Regulatory Reform Legislation in the 112th Congress

Congressional research reportAug 31, 2011

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Regulatory Reform Legislation in

the 112th Congress

Curtis W. Copeland

Specialist in American National Government

August 31, 2011

Congressional Research Service

7-5700

www.crs.gov

R41834

CRS Report for Congress

Prepared for Members and Committees of Congress

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Regulatory Reform Legislation in the 112th Congress

Summary

In the 112th Congress, at least 22 bills have been introduced that would, if enacted, change current

requirements in the federal rulemaking process. In the Senate, the proposed legislation includes

(1) S. 128, the Small Business Paperwork Relief Act of 2011; (2) S. 299, the Regulations from the

Executive in Need of Scrutiny Act of 2011; (3) S. 358, the Regulatory Responsibility for Our

Economy Act of 2011; (4) S. 474, the Small Business Regulatory Freedom Act of 2011; (5)

S. 602, the Clearing Unnecessary Regulatory Burdens Act; (6) S. 817, which would make

changes to the application of the Unfunded Mandates Reform Act; (7) S. 1030, the Freedom from

Restrictive Excessive Executive Demands and Onerous Mandates Act of 2011; (8) S. 1189, the

Unfunded Mandates Accountability Act of 2011; (9) S. 1219, the Employment Impact Act of

2011; (10) S. 1338, the Regulatory Capture Prevention Act; (11) S. 1339, the Regulatory

Information Reporting Act; and (12) S. 1438, the Regulation Moratorium and Jobs Preservation

Act of 2011. In the House of Representatives, the bills include (1) H.R. 10, the Regulations from

the Executive in Need of Scrutiny Act of 2011; (2) H.R. 213, the Regulation Audit Revive

Economy Act of 2011; (3) H.R. 214, the Congressional Office of Regulatory Analysis Creation

and Sunset and Review Act of 2011; (4) H.R. 373, the Unfunded Mandates Information and

Transparency Act of 2011; (5) H.R. 527, the Regulatory Flexibility Improvements Act of 2011;

(6) H.R. 1235, the Regulation Moratorium Act of 2011; (7) H.R. 1281, the Restoring Economic

Certainty Act of 2011; (8) H.R. 1432, the Creating Sunshine, Participation, and Accountability for

our Nation Act; (9) H.R. 2175, the Regulatory Balance Act; and (10) H.R. 2204, the Employment

Impact Act of 2011.

This report describes each of these 22 regulatory reform bills, notes whether similar legislation

has been introduced or acted upon in the past, summarizes the comments of those supporting and

opposing the proposed legislation, and provides other relevant information. To put the bills in

context, the report first summarizes the current rulemaking requirements (primarily statutes and

executive orders) that the proposed legislation would amend, codify, or otherwise affect. The

report ends with some concluding observations, noting similarities, differences, and broad themes

in the legislative proposals. Those themes include (1) an expansion of current rulemaking

requirements, (2) an expansion of those requirements to independent regulatory agencies, (3) an

emphasis on retrospective reviews of existing rules, and (4) an increase in the role of Congress in

overseeing the actions of regulatory agencies. Within each of these broad areas, however, the bills

often take very different approaches. Some of the reforms would, if enacted, place new and

potentially substantial responsibilities on federal agencies and the Office of Management and

Budget, which may require additional resources and time to satisfy. Some of the bills may require

clarification to ensure that they are enacted as Congress intended, and some may raise legal or

policy concerns.

This report will be updated to reflect new proposed legislation and actions on bills that have been

introduced.

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Contents

Introduction...................................................................................................................................... 1

Current Rulemaking Requirements ................................................................................................. 1

Administrative Procedure Act ................................................................................................... 1

Paperwork Reduction Act.......................................................................................................... 2

Regulatory Flexibility Act ......................................................................................................... 3

Small Business Regulatory Enforcement Fairness Act ............................................................. 5

Congressional Review Act ........................................................................................................ 6

Unfunded Mandates Reform Act............................................................................................... 7

Small Business Paperwork Relief Act ....................................................................................... 8

Executive Order 12866.............................................................................................................. 8

Executive Order 13422.............................................................................................................. 9

OMB Bulletin on Agency Guidance........................................................................................ 10

Executive Order 13563............................................................................................................ 11

Executive Order 13579............................................................................................................ 12

Other Obama Administration Initiatives.................................................................................. 12

Regulatory Reform Legislation Introduced During the 112th Congress ........................................ 14

Senate Bills.............................................................................................................................. 14

S. 128: the Small Business Paperwork Relief Act of 2011 ............................................... 14

S. 299: the Regulations from the Executive in Need of Scrutiny Act of 2011 .................. 16

S. 358: the Regulatory Responsibility for Our Economy Act of 2011 .............................. 18

S. 474: the Small Business Regulatory Freedom Act of 2011........................................... 20

S. 602: the Clearing Unnecessary Regulatory Burdens (CURB) Act ............................... 25

S. 817: Independent Agencies and the Unfunded Mandates Reform Act ......................... 27

S. 1030, the Freedom from Restrictive Excessive Executive Demands and

Onerous Mandates Act of 2011...................................................................................... 27

S. 1189, the Unfunded Mandates Accountability Act of 2011 .......................................... 29

S. 1219, the Employment Impact Act of 2011 .................................................................. 30

S. 1338, the Regulatory Capture Prevention Act............................................................... 31

S. 1339, the Regulatory Information Reporting Act of 2011 ............................................ 32

S. 1438, the Regulation Moratorium and Jobs Preservation Act of 2011.......................... 33

House Bills .............................................................................................................................. 34

H.R. 10, the Regulations from the Executive in Need of Scrutiny (REINS) Act of

2011................................................................................................................................ 34

H.R. 213, the Regulation Audit Revive Economy (RARE) Act of 2011........................... 34

H.R. 214, the Congressional Office of Regulatory Analysis Creation and Sunset

and Review Act of 2011 ................................................................................................. 36

H.R. 373, the Unfunded Mandates Information and Transparency Act of 2011 ............... 38

H.R. 527, the Regulatory Flexibility Improvements Act of 2011 ..................................... 39

H.R. 1235, the Regulatory Moratorium Act of 2011......................................................... 42

H.R. 1281, the Restoring Economic Certainty Act of 2011 .............................................. 43

H.R. 1432, the Creating Sunshine, Participation, and Accountability for

Our Nation Act ............................................................................................................... 44

H.R. 2175, the Regulatory Balance Act ............................................................................ 45

H.R. 2204, the Employment Impact Act of 2011 .............................................................. 45

Concluding Observations............................................................................................................... 45

Committee Referrals................................................................................................................ 47

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Themes in Regulatory Reform Bills........................................................................................ 48

Expansion of Current Requirements ................................................................................. 52

Independent Regulatory Agencies..................................................................................... 52

Retrospective Reviews ...................................................................................................... 53

Congressional Oversight ................................................................................................... 54

Similarities and Differences in Regulatory Reform Bills........................................................ 55

Reforms May Require Additional Resources and Time .......................................................... 56

Other Issues ............................................................................................................................. 56

Tables

Table 1. House of Representative Committee Referrals of Regulatory Reform Bills

in the 112th Congress................................................................................................................... 47

Table 2. Senate Regulatory Reform Bills Address a Variety of Issues .......................................... 49

Table 3. House Regulatory Reform Bills Address a Variety of Issues........................................... 50

Contacts

Author Contact Information........................................................................................................... 57

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Introduction

Regulations generally start with an act of Congress and are the means by which statutes are

implemented and specific requirements are established. Federal agencies usually issue more than

3,000 final rules each year on topics ranging from the timing of bridge openings to the

permissible levels of arsenic and other contaminants in drinking water. During the past 65 years,

Congress and various Presidents have developed an elaborate set of procedures and requirements

to guide the federal rulemaking process, often with the implicit or explicit goal of reducing the

amount of regulatory burden placed on the public. These cross-cutting statutory and executive

order rulemaking requirements often require some type of analysis or disclosure on the part of the

rulemaking agency before issuing a covered rule, but also often give agencies substantial

discretion regarding whether the requirements are applicable.

In the 112th Congress, at least 22 bills have been introduced that would, if enacted, change many

of the current requirements in the federal rulemaking process. This report will describe many of

those bills, note whether similar legislation has been introduced or acted upon in the past,

summarize the comments of those supporting and opposing the proposed legislation, and provide

other relevant information. The report ends with some concluding observations, noting

similarities, differences, and broad themes in the legislative proposals. To put the regulatory

reform bills in context, however, the report first summarizes the current rulemaking requirements

(primarily statutes and executive orders) that the proposed legislation would amend, codify, or

otherwise affect.

Current Rulemaking Requirements

Administrative Procedure Act

The most long-standing and broadly applicable federal rulemaking requirements are in the

Administrative Procedure Act (APA) of 1946 (5 U.S.C. §551 et seq.). Although the APA discusses

both formal and informal rulemaking, this summary focuses on the more common informal

“notice and comment” rulemaking requirements. For informal rulemaking, the APA generally

requires that agencies (Cabinet departments and independent agencies as well as independent

regulatory agencies such as the Securities and Exchange Commission (SEC) and the Federal

Communications Commission (FCC)) publish a notice of proposed rulemaking (NPRM) in the

Federal Register, and give “interested persons” an opportunity to comment on the proposed rule.1

After considering the public comments, the agency may then publish the final rule, incorporating

a general statement of its basis and purpose. Although the APA does not specify the length of this

public comment period, agencies commonly allow at least 30 days.2 Finally, the APA states that

the final rule cannot become effective until at least 30 days after its publication unless (1) the rule

As used in this report, the term “independent regulatory agencies” refers to the boards and commissions identified as

such in the Paperwork Reduction Act (44 U.S.C. §3502(5)), including the Federal Communications Commission, the

Federal Energy Regulatory Commission, the Nuclear Regulatory Commission, and the Securities and Exchange

Commission. The term “independent agencies” refers to other agencies that answer directly to the President, but are not

part of Cabinet departments (e.g., the Environmental Protection Agency and the General Services Administration).

Executive Order 12866, discussed in detail later in this report, suggests that agencies allow the public at least 60 days

to comment for “significant” rules.

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grants or recognizes an exemption or relieves a restriction, (2) the rule is an interpretative rule or

a statement of policy, or (3) the agency determines that the rule should take effect sooner for

“good cause,” and publishes that determination with the rule.3

Although the APA generally requires agencies to publish NPRMs before promulgating a final

rule, the act also provides exceptions to this requirement. For example, the APA (5 U.S.C.

§553(b)(B)) states that the notice and comment procedures generally do not apply when an

agency finds, for “good cause,” that those procedures are “impracticable, unnecessary, or contrary

to the public interest.”4 When agencies use the good cause exception, the act requires that they

explicitly say so and provide a rationale for the exception’s use when the rule is published in the

Federal Register. “Interim final” rulemaking can be viewed as a particular application of the

good cause exception in the APA, but with the addition of a comment period after the rule has

become effective.5 Congress sometimes requires agencies to use interim final rulemaking, and

may also specify the length of the comment period.6

Paperwork Reduction Act

The Paperwork Reduction Act (PRA) (44 U.S.C. §§3501-3520) was originally enacted in 1980,

but was subsequently amended in 1986 and again in 1995. One of the purposes of the PRA is to

minimize the paperwork burden for individuals, small businesses, and others resulting from the

collection of information by or for the federal government. The act generally defines a “collection

of information” as the obtaining or disclosure of facts or opinions by or for an agency (Cabinet

departments and independent agencies as well as independent regulatory agencies) by 10 or more

nonfederal persons. Many information collections, recordkeeping requirements, and third-party

disclosures are contained in or are authorized by regulations as monitoring or enforcement tools.

In fact, these paperwork requirements are the essence of many agencies’ regulatory provisions.7

The PRA requires agencies to justify any collection of information from the public by

establishing the need and intended use of the information, estimating the burden that the

collection will impose on respondents, and showing that the collection is the least burdensome

way to gather the information.

For a legal overview of rulemaking and judicial review under the APA, see CRS Report R41546, A Brief Overview of

Rulemaking and Judicial Review, by Vanessa K. Burrows and Todd Garvey.

The APA also provides explicit exceptions to the NPRM requirement for certain categories of regulatory actions, such

as rules dealing with military or foreign affairs; agency management or personnel; or public property, loans, grants,

benefits, or contracts. Further, the APA says that the NPRM requirements do not apply to interpretative rules; general

statements of policy; or rules of agency organization, procedure, or practice. However, these rules do have to be

published in the Federal Register.

For more, see Michael Asimow, “Interim Final Rules: Making Haste Slowly,” Administrative Law Review, 51

(Summer 1999), pp. 703-755.

For example, Subsection (b)(2) of Section 1104 of the Patient Protection and Affordable Care Act amended Section

1173 of the Social Security Act (at 42 U.S.C. §1320d-2) and states, in part, that the Secretary “shall promulgate an

interim final rule applying any standard or operating rule recommended by the National Committee on Vital and Health

Statistics,” and “shall accept and consider public comments on any interim final rule published under this subparagraph

for 60 days after the date of such publication.”

For example, Environmental Protection Agency’s Toxics Release Inventory (TRI) program is essentially a database

created through collections of information imposed on businesses to inform the public about chemical hazards in their

communities. TRI reports require businesses in certain industries to report the quantity of any of more than 600

chemicals entering each environmental medium on site, transfers of the chemical in wastes to off-site locations, on-site

treatment methods and efficiency, and source reduction and recycling activities.

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The original PRA established the Office of Information and Regulatory Affairs (OIRA) within the

Office of Management and Budget (OMB) to provide central agency leadership and oversight of

government-wide efforts to reduce unnecessary paperwork burden and improve the management

of information resources. Agencies must receive OIRA-approval (signified by an OMB control

number displayed on the information collection) for each collection request before it is

implemented, and those approvals must be renewed at least every three years. Failure to obtain

OIRA approval for an active collection, or the lapse of that approval, represents a violation of the

act, and triggers the PRA’s public protection provision. Under that provision, no one can be

penalized for failing to comply with a collection of information subject to the act if the collection

does not display a valid OMB control number.8 OIRA can disapprove any collection of

information if it believes the collection is inconsistent with the requirements of the PRA.9

Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) of 1980 (5 U.S.C. §§601-612) requires federal agencies to

assess the impact of their forthcoming regulations on “small entities,” which the act defines as

including small businesses, small governmental jurisdictions, and certain small not-for-profit

organizations. Under the RFA, Cabinet departments and independent agencies as well as

independent regulatory agencies must prepare a “regulatory flexibility analysis” at the time

proposed and certain final rules are issued. The RFA requires the analysis to describe, among

other things, (1) the reasons why the regulatory action is being considered; (2) the small entities

to which the proposed rule will apply and, where feasible, an estimate of their number; (3) the

projected reporting, recordkeeping, and other compliance requirements of the proposed rule; and

(4) any significant alternatives to the rule that would accomplish the statutory objectives while

minimizing the impact on small entities. However, these analytical requirements are not triggered

if the head of the issuing agency certifies that the proposed rule would not have a “significant

economic impact on a substantial number of small entities” (hereafter referred to as a

“SEISNSE”). The RFA does not define “significant economic impact” or “substantial number of

small entities,” thereby giving federal agencies substantial discretion regarding when the act’s

analytical requirements are initiated. Also, the RFA’s analytical requirements do not apply to final

rules for which the agency does not publish a proposed rule.

The RFA initially did not permit judicial review of agencies’ actions under the act. However,

amendments to the act in 1996 as part of the Small Business Regulatory Enforcement Fairness

Act (SBREFA, 5 U.S.C. §601 note) permitted judicial review regarding, among other things,

agencies’ regulatory flexibility analyses for final rules and any certifications that their rules will

not have a significant impact on small entities. As a result, a small entity that is adversely affected

or aggrieved by an agency’s determination that its final rule would not have a significant impact

on small entities could seek judicial review of that determination within one year of the date of

the final agency action. In granting relief, a court may remand the rule to the agency or defer

enforcement against small entities.

For an up-to-date inventory of OMB-approved information collections, see http://www.reginfo.gov/public/do/

PRAMain.

Multi-headed independent regulatory agencies can, by majority vote, void any OIRA disapproval of a proposed

collection of information. See 44 U.S.C. §3507(f). For more information on the PRA, see CRS Report R40636,

Paperwork Reduction Act (PRA): OMB and Agency Responsibilities and Burden Estimates, by Curtis W. Copeland and

Vanessa K. Burrows.

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The RFA also contains several other notable provisions. For example, Section 610 of the act

requires agencies to review those rules that have or will have a significant impact within 10 years

of their promulgation to determine whether they should be continued without change or should be

amended or rescinded to minimize their impact on small entities. Section 612 of the RFA requires

the chief counsel of the Small Business Administration’s (SBA) Office of Advocacy to monitor

and report at least annually on agencies’ compliance with the act. SBA’s primary method of

monitoring agencies’ compliance is to review and comment on proposed regulations when they

are published for notice and comment in the Federal Register. However, the statute also

specifically authorizes the chief counsel to appear as amicus curiae (i.e., “friend of the court”) in

any court action to review a rule.

The RFA also requires agencies to ensure that small entities have an opportunity to participate in

the rulemaking process, and the 1996 amendments to the act in SBREFA required the

Environmental Protection Agency (EPA) and the Occupational Safety and Health Administration

(OSHA) to convene “advocacy review panels” before publishing a regulatory flexibility analysis

for a proposed rule. Specifically, the agency issuing the regulation must notify the SBA chief

counsel for advocacy and provide information on the draft rule’s potential impacts on small

entities and the type of small entities that might be affected. The chief counsel then must identify

representatives of affected small entities within 15 days of the notification. The review panel must

consist of full-time federal employees from the rulemaking agency, OMB, and SBA’s chief

counsel for advocacy. During the panel process, the panel must collect the advice and

recommendations of representatives of affected small entities about the potential impact of the

draft rule. The panel must report on the comments received and on the panel’s recommendations

no later than 60 days after the panel is convened, and the panel’s report must be made public as

part of the rulemaking record.10 The agency may or may not adopt the panel’s recommendations.

The Dodd-Frank Wall Street Reform and Consumer Protection Act (P.L. 111-203) required the

new Consumer Financial Protection Bureau (CFPB) to also hold such panels.

The Government Accountability Office (GAO, formerly the General Accounting Office) has

examined the implementation of the RFA several times within the past 20 years, and a recurring

theme in GAO’s reports is a lack of clarity in the act and a resulting variability in the act’s

implementation. For example, in 1991 GAO reported that each of the four federal agencies that it

reviewed had a different interpretation of key RFA provisions.11 In 1994 GAO again reported that

agencies’ compliance with the RFA varied widely from one agency to another and that agencies

were interpreting the statute differently.12 In a 1999 report on the implementation of Section 610

of the RFA and in a 2000 report on the implementation of the RFA at the EPA, GAO concluded

that agencies had broad discretion to determine what the statute required.13 In all of these reports,

GAO suggested that Congress consider clarifying the act’s requirements and/or give SBA or some

other entity the responsibility to develop criteria for whether and how agencies should conduct

For an examination of the first five advocacy review panels were implemented, see U.S. General Accounting Office,

Regulatory Reform: Implementation of the Small Business Advocacy Review Panel Requirements, GAO/GGD-98-36,

March 18, 1996.

U.S. General Accounting Office, Regulatory Flexibility Act: Inherent Weaknesses May Limit Its Usefulness for Small

Governments, GAO/HRD-91-16, January 11, 1991.

U.S. General Accounting Office, Regulatory Flexibility Act: Status of Agencies’ Compliance, GAO/GGD-94-105,

April 27, 1994.

U.S. General Accounting Office, Regulatory Flexibility Act: Agencies’ Interpretations of Review Requirements Vary,

GAO/GGD-99-55, April 2, 1999; U.S. General Accounting Office, Regulatory Flexibility Act: Implementation in EPA

Program Offices and Proposed Lead Rule, GAO/GGD-00-193. September 20, 2000.

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RFA analyses. In 2001, GAO testified that the promise of the RFA may never be realized until

Congress or some other entity defines what a “significant economic impact” and a “substantial

number of small entities” mean in a rulemaking setting.14 However, other observers have

indicated that the definitions of these terms should remain flexible because of significant

differences in each agency’s operating environment.15

Small Business Regulatory Enforcement Fairness Act

Some of the provisions in SBREFA imposed new rulemaking-related requirements on federal

agencies, but did not amend the RFA. For example, Section 212 of SBREFA requires agencies to

develop one or more compliance guides for each final rule or group of related final rules for

which the agency is required to prepare a regulatory flexibility analysis. Specifically, Section 212

requires the guides to (1) be published, (2) be designated as “small entity compliance guides,”

and (3) explain the actions a small entity is required to take to comply with an associated final

rule. However, the discretion inherent in the RFA regarding when a regulatory flexibility analysis

is required also applies to whether compliance guides must be developed. Section 212 gives

agencies broad discretion in other areas as well. For example, it says agencies “may” prepare

separate guides covering groups or classes of similarly affected small entities, and “may”

cooperate with associations of small entities to develop and distribute the guides. Agencies are

given “sole discretion” in the use of plain language in the guides. The statute does not indicate

when the guides must be developed or how they must be “published.” In December 2001, GAO

reported that Section 212 of SBREFA did not appear to have had much of an impact on agencies’

rulemaking activities, and its implementation varied across and sometimes within agencies.16

Using the discretion that the section provided, GAO said “an agency could legally exclude all of

its rules from coverage by the statute, designate a previously published document as its small

entity compliance guide, or develop and publish a guide with no input from small entities years

after the covered rule takes effect.” GAO recommended several changes it felt were needed to

strengthen and clarify the requirements in Section 212.17

Section 223(a) of SBREFA requires federal agencies regulating the activities of small entities to

establish a policy or program for the reduction and, under appropriate circumstances, the waiver

of civil penalties by small entities. In February 2001, GAO concluded that all of the agencies’

penalty reduction and waiver policies were within the broad discretion afforded by the statute.18

However, GAO also reported that some of the policies covered only a portion of the agencies’

enforcement actions involving small entities, and some treated small entities no differently than

U.S. General Accounting Office, Regulatory Flexibility Act: Key Terms Still Need to Be Clarified, GAO-01-669T,

April 24, 2001.

See, for example, page 17 of the SBA Office of Advocacy’s guidance on the implementation of the RFA, available at

http://www.sba.gov/sites/default/files/rfaguide.pdf, which says “Significance should not be viewed in absolute

terms….” For more information on the RFA, see CRS Report RL34355, The Regulatory Flexibility Act:

Implementation Issues and Proposed Reforms, by Curtis W. Copeland.

U.S. General Accounting Office, Regulatory Reform: Compliance Guide Requirement Has Had Little Effect on

Agency Practices, GAO-02-172, December 28, 2001.

In 2007, Congress enacted some changes to these requirements. See P.L. 110-28, Title VI, Subtitle B, sec. 7005.

Among other things, agencies must prepare compliance guides for any rule for which it must prepare a final regulatory

flexibility analysis, and must post the guides on their web sites.

U.S. General Accounting Office, Regulatory Reform: Implementation of Selected Agencies’ Civil Penalty Relief

Policies for Small Entities, GAO-01-280, February 20, 2001.

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large entities. The agencies’ policies also differed in terms of how key terms such as “small

entity” and “penalty reduction” were defined, and most were developed before SBREFA took

effect. GAO suggested several changes to the statute to strengthen agencies’ penalty relief

policies and make them more consistent.

Congressional Review Act

The statutory provision commonly known as the Congressional Review Act (CRA) (5 U.S.C.

§§801-808) was included as part of SBREFA as enacted in March 1996, and established

expedited procedures by which Congress may disapprove agencies’ rules by enacting a joint

resolution of disapproval.19 Under the CRA, before any final rule can become effective it must be

filed with each house of Congress and GAO.20 The definition of a “rule” under the CRA is very

broad, and the act applies to rules issued by Cabinet departments and independent agencies as

well as independent regulatory agencies.

If OIRA considers the issuing agency’s rule to be “major” (e.g., the rule is expected to have a

$100 million annual effect on the economy), the agency generally must delay the rule’s effective

date by 60 days after the date of publication in the Federal Register or submission to Congress

and GAO, whichever is later. Within 15 calendar days of receiving a major rule, GAO is required

to provide Congress with a report on the rule assessing the issuing agency’s compliance with the

procedural steps required by the various acts and executive orders applicable to the rulemaking

process.21 Although the CRA establishes these special requirements for major rules, the CRA

procedures for disapproving regulations apply to all rules, whether or not they are declared to be

major.

Within 60 days after Congress receives an agency’s rule, excluding periods when Congress is in

recess or adjournment, a Member of Congress can introduce a resolution of disapproval that, if

adopted by both houses and enacted into law, can nullify the rule, even if it has already gone into

effect. Senate action on a disapproval resolution under the act must occur within 60 days of

session after the regulation is submitted, and makes available during that period an expedited

procedure intended to ensure that the Senate can take up and vote on the measure before the

period expires. The act establishes no such expedited procedure for the House. If Congress

adjourns less than 60 days of session after a rule is submitted, a new 60 day period for

disapproval under the act begins on the 15th legislative day of the next session. If a disapproval

resolution is rejected by either house of Congress, the rule can take effect immediately (or as

provided by other governing law or rule).

Federal agencies have submitted more than 50,000 rules to GAO (and presumably, Congress)

since the CRA took effect in March 1996, including more than 1,000 major rules. However, only

one rule had been overturned through CRA’s procedures—OSHA’s ergonomics standard in March

2001 (P.L. 107-5). Many reasons have been suggested for why the CRA has not been used more

often,22 but chief among them may be the fact that, if the President vetoes a resolution of

For a detailed discussion of CRA procedures, see CRS Report RL31160, Disapproval of Regulations by Congress:

Procedure Under the Congressional Review Act, by Richard S. Beth.

Nevertheless, some rules have not been submitted. See CRS Report R40997, Congressional Review Act: Rules Not

Submitted to GAO and Congress, by Curtis W. Copeland.

To view these reports, see http://www.gao.gov/decisions/majrule/majrule.php.

Morton Rosenberg, “Whatever Happened to Congressional Review of Agency Rulemaking?: A Brief Overview,

(continued...)

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disapproval (which is likely if the underlying rule is developed during his administration), then

enactment of the resolution would require approval of a two-thirds majority in both houses of

Congress. The rejection of the ergonomics rule was the result of a specific set of circumstances

created by a transition in party control of the presidency. The majority party in both houses of

Congress was the same as the party of the incoming President (George W. Bush). When the new

Congress convened in 2001 and adopted a resolution disapproving the rule published under the

outgoing President (William J. Clinton), the incoming President did not veto the resolution.

Congress may be most able to use the CRA to disapprove rules in similar, transition-related

circumstances.23

Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act (UMRA) of 1995 was enacted in an effort to reduce the

costs associated with federal imposition of responsibilities, duties, and regulations upon state,

local, and tribal governments and the private sector without providing the funding appropriate to

the costs imposed by those responsibilities.24 Title II of UMRA (2 U.S.C. §§1532-1538) contains

requirements imposed on covered federal agencies during the rulemaking process. For example,

Section 202 of the act requires Cabinet departments and independent agencies (but not

independent regulatory agencies) to, among other things, prepare a written statement containing

specific descriptions and estimates for any proposed rule or any final rule for which a proposed

rule was published that includes any federal mandate that may result in the expenditure of $100

million or more in any year by state, local, or tribal governments, in the aggregate, or the private

sector. One of the items required in the written statement is a qualitative and quantitative

assessment of the anticipated costs and benefits of the mandate. OIRA has primary responsibility

for monitoring agency compliance with Title II of UMRA, and publishes an annual report on the

implementation of Title II.25

In February 1998, GAO reported that, because of the way the statute was written, Title II of

UMRA had little effect on agencies’ rulemaking actions during its first two years of

implementation.26 First, many of the act’s requirements did not appear to apply to most of the

“economically significant” rules (e.g., rules with a $100 million impact on the economy) that

were promulgated during this period. Even when UMRA was triggered, it often required agencies

to take actions that were identical or similar to actions that they were already required to take. In

(...continued)

Assessment, and Proposal for Reform,” Administrative Law Review, vol. 51, fall 1999, pp. 1051-1092.

See, for example, Susan E. Dudley, “Reversing Midnight Regulations,” Regulation, vol. 24 (Spring 2001), p. 9, who

noted that the “veto threat is diminished [after a transition], since the president whose administration issued the

regulations is no longer in office.” For a discussion of which rules may be carried over and disapproved after a

transition, see CRS Report RL34633, Congressional Review Act: Disapproval of Rules in a Subsequent Session of

Congress, by Curtis W. Copeland and Richard S. Beth.

For an overview of UMRA, see CRS Report R40957, Unfunded Mandates Reform Act: History, Impact, and Issues,

by Robert Jay Dilger and Richard S. Beth.

In recent years, OIRA’s annual report on UMRA has been combined with its report on the costs and benefits of

federal regulations. See, for example, Office of Management and Budget, Office of Information and Regulatory

Affairs, 2010 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State,

Local, and Tribal Entities, available at http://www.whitehouse.gov/sites/default/files/omb/legislative/reports/

2010_Benefit_Cost_Report.pdf.

U.S. General Accounting Office, Unfunded Mandates: Reform Act Has Had Little Effect on Agencies’ Rulemaking

Actions, GAO/GGD-98-30, February 4, 1998.

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May 2004, GAO again reported that UMRA’s written statement requirements did not apply to

most major or economically significant final rules issued in 2001 and 2002, even though some of

the rules “appeared to have potential financial impacts on affected nonfederal parties similar to

those of the actions that were identified as containing mandates at or above the act’s

thresholds.”27 In February 2011, GAO reiterated these conclusions, noting that there are 14

reasons why a rule would not be considered a “mandate” under UMRA.28

Small Business Paperwork Relief Act

In June 2002, Congress enacted and the President signed the Small Business Paperwork Relief

Act of 2002 (P.L. 107-198). The act amended the Paperwork Reduction Act to, among other

things, require each agency to establish a single point of contact to act as a liaison for small

business concerns with regard to information collection and paperwork issues. It also directed

agencies to make a special effort to reduce information collection burdens for small businesses

with fewer than 25 employees. OMB was directed to publish in the Federal Register and make

available on the Internet an annual list of the compliance assistance resources available to small

businesses.29 The act also required agencies to report to Congress on the amount of penalty relief

provided to small businesses, and established a task force to study the feasibility of streamlining

information collection requirements on small businesses.30

Executive Order 12866

Centralized review of agencies’ regulations within the Executive Office of the President has been

part of the federal rulemaking process for more than 30 years, perhaps most notably by President

Ronald Reagan in Executive Order 12291.31 The current process is delineated in Executive Order

12866, which was issued by President William Clinton on September 30, 1993.32 The executive

order limits OIRA’s reviews to proposed and final rules published by agencies other than

independent regulatory agencies,33 and to actions identified by the rulemaking agency or OIRA as

“significant” regulatory actions, defined as those that were “economically significant” (e.g., those

with a $100 million impact on the economy) or that (1) were inconsistent or interfered with an

action taken or planned by another agency; (2) materially altered the budgetary impact of

entitlements, grants, user fees, or loan programs; or (3) raised novel legal or policy issues. OIRA

reviews between 500 and 700 regulatory actions per year.

U.S. General Accounting Office, Unfunded Mandates: Analysis of Reform Act Coverage, GAO-04-637, May 12,

2004.

Testimony of Denise M. Fantone, Director, Strategic Issues, U.S. Government Accountability Office, before the

Subcommittee on Technology, Information Policy, Intergovernmental Relations and Procurement Reform, House

Committee on Oversight of Government Management, available at http://www.gao.gov/products/GAO-11-385T.

These lists of compliance assistance resources are available at http://www.sba.gov/category/navigation-structure/

starting-managing-business/starting-business/business-law-regulations/contact-government-agency/fe.

See http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/sbpr2004.pdf for a copy of the task

force’s June 28, 2004, final report.

The President, “Executive Order 12291—Federal Regulation,” 46 Federal Register 13193, February 17, 1981.

The President, “Executive Order 12866—Regulatory Planning and Review,” 58 Federal Register 51735, October 4,

1993.

Independent regulatory agencies are, however, covered by requirements in Section 4 of Executive Order 12866

regarding regulatory planning.

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Executive Order 12866 generally requires that OIRA complete its reviews of proposed and final

rules within 90 calendar days, and requires both rulemaking agencies and OIRA to disclose

certain information about how the regulatory reviews were conducted. The executive order

requires the issuing agency to provide to OIRA the text of the draft rule, a description of why the

rule is needed, and a general assessment of the rule’s costs and benefits. For draft rules that are

“economically significant” (e.g., rules expected to have at least a $100 million annual impact on

the economy), it requires a detailed cost-benefit analysis, including an assessment of the costs and

benefits of “potentially effective and reasonably feasible alternatives to the planned regulation.”

The executive order states that agencies shall “propose or adopt a regulation only upon a reasoned

determination that the benefits of the intended regulation justify its costs,” and that unless a

statute requires another regulatory approach, “in choosing among alternative regulatory

approaches, agencies should select those approaches that maximize net benefits.”34

During the review process, OIRA analyzes the draft rule in light of the principles of the executive

order and discusses the rule with staff and officials at the rulemaking agency. At the end of the

review OIRA either concludes that the draft rule is consistent with the principles of the executive

order (the majority of the cases) or returns the rule to the agency “for further consideration.” If

the draft is a proposed rule, the agency may then publish an NPRM. If the draft is a final rule, the

agency may then publish a final rule and allow the rule to take effect.

Executive Order 12866 also includes several other notable requirements. For example, Section

5(a) of the order requires agencies to periodically review their existing significant regulations to

determine whether they should be modified or eliminated. In March 1995, President Clinton

reemphasized this requirement by directing each agency to conduct a page-by-page review of all

existing regulations. In June 1995, the President announced that 16,000 pages had been

eliminated from the Code of Federal Regulations, but GAO reported that the page elimination

totals in four agencies did not take into account pages that had been added while the eliminations

took place.35 GAO also reported that about half of the actions taken appeared to have no effect on

the burden felt by regulated entities, would have little effect, or could increase regulatory burden.

Executive Order 13422

On January 18, 2007, President George W. Bush issued Executive Order 13422, making the most

significant amendments to Executive Order 12866 since it was published.36 The most important

changes fell into five general categories: (1) a requirement that agencies identify in writing the

specific market failure or problem that warrants a new regulation, (2) a requirement that each

agency head designate a presidential appointee within the agency as a “regulatory policy officer”

In January 1996, OIRA published a document that described “best practices” for preparing the economic analyses

called for by the executive order. This document was revised and issued as guidance in 2000. In September 2003, OMB

and the Council of Economic Advisors finalized new guidance for agencies on regulatory analysis, refining and

replacing the 1996 “best practices” document. For a copy of this guidance, see http://www.whitehouse.gov/omb/

circulars/a004/a-4.pdf.

U.S. General Accounting Office, Regulatory Reform: Agencies’ Efforts to Eliminate and Revise Rules Yield Mixed

Results, GAO/GGD-98-3, October 2, 1997.

The President, Executive Order 13422, “Further Amendment to Executive Order 12866 on Regulatory Planning and

Review,” 72 Federal Register 2763, January 23, 2007. Five years earlier, E.O. 13258 reassigned certain responsibilities

from the Vice President to the President’s chief of staff, but otherwise did not change the OIRA review process. See

Executive Order 13258, “Amending Executive Order 12866 on Regulatory Planning and Review,” 67 Federal Register

9385, February 28, 2002.

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who can control upcoming rulemaking activity in that agency, (3) a requirement that agencies

provide their best estimates of the cumulative regulatory costs and benefits of rules they expect to

publish in the coming year, (4) an expansion of OIRA review to include “significant guidance

documents,”37 and (5) a provision permitting agencies to consider whether to use more formal

rulemaking procedures in certain cases. 38 Some of these changes were highly controversial, and

in the first half of 2007, two House subcommittees held three oversight hearings on the order. A

provision was added to the appropriations measure funding OMB for FY2008 that would have

prevented the implementation of the executive order, but the measure was eliminated from the

final version of the legislation. On January 30, 2009, President Barack Obama issued Executive

Order 13497, which (among other things) revoked Executive Order 13422.39 As a result,

Executive Order 12866 was returned to the form when it was issued in September 1993. Less

than two months later, though, the Director of OMB instructed federal agencies to continue

sending their significant guidance documents to OIRA for review.40

OMB Bulletin on Agency Guidance

On the same day that President Bush issued Executive Order 13422, OMB issued a “Final

Bulletin for Agency Good Guidance Practices” that mirrored, in many respects, the guidance

provisions in the executive order.41 Unlike the order, however, the bulletin has not been revoked.

It generally requires agencies to (1) have written procedures for the approval of significant

guidance documents; (2) include certain standard elements in those documents (e.g., include a

citation to the statute or regulation that it interprets, and not include mandatory language such as

“shall” or “must”); (3) list those documents on the agencies’ websites and allow the public to

submit electronic comments; and (4) publish a notice in the Federal Register soliciting public

comments on “economically significant” documents. OMB later issued a memorandum to the

agencies on the implementation of the bulletin.42

The executive order defined a “significant guidance document” as a guidance document disseminated to regulated

entities or the public that may reasonably be anticipated to “(A) Lead to an annual effect of $100 million or more or

adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the

environment, public health or safety, or State, local, or tribal governments or communities; (B) Create a serious

inconsistency or otherwise interfere with an action taken or planned by another agency; (C) Materially alter the

budgetary impact of entitlements, grants, user fees, or loan programs or the rights or obligations of recipients thereof;

or (D) Raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set

forth in this Executive order.”

For more information, see CRS Report RL33862, Changes to the OMB Regulatory Review Process by Executive

Order 13422, by Curtis W. Copeland.

Executive Order 13497, “Revocation of Certain Executive Orders Concerning Regulatory Planning and Review,” 74

Federal Register 6113, February 4, 2009.

See http://www.whitehouse.gov/sites/default/files/omb/assets/memoranda_fy2009/m09-13.pdf for a copy of this

memorandum.

To view a copy of this bulletin, see http://www.whitehouse.gov/omb/memoranda/fy2007/m07-07.pdf; and Office of

Management and Budget, “Final Bulletin for Agency Good Guidance Practices,” 72 Federal Register 3432, January

25, 2007.

See http://www.whitehouse.gov/sites/default/files/omb/assets/regulatory_matters_pdf/m07-13.pdf for a copy of this

memorandum.

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Executive Order 13563

On January 18, 2011, President Obama issued Executive Order 13563 on “Improving Regulation

and Regulatory Review.”43 Section 1(b) states that “This order is supplemental to and reaffirms

the principles, structures, and definitions governing contemporary regulatory review that were

established in Executive Order 12866 of September 30, 1993.” Although similar to the 1993 order

in many respects, Executive Order 13563 contains some new provisions. For example, Section

2(b) of the order states that agencies should generally provide “timely online access to the

rulemaking docket on regulations.gov, including relevant scientific and technical findings, in an

open format that can be easily searched and downloaded. For proposed rules, such access shall

include, to the extent feasible and permitted by law, an opportunity for public comment on all

pertinent parts of the rulemaking docket, including relevant scientific and technical findings.”

Also, Section 6(b) of the new order requires agencies to initiate retrospective reviews of their

existing rules. Specifically, it states the following:

Within 120 days of the date of this order [i.e., by May 18, 2011], each agency shall develop

and submit to the Office of Information and Regulatory Affairs a preliminary plan, consistent

with law and its resources and regulatory priorities, under which the agency will periodically

review its existing significant regulations to determine whether any such regulations should

be modified, streamlined, expanded, or repealed so as to make the agency’s regulatory

program more effective or less burdensome in achieving the regulatory objectives.

As noted earlier in this report, Section 5(a) of Executive Order 12866 required agencies to submit

a plan for retrospective reviews to OIRA, so this provision appears to require agencies to update

those plans. On February 2, 2011, the OIRA Administrator issued guidance to federal agencies on

the implementation of the executive order, including these retrospective reviews.44 In that

guidance, the Administrator noted that although the executive order did not apply to independent

regulatory agencies, they were “encouraged to consider undertaking, on a voluntary basis,

retrospective analysis of their existing rules.”

Several federal agencies have published notices in the Federal Register requesting comments on

their review plans.45 On April 25, 2011, the OIRA Administrator issued another memorandum to

the heads of executive departments and agencies providing guidance on the processes through

which agencies’ preliminary plans for retrospective reviews will be finalized.46 Among other

things, agencies were instructed to make their preliminary plans available to the public within two

weeks of May 18, 2011, and should finalize those plans within 80 days after they are released.

Executive Order 13563, “Improving Regulation and Regulatory Review,” 76 Federal Register 3821, January 21,

2011.

See http://www.whitehouse.gov/sites/default/files/omb/memoranda/2011/m11-10.pdf.

See, for example, U.S. Department of Transportation, Office of the Secretary, “Regulatory Review of Existing DOT

Regulations,” 76 Federal Register 8940, February 16, 2011; and U.S. Environmental Protection Agency, “Improving

EPA Regulations,” 76 Federal Register 9988, February 23, 2011.

See http://www.whitehouse.gov/sites/default/files/omb/memoranda/2011/m11-19.pdf.

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Executive Order 13579

Although OMB encouraged independent regulatory agencies to comply with Executive Order

13563 and voluntarily develop plans for the retrospective review of their existing rules, most of

them reportedly did not do so.47 On July 11, 2011, President Obama issued Executive Order

13579, which was intended to encourage independent regulatory agencies to review their existing

rules.48 Specifically, Section 2(b) of that order states the following:

Within 120 days of the date of this order, each independent regulatory agency should

develop and release to the public a plan, consistent with law and reflecting its resources and

regulatory priorities and processes, under which the agency will periodically review its

existing significant regulations to determine whether any such regulations should be

modified, streamlined, expanded, or repealed so as to make the agency’s regulatory program

more effective or less burdensome in achieving the regulatory objectives.

In a memorandum issued the same day as the executive order, the President said he made the

request “with full respect for the independence” of these agencies.49

Other Obama Administration Initiatives

The Obama Administration has also announced several other initiatives related to the rulemaking

process. For example:

•

On April 7, 2010, the OIRA Administrator issued a memorandum to the

President’s Management Council instructing agencies to use the Regulation

Identification Number on all relevant documents to improve the transparency of

the rulemaking process.50

•

On May 28, 2010, the OIRA Administrator issued two memoranda. One

memorandum to the heads of cabinet departments and agencies outlined the

availability and uses of “generic” information clearances under the Paperwork

Reduction Act as a way for agencies to meet the act’s requirements while

eliminating unnecessary burdens and delays.51 The other memorandum to the

President’s Management Council provided “guidance to agencies in compiling

and maintaining comprehensive electronic regulatory dockets on

Regulations.gov, in order to give members of the public improved access to

information on which agencies rely in making decisions relevant to

rulemaking.”52

Cheryl Bolen, “Obama Asks Independent Agencies To Comply With Regulatory Review Order,” BNA Daily Report

for Executives, July 11, 2011, p. A-7.

To view a copy of this executive order, see http://www.whitehouse.gov/the-press-office/2011/07/11/executive-orderregulation-and-independent-regulatory-agencies.

See http://www.whitehouse.gov/the-press-office/2011/07/11/memorandum-regulation-and-independent-regulatoryagencies. See also http://www.whitehouse.gov/blog/2011/07/11/president-s-executive-order-improving-andstreamlining-regulation-independent-regula.

See http://www.whitehouse.gov/sites/default/files/omb/assets/inforeg/IncreasingOpenness_04072010.pdf.

See http://www.whitehouse.gov/sites/default/files/omb/assets/inforeg/PRA_Gen_ICRs_5-28-2010.pdf.

See http://www.whitehouse.gov/sites/default/files/omb/assets/inforeg/edocket_final_5-28-2010.pdf.

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•

On June 18, 2010, the OIRA Administrator issued a memorandum to the heads of

cabinet departments and agencies setting out guidance to inform the use of

disclosure and simplification in the regulatory process (e.g., that disclosed

information should be as accessible and usable as possible, and that agencies

should consider using default rules as a substitute for or a supplement to

mandates and bans).53

•

On January 18, 2011 (the same day that Executive Order 13563 was issued),

President Obama issued a memorandum on “Regulatory Flexibility, Small

Business, and Job Creation.”54 Among other things, the President directed

executive departments and agencies, and requested independent regulatory

agencies, to “give serious consideration to whether and how it is appropriate,

consistent with law and regulatory objectives, to reduce regulatory burdens on

small businesses, through increased flexibility” when they issue a proposed or

final rule that will have a significant economic impact on a substantial number of

small entities. When an agency chooses not to provide such flexibility, the

President directed the agency to “explicitly justify its decision not to do so in the

explanation that accompanies that proposed or final rule.”

•

Also on January 18, 2011, President Obama issued a memorandum on

“Regulatory Compliance.”55 Among other things, the memorandum directed

agencies with broad compliance and enforcement responsibilities to develop

plans to make public information on those responsibilities accessible,

downloadable, and searchable online, and directed the Federal Chief Information

Officer and Chief Technology Officer to work with their agency counterparts to

explore how to generate and share enforcement and compliance information

across the government.

•

On March 11, 2011, the OIRA Administrator, the Director of the Office of

Science and Technology Policy, and the U.S. Trade Representative issued a joint

memorandum on “Principles for Regulation and Oversight of Emerging

Technologies.”56 Areas covered by the memorandum included public

participation, benefits and costs, flexibility, and coordination.

•

On April 13, 2011, the OIRA Administrator issued a memorandum to the heads

of executive departments and agencies providing final guidance on implementing

the Plain Writing Act of 2010 (P.L. 111-274).57 For example, by July 13, 2011,

agencies must create a plain writing section on their websites, and by October 13,

2011, they must write all new or substantially revised documents in plain writing.

See http://www.whitehouse.gov/sites/default/files/omb/assets/inforeg/disclosure_principles.pdf.

See http://www.whitehouse.gov/sites/default/files/omb/inforeg/for-agencies/POTUS-Memo-on-RegulatoryFlexibility-Small-Business-and-Job-Creation-01-18-2011.pdf. See also The President, “Regulatory Flexibility, Small

Business, and Job Creation,” 76 Federal Register 3827, January 21, 2011.

See http://www.whitehouse.gov/sites/default/files/omb/inforeg/for-agencies/POTUS-Memo-on-RegulatoryCompliance-01-18-2011.pdf. See also The President, “Regulatory Compliance,” 76 Federal Register 3825, January 21,

2011.

See http://www.whitehouse.gov/sites/default/files/omb/inforeg/for-agencies/Principles-for-Regulation-andOversight-of-Emerging-Technologies-new.pdf.

See http://www.whitehouse.gov/sites/default/files/omb/memoranda/2011/m11-15.pdf.

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Regulatory Reform Legislation Introduced During

the 112th Congress

The remainder of this report discusses various crosscutting regulatory reform bills that had been

introduced in the 112th Congress as of the date of this report. The report includes only legislation

designed to result in public laws, and does not include other types of legislation (e.g., H.Res. 72,

which directed certain standing committees to inventory and review existing, pending, and

proposed regulations and orders from agencies, particularly with respect to their effect on jobs

and economic growth). It also does not include bills designed to affect rulemaking in only one

agency (e.g., H.R. 128, which would direct the Secretary of Labor to revise regulations

concerning the recording and reporting of occupational injuries and illnesses under the

Occupational Safety and Health Act of 1970; and H.R. 2401, which focuses on certain rules

issued by EPA). Neither does the report include bills focusing only on judicial review of rules

(e.g., H.R. 455, which would authorize a state official to file a legal brief challenging the

constitutionality of a rule under the Tenth Amendment) or litigation (e.g., H.R. 1996 and S. 1061,

which would limit reimbursement of legal fees in cases brought against federal agencies).

The report first presents the regulatory reform bills that have been introduced in the Senate, and

then discusses the bills that have been introduced in the House of Representatives. In some cases,

virtually the same proposed legislation has been introduced in both chambers (e.g., S. 299 and

H.R. 10). For each bill, the report provides the bill number, the title, the primary sponsor of the

proposed legislation, the date that it was introduced, and the committee(s) to which it was

referred. The report then describes each bill’s main provisions, and an “analysis” section for each

bill discusses any similar or related legislation that has been enacted or considered in the past, and

other potentially relevant information.

Senate Bills

S. 128: the Small Business Paperwork Relief Act of 2011

S. 128, introduced by Senator David Vitter on January 25, 2011, and referred to the Senate

Committee on Homeland Security and Governmental Affairs, would amend the Paperwork

Reduction Act (adding a new subsection (j) to 44 U.S.C. §3506) and direct agency heads not to

impose civil fines for first-time paperwork violations by “small business concerns,” unless the

agency head determines that (1) there is potential for “serious harm to the public interest;” (2) the

detection of criminal activity would be impaired; (3) the violation is not corrected within six

months of written notification from the agency; (4) the violation involves an internal revenue law

or a law concerning the assessment or collection of any tax, debt, revenue, or receipt; or (5) the

violation presents a “danger to the public health or safety.” If a small business had previously

violated any of the same agency’s information collection requirements, the prohibition on civil

fines is not applicable.

Even if the agency head determines that a violation presents a danger to public health or safety,

the bill allows an agency to decide not to impose a civil fine if the violation is corrected within 24

hours after the small business owner is notified of the violation. The agency head is to take into

account such factors as the nature and seriousness of the violation, whether the small business has

made a good-faith effort to comply, and whether the small business obtained a significant

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economic benefit from the violation. If an agency does not allow a small business 24 hours to

correct such a violation, the agency head is required to notify Congress within 60 days after the

imposition of the civil fine. If a small business had previously violated any of the same agency’s

information collection requirements, the prohibition on civil fines is not applicable. However,

agencies are prohibited from considering information collection violations in other agencies.

Analysis

Similar penalty-relief legislation has been introduced but not enacted for more than 10 years (e.g.,

S. 1116 in the 111th Congress and S. 281 in the 110th Congress, both of which were also

introduced by Senator Vitter). In 1999, the House of Representatives passed a bill (H.R. 391 in

the 106th Congress) that would have barred federal agencies from issuing penalties for most firsttime paperwork violations, but similar legislation was not passed by the Senate. Supporters of

such legislation in the past have said that agencies that promulgate new paperwork requirements

often forget that small businesses face numerous other paperwork requirements from other

agencies, and that small businesses are concerned about violating requirements that they do not

know about. Opponents, however, have asserted that the legislation could encourage companies

to violate the law, could prevent detection of serious violations, and that a single company could

be a “first-time” violator in different agencies.58 They also contended that agencies already

typically provide penalty relief for first-time paperwork violations except in the most egregious

cases.

As noted previously in this report, many information collections, recordkeeping requirements,

and third-party disclosures are contained in or are authorized by regulations as monitoring or

enforcement tools, and are the essence of many agencies’ regulatory provisions (e.g., the EPA

Toxics Release Inventory program). However, because S. 128 does not define such terms as

“serious harm to the public interest,” the bill appears to give agency heads substantial discretion

to decide when penalty relief will be provided. Also, although an agency must notify Congress

when a small business is not given 24 hours to correct a violation that “presents a danger to the

public health or safety,” if the agency head concludes that some other exception applies (e.g., that

the violation could cause “serious harm to the public interest”), then no such notification appears

to be necessary.

Congress has enacted legislation that is somewhat related to this issue. As noted earlier in this

report, Section 223(a) of SBREFA (enacted in March 1996) required federal agencies regulating

the activities of small entities to establish a policy or program for the reduction and, under

appropriate circumstances, the waiver of civil penalties for small entities. However, GAO

reported in February 2001 that the five agencies it examined had such policies, but some of the

policies gave small entities no more penalty relief than provided to large entities, and other

policies covered only certain types of actions.59

In 2002, Congress enacted the Small Business Paperwork Reduction Act (P.L. 107-198), which

established an interagency task force to study the feasibility of streamlining small business

See, for example, Ralph Lindeman, “Witnesses Debate Need for Legislation Giving Businesses Paperwork Relief,”

BNA Daily Report for Executives, September 27, 2006, p. A-45. The legislation under consideration at the time was S.

2656 and H.R. 5242, 109th Congress.

U.S. General Accounting Office, Regulatory Reform: Implementation of Selected Agencies’ Civil Penalty Relief

Policies for Small Entities, GAO-01-280, February 20, 2001.

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paperwork requirements. (An amendment to this legislation that would have barred penalties for

first-time paperwork violations was defeated.) In its June 2004 final report, the task force

described opportunities to consolidate and coordinate information dissemination efforts,

described an interactive web-based system to help small businesses understand and comply with

paperwork requirements, and identified other opportunities to provide assistance to small

businesses.60 The legislation also required OMB and SBA to establish a list of compliance

assistance resources, and required each agency to establish a single point of contact for small

business concerns.61

S. 299: the Regulations from the Executive in Need of Scrutiny Act of 2011

S. 299, introduced by Senator Rand Paul on February 7, 2011, and referred to the Senate

Committee on Homeland Security and Governmental Affairs, would, if enacted, amend the

Congressional Review Act to require congressional approval of major rules before they could

take effect. The bill defines a “major rule” as any rule that the OIRA Administrator finds has

resulted in or is likely to result in (1) an annual effect on the economy of $100 million or more;

(2) a major increase in costs or prices; or (3) significant adverse effects on competition,

employment, investment, productivity, innovation, or U.S. competitiveness. The joint resolution

of approval may be introduced on or after the date the rule is received by Congress, and must

state the following: “That Congress approves the rule submitted by the __ relating to __ .” (with

the blank spaces appropriately filled in). The majority leader of the House of Representatives and

the majority leader of the Senate (or their designees) would be required to introduce the joint

resolutions in each chamber within three days after Congress receives a major rule. The joint

resolutions would then be referred to the committees of jurisdiction in each house.

If the House and Senate committees to which the joint resolution is referred have not reported the

resolution within 15 legislative or session days of its introduction, the committees are

automatically discharged of their responsibilities and the resolution is to be placed on the calendar

in each chamber. A vote on final passage of the joint resolution is required within 15 days of its

being reported by or discharged from the committees. Once a joint resolution is on the Senate

calendar, a motion to proceed is in order, and all points of order are waived. In the House, a

motion to proceed is considered privileged and not debatable. The joint resolution is not subject

to amendment, or to a motion to postpone or proceed to other business. Debate is limited to not

more than two hours, divided equally between those favoring and opposing the resolution.

S. 299 states that if a joint resolution of approval for a major rule is not enacted by the end of 70

session days or legislative days after the issuing agency submits the rule to Congress (excluding

days when either house is adjourned for more than three days), the rule is deemed not approved

and cannot take effect. However, the proposed legislation permits a major rule to take effect for

90 calendar days without congressional approval if the President determines (by executive order)

that the rule is necessary because of an imminent threat to health or safety or other emergency, for

the enforcement of criminal laws, for national security, or to implement an international trade

agreement.

See http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/sbpr2004.pdf for a copy of this report.

See http://www.sba.gov/category/navigation-structure/starting-managing-business/starting-business/business-lawregulations/contact-government-agency/fe for this information.

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S. 299 also states that the enactment of a joint resolution of approval does not provide or modify

the statutory authority for the rule, and does not affect any claim against an alleged defect in the

rule. The bill also clarifies that, notwithstanding the CRA’s prohibition on judicial review, “a

court may determine whether a Federal Agency has completed the necessary requirements under

this chapter for a rule to take effect.”

The procedures requiring congressional approval for major rules, and permitting congressional

disapproval for non-major rules, do not apply to rules concerning monetary policy from the Board

of Governors of the Federal Reserve System or the Federal Open Market Committee. Rules that

establish, modify, open, close, or conduct a regulatory program for a commercial, recreational, or

subsistence activity related to hunting, fishing, or camping; and non-major rules for which the

agency invokes the “good cause” exception to notice and comment, can take effect at such time as

the promulgating agency determines.62

Analysis

In contrast to the CRA disapproval process for all rules, the REINS Act would require

congressional approval before a major rule could take effect. (Non-major rules would take effect

as otherwise provided in law, and Congress could still disapprove non-major rules through the

CRA or some other legislative process.) Supporters of the legislation assert that it would allow

Congress to reclaim its legislative responsibility and better oversee the regulations being written

pursuant to congressionally established requirements or authorities.63 Opponents, however, have

expressed concerns about the constitutionality of the REINS Act, about whether Congress has the

time or expertise necessary to approve or disapprove as many as 100 major rules each year, and

whether the legislation is even necessary for Congress to oversee the federal rulemaking

process.64

Somewhat similar legislation has been previously introduced but not acted upon. For example, in

the 106th Congress, S. 1348 (the Congressional Responsibility Act of 1999) would have required

Congress to enact a bill containing the text of a final rule (not just major rules) before it could

take effect. H.R. 110 in the 108th Congress (the Congressional Responsibility Act of 2003) would

have required a similar approach. Also in the 106th Congress, S. 2670 (the Congressional

Regulatory Reform Act of 2000) would have required Congress to enact a joint resolution of

approval before any major rule could take effect. In the 111th Congress, H.R. 3765 and S. 3826

The Administrative Procedure Act (APA) of 1946 (5 U.S.C. §551 et seq.) generally requires agencies to publish a

notice of proposed rulemaking soliciting comments from the public, and then publish a final rule. However, the APA (5

U.S.C. §553(b)(B)) states that the notice and comment procedures generally do not apply when an agency finds, for

“good cause,” that those procedures are “impracticable, unnecessary, or contrary to the public interest.”

See, for example, testimony of David McIntosh, before the Subcommittee on Courts, Commercial and

Administrative Law, House Committee on the Judiciary, January 24, 2011, available at http://judiciary.house.gov/

hearings/pdf/McIntosh01242011.pdf; and testimony of Eric R. Claeys, Professor of Law, George Mason University,

before the Subcommittee on Courts, Commercial and Administrative Law, House Committee on the Judiciary, March

8, 2011, available at http://judiciary.house.gov/hearings/pdf/Claeys03082011.pdf.

See, for example, testimony of Sally Katzen, before the Subcommittee on Courts, Commercial and Administrative

Law, House Committee on the Judiciary, January 24, 2011, available at http://judiciary.house.gov/hearings/pdf/

Katzen01242011.pdf; and testimony of David Goldston, Director of Government Affairs, Natural Resources Defense

Council, before the Subcommittee on Courts, Commercial and Administrative Law, House Committee on the Judiciary,

March 8, 2011, available at http://judiciary.house.gov/hearings/pdf/Goldston03082011.pdf.

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(the Regulations from the Executive in Need of Scrutiny Act) would have also required Congress

to enact a joint resolution of approval before any major rule could take effect.

The provision in S. 299 clarifying that “a court may determine whether a Federal Agency has

completed the necessary requirements under this chapter for a rule to take effect” could make it

more likely that agencies would submit their covered rules to GAO and Congress.65 The courts

have generally interpreted the CRA to conclude that they do not have judicial review over

whether agencies must submit their rules to GAO and Congress before they can take effect.66

A February 2011 CRS report provided information on the number of major rules issued in recent

years, and noted that the 100 major rules issued in calendar year 2010 were considered major for

a variety of reasons—not just compliance costs.67 For example, 37 of the rules appeared to be

major because they involved transfers of funds from one party to another (most commonly,

federal funds to the recipients of those funds). Ten other rules appeared to be major because they

were expected to prompt consumer spending, or because they established fees for the

reimbursement of federal functions. Thirty-nine rules appeared major because they were expected

to result in at least $100 million in annual compliance costs, regulatory benefits, or both. In

almost all of these rules, the estimated benefits exceeded the estimated costs. In only one rule was

the agency’s estimate of benefits lower than the estimated costs, and the agency indicated that the

costs were driven by the specific requirements in the underlying statute.68

S. 358: the Regulatory Responsibility for Our Economy Act of 2011

S. 358, introduced by Senator Pat Roberts on February 15, 2011, and referred to the Senate

Committee on Homeland Security and Governmental Affairs, would, if enacted, put into statute

many of the broad regulatory goals enunciated in Executive Orders 12866 and 13563 (e.g., that

federal agencies should adopt regulations only upon a reasoned determination that the benefits

justify the costs, tailor regulations to accomplish regulatory objectives while imposing the least

burden on society, select regulatory approaches that maximize net benefits, and allow for public

participation). However, because the bill defines a covered “agency” to include independent

regulatory agencies like the FCC and the SEC, the impact of S. 358 would be broader than the

executive orders (which do not cover independent regulatory agencies). Exempt from these

principles and other requirements in the bill are regulations that (1) are issued through formal

rulemaking procedures in 5 U.S.C. 556 and 5 U.S.C. 557;69 (2) pertain to military or foreign

affairs functions, other than procurement regulations and regulations involving the import or

See CRS Report R40997, Congressional Review Act: Rules Not Submitted to GAO and Congress, by Curtis W.

Copeland, which reported that many final rules were not submitted to GAO or Congress from 1999 through 2009.

The CRA (5 U.S.C. §805) states that “No determination, finding, action, or omission under this chapter shall be

subject to judicial review.” See Montanans For Multiple Use v. Barbouletos, 568 F.3d 225 (D.C. Cir. 2009).

CRS Report R41651, REINS Act: Number and Types of “Major Rules” in Recent Years, by Curtis W. Copeland and

Maeve P. Carey.

U.S. Department of Transportation, Federal Railroad Administration, “Positive Train Control Systems,” 75 Federal

as train-to-train collisions and train movements through a switch left in the wrong position.

Virtually all agency regulations are currently issued under informal “notice and comment” rulemaking procedures.

Formal rulemaking, as the name implies, is a much more rigorous, trial-like, on-the-record procedure in which

interested persons testify and cross-examine witnesses, and the agency may take depositions and issue subpoenas. It is

generally considered a more time-consuming and expensive process than informal rulemaking.

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export of non-defense articles or services; and (3) are limited to agency organization,

management, or personnel matters.

S. 358 also contains some new requirements on rulemaking agencies. For example, it would

require a minimum of 60 days for public comment, unless a rule is designated by OIRA as an

emergency rule. Also, if an interim final rule is issued under the APA’s “good cause” exception in

5 U.S.C. §553(b)(B) and challenged in a U.S. court, the issuing agency would be required to

delay the implementation of the rule until final disposition of the challenge.

Section 8 of the bill would put into statute, broaden, and modify the requirements for

retrospective rule review that are in Executive Order 13563. Specifically, agencies (including

independent regulatory agencies) would be required to develop and submit to the “appropriate

congressional committees” a “preliminary plan” for reviewing “significant” rules issued by the

agencies every five years to determine if they should be “modified, streamlined, expanded, or

repealed.” “Significant” regulatory actions are defined as they are in Executive Orders 12866 and

13563 (e.g., rules expected to have a $100 million impact on the economy or conflict with

another agency’s actions), but also includes regulatory actions that are expected to “add to the

national debt.” Upon completion of any such retrospective review, the agency must submit a

report to the appropriate congressional committees describing the outcome of the review. That

report is to describe which regulations were changed or repealed, the reasons for the changes, and

the reasons why no action was taken.

Analysis

Shortly after Senator Roberts introduced S. 358, he said the bill would “strengthen and codify

President Obama’s Executive Order from January 18 (Executive Order 13563),” and would

ensure that provisions in the executive order would be implemented.70 He also said that the

legislation would improve on the executive order by including independent regulatory agencies

and eliminating other “loopholes” (e.g., eliminating a provision stating that agencies may

consider values that are difficult to quantify, such as equity, human dignity, fairness, and

distributive impacts). However, S. 358 states that agencies may “take into account benefits and

costs, both quantitative and qualitative,” so agencies could arguably include equity, human

dignity, fairness, and distributive effects as “qualitative” benefits. Also, some of the standards in

both the executive order and the proposed legislation may conflict with each other. For example,

a regulatory option that imposes the “least burden on society” may not be the option that will

“maximize net benefits.” 71

Even if S. 358 is enacted, significant regulations issued by independent regulatory agencies

would not be reviewed by OIRA under the procedures currently in Section 6 of Executive Order

12866, so their regulations would not be independently analyzed for consistency with these

legislative standards. Those agencies’ rules could be made subject to review by OIRA by statute

or by the President amending Executive Order 12866. As discussed in more detail later in this

Senator Pat Roberts, “Regulatory Responsibility for Our Economy Act of 2011,” remarks in the Senate,

Congressional Record, daily edition, February 16, 2011, p. S766.

For example, one regulatory option could have estimated costs of $50 million and benefits of $100 million, yielding

net benefits of $50 million. Another regulatory option could have estimated costs of $100 million and benefits $200

million, yielding net benefits of $100 million. The first option would impose the least burden, while the second option

would produce the largest net benefits.

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report, however, doing so would put independent regulatory agencies more under the control of

the President than ever before.

The retrospective review requirements in S. 358 differ somewhat from the requirements in

Executive Order 13563. For example, whereas the executive order requires agencies to submit

their preliminary regulatory review plans to OIRA, the bill would have those plans submitted to

the appropriate congressional committees. Also, the executive order does not specify how

frequently these “periodic” reviews would occur, whereas S. 358 specifies that the reviews must

be done once every five years. Finally, it is unclear what effect the addition of a new category to

the definition of “significant regulatory actions” (i.e., actions that are expected to “add to the

national debt”) will have on the number of rules that would be retrospectively reviewed.

S. 474: the Small Business Regulatory Freedom Act of 2011

S. 474, introduced by Senator Olympia Snowe on March 3, 2011, and referred to the Senate

Committee on Homeland Security and Governmental Affairs, proposes to make several

amendments to the Regulatory Flexibility Act (RFA). Section 3 of the legislation would add a

definition of “economic impact” (at 5 U.S.C. §601(a)), defining it (in the context of a proposed or

final rule) as any direct economic effects on small entities and “any indirect economic effect on

small entities, including potential job creation or job loss, that is reasonably foreseeable and that

results from the rule, without regard to whether small entities are directly regulated by the rule.”

(For more than 25 years, courts have ruled that agencies need not prepare regulatory flexibility

analyses if the effects of a rule on an industry are indirect.72) Section 4 of the bill would amend

Section 611 of the RFA and permit judicial review of agency compliance with the initial

regulatory flexibility analysis requirements in Section 603 of the act for proposed rules.

(Currently, judicial review is not available for such analyses.) 73 Small entities must seek such

review before the close of the public comment period provided for in the proposed rule. Section 4

of S. 474 would also permit courts to issue an injunction prohibiting an agency from taking any

action relating to the rule until it is in compliance with the RFA’s requirements for initial and final

regulatory flexibility analysis.74

Section 5 of S. 474 would amend Section 610 of the RFA and require each agency to establish a

plan for the periodic review of each rule that the agency head determines has a significant

economic impact on a substantial number of small entities, “without regard to whether the agency

performed an analysis under section 604 with respect to the rule.” (At the present time, it is

unclear whether agencies must review all of their rules that currently have such impacts, or only

those rules that were expected to have such impacts at the time they were issued.) Section 5 also

requires agencies to review any small entity compliance guides that were required to be published

under Section 212 of SBREFA. Reviews of existing rules and compliance guides would be

required to be completed within eight years after the date of enactment, and every subsequent

eight years. Rules and compliance guides issued after the date of enactment would be required to

be completed within eight years “after the date the final rule is published in the Federal

See, for example, Mid-Tex Electric Cooperative, Inc. v. FERC, 773 F.2d 327, 343 (D.C. Cir. 1985).

Judicial review is already permitted with regard to agency compliance with sections 601, 604, 605(b), 608(b), and

610, and agency compliance with Sections 607 and 609(a) is permitted in connection with judicial review of Section

604. See 5 U.S.C. §611(a)(1).

Courts are already permitted to remand the rule to the agency and to defer enforcement of the rule against small

entities unless the court finds that continued enforcement of the rule is in the public interest. See 5 U.S.C. §611(a)(4).

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proposed legislation also details the contents of those reviews and public notices of the reviews.

Six months after the deadline for review, if the SBA Chief Counsel for Advocacy determines that

an agency has failed to complete the required review, “each rule issued by the agency that the

head of the agency determined under subsection (a) has a significant economic impact on a

substantial number of small entities shall immediately cease to have effect.”

Currently, only rules issued by EPA, OSHA, and the soon-to-be-established CFPB are required to

hold SBREFA review panels before publishing a proposed rule that is expected to have a

SEISNSE. Section 6 of S. 474 would expand the requirement for review panels to all federal

agencies.

Currently, the RFA’s requirements only apply to proposed rules and final rules for which the

agency published a notice of proposed rulemaking. Section 7 of the proposed legislation would

expand the scope of the RFA to include significant guidance documents as defined in OMB’s

final bulletin for agency good guidance procedures.75

Currently, Section 603(a) of the RFA states that the chapter applies to interpretative tax rules, “but

only to the extent that such interpretative rules impose on small entities a collection of

information requirement.” The Internal Revenue Service (IRS) has asserted that the underlying

internal revenue laws, not their rules, impose the information collection requirement, and

therefore the RFA does not apply. S. 474 would amend Section 603(a) to state that the chapter

applies if the rules, “or the statutes upon which such rules are based,” impose an information

collection requirement on small entities.

The bill would also require agencies’ initial and final regulatory flexibility analyses to be more

detailed, and would require quantification of those analyses to the extent possible. It would also

require agencies to notify the SBA Office of Advocacy of any draft rules that are expected to have

a SEISNSE when the rule is submitted to OIRA for review or at least three months before

publication. Finally, the bill would establish qualifications for the Chief Counsel for Advocacy,

and would permit the office to comment on any regulatory action that affects small businesses,

without regard to whether the agency is required to file a notice of proposed rulemaking.

The bulletin defines a “significant” guidance document” as a guidance document disseminated to regulated entities or

the public that may reasonably be anticipated to “(1) lead to an annual effect on the economy of $100 million or more

or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the

environment, public health or safety, or State, local, or tribal governments or communities; (2) create a serious

inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the

budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof;

or (4) raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set

forth in Executive Order 12866.” See U.S. Office of Management and Budget, “Final Bulletin for Agency Good

Guidance Practices,” 72 Federal Register 3432, January 25, 2007, available at http://www.whitehouse.gov/sites/

default/files/omb/assets/regulatory_matters_pdf/012507_good_guidance.pdf.

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S.Amdt. 299 to S. 493, the SBIR/STTR Reauthorization Act of 2011 76

S.Amdt. 299 to S. 493, introduced by Senator Olympia Snowe on April 14, 2011, and referred to

the Senate Committee on Small Business and Entrepreneurship, is very similar to Senator

Snowe’s original bill, S. 474. Some of the differences are as follows:

•

S.Amdt. 299 defines “indirect” economic impact somewhat differently (“the

reasonably foreseeable economic effects of the rule on small entities that (i)

purchase products or services from, sell products or services to, or otherwise

conduct business with entities directly regulated by the rule; (ii) are directly

regulated by other governmental entities as a result of the rule; or (iii) are not

directly regulated by the agency as a result of the rule but are otherwise subject to

other agency regulations as a result of the rule”).

•

S.Amdt. 299 requires agencies to review their rules and compliance guides

within nine years of the date of enactment (instead of eight years in S. 474), and

every nine years thereafter. It does not allow agencies to extend the deadline if

they are unable to complete their reviews within this time period.

•

S.Amdt. 299 requires the Inspector General (IG) for the agency (not the SBA

Office of Advocacy) to determine whether the agency has conducted the required

retrospective review “appropriately” (not just whether the required reviews have

been completed). The IG is required to notify the agency of any deficiency, and if

the agency does not address the issues within six months, the IG is required to

notify Congress within 30 days. Thirty days after that notice, “an amount equal to

1 percent of the amount appropriated for the fiscal year to the appropriations

account of the agency that is used to pay salaries shall be rescinded.” (In S. 474,

the rule would go out of effect if the analysis was not conducted appropriately.)

•

Instead of subjecting all agencies to the panel requirements in Section 609 of the

RFA, S.Amdt. 299 would require the SBA Chief Counsel for Advocacy to

designate three additional agencies each year for three years “based on the

economic impact of the rules of the agency on small entities.”

S.Amdt. 299 does not establish qualifications for the Chief Counsel for Advocacy, but added an

authorization of appropriation for FY2012 through FY2013 of the costs associated with these

amendments and repeals certain statutory provisions to offset those costs.

On May 2, 2011, the Senate Majority Leader filed for cloture on S. 493, citing concerns about

“extraneous amendments” to the bill. According to press accounts, one of the primary areas of

concern was S.Amdt. 299, particularly the requirement for retroactive review.77 However, on May

4, 2011, by a vote of 52-44, cloture on the bill was not invoked.78 As of the date of this report, S.

493 has not been acted upon.

Among other things, S. 493 would reauthorize through FY2019 the SBA’s Small Business Innovation Research

(SBIR) and Small Business Technology Transfer (STTR) programs.

Dean Scott, “Snowe’s Regulatory Review Plan May Stall if Reid Shelves Small Business Bill,” BNA Daily Report

for Executives, May 4, 2011, p. A-30.

Record vote number 64, May 4, 2011.

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S.Amdt. 390 to S. 782, the Economic Development Revitalization Act of 201179

As discussed below, on May 19, 2011, Senator Snowe introduced S. 1030, the text of which was

identical to the text of S.Amdt. 299. On June 8, 2011, Senator Mitch McConnell introduced

S.Amdt. 390 to S. 782 for Senator Snowe. The text of S.Amdt. 390 was also identical to the text

of S.Amdt. 299. On June 9, the Senate did not approve the amendment. Among those voting

against the amendment was Senator Mary Landrieu, chair of the Senate Committee on Small

Business, who said that although she was sympathetic to the concerns addressed in the

amendment, it “reaches so far outside of the realm of small business, it seems irresponsible for us

to move forward unless it goes through the entire process.”80

Analysis

Some of the provisions in S. 474 were in proposed legislation that Senator Snowe sponsored

during the 111th Congress (S. 3103, the Small Business Job Creation Act of 2010), but which was

not enacted. Among other things, that legislation would have amended the RFA to require (1)

each initial regulatory flexibility analysis to estimate the economic impact of the proposed rule on

small businesses; (2) an agency to notify the SBA Chief Counsel for Advocacy of any draft rules

that may have a significant economic impact on a substantial number of small businesses; (3)

each final regulatory flexibility analysis to include the agency’s response to any comments filed

by the Chief Counsel in response to the proposed rule; and (4) the agency to publish the final

regulatory flexibility analysis on its website. It also would have required each agency to place on

its website its plan for the periodic review of rules.

In a press release issued when she introduced S. 474, Senator Snowe said the bill would “ensure

that federal agencies fully consider small business economic impact during the regulatory

process.”81 In that same press release, a representative of the National Federation of Independent

Businesses was quoted as saying that the bill would “help prevent the threat of costly new

regulations.” However, representatives from the Center for Progressive Reform said that S. 474

would effectively give regulatory veto power to the SBA Chief Counsel for Advocacy, and that

agencies have insufficient staff and resources to take on additional rulemaking requirements.82

To the extent that agencies are already conducting the retrospective reviews of all of their rules

that are required by Executive Order 13563, the review requirements in S. 474 (focusing only on

rules that have a SEISNSE) may be viewed as a subset of the broader requirement. However, the

retrospective reviews that would be required under S. 474 differ from the executive order’s

reviews in several other respects: (1) the S. 474 reviews are required to be completed within eight

years, and must be repeated at least every subsequent eight years; (2) the S. 474 reviews include

Among other things, S. 782 would encourage regional and interagency cooperation, expand the role of regional

Economic Development Districts, and modify the factors used to determine the federal share of Economic

Development Administration-funded projects and activities. For more information, see CRS Report R41162, Economic

Development Administration: Reauthorization Issues in the 112th Congress, by Eugene Boyd and Oscar R. Gonzales.

Press release from the Chairman of the Senate Committee on Small Business and Entrepreneurship, June 9, 2010,

available at http://sbc.senate.gov/public/index.cfm?p=PressReleases&ContentRecord_id=4dd41e1b-0054-4d9d-ae709bb3ec96ced5.

See http://snowe.senate.gov/public/index.cfm/pressreleases?ContentRecord_id=b871d6b2-4df2-40ac-b0966c70d403b15d&ContentType_id=ae7a6475-a01f-4da5-aa94-0a98973de620&Group_id=2643ccf9-0d03-4d09-90823807031cb84a&MonthDisplay=3&YearDisplay=2011.

Jonathan Riskind, “Environmental Setbacks Feared in Snowe Bill,” Portland Press Herald, March 30, 2011, p. B3.

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compliance guides, not just rules; (3) the reviews are to be overseen by an outside entity (SBA’s

Office of Advocacy or, in the case of S. Amnt. 299, the agencies’ IGs); and (4) there are

potentially severe consequences for failing to conduct the required reviews.83

Regarding those consequences, if the SBA Chief Counsel for Advocacy concludes that an agency

has “failed to complete the review” required, then “each rule issued by the agency that the head of

the agency determined under subsection (a) has a significant economic impact on a substantial

number of small entities shall immediately cease to have effect.” Arguably, therefore, if an agency

has 50 rules that the agency head concludes have a SEISNSE, and the SBA Chief Counsel for

Advocacy concludes that the agency did not “complete” the review of all of them within the eight

year period (e.g., the agency reviews only 40 of the 50 rules), then all 50 of the rules would

“cease to have effect.” The somewhat different approach outlined in S.Amdt. 299 (determinations

by the agency IGs as to whether the retrospective reviews had been done “appropriately,” with

subsequent periods for the agencies to respond to those determinations) seems less abrupt, and

may raise fewer concerns about whether one agency (SBA) can take another agency’s rules out of

effect. Nevertheless, S.Amdt. 299 does not indicate how the IGs should determine whether the

agencies’ retrospective reviews had been done “appropriately.”

The implications of including in the reviews any small entity compliance guides that are

“required to be published by the agency under section 212” of SBREFA are unclear. For example,

if an agency designated an existing compliance guide as a Section 212 guide (as GAO reported

agencies have done), then the agency arguably would not have to review the guide because it was

not “required to be published” under Section 212 of SBREFA.

The implications of expanding the RFA to include significant guidance documents are also

unclear. On one hand, this change could significantly expand the scope of the RFA, for agencies

issue thousands of guidance documents each year that are intended to clarify the requirements in

related statutes and regulations.84 Also, the OMB bulletin on guidance documents states that the

definition of a guidance document

is not limited only to written guidance materials and should not be so construed. OMB

recognizes that agencies are experimenting with offering guidance in new and innovative

formats, such as video or audio tapes, or interactive web-based software. The definition of

“guidance document” encompasses all guidance materials, regardless of format.85

On the other hand, the number of “significant” guidance documents that would be covered by S.

602 could be quite small. First, guidance documents, unlike regulations, cannot have a binding

effect on the public.86 Therefore, it is not clear how guidance can be expected to have the effects

delineated in the definition of a “significant” guidance document (e.g., “lead to an annual effect

In this discussion, references to S.Amdt. 299 are also applicable to S. 1030 and S.Amdt. 390, since the text of the

bills are identical.

For example, the Occupational Safety and Health Administration indicated in 2000 that it had issued 3,374 guidance

documents since March 1996. See U.S. Congress, House Committee on Government Reform, Non-Binding Legal

Effect of Agency Guidance Documents, 106th Cong., 2nd sess., H.Rept. 106-1009 (Washington: GPO, 2000), p. 5.

Office of Management and Budget, “Final Bulletin for Agency Good Guidance Practices,” p. 3434.

See, for example, Appalachian Power Co. v. EPA, 208 F.3d 1015 (D.C. Cir. 2000); Chamber of Commerce v.

Department of Labor, 174 F.3d 206 (D.C. Cir. 1999); Robert A. Anthony, “Interpretive Rules, Policy Statements,

Guidances, Manuals, and the Like—Should Agencies Use Them to Bind the Public?” Duke Law Journal, vol. 41

(1992), p. 1311.

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of $100 million or more” or “materially alter the budgetary impact” of entitlements or grants).

Even if an agency concludes that its guidance is “significant,” the agency may decide not to

conduct a regulatory flexibility analysis because it concludes that the guidance does not have a

“significant” economic effect on a “substantial” number of small entities.

Requiring all agencies to hold SBREFA review panels before proposing a rule that is expected to

have a SEISNSE could significantly slow down the process of issuing such rules. On the other

hand, including the views of small entities early in the rule development process may ease the

path of subsequent implementation. Expanding the requirements for such panels could also have

unexpected results. For example, when EPA was required to hold review panels for its rules, the

percentage of rules that the agency certified as not having a SEISNSE increased substantially.87

The slower expansion of the panel requirements advocated in S.Amdt. 299 (three additional

agencies per year) could allow for monitoring of those kinds of effects.

S. 602: the Clearing Unnecessary Regulatory Burdens (CURB) Act

S. 602, introduced by Senator Susan Collins on March 16, 2011, and referred to the Senate

Committee on Homeland Security and Governmental Affairs, would, if enacted, codify and

expand the cost-benefit analysis requirements that are currently in Executive Order 12866.

Specifically, the bill would generally require all agencies (including independent regulatory

agencies) to submit cost-benefit analyses to OIRA for their significant regulatory actions.88 A

“significant regulatory action” is defined in the bill as it currently is defined in Executive Order

12866: an action that is likely to result in a regulation that may

(A) have an annual effect on the economy of $100,000,000 or more or adversely affect in a

material way the economy, a sector of the economy, productivity, competition, jobs, the

environment, public health or safety, or State, local, or tribal governments or communities;

(B) create a serious inconsistency or otherwise interfere with an action taken or planned by

another agency; (C) materially alter the budgetary impact of entitlements, grants, user fees,

or loan programs or the rights and obligations of recipients thereof; or (D) raise novel legal

or policy issues arising out of legal mandates and the priorities, principles, and provisions of

this section.

The bill would require agencies to quantify regulatory benefits and costs “to the extent feasible,”

and to assess the costs and benefits “potentially effective and reasonably feasible alternatives to

the planned significant regulatory action.”

See U.S. General Accounting Office, Regulatory Flexibility Act: Implementation in EPA Program Offices and

Proposed Lead Rule, GAO/GGD-00-193, September 20, 2000. GAO reported that EPA certified 78% of its rules in the

two years prior to the enactment of SBREFA, and certified 96% of its rules in the two years after SBREFA was

enacted.

Section 2(a)(2) of S. 602 defines an “agency” as having the same meaning as Section 3502(1) of title 44, United

States Code. That provision defines an agency as “any executive department, military department, Government

corporation, Government controlled corporation, or other establishment in the executive branch of the Government

(including the Executive Office of the President), or any independent regulatory agency, but does not include - (A) the

Government Accountability Office; (B) Federal Election Commission; (C) the governments of the District of Columbia

and of the territories and possessions of the United States, and their various subdivisions; or (D) Government-owned

contractor-operated facilities, including laboratories engaged in national defense research and production activities.”

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The bill would also codify and expand some current OMB policies regarding guidance

documents.89 For example, it would require each agency (including independent regulatory

agencies) to develop or have written procedures for the approval of significant guidance

documents, and require each such guidance document to include certain elements (e.g., cite the

related statutory or regulatory provision, and not include mandatory terms such as “shall” or

“must”). Each agency would also be required to (1) maintain an electronic list (with links to the

text) of all significant guidance documents in effect, (2) allow the public to electronically submit

comments regarding such documents, and (3) publish a notice in the Federal Register and solicit

comments regarding “economically significant” guidance documents (defined as a “significant

guidance document that may reasonably be anticipated to lead to an annual effect on the economy

of $100,000,000 or more or adversely affect in a material way the economy or a sector of the

economy, except that economically significant guidance documents do not include guidance

documents on Federal expenditures and receipts”). Exceptions would be permitted when

soliciting comments is not feasible (e.g., emergencies or deadlines).

Finally, the bill would add a new section to the Regulatory Flexibility Act stating that if a small

entity so requests, a Regional Advocate of the SBA Office of Advocacy must request that an

agency reduce or waive a civil penalty if the Regional Advocate concludes that the penalty was

the result of a first-time violation of a reporting requirement, and the reduction or waiver is

consistent with conditions described in Section 223 of SBREFA.90 The agency must make a

written determination within 60 days, and the Chief Counsel for Advocacy is required to submit

an annual report to Congress on such requests and decisions.

Analysis

The cost-benefit analysis requirements in S. 602 would expand the requirements in Executive

Order 12866 in several ways. First, it would include independent regulatory agencies like the

SEC and the FCC, which are not currently covered by the analytical requirements in the order,

and which are not currently required to submit their rules and analyses for review to OIRA.

Requiring independent regulatory agencies to submit cost-benefit analyses for their significant

rules to OIRA could put them more under the control of the President than ever before—often in

direct contravention of the statutes that created them in the first place.

Second, even among agencies that are already covered by Executive Order 12866, S. 602 would

greatly expand the number of rules subject to cost-benefit analysis. Currently, these agencies are

required to prepare cost-benefit analyses only for “economically significant” rules that are

submitted to OIRA (about 100 per year). S. 602 expands this requirement to all “significant” rules

(about 650 per year). With the expansion of OIRA reviews to independent regulatory agencies

and all significant regulatory actions, it is unclear whether current OIRA staffing would be

sufficient to analyze and comment on all of these cost-benefit analyses.91

OMB’s current policies are in its “Final Bulletin for Agency Good Guidance Practices,” available at

http://www.whitehouse.gov/omb/memoranda/fy2007/m07-07.pdf.

Section 223 of SBREFA states that agencies’ penalty relief policies and programs shall contain certain conditions

and exclusions, which may include such factors as (1) requiring the small entity to correct the violation within a

reasonable period of time; (2) limiting the applicability to violations discovered through a compliance assistance or

audit program; or (3) excluding violations that pose serious health, safety, or environmental threats.

OIRA currently has about 50 staff members, of which about 30 do regulatory reviews and reviews of about 3,000

agency information collection requests per year.

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Notably, however, while S. 602 requires agencies to submit cost-benefit analyses for their

significant rules, it does not require the agencies to submit the rules themselves. If the bill is

enacted, OMB could amend its current procedures and require them to do so. Also, S. 602 states

that the cost-benefit analyses must be submitted “at such times specified by the Administrator.”

Therefore, the OIRA Administrator could greatly limit the effect of this requirement (e.g.,

requiring submission of the analyses after the rules have been published and taken effect).

Also, the guidance document provisions in S. 602 would include independent regulatory agencies

for the first time (they are not currently covered by the OMB bulletin on guidance documents).

Although the legislation does not require independent regulatory agencies to submit their

significant guidance documents to OIRA for review, if S. 602 is enacted, OMB could amend its

current procedures and require them to do so. Again, however, resource constraints could become

an issue if S. 602 was enacted.

The penalty relief provisions in the bill focus on first-time violations of paperwork requirements,

as does S. 128. However, whereas S. 128 would generally require agencies to provide penalty

relief for first-time violations (with some exceptions), S. 602 appears to give federal agencies

more discretion to decide whether penalty relief should be provided.

S. 817: Independent Agencies and the Unfunded Mandates Reform Act

S. 817, introduced by Senator Rob Portman on April 14, 2011, and referred to the Senate

Committee on the Budget, would, if enacted, amend the Congressional Budget and Impoundment

Control Act of 1974 (as amended by the Unfunded Mandates Reform Act (UMRA) of 1995) and

change the definition of an “agency” to include independent regulatory agencies. The bill would,

however, exempt from titles II, III, or IV of UMRA “rules that concern monetary policy proposed

or implemented by the Board of Governors of the Federal Reserve System or the Federal Open

Market Committee.”

Analysis

Legislation has been previously introduced to amend UMRA (e.g., H.R. 2255 in the 111th

Congress, and H.R. 6964 in the 110th Congress), but the scope of those bills was broader than S.

817, and they were not enacted. As noted earlier in this report, several GAO reviews have

indicated that UMRA currently covers only a small portion of the “economically significant”

rules that agencies issue. Therefore, expanding the coverage of the act to include rules issued by

independent regulatory agencies would likely increase the number of written reports that agencies

will be required to submit. However, as GAO also pointed out, there are many other reasons why

rules are not covered by UMRA, so many of the rules issued by independent regulatory agencies

may continue to be exempt from UMRA. Also, UMRA written reports cover many of the same

types of issues that are already covered by other rulemaking requirements. Therefore, even for

rules that are covered, the net effect in terms of additional information may be quite small.

S. 1030, the Freedom from Restrictive Excessive Executive Demands and

Onerous Mandates Act of 2011

S. 1030, introduced by Senator Snowe on May 19, 2011, and referred to the Senate Committee on

Homeland Security and Governmental Affairs, contained the same language as in the two

amendments previously discussed (S.Amdt. 299 to S. 493, S.Amdt. 390 to S. 782). It is similar to

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her earlier bill, S. 474, in many respects. For example, both would require agencies’ regulatory

flexibility analyses to consider indirect economic impacts, both would require more detailed

analyses, both would amend the judicial review requirements, both would require retrospective

reviews regardless of whether they were considered to have a SEISNE at the time the final rule

was published, both would include more IRS rules, and both would amend the definition of a

“rule” to include significant guidance documents. Following are some of the primary differences

between the bills:

•

S. 1030 defines “indirect” economic impact somewhat differently (“the

reasonably foreseeable economic effects of the rule on small entities that (i)

purchase products or services from, sell products or services to, or otherwise

conduct business with entities directly regulated by the rule; (ii) are directly

regulated by other governmental entities as a result of the rule; or (iii) are not

directly regulated by the agency as a result of the rule but are otherwise subject to

other agency regulations as a result of the rule”).

•

S. 1030 requires agencies to review their rules and compliance guides within nine

years of the date of enactment (instead of eight years in S. 474), and every nine

years thereafter. It does not allow agencies to extend the deadline if they are

unable to complete their reviews within this time period.

•

S. 1030 requires the inspector general (IG) for the agency (not the SBA Office of

Advocacy) to determine whether the agency has conducted the required

retrospective review “appropriately” (not just whether the required reviews have

been completed). The IG is required to notify the agency of any deficiency, and if

the agency does not address the issues within six months, the IG is required to

notify Congress within 30 days. Thirty days after that notice, “an amount equal to

1 percent of the amount appropriated for the fiscal year to the appropriations

account of the agency that is used to pay salaries shall be rescinded.” (In S. 474,

the rule would go out of effect if the analysis was not conducted appropriately.)

•

Instead of subjecting all agencies to the panel requirements in Section 609 of the

RFA, S. 1030 would require the SBA Chief Counsel for Advocacy to designate

three additional agencies each year for three years “based on the economic

impact of the rules of the agency on small entities.”

Unlike S. 474, S. 1030 does not establish qualifications for the Chief Counsel for Advocacy, but

the bill adds an authorization of appropriation for FY2012 through FY2013 of the costs

associated with these amendments and repeals certain statutory provisions to offset those costs.

Analysis

Because S. 1030 is similar in many respects to S. 474, many aspects of that analysis are also

applicable to this bill. For example, to the extent that agencies are already conducting the

retrospective reviews of all of their significant rules that are required by Executive Order 13563,

the review requirements in S. 1030 (focusing on rules that have a SEISNSE) may be a subset of

the executive order requirement. However, the retrospective reviews that would be required under

S. 1030 differ from the executive order’s reviews in several other respects: (1) the S. 1030

reviews are required to be completed within nine years, and must be repeated at least every

subsequent nine years; (2) the S. 1030 reviews include compliance guides, not just rules; (3) the

reviews are to be overseen by an outside entity (inspectors general); and (4) there are potential

consequences for failing to conduct the required reviews (loss of 1% of salary appropriation).

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Also, it is unclear what criteria the IGs would use to determine whether agency reviews have

been conducted “appropriately,” since none are specified in the bill.

Whereas S. 474 would expand the advocacy review panel requirements to all agencies, S. 1030

takes a more gradual approach, relying on recommendations from SBA’s Office of Advocacy to

add three additional agencies in each of three years. Also, although S. 1030 authorizes additional

appropriations to SBA to carry out the new requirements, it is unclear whether those funds would

be appropriated in the current budgetary environment.

S. 1189, the Unfunded Mandates Accountability Act of 2011

S. 1189, introduced by Senator Rob Portman on June 14, 2011, and referred to the Senate

Committee on Homeland Security and Governmental Affairs, would (like S. 817 discussed

above) change the definition of an “agency” to include independent regulatory agencies, and

exempt from titles, II, III, and IV of UMRA “rules that concern monetary policy proposed or

implemented by the Board of Governors of the Federal Reserve System or the Federal Open

Market Committee.” However, S. 1189 would make several other changes to UMRA.

As noted previously in this report, GAO has repeatedly reported that, because of the way the

statute was written, UMRA has had little effect on agencies’ rulemaking actions.92 In February

2011, GAO noted that there are 14 reasons why a rule would not be covered by UMRA, including

definitions, exceptions, and exclusions.93 For example, Title II requires agencies to assess the

effects of their rules on state, local, and tribal governments, and the private sector, “unless

otherwise prohibited by law.” Some agencies have indicated that because certain statutes prohibit

cost considerations in issuing certain health or safety standards, they are not required to assess

those effects. Also, UMRA does not require the written statement to be prepared if the agency

issues a final rule without a prior NPRM, or if the rule is not technically considered a “mandate”

(e.g., if the requirement is a condition of federal financial assistance). UMRA also is not triggered

when a rule has a $100 million impact on the economy, but does not require $100 million in

“expenditures” by the private sector or state and local governments. In preparing these written

statements, Section 205 of UMRA requires agencies to select the least costly, most cost-effective,

or least burdensome regulatory alternative that achieves the objectives of the rule, or to explain

why that option was not selected. OMB is to certify agency compliance with Section 205 to

Congress.

S. 1189 would amend Section 202 of UMRA to (among other things) (1) eliminate the “unless

otherwise prohibited by law” exception; (2) cover rules that do not involve a “mandate”; (3)

cover final rules that do not have a prior notice of proposed rulemaking; (4) cover rules that have

a $100 million impact on the economy (not just those that require $100 million in

“expenditures”); (5) define “costs” that must be included in an agency’s regulatory impact

analysis to include indirect costs (not just direct costs); (6) require the initial and final regulatory

impact analyses to be published in the Federal Register with the proposed and final rules; and (7)

require the analyses to explain how the rule meets the requirements of Section 205. Section 205

See, for example, U.S. General Accounting Office, Unfunded Mandates: Reform Act Has Had Little Effect on

Agencies’ Rulemaking Actions, GAO/GGD-98-30, February 4, 1998.

Testimony of Denise M. Fantone, Director, Strategic Issues, U.S. Government Accountability Office, before the

Subcommittee on Technology, Information Policy, Intergovernmental Relations and Procurement Reform, House

Committee on Oversight of Government Management, available at http://www.gao.gov/products/GAO-11-385T.

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would require the agency to select the least costly, most cost-effective or least burdensome

regulatory alternative, eliminating the option for agencies to explain why that option was not

selected, and eliminating the requirement that OMB certify agency compliance with the section.94

The bill would also broaden judicial review of agency actions under UMRA. Previously, agency

compliance with Section 202 was subject to judicial review only under 5 U.S.C. §706(1), which

allowed a reviewing court only to “compel agency action unlawfully withheld or unreasonably

delayed.” S. 1189 states that “a party aggrieved by final agency action is entitled to judicial

review of an agency’s analysis under and compliance with sections 202 (b) and (c)(1) and 205,”

and in granting relief, the court “shall order the agency to take remedial action consistent with

chapter 7 of title 5, United States Code, including remand and vacatur of the rule.”

Analysis

If enacted, the amendments to Section 202 would eliminate many of the ways that rules currently

avoid being considered subject to the analytical requirements in Title II of UMRA. For example,

the new language no longer requires the rule to include a “mandate,” which would mean that

rules that previously were not covered because they were conditions of federal assistance or arose

from participation in a voluntary program would now be covered. Other rules that were

previously exempt because they did not involve a notice of proposed rulemaking, or did not

require $100 million in “expenditures,” would now be covered. However, Executive Order 12866

already required those kinds of rules to have regulatory impact analyses, so agencies that were

already covered by that executive order (cabinet departments and independent agencies like EPA)

would likely feel little effect from these changes.

The inclusion of independent regulatory agencies (e.g., the SEC and the FCC) under these

analytical requirements would, however, be significant, as they are not covered by Executive

Order 12866. Therefore, many of these agencies would have to conduct these kinds of regulatory

impact analyses for the first time. Also, the elimination of the option for agencies to explain why

they did not select the least costly, most cost-effective, or least burdensome regulatory option may

restrict agencies’ actions, but may also have unintended consequences (e.g., in emergency

situations). Expanding the nature of judicial review could also prove to be a significant change,

allowing courts to vacate a rule instead of just requiring agencies to conduct the required

analyses.

S. 1219, the Employment Impact Act of 2011

S. 1219, introduced by Senator John Barrasso on June 16, 2011, would require all federal

agencies to “include in every recommendation or report on proposals for legislation and other

major Federal actions with potentially significant effects on jobs and job opportunities, a jobs

impact statement....” The statement is to include (among other things) an assessment of the jobs

that would be lost, gained, or sent overseas as a result of the proposed action; any adverse effect

on jobs and job opportunities which could not be avoided; alternatives to the proposed action that

could avoid negative impacts on jobs and job opportunities; and the relationship between any

local short-term impacts on jobs and the maintenance and enhancements of long-term

Senator Portman also proposed these changes to UMRA as amendments to S. 782, the Economic Development

Revitalization Act of 2011 (S.Amdt. 417 and S.Amdt. 418, June 9, 2011).

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productivity and environmental values. Agencies are instructed to “take into account the

cumulative impact on jobs and job opportunities of concurrently pending proposals affecting a

particular industry or sector of the economy, and shall not make a finding of no significant impact

solely on the basis of examining the impacts of a single proposal in isolation from other pending

proposals.”

Analysis

Although some of the existing economic analysis requirements include effects on employment,95

S. 1219 is more specific in terms of the types of analyses required. However, the bill does not

define the term “major Federal actions with potentially significant effects on jobs and job

opportunities,” so it is not clear how many actions will trigger the requirement for a jobs impact

statement. In similar situations (e.g., the Regulatory Flexibility Act), agencies have been given

broad discretion to define such terms, and as a result, the agencies often certified that their actions

did not trigger the analysis. To the extent that agencies conclude that their actions have the

specified effects, some aspects of the analysis may be difficult to perform (e.g., identifying “the

relationship between any local short-term impacts on jobs and the maintenance and enhancements

of long-term productivity and environmental values,” and determining the “cumulative impact on

jobs and job opportunities of concurrently pending proposals affecting a particular industry or

sector of the economy”).

S. 1338, the Regulatory Capture Prevention Act

S. 1338, introduced by Senator Sheldon Whitehouse on July 7, 2011, and referred to the Senate

Committee on Homeland Security and Governmental Affairs, would (if enacted) create an “Office

of Regulatory Integrity” within OMB with the authority to investigate and report on the “capture”

of agencies by industries and organizations that are regulated by those agencies. The

Administrator of the office would be appointed by the President, by and with the advice and

consent of the Senate, and would be responsible for reporting on

the influence of concentrated economic interests on Federal agencies, and components

thereof, that results in (A) agency action or inaction that fails to advance the congressionally

assigned mission of the agency or is otherwise inimical to the public interest; (B) regulation,

licensing, adjudication, grants, or other agency action that (i) favors a limited number of

economic interests at the expense of the agency’s congressionally assigned mission; or (ii) is

otherwise inimical to the public interest; (C) enforcement priorities that are not reasonably

calculated to accomplish the goals of the regulatory program in question; or (D) a loss of

confidence in the regulatory process.

S. 1338 authorizes the Administrator to (among other things) have access to agency records and

other materials, require by subpoena the production of evidence, take sworn testimony, and

employ such persons “as may be necessary” to carry out the functions of the office.

For example, UMRA written statements are required to include estimates of effects on job creation, productivity, full

employment, and international competitiveness. Section 6(a)(3)(C)(ii) of Executive Order 12866 states that the analysis

is to include “any adverse effects on the efficient functioning of the economy, private markets (including productivity,

employment, and competitiveness)....”

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Within 180 days of enactment, the Administrative Conference of the United States (ACUS) is

required to provide written guidance on “(A) the principle means by which concentrated

economic interests wield influence across the federal agencies; (B) the most salient threats to

regulatory integrity arising from that influence; and (C) effective measures to minimize

regulatory capture.” By April 30 of each year, the Administrator of the Office of Regulatory

Integrity is to provide an annual report to certain congressional committees96 summarizing the

activities of the office during the preceding 12-month period ending March 31. Within 30 days of

submitting the report, the Administrator is to make the report available to the public on a website.

Senator Whitehouse said that he developed the bill in response to the 2010 oil spill in the Gulf of

Mexico, and related allegations of industry influence over the U.S. Minerals Management

Service, as well as concerns involving the Mine Safety and Health Administration, and the

Securities and Exchange Commission.97

Analysis

S. 1338 defines an “agency” as each authority of the federal government, excluding GAO and the

Congressional Budget Office, and therefore includes independent regulatory agencies. Because

the Office of Regulatory Integrity would be located within OMB, a part of the Executive Office

of the President, the President appears to have new authority to investigate and report on the

actions of independent regulatory agencies (who were intended to be more independent of the

President than other agencies). The scope of the office’s investigatory authority appears to be

fairly broad, including any agency “action or inaction” that is “inimical to the public interest,” or

that results in a “loss of confidence in the regulatory process.” S. 1338 does not define those

terms. Other aspects of the bill’s requirements are also somewhat unclear. For example, S. 1338

does not define what the term “concentrated economic interests” means, or indicate how the

report that ACUS is required to produce will help the Office of Regulatory Integrity carry out its

responsibilities. Finally, another option for Congress to consider could be requiring another OMB

entity to review and report on regulatory capture—the Office of Information and Regulatory

Affairs.

S. 1339, the Regulatory Information Reporting Act of 2011

S. 1339, also introduced by Senator Whitehouse on July 7, 2011, and referred to the Senate

Committee on Homeland Security and Governmental Affairs, proposes to require all federal

agencies to submit to the General Services Administration’s Regulatory Information Service

Center (RISC) a list of all non-federal participants providing public comments to the agency on a

rule. The list is to be submitted before the final rule is published, and is to include (“as reasonably

possible”) (1) the participant’s name and address; (2) the participant’s organizational affiliation (if

any); (3) whether the participant represents economic, non-economic, or other interests; and (4)

whether any of the participant’s comments affected the content of the final rule. RISC is to

compile this information into a searchable database on the Internet, keep it as current as possible,

and make available quarterly trend and overview statistics. RISC is also to submit an annual

The “relevant committees” are defined as the Senate Committees on Homeland Security and Governmental Affairs,

Appropriations, and Judiciary; and the House Committees on Oversight and Government Reform, Appropriations, and

Judiciary; and “any committee in the Senate or the House of Representatives that exercises oversight authority over an

agency discussed in the report.”

Congressional Record, July 7, 2011, p. S.4453.

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report to the “relevant” committees of Congress summarizing the data. Agencies are to begin

submitting the required information within 180 days of the date of enactment, and RISC is

required to issue regulations necessary to implement the requirements.

Analysis

The number of comments provided on agencies’ individual rules varies greatly, from zero

comments to hundreds of thousands of comments. The amount of information that those

comments contain about the individuals submitting them also varies, with some comments

provided anonymously, while other comments provide a wealth of information about

organizational affiliations and the effect that proposed rules may have on their interests. Agencies

may not be able to tell from the comments whether a commenter represents “economic, noneconomic, or other interests,” or whether any of the participant’s comments affected the content

of the final rule. Therefore, it is not clear whether this database would provide the information

needed to determine whether the agency has been “captured” by regulated interests. The public

can already review public comments on agencies’ rules at http://www.regulations.gov, although

that database may not reveal the information that S. 1339 would require.

S. 1438, the Regulation Moratorium and Jobs Preservation Act of 2011

S. 1438, introduced by Senator Ron Johnson on July 28, 2011, would prohibit any federal agency

(including independent regulatory agencies) from taking any “significant regulatory action” (as

defined in Executive Order 12866) until the Bureau of Labor Statistics average of monthly

unemployment rates for any quarter beginning after the date of enactment is equal to or less than

7.7%. The President would be allowed to waive this prohibition if he determines that it is needed

for national security or for a national emergency, and submits notification of the waiver and an

explanation to Congress. The President can submit a request for other waivers to Congress, which

is required to “give expeditious consideration and take appropriate legislative action.” Any person

who is “adversely affected or aggrieved” may seek judicial review of agency compliance with the

legislation, and courts are required to award reasonable attorney fees and costs to a “substantially

prevailing small business” in any civil action.

Analysis

In a press release issued on the day the legislation was introduced, Senator Johnson said “With

unemployment at 9.2 percent, and employers nationwide fearful about the Obama agenda,

regulators should take a pause.”98 The press release also notes that the unemployment rate when

President Obama was sworn in was 7.8%. The unemployment rate may change because of a

change in the number of workers who lack jobs, a change in the number of individuals

participating in the labor force, or both. At the end of a recession, if hiring does not keep pace

with discouraged workers reentering the labor force, the unemployment rate will rise in the face

of otherwise good economic news. Therefore, the unemployment rate is considered a lagging

economic indicator that typically improves only after other indicators have signaled an impending

See http://ronjohnson.senate.gov/public/index.cfm/press-releases?ID=6510d860-c605-4da5-bd26-d4b3fe0ac461.

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recovery.99 The Congressional Budget Office has projected that unemployment will remain above

8% until 2014.100

In contrast to other regulatory reform bills discussed later in this report, S. 1438 would not affect

the issuance of non-significant regulations that constitute most of the final rules issued each year.

The legislation would, however, affect both significant final rules and other actions that are

expected to lead to the issuance of a significant final rule (e.g., notices of proposed rulemaking

and advanced notices), even if those actions are deregulatory or burden-reducing in nature.

Therefore, significant agency regulatory actions that might be expected to reduce unemployment

could be prohibited if the legislation was enacted.

House Bills

H.R. 10, the Regulations from the Executive in Need of Scrutiny (REINS) Act

of 2011

H.R. 10, introduced by Representative Geoff Davis on January 20, 2011, and referred to the

House Committee on the Judiciary and the House Committee on Rules, would, like its

counterpart S. 299, amend the Congressional Review Act to require congressional approval of

major rules before they could take effect. Because the texts of the two bills are virtually identical,

the summary and analysis provided above in relation to S. 299 also applies to H.R. 10, and will

not be repeated here.

H.R. 213, the Regulation Audit Revive Economy (RARE) Act of 2011

H.R. 213, introduced by Representative Don Young on January 7, 2011, and referred to the House

Committee on Oversight and Government Reform and the House Committee on the Judiciary,

would, if enacted, impose a moratorium on all federal agencies taking any “regulatory rulemaking

action” beginning 30 days after the date of enactment and ending on the later of (1) 14 days after

the Director of the Office of Management and Budget (OMB) publishes a report on a review of

rules; or (2) two years after the date of enactment. In producing the report, the OMB Director is

required to review each covered rule being enforced as of the date of enactment, and report on (1)

the estimated total annual costs and benefits of each rule, “to the extent feasible”; (2)

recommendations for reform of an existing rule; and (3) the total number of rules being enforced.

No private right of action is allowed for violations of the act.

The bill allows exceptions from the moratorium for rules necessary because of an imminent threat

to health or safety or other emergency, for the enforcement of criminal laws, or to establish or

enforce statutory rights against discrimination. The term “regulatory rulemaking action” is

defined as any rule normally published in the Federal Register, but excluding any action that the

head of the agency and the Administrator of OIRA certify is limited to (1) reducing regulatory

burdens; (2) military or foreign affairs functions, implementing international trade agreements, or

For more information, see CRS Report R40798, Unemployment and Employment Trends Before and After the End of

Recessions, by Linda Levine.

100

U.S. Congressional Budget Office, The Budget and Economic Outlook: An Update, August 2011, available at

http://www.cbo.gov/doc.cfm?index=12316.

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agency management or personnel, loans, grants, benefits, or contracts; or (3) routine

administrative functions of the agency. Also excluded are agency actions that supervise or insure

depository institutions and other entities, and actions that the agency head certifies are limited to

implementing the internal revenue laws or would otherwise qualify for an exemption under the

act. (The definition of a “rule” in the act also excludes other actions, including aviation safety,

monetary policy, and license applications.)

Analysis

Other regulatory moratorium legislation has been introduced in the past, but not enacted. For

example, in the 104th Congress, H.R. 450 would have imposed a 13-month moratorium on

rulemaking (from November 20, 1994, to December 31, 1995). Although the bill was passed by

the House of Representatives in early 1995, its Senate counterpart (S. 219) was not passed.

As noted earlier in this report, federal agencies typically issue between 3,000 and 4,000 final rules

each year. It is unclear how many rules each year would fall under the various exemptions and

exclusions in H.R. 213, so it is unclear how many rules would be subject to the proposed

moratorium. It is also unclear how many rules are currently being “enforced,” because some new

rules replace earlier rules, and some existing rules are no longer applicable. Nevertheless, it is

likely that a moratorium of any breadth or duration (at least two years in H.R. 213) would affect

the ability of some agencies to carry out their missions, and could affect the general public. For

example, some agency regulations establish fees that fund certain government operations (e.g.,

the inspections of nuclear power plants by the Nuclear Regulatory Commission, and the

processing of passport applications by the Department of State). Other regulations transfer federal

funds to Medicare and Medicaid providers, so a moratorium affecting those rules could result in

reduced health care for the affected populations. Most of the 3,000 final rules that are typically

issued each year are administrative in nature (e.g., Coast Guard temporary safety zones and traffic

separation schedules), and these kinds of rules are often welcomed by the regulated communities.

The broadest requirement for cost-benefit analysis is in Executive Order 12866, which required

cabinet departments and independent agencies (e.g., EPA) to analyze the costs and benefits of

their “economically significant” rules before being submitted to OIRA for review. Noneconomically significant rules are not covered by this requirement, nor are any rules issued by

independent regulatory agencies (e.g., the Federal Reserve System or the SEC). Also, OMB has

said in the past that cost and benefit estimates prepared for rules adopted more than 10 years

earlier “are of questionable relevance now.”101 Therefore, OMB will likely not have readily

available cost or benefit estimates for some of the covered rules that are currently being enforced,

and may focus its report on the major rules issued in the previous 10 years for which cost-benefit

information is available.

101

See http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/2003_cost-ben_final_rpt.pdf, p. 7. In its

2010 report to Congress, OMB continues to say that estimates that are more than 10 years old are of “questionable

relevance.” See http://www.whitehouse.gov/sites/default/files/omb/legislative/reports/2010_Benefit_Cost_Report.pdf,

p. 11.

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Regulatory Reform Legislation in the 112th Congress

H.R. 214, the Congressional Office of Regulatory Analysis Creation and Sunset

and Review Act of 2011

Title I of H.R. 214, which was introduced by Representative Don Young on January 7, 2011, and

referred to the House Committee on the Judiciary and the House Committee on Oversight and

Government Reform, would, if enacted, establish a Congressional Office of Regulatory Analysis

(CORA), with the Director of that office appointed by the Speaker of the House of

Representatives and the majority leader of the Senate (after considering recommendations from

two House and Senate committees). The Director could be removed by a concurrent resolution of

Congress. H.R. 214 would transfer to the CORA Director the GAO Comptroller General’s

responsibilities for the congressional review of agency rules that was provided in the

Congressional Review Act (i.e., receiving all rules and writing a report on each major rule). The

bill would require the CORA Director’s report on each major rule to include an analysis of the

rule, including its potential benefits and costs and an analysis of less costly alternatives. It also

would require the office to (1) conduct an assessment and analysis of any non-major rule upon

request by a congressional committee or Member; and (2) issue an annual report including

estimates of the total costs and benefits of all existing federal regulations. Title I would also

amend the Unfunded Mandates Reform Act of 1995 to transfer to the CORA Director the

responsibilities of the Director of the Congressional Budget Office (CBO) to: (1) compare agency

and CBO estimates of the costs of regulations implementing an act containing a federal mandate;

and (2) receive agency statements to accompany significant regulatory actions.

Title II of H.R. 214 sets forth proposed requirements for agencies (including independent

regulatory agencies) to review their significant rules to determine whether they should be

continued without change, modified, consolidated with another rule, or terminated. It defines a

“significant rule” as one that the OIRA Administrator determines (1) results in an annual effect on

the economy of $100 million or more; (2) is a major rule; or (3) was issued pursuant to a

“significant regulatory action” as that term is defined in Executive Order 12866. The bill provides

for the sunset review of a rule that is not a significant rule upon petition by a person adversely

affected, or at the request of a congressional committee or a majority of the majority or nonmajority party members of such a committee (unless the OIRA Administrator determines that

such reviews are not in the public interest).

Title II of H.R. 214 would also require the OIRA Administrator to (1) inventory existing rules; (2)

publish a list of covered rules and deadlines for their sunset review within seven years; (3)

prioritize rules for review based on specified criteria, including the rule’s cost to those regulated

and the burden of reviewing it; (4) group related rules for simultaneous review; (5) provide

guidance to agencies on conducting sunset reviews; and (6) provide feedback to agencies on

sunset reviews and results. It also requires new significant rules to be reviewed within three years

after taking effect. Each agency would be required to (1) conduct a sunset review of its significant

rules; (2) publish a sunset review notice, consider public comments, and issue a preliminary

report; and (3) issue a final report recommending that a rule be continued without change or that

it be changed or discontinued, in which case the agency shall conduct a rulemaking to modify,

consolidate, or terminate such rule. Each agency would also be required to designate a

“regulatory policy officer” responsible for the implementation of Title II, who reports to the

agency head and the OIRA Administrator.

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Regulatory Reform Legislation in the 112th Congress

Analysis

Legislation to establish a CORA has been previously introduced but not enacted (e.g., H.R. 6223

in the 111th Congress). One of the first such bills was H.R. 1704 (and its Senate counterpart, S.

1675) in the 105th Congress. At a March 11, 1998, hearing on H.R. 1704, Representative Sue

Kelly, who introduced the legislation, indicated that it was needed because of the lack of

congressional action under the CRA.

In my opinion, this [lack of action] can be explained in large part because of the fact that

nearly all of Congress’s information about the impact of new regulations comes from the

agencies who are developing them. This information is often unreliable because agencies

have a vested interest in downplaying any negative aspects of the regulations they have

proposed. As a result, Congress is at a disadvantage when trying to determine just how a

particular regulation will impact the economy, making it that much more difficult to

effectively implement the CRA.102

In the past, supporters of similar legislation have asserted that, as part of the same presidential

administration that produced the rules, OIRA is incapable of providing an independent view of

agencies’ regulations, and that a CORA could make the regulatory process more rational and

transparent.103 On the other hand, concerns have been expressed regarding the ability of a CORA

to develop its own estimates of costs, benefits, and alternative approaches within the time frames

provided, and whether the appointment of the CORA Director by the House and Senate

leadership would make the office political in nature.104

Although H.R. 214 would require CORA to produce an annual report on the costs and benefits of

all existing regulations, OMB is already required to do so “to the extent feasible.”105 Also, as

noted earlier in this report, OMB has indicated that cost and benefit estimates prepared for rules

adopted more than 10 years earlier “are of questionable relevance now,”106 so it is not clear how

CORA would produce this report. Questions have also been raised about other efforts to measure

cumulative regulatory costs.107

102

Testimony of Representative Sue Kelly before the Subcommittee on National Economic Growth, Natural Resources,

and Regulatory Affairs, House Committee on Government Reform and Oversight, “H.R. 1704, Congressional Office of

Regulatory Analysis Creation Act,” 105th Cong., 2nd sess., Serial No. 105-146, March 11, 1998 (Washington: GPO,

1998), p. 6.

103

Robert W. Hahn and Robert E. Litan, “The Regulatory Right-to-Know Act and the Congressional Office of

Regulatory Analysis Act,” Joint Testimony before the Senate Committee on Governmental Affairs, April 1999, at

http://www.brookings.edu/~/media/Files/rc/testimonies/1999/04_righttoknow_litan/04_righttoknow_litan.pdf.

104

Ibid; and Jennifer Coderre, “Senate Panel Continues Debate on Costs, Benefits of ‘Regulatory Right-to-Know’

Bills,” BNA Daily Report for Executives, April 23, 1999, p. A-30. Comments regarding CORA were attributed to Gary

Bass of OMB Watch.

105

Section 624 of the Treasury and General Government Appropriations Act, 2001, (31 U.S.C. §1105 note), sometimes

known as the “Regulatory Right-to-Know Act,” put in place a permanent requirement for an OMB report on regulatory

costs and benefits. Specifically, it requires OMB to prepare and submit with the President’s budget an “accounting

statement and associated report” containing an estimate of the total costs and benefits (including quantifiable and

nonquantifiable effects) of federal rules and paperwork, to the extent feasible, (1) in the aggregate, (2) by agency and

agency program, and (3) by major rule.

106

OMB has made such statements in its reports to Congress since 2003. See http://www.whitehouse.gov/sites/default/

files/omb/assets/omb/inforeg/2003_cost-ben_final_rpt.pdf, p. 7; and http://www.whitehouse.gov/sites/default/files/

omb/legislative/reports/2010_Benefit_Cost_Report.pdf, p. 11.

107

CRS Report R41763, Analysis of an Estimate of the Total Costs of Federal Regulations, by Curtis W. Copeland.

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Regulatory Reform Legislation in the 112th Congress

It is unclear how many rules would be covered by the review requirements in Title II of H.R. 214.

The first two categories of rules (those with at least a $100 million impact on the economy, and

“major” rules) are a subset of the third category (rules issued pursuant to a significant regulatory

action as defined in Executive Order 12866). Since it was issued in 1993, federal agencies subject

to the executive order have submitted more than 5,700 significant final rules to OIRA for review,

but some of those rules may not have been issued. Also, other non-significant rules may also be

required to be reviewed upon petition from the public or congressional request. Those reviews

could consume a significant amount of both OIRA’s and the rulemaking agencies’ time and

resources.

Finally, requiring each agency to designate a “regulatory policy officer” who reports to the

agency head and the OIRA Administrator may remind some observers of a similar requirement in

Executive Order 13422, which was highly controversial. At the time, the New York Times

characterized such officers as White House “gatekeepers” who would “make sure the agencies

carry out the president’s priorities.”108 Although the responsibilities assigned to regulatory policy

officers in H.R. 214 are quite different than in the executive order, the requirement that the

officers report to OIRA, and that independent regulatory agencies have them, may be of concern

to some.

H.R. 373, the Unfunded Mandates Information and Transparency Act of 2011

H.R. 373, introduced by Representative Virginia Foxx on January 20, 2011, and referred to the

House Committee on Oversight and Government Reform, the House Committee on Rules, and

the House Committee on the Judiciary, would, if enacted, make several changes to the

Congressional Budget and Impoundment Control Act of 1974 (as amended by the Unfunded

Mandates Reform Act (UMRA) of 1995). Changes that would affect agency rulemaking include

(1) expanding the act’s coverage to include independent regulatory agencies; (2) expanding the

act’s coverage to include “reasonably foreseeable indirect costs” (including lost income and

secondary monetary costs); (3) changing the written statement reporting requirement in Section

202 of UMRA from “expenditure” to “direct or reasonably foreseeable indirect costs;” (4)

changing “”unless otherwise prohibited by law” to “unless otherwise expressly prohibited by

law;” and (5) requiring final rules that were not preceded by a notice of proposed rulemaking to

have a written statement under Section 202 of UMRA within six months after promulgation.

Analysis

Representative Foxx has introduced proposed legislation to amend UMRA previously (e.g., H.R.

2255 in the 111th Congress, and H.R. 6964 in the 110th Congress), but those bills did not address

all of the issues in H.R. 373, and they were not enacted. Section 3 of H.R. 373 states that one of

the bill’s purposes is “to enhance the ability of Congress and the public to identify Federal

mandates that may impose undue harm on consumers, workers, employers, small businesses,

State, local, and tribal governments.” As noted earlier in this report, several previous GAO

reviews have indicated that UMRA currently covers only a small portion of the “economically

significant” rules that agencies issue. Therefore, expanding the coverage of the act to include

rules issued by independent regulatory agencies, direct and indirect costs (instead of

“expenditures”), and final rules issued without a prior notice of proposed rulemaking would likely

108

Robert Pear, “Bush Directive Increases Sway on Regulation,” New York Times, January 30, 2007, p. A1.

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Regulatory Reform Legislation in the 112th Congress

increase the number of written reports that agencies will be required to submit. However, as GAO

also pointed out, those written reports cover the same types of issues that are already covered by

other rulemaking requirements, so the net effect in terms of additional information may be quite

small.

H.R. 527, the Regulatory Flexibility Improvements Act of 2011

H.R. 527, introduced by Representative Lamar Smith on February 8, 2011, and referred to the

House Committee on the Judiciary and the House Committee on Small Business, proposes to

make several changes to the RFA. Section 2(a) of the bill would (if enacted) change the definition

of a “rule” from those for which a notice of proposed rulemaking is published under Section

553(b) of Title 5 to the much broader definition of a rule under Section 551(4) of Title 5.109

However, the definition excludes certain types of rules from coverage (e.g., rules of particular

applicability relating to rates, wages, corporate or financial structures). Also, the bill would (1)

define the term “economic impact” to include both direct economic effects and any indirect effect

“which is reasonably foreseeable” and results from such rules;110 (2) require regulatory flexibility

analyses to include alternatives that would maximize any beneficial economic effects on small

entities;111 (3) require such analyses for land management plans, as defined in the bill;112 and (4)

require the analyses to contain greater details,113 and to provide quantifiable or numerical

descriptions of the rules’ effects or an explanation of why quantification is not practicable or

reliable.

Section 4 of H.R. 527 would require the SBA Chief Counsel for Advocacy to issue rules

governing agency compliance with the RFA. The bill requires these rules to be issued within 270

days after the date of enactment, after an opportunity for notice and comment. Also, agencies are

prohibited from issuing their own rules on RFA compliance without first consulting with the chief

counsel for advocacy. The chief counsel is generally authorized to intervene in any agency

adjudication, informing the agency of any impacts on small entities, and is authorized to file

comments in any agency notice requesting comments.

Section 5 of H.R. 527 would amend Section 609(b) of Title 5, and would require agencies to

notify the chief counsel for advocacy about any proposed rule expected to have a SEISNSE, or

expected to have other economic effects (even if the rule is not expected to have a SEISNSE).

Those economic effects are defined as follows:

(1) an annual effect on the economy of $100,000,000 or more; (2) a major increase in costs

or prices for consumers, individual industries, Federal, State, or local governments, tribal

organizations, or geographic regions; [or] (3) significant adverse effects on competition,

109

That section defines a rule as “the whole or a part of an agency statement of general or particular applicability and

future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or

practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or

financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of

valuations, co

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