II 118TH CONGRESS 1ST SESSION S. 1411 To amend title 5, United States Code, to require greater transparency for Federal regulatory decisions that impact small businesses, and for other purposes. IN THE SENATE OF THE UNITED STATES MAY 3, 2023 Ms. ERNST introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs A BILL To amend title 5, United States Code, to require greater transparency for Federal regulatory decisions that impact small businesses, 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 ‘‘Prove It Act of 2023’’. 4 SEC. 2. INITIAL REGULATORY FLEXIBILITY ANALYSIS. 5 (a) IN GENERAL.—Chapter 6 of title 5, United 6 States Code, is amended— 7 (1) in section 603(b)— 8 VerDate Sep 11 2014 00:25 May 11, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1411.IS S1411 pbinns on DSKJLVW7X2PROD with $$_JOB 2 •S 1411 IS (A) in paragraph (5), by striking the pe- 1 riod at the end and inserting ‘‘; and’’; and 2 (B) by adding at the end the following: 3 ‘‘(6) where feasible, any reasonably foreseeable 4 potential indirect costs the proposed rule may im- 5 pose on small entities, which shall include small enti- 6 ties that— 7 ‘‘(A) purchase products or services from, 8 sell products or services to, or otherwise con- 9 duct business with entities directly regulated by 10 the rule; 11 ‘‘(B) are directly regulated by other gov- 12 ernmental entities as a result of the rule; or 13 ‘‘(C) are not directly regulated by the 14 agency as a result of the rule but are otherwise 15 subject to other agency rules as a result of the 16 rule.’’; and 17 (2) in section 605(b), by striking ‘‘The agency’’ 18 and inserting ‘‘Not later than 10 days after com- 19 pleting the certification described in this paragraph, 20 the agency’’; and 21 (3) by inserting after section 605 the following: 22 VerDate Sep 11 2014 00:25 May 11, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1411.IS S1411 pbinns on DSKJLVW7X2PROD with $$_JOB 3 •S 1411 IS ‘‘§ 605A. Review procedures relating to initial regu- 1 latory flexibility analysis certifications 2 ‘‘(a) FILING A PETITION TO REVIEW AGENCY CER- 3 TIFICATION OF A PROPOSED RULE.— 4 ‘‘(1) IN GENERAL.—Any small entity, group of 5 small entities, or organization representing the inter- 6 ests of small entities may petition the Chief Counsel 7 for Advocacy of the Small Business Administration 8 (in this section referred to as the ‘Chief Counsel’) to 9 review a certification published under section 605(b) 10 that a proposed rule will not, if promulgated, have 11 a significant economic impact on a substantial num- 12 ber of small entities. 13 ‘‘(2) FORM.—The Chief Counsel shall— 14 ‘‘(A) determine the method, timing, and 15 form of disseminating a petition described in 16 paragraph (1); and 17 ‘‘(B) display the information described in 18 subparagraph (A) on the website of the Office 19 of Advocacy of the Small Business Administra- 20 tion in a conspicuous manner. 21 ‘‘(3) CONTENTS.—Each petition described in 22 paragraph (1) with respect to a certification pub- 23 lished under section 605(a) for a proposed rule shall 24 clearly and concisely— 25 VerDate Sep 11 2014 00:25 May 11, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1411.IS S1411 pbinns on DSKJLVW7X2PROD with $$_JOB 4 •S 1411 IS ‘‘(A) specify the name of the petitioner and 1 a telephone number, a mailing address, and an 2 email address that the Chief Counsel may use 3 to communicate with the petitioner; 4 ‘‘(B) if the petitioner is an organization, 5 provide additional identifying information, as 6 applicable, including the organizational or cor- 7 porate status of the petitioner, the State of in- 8 corporation of the petitioner, the registered 9 agent of the petitioner, the interest of the peti- 10 tioner in representing small entities affected by 11 the proposed rule and the certification at issue, 12 and the name and authority of the individual 13 who signed the petition on behalf of the organi- 14 zational or corporate petitioner; 15 ‘‘(C) present the specific problems or 16 issues that the petitioner believes should be ad- 17 dressed or considered through a review of the 18 certification, such as— 19 ‘‘(i) any specific circumstances in 20 which the determination of the certification 21 that the proposed rule will not, if promul- 22 gated, have a significant economic impact 23 on a substantial number of small entities is 24 incorrect, incomplete, or inadequate; and 25 VerDate Sep 11 2014 00:25 May 11, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1411.IS S1411 pbinns on DSKJLVW7X2PROD with $$_JOB 5 •S 1411 IS ‘‘(ii) why the proposed rule would, if 1 promulgated, have a significant economic 2 impact on a substantial number of small 3 entities; 4 ‘‘(D) cite, enclose, or reference any rel- 5 evant and non-protected or confidential tech- 6 nical, scientific, or other data or information 7 supporting any assertion of the problems or 8 issues with the certification; 9 ‘‘(E) present a proposed solution to the 10 problems or issues raised in the petition, includ- 11 ing potential regulatory or compliance alter- 12 natives to the proposed rule; 13 ‘‘(F) provide an analysis, discussion, or ar- 14 gument that explains how the proposed solution 15 described in subparagraph (E) solves the prob- 16 lems or issues raised in the petition; and 17 ‘‘(G) cite, enclose, or reference any other 18 publicly available data or information sup- 19 porting the proposed solution described in sub- 20 paragraph (E). 21 ‘‘(b) CONSULTATION.— 22 ‘‘(1) IN GENERAL.—Any entity desiring to file 23 a petition under subsection (a) may request a con- 24 VerDate Sep 11 2014 00:25 May 11, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1411.IS S1411 pbinns on DSKJLVW7X2PROD with $$_JOB 6 •S 1411 IS sultation with the Chief Counsel before or after fil- 1 ing the petition. 2 ‘‘(2) FORM.—The Chief Counsel shall— 3 ‘‘(A) determine the method, timing, and 4 form of requesting a consultation with the Chief 5 Counsel under paragraph (1); and 6 ‘‘(B) display the information described in 7 subparagraph (A) on the website of the Office 8 of Advocacy of the Small Business Administra- 9 tion in a conspicuous manner. 10 ‘‘(3) LIMITATIONS ON ASSISTANCE.—In any 11 consultation regarding a petition under paragraph 12 (1), the Chief Counsel— 13 ‘‘(A) may only— 14 ‘‘(i) describe the process for filing, 15 docketing, tracking, closing, amending, 16 withdrawing, and resolving the petition; 17 and 18 ‘‘(ii) assist the petitioner to clarify the 19 petition so that the Chief Counsel is able 20 to understand the issues of concern to the 21 petitioner; and 22 ‘‘(B) may not advise a petitioner on wheth- 23 er the petition should be amended or with- 24 drawn. 25 VerDate Sep 11 2014 00:25 May 11, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1411.IS S1411 pbinns on DSKJLVW7X2PROD with $$_JOB 7 •S 1411 IS ‘‘(c) PRIMA FACIE REVIEW.— 1 ‘‘(1) IN GENERAL.—Upon receipt of a petition 2 filed under this section with respect to the certifi- 3 cation of a proposed rule, the Chief Counsel shall 4 make an initial prima facie determination on the 5 merit of the issues raised in petition as to the 6 properness of the certification and whether the pro- 7 posed rule in question would, if promulgated, have 8 a significant economic impact on a substantial num- 9 ber of small entities. 10 ‘‘(2) NO FURTHER REVIEW.—If, following the 11 prima facie review of a petition under paragraph (1), 12 the Chief Counsel determines that the issues raised 13 in the petition do not merit further review by the 14 Chief Counsel, the Chief Counsel shall, not later 15 than 10 days after receipt of the petition, inform the 16 petitioner of that determination and the matter shall 17 be closed. 18 ‘‘(3) FURTHER REVIEW.—If, following the 19 prima facie review of a petition under paragraph (1), 20 the Chief Counsel determines that the issues raised 21 in the petition do merit further review by the Chief 22 Counsel, the Chief Counsel shall, not later than 10 23 days after receipt of the petition, inform the peti- 24 tioner and the agency that promulgated the pro- 25 VerDate Sep 11 2014 00:25 May 11, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1411.IS S1411 pbinns on DSKJLVW7X2PROD with $$_JOB 8 •S 1411 IS posed rule that the Chief Counsel shall conduct a 1 full review of the certification and proposed rule to 2 which the petition relates under subsection (d). 3 ‘‘(d) FULL REVIEW.— 4 ‘‘(1) CONSIDERATIONS; MEETING.—In con- 5 ducting a full review under this subsection with re- 6 spect to the certification made under section 605(b), 7 the Chief Counsel shall— 8 ‘‘(A) consider— 9 ‘‘(i) whether the agency that promul- 10 gated the proposed rule correctly deter- 11 mined which small entities will be affected 12 by the proposed rule; 13 ‘‘(ii) whether the agency considered 14 adequate economic data to assess whether 15 the proposed rule will have a significant 16 impact on a substantial number of small 17 entities; and 18 ‘‘(iii) the economic implications of the 19 proposed rule; and 20 ‘‘(B) convene a virtual or in-person meet- 21 ing between the Chief Counsel, the petitioner, 22 representatives of the agency that promulgated 23 the proposed rule who are determined appro- 24 priate by the Chief Counsel, and the Adminis- 25 VerDate Sep 11 2014 00:25 May 11, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1411.IS S1411 pbinns on DSKJLVW7X2PROD with $$_JOB 9 •S 1411 IS trator of the Office of Information and Regu- 1 latory affairs to— 2 ‘‘(i) provide positions and support for 3 those positions regarding the certification 4 of the proposed rule; and 5 ‘‘(ii) allow the Chief Counsel to ask 6 questions as the Chief Counsel determines 7 necessary to make a final determination as 8 to the validity of the certification. 9 ‘‘(2) PUBLICATION.—Not later than 30 days 10 after the date on which the Chief Counsel begins a 11 full review of a certification made with respect to a 12 proposed rule under paragraph (1), the Chief Coun- 13 sel shall submit to the petitioner and the agency that 14 promulgated the proposed rule, and publish in the 15 Federal Register and on the website of the Office of 16 Advocacy of the Small Business Administration, the 17 results of the review conducted under paragraph (1). 18 ‘‘(3) REQUIREMENT TO PERFORM ANALYSES.— 19 If, after a full review of a certification made with re- 20 spect to a proposed rule under paragraph (1), the 21 Chief Counsel determines that the proposed rule 22 will, if promulgated, have a significant economic im- 23 pact on a substantial number of small entities, the 24 agency that promulgated the proposed rule shall per- 25 VerDate Sep 11 2014 00:25 May 11, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1411.IS S1411 pbinns on DSKJLVW7X2PROD with $$_JOB 10 •S 1411 IS form an initial regulatory flexibility analysis and a 1 final regulatory flexibility analysis for the proposed 2 rule under sections 603 and 604, respectively. 3 ‘‘(4) PENALTY.—If an agency fails to attend 4 the required meeting under paragraph (1)(B) or in 5 any other way fails to assist the Chief Counsel in a 6 full review under paragraph (1) with respect to a 7 proposed rule of the agency, as determined by the 8 Chief Counsel, the final rule shall not apply to small 9 entities. 10 ‘‘(5) JUDICIAL REVIEW.—For purposes of judi- 11 cial review under chapter 7 of this title, a certifi- 12 cation made by an agency under section 605(b) for 13 which a petition is filed under subsection (a) shall 14 be considered final agency action as of the date on 15 which the Chief Counsel— 16 ‘‘(A) makes a determination under sub- 17 section (c)(2) that the issues raised in the peti- 18 tion do not merit further review; or 19 ‘‘(B) publishes the results of a full review 20 of the certification under paragraph (1).’’. 21 (b) TECHNICAL AND CONFORMING AMENDMENT.— 22 The table of sections for chapter 6 of title 5, United States 23 Code, is amended by inserting after the item relating to 24 section 605 the following: 25 VerDate Sep 11 2014 00:25 May 11, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1411.IS S1411 pbinns on DSKJLVW7X2PROD with $$_JOB 11 •S 1411 IS ‘‘605A. Review procedures relating to initial regulatory flexibility analysis certifi- cations.’’. SEC. 3. PUBLICATION OF GUIDANCE. 1 Section 609 of title 5, United States Code, is amend- 2 ed by adding at the end the following: 3 ‘‘(f) With respect to any rule that an agency deter- 4 mines is likely to have a significant economic impact on 5 a substantial number of small entities, the head of the 6 agency shall, on regulations.gov or any similar internet 7 website— 8 ‘‘(1) publish all guidance documents and other 9 relevant documents, as determined by the agency, 10 including any updated guidance documents that set 11 forth interpretations of the rule; and 12 ‘‘(2) allow for comments on the documents de- 13 scribed in paragraph (1) to ensure that small enti- 14 ties may access and provide feedback on those docu- 15 ments.’’. 16 SEC. 4. REVIEW PROCEDURES FOR SECTION 610 PERIODIC 17 REVIEW OF RULES. 18 (a) IN GENERAL.—Section 610 of title 5, United 19 States Code, is amended— 20 (1) in subsection (b)— 21 (A) in the matter preceding paragraph (1), 22 by striking ‘‘the following factors’’; 23 VerDate Sep 11 2014 00:25 May 11, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1411.IS S1411 pbinns on DSKJLVW7X2PROD with $$_JOB 12 •S 1411 IS (B) in paragraph (4), by striking ‘‘and’’ at 1 the end; 2 (C) in paragraph (5), by striking the pe- 3 riod at the end and inserting ‘‘; and’’; and 4 (D) by adding at the end the following: 5 ‘‘(6) any indirect costs described in the initial 6 regulatory flexibility analysis under section 7 603(b)(6), and any other indirect costs that may 8 have arisen during the 10-year period described in 9 subsection (a).’’; and 10 (2) by adding at the end the following: 11 ‘‘(d) If an agency fails to conduct a review of a rule 12 as required under this section within the 10-year period 13 described in subsection (a)— 14 ‘‘(1) the Chief Counsel for Advocacy of the 15 Small Business Administration shall notify the agen- 16 cy that the rule has ceased to be effective; 17 ‘‘(2) the agency shall publish in the Federal 18 Register a notification that the rule has ceased to be 19 effective, and solicit comments for why the rule 20 should be reinstated; and 21 ‘‘(3) if, based on the c [Text truncated for display. 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