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Regulatory Reform Legislation in
the 112th Congress

Curtis W. Copeland
Specialist in American National Government
May 25, 2011
Congressional Research Service
7-5700
www.crs.gov
R41834
CRS Report for Congress
P
repared for Members and Committees of Congress
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Regulatory Reform Legislation in the 112th Congress

Summary
In the 112th Congress, a number of bills have been introduced that would, if enacted, change
current requirements in the federal rulemaking process. In the Senate, the proposed legislation
includes (1) S. 128, the Small Business Paperwork Relief Act of 2011; (2) S. 299, the Regulations
from the Executive in Need of Scrutiny Act of 2011; (3) S. 358, the Regulatory Responsibility for
Our Economy Act of 2011; (4) S. 474, the Small Business Regulatory Freedom Act of 2011; (5)
S. 602, the Clearing Unnecessary Regulatory Burdens Act; and (6) S. 817, which would make
changes to the application of the Unfunded Mandates Reform Act. In the House of
Representatives, the bills include (1) H.R. 10, the Regulations from the Executive in Need of
Scrutiny Act of 2011; (2) H.R. 213, the Regulation Audit Revive Economy Act of 2011; (3) H.R.
214, the Congressional Office of Regulatory Analysis Creation and Sunset and Review Act of
2011; (4) H.R. 373, the Unfunded Mandates Information and Transparency Act of 2011; (5) H.R.
527, the Regulatory Flexibility Improvements Act of 2011; (6) H.R. 1235, the Regulation
Moratorium Act of 2011; and (7) H.R. 1432, the Creating Sunshine, Participation, and
Accountability for our Nation Act.
This report describes each of those bills, notes whether similar legislation has been introduced or
acted upon in the past, summarizes the comments of those supporting and opposing the proposed
legislation, and provides other relevant information. To put those regulatory reform bills in
context, the report first summarizes the current rulemaking requirements (primarily statutes and
executive orders) that the proposed legislation would amend, codify, or otherwise affect. The
report ends with some concluding observations, noting similarities, differences, and broad themes
in the legislative proposals. Those themes include (1) an expansion of current rulemaking
requirements, (2) an expansion of those requirements to independent regulatory agencies, (3) an
emphasis on retrospective reviews of existing rules, and (4) an increase in the role of Congress in
overseeing the actions of regulatory agencies. Within each of these broad areas, however, the bills
often take very different approaches. Some of the reforms would, if enacted, place new and
potentially substantial responsibilities on federal agencies and the Office of Management and
Budget, which may require additional resources and time to satisfy. Some of the bills may require
clarification to ensure that they are enacted as Congress intended, and some may raise legal or
policy concerns.
This report will be updated to reflect new proposed legislation and actions on bills that have been
introduced.


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Contents
Introduction ................................................................................................................................ 1
Current Rulemaking Requirements.............................................................................................. 1
Administrative Procedure Act................................................................................................ 1
Paperwork Reduction Act...................................................................................................... 2
Regulatory Flexibility Act ..................................................................................................... 3
Small Business Regulatory Enforcement Fairness Act ........................................................... 5
Congressional Review Act .................................................................................................... 6
Unfunded Mandates Reform Act ........................................................................................... 7
Small Business Paperwork Relief Act.................................................................................... 8
Executive Order 12866 ......................................................................................................... 8
Executive Order 13422 ......................................................................................................... 9
OMB Bulletin on Agency Guidance .................................................................................... 10
Executive Order 13563 ....................................................................................................... 11
Other Obama Administration Initiatives .............................................................................. 11
Regulatory Reform Legislation Introduced During the 112th Congress ....................................... 13
Senate Bills......................................................................................................................... 13
S. 128: the Small Business Paperwork Relief Act of 2011.............................................. 13
S. 299: the Regulations from the Executive in Need of Scrutiny Act of 2011 ................. 15
S. 358: the Regulatory Responsibility for Our Economy Act of 2011 ............................. 17
S. 474: the Small Business Regulatory Freedom Act of 2011 ......................................... 18
S. 602: the Clearing Unnecessary Regulatory Burdens (CURB) Act .............................. 22
S. 817: Independent Agencies and the Unfunded Mandates Reform Act......................... 24
House Bills ......................................................................................................................... 25
H.R. 10: the Regulations from the Executive in Need of Scrutiny (REINS) Act of
2011........................................................................................................................... 25
H.R. 213: the Regulation Audit Revive Economy (RARE) Act of 2011.......................... 25
H.R. 214: the Congressional Office of Regulatory Analysis Creation and Sunset
and Review Act of 2011 ............................................................................................. 26
H.R. 373: the Unfunded Mandates Information and Transparency Act of 2011 .............. 29
H.R. 527: the Regulatory Flexibility Improvements Act of 2011 .................................... 29
H.R. 1235: the Regulatory Moratorium Act of 2011 ...................................................... 33
H.R. 1432, the Creating Sunshine, Participation, and Accountability for
Our Nation Act........................................................................................................... 34
Concluding Observations .......................................................................................................... 34
Committee Referrals ........................................................................................................... 35
Themes in Regulatory Reform Bills .................................................................................... 36
Expansion of Current Requirements .............................................................................. 39
Independent Regulatory Agencies ................................................................................. 39
Retrospective Reviews .................................................................................................. 40
Congressional Oversight ............................................................................................... 41
Similarities and Differences in Regulatory Reform Bills...................................................... 42
Reforms May Require Additional Resources and Time ........................................................ 42
Other Issues ........................................................................................................................ 43

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Tables
Table 1. House of Representative Committee Referrals of Regulatory Reform Bills
in the 112th Congress .............................................................................................................. 36
Table 2. Regulatory Reform Bills in the 112th Congress Address a Variety of Issues................... 37

Contacts
Author Contact Information ...................................................................................................... 44

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Introduction
Regulations generally start with an act of Congress and are the means by which statutes are
implemented and specific requirements are established. Federal agencies usually issue more than
3,000 final rules each year on topics ranging from the timing of bridge openings to the
permissible levels of arsenic and other contaminants in drinking water. During the past 65 years,
Congress and various Presidents have developed an elaborate set of procedures and requirements
to guide the federal rulemaking process, often with the implicit or explicit goal of reducing the
amount of regulatory burden placed on the public. These cross-cutting statutory and executive
order rulemaking requirements often require some type of analysis or disclosure on the part of the
rulemaking agency before issuing a covered rule, but also often give agencies substantial
discretion regarding whether the requirements are applicable.
In the 112th Congress, a number of bills have been introduced that would, if enacted, change
many of the current requirements in the federal rulemaking process. This report will describe
many of those bills, note whether similar legislation has been introduced or acted upon in the
past, summarize the comments of those supporting and opposing the proposed legislation, and
provide other relevant information. The report ends with some concluding observations, noting
similarities, differences, and broad themes in the legislative proposals. To put the regulatory
reform bills in context, however, the report first summarizes the current rulemaking requirements
(primarily statutes and executive orders) that the proposed legislation would amend, codify, or
otherwise affect.
Current Rulemaking Requirements
Administrative Procedure Act
The most long-standing and broadly applicable federal rulemaking requirements are in the
Administrative Procedure Act (APA) of 1946 (5 U.S.C. § 551 et seq.). Although the APA
discusses both formal and informal rulemaking, this summary focuses on the more common
informal “notice and comment” rulemaking requirements. For informal rulemaking, the APA
generally requires that agencies (Cabinet departments and independent agencies as well as
independent regulatory agencies) publish a notice of proposed rulemaking (NPRM) in the
Federal Register, and give “interested persons” an opportunity to comment on the proposed rule.1
After considering the public comments, the agency may then publish the final rule, incorporating
a general statement of its basis and purpose. Although the APA does not specify the length of this
public comment period, agencies commonly allow at least 30 days.2 Finally, the APA states that
the final rule cannot become effective until at least 30 days after its publication unless (1) the rule
grants or recognizes an exemption or relieves a restriction, (2) the rule is an interpretative rule or

1 As used in this report, the term “independent regulatory agencies” refers to the boards and commissions identified as
such in the Paperwork Reduction Act (44 U.S.C. § 3502(5)), including the Federal Communications Commission, the
Federal Energy Regulatory Commission, the Nuclear Regulatory Commission, and the Securities and Exchange
Commission. The term “independent agencies” refers to other agencies that answer directly to the President, but are not
part of Cabinet departments (e.g., the Environmental Protection Agency and the General Services Administration).
2 Executive Order 12866, discussed in detail later in this report, suggests that agencies allow the public at least 60 days
to comment for “significant” rules.
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a statement of policy, or (3) the agency determines that the rule should take effect sooner for
“good cause,” and publishes that determination with the rule.3
Although the APA generally requires agencies to publish NPRMs before promulgating a final
rule, the act also provides exceptions to this requirement. For example, the APA (5 U.S.C. §
553(b)(B)) states that the notice and comment procedures generally do not apply when an agency
finds, for “good cause,” that those procedures are “impracticable, unnecessary, or contrary to the
public interest.”4 When agencies use the good cause exception, the act requires that they
explicitly say so and provide a rationale for the exception’s use when the rule is published in the
Federal Register. “Interim final” rulemaking can be viewed as a particular application of the
good cause exception in the APA, but with the addition of a comment period after the rule has
become effective.5 Congress sometimes requires agencies to use interim final rulemaking, and
may also specify the length of the comment period.6
Paperwork Reduction Act
The Paperwork Reduction Act (PRA) (44 U.S.C. §§ 3501-3520) was originally enacted in 1980,
but was subsequently amended in 1986 and again in 1995. One of the purposes of the PRA is to
minimize the paperwork burden for individuals, small businesses, and others resulting from the
collection of information by or for the federal government. The act generally defines a “collection
of information” as the obtaining or disclosure of facts or opinions by or for an agency (Cabinet
departments and independent agencies as well as independent regulatory agencies) by 10 or more
nonfederal persons. Many information collections, recordkeeping requirements, and third-party
disclosures are contained in or are authorized by regulations as monitoring or enforcement tools.
In fact, these paperwork requirements are the essence of many agencies’ regulatory provisions.7
The PRA requires agencies to justify any collection of information from the public by
establishing the need and intended use of the information, estimating the burden that the
collection will impose on respondents, and showing that the collection is the least burdensome
way to gather the information.

3 For a legal overview of rulemaking and judicial review under the APA, see CRS Report R41546, A Brief Overview of
Rulemaking and Judicial Review
, by Vanessa K. Burrows and Todd Garvey.
4 The APA also provides explicit exceptions to the NPRM requirement for certain categories of regulatory actions, such
as rules dealing with military or foreign affairs; agency management or personnel; or public property, loans, grants,
benefits, or contracts. Further, the APA says that the NPRM requirements do not apply to interpretative rules; general
statements of policy; or rules of agency organization, procedure, or practice. However, these rules do have to be
published in the Federal Register.
5 For more, see Michael Asimow, “Interim Final Rules: Making Haste Slowly,” Administrative Law Review, 51
(Summer 1999), pp. 703-755.
6 For example, Subsection (b)(2) of Section 1104 of the Patient Protection and Affordable Care Act amended Section
1173 of the Social Security Act (at 42 U.S.C. § 1320d-2) and states, in part, that the Secretary “shall promulgate an
interim final rule applying any standard or operating rule recommended by the National Committee on Vital and Health
Statistics,” and “shall accept and consider public comments on any interim final rule published under this subparagraph
for 60 days after the date of such publication.”
7 For example, Environmental Protection Agency’s Toxics Release Inventory (TRI) program is essentially a database
created through collections of information imposed on businesses to inform the public about chemical hazards in their
communities. TRI reports require businesses in certain industries to report the quantity of any of more than 600
chemicals entering each environmental medium on site, transfers of the chemical in wastes to off-site locations, on-site
treatment methods and efficiency, and source reduction and recycling activities.
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The original PRA established the Office of Information and Regulatory Affairs (OIRA) within the
Office of Management and Budget (OMB) to provide central agency leadership and oversight of
government-wide efforts to reduce unnecessary paperwork burden and improve the management
of information resources. Agencies must receive OIRA-approval (signified by an OMB control
number displayed on the information collection) for each collection request before it is
implemented, and those approvals must be renewed at least every three years. Failure to obtain
OIRA approval for an active collection, or the lapse of that approval, represents a violation of the
act, and triggers the PRA’s public protection provision. Under that provision, no one can be
penalized for failing to comply with a collection of information subject to the act if the collection
does not display a valid OMB control number.8 OIRA can disapprove any collection of
information if it believes the collection is inconsistent with the requirements of the PRA.9
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) of 1980 (5 U.S.C. §§ 601-612) requires federal agencies to
assess the impact of their forthcoming regulations on “small entities,” which the act defines as
including small businesses, small governmental jurisdictions, and certain small not-for-profit
organizations. Under the RFA, Cabinet departments and independent agencies as well as
independent regulatory agencies must prepare a “regulatory flexibility analysis” at the time
proposed and certain final rules are issued. The RFA requires the analysis to describe, among
other things, (1) the reasons why the regulatory action is being considered; (2) the small entities
to which the proposed rule will apply and, where feasible, an estimate of their number; (3) the
projected reporting, recordkeeping, and other compliance requirements of the proposed rule; and
(4) any significant alternatives to the rule that would accomplish the statutory objectives while
minimizing the impact on small entities. However, these analytical requirements are not triggered
if the head of the issuing agency certifies that the proposed rule would not have a “significant
economic impact on a substantial number of small entities” (hereafter referred to as a
“SEISNSE”). The RFA does not define “significant economic impact” or “substantial number of
small entities,” thereby giving federal agencies substantial discretion regarding when the act’s
analytical requirements are initiated. Also, the RFA’s analytical requirements do not apply to final
rules for which the agency does not publish a proposed rule.
The RFA initially did not permit judicial review of agencies’ actions under the act. However,
amendments to the act in 1996 as part of the Small Business Regulatory Enforcement Fairness
Act (SBREFA, 5 U.S.C. § 601 note) permitted judicial review regarding, among other things,
agencies’ regulatory flexibility analyses for final rules and any certifications that their rules will
not have a significant impact on small entities. As a result, a small entity that is adversely affected
or aggrieved by an agency’s determination that its final rule would not have a significant impact
on small entities could seek judicial review of that determination within one year of the date of
the final agency action. In granting relief, a court may remand the rule to the agency or defer
enforcement against small entities.

8 For an up-to-date inventory of OMB-approved information collections, see http://www.reginfo.gov/public/do/
PRAMain.
9 Multi-headed independent regulatory agencies can, by majority vote, void any OIRA disapproval of a proposed
collection of information. See 44 U.S.C. § 3507(f). For more information on the PRA, see CRS Report R40636,
Paperwork Reduction Act (PRA): OMB and Agency Responsibilities and Burden Estimates, by Curtis W. Copeland and
Vanessa K. Burrows.
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The RFA also contains several other notable provisions. For example, Section 610 of the act
requires agencies to review those rules that have or will have a significant impact within 10 years
of their promulgation to determine whether they should be continued without change or should be
amended or rescinded to minimize their impact on small entities. Section 612 of the RFA requires
the chief counsel of the Small Business Administration’s (SBA) Office of Advocacy to monitor
and report at least annually on agencies’ compliance with the act. SBA’s primary method of
monitoring agencies’ compliance is to review and comment on proposed regulations when they
are published for notice and comment in the Federal Register. However, the statute also
specifically authorizes the chief counsel to appear as amicus curiae (i.e., “friend of the court”) in
any court action to review a rule.
The RFA also requires agencies to ensure that small entities have an opportunity to participate in
the rulemaking process, and the 1996 amendments to the act in SBREFA required the
Environmental Protection Agency (EPA) and the Occupational Safety and Health Administration
(OSHA) to convene “advocacy review panels” before publishing a regulatory flexibility analysis
for a proposed rule. Specifically, the agency issuing the regulation must notify the SBA chief
counsel for advocacy and provide information on the draft rule’s potential impacts on small
entities and the type of small entities that might be affected. The chief counsel then must identify
representatives of affected small entities within 15 days of the notification. The review panel must
consist of full-time federal employees from the rulemaking agency, OMB, and SBA’s chief
counsel for advocacy. During the panel process, the panel must collect the advice and
recommendations of representatives of affected small entities about the potential impact of the
draft rule. The panel must report on the comments received and on the panel’s recommendations
no later than 60 days after the panel is convened, and the panel’s report must be made public as
part of the rulemaking record.10 The agency may or may not adopt the panel’s recommendations.
The Dodd-Frank Wall Street Reform and Consumer Protection Act (P.L. 111-203) required the
new Consumer Financial Protection Bureau (CFPB) to also hold such panels.
The Government Accountability Office (GAO, formerly the General Accounting Office) has
examined the implementation of the RFA several times within the past 20 years, and a recurring
theme in GAO’s reports is a lack of clarity in the act and a resulting variability in the act’s
implementation. For example, in 1991 GAO reported that each of the four federal agencies that it
reviewed had a different interpretation of key RFA provisions.11 In 1994 GAO again reported that
agencies’ compliance with the RFA varied widely from one agency to another and that agencies
were interpreting the statute differently.12 In a 1999 report on the implementation of Section 610
of the RFA and in a 2000 report on the implementation of the RFA at the EPA, GAO concluded
that agencies had broad discretion to determine what the statute required.13 In all of these reports,
GAO suggested that Congress consider clarifying the act’s requirements and/or give SBA or some
other entity the responsibility to develop criteria for whether and how agencies should conduct

10 For an examination of the first five advocacy review panels were implemented, see U.S. General Accounting Office,
Regulatory Reform: Implementation of the Small Business Advocacy Review Panel Requirements, GAO/GGD-98-36,
March 18, 1996.
11 U.S. General Accounting Office, Regulatory Flexibility Act: Inherent Weaknesses May Limit Its Usefulness for Small
Governments
, GAO/HRD-91-16, January 11, 1991.
12 U.S. General Accounting Office, Regulatory Flexibility Act: Status of Agencies’ Compliance, GAO/GGD-94-105,
April 27, 1994.
13 U.S. General Accounting Office, Regulatory Flexibility Act: Agencies’ Interpretations of Review Requirements Vary,
GAO/GGD-99-55, April 2, 1999; U.S. General Accounting Office, Regulatory Flexibility Act: Implementation in EPA
Program Offices and Proposed Lead Rule
, GAO/GGD-00-193. September 20, 2000.
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RFA analyses. In 2001, GAO testified that the promise of the RFA may never be realized until
Congress or some other entity defines what a “significant economic impact” and a “substantial
number of small entities” mean in a rulemaking setting.14 However, other observers have
indicated that the definitions of these terms should remain flexible because of significant
differences in each agency’s operating environment.15
Small Business Regulatory Enforcement Fairness Act
Some of the provisions in SBREFA imposed new rulemaking-related requirements on federal
agencies, but did not amend the RFA. For example, Section 212 of SBREFA requires agencies to
develop one or more compliance guides for each final rule or group of related final rules for
which the agency is required to prepare a regulatory flexibility analysis. Specifically, Section 212
requires the guides to (1) be published, (2) be designated as “small entity compliance guides,”
and (3) explain the actions a small entity is required to take to comply with an associated final
rule. However, the discretion inherent in the RFA regarding when a regulatory flexibility analysis
is required also applies to whether compliance guides must be developed. Section 212 gives
agencies broad discretion in other areas as well. For example, it says 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 the guides. Agencies are
given “sole discretion” in the use of plain language in the guides. The statute does not indicate
when the guides must be developed or how they must be “published.” In December 2001, GAO
reported that Section 212 of SBREFA did not appear to have had much of an impact on agencies’
rulemaking activities, and its implementation varied across and sometimes within agencies.16
Using the discretion that the section provided, GAO said “an agency could legally exclude all of
its rules from coverage by the statute, designate a previously published document as its small
entity compliance guide, or develop and publish a guide with no input from small entities years
after the covered rule takes effect.” GAO recommended several changes it felt were needed to
strengthen and clarify the requirements in Section 212.17
Section 223(a) of SBREFA requires federal agencies regulating the activities of small entities to
establish a policy or program for the reduction and, under appropriate circumstances, the waiver
of civil penalties by small entities. In February 2001, GAO concluded that all of the agencies’
penalty reduction and waiver policies were within the broad discretion afforded by the statute.18
However, GAO also reported that some of the policies covered only a portion of the agencies’
enforcement actions involving small entities, and some treated small entities no differently than

14 U.S. General Accounting Office, Regulatory Flexibility Act: Key Terms Still Need to Be Clarified, GAO-01-669T,
April 24, 2001.
15 See, for example, page 17 of the SBA Office of Advocacy’s guidance on the implementation of the RFA, available at
http://www.sba.gov/sites/default/files/rfaguide.pdf, which says “Significance should not be viewed in absolute
terms….” For more information on the RFA, see CRS Report RL34355, The Regulatory Flexibility Act:
Implementation Issues and Proposed Reforms
, by Curtis W. Copeland.
16 U.S. General Accounting Office, Regulatory Reform: Compliance Guide Requirement Has Had Little Effect on
Agency Practices
, GAO-02-172, December 28, 2001.
17 In 2007, Congress enacted some changes to these requirements. See P.L. 110-28, Title VI, Subtitle B, sec. 7005.
Among other things, agencies must prepare compliance guides for any rule for which it must prepare a final regulatory
flexibility analysis, and must post the guides on their web sites.
18 U.S. General Accounting Office, Regulatory Reform: Implementation of Selected Agencies’ Civil Penalty Relief
Policies for Small Entities
, GAO-01-280, February 20, 2001.
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large entities. The agencies’ policies also differed in terms of how key terms such as “small
entity” and “penalty reduction” were defined, and most were developed before SBREFA took
effect. GAO suggested several changes to the statute to strengthen agencies’ penalty relief
policies and make them more consistent.
Congressional Review Act
The statutory provision commonly known as the Congressional Review Act (CRA) (5 U.S.C. §§
801-808) was included as part of SBREFA as enacted in March 1996, and established expedited
procedures by which Congress may disapprove agencies’ rules by enacting a joint resolution of
disapproval.19 Under the CRA, before any final rule can become effective it must be filed with
each House of Congress and GAO.20 The definition of a “rule” under the CRA is very broad, and
the act applies to rules issued by Cabinet departments and independent agencies as well as
independent regulatory agencies.
If OIRA considers the issuing agency’s rule to be “major” (e.g., the rule is expected to have a
$100 million annual effect on the economy), the agency generally must delay the rule’s effective
date by 60 days after the date of publication in the Federal Register or submission to Congress
and GAO, whichever is later. Within 15 calendar days of receiving a major rule, GAO is required
to provide Congress with a report on the rule assessing the issuing agency’s compliance with the
procedural steps required by the various acts and executive orders applicable to the rulemaking
process.21 Although the CRA establishes these special requirements for major rules, the CRA
procedures for disapproving regulations apply to all rules, whether or not they are declared to be
major.
Within 60 days after Congress receives an agency’s rule, excluding periods when Congress is in
recess or adjournment, a Member of Congress can introduce a resolution of disapproval that, if
adopted by both Houses and enacted into law, can nullify the rule, even if it has already gone into
effect. Senate action on a disapproval resolution under the act must occur within 60 days of
session after the regulation is submitted, and makes available during that period an expedited
procedure intended to ensure that the Senate can take up and vote on the measure before the
period expires. The act establishes no such expedited procedure for the House. If Congress
adjourns less than 60 days of session after a rule is submitted, a new 60 day period for
disapproval under the act begins on the 15th legislative day of the next session. If a disapproval
resolution is rejected by either House of Congress, the rule can take effect immediately (or as
provided by other governing law or rule).
Federal agencies have submitted more than 50,000 rules to GAO (and presumably, Congress)
since the CRA took effect in March 1996, including more than 1,000 major rules. However, only
one rule had been overturned through CRA’s procedures—OSHA’s ergonomics standard in March
2001 (P.L. 107-5). Many reasons have been suggested for why the CRA has not been used more
often,22 but chief among them may be the fact that, if the President vetoes a resolution of

19 For a detailed discussion of CRA procedures, see CRS Report RL31160, Disapproval of Regulations by Congress:
Procedure Under the Congressional Review Act
, by Richard S. Beth.
20 Nevertheless, some rules have not been submitted. See CRS Report R40997, Congressional Review Act: Rules Not
Submitted to GAO and Congress
, by Curtis W. Copeland.
21 To view these reports, see http://www.gao.gov/decisions/majrule/majrule.php.
22 Morton Rosenberg, “Whatever Happened to Congressional Review of Agency Rulemaking?: A Brief Overview,
(continued...)
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disapproval (which is likely if the underlying rule is developed during his administration), then
enactment of the resolution would require approval of a two-thirds majority in both houses of
Congress. The rejection of the ergonomics rule was the result of a specific set of circumstances
created by a transition in party control of the presidency. The majority party in both houses of
Congress was the same as the party of the incoming President (George W. Bush). When the new
Congress convened in 2001 and adopted a resolution disapproving the rule published under the
outgoing President (William J. Clinton), the incoming President did not veto the resolution.
Congress may be most able to use the CRA to disapprove rules in similar, transition-related
circumstances.23
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act (UMRA) of 1995 was enacted in an effort to reduce the
costs associated with federal imposition of responsibilities, duties, and regulations upon state,
local, and tribal governments and the private sector without providing the funding appropriate to
the costs imposed by those responsibilities.24 Title II of UMRA (2 U.S.C. §§ 1532-1538) contains
requirements imposed on covered federal agencies during the rulemaking process. For example,
Section 202 of the act requires Cabinet departments and independent agencies (but not
independent regulatory agencies) to, among other things, prepare a written statement containing
specific descriptions and estimates for any proposed rule or any final rule for which a proposed
rule was published that includes any federal mandate that may result in the expenditure of $100
million or more in any year by state, local, or tribal governments, in the aggregate, or the private
sector. One of the items required in the written statement is a qualitative and quantitative
assessment of the anticipated costs and benefits of the mandate. OIRA has primary responsibility
for monitoring agency compliance with Title II of UMRA, and publishes an annual report on the
implementation of Title II.25
In February 1998, GAO reported that, because of the way the statute was written, Title II of
UMRA had little effect on agencies’ rulemaking actions during its first two years of
implementation.26 First, many of the act’s requirements did not appear to apply to most of the
“economically significant” rules (e.g., rules with a $100 million impact on the economy) that
were promulgated during this period. Even when UMRA was triggered, it often required agencies
to take actions that were identical or similar to actions that they were already required to take. In

(...continued)
Assessment, and Proposal for Reform,” Administrative Law Review, vol. 51, fall 1999, pp. 1051-1092.
23 See, for example, Susan E. Dudley, “Reversing Midnight Regulations,” Regulation, vol. 24 (Spring 2001), p. 9, who
noted that the “veto threat is diminished [after a transition], since the president whose administration issued the
regulations is no longer in office.” For a discussion of which rules may be carried over and disapproved after a
transition, see CRS Report RL34633, Congressional Review Act: Disapproval of Rules in a Subsequent Session of
Congress
, by Curtis W. Copeland and Richard S. Beth.
24 For an overview of UMRA, see CRS Report R40957, Unfunded Mandates Reform Act: History, Impact, and Issues,
by Robert Jay Dilger and Richard S. Beth.
25 In recent years, OIRA’s annual report on UMRA has been combined with its report on the costs and benefits of
federal regulations. See, for example, Office of Management and Budget, Office of Information and Regulatory
Affairs, 2010 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State,
Local, and Tribal Entities
, available at http://www.whitehouse.gov/sites/default/files/omb/legislative/reports/
2010_Benefit_Cost_Report.pdf.
26 U.S. General Accounting Office, Unfunded Mandates: Reform Act Has Had Little Effect on Agencies’ Rulemaking
Actions
, GAO/GGD-98-30, February 4, 1998.
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May 2004, GAO again reported that UMRA’s written statement requirements did not apply to
most major or economically significant final rules issued in 2001 and 2002, even though some of
the rules “appeared to have potential financial impacts on affected nonfederal parties similar to
those of the actions that were identified as containing mandates at or above the act’s
thresholds.”27 In February 2011, GAO reiterated these conclusions, noting that there are 14
reasons why a rule would not be considered a “mandate” under UMRA.28
Small Business Paperwork Relief Act
In June 2002, Congress enacted and the President signed the Small Business Paperwork Relief
Act of 2002 (P.L. 107-198). The act amended the Paperwork Reduction Act to, among other
things, require each agency to establish a single point of contact to act as a liaison for small
business concerns with regard to information collection and paperwork issues. It also directed
agencies to make a special effort to reduce information collection burdens for small businesses
with fewer than 25 employees. OMB was directed to publish in the Federal Register and make
available on the Internet an annual list of the compliance assistance resources available to small
businesses.29 The act also required agencies to report to Congress on the amount of penalty relief
provided to small businesses, and established a task force to study the feasibility of streamlining
information collection requirements on small businesses.30
Executive Order 12866
Centralized review of agencies’ regulations within the Executive Office of the President has been
part of the federal rulemaking process for more than 30 years, perhaps most notably by President
Ronald Reagan in Executive Order 12291.31 The current process is delineated in Executive Order
12866, which was issued by President William Clinton on September 30, 1993.32 The executive
order limits OIRA’s reviews to proposed and final rules published by agencies other than
independent regulatory agencies,33 and to actions identified by the rulemaking agency or OIRA as
“significant” regulatory actions, defined as those that were “economically significant” (e.g., those
with a $100 million impact on the economy) or that (1) were inconsistent or interfered with an
action taken or planned by another agency; (2) materially altered the budgetary impact of
entitlements, grants, user fees, or loan programs; or (3) raised novel legal or policy issues. OIRA
reviews between 500 and 700 regulatory actions per year.

27 U.S. General Accounting Office, Unfunded Mandates: Analysis of Reform Act Coverage, GAO-04-637, May 12,
2004.
28 Testimony of Denise M. Fantone, Director, Strategic Issues, U.S. Government Accountability Office, before the
Subcommittee on Technology, Information Policy, Intergovernmental Relations and Procurement Reform, House
Committee on Oversight of Government Management, available at http://www.gao.gov/products/GAO-11-385T.
29 These lists of compliance assistance resources are available at http://www.sba.gov/category/navigation-structure/
starting-managing-business/starting-business/business-law-regulations/contact-government-agency/fe.
30 See http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/sbpr2004.pdf for a copy of the task
force’s June 28, 2004, final report.
31 The President, “Executive Order 12291—Federal Regulation,” 46 Federal Register 13193, February 17, 1981.
32 The President, “Executive Order 12866—Regulatory Planning and Review,” 58 Federal Register 51735, October 4,
1993.
33 Independent regulatory agencies are, however, covered by requirements in Section 4 of Executive Order 12866
regarding regulatory planning.
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Executive Order 12866 generally requires that OIRA complete its reviews of proposed and final
rules within 90 calendar days, and requires both rulemaking agencies and OIRA to disclose
certain information about how the regulatory reviews were conducted. The executive order
requires the issuing agency to provide to OIRA the text of the draft rule, a description of why the
rule is needed, and a general assessment of the rule’s costs and benefits. For draft rules that are
“economically significant” (e.g., rules expected to have at least a $100 million annual impact on
the economy), it requires a detailed cost-benefit analysis, including an assessment of the costs and
benefits of “potentially effective and reasonably feasible alternatives to the planned regulation.”
The executive order states that agencies shall “propose or adopt a regulation only upon a reasoned
determination that the benefits of the intended regulation justify its costs,” and that unless a
statute requires another regulatory approach, “in choosing among alternative regulatory
approaches, agencies should select those approaches that maximize net benefits.”34
During the review process, OIRA analyzes the draft rule in light of the principles of the executive
order and discusses the rule with staff and officials at the rulemaking agency. At the end of the
review OIRA either concludes that the draft rule is consistent with the principles of the executive
order (the majority of the cases) or returns the rule to the agency “for further consideration.” If
the draft is a proposed rule, the agency may then publish an NPRM. If the draft is a final rule, the
agency may then publish a final rule and allow the rule to take effect.
Executive Order 12866 also includes several other notable requirements. For example, Section
5(a) of the order requires agencies to periodically review their existing significant regulations to
determine whether they should be modified or eliminated. In March 1995, President Clinton
reemphasized this requirement by directing each agency to conduct a page-by-page review of all
existing regulations. In June 1995, the President announced that 16,000 pages had been
eliminated from the Code of Federal Regulations, but GAO reported that the page elimination
totals in four agencies did not take into account pages that had been added while the eliminations
took place.35 GAO also reported that about half of the actions taken appeared to have no effect on
the burden felt by regulated entities, would have little effect, or could increase regulatory burden.
Executive Order 13422
On January 18, 2007, President George W. Bush issued Executive Order 13422, making the most
significant amendments to Executive Order 12866 since it was published.36 The most important
changes fell into five general categories: (1) a requirement that agencies identify in writing the
specific market failure or problem that warrants a new regulation, (2) a requirement that each
agency head designate a presidential appointee within the agency as a “regulatory policy officer”

34 In January 1996, OIRA published a document that described “best practices” for preparing the economic analyses
called for by the executive order. This document was revised and issued as guidance in 2000. In September 2003, OMB
and the Council of Economic Advisors finalized new guidance for agencies on regulatory analysis, refining and
replacing the 1996 “best practices” document. For a copy of this guidance, see http://www.whitehouse.gov/omb/
circulars/a004/a-4.pdf.
35 U.S. General Accounting Office, Regulatory Reform: Agencies’ Efforts to Eliminate and Revise Rules Yield Mixed
Results
, GAO/GGD-98-3, October 2, 1997.
36 The President, Executive Order 13422, “Further Amendment to Executive Order 12866 on Regulatory Planning and
Review,” 72 Federal Register 2763, January 23, 2007. Five years earlier, E.O. 13258 reassigned certain responsibilities
from the Vice President to the President’s chief of staff, but otherwise did not change the OIRA review process. See
Executive Order 13258, “Amending Executive Order 12866 on Regulatory Planning and Review,” 67 Federal Register
9385, February 28, 2002.
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who can control upcoming rulemaking activity in that agency, (3) a requirement that agencies
provide their best estimates of the cumulative regulatory costs and benefits of rules they expect to
publish in the coming year, (4) an expansion of OIRA review to include “significant guidance
documents,”37 and (5) a provision permitting agencies to consider whether to use more formal
rulemaking procedures in certain cases. 38 Some of these changes were highly controversial, and
in the first half of 2007, two House subcommittees held three oversight hearings on the order. A
provision was added to the appropriations measure funding OMB for FY2008 that would have
prevented the implementation of the executive order, but the measure was eliminated from the
final version of the legislation. On January 30, 2009, President Barack Obama issued Executive
Order 13497, which (among other things) revoked Executive Order 13422.39 As a result,
Executive Order 12866 was returned to the form when it was issued in September 1993. Less
than two months later, though, the Director of OMB instructed federal agencies to continue
sending their significant guidance documents to OIRA for review.40
OMB Bulletin on Agency Guidance
On the same day that President Bush issued Executive Order 13422, OMB issued a “Final
Bulletin for Agency Good Guidance Practices” that mirrored, in many respects, the guidance
provisions in the executive order.41 Unlike the order, however, the bulletin has not been revoked.
It generally requires agencies to (1) have written procedures for the approval of significant
guidance documents; (2) include certain standard elements in those documents (e.g., include a
citation to the statute or regulation that it interprets, and not include mandatory language such as
“shall” or “must”); (3) list those documents on the agencies’ websites and allow the public to
submit electronic comments; and (4) publish a notice in the Federal Register soliciting public
comments on “economically significant” documents. OMB later issued a memorandum to the
agencies on the implementation of the bulletin.42

37 The executive order defined a “significant guidance document” as a guidance document disseminated to regulated
entities or the public that may reasonably be anticipated to “(A) Lead to an annual effect of $100 million or more or
adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal governments or communities; (B) Create a serious
inconsistency or otherwise interfere with an action taken or planned by another agency; (C) Materially alter the
budgetary impact of entitlements, grants, user fees, or loan programs or the rights or obligations of recipients thereof;
or (D) Raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set
forth in this Executive order.”
38 For more information, see CRS Report RL33862, Changes to the OMB Regulatory Review Process by Executive
Order 13422
, by Curtis W. Copeland.
39 Executive Order 13497, “Revocation of Certain Executive Orders Concerning Regulatory Planning and Review,” 74
Federal Register 6113, February 4, 2009.
40 See http://www.whitehouse.gov/sites/default/files/omb/assets/memoranda_fy2009/m09-13.pdf for a copy of this
memorandum.
41 To view a copy of this bulletin, see http://www.whitehouse.gov/omb/memoranda/fy2007/m07-07.pdf; and Office of
Management and Budget, “Final Bulletin for Agency Good Guidance Practices,” 72 Federal Register 3432, January
25, 2007.
42 See http://www.whitehouse.gov/sites/default/files/omb/assets/regulatory_matters_pdf/m07-13.pdf for a copy of this
memorandum.
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Executive Order 13563
On January 18, 2011, President Obama issued Executive Order 13563 on “Improving Regulation
and Regulatory Review.”43 Section 1(b) states that “This order is supplemental to and reaffirms
the principles, structures, and definitions governing contemporary regulatory review that were
established in Executive Order 12866 of September 30, 1993.” Although similar to the 1993 order
in many respects, Executive Order 13563 contains some new provisions. For example, Section
2(b) of the order states that agencies should generally provide “timely online access to the
rulemaking docket on regulations.gov, including relevant scientific and technical findings, in an
open format that can be easily searched and downloaded. For proposed rules, such access shall
include, to the extent feasible and permitted by law, an opportunity for public comment on all
pertinent parts of the rulemaking docket, including relevant scientific and technical findings.”
Also, Section 6(b) of the new order requires agencies to initiate retrospective reviews of their
existing rules. Specifically, it states the following:
Within 120 days of the date of this order [i.e., by May 18, 2011], each agency shall develop
and submit to the Office of Information and Regulatory Affairs a preliminary plan, consistent
with law and its resources and regulatory priorities, under which the agency will periodically
review its existing significant regulations to determine whether any such regulations should
be modified, streamlined, expanded, or repealed so as to make the agency’s regulatory
program more effective or less burdensome in achieving the regulatory objectives.
As noted earlier in this report, Section 5(a) of Executive Order 12866 required agencies to submit
a plan for retrospective reviews to OIRA, so this provision appears to require agencies to update
those plans. On February 2, 2011, the OIRA Administrator issued guidance to federal agencies on
the implementation of the executive order, including these retrospective reviews.44 Several
agencies have published notices in the Federal Register requesting comments on their review
plans.45 On April 25, 2011, the OIRA Administrator issued another memorandum to the heads of
executive departments and agencies providing guidance on the processes through which agencies’
preliminary plans for retrospective reviews will be finalized.46 Among other things, agencies were
instructed to make their preliminary plans available to the public within two weeks of May 18,
2011, and should finalize those plans within 80 days after they are released.
Other Obama Administration Initiatives
The Obama Administration has also announced several other initiatives related to the rulemaking
process. For example:
• On April 7, 2010, the OIRA Administrator issued a memorandum to the
President’s Management Council instructing agencies to use the Regulation

43 Executive Order 13563, “Improving Regulation and Regulatory Review,” 76 Federal Register 3821, January 21,
2011.
44 See http://www.whitehouse.gov/sites/default/files/omb/memoranda/2011/m11-10.pdf.
45 See, for example, U.S. Department of Transportation, Office of the Secretary, “Regulatory Review of Existing DOT
Regulations,” 76 Federal Register 8940, February 16, 2011; and U.S. Environmental Protection Agency, “Improving
EPA Regulations,” 76 Federal Register 9988, February 23, 2011.
46 See http://www.whitehouse.gov/sites/default/files/omb/memoranda/2011/m11-19.pdf.
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Identification Number on all relevant documents to improve the transparency of
the rulemaking process.47
• On May 28, 2010, the OIRA Administrator issued two memoranda. One
memorandum to the heads of cabinet departments and agencies outlined the
availability and uses of “generic” information clearances under the Paperwork
Reduction Act as a way for agencies to meet the act’s requirements while
eliminating unnecessary burdens and delays.48 The other memorandum to the
President’s Management Council provided “guidance to agencies in compiling
and maintaining comprehensive electronic regulatory dockets on
Regulations.gov, in order to give members of the public improved access to
information on which agencies rely in making decisions relevant to
rulemaking.”49
• On June 18, 2010, the OIRA Administrator issued a memorandum to the heads of
cabinet departments and agencies setting out guidance to inform the use of
disclosure and simplification in the regulatory process (e.g., that disclosed
information should be as accessible and usable as possible, and that agencies
should consider using default rules as a substitute for or a supplement to
mandates and bans).50
• On January 18, 2011 (the same day that Executive Order 13563 was issued),
President Obama issued a memorandum on “Regulatory Flexibility, Small
Business, and Job Creation.”51 Among other things, the President directed
executive departments and agencies, and requested independent regulatory
agencies, to “give serious consideration to whether and how it is appropriate,
consistent with law and regulatory objectives, to reduce regulatory burdens on
small businesses, through increased flexibility” when they issue a proposed or
final rule that will have a significant economic impact on a substantial number of
small entities. When an agency chooses not to provide such flexibility, the
President directed the agency to “explicitly justify its decision not to do so in the
explanation that accompanies that proposed or final rule.”
• Also on January 18, 2011, President Obama issued a memorandum on
“Regulatory Compliance.”52 Among other things, the memorandum directed
agencies with broad compliance and enforcement responsibilities to develop
plans to make public information on those responsibilities accessible,
downloadable, and searchable online, and directed the Federal Chief Information
Officer and Chief Technology Officer to work with their agency counterparts to

47 See http://www.whitehouse.gov/sites/default/files/omb/assets/inforeg/IncreasingOpenness_04072010.pdf.
48 See http://www.whitehouse.gov/sites/default/files/omb/assets/inforeg/PRA_Gen_ICRs_5-28-2010.pdf.
49 See http://www.whitehouse.gov/sites/default/files/omb/assets/inforeg/edocket_final_5-28-2010.pdf.
50 See http://www.whitehouse.gov/sites/default/files/omb/assets/inforeg/disclosure_principles.pdf.
51 See http://www.whitehouse.gov/sites/default/files/omb/inforeg/for-agencies/POTUS-Memo-on-Regulatory-
Flexibility-Small-Business-and-Job-Creation-01-18-2011.pdf. See also The President, “Regulatory Flexibility, Small
Business, and Job Creation,” 76 Federal Register 3827, January 21, 2011.
52 See http://www.whitehouse.gov/sites/default/files/omb/inforeg/for-agencies/POTUS-Memo-on-Regulatory-
Compliance-01-18-2011.pdf. See also The President, “Regulatory Compliance,” 76 Federal Register 3825, January 21,
2011.
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explore how to generate and share enforcement and compliance information
across the government.
• On March 11, 2011, the OIRA Administrator, the Director of the Office of
Science and Technology Policy, and the U.S. Trade Representative issued a joint
memorandum on “Principles for Regulation and Oversight of Emerging
Technologies.”53 Areas covered by the memorandum included public
participation, benefits and costs, flexibility, and coordination.
• On April 13, 2011, the OIRA Administrator issued a memorandum to the heads
of executive departments and agencies providing final guidance on implementing
the Plain Writing Act of 2010 (P.L. 111-274).54 For example, by July 13, 2011,
agencies must create a plain writing section on their websites, and by October 13,
2011, they must write all new or substantially revised documents in plain writing.
Regulatory Reform Legislation Introduced During
the 112th Congress

The remainder of this report discusses various regulatory reform bills that had been introduced in
the 112th Congress as of the date of this report.55 The report first presents the bills that have been
introduced in the Senate, and then discusses the bills that have been introduced in the House of
Representatives. In some cases, virtually the same proposed legislation has been introduced in
both chambers (e.g., S. 299 and H.R. 10). For each bill, the report provides the bill number, the
title, the primary sponsor of the proposed legislation, the date that it was introduced, and the
committee(s) to which it was referred. The report then describes each bill’s main provisions, and
an “analysis” section for each bill discusses any similar or related legislation that has been
enacted or considered in the past, and other potentially relevant information.
Senate Bills
S. 128: the Small Business Paperwork Relief Act of 2011
S. 128, introduced by Senator David Vitter on January 25, 2011, and referred to the Senate
Committee on Homeland Security and Governmental Affairs, would amend the Paperwork
Reduction Act (adding a new subsection to 44 U.S.C. § 3506) and direct agency heads not to
impose civil fines for first-time paperwork violations by small business concerns, unless the

53 See http://www.whitehouse.gov/sites/default/files/omb/inforeg/for-agencies/Principles-for-Regulation-and-
Oversight-of-Emerging-Technologies-new.pdf.
54 See http://www.whitehouse.gov/sites/default/files/omb/memoranda/2011/m11-15.pdf.
55 The report includes only legislation designed to result in public laws, and does not include other types of legislation
(e.g., H.Res. 72, which directed certain standing committees to inventory and review existing, pending, and proposed
regulations and orders from agencies, particularly with respect to their effect on jobs and economic growth). It also
does not include bills designed to affect rulemaking in only one agency (e.g., H.R. 128, which would direct the
Secretary of Labor to revise regulations concerning the recording and reporting of occupational injuries and illnesses
under the Occupational Safety and Health Act of 1970). Neither does the report include bills focusing only on judicial
review of rules (e.g., H.R. 455, which would authorize a state official to file a legal brief challenging the
constitutionality of a rule under the Tenth Amendment).
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agency head determines that (1) there is potential for “serious harm to the public interest;” (2) the
detection of criminal activity would be impaired; (3) the violation is not corrected within six
months of written notification from the agency; (4) the violation involves an internal revenue law
or a law concerning the assessment or collection of any tax, debt, revenue, or receipt; or (5) the
violation presents a “danger to the public health or safety.” If a small business had previously
violated any of the same agency’s information collection requirements, the prohibition on civil
fines is not applicable. Even if the agency head determines that a violation presents a danger to
public health or safety, the bill allows an agency to decide not to impose a civil fine if the
violation is corrected within 24 hours after the small business owner is notified of the violation. If
an agency does not allow a small business 24 hours to correct such a violation, the agency head is
required to notify Congress within 60 days.
Analysis
Similar penalty-relief legislation has been introduced but not enacted for more than 10 years (e.g.,
S. 1116 in the 111th Congress and S. 281 in the 110th Congress, both of which were also
introduced by Senator Vitter). In 1999, the House of Representatives passed a bill (H.R. 391 in
the 106th Congress) that would have barred federal agencies from issuing penalties for most first-
time paperwork violations, but similar legislation was not passed by the Senate. Supporters of
such legislation in the past have said that agencies that promulgate new paperwork requirements
often forget that small businesses face numerous other paperwork requirements from other
agencies, and that small businesses are concerned about violating requirements that they do not
know about. Opponents, however, have asserted that the legislation could encourage companies
to violate the law, could prevent detection of serious violations, and that a single company could
be a “first-time” violator in different agencies.56 They also contended that agencies already
typically provide penalty relief for first-time paperwork violations except in the most egregious
cases.
As noted previously in this report, many information collections, recordkeeping requirements,
and third-party disclosures are contained in or are authorized by regulations as monitoring or
enforcement tools, and are the essence of many agencies’ regulatory provisions (e.g., the EPA
Toxics Release Inventory program). However, because S. 128 does not define such terms as
“serious harm to the public interest,” the bill appears to give agency heads substantial discretion
to decide when penalty relief will be provided. Also, although an agency must notify Congress
when a small business is not given 24 hours to correct a violation that “presents a danger to the
public health or safety,” if the agency head concludes that some other exception applies (e.g., that
the violation could cause “serious harm to the public interest”), then no such notification appears
to be necessary.
Congress has enacted legislation that is somewhat related to this issue. As noted earlier in this
report, Section 223(a) of SBREFA (enacted in March 1996) required federal agencies regulating
the activities of small entities to establish a policy or program for the reduction and, under
appropriate circumstances, the waiver of civil penalties for small entities. However, GAO
reported in February 2001 that the five agencies it examined had such policies, but some of the

56 See, for example, Ralph Lindeman, “Witnesses Debate Need for Legislation Giving Businesses Paperwork Relief,”
BNA Daily Report for Executives, September 27, 2006, p. A-45. The legislation under consideration at the time was S.
2656 and H.R. 5242, 109th Congress.
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policies gave small entities no more penalty relief than provided to large entities, and other
policies covered only certain types of actions.57
In 2002, Congress enacted the Small Business Paperwork Reduction Act (P.L. 107-198), which
established an interagency task force to study the feasibility of streamlining small business
paperwork requirements. (An amendment to this legislation that would have barred penalties for
first-time paperwork violations was defeated.) In its June 2004 final report, the task force
described opportunities to consolidate and coordinate information dissemination efforts,
described an interactive web-based system to help small businesses understand and comply with
paperwork requirements, and identified other opportunities to provide assistance to small
businesses.58 The legislation also required OMB and SBA to establish a list of compliance
assistance resources, and required each agency to establish a single point of contact for small
business concerns.59
S. 299: the Regulations from the Executive in Need of Scrutiny Act of 2011
S. 299, introduced by Senator Rand Paul on February 7, 2011, and referred to the Senate
Committee on Homeland Security and Governmental Affairs, would, if enacted, amend the
Congressional Review Act to require congressional approval of major rules before they could
take effect. The bill defines a “major rule” as any rule that the OIRA Administrator finds has
resulted in or is likely to result in: (1) an annual effect on the economy of $100 million or more;
(2) a major increase in costs or prices; or (3) significant adverse effects on competition,
employment, investment, productivity, innovation, or U.S. competitiveness. If a joint resolution
of approval of a major rule is not enacted by the end of 70 session days or legislative days after
the issuing agency submits its report on such rule to Congress, the rule shall be deemed not to be
approved and shall not take effect. However, the proposed legislation permits a major rule to take
effect for 90 calendar days without congressional approval if the President determines that the
rule is necessary because of an imminent threat to health or safety or other emergency, for the
enforcement of criminal laws, for national security, or to implement an international trade
agreement. S. 299 states that the enactment of a joint resolution of approval does not provide or
modify the statutory authority for the rule, and does not affect any claim against an alleged defect
in the rule. The bill also clarifies that, notwithstanding the CRA’s prohibition on judicial review,
“a court may determine whether a Federal Agency has completed the necessary requirements
under this chapter for a rule to take effect.”
Analysis
In contrast to the CRA disapproval process for all rules, the REINS Act would require
congressional approval before a major rule could take effect. (Non-major rules would take effect
as otherwise provided in law, and Congress could still disapprove non-major rules through the
CRA or some other legislative process.) Supporters of the legislation assert that it would allow
Congress to reclaim its legislative responsibility and better oversee the regulations being written

57 U.S. General Accounting Office, Regulatory Reform: Implementation of Selected Agencies’ Civil Penalty Relief
Policies for Small Entities
, GAO-01-280, February 20, 2001.
58 See http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/sbpr2004.pdf for a copy of this report.
59 See http://www.sba.gov/category/navigation-structure/starting-managing-business/starting-business/business-law-
regulations/contact-government-agency/fe for this information.
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pursuant to congressionally established requirements or authorities.60 Opponents, however, have
expressed concerns about the constitutionality of the REINS Act, about whether Congress has the
time or expertise necessary to approve or disapprove as many as 100 major rules each year, and
whether the legislation is even necessary for Congress to oversee the federal rulemaking
process.61
Somewhat similar legislation has been previously introduced but not acted upon. For example, in
the 106th Congress, S. 1348 (the Congressional Responsibility Act of 1999) would have required
Congress to enact a bill containing the text of a final rule (not just major rules) before it could
take effect. H.R. 110 in the 108th Congress (the “Congressional Responsibility Act of 2003”)
would have required a similar approach. Also in the 106th Congress, S. 2670 (the Congressional
Regulatory Reform Act of 2000) would have required Congress to enact a joint resolution of
approval before any major rule could take effect. In the 111th Congress, H.R. 3765 and S. 3826
(the Regulations from the Executive in Need of Scrutiny Act) would have also required Congress
to enact a joint resolution of approval before any major rule could take effect.
The provision in S. 299 clarifying that “a court may determine whether a Federal Agency has
completed the necessary requirements under this chapter for a rule to take effect” could make it
more likely that agencies would submit their covered rules to GAO and Congress.62 The courts
have generally interpreted the CRA to conclude that they do not have judicial review over
whether agencies must submit their rules to GAO and Congress before they can take effect.63
A February 2011 CRS report provided information on the number of major rules issued in recent
years, and noted that the 100 major rules issued in calendar year 2010 were considered major for
a variety of reasons—not just compliance costs.64 For example, 37 of the rules appeared to be
major because they involved transfers of funds from one party to another (most commonly,
federal funds to the recipients of those funds). Ten other rules appeared to be major because they
were expected to prompt consumer spending, or because they established fees for the
reimbursement of federal functions. Thirty-nine rules appeared major because they were expected
to result in at least $100 million in annual compliance costs, regulatory benefits, or both.

60 See, for example, testimony of David McIntosh, before the Subcommittee on Courts, Commercial and
Administrative Law, House Committee on the Judiciary, January 24, 2011, available at http://judiciary.house.gov/
hearings/pdf/McIntosh01242011.pdf; and testimony of Eric R. Claeys, Professor of Law, George Mason University,
before the Subcommittee on Courts, Commercial and Administrative Law, House Committee on the Judiciary, March
8, 2011, available at http://judiciary.house.gov/hearings/pdf/Claeys03082011.pdf.
61 See, for example, testimony of Sally Katzen, before the Subcommittee on Courts, Commercial and Administrative
Law, House Committee on the Judiciary, January 24, 2011, available at http://judiciary.house.gov/hearings/pdf/
Katzen01242011.pdf; and testimony of David Goldston, Director of Government Affairs, Natural Resources Defense
Council, before the Subcommittee on Courts, Commercial and Administrative Law, House Committee on the Judiciary,
March 8, 2011, available at http://judiciary.house.gov/hearings/pdf/Goldston03082011.pdf.
62 See CRS Report R40997, Congressional Review Act: Rules Not Submitted to GAO and Congress, by Curtis W.
Copeland, which reported that many final rules were not submitted to GAO or Congress from 1999 through 2009.
63 The CRA (5 U.S.C. § 805) states that “No determination, finding, action, or omission under this chapter shall be
subject to judicial review.” See Montanans For Multiple Use v. Barbouletos, 568 F.3d 225 (D.C. Cir. 2009).
64 CRS Report R41651, REINS Act: Number and Types of “Major Rules” in Recent Years, by Curtis W. Copeland and
Maeve P. Carey.
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S. 358: the Regulatory Responsibility for Our Economy Act of 2011
S. 358, introduced by Senator Pat Roberts on February 15, 2011, and referred to the Senate
Committee on Homeland Security and Governmental Affairs, would, if enacted, put into statute
many of the broad regulatory goals enunciated in Executive Orders 12866 and 13563 (e.g., that
federal agencies should adopt regulations only upon a reasoned determination that the benefits
justify the costs, tailor regulations to accomplish regulatory objectives while imposing the least
burden on society, select regulatory approaches that maximize net benefits, and allow for public
participation). However, because the bill defines a covered “agency” to include independent
regulatory agencies like the FCC and the SEC, S. 358 would be broader than the executive orders
(which do not cover independent regulatory agencies). S. 358 also contains some new
requirements on rulemaking agencies. For example, it would require a minimum of 60 days for
public comment, unless a rule is designated by OIRA as an emergency rule. Also, if an interim
final rule is issued under the APA’s “good cause” exception in 5 U.S.C. § 553(b)(B) and
challenged in a U.S. court, the issuing agency would be required to delay the implementation of
the rule until final disposition of the challenge.
Section 8 of the bill would put into statute, broaden, and modify the requirements for
retrospective rule review that are in Executive Order 13563. Specifically, agencies (including
independent regulatory agencies) would be required to develop and submit to the “appropriate
congressional committees” a “preliminary plan” for reviewing “significant” rules issued by the
agencies every five years to determine if they should be “modified, streamlined, expanded, or
repealed.” “Significant” regulatory actions are defined as they are in Executive Orders 12866 and
13563 (e.g., rules expected to have a $100 million impact on the economy or conflict with
another agency’s actions), but also includes regulatory actions that are expected to “add to the
national debt.” Upon completion of any such retrospective review, the agency must submit a
report to the appropriate congressional committees describing the outcome of the review.
Analysis
Shortly after Senator Roberts introduced S. 358, he said the bill would “strengthen and codify
President Obama’s Executive Order from January 18 (Executive Order 13563),” and would
ensure that provisions in the executive order would be implemented.65 He also said that the
legislation would improve on the executive order by including independent regulatory agencies
and eliminating other “loopholes” (e.g., eliminating a provision stating that agencies may
consider values that are difficult to quantify, such as equity, human dignity, fairness, and
distributive impacts). However, S. 358 states that agencies may “take into account benefits and
costs, both quantitative and qualitative,” so agencies could arguably include equity, human
dignity, fairness, and distributive effects as “qualitative” benefits. Also, some of the standards in
both the executive order and the proposed legislation may conflict with each other. For example,
a regulatory option that imposes the “least burden on society” may not be the option that will
“maximize net benefits.” 66

65 Senator Pat Roberts, “Regulatory Responsibility for Our Economy Act of 2011,” remarks in the Senate,
Congressional Record, daily edition, February 16, 2011, p. S766.
66 For example, one regulatory option could have estimated costs of $50 million and benefits of $100 million, yielding
net benefits of $50 million. Another regulatory option could have estimated costs of $100 million and benefits $200
million, yielding net benefits of $100 million. The first option would impose the least burden, while the second option
would produce the largest net benefits.
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Even if S. 358 is enacted, significant regulations issued by independent regulatory agencies
would not be reviewed by OIRA under the procedures currently in Section 6 of Executive Order
12866, so their regulations would not be independently analyzed for consistency with these
legislative standards. Those agencies’ rules could be made subject to review by OIRA by statute
or by the President amending Executive Order 12866. As discussed in more detail later in this
report, however, doing so would put independent regulatory agencies more under the control of
the President than ever before.
The retrospective review requirements in S. 358 differ somewhat from the requirements in
Executive Order 13563. For example, whereas the executive order requires agencies to submit
their preliminary regulatory review plans to OIRA, the bill would have those plans submitted to
the appropriate congressional committees. Also, the executive order does not specify how
frequently these “periodic” reviews would occur, whereas S. 358 specifies that the reviews must
be done once every five years. Finally, it is unclear what effect the addition of a new category to
the definition of “significant regulatory actions” (i.e., actions that are expected to “add to the
national debt”) will have on the number of rules that would be retrospectively reviewed.
S. 474: the Small Business Regulatory Freedom Act of 2011
S. 474, introduced by Senator Olympia Snowe on March 3, 2011, and referred to the Senate
Committee on Homeland Security and Governmental Affairs, proposes to make several
amendments to the Regulatory Flexibility Act (RFA). Section 3 of the legislation would add a
definition of “economic impact” (at 5 U.S.C. § 601(a)), defining it (in the context of a proposed
or final rule) as any direct economic effects on small entities and “any indirect economic effect on
small entities, including potential job creation or job loss, that is reasonably foreseeable and that
results from the rule, without regard to whether small entities are directly regulated by the rule.”
Section 4 of the bill would permit judicial review of agency compliance with the initial regulatory
flexibility analysis requirements in Section 603 of the act for proposed rules.67 (Currently, judicial
review is only available for final regulatory flexibility analyses.) Small entities must seek such
review before the close of the public comment period provided for in the proposed rule. Section 4
would also permit courts to issue an injunction prohibiting an agency from taking any action
relating to the rule until it is in compliance with the RFA’s requirements for initial and final
regulatory flexibility analysis.68
Section 5 of S. 474 would amend Section 610 of the RFA and require each agency to establish a
plan for the periodic review of each rule that the agency head determines has a significant
economic impact on a substantial number of small entities, “without regard to whether the agency
performed an analysis under section 604 with respect to the rule.” (At the present time, it is
unclear whether agencies must review all of their rules that currently have such impacts, or only
those rules that were expected to have such impacts at the time they were issued.) Section 5 also
requires agencies to review any small entity compliance guides that were required to be published
under Section 212 of SBREFA. Reviews of existing rules and compliance guides would be
required to be completed within eight years after the date of enactment, and every subsequent

67 Judicial review is already permitted with regard to agency compliance with sections 601, 604, 605(b), 608(b), and
610, and agency compliance with sections 607 and 609(a) is permitted in connection with judicial review of section
604. See 5 U.S.C. § 611(a)(1).
68 Courts are already permitted to remand the rule to the agency and to defer enforcement of the rule against small
entities unless the court finds that continued enforcement of the rule is in the public interest. See 5 U.S.C. § 611(a)(4).
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eight years. Rules and compliance guides issued after the date of enactment would be required to
be completed within eight years “after the date the final rule is published in the Federal
Register
.” (Agencies are allowed to extend these deadlines for up to two years, if necessary.) The
proposed legislation also details the contents of those reviews and public notices of the reviews.
Six months after the deadline for review, if the SBA Chief Counsel for Advocacy determines that
an agency has failed to complete the required review, “each rule issued by the agency that the
head of the agency determined under subsection (a) has a significant economic impact on a
substantial number of small entities shall immediately cease to have effect.”
Currently, only rules issued by EPA, OSHA, and the soon-to-be-established CFPB are required to
hold SBREFA review panels before publishing a proposed rule that is expected to have a
SEISNSE. Section 6 of the S. 474 would expand the requirement for review panels to all federal
agencies.
Currently, the RFA’s requirements only apply to proposed rules and final rules for which the
agency published a notice of proposed rulemaking. Section 7 of the proposed legislation would
expand the scope of the RFA to include significant guidance documents as defined in OMB’s
final bulletin for agency good guidance procedures.69
The bill would also require agencies’ initial and final regulatory flexibility analyses to be more
detailed, and would require quantification of those analyses to the extent possible. It would also
require agencies to notify the SBA Office of Advocacy of any draft rules that are expected to have
a SEISNSE when the rule is submitted to OIRA for review or at least three months before
publication. Finally, the bill would establish qualifications for the Chief Counsel for Advocacy,
and would permit the office to comment on any regulatory action that affects small businesses,
without regard to whether the agency is required to file a notice of proposed rulemaking.
S.Amdt. 299 to S. 493, the SBIR/STTR Reauthorization Act of 201170
S.Amdt. 299, introduced by Senator Olympia Snowe on April 14, 2011, and referred to the Senate
Committee on Small Business and Entrepreneurship, is very similar to Senator Snowe’s original
bill, S. 474. Some of the differences are:
• S.Amdt. 299 defines “indirect” economic impact somewhat differently (“the
reasonably foreseeable economic effects of the rule on small entities that (i)
purchase products or services from, sell products or services to, or otherwise
conduct business with entities directly regulated by the rule; (ii) are directly
regulated by other governmental entities as a result of the rule; or (iii) are not

69 The bulletin defines a “significant” guidance document” as a guidance document disseminated to regulated entities or
the public that may reasonably be anticipated to “(1) lead to an annual effect on the economy of $100 million or more
or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal governments or communities; (2) create a serious
inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the
budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof;
or (4) raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set
forth in Executive Order 12866.” See U.S. Office of Management and Budget, “Final Bulletin for Agency Good
Guidance Practices,” 72 Federal Register 3432, January 25, 2007, available at http://www.whitehouse.gov/sites/
default/files/omb/assets/regulatory_matters_pdf/012507_good_guidance.pdf.
70 Among other things, S. 493 would reauthorize through FY2019 the SBA’s Small Business Innovation Research
(SBIR) and Small Business Technology Transfer (STTR) programs.
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directly regulated by the agency as a result of the rule but are otherwise subject to
other agency regulations as a result of the rule”).
• S.Amdt. 299 requires agencies to review their rules and compliance guides
within nine years of the date of enactment (instead of eight years in S. 474), and
every nine years thereafter. It does not allow agencies to extend the deadline if
they are unable to complete their reviews within this time period.
• S.Amdt. 299 requires the Inspector General (IG) for the agency (not the SBA
Office of Advocacy) to determine whether the agency has conducted the required
retrospective review “appropriately” (not just whether the required reviews have
been completed). The IG is required to notify the agency of any deficiency, and if
the agency does not address the issues within six months, the IG is required to
notify Congress within 30 days. Thirty days after that notice, “an amount equal to
1 percent of the amount appropriated for the fiscal year to the appropriations
account of the agency that is used to pay salaries shall be rescinded.” (In S. 474,
the rule would go out of effect if the analysis was not conducted appropriately.)
• Instead of subjecting all agencies to the panel requirements in Section 609 of the
RFA, S.Amdt. 299 would require the SBA Chief Counsel for Advocacy to
designate three additional agencies each year for three years “based on the
economic impact of the rules of the agency on small entities.”
S.Amdt. 299 does not establish qualifications for the Chief Counsel for Advocacy, but adds an
authorization of appropriation for FY2012 through FY2013 of the costs associated with these
amendments and repeals certain statutory provisions to offset those costs.
On May 2, 2011, the Senate Majority Leader filed for cloture on S. 493, citing concerns about
“extraneous amendments” to the bill. According to press accounts, one of the primary areas of
concern was S.Amdt. 299, particularly the requirement for retroactive review.71 As a result, it
appears unlikely that S. 493 and its amendments will come to a vote in the 112th Congress.
Analysis
Some of the provisions in S. 474 were in proposed legislation that Senator Snowe sponsored
during the 111th Congress (S. 3103, the Small Business Job Creation Act of 2010), but which was
not enacted. Among other things, that legislation would have amended the RFA to require (1)
each initial regulatory flexibility analysis to estimate the economic impact of the proposed rule on
small businesses; (2) an agency to notify the SBA Chief Counsel for Advocacy of any draft rules
that may have a significant economic impact on a substantial number of small businesses; (3)
each final regulatory flexibility analysis to include the agency’s response to any comments filed
by the Chief Counsel in response to the proposed rule; and (4) the agency to publish the final
regulatory flexibility analysis on its website. It also would have required each agency to place on
its website its plan for the periodic review of rules.
In a press release issued when she introduced S. 474, Senator Snowe said the bill would “ensure
that federal agencies fully consider small business economic impact during the regulatory

71 Dean Scott, “Snowe’s Regulatory Review Plan May Stall if Reid Shelves Small Business Bill,” BNA Daily Report
for Executives
, May 4, 2011, p. A-30.
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process.”72 In that same press release, a representative of the National Federation of Independent
Businesses was quoted as saying that the bill would “help prevent the threat of costly new
regulations.” However, representatives from the Center for Progressive Reform said that S. 474
would effectively give regulatory veto power to the SBA Chief Counsel for Advocacy, and that
agencies have insufficient staff and resources to take on additional rulemaking requirements.73
To the extent that agencies are already conducting the retrospective reviews of all of their rules
that are required by Executive Order 13563, the review requirements in S. 474 (focusing only on
rules that have a SEISNSE) may be viewed as a subset of the broader requirement. However, the
retrospective reviews that would be required under S. 474 differ from the executive order’s
reviews in several other respects: (1) the S. 474 reviews are required to be completed within eight
years, and must be repeated at least every subsequent eight years; (2) the S. 474 reviews include
compliance guides, not just rules; (3) the reviews are to be overseen by an outside entity (SBA’s
Office of Advocacy or, in the case of S. Amnt. 299, the agencies’ IGs); and (4) there are
potentially severe consequences for failing to conduct the required reviews.
Regarding those consequences, if the SBA Chief Counsel for Advocacy concludes that an agency
has “failed to complete the review” required, then “each rule issued by the agency that the head of
the agency determined under subsection (a) has a significant economic impact on a substantial
number of small entities shall immediately cease to have effect.” Arguably, therefore, if an agency
has 50 rules that the agency head concludes have a SEISNSE, and the SBA Chief Counsel for
Advocacy concludes that the agency did not “complete” the review of all of them within the eight
year period (e.g., the agency reviews only 40 of the 50 rules), then all 50 of the rules would
“cease to have effect.” The somewhat different approach outlined in S.Amdt. 299 (determinations
by the agency IGs as to whether the retrospective reviews had been done “appropriately,” with
subsequent periods for the agencies to respond to those determinations) seems less abrupt, and
may raise fewer concerns about whether one agency (SBA) can take another agency’s rules out of
effect. Nevertheless, S.Amdt. 299 does not indicate how the IGs should determine whether the
agencies’ retrospective reviews had been done “appropriately.”
The implications of including in the reviews any small entity compliance guides that are
“required to be published by the agency under section 212” of SBREFA are unclear. For example,
if an agency designated an existing compliance guide as a Section 212 guide (as GAO reported
agencies have done), then the agency arguably would not have to review the guide because it was
not “required to be published” under Section 212 of SBREFA.
The implications of expanding the RFA to include significant guidance documents are also
unclear. On one hand, this change could significantly expand the scope of the RFA, for agencies
issue thousands of guidance documents each year that are intended to clarify the requirements in
related statutes and regulations.74 Also, the OMB bulletin on guidance documents states that the
definition of a guidance document

72 See http://snowe.senate.gov/public/index.cfm/pressreleases?ContentRecord_id=b871d6b2-4df2-40ac-b096-
6c70d403b15d&ContentType_id=ae7a6475-a01f-4da5-aa94-0a98973de620&Group_id=2643ccf9-0d03-4d09-9082-
3807031cb84a&MonthDisplay=3&YearDisplay=2011.
73 Jonathan Riskind, “Environmental Setbacks Feared in Snowe Bill,” Portland Press Herald, March 30, 2011, p. B3.
74 For example, the Occupational Safety and Health Administration indicated in 2000 that it had issued 3,374 guidance
documents since March 1996. See U.S. Congress, House Committee on Government Reform, Non-Binding Legal
Effect of Agency Guidance Documents
, 106th Cong., 2nd sess., H.Rept. 106-1009 (Washington: GPO, 2000), p. 5.
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is not limited only to written guidance materials and should not be so construed. OMB
recognizes that agencies are experimenting with offering guidance in new and innovative
formats, such as video or audio tapes, or interactive web-based software. The definition of
“guidance document” encompasses all guidance materials, regardless of format.75
On the other hand, the number of “significant” guidance documents that would be covered by S.
602 could be quite small. First, guidance documents, unlike regulations, cannot have a binding
effect on the public.76 Therefore, it is not clear how guidance can be expected to have the effects
delineated in the definition of a “significant” guidance document (e.g., “lead to an annual effect
of $100 million or more” or “materially alter the budgetary impact” of entitlements or grants).
Even if an agency concludes that its guidance is “significant,” the agency may decide not to
conduct a regulatory flexibility analysis because it concludes that the guidance does not have a
“significant” economic effect on a “substantial” number of small entities.
Requiring all agencies to hold SBREFA review panels before proposing a rule that is expected to
have a SEISNSE could significantly slow down the process of issuing such rules. On the other
hand, including the views of small entities early in the rule development process may ease the
path of subsequent implementation. Expanding the requirements for such panels could also have
unexpected results. For example, when EPA was required to hold review panels for its rules, the
percentage of rules that the agency certified as not having a SEISNSE increased substantially.77
The slower expansion of the panel requirements advocated in S.Amdt. 299 (three additional
agencies per year) could allow for monitoring of those kinds of effects.
S. 602: the Clearing Unnecessary Regulatory Burdens (CURB) Act
S. 602, introduced by Senator Susan Collins on March 16, 2011, and referred to the Senate
Committee on Homeland Security and Governmental Affairs, would, if enacted, codify and
expand the cost-benefit analysis requirements that are currently in Executive Order 12866.
Specifically, the bill would generally require all agencies (including independent regulatory
agencies) to submit cost-benefit analyses to OIRA for their significant regulatory actions.78 A
“significant regulatory action” is defined in the bill as it currently is defined in Executive Order
12866: an action that is likely to result in a regulation that may

75 Office of Management and Budget, “Final Bulletin for Agency Good Guidance Practices,” p. 3434.
76 See, for example, Appalachian Power Co. v. EPA, 208 F.3d 1015 (D.C. Cir. 2000); Chamber of Commerce v.
Department of Labor
, 174 F.3d 206 (D.C. Cir. 1999); Robert A. Anthony, “Interpretive Rules, Policy Statements,
Guidances, Manuals, and the Like—Should Agencies Use Them to Bind the Public?” Duke Law Journal, vol. 41
(1992), p. 1311.
77 See U.S. General Accounting Office, Regulatory Flexibility Act: Implementation in EPA Program Offices and
Proposed Lead Rule
, GAO/GGD-00-193, September 20, 2000. GAO reported that EPA certified 78% of its rules in the
two years prior to the enactment of SBREFA, and certified 96% of its rules in the two years after SBREFA was
enacted.
78 Section 2(a)(2) of S. 602 defines an “agency” as having the same meaning as Section 3502(1) of title 44, United
States Code. That provision defines an agency as “any executive department, military department, Government
corporation, Government controlled corporation, or other establishment in the executive branch of the Government
(including the Executive Office of the President), or any independent regulatory agency, but does not include - (A) the
Government Accountability Office; (B) Federal Election Commission; (C) the governments of the District of Columbia
and of the territories and possessions of the United States, and their various subdivisions; or (D) Government-owned
contractor-operated facilities, including laboratories engaged in national defense research and production activities.”
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(A) have an annual effect on the economy of $100,000,000 or more or adversely affect in a
material way the economy, a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal governments or communities;
(B) create a serious inconsistency or otherwise interfere with an action taken or planned by
another agency; (C) materially alter the budgetary impact of entitlements, grants, user fees,
or loan programs or the rights and obligations of recipients thereof; or (D) raise novel legal
or policy issues arising out of legal mandates and the priorities, principles, and provisions of
this section.
The bill would require agencies to quantify regulatory benefits and costs “to the extent feasible,”
and to assess the costs and benefits “potentially effective and reasonably feasible alternatives to
the planned significant regulatory action.”
The bill would also codify and expand current OMB policies regarding guidance documents.79
For example, it would require each agency (including independent regulatory agencies) to
develop or have written procedures for the approval of significant guidance documents, and
require each such guidance document to include certain elements (e.g., cite the related statutory
or regulatory provision, and not include mandatory terms such as “shall” or “must”). Each agency
would also be required to (1) maintain an electronic list (with links to the text) of all significant
guidance documents in effect, (2) allow the public to electronically submit comments regarding
such documents, and (3) publish a notice in the Federal Register and solicit comments regarding
“economically significant” guidance documents (defined as a “significant guidance document that
may reasonably be anticipated to lead to an annual effect on the economy of $100,000,000 or
more or adversely affect in a material way the economy or a sector of the economy, except that
economically significant guidance documents do not include guidance documents on Federal
expenditures and receipts”). Exceptions would be permitted when soliciting comments is not
feasible (e.g., emergencies or deadlines).
Finally, the bill would add a new section to the Regulatory Flexibility Act stating that if a small
entity so requests, a Regional Advocate of the SBA Office of Advocacy must request that an
agency reduce or waive a civil penalty if the Regional Advocate concludes that the penalty was
the result of a first-time violation of a reporting requirement, and the reduction or waiver is
consistent with conditions described in Section 223 of SBREFA.80 The agency must make a
written determination within 60 days, and the Chief Counsel for Advocacy is required to submit
an annual report to Congress on such requests and decisions.
Analysis
The cost-benefit analysis requirements in S. 602 would expand the requirements in Executive
Order 12866 in several ways. First, it would include independent regulatory agencies like the
Securities and Exchange Commission and the Federal Communications Commission, which are
not currently covered by the analytical requirements in the order, and which are not currently
required to submit their rules for review to OIRA. Requiring independent regulatory agencies to

79 OMB’s current policies are in its “Final Bulletin for Agency Good Guidance Practices,” available at
http://www.whitehouse.gov/omb/memoranda/fy2007/m07-07.pdf.
80 Section 223 of SBREFA states that agencies’ penalty relief policies and programs shall contain certain conditions
and exclusions, which may include such factors as (1) requiring the small entity to correct the violation within a
reasonable period of time; (2) limiting the applicability to violations discovered through a compliance assistance or
audit program; or (3) excluding violations that pose serious health, safety, or environmental threats.
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submit cost-benefit analyses for their significant rules to OIRA could put them more under the
control of the President than ever before—often in direct contravention of the statutes that created
them in the first place.81 Second, even among agencies that are already covered by Executive
Order 12866, S. 602 would greatly expand the number of rules subject to cost-benefit analysis.
Currently, these agencies are required to prepare cost-benefit analyses only for “economically
significant” rules that are submitted to OIRA (about 100 per year). S. 602 expands this
requirement to all “significant” rules (about 650 per year). With the expansion of OIRA reviews
to independent regulatory agencies and all significant regulatory actions, it is unclear whether
current OIRA staffing would be sufficient to analyze and comment on all of these cost-benefit
analyses.82
Also, the guidance document provisions in S. 602 would include independent regulatory agencies
for the first time (they are not currently covered by the OMB bulletin on guidance documents).
Although the legislation does not require independent regulatory agencies to submit their
significant guidance documents to OIRA for review, if S. 602 is enacted, OMB could amend its
current procedures and require them to do so. Again, however, resource constraints could become
an issue if S. 602 was enacted.
The penalty relief provisions in the bill focus on first-time violations of paperwork requirements,
as does S. 128. However, whereas S. 128 would generally require agencies to provide penalty
relief for first-time violations (with some exceptions), S. 602 appears to give federal agencies
more discretion to decide whether penalty relief should be provided.
S. 817: Independent Agencies and the Unfunded Mandates Reform Act
S. 817, introduced by Senator Rob Portman on April 14, 2011, and referred to the Senate
Committee on the Budget, would, if enacted, amend the Congressional Budget and Impoundment
Control Act of 1974 (as amended by the Unfunded Mandates Reform Act (UMRA) of 1995) and
change the definition of an “agency” to include independent regulatory agencies. The bill would,
however, exempt from titles, II, III, or IV of UMRA “rules that concern monetary policy
proposed or implemented by the Board of Governors of the Federal Reserve System or the
Federal Open Market Committee.”
Analysis
Legislation has been previously introduced to amend UMRA (e.g., H.R. 2255 in the 111th
Congress, and H.R. 6964 in the 110th Congress), but the scope of those bills was broader than S.
817, and they were not enacted. As noted earlier in this report, several GAO reviews have
indicated that UMRA currently covers only a small portion of the “economically significant”
rules that agencies issue. Therefore, expanding the coverage of the act to include rules issued by
independent regulatory agencies would likely increase the number of written reports that agencies

81 Notably, although S. 602 would require independent regulatory agencies to submit cost-benefit analyses for their
significant regulatory actions to OIRA, it does not require them to submit the regulatory actions themselves. Also, S.
602 states that the cost-benefit analyses must be submitted “at such times specified by the Administrator.” Therefore,
the OIRA Administrator could greatly limit the effect of this requirement (e.g., requiring submission of the analyses
after the rules have been published and taken effect).
82 OIRA currently has about 50 staff members, of which about 30 do regulatory reviews and reviews of about 3,000
agency information collection requests per year.
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will be required to submit. However, as GAO also pointed out, there are many other reasons why
rules are not covered by UMRA, and UMRA written reports cover the same types of issues that
are already covered by other rulemaking requirements. Therefore, the net effect in terms of
additional information may be quite small.
House Bills
H.R. 10: the Regulations from the Executive in Need of Scrutiny (REINS) Act
of 2011

H.R. 10, introduced by Representative Geoff Davis on January 20, 2011, and referred to the
House Committee on the Judiciary and the House Committee on Rules, would, like its
counterpart S. 299, amend the Congressional Review Act to require congressional approval of
major rules before they could take effect. Because the texts of the two bills are virtually identical,
the summary and analysis provided above in relation to S. 299 also applies to H.R. 10, and will
not be repeated here.
H.R. 213: the Regulation Audit Revive Economy (RARE) Act of 2011
H.R. 213, introduced by Representative Don Young on January 7, 2011, and referred to the House
Committee on Oversight and Government Reform and the House Committee on the Judiciary,
would, if enacted, impose a moratorium on all federal agencies taking any “regulatory rulemaking
action” beginning 30 days after the date of enactment and ending on the later of (1) 14 days after
the Director of the Office of Management and Budget (OMB) publishes a report on a review of
rules; or (2) two years after the date of enactment. In producing the report, the OMB Director is
required to review each covered rule being enforced as of the date of enactment, and report on (1)
the estimated total annual costs and benefits of each rule, “to the extent feasible”; (2)
recommendations for reform of an existing rule; and (3) the total number of rules being enforced.
No private right of action is allowed for violations of the act.
The bill allows exceptions from the moratorium for rules necessary because of an imminent threat
to health or safety or other emergency, for the enforcement of criminal laws, or to establish or
enforce statutory rights against discrimination. The term “regulatory rulemaking action” is
defined as any rule normally published in the Federal Register, but excluding any action that the
head of the agency and the Administrator of OIRA certify is limited to (1) reducing regulatory
burdens; (2) military or foreign affairs functions, implementing international trade agreements, or
agency management or personnel, loans, grants, benefits, or contracts; or (3) routine
administrative functions of the agency. Also excluded are agency actions that supervise or insure
depository institutions and other entities, and actions that the agency head certifies are limited to
implementing the internal revenue laws or would otherwise qualify for an exemption under the
act. (The definition of a “rule” in the act also excludes other actions, including aviation safety,
monetary policy, and license applications.)
Analysis
Other regulatory moratorium legislation has been introduced in the past, but not enacted. For
example, in the 104th Congress, H.R. 450 would have imposed a 13-month moratorium on
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rulemaking (from November 20, 1994, to December 31, 1995). Although the bill was passed by
the House of Representatives in early 1995, its Senate counterpart (S. 219) was not passed.
As noted earlier in this report, federal agencies typically issue between 3,000 and 4,000 final rules
each year. It is unclear how many rules each year would fall under the various exemptions and
exclusions in H.R. 213, so it is unclear how many rules would be subject to the proposed
moratorium. It is also unclear how many rules are currently being “enforced,” because some new
rules replace earlier rules, and some existing rules are no longer applicable. Nevertheless, it is
likely that a moratorium of any breadth or duration (at least two years in H.R. 213) would affect
the ability of some agencies to carry out their missions, and could affect the general public. For
example, some agency regulations establish fees that fund certain government operations (e.g.,
the inspections of nuclear power plants by the Nuclear Regulatory Commission, and the
processing of passport applications by the Department of State). Other regulations transfer federal
funds to Medicare and Medicaid providers, so a moratorium affecting those rules could result in
reduced health care for the affected populations. Most of the 3,000 final rules that are typically
issued each year are administrative in nature (e.g., Coast Guard temporary safety zones and traffic
separation schedules), and these kinds of rules are often welcomed by the regulated communities.
The broadest requirement for cost-benefit analysis is in Executive Order 12866, which required
cabinet departments and independent agencies (e.g., EPA) to analyze the costs and benefits of
their “economically significant” rules before being submitted to OIRA for review. Non-
economically significant rules are not covered by this requirement, nor are any rules issued by
independent regulatory agencies (e.g., the Federal Reserve System or the Securities and Exchange
Commission). Also, OMB has said in the past that cost and benefit estimates prepared for rules
adopted more than 10 years earlier “are of questionable relevance now.”83 Therefore, OMB will
likely not have readily available cost or benefit estimates for some of the covered rules that are
currently being enforced, and may focus its report on the major rules issued in the previous 10
years for which cost-benefit information is available.
H.R. 214: the Congressional Office of Regulatory Analysis Creation and Sunset
and Review Act of 2011

Title I of H.R. 214, which was introduced by Representative Don Young on January 7, 2011, and
referred to the House Committee on the Judiciary and the House Committee on Oversight and
Government Reform, would, if enacted, establish a Congressional Office of Regulatory Analysis
(CORA), with the Director of that office appointed by the Speaker of the House of
Representatives and the majority leader of the Senate (after considering recommendations from
two House and Senate committees). The Director could be removed by a concurrent resolution of
Congress. H.R. 214 would transfer to the CORA Director the GAO Comptroller General’s
responsibilities for the congressional review of agency rules that was provided in the
Congressional Review Act (i.e., receiving all rules and writing a report on each major rule). The
bill would require the CORA Director’s report on each major rule to include an analysis of the
rule, including its potential benefits and costs and an analysis of less costly alternatives. It also
would require the office to (1) conduct an assessment and analysis of any non-major rule upon

83 See http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/2003_cost-ben_final_rpt.pdf, p. 7. In its
2010 report to Congress, OMB continues to say that estimates that are more than 10 years old are of “questionable
relevance.” See http://www.whitehouse.gov/sites/default/files/omb/legislative/reports/2010_Benefit_Cost_Report.pdf,
p. 11.
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request by a congressional committee or Member; and (2) issue an annual report including
estimates of the total costs and benefits of all existing federal regulations. Title I would also
amend the Unfunded Mandates Reform Act of 1995 to transfer to the CORA Director the
responsibilities of the Director of the Congressional Budget Office (CBO) to: (1) compare agency
and CBO estimates of the costs of regulations implementing an act containing a federal mandate;
and (2) receive agency statements to accompany significant regulatory actions.
Title II of H.R. 214 sets forth proposed requirements for agencies (including independent
regulatory agencies) to review their significant rules to determine whether they should be
continued without change, modified, consolidated with another rule, or terminated. It defines a
“significant rule” as one that the OIRA Administrator determines (1) results in an annual effect on
the economy of $100 million or more; (2) is a major rule; or (3) was issued pursuant to a
“significant regulatory action” as that term is defined in Executive Order 12866. The bill provides
for the sunset review of a rule that is not a significant rule upon petition by a person adversely
affected, or at the request of a congressional committee or a majority of the majority or non-
majority party members of such a committee (unless the OIRA Administrator determines that
such reviews are not in the public interest).
Title II of H.R. 214 would also require the OIRA Administrator to (1) inventory existing rules; (2)
publish a list of covered rules and deadlines for their sunset review within seven years; (3)
prioritize rules for review based on specified criteria, including the rule’s cost to those regulated
and the burden of reviewing it; (4) group related rules for simultaneous review; (5) provide
guidance to agencies on conducting sunset reviews; and (6) provide feedback to agencies on
sunset reviews and results. It also requires new significant rules to be reviewed within three years
after taking effect. Each agency would be required to (1) conduct a sunset review of its significant
rules; (2) publish a sunset review notice, consider public comments, and issue a preliminary
report; and (3) issue a final report recommending that a rule be continued without change or that
it be changed or discontinued, in which case the agency shall conduct a rulemaking to modify,
consolidate, or terminate such rule. Each agency would also be required to designate a
“regulatory policy officer” responsible for the implementation of Title II, who reports to the
agency head and the OIRA Administrator.
Analysis
Legislation to establish a CORA has been previously introduced but not enacted (e.g., H.R. 6223
in the 111th Congress). One of the first such bills was H.R. 1704 (and its Senate counterpart, S.
1675) in the 106th Congress. At a March 11, 1998, hearing on H.R. 1704, Representative Sue
Kelly, who introduced the legislation, indicated that it was needed because of the lack of
congressional action under the CRA.
In my opinion, this [lack of action] can be explained in large part because of the fact that
nearly all of Congress’s information about the impact of new regulations comes from the
agencies who are developing them. This information is often unreliable because agencies
have a vested interest in downplaying any negative aspects of the regulations they have
proposed. As a result, Congress is at a disadvantage when trying to determine just how a
particular regulation will impact the economy, making it that much more difficult to
effectively implement the CRA.84

84 Testimony of Representative Sue Kelly before the Subcommittee on National Economic Growth, Natural Resources,
(continued...)
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In the past, supporters of similar legislation have asserted that, as part of the same presidential
administration that produced the rules, OIRA is incapable of providing an independent view of
agencies’ regulations, and that a CORA could make the regulatory process more rational and
transparent.85 On the other hand, concerns have been expressed regarding the ability of a CORA
to develop its own estimates of costs, benefits, and alternative approaches within the time frames
provided, and whether the appointment of the CORA Director by the House and Senate
leadership would make the office political in nature.86
Although H.R. 214 would require CORA to produce an annual report on the costs and benefits of
all existing regulations, OMB is already required to do so.87 It is not clear whether both
requirements would still be needed if H.R. 214 is enacted. Also, as noted earlier in this report,
OMB has indicated that cost and benefit estimates prepared for rules adopted more than 10 years
earlier “are of questionable relevance now,”88 so it is not clear how CORA would produce this
report. Questions have also been raised about other efforts to measure cumulative regulatory
costs.89
It is unclear how many rules would be covered by the review requirements in Title II of H.R. 214.
The first two categories of rules (those with at least a $100 million impact on the economy, and
“major” rules) are a subset of the third category (rules issued pursuant to a significant regulatory
action as defined in Executive Order 12866). Since it was issued in 1993, federal agencies subject
to the executive order have submitted more than 5,700 significant final rules to OIRA for review,
but some of those rules may not have been issued. Also, other non-significant rules may also be
required to be reviewed upon petition from the public or congressional request. Those reviews
could consume a significant amount of both OIRA’s and the rulemaking agencies’ time and
resources.
Finally, requiring each agency to designate a “regulatory policy officer” who reports to the
agency head and the OIRA Administrator may remind some observers of a similar requirement in
Executive Order 13422, which was highly controversial. At the time, the New York Times
characterized such officers as White House “gatekeepers” who would “make sure the agencies

(...continued)
and Regulatory Affairs, House Committee on Government Reform and Oversight, “H.R. 1704, Congressional Office of
Regulatory Analysis Creation Act,” 105th Cong., 2nd sess., Serial No. 105-146, March 11, 1998 (Washington: GPO,
1998), p. 6.
85 Robert W. Hahn and Robert E. Litan, “The Regulatory Right-to-Know Act and the Congressional Office of
Regulatory Analysis Act,” Joint Testimony before the Senate Committee on Governmental Affairs, April 1999, at
http://www.brookings.edu/~/media/Files/rc/testimonies/1999/04_righttoknow_litan/04_righttoknow_litan.pdf.
86 Ibid; and Jennifer Coderre, “Senate Panel Continues Debate on Costs, Benefits of ‘Regulatory Right-to-Know’
Bills,” BNA Daily Report for Executives, April 23, 1999, p. A-30. Comments regarding CORA were attributed to Gary
Bass of OMB Watch.
87 Section 624 of the Treasury and General Government Appropriations Act, 2001, (31 U.S.C. § 1105 note), sometimes
known as the “Regulatory Right-to-Know Act,” put in place a permanent requirement for an OMB report on regulatory
costs and benefits. Specifically, it requires OMB to prepare and submit with the President’s budget an “accounting
statement and associated report” containing an estimate of the total costs and benefits (including quantifiable and
nonquantifiable effects) of federal rules and paperwork, to the extent feasible, (1) in the aggregate, (2) by agency and
agency program, and (3) by major rule.
88 OMB has made such statements in its reports to Congress since 2003. See http://www.whitehouse.gov/sites/default/
files/omb/assets/omb/inforeg/2003_cost-ben_final_rpt.pdf, p. 7; and http://www.whitehouse.gov/sites/default/files/
omb/legislative/reports/2010_Benefit_Cost_Report.pdf, p. 11.
89 CRS Report R41763, Analysis of an Estimate of the Total Costs of Federal Regulations, by Curtis W. Copeland.
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carry out the president’s priorities.”90 Although the responsibilities assigned to regulatory policy
officers in H.R. 214 are quite different than in the executive order, the requirement that the
officers report to OIRA, and that independent regulatory agencies have them, may be of concern
to some.
H.R. 373: the Unfunded Mandates Information and Transparency Act of 2011
H.R. 373, introduced by Representative Virginia Foxx on January 20, 2011, and referred to the
House Committee on Oversight and Government Reform, the House Committee on Rules, and
the House Committee on the Judiciary, would, if enacted, make several changes to the
Congressional Budget and Impoundment Control Act of 1974 (as amended by the Unfunded
Mandates Reform Act (UMRA) of 1995). Changes that would affect agency rulemaking include
(1) expanding the act’s coverage to include independent regulatory agencies; (2) expanding the
act’s coverage to include “reasonably foreseeable indirect costs” (including lost income and
secondary monetary costs); (3) changing the written statement reporting requirement in Section
202 of UMRA from “expenditure” to “direct or reasonably foreseeable indirect costs;” (4)
changing “”unless otherwise prohibited by law” to “unless otherwise expressly prohibited by
law;” and (5) requiring final rules that were not preceded by a notice of proposed rulemaking to
have a written statement under Section 202 of UMRA within six months after promulgation.
Analysis
Representative Foxx has introduced proposed legislation to amend UMRA previously (e.g., H.R.
2255 in the 111th Congress, and H.R. 6964 in the 110th Congress), but those bills did not address
all of the issues in H.R. 373, and they were not enacted. Section 3 of H.R. 373 states that one of
the bill’s purposes is “to enhance the ability of Congress and the public to identify Federal
mandates that may impose undue harm on consumers, workers, employers, small businesses,
State, local, and tribal governments.” As noted earlier in this report, several previous GAO
reviews have indicated that UMRA currently covers only a small portion of the “economically
significant” rules that agencies issue. Therefore, expanding the coverage of the act to include
rules issued by independent regulatory agencies, direct and indirect costs (instead of
“expenditures”), and final rules issued without a prior notice of proposed rulemaking would likely
increase the number of written reports that agencies will be required to submit. However, as GAO
also pointed out, those written reports cover the same types of issues that are already covered by
other rulemaking requirements, so the net effect in terms of additional information may be quite
small.
H.R. 527: the Regulatory Flexibility Improvements Act of 2011
H.R. 527, introduced by Representative Lamar Smith on February 8, 2011, and referred to the
House Committee on the Judiciary and the House Committee on Small Business, proposes to
make several changes to the RFA. Section 2(a) of the bill would (if enacted) change the definition
of a “rule” from those for which a notice of proposed rulemaking is published under Section
553(b) of Title 5 to the much broader definition of a rule under Section 551(4) of Title 5.91

90 Robert Pear, “Bush Directive Increases Sway on Regulation,” New York Times, January 30, 2007, p. A1.
91 That section defines a rule as “the whole or a part of an agency statement of general or particular applicability and
future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or
(continued...)
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However, the definition excludes certain types of rules from coverage (e.g., rules of particular
applicability relating to rates, wages, corporate or financial structures). Also, the bill would (1)
define the term “economic impact” to include both direct economic effects and any indirect effect
“which is reasonably foreseeable” and results from such rules;92 (2) require regulatory flexibility
analyses to include alternatives that would maximize any beneficial economic effects on small
entities;93 (3) require such analyses for land management plans, as defined in the bill;94 and (4)
require the analyses to contain greater details,95 and to provide quantifiable or numerical
descriptions of the rules’ effects or an explanation of why quantification is not practicable or
reliable.
Section 4 of H.R. 527 would require the SBA Chief Counsel for Advocacy to issue rules
governing agency compliance with the RFA. The bill requires these rules to be issued within 270
days after the date of enactment, after an opportunity for notice and comment. Also, agencies are
prohibited from issuing their own rules on RFA compliance without first consulting with the chief
counsel for advocacy. The chief counsel is generally authorized to intervene in any agency
adjudication, informing the agency of any impacts on small entities, and is authorized to file
comments in any agency notice requesting comments.
Section 5 of H.R. 527 would amend Section 609(b) of Title 5, and would require agencies to
notify the chief counsel for advocacy about any proposed rule expected to have a SEISNSE, or
expected to have other economic effects (even if the rule is not expected to have a SEISNSE).
Those economic effects are defined as follows:
(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; [or] (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.96
This definition is the same as is used in the definition of a “major rule” in the Congressional
Review Act (5 U.S.C. § 804(2)). For any proposed rule that the issuing agency or the OIRA
Administrator expects to have a SEISNSE or be “major,” the issuing agency is generally required
to provide the chief counsel for advocacy with all materials used in the development of the
proposed rule, and “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.”97 Within 15
days after receiving these materials, the chief counsel is required to (1) identify affected small
entities or their representatives from whom information about the impacts of the rule can be
obtained, and (2) convene a “review panel” to examine the materials provided to the chief

(...continued)
practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or
financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of
valuations, costs, or accounting, or practices bearing on any of the foregoing.”
92 Section 2(b).
93 Section 2(c).
94 Section 2(e).
95 Section 3(a) and (b).
96 Section 5(e).
97 Section 5(b)(1)(B). Agencies are not required to provide drafts of proposed rules if the rule relates to U.S. internal
revenue laws, or if it is to be issued by an independent regulatory agency.
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counsel. Within 60 days after the panel is convened, the chief counsel for advocacy is required to
submit a report to the agency and to OIRA (unless the rule is issued by an independent regulatory
agency) assessing the economic impact of the proposed rule on small entities and any alternatives
that would minimize adverse impacts or maximize beneficial impacts. The report is required to
become part of the rulemaking record, and the agency is required to explain what actions the
agency took in response to the report.
Section 6 of H.R. 527 would amend Section 610 of Title 5 and require that each agency publish a
plan for the periodic review of rules that the head of the agency determines have a SEISNSE,
without regard to whether the agency had previously made such a determination. The plans would
generally require the review of all existing rules within 10 years of the date that the bill is
enacted, and any subsequent rule within 10 years of its publication in the Federal Register.
Agencies would be required to publish a list of rules to be reviewed, and to request comments
from the public, the chief counsel for advocacy, and the regulatory enforcement ombudsman.
Other sections of the bill would make certain changes to the judicial review provisions in Section
611 of Title 5, and to the chief counsel’s amicus authority under Section 612 of Title 5.
Analysis
Proposed legislation has been previously introduced in the House of Representatives to make
some (but not all) of the amendments to the RFA that are proposed in H.R. 527 (e.g., H.R. 4458 in
the 110th Congress, and H.R. 682 in the 109th Congress), but those bills were not enacted. Some
of the provisions in H.R. 527 appeared to address certain long-standing issues of concern
regarding the implementation of the RFA (e.g., the inclusion of “indirect” effects in the definition
of “economic impact,” and clarifying that Section 610 reviews are required for any rule
determined to have a SEISNSE, even if a final regulatory flexibility analysis was not prepared).
Other provisions appear to add to the number or depth of the analytical and notification
requirements placed on rulemaking agencies. Perhaps most notably, the SBA chief counsel for
advocacy is required to issue rules governing agency compliance with the RFA. If those rules
clarify what is meant by the term “significant economic impact on a substantial number of small
entities,” they have the potential to improve the implementation of the RFA as well as related
statutory requirements that are linked to that determination.
Other portions of H.R. 527 appear to widen the scope and impact of the RFA substantially. For
example, by defining a covered “rule” using the definition in Section 551(4) of Title 5, the RFA
would appear to include not just legislative rules that appear in the Federal Register and the Code
of Federal Regulations
, but also agency guidance documents and policy statements. Also, the
amendments to Section 609 of Title 5 would, if enacted, substantially broaden the requirement for
advocacy review panels. Currently, the requirements only apply to EPA and OSHA, and will
extend to the CFPB when the agency is established in July 2011. H.R. 527 would, if enacted,
expand the panel requirements to all agencies, and make them applicable to “major” rules, even if
they did not have a SEISNSE. Also, some rules that are considered “major” impose no
compliance costs, and instead are considered major because they involve more than $100 million
in federal transfer payments (e.g., to Medicare and Medicaid providers, or as crop subsidies), fees
for government services (e.g., passport application fees paid to the Department of State), or
consumer spending (e.g., migratory bird hunting rules issued by the Department of the Interior).98

98 CRS Report R41651, REINS Act: Number and Types of “Major Rules” in Recent Years, by Curtis W. Copeland and
Maeve P. Carey.
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Some observers have indicated that these changes to the RFA could affect agencies’ ability to
issue needed regulations,99 while others have applauded the changes.100 Both groups would likely
agree that the amendments, if enacted, would fundamentally alter the nature and reach of the
RFA’s requirements.
The impact of other changes contemplated in H.R. 527 are unclear. For example, for more than 20
years, courts have ruled that agencies need not prepare regulatory flexibility analyses if the effects
of a rule on an industry are indirect.101 Therefore, for example, if a federal agency is issuing a
final rule establishing a health standard that is implemented by states or other entities, the federal
agency issuing the rule need not prepare a regulatory flexibility analysis even if it is clear that the
implementation of that or related rules will ultimately have a significant economic effect on a
substantial number of small entities.102 Agencies have also indicated that they do not consider the
secondary effects that a rule may have on the cost of compliance with other programs.103 By
clarifying that the term “economic impact” includes indirect effects that are “reasonably
foreseeable and result from the rule,” H.R. 527 might result in more agency rules being viewed as
requiring a regulatory flexibility analysis.104 Nevertheless, agencies appear to have substantial
discretion in determining what indirect effects are “reasonably foreseeable,” because the proposed
legislation does not define that term. Also, even when the indirect effects of a rule are foreseeable,
in some cases the agencies may not be able to provide much detail regarding those effects in their
regulatory flexibility analyses (e.g., when the implementation details are left to states or local
governments).
H.R. 527 would, if enacted, also clarify how agencies’ reviews under Section 610 of the RFA
should be conducted. As a result, agencies would be required to review all of their rules to
determine if they currently have a SEISNSE, and could not simply rely on their previous
determinations when the final rule was published in the Federal Register. Enactment of this
change could result in substantially more Section 610 reviews, but with a concomitant increase in

99 Testimony of J. Robert Schull before the Subcommittee on the Courts, Commercial and Administrative Law, House
Committee on the Judiciary, February 10, 2011, at http://judiciary.house.gov/hearings/pdf/Shull02102011.pdf.
100 Testimony of Thomas M. Sullivan before the Subcommittee on the Courts, Commercial and Administrative Law,
House Committee on the Judiciary, February 10, 2011, at http://judiciary.house.gov/hearings/pdf/
Sullivan02102011.pdf.
101 See, for example, Mid-Tex Electric Cooperative, Inc. v. FERC, 773 F.2d 327, 343 (D.C. Cir. 1985).
102 For example, when EPA published a final rule establishing national ambient air quality standards (NAAQS) for
particulate matter in October 2006, the agency certified the rule as not having a SEISNSE “because NAAQS
themselves impose no regulations on small entities.” In its cost-benefit analysis for the rule, EPA estimated the cost of
installing controls to meet the health standard at $5.6 billion in 2020. See U.S. Environmental Protection Agency,
“National Ambient Air Quality Standards for Particulate Matter; Final Rule,” 71 Federal Register 61144, 61217. In a
similar case (American Trucking Associations, Inc. v. U.S. Environmental Protection Agency, 175 F.3d 1027 (D.C. Cir.
1999)), affirmed in part and reversed in part, Whitman v. American Trucking Associations, 532 U.S. 457 (2001), the
U.S. Court of Appeals for the District of Columbia ruled that EPA had complied with the RFA because the states, not
EPA, had the direct authority to impose requirements to control ozone and particulate matter consistent with EPA
health standards.
103 For example, in a 1991 rule, EPA acknowledged that the rule in question may have “trickle down” effects on other
EPA programs under the Clean Air Act (CAA), Superfund, or the Resource Conservation and Recovery Act (RCRA),
but went on to say that “the purpose of today’s action is solely to establish drinking water standards that public water
systems must comply with. Consequently, EPA does not consider the cost of secondary impacts which may occur
under the CAA, Superfund, or RCRA.” U.S. Environmental Protection Agency, “Drinking Water; National Primary
Drinking Water Regulations; Monitoring for Volatile Organic Chemicals,” 56 Federal Register30266, July 1, 1991.
104 The SBA Chief Counsel for Advocacy said his office’s “biggest concern with the RFA is that it does not require
agencies to analyze indirect impacts.” See http://www.sba.gov/advo/press/07-38.html.
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time and effort required by federal agencies. However, it is unclear how this requirement for
renewed plans for regulatory review will interact with similar requirements for retrospective
analysis under Executive Order 13563.105 As noted earlier in this report, Section 6 of that order
requires covered agencies (Cabinet departments and independent agencies, but not independent
regulatory agencies) to submit a preliminary plan to OIRA for the review of all of their existing
rules.
H.R. 1235: the Regulatory Moratorium Act of 2011
H.R. 1235, introduced by Representative John Carter on March 29, 2011, and referred to the
House Committee on Government Oversight and Reform, and the House Committee on the
Judiciary, would, if enacted, would generally prevent any federal agency from putting “into
force” any rule until January 31, 2013. The bill exempts, however, any rule excepted from the
APA notice and comment requirements by (1) 5 U.S.C. § 553(a) (i.e., rules involving military or
foreign affairs functions, or rules relating to agency management or personnel or to public
property, loans, grants, benefits, or contracts); or (2) 5 U.S.C. § 553(b) (i.e., the “good cause”
exception to notice and comment).
Analysis
H.R. 1235 is different from H.R. 213, the other legislation that would impose a regulatory
moratorium, in several ways. First, whereas H.R. 213 would prevent federal agencies from taking
any “regulatory rulemaking action” (which would arguably include the publication of rules as
well as their implementation), H.R. 1235 would prevent agencies from putting rules “into force”
(which would appear to allow rules to be published, but just not implemented or enforced). Also,
the exemptions in the two bills are similar in some respects (e.g., both exempting rules involving
military and foreign affairs function), but different in other respects (e.g., H.R. 213 exempts rules
needed because of an imminent threat to health and safety, whereas H.R. 1235 does not). Finally,
whereas H.R. 1235 would prevent all rules from being put into force until January 31, 2013),
H.R. 213 would prohibit rulemaking for at least two years after the date of enactment. As noted
previously in relation to H.R. 213,, a moratorium on the implementation of rules of any
significant breadth and duration would likely affect the ability of some agencies to carry out their
missions, and could affect the general public.
The exemption for rules that are exempted from the APA’s notice and comment requirement may
be substantial. GAO reported in 1998 that about half of the final rules published during the
previous year did not have a notice of proposed rulemaking, and that the agencies most
commonly cited the “good cause” exception for not publishing a proposed rule.106

105 Executive Order 13563, “Improving Regulation and Regulatory Review,” 76 Federal Register 3821, January 21,
2011.
106 U.S. General Accounting Office, Federal Rulemaking: Agencies Often Published Final Actions Without Proposed
Rules
, GAO/GGD-98-126, August 31, 1998.
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H.R. 1432, the Creating Sunshine, Participation, and Accountability for
Our Nation Act

H.R. 1432, introduced by Representative David Schweikert on April 7, 2011, and referred to the
House Committee on the Judiciary, would require formal rulemaking procedures for “any rule
issued under a health care reform law.” Specifically, the bill would require any such rule to be
“made on the record after opportunity for an agency hearing,” and that the hearing be open to the
public (including radio and television coverage), and “presided over by an officer confirmed by
the Senate.” The bill defines the term “health care reform law” as (1) the Patient Protection and
Affordable Care Act (P.L. 111-148), and the amendments made by that act; and (2) title I or
subtitle B of title II of the Health Care and Education Reconciliation Act of 2010 (P.L. 111-152).
Analysis
Virtually all agency regulations are currently issued under APA informal rulemaking procedures,
in which agencies publish proposed rules in the Federal Register for public comment, and
subsequently publish a final rule reflecting any changes made as a result of those comments.
Formal rulemaking, as the name implies, is a much more rigorous, trial-like, on-the-record
procedure in which interested persons testify and cross-examine witnesses, and the agency may
take depositions and issue subpoenas. It is generally considered a more time-consuming and
expensive process than informal rulemaking. Also, according to 5 U.S.C. § 556(d)(1), “[e]xcept
as otherwise provided by statute, the proponent of a rule or order has the burden of proof.”
Formal rulemaking was criticized in the 1970s, and has fallen into disuse since then.107 The
Administrative Conference of the United States recommended that Congress should not require
procedures beyond informal rulemaking, and should never require trial-type procedures for
resolving questions of policy or fact.108 One administrative law scholar has referred to formal
rulemaking as a “discredited” procedure that allows regulated entities to slow down the
rulemaking process.109 However, other scholars have recently voiced support for formal
rulemaking procedures in certain circumstances.110
Concluding Observations
In addition to the proposed legislation discussed previously, several Members of Congress have
indicated that other regulatory reform bills may soon be introduced in the 112th Congress. For
example, Senator Mark Warner has said that he plans to introduce legislation that

107 For a discussion of formal rulemaking, see Jeffrey S. Lubbers, ed., A Guide to Federal Agency Rulemaking, Fourth
Edition
(Chicago: American Bar Association, 2006), pp. 58-59.
108 ACUS Recommendation 72-5, Procedures for the Adoption of Rules of General Applicability, 38 Federal Register
19782, 1972; Jeffrey S. Lubbers, ed., A Guide to Federal Agency Rulemaking, Fourth Edition, pp. 309-310.
109 Testimony of Peter Strauss, Betts Professor of Law, Columbia Law School, in U.S. Congress, House Committee on
the Judiciary, Subcommittee on Commercial and Administrative Law, hearing on Executive Order 13422, February 13,
2007, available at http://judiciary.house.gov/media/pdfs/Strauss070213.pdf.
110 See, for example, testimony of Susan E. Dudley, Director, George Washington University Regulatory Studies
Center, and testimony of Jeffrey A. Rosen, Kirkland & Ellis, LLP, before the House Committee on the Judiciary,
Subcommittee on Courts, Commercial and Administrative Law, hearing on the Administrative Procedure Act, February
28, 2011, available at http://judiciary.house.gov/hearings/pdf/Dudley02282011.pdf, and http://judiciary.house.gov/
hearings/pdf/Rosen02282011.pdf.
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would require federal agencies to produce a baseline catalogue of their existing regulations
and a credible, quantifiable estimate of the economic impact for each one. OMB should have
primary responsibility for these estimates, and the Congressional Budget Office or the
Government Accountability Office should be given responsibility for checking the math and
verifying the underlying assumptions. Regulatory pay-go would discourage agencies from
continually adding new rules because they would be required to eliminate one outdated or
duplicative regulation of the same approximate economic impact for each new rule they want
to enact.111
Also, press accounts have indicated that Senator Mary Landrieu may reintroduce her Small
Business Investment and Innovation Act (S. 3967 in the 111th Congress), which would (among
other things) amend the RFA to allow small businesses to challenge rules during the rulemaking
period when the agency contends that they will not have a significant economic impact on a
substantial number of small entities.112
Committee Referrals
Five of the six Senate bills (S. 128, S. 299, S. 358, S. 474, and S. 602) have been referred to the
Committee on Homeland Security and Governmental Affairs. One bill (S. 817) was referred to
the Committee on the Budget.
As Table 1 below indicates, committee referrals in the House of Representatives are more
numerous and differentiated. All of the seven regulatory reform bills have been referred to the
Committee on the Judiciary, but four of them were also referred to the Committee on Oversight
and Government Reform. One of those four (H.R. 373) was also referred to the Committee on
Rules, which also was referred H.R. 10. One other bill (H.R. 527) was also referred to the
Committee on Small Business.

111 Mark R. Warner, “To Revive the Economy, Pull Back the Red Tape,” Washington Post, December 13, 2010,
available at http://warner.senate.gov/public/index.cfm?p=regulatory-paygo.
112 Stephen Lee, “Sen Landrieu’s Small Business Bill To Be Reintroduced in Next Congress,” BNA Daily Report for
Executives
, December 1, 2010, p. A-30.
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Table 1. House of Representative Committee Referrals of Regulatory Reform Bills
in the 112th Congress
Committee on
Committee on the
Oversight and
Committee on
Committee on
Bill Number
Judiciary
Government Reform
Rules
Small Business
H.R. 10
x

x

H.R. 213
x
x


H.R. 214
x
x


H.R. 373
x
x
x

H.R. 527
x


x
H.R. 1235
x
x


H.R. 1432
x



Source: CRS, based on information in the Legislative Information System (LIS).
Themes in Regulatory Reform Bills
As Table 2 below indicates, the regulatory reform bills discussed in this report would, if enacted,
address a variety of rulemaking issues, with some issues addressed by more than one piece of
legislation. Some of the issues addressed in those bills have been the subject of proposed
legislation for more than 10 years (e.g., congressional rule approval proposed in S. 299 and H.R.
10, penalty relief for first-time violation of paperwork requirements proposed in S. 128, and
proposals to establish a Congressional Office of Regulatory Analysis as in H.R. 214). Other bills,
however, involve issues that do not appear to have been addressed previously (e.g., the
codification and expansion of OMB guidance policies in S. 602).

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Table 2. Regulatory Reform Bills in the 112th Congress Address a Variety of Issues
H.R.
H.R.
H.R.
H.R.
H.R.
H.R.
Issues
S. 128
S. 299
S. 358
S. 474
S. 602
S. 817
H.R. 10
213
214
373
527
1235
1432
Penalty
relief
X

X

Congressional rule
approval
X X
Expansion of EO 13563
requirements


X










independent

regulatory agencies


X









(IRAs)
rule
reviews
X X
other


X










Amendment
of
the
RFA

X
X
X
indirect
effects
X
X
judicial
review
X

Section
610
reviews

X
X
advocacy review
panels

X
X
non-NPRM
rules
X

guidance
documents

X
X
SBA rules on RFA
compliance










X


other

X
X
Expansion
of
cost-benefit


X

IRAs




X








significant
rules
X

Expansion of guidance
policies




X








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Regulatory Reform Legislation in the 112th Congress

H.R.
H.R.
H.R.
H.R.
H.R.
H.R.
Issues
S. 128
S. 299
S. 358
S. 474
S. 602
S. 817
H.R. 10
213
214
373
527
1235
1432
Moratorium
X X
Congressional Office of
Regulatory Analysis








X




Amendment
of
UMRA X X X
Formal Rulemaking












X
Source: CRS, based on analysis of regulatory bills.

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Expansion of Current Requirements
Looking across all of the bills, several broad themes seem apparent. One such theme is an
expansion of current rulemaking requirements in terms of the nature of the requirements, the rules
or agencies to which they are applicable, or both. For example:
• S. 358 would, for the first time, generally require agencies to allow the public at
least 60 days to comment on a proposed rule (the Administrative Procedure Act
does not currently specify the length of comment periods).
• S. 474 would expand the RFA’s analytical requirements from rules to significant
guidance documents, require agencies to consider indirect impacts (not just direct
impacts) in their analyses, expand the review panel requirement in Section 609 of
the RFA to all agencies, and expand the scope of judicial review to agencies’
analyses for proposed rules.
• H.R. 527 would expand the review panel requirements in Section 609 of the RFA
to include “major” rules, even if they did not have an impact on small entities.
• S. 602 would require agencies to prepare cost-benefit analyses for all significant
rules, not just the rules that are considered “economically significant” (e.g., those
with a $100 million annual impact on the economy).
Independent Regulatory Agencies
In particular, several of the bills would extend certain rulemaking requirements to independent
regulatory agencies. For example:
• S. 358 and H.R. 214 would expand the retrospective review requirements in
Executive Order 13563 to include independent regulatory agencies.
• S. 358 would also require independent regulatory agencies to comply with the
broad rulemaking principles in Executive Orders 12866 and 13563 (e.g., that they
adopt regulations only upon a reasoned determination that the benefits exceed the
costs).
• S. 602 would require independent regulatory agencies to prepare cost-benefit
analyses for their “significant” rules, and to submit those analyses to OIRA for
review. It would also, for the first time, require those agencies to comply with
current OMB requirements for guidance documents.
• S. 817 and H.R. 373 would amend the Unfunded Mandates Reform Act to cover
rules issued by most independent regulatory agencies.
In some cases, there does not currently appear to be an administrative mechanism to oversee and
ensure compliance with these requirements on independent regulatory agencies. For example,
although S. 358 requires independent regulatory agencies to comply with the broad rulemaking
policies in Executive Orders 12866 and 13563, and S. 602 requires those agencies to comply with
OMB requirements for guidance documents, independent regulatory agencies (unlike other types
of agencies) are not currently required to submit any of their rules or guidance documents to
OIRA for review. Therefore, unless the President or Congress requires independent regulatory
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agencies to submit their rules to OIRA, OIRA will not be able to ensure that the independent
regulatory agencies are complying with the new requirements.
President Obama could amend Executive Order 12866 and require independent regulatory
agencies to submit their draft significant proposed and final rules and guidance documents to
OIRA for review. Both President Ronald Reagan and President William Clinton received legal
opinions from the Department of Justice indicating that there was no legal or constitutional
impediment preventing such action, but both Presidents reportedly decided not to do so for
political, not legal, reasons.113 Although several individuals and organizations have recommended
that President Obama require that independent regulatory agencies be covered by an amended
Executive Order 12866,114 neither Executive Order 13563 nor any of the other memoranda issued
by the President or OMB in recent years have included independent regulatory agencies.115
Some in Congress and elsewhere may object to requiring independent regulatory agencies, which
historically have been considered more independent of the President than other departments and
agencies, from having to submit their rules to OIRA (located within the Executive Office of the
President) for review and approval. One possible alternative could be to follow the approach
currently employed under the Paperwork Reduction Act, in which multi-headed independent
regulatory agencies are required to submit their proposed collections of information to OIRA for
review, but those agencies can, by majority vote, void any OIRA disapproval of a proposed
collection.116
Retrospective Reviews
Another recurring theme in the regulatory reform bills is an emphasis on retrospective reviews of
agencies’ existing rules. For example:
• Both S. 358 and H.R. 214 would put into statute and expand the requirement for
retrospective rule reviews that is in Executive Order 13568.
• Both S. 474 and H.R. 527 would clarify and reinstitute the retrospective rule
review requirements in Section 610 of the RFA. S. 474 would broaden the
reviews to include agencies’ compliance guides.

113 At a September 2006 conference at CRS, Sally Katzen, OIRA Administrator during most of the Clinton
Administration, said “When Boyden Gray was drafting 12291 for President Reagan, the same issue was raised. And as
I said, the Department of Justice opined that the President had constitutional authority to extend to independent
regulatory commissions. They chose not to do it. We reconsidered the question and chose not to do it. I think there is an
aspect of an independent regulatory commission that says it should somehow be kept a little distant from the validly
political actors. And this was not in that direction, and I think it’s a sound one. It’s not one based on the law. I think we
had the authority; I think it’s purely a question of desirability.” See http://www1.american.edu/rulemaking/doc/
PCJCRtrans4.doc. Ms. Katzen made essentially the same comments at an April 2011 conference at Resources for the
Future, and those comments are available at http://www.rff.org/Documents/Events/
Workshops%20and%20Conferences/110407_Regulation_KatzenRemarks.pdf.
114 See, for example, comments from Jim Tozzi, Center for Regulatory Effectiveness, at http://www.reginfo.gov/public/
jsp/EO/fedRegReview/Jim_Tozzi.pdf, and comments from the National Federation of Independent Businesses, at
http://www.reginfo.gov/public/jsp/EO/fedRegReview/NFIB_Comments.pdf.
115 Although Executive Order 13563 and the various memoranda did not apply to independent regulatory agencies, they
were “encouraged” to “give consideration” to their provisions.
116 44 U.S.C. § 3507(f).
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Supporters of retrospective reviews assert that agencies should reexamine rules after they have
been in effect to ensure that they are operating as expected and are consistent with underlying
statutory intent. However, some previous review efforts have not proven to be very successful,117
and GAO reported in 2007 that such reviews have historically been most frequent and most
productive when initiated by the agencies themselves, not by statutory or executive order
requirement.118 GAO also said that discretionary reviews were more likely to involve the public
in the process than mandatory reviews, and were more likely to result in changes to the rules. On
the other hand, statutorily required reviews were more likely to have review standards, and were
more likely to be documented. GAO recommended that agencies incorporate various elements
into their policies and procedures to improve the effectiveness and transparency of retrospective
regulatory reviews, and that they identify opportunities for Congress to revise and consolidate
existing review requirements.
Congressional Oversight
Another theme in the regulatory reform bills seems to be an effort to increase the role of Congress
in overseeing the actions of regulatory agencies. For example:
• S. 299 and H.R. 10 would, if enacted, generally require congressional approval
before any major rule could take effect.
• H.R. 214 would create a Congressional Office of Regulatory Analysis that could
assist in oversight activities by providing Congress with an in-depth and
independent perspective on agencies’ rules. It would also allow agencies to
review non-significant rules upon congressional request.
• S. 358 would require agencies to submit their preliminary retrospective review
plans to the appropriate congressional committees. Upon completion of any such
review, the agency must submit a report to the appropriate congressional
committees describing the outcome of the review.
• S.Amdt. 299 would require the Inspector General of each agency to determine if
the agency did not conduct the retrospective review appropriately, and if the
agency does not address any deficiencies within six months, the IG is required to
notify Congress within 30 days.
• S. 128 would require agency heads to notify Congress within 60 days if the
agency does not allow a small business 24 hours to correct a serious paperwork
violation.
The degree of congressional involvement contemplated in these bills varies significantly,
from simple notification requirements to requiring Congress to approve major rules
before they can take effect.

117 See U.S. General Accounting Office, Regulatory Reform: Agencies’ Efforts to Eliminate and Revise Rules Yield
Mixed Results
, GAO/GGD-98-3, October 2, 1997.
118 U.S. Government Accountability Office, Reexamining Regulations: Opportunities Exist to Improve Effectiveness
and Transparency of Retrospective Reviews
, GAO-07-791, July 16, 2007.
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Similarities and Differences in Regulatory Reform Bills
Even when the same general issue is addressed, the regulatory reform bills sometimes take very
different approaches. For example:
• Both S. 128 and S. 602 would, if enacted, provide penalty relief for first-time
violations of paperwork requirements. However, whereas S. 128 would generally
require agencies to provide such relief for any such violations (with some
exceptions), S. 602 would establish a process by which regional advocates of the
SBA Office of Advocacy could request agencies to provide such relief for small
entities.
• Both S. 474 and H.R. 527 proposed to amend the Regulatory Flexibility Act, and
many of the amendments in those bills address the same issues (e.g., requiring
agencies to consider the indirect effects of their rules, clarifying the requirements
for reviews under Section 610 of the act, and making more agencies subject to
the panel requirements in Section 609 of the act). The bills differ, however, in
many respects. S. 474 would permit judicial review of agencies’ compliance with
initial regulatory flexibility analysis requirements, while H.R. 527 does not
address that issue. On the other hand, H.R. 527 (but not S. 474) would expand the
panel requirements to include major rules, even if there is no impact on small
entities. While both bills would amend Section 610 of the RFA and require
agencies to review their rules with a SEISNSE without regard to the agencies’
previous determinations, only S. 474 establishes a penalty for failing to complete
the required review (i.e., taking all of an agency’s rules with a SEISNSE out of
effect).
• H.R. 373 would amend the Unfunded Mandates Reform Act in a number of ways
that are designed to improve its operation (e.g., including independent regulatory
agencies, changing “expenditures” to direct and “reasonably foreseeable” indirect
costs, and including final rules without prior proposed rules. In contrast, H.R.
214 would only amend UMRA to transfer the CBO Director’s responsibilities to
the CORA Director), and S. 817 would only expand the definition of an “agency”
to include independent regulatory agencies.
• Both S. 358 and H.R. 214 would require agencies to review their “significant”
rules to determine whether they should be continued, amended, or withdrawn.
However, S. 358 would require agencies to submit their preliminary review plans
to congressional committees, whereas H.R. 214 would have the OIRA
Administrator publish a list of rules to be reviewed by particular deadlines.
• Both H.R. 213 and H.R. 1235 propose to establish moratoriums on certain
regulatory actions, but the nature of the actions affected and the exemptions in
the bills differ considerably.
Reforms May Require Additional Resources and Time
Several of the reform bills would, if enacted, codify certain existing rulemaking requirements
(e.g., S. 358 and the codification of the broad regulatory goals in Executive Orders 12866 and
13563, and the retrospective reviews required in Executive Order 13563). Therefore, to the extent
that covered agencies were already complying with these requirements, enactment of the
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legislation may require little or no change in those agencies’ behavior, and no increase in
resources.
Other bills, however, would place new and potentially substantial responsibilities on rulemaking
agencies and OIRA, or would expand existing requirements to new agencies. For example,
enactment of S. 602 would require cabinet departments and independent agencies to conduct cost-
benefit analyses for all of their “significant rules,” which (based on the number of such rules in
previous years) could significantly increase the number of cost-benefit analyses conducted each
year by these agencies, with a concomitant increase in the number of analyses that OIRA would
have to review. Also, S. 602 would apply the cost-benefit analysis requirement to independent
regulatory agencies for the first time, and S. 358 and H.R. 214 would require those agencies to
conduct retrospective reviews for the first time. S. 474 would apply the RFA to significant
guidance documents. S. 474 and H.R. 527 would expand the requirements that agencies use RFA
Section 609 panels prior to issuing proposed rules, and both bills would require agencies to
review all of their existing rules to determine if they have a SEISNE, and if so, whether they
should be continued in their current form. Enactment of these bills could lead to agencies asking
for additional resources to carry out their new responsibilities—resources that may prove difficult
to provide in the current budgetary environment.
These and certain other requirements in the regulatory reform bills could also increase the amount
of time required to issue rules or to put them into effect. For example, S. 358 would generally
require a minimum of 60 days for public comment, and if an interim final rule is challenged in a
U.S. court, the issuing agency would be required to delay the implementation of the rule until
final disposition of the challenge. H.R. 474 would allow judicial review of agencies’ initial
regulatory flexibility analyses, which could slow down the rulemaking process until any such
challenge is resolved. Under H.R. 10 and S. 299, Congress could take up to 70 legislative or
session days (which could take several months) to enact legislation approving major regulations,
and under H.R. 213, agencies could be prevented from issuing most rules for up to two years.
H.R. 1432 would require that certain health care reform rules be issued through formal
rulemaking procedures, which are generally considered to be more time consuming than informal
procedures.
Other Issues
Some of the provisions in these bills may need to be clarified before enactment to ensure that they
are carried out as Congress intended. For example, S.Amdt. 299 to S. 493 would require the IG
for each agency to determine whether the agency has conducted the required retrospective
reviews of their existing rules and compliance guides “appropriately.” The amendment does not
define what is meant by “appropriately,” which could give the IGs substantial latitude to define
the term, and could result in inconsistent administration across the agencies. Also, S. 128 says
that agencies must notify Congress if they do not allow small business owners 24 hours to correct
first-time paperwork violations that present a “danger to the public health or safety,” but because
the bill does not define that term, agencies may use another provision that allow civil fines to be
imposed (e.g., violations with the potential for “serious harm to the public interest”).
Some of the bills may also raise constitutional or legal concerns. As noted earlier in this report,
some observers have questioned whether the provisions in H.R. 10 and S. 299 that would require
Congress to approve major rules before they can take effect are constitutional (while others are
equally convinced that such provisions are, in fact, constitutional). Some have also questioned
whether the SBA Chief Counsel for Advocacy can take all of another agency’s rules with a
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SEISNSE out of effect if the agency has failed to complete the required reviews of their rules and
compliance guides (as S. 474 provides).
Another potential policy issue may arise as a consequence of statutory requirements for cost-
benefit analysis, and requirements that the benefits of agencies’ regulations exceed or “justify”
the costs. Although Executive Orders 12866 and 13563 currently contain such requirements, they
also say that agencies are to do so “to the extent permitted by law.” Some authorizing legislation
does not permit the consideration of costs in setting health or safety standards, and other
legislation is silent about the role of costs. The Supreme Court, in a unanimous decision written
by Justice Scalia, has said that Section 109(b)(1) of the Clean Air Act prevents the EPA
Administrator from taking costs into consideration in setting standards for certain pollutants.119 If
Congress were to codify the analytical requirements in Executive Order 12866, they could be
interpreted as a “supermandate” that would supplant the previous legislative standards. Concerns
about such effects were a primary reason why similar efforts to legislatively require cost-benefit
analysis were unsuccessful in the mid-1990s.120

Author Contact Information

Curtis W. Copeland

Specialist in American National Government
cwcopeland@crs.loc.gov, 7-0632



119 Whitman v. American Trucking Associations, 531 U.S. 457 (2001).
120 For example, Section 623 of S. 343 (104th Congress) stated that no final major rule could be issued unless the
agency concluded that the potential benefits of the rule “outweigh” the potential costs of the rule, and that the rule
would provide greater net benefits to society than “any of the reasonable alternatives” identified during the rulemaking
process. President Clinton opposed this section of the bill, saying that it would “override every single health and safety
law on the books.” Testimony of Sally Katzen, OIRA Administrator, in U.S. Congress, Senate Committee on
Governmental Affairs, Regulatory Reform, hearings, 104th Cong., 1st sess., March 8, 1995, S.Hrg. 104-419, p. 435.
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