II

104TH CONGRESS

1ST SESSION S. 585

To protect the rights of small entities subject to investigative or enforcement

action by agencies, and for other purposes.

IN THE SENATE OF THE UNITED STATES

MARCH 21 (legislative day, MARCH 16), 1995

Mr. SHELBY introduced the following bill; which was read twice and referred

to the Committee on Governmental Affairs

A BILL

To protect the rights of small entities subject to investigative

or enforcement action by agencies, 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 ‘‘Small Business Regu5 latory Bill of Rights Act’’.

6 SEC. 2. SMALL BUSINESS REGULATORY BILL OF RIGHTS.

7 (a) IN GENERAL.—Chapter 5 of title 5, United

8 States Code, is amended by adding at the end the follow9 ing new subchapter:
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1 ‘‘SUBCHAPTER VI—SMALL BUSINESS

2 REGULATORY BILL OF RIGHTS

3 ‘‘§ 597. Definition

4 ‘‘For purposes of this subchapter, the term ‘small en5 tity’ has the same meaning given such term in section

6 601(6).

7 ‘‘§ 597a. Rights of small entities prior to enforcement

8 action

9 ‘‘Except as provided in section 597d, each agency

10 shall ensure that its regulatory enforcement program in11 cludes—

12 ‘‘(1) a no-fault compliance audit program in

13 which no penalties may be assessed against a small

14 entity upon voluntary application by the entity to

15 the agency or a licensed private sector entity for a

16 compliance audit;

17 ‘‘(2) a publicized, coherent compliance assist18 ance program available to regulated small entities

19 under the agency’s jurisdiction that provides tech20 nical and other compliance related assistance to

21 small entities upon request of a small entity;

22 ‘‘(3) a method to enforce regulations in a uni23 form, consistent, and nonarbitrary manner nation24 wide; and
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1 ‘‘(4) an abatement period of not less than 60

2 days to allow the small entity to correct any viola3 tions before a penalty is assessed.

4 ‘‘§ 597b. Rights during investigative or enforcement

5 action

6 ‘‘Except as provided in section 597d, each small en7 tity that is the subject of a Federal investigative or en8 forcement action shall, upon the initiation of an inspec9 tion, investigation, or other official proceeding directed

10 against the person, have the right—

11 ‘‘(1) to be provided access to all information

12 gathered on the entity by Government officials on a

13 timely basis;

14 ‘‘(2) to remain silent;

15 ‘‘(3) to be advised as to whether the person or

16 entity has a right to a warrant;

17 ‘‘(4) to be warned that statements can be used

18 against the small entity and representatives of the

19 small entity;

20 ‘‘(5) to have an attorney or accountant present;

21 ‘‘(6) to be informed as to the scope and purpose

22 of the agency action;

23 ‘‘(7) to be present at the inspection, investiga24 tion, or proceeding; and
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1 ‘‘(8) to be free of unreasonable seizures of prop2 erty or assets.

3 ‘‘§ 597c. Rights after investigative or enforcement

4 action

5 ‘‘Except as provided in section 597d, each small en6 tity that has been found in violation of a regulation and

7 was subject to an enforcement action or penalty shall have

8 the right—

9 ‘‘(1) to be free from inspections for 180 days

10 after the date on which the small entity obtains cer11 tification from the agency that the small entity is in

12 compliance with the regulation;

13 ‘‘(2) to have ability to pay factored into the as14 sessment of penalties through flexible payment plans

15 with reduced installments that reflect the entity’s

16 long-term ability to pay (taking into account cash17 flow and long-term profitability); and

18 ‘‘(3) to not have fines paid be used to finance

19 the inspecting agency, but instead credited to the

20 General Treasury of the United States, to be used

21 for reduction of the Federal deficit.

22 ‘‘§ 597d. Exceptions and limitation

23 ‘‘(a) A provision of this subchapter shall not apply

24 if compliance with such provision would—
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1 ‘‘(1) substantially delay responding to an immi2 nent danger to person or property; or

3 ‘‘(2) substantially or unreasonably impede a

4 criminal investigation.

5 ‘‘(b) A small entity shall not be entitled to the benefit

6 of a no-fault compliance audit program under section

7 597a(1) regarding a particular enforcement issue for 60

8 days after the entity has had an agency-initiated contact

9 regarding such issue.’’.

10 (b) TECHNICAL AMENDMENT.—The analysis for

11 chapter 5 of title 5, United States Code, is amended by

12 adding at the end the following:

‘‘SUBCHAPTER VI—SMALL BUSINESS REGULATORY BILL OF

RIGHTS

‘‘Sec.

‘‘597. Definition.

‘‘597a. Rights of small entities prior to enforcement action.

‘‘597b. Rights during investigative or enforcement action.

‘‘597c. Rights after investigative or enforcement action.

‘‘597d. Exceptions and limitation.’’.

13 SEC. 3. INSTRUCTIONS AND AGENCY RULES.

14 (a) EFFECTIVE DATE.—The amendment made by

15 section 2 shall take effect not later than January 1, 1999.

16 (b) REPORTS.—The Director of the Office of Man17 agement and Budget shall submit an annual report to

18 Congress on the progress of the agencies in complying

19 with this Act and the amendments made by this Act.

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