[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4078 Engrossed in House (EH)]
112th CONGRESS
2d Session
H. R. 4078
_______________________________________________________________________
AN ACT
To provide that no agency may take any significant regulatory action
until the unemployment rate is equal to or less than 6.0 percent.
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 ``Red Tape Reduction and Small
Business Job Creation Act''.
SEC. 2. TABLE OF CONTENTS.
The table of contents for this Act is as follows:
Sec. 1. Short title.
Sec. 2. Table of contents.
TITLE I--REGULATORY FREEZE FOR JOBS
Sec. 101. Short title.
Sec. 102. Moratorium on significant regulatory actions.
Sec. 103. Waivers and exceptions.
Sec. 104. Judicial review.
Sec. 105. Definitions.
TITLE II--MIDNIGHT RULE RELIEF
Sec. 201. Short title.
Sec. 202. Moratorium on midnight rules.
Sec. 203. Special rule on statutory, regulatory, and judicial
deadlines.
Sec. 204. Exception.
Sec. 205. Definitions.
TITLE III--REGULATORY DECREES AND SETTLEMENTS
Sec. 301. Short title.
Sec. 302. Consent decree and settlement reform.
Sec. 303. Motions to modify consent decrees.
Sec. 304. Effective date.
TITLE IV--UNFUNDED MANDATES INFORMATION AND TRANSPARENCY
Sec. 401. Short title.
Sec. 402. Purpose.
Sec. 403. Providing for Congressional Budget Office studies on policies
involving changes in conditions of grant
aid.
Sec. 404. Clarifying the definition of direct costs to reflect
Congressional Budget Office practice.
Sec. 405. Expanding the scope of reporting requirements to include
regulations imposed by independent
regulatory agencies.
Sec. 406. Amendments to replace Office of Management and Budget with
Office of Information and Regulatory
Affairs.
Sec. 407. Applying substantive point of order to private sector
mandates.
Sec. 408. Regulatory process and principles.
Sec. 409. Expanding the scope of statements to accompany significant
regulatory actions.
Sec. 410. Enhanced stakeholder consultation.
Sec. 411. New authorities and responsibilities for Office of
Information and Regulatory Affairs.
Sec. 412. Retrospective analysis of existing Federal regulations.
Sec. 413. Expansion of judicial review.
TITLE V--IMPROVED COORDINATION OF AGENCY ACTIONS ON ENVIRONMENTAL
DOCUMENTS
Sec. 501. Short title.
Sec. 502. Coordination of agency administrative operations for
efficient decisionmaking.
TITLE VI--SECURITIES AND EXCHANGE COMMISSION REGULATORY ACCOUNTABILITY
Sec. 601. Short title.
Sec. 602. Consideration by the Securities and Exchange Commission of
the costs and benefits of its regulations
and certain other agency actions.
Sec. 603. Sense of Congress relating to other regulatory entities.
Sec. 604. Interpretive guidance null and void.
Sec. 605. Other SEC action prohibited.
TITLE VII--CONSIDERATION BY COMMODITY FUTURES TRADING COMMISSION OF
CERTAIN COSTS AND BENEFITS
Sec. 701. Consideration by the Commodity Futures Trading Commission of
the costs and benefits of its regulations
and orders.
TITLE VIII--ENSURING HIGH STANDARDS FOR AGENCY USE OF SCIENTIFIC
INFORMATION
Sec. 801. Requirement for final guidelines.
TITLE IX--TRACKING THE COST TO TAXPAYERS OF FEDERAL LITIGATION
Sec. 901. Short title.
Sec. 902. Modification of equal access to justice provisions.
TITLE I--REGULATORY FREEZE FOR JOBS
SEC. 101. SHORT TITLE.
This title may be cited as the ``Regulatory Freeze for Jobs Act of
2012''.
SEC. 102. MORATORIUM ON SIGNIFICANT REGULATORY ACTIONS.
(a) Moratorium.--An agency may not take any significant regulatory
action during the period beginning on the date of the enactment of this
Act and ending on the date that the Secretary of Labor submits the
report under subsection (b).
(b) Determination.--The Secretary of Labor shall submit a report to
the Director of the Office of Management and Budget when the Secretary
determines that the Bureau of Labor Statistics average of monthly
unemployment rates for any quarter beginning after the date of the
enactment of this Act is equal to or less than 6.0 percent.
SEC. 103. WAIVERS AND EXCEPTIONS.
(a) In General.--Notwithstanding any other provision of this title,
an agency may take a significant regulatory action only in accordance
with subsection (b), (c), or (d) during the period described in section
102(a).
(b) Presidential Waiver.--An agency may take a significant
regulatory action if the President determines by Executive Order that
the significant regulatory action is--
(1) necessary because of an imminent threat to health or
safety or other emergency;
(2) necessary for the enforcement of criminal or civil
rights laws;
(3) necessary for the national security of the United
States; or
(4) issued pursuant to any statute implementing an
international trade agreement.
(c) Deregulatory Exception.--An agency may take a significant
regulatory action if the Administrator of the Office of Information and
Regulatory Affairs of the Office of Management and Budget certifies in
writing that the significant regulatory action is limited to repealing
an existing rule.
(d) Congressional Waivers.--
(1) Submission.--For any significant regulatory action not
eligible for a Presidential waiver pursuant to subsection (b),
the President may submit a written request to Congress for a
waiver of the application of section 102 for such action.
(2) Contents.--A submission by the President under this
subsection shall--
(A) identify the significant regulatory action and
the scope of the requested waiver;
(B) describe all the reasons the significant
regulatory action is necessary to protect the public
health, safety, or welfare; and
(C) include an explanation of why the significant
regulatory action is ineligible for a Presidential
waiver under subsection (b).
(3) Congressional action.--Congress shall give expeditious
consideration and take appropriate legislative action with
respect to any submission by the President under this
subsection.
SEC. 104. JUDICIAL REVIEW.
(a) Review.--Any party adversely affected or aggrieved by any rule
or guidance resulting from a regulatory action taken in violation of
this title is entitled to judicial review in accordance with chapter 7
of title 5, United States Code. Any determination by either the
President or the Secretary of Labor under this title shall be subject
to judicial review under such chapter.
(b) Jurisdiction.--Each court having jurisdiction to review any
rule or guidance resulting from a significant regulatory action for
compliance with any other provision of law shall have jurisdiction to
review all claims under this title.
(c) Relief.--In granting any relief in any civil action under this
section, the court shall order the agency to take corrective action
consistent with this title and chapter 7 of title 5, United States
Code, including remanding the rule or guidance resulting from the
significant regulatory action to the agency and enjoining the
application or enforcement of that rule or guidance, unless the court
finds by a preponderance of the evidence that application or
enforcement is required to protect against an imminent and serious
threat to the national security of the United States.
(d) Reasonable Attorney's Fees for Small Businesses.--The court
shall award reasonable attorney's fees and costs to a substantially
prevailing small business in any civil action arising under this title.
A small business may qualify as substantially prevailing even without
obtaining a final judgment in its favor if the agency that took the
significant regulatory action changes its position after the civil
action is filed. Such award shall be paid out of the administrative
budget of the office in the agency that took the challenged agency
action.
(e) Limitation on Commencing Civil Action.--A party may seek and
obtain judicial review during the 1-year period beginning on the date
of the challenged agency action or within 90 days after an enforcement
action or notice thereof, except that where another provision of law
requires that a civil action be commenced before the expiration of that
1-year period, such lesser period shall apply.
(f) Small Business Defined.--In this section, the term ``small
business'' means any business, including an unincorporated business or
a sole proprietorship, that employs not more than 500 employees or that
has a net worth of less than $7,000,000 on the date a civil action
arising under this title is filed.
SEC. 105. DEFINITIONS.
In this title:
(1) Agency.--The term ``agency'' has the meaning given that
term under section 551 of title 5, United States Code, except
that such term does not include--
(A) the Board of Governors of the Federal Reserve
System;
(B) the Federal Open Market Committee; or
(C) the United States Postal Service.
(2) Regulatory action.--The term ``regulatory action''
means any substantive action by an agency that promulgates or
is expected to lead to the promulgation of a final rule or
regulation, including a notice of inquiry, an advance notice of
proposed rulemaking, and a notice of proposed rulemaking.
(3) Rule.--The term ``rule'' has the meaning given that
term under section 551 of title 5, United States Code.
(4) Significant regulatory action.--The term ``significant
regulatory action'' means any regulatory action that is likely
to result in a rule or guidance that the Administrator of the
Office of Information and Regulatory Affairs of the Office of
Management and Budget finds is likely to have an annual cost to
the economy of $50,000,000 or more or adversely affect in a
material way the economy, a sector of the economy,
productivity, competition, jobs, the environment, public health
or safety, small entities, or State, local, or tribal
governments or communities. In determining the annual cost to
the economy under this paragraph, the Administrator shall take
into account any expected change in revenue of businesses that
will be caused by such regulatory action, as well as any change
in revenue of businesses that has already taken place as
businesses prepare for the implementation of the regulatory
action. If meeting that definition, such term includes any
requirement by the Secretary of the Treasury, except to the
extent provided in Treasury Regulations as in effect on
February 21, 2011, that a payor of interest make an information
return in the case of interest--
(1) which is described in section 871(i)(2)(A) of the
Internal Revenue Code of 1986, and
(2) which is paid--
(A) to a nonresident alien, and
(B) on a deposit maintained at an office within the
United States.
(5) Small entity.--The term ``small entity'' has the
meaning given that term under section 601(6) of title 5, United
States Code.
TITLE II--MIDNIGHT RULE RELIEF
SEC. 201. SHORT TITLE.
This title may be cited as the ``Midnight Rule Relief Act of
2012''.
SEC. 202. MORATORIUM ON MIDNIGHT RULES.
Except as provided under sections 203 and 204, during the
moratorium period, an agency may not propose or finalize any midnight
rule that the Administrator of the Office of Information and Regulatory
Affairs of the Office of Management and Budget finds is likely to
result in an annual cost to the economy of $50,000,000 or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, small entities, or State, local, or tribal
governments or communities.
SEC. 203. SPECIAL RULE ON STATUTORY, REGULATORY, AND JUDICIAL
DEADLINES.
(a) In General.--Section 202 shall not apply with respect to any
deadline--
(1) for, relating to, or involving any midnight rule;
(2) that was established before the beginning of the
moratorium period; and
(3) that is required to be taken during the moratorium
period.
(b) Publication of Deadlines.--Not later than 30 days after the
beginning of a moratorium period, the Administrator of the Office of
Information and Regulatory Affairs of the Office of Management and
Budget shall identify and publish in the Federal Register a list of
deadlines covered by subsection (a).
SEC. 204. EXCEPTION.
(a) Emergency Exception.--Section 202 shall not apply to a midnight
rule if the President determines that the midnight rule is--
(1) necessary because of an imminent threat to health or
safety or other emergency;
(2) necessary for the enforcement of criminal or civil
rights laws;
(3) necessary for the national security of the United
States; or
(4) issued pursuant to any statute implementing an
international trade agreement.
(b) Deregulatory Exception.--Section 202 shall not apply to a
midnight rule that the Administrator of the Office of Information and
Regulatory Affairs within the Office of Management and Budget certifies
in writing is limited to repealing an existing rule.
(c) Notice of Exceptions.--Not later than 30 days after a
determination under subsection (a) or a certification is made under
subsection (b), the head of the relevant agency shall publish in the
Federal Register any midnight rule excluded from the moratorium period
due to an exception under this section.
SEC. 205. DEFINITIONS.
In this title:
(1) Agency.--The term ``agency'' has the meaning given that
term under section 551 of title 5, United States Code, except
that such term does not include--
(A) the Board of Governors of the Federal Reserve
System;
(B) the Federal Open Market Committee; or
(C) the United States Postal Service.
(2) Deadline.--The term ``deadline'' means any date certain
for fulfilling any obligation or exercising any authority
established by or under any Federal statute or rule, or by or
under any court order implementing any Federal statute,
regulation, or rule.
(3) Moratorium period.--The term ``moratorium period''
means the day after the day referred to in section 1 of title
3, United States Code, through January 20 of the following
year, in which a President is not serving a consecutive term.
(4) Midnight rule.--The term ``midnight rule'' means an
agency statement of general applicability and future effect,
issued during the moratorium period, that is intended to have
the force and effect of law and is designed--
(A) to implement, interpret, or prescribe law or
policy; or
(B) to describe the procedure or practice
requirements of an agency.
(5) Rule.--The term ``rule'' has the meaning given that
term under section 551 of title 5, United States Code.
(6) Small entity.--The term ``small entity'' has the
meaning given that term under section 601(6) of title 5, United
States Code.
TITLE III--REGULATORY DECREES AND SETTLEMENTS
SEC. 301. SHORT TITLE.
This title may be cited as the ``Sunshine for Regulatory Decrees
and Settlements Act of 2012''.
SEC. 302. CONSENT DECREE AND SETTLEMENT REFORM.
(a) Application.--The provisions of this section apply in the case
of--
(1) a consent decree or settlement agreement in an action
to compel agency action alleged to be unlawfully withheld or
unreasonably delayed that pertains to a regulatory action that
affects the rights of private parties other than the plaintiff
or the rights of State, local or Tribal government entities--
(A) brought under chapter 7 of title 5, United
States Code; or
(B) brought under any other statute authorizing
such an action; and
(2) any other consent decree or settlement agreement that
requires agency action that pertains to a regulatory action
that affects the rights of private parties other than the
plaintiff or the rights of State, local or Tribal government
entities.
(b) In General.--In the case of an action to be resolved by a
consent decree or a settlement agreement described in paragraph (1),
the following shall apply:
(1) The complaint in the action, the consent decree or
settlement agreement, the statutory basis for the consent
decree or settlement agreement and its terms, and any award of
attorneys' fees or costs shall be published, including
electronically, in a readily accessible manner by the defendant
agency.
(2) Until the conclusion of an opportunity for affected
parties to intervene in the action, a party may not file with
the court a motion for a consent decree or to dismiss the case
pursuant to a settlement agreement.
(3) In considering a motion to intervene by any party that
would be affected by the agency action in dispute, the court
shall presume, subject to rebuttal, that the interests of that
party would not be represented adequately by the current
parties to the action. In considering a motion to intervene
filed by a State, local or Tribal government entity, the court
shall take due account of whether the movant--
(A) administers jointly with the defendant agency
the statutory provisions that give rise to the
regulatory duty alleged in the complaint; or
(B) administers State, local or Tribal regulatory
authority that would be preempted by the defendant
agency's discharge of the regulatory duty alleged in
the complaint.
(4) If the court grants a motion to intervene in the
action, the court shall include the plaintiff, the defendant
agency, and the intervenors in settlement discussions.
Settlement efforts conducted shall be pursuant to a court's
mediation or alternative dispute resolution program, or by a
district judge, magistrate judge, or special master, as
determined by the assigned judge.
(5) The defendant agency shall publish in the Federal
Register and by electronic means any proposed consent decree or
settlement agreement for no fewer than 60 days of public
comment before filing it with the court, including a statement
of the statutory basis for the proposed consent decree or
settlement agreement and its terms, allowing comment on any
issue related to the matters alleged in the complaint or
addressed or affected by the consent decree or settlement
agreement.
(6) The defendant agency shall--
(A) respond to public comments received under
paragraph (5); and
(B) when moving that the court enter the consent
decree or for dismissal pursuant to the settlement
agreement--
(i) inform the court of the statutory basis
for the proposed consent decree or settlement
agreement and its terms;
(ii) submit to the court a summary of the
public comments and agency responses;
(iii) certify the index to the
administrative record of the notice and comment
proceeding to the court; and
(iv) make that record fully accessible to
the court.
(7) The court shall include in the judicial record the full
administrative record, the index to which was certified by the
agency under paragraph (6).
(8) If the consent decree or settlement agreement requires
an agency action by a date certain, the agency shall, when
moving for entry of the consent decree or dismissal based on
the settlement agreement--
(A) inform the court of any uncompleted mandatory
duties to take regulatory action that the decree or
agreement does not address;
(B) how the decree or agreement, if approved, would
affect the discharge of those duties; and
(C) why the decree's or agreement's effects on the
order in which the agency discharges its mandatory
duties is in the public interest.
(9) The court shall presume, subject to rebuttal, that it
is proper to allow amicus participation by any party who filed
public comments on the consent decree or settlement agreement
during the court's consideration of a motion to enter the
decree or dismiss the case on the basis of the agreement.
(10) The court shall ensure that the proposed consent
decree or settlement agreement allows sufficient time and
procedure for the agency to comply with chapter 5 of title 5,
United States Code, and other applicable statutes that govern
rule making and, unless contrary to the public interest, the
provisions of any executive orders that govern rule making.
(11) The defendant agency may, at its discretion, hold a
public hearing pursuant to notice in the Federal Register and
by electronic means, on whether to enter into the consent
decree or settlement agreement. If such a hearing is held,
then, in accordance with paragraph (6), the agency shall submit
to the court a summary of the proceedings and the certified
index to the hearing record, full access to the hearing record
shall be given to the court, and the full hearing record shall
be included in the judicial record.
(12) The Attorney General, in cases litigated by the
Department of Justice, or the head of the defendant Federal
agency, in cases litigated independently by that agency, shall
certify to the court his or her approval of any proposed
consent decree or settlement agreement that contains any of the
following terms--
(A) in the case of a consent decree, terms that--
(i) convert into mandatory duties the
otherwise discretionary authorities of an
agency to propose, promulgate, revise or amend
regulations;
(ii) commit the agency to expend funds that
Congress has not appropriated and that have not
been budgeted for the action in question, or
commit an agency to seek a particular
appropriation or budget authorization;
(iii) divest the agency of discretion
committed to it by Congress or the
Constitution, whether such discretionary power
was granted to respond to changing
circumstances, to make policy or managerial
choices, or to protect the rights of third
parties; or
(iv) otherwise afford relief that the court
could not enter on its own authority upon a
final judgment in the litigation; or
(B) in the case of a settlement agreement, terms
that--
(i) interfere with the agency's authority
to revise, amend, or issue rules through the
procedures set forth in chapter 5 of title 5,
United States Code, or any other statute or
executive order prescribing rule making
procedures for rule makings that are the
subject of the settlement agreement;
(ii) commit the agency to expend funds that
Congress has not appropriated and that have not
been budgeted for the action in question; or
(iii) provide a remedy for the agency's
failure to comply with the terms of the
settlement agreement other than the revival of
the action resolved by the settlement
agreement, if the agreement commits the agency
to exercise its discretion in a particular way
and such discretionary power was committed to
the agency by Congress or the Constitution to
respond to changing circumstances, to make
policy or managerial choices, or to protect the
rights of third parties.
(c) Annual Reports.--Each agency shall submit an annual report to
Congress on the number, identity, and content of complaints, consent
decrees, and settlement agreements described in paragraph (1) for that
year, the statutory basis for each consent decree or settlement
agreement and its terms, and any awards of attorneys fees or costs in
actions resolved by such decrees or agreements.
SEC. 303. MOTIONS TO MODIFY CONSENT DECREES.
When a defendant agency moves the court to modify a previously
entered consent decree described under section 302 and the basis of the
motion is that the terms of the decree are no longer fully in the
public interest due to the agency's obligations to fulfill other duties
or due to changed facts and circumstances, the court shall review the
motion and the consent decree de novo.
SEC. 304. EFFECTIVE DATE.
The provisions of this title apply to any covered consent decree or
settlement agreement proposed to a court after the date of enactment of
this title.
TITLE IV--UNFUNDED MANDATES INFORMATION AND TRANSPARENCY
SEC. 401. SHORT TITLE.
This title may be cited as the ``Unfunded Mandates Information and
Transparency Act of 2012''.
SEC. 402. PURPOSE.
The purpose of this title is--
(1) to improve the quality of the deliberations of Congress
with respect to proposed Federal mandates by--
(A) providing Congress and the public with more
complete information about the effects of such
mandates; and
(B) ensuring that Congress acts on such mandates
only after focused deliberation on their effects; and
(2) to enhance the ability of Congress and the public to
identify Federal mandates that may impose undue harm on
consumers, workers, employers, small businesses, and State,
local, and tribal governments.
SEC. 403. PROVIDING FOR CONGRESSIONAL BUDGET OFFICE STUDIES ON POLICIES
INVOLVING CHANGES IN CONDITIONS OF GRANT AID.
Section 202(g) of the Congressional Budget Act of 1974 (2 U.S.C.
602(g)) is amended by adding at the end the following new paragraph:
``(3) Additional studies.--At the request of any Chairman
or ranking member of the minority of a Committee of the Senate
or the House of Representatives, the Director shall conduct an
assessment comparing the authorized level of funding in a bill
or resolution to the prospective costs of carrying out any
changes to a condition of Federal assistance being imposed on
State, local, or tribal governments participating in the
Federal assistance program concerned or, in the case of a bill
or joint resolution that authorizes such sums as are necessary,
an assessment of an estimated level of funding compared to such
costs.''.
SEC. 404. CLARIFYING THE DEFINITION OF DIRECT COSTS TO REFLECT
CONGRESSIONAL BUDGET OFFICE PRACTICE.
Section 421(3) of the Congressional Budget Act of 1974 (2 U.S.C.
658(3)(A)(i)) is amended--
(1) in subparagraph (A)(i), by inserting ``incur or''
before ``be required''; and
(2) in subparagraph (B), by inserting after ``to spend''
the following: ``or could forgo in profits, including costs
passed on to consumers or other entities taking into account,
to the extent practicable, behavioral changes,''.
SEC. 405. EXPANDING THE SCOPE OF REPORTING REQUIREMENTS TO INCLUDE
REGULATIONS IMPOSED BY INDEPENDENT REGULATORY AGENCIES.
Paragraph (1) of section 421 of the Congressional Budget Act of
1974 (2 U.S.C. 658) is amended by striking ``, but does not include
independent regulatory agencies'' and inserting ``, except it does not
include the Board of Governors of the Federal Reserve System or the
Federal Open Market Committee''.
SEC. 406. AMENDMENTS TO REPLACE OFFICE OF MANAGEMENT AND BUDGET WITH
OFFICE OF INFORMATION AND REGULATORY AFFAIRS.
The Unfunded Mandates Reform Act of 1995 (Public Law 104-4; 2
U.S.C. 1511 et seq.) is amended--
(1) in section 103(c) (2 U.S.C. 1511(c))--
(A) in the subsection heading, by striking ``Office
of Management and Budget'' and inserting ``Office of
Information and Regulatory Affairs''; and
(B) by striking ``Director of the Office of
Management and Budget'' and inserting ``Administrator
of the Office of Information and Regulatory Affairs'';
(2) in section 205(c) (2 U.S.C. 1535(c))--
(A) in the subsection heading, by striking ``OMB'';
and
(B) by striking ``Director of the Office of
Management and Budget'' and inserting ``Administrator
of the Office of Information and Regulatory Affairs'';
and
(3) in section 206 (2 U.S.C. 1536), by striking ``Director
of the Office of Management and Budget'' and inserting
``Administrator of the Office of Information and Regulatory
Affairs''.
SEC. 407. APPLYING SUBSTANTIVE POINT OF ORDER TO PRIVATE SECTOR
MANDATES.
Section 425(a)(2) of the Congressional Budget Act of 1974 (2 U.S.C.
658d(a)(2)) is amended--
(1) by striking ``Federal intergovernmental mandates'' and
inserting ``Federal mandates''; and
(2) by inserting ``or 424(b)(1)'' after ``section
424(a)(1)''.
SEC. 408. REGULATORY PROCESS AND PRINCIPLES.
Section 201 of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1531) is amended to read as follows:
``SEC. 201. REGULATORY PROCESS AND PRINCIPLES.
``(a) In General.--Each agency shall, unless otherwise expressly
prohibited by law, assess the effects of Federal regulatory actions on
State, local, and tribal governments and the private sector (other than
to the extent that such regulatory actions incorporate requirements
specifically set forth in law) in accordance with the following
principles:
``(1) Each agency shall identify the problem that it
intends to address (including, if applicable, the failures of
private markets or public institutions that warrant new agency
action) as well as assess the significance of that problem.
``(2) Each agency shall examine whether existing
regulations (or other law) have created, or contributed to, the
problem that a new regulation is intended to correct and
whether those regulations (or other law) should be modified to
achieve the intended goal of regulation more effectively.
``(3) Each agency shall identify and assess available
alternatives to direct regulation, including providing economic
incentives to encourage the desired behavior, such as user fees
or marketable permits, or providing information upon which
choices can be made by the public.
``(4) If an agency determines that a regulation is the best
available method of achieving the regulatory objective, it
shall design its regulations in the most cost-effective manner
to achieve the regulatory objective. In doing so, each agency
shall consider incentives for innovation, consistency,
predictability, the costs of enforcement and compliance (to the
government, regulated entities, and the public), flexibility,
distributive impacts, and equity.
``(5) Each agency shall assess both the costs and the
benefits of the intended regulation and, recognizing that some
costs and benefits are difficult to quantify, propose or adopt
a regulation, unless expressly prohibited by law, only upon a
reasoned determination that the benefits of the intended
regulation justify its costs.
``(6) Each agency shall base its decisions on the best
reasonably obtainable scientific, technical, economic, and
other information concerning the need for, and consequences of,
the intended regulation.
``(7) Each agency shall identify and assess alternative
forms of regulation and shall, to the extent feasible, specify
performance objectives, rather than specifying the behavior or
manner of compliance that regulated entities must adopt.
``(8) Each agency shall avoid regulations that are
inconsistent, incompatible, or duplicative with its other
regulations or those of other Federal agencies.
``(9) Each agency shall tailor its regulations to minimize
the costs of the cumulative impact of regulations.
``(10) Each agency shall draft its regulations to be simple
and easy to understand, with the goal of minimizing the
potential for uncertainty and litigation arising from such
uncertainty.
``(b) Regulatory Action Defined.--In this section, the term
`regulatory action' means any substantive action by an agency (normally
published in the Federal Register) that promulgates or is expected to
lead to the promulgation of a final rule or regulation, including
advance notices of proposed rulemaking and notices of proposed
rulemaking.''.
SEC. 409. EXPANDING THE SCOPE OF STATEMENTS TO ACCOMPANY SIGNIFICANT
REGULATORY ACTIONS.
(a) In General.--Subsection (a) of section 202 of the Unfunded
Mandates Reform Act of 1995 (2 U.S.C. 1532) is amended to read as
follows:
``(a) In General.--Unless otherwise expressly prohibited by law,
before promulgating any general notice of proposed rulemaking or any
final rule, or within six months after promulgating any final rule that
was not preceded by a general notice of proposed rulemaking, if the
proposed rulemaking or final rule includes a Federal mandate that may
result in an annual effect on State, local, or tribal governments, or
to the private sector, in the aggregate of $50,000,000 or more in any 1
year, the agency shall prepare a written statement containing the
following:
``(1) The text of the draft proposed rulemaking or final
rule, together with a reasonably detailed description of the
need for the proposed rulemaking or final rule and an
explanation of how the proposed rulemaking or final rule will
meet that need.
``(2) An assessment of the potential costs and benefits of
the proposed rulemaking or final rule, including an explanation
of the manner in which the proposed rulemaking or final rule is
consistent with a statutory requirement and avoids undue
interference with State, local, and tribal governments in the
exercise of their governmental functions.
``(3) A qualitative and quantitative assessment, including
the underlying analysis, of benefits anticipated from the
proposed rulemaking or final rule (such as the promotion of the
efficient functioning of the economy and private markets, the
enhancement of health and safety, the protection of the natural
environment, and the elimination or reduction of discrimination
or bias).
``(4) A qualitative and quantitative assessment, including
the underlying analysis, of costs anticipated from the proposed
rulemaking or final rule (such as the direct costs both to the
Government in administering the final rule and to businesses
and others in complying with the final rule, and any adverse
effects on the efficient functioning of the economy, private
markets (including productivity, employment, and international
competitiveness), health, safety, and the natural environment);
``(5) Estimates by the agency, if and to the extent that
the agency determines that accurate estimates are reasonably
feasible, of--
``(A) the future compliance costs of the Federal
mandate; and
``(B) any disproportionate budgetary effects of the
Federal mandate upon any particular regions of the
nation or particular State, local, or tribal
governments, urban or rural or other types of
communities, or particular segments of the private
sector.
``(6)(A) A detailed description of the extent of the
agency's prior consultation with the private sector and elected
representatives (under section 204) of the affected State,
local, and tribal governments.
``(B) A detailed summary of the comments and concerns that
were presented by the private sector and State, local, or
tribal governments either orally or in writing to the agency.
``(C) A detailed summary of the agency's evaluation of
those comments and concerns.
``(7) A detailed summary of how the agency complied with
each of the regulatory principles described in section 201.''.
(b) Requirement for Detailed Summary.--Subsection (b) of section
202 of such Act is amended by inserting ``detailed'' before
``summary''.
SEC. 410. ENHANCED STAKEHOLDER CONSULTATION.
Section 204 of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1534) is amended--
(1) in the section heading, by inserting ``and private
sector'' before ``input'';
(2) in subsection (a)--
(A) by inserting ``, and impacted parties within
the private sector (including small business),'' after
``on their behalf)'';
(B) by striking ``Federal intergovernmental
mandates'' and inserting ``Federal mandates''; and
(3) by amending subsection (c) to read as follows:
``(c) Guidelines.--For appropriate implementation of subsections
(a) and (b) consistent with applicable laws and regulations, the
following guidelines shall be followed:
``(1) Consultations shall take place as early as possible,
before issuance of a notice of proposed rulemaking, continue
through the final rule stage, and be integrated explicitly into
the rulemaking process.
``(2) Agencies shall consult with a wide variety of State,
local, and tribal officials and impacted parties within the
private sector (including small businesses). Geographic,
political, and other factors that may differentiate varying
points of view should be considered.
``(3) Agencies should estimate benefits and costs to assist
with these consultations. The scope of the consultation should
reflect the cost and significance of the Federal mandate being
considered.
``(4) Agencies shall, to the extent practicable--
``(A) seek out the views of State, local, and
tribal governments, and impacted parties within the
private sector (including small business), on costs,
benefits, and risks; and
``(B) solicit ideas about alternative methods of
compliance and potential flexibilities, and input on
whether the Federal regulation will harmonize with and
not duplicate similar laws in other levels of
government.
``(5) Consultations shall address the cumulative impact of
regulations on the affected entities.
``(6) Agencies may accept electronic submissions of
comments by relevant parties but may not use those comments as
the sole method of satisfying the guidelines in this
subsection.''.
SEC. 411. NEW AUTHORITIES AND RESPONSIBILITIES FOR OFFICE OF
INFORMATION AND REGULATORY AFFAIRS.
Section 208 of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1538) is amended to read as follows:
``SEC. 208. OFFICE OF INFORMATION AND REGULATORY AFFAIRS
RESPONSIBILITIES.
``(a) In General.--The Administrator of the Office of Information
and Regulatory Affairs shall provide meaningful guidance and oversight
so that each agency's regulations for which a written statement is
required under section 202 are consistent with the principles and
requirements of this title, as well as other applicable laws, and do
not conflict with the policies or actions of another agency. If the
Administrator determines that an agency's regulations for which a
written statement is required under section 202 do not comply with such
principles and requirements, are not consistent with other applicable
laws, or conflict with the policies or actions of another agency, the
Administrator shall identify areas of non-compliance, notify the
agency, and request that the agency comply before the agency finalizes
the regulation concerned.
``(b) Annual Statements to Congress on Agency Compliance.--The
Director of the Office of Information and Regulatory Affairs annually
shall submit to Congress, including the Committee on Homeland Security
and Governmental Affairs of the Senate and the Committee on Oversight
and Government Reform of the House of Representatives, a written report
detailing compliance by each agency with the requirements of this title
that relate to regulations for which a written statement is required by
section 202, including activities undertaken at the request of the
Director to improve compliance, during the preceding reporting period.
The report shall also contain an appendix detailing compliance by each
agency with section 204.''.
SEC. 412. RETROSPECTIVE ANALYSIS OF EXISTING FEDERAL REGULATIONS.
The Unfunded Mandates Reform Act of 1995 (Public Law 104-4; 2
U.S.C. 1511 et seq.) is amended--
(1) by redesignating section 209 as section 210; and
(2) by inserting after section 208 the following new
section 209:
``SEC. 209. RETROSPECTIVE ANALYSIS OF EXISTING FEDERAL REGULATIONS.
``(a) Requirement.--At the request of the chairman or ranking
minority member of a standing or select committee of the House of
Representatives or the Senate, an agency shall conduct a retrospective
analysis of an existing Federal regulation promulgated by an agency.
``(b) Report.--Each agency conducting a retrospective analysis of
existing Federal regulations pursuant to subsection (a) shall submit to
the chairman of the relevant committee, Congress, and the Comptroller
General a report containing, with respect to each Federal regulation
covered by the analysis--
``(1) a copy of the Federal regulation;
``(2) the continued need for the Federal regulation;
``(3) the nature of comments or complaints received
concerning the Federal regulation from the public since the
Federal regulation was promulgated;
``(4) the extent to which the Federal regulation overlaps,
duplicates, or conflicts with other Federal regulations, and,
to the extent feasible, with State and local governmental
rules;
``(5) the degree to which technology, economic conditions,
or other factors have changed in the area affected by the
Federal regulation;
``(6) a complete analysis of the retrospective direct costs
and benefits of the Federal regulation that considers studies
done outside the Federal Government (if any) estimating such
costs or benefits; and
``(7) any litigation history challenging the Federal
regulation.''.
SEC. 413. EXPANSION OF JUDICIAL REVIEW.
Section 401(a) of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1571(a)) is amended--
(1) in paragraphs (1) and (2)(A)--
(A) by striking ``sections 202 and 203(a)(1) and
(2)'' each place it appears and inserting ``sections
201, 202, 203(a)(1) and (2), and 205(a) and (b)''; and
(B) by striking ``only'' each place it appears;
(2) in paragraph (2)(B), by striking ``section 202'' and
all that follows through the period at the end and inserting
the following: ``section 202, prepare the written plan under
section 203(a)(1) and (2), or comply with section 205(a) and
(b), a court may compel the agency to prepare such written
statement, prepare such written plan, or comply with such
section.''; and
(3) in paragraph (3), by striking ``written statement or
plan is required'' and all that follows through ``shall not''
and inserting the following: ``written statement under section
202, a written plan under section 203(a)(1) and (2), or
compliance with sections 201 and 205(a) and (b) is required,
the inadequacy or failure to prepare such statement (including
the inadequacy or failure to prepare any estimate, analysis,
statement, or description), to prepare such written plan, or to
comply with such section may''.
TITLE V--IMPROVED COORDINATION OF AGENCY ACTIONS ON ENVIRONMENTAL
DOCUMENTS
SEC. 501. SHORT TITLE.
This title may be cited as the ``Responsibly And Professionally
Invigorating Development Act of 2012'' or as the ``RAPID Act''.
SEC. 502. COORDINATION OF AGENCY ADMINISTRATIVE OPERATIONS FOR
EFFICIENT DECISIONMAKING.
(a) In General.--Part I of chapter 5 of title 5, United States
Code, is amended by inserting after subchapter II the following:
``SUBCHAPTER IIA--INTERAGENCY COORDINATION REGARDING PERMITTING
``Sec. 560. Coordination of agency administrative operations for
efficient decisionmaking
``(a) Congressional Declaration of Purpose.--The purpose of this
subchapter is to establish a framework and procedures to streamline,
increase the efficiency of, and enhance coordination of agency
administration of the regulatory review, environmental decisionmaking,
and permitting process for projects undertaken, reviewed, or funded by
Federal agencies. This subchapter will ensure that agencies administer
the regulatory process in a manner that is efficient so that citizens
are not burdened with regulatory excuses and time delays.
``(b) Definitions.--For purposes of this subchapter, the term--
``(1) `agency' means any agency, department, or other unit
of Federal, State, local, or Indian tribal government;
``(2) `category of projects' means 2 or more projects
related by project type, potential environmental impacts,
geographic location, or another similar project feature or
characteristic;
``(3) `environmental assessment' means a concise public
document for which a Federal agency is responsible that serves
to--
``(A) briefly provide sufficient evidence and
analysis for determining whether to prepare an
environmental impact statement or a finding of no
significant impact;
``(B) aid an agency's compliance with NEPA when no
environmental impact statement is necessary; and
``(C) facilitate preparation of an environmental
impact statement when one is necessary;
``(4) `environmental impact statement' means the detailed
statement of significant environmental impacts required to be
prepared under NEPA;
``(5) `environmental review' means the Federal agency
procedures for preparing an environmental impact statement,
environmental assessment, categorical exclusion, or other
document under NEPA;
``(6) `environmental decisionmaking process' means the
Federal agency procedures for undertaking and completion of any
environmental permit, decision, approval, review, or study
under any Federal law other than NEPA for a project subject to
an environmental review;
``(7) `environmental document' means an environmental
assessment or environmental impact statement, and includes any
supplemental document or document prepared pursuant to a court
order;
``(8) `finding of no significant impact' means a document
by a Federal agency briefly presenting the reasons why a
project, not otherwise subject to a categorical exclusion, will
not have a significant effect on the human environment and for
which an environmental impact statement therefore will not be
prepared;
``(9) `lead agency' means the Federal agency preparing or
responsible for preparing the environmental document;
``(10) `NEPA' means the National Environmental Policy Act
of 1969 (42 U.S.C. 4321 et seq.);
``(11) `project' means major Federal actions that are
construction activities undertaken with Federal funds or that
are construction activities that require approval by a permit
or regulatory decision issued by a Federal agency;
``(12) `project sponsor' means the agency or other entity,
including any private or public-private entity, that seeks
approval for a project or is otherwise responsible for
undertaking a project; and
``(13) `record of decision' means a document prepared by a
lead agency under NEPA following an environmental impact
statement that states the lead agency's decision, identifies
the alternatives considered by the agency in reaching its
decision and states whether all practicable means to avoid or
minimize environmental harm from the alternative selected have
been adopted, and if not, why they were not adopted.
``(c) Preparation of Environmental Documents.--Upon the request of
the lead agency, the project sponsor shall be authorized to prepare any
document for purposes of an environmental review required in support of
any project or approval by the lead agency if the lead agency furnishes
oversight in such preparation and independently evaluates such document
and the document is approved and adopted by the lead agency prior to
taking any action or making any approval based on such document.
``(d) Adoption and Use of Documents.--
``(1) Documents prepared under nepa.--
``(A) Not more than 1 environmental impact
statement and 1 environmental assessment shall be
prepared under NEPA for a project (except for
supplemental environmental documents prepared under
NEPA or environmental documents prepared pursuant to a
court order), and, except as otherwise provided by law,
the lead agency shall prepare the environmental impact
statement or environmental assessment. After the lead
agency issues a record of decision, no Federal agency
responsible for making any approval for that project
may rely on a document other than the environmental
document prepared by the lead agency.
``(B) Upon the request of a project sponsor, a lead
agency may adopt, use, or rely upon secondary and
cumulative impact analyses included in any
environmental document prepared under NEPA for projects
in the same geographic area where the secondary and
cumulative impact analyses provide information and data
that pertains to the NEPA decision for the project
under review.
``(2) State environmental documents; supplemental
documents.--
``(A) Upon the request of a project sponsor, a lead
agency may adopt a document that has been prepared for
a project under State laws and procedures as the
environmental impact statement or environmental
assessment for the project, provided that the State
laws and procedures under which the document was
prepared provide environmental protection and
opportunities for public involvement that are
substantially equivalent to NEPA.
``(B) An environmental document adopted under
subparagraph (A) is deemed to satisfy the lead agency's
obligation under NEPA to prepare an environmental
impact statement or environmental assessment.
``(C) In the case of a document described in
subparagraph (A), during the period after preparation
of the document but before its adoption by the lead
agency, the lead agency shall prepare and publish a
supplement to that document if the lead agency
determines that--
``(i) a significant change has been made to
the project that is relevant for purposes of
environmental review of the project; or
``(ii) there have been significant changes
in circumstances or availability of information
relevant to the environmental review for the
project.
``(D) If the agency prepares and publishes a
supplemental document under subparagraph (C), the lead
agency may solicit comments from agencies and the
public on the supplemental document for a period of not
more than 45 days beginning on the date of the
publication of the supplement.
``(E) A lead agency shall issue its record of
decision or finding of no significant impact, as
appropriate, based upon the document adopted under
subparagraph (A), and any supplements thereto.
``(3) Contemporaneous projects.--If the lead agency
determines that there is a reasonable likelihood that the
project will have similar environmental impacts as a similar
project in geographical proximity to the project, and that
similar project was subject to environmental review or similar
State procedures within the 5 year period immediately preceding
the date that the lead agency makes that determination, the
lead agency may adopt the environmental document that resulted
from that environmental review or similar State procedure. The
lead agency may adopt such an environmental document, if it is
prepared under State laws and procedures only upon making a
favorable determination on such environmental document pursuant
to paragraph (2)(A).
``(e) Participating Agencies.--
``(1) In general.--The lead agency shall be responsible for
inviting and designating participating agencies in accordance
with this subsection. The lead agency shall provide the
invitation or notice of the designation in writing.
``(2) Federal participating agencies.--Any Federal agency
that is required to adopt the environmental document of the
lead agency for a project shall be designated as a
participating agency and shall collaborate on the preparation
of the environmental document, unless the Federal agency
informs the lead agency, in writing, by a time specified by the
lead agency in the designation of the Federal agency that the
Federal agency--
``(A) has no jurisdiction or authority with respect
to the project;
``(B) has no expertise or information relevant to
the project; and
``(C) does not intend to submit comments on the
project.
``(3) Invitation.--The lead agency shall identify, as early
as practicable in the environmental review for a project, any
agencies other than an agency described in paragraph (2) that
may have an interest in the project, including, where
appropriate, Governors of affected States, and heads of
appropriate tribal and local (including county) governments,
and shall invite such identified agencies and officials to
become participating agencies in the environmental review for
the project. The invitation shall set a deadline of 30 days for
responses to be submitted, which may only be extended by the
lead agency for good cause shown. Any agency that fails to
respond prior to the deadline shall be deemed to have declined
the invitation.
``(4) Effect of declining participating agency
invitation.--Any agency that declines a designation or
invitation by the lead agency to be a participating agency
shall be precluded from submitting comments on any document
prepared under NEPA for that project or taking any measures to
oppose, based on the environmental review, any permit, license,
or approval related to that project.
``(5) Effect of designation.--Designation as a
participating agency under this subsection does not imply that
the participating agency--
``(A) supports a proposed project; or
``(B) has any jurisdiction over, or special
expertise with respect to evaluation of, the project.
``(6) Cooperating agency.--A participating agency may also
be designated by a lead agency as a `cooperating agency' under
the regulations contained in part 1500 of title 40, Code of
Federal Regulations, as in effect on January 1, 2011.
Designation as a cooperating agency shall have no effect on
designation as participating agency. No agency that is not a
participating agency may be designated as a cooperating agency.
``(7) Concurrent reviews.--Each Federal agency shall--
``(A) carry out obligations of the Federal agency
under other applicable law concurrently and in
conjunction with the review required under NEPA; and
``(B) in accordance with the rules made by the
Council on Environmental Quality pursuant to subsection
(n)(1), make and carry out such rules, policies, and
procedures as may be reasonably necessary to enable the
agency to ensure completion of the environmental review
and environmental decisionmaking process in a timely,
coordinated, and environmentally responsible manner.
``(8) Comments.--Each participating agency shall limit its
comments on a project to areas that are within the authority
and expertise of such participating agency. Each participating
agency shall identify in such comments the statutory authority
of the participating agency pertaining to the subject matter of
its comments. The lead agency shall not act upon, respond to or
include in any document prepared under NEPA, any comment
submitted by a participating agency that concerns matters that
are outside of the authority and expertise of the commenting
participating agency.
``(f) Project Initiation Request.--
``(1) Notice.--A project sponsor shall provide the Federal
agency responsible for undertaking a project with notice of the
initiation of the project by providing a description of the
proposed project, the general location of the proposed project,
and a statement of any Federal approvals anticipated to be
necessary for the proposed project, for the purpose of
informing the Federal agency that the environmental review
should be initiated.
``(2) Lead agency initiation.--The agency receiving a
project initiation notice under paragraph (1) shall promptly
identify the lead agency for the project, and the lead agency
shall initiate the environmental review within a period of 45
days after receiving the notice required by paragraph (1) by
inviting or designating agencies to become participating
agencies, or, where the lead agency determines that no
participating agencies are required for the project, by taking
such other actions that are reasonable and necessary to
initiate the environmental review.
``(g) Alternatives Analysis.--
``(1) Participation.--As early as practicable during the
environmental review, but no later than during scoping for a
project requiring the preparation of an environmental impact
statement, the lead agency shall provide an opportunity for
involvement by cooperating agencies in determining the range of
alternatives to be considered for a project.
``(2) Range of alternatives.--Following participation under
paragraph (1), the lead agency shall determine the range of
alternatives for consideration in any document which the lead
agency is responsible for preparing for the project, subject to
the following limitations:
``(A) No evaluation of certain alternatives.--No
Federal agency shall evaluate any alternative that was
identified but not carried forward for detailed
evaluation in an environmental document or evaluated
and not selected in any environmental document prepared
under NEPA for the same project.
``(B) Only feasible alternatives evaluated.--Where
a project is being constructed, managed, funded, or
undertaken by a project sponsor that is not a Federal
agency, Federal agencies shall only be required to
evaluate alternatives that the project sponsor could
feasibly undertake, consistent with the purpose of and
the need for the project, including alternatives that
can be undertaken by the project sponsor and that are
technically and economically feasible.
``(3) Methodologies.--
``(A) In general.--The lead agency shall determine,
in collaboration with cooperating agencies at
appropriate times during the environmental review, the
methodologies to be used and the level of detail
required in the analysis of each alternative for a
project. The lead agency shall include in the
environmental document a description of the
methodologies used and how the methodologies were
selected.
``(B) No evaluation of inappropriate
alternatives.--When a lead agency determines that an
alternative does not meet the purpose and need for a
project, that alternative is not required to be
evaluated in detail in an environmental document.
``(4) Preferred alternative.--At the discretion of the lead
agency, the preferred alternative for a project, after being
identified, may be developed to a higher level of detail than
other alternatives in order to facilitate the development of
mitigation measures or concurrent compliance with other
applicable laws if the lead agency determines that the
development of such higher level of detail will not prevent the
lead agency from making an impartial decision as to whether to
accept another alternative which is being considered in the
environmental review.
``(5) Employment analysis.--The evaluation of each
alternative in an environmental impact statement or an
environmental assessment shall identify the potential effects
of the alternative on employment, including potential short-
term and long-term employment increases and reductions and
shifts in employment.
``(h) Coordination and Scheduling.--
``(1) Coordination plan.--
``(A) In general.--The lead agency shall establish
and implement a plan for coordinating public and agency
participation in and comment on the environmental
review for a project or category of projects to
facilitate the expeditious resolution of the
environmental review.
``(B) Schedule.--
``(i) In general.--The lead agency shall
establish as part of the coordination plan for
a project, after consultation with each
participating agency and, where applicable, the
project sponsor, a schedule for completion of
the environmental review. The schedule shall
include deadlines, consistent with subsection
(i), for decisions under any other Federal laws
(including the issuance or denial of a permit
or license) relating to the project that is
covered by the schedule.
``(ii) Factors for consideration.--In
establishing the schedule, the lead agency
shall consider factors such as--
``(I) the responsibilities of
participating agencies under applicable
laws;
``(II) resources available to the
participating agencies;
``(III) overall size and complexity
of the project;
``(IV) overall schedule for and
cost of the project;
``(V) the sensitivity of the
natural and historic resources that
could be affected by the project; and
``(VI) the extent to which similar
projects in geographic proximity were
recently subject to environmental
review or similar State procedures.
``(iii) Compliance with the schedule.--
``(I) All participating agencies
shall comply with the time periods
established in the schedule or with any
modified time periods, where the lead
agency modifies the schedule pursuant
to subparagraph (D).
``(II) The lead agency shall
disregard and shall not respond to or
include in any document prepared under
NEPA, any comment or information
submitted or any finding made by a
participating agency that is outside of
the time period established in the
schedule or modification pursuant to
subparagraph (D) for that agency's
comment, submission or finding.
``(III) If a participating agency
fails to object in writing to a lead
agency decision, finding or request for
concurrence within the time period
established under law or by the lead
agency, the agency shall be deemed to
have concurred in the decision, finding
or request.
``(C) Consistency with other time periods.--A
schedule under subparagraph (B) shall be consistent
with any other relevant time periods established under
Federal law.
``(D) Modification.--The lead agency may--
``(i) lengthen a schedule established under
subparagraph (B) for good cause; and
``(ii) shorten a schedule only with the
concurrence of the cooperating agencies.
``(E) Dissemination.--A copy of a schedule under
subparagraph (B), and of any modifications to the
schedule, shall be--
``(i) provided within 15 days of completion
or modification of such schedule to all
participating agencies and to the project
sponsor; and
``(ii) made available to the public.
``(F) Roles and responsibility of lead agency.--
With respect to the environmental review for any
project, the lead agency shall have authority and
responsibility to take such actions as are necessary
and proper, within the authority of the lead agency, to
facilitate the expeditious resolution of the
environmental review for the project.
``(i) Deadlines.--The following deadlines shall apply to any
project subject to review under NEPA and any decision under any Federal
law relating to such project (including the issuance or denial of a
permit or license or any required finding):
``(1) Environmental review deadlines.--The lead agency
shall complete the environmental review within the following
deadlines:
``(A) Environmental impact statement projects.--For
projects requiring preparation of an environmental
impact statement--
``(i) the lead agency shall issue an
environmental impact statement within 2 years
after the earlier of the date the lead agency
receives the project initiation request or a
Notice of Intent to Prepare an Environmental
Impact Statement is published in the Federal
Register; and
``(ii) in circumstances where the lead
agency has prepared an environmental assessment
and determined that an environmental impact
statement will be required, the lead agency
shall issue the environmental impact statement
within 2 years after the date of publication of
the Notice of Intent to Prepare an
Environmental Impact Statement in the Federal
Register.
``(B) Environmental assessment projects.--For
projects requiring preparation of an environmental
assessment, the lead agency shall issue a finding of no
significant impact or publish a Notice of Intent to
Prepare an Environmental Impact Statement in the
Federal Register within 1 year after the earlier of the
date the lead agency receives the project initiation
request, makes a decision to prepare an environmental
assessment, or sends out participating agency
invitations.
``(2) Extensions.--
``(A) Requirements.--The environmental review
deadlines may be extended only if--
``(i) a different deadline is established
by agreement of the lead agency, the project
sponsor, and all participating agencies; or
``(ii) the deadline is extended by the lead
agency for good cause.
``(B) Limitation.--The environmental review shall
not be extended by more than 1 year for a project
requiring preparation of an environmental impact
statement or by more than 180 days for a project
requiring preparation of an environmental assessment.
``(3) Environmental review comments.--
``(A) Comments on draft environmental impact
statement.--For comments by agencies and the public on
a draft environmental impact statement, the lead agency
shall establish a comment period of not more than 60
days after publication in the Federal Register of
notice of the date of public availability of such
document, unless--
``(i) a different deadline is established
by agreement of the lead agency, the project
sponsor, and all participating agencies; or
``(ii) the deadline is extended by the lead
agency for good cause.
``(B) Other comments.--For all other comment
periods for agency or public comments in the
environmental review process, the lead agency shall
establish a comment period of no more than 30 days from
availability of the materials on which comment is
requested, unless--
``(i) a different deadline is established
by agreement of the lead agency, the project
sponsor, and all participating agencies; or
``(ii) the deadline is extended by the lead
agency for good cause.
``(4) Deadlines for decisions under other laws.--
Notwithstanding any other provision of law, in any case in
which a decision under any other Federal law relating to the
undertaking of a project being reviewed under NEPA (including
the issuance or denial of a permit or license) is required to
be made, the following deadlines shall apply:
``(A) Decisions prior to record of decision or
finding of no significant impact.--If a Federal agency
is required to approve, or otherwise to act upon, a
permit, license, or other similar application for
approval related to a project prior to the record of
decision or finding of no significant impact, such
Federal agency shall approve or otherwise act not later
than the end of a 90 day period beginning--
``(i) after all other relevant agency
review related to the project is complete; and
``(ii) after the lead agency publishes a
notice of the availability of the final
environmental impact statement or issuance of
other final environmental documents, or no
later than such other date that is otherwise
required by law, whichever event occurs first.
``(B) Other decisions.--With regard to any approval
or other action related to a project by a Federal
agency that is not subject to subparagraph (A), each
Federal agency shall approve or otherwise act not later
than the end of a period of 180 days beginning--
``(i) after all other relevant agency
review related to the project is complete; and
``(ii) after the lead agency issues the
record of decision or finding of no significant
impact, unless a different deadline is
established by agreement of the Federal agency,
lead agency, and the project sponsor, where
applicable, or the deadline is extended by the
Federal agency for good cause, provided that
such extension shall not extend beyond a period
that is 1 year after the lead agency issues the
record of decision or finding of no significant
impact.
``(C) Failure to act.--In the event that any
Federal agency fails to approve, or otherwise to act
upon, a permit, license, or other similar application
for approval related to a project within the applicable
deadline described in subparagraph (A) or (B), the
permit, license, or other similar application shall be
deemed approved by such agency and the agency shall
take action in accordance with such approval within 30
days of the applicable deadline described in
subparagraph (A) or (B).
``(D) Final agency action.--Any approval under
subparagraph (C) is deemed to be final agency action,
and may not be reversed by any agency. In any action
under chapter 7 seeking review of such a final agency
action, the court may not set aside such agency action
by reason of that agency action having occurred under
this paragraph.
``(j) Issue Identification and Resolution.--
``(1) Cooperation.--The lead agency and the participating
agencies shall work cooperatively in accordance with this
section to identify and resolve issues that could delay
completion of the environmental review or could result in
denial of any approvals required for the project under
applicable laws.
``(2) Lead agency responsibilities.--The lead agency shall
make information available to the participating agencies as
early as practicable in the environmental review regarding the
environmental, historic, and socioeconomic resources located
within the project area and the general locations of the
alternatives under consideration. Such information may be based
on existing data sources, including geographic information
systems mapping.
``(3) Participating agency responsibilities.--Based on
information received from the lead agency, participating
agencies shall identify, as early as practicable, any issues of
concern regarding the project's potential environmental,
historic, or socioeconomic impacts. In this paragraph, issues
of concern include any issues that could substantially delay or
prevent an agency from granting a permit or other approval that
is needed for the project.
``(4) Issue resolution.--
``(A) Meeting of participating agencies.--At any
time upon request of a project sponsor, the lead agency
shall promptly convene a meeting with the relevant
participating agencies and the project sponsor, to
resolve issues that could delay completion of the
environmental review or could result in denial of any
approvals required for the project under applicable
laws.
``(B) Notice that resolution cannot be achieved.--
If a resolution cannot be achieved within 30 days
following such a meeting and a determination by the
lead agency that all information necessary to resolve
the issue has been obtained, the lead agency shall
notify the heads of all participating agencies, the
project sponsor, and the Council on Environmental
Quality for further proceedings in accordance with
section 204 of NEPA, and shall publish such
notification in the Federal Register.
``(k) Report to Congress.--The head of each Federal agency shall
report annually to Congress--
``(1) the projects for which the agency initiated
preparation of an environmental impact statement or
environmental assessment;
``(2) the projects for which the agency issued a record of
decision or finding of no significant impact and the length of
time it took the agency to complete the environmental review
for each such project;
``(3) the filing of any lawsuits against the agency seeking
judicial review of a permit, license, or approval issued by the
agency for an action subject to NEPA, including the date the
complaint was filed, the court in which the complaint was
filed, and a summary of the claims for which judicial review
was sought; and
``(4) the resolution of any lawsuits against the agency
that sought judicial review of a permit, license, or approval
issued by the agency for an action subject to NEPA.
``(l) Limitations on Claims.--
``(1) In general.--Notwithstanding any other provision of
law, a claim arising under Federal law seeking judicial review
of a permit, license, or approval issued by a Federal agency
for an action subject to NEPA shall be barred unless--
``(A) in the case of a claim pertaining to a
project for which an environmental review was conducted
and an opportunity for comment was provided, the claim
is filed by a party that submitted a comment during the
environmental review on the issue on which the party
seeks judicial review, and such comment was
sufficiently detailed to put the lead agency on notice
of the issue upon which the party seeks judicial
review; and
``(B) filed within 180 days after publication of a
notice in the Federal Register announcing that the
permit, license, or approval is final pursuant to the
law under which the agency action is taken, unless a
shorter time is specified in the Federal law pursuant
to which judicial review is allowed.
``(2) New information.--The preparation of a supplemental
environmental impact statement, when required, is deemed a
separate final agency action and the deadline for filing a
claim for judicial review of such action shall be 180 days
after the date of publication of a notice in the Federal
Register announcing the record of decision for such action. Any
claim challenging agency action on the basis of information in
a supplemental environmental impact statement shall be limited
to challenges on the basis of that information.
``(3) Rule of construction.--Nothing in this subsection
shall be construed to create a right to judicial review or
place any limit on filing a claim that a person has violated
the terms of a permit, license, or approval.
``(m) Categories of Projects.--The authorities granted under this
subchapter may be exercised for an individual project or a category of
projects.
``(n) Effective Date.--The requirements of this subchapter shall
apply only to environmental reviews and environmental decisionmaking
processes initiated after the date of enactment of this subchapter.
``(o) Applicability.--Except as provided in subsection (p), this
subchapter applies, according to the provisions thereof, to all
projects for which a Federal agency is required to undertake an
environmental review or make a decision under an environmental law for
a project for which a Federal agency is undertaking an environmental
review.
``(p) Savings Clause.--Nothing in this section shall be construed
to supersede, amend, or modify sections 134, 135, 139, 325, 326, and
327 of title 23, United States Code, sections 5303 and 5304 of title
49, United States Code, or subtitle C of title I of division A of the
Moving Ahead for Progress in the 21st Century Act and the amendments
made by such subtitle (Public Law 112-141).''.
(b) Technical Amendment.--The table of sections for chapter 5 of
title 5, United States Code, is amended by inserting after the item
relating to subchapter II the following:
``SUBCHAPTER IIA--INTERAGENCY COORDINATION REGARDING PERMITTING
``560. Coordination of agency administrative operations for efficient
decisionmaking.''.
(c) Regulations.--
(1) Council on environmental quality.--Not later than 180
days after the date of enactment of this title, the Council on
Environmental Quality shall amend the regulations contained in
part 1500 of title 40, Code of Federal Regulations, to
implement the provisions of this title and the amendments made
by this title, and shall by rule designate States with laws and
procedures that satisfy the criteria under section 560(d)(2)(A)
of title 5, United States Code.
(2) Federal agencies.--Not later than 120 days after the
date that the Council on Environmental Quality amends the
regulations contained in part 1500 of title 40, Code of Federal
Regulations, to implement the provisions of this title and the
amendments made by this title, each Federal agency with
regulations implementing the National Environmental Policy Act
of 1969 (42 U.S.C. 4321 et seq.) shall amend such regulations
to implement the provisions of this subchapter.
TITLE VI--SECURITIES AND EXCHANGE COMMISSION REGULATORY ACCOUNTABILITY
SEC. 601. SHORT TITLE.
This title may be cited as the ``SEC Regulatory Accountability
Act''.
SEC. 602. CONSIDERATION BY THE SECURITIES AND EXCHANGE COMMISSION OF
THE COSTS AND BENEFITS OF ITS REGULATIONS AND CERTAIN
OTHER AGENCY ACTIONS.
Section 23 of the Securities Exchange Act of 1934 (15 U.S.C. 78w)
is amended by adding at the end the following:
``(e) Consideration of Costs and Benefits.--
``(1) In general.--Before issuing a regulation under the
securities laws, as defined in section 3(a), the Commission
shall--
``(A) clearly identify the nature and source of the
problem that the proposed regulation is designed to
address, as well as assess the significance of that
problem, to enable assessment of whether any new
regulation is warranted;
``(B) utilize the Chief Economist to assess the
costs and benefits, both qualitative and quantitative,
of the intended regulation and propose or adopt a
regulation only on a reasoned determination that the
benefits of the intended regulation justify the costs
of the regulation;
``(C) identify and assess available alternatives to
the regulation that were considered, including
modification of an existing regulation, together with
an explanation of why the regulation meets the
regulatory objectives more effectively than the
alternatives; and
``(D) ensure that any regulation is accessible,
consistent, written in plain language, and easy to
understand and shall measure, and seek to improve, the
actual results of regulatory requirements.
``(2) Considerations and actions.--
``(A) Required actions.--In deciding whether and
how to regulate, the Commission shall assess the costs
and benefits of available regulatory alternatives,
including the alternative of not regulating, and choose
the approach that maximizes net benefits. Specifically,
the Commission shall--
``(i) consistent with the requirements of
section 3(f) (15 U.S.C. 78c(f)), section 2(b)
of the Securities Act of 1933 (15 U.S.C.
77b(b)), section 202(c) of the Investment
Advisers Act of 1940 (15 U.S.C. 80b-2(c)), and
section 2(c) of the Investment Company Act of
1940 (15 U.S.C. 80a-2(c)), consider whether the
rulemaking will promote efficiency,
competition, and capital formation;
``(ii) evaluate whether, consistent with
obtaining regulatory objectives, the regulation
is tailored to impose the least burden on
society, including market participants,
individuals, businesses of differing sizes, and
other entities (including State and local
governmental entities), taking into account, to
the extent practicable, the cumulative costs of
regulations; and
``(iii) evaluate whether the regulation is
inconsistent, incompatible, or duplicative of
other Federal regulations.
``(B) Additional considerations.--In addition, in
making a reasoned determination of the costs and
benefits of a potential regulation, the Commission
shall, to the extent that each is relevant to the
particular proposed regulation, take into consideration
the impact of the regulation on--
``(i) investor choice;
``(ii) market liquidity in the securities
markets; and
``(iii) small businesses
``(3) Explanation and comments.--The Commission shall
explain in its final rule the nature of comments that it
received, including those from the industry or consumer groups
concerning the potential costs or benefits of the proposed rule
or proposed rule change, and shall provide a response to those
comments in its final rule, including an explanation of any
changes that were made in response to those comments and the
reasons that the Commission did not incorporate those industry
group concerns related to the potential costs or benefits in
the final rule.
``(4) Review of existing regulations.--Not later than 1
year after the date of enactment of the SEC Regulatory
Accountability Act, and every 5 years thereafter, the
Commission shall review its regulations to determine whether
any such regulations are outmoded, ineffective, insufficient,
or excessively burdensome, and shall modify, streamline,
expand, or repeal them in accordance with such review. In
reviewing any regulation (including, notwithstanding paragraph
(6), a regulation issued in accordance with formal rulemaking
provisions) that subjects issuers with a public float of
$250,000,000 or less to the attestation and reporting
requirements of section 404(b) of the Sarbanes-Oxley Act of
2002 (15 U.S.C. 7262(b)), the Commission shall specifically
take into account the large burden of such regulation when
compared to the benefit of such regulation.
``(5) Post-adoption impact assessment.--
``(A) In general.--Whenever the Commission adopts
or amends a regulation designated as a `major rule'
within the meaning of section 804(2) of title 5, United
States Code, it shall state, in its adopting release,
the following:
``(i) The purposes and intended
consequences of the regulation.
``(ii) Appropriate post-implementation
quantitative and qualitative metrics to measure
the economic impact of the regulation and to
measure the extent to which the regulation has
accomplished the stated purposes.
``(iii) The assessment plan that will be
used, consistent with the requirements of
subparagraph (B) and under the supervision of
the Chief Economist of the Commission, to
assess whether the regulation has achieved the
stated purposes.
``(iv) Any unintended or negative
consequences that the Commission foresees may
result from the regulation.
``(B) Requirements of assessment plan and report.--
``(i) Requirements of plan.--The assessment
plan required under this paragraph shall
consider the costs, benefits, and intended and
unintended consequences of the regulation. The
plan shall specify the data to be collected,
the methods for collection and analysis of the
data and a date for completion of the
assessment.
``(ii) Submission and publication of
report.--The Chief Economist shall submit the
completed assessment report to the Commission
no later than 2 years after the publication of
the adopting release, unless the Commission, at
the request of the Chief Economist, has
published at least 90 days before such date a
notice in the Federal Register extending the
date and providing specific reasons why an
extension is necessary. Within 7 days after
submission to the Commission of the final
assessment report, it shall be published in the
Federal Register for notice and comment. Any
material modification of the plan, as necessary
to assess unforeseen aspects or consequences of
the regulation, shall be promptly published in
the Federal Register for notice and comment.
``(iii) Data collection not subject to
notice and comment requirements.--If the
Commission has published its assessment plan
for notice and comment, specifying the data to
be collected and method of collection, at least
30 days prior to adoption of a final regulation
or amendment, such collection of data shall not
be subject to the notice and comment
requirements in section 3506(c) of title 44,
United States Code (commonly referred to as the
Paperwork Reduction Act). Any material
modifications of the plan that require
collection of data not previously published for
notice and comment shall also be exempt from
such requirements if the Commission has
published notice for comment in the Federal
Register of the additional data to be
collected, at least 30 days prior to initiation
of data collection.
``(iv) Final action.--Not later than 180
days after publication of the assessment report
in the Federal Register, the Commission shall
issue for notice and comment a proposal to
amend or rescind the regulation, or publish a
notice that the Commission has determined that
no action will be taken on the regulation. Such
a notice will be deemed a final agency action.
``(6) Covered regulations and other agency actions.--Solely
as used in this subsection, the term `regulation'--
``(A) means an agency statement of general
applicability and future effect that is designed to
implement, interpret, or prescribe law or policy or to
describe the procedure or practice requirements of an
agency, including rules, orders of general
applicability, interpretive releases, and other
statements of general applicability that the agency
intends to have the force and effect of law; and
``(B) does not include--
``(i) a regulation issued in accordance
with the formal rulemaking provisions of
section 556 or 557 of title 5, United States
Code;
``(ii) a regulation that is limited to
agency organization, management, or personnel
matters;
``(iii) a regulation promulgated pursuant
to statutory authority that expressly prohibits
compliance with this provision; and
``(iv) a regulation that is certified by
the agency to be an emergency action, if such
certification is published in the Federal
Register.''.
SEC. 603. SENSE OF CONGRESS RELATING TO OTHER REGULATORY ENTITIES.
It is the sense of the Congress that other regulatory entities,
including the Public Company Accounting Oversight Board, the Municipal
Securities Rulemaking Board, and any national securities association
registered under section 15A of the Securities Exchange Act of 1934 (15
U.S.C. 78o-3) should also follow the requirements of section 23(e) of
such Act, as added by this title.
SEC. 604. INTERPRETIVE GUIDANCE NULL AND VOID.
Notwithstanding any other provision of law, no interpretive
guidance issued by the Securities and Exchange Commission on or after
the effective date of this Act relating to ``Commission Guidance
Regarding Disclosure Related to Climate Change'', affecting parts 211,
231, and 249 of title 17, Code of Federal Regulations (as described in
Commission Release Nos. 33-9106; 34-61469; FR-82), or any successor
thereto, may take effect, and such guidance shall have no force or
effect with respect to any person on or after February 2, 2010.
SEC. 605. OTHER SEC ACTION PROHIBITED.
(a) Further Guidance Related to Climate Change.--The Commission may
not issue any interpretive guidance with respect to disclosures related
to climate change on or after the effective date of this Act.
(b) Voluntary Submissions.--The Commission may not issue any
interpretive guidance that would establish any requirements with
respect to the content of or format for any disclosures related to
climate change voluntarily submitted by any entity to the Commission on
or after the effective date of this Act.
(c) Civil and Administrative Actions.--No civil or administrative
action or proceeding pertaining to disclosures related to climate
change may be initiated by the Commission on or after the date of the
enactment of this Act and any such actions or proceedings pending on
such date shall be terminated.
(d) Rule of Construction.--Nothing in this section shall be
construed as to--
(1) prohibit the Commission from issuing interpretive
guidance with respect to disclosures related to non-
anthropogenic or natural climate variability observed over
comparable time periods; or
(2) terminate an administrative action or proceeding
pertaining to such disclosures.
TITLE VII--CONSIDERATION BY COMMODITY FUTURES TRADING COMMISSION OF
CERTAIN COSTS AND BENEFITS
SEC. 701. CONSIDERATION BY THE COMMODITY FUTURES TRADING COMMISSION OF
THE COSTS AND BENEFITS OF ITS REGULATIONS AND ORDERS.
Section 15(a) of the Commodity Exchange Act (7 U.S.C. 19(a)) is
amended by striking paragraphs (1) and (2) and inserting the following:
``(1) In general.--Before promulgating a regulation under
this Act or issuing an order (except as provided in paragraph
(3)), the Commission, through the Office of the Chief
Economist, shall assess the costs and benefits, both
qualitative and quantitative, of the intended regulation and
propose or adopt a regulation only on a reasoned determination
that the benefits of the intended regulation justify the costs
of the intended regulation (recognizing that some benefits and
costs are difficult to quantify). It must measure, and seek to
improve, the actual results of regulatory requirements.
``(2) Considerations.--In making a reasoned determination
of the costs and the benefits, the Commission shall evaluate--
``(A) considerations of protection of market
participants and the public;
``(B) considerations of the efficiency,
competitiveness, and financial integrity of futures and
swaps markets;
``(C) considerations of the impact on market
liquidity in the futures and swaps markets;
``(D) considerations of price discovery;
``(E) considerations of sound risk management
practices;
``(F) available alternatives to direct regulation;
``(G) the degree and nature of the risks posed by
various activities within the scope of its
jurisdiction;
``(H) whether, consistent with obtaining regulatory
objectives, the regulation is tailored to impose the
least burden on society, including market participants,
individuals, businesses of differing sizes, and other
entities (including small communities and governmental
entities), taking into account, to the extent
practicable, the cumulative costs of regulations;
``(I) whether the regulation is inconsistent,
incompatible, or duplicative of other Federal
regulations;
``(J) whether, in choosing among alternative
regulatory approaches, those approaches maximize net
benefits (including potential economic, environmental,
and other benefits, distributive impacts, and equity);
and
``(K) other public interest considerations.''.
TITLE VIII--ENSURING HIGH STANDARDS FOR AGENCY USE OF SCIENTIFIC
INFORMATION
SEC. 801. REQUIREMENT FOR FINAL GUIDELINES.
(a) In General.--Not later than January 1, 2013, each Federal
agency shall have in effect guidelines for ensuring and maximizing the
quality, objectivity, utility, and integrity of scientific information
relied upon by such agency.
(b) Content of Guidelines.--The guidelines described in subsection
(a), with respect to a Federal agency, shall ensure that--
(1) when scientific information is considered by the agency
in policy decisions--
(A) the information is subject to well-established
scientific processes, including peer review where
appropriate;
(B) the agency appropriately applies the scientific
information to the policy decision;
(C) except for information that is protected from
disclosure by law or administrative practice, the
agency makes available to the public the scientific
information considered by the agency;
(D) the agency gives greatest weight to information
that is based on experimental, empirical, quantifiable,
and reproducible data that is developed in accordance
with well-established scientific processes; and
(E) with respect to any proposed rule issued by the
agency, such agency follows procedures that include, to
the extent feasible and permitted by law, an
opportunity for public comment on all relevant
scientific findings;
(2) the agency has procedures in place to make policy
decisions only on the basis of the best reasonably obtainable
scientific, technical, economic, and other evidence and
information concerning the need for, consequences of, and
alternatives to the decision; and
(3) the agency has in place procedures to identify and
address instances in which the integrity of scientific
information considered by the agency may have been compromised,
including instances in which such information may have been the
product of a scientific process that was compromised.
(c) Approval Needed for Policy Decisions to Take Effect.--No policy
decision issued after January 1, 2013, by an agency subject to this
section may take effect prior to such date that the agency has in
effect guidelines under subsection (a) that have been approved by the
Director of the Office of Science and Technology Policy.
(d) Policy Decisions Not in Compliance.--A policy decision of an
agency that does not comply with guidelines approved under subsection
(c) shall be deemed to be arbitrary, capricious, an abuse of
discretion, and otherwise not in accordance with law.
(e) Definitions.--For purposes of this section:
(1) Agency.--The term ``agency'' has the meaning given such
term in section 551(1) of title 5, United States Code.
(2) Policy decision.--The term ``policy decision'' means,
with respect to an agency, an agency action as defined in
section 551(13) of title 5, United States Code, (other than an
adjudication, as defined in section 551(7) of such title), and
includes--
(A) the listing, labeling, or other identification
of a substance, product, or activity as hazardous or
creating risk to human health, safety, or the
environment; and
(B) agency guidance.
(3) Agency guidance.--The term ``agency guidance'' means an
agency statement of general applicability and future effect,
other than a regulatory action, that sets forth a policy on a
statutory, regulatory, or technical issue or on an
interpretation of a statutory or regulatory issue.
TITLE IX--TRACKING THE COST TO TAXPAYERS OF FEDERAL LITIGATION
SEC. 901. SHORT TITLE.
This title may be cited as the ``Tracking the Cost to Taxpayers of
Federal Litigation Act''.
SEC. 902. MODIFICATION OF EQUAL ACCESS TO JUSTICE PROVISIONS.
(a) Agency Proceedings.--Section 504 of title 5, United States
Code, is amended--
(1) in subsection (c)(1), by striking ``, United States
Code''; and
(2) by striking subsections (e) and (f) and inserting the
following:
``(e)(1) The Chairman of the Administrative Conference of the
United States, after consultation with the Chief Counsel for Advocacy
of the Small Business Administration, shall report annually to the
Congress on the amount of fees and other expenses awarded during the
preceding fiscal year pursuant to this section. The report shall
describe the number, nature, and amount of the awards, the claims
involved in the controversy, and any other relevant information that
may aid the Congress in evaluating the scope and impact of such awards.
Each agency shall provide the Chairman in a timely manner all
information necessary for the Chairman to comply with the requirements
of this subsection. The report shall be made available to the public
online.
``(2)(A) The report required by paragraph (1) shall account for all
payments of fees and other expenses awarded under this section that are
made pursuant to a settlement agreement, regardless of whether the
settlement agreement is sealed or otherwise subject to nondisclosure
provisions, except that any version of the report made available to the
public may not reveal any information the disclosure of which is
contrary to the national security of the United States.
``(B) The disclosure of fees and other expenses required under
subparagraph (A) does not affect any other information that is subject
to nondisclosure provisions in the settlement agreement.
``(f) The Chairman of the Administrative Conference shall create
and maintain online a searchable database containing the following
information with respect to each award of fees and other expenses under
this section:
``(1) The name of each party to whom the award was made.
``(2) The name of each counsel of record representing each
party to whom the award was made.
``(3) The agency to which the application for the award was
made.
``(4) The name of each counsel of record representing the
agency to which the application for the award was made.
``(5) The name of each administrative law judge, and the
name of any other agency employee serving in an adjudicative
role, in the adversary adjudication that is the subject of the
application for the award.
``(6) The amount of the award.
``(7) The names and hourly rates of each expert witness for
whose services the award was made under the application.
``(8) The basis for the finding that the position of the
agency concerned was not substantially justified.
``(g) The online searchable database described in subsection (f)
may not reveal any information the disclosure of which is prohibited by
law or court order, or the disclosure of which is contrary to the
national security of the United States.''.
(b) Court Cases.--Section 2412(d) of title 28, United States Code,
is amended by adding at the end the following:
``(5)(A) The Chairman of the Administrative Conference of the
United States shall report annually to the Congress on the amount of
fees and other expenses awarded during the preceding fiscal year
pursuant to this subsection. The report shall describe the number,
nature, and amount of the awards, the claims involved in each
controversy, and any other relevant information which may aid the
Congress in evaluating the scope and impact of such awards. Each agency
shall provide the Chairman with such information as is necessary for
the Chairman to comply with the requirements of this paragraph. The
report shall be made available to the public online.
``(B)(i) The report required by subparagraph (A) shall account for
all payments of fees and other expenses awarded under this subsection
that are made pursuant to a settlement agreement, regardless of whether
the settlement agreement is sealed or otherwise subject to
nondisclosure provisions, except that any version of the report made
available to the public may not reveal any information the disclosure
of which is contrary to the national security of the United States.
``(ii) The disclosure of fees and other expenses required under
clause (i) does not affect any other information that is subject to
nondisclosure provisions in the settlement agreement.
``(C) The Chairman of the Administrative Conference shall include
and clearly identify in the annual report under subparagraph (A), for
each case in which an award of fees and other expenses is included in
the report--
``(i) any amounts paid from section 1304 of title 31 for a
judgment in the case;
``(ii) the amount of the award of fees and other expenses;
and
``(iii) the statute under which the plaintiff filed suit.
``(6) The Chairman of the Administrative Conference shall create
and maintain online a searchable database containing the following
information with respect to each award of fees and other expenses under
this subsection:
``(A) The name of each party to whom the award was made.
``(B) The name of each counsel of record representing each
party to whom the award was made.
``(C) The agency involved in the case.
``(D) The name of each counsel of record representing the
agency involved in the case.
``(E) The name of each judge in the case, and the court in
which the case was heard.
``(F) The amount of the award.
``(G) The names and hourly rates of each expert witness for
whose services the award was made.
``(H) The basis for the finding that the position of the
agency concerned was not substantially justified.
``(7) The online searchable database described in paragraph (6) may
not reveal any information the disclosure of which is prohibited by law
or court order, or the disclosure of which is contrary to the national
security of the United States.
``(8) The Attorney General of the United States shall provide to
the Chairman of the Administrative Conference of the United States in a
timely manner all information necessary for the Chairman to carry out
the Chairman's responsibilities under this subsection.''.
(c) Clerical Amendment.--Section 2412(e) of title 28, United States
Code, is amended by striking ``of section 2412 of title 28, United
States Code,'' and inserting ``of this section''.
Passed the House of Representatives July 26, 2012.
Attest:
Clerk.
112th CONGRESS
2d Session
H. R. 4078
_______________________________________________________________________
AN ACT
To provide that no agency may take any significant regulatory action
until the unemployment rate is equal to or less than 6.0 percent.