Calendar No. 33

104TH CONGRESS

1ST SESSION S. 219

[Report No. 104–15]

A BILL

To ensure economy and efficiency of Federal Govpurposes. on regulatory rulemaking actions, and for other ernment operations by establishing a moratorium

MARCH 16, 1995

Reported with an amendment
II

Calendar No. 33

104TH CONGRESS

1ST SESSION S. 219

[Report No. 104–15]

To ensure economy and efficiency of Federal Government operations by establishing a moratorium on regulatory rulemaking actions, and for other

purposes.

IN THE SENATE OF THE UNITED STATES

JANUARY 12 (legislative day, JANUARY 10), 1995

Mr. NICKLES (for himself, Mr. BOND, Mrs. HUTCHISON, Mr. DOLE, Mr.

GRASSLEY, Mr. ASHCROFT, Mr. COVERDELL, Mr. ABRAHAM, Mr.

THOMPSON, Mr. BURNS, Mr. SHELBY, Mr. MCCONNELL, Mr.

FAIRCLOTH, Mr. THOMAS, Mr. SMITH, Mr. MCCAIN, Mr. CRAIG, Mr.

COATS, Mr. SANTORUM, Mr. MACK, Mr. GREGG, Mr. MURKOWSKI, Mr.

LOTT, Mr. KYL, Mr. THURMOND, Mr. HATCH, Mr. HELMS, Mr. INHOFE,

Mr. SIMPSON, Mr. GRAMM, Mr. FRIST, Mr. GRAMS, Mr. BENNETT, Mr.

KEMPTHORNE, Mr. D’AMATO, Mr. STEVENS, and Mr. COCHRAN) introduced the following bill; which was read twice and referred to the Committee on Governmental Affairs

MARCH 16, 1995

Reported by Mr. ROTH, with an amendment

[Strike out all after the enacting clause and insert the part printed in italic]

A BILL

To ensure economy and efficiency of Federal Government

operations by establishing a moratorium on regulatory

rulemaking actions, and for other purposes.
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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 Transition

5 Act of 1995’’.

6 SEC. 2. FINDING.

7 The Congress finds that effective steps for improving

8 the efficiency and proper management of Government op9 erations will be promoted if a moratorium on new rule

10 making actions is imposed and an inventory of such ac11 tions is conducted.

12 SEC. 3. MORATORIUM ON REGULATIONS.

13 (a) MORATORIUM.—During the moratorium period, a

14 Federal agency may not take any regulatory rulemaking

15 action, unless permitted under section 5. Beginning 30

16 days after the date of enactment of this Act, the effective17 ness of any regulatory rulemaking action taken during the

18 moratorium period but before the date of the enactment

19 shall be suspended until July 1, 1995, unless an exception

20 is provided under section 5.

21 (b) INVENTORY OF RULEMAKING.—Not later than 30

22 days after the date of enactment of this Act, the President

23 shall conduct an inventory and publish in the Federal Reg24 ister a list of all regulatory rulemaking actions covered

25 by subsection (a) and pending on the date of enactment.
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1 SEC. 4. SPECIAL RULE ON STATUTORY, REGULATORY AND

2 JUDICIAL DEADLINES.

3 (a) IN GENERAL.—Any deadline for, relating to, or

4 involving any action dependent upon, any regulatory rule5 making action authorized or required to be taken before

6 the end of the moratorium period is extended.

7 (b) EXTENSION PERIOD.—Any deadline covered by

8 subsection (a) shall be extended for 5 months or until July

9 1, 1995, whichever is later.

10 (c) DEADLINE DEFINED.—The term ‘‘deadline’’

11 means any date certain for fulfilling any obligation or ex12 ercising any authority established by or under any Federal

13 statute or regulation, or by or under any court order im14 plementing any Federal statute or regulation.

15 (d) IDENTIFICATION OF POSTPONED DEADLINES.—

16 Not later than 30 days after the date of enactment of this

17 Act, the President shall identify and publish in the Fed18 eral Register a list of deadlines covered by subsection (a).

19 SEC. 5. EMERGENCY EXCEPTIONS; EXCLUSIONS.

20 (a) EMERGENCY EXCEPTION.—Section 3(a) or 4(a),

21 or both, shall not apply to a regulatory rulemaking action

22 if—

23 (1) the head of a Federal agency otherwise au24 thorized to take the action submits a written request

25 to the President, and a copy thereof to the appro-
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1 priate committees of each house of the Congress;

2 and

3 (2) the President finds, by Executive Order,

4 that a waiver for the action is—

5 (A) necessary because of an imminent

6 threat to health or safety or other emergency;

7 or

8 (B) necessary for the enforcement of crimi9 nal laws; and

10 (3) the Federal agency head publishes the find11 ing and waiver in the Federal Register.

12 (b) EXCLUSIONS.—The head of an agency shall pub13 lish in the Federal Register any action excluded because

14 of a certification under section 6(3)(B).

15 SEC. 6. DEFINITIONS.

16 For purposes of this Act—

17 (1) FEDERAL AGENCY.—The term ‘‘Federal

18 agency’’ means any ‘‘agency’’ as that term is defined

19 in section 551(1) of title 5, United States Code (re20 lating to administrative procedure).

21 (2) MORATORIUM PERIOD.—The term ‘‘morato22 rium period’’ means that period of time beginning

23 November 9, 1994, and ending June 30, 1995.

24 (3) REGULATORY RULEMAKING ACTION.—
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1 (A) IN GENERAL.—The term ‘‘regulatory

2 rulemaking action’’ means any rule making (as

3 defined in section 551(5) of title 5, United

4 States Code) on any rule normally published in

5 the Federal Register, including—

6 (i) the issuance of any substantive

7 rule, interpretative rule, statement of agen8 cy policy, notice of inquiry, advance notice

9 of proposed rulemaking, or notice of pro10 posed rulemaking, and

11 (ii) any other action taken in the

12 course of the process of rulemaking (except

13 a cost benefit analysis or risk assessment,

14 or both).

15 (B) EXCLUSIONS.—The term ‘‘regulatory

16 rulemaking action’’ does not include—

17 (i) any agency action that the head of

18 the agency certifies is limited to repealing,

19 narrowing, or streamlining a rule, regula20 tion, or administrative process, to issuing

21 or promulgating a rule required to make

22 effective tax relief provided by statute, or

23 otherwise reducing regulatory burdens; or

24 (ii) any action that the head of the

25 agency certifies is limited to matters relat-
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1 ing to military or foreign affairs functions

2 or agency management, personnel, or pub3 lic property, loans, grants, benefits or con4 tracts.

5 (4) RULE.—The term ‘‘rule’’ means the whole

6 or a part of an agency statement of general or par7 ticular applicability and future effect designed to im8 plement, interpret, or prescribe law or policy. Such

9 term does not include the approval or prescription,

10 on a case-by-case or consolidated case basis, for the

11 future of rates, wages, corporate or financial struc12 tures or reorganization thereof, prices, facilities, ap13 pliances, services or allowances therefor or of valu14 ations, costs, or accounting, or practices bearing on

15 any of the foregoing. Such term also does not in16 clude the granting of an application for a license,

17 registration, or similar authority, granting or rec18 ognizing an exemption, granting a variance or peti19 tion for relief from a regulatory requirement, or

20 other action relieving a restriction, or adopting a

21 rule necessary to permit new or improved applica22 tions of technology.

23 SEC. 7. CIVIL ACTION.

24 In addition to any remedy otherwise available, who25 ever is adversely affected by any conduct of a Federal
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1 agency in violation of section 3 or 4 may in civil action

2 against that agency obtain appropriate relief. The court

3 may award a prevailing plaintiff in an action under this

4 section reasonable attorney’s fees.

5 SEC. 8. SEVERABILITY.

6 (a) APPLICABILITY.—This Act shall apply notwith7 standing any other provision of law.

8 (b) SEVERABILITY.—If any provision of this Act, or

9 the application of any provision of this Act to any person

10 or circumstance, is held invalid, the application of such

11 provision to other persons or circumstances, and the re12 mainder of this Act, shall not be affected thereby.

13 SECTION 1. SHORT TITLE.

14 This Act may be cited as the ‘‘Regulatory Transition

15 Act of 1995’’.

16 SEC. 2. FINDING.

17 The Congress finds that effective steps for improving

18 the efficiency and proper management of Government oper19 ations will be promoted if a moratorium on certain signifi20 cant regulatory actions is imposed and an inventory of such

21 actions is conducted.

22 SEC. 3. MORATORIUM ON REGULATIONS.

23 (a) MORATORIUM.—During the moratorium period, a

24 Federal agency may not take any significant regulatory ac25 tion, unless permitted under section 5. Beginning 30 days
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1 after the date of enactment of this Act, the effectiveness of

2 any significant regulatory action taken during the morato3 rium period but before the date of the enactment shall be

4 suspended until the end of the moratorium, unless an excep5 tion is provided under section 5.

6 (b) INVENTORY OF RULEMAKING.—Not later than 30

7 days after the date of enactment of this Act, and on a

8 monthly basis thereafter, the Administrator of the Office of

9 Information and Regulatory Affairs within the Office of

10 Management and Budget shall conduct an inventory and

11 publish in the Federal Register a list of all significant regu12 latory actions covered by subsection (a), identifying those

13 which have been granted an exception as provided under

14 section 5.

15 SEC. 4. SPECIAL RULE ON STATUTORY, REGULATORY AND

16 JUDICIAL DEADLINES.

17 (a) IN GENERAL.—Any deadline for, relating to, or in18 volving any action dependent upon, any significant regu19 latory action prohibited or suspended under section 3 is ex20 tended for 5 months or until the date occurring 5 months

21 after the end of the moratorium period, whichever is later.

22 (b) DEADLINE DEFINED.—The term ‘‘deadline’’ means

23 any date certain for fulfilling any obligation or exercising

24 any authority established by or under any Federal statute
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1 or regulation, or by or under any court order implementing

2 any Federal statute or regulation.

3 (c) IDENTIFICATION OF POSTPONED DEADLINES.—Not

4 later than 30 days after the date of enactment of this Act,

5 the Administrator of the Office of Information and Regu6 latory Affairs within the Office of Management and Budget

7 shall identify and publish in the Federal Register a list of

8 deadlines covered by subsection (a).

9 SEC. 5. EXCEPTIONS.

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

11 (b), section 3(a) or 4(a), or both, shall not apply to a sig12 nificant regulatory action if—

13 (1) the head of a Federal agency otherwise au14 thorized to take the action submits a written request

15 to the President, and a copy thereof to the appro16 priate committees of each house of the Congress;

17 (2) the President finds, in writing, the action

18 is—

19 (A) necessary because of an imminent

20 threat to human health or safety or other emer21 gency;

22 (B) necessary for the enforcement of crimi23 nal laws;

24 (C) related to a regulation that has as its

25 principal effect fostering economic growth, re-
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1 pealing, narrowing, or streamlining a rule, regu2 lation, administrative process, or otherwise re3 ducing regulatory burdens;

4 (D) issued with respect to matters relating

5 to military or foreign affairs or international

6 trade;

7 (E) principally related to agency organiza8 tion, management, or personnel;

9 (F) a routine administrative action, or

10 principally related to public property, loans,

11 grants, benefits, or contracts;

12 (G) limited to matters relating to negotiated

13 rulemaking carried out between Indian tribes

14 and the applicable agency under the Indian Self15 Determination Act Amendments of 1994 (Public

16 Law 103-413; 108 Stat. 4250); or

17 (H) limited to interpreting, implementing,

18 or administering the internal revenue laws of the

19 United States; and

20 (3) the Federal agency head publishes the finding

21 in the Federal Register.

22 (b) INAPPLICABILITY OF EXCEPTIONS.—The authority

23 provided under subsection (a) shall not apply to any action

24 described under section 6(B)(ii).
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1 SEC. 6. DEFINITIONS.

2 For purposes of this Act—

3 (1) FEDERAL AGENCY.—The term ‘‘Federal agen4 cy’’ means any ‘‘agency’’ as that term is defined in

5 section 551(1) of title 5, United States Code (relating

6 to administrative procedure).

7 (2) MORATORIUM PERIOD.—The term ‘‘morato8 rium period’’ means that period of time beginning

9 November 9, 1994, and ending on December 31, 1995,

10 unless an Act of Congress provides an earlier termi11 nation date for such period.

12 (3) SIGNIFICANT REGULATORY ACTION.—The

13 term ‘‘significant regulatory action’’ means any ac14 tion that—

15 (A)(i) consists of the issuance of any sub16 stantive rule, interpretative rule, statement of

17 agency policy, guidance, guidelines, or notice of

18 proposed rulemaking; and

19 (ii) the Administrator of the Office of Infor20 mation and Regulatory Affairs within the Office

21 of Management and Budget finds—

22 (I) has an annual effect on the econ23 omy of $100,000,000 or more or adversely

24 affects in a material way the economy, a

25 sector of the economy, productivity, com26 petition, jobs, the environment, public
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1 health or safety, or State, local, or tribal

2 governments or communities;

3 (II) creates a serious inconsistency or

4 otherwise interferes with an action taken or

5 planned by another agency;

6 (III) materially alters the budgetary

7 impact of entitlements, grants, user fees, or

8 loan programs or the rights and obligations

9 of recipients thereof; or

10 (IV) raises novel legal or policy issues

11 arising out of legal mandates, the Presi12 dent’s priorities, or the principles set forth

13 in Executive Order 12866; or

14 (B)(i) withdraws or restricts recreational,

15 subsistence, or commercial use of any land under

16 the control of a Federal agency, except for those

17 actions described under paragraph (4) (K) and

18 (L); or

19 (ii) is taken to carry out—

20 (I) the Interagency Memorandum of

21 Agreement Concerning Wetlands Deter22 minations for Purposes of Section 404 of the

23 Clean Water Act and Subtitle B of the Food

24 Security Act (59 Fed. Reg. 2920) (referred
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1 to in this clause as the ‘‘Memorandum of

2 Agreement’’); or

3 (II) any method of delineating wet4 lands based on the Memorandum of Agree5 ment for purposes of carrying out subtitle C

6 of title XII of the Food Security Act of 1985

7 (16 U.S.C. 3821 et seq.) or section 404 of

8 the Federal Water Pollution Control Act (33

9 U.S.C. 1344).

10 (4) RULE; GUIDANCE; OR GUIDELINES.—The

11 terms ‘‘rule’’, ‘‘guidance’’, or ‘‘guideline’’ mean the

12 whole or a part of an agency statement of general or

13 particular applicability and future effect designed to

14 implement, interpret, or prescribe law or policy. Such

15 term shall not include—

16 (A) the approval or prescription, including

17 on a case-by-case or consolidated case basis, for

18 the future of rates, wages, corporate or financial

19 structures or reorganization thereof, prices, fa20 cilities, appliances, services or allowances there21 for or of valuations, costs, or accounting, or

22 practices bearing on any of the foregoing;

23 (B) any action taken in connection with the

24 implementation of monetary policy or to ensure

25 the safety and soundness of federally insured de-
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1 pository institutions, any affiliate of such an in2 stitution, credit unions, the Federal Home Loan

3 Banks, or Government sponsored housing enter4 prises, or to protect the Federal deposit insur5 ance funds;

6 (C) any action taken to ensure the safety

7 and soundness of a Farm Credit System institu8 tion or to protect the Farm Credit Insurance

9 Fund;

10 (D) any action taken in connection with the

11 reintroduction of non-essential experimental pop12 ulations of wolves before the date of the enact13 ment of this Act;

14 (E) any action by the Environmental Pro15 tection Agency that would protect the public

16 from exposure to lead from house paint, soil, or

17 drinking water;

18 (F) any action to provide compensation to

19 Persian Gulf War veterans for disability from

20 undiagnosed illnesses, as provided under the Per21 sian Gulf War Veterans’ Benefits Act (title I of

22 Public Law 103–446; 108 Stat. 4647) and the

23 amendments made by that Act;
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1 (G) any action to improve aircraft safety,

2 including such an action to improve the air3 worthiness of aircraft engines;

4 (H) any action that would upgrade safety

5 and training standards for commuter airlines to

6 the standards of major airlines;

7 (I) the promulgation of any rule or regula8 tion relating to aircraft overflights on national

9 parks by the Secretary of Transportation or the

10 Secretary of the Interior pursuant to the proce11 dures specified in the advanced notice of pro12 posed rulemaking published on March 17, 1994,

13 at 59 Fed. Reg. 12740 et seq., except that this

14 subparagraph shall not apply to any such over15 flight in the State of Alaska;

16 (J) any clarification of existing responsibil17 ities regarding highway safety warning devices;

18 (K) any action that establishes, modifies,

19 opens, closes, or conducts a regulatory program

20 for a commercial, recreational, or subsistence ac21 tivity relating to hunting, fishing, or camping, if

22 a Federal law prohibits such activity in the ab23 sence of agency action; or

24 (L) the granting of an application for or is25 suance of a license, registration, or similar au-
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1 thority, granting or recognizing an exemption,

2 granting a variance or petition for relief from a

3 regulatory requirement, or other action relieving

4 a restriction, or taking any action necessary to

5 permit new or improved applications of tech6 nology or allow manufacture, distribution, sale,

7 or use of a substance or product.

8 (5) LICENSE.—The term ‘‘license’’ means the

9 whole or part of an agency permit, lease, certificate,

10 approval, registration, charter, membership, statutory

11 exemption, or other form of permission, including any

12 such form of permission relating to hunting and fish13 ing.

14 (6) PUBLIC PROPERTY.—The term ‘‘public prop15 erty’’ means all property under the control of a Fed16 eral agency, other than land.

17 SEC. 7. EXCLUSIONS.

18 This Act shall not apply to any significant regulatory

19 action that establishes or enforces any statutory rights that

20 prohibit discrimination on the basis of race, religion, sex,

21 age, national origin, handicap, or disability status.

22 SEC. 8. CIVIL ACTION.

23 No determination under this Act or agency interpreta24 tion under section 6(4) shall be subject to adjudicative re25 view before an administrative tribunal or court of law.
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1 SEC. 9. SEVERABILITY.

2 (a) APPLICABILITY.—This Act shall apply notwith3 standing any other provision of law.

4 (b) SEVERABILITY.—If any provision of this Act, or

5 the application of any provision of this Act to any person

6 or circumstance, is held invalid, the application of such

7 provision to other persons or circumstances, and the re8 mainder of this Act, shall not be affected thereby.

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