II

104TH CONGRESS

1ST SESSION S. 917

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 SENATE OF THE UNITED STATES

JUNE 13 (legislative day, JUNE 5), 1995

Mr. DOMENICI (for himself and Mr. BOND) introduced the following bill;

which was read twice and referred to the Committee on Small Business

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:

Sec. 1. Short title; table of contents.

Sec. 2. Definitions.
2

•S 917 IS

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

18 (B) with respect to the Occupational Safe19 ty and Health Small Business Advocacy Review
3

•S 917 IS

1 Panel, the Assistant Secretary for Occupational

2 Safety and Health of the Department of Labor.

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

4 means—

5 (A) with respect to the Environmental

6 Small Business Advocacy Review Panel, the

7 chairperson of such review panel designated

8 under section 101(a); and

9 (B) with respect to the Occupational Safe10 ty and Health Small Business Advocacy Review

11 Panel, the chairperson of such review panel des12 ignated under section 101(b).

13 (4) CHIEF COUNSEL FOR ADVOCACY.—The

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

15 Counsel for Advocacy of the Small Business Admin16 istration.

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

18 any final rule or interim final rule issued by an

19 agency for which a review panel has been established

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

21 (6) OFFICE.—The term ‘‘Office’’ means the Of22 fice of Advocacy of the Small Business Administra23 tion.

24 (7) REVIEW PANEL.—The term ‘‘review panel’’

25 means—
4

•S 917 IS

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

2 Environmental Protection Agency, an Environ3 mental Small Business Advocacy Review Panel

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

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

6 Occupational Safety and Health Administration

7 of the Department of Labor, an Occupational

8 Safety and Health Small Business Advocacy

9 Review Panel established under section

10 101(c)(2)(A).

11 (8) RULE.—The term ‘‘rule’’—

12 (A) means an agency statement of general

13 applicability and future effect, which the agency

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

15 is designed to implement, interpret, or prescribe

16 law or policy or to describe the procedure or

17 practice requirements of the agency; and

18 (B) does not include any rule that is lim19 ited to agency organization, management, or

20 personnel matters.

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

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

23 the chairperson, in consultation with the Adminis24 trator of the Office of Information and Regulatory
5

•S 917 IS

1 Affairs within the Office of Management and Budg2 et, reasonably estimates would have—

3 (A) an annual aggregate impact on State,

4 local, and tribal governments and the private

5 sector in an amount equal to not less than

6 $50,000,000; and

7 (B) an impact on small businesses.

8 (10) SMALL BUSINESS.—The term ‘‘small busi9 ness’’ has the same meaning as the term ‘‘small

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

11 Act.

12 TITLE I—SMALL BUSINESS

13 ADVOCACY REVIEW

14 SEC. 101. SMALL BUSINESS ADVOCACY CHAIRPERSONS.

15 (a) CHAIRPERSON OF ENVIRONMENTAL REVIEW

16 PANELS.—

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

18 the date of enactment of this Act, the Administrator

19 of the Environmental Protection Agency shall des20 ignate an employee of the Environmental Protection

21 Agency, who is a member of the Senior Executive

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

23 title 5, United States Code) and whose immediate

24 supervisor is appointed by the President, to serve as

25 the chairperson of each Environmental Small Busi-
6

•S 917 IS

1 ness Advocacy Review Panel and to carry out the

2 purposes of this Act with respect to the Environ3 mental Protection Agency.

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

5 designated to serve as chairperson under paragraph

6 (1) is unable to serve as chairperson because of dis7 ability or absence, the Administrator of the Environ8 mental Protection Agency shall designate another

9 employee who meets the qualifications of such para10 graph to serve as chairperson.

11 (b) CHAIRPERSON OF OSHA REVIEW PANELS.—

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

13 the date of enactment of this Act, the Assistant Sec14 retary for Occupational Safety and Health of the

15 Department of Labor shall designate an employee of

16 the Occupational Safety and Health Administration

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

18 Senior Executive Service (as such term is defined in

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

20 whose immediate supervisor is appointed by the

21 President, to serve as the chairperson of each Occu22 pational Safety and Health Small Business Advocacy

23 Review Panel and to carry out the purposes of this

24 Act with respect to the Occupational Safety and

25 Health Administration.
7

•S 917 IS

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

2 designated to serve as chairperson under paragraph

3 (1) is unable to serve as chairperson because of dis4 ability of absence, the Assistant Secretary for Occu5 pational Safety and Health of the Department of

6 Labor shall designate another employee who meets

7 the qualifications of such paragraph to serve as

8 chairperson.

9 (c) DUTIES OF THE CHAIRPERSON.—

10 (1) INITIAL DETERMINATION AND NOTIFICA11 TION.—

12 (A) TIMING.—The chairperson shall take

13 the actions described in subparagraph (B) not

14 later than 45 days before the earlier of—

15 (i) the date of publication by an agen16 cy of a general notice of proposed rule17 making in the Federal Register under sec18 tion 553(b) of title 5, United States Code,

19 or any other provision of law; or

20 (ii) the date of publication by an

21 agency of a proposed rule in the Federal

22 Register.

23 (B) ACTIONS.—With respect to a proposed

24 rule that is the subject of a publication de-
8

•S 917 IS

1 scribed in clause (i) or (ii) of subparagraph (A),

2 the chairperson shall—

3 (i) determine (in accordance with sec4 tion 2(9)) whether the subject proposed

5 rule constitutes a significant rule; and

6 (ii) if so, notify the Administrator of

7 the Office of Information and Regulatory

8 Affairs within the Office of Management

9 and Budget and the Chief Counsel for Ad10 vocacy to appoint review panel members in

11 accordance with section 102(b) for evalua12 tion of the subject significant rule.

13 (2) ESTABLISHMENT OF REVIEW PANELS.—

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

15 after receiving notice under paragraph

16 (1)(B)(ii), or such longer period as the chair17 person may allow, review panel members shall

18 be appointed by the Administrator of Office of

19 Information and Regulatory Affairs within the

20 Office of Management and Budget, the Chief

21 Counsel for Advocacy, and the chairperson in

22 accordance with section 102(b).

23 (B) EXCEPTIONS.—A review panel shall be

24 established in accordance with subparagraph

25 (A) unless the chairperson, in consultation with
9

•S 917 IS

1 the Chief Counsel for Advocacy, determines

2 (and notifies the agency in writing of such de3 termination) that—

4 (i) a good faith effort to secure

5 enough non-Federal employee review panel

6 members necessary to constitute a quorum

7 with respect to the subject significant rule

8 was unsuccessful; and

9 (ii) compliance with this Act is not re10 quired with respect to the subject signifi11 cant rule due to a lack of availability of

12 private sector interests.

13 (d) DUTIES REGARDING FINAL RULE.—

14 (1) IN GENERAL.—Not later than 45 days be15 fore the issuance of a final rule, the chairperson

16 shall—

17 (A) notify panel members of the intent of

18 the agency to issue a final rule;

19 (B) provide panel members with a dated

20 draft of the final rule to be issued;

21 (C) solicit comments from panel members

22 in accordance with the duties of the review

23 panel described in section 102(a); and

24 (D) if the chairperson determines that

25 such action is necessary, call one or more meet-
10

•S 917 IS

1 ings of the review panel and, if a quorum is

2 present, direct the review panel to review, dis3 cuss, or clarify any issue related to the subject

4 final rule or the preparation of the report under

5 paragraph (2).

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

7 105(b), not later than 5 days before the issuance of

8 a final rule, the chairperson shall submit a report in

9 accordance with section 105(a).

10 SEC. 102. SMALL BUSINESS ADVOCACY REVIEW PANELS.

11 (a) GENERAL DUTIES.—Before any publication de12 scribed in clause (i) or (ii) of section 101(c)(1)(A) of a

13 proposed significant rule, and again before the issuance

14 of such rule as a final rule, the review panel shall, in ac15 cordance with this Act—

16 (1) provide technical guidance to the agency, in17 cluding guidance relating to—

18 (A) the applicability of the proposed rule

19 to small businesses;

20 (B) enforcement of and compliance with

21 the rule by small businesses;

22 (C) the consistency or redundancy of the

23 proposed rule with respect to other Federal,

24 State, and local regulations and recordkeeping

25 requirements imposed on small businesses; and
11

•S 917 IS

1 (D) any other concerns posed by the pro2 posed rule that may impact significantly upon

3 small businesses; and

4 (2) evaluate each rule in the context of the re5 quirements imposed under—

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

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

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

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

10 (B) sections 202 and 205 of the Unfunded

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

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

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

14 Executive Order No. 12866, September 30,

15 1993; and

16 (D) any other requirement under any other

17 Act, including those relative to regulatory re18 form requirements that affect compliance, exist19 ing Federal or State regulations that may du20 plicate, overlap, or conflict with the significant

21 rule, and the readability and complexity of rules

22 and regulations.

23 (b) MEMBERSHIP.—Each review panel shall be com24 posed of—

25 (1) the chairperson;
12

•S 917 IS

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

2 appointed by the chairperson from among employees

3 of the agency who would be responsible for carrying

4 out the subject significant rule;

5 (3) 1 member appointed by the Administrator

6 of the Office of Information and Regulatory Affairs

7 within the Office of Management and Budget from

8 among the employees of that office who have specific

9 knowledge of or responsibilities relating to the regu10 latory responsibilities of the agency that would be

11 responsible for carrying out the subject significant

12 rule;

13 (4) 1 member appointed by the Chief Counsel

14 for Advocacy from among the employees of the Of15 fice; and

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

17 selected by the Chief Counsel for Advocacy from

18 among individuals who are representatives of—

19 (A) small businesses that would be im20 pacted by the significant rule;

21 (B) small business sectors or industries

22 that would be especially impacted by the signifi23 cant rule; or

24 (C) organizations whose memberships are

25 comprised of a cross-section of small businesses.
13

•S 917 IS

1 (c) PERIOD OF APPOINTMENT; VACANCIES.—

2 (1) PERIOD OF APPOINTMENT.—Each review

3 panel member, other than the chairperson, shall be

4 appointed for a term beginning on the date on which

5 the appointment is made and ending on the date on

6 which the report or written record is submitted

7 under section 105.

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

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

10 but shall be filled in the same manner as the origi11 nal appointment.

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

13 by a review panel shall consist of 1 member appointed

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

15 (e) MEETINGS.—

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

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

18 of the chairperson.

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

20 after all review panel members necessary to con21 stitute a quorum have been appointed under sub22 section (b), the chairperson shall conduct the initial

23 meeting of the review panel.

24 (f) POWERS OF REVIEW PANEL.—
14

•S 917 IS

1 (1) INFORMATION FROM FEDERAL AGENCIES.—

2 A review panel may secure, directly from any Fed3 eral department or agency, such information as the

4 review panel considers necessary to carry out this

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

6 such department or agency shall furnish such infor7 mation to the review panel.

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

9 use the United States mails in the same manner and

10 under the same conditions as other departments and

11 agencies of the Federal Government.

12 SEC. 103. REVIEW PANEL PERSONNEL MATTERS.

13 (a) NONCOMPENSATION OF MEMBERS.—

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

15 who are not officers or employees of the Federal

16 Government shall serve without compensation.

17 (2) FEDERAL EMPLOYEES.—Members of the re18 view panel who are officers or employees of the Fed19 eral Government shall serve without compensation in

20 addition to that received for their services as officers

21 or employees of the Federal Government.

22 (b) DETAIL OF GOVERNMENT EMPLOYEES.—Any

23 Federal Government employee may be detailed to a review

24 panel without reimbursement, and such detail shall be
15

•S 917 IS

1 without interruption or loss of civil service status or privi2 lege.

3 SEC. 104. CONSULTATION WITH OTHER ENTITIES.

4 In carrying out this title, the chairperson shall con5 sult and coordinate, to the maximum extent practicable,

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

7 agency that is responsible for the provision of data or tech8 nical advice concerning a significant rule.

9 SEC. 105. REPORT.

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

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

12 101(d)(2), submit to the appropriate employees of the

13 agency who would be responsible for carrying out the sub14 ject significant rule and to the appropriate committees of

15 the Senate and the House of Representatives a report,

16 which shall include—

17 (1) the findings and recommendations of the re18 view panel with respect to the significant rule, in19 cluding both the majority and minority views of the

20 review panel members, regardless of the consensus

21 of opinions that may derive from the meetings of the

22 review panel; and

23 (2) recommendations regarding whether a sur24 vey with respect to the subject significant rule

25 should be conducted under title II and—
16

•S 917 IS

1 (A) if so—

2 (i) a timeframe during which the sur3 vey should be conducted, taking into ac4 count the time required to implement the

5 rule and to gather appropriate data; and

6 (ii) any recommendations of the re7 view panel regarding the contents of the

8 survey; and

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

10 is not recommended.

11 (b) FAILURE TO SUBMIT REPORT.—If the chair12 person fails to submit a report under subsection (a), not

13 later than the date on which the final rule is issued, the

14 chairperson shall—

15 (1) prepare a written record of such failure de16 tailing the reasons therefor; and

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

18 head of the agency and to the appropriate commit19 tees of the Senate and the House of Representatives.

20 SEC. 106. APPLICABILITY OF OTHER LAW; JUDICIAL RE21 VIEW.

22 (a) INAPPLICABILITY OF FEDERAL ADVISORY COM23 MITTEE ACT.—The provisions of the Federal Advisory

24 Committee Act do not apply to any review panel estab25 lished in accordance with this title.
17

•S 917 IS

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

2 or inaction of a review panel, including any recommenda3 tions or advice of a review panel or any procedure or proc4 ess of a review panel, may be subject to judicial review

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

6 5, United States Code, or any other provision of law.

7 SEC. 107. MORATORIUM ON CERTAIN PUBLICATIONS.

8 Notwithstanding any other provision of this Act, no

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

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

11 appointed under section 101 has had an adequate oppor12 tunity to review the subject proposed rule in accordance

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

14 TITLE II—PEER REVIEW SURVEY

15 SEC. 201. PEER REVIEW SURVEY.

16 (a) IN GENERAL.—If a review panel makes a rec17 ommendation in any report submitted under section

18 105(a) that a survey should be conducted with respect to

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

20 sector auditing firm or other survey-related organization

21 to conduct a survey of a cross-section of the small busi22 nesses impacted by the rule.

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

24 under this section shall address the impact of the signifi25 cant rule on small businesses, including—
18

•S 917 IS

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

2 businesses;

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

4 and comprehend;

5 (3) the costs to implement the rule;

6 (4) any recordkeeping requirements imposed by

7 the rule; and

8 (5) any other technical or general issues related

9 to the rule.

10 (c) AVAILABILITY OF SURVEY RESULTS.—The re11 sults of each survey conducted under this section shall be

12 made available—

13 (1) to each interested Federal agency; and

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

15 including organizations, individuals, State and local

16 governments, and the Congress.

Æ

S 917 IS——2