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S. 1120: Small Business Regulatory Flexibility Improvements Act


The text of the bill below is as of Apr 10, 2019 (Introduced).


II

116th CONGRESS

1st Session

S. 1120

IN THE SENATE OF THE UNITED STATES

April 10, 2019

(for himself, Mr. Grassley, Mr. Risch, Mr. Roberts, and Mr. Hoeven) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs

A BILL

To amend chapter 6 of title 5, United States Code (commonly known as the Regulatory Flexibility Act), to ensure complete analysis of potential impacts on small entities of rules, and for other purposes.

1.

Short title

This Act may be cited as the Small Business Regulatory Flexibility Improvements Act.

2.

Clarification and expansion of rules covered by the Regulatory Flexibility Act

(a)

In general

Section 601(2) of title 5, United States Code, is amended to read as follows:

(2)

Rule

The term rule

(A)

has the meaning given the term in section 551(4); and

(B)

does not include—

(i)

a rule pertaining to the protection of the rights of and benefits for veterans or part 232 of title 32, Code of Federal Regulations (as in effect on July 1, 2014), or any successor provisions thereto; or

(ii)

a rule of particular (and not general) applicability relating to rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services, or allowances therefor or to valuations, costs or accounting, or practices relating to such rates, wages, structures, prices, appliances, services, or allowances.

.

(b)

Inclusion of rules with indirect effects

Section 601 of title 5, United States Code, is amended by adding at the end the following:

(9)

Economic impact

The term economic impact means, with respect to a proposed or final rule—

(A)

any direct economic effect on small entities of such rule; and

(B)

any indirect economic effect (including compliance costs and effects on revenue) on small entities which is reasonably foreseeable and results from such rule (without regard to whether small entities will be directly regulated by the rule).

.

(c)

Inclusion of rules with beneficial effects

(1)

Initial regulatory flexibility analysis

Section 603(c) of title 5, United States Code, is amended by striking the first sentence and inserting Each initial regulatory flexibility analysis shall also contain a detailed description of alternatives to the proposed rule which minimize any adverse significant economic impact or maximize any beneficial significant economic impact on small entities..

(2)

Final regulatory flexibility analysis

Section 604(a) of title 5, United States Code, is amended—

(A)

by redesignating the second paragraph designated as paragraph (6) (relating to covered agencies) as paragraph (7); and

(B)

in paragraph (6), by striking minimize the significant economic impact and inserting minimize the adverse significant economic impact or maximize the beneficial significant economic impact.

(d)

Inclusion of rules affecting tribal organizations

Section 601(5) of title 5, United States Code, is amended by inserting and tribal organizations (as defined in section 4(l) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5304(l))), after special districts,.

(e)

Inclusion of land management plans and formal rule making

(1)

Initial regulatory flexibility analysis

Section 603(a) of title 5, United States Code, is amended in the first sentence—

(A)

by striking or after proposed rule,; and

(B)

by inserting or publishes a revision or amendment to a land management plan, after United States,.

(2)

Final regulatory flexibility analysis

Section 604(a) of title 5, United States Code, is amended in the first sentence—

(A)

by striking or after proposed rulemaking,; and

(B)

by inserting or adopts a revision or amendment to a land management plan, after section 603(a),.

(3)

Land management plan defined

Section 601 of title 5, United States Code, as amended by subsection (b), is amended by adding at the end the following:

(10)

Land management plan

(A)

In general

The term land management plan means—

(i)

any plan developed by the Secretary of Agriculture under section 6 of the Forest and Rangeland Renewable Resources Planning Act of 1974 (16 U.S.C. 1604); and

(ii)

any plan developed by the Secretary of the Interior under section 202 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1712).

(B)

Revision

The term revision means any change to a land management plan which—

(i)

in the case of a plan described in subparagraph (A)(i), is made under section 6(f)(5) of the Forest and Rangeland Renewable Resources Planning Act of 1974 (16 U.S.C. 1604(f)(5)); or

(ii)

in the case of a plan described in subparagraph (A)(ii), is made under section 1610.5–6 of title 43, Code of Federal Regulations (or any successor regulation).

(C)

Amendment

The term amendment means any change to a land management plan which—

(i)

in the case of a plan described in subparagraph (A)(i), is made under section 6(f)(4) of the Forest and Rangeland Renewable Resources Planning Act of 1974 (16 U.S.C. 1604(f)(4)) and with respect to which the Secretary of Agriculture prepares a statement described in section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)); or

(ii)

in the case of a plan described in subparagraph (A)(ii), is made under section 1610.5–5 of title 43, Code of Federal Regulations (or any successor regulation), and with respect to which the Secretary of the Interior prepares a statement described in section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)).

.

(f)

Inclusion of certain interpretive rules involving the internal revenue laws

(1)

In general

Section 603(a) of title 5, United States Code, is amended by striking the period at the end and inserting or a recordkeeping requirement, and without regard to whether such recordkeeping requirement is imposed by statute or regulation..

(2)

Collection of information

Section 601(7) of title 5, United States Code, is amended to read as follows:

(7)

Collection of information

The term collection of information has the meaning given the term in section 3502 of title 44.

.

(3)

Recordkeeping requirement

Section 601(8) of title 5, United States Code, is amended to read as follows:

(8)

Recordkeeping requirement

The term recordkeeping requirement has the meaning given the term in section 3502 of title 44.

.

(g)

Definition of small organization

Section 601(4) of title 5, United States Code, is amended to read as follows:

(4)

Small organization

(A)

In general

The term small organization means any nonprofit enterprise which, as of the issuance of a notice of proposed rulemaking—

(i)

in the case of an enterprise which is described by a classification code of the North American Industrial Classification System, does not exceed the size standard established by the Administrator of the Small Business Administration pursuant to section 3 of the Small Business Act (15 U.S.C. 632) for small business concerns described by such classification code; and

(ii)

in the case of any other enterprise, has a net worth that does not exceed $7,000,000 and has not more than 500 employees.

(B)

Local labor organizations

In the case of any local labor organization, subparagraph (A) shall be applied without regard to any national or international organization of which such local labor organization is a part.

(C)

Agency definitions

Subparagraphs (A) and (B) shall not apply to the extent that an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions for such term which are appropriate to the activities of the agency and publishes such definitions in the Federal Register.

.

3.

Expansion of report of regulatory agenda

Section 602 of title 5, United States Code, is amended—

(1)

in subsection (a)—

(A)

in paragraph (2), by striking , and at the end and inserting a semicolon;

(B)

by redesignating paragraph (3) as paragraph (4); and

(C)

by inserting after paragraph (2) the following:

(3)

a brief description of the sector of the North American Industrial Classification System that is primarily affected by any rule which the agency expects to propose or promulgate which is likely to have a significant economic impact on a substantial number of small entities; and

; and

(2)

in subsection (c), to read as follows:

(c)
(1)

Not later than 3 days after the date on which an agency publishes a regulatory flexibility agenda in the Federal Register under subsection (a), the agency shall prominently display on the website of the agency a plain language summary of the information contained in the regulatory flexibility agenda.

(2)

The Office of Advocacy of the Small Business Administration shall compile, by agency, and prominently display on the website of the Small Business Administration a plain language summary of each regulatory flexibility agenda published under subsection (a) not later than 3 days after the date of publication in the Federal Register.

.

4.

Requirements providing for more detailed analyses

(a)

Initial regulatory flexibility analysis

Section 603(b) of title 5, United States Code, is amended to read as follows:

(b)

Each initial regulatory flexibility analysis required under this section shall contain a detailed statement—

(1)

describing the reasons why action by the agency is being considered;

(2)

describing the objectives of, and legal basis for, the proposed rule;

(3)

estimating the number and type of small entities to which the proposed rule will apply;

(4)

describing the projected reporting, recordkeeping, and other compliance requirements of the proposed rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report and record;

(5)

describing all relevant Federal rules which may duplicate, overlap, or conflict with the proposed rule, or the reasons why such a description could not be provided;

(6)

estimating the additional cumulative economic impact of the proposed rule on small entities beyond that already imposed on the class of small entities by the agency or why such an estimate is not available;

(7)

describing any disproportionate economic impact on small entities or a specific class of small entities; and

(8)

describing any impairment of the ability of small entities to have access to credit.

.

(b)

Final regulatory flexibility analysis

(1)

In general

Section 604(a) of title 5, United States Code, is amended—

(A)

in paragraph (4)—

(i)

by inserting detailed before description; and

(ii)

by striking an explanation and inserting a detailed explanation;

(B)

in paragraph (5), by inserting detailed before description;

(C)

in paragraph (6)—

(i)

by inserting detailed before description; and

(ii)

by striking and at the end;

(D)

in paragraph (7), as so redesignated, by striking the period at the end and inserting ; and; and

(E)

by adding at the end the following:

(8)

a detailed description of any disproportionate economic impact on small entities or a specific class of small entities.

.

(2)

Inclusion of response to comments on certification of proposed rule

Section 604(a)(2) of title 5, United States Code, is amended by inserting (or certification of the proposed rule under section 605(b)) after initial regulatory flexibility analysis.

(3)

Publication of analysis on website

Section 604(b) of title 5, United States Code, is amended to read as follows:

(b)

The agency shall make copies of the final regulatory flexibility analysis available to the public, including placement of the entire analysis on the website of the agency, and shall publish in the Federal Register the final regulatory flexibility analysis, or a summary thereof which includes the telephone number, mailing address, and link to the website where the complete analysis may be obtained.

.

(c)

Cross-References to other analyses

Section 605(a) of title 5, United States Code, is amended to read as follows:

(a)

A Federal agency shall be treated as satisfying any requirement regarding the content of a regulatory flexibility agenda or regulatory flexibility analysis under section 602, 603, or 604 if the Federal agency provides in the agenda or analysis a cross-reference to the specific portion of another agenda or analysis which is required by any other law and which satisfies the requirement.

.

(d)

Certifications

Section 605(b) of title 5, United States Code, is amended by striking statement providing the factual basis for such certification. and inserting detailed statement providing the factual and legal basis for such certification. The detailed statement shall include an economic assessment or a summary thereof that is sufficiently detailed to support the certification of the agency..

(e)

Quantification requirements

Section 607 of title 5, United States Code, is amended to read as follows:

607.

Quantification requirements

In complying with sections 603 and 604, an agency shall provide—

(1)

a quantifiable or numerical description of the effects of the proposed or final rule and alternatives to the proposed or final rule; or

(2)

a more general descriptive statement and a detailed statement explaining why quantification is not practicable or reliable.

.

5.

Repeal of waiver and delay authority; additional powers of the Chief Counsel for Advocacy

(a)

In general

Section 608 of title 5, United States Code, is amended to read as follows:

608.

Additional powers of Chief Counsel for Advocacy

(a)
(1)

Not later than 270 days after the date of enactment of the Small Business Regulatory Flexibility Improvements Act, the Chief Counsel for Advocacy of the Small Business Administration shall, after opportunity for notice and comment under section 553, issue rules governing agency compliance with this chapter. The Chief Counsel may modify or amend such rules after notice and comment under section 553. This chapter (other than this subsection) shall not apply with respect to the issuance, modification, and amendment of rules under this paragraph.

(2)

An agency shall not issue rules which supplement the rules issued under paragraph (1) unless such agency has first consulted with the Chief Counsel for Advocacy to ensure that the supplemental rules comply with this chapter and the rules issued under paragraph (1).

(b)

Notwithstanding any other law, the Chief Counsel for Advocacy of the Small Business Administration may intervene in any agency adjudication (unless such agency is authorized to impose a fine or penalty under such adjudication) and may inform the agency of the impact that any decision on the record may have on small entities. The Chief Counsel shall not initiate an appeal with respect to any adjudication in which the Chief Counsel intervenes under this subsection.

(c)

The Chief Counsel for Advocacy may file comments in response to any agency notice requesting comment, regardless of whether the agency is required to file a general notice of proposed rule making under section 553.

.

(b)

Conforming amendments

Section 611(a) of title 5, United States Code, is amended—

(1)

in paragraph (1), by striking 608(b),;

(2)

in paragraph (2), by striking 608(b),; and

(3)

in paragraph (3)—

(A)

by striking subparagraph (B); and

(B)

by striking (3)(A) A small entity and inserting the following:

(3)

A small entity

.

6.

Procedures for gathering comments

Section 609 of title 5, United States Code, is amended by striking subsection (b) and all that follows through the end of the section and inserting the following:

(b)
(1)

Prior to publication of any proposed rule described in subsection (e), an agency making the rule shall notify the Chief Counsel for Advocacy of the Small Business Administration and provide the Chief Counsel with—

(A)

all materials prepared or utilized by the agency in making the proposed rule, including the draft of the proposed rule; and

(B)

information on the potential adverse and beneficial economic impacts of the proposed rule on small entities and the type of small entities that might be affected.

(2)

An agency shall not be required under paragraph (1) to provide the exact language of any draft if the rule—

(A)

relates to the internal revenue laws of the United States; or

(B)

is proposed by an independent regulatory agency.

(c)

Not later than 15 days after the receipt of the materials and information under subsection (b), the Chief Counsel for Advocacy of the Small Business Administration shall—

(1)

identify small entities or representatives of small entities or a combination of both for the purpose of obtaining advice, input, and recommendations from those persons about the potential economic impacts of the proposed rule and the compliance of the agency with section 603; and

(2)

convene a review panel consisting of an employee from the Office of Advocacy of the Small Business Administration, an employee from the agency making the rule, and, in the case of an agency other than an independent regulatory agency, an employee from the Office of Information and Regulatory Affairs of the Office of Management and Budget to review the materials and information provided to the Chief Counsel under subsection (b).

(d)
(1)

Not later than 60 days after the review panel described in subsection (c)(2) is convened, the Chief Counsel for Advocacy of the Small Business Administration shall, after consultation with the members of the panel, submit a report to the agency and, in the case of an agency other than an independent regulatory agency, the Office of Information and Regulatory Affairs of the Office of Management and Budget.

(2)

Each report described in paragraph (1) shall include an assessment of the economic impact of the proposed rule on small entities, including—

(A)

an assessment of the impact of the proposed rule on the cost that small entities pay for energy;

(B)

an assessment of the impact of the proposed rule on startup costs for small entities; and

(C)

a discussion of any alternatives that will minimize adverse significant economic impacts or maximize beneficial significant economic impacts on small entities.

(3)

Each report described in paragraph (1) shall become part of the rulemaking record. In the publication of the proposed rule, the agency shall explain what actions, if any, the agency took in response to the report.

(e)

A proposed rule is described by this subsection if the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget, the head of the agency (or the delegatee of the head of the agency), or an independent regulatory agency determines that the proposed rule is likely to result in—

(1)

an annual effect on the economy of $100,000,000 or more;

(2)

a major increase in costs or prices for consumers, individual industries, the Federal Government, State or local governments, tribal organizations, or geographic regions;

(3)

significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets; or

(4)

a significant economic impact on a substantial number of small entities.

(f)

Upon application by the agency, the Chief Counsel for Advocacy of the Small Business Administration may waive the requirements of subsections (b) through (e) if the Chief Counsel determines that compliance with the requirements of such subsections is impracticable, unnecessary, or contrary to the public interest.

(g)

A small entity or a representative of a small entity may submit a request that the agency provide a copy of the report prepared under subsection (d) and all materials and information provided to the Chief Counsel for Advocacy of the Small Business Administration under subsection (b). The agency receiving such request shall provide the report, materials, and information to the requesting small entity or representative of a small entity not later than 10 business days after receiving such request, except that the agency shall not disclose any information that is prohibited from disclosure to the public pursuant to section 552(b) of this title.

(h)

In this section, the term independent regulatory agency has the meaning given the term in section 3502 of title 44.

.

7.

Periodic review of rules

Section 610 of title 5, United States Code, is amended to read as follows:

610.

Periodic review of rules

(a)

Not later than 180 days after the date of enactment of the Small Business Regulatory Flexibility Improvements Act, each agency shall publish in the Federal Register and place on the website of the agency a plan for the periodic review of rules issued by the agency which the head of the agency determines have a significant economic impact on a substantial number of small entities. Such determination shall be made without regard to whether the agency performed an analysis under section 604. The purpose of the review shall be to determine whether such rules should be continued without change, or should be amended or rescinded, consistent with the stated objectives of applicable statutes, to minimize any adverse significant economic impacts or maximize any beneficial significant economic impacts on a substantial number of small entities. Such plan may be amended by the agency at any time by publishing the revision in the Federal Register and subsequently placing the amended plan on the website of the agency.

(b)

The plan shall provide for the review of all such agency rules existing on the date of enactment of the Small Business Regulatory Flexibility Improvements Act within 10 years of the date of publication of the plan in the Federal Register and for review of rules adopted after the date of enactment of the Small Business Regulatory Flexibility Improvements Act within 10 years after the publication of the final rule in the Federal Register. If the head of the agency determines that completion of the review of existing rules is not feasible by the established date, the head of the agency shall so certify in a statement published in the Federal Register and may extend the review for not longer than 2 years after publication of notice of extension in the Federal Register. Such certification and notice shall be sent to the Chief Counsel for Advocacy of the Small Business Administration and Congress.

(c)

The plan shall include a section that details how an agency will conduct outreach to and meaningfully include small businesses (including small business concerns owned and controlled by women, small business concerns owned and controlled by veterans, and small business concerns owned and controlled by socially and economically disadvantaged individuals (as such terms are defined in section 3 and section 8(d)(3)(C) of the Small Business Act (15 U.S.C. 632, 637(d)(3)(C)))) for the purposes of carrying out this section. The agency shall include in this section a plan for how the agency will contact small businesses and gather their input on existing agency rules.

(d)

Each agency shall annually submit a report regarding the results of its review pursuant to such plan to Congress, the Chief Counsel for Advocacy of the Small Business Administration, and, in the case of agencies other than independent regulatory agencies (as defined in section 3502 of title 44), to the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget. Such report shall include the identification of any rule with respect to which the head of the agency made a determination described in paragraph (5) or (6) of subsection (e) and a detailed explanation of the reasons for such determination.

(e)

In reviewing a rule pursuant to subsections (a) through (d), the agency shall amend or rescind the rule to minimize any adverse significant economic impact on a substantial number of small entities or disproportionate economic impact on a specific class of small entities, or maximize any beneficial significant economic impact of the rule on a substantial number of small entities to the greatest extent possible, consistent with the stated objectives of applicable statutes. In amending or rescinding the rule, the agency shall consider the following factors:

(1)

The continued need for the rule.

(2)

The nature of complaints received by the agency from small entities concerning the rule.

(3)

Comments by the Regulatory Enforcement Ombudsman and the Chief Counsel for Advocacy of the Small Business Administration.

(4)

The complexity of the rule.

(5)

The extent to which the rule overlaps, duplicates, or conflicts with other Federal rules and, unless the head of the agency determines it to be infeasible, State, territorial, and local rules.

(6)

The contribution of the rule to the cumulative economic impact of all Federal rules on the class of small entities affected by the rule, unless the head of the agency determines that such calculations cannot be made and reports that determination in the annual report required under subsection (d).

(7)

The length of time since the rule has been evaluated or the degree to which technology, economic conditions, or other factors have changed in the area affected by the rule.

(f)

Each year, each agency shall publish in the Federal Register and on its website a list of rules to be reviewed pursuant to such plan. The agency shall include in the publication a solicitation of public comments on any further inclusions or exclusions of rules from the list and shall respond to such comments. Such publication shall include a brief description of the rule, state the reason why the agency determined that it has a significant economic impact on a substantial number of small entities (without regard to whether it had prepared a final regulatory flexibility analysis for the rule), and request comments from the public, the Chief Counsel for Advocacy of the Small Business Administration, and the Regulatory Enforcement Ombudsman concerning the enforcement of the rule.

.

8.

Judicial review of compliance with the requirements of the Regulatory Flexibility Act available after publication of the final rule

(a)

In general

Section 611(a) of title 5, United States Code, is amended—

(1)

in paragraph (1), by striking final agency action and inserting such rule;

(2)

in paragraph (2), by inserting (or which would have such jurisdiction if publication of the final rule constituted final agency action) after provision of law,; and

(3)

in paragraph (3)—

(A)

by striking final agency action and inserting publication of the final rule; and

(B)

by inserting , in the case of a rule for which the date of final agency action is the same date as the publication of the final rule, after except that.

(b)

Intervention by chief counsel for advocacy

Section 612(b) of title 5, United States Code, is amended by inserting before the first period or agency compliance with section 601, 603, 604, 605(b), 609, or 610.

9.

Jurisdiction of court of appeals over rules implementing the Regulatory Flexibility Act

(a)

In general

Section 2342 of title 28, United States Code, is amended—

(1)

in paragraph (6), by striking and at the end;

(2)

in paragraph (7), by striking the period at the end and inserting ; and; and

(3)

by inserting after paragraph (7) the following:

(8)

all final rules under section 608(a) of title 5.

.

(b)

Conforming amendments

Section 2341(3) of title 28, United States Code, is amended—

(1)

in subparagraph (D), by striking and at the end;

(2)

in subparagraph (E), by striking the period at the end and inserting ; and; and

(3)

by adding at the end the following:

(F)

the Office of Advocacy of the Small Business Administration, when the final rule is under section 608(a) of title 5.

.

(c)

Authorization To intervene and comment on agency compliance with administrative procedure

Section 612(b) of title 5, United States Code, is amended by inserting chapter 5, and chapter 7, after this chapter,.

10.

Establishment and approval of small business concern size standards by Chief Counsel for Advocacy

(a)

In general

Section 3(a)(2)(A) of the Small Business Act (15 U.S.C. 632(a)(2)(A)) is amended to read as follows:

(A)

In general

In addition to the criteria specified in paragraph (1)—

(i)

the Administrator may specify detailed definitions or standards by which a business concern may be determined to be a small business concern for purposes of this Act or the Small Business Investment Act of 1958 (15 U.S.C. 661 et seq.); and

(ii)

the Chief Counsel for Advocacy may specify such definitions or standards for purposes of any other Act.

.

(b)

Approval by chief counsel

Section 3(a)(2)(C)(iii) of the Small Business Act (15 U.S.C. 632(a)(2)(C)(iii)) is amended to read as follows:

(iii)

except in the case of a size standard prescribed by the Administrator, is approved by the Chief Counsel for Advocacy.

.

(c)

Industry variation

Section 3(a)(3) of the Small Business Act (15 U.S.C. 632(a)(3)) is amended—

(1)

by inserting or Chief Counsel for Advocacy, as appropriate, before shall ensure; and

(2)

by inserting or Chief Counsel for Advocacy before the period at the end.

(d)

Judicial review of size standards approved by chief counsel

Section 3(a) of the Small Business Act (15 U.S.C. 632(a)) is amended by adding at the end the following:

(10)

Judicial review of standards approved by chief counsel

In the case of an action for judicial review of a rule which includes a definition or standard approved by the Chief Counsel for Advocacy under this subsection, the party seeking such review shall be entitled to join the Chief Counsel as a party in such action.

.

11.

Clerical amendments

(a)

Definitions

Section 601 of title 5, United States Code, is amended—

(1)

in paragraph (1)—

(A)

by striking the semicolon at the end and inserting a period; and

(B)

by striking (1) the term and inserting the following:

(1)

Agency

The term

;

(2)

in paragraph (3)—

(A)

by striking the semicolon at the end and inserting a period; and

(B)

by striking (3) the term and inserting the following:

(3)

Small business

The term

;

(3)

in paragraph (5)—

(A)

by striking the semicolon at the end and inserting a period; and

(B)

by striking (5) the term and inserting the following:

(5)

Small governmental jurisdiction

The term

; and

(4)

in paragraph (6)—

(A)

by striking ; and and inserting a period; and

(B)

by striking (6) the term and inserting the following:

(6)

Small entity

The term

.

(b)

Incorporations by reference and certifications

The heading of section 605 of title 5, United States Code, is amended to read as follows:

605.

Incorporations by reference and certifications

.

(c)

Table of sections

The table of sections for chapter 6 of title 5, United States Code, is amended as follows:

(1)

By striking the item relating to section 605 and inserting the following new item:

605. Incorporations by reference and certifications.

.

(2)

By striking the item relating to section 607 and inserting the following new item:

607. Quantification requirements.

.

(3)

By striking the item relating to section 608 and inserting the following:

608. Additional powers of Chief Counsel for Advocacy.

.

(d)

Other clerical amendments to chapter 6

Chapter 6 of title 5, United States Code, is amended—

(1)

in section 603(d)—

(A)

by striking paragraph (2);

(B)

by striking (1) For a covered agency, as defined in section 609(d)(2), each initial regulatory flexibility analysis and inserting Each initial regulatory flexibility analysis by an agency;

(C)

by striking (A) any and inserting (1) any;

(D)

by striking (B) any and inserting (2) any; and

(E)

by striking (C) advice and inserting (3) advice; and

(2)

in paragraph (7) of section 604(a), as so redesignated by section 2(c)(2)(A) of this Act, by striking for a covered agency, as defined in section 609(d)(2),.

12.

Agency preparation of guides

Section 212(a)(5) the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 601 note) is amended to read as follows:

(5)

Agency preparation of guides

The agency shall, in its sole discretion, taking into account the subject matter of the rule and the language of relevant statutes, ensure that the guide is written using sufficiently plain language likely to be understood by affected small entities. Agencies may prepare separate guides covering groups or classes of similarly affected small entities and may cooperate with associations of small entities to distribute such guides. In developing guides, agencies shall solicit input from affected small entities or associations of affected small entities. An agency may prepare guides and apply this section with respect to a rule or a group of related rules.

.

13.

Comptroller General report

Not later than 90 days after the date of enactment of this Act, the Comptroller General of the United States shall complete and publish a study that examines whether the Chief Counsel for Advocacy of the Small Business Administration has the capacity and resources to carry out the duties of the Chief Counsel under this Act and the amendments made by this Act.

14.

Waiver of fines for first-time paperwork violations by small businesses

Section 3506 of title 44, United States Code (commonly referred to as the Paperwork Reduction Act), is amended by adding at the end the following:

(j)

Small businesses

(1)

Definitions

In this subsection:

(A)

First-time violation

The term first-time violation means a violation by a small business concern of a requirement regarding collection of information by an agency, where the small business concern has not previously violated any similar requirement regarding collection of information by that same agency during the 5-year period preceding the violation.

(B)

Small business concern

The term small business concern has the meaning given the term in section 3 of the Small Business Act (15 U.S.C. 632).

(2)

First-time violation

(A)

In general

Except as provided in subparagraph (C), in the case of a first-time violation by a small business concern of a requirement regarding the collection of information by an agency, the head of the agency shall not impose a civil fine on the small business concern.

(B)

Determination

For purposes of determining whether to impose a civil fine on a small business concern under subparagraph (A), the head of an agency shall not take into account any violation by the small business concern of a requirement regarding collection of information by another agency.

(C)

Exception

An agency may impose a civil fine on a small business concern for a first-time violation if the head of the agency determines that—

(i)

the violation has the potential to cause serious harm to the public interest;

(ii)

failure to impose a civil fine would impede or interfere with the detection of criminal activity;

(iii)

the violation is a violation of an internal revenue law or a law concerning the assessment or collection of any tax, debt, revenue, or receipt;

(iv)

the violation was not corrected on or before the date that is 6 months after the date on which the small business concern receives notification of the violation in writing from the agency; or

(v)

except as provided in paragraph (3), the violation presents a danger to the public health or safety.

(3)

Danger to public health or safety

(A)

In general

In any case in which the head of an agency determines under paragraph (2)(C)(v) that a violation presents a danger to the public health or safety, the head of the agency may determine not to impose a civil fine on the small business concern if the violation is corrected not later than 24 hours after receipt by the owner of the small business concern of notification of the violation in writing.

(B)

Considerations

In determining whether to allow a small business concern 24 hours to correct a violation under subparagraph (A), the head of an agency shall take into account all of the facts and circumstances regarding the violation, including—

(i)

the nature and seriousness of the violation, including whether the violation is technical or inadvertent or involves willful or criminal conduct;

(ii)

whether the small business concern had made a good faith effort to comply with applicable laws and to remedy the violation within the shortest practicable period of time; and

(iii)

whether the small business concern has obtained a significant economic benefit from the violation.

(C)

Notice to Congress

In any case in which the head of an agency imposes a civil fine on a small business concern for a violation that presents a danger to the public health or safety and does not allow the small business concern 24 hours to correct the violation under subparagraph (A), the head of the agency shall notify Congress regarding the determination not later than 60 days after the date on which the civil fine is imposed by the agency.

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