I

104TH CONGRESS

2D SESSION H. R. 3048

To authorize small entities to seek judicial review of agency certifications

of the economic impacts of rules on small entities, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

MARCH 7, 1996

Mr. EWING introduced the following bill; which was referred to the Committee

on the Judiciary, and in addition to the Committee on Small Business,

for a period to be subsequently determined by the Speaker, in each case

for consideration of such provisions as fall within the jurisdiction of the

committee concerned

A BILL

To authorize small entities to seek judicial review of agency

certifications of the economic impacts of rules on small

entities, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Regulatory Flexibility

5 Amendments Act of 1996’’.

6 SEC. 2. JUDICIAL REVIEW.

7 (a) AMENDMENT.—Section 611 of title 5, United

8 States Code, is amended to read as follows:
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1 ‘‘§ 611. Judicial review

2 ‘‘(a)(1) Not later than one year, notwithstanding any

3 other provision of law, after the effective date of a final

4 rule with respect to which an agency—

5 ‘‘(A) certified, pursuant to section 605(b), that

6 such rule would not have a significant economic im7 pact on a substantial number of small entities; or

8 ‘‘(B) prepared a final regulatory flexibility anal9 ysis pursuant to section 604,

10 an affected small entity may petition for the judicial re11 view of such certification or analysis in accordance with

12 the terms of this subsection. A court having jurisdiction

13 to review such rule for compliance with the provisions of

14 section 553 or under any other provision of law shall have

15 jurisdiction to review such certification or analysis. In the

16 case where an agency delays the issuance of a final regu17 latory flexibility analysis pursuant to section 608(b), a pe18 tition for judicial review under this subsection shall be

19 filed not later than one year, notwithstanding any other

20 provision of law, after the date the analysis is made avail21 able to the public.

22 ‘‘(2) For purposes of this subsection, the term ‘af23 fected small entity’ means a small entity that is or will

24 be adversely affected by the final rule.

25 ‘‘(3) Nothing in this subsection shall be construed to

26 affect the authority of any court to stay the effective date
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1 of any rule or provision thereof under any other provision

2 of law.

3 ‘‘(4)(A) In the case where the agency certified that

4 such rule would not have a significant economic impact

5 on a substantial number of small entities, the court may

6 order the agency to prepare a final regulatory flexibility

7 analysis pursuant to section 604 if the court determines,

8 on the basis of the rulemaking record, that the certifi9 cation was arbitrary, capricious, an abuse of discretion,

10 or otherwise not in accordance with law.

11 ‘‘(B) In the case where the agency prepared a final

12 regulatory flexibility analysis, the court may order the

13 agency to take corrective action consistent with the re14 quirements of section 604 if the court determines, on the

15 basis of the rulemaking record, that the final regulatory

16 flexibility analysis was prepared by the agency without ob17 servance of procedure required by section 604.

18 ‘‘(5) If, by the end of the 90-day period beginning

19 on the date of the order of the court pursuant to para20 graph (4) (or such longer period as the court may pro21 vide), the agency fails, as appropriate—

22 ‘‘(A) to prepare the analysis required by section

23 604; or

24 ‘‘(B) to take corrective action consistent with

25 the requirements of section 604,
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1 the court may stay the rule or grant such other relief as

2 it deems appropriate.

3 ‘‘(6) In making any determination or granting any

4 relief authorized by this subsection, the court shall take

5 due account of the rule of prejudicial error.

6 ‘‘(b) In an action for the judicial review of a rule,

7 any regulatory flexibility analysis for such rule (including

8 an analysis prepared or corrected pursuant to subsection

9 (a)(4)) shall constitute part of the whole record of agency

10 action in connection with such review.

11 ‘‘(c) Nothing in this section bars judicial review of

12 any other impact statement or similar analysis required

13 by any other law if judicial review of such statement or

14 analysis is otherwise provided by law.’’.

15 (b) EFFECTIVE DATE.—The amendment made by

16 subsection (a) shall apply only to final agency rules issued

17 after the date of enactment of this Act.

18 SEC. 3. RULES COMMENTED ON BY SBA CHIEF COUNSEL

19 FOR ADVOCACY.

20 (a) IN GENERAL.—Section 612 of title 5, United

21 States Code, is amended by adding at the end the follow22 ing new subsection:

23 ‘‘(d) ACTION BY THE SBA CHIEF COUNSEL FOR AD24 VOCACY.—
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1 ‘‘(1) TRANSMITTAL OF PROPOSED RULES AND

2 INITIAL REGULATORY FLEXIBILITY ANALYSIS TO

3 SBA CHIEF COUNSEL FOR ADVOCACY.—On or before

4 the 30th day preceding the date of publication by an

5 agency of general notice of proposed rulemaking for

6 a rule, the agency shall transmit to the Chief Coun7 sel for Advocacy of the Small Business Administra8 tion—

9 ‘‘(A) a copy of the proposed rule; and

10 ‘‘(B)(i) a copy of the initial regulatory

11 flexibility analysis for the rule if required under

12 section 603; or

13 ‘‘(ii) a determination by the agency that an

14 initial regulatory flexibility analysis is not re15 quired for the proposed rule under section 603

16 and an explanation for the determination.

17 ‘‘(2) STATEMENT OF EFFECT.—On or before

18 the 15th day following receipt of a proposed rule and

19 initial regulatory flexibility analysis from an agency

20 under paragraph (1), the Chief Counsel for Advo21 cacy may transmit to the agency a written statement

22 of the effect of the proposed rule on small entities.

23 ‘‘(3) RESPONSE.—If the Chief Counsel for Ad24 vocacy transmits to an agency a statement of effect

25 on a proposed rule in accordance with paragraph
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1 (2), the agency shall publish the statement, together

2 with the response of the agency to the statement, in

3 the Federal Register at the time of publication of

4 general notice of proposed rulemaking for the rule.

5 ‘‘(4) SPECIAL RULE.—Any proposed rules is6 sued by an appropriate Federal banking agency (as

7 that term is defined in section 3(q) of the Federal

8 Deposit Insurance Act (12 U.S.C. 1813(q)), the Na9 tional Credit Union Administration, or the Office of

10 Federal Housing Enterprise Oversight, in connection

11 with the implementation of monetary policy or to en12 sure the safety and soundness of federally insured

13 depository institutions, any affiliate of such an insti14 tution, credit unions, or government sponsored hous15 ing enterprises or to protect the Federal deposit in16 surance funds shall not be subject to the require17 ments of this subsection.’’.

18 (b) CONFORMING AMENDMENT.—Section 603(a) of

19 title 5, United States Code, is amended by inserting ‘‘in

20 accordance with section 612(d)’’ before the period at the

21 end of the last sentence.

22 SEC. 4. SENSE OF CONGRESS REGARDING SBA CHIEF

23 COUNSEL FOR ADVOCACY.

24 It is the sense of Congress that the Chief Counsel

25 for Advocacy of the Small Business Administration should
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1 be permitted to appear as amicus curiae in any action or

2 case brought in a court of the United States for the pur3 pose of reviewing a rule.

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