Independent Agency Regulatory Analysis Act

II 117TH CONGRESS 1ST SESSION S. 2279 To affirm the authority of the President to require independent regulatory agencies to comply with regulatory analysis requirements applicable to executive agencies, and for other purposes. IN THE SENATE OF THE UNITED STATES JUNE 24, 2021 Mr. PORTMAN (for himself, Mr. LANKFORD, Mr. JOHNSON, and Ms. ERNST) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs A BILL To affirm the authority of the President to require inde- pendent regulatory agencies to comply with regulatory analysis requirements applicable to executive agencies, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Independent Agency 4 Regulatory Analysis Act’’. 5 SEC. 2. DEFINITIONS. 6 In this Act— 7 VerDate Sep 11 2014 04:25 Jul 09, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S2279.IS S2279 kjohnson on DSK79L0C42PROD with BILLS 2 •S 2279 IS (1) the term ‘‘Administrator’’ means the Ad- 1 ministrator of the Office of Information and Regu- 2 latory Affairs; 3 (2) the term ‘‘agency’’ has the meaning given 4 the term in section 3502(1) of title 44, United 5 States Code; 6 (3) the term ‘‘economically significant rule’’ 7 means any rule that the Administrator determines is 8 likely to— 9 (A) have an annual effect on the economy 10 of $100,000,000 or more; or 11 (B) adversely affect in a material way the 12 economy, a sector of the economy, productivity, 13 competition, jobs, the environment, public 14 health or safety, or State, local, or Tribal gov- 15 ernments or communities; 16 (4) the term ‘‘independent regulatory agency’’ 17 has the meaning given the term in section 3502(5) 18 of title 44, United States Code; and 19 (5) the term ‘‘rule’’— 20 (A) means a rule, as defined in section 551 21 of title 5, United States Code; and 22 (B) does not include a rule of the Board 23 of Governors of the Federal Reserve System or 24 VerDate Sep 11 2014 04:25 Jul 09, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2279.IS S2279 kjohnson on DSK79L0C42PROD with BILLS 3 •S 2279 IS the Federal Open Market Committee relating to 1 monetary policy. 2 SEC. 3. REGULATORY ANALYSIS BY INDEPENDENT AGEN- 3 CIES. 4 (a) IN GENERAL.—The President may by Executive 5 order require an independent regulatory agency to comply, 6 to the extent permitted by law, with regulatory analysis 7 requirements applicable to other agencies, including the 8 requirements to— 9 (1) identify the problem that the agency intends 10 to address by a new rule (including, where applica- 11 ble, the failures of private markets or public institu- 12 tions that warrant new agency action) and assess 13 the significance of that problem; 14 (2) examine whether any existing rule (or other 15 law) has created, or contributed to, the problem that 16 a new rule is intended to correct and whether the ex- 17 isting rule (or other law) should be modified to 18 achieve the intended goal of the new rule more effec- 19 tively; 20 (3) identify and assess available alternatives to 21 direct regulation, including providing economic in- 22 centives to encourage the desired behavior, or pro- 23 viding information upon which choices can be made 24 by the public; 25 VerDate Sep 11 2014 04:25 Jul 09, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2279.IS S2279 kjohnson on DSK79L0C42PROD with BILLS 4 •S 2279 IS (4) consider to the extent reasonable in setting 1 regulatory priorities, the degree and nature of the 2 risks posed by various substances or activities within 3 its jurisdiction; 4 (5) design its rules in the most cost-effective 5 manner to achieve the regulatory objective and, in 6 doing so, consider incentives for innovation, consist- 7 ency, predictability, the costs of enforcement and 8 compliance (to the Federal Government, regulated 9 entities, and the public), flexibility, distributive im- 10 pacts, and equity; 11 (6) assess the costs and the benefits of the in- 12 tended rule and, recognizing some costs and benefits 13 are difficult to quantify, propose or adopt a rule only 14 upon a reasoned determination that the benefits of 15 the rule justify its costs; 16 (7) base its rulemaking decisions on the best 17 reasonably obtainable scientific, technical, economic, 18 and other information concerning the need for, and 19 consequences of, the intended rule; 20 (8) identify and assess alternative forms of reg- 21 ulation and, to the extent feasible, specify perform- 22 ance objectives, rather than specifying the behavior 23 or manner of compliance that regulated entities 24 must adopt; 25 VerDate Sep 11 2014 04:25 Jul 09, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2279.IS S2279 kjohnson on DSK79L0C42PROD with BILLS 5 •S 2279 IS (9) seek the views of appropriate State, local, 1 and Tribal officials before imposing regulatory re- 2 quirements that might significantly or uniquely af- 3 fect State, local, or Tribal governmental entities, 4 whenever feasible; 5 (10) avoid rules that are inconsistent or incom- 6 patible with, or duplicative of, other rules of the 7 independent regulatory agency or other agencies; 8 (11) tailor rules to impose the least burden on 9 society, including individuals, businesses of differing 10 sizes, and other entities (including small commu- 11 nities and governmental entities), consistent with 12 achieving the regulatory objectives, and taking into 13 account, among other factors, and to the extent 14 practicable, the cost of cumulative rules; 15 (12) draft each rule to be simple and easy to 16 understand, with the goal of minimizing the poten- 17 tial for uncertainty and litigation arising from un- 18 certainty; and 19 (13) periodically review its existing economically 20 significant rules to determine whether any such rules 21 should be modified, streamlined, expanded, or re- 22 pealed so as to make the regulatory program of the 23 agency more effective or less burdensome in achiev- 24 ing the regulatory objectives. 25 VerDate Sep 11 2014 04:25 Jul 09, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S2279.IS S2279 kjohnson on DSK79L0C42PROD with BILLS 6 •S 2279 IS (b) ECONOMICALLY SIGNIFICANT RULES.—For any 1 proposed or final rule identified by an independent regu- 2 latory agency as, or determined by the Administrator to 3 be, an economically significant rule, the President may by 4 Executive order require the independent regulatory agency 5 to provide to the Administrator and publish with the pro- 6 posed and final rule the following information, to the ex- 7 tent permitted by law: 8 (1) An assessment, including the underlying 9 analysis, of benefits anticipated from the rule to- 10 gether with, to the extent feasible, a quantification 11 of those benefits. 12 (2) An assessment, including the underlying 13 analysis, of costs anticipated from the rule together 14 with, to the extent feasible, a quantification of those 15 costs. 16 (3) An assessment, including the underlying 17 analysis, of costs and benefits of potentially effective 18 and reasonably feasible alternatives to the rule, iden- 19 tified by the agencies or the public, including im- 20 proving existing regulations and reasonably viable 21 nonregulatory actions, and an explanation of why 22 the planned regulatory action is preferable to the 23 identified potential alternatives. 24 VerDate Sep 11 2014 04:25 Jul 09, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S2279.IS S2279 kjohnson on DSK79L0C42PROD with BILLS 7 •S 2279 IS (c) REVIEW BY OFFICE OF INFORMATION AND REGU- 1 LATORY AFFAIRS.— 2 (1) REQUIREMENT TO SEEK REVIEW.—The 3 President may, by Executive order, require an inde- 4 pendent regulatory agency to submit to the Adminis- 5 trator for review— 6 (A) any proposed economically significant 7 rule, either prior to publication of the notice of 8 proposed rulemaking or, if the head of the inde- 9 pendent regulatory agency elects, during the 10 general public comment period; and 11 (B) any final economically significant rule, 12 prior to publication of the final rule. 13 (2) NONBINDING ASSESSMENT.—An Executive 14 order issued under this Act may require that, not 15 later than 90 days after the independent regulatory 16 agency submits a proposed or final economically sig- 17 nificant rule for review, the Administrator submit 18 for inclusion in the rulemaking record the assess- 19 ment of the Administrator of the extent to which the 20 independent regulatory agency has complied with 21 any of the regulatory analysis requirements made 22 applicable by Executive order. 23 (3) DETERMINATION AND EXPLANATION BY 24 INDEPENDENT AGENCY.—An Executive order issued 25 VerDate Sep 11 2014 04:25 Jul 09, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S2279.IS S2279 kjohnson on DSK79L0C42PROD with BILLS 8 •S 2279 IS under this Act may require that, if the Adminis- 1 trator concludes under paragraph (2) that the inde- 2 pendent regulatory agency did not comply with 1 or 3 more requirements of the Executive order with re- 4 spect to a proposed or final economically significant 5 rule, the head of the independent regulatory agency 6 that issued the economically significant rule shall in- 7 clude with the final rule— 8 (A) a determination that the rule complies 9 with the specified requirement or requirements 10 and an explanation of that determination; and 11 (B) if applicable, an explanation why the 12 independent regulatory agency did not comply 13 with one or more of the specified requirements, 14 based on the statutory provision authorizing the 15 rule. 16 SEC. 4. LIMITATION ON JUDICIAL REVIEW. 17 (a) IN GENERAL.—The compliance or noncompliance 18 of an independent regulatory agency with the require- 19 ments of an Executive order issued under this Act shall 20 not be subject to judicial review. 21 (b) AGENCY RECORD.—When an action for judicial 22 review of a rule promulgated by an independent regulatory 23 agency is instituted, any determination, analysis, or expla- 24 nation produced by the independent regulatory agency, 25 VerDate Sep 11 2014 04:25 Jul 09, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S2279.IS S2279 kjohnson on DSK79L0C42PROD with BILLS 9 •S 2279 IS and any assessment produced by the Administrator, pur- 1 suant to an Executive order issued under this Act, shall 2 constitute part of the whole record of agency action in con- 3 nection with the review. 4 (c) RULE OF CONSTRUCTION.—Nothing in this sec- 5 tion shall be construed to bar judicial review of any other 6 impact statement or similar analysis required by any other 7 provision of law if judicial review of the statement or anal- 8 ysis is otherwise permitted by law. 9 SEC. 5. RULE OF CONSTRUCTION. 10 Nothing in this Act shall be construed to limit the 11 authority of the President with respect to independent reg- 12 ulatory agencies under any other applicable law. 13 Æ VerDate Sep 11 2014 04:25 Jul 09, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6301 E:\BILLS\S2279.IS S2279 kjohnson on DSK79L0C42PROD with BILLS