II 

112TH CONGRESS 

1ST SESSION S. 1438 

To provide that no agency may take any significant regulatory action until 

the unemployment rate is equal to or less than 7.7 percent. 

IN THE SENATE OF THE UNITED STATES 

JULY 28, 2011 

Mr. JOHNSON of Wisconsin (for himself, Mr. PAUL, Mr. CORNYN, Mr. LEE, 

Mr. TOOMEY, Mr. RISCH, Mr. COBURN, Ms. AYOTTE, Mr. RUBIO, Mr. 

DEMINT, Mr. VITTER, Mr. GRASSLEY, Mr. ISAKSON, Mr. HATCH, Mr. 

WICKER, Mrs. HUTCHISON, Mr. INHOFE, Mr. BURR, Mr. COATS, Mr. 

BOOZMAN, and Mr. ENZI) introduced the following bill; which was read 

twice and referred to the Committee on Homeland Security and Governmental Affairs 

A BILL 

To provide that no agency may take any significant regulatory action until the unemployment rate is equal to 

or less than 7.7 percent. 

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 ‘‘Regulation Morato5 rium and Jobs Preservation Act of 2011’’. 

6 SEC. 2. DEFINITIONS. 

7 In this Act— 


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1 (1) the term ‘‘agency’’ has the meaning given 

2 under section 3502(1) of title 44, United States 

3 Code; 

4 (2) the term ‘‘regulatory action’’ means any 

5 substantive action by an agency that promulgates or 

6 is expected to lead to the promulgation of a final 

7 regulation, including notices of inquiry, advance no8 tices of proposed rulemaking, and notices of pro9 posed rulemaking; 

10 (3) the term ‘‘significant regulatory action’’ 

11 means any regulatory action that is likely to result 

12 in a rule or guidance that may— 

13 (A) have an annual effect on the economy 

14 of $100,000,000 or more or adversely affect in 

15 a material way the economy, a sector of the 

16 economy, productivity, competition, jobs, the 

17 environment, public health or safety, small enti18 ties, or State, local, or tribal governments or 

19 communities; 

20 (B) create a serious inconsistency or other21 wise interfere with an action taken or planned 

22 by another agency; 

23 (C) materially alter the budgetary impact 

24 of entitlements, grants, user fees, or loan proVerDate Mar 15 2010 05:30 Jul 29, 2011 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1438.IS S1438

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1 grams or the rights and obligations of recipi2 ents thereof; or 

3 (D) raise novel legal or policy issues; and 

4 (4) the term ‘‘small entities’’ has the meaning 

5 given under section 601(6) of title 5, United States 

6 Code. 

7 SEC. 3. SIGNIFICANT REGULATORY ACTIONS. 

8 (a) IN GENERAL.—No agency may take any signifi9 cant regulatory action, until the Bureau of Labor Statis10 tics average of monthly unemployment rates for any quar11 ter beginning after the date of enactment of this Act is 

12 equal to or less than 7.7 percent. 

13 (b) DETERMINATION.—The Secretary of Labor shall 

14 submit a report to the Director of the Office of Manage15 ment and Budget whenever the Secretary determines that 

16 the Bureau of Labor Statistics average of monthly unem17 ployment rates for any quarter beginning after the date 

18 of enactment of this Act is equal to or less than 7.7 per19 cent. 

20 SEC. 4. WAIVERS. 

21 (a) NATIONAL SECURITY OR NATIONAL EMER22 GENCY.—The President may waive the application of sec23 tion 3 to any significant regulatory action, if the Presi24 dent— 


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1 (1) determines that the waiver is necessary on 

2 the basis of national security or a national emer3 gency; and 

4 (2) submits notification to Congress of that 

5 waiver and the reasons for that waiver. 

6 (b) ADDITIONAL WAIVERS.— 

7 (1) SUBMISSION.—The President may submit a 

8 request to Congress for a waiver of the application 

9 of section 3 to any significant regulatory action. 

10 (2) CONTENTS.—A submission under this sub11 section shall include— 

12 (A) an identification of the significant reg13 ulatory action; and 

14 (B) the reasons which necessitate a waiver 

15 for that significant regulatory action. 

16 (3) CONGRESSIONAL ACTION.—Congress shall 

17 give expeditious consideration and take appropriate 

18 legislative action with respect to any waiver request 

19 submitted under this subsection. 

20 SEC. 5. JUDICIAL REVIEW. 

21 (a) DEFINITION.—In this section, the term ‘‘small 

22 business’’ means any business, including an unincor23 porated business or a sole proprietorship, that employs not 

24 more than 500 employees or that has a net worth of less 


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1 than $7,000,000 on the date a civil action arising under 

2 this Act is filed. 

3 (b) REVIEW.—Any person that is adversely affected 

4 or aggrieved by any significant regulatory action in viola5 tion of this Act is entitled to judicial review in accordance 

6 with chapter 7 of title 5, United States Code. 

7 (c) JURISDICTION.—Each court having jurisdiction 

8 to review any significant regulatory action for compliance 

9 with any other provision of law shall have jurisdiction to 

10 review all claims under this Act. 

11 (d) RELIEF.—In granting any relief in any civil ac12 tion under this section, the court shall order the agency 

13 to take corrective action consistent with this Act and chap14 ter 7 of title 5, United States Code, including remanding 

15 the significant regulatory action to the agency and enjoin16 ing the application or enforcement of that significant regu17 latory action, unless the court finds by a preponderance 

18 of the evidence that application or enforcement is required 

19 to protect against an imminent and serious threat to the 

20 national security from persons or states engaged in hostile 

21 or military activities against the United States. 

22 (e) REASONABLE ATTORNEY FEES FOR SMALL BUSI23 NESSES.—The court shall award reasonable attorney fees 

24 and costs to a substantially prevailing small business in 

25 any civil action arising under this Act. A party qualifies 


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1 as substantially prevailing even without obtaining a final 

2 judgment in its favor if the agency changes its position 

3 as a result of the civil action. 

4 (f) LIMITATION ON COMMENCING CIVIL ACTION.— 

5 A person may seek and obtain judicial review during the 

6 1-year period beginning on the date of the challenged 

7 agency action or within 90 days after an enforcement ac8 tion or notice thereof, except that where another provision 

9 of law requires that a civil action be commenced before 

10 the expiration of that 1-year period, such lesser period 

11 shall apply. 

Æ 


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