H.R. 4078 (112th): Red Tape Reduction and Small Business Job Creation Act

112th Congress, 2011–2013. Text as of Jul 31, 2012 (Placed on Calendar in the Senate).

Status & Summary | PDF | Source: GPO

II

Calendar No. 477

112th CONGRESS

2d Session

H. R. 4078

IN THE SENATE OF THE UNITED STATES

July 30, 2012

Received; read the first time

July 31, 2012

Read the second time and placed on the calendar

AN ACT

To provide that no agency may take any significant regulatory action until the unemployment rate is equal to or less than 6.0 percent.

1.

Short title

This Act may be cited as the Red Tape Reduction and Small Business Job Creation Act.

2.

Table of contents

The table of contents for this Act is as follows:

Sec. 1. Short title.

Sec. 2. Table of contents.

Title I—Regulatory Freeze for Jobs

Sec. 101. Short title.

Sec. 102. Moratorium on significant regulatory actions.

Sec. 103. Waivers and exceptions.

Sec. 104. Judicial review.

Sec. 105. Definitions.

Title II—Midnight Rule Relief

Sec. 201. Short title.

Sec. 202. Moratorium on midnight rules.

Sec. 203. Special rule on statutory, regulatory, and judicial deadlines.

Sec. 204. Exception.

Sec. 205. Definitions.

Title III—Regulatory Decrees and Settlements

Sec. 301. Short title.

Sec. 302. Consent decree and settlement reform.

Sec. 303. Motions to modify consent decrees.

Sec. 304. Effective date.

Title IV—Unfunded Mandates Information and Transparency

Sec. 401. Short title.

Sec. 402. Purpose.

Sec. 403. Providing for Congressional Budget Office studies on policies involving changes in conditions of grant aid.

Sec. 404. Clarifying the definition of direct costs to reflect Congressional Budget Office practice.

Sec. 405. Expanding the scope of reporting requirements to include regulations imposed by independent regulatory agencies.

Sec. 406. Amendments to replace Office of Management and Budget with Office of Information and Regulatory Affairs.

Sec. 407. Applying substantive point of order to private sector mandates.

Sec. 408. Regulatory process and principles.

Sec. 409. Expanding the scope of statements to accompany significant regulatory actions.

Sec. 410. Enhanced stakeholder consultation.

Sec. 411. New authorities and responsibilities for Office of Information and Regulatory Affairs.

Sec. 412. Retrospective analysis of existing Federal regulations.

Sec. 413. Expansion of judicial review.

Title V—Improved Coordination of Agency Actions on Environmental Documents

Sec. 501. Short title.

Sec. 502. Coordination of agency administrative operations for efficient decisionmaking.

Title VI—Securities and Exchange Commission Regulatory Accountability

Sec. 601. Short title.

Sec. 602. Consideration by the Securities and Exchange Commission of the costs and benefits of its regulations and certain other agency actions.

Sec. 603. Sense of Congress relating to other regulatory entities.

Sec. 604. Interpretive guidance null and void.

Sec. 605. Other SEC action prohibited.

Title VII—Consideration by Commodity Futures Trading Commission of Certain Costs and Benefits

Sec. 701. Consideration by the Commodity Futures Trading Commission of the costs and benefits of its regulations and orders.

Title VIII—Ensuring High Standards for Agency Use of Scientific Information

Sec. 801. Requirement for final guidelines.

Title IX—Tracking the Cost to Taxpayers of Federal Litigation

Sec. 901. Short title.

Sec. 902. Modification of equal access to justice provisions.

I

Regulatory Freeze for Jobs

101.

Short title

This title may be cited as the Regulatory Freeze for Jobs Act of 2012.

102.

Moratorium on significant regulatory actions

(a)

Moratorium

An agency may not take any significant regulatory action during the period beginning on the date of the enactment of this Act and ending on the date that the Secretary of Labor submits the report under subsection (b).

(b)

Determination

The Secretary of Labor shall submit a report to the Director of the Office of Management and Budget when the Secretary determines that the Bureau of Labor Statistics average of monthly unemployment rates for any quarter beginning after the date of the enactment of this Act is equal to or less than 6.0 percent.

103.

Waivers and exceptions

(a)

In general

Notwithstanding any other provision of this title, an agency may take a significant regulatory action only in accordance with subsection (b), (c), or (d) during the period described in section 102(a).

(b)

Presidential waiver

An agency may take a significant regulatory action if the President determines by Executive Order that the significant regulatory action is—

(1)

necessary because of an imminent threat to health or safety or other emergency;

(2)

necessary for the enforcement of criminal or civil rights laws;

(3)

necessary for the national security of the United States; or

(4)

issued pursuant to any statute implementing an international trade agreement.

(c)

Deregulatory exception

An agency may take a significant regulatory action if the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget certifies in writing that the significant regulatory action is limited to repealing an existing rule.

(d)

Congressional waivers

(1)

Submission

For any significant regulatory action not eligible for a Presidential waiver pursuant to subsection (b), the President may submit a written request to Congress for a waiver of the application of section 102 for such action.

(2)

Contents

A submission by the President under this subsection shall—

(A)

identify the significant regulatory action and the scope of the requested waiver;

(B)

describe all the reasons the significant regulatory action is necessary to protect the public health, safety, or welfare; and

(C)

include an explanation of why the significant regulatory action is ineligible for a Presidential waiver under subsection (b).

(3)

Congressional action

Congress shall give expeditious consideration and take appropriate legislative action with respect to any submission by the President under this subsection.

104.

Judicial review

(a)

Review

Any party adversely affected or aggrieved by any rule or guidance resulting from a regulatory action taken in violation of this title is entitled to judicial review in accordance with chapter 7 of title 5, United States Code. Any determination by either the President or the Secretary of Labor under this title shall be subject to judicial review under such chapter.

(b)

Jurisdiction

Each court having jurisdiction to review any rule or guidance resulting from a significant regulatory action for compliance with any other provision of law shall have jurisdiction to review all claims under this title.

(c)

Relief

In granting any relief in any civil action under this section, the court shall order the agency to take corrective action consistent with this title and chapter 7 of title 5, United States Code, including remanding the rule or guidance resulting from the significant regulatory action to the agency and enjoining the application or enforcement of that rule or guidance, unless the court finds by a preponderance of the evidence that application or enforcement is required to protect against an imminent and serious threat to the national security of the United States.

(d)

Reasonable attorney’s fees for small businesses

The court shall award reasonable attorney’s fees and costs to a substantially prevailing small business in any civil action arising under this title. A small business may qualify as substantially prevailing even without obtaining a final judgment in its favor if the agency that took the significant regulatory action changes its position after the civil action is filed. Such award shall be paid out of the administrative budget of the office in the agency that took the challenged agency action.

(e)

Limitation on commencing civil action

A party may seek and obtain judicial review during the 1-year period beginning on the date of the challenged agency action or within 90 days after an enforcement action or notice thereof, except that where another provision of law requires that a civil action be commenced before the expiration of that 1-year period, such lesser period shall apply.

(f)

Small business defined

In this section, the term small business means any business, including an unincorporated business or a sole proprietorship, that employs not more than 500 employees or that has a net worth of less than $7,000,000 on the date a civil action arising under this title is filed.

105.

Definitions

In this title:

(1)

Agency

The term agency has the meaning given that term under section 551 of title 5, United States Code, except that such term does not include—

(A)

the Board of Governors of the Federal Reserve System;

(B)

the Federal Open Market Committee; or

(C)

the United States Postal Service.

(2)

Regulatory action

The term regulatory action means any substantive action by an agency that promulgates or is expected to lead to the promulgation of a final rule or regulation, including a notice of inquiry, an advance notice of proposed rulemaking, and a notice of proposed rulemaking.

(3)

Rule

The term rule has the meaning given that term under section 551 of title 5, United States Code.

(4)

Significant regulatory action

The term significant regulatory action means any regulatory action that is likely to result in a rule or guidance that the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget finds is likely to have an annual cost to the economy of $50,000,000 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, small entities, or State, local, or tribal governments or communities. In determining the annual cost to the economy under this paragraph, the Administrator shall take into account any expected change in revenue of businesses that will be caused by such regulatory action, as well as any change in revenue of businesses that has already taken place as businesses prepare for the implementation of the regulatory action. If meeting that definition, such term includes any requirement by the Secretary of the Treasury, except to the extent provided in Treasury Regulations as in effect on February 21, 2011, that a payor of interest make an information return in the case of interest—

(1)

which is described in section 871(i)(2)(A) of the Internal Revenue Code of 1986, and

(2)

which is paid—

(A)

to a nonresident alien, and

(B)

on a deposit maintained at an office within the United States.

(5)

Small entity

The term small entity has the meaning given that term under section 601(6) of title 5, United States Code.

II

Midnight Rule Relief

201.

Short title

This title may be cited as the Midnight Rule Relief Act of 2012.

202.

Moratorium on midnight rules

Except as provided under sections 203 and 204, during the moratorium period, an agency may not propose or finalize any midnight rule that the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget finds is likely to result in an annual cost to the economy of $50,000,000 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, small entities, or State, local, or tribal governments or communities.

203.

Special rule on statutory, regulatory, and judicial deadlines

(a)

In general

Section 202 shall not apply with respect to any deadline—

(1)

for, relating to, or involving any midnight rule;

(2)

that was established before the beginning of the moratorium period; and

(3)

that is required to be taken during the moratorium period.

(b)

Publication of deadlines

Not later than 30 days after the beginning of a moratorium period, the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget shall identify and publish in the Federal Register a list of deadlines covered by subsection (a).

204.

Exception

(a)

Emergency exception

Section 202 shall not apply to a midnight rule if the President determines that the midnight rule is—

(1)

necessary because of an imminent threat to health or safety or other emergency;

(2)

necessary for the enforcement of criminal or civil rights laws;

(3)

necessary for the national security of the United States; or

(4)

issued pursuant to any statute implementing an international trade agreement.

(b)

Deregulatory exception

Section 202 shall not apply to a midnight rule that the Administrator of the Office of Information and Regulatory Affairs within the Office of Management and Budget certifies in writing is limited to repealing an existing rule.

(c)

Notice of exceptions

Not later than 30 days after a determination under subsection (a) or a certification is made under subsection (b), the head of the relevant agency shall publish in the Federal Register any midnight rule excluded from the moratorium period due to an exception under this section.

205.

Definitions

In this title:

(1)

Agency

The term agency has the meaning given that term under section 551 of title 5, United States Code, except that such term does not include—

(A)

the Board of Governors of the Federal Reserve System;

(B)

the Federal Open Market Committee; or

(C)

the United States Postal Service.

(2)

Deadline

The term deadline means any date certain for fulfilling any obligation or exercising any authority established by or under any Federal statute or rule, or by or under any court order implementing any Federal statute, regulation, or rule.

(3)

Moratorium period

The term moratorium period means the day after the day referred to in section 1 of title 3, United States Code, through January 20 of the following year, in which a President is not serving a consecutive term.

(4)

Midnight rule

The term midnight rule means an agency statement of general applicability and future effect, issued during the moratorium period, that is intended to have the force and effect of law and is designed—

(A)

to implement, interpret, or prescribe law or policy; or

(B)

to describe the procedure or practice requirements of an agency.

(5)

Rule

The term rule has the meaning given that term under section 551 of title 5, United States Code.

(6)

Small entity

The term small entity has the meaning given that term under section 601(6) of title 5, United States Code.

III

Regulatory Decrees and Settlements

301.

Short title

This title may be cited as the Sunshine for Regulatory Decrees and Settlements Act of 2012.

302.

Consent decree and settlement reform

(a)

Application

The provisions of this section apply in the case of—

(1)

a consent decree or settlement agreement in an action to compel agency action alleged to be unlawfully withheld or unreasonably delayed that pertains to a regulatory action that affects the rights of private parties other than the plaintiff or the rights of State, local or Tribal government entities—

(A)

brought under chapter 7 of title 5, United States Code; or

(B)

brought under any other statute authorizing such an action; and

(2)

any other consent decree or settlement agreement that requires agency action that pertains to a regulatory action that affects the rights of private parties other than the plaintiff or the rights of State, local or Tribal government entities.

(b)

In general

In the case of an action to be resolved by a consent decree or a settlement agreement described in paragraph (1), the following shall apply:

(1)

The complaint in the action, the consent decree or settlement agreement, the statutory basis for the consent decree or settlement agreement and its terms, and any award of attorneys’ fees or costs shall be published, including electronically, in a readily accessible manner by the defendant agency.

(2)

Until the conclusion of an opportunity for affected parties to intervene in the action, a party may not file with the court a motion for a consent decree or to dismiss the case pursuant to a settlement agreement.

(3)

In considering a motion to intervene by any party that would be affected by the agency action in dispute, the court shall presume, subject to rebuttal, that the interests of that party would not be represented adequately by the current parties to the action. In considering a motion to intervene filed by a State, local or Tribal government entity, the court shall take due account of whether the movant—

(A)

administers jointly with the defendant agency the statutory provisions that give rise to the regulatory duty alleged in the complaint; or

(B)

administers State, local or Tribal regulatory authority that would be preempted by the defendant agency’s discharge of the regulatory duty alleged in the complaint.

(4)

If the court grants a motion to intervene in the action, the court shall include the plaintiff, the defendant agency, and the intervenors in settlement discussions. Settlement efforts conducted shall be pursuant to a court’s mediation or alternative dispute resolution program, or by a district judge, magistrate judge, or special master, as determined by the assigned judge.

(5)

The defendant agency shall publish in the Federal Register and by electronic means any proposed consent decree or settlement agreement for no fewer than 60 days of public comment before filing it with the court, including a statement of the statutory basis for the proposed consent decree or settlement agreement and its terms, allowing comment on any issue related to the matters alleged in the complaint or addressed or affected by the consent decree or settlement agreement.

(6)

The defendant agency shall—

(A)

respond to public comments received under paragraph (5); and

(B)

when moving that the court enter the consent decree or for dismissal pursuant to the settlement agreement—

(i)

inform the court of the statutory basis for the proposed consent decree or settlement agreement and its terms;

(ii)

submit to the court a summary of the public comments and agency responses;

(iii)

certify the index to the administrative record of the notice and comment proceeding to the court; and

(iv)

make that record fully accessible to the court.

(7)

The court shall include in the judicial record the full administrative record, the index to which was certified by the agency under paragraph (6).

(8)

If the consent decree or settlement agreement requires an agency action by a date certain, the agency shall, when moving for entry of the consent decree or dismissal based on the settlement agreement—

(A)

inform the court of any uncompleted mandatory duties to take regulatory action that the decree or agreement does not address;

(B)

how the decree or agreement, if approved, would affect the discharge of those duties; and

(C)

why the decree’s or agreement’s effects on the order in which the agency discharges its mandatory duties is in the public interest.

(9)

The court shall presume, subject to rebuttal, that it is proper to allow amicus participation by any party who filed public comments on the consent decree or settlement agreement during the court’s consideration of a motion to enter the decree or dismiss the case on the basis of the agreement.

(10)

The court shall ensure that the proposed consent decree or settlement agreement allows sufficient time and procedure for the agency to comply with chapter 5 of title 5, United States Code, and other applicable statutes that govern rule making and, unless contrary to the public interest, the provisions of any executive orders that govern rule making.

(11)

The defendant agency may, at its discretion, hold a public hearing pursuant to notice in the Federal Register and by electronic means, on whether to enter into the consent decree or settlement agreement. If such a hearing is held, then, in accordance with paragraph (6), the agency shall submit to the court a summary of the proceedings and the certified index to the hearing record, full access to the hearing record shall be given to the court, and the full hearing record shall be included in the judicial record.

(12)

The Attorney General, in cases litigated by the Department of Justice, or the head of the defendant Federal agency, in cases litigated independently by that agency, shall certify to the court his or her approval of any proposed consent decree or settlement agreement that contains any of the following terms—

(A)

in the case of a consent decree, terms that—

(i)

convert into mandatory duties the otherwise discretionary authorities of an agency to propose, promulgate, revise or amend regulations;

(ii)

commit the agency to expend funds that Congress has not appropriated and that have not been budgeted for the action in question, or commit an agency to seek a particular appropriation or budget authorization;

(iii)

divest the agency of discretion committed to it by Congress or the Constitution, whether such discretionary power was granted to respond to changing circumstances, to make policy or managerial choices, or to protect the rights of third parties; or

(iv)

otherwise afford relief that the court could not enter on its own authority upon a final judgment in the litigation; or

(B)

in the case of a settlement agreement, terms that—

(i)

interfere with the agency’s authority to revise, amend, or issue rules through the procedures set forth in chapter 5 of title 5, United States Code, or any other statute or executive order prescribing rule making procedures for rule makings that are the subject of the settlement agreement;

(ii)

commit the agency to expend funds that Congress has not appropriated and that have not been budgeted for the action in question; or

(iii)

provide a remedy for the agency’s failure to comply with the terms of the settlement agreement other than the revival of the action resolved by the settlement agreement, if the agreement commits the agency to exercise its discretion in a particular way and such discretionary power was committed to the agency by Congress or the Constitution to respond to changing circumstances, to make policy or managerial choices, or to protect the rights of third parties.

(c)

Annual reports

Each agency shall submit an annual report to Congress on the number, identity, and content of complaints, consent decrees, and settlement agreements described in paragraph (1) for that year, the statutory basis for each consent decree or settlement agreement and its terms, and any awards of attorneys fees or costs in actions resolved by such decrees or agreements.

303.

Motions to modify consent decrees

When a defendant agency moves the court to modify a previously entered consent decree described under section 302 and the basis of the motion is that the terms of the decree are no longer fully in the public interest due to the agency’s obligations to fulfill other duties or due to changed facts and circumstances, the court shall review the motion and the consent decree de novo.

304.

Effective date

The provisions of this title apply to any covered consent decree or settlement agreement proposed to a court after the date of enactment of this title.

IV

Unfunded Mandates Information and Transparency

401.

Short title

This title may be cited as the Unfunded Mandates Information and Transparency Act of 2012.

402.

Purpose

The purpose of this title is—

(1)

to improve the quality of the deliberations of Congress with respect to proposed Federal mandates by—

(A)

providing Congress and the public with more complete information about the effects of such mandates; and

(B)

ensuring that Congress acts on such mandates only after focused deliberation on their effects; and

(2)

to enhance the ability of Congress and the public to identify Federal mandates that may impose undue harm on consumers, workers, employers, small businesses, and State, local, and tribal governments.

403.

Providing for Congressional Budget Office studies on policies involving changes in conditions of grant aid

Section 202(g) of the Congressional Budget Act of 1974 (2 U.S.C. 602(g)) is amended by adding at the end the following new paragraph:

(3)

Additional studies

At the request of any Chairman or ranking member of the minority of a Committee of the Senate or the House of Representatives, the Director shall conduct an assessment comparing the authorized level of funding in a bill or resolution to the prospective costs of carrying out any changes to a condition of Federal assistance being imposed on State, local, or tribal governments participating in the Federal assistance program concerned or, in the case of a bill or joint resolution that authorizes such sums as are necessary, an assessment of an estimated level of funding compared to such costs.

.

404.

Clarifying the definition of direct costs to reflect Congressional Budget Office practice

Section 421(3) of the Congressional Budget Act of 1974 (2 U.S.C. 658(3)(A)(i)) is amended—

(1)

in subparagraph (A)(i), by inserting incur or before be required; and

(2)

in subparagraph (B), by inserting after to spend the following: or could forgo in profits, including costs passed on to consumers or other entities taking into account, to the extent practicable, behavioral changes,.

405.

Expanding the scope of reporting requirements to include regulations imposed by independent regulatory agencies

Paragraph (1) of section 421 of the Congressional Budget Act of 1974 (2 U.S.C. 658) is amended by striking , but does not include independent regulatory agencies and inserting , except it does not include the Board of Governors of the Federal Reserve System or the Federal Open Market Committee.

406.

Amendments to replace Office of Management and Budget with Office of Information and Regulatory Affairs

The Unfunded Mandates Reform Act of 1995 (Public Law 104–4; 2 U.S.C. 1511 et seq.) is amended—

(1)

in section 103(c) (2 U.S.C. 1511(c))—

(A)

in the subsection heading, by striking Office of Management and Budget and inserting Office of Information and Regulatory Affairs; and

(B)

by striking Director of the Office of Management and Budget and inserting Administrator of the Office of Information and Regulatory Affairs;

(2)

in section 205(c) (2 U.S.C. 1535(c))—

(A)

in the subsection heading, by striking OMB; and

(B)

by striking Director of the Office of Management and Budget and inserting Administrator of the Office of Information and Regulatory Affairs; and

(3)

in section 206 (2 U.S.C. 1536), by striking Director of the Office of Management and Budget and inserting Administrator of the Office of Information and Regulatory Affairs.

407.

Applying substantive point of order to private sector mandates

Section 425(a)(2) of the Congressional Budget Act of 1974 (2 U.S.C. 658d(a)(2)) is amended—

(1)

by striking Federal intergovernmental mandates and inserting Federal mandates; and

(2)

by inserting or 424(b)(1) after section 424(a)(1).

408.

Regulatory process and principles

Section 201 of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531) is amended to read as follows:

201.

Regulatory process and principles

(a)

In general

Each agency shall, unless otherwise expressly prohibited by law, assess the effects of Federal regulatory actions on State, local, and tribal governments and the private sector (other than to the extent that such regulatory actions incorporate requirements specifically set forth in law) in accordance with the following principles:

(1)

Each agency shall identify the problem that it intends to address (including, if applicable, the failures of private markets or public institutions that warrant new agency action) as well as assess the significance of that problem.

(2)

Each agency shall examine whether existing regulations (or other law) have created, or contributed to, the problem that a new regulation is intended to correct and whether those regulations (or other law) should be modified to achieve the intended goal of regulation more effectively.

(3)

Each agency shall identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public.

(4)

If an agency determines that a regulation is the best available method of achieving the regulatory objective, it shall design its regulations in the most cost-effective manner to achieve the regulatory objective. In doing so, each agency shall consider incentives for innovation, consistency, predictability, the costs of enforcement and compliance (to the government, regulated entities, and the public), flexibility, distributive impacts, and equity.

(5)

Each agency shall assess both the costs and the benefits of the intended regulation and, recognizing that some costs and benefits are difficult to quantify, propose or adopt a regulation, unless expressly prohibited by law, only upon a reasoned determination that the benefits of the intended regulation justify its costs.

(6)

Each agency shall base its decisions on the best reasonably obtainable scientific, technical, economic, and other information concerning the need for, and consequences of, the intended regulation.

(7)

Each agency shall identify and assess alternative forms of regulation and shall, to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt.

(8)

Each agency shall avoid regulations that are inconsistent, incompatible, or duplicative with its other regulations or those of other Federal agencies.

(9)

Each agency shall tailor its regulations to minimize the costs of the cumulative impact of regulations.

(10)

Each agency shall draft its regulations to be simple and easy to understand, with the goal of minimizing the potential for uncertainty and litigation arising from such uncertainty.

(b)

Regulatory action defined

In this section, the term regulatory action means any substantive action by an agency (normally published in the Federal Register) that promulgates or is expected to lead to the promulgation of a final rule or regulation, including advance notices of proposed rulemaking and notices of proposed rulemaking.

.

409.

Expanding the scope of statements to accompany significant regulatory actions

(a)

In general

Subsection (a) of section 202 of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532) is amended to read as follows:

(a)

In general

Unless otherwise expressly prohibited by law, before promulgating any general notice of proposed rulemaking or any final rule, or within six months after promulgating any final rule that was not preceded by a general notice of proposed rulemaking, if the proposed rulemaking or final rule includes a Federal mandate that may result in an annual effect on State, local, or tribal governments, or to the private sector, in the aggregate of $50,000,000 or more in any 1 year, the agency shall prepare a written statement containing the following:

(1)

The text of the draft proposed rulemaking or final rule, together with a reasonably detailed description of the need for the proposed rulemaking or final rule and an explanation of how the proposed rulemaking or final rule will meet that need.

(2)

An assessment of the potential costs and benefits of the proposed rulemaking or final rule, including an explanation of the manner in which the proposed rulemaking or final rule is consistent with a statutory requirement and avoids undue interference with State, local, and tribal governments in the exercise of their governmental functions.

(3)

A qualitative and quantitative assessment, including the underlying analysis, of benefits anticipated from the proposed rulemaking or final rule (such as the promotion of the efficient functioning of the economy and private markets, the enhancement of health and safety, the protection of the natural environment, and the elimination or reduction of discrimination or bias).

(4)

A qualitative and quantitative assessment, including the underlying analysis, of costs anticipated from the proposed rulemaking or final rule (such as the direct costs both to the Government in administering the final rule and to businesses and others in complying with the final rule, and any adverse effects on the efficient functioning of the economy, private markets (including productivity, employment, and international competitiveness), health, safety, and the natural environment);

(5)

Estimates by the agency, if and to the extent that the agency determines that accurate estimates are reasonably feasible, of—

(A)

the future compliance costs of the Federal mandate; and

(B)

any disproportionate budgetary effects of the Federal mandate upon any particular regions of the nation or particular State, local, or tribal governments, urban or rural or other types of communities, or particular segments of the private sector.

(6)
(A)

A detailed description of the extent of the agency’s prior consultation with the private sector and elected representatives (under section 204) of the affected State, local, and tribal governments.

(B)

A detailed summary of the comments and concerns that were presented by the private sector and State, local, or tribal governments either orally or in writing to the agency.

(C)

A detailed summary of the agency’s evaluation of those comments and concerns.

(7)

A detailed summary of how the agency complied with each of the regulatory principles described in section 201.

.

(b)

Requirement for detailed summary

Subsection (b) of section 202 of such Act is amended by inserting detailed before summary.

410.

Enhanced stakeholder consultation

Section 204 of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1534) is amended—

(1)

in the section heading, by inserting and private sector before input;

(2)

in subsection (a)—

(A)

by inserting , and impacted parties within the private sector (including small business), after on their behalf);

(B)

by striking Federal intergovernmental mandates and inserting Federal mandates; and

(3)

by amending subsection (c) to read as follows:

(c)

Guidelines

For appropriate implementation of subsections (a) and (b) consistent with applicable laws and regulations, the following guidelines shall be followed:

(1)

Consultations shall take place as early as possible, before issuance of a notice of proposed rulemaking, continue through the final rule stage, and be integrated explicitly into the rulemaking process.

(2)

Agencies shall consult with a wide variety of State, local, and tribal officials and impacted parties within the private sector (including small businesses). Geographic, political, and other factors that may differentiate varying points of view should be considered.

(3)

Agencies should estimate benefits and costs to assist with these consultations. The scope of the consultation should reflect the cost and significance of the Federal mandate being considered.

(4)

Agencies shall, to the extent practicable—

(A)

seek out the views of State, local, and tribal governments, and impacted parties within the private sector (including small business), on costs, benefits, and risks; and

(B)

solicit ideas about alternative methods of compliance and potential flexibilities, and input on whether the Federal regulation will harmonize with and not duplicate similar laws in other levels of government.

(5)

Consultations shall address the cumulative impact of regulations on the affected entities.

(6)

Agencies may accept electronic submissions of comments by relevant parties but may not use those comments as the sole method of satisfying the guidelines in this subsection.

.

411.

New authorities and responsibilities for Office of Information and Regulatory Affairs

Section 208 of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1538) is amended to read as follows:

208.

Office of Information and Regulatory Affairs responsibilities

(a)

In General

The Administrator of the Office of Information and Regulatory Affairs shall provide meaningful guidance and oversight so that each agency’s regulations for which a written statement is required under section 202 are consistent with the principles and requirements of this title, as well as other applicable laws, and do not conflict with the policies or actions of another agency. If the Administrator determines that an agency’s regulations for which a written statement is required under section 202 do not comply with such principles and requirements, are not consistent with other applicable laws, or conflict with the policies or actions of another agency, the Administrator shall identify areas of non-compliance, notify the agency, and request that the agency comply before the agency finalizes the regulation concerned.

(b)

Annual Statements to Congress on Agency Compliance

The Director of the Office of Information and Regulatory Affairs annually shall submit to Congress, including the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Government Reform of the House of Representatives, a written report detailing compliance by each agency with the requirements of this title that relate to regulations for which a written statement is required by section 202, including activities undertaken at the request of the Director to improve compliance, during the preceding reporting period. The report shall also contain an appendix detailing compliance by each agency with section 204.

.

412.

Retrospective analysis of existing Federal regulations

The Unfunded Mandates Reform Act of 1995 (Public Law 104–4; 2 U.S.C. 1511 et seq.) is amended—

(1)

by redesignating section 209 as section 210; and

(2)

by inserting after section 208 the following new section 209:

209.

Retrospective analysis of existing Federal regulations

(a)

Requirement

At the request of the chairman or ranking minority member of a standing or select committee of the House of Representatives or the Senate, an agency shall conduct a retrospective analysis of an existing Federal regulation promulgated by an agency.

(b)

Report

Each agency conducting a retrospective analysis of existing Federal regulations pursuant to subsection (a) shall submit to the chairman of the relevant committee, Congress, and the Comptroller General a report containing, with respect to each Federal regulation covered by the analysis—

(1)

a copy of the Federal regulation;

(2)

the continued need for the Federal regulation;

(3)

the nature of comments or complaints received concerning the Federal regulation from the public since the Federal regulation was promulgated;

(4)

the extent to which the Federal regulation overlaps, duplicates, or conflicts with other Federal regulations, and, to the extent feasible, with State and local governmental rules;

(5)

the degree to which technology, economic conditions, or other factors have changed in the area affected by the Federal regulation;

(6)

a complete analysis of the retrospective direct costs and benefits of the Federal regulation that considers studies done outside the Federal Government (if any) estimating such costs or benefits; and

(7)

any litigation history challenging the Federal regulation.

.

413.

Expansion of judicial review

Section 401(a) of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1571(a)) is amended—

(1)

in paragraphs (1) and (2)(A)—

(A)

by striking sections 202 and 203(a)(1) and (2) each place it appears and inserting sections 201, 202, 203(a)(1) and (2), and 205(a) and (b); and

(B)

by striking only each place it appears;

(2)

in paragraph (2)(B), by striking section 202 and all that follows through the period at the end and inserting the following: section 202, prepare the written plan under section 203(a)(1) and (2), or comply with section 205(a) and (b), a court may compel the agency to prepare such written statement, prepare such written plan, or comply with such section.; and

(3)

in paragraph (3), by striking written statement or plan is required and all that follows through shall not and inserting the following: written statement under section 202, a written plan under section 203(a)(1) and (2), or compliance with sections 201 and 205(a) and (b) is required, the inadequacy or failure to prepare such statement (including the inadequacy or failure to prepare any estimate, analysis, statement, or description), to prepare such written plan, or to comply with such section may.

V

Improved Coordination of Agency Actions on Environmental Documents

501.

Short title

This title may be cited as the Responsibly And Professionally Invigorating Development Act of 2012 or as the RAPID Act.

502.

Coordination of agency administrative operations for efficient decisionmaking

(a)

In general

Part I of chapter 5 of title 5, United States Code, is amended by inserting after subchapter II the following:

IIA

Interagency coordination regarding permitting

560.

Coordination of agency administrative operations for efficient decisionmaking

(a)

Congressional declaration of purpose

The purpose of this subchapter is to establish a framework and procedures to streamline, increase the efficiency of, and enhance coordination of agency administration of the regulatory review, environmental decisionmaking, and permitting process for projects undertaken, reviewed, or funded by Federal agencies. This subchapter will ensure that agencies administer the regulatory process in a manner that is efficient so that citizens are not burdened with regulatory excuses and time delays.

(b)

Definitions

For purposes of this subchapter, the term—

(1)

agency means any agency, department, or other unit of Federal, State, local, or Indian tribal government;

(2)

category of projects means 2 or more projects related by project type, potential environmental impacts, geographic location, or another similar project feature or characteristic;

(3)

environmental assessment means a concise public document for which a Federal agency is responsible that serves to—

(A)

briefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact;

(B)

aid an agency’s compliance with NEPA when no environmental impact statement is necessary; and

(C)

facilitate preparation of an environmental impact statement when one is necessary;

(4)

environmental impact statement means the detailed statement of significant environmental impacts required to be prepared under NEPA;

(5)

environmental review means the Federal agency procedures for preparing an environmental impact statement, environmental assessment, categorical exclusion, or other document under NEPA;

(6)

environmental decisionmaking process means the Federal agency procedures for undertaking and completion of any environmental permit, decision, approval, review, or study under any Federal law other than NEPA for a project subject to an environmental review;

(7)

environmental document means an environmental assessment or environmental impact statement, and includes any supplemental document or document prepared pursuant to a court order;

(8)

finding of no significant impact means a document by a Federal agency briefly presenting the reasons why a project, not otherwise subject to a categorical exclusion, will not have a significant effect on the human environment and for which an environmental impact statement therefore will not be prepared;

(9)

lead agency means the Federal agency preparing or responsible for preparing the environmental document;

(10)

NEPA means the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.);

(11)

project means major Federal actions that are construction activities undertaken with Federal funds or that are construction activities that require approval by a permit or regulatory decision issued by a Federal agency;

(12)

project sponsor means the agency or other entity, including any private or public-private entity, that seeks approval for a project or is otherwise responsible for undertaking a project; and

(13)

record of decision means a document prepared by a lead agency under NEPA following an environmental impact statement that states the lead agency’s decision, identifies the alternatives considered by the agency in reaching its decision and states whether all practicable means to avoid or minimize environmental harm from the alternative selected have been adopted, and if not, why they were not adopted.

(c)

Preparation of environmental documents

Upon the request of the lead agency, the project sponsor shall be authorized to prepare any document for purposes of an environmental review required in support of any project or approval by the lead agency if the lead agency furnishes oversight in such preparation and independently evaluates such document and the document is approved and adopted by the lead agency prior to taking any action or making any approval based on such document.

(d)

Adoption and use of documents

(1)

Documents prepared under nepa

(A)

Not more than 1 environmental impact statement and 1 environmental assessment shall be prepared under NEPA for a project (except for supplemental environmental documents prepared under NEPA or environmental documents prepared pursuant to a court order), and, except as otherwise provided by law, the lead agency shall prepare the environmental impact statement or environmental assessment. After the lead agency issues a record of decision, no Federal agency responsible for making any approval for that project may rely on a document other than the environmental document prepared by the lead agency.

(B)

Upon the request of a project sponsor, a lead agency may adopt, use, or rely upon secondary and cumulative impact analyses included in any environmental document prepared under NEPA for projects in the same geographic area where the secondary and cumulative impact analyses provide information and data that pertains to the NEPA decision for the project under review.

(2)

State environmental documents; Supplemental documents

(A)

Upon the request of a project sponsor, a lead agency may adopt a document that has been prepared for a project under State laws and procedures as the environmental impact statement or environmental assessment for the project, provided that the State laws and procedures under which the document was prepared provide environmental protection and opportunities for public involvement that are substantially equivalent to NEPA.

(B)

An environmental document adopted under subparagraph (A) is deemed to satisfy the lead agency’s obligation under NEPA to prepare an environmental impact statement or environmental assessment.

(C)

In the case of a document described in subparagraph (A), during the period after preparation of the document but before its adoption by the lead agency, the lead agency shall prepare and publish a supplement to that document if the lead agency determines that—

(i)

a significant change has been made to the project that is relevant for purposes of environmental review of the project; or

(ii)

there have been significant changes in circumstances or availability of information relevant to the environmental review for the project.

(D)

If the agency prepares and publishes a supplemental document under subparagraph (C), the lead agency may solicit comments from agencies and the public on the supplemental document for a period of not more than 45 days beginning on the date of the publication of the supplement.

(E)

A lead agency shall issue its record of decision or finding of no significant impact, as appropriate, based upon the document adopted under subparagraph (A), and any supplements thereto.

(3)

Contemporaneous projects

If the lead agency determines that there is a reasonable likelihood that the project will have similar environmental impacts as a similar project in geographical proximity to the project, and that similar project was subject to environmental review or similar State procedures within the 5 year period immediately preceding the date that the lead agency makes that determination, the lead agency may adopt the environmental document that resulted from that environmental review or similar State procedure. The lead agency may adopt such an environmental document, if it is prepared under State laws and procedures only upon making a favorable determination on such environmental document pursuant to paragraph (2)(A).

(e)

Participating agencies

(1)

In general

The lead agency shall be responsible for inviting and designating participating agencies in accordance with this subsection. The lead agency shall provide the invitation or notice of the designation in writing.

(2)

Federal participating agencies

Any Federal agency that is required to adopt the environmental document of the lead agency for a project shall be designated as a participating agency and shall collaborate on the preparation of the environmental document, unless the Federal agency informs the lead agency, in writing, by a time specified by the lead agency in the designation of the Federal agency that the Federal agency—

(A)

has no jurisdiction or authority with respect to the project;

(B)

has no expertise or information relevant to the project; and

(C)

does not intend to submit comments on the project.

(3)

Invitation

The lead agency shall identify, as early as practicable in the environmental review for a project, any agencies other than an agency described in paragraph (2) that may have an interest in the project, including, where appropriate, Governors of affected States, and heads of appropriate tribal and local (including county) governments, and shall invite such identified agencies and officials to become participating agencies in the environmental review for the project. The invitation shall set a deadline of 30 days for responses to be submitted, which may only be extended by the lead agency for good cause shown. Any agency that fails to respond prior to the deadline shall be deemed to have declined the invitation.

(4)

Effect of declining participating agency invitation

Any agency that declines a designation or invitation by the lead agency to be a participating agency shall be precluded from submitting comments on any document prepared under NEPA for that project or taking any measures to oppose, based on the environmental review, any permit, license, or approval related to that project.

(5)

Effect of designation

Designation as a participating agency under this subsection does not imply that the participating agency—

(A)

supports a proposed project; or

(B)

has any jurisdiction over, or special expertise with respect to evaluation of, the project.

(6)

Cooperating agency

A participating agency may also be designated by a lead agency as a cooperating agency under the regulations contained in part 1500 of title 40, Code of Federal Regulations, as in effect on January 1, 2011. Designation as a cooperating agency shall have no effect on designation as participating agency. No agency that is not a participating agency may be designated as a cooperating agency.

(7)

Concurrent reviews

Each Federal agency shall—

(A)

carry out obligations of the Federal agency under other applicable law concurrently and in conjunction with the review required under NEPA; and

(B)

in accordance with the rules made by the Council on Environmental Quality pursuant to subsection (n)(1), make and carry out such rules, policies, and procedures as may be reasonably necessary to enable the agency to ensure completion of the environmental review and environmental decisionmaking process in a timely, coordinated, and environmentally responsible manner.

(8)

Comments

Each participating agency shall limit its comments on a project to areas that are within the authority and expertise of such participating agency. Each participating agency shall identify in such comments the statutory authority of the participating agency pertaining to the subject matter of its comments. The lead agency shall not act upon, respond to or include in any document prepared under NEPA, any comment submitted by a participating agency that concerns matters that are outside of the authority and expertise of the commenting participating agency.

(f)

Project initiation request

(1)

Notice

A project sponsor shall provide the Federal agency responsible for undertaking a project with notice of the initiation of the project by providing a description of the proposed project, the general location of the proposed project, and a statement of any Federal approvals anticipated to be necessary for the proposed project, for the purpose of informing the Federal agency that the environmental review should be initiated.

(2)

Lead agency initiation

The agency receiving a project initiation notice under paragraph (1) shall promptly identify the lead agency for the project, and the lead agency shall initiate the environmental review within a period of 45 days after receiving the notice required by paragraph (1) by inviting or designating agencies to become participating agencies, or, where the lead agency determines that no participating agencies are required for the project, by taking such other actions that are reasonable and necessary to initiate the environmental review.

(g)

Alternatives analysis

(1)

Participation

As early as practicable during the environmental review, but no later than during scoping for a project requiring the preparation of an environmental impact statement, the lead agency shall provide an opportunity for involvement by cooperating agencies in determining the range of alternatives to be considered for a project.

(2)

Range of alternatives

Following participation under paragraph (1), the lead agency shall determine the range of alternatives for consideration in any document which the lead agency is responsible for preparing for the project, subject to the following limitations:

(A)

No evaluation of certain alternatives

No Federal agency shall evaluate any alternative that was identified but not carried forward for detailed evaluation in an environmental document or evaluated and not selected in any environmental document prepared under NEPA for the same project.

(B)

Only feasible alternatives evaluated

Where a project is being constructed, managed, funded, or undertaken by a project sponsor that is not a Federal agency, Federal agencies shall only be required to evaluate alternatives that the project sponsor could feasibly undertake, consistent with the purpose of and the need for the project, including alternatives that can be undertaken by the project sponsor and that are technically and economically feasible.

(3)

Methodologies

(A)

In general

The lead agency shall determine, in collaboration with cooperating agencies at appropriate times during the environmental review, the methodologies to be used and the level of detail required in the analysis of each alternative for a project. The lead agency shall include in the environmental document a description of the methodologies used and how the methodologies were selected.

(B)

No evaluation of inappropriate alternatives

When a lead agency determines that an alternative does not meet the purpose and need for a project, that alternative is not required to be evaluated in detail in an environmental document.

(4)

Preferred alternative

At the discretion of the lead agency, the preferred alternative for a project, after being identified, may be developed to a higher level of detail than other alternatives in order to facilitate the development of mitigation measures or concurrent compliance with other applicable laws if the lead agency determines that the development of such higher level of detail will not prevent the lead agency from making an impartial decision as to whether to accept another alternative which is being considered in the environmental review.

(5)

Employment analysis

The evaluation of each alternative in an environmental impact statement or an environmental assessment shall identify the potential effects of the alternative on employment, including potential short-term and long-term employment increases and reductions and shifts in employment.

(h)

Coordination and scheduling

(1)

Coordination plan

(A)

In general

The lead agency shall establish and implement a plan for coordinating public and agency participation in and comment on the environmental review for a project or category of projects to facilitate the expeditious resolution of the environmental review.

(B)

Schedule

(i)

In general

The lead agency shall establish as part of the coordination plan for a project, after consultation with each participating agency and, where applicable, the project sponsor, a schedule for completion of the environmental review. The schedule shall include deadlines, consistent with subsection (i), for decisions under any other Federal laws (including the issuance or denial of a permit or license) relating to the project that is covered by the schedule.

(ii)

Factors for consideration

In establishing the schedule, the lead agency shall consider factors such as—

(I)

the responsibilities of participating agencies under applicable laws;

(II)

resources available to the participating agencies;

(III)

overall size and complexity of the project;

(IV)

overall schedule for and cost of the project;

(V)

the sensitivity of the natural and historic resources that could be affected by the project; and

(VI)

the extent to which similar projects in geographic proximity were recently subject to environmental review or similar State procedures.

(iii)

Compliance with the schedule

(I)

All participating agencies shall comply with the time periods established in the schedule or with any modified time periods, where the lead agency modifies the schedule pursuant to subparagraph (D).

(II)

The lead agency shall disregard and shall not respond to or include in any document prepared under NEPA, any comment or information submitted or any finding made by a participating agency that is outside of the time period established in the schedule or modification pursuant to subparagraph (D) for that agency’s comment, submission or finding.

(III)

If a participating agency fails to object in writing to a lead agency decision, finding or request for concurrence within the time period established under law or by the lead agency, the agency shall be deemed to have concurred in the decision, finding or request.

(C)

Consistency with other time periods

A schedule under subparagraph (B) shall be consistent with any other relevant time periods established under Federal law.

(D)

Modification

The lead agency may—

(i)

lengthen a schedule established under subparagraph (B) for good cause; and

(ii)

shorten a schedule only with the concurrence of the cooperating agencies.

(E)

Dissemination

A copy of a schedule under subparagraph (B), and of any modifications to the schedule, shall be—

(i)

provided within 15 days of completion or modification of such schedule to all participating agencies and to the project sponsor; and

(ii)

made available to the public.

(F)

Roles and responsibility of lead agency

With respect to the environmental review for any project, the lead agency shall have authority and responsibility to take such actions as are necessary and proper, within the authority of the lead agency, to facilitate the expeditious resolution of the environmental review for the project.

(i)

Deadlines

The following deadlines shall apply to any project subject to review under NEPA and any decision under any Federal law relating to such project (including the issuance or denial of a permit or license or any required finding):

(1)

Environmental review deadlines

The lead agency shall complete the environmental review within the following deadlines:

(A)

Environmental impact statement projects

For projects requiring preparation of an environmental impact statement—

(i)

the lead agency shall issue an environmental impact statement within 2 years after the earlier of the date the lead agency receives the project initiation request or a Notice of Intent to Prepare an Environmental Impact Statement is published in the Federal Register; and

(ii)

in circumstances where the lead agency has prepared an environmental assessment and determined that an environmental impact statement will be required, the lead agency shall issue the environmental impact statement within 2 years after the date of publication of the Notice of Intent to Prepare an Environmental Impact Statement in the Federal Register.

(B)

Environmental assessment projects

For projects requiring preparation of an environmental assessment, the lead agency shall issue a finding of no significant impact or publish a Notice of Intent to Prepare an Environmental Impact Statement in the Federal Register within 1 year after the earlier of the date the lead agency receives the project initiation request, makes a decision to prepare an environmental assessment, or sends out participating agency invitations.

(2)

Extensions

(A)

Requirements

The environmental review deadlines may be extended only if—

(i)

a different deadline is established by agreement of the lead agency, the project sponsor, and all participating agencies; or

(ii)

the deadline is extended by the lead agency for good cause.

(B)

Limitation

The environmental review shall not be extended by more than 1 year for a project requiring preparation of an environmental impact statement or by more than 180 days for a project requiring preparation of an environmental assessment.

(3)

Environmental review comments

(A)

Comments on draft environmental impact statement

For comments by agencies and the public on a draft environmental impact statement, the lead agency shall establish a comment period of not more than 60 days after publication in the Federal Register of notice of the date of public availability of such document, unless—

(i)

a different deadline is established by agreement of the lead agency, the project sponsor, and all participating agencies; or

(ii)

the deadline is extended by the lead agency for good cause.

(B)

Other comments

For all other comment periods for agency or public comments in the environmental review process, the lead agency shall establish a comment period of no more than 30 days from availability of the materials on which comment is requested, unless—

(i)

a different deadline is established by agreement of the lead agency, the project sponsor, and all participating agencies; or

(ii)

the deadline is extended by the lead agency for good cause.

(4)

Deadlines for decisions under other laws

Notwithstanding any other provision of law, in any case in which a decision under any other Federal law relating to the undertaking of a project being reviewed under NEPA (including the issuance or denial of a permit or license) is required to be made, the following deadlines shall apply:

(A)

Decisions prior to record of decision or finding of no significant impact

If a Federal agency is required to approve, or otherwise to act upon, a permit, license, or other similar application for approval related to a project prior to the record of decision or finding of no significant impact, such Federal agency shall approve or otherwise act not later than the end of a 90 day period beginning—

(i)

after all other relevant agency review related to the project is complete; and

(ii)

after the lead agency publishes a notice of the availability of the final environmental impact statement or issuance of other final environmental documents, or no later than such other date that is otherwise required by law, whichever event occurs first.

(B)

Other decisions

With regard to any approval or other action related to a project by a Federal agency that is not subject to subparagraph (A), each Federal agency shall approve or otherwise act not later than the end of a period of 180 days beginning—

(i)

after all other relevant agency review related to the project is complete; and

(ii)

after the lead agency issues the record of decision or finding of no significant impact, unless a different deadline is established by agreement of the Federal agency, lead agency, and the project sponsor, where applicable, or the deadline is extended by the Federal agency for good cause, provided that such extension shall not extend beyond a period that is 1 year after the lead agency issues the record of decision or finding of no significant impact.

(C)

Failure to act

In the event that any Federal agency fails to approve, or otherwise to act upon, a permit, license, or other similar application for approval related to a project within the applicable deadline described in subparagraph (A) or (B), the permit, license, or other similar application shall be deemed approved by such agency and the agency shall take action in accordance with such approval within 30 days of the applicable deadline described in subparagraph (A) or (B).

(D)

Final agency action

Any approval under subparagraph (C) is deemed to be final agency action, and may not be reversed by any agency. In any action under chapter 7 seeking review of such a final agency action, the court may not set aside such agency action by reason of that agency action having occurred under this paragraph.

(j)

Issue identification and resolution

(1)

Cooperation

The lead agency and the participating agencies shall work cooperatively in accordance with this section to identify and resolve issues that could delay completion of the environmental review or could result in denial of any approvals required for the project under applicable laws.

(2)

Lead agency responsibilities

The lead agency shall make information available to the participating agencies as early as practicable in the environmental review regarding the environmental, historic, and socioeconomic resources located within the project area and the general locations of the alternatives under consideration. Such information may be based on existing data sources, including geographic information systems mapping.

(3)

Participating agency responsibilities

Based on information received from the lead agency, participating agencies shall identify, as early as practicable, any issues of concern regarding the project’s potential environmental, historic, or socioeconomic impacts. In this paragraph, issues of concern include any issues that could substantially delay or prevent an agency from granting a permit or other approval that is needed for the project.

(4)

Issue resolution

(A)

Meeting of participating agencies

At any time upon request of a project sponsor, the lead agency shall promptly convene a meeting with the relevant participating agencies and the project sponsor, to resolve issues that could delay completion of the environmental review or could result in denial of any approvals required for the project under applicable laws.

(B)

Notice that resolution cannot be achieved

If a resolution cannot be achieved within 30 days following such a meeting and a determination by the lead agency that all information necessary to resolve the issue has been obtained, the lead agency shall notify the heads of all participating agencies, the project sponsor, and the Council on Environmental Quality for further proceedings in accordance with section 204 of NEPA, and shall publish such notification in the Federal Register.

(k)

Report to congress

The head of each Federal agency shall report annually to Congress—

(1)

the projects for which the agency initiated preparation of an environmental impact statement or environmental assessment;

(2)

the projects for which the agency issued a record of decision or finding of no significant impact and the length of time it took the agency to complete the environmental review for each such project;

(3)

the filing of any lawsuits against the agency seeking judicial review of a permit, license, or approval issued by the agency for an action subject to NEPA, including the date the complaint was filed, the court in which the complaint was filed, and a summary of the claims for which judicial review was sought; and

(4)

the resolution of any lawsuits against the agency that sought judicial review of a permit, license, or approval issued by the agency for an action subject to NEPA.

(l)

Limitations on claims

(1)

In general

Notwithstanding any other provision of law, a claim arising under Federal law seeking judicial review of a permit, license, or approval issued by a Federal agency for an action subject to NEPA shall be barred unless—

(A)

in the case of a claim pertaining to a project for which an environmental review was conducted and an opportunity for comment was provided, the claim is filed by a party that submitted a comment during the environmental review on the issue on which the party seeks judicial review, and such comment was sufficiently detailed to put the lead agency on notice of the issue upon which the party seeks judicial review; and

(B)

filed within 180 days after publication of a notice in the Federal Register announcing that the permit, license, or approval is final pursuant to the law under which the agency action is taken, unless a shorter time is specified in the Federal law pursuant to which judicial review is allowed.

(2)

New information

The preparation of a supplemental environmental impact statement, when required, is deemed a separate final agency action and the deadline for filing a claim for judicial review of such action shall be 180 days after the date of publication of a notice in the Federal Register announcing the record of decision for such action. Any claim challenging agency action on the basis of information in a supplemental environmental impact statement shall be limited to challenges on the basis of that information.

(3)

Rule of construction

Nothing in this subsection shall be construed to create a right to judicial review or place any limit on filing a claim that a person has violated the terms of a permit, license, or approval.

(m)

Categories of projects

The authorities granted under this subchapter may be exercised for an individual project or a category of projects.

(n)

Effective date

The requirements of this subchapter shall apply only to environmental reviews and environmental decisionmaking processes initiated after the date of enactment of this subchapter.

(o)

Applicability

Except as provided in subsection (p), this subchapter applies, according to the provisions thereof, to all projects for which a Federal agency is required to undertake an environmental review or make a decision under an environmental law for a project for which a Federal agency is undertaking an environmental review.

(p)

Savings clause

Nothing in this section shall be construed to supersede, amend, or modify sections 134, 135, 139, 325, 326, and 327 of title 23, United States Code, sections 5303 and 5304 of title 49, United States Code, or subtitle C of title I of division A of the Moving Ahead for Progress in the 21st Century Act and the amendments made by such subtitle (Public Law 112–141).

.

(b)

Technical amendment

The table of sections for chapter 5 of title 5, United States Code, is amended by inserting after the item relating to subchapter II the following:

SUBCHAPTER IIA—INTERAGENCY COORDINATION REGARDING PERMITTING

560. Coordination of agency administrative operations for efficient decisionmaking.

.

(c)

Regulations

(1)

Council on environmental quality

Not later than 180 days after the date of enactment of this title, the Council on Environmental Quality shall amend the regulations contained in part 1500 of title 40, Code of Federal Regulations, to implement the provisions of this title and the amendments made by this title, and shall by rule designate States with laws and procedures that satisfy the criteria under section 560(d)(2)(A) of title 5, United States Code.

(2)

Federal agencies

Not later than 120 days after the date that the Council on Environmental Quality amends the regulations contained in part 1500 of title 40, Code of Federal Regulations, to implement the provisions of this title and the amendments made by this title, each Federal agency with regulations implementing the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) shall amend such regulations to implement the provisions of this subchapter.

VI

Securities and Exchange Commission Regulatory Accountability

601.

Short title

This title may be cited as the SEC Regulatory Accountability Act.

602.

Consideration by the Securities and Exchange Commission of the costs and benefits of its regulations and certain other agency actions

Section 23 of the Securities Exchange Act of 1934 (15 U.S.C. 78w) is amended by adding at the end the following:

(e)

Consideration of costs and benefits

(1)

In general

Before issuing a regulation under the securities laws, as defined in section 3(a), the Commission shall—

(A)

clearly identify the nature and source of the problem that the proposed regulation is designed to address, as well as assess the significance of that problem, to enable assessment of whether any new regulation is warranted;

(B)

utilize the Chief Economist to assess the costs and benefits, both qualitative and quantitative, of the intended regulation and propose or adopt a regulation only on a reasoned determination that the benefits of the intended regulation justify the costs of the regulation;

(C)

identify and assess available alternatives to the regulation that were considered, including modification of an existing regulation, together with an explanation of why the regulation meets the regulatory objectives more effectively than the alternatives; and

(D)

ensure that any regulation is accessible, consistent, written in plain language, and easy to understand and shall measure, and seek to improve, the actual results of regulatory requirements.

(2)

Considerations and actions

(A)

Required actions

In deciding whether and how to regulate, the Commission shall assess the costs and benefits of available regulatory alternatives, including the alternative of not regulating, and choose the approach that maximizes net benefits. Specifically, the Commission shall—

(i)

consistent with the requirements of section 3(f) (15 U.S.C. 78c(f)), section 2(b) of the Securities Act of 1933 (15 U.S.C. 77b(b)), section 202(c) of the Investment Advisers Act of 1940 (15 U.S.C. 80b–2(c)), and section 2(c) of the Investment Company Act of 1940 (15 U.S.C. 80a–2(c)), consider whether the rulemaking will promote efficiency, competition, and capital formation;

(ii)

evaluate whether, consistent with obtaining regulatory objectives, the regulation is tailored to impose the least burden on society, including market participants, individuals, businesses of differing sizes, and other entities (including State and local governmental entities), taking into account, to the extent practicable, the cumulative costs of regulations; and

(iii)

evaluate whether the regulation is inconsistent, incompatible, or duplicative of other Federal regulations.

(B)

Additional considerations

In addition, in making a reasoned determination of the costs and benefits of a potential regulation, the Commission shall, to the extent that each is relevant to the particular proposed regulation, take into consideration the impact of the regulation on—

(i)

investor choice;

(ii)

market liquidity in the securities markets; and

(iii)

small businesses

(3)

Explanation and comments

The Commission shall explain in its final rule the nature of comments that it received, including those from the industry or consumer groups concerning the potential costs or benefits of the proposed rule or proposed rule change, and shall provide a response to those comments in its final rule, including an explanation of any changes that were made in response to those comments and the reasons that the Commission did not incorporate those industry group concerns related to the potential costs or benefits in the final rule.

(4)

Review of Existing Regulations

Not later than 1 year after the date of enactment of the SEC Regulatory Accountability Act, and every 5 years thereafter, the Commission shall review its regulations to determine whether any such regulations are outmoded, ineffective, insufficient, or excessively burdensome, and shall modify, streamline, expand, or repeal them in accordance with such review. In reviewing any regulation (including, notwithstanding paragraph (6), a regulation issued in accordance with formal rulemaking provisions) that subjects issuers with a public float of $250,000,000 or less to the attestation and reporting requirements of section 404(b) of the Sarbanes-Oxley Act of 2002 (15 U.S.C. 7262(b)), the Commission shall specifically take into account the large burden of such regulation when compared to the benefit of such regulation.

(5)

Post-adoption impact assessment

(A)

In general

Whenever the Commission adopts or amends a regulation designated as a major rule within the meaning of section 804(2) of title 5, United States Code, it shall state, in its adopting release, the following:

(i)

The purposes and intended consequences of the regulation.

(ii)

Appropriate post-implementation quantitative and qualitative metrics to measure the economic impact of the regulation and to measure the extent to which the regulation has accomplished the stated purposes.

(iii)

The assessment plan that will be used, consistent with the requirements of subparagraph (B) and under the supervision of the Chief Economist of the Commission, to assess whether the regulation has achieved the stated purposes.

(iv)

Any unintended or negative consequences that the Commission foresees may result from the regulation.

(B)

Requirements of assessment plan and report

(i)

Requirements of plan

The assessment plan required under this paragraph shall consider the costs, benefits, and intended and unintended consequences of the regulation. The plan shall specify the data to be collected, the methods for collection and analysis of the data and a date for completion of the assessment.

(ii)

Submission and publication of report

The Chief Economist shall submit the completed assessment report to the Commission no later than 2 years after the publication of the adopting release, unless the Commission, at the request of the Chief Economist, has published at least 90 days before such date a notice in the Federal Register extending the date and providing specific reasons why an extension is necessary. Within 7 days after submission to the Commission of the final assessment report, it shall be published in the Federal Register for notice and comment. Any material modification of the plan, as necessary to assess unforeseen aspects or consequences of the regulation, shall be promptly published in the Federal Register for notice and comment.

(iii)

Data collection not subject to notice and comment requirements

If the Commission has published its assessment plan for notice and comment, specifying the data to be collected and method of collection, at least 30 days prior to adoption of a final regulation or amendment, such collection of data shall not be subject to the notice and comment requirements in section 3506(c) of title 44, United States Code (commonly referred to as the Paperwork Reduction Act). Any material modifications of the plan that require collection of data not previously published for notice and comment shall also be exempt from such requirements if the Commission has published notice for comment in the Federal Register of the additional data to be collected, at least 30 days prior to initiation of data collection.

(iv)

Final action

Not later than 180 days after publication of the assessment report in the Federal Register, the Commission shall issue for notice and comment a proposal to amend or rescind the regulation, or publish a notice that the Commission has determined that no action will be taken on the regulation. Such a notice will be deemed a final agency action.

(6)

Covered regulations and other agency actions

Solely as used in this subsection, the term regulation

(A)

means an agency statement of general applicability and future effect that is designed to implement, interpret, or prescribe law or policy or to describe the procedure or practice requirements of an agency, including rules, orders of general applicability, interpretive releases, and other statements of general applicability that the agency intends to have the force and effect of law; and

(B)

does not include—

(i)

a regulation issued in accordance with the formal rulemaking provisions of section 556 or 557 of title 5, United States Code;

(ii)

a regulation that is limited to agency organization, management, or personnel matters;

(iii)

a regulation promulgated pursuant to statutory authority that expressly prohibits compliance with this provision; and

(iv)

a regulation that is certified by the agency to be an emergency action, if such certification is published in the Federal Register.

.

603.

Sense of Congress relating to other regulatory entities

It is the sense of the Congress that other regulatory entities, including the Public Company Accounting Oversight Board, the Municipal Securities Rulemaking Board, and any national securities association registered under section 15A of the Securities Exchange Act of 1934 (15 U.S.C. 78o–3) should also follow the requirements of section 23(e) of such Act, as added by this title.

604.

Interpretive guidance null and void

Notwithstanding any other provision of law, no interpretive guidance issued by the Securities and Exchange Commission on or after the effective date of this Act relating to Commission Guidance Regarding Disclosure Related to Climate Change, affecting parts 211, 231, and 249 of title 17, Code of Federal Regulations (as described in Commission Release Nos. 33–9106; 34–61469; FR–82), or any successor thereto, may take effect, and such guidance shall have no force or effect with respect to any person on or after February 2, 2010.

605.

Other SEC action prohibited

(a)

Further guidance related to climate change

The Commission may not issue any interpretive guidance with respect to disclosures related to climate change on or after the effective date of this Act.

(b)

Voluntary submissions

The Commission may not issue any interpretive guidance that would establish any requirements with respect to the content of or format for any disclosures related to climate change voluntarily submitted by any entity to the Commission on or after the effective date of this Act.

(c)

Civil and administrative actions

No civil or administrative action or proceeding pertaining to disclosures related to climate change may be initiated by the Commission on or after the date of the enactment of this Act and any such actions or proceedings pending on such date shall be terminated.

(d)

Rule of construction

Nothing in this section shall be construed as to—

(1)

prohibit the Commission from issuing interpretive guidance with respect to disclosures related to non-anthropogenic or natural climate variability observed over comparable time periods; or

(2)

terminate an administrative action or proceeding pertaining to such disclosures.

VII

Consideration by Commodity Futures Trading Commission of Certain Costs and Benefits

701.

Consideration by the Commodity Futures Trading Commission of the costs and benefits of its regulations and orders

Section 15(a) of the Commodity Exchange Act (7 U.S.C. 19(a)) is amended by striking paragraphs (1) and (2) and inserting the following:

(1)

In general

Before promulgating a regulation under this Act or issuing an order (except as provided in paragraph (3)), the Commission, through the Office of the Chief Economist, shall assess the costs and benefits, both qualitative and quantitative, of the intended regulation and propose or adopt a regulation only on a reasoned determination that the benefits of the intended regulation justify the costs of the intended regulation (recognizing that some benefits and costs are difficult to quantify). It must measure, and seek to improve, the actual results of regulatory requirements.

(2)

Considerations

In making a reasoned determination of the costs and the benefits, the Commission shall evaluate—

(A)

considerations of protection of market participants and the public;

(B)

considerations of the efficiency, competitiveness, and financial integrity of futures and swaps markets;

(C)

considerations of the impact on market liquidity in the futures and swaps markets;

(D)

considerations of price discovery;

(E)

considerations of sound risk management practices;

(F)

available alternatives to direct regulation;

(G)

the degree and nature of the risks posed by various activities within the scope of its jurisdiction;

(H)

whether, consistent with obtaining regulatory objectives, the regulation is tailored to impose the least burden on society, including market participants, individuals, businesses of differing sizes, and other entities (including small communities and governmental entities), taking into account, to the extent practicable, the cumulative costs of regulations;

(I)

whether the regulation is inconsistent, incompatible, or duplicative of other Federal regulations;

(J)

whether, in choosing among alternative regulatory approaches, those approaches maximize net benefits (including potential economic, environmental, and other benefits, distributive impacts, and equity); and

(K)

other public interest considerations.

.

VIII

Ensuring High Standards for Agency Use of Scientific Information

801.

Requirement for final guidelines

(a)

In general

Not later than January 1, 2013, each Federal agency shall have in effect guidelines for ensuring and maximizing the quality, objectivity, utility, and integrity of scientific information relied upon by such agency.

(b)

Content of guidelines

The guidelines described in subsection (a), with respect to a Federal agency, shall ensure that—

(1)

when scientific information is considered by the agency in policy decisions—

(A)

the information is subject to well-established scientific processes, including peer review where appropriate;

(B)

the agency appropriately applies the scientific information to the policy decision;

(C)

except for information that is protected from disclosure by law or administrative practice, the agency makes available to the public the scientific information considered by the agency;

(D)

the agency gives greatest weight to information that is based on experimental, empirical, quantifiable, and reproducible data that is developed in accordance with well-established scientific processes; and

(E)

with respect to any proposed rule issued by the agency, such agency follows procedures that include, to the extent feasible and permitted by law, an opportunity for public comment on all relevant scientific findings;

(2)

the agency has procedures in place to make policy decisions only on the basis of the best reasonably obtainable scientific, technical, economic, and other evidence and information concerning the need for, consequences of, and alternatives to the decision; and

(3)

the agency has in place procedures to identify and address instances in which the integrity of scientific information considered by the agency may have been compromised, including instances in which such information may have been the product of a scientific process that was compromised.

(c)

Approval needed for policy decisions to take effect

No policy decision issued after January 1, 2013, by an agency subject to this section may take effect prior to such date that the agency has in effect guidelines under subsection (a) that have been approved by the Director of the Office of Science and Technology Policy.

(d)

Policy decisions not in compliance

A policy decision of an agency that does not comply with guidelines approved under subsection (c) shall be deemed to be arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law.

(e)

Definitions

For purposes of this section:

(1)

Agency

The term agency has the meaning given such term in section 551(1) of title 5, United States Code.

(2)

Policy decision

The term policy decision means, with respect to an agency, an agency action as defined in section 551(13) of title 5, United States Code, (other than an adjudication, as defined in section 551(7) of such title), and includes—

(A)

the listing, labeling, or other identification of a substance, product, or activity as hazardous or creating risk to human health, safety, or the environment; and

(B)

agency guidance.

(3)

Agency guidance

The term agency guidance means an agency statement of general applicability and future effect, other than a regulatory action, that sets forth a policy on a statutory, regulatory, or technical issue or on an interpretation of a statutory or regulatory issue.

IX

Tracking the Cost to Taxpayers of Federal Litigation

901.

Short title

This title may be cited as the Tracking the Cost to Taxpayers of Federal Litigation Act.

902.

Modification of equal access to justice provisions

(a)

Agency proceedings

Section 504 of title 5, United States Code, is amended—

(1)

in subsection (c)(1), by striking , United States Code; and

(2)

by striking subsections (e) and (f) and inserting the following:

(e)
(1)

The Chairman of the Administrative Conference of the United States, after consultation with the Chief Counsel for Advocacy of the Small Business Administration, shall report annually to the Congress on the amount of fees and other expenses awarded during the preceding fiscal year pursuant to this section. The report shall describe the number, nature, and amount of the awards, the claims involved in the controversy, and any other relevant information that may aid the Congress in evaluating the scope and impact of such awards. Each agency shall provide the Chairman in a timely manner all information necessary for the Chairman to comply with the requirements of this subsection. The report shall be made available to the public online.

(2)
(A)

The report required by paragraph (1) shall account for all payments of fees and other expenses awarded under this section that are made pursuant to a settlement agreement, regardless of whether the settlement agreement is sealed or otherwise subject to nondisclosure provisions, except that any version of the report made available to the public may not reveal any information the disclosure of which is contrary to the national security of the United States.

(B)

The disclosure of fees and other expenses required under subparagraph (A) does not affect any other information that is subject to nondisclosure provisions in the settlement agreement.

(f)

The Chairman of the Administrative Conference shall create and maintain online a searchable database containing the following information with respect to each award of fees and other expenses under this section:

(1)

The name of each party to whom the award was made.

(2)

The name of each counsel of record representing each party to whom the award was made.

(3)

The agency to which the application for the award was made.

(4)

The name of each counsel of record representing the agency to which the application for the award was made.

(5)

The name of each administrative law judge, and the name of any other agency employee serving in an adjudicative role, in the adversary adjudication that is the subject of the application for the award.

(6)

The amount of the award.

(7)

The names and hourly rates of each expert witness for whose services the award was made under the application.

(8)

The basis for the finding that the position of the agency concerned was not substantially justified.

(g)

The online searchable database described in subsection (f) may not reveal any information the disclosure of which is prohibited by law or court order, or the disclosure of which is contrary to the national security of the United States.

.

(b)

Court cases

Section 2412(d) of title 28, United States Code, is amended by adding at the end the following:

(5)
(A)

The Chairman of the Administrative Conference of the United States shall report annually to the Congress on the amount of fees and other expenses awarded during the preceding fiscal year pursuant to this subsection. The report shall describe the number, nature, and amount of the awards, the claims involved in each controversy, and any other relevant information which may aid the Congress in evaluating the scope and impact of such awards. Each agency shall provide the Chairman with such information as is necessary for the Chairman to comply with the requirements of this paragraph. The report shall be made available to the public online.

(B)
(i)

The report required by subparagraph (A) shall account for all payments of fees and other expenses awarded under this subsection that are made pursuant to a settlement agreement, regardless of whether the settlement agreement is sealed or otherwise subject to nondisclosure provisions, except that any version of the report made available to the public may not reveal any information the disclosure of which is contrary to the national security of the United States.

(ii)

The disclosure of fees and other expenses required under clause (i) does not affect any other information that is subject to nondisclosure provisions in the settlement agreement.

(C)

The Chairman of the Administrative Conference shall include and clearly identify in the annual report under subparagraph (A), for each case in which an award of fees and other expenses is included in the report—

(i)

any amounts paid from section 1304 of title 31 for a judgment in the case;

(ii)

the amount of the award of fees and other expenses; and

(iii)

the statute under which the plaintiff filed suit.

(6)

The Chairman of the Administrative Conference shall create and maintain online a searchable database containing the following information with respect to each award of fees and other expenses under this subsection:

(A)

The name of each party to whom the award was made.

(B)

The name of each counsel of record representing each party to whom the award was made.

(C)

The agency involved in the case.

(D)

The name of each counsel of record representing the agency involved in the case.

(E)

The name of each judge in the case, and the court in which the case was heard.

(F)

The amount of the award.

(G)

The names and hourly rates of each expert witness for whose services the award was made.

(H)

The basis for the finding that the position of the agency concerned was not substantially justified.

(7)

The online searchable database described in paragraph (6) may not reveal any information the disclosure of which is prohibited by law or court order, or the disclosure of which is contrary to the national security of the United States.

(8)

The Attorney General of the United States shall provide to the Chairman of the Administrative Conference of the United States in a timely manner all information necessary for the Chairman to carry out the Chairman’s responsibilities under this subsection.

.

(c)

Clerical amendment

Section 2412(e) of title 28, United States Code, is amended by striking of section 2412 of title 28, United States Code, and inserting of this section.

Passed the House of Representatives July 26, 2012.

Karen L. Haas,

Clerk

July 31, 2012

Read the second time and placed on the calendar