H.R.4078 - Red Tape Reduction and Small Business Job Creation Act112th Congress (2011-2012)
Summary: H.R.4078 — 112th Congress (2011-2012)
Passed House amended (07/26/2012)
Red Tape Reduction and Small Business Job Creation Act - Title I: Regulatory Freeze for Jobs - Regulatory Freeze for Jobs Act of 2012 - (Sec. 102) Prohibits a federal agency from taking any significant regulatory action until the Secretary of Labor reports to the Director of the Office of Management and Budget (OMB) that the Bureau of Labor Statistics (BLS) average of monthly unemployment rates for any quarter is 6% or less.
(Sec. 103) Permits an agency to take a significant regulatory action notwithstanding the freeze imposed by this Act if: (1) the President determines by executive order that such action is necessary because of an imminent threat to health or safety or other emergency, for the enforcement of criminal laws, for national security, or to implement an international trade agreement; or (2) the Administrator of the Office of Information and Regulatory Affairs (OIRA) of OMB certifies in writing that such action is limited to repealing an existing rule. Provides for congressional waivers for significant regulatory actions that are not eligible for a presidential waiver but that are necessary to protect the public health, safety, or welfare upon submission of a request by the President.
(Sec. 104) Allows judicial review of: (1) any regulatory action taken in violation of this Act that adversely affects or aggrieves any individual, and (2) any determination by the President or the Secretary of Labor under this Act. Allows a court to suspend the granting of relief under this Act if the court finds by a preponderance of the evidence that the application or enforcement of a significant regulatory action is required to protect against an imminent and serious threat to national security.
Requires a court to award reasonable attorney's fees and costs to a small business (defined as a business that employs not more than 500 employees or that has a net worth of less than $7 million) that prevails in any civil action arising under this title.
(Sec. 105) Excludes from the definition of "federal agency" the Board of Governors of the Federal Reserve System, the Federal Open Market Committee, or the U.S. Postal Service (USPS).
Defines "significant regulatory action" as any regulatory action that is likely to result in a rule or guidance that the Administrator finds is likely to have an annual cost to the economy of $50 million or more or to 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.
Title II: Midnight Rule Relief - Midnight Rule Relief Act of 2012 - (Sec. 202) Prohibits a federal agency from proposing or finalizing during the moratorium period any midnight rule that the OIRA Administrator finds is likely to result in such an annual cost or to have such an adverse effect.
Defines "midnight rule" as an agency statement of general applicability and future effect that is issued during the moratorium period, that is intended to have the force and effect of law, and that is designed to: (1) implement, interpret, or prescribe law or policy; or (2) describe the procedure or practice requirements of an agency. Defines "moratorium period" as the day after the Tuesday next after the first Monday in November in every fourth year succeeding a presidential election through January 20 of the following year in which a President is not serving a consecutive term.
(Sec. 203) Exempts from the moratorium 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. Requires the Administrator, not later than 30 days after the beginning of a moratorium period, to identify and publish in the Federal Register a list of deadlines that are exempt.
(Sec. 204) Exempts from the moratorium any midnight rule that: (1) the President determines is necessary because of an imminent threat to health or safety or other emergency, to enforce criminal laws, to protect national security, or to implement an international trade agreement; or (2) the Administrator certifies in writing is limited to repealing an existing rule. Requires agency heads to publish in the Federal Register any midnight rule excluded from the moratorium period.
Title III: Regulatory Decrees and Settlements - Sunshine for Regulatory Decrees and Settlements Act of 2012 - (Sec. 302) Imposes new requirements upon a consent decree or settlement agreement in any 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 governments. Requires in any such action: (1) publication, including electronically, of the complaint, the consent decree or settlement agreement, and related documents in a readily accessible manner by the defendant agency; (2) conclusion of an opportunity for affected parties to intervene in an action before a party may file a motion for a consent decree or to dismiss the case pursuant to a settlement agreement; (3) referral to a mediation or alternative dispute resolution program after a motion to intervene is granted; (4) 60 days for public comment on a proposed consent decree or settlement agreement before it is filed with a court; and (5) approval by the Attorney General of any proposed consent decree or settlement agreement in cases litigated by the Department of Justice (DOJ) or by an agency head if the agency litigates a case independently.
Requires each agency to report to Congress annually on the number, identity, and content of complaints, consent decrees, and settlement agreements for the year, the statutory basis of each decree or agreement and its terms, and the award of attorney's fees or costs in actions resolved by such decrees or agreements.
(Sec. 303) Requires a court to grant de novo review to a previously entered consent decree if an agency files a motion to modify such decree on the basis that it is no longer fully in the public interest due to the agency's obligations to fulfill other duties or due to changed facts and circumstances.
Title IV: Unfunded Mandates Information and Transparency - Unfunded Mandates Information and Transparency Act of 2012 - (Sec. 402) States as the purpose of this title to: (1) improve the quality of the deliberations of Congress with respect to proposed federal mandates by providing Congress and the public with more complete information about the effects of such mandates and by ensuring that Congress acts on such mandates only after focused deliberation on their effects; and (2) 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) Amends the Congressional Budget Act of 1974 to: (1) require the Congressional Budget Office (CBO), at the request of the chairman or ranking member of a congressional committee, to conduct an assessment comparing the authorized level of funding in legislation 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; (2) modify the definition of "direct costs" to require CBO to consider, in accounting for the costs of federal mandates, forgone business profits, costs passed onto consumers and other entities, and behavioral changes; and (3) eliminate the exemption of independent regulatory agencies (other than the Board of Governors of the Federal Reserve System or the Federal Open Market Committee) from requirements under the Unfunded Mandates Reform Act of 1995 (UMRA);
(Sec. 406) Amends UMRA to: (1) transfer certain responsibilities under such Act from the Director of OMB to the OIRA Administrator; (2) set forth detailed criteria to guide agencies in assessing the effects of federal regulatory actions on state, local, and tribal governments and the private sector; (3) revise requirements for agency statements accompanying significant regulatory actions to require an analysis of the annual effect of a proposed final rule on state, local, or tribal governments or the private sector and to require all statements and summaries under UMRA to be detailed; (4) extend to the the private sector (including small businesses) the requirement for consultation with agencies in the development of regulatory proposals containing significant federal mandates; and (5) set forth detailed guidelines for such consultation.
(Sec. 411) Revises UMRA reporting requirements to require: (1) the Administrator to provide guidance and oversight so that agency regulations are consistent with the principles and policies of UMRA and do not conflict with the policies or actions of another agency; and (2) agencies to include in their annual compliance statements an appendix detailing consultation activities with state, local, and tribal governments and the private sector.
(Sec. 412) Amends UMRA to require an agency, at the request of the chairman or ranking member of a standing or select House or Senate Committee, to conduct a retrospective analysis of an existing regulation promulgated by such agency and submit to the chairman of the relevant committee, Congress, and the Comptroller General (GAO) a report on such regulation.
(Sec. 413) Expands judicial review under UMRA to include review of provisions of such Act relating to agency assessment of the effects of the regulatory process and agency selection of the least costly or least burdensome alternative to a regulatory mandate. Grants courts expanded powers to compel agencies to comply with UMRA reporting requirements.
Title V: Improved Coordination of Agency Actions on Environmental Documents - Responsibly And Professionally Invigorating Development Act of 2012 or the RAPID Act - (Sec. 502) Declares that the purpose of this title to is 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 under the National Environmental Policy Act of 1969 (NEPA) for major federal actions that are construction activities undertaken with federal funds or that require approval by a permit or regulatory decisions issued by a federal agency (defined as "projects" by this Act).
Authorizes project sponsors to prepare any document for purposes of an environmental review under NEPA if the lead agency (i.e., the agency preparing the environmental document) furnishes oversight in the preparation of such document and independently evaluates, approves, and adopts such document prior to taking action or making any approval based on such document.
Provides that not more than one environmental impact statement and one environmental assessment may be prepared for a project, except for supplemental environmental documents prepared under NEPA or pursuant to a court order.
Allows a lead agency to adopt, use, or rely upon environmental documents prepared under NEPA for projects in the same geographic area or documents prepared for a project under state laws if such laws provide environmental protection and opportunities for public involvement that are substantially equivalent to those provided in NEPA.
Requires a lead agency to invite and designate federal agencies to participate in a multiagency NEPA review process. Precludes any agency that declines to participate in such review process from submitting comments on, or taking measures to oppose: (1) a project; (2) any document prepared under NEPA for such project; or (3) any permit, license, or approval related to such project.
Imposes deadlines on various stages of the NEPA review process, including a two-year deadline for completing environmental impact statements and issuing a record of decision. Requires agencies participating in the review process to comply with such deadlines. Deems a project to be approved in the event that an agency fails to approve or disapprove a project within such deadlines.
Requires a lead agency to provide an opportunity for involvement by cooperating agencies in determining the range of alternatives to be considered for a project. Prohibits an agency from being required to evaluate an alternative that was identified but not carried forward for detailed evaluation in, or evaluated and not selected in, any environmental document prepared under NEPA for the same project.
Requires the head of each federal agency to report annually to Congress on: (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 a 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; and (4) the resolution of any such lawsuits against the agency.
Imposes a time limitation for filing a claim seeking judicial review of a permit, license, or approval issued by an agency for an action subject to NEPA.
Title VI: Securities and Exchange Commission Regulatory Accountability - SEC Regulatory Accountability Act - (Sec. 602) Amends the Securities Exchange Act of 1934 to direct the Securities and Exchange Commission (SEC), before issuing a regulation under the securities laws, to: (1) identify the nature and source of the problem that the proposed regulation is designed to address in order to assess whether any new regulation is warranted; (2) use the SEC Chief Economist to assess the costs and benefits of the intended regulation and adopt it only upon a reasoned determination that its benefits justify the costs; (3) identify and assess available alternatives that were considered; and (4) ensure that any regulation is accessible, consistent, written in plain language, and easy to understand.
Requires the SEC to: (1) consider whether the rulemaking will promote efficiency, competition, and capital formation; (2) consider the impact of the regulation upon investor choice, market liquidity, and small business; (3) explain in its final rule the nature of comments received concerning the proposed rule or rule change; and (4) respond to those comments, explaining any changes made in response and the reasons that it did not incorporate industry group concerns regarding potential costs or benefits.
Requires the SEC to: (1) review its existing regulations periodically to determine if they are outmoded, ineffective, insufficient, or excessively burdensome; and (2) modify, streamline, expand, or repeal them.
Requires the SEC, whenever it adopts or amends a major rule, to state in its adopting release: (1) the purposes and intended consequences of the regulation, (2) the post-implementation quantitative and qualitative metrics to measure the economic impact of the regulation and the extent to which it has accomplished the stated purposes, (3) the assessment plan that will be used under the supervision of the Chief Economist to assess whether the regulation has achieved those purposes, and (4) any foreseeable unintended or negative consequences. Requires the assessment plan to: (1) consider the costs, benefits, and intended and unintended consequences of the regulation; and (2) specify the data to be collected, the methods for its collection and analysis, and an assessment completion date.
Waives notice and comment requirements for the data collection if the SEC has published its assessment plan for notice and comment at least 30 days before adoption of a final regulation or amendment.
(Sec. 603) Expresses the sense of Congress that other regulatory entities, including the Public Company Accounting Oversight Board, the Municipal Securities Rulemaking Board, and any national securities association registered under the Securities Exchange Act of 1934, should also follow the requirements set forth by this title.
(Sec. 604) Nullifies interpretative guidance previously issued by the SEC regarding disclosure related to climate change and restricts SEC authority to issue future guidance on such matter.
Title VII: Consideration by Commodity Futures Trading Commission of Certain Costs and Benefits - (Sec. 701) Amends the Commodity Exchange Act to expand the considerations for the Commodity Futures Trading Commission (CFTC) in assessing the costs and benefits, both qualitative and quantitative, of intended regulation. Requires the CFTC to propose or adopt a regulation only on a reasoned determination that the benefits justify the costs and to consider available alternatives to direct regulation and whether the regulation is inconsistent, incompatible, or duplicative of other federal regulations.
Title VIII: Ensuring High Standards for Agency Use of Scientific Information - (Sec. 801) Requires each federal agency, not later than January 1, 2013, to have in effect guidelines for ensuring and maximizing the quality, objectivity, utility, and integrity of scientific information relied upon by such agency. Deems any policy decision of an agency that does not comply with approved guidelines to be arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law.
Title IX: Tracking the Cost to Taxpayers of Federal Litigation - Tracking the Cost to Taxpayers of Federal Litigation Act - (Sec. 902) Expands requirements for accounting for fees and costs incurred by the federal government in litigating with private parties in regulatory matters, including the cost of settlement agreements. Requires the Chairman of the Administrative Conference of the United States to create and maintain an online searchable database for each award of fees or other expenses, which shall include: (1) the name of each party to whom an award was made, (2) the name of each counsel of record, (3) the agency to which the application for the award was made, (4) the name of the administrative law judge, (5) the amount of the award, (6) the names and hourly rates of each expert witness, and (7) the basis for the finding that the position of the agency was not substantially justified.