To reform the regulatory process to ensure that small businesses are free to compete and to create jobs, and for other purposes.

SA 390. Ms. SNOWE (for herself, Mr. Coburn, Mr. McConnell, Mr.
Barrasso, Mr. Brown of Massachusetts, Mr. Moran, Mr. Thune, Mr. Enzi,
Ms. Ayotte, and Mr. Isakson) submitted an amendment intended to be
proposed by her to the bill S. 782, to amend the Public Works and
Economic Development Act of 1965 to reauthorize that Act, and for other
purposes; which was ordered to lie on the table; as follows:

At the end, add the following:

TITLE ___--FREEDOM FROM RESTRICTIVE EXCESSIVE EXECUTIVE DEMANDS AND
ONEROUS MANDATES

SEC. ___1. SHORT TITLE.

This title may be cited as the ``Freedom from Restrictive
Excessive Executive Demands and Onerous Mandates Act of
2011''.

SEC. ___2. FINDINGS.

Congress finds the following:
(1) A vibrant and growing small business sector is critical
to the recovery of the economy of the United States.
(2) Regulations designed for application to large-scale
entities have been applied uniformly to small businesses and
other small entities, sometimes inhibiting the ability of
small entities to create new jobs.
(3) Uniform Federal regulatory and reporting requirements
in many instances have imposed on small businesses and other
small entities unnecessary and disproportionately burdensome
demands, including legal, accounting, and consulting costs,
thereby threatening the viability of small entities and the
ability of small entities to compete and create new jobs in a
global marketplace.
(4) Since 1980, Federal agencies have been required to
recognize and take account of the differences in the scale
and resources of regulated entities, but in many instances
have failed to do so.
(5) In 2009, there were nearly 70,000 pages in the Federal
Register, and, according to research by the Office of
Advocacy of the Small Business Administration, the annual
cost of Federal regulations totals $1,750,000,000,000. Small
firms bear a disproportionate burden, paying approximately 36
percent more per employee than larger firms in annual
regulatory compliance costs.
(6) All agencies in the Federal Government should fully
consider the costs, including indirect economic impacts and
the potential for job loss, of proposed rules, periodically
review existing regulations to determine their impact on
small entities, and repeal regulations that are unnecessarily
duplicative or have outlived their stated purpose.
(7) It is the intention of Congress to amend chapter 6 of
title 5, United States Code, to

[[Page S3554]]

ensure that all impacts, including foreseeable indirect
effects, of proposed and final rules are considered by
agencies during the rulemaking process and that the agencies
assess a full range of alternatives that will limit adverse
economic consequences, enhance economic benefits, and fully
address potential job loss.

SEC. ___3. INCLUDING INDIRECT ECONOMIC IMPACT IN SMALL ENTITY
ANALYSES.

Section 601 of title 5, United States Code, is amended by
adding at the end the following:
``(9) the term `economic impact' means, with respect to a
proposed or final rule--
``(A) the economic effects on small entities directly
regulated by the rule; and
``(B) 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.''.

SEC. ___4. JUDICIAL REVIEW TO ALLOW SMALL ENTITIES TO
CHALLENGE PROPOSED REGULATIONS.

Section 611(a) of title 5, United States Code, is amended--
(1) in paragraph (1), by inserting ``603,'' after ``601,'';
(2) in paragraph (2), by inserting ``603,'' after ``601,'';
(3) by striking paragraph (3) and inserting the following:
``(3) A small entity may seek such review during the 1-year
period beginning on the date of final agency action, except
that--
``(A) if a provision of law requires that an action
challenging a final agency action be commenced before the
expiration of 1 year, the lesser period shall apply to an
action for judicial review under this section; and
``(B) in the case of noncompliance with section 603 or
605(b), a small entity may seek judicial review of agency
compliance with such section before the close of the public
comment period.''; and
(4) in paragraph (4)--
(A) in subparagraph (A), by striking ``, and'' and
inserting a semicolon;
(B) in subparagraph (B), by striking the period and
inserting ``; or''; and
(C) by adding at the end the following:
``(C) issuing an injunction prohibiting an agency from
taking any agency action with respect to a rulemaking until
that agency is in compliance with the requirements of section
603 or 605.''.

SEC. ___5. PERIODIC REVIEW.

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

``Sec. 610. Periodic review of rules

``(a)(1) Not later than 180 days after the date of
enactment of the Freedom from Restrictive Excessive Executive
Demands and Onerous Mandates Act of 2011, each agency shall
establish a plan for the periodic review of--
``(A) each rule issued by the agency that the head of the
agency 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; and
``(B) any small entity compliance guide required to be
published by the agency under section 212 of the Small
Business Regulatory Enforcement Fairness Act of 1996 (5
U.S.C. 601 note).
``(2) In reviewing rules and small entity compliance guides
under paragraph (1), the agency shall determine whether the
rules and guides should--
``(A) be amended or rescinded, consistent with the stated
objectives of applicable statutes, to minimize any
significant adverse economic impacts on a substantial number
of small entities (including an estimate of any adverse
impacts on job creation and employment by small entities); or
``(B) continue in effect without change.
``(3) Each agency shall publish the plan established under
paragraph (1) in the Federal Register and on the Web site of
the agency.
``(4) An agency may amend the plan established under
paragraph (1) at any time by publishing the amendment in the
Federal Register and on the Web site of the agency.
``(b) Each plan established under subsection (a) shall
provide for--
``(1) the review of each rule and small entity compliance
guide described in subsection (a)(1) in effect on the date of
enactment of the Freedom from Restrictive Excessive Executive
Demands and Onerous Mandates Act of 2011--
``(A) not later than 9 years after the date of publication
of the plan in the Federal Register; and
``(B) every 9 years thereafter; and
``(2) the review of each rule adopted and small entity
compliance guide described in subsection (a)(1) that is
published after the date of enactment of the Freedom from
Restrictive Excessive Executive Demands and Onerous Mandates
Act of 2011--
``(A) not later than 9 years after the publication of the
final rule in the Federal Register; and
``(B) every 9 years thereafter.
``(c) In reviewing rules under the plan required under
subsection (a), the agency shall consider--
``(1) the continued need for the rule;
``(2) the nature of complaints received by the agency from
small entities concerning the rule;
``(3) comments by the Regulatory Enforcement Ombudsman and
the Chief Counsel for Advocacy of the Small Business
Administration;
``(4) the complexity of the rule;
``(5) the extent to which the rule overlaps, duplicates, or
conflicts with other Federal rules and, unless the head of
the agency determines it to be infeasible, State and local
rules;
``(6) the contribution of the rule to the cumulative
economic impact of all Federal rules on the class of small
entities affected by the rule, unless the head of the agency
determines that such a calculation cannot be made;
``(7) the length of time since the rule has been evaluated,
or the degree to which technology, economic conditions, or
other factors have changed in the area affected by the rule;
and
``(8) the economic impact of the rule, including--
``(A) the estimated number of small entities to which the
rule will apply;
``(B) the estimated number of small entity jobs that will
be lost or created due to the rule; and
``(C) the projected reporting, recordkeeping, and other
compliance requirements of the proposed rule, including--
``(i) an estimate of the classes of small entities that
will be subject to the requirement; and
``(ii) the type of professional skills necessary for
preparation of the report or record.
``(d)(1) Each agency shall submit an annual report
regarding the results of the review required under subsection
(a) to--
``(A) Congress; and
``(B) in the case of an agency that is not an independent
regulatory agency (as defined in section 3502(5) of title
44), the Administrator of the Office of Information and
Regulatory Affairs of the Office of Management and Budget.
``(2) Each report required under paragraph (1) shall
include a description of any rule or guide with respect to
which the agency made a determination of infeasibility under
paragraph (5) or (6) of subsection (c), together with a
detailed explanation of the reasons for the determination.
``(e) Each agency shall publish in the Federal Register and
on the Web site of the agency a list of the rules and small
entity compliance guides to be reviewed under the plan
required under subsection (a) that includes--
``(1) a brief description of each rule or guide;
``(2) for each rule, the reason why the head of the agency
determined that the rule has a significant economic impact on
a substantial number of small entities (without regard to
whether the agency had prepared a final regulatory
flexibility analysis for the rule); and
``(3) a request for comments from the public, the Chief
Counsel for Advocacy of the Small Business Administration,
and the Regulatory Enforcement Ombudsman concerning the
enforcement of the rules or publication of the guides.
``(f)(1) Not later than 6 months after each date described
in subsection (b)(1), the Inspector General for each agency
shall--
``(A) determine whether the agency has conducted the review
required under subsection (b) appropriately; and
``(B) notify the head of the agency of--
``(i) the results of the determination under subparagraph
(A); and
``(ii) any issues preventing the Inspector General from
determining that the agency has conducted the review under
subsection (b) appropriately.
``(2)(A) Not later than 6 months after the date on which
the head of an agency receives a notice under paragraph
(1)(B) that the agency has not conducted the review under
subsection (b) appropriately, the agency shall address the
issues identified in the notice.
``(B) Not later than 30 days after the last day of the 6-
month period described in subparagraph (A), the Inspector
General for an agency that receives a notice described in
subparagraph (A) shall--
``(i) determine whether the agency has addressed the issues
identified in the notice; and
``(ii) notify Congress if the Inspector General determines
that the agency has not addressed the issues identified in
the notice; and
``(C) Not later than 30 days after the date on which the
Inspector General for an agency transmits a notice under
subparagraph (B)(ii), 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.
``(D) Nothing in this paragraph may be construed to prevent
Congress from acting to prevent a rescission under
subparagraph (C).''.

SEC. ___6. REQUIRING SMALL BUSINESS REVIEW PANELS FOR
ADDITIONAL AGENCIES.

(a) Agencies.--Section 609 of title 5, United States Code,
is amended--
(1) in subsection (b)--
(A) by striking ``a covered agency'' the first place it
appears and inserting ``an agency designated under subsection
(d)''; and
(B) by striking ``a covered agency'' each place it appears
and inserting ``the agency'';

[[Page S3555]]

(2) by striking subsection (d), as amended by section
1100G(a) of Public Law 111-203 (124 Stat. 2112), and
inserting the following:
``(d)(1)(A) On and after the date of enactment of the
Freedom from Restrictive Excessive Executive Demands and
Onerous Mandates Act of 2011, the Environmental Protection
Agency and the Occupational Safety and Health Administration
of the Department of Labor shall be--
``(i) agencies designated under this subsection; and
``(ii) subject to the requirements of subsection (b).
``(B) On and after the designated transfer date established
under section 1062 of Public Law 111-203 (12 U.S.C. 5582),
the Bureau of Consumer Financial Protection shall be--
``(i) an agency designated under this subsection; and
``(ii) subject to the requirements of subsection (b).
``(2) The Chief Counsel for Advocacy shall designate as
agencies that shall be subject to the requirements of
subsection (b) on and after the date of the designation--
``(A) 3 agencies for the first year after the date of
enactment of the Freedom from Restrictive Excessive Executive
Demands and Onerous Mandates Act of 2011;
``(B) in addition to the agencies designated under
subparagraph (A), 3 agencies for the second year after the
date of enactment of the Freedom from Restrictive Excessive
Executive Demands and Onerous Mandates Act of 2011; and
``(C) in addition to the agencies designated under
subparagraphs (A) and (B), 3 agencies for the third year
after the date of enactment of the Freedom from Restrictive
Excessive Executive Demands and Onerous Mandates Act of 2011.
``(3) The Chief Counsel for Advocacy shall designate
agencies under paragraph (2) based on the economic impact of
the rules of the agency on small entities, beginning with
agencies with the largest economic impact on small
entities.''; and
(3) in subsection (e)(1), by striking ``the covered
agency'' and inserting ``the agency''.
(b) Technical and Conforming Amendments.--
(1) Section 603.--Section 603(d) of title 5, United States
Code, as added by section 1100G(b) of Public Law 111-203 (124
Stat. 2112), is amended--
(A) in paragraph (1), by striking ``a covered agency, as
defined in section 609(d)(2)'' and inserting ``the Bureau of
Consumer Financial Protection''; and
(B) in paragraph (2), by striking ``A covered agency, as
defined in section 609(d)(2),'' and inserting ``The Bureau of
Consumer Financial Protection''.
(2) Section 604.--Section 604(a) of title 5, United States
Code, is amended--
(A) by redesignating the second paragraph designated as
paragraph (6) (relating to covered agencies), as added by
section 1100G(c)(3) of Public Law 111-203 (124 Stat. 2113),
as paragraph (7); and
(B) in paragraph (7), as so redesignated--
(i) by striking ``a covered agency, as defined in section
609(d)(2)'' and inserting ``the Bureau of Consumer Financial
Protection''; and
(ii) by striking ``the agency'' and inserting ``the
Bureau''.
(3) Effective date.--The amendments made by this subsection
shall take effect on the date of enactment of this Act and
apply on and after the designated transfer date established
under section 1062 of Public Law 111-203 (12 U.S.C. 5582).

SEC. ___7. EXPANDING THE REGULATORY FLEXIBILITY ACT TO AGENCY
GUIDANCE DOCUMENTS.

Section 601(2) of title 5, United States Code, is amended
by inserting after ``public comment'' the following: ``and
any significant guidance document, as defined in the Office
of Management and Budget Final Bulletin for Agency Good
Guidance Procedures (72 Fed. Reg. 3432; January 25, 2007)''.

SEC. ___8. REQUIRING THE INTERNAL REVENUE SERVICE TO CONSIDER
SMALL ENTITY IMPACT.

(a) In General.--Section 603(a) of title 5, United States
Code, is amended, in the fifth sentence, by striking ``but
only'' and all that follows through the period at the end and
inserting ``but only to the extent that such interpretative
rules, or the statutes upon which such rules are based,
impose on small entities a collection of information
requirement or a recordkeeping requirement.''.
(b) Definitions.--Section 601 of title 5, United States
Code, as amended by section 3 of this title, is amended--
(1) in paragraph (6), by striking ``and'' at the end; and
(2) by striking paragraphs (7) and (8) and inserting the
following:
``(7) the term `collection of information' has the meaning
given that term in section 3502(3) of title 44;
``(8) the term `recordkeeping requirement' has the meaning
given that term in section 3502(13) of title 44; and''.

SEC. ___9. REPORTING ON ENFORCEMENT ACTIONS RELATING TO SMALL
ENTITIES.

Section 223 of the Small Business Regulatory Enforcement
Fairness Act of 1996 (5 U.S.C. 601 note) is amended--
(1) in subsection (a)--
(A) by striking ``Each agency'' and inserting the
following:
``(1) Establishment of policy or program.--Each agency'';
and
(B) by adding at the end the following:
``(2) Review of civil penalties.--Not later than 2 years
after the date of enactment of the Freedom from Restrictive
Excessive Executive Demands and Onerous Mandates Act of 2011,
and every 2 years thereafter, each agency regulating the
activities of small entities shall review the civil penalties
imposed by the agency for violations of a statutory or
regulatory requirement by a small entity to determine whether
a reduction or waiver of the civil penalties is
appropriate.''; and
(2) in subsection (c)--
(A) by striking ``Agencies shall report'' and all that
follows through ``the scope'' and inserting ``Not later than
2 years after the date of enactment of the Freedom from
Restrictive Excessive Executive Demands and Onerous Mandates
Act of 2011, and every 2 years thereafter, each agency shall
submit to the Committee on Small Business and
Entrepreneurship and the Committee on Homeland Security and
Governmental Affairs of the Senate and the Committee on Small
Business and the Committee on the Judiciary of the House of
Representatives a report discussing the scope''; and
(B) by striking ``and the total amount of penalty
reductions and waivers'' and inserting ``the total amount of
penalty reductions and waivers, and the results of the most
recent review under subsection (a)(2)''.

SEC. ___10. REQUIRING MORE DETAILED SMALL ENTITY ANALYSES.

(a) Initial Regulatory Flexibility Analysis.--Section 603
of title 5, United States Code, as amended by section
1100G(b) of Public Law 111-203 (124 Stat. 2112), is amended--
(1) by striking subsection (b) and inserting the following:
``(b) Each initial regulatory flexibility analysis required
under this section shall contain a detailed statement--
``(1) describing the reasons why action by the agency is
being considered;
``(2) describing the objectives of, and legal basis for,
the proposed rule;
``(3) estimating the number and type of small entities to
which the proposed rule will apply;
``(4) describing the projected reporting, recordkeeping,
and other compliance requirements of the proposed rule,
including an estimate of the classes of small entities which
will be subject to the requirement and the type of
professional skills necessary for preparation of the report
and record;
``(5) describing all relevant Federal rules which may
duplicate, overlap, or conflict with the proposed rule, or
the reasons why such a description could not be provided; and
``(6) estimating the additional cumulative economic impact
of the proposed rule on small entities, including job loss by
small entities, beyond that already imposed on the class of
small entities by the agency, or the reasons why such an
estimate is not available.''; and
(2) by adding at the end the following:
``(e) An agency shall notify the Chief Counsel for Advocacy
of the Small Business Administration of any draft rules that
may have a significant economic impact on a substantial
number of small entities--
``(1) when the agency submits a draft rule to the Office of
Information and Regulatory Affairs of the Office of
Management and Budget under Executive Order 12866, if that
order requires the submission; or
``(2) if no submission to the Office of Information and
Regulatory Affairs is required--
``(A) a reasonable period before publication of the rule by
the agency; and
``(B) in any event, not later than 3 months before the date
on which the agency publishes the rule.''.
(b) Final Regulatory Flexibility Analysis.--
(1) In general.--Section 604(a) of title 5, United States
Code, is amended--
(A) by inserting ``detailed'' before ``description'' each
place it appears;
(B) in paragraph (2)--
(i) by inserting ``detailed'' before ``statement'' each
place it appears; and
(ii) by inserting ``(or certification of the proposed rule
under section 605(b))'' after ``initial regulatory
flexibility analysis'';
(C) in paragraph (4), by striking ``an explanation'' and
inserting ``a detailed explanation''; and
(D) in paragraph (6) (relating to a description of steps
taken to minimize significant economic impact), as added by
section 1601 of the Small Business Jobs Act of 2010 (Public
Law 111-240; 124 Stat. 2251), by inserting ``detailed''
before ``statement''.
(2) Publication of analysis on web site, etc.--Section
604(b) of title 5, United States Code, is amended to read as
follows:
``(b) The agency shall--
``(1) make copies of the final regulatory flexibility
analysis available to the public, including by publishing the
entire final regulatory flexibility analysis on the Web site
of the agency; and
``(2) publish in the Federal Register the final regulatory
flexibility analysis, or a summary of the analysis that
includes the telephone number, mailing address, and address
of the Web site where the complete final regulatory
flexibility analysis may be obtained.''.
(c) Cross-References to Other Analyses.--Section 605(a) of
title 5, United States Code, is amended to read as follows:
``(a) A Federal agency shall be deemed to have satisfied a
requirement regarding the content of a regulatory flexibility
agenda or regulatory flexibility analysis under section 602,
603, or 604, if the Federal agency provides in the agenda or
regulatory flexibility analysis a cross-reference to the
specific portion of an agenda or analysis that is required by

[[Page S3556]]

another law and that satisfies the requirement under section
602, 603, or 604.''.
(d) Certifications.--Section 605(b) of title 5, United
States Code, is amended, in the second sentence, by striking
``statement providing the factual'' and inserting ``detailed
statement providing the factual and legal''.
(e) Quantification Requirements.--Section 607 of title 5,
United States Code, is amended to read as follows:

``Sec. 607. Quantification requirements

``In complying with sections 603 and 604, an agency shall
provide--
``(1) a quantifiable or numerical description of the
effects of the proposed or final rule, including an estimate
of the potential for job loss, and alternatives to the
proposed or final rule; or
``(2) a more general descriptive statement regarding the
potential for job loss and a detailed statement explaining
why quantification under paragraph (1) is not practicable or
reliable.''.

SEC. ___11. ENSURING THAT AGENCIES CONSIDER SMALL ENTITY
IMPACT DURING THE RULEMAKING PROCESS.

Section 605(b) of title 5, United States Code, is amended--
(1) by inserting ``(1)'' after ``(b)''; and
(2) by adding at the end the following:
``(2) If, after publication of the certification required
under paragraph (1), the head of the agency determines that
there will be a significant economic impact on a substantial
number of small entities, the agency shall comply with the
requirements of section 603 before the publication of the
final rule, by--
``(A) publishing an initial regulatory flexibility analysis
for public comment; or
``(B) re-proposing the rule with an initial regulatory
flexibility analysis.
``(3) The head of an agency may not make a certification
relating to a rule under this subsection, unless the head of
the agency has determined--
``(A) the average cost of the rule for small entities
affected or reasonably presumed to be affected by the rule;
``(B) the number of small entities affected or reasonably
presumed to be affected by the rule; and
``(C) the number of affected small entities for which that
cost will be significant.
``(4) Before publishing a certification and a statement
providing the factual basis for the certification under
paragraph (1), the head of an agency shall--
``(A) transmit a copy of the certification and statement to
the Chief Counsel for Advocacy of the Small Business
Administration; and
``(B) consult with the Chief Counsel for Advocacy of the
Small Business Administration on the accuracy of the
certification and statement.''.

SEC. ___12. ADDITIONAL POWERS OF THE OFFICE OF ADVOCACY.

Section 203 of Public Law 94-305 (15 U.S.C. 634c) is
amended--
(1) in paragraph (5), by striking ``and'' at the end;
(2) in paragraph (6), by striking the period at the end and
inserting ``; and''; and
(3) by inserting after paragraph (6) the following:
``(7) at the discretion of the Chief Counsel for Advocacy,
comment on regulatory action by an agency that affects small
businesses, without regard to whether the agency is required
to file a notice of proposed rulemaking under section 553 of
title 5, United States Code, with respect to the action.''.

SEC. ___13. FUNDING AND OFFSETS.

(a) Authorization.--There are authorized to be appropriated
to the Small Business Administration, for any costs of
carrying out this title and the amendments made by this title
(including the costs of hiring additional employees)--
(1) $1,000,000 for fiscal year 2012;
(2) $2,000,000 for fiscal year 2013; and
(3) $3,000,000 for fiscal year 2014.
(b) Repeals.--In order to offset the costs of carrying out
this title and the amendments made by this title and to
reduce the Federal deficit, the following provisions of law
are repealed, effective on the date of enactment of this Act:
(1) Section 21(n) of the Small Business Act (15 U.S.C.
648).
(2) Section 27 of the Small Business Act (15 U.S.C. 654).
(3) Section 1203(c) of the Energy Security and Efficiency
Act of 2007 (15 U.S.C. 657h(c)).

SEC. ___14. TECHNICAL AND CONFORMING AMENDMENTS.

(a) Heading.--Section 605 of title 5, United States Code,
is amended in the section heading by striking ``Avoidance''
and all that follows and inserting the following:
``Incorporations by reference and certification.''.
(b) Table of Sections.--The table of sections for chapter 6
of title 5, United States Code, is amended--
(1) by striking the item relating to section 605 and
inserting the following:

``605. Incorporations by reference and certifications.'';

and
(2) by striking the item relating to section 607 inserting
the following:

``607. Quantification requirements.''.
______