Sec. 312. Required regulatory analysis
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An agency may not issue a notice of proposed rulemaking unless the agency includes in the notice of proposed rulemaking an analysis that contains, at a minimum, with respect to each regulation that is being proposed— an identification of the need for the regulation and the regulatory objective, including identification of the nature and significance of the market failure, regulatory failure, or other problem that necessitates the regulation; an explanation of why the private market or State, local, or tribal authorities cannot adequately address the identified market failure or other problem; an analysis of the adverse impacts to regulated entities, other market participants, economic activity, or agency effectiveness that are engendered by the regulation and the magnitude of such adverse impacts; a quantitative and qualitative assessment of all anticipated direct and indirect costs and benefits of the regulation (as compared to a benchmark that assumes the absence of the regulation), including— compliance costs; effects on economic activity, net job creation (excluding jobs related to ensuring compliance with the regulation), efficiency, competition, and capital formation; regulatory administrative costs; and costs imposed by the regulation on State, local, or tribal governments or other regulatory authorities; if quantified benefits do not outweigh quantitative costs, a justification for the regulation; an identification and assessment of all available alternatives to the regulation, including modification of an existing regulation or statute, together with— an explanation of why the regulation meets the objectives of the regulation more effectively than the alternatives, and if the agency is proposing multiple alternatives, an explanation of why a notice of proposed rulemaking, rather than an advanced notice of proposed rulemaking, is appropriate; and if the regulation is not a pilot program, an explanation of why a pilot program is not appropriate; if the regulation specifies the behavior or manner of compliance, an explanation of why the agency did not instead specify performance objectives; an assessment of how the burden imposed by the regulation will be distributed among market participants, including whether consumers, investors, small businesses, or independent financial firms and advisors will be disproportionately burdened; an assessment of the extent to which the regulation is inconsistent, incompatible, or duplicative with the existing regulations of the agency or those of other domestic and international regulatory authorities with overlapping jurisdiction; a description of any studies, surveys, or other data relied upon in preparing the analysis; an assessment of the degree to which the key assumptions underlying the analysis are subject to uncertainty; and an explanation of predicted changes in market structure and infrastructure and in behavior by market participants, including consumers and investors, assuming that they will pursue their economic interests.
Notwithstanding any other provision of law, an agency may not issue a notice of final rulemaking with respect to a regulation unless the agency— has issued a notice of proposed rulemaking for the relevant regulation; has conducted and includes in the notice of final rulemaking an analysis that contains, at a minimum, the elements required under subsection (a); and includes in the notice of final rulemaking regulatory impact metrics selected by the chief economist to be used in preparing the report required pursuant to section 315.
The agency shall incorporate in the elements described in paragraph (1)(B) the data and analyses provided to the agency by commenters during the comment period, or explain why the data or analyses are not being incorporated. An agency shall not publish a notice of final rulemaking with respect to a regulation, unless the agency— has allowed at least 90 days from the date of publication in the Federal Register of the notice of proposed rulemaking for the submission of public comments; or includes in the notice of final rulemaking an explanation of why the agency was not able to provide a 90-day comment period.
An agency may not publish a notice of final rulemaking if the agency, in its analysis under paragraph (1)(B), determines that the quantified costs are greater than the quantified benefits under subsection (a)(5). If the agency is precluded by subparagraph
(A)from publishing a notice of final rulemaking, the agency shall publish in the Federal Register and on the public website of the agency its analysis under paragraph (1)(B), and provide the analysis to each House of Congress. If the agency is precluded by subparagraph
(A)from publishing a notice of final rulemaking, Congress, by joint resolution pursuant to the procedures set forth for joint resolutions in section 802 of title 5, United States Code, may direct the agency to publish a notice of final rulemaking notwithstanding the prohibition contained in subparagraph (A). In applying section 802 of title 5, United States Code, for purposes of this paragraph, section 802(e)(2) shall not apply and the terms— joint resolution or joint resolution described in subsection
(a)means only a joint resolution introduced during the period beginning on the submission or publication date and ending 60 days thereafter (excluding days either House of Congress is adjourned for more than 3 days during a session of Congress), the matter after the resolving clause of which is as follows: “That Congress directs, notwithstanding the prohibition contained in section 312(b)(4)(A) of the Financial CHOICE Act of 2017, the __ to publish the notice of final rulemaking for the regulation or regulations that were the subject of the analysis submitted by the __ to Congress on __.” (The blank spaces being appropriately filled in.); and submission or publication date means— the date on which the analysis under paragraph (1)(B) is submitted to Congress under paragraph (4)(B); or if the analysis is submitted to Congress less than 60 session days or 60 legislative days before the date on which the Congress adjourns a session of Congress, the date on which the same or succeeding Congress first convenes its next session.