What This Bill Does
This bill requires federal agencies to complete detailed analyses before issuing major new regulations. The analyses must evaluate the costs and benefits of proposed rules and consider less burdensome alternatives. The bill also requires agencies to consider whether major rules should expire after a set period.
Who It Affects
Federal agencies that create regulations. Businesses and other organizations subject to federal rules. State, local and tribal governments. The general public affected by new regulations.
Key Provisions
• Federal agencies must conduct a regulatory impact analysis before issuing any proposed or final rule that will cost the economy $100,000,000 or more annually or cause serious harm to the economy, jobs, environment, public health or safety (Sec. 3(a))
• The analysis must examine the benefits and costs of the rule, consider less burdensome alternatives, and explain if the agency chose an approach that costs more than other available options (Sec. 3(b) and 3(d))
• Agencies must only issue a rule if the benefits justify the costs, unless a law specifically requires them to issue a rule regardless of cost (Sec. 3(e))
• For major rules, agencies must consider whether the rule should automatically expire after a certain time period and assess if the rule could become outdated or too burdensome (Sec. 614)
KEY PROVISIONS CONTINUED:
• The analysis must consider how the rule affects different sizes of businesses and must evaluate the combined burden from all related existing regulations (Sec. 3(b) and 3(c))
What Changes
Federal agencies must now perform more detailed cost-benefit analyses before issuing major regulations. Agencies must consider whether rules should have expiration dates. Rules can only proceed if their benefits justify their costs, with limited exceptions when law requires rulemaking. Agencies must publicly explain why they chose a more costly regulatory approach if they reject a less burdensome alternative.
Important Definitions
"Significant rule" means a final rule that will likely have an annual economic effect of $100,000,000 or more or will materially harm the economy, a business sector, productivity, competition, jobs, the environment, public health or safety, or state, local or tribal governments and communities. A significant rule also includes rules that create conflicts with other agencies' actions or raise new legal or policy issues (Sec. 2).
Effective Date
Not specified in bill text for most provisions. The bill requires agencies to consider sunset dates by July 1, 2023 (Sec. 614(a)).
II
118TH CONGRESS
1ST SESSION
S. 839
To require agencies to complete a regulatory impact analysis before issuing
a significant rule, and for other purposes.
IN THE SENATE OF THE UNITED STATES
MARCH 16, 2023
Mr. THUNE (for himself and Mr. LANKFORD) introduced the following bill;
which was read twice and referred to the Committee on Homeland Secu-
rity and Governmental Affairs
A BILL
To require agencies to complete a regulatory impact analysis
before issuing a significant rule, and for other purposes.
Be it enacted by the Senate and House of 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 ‘‘Regulatory Trans-
4
parency Act of 2023’’.
5
SEC. 2. DEFINITIONS.
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Section 601 of title 5, United States Code, is amend-
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ed—
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(1) in paragraph (6), by striking ‘‘and’’ at the
9
end;
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(2) in paragraph (7) by striking the period at
1
the end and inserting a semicolon;
2
(3) in paragraph (8)—
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(A) by striking ‘‘RECORDKEEPING
RE-
4
QUIREMENT.—The’’ and inserting ‘‘the’’; and
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(B) by striking the period at the end and
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inserting ‘‘; and’’; and
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(4) by adding at the end the following:
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‘‘(9) the term ‘significant rule’ means any final
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rule that the Administrator of the Office of Informa-
10
tion and Regulatory Affairs of the Office of Manage-
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ment and Budget determines is likely to—
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‘‘(A) have an annual effect on the economy
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of $100,000,000 or more or adversely affect in
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a material way the economy, a sector of the
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economy, productivity, competition, jobs, the
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environment, public health or safety, or State,
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local, or tribal governments or communities;
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‘‘(B) create a significant inconsistency or
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otherwise interfere with an action taken or
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planned by another Federal agency;
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‘‘(C) materially alter the budgetary impact
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of entitlements, grants, user fees, or loan pro-
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grams or the rights and obligations of recipi-
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ents thereof; or
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‘‘(D) raise novel legal or policy issues.’’.
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SEC. 3. REGULATORY IMPACT ANALYSES; CONSIDERATION
2
OF SUNSET DATES.
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(a) IN GENERAL.—Chapter 6 of title 5, United
4
States Code, is amended by adding at the end the fol-
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lowing:
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‘‘§ 613. Regulatory impact analyses
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‘‘(a) IN GENERAL.—Before issuing any proposed
8
rule, final rule, or interim final rule that meets the eco-
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nomic threshold of a significant rule described in section
10
601(9)(A), an agency shall conduct a regulatory impact
11
analysis to evaluate the proposed rule, final rule, or in-
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terim final rule, as applicable.
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‘‘(b) REGULATORY IMPACT ANALYSES.—An analysis
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under subsection (a) shall—
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‘‘(1) be based upon the best reasonably obtain-
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able supporting information, consistent with Execu-
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tive Order 12866 (5 U.S.C. 601 note; relating to
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regulatory planning and review) and any other rel-
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evant guidance from the Office of Management and
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Budget;
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‘‘(2) be transparent, replicable, and objective;
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‘‘(3) describe the need to be addressed and how
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the rule would address that need;
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‘‘(4) analyze the potential effects, including the
1
benefits and costs, of the rule;
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‘‘(5) to the maximum extent practicable, con-
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sider the cumulative regulatory burden on the regu-
4
lated entity under subsection (c);
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‘‘(6) consider the potential effects on different
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types and sizes of businesses, if applicable;
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‘‘(7) for a proposed rule that is likely to lead
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to a significant rule, or a final or interim final rule
9
that is a significant rule—
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‘‘(A) describe the need to be addressed, in-
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cluding—
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‘‘(i) the supporting information dem-
13
onstrating the need;
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‘‘(ii) the failures of private markets
15
that warrant new agency action, if applica-
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ble; and
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‘‘(iii) whether existing law, including
18
regulations, has created or contributed to
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the need;
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‘‘(B) define the baseline for the analysis;
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‘‘(C) set the timeframe of the analysis;
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‘‘(D) analyze any available regulatory al-
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ternatives, including—
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‘‘(i) if rulemaking is not specifically
1
directed by statute, the alternative of not
2
regulating;
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‘‘(ii) any alternatives that specify per-
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formance objectives rather than identify or
5
require the specific manner of compliance
6
that regulated entities must adopt;
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‘‘(iii) any alternatives that involve the
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deployment of innovative technology or
9
practices; and
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‘‘(iv) any alternatives that involve dif-
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ferent requirements for different types or
12
sizes of businesses, if applicable;
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‘‘(E) identify the effects of the available
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regulatory alternatives described in subpara-
15
graph (D);
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‘‘(F) identify the effectiveness of tort law
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to address the identified need;
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‘‘(G) to the maximum extent practicable,
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quantify and monetize the benefits and costs of
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the selected regulatory alternative and the avail-
21
able alternatives under consideration;
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‘‘(H) discount future benefits and costs
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quantified and monetized under subparagraph
24
(G);
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‘‘(I) to the maximum extent practicable,
1
evaluate non-quantified and non-monetized ben-
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efits and costs of the selected regulatory alter-
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native and the available alternatives under con-
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sideration; and
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‘‘(J) characterize any uncertainty in bene-
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fits, costs, and net benefits.
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‘‘(c) CUMULATIVE REGULATORY BURDEN.—In con-
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sidering the cumulative regulatory burden under sub-
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section (b)(5), an agency shall—
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‘‘(1) identify and assess the benefits and costs
11
of other regulations require compliance by the same
12
regulated entities to attempt to achieve similar regu-
13
latory objectives;
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‘‘(2) evaluate whether the rule is inconsistent
15
with, incompatible with, or duplicative of other regu-
16
lations; and
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‘‘(3) consider whether the estimated benefits
18
and costs of the rule increase or decrease as a result
19
of other regulations issued by the agency, including
20
regulations that are not yet fully implemented, com-
21
pared to the benefits and costs of that rule in the
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absence of such regulations.
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‘‘(d) LESS BURDENSOME ALTERNATIVES.—If, after
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conducting an analysis under subsection (a) for a proposed
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rule that is likely to lead to a significant rule, or a final
1
rule or interim final that is a significant rule, the agency
2
selects a regulatory approach that is not the least burden-
3
some compared to an available regulatory alternative, the
4
agency shall include—
5
‘‘(1) in the summary section of the preamble a
6
statement that the selected approach is more bur-
7
densome than an available regulatory alternative;
8
and
9
‘‘(2) a justification, with supporting informa-
10
tion, for the selected approach.
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‘‘(e) REGULATORY DETERMINATION.—
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‘‘(1) IN GENERAL.—Except as expressly pro-
13
vided otherwise by law, an agency may issue a pro-
14
posed rule, final rule, or interim final rule only upon
15
a reasoned determination that the benefits of the
16
rule justify the costs of the rule.
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‘‘(2) REQUIREMENTS.—
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‘‘(A) ALTERNATIVE.—Whenever an agency
19
is expressly required by law to issue a rule, the
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agency shall select a regulatory alternative that
21
has benefits that exceed costs and complies with
22
law.
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‘‘(B) COMPLIANCE.—If it is not possible to
24
comply with the law by selecting a regulatory
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alternative that has benefits that exceed costs,
1
an agency shall select the regulatory alternative
2
that has the least costs and complies with law.
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‘‘§ 614. Consideration of sunset dates
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‘‘(a) SUNSET.—Not later than July 1, 2023, an agen-
5
cy shall, for each proposed rule or interim final rule of
6
the agency that meets the economic threshold of a signifi-
7
cant rule described in section 601(9)(A), include an ex-
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plicit consideration of a sunset date for the rule.
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‘‘(b) ELEMENTS.—The consideration described in
10
subsection (a) for a proposed rule or interim final rule
11
described in that subsection shall include an assessment
12
of whether the rule—
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‘‘(1) could become outmoded or outdated in
14
light of changed circumstances, including the avail-
15
ability of new technologies; or
16
‘‘(2) could become excessively burdensome after
17
a period of time due to, among other things—
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‘‘(A) disproportionate costs on small busi-
19
nesses;
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‘‘(B) the net effect on employment, includ-
21
ing jobs added or lost in the private sector; and
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‘‘(C) costs that exceed benefits.
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‘‘(c) PUBLICATION.—A summary of the consideration
24
described in subsection (a) for a proposed rule or interim
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final rule described in that subsection shall be published
1
in the Federal Register along with the proposed or interim
2
final rule, as applicable.’’.
3
(b) TECHNICAL AND CONFORMING AMENDMENT.—
4
The table of sections for chapter 6 of title 5, United States
5
Code, is amended by adding at the end the following:
6
‘‘613. Regulatory impact analyses.
‘‘614. Consideration of sunset dates.’’.
SEC. 4. JUDICIAL REVIEW.
7
Section 611(a) of title 5, United States Code, is
8
amended, in paragraphs (1) and (2), by striking ‘‘and
9
610’’ and inserting ‘‘610, and 613’’.
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Æ
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