Small Business Regulatory Flexibility Improvements Act

II 116TH CONGRESS 1ST SESSION S. 1120 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. IN THE SENATE OF THE UNITED STATES APRIL 10, 2019 Mr. LANKFORD (for himself, Mr. GRASSLEY, Mr. RISCH, Mr. ROBERTS, and Mr. HOEVEN) introduced the following bill; which was read twice and re- ferred to the Committee on Homeland Security and Governmental Affairs A BILL To amend chapter 6 of title 5, United States Code (com- monly known as the ‘‘Regulatory Flexibility Act’’), to ensure complete analysis of potential impacts on small entities of rules, 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 ‘‘Small Business Regu- 4 latory Flexibility Improvements Act’’. 5 VerDate Sep 11 2014 04:22 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1120.IS S1120 kjohnson on DSK79L0C42 with BILLS 2 •S 1120 IS SEC. 2. CLARIFICATION AND EXPANSION OF RULES COV- 1 ERED BY THE REGULATORY FLEXIBILITY 2 ACT. 3 (a) IN GENERAL.—Section 601(2) of title 5, United 4 States Code, is amended to read as follows: 5 ‘‘(2) RULE.—The term ‘rule’— 6 ‘‘(A) has the meaning given the term in 7 section 551(4); and 8 ‘‘(B) does not include— 9 ‘‘(i) a rule pertaining to the protection 10 of the rights of and benefits for veterans 11 or part 232 of title 32, Code of Federal 12 Regulations (as in effect on July 1, 2014), 13 or any successor provisions thereto; or 14 ‘‘(ii) a rule of particular (and not gen- 15 eral) applicability relating to rates, wages, 16 corporate or financial structures or reorga- 17 nizations thereof, prices, facilities, appli- 18 ances, services, or allowances therefor or to 19 valuations, costs or accounting, or prac- 20 tices relating to such rates, wages, struc- 21 tures, prices, appliances, services, or allow- 22 ances.’’. 23 (b) INCLUSION OF RULES WITH INDIRECT EF- 24 FECTS.—Section 601 of title 5, United States Code, is 25 amended by adding at the end the following: 26 VerDate Sep 11 2014 04:22 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1120.IS S1120 kjohnson on DSK79L0C42 with BILLS 3 •S 1120 IS ‘‘(9) ECONOMIC IMPACT.—The term ‘economic 1 impact’ means, with respect to a proposed or final 2 rule— 3 ‘‘(A) any direct economic effect on small 4 entities of such rule; and 5 ‘‘(B) any indirect economic effect (includ- 6 ing compliance costs and effects on revenue) on 7 small entities which is reasonably foreseeable 8 and results from such rule (without regard to 9 whether small entities will be directly regulated 10 by the rule).’’. 11 (c) INCLUSION OF RULES WITH BENEFICIAL EF- 12 FECTS.— 13 (1) INITIAL REGULATORY FLEXIBILITY ANAL- 14 YSIS.—Section 603(c) of title 5, United States Code, 15 is amended by striking the first sentence and insert- 16 ing ‘‘Each initial regulatory flexibility analysis shall 17 also contain a detailed description of alternatives to 18 the proposed rule which minimize any adverse sig- 19 nificant economic impact or maximize any beneficial 20 significant economic impact on small entities.’’. 21 (2) FINAL REGULATORY FLEXIBILITY ANAL- 22 YSIS.—Section 604(a) of title 5, United States Code, 23 is amended— 24 VerDate Sep 11 2014 04:22 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1120.IS S1120 kjohnson on DSK79L0C42 with BILLS 4 •S 1120 IS (A) by redesignating the second paragraph 1 designated as paragraph (6) (relating to cov- 2 ered agencies) as paragraph (7); and 3 (B) in paragraph (6), by striking ‘‘mini- 4 mize the significant economic impact’’ and in- 5 serting ‘‘minimize the adverse significant eco- 6 nomic impact or maximize the beneficial signifi- 7 cant economic impact’’. 8 (d) INCLUSION OF RULES AFFECTING TRIBAL ORGA- 9 NIZATIONS.—Section 601(5) of title 5, United States 10 Code, is amended by inserting ‘‘and tribal organizations 11 (as defined in section 4(l) of the Indian Self-Determina- 12 tion and Education Assistance Act (25 U.S.C. 5304(l))),’’ 13 after ‘‘special districts,’’. 14 (e) INCLUSION OF LAND MANAGEMENT PLANS AND 15 FORMAL RULE MAKING.— 16 (1) INITIAL REGULATORY FLEXIBILITY ANAL- 17 YSIS.—Section 603(a) of title 5, United States Code, 18 is amended in the first sentence— 19 (A) by striking ‘‘or’’ after ‘‘proposed 20 rule,’’; and 21 (B) by inserting ‘‘or publishes a revision or 22 amendment to a land management plan,’’ after 23 ‘‘United States,’’. 24 VerDate Sep 11 2014 04:22 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1120.IS S1120 kjohnson on DSK79L0C42 with BILLS 5 •S 1120 IS (2) FINAL REGULATORY FLEXIBILITY ANAL- 1 YSIS.—Section 604(a) of title 5, United States Code, 2 is amended in the first sentence— 3 (A) by striking ‘‘or’’ after ‘‘proposed rule- 4 making,’’; and 5 (B) by inserting ‘‘or adopts a revision or 6 amendment to a land management plan,’’ after 7 ‘‘section 603(a),’’. 8 (3) LAND MANAGEMENT PLAN DEFINED.—Sec- 9 tion 601 of title 5, United States Code, as amended 10 by subsection (b), is amended by adding at the end 11 the following: 12 ‘‘(10) LAND MANAGEMENT PLAN.— 13 ‘‘(A) IN GENERAL.—The term ‘land man- 14 agement plan’ means— 15 ‘‘(i) any plan developed by the Sec- 16 retary of Agriculture under section 6 of 17 the Forest and Rangeland Renewable Re- 18 sources Planning Act of 1974 (16 U.S.C. 19 1604); and 20 ‘‘(ii) any plan developed by the Sec- 21 retary of the Interior under section 202 of 22 the Federal Land Policy and Management 23 Act of 1976 (43 U.S.C. 1712). 24 VerDate Sep 11 2014 04:22 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1120.IS S1120 kjohnson on DSK79L0C42 with BILLS 6 •S 1120 IS ‘‘(B) REVISION.—The term ‘revision’ 1 means any change to a land management plan 2 which— 3 ‘‘(i) in the case of a plan described in 4 subparagraph (A)(i), is made under section 5 6(f)(5) of the Forest and Rangeland Re- 6 newable Resources Planning Act of 1974 7 (16 U.S.C. 1604(f)(5)); or 8 ‘‘(ii) in the case of a plan described in 9 subparagraph (A)(ii), is made under sec- 10 tion 1610.5–6 of title 43, Code of Federal 11 Regulations (or any successor regulation). 12 ‘‘(C) AMENDMENT.—The term ‘amend- 13 ment’ means any change to a land management 14 plan which— 15 ‘‘(i) in the case of a plan described in 16 subparagraph (A)(i), is made under section 17 6(f)(4) of the Forest and Rangeland Re- 18 newable Resources Planning Act of 1974 19 (16 U.S.C. 1604(f)(4)) and with respect to 20 which the Secretary of Agriculture pre- 21 pares a statement described in section 22 102(2)(C) of the National Environmental 23 Policy Act of 1969 (42 U.S.C. 24 4332(2)(C)); or 25 VerDate Sep 11 2014 04:22 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1120.IS S1120 kjohnson on DSK79L0C42 with BILLS 7 •S 1120 IS ‘‘(ii) in the case of a plan described in 1 subparagraph (A)(ii), is made under sec- 2 tion 1610.5–5 of title 43, Code of Federal 3 Regulations (or any successor regulation), 4 and with respect to which the Secretary of 5 the Interior prepares a statement described 6 in section 102(2)(C) of the National Envi- 7 ronmental Policy Act of 1969 (42 U.S.C. 8 4332(2)(C)).’’. 9 (f) INCLUSION OF CERTAIN INTERPRETIVE RULES 10 INVOLVING THE INTERNAL REVENUE LAWS.— 11 (1) IN GENERAL.—Section 603(a) of title 5, 12 United States Code, is amended by striking the pe- 13 riod at the end and inserting ‘‘or a recordkeeping re- 14 quirement, and without regard to whether such rec- 15 ordkeeping requirement is imposed by statute or reg- 16 ulation.’’. 17 (2) COLLECTION OF INFORMATION.—Section 18 601(7) of title 5, United States Code, is amended to 19 read as follows: 20 ‘‘(7) COLLECTION OF INFORMATION.—The term 21 ‘collection of information’ has the meaning given the 22 term in section 3502 of title 44.’’. 23 VerDate Sep 11 2014 04:22 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1120.IS S1120 kjohnson on DSK79L0C42 with BILLS 8 •S 1120 IS (3) RECORDKEEPING REQUIREMENT.—Section 1 601(8) of title 5, United States Code, is amended to 2 read as follows: 3 ‘‘(8) RECORDKEEPING REQUIREMENT.—The 4 term ‘recordkeeping requirement’ has the meaning 5 given the term in section 3502 of title 44.’’. 6 (g) DEFINITION OF SMALL ORGANIZATION.—Section 7 601(4) of title 5, United States Code, is amended to read 8 as follows: 9 ‘‘(4) SMALL ORGANIZATION.— 10 ‘‘(A) IN GENERAL.—The term ‘small orga- 11 nization’ means any nonprofit enterprise which, 12 as of the issuance of a notice of proposed rule- 13 making— 14 ‘‘(i) in the case of an enterprise which 15 is described by a classification code of the 16 North American Industrial Classification 17 System, does not exceed the size standard 18 established by the Administrator of the 19 Small Business Administration pursuant to 20 section 3 of the Small Business Act (15 21 U.S.C. 632) for small business concerns 22 described by such classification code; and 23 ‘‘(ii) in the case of any other enter- 24 prise, has a net worth that does not exceed 25 VerDate Sep 11 2014 04:22 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1120.IS S1120 kjohnson on DSK79L0C42 with BILLS 9 •S 1120 IS $7,000,000 and has not more than 500 1 employees. 2 ‘‘(B) LOCAL LABOR ORGANIZATIONS.—In 3 the case of any local labor organization, sub- 4 paragraph (A) shall be applied without regard 5 to any national or international organization of 6 which such local labor organization is a part. 7 ‘‘(C) AGENCY DEFINITIONS.—Subpara- 8 graphs (A) and (B) shall not apply to the ex- 9 tent that an agency, after consultation with the 10 Office of Advocacy of the Small Business Ad- 11 ministration and after opportunity for public 12 comment, establishes one or more definitions 13 for such term which are appropriate to the ac- 14 tivities of the agency and publishes such defini- 15 tions in the Federal Register.’’. 16 SEC. 3. EXPANSION OF REPORT OF REGULATORY AGENDA. 17 Section 602 of title 5, United States Code, is amend- 18 ed— 19 (1) in subsection (a)— 20 (A) in paragraph (2), by striking ‘‘, and’’ 21 at the end and inserting a semicolon; 22 (B) by redesignating paragraph (3) as 23 paragraph (4); and 24 VerDate Sep 11 2014 04:22 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1120.IS S1120 kjohnson on DSK79L0C42 with BILLS 10 •S 1120 IS (C) by inserting after paragraph (2) the 1 following: 2 ‘‘(3) a brief description of the sector of the 3 North American Industrial Classification System 4 that is primarily affected by any rule which the 5 agency expects to propose or promulgate which is 6 likely to have a significant economic impact on a 7 substantial number of small entities; and’’; and 8 (2) in subsection (c), to read as follows: 9 ‘‘(c)(1) Not later than 3 days after the date on which 10 an agency publishes a regulatory flexibility agenda in the 11 Federal Register under subsection (a), the agency shall 12 prominently display on the website of the agency a plain 13 language summary of the information contained in the 14 regulatory flexibility agenda. 15 ‘‘(2) The Office of Advocacy of the Small Business 16 Administration shall compile, by agency, and prominently 17 display on the website of the Small Business Administra- 18 tion a plain language summary of each regulatory flexi- 19 bility agenda published under subsection (a) not later than 20 3 days after the date of publication in the Federal Reg- 21 ister.’’. 22 VerDate Sep 11 2014 04:22 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1120.IS S1120 kjohnson on DSK79L0C42 with BILLS 11 •S 1120 IS SEC. 4. REQUIREMENTS PROVIDING FOR MORE DETAILED 1 ANALYSES. 2 (a) INITIAL REGULATORY FLEXIBILITY ANALYSIS.— 3 Section 603(b) of title 5, United States Code, is amended 4 to read as follows: 5 ‘‘(b) Each initial regulatory flexibility analysis re- 6 quired under this section shall contain a detailed state- 7 ment— 8 ‘‘(1) describing the reasons why action by the 9 agency is being considered; 10 ‘‘(2) describing the objectives of, and legal basis 11 for, the proposed rule; 12 ‘‘(3) estimating the number and type of small 13 entities to which the proposed rule will apply; 14 ‘‘(4) describing the projected reporting, record- 15 keeping, and other compliance requirements of the 16 proposed rule, including an estimate of the classes of 17 small entities which will be subject to the require- 18 ment and the type of professional skills necessary 19 for preparation of the report and record; 20 ‘‘(5) describing all relevant Federal rules which 21 may duplicate, overlap, or conflict with the proposed 22 rule, or the reasons why such a description could not 23 be provided; 24 ‘‘(6) estimating the additional cumulative eco- 25 nomic impact of the proposed rule on small entities 26 VerDate Sep 11 2014 04:22 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1120.IS S1120 kjohnson on DSK79L0C42 with BILLS 12 •S 1120 IS beyond that already imposed on the class of small 1 entities by the agency or why such an estimate is 2 not available; 3 ‘‘(7) describing any disproportionate economic 4 impact on small entities or a specific class of small 5 entities; and 6 ‘‘(8) describing any impairment of the ability of 7 small entities to have access to credit.’’. 8 (b) FINAL REGULATORY FLEXIBILITY ANALYSIS.— 9 (1) IN GENERAL.—Section 604(a) of title 5, 10 United States Code, is amended— 11 (A) in paragraph (4)— 12 (i) by inserting ‘‘detailed’’ before ‘‘de- 13 scription’’; and 14 (ii) by striking ‘‘an explanation’’ and 15 inserting ‘‘a detailed explanation’’; 16 (B) in paragraph (5), by inserting ‘‘de- 17 tailed’’ before ‘‘description’’; 18 (C) in paragraph (6)— 19 (i) by inserting ‘‘detailed’’ before ‘‘de- 20 scription’’; and 21 (ii) by striking ‘‘and’’ at the end; 22 (D) in paragraph (7), as so redesignated, 23 by striking the period at the end and inserting 24 ‘‘; and’’; and 25 VerDate Sep 11 2014 04:22 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S1120.IS S1120 kjohnson on DSK79L0C42 with BILLS 13 •S 1120 IS (E) by adding at the end the following: 1 ‘‘(8) a detailed description of any dispropor- 2 tionate economic impact on small entities or a spe- 3 cific class of small entities.’’. 4 (2) INCLUSION OF RESPONSE TO COMMENTS ON 5 CERTIFICATION OF PROPOSED RULE.—Section 6 604(a)(2) of title 5, United States Code, is amended 7 by inserting ‘‘(or certification of the proposed rule 8 under section 605(b))’’ after ‘‘initial regulatory flexi- 9 bility analysis’’. 10 [Text truncated for display. 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