I

104TH CONGRESS

1ST SESSION H. R. 1937

To facilitate small business involvement in the regulatory development processes of the Environmental Protection Agency and the Occupational

Safety and Health Administration, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

JUNE 27, 1995

Mr. SCHIFF 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 facilitate small business involvement in the regulatory

development processes of the Environmental Protection

Agency and the Occupational Safety and Health Administration, 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; TABLE OF CONTENTS.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Small Business Advocacy Act of 1995’’.

6 (b) TABLE OF CONTENTS.—The table of contents for

7 this Act is as follows:
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Sec. 1. Short title; table of contents.

Sec. 2. Definitions.

TITLE I—SMALL BUSINESS ADVOCACY REVIEW

Sec. 101. Small business advocacy chairpersons.

Sec. 102. Small business advocacy review panels.

Sec. 103. Review panel personnel matters.

Sec. 104. Consultation with other entities.

Sec. 105. Report.

Sec. 106. Applicability of other law; judicial review.

Sec. 107. Moratorium on certain regulations.

TITLE II—PEER REVIEW SURVEY

Sec. 201. Peer review survey.

1 SEC. 2. DEFINITIONS.

2 For purposes of this Act, the following definitions

3 shall apply:

4 (1) AGENCY.—The term ‘‘agency’’ means—

5 (A) with respect to the Environmental

6 Small Business Advocacy Review Panel, the

7 Environmental Protection Agency; and

8 (B) with respect to the Occupational Safe9 ty and Health Small Business Advocacy Review

10 Panel, the Occupational Safety and Health Ad11 ministration of the Department of Labor.

12 (2) AGENCY HEAD.—The term ‘‘agency head’’

13 means—

14 (A) with respect to the Environmental

15 Small Business Advocacy Review Panel, the Ad16 ministrator of the Environmental Protection

17 Agency; and
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1 (B) with respect to the Occupational Safe2 ty and Health Small Business Advocacy Review

3 Panel, the Assistant Secretary for Occupational

4 Safety and Health of the Department of Labor.

5 (3) CHAIRPERSON.—The term ‘‘chairperson’’

6 means—

7 (A) with respect to the Environmental

8 Small Business Advocacy Review Panel, the

9 chairperson of such review panel designated

10 under section 101(a); and

11 (B) with respect to the Occupational Safe12 ty and Health Small Business Advocacy Review

13 Panel, the chairperson of such review panel des14 ignated under section 101(b).

15 (4) CHIEF COUNSEL FOR ADVOCACY.—The

16 term ‘‘Chief Counsel for Advocacy’’ means the Chief

17 Counsel for Advocacy of the Small Business Admin18 istration.

19 (5) FINAL RULE.—The term ‘‘final rule’’ means

20 any final rule or interim final rule issued by an

21 agency for which a review panel has been established

22 under section 101(c)(2)(A).

23 (6) OFFICE.—The term ‘‘Office’’ means the Of24 fice of Advocacy of the Small Business Administra25 tion.
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1 (7) REVIEW PANEL.—The term ‘‘review panel’’

2 means—

3 (A) with respect to a significant rule of the

4 Environmental Protection Agency, an Environ5 mental Small Business Advocacy Review Panel

6 established under section 101(c)(2)(A); and

7 (B) with respect to a significant rule of the

8 Occupational Safety and Health Administration

9 of the Department of Labor, an Occupational

10 Safety and Health Small Business Advocacy

11 Review Panel established under section

12 101(c)(2)(A).

13 (8) RULE.—The term ‘‘rule’’—

14 (A) means an agency statement of general

15 applicability and future effect, which the agency

16 intends to have the force and effect of law, that

17 is designed to implement, interpret, or prescribe

18 law or policy or to describe the procedure or

19 practice requirements of the agency; and

20 (B) does not include any rule that is lim21 ited to agency organization, management, or

22 personnel matters.

23 (9) SIGNIFICANT RULE.—The term ‘‘significant

24 rule’’ means any rule proposed by an agency that

25 the chairperson, in consultation with the Adminis-
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1 trator of the Office of Information and Regulatory

2 Affairs within the Office of Management and Budg3 et, reasonably estimates would have—

4 (A) an annual aggregate impact on State,

5 local, and tribal governments and the private

6 sector in an amount equal to not less than

7 $50,000,000; and

8 (B) an impact on small businesses.

9 (10) SMALL BUSINESS.—The term ‘‘small busi10 ness’’ has the same meaning as the term ‘‘small

11 business concern’’ in section 3 of the Small Business

12 Act.

13 TITLE I—SMALL BUSINESS

14 ADVOCACY REVIEW

15 SEC. 101. SMALL BUSINESS ADVOCACY CHAIRPERSONS.

16 (a) CHAIRPERSON OF ENVIRONMENTAL REVIEW

17 PANELS.—

18 (1) IN GENERAL.—Not later than 30 days after

19 the date of enactment of this Act, the Administrator

20 of the Environmental Protection Agency shall des21 ignate an employee of the Environmental Protection

22 Agency, who is a member of the Senior Executive

23 Service (as such term is defined in section 2101a of

24 title 5, United States Code) and whose immediate

25 supervisor is appointed by the President, to serve as
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1 the chairperson of each Environmental Small Busi2 ness Advocacy Review Panel and to carry out the

3 purposes of this Act with respect to the Environ4 mental Protection Agency.

5 (2) DISABILITY OR ABSENCE.—If the employee

6 designated to serve as chairperson under paragraph

7 (1) is unable to serve as chairperson because of dis8 ability or absence, the Administrator of the Environ9 mental Protection Agency shall designate another

10 employee who meets the qualifications of such para11 graph to serve as chairperson.

12 (b) CHAIRPERSON OF OSHA REVIEW PANELS.—

13 (1) IN GENERAL.—Not later than 30 days after

14 the date of enactment of this Act, the Assistant Sec15 retary for Occupational Safety and Health of the

16 Department of Labor shall designate an employee of

17 the Occupational Safety and Health Administration

18 of the Department of Labor, who is a member of the

19 Senior Executive Service (as such term is defined in

20 section 2101a of title 5, United States Code) and

21 whose immediate supervisor is appointed by the

22 President, to serve as the chairperson of each Occu23 pational Safety and Health Small Business Advocacy

24 Review Panel and to carry out the purposes of this
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1 Act with respect to the Occupational Safety and

2 Health Administration.

3 (2) DISABILITY OR ABSENCE.—If the employee

4 designated to serve as chairperson under paragraph

5 (1) is unable to serve as chairperson because of dis6 ability or absence, the Assistant Secretary for Occu7 pational Safety and Health of the Department of

8 Labor shall designate another employee who meets

9 the qualifications of such paragraph to serve as

10 chairperson.

11 (c) DUTIES OF THE CHAIRPERSON.—

12 (1) INITIAL DETERMINATION AND NOTIFICA13 TION.—

14 (A) TIMING.—The chairperson shall take

15 the actions described in subparagraph (B) at

16 least 45 days before the earlier of—

17 (i) the date of publication by an agen18 cy of a general notice of proposed rule19 making in the Federal Register under sec20 tion 553(b) of title 5, United States Code,

21 or any other provision of law; or

22 (ii) the date of publication by an

23 agency of a proposed rule in the Federal

24 Register.
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1 (B) ACTIONS.—With respect to a proposed

2 rule that is the subject of a publication de3 scribed in clause (i) or (ii) of subparagraph (A),

4 the chairperson shall—

5 (i) determine (in accordance with sec6 tion 2(9)) whether the subject proposed

7 rule constitutes a significant rule; and

8 (ii) if so, notify the Administrator of

9 the Office of Information and Regulatory

10 Affairs within the Office of Management

11 and Budget and the Chief Counsel for Ad12 vocacy to appoint review panel members in

13 accordance with section 102(b) for evalua14 tion of the subject significant rule.

15 (2) ESTABLISHMENT OF REVIEW PANELS.—

16 (A) IN GENERAL.—Not later than 15 days

17 after receiving notice under paragraph

18 (1)(B)(ii), or such longer period as the chair19 person may allow, review panel members shall

20 be appointed by the Administrator of the Office

21 of Information and Regulatory Affairs within

22 the Office of Management and Budget, the

23 Chief Counsel for Advocacy, and the chair24 person in accordance with section 102(b).
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1 (B) EXCEPTIONS.—A review panel shall be

2 established in accordance with subparagraph

3 (A) unless the chairperson, in consultation with

4 the Chief Counsel for Advocacy, determines

5 (and notifies the agency in writing of such de6 termination) that—

7 (i) a good faith effort to secure

8 enough non-Federal employee review panel

9 members necessary to constitute a quorum

10 with respect to the subject significant rule

11 was unsuccessful; and

12 (ii) compliance with this Act is not re13 quired with respect to the subject signifi14 cant rule due to a lack of availability of

15 private sector interests.

16 (d) DUTIES REGARDING FINAL RULE.—

17 (1) IN GENERAL.—At least 45 days before the

18 issuance of a final rule, the chairperson shall—

19 (A) notify panel members of the intent of

20 the agency to issue a final rule;

21 (B) provide panel members with a dated

22 draft of the final rule to be issued;

23 (C) solicit comments from panel members

24 in accordance with the duties of the review

25 panel described in section 102(a); and
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1 (D) if the chairperson determines that

2 such action is necessary, call one or more meet3 ings of the review panel and, if a quorum is

4 present, direct the review panel to review, dis5 cuss, or clarify any issue related to the subject

6 final rule or the preparation of the report under

7 paragraph (2).

8 (2) REPORT.—Except as provided in section

9 105(b), at least 5 days before the issuance of a final

10 rule, the chairperson shall submit a report in accord11 ance with section 105(a).

12 SEC. 102. SMALL BUSINESS ADVOCACY REVIEW PANELS.

13 (a) GENERAL DUTIES.—Before any publication de14 scribed in clause (i) or (ii) of section 101(c)(1)(A) of a

15 proposed significant rule, and again before the issuance

16 of such rule as a final rule, the review panel shall, in ac17 cordance with this Act—

18 (1) provide technical guidance to the agency, in19 cluding guidance relating to—

20 (A) the applicability of the proposed rule

21 to small businesses;

22 (B) enforcement of and compliance with

23 the rule by small businesses;

24 (C) the consistency or redundancy of the

25 proposed rule with respect to other Federal,
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1 State, and local regulations and recordkeeping

2 requirements imposed on small businesses; and

3 (D) any other concerns posed by the pro4 posed rule that may impact significantly upon

5 small businesses; and

6 (2) evaluate each rule in the context of the re7 quirements imposed under—

8 (A) subsections (b) and (c) of section 603,

9 paragraphs (1) through (3) of section 604(a),

10 section 604(b), and paragraphs (1) through (5)

11 of section 609 of title 5, United States Code;

12 (B) sections 202 and 205 of the Unfunded

13 Mandates Act of 1995 (Public Law 104–4);

14 (C) subsection (a) and paragraphs (1)

15 through (12) of subsection (b) of section 1 of

16 Executive Order No. 12866, September 30,

17 1993; and

18 (D) any other requirement under any other

19 Act, including those relative to regulatory re20 form requirements that affect compliance, exist21 ing Federal or State regulations that may du22 plicate, overlap, or conflict with the significant

23 rule, and the readability and complexity of rules

24 and regulations.
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1 (b) MEMBERSHIP.—Each review panel shall be com2 posed of—

3 (1) the chairperson;

4 (2) not less than 1 nor more than 3 members

5 appointed by the chairperson from among employees

6 of the agency who would be responsible for carrying

7 out the subject significant rule;

8 (3) 1 member appointed by the Administrator

9 of the Office of Information and Regulatory Affairs

10 within the Office of Management and Budget from

11 among the employees of that office who have specific

12 knowledge of or responsibilities relating to the regu13 latory responsibilities of the agency that would be

14 responsible for carrying out the subject significant

15 rule;

16 (4) 1 member appointed by the Chief Counsel

17 for Advocacy from among the employees of the Of18 fice; and

19 (5) not less than 1 nor more than 3 members

20 selected by the Chief Counsel for Advocacy from

21 among individuals who are representatives of—

22 (A) small businesses that would be im23 pacted by the significant rule;
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1 (B) small business sectors or industries

2 that would be especially impacted by the signifi3 cant rule; or

4 (C) organizations whose memberships are

5 comprised of a cross-section of small businesses.

6 (c) PERIOD OF APPOINTMENT; VACANCIES.—

7 (1) PERIOD OF APPOINTMENT.—Each review

8 panel member, other than the chairperson, shall be

9 appointed for a term beginning on the date on which

10 the appointment is made and ending on the date on

11 which the report or written record is submitted

12 under section 105.

13 (2) VACANCIES.—Any vacancy on a review

14 panel shall not affect the powers of the review panel,

15 but shall be filled in the same manner as the origi16 nal appointment.

17 (d) QUORUM.—A quorum for the conduct of business

18 by a review panel shall consist of 1 member appointed

19 from each of paragraphs (2) through (5) of subsection (b).

20 (e) MEETINGS.—

21 (1) IN GENERAL.—Subject to paragraph (2),

22 the meetings of the review panel shall be at the call

23 of the chairperson.

24 (2) INITIAL MEETING.—Not later than 15 days

25 after all review panel members necessary to con-
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1 stitute a quorum have been appointed under sub2 section (b), the chairperson shall conduct the initial

3 meeting of the review panel.

4 (f) POWERS OF REVIEW PANEL.—

5 (1) INFORMATION FROM FEDERAL AGENCIES.—

6 A review panel may secure, directly from any Fed7 eral department or agency, such information as the

8 review panel considers necessary to carry out this

9 title. Upon request of the chairperson, the head of

10 such department or agency shall furnish such infor11 mation to the review panel.

12 (2) POSTAL SERVICES.—A review panel may

13 use the United States mails in the same manner and

14 under the same conditions as other departments and

15 agencies of the Federal Government.

16 SEC. 103. REVIEW PANEL PERSONNEL MATTERS.

17 (a) NONCOMPENSATION OF MEMBERS.—

18 (1) IN GENERAL.—Members of the review panel

19 who are not officers or employees of the Federal

20 Government shall serve without compensation.

21 (2) FEDERAL EMPLOYEES.—Members of the re22 view panel who are officers or employees of the Fed23 eral Government shall serve without compensation in

24 addition to that received for their services as officers

25 or employees of the Federal Government.
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1 (b) DETAIL OF GOVERNMENT EMPLOYEES.—Any

2 Federal Government employee may be detailed to a review

3 panel without reimbursement, and such detail shall be

4 without interruption or loss of civil service status or privi5 lege.

6 SEC. 104. CONSULTATION WITH OTHER ENTITIES.

7 In carrying out this title, the chairperson shall con8 sult and coordinate, to the maximum extent practicable,

9 the activities of the review panel with each office of the

10 agency that is responsible for the provision of data or tech11 nical advice concerning a significant rule.

12 SEC. 105. REPORT.

13 (a) IN GENERAL.—Except as provided in subsection

14 (b), the chairperson shall, in accordance with section

15 101(d)(2), submit to the appropriate employees of the

16 agency who would be responsible for carrying out the sub17 ject significant rule and to the appropriate committees of

18 the Senate and the House of Representatives a report,

19 which shall include—

20 (1) the findings and recommendations of the re21 view panel with respect to the significant rule, in22 cluding both the majority and minority views of the

23 review panel members, regardless of the consensus

24 of opinions that may derive from the meetings of the

25 review panel; and
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1 (2) recommendations regarding whether a sur2 vey with respect to the subject significant rule

3 should be conducted under title II and—

4 (A) if so—

5 (i) a timeframe during which the sur6 vey should be conducted, taking into ac7 count the time required to implement the

8 rule and to gather appropriate data; and

9 (ii) any recommendations of the re10 view panel regarding the contents of the

11 survey; and

12 (B) if not, the reasons why such a survey

13 is not recommended.

14 (b) FAILURE TO SUBMIT REPORT.—If the chair15 person fails to submit a report under subsection (a), on

16 or before the date on which the final rule is issued, the

17 chairperson shall—

18 (1) prepare a written record of such failure de19 tailing the reasons therefor; and

20 (2) submit a copy of such written record to the

21 head of the agency and to the appropriate commit22 tees of the Senate and the House of Representatives.
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1 SEC. 106. APPLICABILITY OF OTHER LAW; JUDICIAL RE2 VIEW.

3 (a) INAPPLICABILITY OF FEDERAL ADVISORY COM4 MITTEE ACT.—The provisions of the Federal Advisory

5 Committee Act do not apply to any review panel estab6 lished in accordance with this title.

7 (b) PROHIBITION ON JUDICIAL REVIEW.—No action

8 or inaction of a review panel, including any recommenda9 tions or advice of a review panel or any procedure or proc10 ess of a review panel, may be subject to judicial review

11 by a court of the United States under chapter 7 of title

12 5, United States Code, or any other provision of law.

13 SEC. 107. MORATORIUM ON CERTAIN PUBLICATIONS.

14 Notwithstanding any other provision of this Act, no

15 agency shall make any publication described in clause (i)

16 or (ii) of section 101(c)(1)(A) until the initial chairperson

17 appointed under section 101 has had an adequate oppor18 tunity to review the subject proposed rule in accordance

19 with section 101(c)(1)(A).

20 TITLE II—PEER REVIEW SURVEY

21 SEC. 201. PEER REVIEW SURVEY.

22 (a) IN GENERAL.—If a review panel makes a rec23 ommendation in any report submitted under section

24 105(a) that a survey should be conducted with respect to

25 a significant rule, the agency shall contract with a private

26 sector auditing firm or other survey-related organization
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1 to conduct a survey of a cross-section of the small busi2 nesses impacted by the rule.

3 (b) CONTENTS OF SURVEY.—Each survey conducted

4 under this section shall address the impact of the signifi5 cant rule on small businesses, including—

6 (1) the applicability of the rule to various small

7 businesses;

8 (2) the degree to which the rule is easy to read

9 and comprehend;

10 (3) the costs to implement the rule;

11 (4) any recordkeeping requirements imposed by

12 the rule; and

13 (5) any other technical or general issues related

14 to the rule.

15 (c) AVAILABILITY OF SURVEY RESULTS.—The re16 sults of each survey conducted under this section shall be

17 made available—

18 (1) to each interested Federal agency; and

19 (2) upon request, to any other interested party,

20 including organizations, individuals, State and local

21 governments, and the Congress.

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