[Congressional Bills 110th Congress] [From the U.S. Government Publishing Office] [S. 2691 Introduced in Senate (IS)] 110th CONGRESS 2d Session S. 2691 To amend the Federal Crop Insurance Reform and Department of Agriculture Reorganization Act of 1994 to provide enhanced agricultural input into Federal rulemakings, and for other purposes. _______________________________________________________________________ IN THE SENATE OF THE UNITED STATES March 4, 2008 Mr. Bond introduced the following bill; which was read twice and referred to the Committee on Agriculture, Nutrition, and Forestry _______________________________________________________________________ A BILL To amend the Federal Crop Insurance Reform and Department of Agriculture Reorganization Act of 1994 to provide enhanced agricultural input into Federal rulemakings, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the ``Farmer Red Tape Reduction Act of 2008''. SEC. 2. AGRICULTURAL REGULATORY FLEXIBILITY. The Federal Crop Insurance Reform and Department of Agriculture Reorganization Act of 1994 (7 U.S.C. 6901 et seq.) is amended by adding at the end the following: ``TITLE IV--AGRICULTURAL REGULATORY FLEXIBILITY ``SEC. 401. DEFINITIONS. ``In this title: ``(1) Agency.--The term `agency' has the meaning given the term in section 551 of title 5, United States Code. ``(2) Agricultural entity.--The term `agricultural entity' means any person or entity that has income derived from-- ``(A) farming, ranching, or forestry operations; ``(B) the production of crops, livestock, or unfinished raw forestry products; ``(C) the sale (including the sale of easements and development rights) of farm, ranch, or forest products, including water or hunting rights; ``(D) the sale of equipment to conduct farming, ranching, or forestry operations; ``(E) the rental or lease of land used for farming, ranching, or forestry operations, including water or hunting rights; ``(F) the provision of production inputs or services to farmers, ranchers, or foresters; ``(G) the processing (including packing), storing (including shedding), or transporting of farm, ranch, or forestry products; or ``(H) the sale of land used for agriculture. ``(3) Chief counsel for advocacy.--The term `Chief Counsel for Advocacy' means the Chief Counsel for Advocacy of the Office of Advocacy of the Department of Agriculture appointed under section 413(b). ``(4) Collection of information.-- ``(A) In general.--The term `collection of information' means obtaining, causing to be obtained, soliciting, or requiring the disclosure to third parties or the public, of facts or opinions by or for an agency, regardless of form or format, calling for-- ``(i) answers to identical questions posed to, or identical reporting or recordkeeping requirements imposed on, 10 or more persons, other than agencies, instrumentalities, or employees of the United States; or ``(ii) answers to questions posed to agencies, instrumentalities, or employees of the United States that are to be used for general statistical purposes. ``(B) Exclusion.--The term `collection of information' does not include collection of information described in section 3518(c)(1) of title 44, United States Code. ``(5) Recordkeeping requirement.--The term `recordkeeping requirement' means a requirement imposed by an agency on persons to maintain specified records. ``(6) Rule.-- ``(A) In general.--The term `rule' means any rule for which an agency publishes a general notice of proposed rulemaking pursuant to section 553(b) of title 5, United States Code, or any other law. ``(B) Inclusion.--The term `rule' includes any rule of general applicability governing Federal grants to State and local governments for which an agency provides an opportunity for notice and public comment. ``(C) Exclusions.--The term `rule' does not include a rule of particular applicability relating to-- ``(i) rates, wages, corporate or financial structures or reorganizations of the structures, prices, facilities, appliances, services, or allowances; or ``(ii) valuations, costs, accounting, or practices relating to those rates, wages, structures, prices, facilities, appliances, services, or allowances. ``SEC. 402. AGRICULTURAL REGULATORY FLEXIBILITY AGENDA. ``(a) In General.--During the months of October and April of each year, each agency shall publish in the Federal Register an agricultural regulatory flexibility agenda that shall contain-- ``(1) a brief description of the subject area of any rule that the agency expects to propose or promulgate that is likely to have a significant economic impact on a substantial number of agricultural entities; ``(2) a summary of-- ``(A) the nature of the rule under consideration for each subject area listed in the agenda under paragraph (1); ``(B) the objectives and legal basis for the issuance of the rule; and ``(C) an approximate schedule for completing action on any rule for which the agency has issued a general notice of proposed rulemaking; and ``(3) the name and telephone number of an agency official who is knowledgeable concerning the rule described in paragraph (1). ``(b) Notice and Comment by Chief Counsel for Advocacy.--Each agency shall transmit the agricultural regulatory flexibility agenda of the agency to the Chief Counsel for Advocacy for any comment. ``(c) Notice and Comment by Agricultural Entities.--Each agency shall, to the maximum extent practicable-- ``(1) provide notice of each agricultural regulatory flexibility agenda to agricultural entities or the representatives of agricultural entities through direct notification or publication of the agenda in publications likely to be obtained by the agricultural entities; and ``(2) invite comments on each subject area on the agenda. ``(d) Administration.--Nothing in this section-- ``(1) precludes an agency from considering or acting on any matter not included in an agricultural regulatory flexibility agenda; or ``(2) requires an agency to consider or act on any matter listed in the agenda. ``SEC. 403. INITIAL AGRICULTURAL REGULATORY FLEXIBILITY ANALYSIS. ``(a) In General.--If an agency is required by section 553 of title 5, United States Code, or any other law, to publish general notice of proposed rulemaking for any proposed rule, or publishes a notice of proposed rulemaking for an interpretative rule involving the internal revenue laws of the United States, the agency shall prepare and make available for public comment an initial agricultural regulatory flexibility analysis of the proposed rule that describes the impact of the proposed rule on agricultural entities. ``(b) Publication.--The agency shall publish the initial agricultural regulatory flexibility analysis or a summary of the analysis in the Federal Register at the time of the publication of general notice of proposed rulemaking for the rule. ``(c) Notice and Comment by Chief Counsel for Advocacy.--The agency shall transmit a copy of the initial agricultural regulatory flexibility analysis to the Chief Counsel for Advocacy for any comment. ``(d) Interpretative Rules.--In the case of an interpretative rule that involves the internal revenue laws of the United States, this title applies to interpretative rules published in the Federal Register for codification in the Code of Federal Regulations only to the extent that the interpretative rule impose on agricultural entities a collection of information requirement. ``(e) Contents.--Each initial agricultural regulatory flexibility analysis of an agency for a proposed rule required under this section shall contain-- ``(1) a description of the reasons why action by the agency is being considered; ``(2) a succinct statement of the objectives of, and legal basis for, the proposed rule; ``(3) a description of and, if feasible, an estimate of the number of agricultural entities to which the proposed rule will apply; ``(4) a description of the projected reporting, recordkeeping, and other compliance requirements of the proposed rule, including an estimate of the classes of agricultural entities that will be subject to the requirement and the type of professional skills necessary for preparation of the report or record; and ``(5) an identification, to the maximum extent practicable, of all relevant Federal rules that may duplicate, overlap, or conflict with the proposed rule. ``(f) Alternatives.-- ``(1) In general.--Each initial agricultural regulatory flexibility analysis of an agency for a proposed rule shall contain a description of any significant alternatives to the proposed rule that-- ``(A) accomplish the purposes of the applicable law; and ``(B) minimize any significant economic impact of the proposed rule on agricultural entities. ``(2) Types of alternatives.--Consistent with the purposes of the applicable law, the analysis shall discuss significant alternatives such as-- ``(A) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to agricultural entities; ``(B) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for agricultural entities; ``(C) the use of performance rather than design standards; and ``(D) an exemption from coverage of the rule, or any part of the rule, for agricultural entities. ``SEC. 404. FINAL AGRICULTURAL REGULATORY FLEXIBILITY ANALYSIS. ``(a) In General.--If an agency promulgates a final rule under section 553 of title 5, United States Code, after being required by that section or any other law to publish a general notice of proposed rulemaking, or promulgates a final interpretative rule involving the internal revenue laws of the United States as described in section 403(a), the agency shall prepare a final agricultural regulatory flexibility analysis of the final rule that describes the impact of the final rule on agricultural entities. ``(b) Contents.--Each final agricultural regulatory flexibility analysis of an agency for a final rule required under this section shall contain-- ``(1) a succinct statement of the need for, and objectives of, the rule; ``(2)(A) a summary of the significant issues raised by the public comments in response to the initial agricultural regulatory flexibility analysis; ``(B) a summary of the assessment of the agency of the issues; and ``(C) a statement of any changes made in the proposed rule as a result of the comments; ``(3) a description of and an estimate of the number of agricultural entities to which the rule will apply or an explanation of why no such estimate is available; ``(4) a description of the projected reporting, recordkeeping, and other compliance requirements of the rule, including an estimate of the classes of agricultural entities that will be subject to the requirements and the type of professional skills necessary for preparation of the report or record; and ``(5) a description of the steps the agency has taken to minimize the significant economic impact on agricultural entities consistent with the purposes of applicable law, including a statement of-- ``(A) the factual, policy, and legal reasons for selecting the alternative adopted in the final rule; and ``(B) why each 1 of the other significant alternatives to the rule considered by the agency that affect the impact on agricultural entities was rejected. ``(c) Public Availability.--The agency shall-- ``(1) make copies of the final agricultural regulatory flexibility analysis available to members of the public; and ``(2) publish in the Federal Register the analysis or a summary of the analysis. ``SEC. 405. AVOIDANCE OF DUPLICATIVE OR UNNECESSARY ANALYSIS. ``(a) Other Agenda or Analysis.--An agency may perform the analyses required by section 402, 403, or 404 in conjunction with or as a part of any other agenda or analysis required by any other law if the other analysis meets the requirements of that section. ``(b) No Significant Economic Impact on Agricultural Entities.-- ``(1) In general.--Sections 403 and 404 shall not apply to a proposed or final rule of an agency if the head of the agency certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of agricultural entities. ``(2) Publication of certification.--If the head of the agency makes a certification under subsection (a), at the time of publication of general notice of proposed rulemaking for the rule or at the time of publication of the final rule, the agency shall publish in the Federal Register the certification and a statement providing the factual basis for the certification. ``(3) Notice and comment by chief counsel for advocacy.-- The agency shall provide the certification and statement to the Chief Counsel for Advocacy for comment. ``(c) Closely Related Rules.--In order to avoid duplicative action, an agency may consider a series of closely related rules as 1 rule for the purposes of sections 402, 403, 404, and 410. ``SEC. 406. EFFECT ON OTHER LAW. ``The requirements of sections 403 and 404 do not alter any standards otherwise applicable by law to agency action. ``SEC. 407. PREPARATION OF ANALYSES. ``In complying with sections 403 and 404, an agency may provide-- ``(1) a quantifiable or numerical description of the effects of a proposed rule or alternatives to the proposed rule; or ``(2) more general descriptive statements, if quantification is not practicable or reliable. ``SEC. 408. WAIVER OR DELAY OF COMPLETION. ``(a) Initial Agricultural Regulatory Flexibility Analysis.--An agency head may waive or delay the completion of all or part of the requirements of section 403 for a proposed rule by publishing in the Federal Register, not later than the date of publication of the proposed rule, a written finding, with a statements of the reasons for the finding, that the final rule is being promulgated in response to an emergency that makes compliance or timely compliance with section 403 impracticable. ``(b) Final Agricultural Regulatory Flexibility Analysis.-- ``(1) In general.--Except as provided in section 405(b), an agency head may not waive the requirements of section 404 for a final rule. ``(2) Delayed completion.--An agency head may delay the date for complying with section 404 for a final rule for a period of not more than 180 days after the date of publication in the Federal Register of the final rule by publishing in the Federal Register, not later than the date of publication of the final rule, a written finding, with a statement of the reasons for the finding, that the final rule is being promulgated in response to an emergency that makes timely compliance with section 104 impracticable. ``(3) Effect of noncompliance.--If the agency has not prepared a final agricultural regulatory analysis for a final rule pursuant to section 404 within 180 days after the date of publication of the final rule-- ``(A) the rule shall lapse and have no effect; and ``(B) the rule shall not be repromulgated until a final regulatory flexibility analysis has been completed by the agency. ``SEC. 409. COMMENTS. ``(a) Definition of Covered Agency.--In this section, the term `covered agency' means-- ``(1) the Environmental Protection Agency; and ``(2) the Department of the Interior. ``(b) In General.--If a rule is promulgated that will have a significant economic impact on a substantial number of agricultural entities, the head of the agency promulgating the rule or the official of the agency with statutory responsibility for the promulgation of the rule shall ensure that agricultural entities are given an opportunity to participate in the rulemaking for the rule through the use of techniques such as-- ``(1) the inclusion in an advanced notice of proposed rulemaking, if issued, of a statement that the proposed rule may have a significant economic effect on a substantial number of agricultural entities; ``(2) the publication of general notice of proposed rulemaking in publications likely to be obtained by agricultural entities; ``(3) the direct notification of interested agricultural entities; ``(4) the conduct of open conferences or public hearings concerning the rule for agricultural entities, including soliciting and receiving comments over computer networks; and ``(5) the adoption or modification of agency procedural rules to reduce the cost or complexity of participation in the rulemaking by agricultural entities. ``(c) Requirements for Covered Agencies.--Prior to publication of an initial agricultural regulatory flexibility analysis for a proposed rule that a covered agency is required to conduct under this title-- ``(1) the covered agency shall-- ``(A) notify the Chief Counsel for Advocacy of the proposed rule; and ``(B) provide the Chief Counsel for Advocacy with information on the potential impact of the proposed rule on agricultural entities; ``(2) not later than 15 days after the date of receipt of the materials described in paragraph (1), the Chief Counsel for Advocacy shall identify individuals representative of affected agricultural entities for the purpose of obtaining advice and recommendations from those individuals on the potential impact of the proposed rule; ``(3) the covered agency shall convene a review panel for the proposed rule consisting of-- ``(A) full-time Federal employees of the office within the covered agency responsible for carrying out the proposed rule; ``(B) the Office of Information and Regulatory Affairs of the Office of Management and Budget; and ``(C) the Chief Counsel for Advocacy; ``(4) the panel convened under paragraph (3) for the proposed rule of a covered agency shall-- ``(A) review any material the covered agency has prepared in connection with the proposed rule, including any draft proposed rule; ``(B) collect advice and recommendations of each individual agricultural entity representative identified by the covered agency, after consultation with the Chief Counsel for Advocacy, on issues related to paragraphs (3), (4), and (5) of subsection (b), and subsection (c), of section 403(e); and ``(C) not later than 60 days after the date the panel is convened, submit to the covered agency a report on-- ``(i) the comments of the agricultural entity representatives; and ``(ii) the findings of the panel on issues related to paragraphs (3), (4), and (5) of subsection (b), and subsection (c), of section 403(e); and ``(5) the covered agency shall-- ``(A) make the report provided under paragraph (4)(C) public as part of the rulemaking record; and ``(B) if appropriate, modify-- ``(i) the proposed rule; ``(ii) the initial agricultural flexibility analysis; or ``(iii) the decision on whether an initial flexibility analysis is required. ``(d) No Significant Economic Impact on Agricultural Entities.--A covered agency may apply subsection (c) to rules that the covered agency-- ``(1) intends to certify under subsection 405(b); but ``(2) believes may have a greater than de minimis impact on a substantial number of agricultural entities. ``(e) Waivers.-- ``(1) In general.--The Chief Counsel for Advocacy, in consultation with the individuals described in subsection (c)(2) and the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget, may waive the requirements of paragraphs (3), (4), and (5) of subsection (c) by including in the rulemaking record a written finding, with a statement of the reasons for the finding, that those requirements would not advance the effective participation of agricultural entities in the rulemaking process. ``(2) Factors.--In making a determination on a proposed rule of a covered agency under this subsection, the Chief Counsel for Advocacy shall consider-- ``(A) in developing the proposed rule, the extent to which the covered agency-- ``(i) consulted with individuals representative of affected agricultural entities with respect to the potential impact of the proposed rule; and ``(ii) took those concerns into consideration; ``(B) special circumstances requiring prompt issuance of the rule; and ``(C) whether the requirements of subsection (c) would provide the individuals described in subsection (b)(2) with a competitive advantage relative to other agricultural entities. ``SEC. 410. PERIODIC REVIEW OF RULES. ``(a) Plan for Periodic Review of Rules.-- ``(1) In general.--Not later than 180 days after the date of enactment of this title, each agency shall publish in the Federal Register a plan for the periodic review of the rules issued by the agency that have or will have a significant economic impact on a substantial number of agricultural entities. ``(2) Amendments.--The agency may amend the plan by publishing the amendment in the Federal Register. ``(3) Purpose of review.--The purpose of the review shall be to determine whether the rules should be continued without change, or should be amended or rescinded, consistent with the purposes of applicable law, to minimize any significant economic impact of the rules on a substantial number of agricultural entities. ``(4) Timetable.--Subject to paragraph (5), the plan shall provide for-- ``(A) the review of all such agency rules existing on the date of enactment of this title not later than 10 years after that date of enactment; and ``(B) the review of each rule adopted after the date of enactment of this title not later than 10 years after the date of the publication of the rule as the final rule. ``(5) Extension.--If the head of the agency determines that completion of the review of existing rules is not feasible by the date required under paragraph (4), the head of the agency-- ``(A) shall certify the determination in a statement published in the Federal Register; and ``(B) may extend the completion date by 1 year at a time for a total of not more than 5 years. ``(b) Factors for Minimizing Impact.--In reviewing rules to minimize any significant economic impact of a rule on a substantial number of agricultural entities in a manner consistent with the purposes of applicable law, the agency shall consider-- ``(1) the continued need for the rule; ``(2) the nature of complaints or comments received concerning the rule from the public; ``(3) the complexity of the rule; ``(4) the extent to which the rule overlaps, duplicates, or conflicts with other Federal rules, and, to the maximum extent feasible, with State and local governmental rules; and ``(5) 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. ``(c) Publication of List of Rules.-- ``(1) In general.--Each year, each agency shall publish in the Federal Register a list of the rules that have a significant economic impact on a substantial number of agricultural entities, which are to be reviewed pursuant to this section during the succeeding 1-year period. ``(2) Content.--The list shall include a brief description of each rule and the need for and legal basis of the rule. ``(3) Public comments.--The agency shall invite public comment on the rule. ``SEC. 411. JUDICIAL REVIEW. ``(a) In General.--In the case of any rule subject to this title, an agricultural entity that is adversely affected or aggrieved by final agency action may seek judicial review, of agency compliance with-- ``(1) sections 404, 405(b), 408(b), and 410, in accordance with chapter 7 of title 5, United States Code; and ``(2) sections 407 and 409(a), in connection with judicial review of section 404. ``(b) Jurisdiction.--Each court having jurisdiction to review a rule for compliance with section 553, United States Code, or under any other provision of law, shall have jurisdiction to review any claim of noncompliance with-- ``(1) section 404, 405(b), 108(b), and 110 in accordance with chapter 7 of title 5, United States Code; and ``(2) sections 407 and 409(a), in connection with judicial review of section 404. ``(c) Timing.-- ``(1) In general.--Except as otherwise provided in this subsection, an agricultural entity may seek review under this section during-- ``(A) the 1-year period beginning on the date of final agency action; or ``(B) if a provision of law requires that an action challenging a final agency action be commenced before the expiration of that 1-year, during the period established under the provision of law. ``(2) Final agricultural regulatory flexibility analysis.-- If an agency delays the issuance of a final agricultural flexibility analysis pursuant to section 408(b), an action for judicial review under this section shall be filed not later than-- ``(A) 1 year after the date the analysis is made available to the public; or ``(B) if a provision of law requires that an action challenging a final agency regulation be commenced before the expiration of the 1-year period, the number of days specified in the provision of law that is after the date the analysis is made available to the public. ``(d) Relief.--In granting any relief in an action under this section, the court shall order the agency to take corrective action consistent with this title and chapter 7 of title 5, United States Code, including-- ``(1) remanding the rule to the agency; and ``(2) deferring the enforcement of the rule against agricultural entities unless the court finds that continued enforcement of the rule is in the public interest. ``(e) Effective Date of Rule.--Nothing in this subsection limits the authority of any court to stay the effective date of any rule or provision of any rule under any other provision of law or to grant any other relief in addition to the relief authorized under this section. ``(f) Agricultural Flexibility Analysis.--In an action for the judicial review of a rule, the agricultural flexibility analysis for the rule (including an analysis prepared or corrected pursuant to subsection (d)) shall constitute part of the entire record of agency action in connection with the review. ``(g) Sole Means of Review.--Compliance or noncompliance by an agency with this title shall be subject to judicial review only in accordance with this section. ``(h) Other Impact Statements.--Nothing in this section bars judicial review of any other impact statement or similar analysis required by any other law if judicial review of the statement or analysis is otherwise permitted by law. ``SEC. 412. REPORTS AND INTERVENTION RIGHTS. ``(a) Monitoring and Reporting.--The Chief Counsel for Advocacy shall-- ``(1) monitor agency compliance with this title; and ``(2) report at least annually to the President and to the Committee on Agriculture of the House of Representatives and the Committee on Agriculture, Nutrition and Forestry of the Senate on agency compliance with this title. ``(b) Intervention.-- ``(1) In general.--The Chief Counsel for Advocacy may appear as amicus curiae in any action brought in a court of the United States to review a rule. ``(2) Views.--In any action described in paragraph (1), the Chief Counsel for Advocacy may present the views of the Chief Counsel for Advocacy with respect to-- ``(A) compliance with this title; ``(B) the adequacy of the rulemaking record with respect to agricultural entities; and ``(C) the effect of the rule on agricultural entities. ``(3) Granting of application.--A court of the United States shall grant the application of the Chief Counsel for Advocacy to appear in any action under this subsection for the purposes described in paragraph (2). ``SEC. 413. OFFICE OF ADVOCACY OF THE DEPARTMENT OF AGRICULTURE. ``(a) Establishment.--There is established within the Department of Agriculture an Office of Advocacy of the Department of Agriculture. ``(b) Chief Counsel for Advocacy.--The management of the Office shall be vested in a Chief Counsel for Advocacy who shall be a private citizen appointed by the President, by and with the advice and consent of the Senate. ``(c) Primary Functions.--The primary functions of the Office of Advocacy shall be-- ``(1)(A) to measure the direct costs and other effects of government regulation on agricultural entities; and ``(B) to make legislative and nonlegislative proposals for eliminating excessive or unnecessary regulations of agricultural entities; ``(2)(A) to study the ability of financial markets and institutions to meet agricultural entity credit needs; and ``(B) to determine the impact of government demands for credit on agricultural entities; ``(3)(A) to recommend specific measures for creating an environment in which all agricultural entities will have the opportunity to compete effectively and expand to the full potential of agricultural entities; and ``(B) to ascertain the common reasons, if any, for agricultural entity successes and failures; and ``(4)(A) to evaluate the efforts of each department and agency of the United States, and of private industry, to assist agricultural entities owned and controlled by veterans, and agricultural entities concerns owned and controlled by serviced-disabled veterans; ``(B) to provide statistical information on the use of the programs by the agricultural entities; and ``(C) to make appropriate recommendations to the Secretary and to Congress in order to promote the establishment and growth of those agricultural entities. ``(d) Additional Duties.--The Office of Advocacy shall-- ``(1) serve as a focal point for the receipt of complaints, criticisms, and suggestions concerning the policies and activities of the President and any other Federal agency that affects agricultural entities; ``(2) counsel agricultural entities on how to resolve questions and problems concerning the relationship of the agricultural entity to the Federal Government; ``(3) develop proposals for changes in the policies and activities of any agency of the Federal Government that will better fulfill the purposes of agricultural entities and communicate the proposals to the appropriate Federal agencies; ``(4) represent the views and interests of agricultural entities before other Federal agencies whose policies and activities may affect agricultural entities; and ``(5) enlist the cooperation and assistance of public and private agencies, businesses, and other organizations in disseminating-- ``(A) information about the programs and services provided by the Federal Government that are of benefit to agricultural entities; and ``(B) information on how agricultural entities can participate in or make use of the programs and services.''. <all>