies faced little threat 
from non-compliance, since judicial review of regulatory 
flexibility analyses was very limited, and an agency's 
certification decision could not be challenged in court.\14\ 
Without the possibility of court orders, agencies only had to 
comply when it would benefit their rulemakings or when they 
could be cajoled by the Chief Counsel for Advocacy or the 
Office of Management and Budget's Office of Information and 
Regulatory Affairs. Both the Committee on the Judiciary and the 
Committee on Small Business held hearings at which witnesses 
confirmed the systemic failure by many agencies to comply with 
the RFA.\15\
---------------------------------------------------------------------------
    \14\See, e.g., Thompson v. Clark, 741 F.2d 401, 405 (D.C. Cir. 
1984); Colo. State Banking Bd. v. Resolution Trust Corp., 926 F.2d 931, 
948 (10th Cir. 1991); Lehigh Valley Farmers v. Block, 640 F. Supp. 
1497, 1520 (E.D. Pa. 1986), aff'd on other grounds, 829 F.2d 409 (3d 
Cir. 1987).
    \15\See, e.g., Strengthening the Regulatory Flexibility Act: 
Hearing on H.R. 9 Before H. Comm. on Small Business, 104th Cong., 
Serial No. 104-5, at 45-46 (Jan. 23, 1995) (statement of James P. 
Carty, Vice President, Small Manufacturers, National Association of 
Manufacturers) (identifying instances where the EPA and Pension Benefit 
Guaranty Corporation failed to comply with the RFA); Job Creation and 
Wage Enhancement Act of 1995: Hearing on H.R. 9 Before the Subcomm. on 
Comm. and Admin. Law of the H. Comm. on the Judiciary, 104th Cong., 
Serial No. 104-3, at 76 (Feb. 3 & 6, 1995) (statement of Benny L. 
Thayer, President, National Association for the Self-Employed) (noting 
that confusion under the RFA ``has led to an apparent belief on the 
part of some agencies that compliance with the RFA is entirely 
voluntary'').
---------------------------------------------------------------------------

            III. ENACTMENT OF SBREFA AND SUBSEQUENT HISTORY

    Congress enacted SBREFA in response to this collective 
disregard by Federal agencies, adding several important 
features to the RFA: compliance guides, advocacy review panels, 
and judicial review. Agencies were required by SBREFA to 
develop and publish compliance guides for all rules for which 
the agency was required to develop a final regulatory 
flexibility analysis. The compliance guide explains the steps a 
small entity must take to comply with new regulations.\16\ In 
addition, SBREFA authorized direct judicial review of agency 
compliance with the RFA, including challenges to agency 
certifications that a rule would not have a ``significant 
economic impact on a substantial number of small 
entities.''\17\ SBREFA also subjected certain Internal Revenue 
Service interpretative regulations to the RFA.\18\
---------------------------------------------------------------------------
    \16\See ``Contract with America Advancement Act,'' 104 P.L. 141, 
Sec. 212 (Mar. 29, 1996); see also 5 U.S.C. Sec. 601 note.
    \17\5 U.S.C. Sec. 610(a).
    \18\The RFA only requires agency compliance if the regulation is 
required to be issued pursuant to notice and comment pursuant to 
Section 553 of the APA or some other statute. Interpretative 
regulations are exempt from the notice and comment requirements. 5 
U.S.C. Sec. 553(b)(A).
---------------------------------------------------------------------------
    With regard to advocacy review panels, Congress recognized 
that, by the time a proposed rule is published for notice and 
comment, the agency has substantial intellectual capital 
invested in the proposed rule and is unlikely to change the 
core of its proposal during the notice and comment period.\19\ 
Thus, under SBREFA, Congress required the Environmental 
Protection Agency (EPA) and the Occupational Safety and Health 
Administration (OSHA)--two of the agencies that most impact 
small entities--to obtain input from small entities before 
publishing a proposed rule that would have a significant 
economic impact on a substantial number of small entities.\20\ 
(In 2010, the Dodd-Frank Wall Street Reform and Consumer 
Protection Act further required the new Consumer Financial 
Protection Bureau to convene advocacy review panels.\21\) 
Before publishing an initial regulatory flexibility analysis, 
the agency is required to notify the SBA's Chief Counsel for 
Advocacy and provide information on the draft rule's potential 
impacts on small entities. The Chief Counsel for Advocacy then 
assembles a panel consisting of representatives from OIRA, the 
agency promulgating the rule, and the SBA. The panel gathers 
input from small entities' representatives and issues a report 
within 60 days, which becomes part of the administrative record 
for the rule.
---------------------------------------------------------------------------
    \19\In fact, some would argue that the notice and comment period 
was not a critical component of rational rulemaking but the keystone of 
``rationale'' rulemaking, in which the agency uses the public comment 
process to find further support for the foregone conclusion of its 
proposed regulation.
    \20\See 5 U.S.C. Sec. 609.
    \21\See P.L. 111-203, Sec. 1100G(a) (July 21, 2010).
---------------------------------------------------------------------------
    Congressional intent notwithstanding, SBREFA's changes have 
had only a modest effect on agency compliance with regulatory 
flexibility requirements.\22\ According to the GAO, the most 
significant stumbling block to improved compliance is the lack 
of definitions in the RFA and SBREFA for the terms 
``significant economic impact'' and ``substantial number of 
small entities.'' GAO also noted that the threshold 
determination of whether a rule will have a significant 
economic impact on a substantial number of small entities is 
critical to compliance with other RFA requirements, including 
periodic review of rules under Section 610 and the receipt of 
small-entity input under SBREFA prior to the publication of 
proposed rules by EPA and OSHA.
---------------------------------------------------------------------------
    \22\See, e.g., Sarah E. Shive, If You've Always Done It That Way, 
It's Probably Wrong: How the Regulatory Flexibility Act Has Failed To 
Change Agency Behavior, and How Congress Can Fix It, 1 Entrepren. Bus. 
L.J. 153, 164 (2006) (``[W]hile one Department of Labor official noted 
that the judicial review permitted by the SBREFA would likely result in 
a `significant impact,' judges have rarely ruled in favor of small 
businesses, granting substantial deference to agencies in all but the 
most egregious of cases.''); Christopher M. Grengs, Making the Unseen 
Seen: Issues and Options in Small Business Regulatory Reform, 85 Minn. 
L. Rev. 1957, 1973 (June 2001) (``Some observers expressed high 
optimism about SBREFA's prospects for holding Federal agencies more 
accountable for their treatment of small businesses. Although this 
optimism was perhaps not entirely deserved, SBREFA has spurred moderate 
progress in improving the regulatory treatment of small businesses. In 
particular, since SBREFA's enactment in 1996, judicial review of 
Federal agency action under SBREFA has proved to be a promising 
lynchpin for remedying irrational or glaringly mistaken agency 
action.''); Jeffrey J. Polich, Judicial Review and the Small Business 
Regulatory Enforcement Fairness Act: An Early Examination of When and 
Where Judges Are Using Their Newly Granted Power Over Federal 
Regulatory Agencies, 41 Wm. & Mary L. Rev. 1425, 1426, 1461 (Apr. 2000) 
(``A review of existing case law demonstrates that small entities have 
prevailed using SBREFA in cases in which there was a gross violation of 
Federal rulemaking procedures by an agency, but failed when using 
SBREFA in cases in which the agency made some effort to comply with 
those requirements. . . . The SBREFA amendments succeed in refining the 
requirements of the RFA and, in particular, the judicial review 
provision grants small businesses a weapon to insure that Federal 
agencies comply with the RFA. Judicial deference to agency decisions, 
however, limits the power of judicial review. In the end, true 
regulatory relief depends upon the agencies' own commitment to fairness 
and balance for the small businesses they regulate.'') (emphasis 
added).
---------------------------------------------------------------------------
    President George W. Bush also recognized the problems with 
RFA and SBREFA compliance in a 2002 speech:

        Every agency is required to analyze the impact of new 
        regulations on small businesses before issuing them. 
        That is an important law. The problem is it is often 
        being ignored. The law is on the books; the regulators 
        do not care that the law is on the books. From this day 
        forward they will care that the law is on the books. . 
        . . We want to enforce the law.\23\
---------------------------------------------------------------------------
    \23\``President Unveils Small Business Plan at Women's 
Entrepreneurship Summit,'' (Mar. 19, 2002), available at http://
georgewbush-whitehouse.archives.gov/news/releases/2002/03/20020319-
2.html (last accessed July 25, 2011).

Subsequently, the President issued Executive Order 13272,\24\ 
which required agencies to adopt standards for complying with 
the RFA, to make those standards known to the public and to 
give the Office of Advocacy the opportunity to comment on 
proposed rules prior to publication in the Federal Register. 
The Executive Order, however, was not judicially 
enforceable\25\ and did not address the RFA's loopholes or 
prevent agencies from adopting strained interpretations to 
avoid doing the required analysis.
---------------------------------------------------------------------------
    \24\67 Fed. Reg. 53,462 (Aug. 16, 2002).
    \25\See id. at sec. 8.
---------------------------------------------------------------------------
    Courts similarly have not been the antidotes that the 
authors of SBREFA contemplated. For example, courts have not 
given agency compliance with the RFA the same searching 
scrutiny that they have given to compliance with the National 
Environmental Policy Act (NEPA),\26\ even though it was 
expected that judicial review would have the same impact on 
agency decision-making that it had on agency compliance with 
NEPA.\27\ Agencies still have broad latitude to interpret and 
implement the RFA.
---------------------------------------------------------------------------
    \26\Compare Associated Fisheries v. Daley, 127 F.3d 104, 112-18 
(1st Cir. 1997) (holding SBREFA does not mandate courts to conduct a 
substantive judicial review of final decisions), and U.S. Cellular 
Corp. v. FCC, 254 F.3d 78, 88 (D.C. Cir. 2001) (``Regulatory 
Flexibility Act, which requires Federal agencies to assess the impact 
of their regulations on small businesses, is purely procedural in 
nature, requiring nothing more than filing of statement demonstrating 
good-faith effort to carry out its mandate.'') with Dubois v. U.S. 
Dep't of Agric., 102 F.3d 1273, 1285 (1st Cir. 1996) (reviewing an 
agency's compliance to NEPA requires a ```thorough, probing, indepth 
[sic] review' and a `searching and careful' inquiry into the record'').
    \27\Regulatory Flexibility Amendments Act of 1995 on S. 350: 
Hearing Before S. Comm. on Small Business, 104th Cong., Serial No. 104-
103, at 24 (Mar. 8, 1995) (statement of Jere W. Glover, Chief Counsel 
for Advocacy, U.S. Small Business Administration) (``A more substantial 
and ongoing threat, potential judicial review of agency compliance with 
the RFA, would certainly lead to scrupulous compliance with the RFA, 
just as similar attentiveness is paid to the impact statement 
requirements of the [NEPA].'').
---------------------------------------------------------------------------
    Testimony at hearings held by the Committee on Small 
Business during the 106th, 107th and 108th Congresses supported 
additional reform,\28\ revealing that considerable confusion 
still reigned among agencies and that agencies still found ways 
to avoid complying with the RFA, even after the enactment of 
SBREFA.\29\ In the 109th Congress, H.R. 682 sought to achieve 
most of the reforms contained in H.R. 527, H.R. 2542 and, now, 
H.R. 527. This Committee's Subcommittee on Commercial and 
Administrative Law and the Committee on Small Business both 
held hearings on H.R. 682.\30\
---------------------------------------------------------------------------
    \28\IRS Compliance with the Regulatory Flexibility Act: Hearing 
Before the H. Comm. on Small Business, 108th Cong., Serial No. 108-10 
(May 1, 2003) (``IRS Compliance''); Improving the Regulatory 
Flexibility Act: H.R. 2345: Hearing Before the H. Comm. on Small 
Business, 108th Cong., Serial No. 108-62 (May 5, 2004); Can Improved 
Compliance with the Regulatory Flexibility Act Resuscitate Small 
Healthcare Providers?: Hearing Before the H. Comm. on Small Business, 
107th Cong., Serial No. 107-53 (Apr. 10, 2002); Regulatory Reform 
Initiatives and Their Impact on Small Business: Hearing Before the H. 
Comm. on Small Business, 106th Cong., Serial No. 106-60 (June 7, 2000).
    \29\See, e.g., IRS Compliance at 38 (May 1, 2003) (statement of 
Juanita Millender-McDonald, Member, House Comm. on Small Business) 
(``The IRS has generally avoided the requirements of SBREFA, even 
though the law was, in part, specifically written to address IRS 
compliance with the RFA.''); Can Improved Compliance with the 
Regulatory Flexibility Act Resuscitate Small Healthcare Providers?: 
Hearing Before the H. Comm. on Small Business, 107th Cong., Serial No. 
107-53, at 15 (Apr. 10, 2002) (statement of Zachary Evans, President, 
National Association of Portable X-Ray Providers) (``CMS refuses to 
consider the impact upon our industry of their rulemaking, consult with 
us during the rulemaking process, or in any way evaluate industry costs 
prior to setting our reimbursement rates.''); Regulatory Reform 
Initiatives and Their Impact on Small Business: Hearing Before the 
Comm. on Small Business, 106th Cong., Serial No. 106-60, at 40 (June 7, 
2000) (statement of Duncan Thomas, President, National Association of 
Convenience Stores) (explaining that SBREFA ``leads often to confusion, 
inadvertent noncompliance and considerable expense'').
    \30\The RFA at 25: Needed Improvements for Small Business 
Regulatory Relief: Hearing on H.R. 682 Before the H. Comm. on Small 
Business, 109th Cong., Serial No. 109-5 (Mar. 16, 2005); Regulatory 
Flexibility Improvements Act: Hearing on H.R. 682 Before the H. Comm. 
on the Judiciary, 109th Cong., Serial No. 109-134 (July 30, 2006).
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         IV. THE OBAMA ADMINISTRATION AND THE CONTINUING NEED 
                               FOR REFORM

    On January 18, 2011, President Obama issued a Presidential 
Memorandum to agency heads entitled ``Regulatory Flexibility, 
Small Business, and Job Creation,'' stating that his 
``Administration is firmly committed to eliminating excessive 
and unjustified burdens on small businesses, and to ensuring 
that regulations are designed with careful consideration of 
their effects, including their cumulative effects, on small 
businesses.''\31\ The President also directed agency heads to 
publish explanations of their decisions not to provide 
regulatory flexibility for small businesses, if those decisions 
were not based on legal limitations. The President's 
memorandum, however, added nothing meaningful to existing 
agency requirements, and it explicitly stated that the 
memorandum did not create any legal rights. Even if it had, any 
of its provisions could be revoked at any time, as it is merely 
an executive memorandum, not a law.
---------------------------------------------------------------------------
    \31\``Presidential Memoranda--Regulatory Flexibility, Small 
Business, and Job Creation,'' (Jan. 18, 2011), available at http://
www.whitehouse.gov/the-press-office/2011/01/18/presidential-
memoranda-regulatory-flexibility-small-business-and-job-cre (last 
accessed July 25, 2011).
---------------------------------------------------------------------------
    Meanwhile, the need for additional RFA reform has grown. In 
2010, for example, Federal agencies promulgated 3,312 final 
rules, while Congress passed and the President signed into law 
only 385 statutes. Recent reports have found that Federal 
rulemaking imposes a cumulative burden of at least $1.86 
trillion on our economy--a figure that equals about $15,000 per 
household, per year.\32\ That burden, moreover, falls 
disproportionately on small businesses:
---------------------------------------------------------------------------
    \32\See Clyde Wayne Crews, Jr., Ten Thousand Commandments: An 
Annual Snapshot of the Federal Regulatory State, at 2 (Competitive 
Enterprise Institute 2014); cf. Cost of Federal Regulation to the U.S. 
Economy, Manufacturing and Small Business at 1 (estimating total 
Federal regulatory costs in 2012 at $2.028 trillion).

        Considering all Federal regulations, all sectors of the 
        U.S. economy and all firm sizes, Federal regulations 
        cost just less than $10,000 per employee per year in 
        2012 (in 2014 dollars). Small firms with fewer than 50 
        employees incur regulatory costs ($11,724 per employee 
        per year) that are 17 percent greater than the average 
        firm. The cost per employee is $10,664 for medium-sized 
        firms and $9,083 for large firms. These estimates are 
        consistent with prior studies completed during the past 
        25 years, which have shown that the cost of regulatory 
        compliance disproportionately affects small firms.\33\
---------------------------------------------------------------------------
    \33\Id.

Another recent study found that ``[e]ach million-dollar 
increase in the regulatory budget costs the economy 420 private 
sector jobs.''\34\
---------------------------------------------------------------------------
    \34\T. Randolph Beard et al., Regulatory Expenditures, Economic 
Growth and Jobs: An Empirical Study, Phoenix Center Policy Bulletin No. 
28 (Apr. 2011), at 5, available at http://www.phoenix-center.org/
PolicyBulletin/PCPB28Final.pdf (last accessed July 25, 2011).
---------------------------------------------------------------------------
    Recent regulatory expansions and the future threat of 
further excessive Federal regulation--such as under the waves 
of regulation occurring to implement the Patient Protection and 
Affordable Care Act\35\ and the Dodd-Frank Wall Street Reform 
and Consumer Protection Act\36\--have created immense 
regulatory burdens and uncertainty for the economy, chilling 
job creation, investment and economic growth and suppressing 
America's economic freedom and standing among the world's 
economies.\37\ These effects are particularly burdensome on 
small businesses--and since start-up firms are the source of 
net job creation in the U.S. economy, it is only logical that 
the impact of these effects on small businesses contributes 
substantially to the economy's inability to create sufficient 
levels of new jobs.\38\
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    \35\P.L. 111-148 (Mar. 23, 2010).
    \36\P.L. 111-203 (July 21, 2010).
    \37\See, e.g., Editors, The Uncertainty Principle, Wall Street 
Journal (July 14, 2010), available at http://online.wsj.com/article/
SB10001424052748704288204575363162664835780.html
?KEYWORDS=rulemakings (last accessed July 25, 2011); Chamber of 
Commerce, Jobs for America: an Open Letter to the President of the 
United States, the United States Congress, and the American People 
(July 14, 2010) (stating, e.g., that, substantially due to regulatory 
uncertainty, American corporations are sitting on well over $1 trillion 
that they could otherwise invest); Terry Miller & Kim R. Holmes, 
``Mostly Free''--The Startling Decline of America's Economic Freedom 
and What to Do About It, Heritage Foundation (July 14, 2010), available 
at http://www.heritage.org/Research/Reports/2010/07/Mostly-Free-The-
Startling-Decline-of-Americas-Economic-Freedom-and-What-to-Do-About-It 
(summary) (last accessed July 25, 2011); http://
thf_media.s3.amazonaws.com/2010/pdf/sr0082.pdf (full report) (last 
accessed July 25, 2011); Terry Miller, The U.S. loses Ground on 
Economic Freedom, Wall Street Journal (Jan. 13, 2011), available at 
http://online.wsj.com/article/SB1000142405274870377970457607419321499
9486.html?utm_source=Newsletter&utm;_medium=Email&utm;_campaign=Heritage%2
BHot
sheet (last accessed July 25, 2011); Heritage Foundation and Wall 
Street Journal, 2011 Index of Economic Freedom: Executive Highlights 
(Jan. 2011) at 6 (placing America as ninth in economic freedom among 
countries surveyed and recording a further decline in U.S. economic 
freedom).
    \38\Tim Kane, The Importance of Start-ups in Job Creation and Job 
Destruction, Ewing Marion Kaufmann Foundation (July 2010) at 6, 
available at http://www.kauffman.org/uploadedFiles/
firm_formation_importance_of_startups.pdf (last accessed July 25, 
2011).
---------------------------------------------------------------------------
    Agencies continue to ignore their obligations under the 
RFA. For example, EPA found carbon dioxide to be a threat to 
public health and welfare\39\ and initiated an inexorable 
series of additional regulatory actions that, under existing 
environmental laws, will impose large adverse impacts on small 
businesses. EPA, however, refused to comply with the RFA--even 
when the Chief Counsel for Advocacy pointed out to the EPA 
Administrator (and, by copy, to OIRA) that EPA had failed to 
convene advocacy review panels before imposing its rules, 
failed to develop and evaluate regulatory alternatives to 
minimize its actions' impacts on small businesses, and 
inappropriately certified that its actions will not impact 
small businesses.\40\ When former Judiciary Committee Chairman 
Lamar Smith and Small Business Committee Chairman Sam Graves 
brought to OIRA's attention their concerns over these 
violations, the potential for EPA's regulations to impose 
particularly heavy burdens on small businesses, and the need 
for OIRA to intervene and assure RFA compliance, OIRA's 
response was simply to refer the matter to EPA.\41\
---------------------------------------------------------------------------
    \39\Endangerment and Cause or Contribute Findings for Greenhouse 
Gases under Section 202(a) of the Clean Air Act, EPA Docket No. EPA-HQ-
OAR-2009-0171, RIN 2060-ZA14 (Dec. 7, 2009).
    \40\Letter from Susan Walthall, Acting Chief Counsel, Office of the 
Chief Counsel for Advocacy, Small Business Administration to the 
Honorable Lisa Jackson, EPA Administrator, (Dec. 23, 2009) (letter on 
file).
    \41\Letter from Reps. Lamar Smith and Sam Graves to Cass R. 
Sunstein, OIRA Administrator (Jan. 21, 2010); response letter from 
Administrator Sunstein to Reps. Smith and Graves (Apr. 29, 2010) 
(letters on file).
---------------------------------------------------------------------------
    Other, still more recent instances of EPA's failures to 
comply with RFA requirements are similarly egregious. The joint 
EPA and Corps of Engineers ``Waters of the United States'' 
rulemaking (WOTUS), for example, could result in a large 
expansion of Clean Water Act (CWA) permitting and other 
requirements to waters asserted in the proposed rule for the 
first time to be categorically jurisdictional, as opposed to 
being subject to case-by-case jurisdictional determinations, as 
well as other waters proposed to be newly subjected to case-by-
case jurisdictional determinations. The CWA permitting process 
alone can be quite expensive and lengthy. As reported in a 2002 
assessment, ``[t]he average applicant for an individual [CWA 
section 404] permit spends 788 days and $271,596 in completing 
the process, and the average applicant for [coverage under the 
agencies' general,] nationwide permit spends 313 days and 
$28,915.''\42\ That time and those costs, moreover, did not 
include the time and expense of design changes or mitigation 
measures that could be required.\43\ Permits required under CWA 
section 402, meanwhile, which include effluent limitations, 
monitoring and reporting requirements, and conditions, also 
impose costs. As just one example, EPA itself estimated that 
per-construction-site compliance costs for its Phase II section 
402 storm-water permitting program were between $2,143 and 
$9,646 for sites that disturbed between one and five acres.\44\ 
In the WOTUS rulemaking, however, EPA and the Corps certified, 
without any factual basis for the certification, that the 
proposed rule would not have a ``significant economic impact on 
a substantial number of small entities,''\45\ despite the 
obvious potential consequences for direct and indirect impacts 
on small businesses and other small entities. Making matters 
worse, the agencies' analysis did not even account for waters 
that previously had been assumed by landowners and businesses 
to be non-jurisdictional under the CWA.\46\
---------------------------------------------------------------------------
    \42\Rapanos v. United States, 547 U.S. 715, 721 (2006) (citation 
omitted). The Corps may issue general (state, regional or nationwide) 
permits for similar activities that when performed separately will 
cause only minimal environmental effects. 33 U.S.C. Sec. 1344(e).
    \43\Id.
    \44\United States Environmental Protection Agency, Economic 
Analysis of the Final Phase II Storm Water Rules ES-4 (1999). The 
compliance cost figures are the sum of the average best management 
practice costs and administrative costs. Id.
    \45\Proposed Rule, 79 Fed. Reg. at 22,220.
    \46\Letter to EPA and Corps from Waters Advocacy Coalition 2 (May 
13, 2014), available at http://www.regulations.gov/
#!documentDetail;D=EPA-HQ-OW-2011-0880-0851.
---------------------------------------------------------------------------
    Other agencies are similarly at fault for non-compliance 
with the RFA and SBREFA. On January 25, 2011, for example, OSHA 
announced that it had temporarily withdrawn from OMB review a 
proposed rule on injury-related employer recordkeeping. The 
stated reason for the withdrawal was to ``seek greater input 
from small businesses on the impact of the proposal.''\47\ Yet 
rather than commit itself to full RFA/SBREFA compliance, OSHA 
promised to hold a meeting ``to engage and listen to small 
businesses about the agency's proposal'' and to ``conduct a 
stakeholder meeting with other members of the public if 
requested.''\48\ This falls well short of convening the 
advocacy review panel that OSHA is required by law to hold.\49\
---------------------------------------------------------------------------
    \47\U.S. Dep't of Labor, Office of Public Affairs, News Release: US 
Labor Department's OSHA temporarily withdraws proposed column for work-
related musculoskeletal disorders, reaches out to small businesses 
(Jan. 25, 2011).
    \48\Id.
    \49\See 5 U.S.C. Sec. 609.
---------------------------------------------------------------------------

           V. HEARINGS ON THE LEGISLATION IN PRIOR CONGRESSES

    On February 10, 2011, the Subcommittee on Courts, 
Commercial and Administrative Law held a legislative hearing on 
H.R. 527.\50\ Testimony was received from Rich Gimmell, 
President of Atlas Machine & Supply, Inc.; Thomas M. Sullivan, 
Counsel for Nelson, Mullins, Riley, Scarborough LLP; J. Robert 
Shull, Program Officer of Worker Right's for the Public Welfare 
Foundation; and, Karen R. Harned, Executive Director of the 
National Federation of Independent Business (NFIB).
---------------------------------------------------------------------------
    \50\See ``Regulatory Flexibility Improvements Act of 2011''--
Unleashing Small Businesses to Create Jobs: Hearing on H.R. 527 Before 
the Subcomm. on Courts, Commercial and Administrative Law of the H. 
Comm. on the Judiciary, 112th Cong., Serial No. 112-16 (Feb. 10, 2011).
---------------------------------------------------------------------------
    Mr. Gimmell, also representing the National Association of 
Manufacturers, noted that the current recession had to that 
point resulted in a loss of 2.2 million jobs in the 
manufacturing sector.\51\ Mr. Gimmell called for ``more 
detailed statements in the RFA process and requirements to 
identify redundant, overlapping, or conflicting 
regulations.''\52\ Incorporating this sort of ``lean thinking'' 
into the regulatory process would change the current wasteful 
policy practices of most agencies and, in turn, improve the 
economy by allowing businesses to create jobs and expand.\53\
---------------------------------------------------------------------------
    \51\Id. at 56.
    \52\Id.
    \53\Id.
---------------------------------------------------------------------------
    Mr. Sullivan testified, ``One size fits all Federal 
mandates do not work when applied to small business; second, 
small businesses face higher costs per employee to comply with 
Federal regulation than their larger competitors, and, third, 
small business is critically important to the American 
economy.''\54\ According to Mr. Sullivan, H.R. 527 would enable 
the Office of Advocacy to ensure that agencies properly 
consider how their regulations impact small businesses, and 
would provide clarity to courts on judicial review.\55\
---------------------------------------------------------------------------
    \54\Id. at 65.
    \55\Id. at 66.
---------------------------------------------------------------------------
    According to Ms. Harned, ``[o]verzealous regulation is a 
perennial cause for concern for small business owners and is 
particularly burdensome in times like these when the Nation's 
economy remains sluggish.''\56\ Ms. Harned stated that ``small 
businesses face an annual regulatory cost of $10,585 per 
employee which is 36 percent more than the regulatory cost 
facing businesses with more than 500 employees.''\57\ In 
opposition to H.R. 527, Mr. Shull alleged the bill would 
``paralyze the regulatory agencies we need to protect the 
public and keep them from getting things done to protect the 
public.''\58\
---------------------------------------------------------------------------
    \56\Id. at 85.
    \57\Id.
    \58\Id. at 77.
---------------------------------------------------------------------------
    The Committee on Small Business also held a legislative 
hearing on H.R. 527.\59\ Testimony was received from Bill 
Squires, Senior Vice President and General Counsel for 
Blackfoot Telecommunications Group; David Frulla of Kelley Drye 
& Warren LLP; Craig Fabian, Vice President of Regulatory 
Affairs and Assistant General Counsel at the Aeronautical 
Repair Station Association; and, Rich D. Draper, CEO of the Ice 
Cream Club, Inc.
---------------------------------------------------------------------------
    \59\See Reducing Federal Agency Overreach: Modernizing the 
Regulatory Flexibility Act Before the H. Comm. on Small Business, 112th 
Cong., Serial No. 112-007 (Mar. 30, 2011).
---------------------------------------------------------------------------
    On June 26, 2013, the Subcommittee on Regulatory Reform, 
Commercial and Antitrust Law held a legislative hearing on H.R. 
2542.\60\ Testimony was received from NFIB Exec. Dir. Harned; 
Carl Harris, co-founder of Carl Harris Co., Inc., Kansas 
national area chairman for the National Association of Home 
Builders, and president of the Kansas Building Industry 
Association; Rosario Palmieri, Vice President, Infrastructure, 
Legal and Regulatory Policy, National Association of 
Manufacturers; and, Amit Narang, Regulatory Policy Advocate, 
Public Citizen.
---------------------------------------------------------------------------
    \60\See ``Legislative Hearing on H.R. 2542, the Regulatory 
Flexibility Improvements Act of 2013'' Before the Subcomm. on 
Regulatory Reform, Commercial and Antitrust Law of the H. Comm. on the 
Judiciary, 113th Cong., Serial No. 113-29 (June 28, 2013) (hearing 
record available at http://judiciary.house.gov/index.cfm/
hearings?ID=37999061-C141-C381-BD6B-A8FC233C3258).
---------------------------------------------------------------------------
    Ms. Harned testified that overzealous regulation remains a 
constant concern, and that, as of June 20, 2013, 23 percent of 
small businesses cited red tape as their most important 
concern, second only to taxes.\61\ Ms. Harned emphasized that, 
according to analysis of recent figures released by OIRA, the 
costs imposed by new regulations under the Obama Administration 
in 2012 alone exceeded the costs of new regulations promulgated 
by both the George W. Bush and Clinton administrations.\62\ 
Meanwhile, Ms. Harned stressed, job creation in the U.S. has 
remained stagnant, and small businesses had reported a drop in 
willingness to hire since November 2012.\63\ In Ms. Harned's 
view, regulatory reform like the RFIA would ``go a long way'' 
towards resolving the adverse impacts of regulation on small 
businesses, who are responsible for most job creation in the 
economy.\64\
---------------------------------------------------------------------------
    \61\Statement of Karen Harned at ``Legislative Hearing on H.R. 
2542, the Regulatory Flexibility Improvements Act of 2013'' Before the 
Subcomm. on Regulatory Reform, Commercial and Antitrust Law of the H. 
Comm. on the Judiciary, 113th Cong., Serial No. 113-29 at 2 (June 28, 
2013) (available at http://judiciary.house.gov/index.cfm/
hearings?ID=37999061-C141-C381-BD6B-A8FC233C3258).
    \62\Id. at 2-3.
    \63\Id. at 3.
    \64\Id.
---------------------------------------------------------------------------
    Mr. Harris testified that the costs of regulation at all 
levels account for 25 percent of the cost of new homes, and 
that it can be very difficult for a small business to comply 
with the myriad of regulations affecting its business.\65\ 
Based on his experience with the RFA and SBREFA, including as a 
SBREFA small business review panelist, Mr. Harris testified 
that the concepts of the RFA and SBREFA were constructive, but 
that, under existing law, agencies too frequently reduced RFA 
and SBREFA compliance to a ``check the box'' exercise that 
produced insufficiently meaningful results.\66\ Mr. Harris 
submitted that the RFIA's reforms to the RFA and SBREFA would 
substantially contribute to the realization of these statutes' 
promise.\67\
---------------------------------------------------------------------------
    \65\Statement of Carl Harris at ``Legislative Hearing on H.R. 2542, 
the Regulatory Flexibility Improvements Act of 2013'' Before the 
Subcomm. on Regulatory Reform, Commercial and Antitrust Law of the H. 
Comm. on the Judiciary, 113th Cong., Serial No. 113-29 at 2 (June 28, 
2013) (available at http://judiciary.house.gov/index.cfm/
hearings?ID=37999061-C141-C381-BD6B-A8FC233C3258).
    \66\Id.
    \67\Id.
---------------------------------------------------------------------------
    Mr. Palmieri testified that nearly 95 percent of U.S. 
manufacturers have fewer than 100 employees, and that ``to 
compete on a global stage, manufacturing in the United States 
needs policies that enable companies to thrive and create 
jobs.''\68\ Mr. Palmieri directed the Subcommittee's attention 
to a 2011 study by the Manufacturers Institute and the 
Manufacturers Alliance for Productivity and Innovation, which 
found that U.S. manufacturers ``face a 20 percent structural 
cost burden compared to nine major trading partners because of 
government imposed policies, including regulations.''\69\ Mr. 
Palmieri also cited recent evidence that 67 percent of 
manufacturers cited an unfavorable business climate due to 
regulations and taxes as a primary challenge that they 
faced.\70\ Mr. Palmieri submitted that, when regulatory 
agencies did comply with the RFA and SBREFA, positive results 
could occur, but that agencies far too often were able to evade 
meaningful RFA compliance.\71\ Like Ms. Harned and Mr. Harris, 
he testified that the RFIA would greatly help to solve this 
problem.\72\
---------------------------------------------------------------------------
    \68\Statement of Rosario Palmieri at ``Legislative Hearing on H.R. 
2542, the Regulatory Flexibility Improvements Act of 2013'' Before the 
Subcomm. on Regulatory Reform, Commercial and Antitrust Law of the H. 
Comm. on the Judiciary, 113th Cong., Serial No. 113-29 at 3 (June 28, 
2013) (available at http://judiciary.house.gov/index.cfm/
hearings?ID=37999061-C141-C381-BD6B-A8FC233C3258).
    \69\Id. at 4.
    \70\Id.
    \71\Id. at 5-7.
    \72\Id. at 6.
---------------------------------------------------------------------------
    Mr. Narang, by contrast, submitted that, in his view, the 
RFIA would slow down the regulatory process unnecessarily.\73\ 
In his view, a more productive path forward would be to provide 
more compliance guidance and assistance to small businesses, 
rather than additional analysis of regulations before they are 
imposed.\74\
---------------------------------------------------------------------------
    \73\Statement of Amit Narang at ``Legislative Hearing on H.R. 2542, 
the Regulatory Flexibility Improvements Act of 2013'' Before the 
Subcomm. on Regulatory Reform, Commercial and Antitrust Law of the H. 
Comm. on the Judiciary, 113th Cong., Serial No. 113-29 at 9 (June 28, 
2013) (available at http://judiciary.house.gov/index.cfm/
hearings?ID=37999061-C141-C381-BD6B-A8FC233C3258).
    \74\Id. at 10.
---------------------------------------------------------------------------

                                Hearings

    The Committee on the Judiciary held no hearings this term 
on H.R. 527. As discussed above, the Committee held multiple 
hearings in the 112th and 113th Congresses on previous bills 
that embodied the legislation.

                        Committee Consideration

    On January 27, 2015, the Committee met in open session and 
ordered the bill H.R. 527 favorably reported without amendment, 
by a rollcall vote of 19 to 8, a quorum being present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that the 
following rollcall votes occurred during the Committee's 
consideration of H.R. 527.

                             ROLLCALL NO. 1
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................
Mr. Chabot (OH)................................              X
Mr. Issa (CA)..................................              X
Mr. Forbes (VA)................................              X
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................              X
Mr. Jordan (OH)................................              X
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................
Mr. Gowdy (SC).................................              X
Mr. Labrador (ID)..............................
Ms. Farenthold (TX)............................
Mr. Collins (GA)...............................              X
Mr. DeSantis (FL)..............................
Ms. Walters (CA)...............................              X
Mr. Buck (CO)..................................              X
Mr. Ratcliffe (TX).............................              X
Mr. Trott (MI).................................              X
Mr. Bishop (MI)................................              X
 
Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................      X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN).................................
Mr. Johnson (GA)...............................      X
Mr. Pierluisi (PR).............................      X
Ms. Chu (CA)...................................
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................      X
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI).............................      X
Mr. Peters (CA)................................      X
                                                ------------------------
    Total......................................      7      15
------------------------------------------------------------------------

    1. Amendment #1, offered by Mr. Johnson. The Amendment 
exempts regulations that the Director of the Office of 
Management and Budget determines would result in net job 
creation. The Amendment was defeated by a rollcall vote of 7 to 
15.

                             ROLLCALL NO. 2
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................
Mr. Chabot (OH)................................              X
Mr. Issa (CA)..................................              X
Mr. Forbes (VA)................................              X
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................              X
Mr. Jordan (OH)................................
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................
Mr. Gowdy (SC).................................              X
Mr. Labrador (ID)..............................
Ms. Farenthold (TX)............................              X
Mr. Collins (GA)...............................              X
Mr. DeSantis (FL)..............................              X
Ms. Walters (CA)...............................              X
Mr. Buck (CO)..................................              X
Mr. Ratcliffe (TX).............................
Mr. Trott (MI).................................              X
Mr. Bishop (MI)................................              X
 
Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................      X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN).................................
Mr. Johnson (GA)...............................      X
Mr. Pierluisi (PR).............................      X
Ms. Chu (CA)...................................
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................      X
Mr. Jeffries (NY)..............................      X
Mr. Cicilline (RI).............................      X
Mr. Peters (CA)................................      X
                                                ------------------------
    Total......................................      8      15
------------------------------------------------------------------------

    2. Amendment #2, offered by Mr. Conyers. The Amendment 
strikes section 5 of H.R. 2542, which provides compliance-
related rulemaking authority to the Small Business 
Administration's Chief Counsel for Advocacy and repeals waiver 
provisions of the RFA. The amendment was defeated by a rollcall 
vote of 8 to 15.

                             ROLLCALL NO. 3
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................
Mr. Chabot (OH)................................              X
Mr. Issa (CA)..................................              X
Mr. Forbes (VA)................................              X
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................              X
Mr. Jordan (OH)................................              X
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................
Mr. Gowdy (SC).................................              X
Mr. Labrador (ID)..............................
Ms. Farenthold (TX)............................              X
Mr. Collins (GA)...............................              X
Mr. DeSantis (FL)..............................              X
Ms. Walters (CA)...............................              X
Mr. Buck (CO)..................................              X
Mr. Ratcliffe (TX).............................              X
Mr. Trott (MI).................................              X
Mr. Bishop (MI)................................              X
 
Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................      X
Ms. Lofgren (CA)...............................      X
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN).................................
Mr. Johnson (GA)...............................      X
Mr. Pierluisi (PR).............................      X
Ms. Chu (CA)...................................
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................      X
Mr. Jeffries (NY)..............................      X
Mr. Cicilline (RI).............................      X
Mr. Peters (CA)................................      X
                                                ------------------------
    Total......................................      9      17
------------------------------------------------------------------------

    3. Amendment #3, offered by Mr. Nadler. The Amendment adds 
requirements that agencies identify direct and indirect 
benefits of covered regulations. The Amendment was defeated by 
a rollcall vote of 9 to 17.

                             ROLLCALL NO. 4
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................      X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................      X
Mr. Chabot (OH)................................      X
Mr. Issa (CA)..................................      X
Mr. Forbes (VA)................................      X
Mr. King (IA)..................................      X
Mr. Franks (AZ)................................      X
Mr. Gohmert (TX)...............................      X
Mr. Jordan (OH)................................      X
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................      X
Mr. Marino (PA)................................
Mr. Gowdy (SC).................................      X
Mr. Labrador (ID)..............................
Ms. Farenthold (TX)............................      X
Mr. Collins (GA)...............................      X
Mr. DeSantis (FL)..............................      X
Ms. Walters (CA)...............................      X
Mr. Buck (CO)..................................      X
Mr. Ratcliffe (TX).............................      X
Mr. Trott (MI).................................      X
Mr. Bishop (MI)................................      X
 
Mr. Conyers, Jr. (MI), Ranking Member..........              X
Mr. Nadler (NY)................................              X
Ms. Lofgren (CA)...............................              X
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN).................................
Mr. Johnson (GA)...............................              X
Mr. Pierluisi (PR).............................              X
Ms. Chu (CA)...................................
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................              X
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI).............................              X
Mr. Peters (CA)................................              X
                                                ------------------------
    Total......................................     19       8
------------------------------------------------------------------------

    4. Reporting H.R. 527. The bill will promote job creation, 
economic growth and the protection of small entities from 
unnecessary Federal regulatory burdens. Reported by a rollcall 
vote of 19 to 8.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    With respect to clause 3(c)(3) of rule XIII of the Rules of 
the House of Representatives, an estimate and comparison 
prepared by the Director of the Congressional Budget Office 
under section 402 of the Congressional Budget Act of 1974 was 
not submitted to the Committee before the of filing of the 
report.

                    Duplication of Federal Programs

    No provision of H.R. 527 establishes or reauthorizes a 
program of the Federal Government known to be duplicative of 
another Federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111-139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

                  Disclosure of Directed Rule Makings

    The Committee estimates that H.R. 527 specifically directs 
the Chief Counsel for Advocacy of the Small Business 
Administration to conduct one rule making proceeding within the 
meaning of 5 U.S.C. 551.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
527 is intended to promote job creation and economic growth by 
better protecting small entities from unnecessary Federal 
regulatory burdens.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 527 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.

                      Section-by-Section Analysis

    The following discussion describes the bill as reported by 
the Committee.
Section 1. Short title; table of contents.
    Section 1 provides that the Act may be cited as the ``Small 
Business Regulatory Flexibility Improvements Act of 2015.''
Section 2. Clarification and Expansion of Rules Covered by the 
        Regulatory Flexibility Act.
    Subsection 2(a) expands the RFA and SBREFA to apply to all 
rules within the meaning of 5 U.S.C. Sec. 551(4), except for 
certain rules of particular applicability. The RFA currently 
defines a ``rule'' as one that is issued pursuant to the notice 
and comment rulemaking provisions of Section 553(b) of the APA. 
The Committee believes this definition is unjustifiably narrow; 
the definition of a ``rule'' under the RFA should be the same 
as under the APA. Amendment 15 adopted by the Small Business 
Committee at its September 18, 2013, markup of H.R. 2542 
amended Subsection 2(a) to exempt rules that protect the rights 
of and benefits for veterans from the definition of ``rule'' in 
the legislation.
    Subsection 2(b) clarifies the term ``economic impact.'' The 
RFA requires agencies to prepare a regulatory flexibility 
analysis if the agency determines that the rule will have a 
``significant economic impact on a substantial number of small 
entities.'' But this term is not defined in current law, and 
courts have held that agencies do not need to consider indirect 
economic impacts on small entities. The Committee doubts that 
Congress originally intended the regulatory flexibility 
analysis to be so limited. Indirect effects are no less 
burdensome on small entities than direct effects. Moreover, 
agencies already measure their regulations' indirect effects 
under the National Environmental Policy Act, upon which the RFA 
is modeled, and when performing the cost-benefit analysis 
required by Executive Order 12,866. Subsection 2(b) thus 
clarifies that the term ``economic impact'' covers both direct 
and indirect effects that are reasonably foreseeable. Finally, 
Subsection 2(b) clarifies that indirect economic effects 
include compliance costs and effects on revenue.
    Subsection 2(c) clarifies that an agency must perform a 
regulatory flexibility analysis when a proposed rule's effects 
are significant but beneficial. Agencies interpret the current 
law to require a regulatory flexibility analysis only when a 
proposed rule has significant costs to small entities. 
Requiring a regulatory flexibility analysis when a proposed 
rule has significant benefits will encourage agencies to pick 
the most beneficial alternative.
    Subsection 2(d) adds tribal organizations to the list of 
``small entities'' within the RFA's purview. The same 
considerations that necessitate requiring agencies to perform 
regulatory flexibility analyses when small governmental bodies 
are concerned apply with equal force to tribal organizations.
    Subsection 2(e) clarifies that the RFA applies to land 
management plans developed by the U.S. Forest Service and the 
Bureau of Land Management. This is the GAO's view, although the 
Forest Service and the BLM disagree. Since these agencies 
already collect economic data for NEPA reports, this 
clarification will not be burdensome.
    Subsection 2(f)(1) clarifies that the IRS must comply fully 
with the RFA. The IRS has previously concluded that it is not 
required to follow the RFA when issuing an ``interpretative'' 
rule outside of the notice-and-comment process. Adopted in 
1996, SBREFA required the IRS to comply with the RFA when an 
interpretative rule imposes a collection-of-information 
requirement on a small entity. The IRS misinterprets this 
statute to apply only when the taxpayer is required to complete 
a brand new, never-used form. Section 2(f)(1) makes clear that 
the IRS is required to comply with the RFA whenever the IRS 
intends to codify a regulation in the Code of Federal 
Regulations and the regulation (or statute that the regulation 
is interpreting) imposes a collection-of-information 
requirement. Moreover, the ensuing regulatory flexibility 
analysis should not be limited to the cost associated with the 
``collection of information''; rather, the ``collection of 
information'' is a trigger for a full analysis of the rule's 
economic effects. Subsections 2(f)(2)-(3) establishes that the 
terms ``collection of information'' and ``recordkeeping 
requirement'' have the same meaning under the RFA as under the 
Paperwork Reduction Act.
    Subsection 2(g) adopts the definition of ``small 
organization'' under the RFA that the Equal Access to Justice 
Act uses, focusing on the resources available to the 
organization, i.e., its net worth and number of employees. The 
current definition of ``small organization'' is unwieldy. Like 
the RFA, one purpose of the EAJA is to protect small entities 
from overzealous regulatory enforcement. Thus, both statutes 
should define ``small organization'' in the same way. 
Subsection 2(g) extends the RFA's protections to local labor 
organizations as well.
Section 3. Expansion of Report of Regulatory Agenda.
    Section 3 expands the terms of 5 U.S.C. sec. 602, which 
requires agencies to publish regulatory agendas every April and 
October, including regulations that may have significant 
impacts on substantial numbers of small entities. Section 3 
requires the agendas to describe the North American Industrial 
Classification System sectors primarily affected by the rules. 
It also requires agencies and the SBA to publish plain language 
summaries of the information in the agendas on their websites.
Section 4. Requirements for Providing More Detailed Analyses.
    NEPA, which was the model when Congress adopted the RFA in 
1980, requires agencies to develop a ``detailed statement'' 
regarding the environmental impact of a proposed rule. Courts 
have interpreted NEPA to require agencies to take a ``hard 
look'' at environmental impacts. The RFA, however, only 
requires agencies to develop a ``statement'' regarding the 
impact of a new regulation on small entities.
    After finding that agencies were not fulfilling their 
responsibilities under the RFA, Congress amended it in 1996 to 
allow for judicial review, to create the same compliance 
incentives that exist under NEPA. Unfortunately, courts 
reviewing agency compliance with SBREFA and RFA have not 
applied the same level of searching scrutiny as they have given 
to compliance with NEPA. Consequently, agencies are performing 
the bare minimum of analysis to satisfy judicial review, 
without focusing on the most important issue: how to minimize 
the negative economic impact of regulations on small entities.
    Section 4 is intended to increase agency scrutiny directly, 
by amending the statute, rather than indirectly, as was 
attempted in SBREFA by adding a judicial review component. 
Thus, Subsection 4(a) amends Section 603 by requiring the 
initial regulatory flexibility analysis (``IFRA'') to contain a 
``detailed statement'' rather than merely a ``statement''; by 
striking the term ``succinct'' from Subsection 603(b)(2); by 
striking the term ``where feasible'' from Subsection 603(b)(3); 
and, by striking the phrase ``to the extent practicable'' from 
Subsection 603(b)(5). Agencies exploit these terms to avoid 
following the law's clear intent. Subsection 4(a) also adds a 
new paragraph (6) to Subsection 603(b), requiring agencies to 
consider the cumulative economic impact of the proposed rule in 
light of existing rules. Additionally, recognizing that a rule 
could affect some small entities more than others, Subsection 
4(a)(7) requires agencies to describe any disproportionate 
economic impact on a specific class of small entities. Finally, 
Subsection 4(a) requires that an initial regulatory flexibility 
analysis describe any impairment of the ability of small 
entities to have access to credit.
    Regarding the final regulatory flexibility analysis 
(``FRFA''), Subsection 4(b)(1) amends Section 604 to require 
the ``description'' and ``explanation'' required by Subsections 
604(b)(4), (5) and (6) to be ``detailed.'' This comports with 
the ``detailed statement'' required of agencies by NEPA. The 
bill also requires agencies to describe in the FRFA any 
disproportionate economic impact on a class of small entities. 
Subsection 4(b)(2) closes an oversight in the RFA to require an 
agency, when preparing an FRFA, to summarize all comments 
received throughout the process, not just comments received in 
response to an IFRA. Subsection 4(b)(3) updates the RFA 
technologically by requiring agencies to post FRFAs online.
    Subsection 4(c) allows agencies to satisfy the RFA by 
making reference to already-completed analyses (for example, 
under NEPA) that satisfy the RFA's criteria. If the necessary 
analysis already has been completed, then there is no reason to 
force an agency to go through the rote exercise of performing 
it again. Nevertheless, agencies must cite to the pre-existing 
analysis with specificity; vague or casual references will not 
suffice. Thus, Subsection 4(c) requires the agency to identify 
the ``specific portion of another agenda or analysis.'' In the 
same vein, when an agency certifies that a proposed rule will 
not have a ``significant economic impact on a substantial 
number of small entities,'' Subsection 4(d) requires the agency 
to give a ``detailed statement'' and to identify the supporting 
``factual and legal'' basis for the certification.
    Finally, Subsection 4(e) makes quantifiable data (of the 
caliber required under the Information Quality Act) the 
standard for measuring the economic impact of a proposed rule 
on small entities. This will make agencies' IRFAs and FRFAs 
more transparent, including for courts at the judicial review 
stage. If quantifiable data is unavailable then the agency must 
provide a ``detailed statement explaining why quantification is 
not practicable or reliable'' as well as ``a more general 
descriptive statement'' of the rule's effects. The Chief 
Counsel for Advocacy will have the authority to promulgate 
regulations fleshing out these data quality standards.
Section 5. Repeal of Waiver Authority and Additional Powers of Chief 
        Counsel.
    Section 5 empowers the Chief Counsel for Advocacy to make 
rules governing agency compliance with the RFA. The status quo 
of agency compliance with the RFA is best described as 
inconsistent and recalcitrant. To address this problem, the 
Chief Counsel will promulgate rules regarding agency compliance 
within 270 days of enactment. This parallels the authority of 
the Council on Environmental Quality to issue regulations 
governing agency compliance with the NEPA. The Chief Counsel's 
regulations will be promulgated according to notice-and-comment 
rulemaking and consequently will receive Chevron deference. 
Agencies can issue supplementary compliance protocols, but no 
agency can overturn the Chief Counsel's compliance rules.
    Section 5 clarifies that the Chief Counsel may intervene in 
agency adjudications, like an amicus curiae, to advise the 
agency of how its decision will affect small entities. The 
Chief Counsel is not authorized to appeal any decision or 
otherwise to act as counsel for the small entity concerned. 
Section 5 also allows the Chief Counsel to file comments on any 
notice of proposed rulemaking, which will strengthen the Chief 
Counsel's role as the main advocate for small entities in all 
Federal agency decision-making (not just when the RFA is 
concerned).
    Section 5 repeals agencies' authority to waive IRFAs and 
delay FRFAs by 180 days in emergency situations. The waiver 
provision of Section 608 of the RFA is redundant with Section 
553 of the APA. The entire RFA process for determining the 
impact of a rule on small entities--advocacy review panels, 
IRFAs and FRFAs--is triggered by notice and comment rulemaking. 
The RFA's current waiver provision is unnecessary in light of 5 
U.S.C. Sec. 553(b)(B), which allows an agency to bypass notice 
and comment rulemaking ``for good cause,'' which would apply in 
an emergency.
Section 6. Procedures for Gathering Comments.
    Section 6 clarifies, improves and expands the advocacy 
review panel process. Currently, as amended by SBREFA, Section 
609 requires OSHA and the EPA to hold advocacy review panels 
before publishing an IRFA, to receive input directly from small 
entities. The new Consumer Financial Protection Bureau also is 
required to conduct advocacy review panels.
    Building on these reforms, Section 6 expands the use of 
advocacy review panels to all Federal agencies, including 
independent regulatory agencies, for any major rule (as defined 
by the Congressional Review Act) or for any rule that will have 
a significant economic impact on a substantial number of small 
entities. Section 6 clarifies the type of information the 
agency must provide to the Office of Advocacy (with an 
appropriate accommodation made for IRS rules) and describes the 
content and focus of the report itself, which is to be drafted 
by the Chief Counsel for Advocacy in consultation with other 
panel members. Rather than simply listing concerns raised by 
small entities in the panel process, the report should discuss 
in detail the regulation's economic impact and analyze 
alternatives that will minimize costs or maximize benefits. 
Section 6 slightly reforms the panel's composition and 
clarifies that the Office of Advocacy is solely responsible for 
selecting small entity representatives to advise the panel. The 
Section also empowers the Chief Counsel for Advocacy to waive 
the panel process when it is ``impractical, unnecessary, or 
contrary to the public interest.''
    In addition, Section 6 clarifies that agencies are required 
annually to publish the list of existing rules they plan to 
review under the Regulatory Flexibility Act's periodic review 
requirement; requires agencies to provide to small entities, 
upon their request, panel reports and materials and information 
provided to the Chief Counsel for Advocacy within 10 business 
days of the request; and requires that an assessment of the 
economic impact of a proposed rule on small entities in a panel 
report includes an assessment of the proposed rule's impact on 
startup costs for small entities.
Section 7. Periodic Review of Rules.
    Section 7 of H.R. 527 reforms Section 610 to clarify how 
agencies must perform the periodic regulatory review. The law 
as currently written contains a number of ambiguities and 
shortcomings that warrant clarification and revision. Section 7 
requires agencies to develop new periodic review plans within 
180 days and to publish these plans online. Section 7 clarifies 
that the agency must review all rules that have a significant 
economic impact on a substantial number of small entities--
regardless of whether the agency originally prepared an FRFA 
for the rule. The trigger is whether the rule currently has a 
significant economic impact on a substantial number of small 
entities.
    Pursuant to this periodic review, the agency should amend 
the rule as necessary to maximize its benefits or minimize its 
costs to small entities, considering the factors given in the 
new Subsection 610(d). In addition, the agency must report the 
results of the review and publish in the Federal Register a 
list of rules to be reviewed and request comments.
    Section 7 also requires that an agency conduct outreach to 
and meaningfully include women, veteran and socially and 
economically disadvantaged small businesses in their plan to 
gather input on existing agency rules. Finally, Section 7 
allows small entities to provide input on the list of rules an 
agency plans to review by requiring agencies to solicit public 
comment on the list of rules when it is published in the 
Federal Register and on the agency's website.
Section 8. Judicial Review of Compliance with the RFA.
    Under Section 8, judicial review is available when the 
agency publishes the final rule; the current law requires small 
entities to wait until the ``final agency action'' is complete 
before bringing suit alleging a violation of the RFA. Taken 
together, Subsections 8(a) and (b) ensure that small entities 
will have prompt access to judicial review without procedural 
delays from agency-imposed exhaustion requirements. Subsection 
8(c) makes appropriate conforming and technical corrections to 
Section 611. Lastly, Subsection 8(d) clarifies the Chief 
Counsel for Advocacy's authority to file an amicus brief 
regarding agency compliance with the RFA.
Section 9. Jurisdiction of Court of Appeals for Challenges to Rules 
        Implementing RFA.
    Subsection 9(a) grants jurisdiction to the U.S. Court of 
Appeals to review challenges by small entities to rules 
promulgated by the Chief Counsel for Advocacy to implement the 
RFA. Subsection 9(b) makes technical conforming amendments. 
Subsection 9(c) clarifies the Chief Counsel's authority to file 
an amicus brief in a lawsuit challenging an agency's compliance 
with the Chief Counsel's rules implementing the RFA.
Section 10. Establishment and Approval of Small Business Concern Size 
        Standards by Chief Counsel for Advocacy
    Section 10 transfers from the SBA Administrator to the 
Chief Counsel for Advocacy the function of determining size 
standards of small businesses for purposes other than the Small 
Business Act and Small Business Investment Act of 1958.
Section 11. Clerical Amendments.
    Section 11 contains necessary clerical amendments to make 
the U.S. Code consistent with the foregoing changes.
Section 12. Agency Preparation of Guides.
    Subsection 212(a)(5) of SBREFA requires agencies to prepare 
compliance guides for any rule for which a final regulatory 
flexibility analysis was prepared. Under the existing law, 
agencies may consult with small entities in the development of 
these guides. Section 12 requires agencies to solicit input 
from affected small entities or associations of affected small 
entities in the development of compliance guides.
Section 13. Comptroller General Report.
    Section 13 requires a GAO study no later than 90 days after 
the enactment of the legislation that examines whether the 
Office of the Chief Counsel for Advocacy has the capacity and 
resources to carry out its duties under the bill.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, and existing law in which no 
change is proposed is shown in roman):

                      TITLE 5, UNITED STATES CODE



           *       *       *       *       *       *       *
PART I--THE AGENCIES GENERALLY

           *       *       *       *       *       *       *


            CHAPTER 6--THE ANALYSIS OF REGULATORY FUNCTIONS

Sec.
601. Definitions.
     * * * * * * *
[605. Avoidance of duplicative or unnecessary analyses.]
605. Incorporations by reference and certifications.
     * * * * * * *
[607. Preparation of analyses.
[608. Procedure for waiver or delay of completion.]
607. Quantification requirements.
608. Additional powers of Chief Counsel for Advocacy.

Sec. 601. Definitions

     For purposes of this chapter--
            [(1) the term]
            (1) Agency._The term ``agency'' means an agency as 
        defined in section 551(1) of this title[;].
            [(2) the term ``rule'' means any rule for which the 
        agency publishes a general notice of proposed 
        rulemaking pursuant to section 553(b) of this title, or 
        any other law, including any rule of general 
        applicability governing Federal grants to State and 
        local governments for which the agency provides an 
        opportunity for notice and public comment, except that 
        the term ``rule'' does not include a rule of particular 
        applicability relating to rates, wages, corporate or 
        financial structures or reorganizations thereof, 
        prices, facilities, appliances, services, or allowances 
        therefor or to valuations, costs or accounting, or 
        practices relating to such rates, wages, structures, 
        prices, appliances, services, or allowances;]
            (2) Rule.--The term ``rule'' has the meaning given 
        such term in section 551(4) of this title, except that 
        such term does not include a rule pertaining to the 
        protection of the rights of and benefits for veterans 
        or a rule of particular (and not general) applicability 
        relating to rates, wages, corporate or financial 
        structures or reorganizations thereof, prices, 
        facilities, appliances, services, or allowances 
        therefor or to valuations, costs or accounting, or 
        practices relating to such rates, wages, structures, 
        prices, appliances, services, or allowances.
            [(3) the term]
            (3) Small business._The term ``small business'' has 
        the same meaning as the term ``small business concern'' 
        under section 3 of the Small Business Act, unless an 
        agency, after consultation with the Office of Advocacy 
        of the Small Business Administration and after 
        opportunity for public comment, establishes one or more 
        definitions of such term which are appropriate to the 
        activities of the agency and publishes such 
        definition(s) in the Federal Register[;].
            [(4) the term ``small organization'' means any not-
        for-profit enterprise which is independently owned and 
        operated and is not dominant in its field, unless an 
        agency establishes, after opportunity for public 
        comment, one or more definitions of such term which are 
        appropriate to the activities of the agency and 
        publishes such definition(s) in the Federal Register;]
            (4) Small organization.--
                    (A) In general.--The term ``small 
                organization'' means any not-for-profit 
                enterprise which, as of the issuance of the 
                notice of proposed rulemaking--
                            (i) in the case of an enterprise 
                        which is described by a classification 
                        code of the North American Industrial 
                        Classification System, does not exceed 
                        the size standard established by the 
                        Administrator of the Small Business 
                        Administration pursuant to section 3 of 
                        the Small Business Act (15 U.S.C. 632) 
                        for small business concerns described 
                        by such classification code; and
                            (ii) in the case of any other 
                        enterprise, has a net worth that does 
                        not exceed $7,000,000 and has not more 
                        than 500 employees.
                    (B) Local labor organizations.--In the case 
                of any local labor organization, subparagraph 
                (A) shall be applied without regard to any 
                national or international organization of which 
                such local labor organization is a part.
                    (C) Agency definitions.--Subparagraphs (A) 
                and (B) shall not apply to the extent that an 
                agency, after consultation with the Office of 
                Advocacy of the Small Business Administration 
                and after opportunity for public comment, 
                establishes one or more definitions for such 
                term which are appropriate to the activities of 
                the agency and publishes such definitions in 
                the Federal Register.
            [(5) the term]
            (5) Small governmental jurisdiction._The term 
        ``small governmental jurisdiction'' means governments 
        of cities, counties, towns, townships, villages, school 
        districts, or special districts, and tribal 
        organizations (as defined in section 4(l) of the Indian 
        Self-Determination and Education Assistance Act (25 
        U.S.C. 450b(l))), with a population of less than fifty 
        thousand, unless an agency establishes, after 
        opportunity for public comment, one or more definitions 
        of such term which are appropriate to the activities of 
        the agency and which are based on such factors as 
        location in rural or sparsely populated areas or 
        limited revenues due to the population of such 
        jurisdiction, and publishes such definition(s) in the 
        Federal Register[;].
            [(6) the term]
            (6) Small entity._The term ``small entity'' shall 
        have the same meaning as the terms ``small business'', 
        ``small organization'' and ``small governmental 
        jurisdiction'' defined in paragraphs (3), (4) and (5) 
        of this section[; and].
            [(7) the term ``collection of information''--
                    [(A) means the obtaining, causing to be 
                obtained, soliciting, or requiring the 
                disclosure to third parties or the public, of 
                facts or opinions by or for an agency, 
                regardless of form or format, calling for 
                either--
                            [(i) answers to identical questions 
                        posed to, or identical reporting or 
                        recordkeeping requirements imposed on, 
                        10 or more persons, other than 
                        agencies, instrumentalities, or 
                        employees of the United States; or
                            [(ii) answers to questions posed to 
                        agencies, instrumentalities, or 
                        employees of the United States which 
                        are to be used for general statistical 
                        purposes; and
                    [(B) shall not include a collection of 
                information described under section 3518(c)(1) 
                of title 44, United States Code.
            [(8) Recordkeeping requirement.--The term 
        ``recordkeeping requirement'' means a requirement 
        imposed by an agency on persons to maintain specified 
        records.]
            (7) Collection of information.--The term 
        ``collection of information'' has the meaning given 
        such term in section 3502(3) of title 44.
            (8) Recordkeeping requirement.--The term 
        ``recordkeeping requirement'' has the meaning given 
        such term in section 3502(13) of title 44.
            (9) Economic impact.--The term ``economic impact'' 
        means, with respect to a proposed or final rule--
                    (A) any direct economic effect on small 
                entities of such rule; and
                    (B) any indirect economic effect (including 
                compliance costs and effects on revenue) on 
                small entities which is reasonably foreseeable 
                and results from such rule (without regard to 
                whether small entities will be directly 
                regulated by the rule).
            (10) Land management plan.--
                    (A) In general.--The term ``land management 
                plan'' means--
                            (i) any plan developed by the 
                        Secretary of Agriculture under section 
                        6 of the Forest and Rangeland Renewable 
                        Resources Planning Act of 1974 (16 
                        U.S.C. 1604); and
                            (ii) any plan developed by the 
                        Secretary of the Interior under section 
                        202 of the Federal Land Policy and 
                        Management Act of 1976 (43 U.S.C. 
                        1712).
                    (B) Revision.--The term ``revision'' means 
                any change to a land management plan which--
                            (i) in the case of a plan described 
                        in subparagraph (A)(i), is made under 
                        section 6(f)(5) of the Forest and 
                        Rangeland Renewable Resources Planning 
                        Act of 1974 (16 U.S.C. 1604(f)(5)); or
                            (ii) in the case of a plan 
                        described in subparagraph (A)(ii), is 
                        made under section 1610.5-6 of title 
                        43, Code of Federal Regulations (or any 
                        successor regulation).
                    (C) Amendment.--The term ``amendment'' 
                means any change to a land management plan 
                which--
                            (i) in the case of a plan described 
                        in subparagraph (A)(i), is made under 
                        section 6(f)(4) of the Forest and 
                        Rangeland Renewable Resources Planning 
                        Act of 1974 (16 U.S.C. 1604(f)(4)) and 
                        with respect to which the Secretary of 
                        Agriculture prepares a statement 
                        described in section 102(2)(C) of the 
                        National Environmental Policy Act of 
                        1969 (42 U.S.C. 4332(2)(C)); or
                            (ii) in the case of a plan 
                        described in subparagraph (A)(ii), is 
                        made under section 1610.5-5 of title 
                        43, Code of Federal Regulations (or any 
                        successor regulation) and with respect 
                        to which the Secretary of the Interior 
                        prepares a statement described in 
                        section 102(2)(C) of the National 
                        Environmental Policy Act of 1969 (42 
                        U.S.C. 4332(2)(C)).

Sec. 602. Regulatory agenda

    (a) During the months of October and April of each year, 
each agency shall publish in the Federal Register a regulatory 
flexibility agenda which shall contain--
            (1) a brief description of the subject area of any 
        rule which the agency expects to propose or promulgate 
        which is likely to have a significant economic impact 
        on a substantial number of small entities;
            (2) a summary of the nature of any such rule under 
        consideration for each subject area listed in the 
        agenda pursuant to paragraph (1), the objectives and 
        legal basis for the issuance of the rule, and an 
        approximate schedule for completing action on any rule 
        for which the agency has issued a general notice of 
        proposed rulemaking[, and];
            (3) a brief description of the sector of the North 
        American Industrial Classification System that is 
        primarily affected by any rule which the agency expects 
        to propose or promulgate which is likely to have a 
        significant economic impact on a substantial number of 
        small entities; and
            [(3)] (4) the name and telephone number of an 
        agency official knowledgeable concerning the items 
        listed in paragraph (1).
    (b) Each regulatory flexibility agenda shall be transmitted 
to the Chief Counsel for Advocacy of the Small Business 
Administration for comment, if any.
    [(c) Each agency shall endeavor to provide notice of each 
regulatory flexibility agenda to small entities or their 
representatives through direct notification or publication of 
the agenda in publications likely to be obtained by such small 
entities and shall invite comments upon each subject area on 
the agenda.]
    (c) Each agency shall prominently display a plain language 
summary of the information contained in the regulatory 
flexibility agenda published under subsection (a) on its 
website within 3 days of its publication in the Federal 
Register. The Office of Advocacy of the Small Business 
Administration shall compile and prominently display a plain 
language summary of the regulatory agendas referenced in 
subsection (a) for each agency on its website within 3 days of 
their publication in the Federal Register.
    (d) Nothing in this section precludes an agency from 
considering or acting on any matter not included in a 
regulatory flexibility agenda, or requires an agency to 
consider or act on any matter listed in such agenda.

Sec. 603. Initial regulatory flexibility analysis

    (a) Whenever an agency is required by section 553 of this 
title, or any other law, to publish general notice of proposed 
rulemaking for any proposed rule, [or] publishes a notice of 
proposed rulemaking for an interpretative rule involving the 
internal revenue laws of the United States, or publishes a 
revision or amendment to a land management plan, the agency 
shall prepare and make available for public comment an initial 
regulatory flexibility analysis. Such analysis shall describe 
the impact of the proposed rule on small entities. The initial 
regulatory flexibility analysis or a summary shall be published 
in the Federal Register at the time of the publication of 
general notice of proposed rulemaking for the rule. The agency 
shall transmit a copy of the initial regulatory flexibility 
analysis to the Chief Counsel for Advocacy of the Small 
Business Administration. In the case of an interpretative rule 
involving the internal revenue laws of the United States, this 
chapter applies to interpretative rules published in the 
Federal Register for codification in the Code of Federal 
Regulations, but only to the extent that such interpretative 
rules impose on small entities a collection of information 
requirement[.] or a recordkeeping requirement, and without 
regard to whether such requirement is imposed by statute or 
regulation.
    [(b) Each initial regulatory flexibility analysis required 
under this section shall contain--
            [(1) a description of the reasons why action by the 
        agency is being considered;
            [(2) a succinct statement of the objectives of, and 
        legal basis for, the proposed rule;
            [(3) a description of and, where feasible, an 
        estimate of the number of small entities to which the 
        proposed rule will apply;
            [(4) a description of the projected reporting, 
        recordkeeping and other compliance requirements of the 
        proposed rule, including an estimate of the classes of 
        small entities which will be subject to the requirement 
        and the type of professional skills necessary for 
        preparation of the report or record;
            [(5) an identification, to the extent practicable, 
        of all relevant Federal rules which may duplicate, 
        overlap or conflict with the proposed rule.]
    (b) Each initial regulatory flexibility analysis required 
under this section shall contain a detailed statement--
            (1) describing the reasons why action by the agency 
        is being considered;
            (2) describing the objectives of, and legal basis 
        for, the proposed rule;
            (3) estimating the number and type of small 
        entities to which the proposed rule will apply;
            (4) describing the projected reporting, 
        recordkeeping, and other compliance requirements of the 
        proposed rule, including an estimate of the classes of 
        small entities which will be subject to the requirement 
        and the type of professional skills necessary for 
        preparation of the report and record;
            (5) describing all relevant Federal rules which may 
        duplicate, overlap, or conflict with the proposed rule, 
        or the reasons why such a description could not be 
        provided;
            (6) estimating the additional cumulative economic 
        impact of the proposed rule on small entities beyond 
        that already imposed on the class of small entities by 
        the agency or why such an estimate is not available;
            (7) describing any disproportionate economic impact 
        on small entities or a specific class of small 
        entities; and
            (8) describing any impairment of the ability of 
        small entities to have access to credit.
    (c) [Each initial regulatory flexibility analysis shall 
also contain a description of any significant alternatives to 
the proposed rule which accomplish the stated objectives of 
applicable statutes and which minimize any significant economic 
impact of the proposed rule on small entities.] Each initial 
regulatory flexibility analysis shall also contain a detailed 
description of alternatives to the proposed rule which minimize 
any adverse significant economic impact or maximize any 
beneficial significant economic impact on small entities. 
Consistent with the stated objectives of applicable statutes, 
the analysis shall discuss significant alternatives such as--
            (1) the establishment of differing compliance or 
        reporting requirements or timetables that take into 
        account the resources available to small entities;
            (2) the clarification, consolidation, or 
        simplification of compliance and reporting requirements 
        under the rule for such small entities;
            (3) the use of performance rather than design 
        standards; and
            (4) an exemption from coverage of the rule, or any 
        part thereof, for such small entities.
    (d)[(1) For a covered agency,] For a covered agency, as 
defined in section 609(d)(2), each initial regulatory 
flexibility analysis shall include a description of--
            [(A) any] (1) any projected increase in the cost of 
        credit for small entities;
            [(B) any] (2) any significant alternatives to the 
        proposed rule which accomplish the stated objectives of 
        applicable statutes and which minimize any increase in 
        the cost of credit for small entities; and
            [(C) advice] (3) advice and recommendations of 
        representatives of small entities relating to issues 
        described in subparagraphs (A) and (B) and subsection 
        (b).
    [(2) A covered agency, as defined in section 609(d)(2), 
shall, for purposes of complying with paragraph (1)(C)--
            [(A) identify representatives of small entities in 
        consultation with the Chief Counsel for Advocacy of the 
        Small Business Administration; and
            [(B) collect advice and recommendations from the 
        representatives identified under subparagraph (A) 
        relating to issues described in subparagraphs (A) and 
        (B) of paragraph (1) and subsection (b).]

Sec. 604. Final regulatory flexibility analysis

    (a) When an agency promulgates a final rule under section 
553 of this title, after being required by that section or any 
other law to publish a general notice of proposed rulemaking, 
[or] promulgates a final interpretative rule involving the 
internal revenue laws of the United States as described in 
section 603(a), or adopts a revision or amendment to a land 
management plan, the agency shall prepare a final regulatory 
flexibility analysis. Each final regulatory flexibility 
analysis shall contain--
            (1) a statement of the need for, and objectives of, 
        the rule;
            (2) a statement of the significant issues raised by 
        the public comments in response to the initial 
        regulatory flexibility analysis (or certification of 
        the proposed rule under section 605(b)), a statement of 
        the assessment of the agency of such issues, and a 
        statement of any changes made in the proposed rule as a 
        result of such comments;
            (3) the response of the agency to any comments 
        filed by the Chief Counsel for Advocacy of the Small 
        Business Administration in response to the proposed 
        rule, and a detailed statement of any change made to 
        the proposed rule in the final rule as a result of the 
        comments;
            (4) a detailed description of and an estimate of 
        the number of small entities to which the rule will 
        apply or [an explanation] a detailed explanation of why 
        no such estimate is available;
            (5) a detailed description of the projected 
        reporting, recordkeeping and other compliance 
        requirements of the rule, including an estimate of the 
        classes of small entities which will be subject to the 
        requirement and the type of professional skills 
        necessary for preparation of the report or record;
            (6) a detailed description of the steps the agency 
        has taken to [minimize the significant economic impact] 
        minimize the adverse significant economic impact or 
        maximize the beneficial significant economic impact on 
        small entities consistent with the stated objectives of 
        applicable statutes, including a statement of the 
        factual, policy, and legal reasons for selecting the 
        alternative adopted in the final rule and why each one 
        of the other significant alternatives to the rule 
        considered by the agency which affect the impact on 
        small entities was rejected; and
            [(6)] (7) for a covered agency, as defined in 
        section 609(d)(2), a description of the steps the 
        agency has taken to minimize any additional cost of 
        credit for small entities[.]; and
            (8) a detailed description of any disproportionate 
        economic impact on small entities or a specific class 
        of small entities.
    [(b) The agency shall make copies of the final regulatory 
flexibility analysis available to members of the public and 
shall publish in the Federal Register such analysis or a 
summary thereof.]
    (b) The agency shall make copies of the final regulatory 
flexibility analysis available to the public, including 
placement of the entire analysis on the agency's website, and 
shall publish in the Federal Register the final regulatory 
flexibility analysis, or a summary thereof which includes the 
telephone number, mailing address, and link to the website 
where the complete analysis may be obtained.

Sec. 605. [Avoidance of duplicative or unnecessary analyses]  
                    Incorporations by reference and certifications.--

    [(a) Any Federal agency may perform the analyses required 
by sections 602, 603, and 604 of this title in conjunction with 
or as a part of any other agenda or analysis required by any 
other law if such other analysis satisfies the provisions of 
such sections.]
    (a) A Federal agency shall be treated as satisfying any 
requirement regarding the content of an agenda or regulatory 
flexibility analysis under section 602, 603, or 604, if such 
agency provides in such agenda or analysis a cross-reference to 
the specific portion of another agenda or analysis which is 
required by any other law and which satisfies such requirement.
    (b) Sections 603 and 604 of this title shall not apply to 
any proposed or final rule if the head of the agency certifies 
that the rule will not, if promulgated, have a significant 
economic impact on a substantial number of small entities. If 
the head of the agency makes a certification under the 
preceding sentence, the agency shall publish such certification 
in the Federal Register at the time of publication of general 
notice of proposed rulemaking for the rule or at the time of 
publication of the final rule, along with a detailed statement 
providing the factual and legal basis for such certification. 
The agency shall provide such certification and statement to 
the Chief Counsel for Advocacy of the Small Business 
Administration.
    (c) In order to avoid duplicative action, an agency may 
consider a series of closely related rules as one rule for the 
purposes of sections 602, 603, 604 and 610 of this title.

           *       *       *       *       *       *       *


[Sec. 607. Preparation of analyses

    [In complying with the provisions of sections 603 and 604 
of this title, an agency may provide either a quantifiable or 
numerical description of the effects of a proposed rule or 
alternatives to the proposed rule, or more general descriptive 
statements if quantification is not practicable or reliable.

[Sec. 608. Procedure for waiver or delay of completion

    [(a) An agency head may waive or delay the completion of 
some or all of the requirements of section 603 of this title by 
publishing in the Federal Register, not later than the date of 
publication of the final rule, a written finding, with reasons 
therefor, that the final rule is being promulgated in response 
to an emergency that makes compliance or timely compliance with 
the provisions of section 603 of this title impracticable.
    [(b) Except as provided in section 605(b), an agency head 
may not waive the requirements of section 604 of this title. An 
agency head may delay the completion of the requirements of 
section 604 of this title for a period of not more than one 
hundred and eighty days after the date of publication in the 
Federal Register of a final rule by publishing in the Federal 
Register, not later than such date of publication, a written 
finding, with reasons therefor, that the final rule is being 
promulgated in response to an emergency that makes timely 
compliance with the provisions of section 604 of this title 
impracticable. If the agency has not prepared a final 
regulatory analysis pursuant to section 604 of this title 
within one hundred and eighty days from the date of publication 
of the final rule, such rule shall lapse and have no effect. 
Such rule shall not be repromulgated until a final regulatory 
flexibility analysis has been completed by the agency.]

Sec. 607. Quantification requirements

    In complying with sections 603 and 604, an agency shall 
provide--
            (1) a quantifiable or numerical description of the 
        effects of the proposed or final rule and alternatives 
        to the proposed or final rule; or
            (2) a more general descriptive statement and a 
        detailed statement explaining why quantification is not 
        practicable or reliable.

Sec. 608. Additional powers of Chief Counsel for Advocacy

    (a)(1) Not later than 270 days after the date of the 
enactment of this section, the Chief Counsel for Advocacy of 
the Small Business Administration shall, after opportunity for 
notice and comment under section 553, issue rules governing 
agency compliance with this chapter. The Chief Counsel may 
modify or amend such rules after notice and comment under 
section 553. This chapter (other than this subsection) shall 
not apply with respect to the issuance, modification, and 
amendment of rules under this paragraph.
    (2) An agency shall not issue rules which supplement the 
rules issued under subsection (a) unless such agency has first 
consulted with the Chief Counsel for Advocacy to ensure that 
such supplemental rules comply with this chapter and the rules 
issued under paragraph (1).
    (b) Notwithstanding any other law, the Chief Counsel for 
Advocacy of the Small Business Administration may intervene in 
any agency adjudication (unless such agency is authorized to 
impose a fine or penalty under such adjudication), and may 
inform the agency of the impact that any decision on the record 
may have on small entities. The Chief Counsel shall not 
initiate an appeal with respect to any adjudication in which 
the Chief Counsel intervenes under this subsection.
    (c) The Chief Counsel for Advocacy may file comments in 
response to any agency notice requesting comment, regardless of 
whether the agency is required to file a general notice of 
proposed rulemaking under section 553.

Sec. 609. Procedures for gathering comments

    (a) When any rule is promulgated which will have a 
significant economic impact on a substantial number of small 
entities, the head of the agency promulgating the rule or the 
official of the agency with statutory responsibility for the 
promulgation of the rule shall assure that small entities have 
been given an opportunity to participate in the rulemaking for 
the rule through the reasonable use of techniques such as--
            (1) the inclusion in an advanced notice of proposed 
        rulemaking, if issued, of a statement that the proposed 
        rule may have a significant economic effect on a 
        substantial number of small entities;
            (2) the publication of general notice of proposed 
        rulemaking in publications likely to be obtained by 
        small entities;
            (3) the direct notification of interested small 
        entities;
            (4) the conduct of open conferences or public 
        hearings concerning the rule for small entities 
        including soliciting and receiving comments over 
        computer networks; and
            (5) the adoption or modification of agency 
        procedural rules to reduce the cost or complexity of 
        participation in the rulemaking by small entities.
    [(b) Prior to publication of an initial regulatory 
flexibility analysis which a covered agency is required to 
conduct by this chapter--
            [(1) a covered agency shall notify the Chief 
        Counsel for Advocacy of the Small Business 
        Administration and provide the Chief Counsel with 
        information on the potential impacts of the proposed 
        rule on small entities and the type of small entities 
        that might be affected;
            [(2) not later than 15 days after the date of 
        receipt of the materials described in paragraph (1), 
        the Chief Counsel shall identify individuals 
        representative of affected small entities for the 
        purpose of obtaining advice and recommendations from 
        those individuals about the potential impacts of the 
        proposed rule;
            [(3) the agency shall convene a review panel for 
        such rule consisting wholly of full time Federal 
        employees of the office within the agency responsible 
        for carrying out the proposed rule, the Office of 
        Information and Regulatory Affairs within the Office of 
        Management and Budget, and the Chief Counsel;
            [(4) the panel shall review any material the agency 
        has prepared in connection with this chapter, including 
        any draft proposed rule, collect advice and 
        recommendations of each individual small entity 
        representative identified by the agency after 
        consultation with the Chief Counsel, on issues related 
        to subsections 603(b), paragraphs (3), (4) and (5) and 
        603(c);
            [(5) not later than 60 days after the date a 
        covered agency convenes a review panel pursuant to 
        paragraph (3), the review panel shall report on the 
        comments of the small entity representatives and its 
        findings as to issues related to subsections 603(b), 
        paragraphs (3), (4) and (5) and 603(c), provided that 
        such report shall be made public as part of the 
        rulemaking record; and
            [(6) where appropriate, the agency shall modify the 
        proposed rule, the initial regulatory flexibility 
        analysis or the decision on whether an initial 
        regulatory flexibility analysis is required.
    [(c) An agency may in its discretion apply subsection (b) 
to rules that the agency intends to certify under subsection 
605(b), but the agency believes may have a greater than de 
minimis impact on a substantial number of small entities.
    [(d) For purposes of this section, the term ``covered 
agency'' means--
            [(1) the Environmental Protection Agency;
            [(2) the Consumer Financial Protection Bureau of 
        the Federal Reserve System; and
            [(3) the Occupational Safety and Health 
        Administration of the Department of Labor.
    [(e) The Chief Counsel for Advocacy, in consultation with 
the individuals identified in subsection (b)(2), and with the 
Administrator of the Office of Information and Regulatory 
Affairs within the Office of Management and Budget, may waive 
the requirements of subsections (b)(3), (b)(4), and (b)(5) by 
including in the rulemaking record a written finding, with 
reasons therefor, that those requirements would not advance the 
effective participation of small entities in the rulemaking 
process. For purposes of this subsection, the factors to be 
considered in making such a finding are as follows:
            [(1) In developing a proposed rule, the extent to 
        which the covered agency consulted with individuals 
        representative of affected small entities with respect 
        to the potential impacts of the rule and took such 
        concerns into consideration.
            [(2) Special circumstances requiring prompt 
        issuance of the rule.
            [(3) Whether the requirements of subsection (b) 
        would provide the individuals identified in subsection 
        (b)(2) with a competitive advantage relative to other 
        small entities.]
    (b)(1) Prior to publication of any proposed rule described 
in subsection (e), an agency making such rule shall notify the 
Chief Counsel for Advocacy of the Small Business Administration 
and provide the Chief Counsel with--
            (A) all materials prepared or utilized by the 
        agency in making the proposed rule, including the draft 
        of the proposed rule; and
            (B) information on the potential adverse and 
        beneficial economic impacts of the proposed rule on 
        small entities and the type of small entities that 
        might be affected.
    (2) An agency shall not be required under paragraph (1) to 
provide the exact language of any draft if the rule--
            (A) relates to the internal revenue laws of the 
        United States; or
            (B) is proposed by an independent regulatory agency 
        (as defined in section 3502(5) of title 44).
    (c) Not later than 15 days after the receipt of such 
materials and information under subsection (b), the Chief 
Counsel for Advocacy of the Small Business Administration 
shall--
            (1) identify small entities or representatives of 
        small entities or a combination of both for the purpose 
        of obtaining advice, input, and recommendations from 
        those persons about the potential economic impacts of 
        the proposed rule and the compliance of the agency with 
        section 603; and
            (2) convene a review panel consisting of an 
        employee from the Office of Advocacy of the Small 
        Business Administration, an employee from the agency 
        making the rule, and in the case of an agency other 
        than an independent regulatory agency (as defined in 
        section 3502(5) of title 44), an employee from the 
        Office of Information and Regulatory Affairs of the 
        Office of Management and Budget to review the materials 
        and information provided to the Chief Counsel under 
        subsection (b).
    (d)(1) Not later than 60 days after the review panel 
described in subsection (c)(2) is convened, the Chief Counsel 
for Advocacy of the Small Business Administration shall, after 
consultation with the members of such panel, submit a report to 
the agency and, in the case of an agency other than an 
independent regulatory agency (as defined in section 3502(5) of 
title 44), the Office of Information and Regulatory Affairs of 
the Office of Management and Budget.
    (2) Such report shall include an assessment of the economic 
impact of the proposed rule on small entities, including an 
assessment of the proposed rule's impact on the cost that small 
entities pay for energy, an assessment of the proposed rule's 
impact on start-up costs for small entities, and a discussion 
of any alternatives that will minimize adverse significant 
economic impacts or maximize beneficial significant economic 
impacts on small entities.
    (3) Such report shall become part of the rulemaking record. 
In the publication of the proposed rule, the agency shall 
explain what actions, if any, the agency took in response to 
such report.
    (e) A proposed rule is described by this subsection if the 
Administrator of the Office of Information and Regulatory 
Affairs of the Office of Management and Budget, the head of the 
agency (or the delegatee of the head of the agency), or an 
independent regulatory agency determines that the proposed rule 
is likely to result in--
            (1) an annual effect on the economy of $100,000,000 
        or more;
            (2) a major increase in costs or prices for 
        consumers, individual industries, Federal, State, or 
        local governments, tribal organizations, or geographic 
        regions;
            (3) significant adverse effects on competition, 
        employment, investment, productivity, innovation, or on 
        the ability of United States-based enterprises to 
        compete with foreign-based enterprises in domestic and 
        export markets; or
            (4) a significant economic impact on a substantial 
        number of small entities.
    (f) Upon application by the agency, the Chief Counsel for 
Advocacy of the Small Business Administration may waive the 
requirements of subsections (b) through (e) if the Chief 
Counsel determines that compliance with the requirements of 
such subsections are impracticable, unnecessary, or contrary to 
the public interest.
    (g) A small entity or a representative of a small entity 
may submit a request that the agency provide a copy of the 
report prepared under subsection (d) and all materials and 
information provided to the Chief Counsel for Advocacy of the 
Small Business Administration under subsection (b). The agency 
receiving such request shall provide the report, materials and 
information to the requesting small entity or representative of 
a small entity not later than 10 business days after receiving 
such request, except that the agency shall not disclose any 
information that is prohibited from disclosure to the public 
pursuant to section 552(b) of this title.

[Sec. 610. Periodic review of rules

    [(a) Within one hundred and eighty days after the effective 
date of this chapter, each agency shall publish in the Federal 
Register a plan for the periodic review of the rules issued by 
the agency which have or will have a significant economic 
impact upon a substantial number of small entities. Such plan 
may be amended by the agency at any time by publishing the 
revision in the Federal Register. The purpose of the review 
shall be to determine whether such rules should be continued 
without change, or should be amended or rescinded, consistent 
with the stated objectives of applicable statutes, to minimize 
any significant economic impact of the rules upon a substantial 
number of such small entities. The plan shall provide for the 
review of all such agency rules existing on the effective date 
of this chapter within ten years of that date and for the 
review of such rules adopted after the effective date of this 
chapter within ten years of the publication of such rules as 
the final rule. If the head of the agency determines that 
completion of the review of existing rules is not feasible by 
the established date, he shall so certify in a statement 
published in the Federal Register and may extend the completion 
date by one year at a time for a total of not more than five 
years.
    [(b) In reviewing rules to minimize any significant 
economic impact of the rule on a substantial number of small 
entities in a manner consistent with the stated objectives of 
applicable statutes, the agency shall consider the following 
factors--
            [(1) the continued need for the rule;
            [(2) the nature of complaints or comments received 
        concerning the rule from the public;
            [(3) the complexity of the rule;
            [(4) the extent to which the rule overlaps, 
        duplicates or conflicts with other Federal rules, and, 
        to the extent feasible, with State and local 
        governmental rules; and
            [(5) the length of time since the rule has been 
        evaluated or the degree to which technology, economic 
        conditions, or other factors have changed in the area 
        affected by the rule.
    [(c) Each year, each agency shall publish in the Federal 
Register a list of the rules which have a significant economic 
impact on a substantial number of small entities, which are to 
be reviewed pursuant to this section during the succeeding 
twelve months. The list shall include a brief description of 
each rule and the need for and legal basis of such rule and 
shall invite public comment upon the rule.]

Sec. 610. Periodic review of rules

    (a) Not later than 180 days after the enactment of this 
section, each agency shall publish in the Federal Register and 
place on its website a plan for the periodic review of rules 
issued by the agency which the head of the agency determines 
have a significant economic impact on a substantial number of 
small entities. Such determination shall be made without regard 
to whether the agency performed an analysis under section 604. 
The purpose of the review shall be to determine whether such 
rules should be continued without change, or should be amended 
or rescinded, consistent with the stated objectives of 
applicable statutes, to minimize any adverse significant 
economic impacts or maximize any beneficial significant 
economic impacts on a substantial number of small entities. 
Such plan may be amended by the agency at any time by 
publishing the revision in the Federal Register and 
subsequently placing the amended plan on the agency's website.
    (b) The plan shall provide for the review of all such 
agency rules existing on the date of the enactment of this 
section within 10 years of the date of publication of the plan 
in the Federal Register and for review of rules adopted after 
the date of enactment of this section within 10 years after the 
publication of the final rule in the Federal Register. If the 
head of the agency determines that completion of the review of 
existing rules is not feasible by the established date, the 
head of the agency shall so certify in a statement published in 
the Federal Register and may extend the review for not longer 
than 2 years after publication of notice of extension in the 
Federal Register. Such certification and notice shall be sent 
to the Chief Counsel for Advocacy of the Small Business 
Administration and the Congress.
    (c) The plan shall include a section that details how an 
agency will conduct outreach to and meaningfully include small 
businesses (including small business concerns owned and 
controlled by women, small business concerns owned and 
controlled by veterans, and small business concerns owned and 
controlled by socially and economically disadvantaged 
individuals (as such terms are defined in the Small Business 
Act)) for the purposes of carrying out this section. The agency 
shall include in this section a plan for how the agency will 
contact small businesses and gather their input on existing 
agency rules.
    (d) Each agency shall annually submit a report regarding 
the results of its review pursuant to such plan to the 
Congress, the Chief Counsel for Advocacy of the Small Business 
Administration, and in the case of agencies other than 
independent regulatory agencies (as defined in section 3502(5) 
of title 44) to the Administrator of the Office of Information 
and Regulatory Affairs of the Office of Management and Budget. 
Such report shall include the identification of any rule with 
respect to which the head of the agency made a determination 
described in paragraph (5) or (6) of subsection (e) and a 
detailed explanation of the reasons for such determination.
    (e) In reviewing a rule pursuant to subsections (a) through 
(d), the agency shall amend or rescind the rule to minimize any 
adverse significant economic impact on a substantial number of 
small entities or disproportionate economic impact on a 
specific class of small entities, or maximize any beneficial 
significant economic impact of the rule on a substantial number 
of small entities to the greatest extent possible, consistent 
with the stated objectives of applicable statutes. In amending 
or rescinding the rule, the agency shall consider the following 
factors:
            (1) The continued need for the rule.
            (2) The nature of complaints received by the agency 
        from small entities concerning the rule.
            (3) Comments by the Regulatory Enforcement 
        Ombudsman and the Chief Counsel for Advocacy of the 
        Small Business Administration.
            (4) The complexity of the rule.
            (5) The extent to which the rule overlaps, 
        duplicates, or conflicts with other Federal rules and, 
        unless the head of the agency determines it to be 
        infeasible, State, territorial, and local rules.
            (6) The contribution of the rule to the cumulative 
        economic impact of all Federal rules on the class of 
        small entities affected by the rule, unless the head of 
        the agency determines that such calculations cannot be 
        made and reports that determination in the annual 
        report required under subsection (d).
            (7) The length of time since the rule has been 
        evaluated or the degree to which technology, economic 
        conditions, or other factors have changed in the area 
        affected by the rule.
    (f) Each year, each agency shall publish in the Federal 
Register and on its website a list of rules to be reviewed 
pursuant to such plan. The agency shall include in the 
publication a solicitation of public comments on any further 
inclusions or exclusions of rules from the list, and shall 
respond to such comments. Such publication shall include a 
brief description of the rule, the reason why the agency 
determined that it has a significant economic impact on a 
substantial number of small entities (without regard to whether 
it had prepared a final regulatory flexibility analysis for the 
rule), and request comments from the public, the Chief Counsel 
for Advocacy of the Small Business Administration, and the 
Regulatory Enforcement Ombudsman concerning the enforcement of 
the rule.

Sec. 611. Judicial review

    (a)(1) For any rule subject to this chapter, a small entity 
that is adversely affected or aggrieved by [final agency 
action] such rule is entitled to judicial review of agency 
compliance with the requirements of sections 601, 604, 605(b), 
[608(b),] and 610 in accordance with chapter 7. Agency 
compliance with sections 607 and 609(a) shall be judicially 
reviewable in connection with judicial review of section 604.
    (2) Each court having jurisdiction to review such rule for 
compliance with section 553, or under any other provision of 
law, (or which would have such jurisdiction if publication of 
the final rule constituted final agency action) shall have 
jurisdiction to review any claims of noncompliance with 
sections 601, 604, 605(b), [608(b),] and 610 in accordance with 
chapter 7. Agency compliance with sections 607 and 609(a) shall 
be judicially reviewable in connection with judicial review of 
section 604.
    [(3)(A) A small entity]
    (3) A small entity may seek such review during the period 
beginning on the date of [final agency action] publication of 
the final rule and ending one year later, except that, in the 
case of a rule for which the date of final agency action is the 
same date as the publication of the final rule, where a 
provision of law requires that an action challenging a final 
agency action be commenced before the expiration of one year, 
such lesser period shall apply to an action for judicial review 
under this section.
    [(B) In the case where an agency delays the issuance of a 
final regulatory flexibility analysis pursuant to section 
608(b) of this chapter, an action for judicial review under 
this section shall be filed not later than--
            [(i) one year after the date the analysis is made 
        available to the public, or
            [(ii) where a provision of law requires that an 
        action challenging a final agency regulation be 
        commenced before the expiration of the 1-year period, 
        the number of days specified in such provision of law 
        that is after the date the analysis is made available 
        to the public.]
    (4) In granting any relief in an action under this section, 
the court shall order the agency to take corrective action 
consistent with this chapter and chapter 7, including, but not 
limited to--
            (A) remanding the rule to the agency, and
            (B) deferring the enforcement of the rule against 
        small entities unless the court finds that continued 
        enforcement of the rule is in the public interest.
    (5) Nothing in this subsection shall be construed to limit 
the authority of any court to stay the effective date of any 
rule or provision thereof under any other provision of law or 
to grant any other relief in addition to the requirements of 
this section.
    (b) In an action for the judicial review of a rule, the 
regulatory flexibility analysis for such rule, including an 
analysis prepared or corrected pursuant to paragraph (a)(4), 
shall constitute part of the entire record of agency action in 
connection with such review.
    (c) Compliance or noncompliance by an agency with the 
provisions of this chapter shall be subject to judicial review 
only in accordance with this section.
    (d) Nothing in this section bars judicial review of any 
other impact statement or similar analysis required by any 
other law if judicial review of such statement or analysis is 
otherwise permitted by law.

Sec. 612. Reports and intervention rights

    (a) The Chief Counsel for Advocacy of the Small Business 
Administration shall monitor agency compliance with this 
chapter and shall report at least annually thereon to the 
President and to the Committees on the Judiciary and Small 
Business of the Senate and House of Representatives.
    (b) The Chief Counsel for Advocacy of the Small Business 
Administration is authorized to appear as amicus curiae in any 
action brought in a court of the United States to review a rule 
or agency compliance with section 601, 603, 604, 605(b), 609, 
or 610. In any such action, the Chief Counsel is authorized to 
present his or her views with respect to compliance with this 
chapter, chapter 5, and chapter 7, the adequacy of the 
rulemaking record with respect to small entities and the effect 
of the rule on small entities.
    (c) A court of the United States shall grant the 
application of the Chief Counsel for Advocacy of the Small 
Business Administration to appear in any such action for the 
purposes described in subsection (b).
                              ----------                              


                      TITLE 28, UNITED STATES CODE



           *       *       *       *       *       *       *
PART VI--PARTICULAR PROCEEDINGS

           *       *       *       *       *       *       *


            CHAPTER 158--ORDERS OF FEDERAL AGENCIES; REVIEW

Sec. 2341. Definitions

    As used in this chapter--
            (1) ``clerk'' means the clerk of the court in which 
        the petition for the review of an order, reviewable 
        under this chapter, is filed;
            (2) ``petitioner'' means the party or parties by 
        whom a petition to review an order, reviewable under 
        this chapter, is filed; and
            (3) ``agency'' means--
                    (A) the Commission, when the order sought 
                to be reviewed was entered by the Federal 
                Communications Commission, the Federal Maritime 
                Commission, or the Atomic Energy Commission, as 
                the case may be;
                    (B) the Secretary, when the order was 
                entered by the Secretary of Agriculture or the 
                Secretary of Transportation;
                    (C) the Administration, when the order was 
                entered by the Maritime Administration;
                    (D) the Secretary, when the order is under 
                section 812 of the Fair Housing Act; [and]
                    (E) the Board, when the order was entered 
                by the Surface Transportation Board[.]; and
                    (F) the Office of Advocacy of the Small 
                Business Administration, when the final rule is 
                under section 608(a) of title 5.

Sec. 2342. Jurisdiction of court of appeals

    The court of appeals (other than the United States Court of 
Appeals for the Federal Circuit) has exclusive jurisdiction to 
enjoin, set aside, suspend (in whole or in part), or to 
determine the validity of--
            (1) all final orders of the Federal Communication 
        Commission made reviewable by section 402(a) of title 
        47;
            (2) all final orders of the Secretary of 
        Agriculture made under chapters 9 and 20A of title 7, 
        except orders issued under sections 210(e), 217a, and 
        499g(a) of title 7;
            (3) all rules, regulations, or final orders of--
                    (A) the Secretary of Transportation issued 
                pursuant to section 50501, 50502, 56101-56104, 
                or 57109 of title 46 or pursuant to part B or C 
                of subtitle IV, subchapter III of chapter 311, 
                chapter 313, or chapter 315 of title 49; and
                    (B) the Federal Maritime Commission issued 
                pursuant to section 305, 41304, 41308, or 41309 
                or chapter 421 or 441 of title 46;
            (4) all final orders of the Atomic Energy 
        Commission made reviewable by section 2239 of title 42;
            (5) all rules, regulations, or final orders of the 
        Surface Transportation Board made reviewable by section 
        2321 of this title;
            (6) all final orders under section 812 of the Fair 
        Housing Act; [and]
            (7) all final agency actions described in section 
        20114(c) of title 49[.]; and
            (8) all final rules under section 608(a) of title 
        5.
Jurisdiction is invoked by filing a petition as provided by 
section 2344 of this title.

           *       *       *       *       *       *       *

                              ----------                              


                           SMALL BUSINESS ACT



           *       *       *       *       *       *       *
SEC. 3. DEFINITIONS.

    (a) Small Business Concerns.--
            (1) In general.--For the purposes of this Act, a 
        small-business concern, including but not limited to 
        enterprises that are engaged in the business of 
        production of food and fiber, ranching and raising of 
        livestock, aquaculture, and all other farming and 
        agricultural related industries, shall be deemed to be 
        one which is independently owned and operated and which 
        is not dominant in its field of operation: Provided, 
        That notwithstanding any other provision of law, an 
        agricultural enterprise shall be deemed to be a small 
        business concern if it (including its affiliates) has 
        annual receipts not in excess of $750,000.
            (2) Establishment of size standards.--
                    [(A) In general.--In addition to the 
                criteria specified in paragraph (1), the 
                Administrator may specify detailed definitions 
                or standards by which a business concern may be 
                determined to be a small business concern for 
                the purposes of this Act or any other Act.]
                    (A) In general.--In addition to the 
                criteria specified in paragraph (1)--
                            (i) the Administrator may specify 
                        detailed definitions or standards by 
                        which a business concern may be 
                        determined to be a small business 
                        concern for purposes of this Act or the 
                        Small Business Investment Act of 1958; 
                        and
                            (ii) the Chief Counsel for Advocacy 
                        may specify such definitions or 
                        standards for purposes of any other 
                        Act.
                    (B) Additional criteria.--The standards 
                described in paragraph (1) may utilize number 
                of employees, dollar volume of business, net 
                worth, net income, a combination thereof, or 
                other appropriate factors.
                    (C) Requirements.--Unless specifically 
                authorized by statute, no Federal department or 
                agency may prescribe a size standard for 
                categorizing a business concern as a small 
                business concern, unless such proposed size 
                standard--
                            (i) is proposed after an 
                        opportunity for public notice and 
                        comment;
                            (ii) provides for determining--
                                    (I) the size of a 
                                manufacturing concern as 
                                measured by the manufacturing 
                                concern's average employment 
                                based upon employment during 
                                each of the manufacturing 
                                concern's pay periods for the 
                                preceding 12 months;
                                    (II) the size of a business 
                                concern providing services on 
                                the basis of the annual average 
                                gross receipts of the business 
                                concern over a period of not 
                                less than 3 years;
                                    (III) the size of other 
                                business concerns on the basis 
                                of data over a period of not 
                                less than 3 years; or
                                    (IV) other appropriate 
                                factors; and
                            [(iii) is approved by the 
                        Administrator.]
                            (iii) except in the case of a size 
                        standard prescribed by the 
                        Administrator, is approved by the Chief 
                        Counsel for Advocacy.
            (3) Variation by industry and consideration of 
        other factors.--When establishing or approving any size 
        standard pursuant to paragraph (2), the Administrator 
        or Chief Counsel for Advocacy, as appropriate shall 
        ensure that the size standard varies from industry to 
        industry to the extent necessary to reflect the 
        differing characteristics of the various industries and 
        consider other factors deemed to be relevant by the 
        Administrator or Chief Counsel for Advocacy.
            (4) Exclusion of certain security expenses from 
        consideration for purpose of small business size 
        standards.--
                    (A) Determination required.--Not later than 
                30 days after the date of enactment of this 
                paragraph, the Administrator shall review the 
                application of size standards established 
                pursuant to paragraph (2) to small business 
                concerns that are performing contracts in 
                qualified areas and determine whether it would 
                be fair and appropriate to exclude from 
                consideration in the average annual gross 
                receipts of such small business concerns any 
                payments made to such small business concerns 
                by Federal agencies to reimburse such small 
                business concerns for the cost of subcontracts 
                entered for the sole purpose of providing 
                security services in a qualified area.
                    (B) Action required.--Not later than 60 
                days after the date of enactment of this 
                paragraph, the Administrator shall either--
                            (i) initiate an adjustment to the 
                        size standards, as described in 
                        subparagraph (A), if the Administrator 
                        determines that such an adjustment 
                        would be fair and appropriate; or
                            (ii) provide a report to the 
                        Committee on Small Business and 
                        Entrepreneurship of the Senate and the 
                        Committee on Small Business of the 
                        House of Representatives explaining in 
                        detail the basis for the determination 
                        by the Administrator that such an 
                        adjustment would not be fair and 
                        appropriate.
                    (C) Qualified areas.--In this paragraph, 
                the term ``qualified area'' means--
                            (i) Iraq,
                            (ii) Afghanistan, and
                            (iii) any foreign country which 
                        included a combat zone, as that term is 
                        defined in section 112(c)(2) of the 
                        Internal Revenue Code of 1986, at the 
                        time of performance of the relevant 
                        Federal contract or subcontract.
            (5) Alternative Size Standard.--
                    (A) In general.--The Administrator shall 
                establish an alternative size standard for 
                applicants for business loans under section 
                7(a) and applicants for development company 
                loans under title V of the Small Business 
                Investment Act of 1958 (15 U.S.C. 695 et seq.), 
                that uses maximum tangible net worth and 
                average net income as an alternative to the use 
                of industry standards.
                    (B) Interim rule.--Until the date on which 
                the alternative size standard established under 
                subparagraph (A) is in effect, an applicant for 
                a business loan under section 7(a) or an 
                applicant for a development company loan under 
                title V of the Small Business Investment Act of 
                1958 may be eligible for such a loan if--
                            (i) the maximum tangible net worth 
                        of the applicant is not more than 
                        $15,000,000; and
                            (ii) the average net income after 
                        Federal income taxes (excluding any 
                        carry-over losses) of the applicant for 
                        the 2 full fiscal years before the date 
                        of the application is not more than 
                        $5,000,000.
            (6) Proposed rulemaking.--In conducting rulemaking 
        to revise, modify or establish size standards pursuant 
        to this section, the Administrator shall consider, and 
        address, and make publicly available as part of the 
        notice of proposed rulemaking and notice of final rule 
        each of the following:
                    (A) a detailed description of the industry 
                for which the new size standard is proposed;
                    (B) an analysis of the competitive 
                environment for that industry;
                    (C) the approach the Administrator used to 
                develop the proposed standard including the 
                source of all data used to develop the proposed 
                rule making; and
                    (D) the anticipated effect of the proposed 
                rulemaking on the industry, including the 
                number of concerns not currently considered 
                small that would be considered small under the 
                proposed rule making and the number of concerns 
                currently considered small that would be deemed 
                other than small under the proposed rulemaking.
            (7) Common size standards.--In carrying out this 
        subsection, the Administrator may establish or approve 
        a single size standard for a grouping of 4-digit North 
        American Industry Classification System codes only if 
        the Administrator makes publicly available, not later 
        than the date on which such size standard is 
        established or approved, a justification demonstrating 
        that such size standard is appropriate for each 
        individual industry classification included in the 
        grouping.
            (8) Number of size standards.--The Administrator 
        shall not limit the number of size standards 
        established pursuant to paragraph (2), and shall assign 
        the appropriate size standard to each North American 
        Industry Classification System Code.
            (9) Judicial review of standards approved by chief 
        counsel.--In the case of an action for judicial review 
        of a rule which includes a definition or standard 
        approved by the Chief Counsel for Advocacy under this 
        subsection, the party seeking such review shall be 
        entitled to join the Chief Counsel as a party in such 
        action.
    (b) For purposes of this Act, any reference to an agency or 
department of the United States, and the term ``Federal 
agency,'' shall have the meaning given the term ``agency'' by 
section 551(1) of title 5, United States Code, but does not 
include the United States Postal Service or the General 
Accounting Office.
    (c)(1) For purposes of this Act, a qualified employee trust 
shall be eligible for any loan guarantee under section 7(a) 
with respect to a small business concern on the same basis as 
if such trust were the same legal entity as such concern.
    (2) For purposes of this Act, the term ``qualified employee 
trust'' means, with respect to a small business concern, a 
trust--
            (A) which forms part of an employee stock ownership 
        plan (as defined in section 4975(e)(7) of the Internal 
        Revenue Code of 1954)--
                    (i) which is maintained by such concern, 
                and
                    (ii) which provides that each participant 
                in the plan is entitle to direct the plan as to 
                the manner in which voting rights under 
                qualifying employer securities (as defined in 
                section 4975(e)(8) of such Code) which are 
                allocated to the account of such participant 
                are to be exercised with respect to a corporate 
                matter which (by law or charter) must be 
                decided by a majority vote of outstanding 
                common shares voted; and
            (B) in the case of any loan guarantee under section 
        7(a), the trustee of which enters into an agreement 
        with the Administrator of which enters into an 
        agreement with the Administrator which is binding on 
        the trust and no such small business concern and which 
        provides that--
                    (i) the loan guaranteed under section 7(a) 
                shall be used solely for the purchase of 
                qualifying employer securities of such concern.
                    (ii) all funds acquired by the concern in 
                such purchase shall be used by such concern 
                solely for the purposes for which such loan was 
                guaranteed,
                    (iii) such concern will provide such funds 
                as may be necessary for the timely repayment of 
                such loan, and the property of such concern 
                shall be available as security for repayment of 
                such loan, and
                    (iv) all qualifying employer securities 
                acquired by such trust in such purchase shall 
                be allocated to the accounts of participants in 
                such plan who are entitled to share in such 
                allocation, and each participant has a 
                nonforfeitable right, not later than the date 
                such loan is repaid, to all such qualifying 
                employer securities which are so allocated to 
                the participant's account.
    (3) Under regulations which may be prescribed by the 
Administrator, a trust may be treated as a qualified employee 
trust with respect to a small business concern if--
            (A) the trust is maintained by an employee 
        organization which represents at least 51 percent of 
        the employee of such concern, and
            (B) such concern maintains a plan--
                    (i) which is an employee benefit plan which 
                is designed to invest primarily in qualifying 
                employer securities (as defined in section 
                4975(e)(8) of the Internal Revenue Code of 
                1954).
                    (ii) which provides that each participant 
                in the plan is entitled to direct the plan as 
                to the manner in which voting rights under 
                qualifying employer securities which are 
                allocated to the account of such participant 
                are to be exercised with respect to a corporate 
                matter which (by law or charter) must be 
                decided by a majority vote of the outstanding 
                common shares voted,
                    (iii) which provides that each participant 
                who is entitled to distribution from the plan 
                has a right, in the case of qualifying employer 
                securities which are not readily tradable on an 
                established market, to require that the concern 
                repurchase such securities under a fair 
                valuation formula, and
                    (iv) which meets such other requirements 
                (similar to requirements applicable to employee 
                ownership plans as defined in section 
                4975(e)(7) of the Internal Revenue Code of 
                1954) as the Administrator may prescribe, and
            (C) in the case of a loan guarantee under section 
        7(a), such organization enters into an agreement with 
        the Administration which is described in paragraph 
        (2)(B).
    (d) For purposes of section 7 of this Act, the term 
``qualified Indian tribe'' means an Indian tribe as defined in 
section 4(a) of the Indian Self-Determination and Education 
Assistance Act, which owns and controls 100 per centum of a 
small business concern.
    (e) For purposes of section 7 of this Act, the term 
``public or private organization for the handicapped'' means 
one--
            (1) which is organized under the laws of the United 
        States or of any State, operated in the interest of 
        handicapped individuals, the net income of which does 
        not insure in whole or in part to the benefit of any 
        shareholder or other individual;
            (2) which complies with any applicable occupational 
        health and safety standard prescribed by the Secretary 
        of Labor; and
            (3) which, in the production of commodities and in 
        the provision of services during any fiscal year in 
        which it received financial assistance under this 
        subsection, employs handicapped individuals for not 
        less than 75 per centum of the man-hours required for 
        the production or provision of the commodities or 
        services.
    (f) For purposes of section 7 of this Act, the term 
``handicapped individual'' means an individual--
            (1) who has a physical, mental, or emotional 
        impairment, defect, ailment, disease, or disability of 
        a permanent nature which in any way limits the 
        selection of any type of employment for which the 
        person would otherwise be qualified or qualifiable; or
            (2) who is a service-disabled veteran.
    (g) For purposes of section 7 of this Act, the term 
``energy measures'' includes--
            (1) solar thermal energy equipment which is either 
        of the active type based upon mechanically forced 
        energy transfer or of the passive type based on 
        convective, conductive, or radiant energy transfer or 
        some combination equipment;
            (2) photovoltaic cells and related equipment;
            (3) a product or service the primary purpose of 
        which is conservation of energy through devices or 
        techniques which increase the energy through devices or 
        techniques which increase the energy efficiency of 
        existing equipment, methods of operation, or systems 
        which use fossil fuels, and which is on the Energy 
        Conservation Measures list of the Secretary of Energy 
        or which the Administrator determines to be consistent 
        with the intent of this subsection;
            (4) equipment the primary purpose of which is 
        production of energy from wood, biological waste, 
        grain, or other biomass source of energy;
            (5) equipment the primary purpose of which is 
        industrial cogeneration of energy, district heating, or 
        production of energy from industrial waste;
            (6) hydroelectric power equipment;
            (7) wind energy conversion equipment; and
            (8) engineering, architectural, consulting, or 
        other professional services which are necessary or 
        appropriate to aid citizens in using any of the 
        measures described in paragraph (1) through (7).
    (h) For purposes of this Act, the term ``credit elsewhere'' 
means the availability of credit from non-Federal sources on 
reasonable terms and conditions taking into consideration the 
prevailing rates and terms in the community in or near where 
the concern transacts business, or the homeowner resides, for 
similar purposes and periods of time.
    (i) For purposes of section 7 of this Act, the term 
``homeowners'' includes owners and lessees of residential 
property and also includes personal property.
    (j) For the purposes of this Act, the term ``small 
agricultural cooperative'' means an association (corporate or 
otherwise) acting pursuant to the provisions of the 
Agricultural Marketing Act (12 U.S.C. 1141j), whose size does 
not exceed the size standard established by the Administration 
for other similar agricultural small business concerns. In 
determining such size, the Administration shall regard the 
association as a business concern and shall not include the 
income or employees of any member shareholder of such 
cooperative.
    (k)(1) For the purposes of this Act, the term ``disaster'' 
means a sudden event which causes severe damage including, but 
not limited to, floods, hurricanes, tornadoes, earthquakes, 
fires, explosions, volcanoes, windstorms, landslides or 
mudslides, tidal waves, commercial fishery failures or fishery 
resource disasters (as determined by the Secretary of Commerce 
under section 308(b) of the Interjurisdictional Fisheries Act 
of 1986), ocean conditions resulting in the closure of 
customary fishing waters, riots, civil disorders or other 
catastrophes, except it does not include economic dislocations.
    (2) For purposes of section 7(b)(2), the term ``disaster'' 
includes--
            (A) drought;
            (B) below average water levels in the Great Lakes, 
        or on any body of water in the United States that 
        supports commerce by small business concerns; and
            (C) ice storms and blizzards.
    (l) For purposes of this Act--
            (1) the term ``computer crime'' means''--
                    (A) any crime committed against a small 
                business concern by means of the use of a 
                computer; and
                    (B) any crime involving the illegal use of, 
                or tampering with, a computer owned or utilized 
                by a small business concern.
    (m) For purposes of this Act, the term ``simplified 
acquisition threshold'' has the meaning given such term in 
section 4(11) of the Office of Federal Procurement Policy Act 
(41 U.S.C. 403(11)).
    (n) For the purposes of this Act, a small business concern 
is a small business concern owned and controlled by women if--
            (1) at least 51 percent of small business concern 
        is owned by one or more women or, in the case of any 
        publicly owned business, at least 51 percent of the 
        stock of which is owned by one or more women; and
            (2) the management and daily business operations of 
        the business are controlled by one or more women.
    (o) Definitions of Bundling of Contract Requirements and 
Related Terms.--In this Act:
            (1) Bundled contract.--The term ``bundled 
        contract'' means a contract that is entered into to 
        meet requirements that are consolidated in a bundling 
        of contract requirements.
            (2) Bundling of contract requirements.--The term 
        ``bundling of contract requirements'' means 
        consolidating 2 or more procurement requirements for 
        goods or services previously provided or performed 
        under separate smaller contracts into a solicitation of 
        offers for a single contract that is likely to be 
        unsuitable for award to a small-business concern due 
        to--
                    (A) the diversity, size, or specialized 
                nature of the elements of the performance 
                specified;
                    (B) the aggregate dollar value of the 
                anticipated award;
                    (C) the geographical dispersion of the 
                contract performance sites; or
                    (D) any combination of the factors 
                described in subparagraphs (A), (B), and (C).
            (3) Separate smaller contract.--The term ``separate 
        smaller contract'', with respect to a bundling of 
        contract requirements, means a contract that has been 
        performed by 1 or more small business concerns or was 
        suitable for award to 1 or more small business 
        concerns.
    (p) Definitions Relating to HUBZones.--In this Act:
            (1) Historically underutilized business zone.--The 
        term ``historically underutilized business zone'' means 
        any area located within 1 or more--
                    (A) qualified census tracts;
                    (B) qualified nonmetropolitan counties;
                    (C) lands within the external boundaries of 
                an Indian reservation;
                    (D) redesignated areas; or
                    (E) base closure areas.
            (2) HUBZone.--The term ``HUBZone'' means a 
        historically underutilized business zone.
            (3) Hubzone small business concern.--The term 
        ``HUBZone small business concern'' means--
                    (A) a small business concern that is at 
                least 51 percent owned and controlled by United 
                States citizens;
                    (B) a small business concern that is--
                            (i) an Alaska Native Corporation 
                        owned and controlled by Natives (as 
                        determined pursuant to section 29(e)(1) 
                        of the Alaska Native Claims Settlement 
                        Act (43 U.S.C. 1626(e)(1))); or
                            (ii) a direct or indirect 
                        subsidiary corporation, joint venture, 
                        or partnership of an Alaska Native 
                        Corporation qualifying pursuant to 
                        section 29(e)(1) of the Alaska Native 
                        Claims Settlement Act (43 U.S.C. 
                        1626(e)(1)), if that subsidiary, joint 
                        venture, or partnership is owned and 
                        controlled by Natives (as determined 
                        pursuant to section 29(e)(2)) of the 
                        Alaska Native Claims Settlement Act (43 
                        U.S.C. 1626(e)(2)));
                    (C) a small business concern--
                            (i) that is wholly owned by one or 
                        more Indian tribal governments, or by a 
                        corporation that is wholly owned by one 
                        or more Indian tribal governments; or
                            (ii) that is owned in part by one 
                        or more Indian tribal governments, or 
                        by a corporation that is wholly owned 
                        by one or more Indian tribal 
                        governments, if all other owners are 
                        either United States citizens or small 
                        business concerns;
                    (D) a small business concern that is--
                            (i) wholly owned by a community 
                        development corporation that has 
                        received financial assistance under 
                        part 1 of subchapter A of the Community 
                        Economic Development Act of 1981 (42 
                        U.S.C. 9805 et seq.); or
                            (ii) owned in part by one or more 
                        community development corporations, if 
                        all other owners are either United 
                        States citizens or small business 
                        concerns; or
                    (E) a small business concern that is--
                            (i) a small agricultural 
                        cooperative organized or incorporated 
                        in the United States;
                            (ii) wholly owned by 1 or more 
                        small agricultural cooperatives 
                        organized or incorporated in the United 
                        States; or
                            (iii) owned in part by 1 or more 
                        small agricultural cooperatives 
                        organized or incorporated in the United 
                        States, if all owners are small 
                        business concerns or United States 
                        citizens.
            (4) Qualified areas.--
                    (A) Qualified census tract.--The term 
                ``qualified census tract'' has the meaning 
                given that term in section 42(d)(5)(C)(ii) of 
                the Internal Revenue Code of 1986.
                    (B) Qualified nonmetropolitan county.--The 
                term ``qualified nonmetropolitan county'' means 
                any county--
                            (i) that was not located in a 
                        metropolitan statistical area (as 
                        defined in section 143(k)(2)(B) of the 
                        Internal Revenue Code of 1986) at the 
                        time of the most recent census taken 
                        for purposes of selecting qualified 
                        census tracts under section 
                        42(d)(5)(C)(ii) of the Internal Revenue 
                        Code of 1986; and
                            (ii) in which--
                                    (I) the median household 
                                income is less than 80 percent 
                                of the nonmetropolitan State 
                                median household income, based 
                                on the most recent data 
                                available from the Bureau of 
                                the Census of the Department of 
                                Commerce;
                                    (II) the unemployment rate 
                                is not less than 140 percent of 
                                the average unemployment rate 
                                for the United States or for 
                                the State in which such county 
                                is located, whichever is less, 
                                based on the most recent data 
                                available from the Secretary of 
                                Labor; or
                                    (III) there is located a 
                                difficult development area, as 
                                designated by the Secretary of 
                                Housing and Urban Development 
                                in accordance with section 
                                42(d)(5)(C)(iii) of the 
                                Internal Revenue Code of 1986, 
                                within Alaska, Hawaii, or any 
                                territory or possession of the 
                                United States outside the 48 
                                contiguous States.
                    (C) Redesignated area.--The term 
                ``redesignated area'' means any census tract 
                that ceases to be qualified under subparagraph 
                (A) and any nonmetropolitan county that ceases 
                to be qualified under subparagraph (B), except 
                that a census tract or a nonmetropolitan county 
                may be a ``redesignated area'' only until the 
                later of--
                            (i) the date on which the Census 
                        Bureau publicly releases the first 
                        results from the 2010 decennial census; 
                        or
                            (ii) 3 years after the date on 
                        which the census tract or 
                        nonmetropolitan county ceased to be so 
                        qualified.
                    (D) Base closure area.--The term ``base 
                closure area'' means lands within the external 
                boundaries of a military installation that were 
                closed through a privatization process under 
                the authority of--
                            (i) the Defense Base Closure and 
                        Realignment Act of 1990 (part A of 
                        title XXIX of division B of Public Law 
                        101-510; 10 U.S.C. 2687 note);
                            (ii) title II of the Defense 
                        Authorization Amendments and Base 
                        Closure and Realignment Act (Public Law 
                        100-526; 10 U.S.C. 2687 note);
                            (iii) section 2687 of title 10, 
                        United States Code; or
                            (iv) any other provision of law 
                        authorizing or directing the Secretary 
                        of Defense or the Secretary of a 
                        military department to dispose of real 
                        property at the military installation 
                        for purposes relating to base closures 
                        of redevelopment, while retaining the 
                        authority to enter into a leaseback of 
                        all or a portion of the property for 
                        military use.
            (5) Qualified hubzone small business concern.--
                    (A) In general.--A HUBZone small business 
                concern is ``qualified'', if--
                            (i) the small business concern has 
                        certified in writing to the 
                        Administrator (or the Administrator 
                        otherwise determines, based on 
                        information submitted to the 
                        Administrator by the small business 
                        concern, or based on certification 
                        procedures, which shall be established 
                        by the Administration by regulation) 
                        that--
                                    (I) it is a HUBZone small 
                                business concern--
                                            (aa) pursuant to 
                                        subparagraph (A), (B), 
                                        (C), (D), or (E) of 
                                        paragraph (3), and that 
                                        its principal office is 
                                        located in a HUBZone 
                                        and not fewer than 35 
                                        percent of its 
                                        employees reside in a 
                                        HUBZone; or
                                            (bb) pursuant to 
                                        paragraph (3)(C), and 
                                        not fewer than 35 
                                        percent of its 
                                        employees engaged in 
                                        performing a contract 
                                        awarded to the small 
                                        business concern on the 
                                        basis of a preference 
                                        provided under section 
                                        31(b) reside within any 
                                        Indian reservation 
                                        governed by one or more 
                                        of the tribal 
                                        government owners, or 
                                        reside within any 
                                        HUBZone adjoining any 
                                        such Indian 
                                        reservation;
                                    (II) the small business 
                                concern will attempt to 
                                maintain the applicable 
                                employment percentage under 
                                subclause (I) during the 
                                performance of any contract 
                                awarded to the small business 
                                concern on the basis of a 
                                preference provided under 
                                section 31(b); and
                                    (III) with respect to any 
                                subcontract entered into by the 
                                small business concern pursuant 
                                to a contract awarded to the 
                                small business concern under 
                                section 31, the small business 
                                concern will ensure that the 
                                requirements of section 46 are 
                                satisfied; and
                            (ii) no certification made or 
                        information provided by the small 
                        business concern under clause (i) has 
                        been, in accordance with the procedures 
                        established under section 31(c)(1)--
                                    (I) successfully challenged 
                                by an interested party; or
                                    (II) otherwise determined 
                                by the Administrator to be 
                                materially false.
                    (B) List of qualified small business 
                concerns.--The Administrator shall establish 
                and maintain a list of qualified HUBZone small 
                business concerns, which list shall, to the 
                extent practicable--
                            (i) once the Administrator has made 
                        the certification required by 
                        subparagraph (A)(i) regarding a 
                        qualified HUBZone small business 
                        concern and has determined that 
                        subparagraph (A)(ii) does not apply to 
                        that concern, include the name, 
                        address, and type of business with 
                        respect to each such small business 
                        concern;
                            (ii) be updated by the 
                        Administrator not less than annually; 
                        and
                            (iii) be provided upon request to 
                        any Federal agency or other entity.
            (6) Native american small business concerns.--
                    (A) Alaska native corporation.--The term 
                ``Alaska Native Corporation'' has the same 
                meaning as the term ``Native Corporation'' in 
                section 3 of the Alaska Native Claims 
                Settlement Act (43 U.S.C. 1602).
                    (B) Alaska native village.--The term 
                ``Alaska Native Village'' has the same meaning 
                as the term ``Native village'' in section 3 of 
                the Alaska Native Claims Settlement Act (43 
                U.S.C. 1602).
                    (C) Indian reservation.--The term ``Indian 
                reservation''--
                            (i) has the same meaning as the 
                        term ``Indian country'' in section 1151 
                        of title 18, United States Code, except 
                        that such term does not include--
                                    (I) any lands that are 
                                located within a State in which 
                                a tribe did not exercise 
                                governmental jurisdiction on 
                                the date of the enactment of 
                                this paragraph, unless that 
                                tribe is recognized after that 
                                date of the enactment by either 
                                an Act of Congress or pursuant 
                                to regulations of the Secretary 
                                of the Interior for the 
                                administrative recognition that 
                                an Indian group exists as an 
                                Indian tribe (part 83 of title 
                                25, Code of Federal 
                                Regulations); and
                                    (II) lands taken into trust 
                                or acquired by an Indian tribe 
                                after the date of the enactment 
                                of this paragraph if such lands 
                                are not located within the 
                                external boundaries of an 
                                Indian reservation or former 
                                reservation or are not 
                                contiguous to the lands held in 
                                trust or restricted status on 
                                that date of the enactment; and
                            (ii) in the State of Oklahoma, 
                        means lands that--
                                    (I) are within the 
                                jurisdictional areas of an 
                                Oklahoma Indian tribe (as 
                                determined by the Secretary of 
                                the Interior); and
                                    (II) are recognized by the 
                                Secretary of the Interior as 
                                eligible for trust land status 
                                under part 151 of title 25, 
                                Code of Federal Regulations (as 
                                in effect on the date of the 
                                enactment of this paragraph).
            (7) Agricultural commodity.--The term 
        ``agricultural commodity'' has the same meaning as in 
        section 102 of the Agricultural Trade Act of 1978 (7 
        U.S.C. 5602).
    (q) Definitions Relating to Veterans.--In this Act, the 
following definitions apply:
            (1) Service-disabled veteran.--The term ``service-
        disabled veteran'' means a veteran with a disability 
        that is service-connected (as defined in section 
        101(16) of title 38, United States Code).
            (2) Small business concern owned and controlled by 
        service-disabled veterans.--The term ``small business 
        concern owned and controlled by service-disabled 
        veterans'' means a small business concern--
                    (A) not less than 51 percent of which is 
                owned by one or more service-disabled veterans 
                or, in the case of any publicly owned business, 
                not less than 51 percent of the stock of which 
                is owned by one or more service-disabled 
                veterans; and
                    (B) the management and daily business 
                operations of which are controlled by one or 
                more service-disabled veterans or, in the case 
                of a veteran with permanent and severe 
                disability, the spouse or permanent caregiver 
                of such veteran.
            (3) Small business concern owned and controlled by 
        veterans.--The term ``small business concern owned and 
        controlled by veterans'' means a small business 
        concern--
                    (A) not less than 51 percent of which is 
                owned by one or more veterans or, in the case 
                of any publicly owned business, not less than 
                51 percent of the stock of which is owned by 
                one or more veterans; and
                    (B) the management and daily business 
                operations of which are controlled by one or 
                more veterans.
            (4) Veteran.--The term ``veteran'' has the meaning 
        given the term in section 101(2) of title 38, United 
        States Code.
            (5) Relief from time limitations.--
                    (A) In general.--Any time limitation on any 
                qualification, certification, or period of 
                participation imposed under this Act on any 
                program that is available to small business 
                concerns shall be extended for a small business 
                concern that--
                            (i) is owned and controlled by--
                                    (I) a veteran who was 
                                called or ordered to active 
                                duty under a provision of law 
                                specified in section 
                                101(a)(13)(B) of title 10, 
                                United States Code, on or after 
                                September 11, 2001; or
                                    (II) a service-disabled 
                                veteran who became such a 
                                veteran due to an injury or 
                                illness incurred or aggravated 
                                in the active military, naval, 
                                or air service during a period 
                                of active duty pursuant to a 
                                call or order to active duty 
                                under a provision of law 
                                referred to in subclause (I) on 
                                or after September 11, 2001; 
                                and
                            (ii) was subject to the time 
                        limitation during such period of active 
                        duty.
                    (B) Duration.--Upon submission of proper 
                documentation to the Administrator, the 
                extension of a time limitation under 
                subparagraph (A) shall be equal to the period 
                of time that such veteran who owned or 
                controlled such a concern was on active duty as 
                described in that subparagraph.
                    (C) Exception for programs subject to 
                federal credit reform act of 1990.--The 
                provisions of subparagraphs (A) and (B) shall 
                not apply to any programs subject to the 
                Federal Credit Reform Act of 1990 (2 U.S.C. 661 
                et seq.).
    (r) Definitions Relating to Small Business Lending 
Companies.--As used in section 23 of this Act:
            (1) Small business lending company.--The term 
        ``small business lending company'' means a business 
        concern that is authorized by the Administrator to make 
        loans pursuant to section 7(a) and whose lending 
        activities are not subject to regulation by any Federal 
        or State regulatory agency.
            (2) Non-federally regulated sba lender.--The term 
        ``non-Federally regulated SBA lender'' means a business 
        concern if--
                    (A) such concern is authorized by the 
                Administrator to make loans under section 7;
                    (B) such concern is subject to regulation 
                by a State; and
                    (C) the lending activities of such concern 
                are not regulated by any Federal banking 
                authority.
    (s) Major Disaster.--In this Act, the term ``major 
disaster'' has the meaning given that term in section 102 of 
the Robert T. Stafford Disaster Relief and Emergency Assistance 
Act (42 U.S.C. 5122).
    (t) Small Business Development Center.--In this Act, the 
term ``small business development center'' means a small 
business development center described in section 21.
    (u) Region of the Administration.--In this Act, the term 
``region of the Administration'' means the geographic area 
served by a regional office of the Administration established 
under section 4(a).
    (v) Multiple Award Contract.--In this Act, the term 
``multiple award contract'' means--
            (1) a multiple award task order contract or 
        delivery order contract that is entered into under the 
        authority of sections 303H through 303K of the Federal 
        Property and Administrative Services Act of 1949 (41 
        U.S.C. 253h through 253k); and
            (2) any other indefinite delivery, indefinite 
        quantity contract that is entered into by the head of a 
        Federal agency with 2 or more sources pursuant to the 
        same solicitation.
    (w) Presumption.--
            (1) In general.--In every contract, subcontract, 
        cooperative agreement, cooperative research and 
        development agreement, or grant which is set aside, 
        reserved, or otherwise classified as intended for award 
        to small business concerns, there shall be a 
        presumption of loss to the United States based on the 
        total amount expended on the contract, subcontract, 
        cooperative agreement, cooperative research and 
        development agreement, or grant whenever it is 
        established that a business concern other than a small 
        business concern willfully sought and received the 
        award by misrepresentation.
            (2) Deemed certifications.--The following actions 
        shall be deemed affirmative, willful, and intentional 
        certifications of small business size and status:
                    (A) Submission of a bid or proposal for a 
                Federal grant, contract, subcontract, 
                cooperative agreement, or cooperative research 
                and development agreement reserved, set aside, 
                or otherwise classified as intended for award 
                to small business concerns.
                    (B) Submission of a bid or proposal for a 
                Federal grant, contract, subcontract, 
                cooperative agreement, or cooperative research 
                and development agreement which in any way 
                encourages a Federal agency to classify the bid 
                or proposal, if awarded, as an award to a small 
                business concern.
                    (C) Registration on any Federal electronic 
                database for the purpose of being considered 
                for award of a Federal grant, contract, 
                subcontract, cooperative agreement, or 
                cooperative research agreement, as a small 
                business concern.
            (3) Certification by signature of responsible 
        official.--
                    (A) In general.--Each solicitation, bid, or 
                application for a Federal contract, 
                subcontract, or grant shall contain a 
                certification concerning the small business 
                size and status of a business concern seeking 
                the Federal contract, subcontract, or grant.
                    (B) Content of certifications.--A 
                certification that a business concern qualifies 
                as a small business concern of the exact size 
                and status claimed by the business concern for 
                purposes of bidding on a Federal contract or 
                subcontract, or applying for a Federal grant, 
                shall contain the signature of an authorized 
                official on the same page on which the 
                certification is contained.
            (4) Regulations.--The Administrator shall 
        promulgate regulations to provide adequate protections 
        to individuals and business concerns from liability 
        under this subsection in cases of unintentional errors, 
        technical malfunctions, and other similar situations.
    (x) Annual Certification.--
            (1) In general.--Each business certified as a small 
        business concern under this Act shall annually certify 
        its small business size and, if appropriate, its small 
        business status, by means of a confirming entry on the 
        Online Representations and Certifications Application 
        database of the Administration, or any successor 
        thereto.
            (2) Regulations.--Not later than 1 year after the 
        date of enactment of this subsection, the 
        Administrator, in consultation with the Inspector 
        General and the Chief Counsel for Advocacy of the 
        Administration, shall promulgate regulations to ensure 
        that--
                    (A) no business concern continues to be 
                certified as a small business concern on the 
                Online Representations and Certifications 
                Application database of the Administration, or 
                any successor thereto, without fulfilling the 
                requirements for annual certification under 
                this subsection; and
                    (B) the requirements of this subsection are 
                implemented in a manner presenting the least 
                possible regulatory burden on small business 
                concerns.
    (y) Policy on Prosecutions of Small Business Size and 
Status Fraud.--Not later than 1 year after the date of 
enactment of this subsection, the Administrator, in 
consultation with the Attorney General, shall issue a 
Government-wide policy on prosecution of small business size 
and status fraud, which shall direct Federal agencies to 
appropriately publicize the policy.
    (z) Aquaculture Business Disaster Assistance.--Subject to 
section 18(a) and notwithstanding section 18(b)(1), the 
Administrator may provide disaster assistance under section 
7(b)(2) to aquaculture enterprises that are small businesses.
    (aa) Venture Capital Operating Company.--In this Act, the 
term ``venture capital operating company'' means an entity 
described in clause (i), (v), or (vi) of section 121.103(b)(5) 
of title 13, Code of Federal Regulations (or any successor 
thereto).
    (bb) Hedge Fund.--In this Act, the term ``hedge fund'' has 
the meaning given that term in section 13(h)(2) of the Bank 
Holding Company Act of 1956 (12 U.S.C. 1851(h)(2)).
    (cc) Private Equity Firm.--In this Act, the term ``private 
equity firm'' has the meaning given the term ``private equity 
fund'' in section 13(h)(2) of the Bank Holding Company Act of 
1956 (12 U.S.C. 1851(h)(2)).
    (dd) Definitions Pertaining to Subcontracting.--In this 
Act:
            (1) Subcontract.--The term ``subcontract'' means a 
        legally binding agreement between a contractor that is 
        already under contract to another party to perform 
        work, and a third party, hereinafter referred to as the 
        subcontractor, for the subcontractor to perform a part, 
        or all, of the work that the contractor has undertaken.
            (2) First tier subcontractor.--The term ``first 
        tier subcontractor'' means a subcontractor who has a 
        subcontract directly with the prime contractor.
            (3) At any tier.--The term ``at any tier'' means 
        any subcontractor other than a subcontractor who is a 
        first tier subcontractor.

           *       *       *       *       *       *       *

                              ----------                              


 SECTION 212 OF THE SMALL BUSINESS REGULATORY ENFORCEMENT FAIRNESS ACT 
                                OF 1996



           *       *       *       *       *       *       *
SEC. 212. COMPLIANCE GUIDES.

    (a) Compliance Guide.--
            (1) In general.--For each rule or group of related 
        rules for which an agency is required to prepare a 
        final regulatory flexibility analysis under section 
        605(b) of title 5, United States Code, the agency shall 
        publish 1 or more guides to assist small entities in 
        complying with the rule and shall entitle such 
        publications ``small entity compliance guides''.
            (2) Publication of guides.--The publication of each 
        guide under this subsection shall include
                    (A) the posting of the guide in an easily 
                identified location on the website of the 
                agency; and
                    (B) distribution of the guide to known 
                industry contacts, such as small entities, 
                associations, or industry leaders affected by 
                the rule.
            (3) Publication date.--An agency shall publish each 
        guide (including the posting and distribution of the 
        guide as described under paragraph (2))
                    (A) on the same date as the date of 
                publication of the final rule (or as soon as 
                possible after that date); and
                    (B) not later than the date on which the 
                requirements of that rule become effective.
            (4) Compliance actions.--
                    (A) In general.--Each guide shall explain 
                the actions a small entity is required to take 
                to comply with a rule.
                    (B) Explanation.--The explanation under 
                subparagraph (A)
                            (I) shall include a description of 
                        actions needed to meet the requirements 
                        of a rule, to enable a small entity to 
                        know when such requirements are met; 
                        and
                            (ii) if determined appropriate by 
                        the agency, may include a description 
                        of possible procedures, such as 
                        conducting tests, that may assist a 
                        small entity in meeting such 
                        requirements, except that, compliance 
                        with any procedures described pursuant 
                        to this section does not establish 
                        compliance with the rule, or establish 
                        a presumption or inference of such 
                        compliance.
                    (C) Procedures.--Procedures described under 
                subparagraph (B)(ii)--
                            (i) shall be suggestions to assist 
                        small entities; and
                            (ii) shall not be additional 
                        requirements, or diminish requirements, 
                        relating to the rule.
            [(5) Agency preparation of guides.--The agency 
        shall, in its sole discretion, taking into account the 
        subject matter of the rule and the language of relevant 
        statutes, ensure that the guide is written using 
        sufficiently plain language likely to be understood by 
        affected small entities. Agencies may prepare separate 
        guides covering groups or classes of similarly affected 
        small entities and may cooperate with associations of 
        small entities to develop and distribute such guides. 
        An agency may prepare guides and apply this section 
        with respect to a rule or a group of related rules.]
            (5) Agency preparation of guides.--The agency 
        shall, in its sole discretion, taking into account the 
        subject matter of the rule and the language of relevant 
        statutes, ensure that the guide is written using 
        sufficiently plain language likely to be understood by 
        affected small entities. Agencies may prepare separate 
        guides covering groups or classes of similarly affected 
        small entities and may cooperate with associations of 
        small entities to distribute such guides. In developing 
        guides, agencies shall solicit input from affected 
        small entities or associations of affected small 
        entities. An agency may prepare guides and apply this 
        section with respect to a rule or a group of related 
        rules.
            (6) Reporting.--Not later than 1 year after the 
        date of enactment of the Fair Minimum Wage Act of 2007, 
        and annually thereafter, the head of each agency shall 
        submit a report to the Committee on Small Business and 
        Entrepreneurship of the Senate, the Committee on Small 
        Business of the House of Representatives, and any other 
        committee of relevant jurisdiction describing the 
        status of the agency"s compliance with paragraphs (1) 
        through (5).
    (b) Comprehensive Source of Information.--Agencies shall 
cooperate to make available to small entities through 
comprehensive sources of information, the small entity 
compliance guides and all other available information on 
statutory and regulatory requirements affecting small entities.
    (c) Limitation on Judicial Review.--An agency's small 
entity compliance guide shall not be subject to judicial 
review, except that in any civil or administrative action 
against a small entity for a violation occurring after the 
effective date of this section, the content of the small entity 
compliance guide may be considered as evidence of the 
reasonableness or appropriateness of any proposed fines, 
penalties or damages.

                            Dissenting Views

    H.R. 527, the ``Small Business Regulatory Flexibility 
Improvements Act of 2015,'' (SBRFIA) amends the Regulatory 
Flexibility Act\1\ (RFA) in ways that will significantly hinder 
the promulgation of critical public health and safety rules by 
Federal administrative agencies. While H.R. 527's proponents 
claim that these changes to the RFA will ease the alleged 
burden of regulatory compliance on small businesses and other 
small entities, an examination of the bill's provisions makes 
clear that this measure is really intended to slow down, if not 
halt, most agency rulemaking.
---------------------------------------------------------------------------
    \1\Pub. L. No. 96-354, 94 Stat. 1164 (codified at 5 U.S.C. 
Sec. Sec. 601-612 (2015)).
    In 1996, the RFA was amended by Small Business Regulatory 
Enforcement Fairness Act of 1996, Pub. L. No. 104-121, Sec. 242, 110 
Stat. 847, 857 (1996), to permit judicial review under certain 
circumstances of, among other matters, an agency's regulatory 
flexibility analysis for a final rule and any certification by an 
agency averring that a rule will not have a significant economic impact 
on a substantial number of small entities.
---------------------------------------------------------------------------
    H.R. 527 does nothing to help small businesses and other 
small entities reduce compliance costs or to ensure agency 
compliance with the RFA. Instead, the bill imposes numerous and 
unnecessary burdens on agencies while ignoring the fact that 
small businesses, like their larger counterparts, can 
substantially impact the health and safety of their workers as 
well as that of the general public.\2\ Small businesses, like 
all businesses, provide services and goods that also affect our 
lives and can carry the same risk of harm as the services and 
goods that large businesses provide. It makes no difference to 
someone who is breathing dirty air or drinking poisoned water 
whether the hazards come from a small or large business.
---------------------------------------------------------------------------
    \2\For example, workplace safety rules may impact tens of millions 
of Americans who work for small businesses. As of 2008, there were 5.93 
million small firms employing 120,903,551 workers, including 5,294,970 
firms of 20 or fewer employees, employing 21,461,733 workers and 
5,684,120 firms of 50 or fewer employees, employing 33,453,284 workers, 
according to the SBA. See U.S. Census Bureau, Statistics of U.S. 
Businesses, U.S. NAICS Sectors, small employment sizes, 2008, http://
www.census.gov/econ/susb. There were 4,383 fatal occupational injuries 
in 2012, according to the Bureau of Labor Statistics. Press Release, 
U.S. Dep't of Labor Bureau of Labor Statistics, National Census of 
Fatal Occupational Census of Fatal Occupational Injuries in 2012 
(Preliminary Results), Aug. 13, 2013, http://www.bls.gov/news.release/
pdf/cfoi.pdf. Additionally, an analysis by the National Institute for 
Occupational Safety and Health, the American Cancer Society, and Emory 
University's School of Public Health estimates that after factoring in 
disease and injury data ``there are a total of 55,200 US deaths 
annually resulting from occupational disease or injury (range 32,200-
78,200).''Kyle Steenland et al., Dying for Work: The Magnitude of US 
Mortality from Selected Cases of Death Associated with Occupation, 43 
Am. J. Industrial Medicine 461 (2003).
---------------------------------------------------------------------------
    Accordingly, we must oppose attempts like H.R. 527 that 
create an unacceptable barrier to agency rulemaking. 
Specifically, we oppose this legislation because it: (1) is 
based on the false premise that regulatory costs stifle 
economic growth and job creation; (2) threatens public health 
and safety by severely undermining Federal agency rulemaking; 
(3) imposes additional duties on agencies while failing to 
provide for any additional resources to meet such burdens; and 
(4) allows more opportunities for industry to delay or defeat 
proposed rulemakings.
    Consumer groups and organizations concerned with protecting 
public health and safety have raised many of these same 
concerns. The Coalition for Sensible Safeguards, a broad 
coalition of more than 70 environmental, labor, and consumer 
organizations--including the AFL-CIO, the American Federation 
of State, County and Municipal Employees, the American Lung 
Association, Consumer Federation of America, Consumers Union, 
the League of Conservation Voters, Public Citizen, and the 
Union of Concerned Scientists--strongly oppose H.R. 527.\3\ 
Additionally, the American Sustainable Business Council, which 
represents more than 200,000 businesses, opposes this measure 
because it would ``hurt small and medium size businesses by 
halting the regulatory process that levels the playing field 
for these businesses to compete.''\4\
---------------------------------------------------------------------------
    \3\The other organizations include: Alliance for Justice, American 
Association of University Professors, American Federation of Teachers, 
Americans for Financial Reform, American Rivers, American Values 
Campaign, American Sustainable Business Council, BlueGreen Alliance, 
Campaign for Contract Agriculture Reform, Center for Effective 
Government, Center for Food Safety, Center for Foodborne Illness 
Research and Prevention, Center for Independent Living, Center for 
Science in the Public Interest, Citizens for Sludge-Free Land, Clean 
Air Watch, Clean Water Network, Consortium for Citizens with 
Disabilities, Countercorp, Cumberland Countians for Peace and Justice, 
Demos, Economic Policy Institute, Edmonds Institute, Environment 
America, Farmworker Justice, Free Press, Friends of the Earth, Green 
for All, Health Care for America Now, In the Public Interest, 
International Brotherhood of Teamsters, International Center for 
Technology Assessment, International Union of United Automobile, 
Aerospace, & Agricultural Implement Workers of America (UAW), Los 
Angeles Alliance for a New Economy, Main Street Alliance, National 
Association of Consumer Advocates, National Center for Healthy Housing, 
National Consumers League, National Council for Occupational Safety and 
Health, National Employment Law Project, National Lawyers Guild 
Louisville Chapter, National Women's Health Network, National Women's 
Law Center, Natural Resources Defense Council, Network for 
Environmental & Economic Responsibility of the United Church of Christ, 
New Jersey Work Environment Council, New York Committee for 
Occupational Safety and Health, Oregon Peaceworks, People for the 
American Way, Protect All Children's Environment, Reproductive Health 
Technologies Project, Safe Tables Our Priority (S.T.O.P.), Service 
Employees International Union, Southern Illinois Committee for 
Occupational Safety and Health, The Arc of the United States, The 
Partnership for Working Families, Trust for America's Health, U.S. 
Camber Watch, U.S. PIRG, Union Plus, United Food and Commercial Workers 
Union, United Steelworkers, Waterkeeper Alliance, Worksafe. See Letter 
from Coalition for Sensible Safeguards to Representative John Conyers, 
Jr., Ranking Member, Committee on the Judiciary (Jan. 26, 2015) (on 
file with the H. Comm. on the Judiciary, Democrats).
    \4\Letter from American Sustainable Business Council to 
Representative John Conyers, Jr., Ranking Member, Committee on the 
Judiciary (Jan. 26, 2015) (on file with the H. Comm. on the Judiciary, 
Democrats) (listing its membership as ``200,000 businesses and more 
than 325,000 business professionals, including industry associations, 
local and state chambers of commerce, micro-enterprise, social 
enterprise, green and sustainable business, local living economy 
groups, woman and minority business leaders, and investor networks.'').
---------------------------------------------------------------------------
    Moreover, the Obama administration issued a veto threat 
against substantively similar legislation considered in the 
112th Congress, explaining that the bill ``would impede the 
ability of agencies to provide the public with basic 
protections, and create needless confusion and delay that would 
prove disruptive for businesses, as well as for state, tribal 
and local governments.''\5\
---------------------------------------------------------------------------
    \5\Executive Office of the President, Office of Management and 
Budget, Statement of Administration Policy for H.R. 527--Regulatory 
Flexibility Improvements Act of 2011 (Nov. 29, 2011), http://
www.whitehouse.gov/sites/default/files/omb/legislative/sap/112/
saphr527r_20111129.pdf.
---------------------------------------------------------------------------
    For all of these reasons, and those discussed further 
below, we respectfully dissent and urge our colleagues to 
reject this seriously flawed legislation.

                       BACKGROUND AND DESCRIPTION

                             I. BACKGROUND

    Enacted in 1980, the RFA requires Federal agencies to 
assess the impact of proposed regulations on ``small 
entities,'' which the Act defines as either a small business, 
small organization, or small governmental jurisdiction.\6\ The 
RFA requires agencies to prepare a regulatory flexibility 
analysis at the time certain proposed and final rules are 
promulgated. The analysis must: (1) describe the reasons why 
action by the agency is necessary; (2) include a succinct 
statement of the regulation's objectives and legal basis; (3) 
describe which small entities are affected by the rule as well 
as provide an estimate of the number of such entities so 
affected; (4) describe anticipated reporting, recordkeeping, 
and other compliance requirements; (5) identify any relevant 
Federal regulations that may duplicate, overlap, or conflict 
with the rule; and (6) identify any significant alternatives to 
the rule.\7\ This analysis is not required, however, if the 
agency certifies that the rule will not have a ``significant 
economic impact on a substantial number of small entities.''\8\ 
Whether a proposed rule will have such an impact is, therefore, 
the threshold inquiry under the RFA.
---------------------------------------------------------------------------
    \6\5 U.S.C. Sec. 601(6) (2015).
    \7\See 5 U.S.C. Sec. Sec. 603, 604 (2015).
    \8\5 U.S.C. Sec. 605(b) (2015).
---------------------------------------------------------------------------
    In addition, the RFA requires each agency to publish twice 
a year in the Federal Register a regulatory flexibility agenda 
identifying regulations that have a significant economic impact 
on a substantial number of small entities which the agency 
expects to propose.\9\ Further, the RFA requires agencies to 
conduct periodic reviews of rules having a significant impact 
on a substantial number of small entities\10\ and to ensure 
that small entities have an opportunity to participate in the 
rulemaking process.\11\
---------------------------------------------------------------------------
    \9\5 U.S.C. Sec. 602 (2015).
    \10\5 U.S.C. Sec. 610 (2015).
    \11\5 U.S.C. Sec. 609 (2015).
---------------------------------------------------------------------------
    Congress amended the RFA in 1996 with the enactment of the 
Small Business Regulatory Enforcement Fairness Act (SBREFA)\12\ 
to permit judicial review of an agency's regulatory flexibility 
analysis for a final rule and of an agency's certification that 
a rule would not have a significant economic impact on a 
substantial number of small entities. SBREFA also requires that 
proposed rules of the Environmental Protection Agency (EPA) and 
the Occupational Safety and Health Administration (OSHA) be 
subject to an advocacy review panel consisting of 
representatives of the agency promulgating the rule, the Chief 
Counsel for Advocacy of the Small Business Administration, and 
the Office of Information and Regulatory Affairs (OIRA).\13\
---------------------------------------------------------------------------
    \12\Pub. L. No. 104-121, Sec. 242, 110 Stat. 847, 857 (1996).
    \13\5 U.S.C. Sec. 609(b) (2015). The review panel requirement was 
extended to the Consumer Financial Protection Bureau in 2010 through 
the enactment of the Dodd-Frank Act. See 5 U.S.C. Sec. 609(d) (2015).
---------------------------------------------------------------------------

                            II. DESCRIPTION

    H.R. 527 amends the RFA to greatly expand the scope of its 
provisions and impose numerous new procedural and analytical 
requirements on agencies whenever a rule is subject to the RFA.
    First, H.R. 527 expands the type of rules covered by the 
RFA to include those that have a reasonably foreseeable 
indirect effect on small entities, which is a highly 
speculative requirement. It also includes documents like land 
management plans and certain guidance documents under the 
definition of ``rule,'' further expanding the RFA's scope. 
Second, the bill would require agencies to provide more detail 
and analysis in their initial and final regulatory analyses of 
proposed and final rules. Third, H.R. 527 repeals the emergency 
authority that the RFA gives to agencies to waive or delay an 
initial regulatory flexibility analysis or to delay a final 
regulatory flexibility analysis. This provision will prevent 
agencies from quickly responding to a public health or safety 
emergency. Fourth, H.R. 527 grants additional power to the 
Small Business Administration's (SBA's) Chief Counsel for 
Advocacy to promulgate rules governing agencies' RFA 
compliance, to intervene in agency adjudications, and to file 
comments on proposed rules. Fifth, the bill expands the use of 
advocacy review panels to cover rules with a significant 
economic impact on a substantial number of small entities that 
are proposed by all agencies--not just rules issued by the EPA, 
OSHA, and the Consumer Financial Protection Bureau (CFPB), as 
is currently the case--and would also apply to rules that would 
be considered ``major rules'' regardless of whether such rules 
would otherwise be subject to the RFA.
    Sixth, H.R. 527 amends the RFA's requirement that agencies 
periodically review rules to also require that agencies review 
all rules that exist on H.R. 527's enactment date. The bill 
would also mandate that agencies amend or rescind those rules, 
regardless of the review's findings. In addition H.R. 527 
expands the availability of judicial review to include any 
agency action taken to comply with the RFA, and not just 
``final agency action,'' as is the case under current law. 
Finally, H.R. 527 grants exclusive jurisdiction to the Federal 
courts of appeals to enjoin, set aside, suspend, or determine 
the validity of all final rules concerning RFA implementation 
that have been promulgated by the SBA's Chief Counsel for 
Advocacy under the authority granted to it under this 
legislation.
    A detailed section-by-section analysis of H.R. 527 appears 
later in our dissenting views.

                         CONCERNS WITH H.R. 527

 I. H.R. 527 IS BASED ON THE FALSE PREMISE THAT REGULATIONS STIFLE JOB 
                                CREATION

    H.R. 527 is based on the false premise that regulations 
impose overwhelmingly burdensome costs on small businesses that 
ultimately hamper economic growth and job creation. In 
particular, H.R. 527's supporters rely almost exclusively on an 
SBA-sponsored study conducted by economists Nicole and Mark 
Crain (Crain study),\14\ which concluded that Federal 
regulations impose a $1.75 trillion cost on all businesses and 
that a disproportionate share of these costs are borne by small 
businesses.\15\
---------------------------------------------------------------------------
    \14\Nicole V. Crain & W. Mark Crain, The Impact of Regulatory Costs 
on Small Firms, Rep. No. SBAHQ-08-M-0466 (Sept. 2010), http://
archive.sba.gov/advo/research/rs371tot.pdf.
    \15\H.R. 527, the ``Regulatory Flexibility Improvements Act of 
2011''--Unleashing Small Businesses to Create Jobs: Hearing Before the 
Subcomm. on Courts, Commercial and Administrative L. of the H. Comm. on 
the Judiciary, 112th Cong. 58, 67 & 87 (2011) (prepared statements of 
Richard Gimmel, President, Atlas Machine & Supply, Inc., on behalf of 
the National Association of Manufacturers; Thomas Sullivan, former 
Chief Counsel for Advocacy, Small Business Administration; and Karen R. 
Harned, Executive Director, Small Business Legal Center, National 
Federation of Independent Businesses).
---------------------------------------------------------------------------
    The Crain study, however, has been roundly criticized for 
exaggerating the costs of Federal rulemaking on small 
businesses. For example, the Center for Progressive Reform 
(CPR) notes that the $1.75 trillion cumulative burden cited by 
the study fails to account for any benefits of regulation.\16\ 
CPR observes that the Office of Management and Budget (OMB) 
estimated in 2008 that major rules imposed $46 billion to $54 
billion in costs, but also produced $122 billion to $656 
billion in benefits.\17\ Moreover, the study's methodology is 
flawed with respect to how it calculated economic costs. The 
study, which relied on international public opinion polling by 
the World Bank on how friendly a particular country was to 
business interests, ignored actual data on costs imposed by 
Federal regulation in the United States.\18\
---------------------------------------------------------------------------
    \16\Sid Shapiro, Ruth Ruttenberg, & James Goodwin, Setting the 
Record Straight: The Crain and Crain Report on Regulatory Costs, Center 
for Progressive Reform White Paper #1103 (Feb. 2011), http://
www.progressivereform.org/articles/
SBA_Regulatory_Costs_Analysis_1103.pdf.
    \17\Id.
    \18\Id.
---------------------------------------------------------------------------
    The Congressional Research Service (CRS) also conducted an 
extensive examination of the Crain study and criticized much of 
its methodology.\19\ CRS noted that the authors of the Crain 
study themselves told CRS that their study was ``not meant to 
be a decision-making tool for lawmakers or Federal regulatory 
agencies to use in choosing the 'right' level of regulation. In 
no place in any of the reports do we imply that our reports 
should be used for this purpose. (How could we recommend this 
use when we make no attempt to estimate the benefits?)''\20\ 
Accordingly, CRS concluded that ``a valid, reasoned policy 
decision can only be made after considering information on both 
costs and benefits'' of regulation.\21\
---------------------------------------------------------------------------
    \19\Curtis W. Copeland, Analysis of an Estimate of the Total Costs 
of Federal Regulations, Congressional Research Service Report for 
Congress, R41763 (Apr. 6, 2011).
    \20\Id. at 26 (quoting an e-mail from Nicole and W. Mark Crain to 
the author of the CRS report).
    \21\Id.
---------------------------------------------------------------------------
    The Crain study's failure to account for the net benefits 
of regulation in general was particularly shortsighted given 
evidence that regulation can result in net economic benefits 
for business. For example, promulgation of OSHA's Cotton Dust 
Standard resulted in the affected industry growing and 
prospering in the aftermath of the rule's promulgation.\22\ 
Much of that growth and prosperity was the result of business 
innovations relating to compliance with the rule.\23\ Indeed, 
the costs of the rule ended up being much smaller than 
predicted because of these innovations.\24\
---------------------------------------------------------------------------
    \22\Occupational Safety and Health Administration, Regulatory 
Review of OSHA's Cotton Dust Standard, at 35-38 (Sept. 2000), http://
www.osha.gov/dea/lookback/cottondust_final2000.pdf.
    \23\Id.
    \24\Id. at 38-39.
---------------------------------------------------------------------------
    Sally Katzen, a former OIRA Administrator during the 
Clinton administration, noted in testimony before a Judiciary 
Subcommittee that the OMB regularly finds that the aggregate 
benefits of Federal regulation outweigh its costs.\25\ Katzen 
noted that:
---------------------------------------------------------------------------
    \25\The REINS Act--Promoting Jobs and Expanding Freedom by Reducing 
Needless Regulations Hearing Before the Subcomm. on Courts, Commercial 
and Administrative L. of the H. Comm. on the Judiciary, 112th Cong. 3 
(2011) (prepared statement of Sally Katzen, former Administrator of the 
Office of Information and Regulatory Affairs).

        OMB's Report to Congress does include data on benefits, 
        and the numbers are striking: according to OMB, the 
        benefits from the regulations issued during the 10-year 
        period ranged from $128 billion to $616 billion. 
        Therefore, even if one uses OMB's highest estimate of 
        costs and its lowest estimate of benefits, the 
        regulations issued over the past 10 years have produced 
        net benefits of $73 billion to our society. This cannot 
        be dismissed as a partisan report by the current 
        Administration, because OMB issued reports with similar 
        results (benefits greatly exceeding costs) throughout 
        the George W. Bush administration (e.g., for FY 1998-
        2008, major regulations cost between $51 and $60 
        billion, with benefits estimated to be $126 to $663 
        billion dollars). Given that the benefits of 
        regulations consistently exceed the costs, the need for 
        any legislation that would make the issuance of 
        regulations more difficult or time consuming is 
        certainly in question.\26\
---------------------------------------------------------------------------
    \26\Id.

    OMB's 2013 Report to Congress further bolsters the 
conclusion that the benefits of regulation far outweigh its 
costs. It found that the ``estimated annual benefits of major 
Federal regulations reviewed by OMB from October 1, 2002, to 
September 30, 2012, for which agencies estimated and monetized 
both benefits and costs, are in the aggregate between $193 
billion and $800 billion, while the estimated annual costs are 
in the aggregate between $57 billion and $84 billion.''\27\ The 
2013 report further noted that some benefits and costs cannot 
be quantified or monetized.\28\ Similarly, the San Francisco 
Federal Reserve has also disputed that regulations impede job 
growth, concluding in 2013 that ``there was almost no 
correlation between job growth in a state from 2008 to 2011 and 
the increase in the percentage of businesses citing regulation 
and taxes as their primary concern. In fact, if anything, the 
correlation is positive.''\29\
---------------------------------------------------------------------------
    \27\Office of Management and Budget, 2013 Report to Congress on the 
Benefits and Costs of Federal Regulations and Agency Compliance with 
the Unfunded Mandates Reform Act, http://www.whitehouse.gov/sites/
default/files/omb/inforeg/2013_cb/2013_cost_benefit_report-updated.pdf.
    \28\Id.
    \29\Atif Mian & Amir Sufi, Aggregate Demand and State-Level 
Employment, FRBSF Economic Letter (Feb. 11, 2013), http://
www.frbsf.org/economic-research/publications/economic-letter/2013/
february/aggregate-demand-state-level-employment.
---------------------------------------------------------------------------
    To highlight the lack of support for claims that 
regulations burden families and impede job and economic growth, 
Representative Henry C. ``Hank'' Johnson, Jr. (D-GA) offered at 
markup an amendment that would have exempted rules resulting in 
net job growth from H.R. 527. Speaking in support of his 
amendment, Representative Johnson cited an article in the 
Washington Post noting that the studies cited by the Majority 
in support of deregulatory legislation have ```serious 
methodological problems--even the report admits it is `not 
scientific' and `back of the envelope'--and we fear these 
caveats are being forgotten as it is repeated in Capitol Hill 
news conferences and then in news reports.'''\30\ 
Representative Johnson also noted that ``even the president of 
the U.S. Chamber of Commerce acknowledged that the figures used 
to generate this number include many necessary regulations that 
are ``important for the economy'' and supported by the 
Chamber.''\31\ The amendment was defeated on a party-line vote 
of 7 to 15.\32\ Similarly, Representative Jerrold Nadler (D-NY) 
offered an amendment that would have required agencies to 
assess the direct and indirect benefits of a rule as part of 
the required regulatory flexibility analysis under H.R. 
527.\33\ This amendment was also defeated on a party-line vote 
of 9 to 17.\34\
---------------------------------------------------------------------------
    \30\Unofficial Tr. of Markup of H.R. 527, ``Small Business 
Regulatory Flexibility Improvements Act of 2015'' by the H. Comm. on 
the Judiciary, 114th Cong. at 22 (Jan. 27, 2015) (statement of Rep. 
Henry C. ``Hank'' Johnson, Jr.), http://judiciary.house.gov/_cache/
files/7ff3d5cc-a39b-42f0-930f-75ed4d98dcb5/01.27.15-markup-
transcript.pdf [hereinafter Markup Tr.]; Glenn Kesler, The Claim that 
American Households Have a $15,000 Regulatory `Burden,' Wash. Post 
(Jan. 14, 2015), http://www.washingtonpost.com/blogs/fact-checker/wp/
2015/01/14/the-claim-that-amer
ican-households-have-a-15000-regulatory-burden.
    \31\Markup Tr., supra note 30, at 22.
    \32\Id. at 40.
    \33\Id. at 51.
    \34\Id. at 61.
---------------------------------------------------------------------------

II. H.R. 527 THREATENS PUBLIC HEALTH AND SAFETY BY UNDERMINING FEDERAL 
                           AGENCY RULEMAKING

    H.R. 527 will undermine agencies' ability to protect public 
health and safety by imposing new and unnecessary requirements 
on the rulemaking process and will force agencies to shift 
limited resources to this more complex, costly, and time-
consuming rulemaking process. This legislation will accordingly 
prevent agencies from effectively promulgating regulations 
designed to protect Americans' health and safety.
A. LH.R. 527's Elimination of Agencies' Waiver and Delay Authority 
        Undermines the Agencies' Ability To Respond To Emergencies
    Section 5 of H.R. 527 eliminates agencies' ability to waive 
or delay any required initial regulatory flexibility analysis 
or to delay any required final regulatory flexibility analysis 
in the event of an emergency. By eliminating this safeguard, 
H.R. 527 undermines an agency's ability to respond to emergency 
situations.
    The override of an agency's authority to respond to 
emergencies without having to first go through the arduous and 
time-consuming task of review and analysis is simply wrong. 
Federal agencies are charged with promulgating regulations that 
impact virtually every aspect of our lives, including the air 
we breathe, the water we drink, the food we eat, the cars we 
drive, and the play toys we give our children.
    At the Committee markup, Ranking Member John Conyers, Jr. 
(D-MI) offered an amendment that would have preserved the 
exception under current law that allows agencies to quickly 
respond to emergencies without being hampered or second-guessed 
by others.\35\ The amendment was defeated by an 8 to 15 party-
line vote.\36\
---------------------------------------------------------------------------
    \35\Id at 41.
    \36\Id. at 51.
---------------------------------------------------------------------------
    Representative Scott Peters (D-CA) also offered an 
amendment that would have exempted from H.R. 527 any agency 
rulemaking to protect servicemembers from predatory 
lending.\37\ Speaking in support of his amendment, 
Representative Peters noted the amendment is necessary to 
ensure the timely promulgation of rules by the Department of 
Defense to expand protections to servicemembers and reduce 
predatory lending to military families.\38\ Representative 
Peters observed that ``[m]embers of the armed services make 
sacrifices to protect us from harm and defend our freedoms. It 
is our responsibility to ensure that these men and women are 
protected when they return home.''\39\ Recognizing the 
importance of protecting servicemembers, Chairman Bob Goodlatte 
(R-VA) acknowledged that ``there is a process ongoing to make 
sure that they are treated fairly in securing loans.''\40\ 
Following Chairman Goodlatte's commitment to address 
Representative Peters' concerns with H.R. 527 following the 
markup, the amendment was withdrawn from consideration.\41\ 
However, even if the Majority ultimately adopts an exception 
for this purpose, it only underscores why H.R. 527 is 
problematic. Essentially, this proves that exceptions for 
vulnerable populations are necessary to mitigate the harmful 
effects of the bill on such populations.
---------------------------------------------------------------------------
    \37\Id. at 62.
    \38\79 Fed. Reg. 58602 (Sept. 29, 2014) (to be codified at 32 
C.F.R. Part 232)-2013-OS-0133.
    \39\Markup Tr., supra note 30, at 63.
    \40\Id. at 65.
    \41\Id. at 67.
---------------------------------------------------------------------------
B. LH.R. 527's Expanded Use of Advocacy Review Panels Creates a Serious 
        Impediment To Agency Rulemaking
    As discussed earlier, SBREFA\42\ amended the RFA to require 
that rules proposed by the EPA and OSHA be subject to an 
advocacy review panel consisting of the agency promulgating the 
rule, the Chief Counsel for Advocacy of SBA, and OIRA.\43\ The 
Dodd-Frank Act later added the CFPB to this list of agencies 
subject to advocacy review panels. Section 6 of H.R. 527 
significantly expands the reach of this requirement to make it 
apply to rules proposed by all agencies to which the RFA would 
apply. In addition, section 6 would make the review panel 
requirement apply to all major rules regardless of whether they 
have a significant economic impact on a substantial number of 
small entities, regardless of whether the RFA would apply. 
Under section 6, the review panel would review a proposed rule, 
solicit and obtain input from business interests, and then 
issue a report assessing the economic impact of the proposed 
rule on small entities, including the energy cost impact, as 
well as a discussion of regulatory alternatives. This report is 
then to be made part of the rulemaking record, and the agency 
must explain what, if anything, it did in response to the 
report.
---------------------------------------------------------------------------
    \42\Pub. L. No. 104-121, Sec. 242, 110 Stat. 847, 857 (1996).
    \43\5 U.S.C. Sec. 609(b) (2015). The review panel requirement was 
extended to the CFPB in 2010. See 5 U.S.C. Sec. 609(d) (2015).
---------------------------------------------------------------------------
    By expanding the cumbersome review panel process to include 
all agency rules having a significant economic impact on a 
substantial number of small entities, as well as including all 
major rules regardless of whether they have such an impact, 
this provision will greatly slow down the rulemaking process 
and substantially empower business interests to throw sand into 
the gears of rulemaking. The use of advocacy review panels is 
already cumbersome. SBA's Office of Advocacy, which was 
established with the express purpose of acting as an 
independent advocate for business interests within the Federal 
Government,\44\ is already able to delay the issuance of final 
EPA, OSHA, and CFPB rules and to shape them in industry-
friendly ways.\45\ Expanding the use of these panels to include 
all agencies and rules that do not necessarily have a 
significant economic effect on a substantial number of small 
entities would guarantee that most rulemakings would be delayed 
and reflect a less consumer-oriented perspective. Moreover, 
this expansion of the review panel process takes it well beyond 
the scope of the RFA.
---------------------------------------------------------------------------
    \44\Small Business Administration, Office of Advocacy, About Us, 
http://www.sba.gov/
category/advocacy-navigation-structure/about-us.
    \45\The Center for Progressive Reform prepared a report in 2013 
detailing the Office of Advocacy's role in politicizing debates about 
regulation and ``funneling special interest pressure into agency 
rulemakings, even though such interests have already had ample 
opportunity to comment on proposed regulations.'' Sidney Shapiro & 
James Goodwin, Distorting the Interests of Small Business: How the 
Small Business Administration Office of Advocacy's Politicization of 
Small Business Concerns Undermines Public Health and Safety, Center for 
Progressive Reform White Paper #1302 (Jan. 2013), http://
www.progressivereform.org/articles/SBA_Office_
of_Advocacy_1302.pdf. Additionally, the Center for Effective Government 
issued a report explaining how the Office of Advocacy interfered with 
regulators' scientific assessments in order to promote the interests of 
large chemical companies having nothing to do with small business. 
Randy Rabinowitz, Katie Greenhaw, & Katie Weatherford, Small Business, 
Public Health, and Scientific Integrity: Whose Interests Does the 
Office of Advocacy at the Small Business Administration Serve?, Center 
for Effective Government (Jan. 2013), http://www.foreffectivegov.org/
files/regs/office-of-advocacy-report.pdf.
---------------------------------------------------------------------------
    There is also substantial public criticism of the SBA's 
Office of Advocacy independence and credibility as a voice for 
small businesses. In a 2014 report, the Government 
Accountability Office found, among other things, that the SBA's 
Office of Advocacy ``did not ensure the quality of information 
that the office disseminated.''\46\ The report also reprimanded 
the SBA for not ``retaining data for influential studies or 
taking other steps to substantiate the quality of information 
in such studies when they have not retained the data,'' citing 
specifically to the Crain Study.\47\ The Center for Progressive 
Reform noted that the report ``offered uncharacteristically 
strong criticisms of the SBA Office of Advocacy,'' including 
``15 disturbing revelations'' that ``depicts an agency that is 
at best sloppy and at worst willfully indifferent to whether or 
not its actions actually help small businesses.''\48\
---------------------------------------------------------------------------
    \46\U.S. Gov't Accountability Office, GAO-14-525, Small Business 
Administration Office of Advocacy Needs to Improve Controls Over 
Research, Regulatory, and Workforce Planning Activities (2014).
    \47\Id. at 13.
    \48\James Goodwin, The GAO's Scathing Report on the SBA Office of 
Advocacy: 15 Big Revelations, CPRBlog (July 28, 2014), http://
www.progressivereform.org/CPRBlog.cfm?idBlog=
7E0B435A-AF31-3773-74F4C5EB1559B1E5.
---------------------------------------------------------------------------
    Amit Narang, Regulatory Policy Advocate for Public Citizen, 
testified before the Subcommittee on Regulatory Reform, 
Commercial and Antitrust Law (Subcommittee) that the ``dramatic 
expansion'' of review panels under the previous version of H.R. 
527 ``will result in these panels giving feedback on rules that 
have no application and place no requirements on small 
businesses. Once again, the bill stretches the boundaries of 
what is considered a regulation that impacts small businesses 
to such a degree that the distinction between what does and 
what does not impact small businesses is rendered 
meaningless.''\49\ Mr. Narang further noted that a Government 
Accountability Office report detailing the ``glacially slow 
pace of rulemaking at OSHA identified the SBREFA panel process 
as one of the factors delaying OSHA, finding that it takes 
about 8 months of work for OSHA to prepare for the panel''\50\ 
Greatly expanding use of these panels can only cause similar 
rulemaking delays at other agencies.
---------------------------------------------------------------------------
    \49\H.R. 2542, the ``Regulatory Flexibility Improvements Act of 
2013'': Hearing Before the Subcomm. on Regulatory Reform, Commercial 
and Antitrust L. of the H. Comm. on the Judiciary, 113th Cong. (2013) 
(statement of Amit Narang, Regulatory Policy Advocate, Public Citizen).
    \50\Id.
---------------------------------------------------------------------------

   III. H.R. 527 FORCES AGENCIES TO ENGAGE IN WASTEFUL, SPECULATIVE 
                                ANALYSES

    H.R. 527 could effectively kill a rulemaking as a result of 
``paralysis by analysis.'' Specifically, the term ``economic 
impact'' is defined under section 2 to include any reasonably 
foreseeable ``indirect economic effect'' that a proposed rule 
may have on a small entity. This provision would force agencies 
to conduct highly speculative and labor-intensive assessments, 
all of which could be subject to litigation by well-financed 
business interests.
    In sum, the bill's onerous requirements will prevent 
agencies from engaging in effective rulemaking. As Mr. Narang 
testified before the Subcommittee, the bill:

        [D]oes little to clarify what constitutes, and more 
        importantly, what does not constitute an indirect 
        economic effect, giving agencies only the vague and 
        perfunctory guidance that it be ``reasonably 
        foreseeable.'' This ill-defined and indeterminate new 
        mandate will exert strong pressure on agencies to 
        engage in a guessing game of sorts as they attempt to 
        identify all possible indirect effects of a rule, an 
        enterprise akin to ordering a meteorologist to discern 
        the effects on Washington, D.C. weather of a butterfly 
        flapping its wings in Japan.\51\
---------------------------------------------------------------------------
    \51\Id.
---------------------------------------------------------------------------
A. LH.R. 527 Imposes Additional Duties on Agencies, But Fails To 
        Provide Any Additional Funding for Agencies to Comply with 
        Burdensome New Requirements
    In addition to requiring agency assessments of a rule's 
indirect effects and expanding the use of advocacy review 
panels, H.R. 527 substantially increases other agency 
responsibilities with respect to rulemaking. For example, 
section 4 of the bill requires agencies, with respect to 
regulatory analyses, to:

         Lspecify that the required descriptions be 
        detailed;\52\
---------------------------------------------------------------------------
    \52\H.R. 527, 114th Cong., Sec. 4(b)(1)(B) (2015).

         Lprovide a detailed explanation of significant 
        issues raised by any public comments submitted in 
        response to the initial regulatory flexibility 
        analysis, provide the agency's assessment of the 
        issues, and explain any changes made in the proposed 
        rule as a result of such comments;\53\
---------------------------------------------------------------------------
    \53\H.R. 527, 114th Cong., Sec. 4(b)(1)(A) (2015).

         Ldescribe any disproportionate economic impact 
        on small entities or a specific class of small 
        entities;\54\
---------------------------------------------------------------------------
    \54\H.R. 527, 114th Cong., Sec. 4(a) (2015).

         Lsupply a detailed statement--including the 
        factual and legal bases--of the reasons why an agency 
        has determined that a proposed or final rule will not 
        have a significant economic impact;\55\ and
---------------------------------------------------------------------------
    \55\H.R. 527, 114th Cong., Sec. 4(d) (2015).

         Lprovide in every instance (rather than simply 
        making discretionary, as under current law) a 
        quantifiable or numerical description of the effects of 
        a proposed rule and alternatives to a proposed rule or 
        a general description of such effects with a detailed 
        statement explaining why quantification is not 
        practicable or reliable.\56\
---------------------------------------------------------------------------
    \56\H.R. 527, 114th Cong., Sec. 4(e) (2015).

    These heightened responsibilities and other duties imposed 
by H.R. 527 will force agencies to expend already-strained 
resources and incur considerable costs to implement the bill. 
Not surprisingly, the Congressional Budget Office (CBO) 
estimated in the 113th Congress that a previous version of H.R. 
527 would cost American taxpayers $45 million between 2014 and 
2018 and would provide no cost savings.\57\ These costs may be 
even higher, as the Small Business Committee's minority staff 
noted in the 113th Congress, concluding that the ``true cost, 
based on prior CBO scores, is likely closer to $100 
million.''\58\
---------------------------------------------------------------------------
    \57\Congressional Budget Office, Cost Estimate for H.R. 2542, the 
Regulatory Flexibility Improvements Act of 2013 (Sept. 5, 2013), http:/
/cbo.gov/sites/default/files/cbofiles/attachments/hr527.pdf.
    \58\Id. at 96.
---------------------------------------------------------------------------
B. LH.R. 527 Would Overwhelm Agencies by Requiring Them To Conduct 
        Exhaustive Reviews of All Existing Rules
    Section 7 of H.R. 527 threatens to undermine agency 
rulemaking by requiring that every agency conducts a review of 
all rules--not just those subject to the RFA--that exist on the 
bill's enactment date. The review must consist of a 
determination of whether these rules have a significant 
economic impact on a substantial number of small entities, 
regardless of whether they already went through a final 
regulatory flexibility analysis previously. As a result of this 
provision, agencies would be forced to re-justify safeguards 
such as regulations designed to ensure clean air, clean water, 
food safety, automobile safety, and workplace safety. To do so, 
agencies will be required to redirect their scarce resources to 
meet this burdensome requirement.
    To put this requirement in context, it should be noted that 
there are currently more than 165,000 pages of regulations in 
the Code of Federal Regulations, as well as several hundred 
thousand guidance documents that could be subjected to H.R. 
527's look-back requirement. At a time when agencies are 
already under strain with limited resources, they can ill 
afford this substantial increase in their workload.
    In addition, section 2 of H.R. 527 expands the scope of 
rules subject to the RFA by including amendments to land 
management plans as well as rules pertaining to Tribal 
Organizations and certain Internal Revenue Service interpretive 
rules. These types of guidance documents traditionally are not 
``rules'' subject to the RFA. Expanding the scope of 
regulations subject to review will require resources to go to 
the review process that would otherwise be used by the agency 
to carry out their duties as delegated by Congress.
    Furthermore, section 7 imposes the absurd and wasteful 
requirement that agencies amend or rescind all existing rules. 
Specifically, H.R. 527 states that in ``reviewing a rule 
pursuant to subsections (a) through (d), the agency shall amend 
or rescind the rule to minimize any adverse significant 
economic impact on a substantial number of small entities or 
disproportionate economic impact on a specific class of small 
entities.'' In other words, regardless of the findings of any 
review of existing regulations, agencies must amend or rescind 
all existing rules, even when the review finds there is no need 
to amend or rescind a particular rule.\59\ Why require agencies 
to engage in a review to determine whether a rule should be 
amended or rescinded if amending or rescinding the rule is 
required regardless of what the review would find? Taken 
literally, this provision would require agencies to: (1) review 
the hundreds of thousands of pages of rules and guidance 
documents existing on H.R. 527's enactment date; and (2) amend 
or rescind every rule in existence on that date regardless of 
the review's findings. As J. Robert Shull noted in testimony 
before the Subcommittee in the 112th Congress, the mandatory 
``amend or rescind'' provision requires that ``the agency . . . 
embark upon new rulemakings for all of those [existing] 
regulations.''\60\ While we find much of H.R. 527's provisions 
to be wasteful, surely, the sponsors of H.R. 527 could not have 
intended to include this absurd and monumental waste of 
taxpayer resources.
---------------------------------------------------------------------------
    \59\H.R. 527, 114th Cong, Sec. 7 (2015).
    \60\The Regulatory Flexibility Improvements Act of 2011--Unleashing 
Small Businesses to Create Jobs: Hearing Before the Subcomm. on 
Commercial and Administrative L. of the H. Comm. on the Judiciary, 
112th Cong. (2011) (statement of J. Robert Shull).
---------------------------------------------------------------------------

IV. THE EXPANSION OF JUDICIAL REVIEW TO INCLUDE ALL AGENCY ACTIONS, AND 
NOT JUST ``FINAL AGENCY ACTION,'' ALLOWS SPECIAL INTERESTS TO OBSTRUCT 
   RULEMAKING BY CHALLENGING AGENCY ACTION BEFORE A RULE IS FINALIZED

    Section 8 of H.R. 527 creates the opportunity for well-
funded anti-regulatory business interests to engage in 
frivolous litigation. It does this by expanding the scope of 
judicial review to include court challenges to agency actions 
to issuance of a final rule, including agency compliance with 
H.R. 527's numerous, vague, speculative, and cumbersome 
analytical and other requirements. Current law limits such 
judicial review to final agency actions.
    As Mr. Narang noted at the Subcommittee's hearing on an 
earlier version of H.R. 527, the bill's expansion of judicial 
review to include challenges to the adequacy of regulatory 
flexibility analyses, for instance, would simply open the door 
to endless litigation, stating:

        the [bill] ensures that if agencies guess wrong on 
        indirect effects, regulated entities will have the 
        ability to draft the agency into court and overturn a 
        rule because the agency wasn't able to satisfy this new 
        and highly speculative mandate of determining all 
        indirect effects. Thus, the [bill] opens the floodgates 
        of litigation and transforms a statute that is supposed 
        to target rules that apply to small businesses into one 
        that forces agencies, by default, to assume that their 
        rules will in some indirect and attenuated fashion 
        apply to small businesses.\61\
---------------------------------------------------------------------------
    \61\H.R. 2542, the ``Regulatory Flexibility Improvements Act of 
2013'': Hearing Before the Subcomm. on Regulatory Reform, Commercial 
and Antitrust L. of the H. Comm. on the Judiciary, 113th Cong. (2013) 
(statement of Amit Narang, Regulatory Policy Advocate, Public Citizen).

Similarly, Mr. Shull testified that the bill would 
``dramatically'' expand the RFA's judicial review provisions 
``to allow corporate special interests to challenge the 
adequacy of analysis over a wide range of agency activities, 
not limited to the `final agency actions' that normally are the 
decision point that must be reached before an agency can be 
dragged into court.''\62\
---------------------------------------------------------------------------
    \62\The Regulatory Flexibility Improvements Act of 2011--Unleashing 
Small Businesses to Create Jobs: Hearing Before the Subcomm. on 
Commercial and Administrative L. of the H. Comm. on the Judiciary, 
112th Cong. (2011) (statement of J. Robert Shull).
---------------------------------------------------------------------------

                     SECTION-BY-SECTION EXPLANATION

    Section 1. Short Title. Section 1 sets forth the bill's 
short title as the Small Business Regulatory Flexibility 
Improvements Act of 2015.
    Section 2. Clarification and Expansion of Rules Covered by 
the Regulatory Flexibility Act. Section 2(a) amends 5 U.S.C. 
Sec. 601(2) to provide that the term ``rule'' does not include 
a rule pertaining to the protection of the rights and benefits 
of veterans or a rule of particular applicability related to 
rates, wages, corporate or financial structures (or 
reorganizations thereof), prices, facilities, appliances, 
services, or allowances. Section 2(a) would change the 
definition of ``rule'' requiring notice-and-comment rulemaking 
from its current usage under Section 553(b) of title 5 to a 
much broader definition of a rule under Section 551(4) of title 
5, which includes interpretive rules, policy statements, 
informal guidance, and other ministerial agency action.
    Section 2(b) amends 5 U.S.C. Sec. 601 to define ``economic 
impact'' as any direct economic effect on small entities by a 
proposed or final rule and any indirect economic effect on 
small entities, including compliance costs and effects on 
revenue, that is reasonably foreseeable and results from such 
rule, without regard to whether small entities will be directly 
regulated by the rule.
    Section 2(c) amends 5 U.S.C. Sec. Sec. 603(c) and 604(a)(7) 
(as amended by this Act) to require each initial and final 
regulatory flexibility analysis to contain a detailed 
description of alternatives to the rule that minimize any 
significant adverse economic impact or maximize any significant 
beneficial economic impact on small entities.
    Section 2(d) amends 5 U.S.C. Sec. 601(5) (which defines 
small governmental jurisdiction) to expand its applicability to 
tribal organizations.
    Section 2(e) amends 5 U.S.C. Sec. Sec. 603(a) and 604(a) to 
make the requirement to prepare an initial and final regulatory 
impact analysis applicable to instances where an agency 
publishes a revision or amendment to a land management plan or 
issues a proposed rule made on the record after opportunity for 
an agency hearing. In addition, section 2(e) amends 5 U.S.C. 
Sec. 601 to define land management plan, revision of a land 
management plan, and amendment of a land management plan.
    Section 2(f)(1) amends 5 U.S.C. Sec. 603(a) with respect to 
its requirement for an initial regulatory flexibility analysis 
for Internal Revenue Service interpretative rules published in 
the Federal Register for codification in the Code of Federal 
Regulations to the extent that such interpretative rules 
require small entities to collect information. As amended, 
section 603(a) applies to recordkeeping requirements imposed by 
such rules on small entities, without regard to whether such 
requirements are imposed by statute or regulation.
    Section 2(f)(2) amends 5 U.S.C. Sec. 601(7), which defines 
the term ``collection of information'' to provide that the term 
has the same meaning as set forth in 44 U.S.C. Sec. 3502(3), 
which has a nearly identical definition for the term.
    Section 2(f)(3) amends 5 U.S.C. Sec. 601(8), which defines 
the term ``recordkeeping requirement'' ``as a requirement 
imposed by an agency on persons to maintain specified 
records.'' Section 2(f)(3) amends the definition to provide 
that the term has the same meaning as set forth in 44 U.S.C. 
Sec. 3502(13), which is slightly more expansive and requires 
persons to retain records, notify, disclose, or report to third 
parties, including the Federal Government or the public, about 
such records.
    Section 2(g) amends 5 U.S.C. Sec. 601(4), which defines the 
term ``small organization'' as ``any not-for-profit enterprise 
which is independently owned and operated and is not dominant 
in its field, unless an agency establishes, after opportunity 
for public comment, one or more definitions of such term which 
are appropriate to the activities of the agency and publishes 
such definition(s) in the Federal Register[.]'' Section 2(g) 
provides that this term includes any not-for-profit enterprise 
that ``as of the issuance of the notice of proposed 
rulemaking'' does not exceed the specified size standard for 
small business concerns established by the SBA Administrator 
applicable to a classification code of the North American 
Industrial Classification System, providing such enterprise has 
a net worth of less than $7 million and has less than 500 
employees. For a local labor organization, the definition 
applies regardless of whether the organization is a part of a 
national or international organization. These definitions do 
not apply to the extent that an agency, after consulting the 
Office of Advocacy of the Small Business Administration and 
public comments, establishes its own definition of ``small 
organization'' and publishes such definition in the Federal 
register.
    Section 3. Expansion of Report of Regulatory Agenda. 
Section 3 amends 5 U.S.C. Sec. 602 by adding a requirement for 
a brief description of the sector that is primarily affected by 
a rule in its regulatory flexibility agenda and a requirement 
that the agenda contain a plain-language summary to be 
published on the agency's website within 3 days of its 
publication in the Federal Register.
    Section 4. Requirements Providing for More Detailed 
Analyses. Section 4(a) amends 5 U.S.C. Sec. 603(b) to require 
an initial regulatory flexibility analysis to contain a 
detailed statement: (1) describing the reasons why the action 
by the agency is being considered; (2) describing the 
objectives of and legal basis for the proposed rule; (3) 
estimating the number and type of small businesses to which the 
rule will apply; (4) describing the rule's projected reporting, 
recordkeeping, and other compliance requirements; (5) 
describing all relevant Federal rules that may duplicate, 
overlap, or conflict with the rule or the reasons why such 
description was not provided; (6) estimating the rule's 
additional cumulative economic impact on small entities beyond 
that already imposed on the class of small entities (or an 
explanation of why such an estimate is not available); and (7) 
describing any disproportionate economic impact on small 
entities or a specific class of small entities.
    Section 4(b)(1)(A) amends 5 U.S.C. Sec. 604(a), which 
outlines the requirements of a final regulatory flexibility 
analysis, by requiring detailed descriptions and explanations 
wherever such description or explanation is required and adds a 
further requirement that an agency describe any 
disproportionate economic impact on small entities or a 
specific class of small entities.
    Section 4(b)(2) amends 5 U.S.C. Sec. 604(a)(2) to provide 
that it applies to instances where the agency certifies a 
proposed rule.
    Section 4(b)(3) amends 5 U.S.C. Sec. 604(b), which requires 
an agency to make copies of the final regulatory flexibility 
analysis available to the public and to publish it (or a 
summary thereof) in the Federal Register. Section 3(b)(3) 
expands this requirement to include posting the entire analysis 
on the agency's website. In addition, the final analysis must 
also include the telephone number, mailing address, and link to 
the website where the complete analysis may be found.
    Section 4(c) amends 5 U.S.C. Sec. 605(a), which provides 
that an agency must be treated as having satisfied any 
requirement regarding an agenda or regulatory flexibility 
analysis, to require a cross-reference to the specific portion 
of the other agenda or analysis that satisfies this 
requirement.
    Section 4(d) amends 5 U.S.C. Sec. 605(b), which permits an 
agency, in lieu of complying with sections 603 and 604, to 
certify that the rule will not have a significant economic 
impact on a substantial number of small entities. As amended, 
section 605(b) requires such certification to be accompanied by 
a detailed statement providing the factual and legal basis for 
it.
    Section 4(e) amends 5 U.S.C. Sec. 607, which allows an 
agency to provide either a quantifiable or numerical 
description of the effects of a proposed rule or alternatives 
to a proposed rule, or more general descriptive statements if 
quantification is not practicable or reliable. This amendment 
makes section 607 mandatory and specifies that in instances 
where an agency provides a general descriptive statement, the 
agency must also provide a detailed statement explaining why 
quantification is not practicable or reliable.
    Section 5. Repeal of Waiver and Delay Authority; Additional 
Powers of the Chief Counsel for Advocacy. Section 5(a) repeals 
current 5 U.S.C. Sec. 608, which allows an agency to waive or 
delay the completion of some or all of the requirements of 
section 603 (pertaining to initial regulatory flexibility 
analyses) and to waive the requirements of section 604 
(pertaining to final regulatory flexibility analyses), and 
replaces it with a new provision allowing for additional powers 
of the Chief Counsel for Advocacy of the Small Business 
Administration.
    New Section 608(a)(1) requires the Chief Counsel for 
Advocacy to issue rules governing compliance with chapter 6, 
after opportunity for notice and comment, within 270 days after 
enactment of this section. New section 608(a)(2) provides that 
an agency may not issue rules that supplement those promulgated 
by the Chief Counsel unless such agency has first consulted 
with the Chief Counsel to ensure that the supplemental rules 
comply with chapter 6 and the Counsel's rules.
    New section 608(b) provides that the Chief Counsel, 
notwithstanding any other law, may intervene in any 
adjudication before any Federal agency (unless such agency is 
authorized to impose a fine or penalty under such adjudication) 
and may inform the agency of the impact that any decision on 
the record may have on small entities. The provision prohibits 
the Chief Counsel from initiating an appeal with respect to any 
adjudication in which the Chief Counsel intervenes pursuant to 
new section 613(b).
    New section 608(c) authorizes the Chief Counsel to file 
comments in response to any agency notice requesting comment, 
regardless of whether the agency is required to file a general 
notice of proposed rulemaking under 5 U.S.C. Sec. 553.
    Section 5(b) makes conforming amendments.
    Section 6. Procedures for Gathering Comments. Section 6 
replaces 5 U.S.C. Sec. 609(b), which sets out procedures that 
an agency must follow prior to the publication of an initial 
regulatory flexibility analysis. As amended, section 609(b) 
requires the agency to provide to the Chief Counsel of Advocacy 
with the following: (1) all materials prepared by the agency in 
promulgating the proposed rule, including any drafts of such 
rule (with certain exceptions); and (2) information on the 
rule's potential adverse and beneficial impacts on small 
entities that might be affected.
    Within 15 days of receipt of such information, the Chief 
Counsel must identify small entities or representatives thereof 
(or a combination of both) for the purpose of obtaining advice, 
input and recommendations about the rule's potential economic 
impact and compliance with sections 603 or 605(b) of title 5. 
The Chief Counsel must also convene a review panel staffed by 
an Office of Advocacy employee and an employee for the agency 
promulgating the rule. If the agency is not an independent 
regulatory agency, the panel must also include an employee from 
Office of Information and Regulatory Affairs (OIRA) of the 
Office of Management and Budget (OMB).
    Within 60 days after the panel is convened, the Chief 
Counsel must, after consultation with the panel, submit a 
report to the agency or to OIRA. The report must include an 
assessment of the proposed rule's impact on small entities as 
well as a discussion of any alternatives that will minimize 
adverse economic impacts on small entities.
    In addition, section 6 mandates that the report become part 
of the rulemaking record. In the publication of the proposed 
rule, the agency must explain what actions, if any, the agency 
took in response to such report.
    Section 6 further provides that section 609(b), as amended, 
applies to a proposed rule if the OIRA Administrator or an 
agency head (or delegate) determines that the rule is likely to 
result in any of the following: (1) an annual effect on the 
economy of $100 million or more; (2) a major increase in costs 
or prices for consumers; individual industries; Federal, state, 
or local governments; tribal organizations, or geographic 
regions; (3) significant adverse effects on competition, 
employment, investment, productivity, innovation, or on the 
ability of United States based enterprises to compete with 
foreign-based enterprises in domestic and export markets; or 
(4) a significant economic impact on a substantial number of 
small entities.
    Section 6 permits the Chief Counsel for Advocacy to waive 
the requirements of subsections (b) through (e) of section 609 
if the Counsel determines that compliance with these 
requirements are impracticable, unnecessary, or contrary to the 
public interest.
    Finally, section 6 provides that a small entity or its 
representative may request that the agency supply a copy of the 
report, including all materials and information provided to the 
Chief Counsel. Upon receiving this request, the agency must 
provide these materials to the small entity within ten business 
days of the request, unless otherwise protected under 5 U.S.C 
Sec. 552(b), which exempts certain sensitive matters relating 
to national defense, foreign policy, internal personnel rules, 
and other matters.
    Section 7. Periodic Review of Rules. Section 7 amends 5 
U.S.C. Sec. 610, pertaining to the periodic review of rules, 
requires each agency to publish in the Federal Register and on 
the agency's website a plan for the periodic review its rules. 
Section 7 requires the agency's head, rather than the agency, 
to determine whether the rule has a significant economic impact 
on a substantial number of small entities. Such determination 
must be made without regard to whether the agency performed an 
analysis under section 604. Section 7 revises the objectives of 
the determination to require consideration of whether the rule 
maximizes any significant beneficial impacts on a substantial 
number of small entities. If an agency head determines that the 
periodic review cannot be performed within the stated time 
frames, then section 7 permits the agency head to so certify 
and extend the review period for 2 years after publication of 
the notice of extension in the Federal Register. In addition, 
such notice and certification must be provided to the Chief 
Counsel and Congress. Section 7 also directs the agency to 
amend or rescind a rule to minimize adverse significant 
economic impact on a substantial number of small entities or a 
disproportionate economic impact on a specific class of small 
entities, or to maximize beneficial significant economic impact 
on a substantial number of small entities. Section 7 further 
requires the agency's plan to include an explanation of the 
agency's plans to conduct outreach to small businesses, 
including small businesses controlled by women, veterans, or 
socially and economically disadvantaged individuals, for the 
purposes of gathering input on their concerns relating to 
existing agency rules.
    As amended, section 610 requires agencies to annually 
submit a report regarding the results of their review to 
Congress and to OIRA. Section 7 expands the criteria that an 
agency must consider to include comments by the Regulatory 
Enforcement Ombudsman and the Chief Counsel for Advocacy. In 
addition, the agency must consider the rule's contribution to 
the cumulative economic impact of all Federal rules on the 
class of small entities affected by the rule, unless the agency 
head determines that such calculations cannot be made and 
reports that determination in the annual report required under 
section 610(c).
    In addition to publication in the Federal Register, section 
6 requires each agency to publish a list of rules to be 
reviewed on its website and to include an explanation of why 
the agency determines such rules have a significant economic 
impact on a substantial number of small entities. The agency's 
publication must include a request for public comment on any 
inclusion or exclusion of rules form the list, and respond to 
these comments. In addition, this publication must request 
comments from the public, Chief Counsel for Advocacy, and the 
Regulatory Enforcement Ombudsman concerning enforcement of such 
rules.
    Section 8. Judicial Review of Compliance with the 
Requirements of the Regulatory Flexibility Act Available After 
Publication of the Final Rule. Section 8(a) amends 5 U.S.C. 
Sec. 611(a)(1) to provide that a small entity that is adversely 
affected or aggrieved by any rule under chapter 6 is entitled 
to judicial review of agency compliance. Section 611(a)(1) 
currently applies only to ``final agency action.''
    Section 8(b) amends 5 U.S.C. Sec. 611(a)(2) to provide that 
a court may review a rule if publication of the final rule 
constituted final agency action.
    Section 8(c) amends 5 U.S.C. Sec. 611(a)(3) to provide that 
the time within which judicial review may be sought begins from 
publication of a final rule. It also specifies that the 
exception applies in the case of a rule for which the date of 
final agency action is the same date as the publication date of 
the final rule.
    Section 8(d) amends 5 U.S.C.Sec. 612(b), which authorizes 
the Chief Counsel for Advocacy to appear as amicus curiae in 
any action brought in a court of the United States to review a 
rule. As amended, the provision permits the Chief Counsel to 
also appear as amicus curiae in any action to review agency 
compliance with section 601, 604, 605(b), 609, or 610.
    Section 9. Jurisdiction of Court of Appeals Over Rules 
Implementing the Regulatory Flexibility Act. Section 9(a) 
amends 28 U.S.C. Sec. 2342 to give the United States Court of 
Appeals (other than the United States Court of Appeals for the 
Federal Circuit) exclusive jurisdiction to enjoin, set aside, 
suspend, or to determine the validity of all final rules under 
5 U.S.C. Sec. 608(a) (as amended by this Act).
    Section 9(b) amends 28 U.S.C. Sec. 2341(3), which defines 
the term, ``agency''. As amended, the definition includes the 
Office of Advocacy of the Small Business Administration, when a 
final rule is promulgated under section 608(a) of title 5 of 
the United States Code (as amended by this Act).
    Section 9(c) amends 5 U.S.C. Sec. 612(b), which sets out 
certain intervention rights of the Chief Counsel for Advocacy 
pertaining to matters under chapter 6. As amended, section 
612(b) extends this provision to apply to compliance under 
chapters 5 and 7, in addition to chapter 6.
    Section 10. Establishment and Approval of Small Business 
Concern Size Standards by Chief Counsel for Advocacy. Section 
10 of the bill amends the Small Business Act to give the SBA's 
Chief Counsel for Advocacy the authority to establish small 
business size standards. This text is identical to the text of 
H.R. 585, the ``Small Business Size Standard Flexibility Act of 
2011,'' from the 112th Congress, which was referred to the 
Committee on Small Business and over which this Committee did 
not have jurisdiction.
    Section 11. Clerical Amendments. Section 11(a) amends 5 
U.S.C. Sec. 601, which defines various terms for purposes of 
chapter 6 of title 5 of the United States Code, to make 
conforming and stylistic revisions.
    Section 11(b) amends the heading of section 605 of title 5.
    Section 11(c) amends the table of citations for chapter 6 
of title 5, United States Code, to conform to the new section 
headings.
    Section 11(d) amends 5 U.S.C. Sec. 603 by striking 
subsection (d)(2) and amending the second paragraph to make 
conforming and stylistic revisions.
    Section 12. Agency Preparation Guides. Section 12 amends 
SBREFA requiring that agency guides be written in plain 
language.
    Section 13. Comptroller General Report. Section 13 requires 
the Comptroller General of the United States to publish a study 
examining whether the Chief Counsel of Advocacy of the Small 
Business Administration has the capacity or resources to carry 
out the duties required under this Act.

                               CONCLUSION

    H.R. 527 is the latest iteration of the Majority's ongoing 
attack on Federal regulation. Since the beginning of the 112th 
Congress, the Judiciary Committee's Subcommittee on Regulatory 
Reform, Commercial and Antitrust Law has held 26 hearings and 
considered at least seven bills designed to hobble Federal 
agency rulemaking and to increase the influence of business 
interests over the rulemaking process. The Majority's use of 
pro-small business rhetoric cannot obscure the fact that H.R. 
527, like previous anti-regulatory proposals, will erect major 
barriers to rulemaking that will hinder the promulgation of 
critical public health and safety protections.
    We share the Majority's belief that small business plays an 
important role in our nation's economy, but H.R. 527 does 
nothing to alleviate the purported burden on small entities of 
complying with Federal regulations. In fact, it includes no 
provision that offers assistance to small entities, whether 
through subsidies, government-guaranteed loans, preferential 
tax treatment for small firms, or fully funded compliance 
assistance offices. Instead, the bill merely aggrandizes the 
power of the SBA's Office of Advocacy and of the professional 
lobbying class in Washington. If the proponents of H.R. 527 
were serious about helping small entities deal with the 
regulatory system, they would support instituting mechanisms 
for small entities that actually help them participate directly 
in rulemaking, without having to rely on Washington-based 
intermediaries.
    There are other meaningful ways to assist small businesses 
and small entities to navigate the regulatory landscape that 
would not threaten agencies' ability to protect public health 
and safety. We urge our colleagues to shift their attention to 
these alternatives and to oppose this ill-conceived 
legislation.

                                   Mr. Conyers, Jr.
                                   Mr. Nadler.
                                   Ms. Jackson Lee.
                                   Mr. Cohen.
                                   Mr. Johnson, Jr.
                                   Mr. Pierluisi.
                                   Ms. Bass.

                                  [all]