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Full Text of this Amendment
SA 3794. Mr. BOND submitted an amendment intended to be proposed to amendment SA 3591 submitted by Mr. BOND and intended to be proposed to the bill H.R. 2419, to provide for the continuation of agricultural programs through fiscal year 2012, and for other purposes; which was ordered to lie on the table; as follows:
At the end of title XI, add the following:
Subtitle C--Agricultural Regulatory Flexibility
SEC. 11081. DEFINITIONS.
In this subtitle:
(1) AGENCY.--The term ``agency'' has the meaning given the term in section 551(1) of title 5, United States Code.
(2) AGRICULTURAL ENTITY.--The term ``agricultural entity'' means any person or entity that has income derived from--
(A) farming, ranching, or forestry operations;
(B) the production of crops, livestock, or unfinished raw forestry products;
(C) the sale, including the sale of easements and development rights, of farm, ranch, forestry, water, or hunting rights;
(D) the sale of equipment to conduct farm, ranch, or forestry operations;
(E) the rental or lease of land used for farming, ranching, or forestry operations, including water or hunting rights;
(F) the provision of production inputs and services to farmers, ranchers, and foresters;
(G) the processing (including packing), storing (including shedding), and transporting of farm, ranch, and forestry commodities;
(H) the sale of land that has been used for agriculture; or
(I) payments or other income attributable to benefits received under any program authorized under title I or II.
(3) COLLECTION OF INFORMATION.--
(A) IN GENERAL.--The term ``collection of information'' means the obtaining, causing to be obtained, soliciting, or requiring the disclosure to third parties or the public of facts or opinions by or for an agency, regardless of form or format, calling for--
(i) answers to identical questions posed to, or identical reporting or recordkeeping requirements imposed on, 10 or more persons, other than agencies, instrumentalities, or employees of the United States; or
(ii) answers to questions posed to agencies, instrumentalities, or employees of the United States that are to be used for general statistical purposes.
(B) EXCLUSION.--The term ``collection of information'' does not include collection of information described in section 3518(c)(1) of title 44, United States Code.
(4) RECORDKEEPING REQUIREMENT.--The term ``recordkeeping requirement'' means a requirement imposed by an agency on persons to maintain specified records.
(5) RULE.--
(A) IN GENERAL.--The term ``rule'' means any rule for which the agency publishes a general notice of proposed rulemaking pursuant to section 553(b) of title 5, United States Code, or any other law, including any rule of general applicability governing Federal grants to State and local governments for which the agency provides an opportunity for notice and public comment.
(B) EXCLUSION.--The term ``rule'' does not include a rule of particular applicability relating to--
(i) rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services, or allowances therefor; or
(ii) valuations, costs or accounting, or practices relating to such rates, wages, structures, prices, appliances, services, or allowances.
SEC. 11082. AGRICULTURAL REGULATORY FLEXIBILITY AGENDA.
(a) In General.--During the months of October and April of each year, each agency shall publish in the Federal Register an agricultural regulatory flexibility agenda that contains--
(1) a brief description of the subject area of any rule that the agency expects to propose or promulgate that is likely to have a significant economic impact on a substantial number of agricultural entities;
(2) a summary of the nature of any such rule under consideration for each subject area listed in the agenda pursuant to paragraph (1), the objectives and legal basis for the issuance of the rule, and an approximate schedule for completing action on any rule for which the agency has issued a general notice of proposed rulemaking; and
(3) the name and telephone number of an agency official knowledgeable concerning the items listed in paragraph (1).
(b) Chief Counsels.--Each agricultural regulatory flexibility agenda shall be transmitted to the Chief Counsel for Advocacy of the Department of Agriculture for comment, if any.
(c) Notice.--Each agency shall--
(1) attempt to provide notice of each agricultural regulatory flexibility agenda to agricultural entities (or representatives thereof) through direct notification or publication of the agenda in publications likely to be obtained by the agricultural entities; and
(2) invite comments on each subject area on the agenda.
(d) Effect of Section.--Nothing in this section--
(1) precludes an agency from considering or acting on any matter not included in an agricultural regulatory flexibility agenda; or
(2) requires an agency to consider or act on any matter listed in the agenda.
SEC. 11083. INITIAL AGRICULTURAL REGULATORY FLEXIBILITY ANALYSIS.
(a) Analysis.--
(1) REQUIREMENT.--In any case in which an agency is required by section 553 of title 5, United States Code, or any other law, to publish general notice of proposed rulemaking for any proposed rule, or publishes a notice of proposed rulemaking for an interpretative rule involving the internal revenue laws of the United States, the agency shall prepare and make available for public comment an initial agricultural regulatory flexibility analysis. Such analysis shall describe the impact of
the proposed rule on agricultural entities.
(2) PUBLICATION.--The initial agricultural regulatory flexibility analysis or a summary shall be published in the Federal Register at the time of the publication of general notice of proposed rulemaking for the rule.
(3) CHIEF COUNSELS.--The agency shall transmit a copy of the initial agricultural regulatory flexibility analysis to the Chief Counsel for Advocacy of the Department of Agriculture.
(4) APPLICABILITY.--In the case of an interpretative rule involving the internal revenue laws of the United States, the requirements of this section apply to interpretative rules published in the Federal Register for codification in the Code of Federal Regulations only to the extent that the interpretative rule imposes on agricultural entities a collection of information requirement.
(b) Contents.--Each initial agricultural regulatory flexibility analysis required under this section shall contain--
(1) a description of the reasons why action by the agency is being considered;
(2) a succinct statement of the objectives of, and legal basis for, the proposed rule;
(3) a description of and, if feasible, an estimate of the number of agricultural entities to which the proposed rule will apply;
(4) a description of the projected reporting, recordkeeping, and other compliance requirements of the proposed rule, including an estimate of the classes of agricultural entities that will be subject to the requirement and the type of professional skills necessary for preparation of the report or record; and
(5) an identification, to the maximum extent practicable, of all relevant Federal rules that may duplicate, overlap, or conflict with the proposed rule.
(c) Alternatives.--
(1) IN GENERAL.--Each initial agricultural regulatory flexibility analysis shall also contain a description of any significant alternatives to the proposed rule that--
(A) accomplish the stated objectives of applicable laws (including regulations); and
(B) minimize any significant economic impact of the proposed rule on agricultural entities.
(2) DESCRIPTION.--In accordance with the stated objectives of applicable laws (including regulations), the analysis shall include a description of significant alternatives, such as--
(A) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to agricultural entities;
(B) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for the agricultural entities;
(C) the use of performance rather than design standards; and
(D) an exemption from coverage of the rule, or any part thereof, for such agricultural entities.
SEC. 11084. FINAL AGRICULTURAL REGULATORY FLEXIBILITY ANALYSIS.
(a) Final Analysis.--
(1) IN GENERAL.--In any case in which an agency promulgates a final rule under section 553 of title 5, United States Code, after being required by that section or any other law to publish a general notice of proposed rulemaking, or promulgates a final interpretative rule involving the internal revenue laws of the United States as described in section 11083(a), the agency shall prepare a final agricultural regulatory flexibility analysis.
(2) CONTENTS.--Each final agricultural regulatory flexibility analysis shall contain--
(A) a succinct statement of the need for, and objectives of, the rule;
(B) a summary of the significant issues raised by the public comments in response to the initial agricultural regulatory flexibility analysis, a summary of the assessment of the agency of those issues, and a statement of any changes made in the proposed rule as a result of the comments;
(C) a description of and an estimate of the number of agricultural entities to which the rule will apply or an explanation of why no such estimate is available;
(D) a description of the projected reporting, recordkeeping, and other compliance requirements of the rule, including an estimate of the classes of agricultural entities that will be subject to the requirement and the type of professional skills necessary for preparation of the report or record; and
(E) a description of measures the agency has carried out to minimize the significant economic impact on agricultural entities consistent with the stated objectives of applicable statutes, including a statement of--
(i) the factual, policy, and legal reasons for selecting the alternative adopted in the final rule; and
(ii) why each of the other significant alternatives to the rule considered by the agency that affect the impact on agricultural entities was rejected.
(b) Publication.--The agency shall--
(1) make copies of the final agricultural regulatory flexibility analysis available to members of the public; and
(2) publish in the Federal Register the analysis or a summary thereof.
SEC. 11085. AVOIDANCE OF DUPLICATIVE OR UNNECESSARY ANALYSIS.
(a) In General.--Any Federal agency may perform the analyses required by sections 11082, 11083, and 11084 in conjunction with, or as a part of, any other agenda or analysis required by any other law if the other analysis satisfies the requirements of those sections.
(b) Certification by Agency Head.--
(1) IN GENERAL.--Sections 11083 and 11084 shall not apply to any proposed or final rule if the head of the agency certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of agricultural entities.
(2) PUBLICATION.--If the head of the agency makes a certification under paragraph (1), the agency head shall publish the certification (together with a statement providing the factual basis for the certification) in the Federal Register--
(A) at the time of publication of general notice of proposed rulemaking for the rule; or
(B) at the time of publication of the final rule.
(3) CHIEF COUNSEL.--The agency shall provide each certification and statement described in paragraph (2) to the Chief Counsel for Advocacy of the Department of Agriculture.
(c) Closely Related Rules.--To avoid duplicative action, an agency may consider a series of closely related rules as 1 rule for the purposes of sections 11082, 11083, 11084 and 11090.
SEC. 11086. EFFECT ON OTHER LAW.
The requirements of sections 11083 and 11084 do not alter in any manner standards otherwise applicable by law to agency action.
SEC. 11087. PREPARATION OF ANALYSES.
In complying with sections 11083 and 11084, an agency may provide--
(1) a quantifiable or numerical description of the effects of a proposed rule or alternatives to the proposed rule; or
(2) more general descriptive statements, if quantification is not practicable or reliable.
SEC. 11088. PROCEDURE FOR WAIVER OR DELAY OF COMPLETION.
(a) Emergency Situations.--An agency head may waive or delay the completion of some or all of the requirements of section 11083 by publishing in the Federal Register, not later than the date of publication of the final rule, a written finding, with reasons therefor, that the final rule is being promulgated in response to an emergency that makes compliance or timely compliance with the requirements impracticable.
(b) Limitation.--
(1) IN GENERAL.--Except as provided in section 11085(b), an agency head may not waive the requirements of section 11084.
(2) DELAYS.--An agency head may delay the completion of the requirements of section 11084 for a period of not more than 180 days after the date of publication in the Federal Register of a final rule by publishing in the Federal Register, not later than that date of publication, a written finding, with reasons therefor, that the final rule is being promulgated in response to an emergency that makes timely compliance with section 11084 impracticable.
(3) FAILURE TO PREPARE ANALYSIS.--If the agency has not prepared a final agricultural regulatory analysis pursuant to section 11084 by not later than 180 days after the date of publication of the final rule, the rule--
(A) shall lapse and have no effect; and
(B) shall not be repromulgated until a final regulatory flexibility analysis has been completed by the agency.
SEC. 11089. PROCEDURES FOR GATHERING COMMENTS.
(a) Definition of Covered Agency.--In this section, the term ``covered agency'' means the Environmental Protection Agency and the Department of the Interior and its agencies.
(b) Participation.--In any case in which a rule is promulgated that will have a significant economic impact on a substantial number of agricultural entities, the head of the agency promulgating the rule or the official of the agency with statutory responsibility for the promulgation of the rule shall assure that agricultural entities have been given an opportunity to participate in the rulemaking for the rule through the rational use of techniques, such as--
(1) the inclusion in an advanced notice of proposed rulemaking, if issued, of a statement that the proposed rule may have a significant economic effect on a substantial number of agricultural entities;
(2) the publication of general notice of proposed rulemaking in publications likely to be obtained by agricultural entities;
(3) the direct notification of interested agricultural entities;
(4) the conduct of open conferences or public hearings concerning the rule for agricultural entities including soliciting and receiving comments over computer networks; and
(5) the adoption or modification of agency procedural rules to reduce the cost or complexity of participation in the rulemaking by agricultural entities.
(c) Initial Requirements.--Before the date of publication of an initial agricultural regulatory flexibility analysis required under this subtitle--
(1) a covered agency shall--
(A) notify the Chief Counsel for Advocacy of the Department of Agriculture; and
(B) provide the Chief Counsel with information on the potential impacts of the proposed rule on agricultural entities that might be affected;
(2) not later than 15 days after the date of receipt of the materials described in paragraph (1), the Chief Counsel shall identify individuals representative of affected agricultural entities for the purpose of obtaining advice and recommendations from those individuals about the potential impacts of the proposed rule;
(3) the agency shall convene a review panel for the rule consisting entirely of--
(A) full-time Federal employees of the office within the agency responsible for carrying out the proposed rule;
(B) the Office of Information and Regulatory Affairs within the Office of Management and Budget; and
(C) the Chief Counsel;
(4) the panel shall--
(A) review any material the agency has prepared in connection with this subtitle, including any draft proposed rule; and
(B) collect advice and recommendations of each individual agricultural entity representative identified by the agency, after consultation with the Chief Counsel, on issues relating to paragraphs (3) and (4) of subsection (b), and subsection (c), of section 11083;
(5) not later than 60 days after the date a covered agency convenes a review panel pursuant to paragraph (3), the review panel shall report on the comments of the agricultural entity representatives and its findings as to issues relating to paragraphs (3) and (4) of subsection (b), and subsection (c), of section 11083, subject to the requirement that the report shall be made public as part of the rulemaking record; and
(6) as appropriate, the agency shall modify the proposed rule, the initial agricultural flexibility analysis or the decision on whether an initial flexibility analysis is required.
(d) Applicability.--An agency may, at the discretion of the agency head, apply subsection (c) to rules that the agency intends to certify under section 11085(b), but the agency believes may have a greater than de minimis impact on a substantial number of agricultural entities.
(e) Waivers.--
(1) IN GENERAL.--The Chief Counsel for Advocacy, in consultation with the individuals identified under subsection (c)(2), and with the Administrator of the Office of Information and Regulatory Affairs within the Office of Management and Budget, may waive the requirements of paragraphs (3) through (5) of subsection (c) by including in the rulemaking record a written finding, with reasons therefor, that those requirements would not advance the effective participation of agricultural entities
in the rulemaking process.
(2) FACTORS FOR CONSIDERATION.--For purposes of paragraph (1), the factors to be considered in making a finding described in that paragraph are the following:
(A) In developing a proposed rule, the extent to which the covered agency consulted with individuals representative of affected agricultural entities with respect to the potential impacts of the rule and took those concerns into consideration.
(B) Special circumstances requiring prompt issuance of the rule.
(C) Whether the requirements of subsection (c) would provide the individuals identified in subsection (c)(2) with a competitive advantage relative to other agricultural entities.
SEC. 11090. PERIODIC REVIEW OF RULES.
(a) Plan.--
(1) IN GENERAL.--Not later than 180 days after the date of enactment of this Act, each agency shall publish in the Federal Register a plan for the periodic review of the rules issued by the agency that have or will have a significant economic impact on a substantial number of agricultural entities.
(2) AMENDMENTS.--The plan may be amended by the agency at any time by publishing the revision in the Federal Register.
(3) REVIEWS.--The purpose of a review under the plan shall be to determine whether the rules should be continued without change, or should be amended or rescinded, consistent with the stated objectives of applicable laws (including regulations), to minimize any significant economic impact of the rules on a substantial number of agricultural entities.
(4) REQUIREMENTS.--The plan shall provide for--
(A) the review of all such agency rules in existence on the date of enactment of this Act by not later than 10 years after that date; and
(B) the review of any rules adopted after that date of enactment by not later than 10 years after the publication of those rules as final rules.
(5) EXTENSIONS.--If the head of the agency determines that completion of the review of existing rules is not feasible by the established date, the agency head--
(A) shall provide a certification of the determination in a statement published in the Federal Register; and
(B) may extend the completion date by 1 year at a time for a total of not more than 5 years.
(b) Factors for Consideration.--In reviewing rules to minimize any significant economic impact of the rule on a substantial number of agricultural entities in a manner consistent with the stated objectives of applicable laws and regulations, the agency shall take into consideration--
(1) the continued need for the rule;
(2) the nature of complaints or comments received concerning the rule from the public;
(3) the complexity of the rule;
(4) the extent to which the rule overlaps, duplicates, or conflicts with other Federal rules, and, to the extent feasible, with State and local governmental rules; and
(5) the length of time since the rule has been evaluated, or the degree to which technology, economic conditions, or other factors have changed in the area affected by the rule.
(c) Lists.--
(1) IN GENERAL.--For each calendar year, each agency shall publish in the Federal Register a list of the rules that have a significant economic impact on a substantial number of agricultural entities that are to be reviewed pursuant to this section during the following calendar year.
(2) INCLUSIONS.--The list shall include--
(A) a brief description of each rule; and
(B) the need for and legal basis of the rule.
(3) PUBLIC COMMENT.--The list shall invite public comment on each rule included on the list.
SEC. 11091. JUDICIAL REVIEW.
(a) Review.--
(1) IN GENERAL.--For any rule subject to this subtitle, a agricultural entity that is adversely affected or aggrieved by final agency action is entitled to judicial review of agency compliance with the requirements of sections 11081, 11084, 11085(b), 11088(b), and 11090 in accordance with chapter 7 of title 5, United States Code.
(2) CERTAIN SECTIONS.--Agency compliance with sections 11087 and 11089(a) shall be judicially reviewable in connection with judicial review of section 11084.
(3) JURISDICTION.--
(A) IN GENERAL.--Each court having jurisdiction to review a rule for compliance with section 553, or under any other provision of law, shall have jurisdiction to review any claims of noncompliance with sections 11081, 11084, 11085(b), 11088(b), and 11090 in accordance with chapter 7 of title 5, United States Code.
(B) CERTAIN SECTIONS.--Agency compliance with sections 11087 and 11089(a) shall be judicially reviewable in connection with judicial review of section 11084.
(4) TIME PERIOD.--
(A) IN GENERAL.--An agricultural entity may seek review under this subsection during the 1-year period beginning on the date of final agency action, except that if a provision of law requires that an action challenging a final agency action be commenced before the expiration of 1 year, the lesser period shall apply to an action for judicial review under this section.
(B) DELAYS.--In any case in which an agency delays the issuance of a final agricultural flexibility analysis pursuant to section 11088(b), an action for judicial review under this section shall be filed not later than--
(i) 1 year after the date on which the analysis is made available to the public, or
(ii) if a provision of law requires that an action challenging a final agency regulation be commenced before the expiration of the 1-year period, the number of days specified in the provision of law that is after the date the analysis is made available to the public.
(5) RELIEF.--In granting any relief in an action under this section, the court shall order the agency to take corrective action consistent with this subtitle and chapter 7 of title 5 United States Code, including--
(A) remanding the rule to the agency; and
(B) deferring the enforcement of the rule against agricultural entities unless the court finds that continued enforcement of the rule is in the public interest.
(6) EFFECT OF SUBSECTION.--Nothing in this subsection limits the authority of any court--
(A) to stay the effective date of any rule or provision thereof under any other provision of law; or
(B) to grant any other relief in addition to the requirements of this section.
(b) Analyses.--In an action for the judicial review of a rule, the agricultural flexibility analysis for the rule, including an analysis prepared or corrected pursuant to subsection (a)(4), shall constitute part of the entire record of agency action in connection with the review.
(c) Requirement.--Compliance or noncompliance by an agency with the provisions of this subtitle shall be subject to judicial review only in accordance with this section.
(d) Effect of Section.--Nothing in this section bars judicial review of any other impact statement or similar analysis required by any other law if judicial review of the statement or analysis is otherwise permitted by law.
SEC. 11092. REPORTS AND INTERVENTION RIGHTS.
(a) Monitoring.--The Chief Counsel for Advocacy of the Department of Agriculture shall--
(1) monitor agency compliance with this subtitle; and
(2) submit reports at least annually on that compliance to--
(A) the President;
(B) the Committee on Agriculture of the House of Representatives; and
(C) the Committee on Agriculture, Nutrition, and Forestry of the Senate.
(b) Amicus Curiae.--
(1) IN GENERAL.--The Chief Counsel for Advocacy of the Department of Agriculture may appear as amicus curiae in any action brought in a court of the United States to review a rule.
(2) In any action described in paragraph (1), the Chief Counsel may present the views of the Chief Counsel with respect to--
(A) compliance with this subtitle;
(B) the adequacy of the rulemaking record with respect to agricultural entities; and
(C) the effect of the rule on agricultural entities.
(3) ACTION BY COURTS.--A court of the United States shall grant the application of the Chief Counsel for Advocacy of the Department of Agriculture to appear in any such action for the purposes described in this subsection.
SEC. 11093. ESTABLISHMENT OF OFFICE OF ADVOCACY WITHIN THE DEPARTMENT OF AGRICULTURE; CHIEF COUNSEL FOR AGRICULTURAL ADVOCACY.
(a) Establishment.--There is established within the Department of Agriculture an Office of Advocacy.
(b) Management.--The management of the Office shall be vested in a Chief Counsel for Advocacy, who shall be appointed from civilian life by the President, by and with the advice and consent of the Senate.
SEC. 11094. PRIMARY FUNCTIONS OF OFFICE OF ADVOCACY.
The primary functions of the Office of Advocacy shall be--
(1) to measure the direct costs and other effects of government regulation on agricultural entities; and make legislative and nonlegislative proposals for eliminating excessive or unnecessary regulations of agricultural entities;
(2) to study the ability of financial markets and institutions to meet agricultural entity credit needs and determine the impact of government demands for credit on agricultural entities;
(3)(A) to recommend specific measures for creating an environment in which all agricultural entities will have the opportunity to compete effectively and expand to full potential; and
(B) to ascertain the common reasons, if any, for agricultural entity successes and failures;
(4)(A) to evaluate the efforts of each Federal department and agency, and of private industry, to assist agricultural entities owned and controlled by veterans, and agricultural entities concerns owned and controlled by serviced-disabled veterans;
(B) to provide statistical information on the use of those programs by those agricultural entities; and
(C) to make appropriate recommendations to the Secretary and Congress to promote the establishment and growth of those agricultural entities.
SEC. 11095. ADDITIONAL DUTIES OF OFFICE OF ADVOCACY.
The Office of Advocacy shall also perform the following duties on a continuing basis:
(1) Serve as a focal point for the receipt of complaints, criticisms, and suggestions concerning the policies and activities of the President and any other Federal agency that affects agricultural entities.
(2) Counsel agricultural entities on methods to resolve questions and problems concerning the relationship of the agricultural entity to the Federal Government.
(3) Develop proposals for changes in the policies and activities of any agency of the Federal Government that will better fulfill the purposes of agricultural entities and communicate the proposals to the appropriate Federal agencies.
(4) Represent the views and interests of agricultural entities before other Federal agencies the policies and activities of which may affect agricultural entities.
(5) Enlist the cooperation and assistance of public and private agencies, businesses, and other organizations in disseminating information about--
(A) the programs and services provided by the Federal Government that are of benefit to agricultural entities; and
(B) the means by which agricultural entities can participate in or make use of those programs and services.
(As printed in the Congressional Record for the Senate on Nov 16, 2007.)
At the end of title XI, add the following:
Subtitle C--Agricultural Regulatory Flexibility
SEC. 11081. DEFINITIONS.
In this subtitle:
(1) AGENCY.--The term ``agency'' has the meaning given the term in section 551(1) of title 5, United States Code.
(2) AGRICULTURAL ENTITY.--The term ``agricultural entity'' means any person or entity that has income derived from--
(A) farming, ranching, or forestry operations;
(B) the production of crops, livestock, or unfinished raw forestry products;
(C) the sale, including the sale of easements and development rights, of farm, ranch, forestry, water, or hunting rights;
(D) the sale of equipment to conduct farm, ranch, or forestry operations;
(E) the rental or lease of land used for farming, ranching, or forestry operations, including water or hunting rights;
(F) the provision of production inputs and services to farmers, ranchers, and foresters;
(G) the processing (including packing), storing (including shedding), and transporting of farm, ranch, and forestry commodities;
(H) the sale of land that has been used for agriculture; or
(I) payments or other income attributable to benefits received under any program authorized under title I or II.
(3) COLLECTION OF INFORMATION.--
(A) IN GENERAL.--The term ``collection of information'' means the obtaining, causing to be obtained, soliciting, or requiring the disclosure to third parties or the public of facts or opinions by or for an agency, regardless of form or format, calling for--
(i) answers to identical questions posed to, or identical reporting or recordkeeping requirements imposed on, 10 or more persons, other than agencies, instrumentalities, or employees of the United States; or
(ii) answers to questions posed to agencies, instrumentalities, or employees of the United States that are to be used for general statistical purposes.
(B) EXCLUSION.--The term ``collection of information'' does not include collection of information described in section 3518(c)(1) of title 44, United States Code.
(4) RECORDKEEPING REQUIREMENT.--The term ``recordkeeping requirement'' means a requirement imposed by an agency on persons to maintain specified records.
(5) RULE.--
(A) IN GENERAL.--The term ``rule'' means any rule for which the agency publishes a general notice of proposed rulemaking pursuant to section 553(b) of title 5, United States Code, or any other law, including any rule of general applicability governing Federal grants to State and local governments for which the agency provides an opportunity for notice and public comment.
(B) EXCLUSION.--The term ``rule'' does not include a rule of particular applicability relating to--
(i) rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services, or allowances therefor; or
(ii) valuations, costs or accounting, or practices relating to such rates, wages, structures, prices, appliances, services, or allowances.
SEC. 11082. AGRICULTURAL REGULATORY FLEXIBILITY AGENDA.
(a) In General.--During the months of October and April of each year, each agency shall publish in the Federal Register an agricultural regulatory flexibility agenda that contains--
(1) a brief description of the subject area of any rule that the agency expects to propose or promulgate that is likely to have a significant economic impact on a substantial number of agricultural entities;
(2) a summary of the nature of any such rule under consideration for each subject area listed in the agenda pursuant to paragraph (1), the objectives and legal basis for the issuance of the rule, and an approximate schedule for completing action on any rule for which the agency has issued a general notice of proposed rulemaking; and
(3) the name and telephone number of an agency official knowledgeable concerning the items listed in paragraph (1).
(b) Chief Counsels.--Each agricultural regulatory flexibility agenda shall be transmitted to the Chief Counsel for Advocacy of the Department of Agriculture for comment, if any.
(c) Notice.--Each agency shall--
(1) attempt to provide notice of each agricultural regulatory flexibility agenda to agricultural entities (or representatives thereof) through direct notification or publication of the agenda in publications likely to be obtained by the agricultural entities; and
(2) invite comments on each subject area on the agenda.
(d) Effect of Section.--Nothing in this section--
(1) precludes an agency from considering or acting on any matter not included in an agricultural regulatory flexibility agenda; or
(2) requires an agency to consider or act on any matter listed in the agenda.
SEC. 11083. INITIAL AGRICULTURAL REGULATORY FLEXIBILITY ANALYSIS.
(a) Analysis.--
(1) REQUIREMENT.--In any case in which an agency is required by section 553 of title 5, United States Code, or any other law, to publish general notice of proposed rulemaking for any proposed rule, or publishes a notice of proposed rulemaking for an interpretative rule involving the internal revenue laws of the United States, the agency shall prepare and make available for public comment an initial agricultural regulatory flexibility analysis. Such analysis shall describe the impact of
the proposed rule on agricultural entities.
(2) PUBLICATION.--The initial agricultural regulatory flexibility analysis or a summary shall be published in the Federal Register at the time of the publication of general notice of proposed rulemaking for the rule.
(3) CHIEF COUNSELS.--The agency shall transmit a copy of the initial agricultural regulatory flexibility analysis to the Chief Counsel for Advocacy of the Department of Agriculture.
(4) APPLICABILITY.--In the case of an interpretative rule involving the internal revenue laws of the United States, the requirements of this section apply to interpretative rules published in the Federal Register for codification in the Code of Federal Regulations only to the extent that the interpretative rule imposes on agricultural entities a collection of information requirement.
(b) Contents.--Each initial agricultural regulatory flexibility analysis required under this section shall contain--
(1) a description of the reasons why action by the agency is being considered;
(2) a succinct statement of the objectives of, and legal basis for, the proposed rule;
(3) a description of and, if feasible, an estimate of the number of agricultural entities to which the proposed rule will apply;
(4) a description of the projected reporting, recordkeeping, and other compliance requirements of the proposed rule, including an estimate of the classes of agricultural entities that will be subject to the requirement and the type of professional skills necessary for preparation of the report or record; and
(5) an identification, to the maximum extent practicable, of all relevant Federal rules that may duplicate, overlap, or conflict with the proposed rule.
(c) Alternatives.--
(1) IN GENERAL.--Each initial agricultural regulatory flexibility analysis shall also contain a description of any significant alternatives to the proposed rule that--
(A) accomplish the stated objectives of applicable laws (including regulations); and
(B) minimize any significant economic impact of the proposed rule on agricultural entities.
(2) DESCRIPTION.--In accordance with the stated objectives of applicable laws (including regulations), the analysis shall include a description of significant alternatives, such as--
(A) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to agricultural entities;
(B) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for the agricultural entities;
(C) the use of performance rather than design standards; and
(D) an exemption from coverage of the rule, or any part thereof, for such agricultural entities.
SEC. 11084. FINAL AGRICULTURAL REGULATORY FLEXIBILITY ANALYSIS.
(a) Final Analysis.--
(1) IN GENERAL.--In any case in which an agency promulgates a final rule under section 553 of title 5, United States Code, after being required by that section or any other law to publish a general notice of proposed rulemaking, or promulgates a final interpretative rule involving the internal revenue laws of the United States as described in section 11083(a), the agency shall prepare a final agricultural regulatory flexibility analysis.
(2) CONTENTS.--Each final agricultural regulatory flexibility analysis shall contain--
(A) a succinct statement of the need for, and objectives of, the rule;
(B) a summary of the significant issues raised by the public comments in response to the initial agricultural regulatory flexibility analysis, a summary of the assessment of the agency of those issues, and a statement of any changes made in the proposed rule as a result of the comments;
(C) a description of and an estimate of the number of agricultural entities to which the rule will apply or an explanation of why no such estimate is available;
(D) a description of the projected reporting, recordkeeping, and other compliance requirements of the rule, including an estimate of the classes of agricultural entities that will be subject to the requirement and the type of professional skills necessary for preparation of the report or record; and
(E) a description of measures the agency has carried out to minimize the significant economic impact on agricultural entities consistent with the stated objectives of applicable statutes, including a statement of--
(i) the factual, policy, and legal reasons for selecting the alternative adopted in the final rule; and
(ii) why each of the other significant alternatives to the rule considered by the agency that affect the impact on agricultural entities was rejected.
(b) Publication.--The agency shall--
(1) make copies of the final agricultural regulatory flexibility analysis available to members of the public; and
(2) publish in the Federal Register the analysis or a summary thereof.
SEC. 11085. AVOIDANCE OF DUPLICATIVE OR UNNECESSARY ANALYSIS.
(a) In General.--Any Federal agency may perform the analyses required by sections 11082, 11083, and 11084 in conjunction with, or as a part of, any other agenda or analysis required by any other law if the other analysis satisfies the requirements of those sections.
(b) Certification by Agency Head.--
(1) IN GENERAL.--Sections 11083 and 11084 shall not apply to any proposed or final rule if the head of the agency certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of agricultural entities.
(2) PUBLICATION.--If the head of the agency makes a certification under paragraph (1), the agency head shall publish the certification (together with a statement providing the factual basis for the certification) in the Federal Register--
(A) at the time of publication of general notice of proposed rulemaking for the rule; or
(B) at the time of publication of the final rule.
(3) CHIEF COUNSEL.--The agency shall provide each certification and statement described in paragraph (2) to the Chief Counsel for Advocacy of the Department of Agriculture.
(c) Closely Related Rules.--To avoid duplicative action, an agency may consider a series of closely related rules as 1 rule for the purposes of sections 11082, 11083, 11084 and 11090.
SEC. 11086. EFFECT ON OTHER LAW.
The requirements of sections 11083 and 11084 do not alter in any manner standards otherwise applicable by law to agency action.
SEC. 11087. PREPARATION OF ANALYSES.
In complying with sections 11083 and 11084, an agency may provide--
(1) a quantifiable or numerical description of the effects of a proposed rule or alternatives to the proposed rule; or
(2) more general descriptive statements, if quantification is not practicable or reliable.
SEC. 11088. PROCEDURE FOR WAIVER OR DELAY OF COMPLETION.
(a) Emergency Situations.--An agency head may waive or delay the completion of some or all of the requirements of section 11083 by publishing in the Federal Register, not later than the date of publication of the final rule, a written finding, with reasons therefor, that the final rule is being promulgated in response to an emergency that makes compliance or timely compliance with the requirements impracticable.
(b) Limitation.--
(1) IN GENERAL.--Except as provided in section 11085(b), an agency head may not waive the requirements of section 11084.
(2) DELAYS.--An agency head may delay the completion of the requirements of section 11084 for a period of not more than 180 days after the date of publication in the Federal Register of a final rule by publishing in the Federal Register, not later than that date of publication, a written finding, with reasons therefor, that the final rule is being promulgated in response to an emergency that makes timely compliance with section 11084 impracticable.
(3) FAILURE TO PREPARE ANALYSIS.--If the agency has not prepared a final agricultural regulatory analysis pursuant to section 11084 by not later than 180 days after the date of publication of the final rule, the rule--
(A) shall lapse and have no effect; and
(B) shall not be repromulgated until a final regulatory flexibility analysis has been completed by the agency.
SEC. 11089. PROCEDURES FOR GATHERING COMMENTS.
(a) Definition of Covered Agency.--In this section, the term ``covered agency'' means the Environmental Protection Agency and the Department of the Interior and its agencies.
(b) Participation.--In any case in which a rule is promulgated that will have a significant economic impact on a substantial number of agricultural entities, the head of the agency promulgating the rule or the official of the agency with statutory responsibility for the promulgation of the rule shall assure that agricultural entities have been given an opportunity to participate in the rulemaking for the rule through the rational use of techniques, such as--
(1) the inclusion in an advanced notice of proposed rulemaking, if issued, of a statement that the proposed rule may have a significant economic effect on a substantial number of agricultural entities;
(2) the publication of general notice of proposed rulemaking in publications likely to be obtained by agricultural entities;
(3) the direct notification of interested agricultural entities;
(4) the conduct of open conferences or public hearings concerning the rule for agricultural entities including soliciting and receiving comments over computer networks; and
(5) the adoption or modification of agency procedural rules to reduce the cost or complexity of participation in the rulemaking by agricultural entities.
(c) Initial Requirements.--Before the date of publication of an initial agricultural regulatory flexibility analysis required under this subtitle--
(1) a covered agency shall--
(A) notify the Chief Counsel for Advocacy of the Department of Agriculture; and
(B) provide the Chief Counsel with information on the potential impacts of the proposed rule on agricultural entities that might be affected;
(2) not later than 15 days after the date of receipt of the materials described in paragraph (1), the Chief Counsel shall identify individuals representative of affected agricultural entities for the purpose of obtaining advice and recommendations from those individuals about the potential impacts of the proposed rule;
(3) the agency shall convene a review panel for the rule consisting entirely of--
(A) full-time Federal employees of the office within the agency responsible for carrying out the proposed rule;
(B) the Office of Information and Regulatory Affairs within the Office of Management and Budget; and
(C) the Chief Counsel;
(4) the panel shall--
(A) review any material the agency has prepared in connection with this subtitle, including any draft proposed rule; and
(B) collect advice and recommendations of each individual agricultural entity representative identified by the agency, after consultation with the Chief Counsel, on issues relating to paragraphs (3) and (4) of subsection (b), and subsection (c), of section 11083;
(5) not later than 60 days after the date a covered agency convenes a review panel pursuant to paragraph (3), the review panel shall report on the comments of the agricultural entity representatives and its findings as to issues relating to paragraphs (3) and (4) of subsection (b), and subsection (c), of section 11083, subject to the requirement that the report shall be made public as part of the rulemaking record; and
(6) as appropriate, the agency shall modify the proposed rule, the initial agricultural flexibility analysis or the decision on whether an initial flexibility analysis is required.
(d) Applicability.--An agency may, at the discretion of the agency head, apply subsection (c) to rules that the agency intends to certify under section 11085(b), but the agency believes may have a greater than de minimis impact on a substantial number of agricultural entities.
(e) Waivers.--
(1) IN GENERAL.--The Chief Counsel for Advocacy, in consultation with the individuals identified under subsection (c)(2), and with the Administrator of the Office of Information and Regulatory Affairs within the Office of Management and Budget, may waive the requirements of paragraphs (3) through (5) of subsection (c) by including in the rulemaking record a written finding, with reasons therefor, that those requirements would not advance the effective participation of agricultural entities
in the rulemaking process.
(2) FACTORS FOR CONSIDERATION.--For purposes of paragraph (1), the factors to be considered in making a finding described in that paragraph are the following:
(A) In developing a proposed rule, the extent to which the covered agency consulted with individuals representative of affected agricultural entities with respect to the potential impacts of the rule and took those concerns into consideration.
(B) Special circumstances requiring prompt issuance of the rule.
(C) Whether the requirements of subsection (c) would provide the individuals identified in subsection (c)(2) with a competitive advantage relative to other agricultural entities.
SEC. 11090. PERIODIC REVIEW OF RULES.
(a) Plan.--
(1) IN GENERAL.--Not later than 180 days after the date of enactment of this Act, each agency shall publish in the Federal Register a plan for the periodic review of the rules issued by the agency that have or will have a significant economic impact on a substantial number of agricultural entities.
(2) AMENDMENTS.--The plan may be amended by the agency at any time by publishing the revision in the Federal Register.
(3) REVIEWS.--The purpose of a review under the plan shall be to determine whether the rules should be continued without change, or should be amended or rescinded, consistent with the stated objectives of applicable laws (including regulations), to minimize any significant economic impact of the rules on a substantial number of agricultural entities.
(4) REQUIREMENTS.--The plan shall provide for--
(A) the review of all such agency rules in existence on the date of enactment of this Act by not later than 10 years after that date; and
(B) the review of any rules adopted after that date of enactment by not later than 10 years after the publication of those rules as final rules.
(5) EXTENSIONS.--If the head of the agency determines that completion of the review of existing rules is not feasible by the established date, the agency head--
(A) shall provide a certification of the determination in a statement published in the Federal Register; and
(B) may extend the completion date by 1 year at a time for a total of not more than 5 years.
(b) Factors for Consideration.--In reviewing rules to minimize any significant economic impact of the rule on a substantial number of agricultural entities in a manner consistent with the stated objectives of applicable laws and regulations, the agency shall take into consideration--
(1) the continued need for the rule;
(2) the nature of complaints or comments received concerning the rule from the public;
(3) the complexity of the rule;
(4) the extent to which the rule overlaps, duplicates, or conflicts with other Federal rules, and, to the extent feasible, with State and local governmental rules; and
(5) the length of time since the rule has been evaluated, or the degree to which technology, economic conditions, or other factors have changed in the area affected by the rule.
(c) Lists.--
(1) IN GENERAL.--For each calendar year, each agency shall publish in the Federal Register a list of the rules that have a significant economic impact on a substantial number of agricultural entities that are to be reviewed pursuant to this section during the following calendar year.
(2) INCLUSIONS.--The list shall include--
(A) a brief description of each rule; and
(B) the need for and legal basis of the rule.
(3) PUBLIC COMMENT.--The list shall invite public comment on each rule included on the list.
SEC. 11091. JUDICIAL REVIEW.
(a) Review.--
(1) IN GENERAL.--For any rule subject to this subtitle, a agricultural entity that is adversely affected or aggrieved by final agency action is entitled to judicial review of agency compliance with the requirements of sections 11081, 11084, 11085(b), 11088(b), and 11090 in accordance with chapter 7 of title 5, United States Code.
(2) CERTAIN SECTIONS.--Agency compliance with sections 11087 and 11089(a) shall be judicially reviewable in connection with judicial review of section 11084.
(3) JURISDICTION.--
(A) IN GENERAL.--Each court having jurisdiction to review a rule for compliance with section 553, or under any other provision of law, shall have jurisdiction to review any claims of noncompliance with sections 11081, 11084, 11085(b), 11088(b), and 11090 in accordance with chapter 7 of title 5, United States Code.
(B) CERTAIN SECTIONS.--Agency compliance with sections 11087 and 11089(a) shall be judicially reviewable in connection with judicial review of section 11084.
(4) TIME PERIOD.--
(A) IN GENERAL.--An agricultural entity may seek review under this subsection during the 1-year period beginning on the date of final agency action, except that if a provision of law requires that an action challenging a final agency action be commenced before the expiration of 1 year, the lesser period shall apply to an action for judicial review under this section.
(B) DELAYS.--In any case in which an agency delays the issuance of a final agricultural flexibility analysis pursuant to section 11088(b), an action for judicial review under this section shall be filed not later than--
(i) 1 year after the date on which the analysis is made available to the public, or
(ii) if a provision of law requires that an action challenging a final agency regulation be commenced before the expiration of the 1-year period, the number of days specified in the provision of law that is after the date the analysis is made available to the public.
(5) RELIEF.--In granting any relief in an action under this section, the court shall order the agency to take corrective action consistent with this subtitle and chapter 7 of title 5 United States Code, including--
(A) remanding the rule to the agency; and
(B) deferring the enforcement of the rule against agricultural entities unless the court finds that continued enforcement of the rule is in the public interest.
(6) EFFECT OF SUBSECTION.--Nothing in this subsection limits the authority of any court--
(A) to stay the effective date of any rule or provision thereof under any other provision of law; or
(B) to grant any other relief in addition to the requirements of this section.
(b) Analyses.--In an action for the judicial review of a rule, the agricultural flexibility analysis for the rule, including an analysis prepared or corrected pursuant to subsection (a)(4), shall constitute part of the entire record of agency action in connection with the review.
(c) Requirement.--Compliance or noncompliance by an agency with the provisions of this subtitle shall be subject to judicial review only in accordance with this section.
(d) Effect of Section.--Nothing in this section bars judicial review of any other impact statement or similar analysis required by any other law if judicial review of the statement or analysis is otherwise permitted by law.
SEC. 11092. REPORTS AND INTERVENTION RIGHTS.
(a) Monitoring.--The Chief Counsel for Advocacy of the Department of Agriculture shall--
(1) monitor agency compliance with this subtitle; and
(2) submit reports at least annually on that compliance to--
(A) the President;
(B) the Committee on Agriculture of the House of Representatives; and
(C) the Committee on Agriculture, Nutrition, and Forestry of the Senate.
(b) Amicus Curiae.--
(1) IN GENERAL.--The Chief Counsel for Advocacy of the Department of Agriculture may appear as amicus curiae in any action brought in a court of the United States to review a rule.
(2) In any action described in paragraph (1), the Chief Counsel may present the views of the Chief Counsel with respect to--
(A) compliance with this subtitle;
(B) the adequacy of the rulemaking record with respect to agricultural entities; and
(C) the effect of the rule on agricultural entities.
(3) ACTION BY COURTS.--A court of the United States shall grant the application of the Chief Counsel for Advocacy of the Department of Agriculture to appear in any such action for the purposes described in this subsection.
SEC. 11093. ESTABLISHMENT OF OFFICE OF ADVOCACY WITHIN THE DEPARTMENT OF AGRICULTURE; CHIEF COUNSEL FOR AGRICULTURAL ADVOCACY.
(a) Establishment.--There is established within the Department of Agriculture an Office of Advocacy.
(b) Management.--The management of the Office shall be vested in a Chief Counsel for Advocacy, who shall be appointed from civilian life by the President, by and with the advice and consent of the Senate.
SEC. 11094. PRIMARY FUNCTIONS OF OFFICE OF ADVOCACY.
The primary functions of the Office of Advocacy shall be--
(1) to measure the direct costs and other effects of government regulation on agricultural entities; and make legislative and nonlegislative proposals for eliminating excessive or unnecessary regulations of agricultural entities;
(2) to study the ability of financial markets and institutions to meet agricultural entity credit needs and determine the impact of government demands for credit on agricultural entities;
(3)(A) to recommend specific measures for creating an environment in which all agricultural entities will have the opportunity to compete effectively and expand to full potential; and
(B) to ascertain the common reasons, if any, for agricultural entity successes and failures;
(4)(A) to evaluate the efforts of each Federal department and agency, and of private industry, to assist agricultural entities owned and controlled by veterans, and agricultural entities concerns owned and controlled by serviced-disabled veterans;
(B) to provide statistical information on the use of those programs by those agricultural entities; and
(C) to make appropriate recommendations to the Secretary and Congress to promote the establishment and growth of those agricultural entities.
SEC. 11095. ADDITIONAL DUTIES OF OFFICE OF ADVOCACY.
The Office of Advocacy shall also perform the following duties on a continuing basis:
(1) Serve as a focal point for the receipt of complaints, criticisms, and suggestions concerning the policies and activities of the President and any other Federal agency that affects agricultural entities.
(2) Counsel agricultural entities on methods to resolve questions and problems concerning the relationship of the agricultural entity to the Federal Government.
(3) Develop proposals for changes in the policies and activities of any agency of the Federal Government that will better fulfill the purposes of agricultural entities and communicate the proposals to the appropriate Federal agencies.
(4) Represent the views and interests of agricultural entities before other Federal agencies the policies and activities of which may affect agricultural entities.
(5) Enlist the cooperation and assistance of public and private agencies, businesses, and other organizations in disseminating information about--
(A) the programs and services provided by the Federal Government that are of benefit to agricultural entities; and
(B) the means by which agricultural entities can participate in or make use of those programs and services.
(As printed in the Congressional Record for the Senate on Nov 16, 2007.)
