```

[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[S. 942 Engrossed in Senate (ES)]

  
  
  
  
  
  
  
  
  
  
  
  
  
  
104th CONGRESS
  2d Session
                                 S. 942

_______________________________________________________________________

                                 AN ACT

 
To promote increased understanding of Federal regulations and increased 
   voluntary compliance with such regulations by small entities, to 
provide for the designation of regional ombudsmen and oversight boards 
 to monitor the enforcement practices of certain Federal agencies with 
 respect to small business concerns, to provide relief from excessive 
 and arbitrary regulatory enforcement actions against small entities, 
                        and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION. 1. SHORT TITLE.

    This Act may be cited as the ``Small Business Regulatory 
Enforcement Fairness Act of 1996''.

SEC. 2. FINDINGS.

    Congress finds that--
            (1) a vibrant and growing small business sector is critical 
        to creating jobs in a dynamic economy;
            (2) small businesses bear a disproportionate share of 
        regulatory costs and burdens;
            (3) fundamental changes that are needed in the regulatory 
        and enforcement culture of Federal agencies to make agencies 
        more responsive to small business can be made without 
        compromising the statutory missions of the agencies;
            (4) three of the top recommendations of the White House 
        Conference on Small Business involve reforms to the way 
        Government regulations are developed and enforced, and 
        reductions in Government paperwork requirements;
            (5) the requirements of the Regulatory Flexibility Act have 
        too often been ignored by Government agencies, resulting in 
        greater regulatory burdens on small entities than necessitated 
        by statute; and
            (6) small entities should be given the opportunity to seek 
        judicial review of agency actions required by the Regulatory 
        Flexibility Act.

SEC. 3. PURPOSES.

    The purposes of this Act are--
            (1) to implement certain recommendations of the 1995 White 
        House Conference on Small Business regarding the development 
        and enforcement of Federal regulations;
            (2) to provide for judicial review of the Regulatory 
        Flexibility Act;
            (3) to encourage the effective participation of small 
        businesses in the Federal regulatory process;
            (4) to simplify the language of Federal regulations 
        affecting small businesses;
            (5) to develop more accessible sources of information on 
        regulatory and reporting requirements for small businesses;
            (6) to create a more cooperative regulatory environment 
        among agencies and small businesses that is less punitive and 
        more solution-oriented; and
            (7) to make Federal regulators more accountable for their 
        enforcement actions by providing small entities with a 
        meaningful opportunity for redress of excessive enforcement 
        activities.

SEC. 4. EFFECTIVE DATE.

    This Act shall become effective on the date 90 days after 
enactment, except that the amendments made by title IV of this Act 
shall not apply to interpretive rules for which a notice of proposed 
rulemaking was published prior to the date of enactment.

             TITLE I--REGULATORY COMPLIANCE SIMPLIFICATION

SEC. 101. DEFINITIONS.

    For purposes of this Act--
            (1) the terms ``rule'' and ``small entity'' have the same 
        meanings as in section 601 of title 5, United States Code;
            (2) the term ``agency'' has the same meaning as in section 
        551 of title 5, United States Code; and
            (3) the term ``small entity compliance guide'' means a 
        document designated as such by an agency.

SEC. 102. COMPLIANCE GUIDES.

    (a) Compliance Guide.--For each rule or group of related rules for 
which an agency is required to prepare a final regulatory flexibility 
analysis under section 604 of title 5, United States Code, the agency 
shall publish one or more guides to assist small entities in complying 
with the rule, and shall designate such publications as ``small entity 
compliance guides''. The guides shall explain the actions a small 
entity is required to take to comply with a rule or group of rules. The 
agency shall, in its sole discretion, taking into account the subject 
matter of the rule and the language of relevant statutes, ensure that 
the guide is written using sufficiently plain language likely to be 
understood by affected small entities. Agencies may prepare separate 
guides covering groups or classes of similarly affected small entities, 
and may cooperate with associations of small entities to develop and 
distribute such guides.
    (b) Comprehensive Source of Information.--Agencies shall cooperate 
to make available to small entities through comprehensive sources if 
information, the small entity compliance guides and all other available 
information on statutory and regulatory requirements affecting small 
entities.
    (c) Limitation on Judicial review.--An agency's small entity 
compliance guide shall not be subject to judicial review, except that 
in any civil or administrative action against a small entity for a 
violation occurring after the effective date of this section, the 
content of the small entity compliance guide may be considered as 
evidence of the reasonableness or appropriateness of any proposed 
fines, penalties or damages.

SEC. 103. INFORMAL SMALL ENTITY GUIDANCE.

    (a) General.--Whenever appropriate in the interest of administering 
statutes and regulations within the jurisdiction of an agency, it shall 
be the practice of the agency to answer inquiries by small entities 
concerning information on and advice about compliance with such 
statutes and regulations, interpreting and applying the law to specific 
sets of facts supplied by the small entity. In any civil or 
administrative action against a small entity, guidance given by an 
agency applying the law to facts provided by the small entity may be 
considered as evidence of the reasonableness or appropriateness of any 
proposed fines, penalties or damages sought against such small entity.
    (b) Program.--Each agency regulating the activities of small 
entities shall establish a program for responding to such inquiries no 
later than 1 year after enactment of this section, utilizing existing 
functions and personnel of the agency to the extent practicable.

SEC. 104. SERVICES OF SMALL BUSINESS DEVELOPMENT CENTERS.

    Section 21(c)(3) of the Small Business Act (15 U.S.C. 648(c)(3)) is 
amended--
            (1) in subparagraph (O), by striking ``and'' at the end;
            (2) in subparagraph (P), by striking the period at the end 
        and inserting a semicolon; and
            (3) by inserting after subparagraph (P) the following new 
        subparagraphs:
                    ``(Q) providing assistance to small business 
                concerns regarding regulatory requirements, including 
                providing training with respect to cost-effective 
                regulatory compliance;
                    ``(R) developing informational publications, 
                establishing resource centers of reference materials, 
                and distributing compliance guides published under 
                section 102(a) of the Small Business Regulatory 
                Enforcement Fairness Act of 1996 to small business 
                concerns; and
                    ``(S) developing programs to provide confidential 
                onsite assessments and recommendations regarding 
                regulatory compliance to small business concerns and 
                assisting small business concerns in analyzing the 
                business development issues associated with regulatory 
                implementation and compliance measures.''.

SEC. 105. MANUFACTURING TECHNOLOGY CENTERS AND PROGRAMS ESTABLISHED 
              UNDER SECTION 507 OF THE CLEAN AIR ACT AMENDMENTS OF 
              1990.

    (a) General.--The Manufacturing Technology Centers and other 
similar extension centers administered by the National Institute of 
Standards and Technology of the Department of Commerce shall, as 
appropriate, provide the assistance regarding regulatory requirements, 
develop and distribute information and guides and develop the programs 
to provide confidential onsite assessments and recommendations 
regarding regulatory compliance to the same extent as provided for in 
section 104 of this Act with respect to Small Business Development 
Centers.
    (b) Section 507 Programs.--Nothing in this Act in any way limits 
the authority and operation of the small business stationary source 
technical and environmental compliance assistance programs established 
under section 507 of the Clean Air Act Amendments of 1990.

SEC. 106. COOPERATION ON GUIDANCE.

    Agencies may, to the extent resources are available and where 
appropriate, in cooperation with the States, develop guides that fully 
integrate requirements of both Federal and State regulations where 
regulations within an agency's area of interest at the Federal and 
State levels impact small businesses. Where regulations vary among the 
States, separate guides may be created for separate States in 
cooperation with State agencies.

                TITLE II--REGULATORY ENFORCEMENT REFORMS

SEC. 201. SMALL BUSINESS AND AGRICULTURE ENFORCEMENT OMBUDSMAN.

    The Small Business Act (15 U.S.C. 631 et seq.) is amended--
            (1) by redesignating section 30 as section 31; and
            (2) by inserting after section 29 the following new 
        section:

``SEC. 30. OVERSIGHT OF REGULATORY ENFORCEMENT.

    ``(a) Definitions.--For purposes of this section, the term--
            ``(1) ``Board'' means a Regional Small Business Regulatory 
        Fairness Board established under subsection (c); and
            ``(2) ``Ombudsman'' means the Small Business and 
        Agriculture Regulatory Enforcement Ombudsman designated under 
        subsection (b).
    ``(b) SBA Enforcement Ombudsman.--
            ``(1) Not later than 180 days after the date of enactment 
        of this section, the Administration shall designate a Small 
        Business and Agriculture Regulatory Enforcement Ombudsman 
        utilizing personnel of the Small Business Administration to the 
        extent practicable. Other agencies shall assist the Ombudsman 
        and take actions as necessary to ensure compliance with the 
        requirements of this section. Nothing in this section is 
        intended to replace or diminish the activities of any Ombudsman 
        or similar office in any other agency.
            ``(2) The Ombudsman shall--
                    ``(A) work with each agency with regulatory 
                authority over small businesses to ensure that small 
                business concerns that receive or are subject to an 
                audit, onsite inspection, compliance assistance effort, 
                or other enforcement related communication or contact 
                by agency personnel are provided with a means to 
                comment on the enforcement activity conducted by such 
                personnel;
                    ``(B) establish means to receive comments from 
                small business concerns regarding actions by agency 
                employees conducting compliance or enforcement 
                activities with respect to the small business concern, 
                means to refer comments to the Inspector General of the 
                affected agency in the appropriate circumstances, and 
                otherwise seek to maintain the identity of the person 
                and small business concern making such comments on a 
                confidential basis to the same extent as employee 
                identities are protected under section 7 of the 
                Inspector General Act of 1978 (5 U.S.C. App.);
                    ``(C) based on substantiated comments received from 
                small business concerns and the Boards, annually report 
                to Congress and affected agencies evaluating the 
                enforcement activities of agency personnel including a 
                rating of the responsiveness to small business of the 
                various regional and program offices of each agency;
                    ``(D) coordinate and report annually on the 
                activities, findings, and recommendations of the Boards 
                to the Administration and to the heads of affected 
                agencies; and
                    ``(E) provide the affected agency with an 
                opportunity to comment on draft reports prepared under 
                paragraph (C) and include a section of the final report 
                in which the affected agency may make such comments as 
                are not addressed by the Ombudsman in revisions to the 
                draft.
    ``(c) Regional Small Business Regulatory Fairness Boards.--
            ``(1) Not later than 180 days after the date of enactment 
        of this section, the Administration shall establish a Small 
        Business Regulatory Fairness Board in each regional office of 
        the Small Business Administration.
            ``(2) Each Board established under paragraph (1) shall--
                    ``(A) meet at least annually to advise the 
                Ombudsman on matters of concern to small businesses 
                relating to the enforcement activities of agencies;
                    ``(B) report to the Ombudsman on substantiated 
                instances of excessive enforcement actions of agencies 
                against small business concerns including any findings 
                or recommendations of the Board as to agency 
                enforcement policy or practice; and
                    ``(C) prior to publication, provide comment on the 
                annual report of the Ombudsman prepared under 
                subsection (b).
            ``(3) Each Board shall consist of five members appointed by 
        the Administration, who are owners or operators of small 
        entities, after receiving the recommendations of the chair and 
        ranking minority member of the Committees on Small Business of 
        the House of Representatives and the Senate.
            ``(4) Members of the Board shall serve for terms of three 
        years or less.
            ``(5) The Administration shall select a chair from among 
        the members of the Board who shall serve for not more than 2 
        years as chair.
            ``(6) A majority of the members of the Board shall 
        constitute a quorum for the conduct of business, but a lesser 
        number may hold hearings.
    ``(d) Powers of the Boards.--
            ``(1) The Board may hold such hearings and collect such 
        information as appropriate for carrying out this section.
            ``(2) The Board may use the United States mails in the same 
        manner and under the same conditions as other departments and 
        agencies of the Federal Government.
            ``(3) The Board may accept donations of services necessary 
        to conduct its business: Provided, That the donations and their 
        sources are disclosed by the Board.
            ``(4) Members of the Board shall serve without 
        compensation: Provided, That members of the Board shall be 
        allowed travel expenses, including per diem in lieu of 
        subsistence, at rates authorized for employees of agencies 
        under subchapter I of chapter 57 of title 5, United States 
        Code, while away from their homes or regular places of business 
        in the performance of services for the Board.''.

SEC. 202. RIGHTS OF SMALL ENTITIES IN ENFORCEMENT ACTIONS.

    (a) In General.--Each agency regulating the activities of small 
entities shall establish a policy or program within 1 year of enactment 
of this section to provide for the reduction, and under appropriate 
circumstances for the waiver, of civil penalties for violations of a 
statutory or regulatory requirement by a small entity. Under 
appropriate circumstances, an agency may consider ability to pay in 
determining penalty assessments on small entities.
    (b) Conditions and Exclusions.--Subject to the requirements or 
limitations of other statutes, policies or programs established under 
this section shall contain conditions or exclusions which may include, 
but shall not be limited to--
            (1) requiring the small entity to correct the violation 
        within a reasonable correction period;
            (2) limiting the applicability to violations discovered by 
        the small entity through participation in a compliance 
        assistance or audit program operated or supported by the agency 
        or a State;
            (3) excluding small entities that have been subject to 
        multiple enforcement actions by the agency;
            (4) excluding violations involving willful or criminal 
        conduct;
            (5) excluding violations that pose serious health, safety 
        or environmental threats; and
            (6) requiring a good faith effort to comply with the law.
    (c) Reporting.--Agencies shall report to Congress no later than 2 
years from the effective date on the scope of their program or policy, 
the number of enforcement actions against small entities that qualified 
or failed to qualify for the program or policy, and the total amount of 
penalty reductions and waivers.

           TITLE III--EQUAL ACCESS TO JUSTICE ACT AMENDMENTS

SEC. 301. ADMINISTRATIVE PROCEEDINGS.

    Section 504 of title 5, United States Code, is amended--
            (1) in subsection (b), by striking ``$75'' in subparagraph 
        (b)(1) and inserting ``$125''; and
            (2) in subsection (a) by adding the following new 
        paragraph:
            ``(4) In an adversary adjudication brought by an agency, an 
        adjudicative officer of the agency shall award attorney's fees 
        and other expenses to a party or a small entity, as defined in 
        section 601, if the decision of the adjudicative officer is 
        disproportionately less favorable to the agency than an express 
        demand by the agency, unless the party or small entity has 
        committed a willful violation of law or otherwise acted in bad 
        faith, or special circumstances make an award of attorney's 
        fees unjust. For purposes of this paragraph, an `express 
        demand' shall not include a recitation by the agency of the 
        maximum statutory penalty (A) in the administrative complaint, 
        or (B) elsewhere when accompanied by an express demand for a 
        lesser amount. Fees and expenses awarded under this paragraph 
        may not be paid from the claims and judgments account of the 
        Treasury from funds appropriated pursuant to section 1304 of 
        title 31, United States Code.''.

SEC. 302. JUDICIAL PROCEEDINGS.

    Section 2412 of title 28, United States Code, is amended--
            (1) in paragraph (d), by striking ``$75'' in subparagraph 
        (2)(A) and inserting ``$125''; and
            (2) in paragraph (d)(1) by adding the following new 
        subparagraph:
                    ``(D) In a civil action brought by the United 
                States, a court shall award attorney's fees and other 
                expenses to a party or a small entity, as defined in 
                section 601 of title 5, United States Code, if the 
                judgment finally obtained by the United States is 
                disproportionately less favorable to the United States 
                than an express demand by the United States, unless the 
                party or small entity has committed a willful violation 
                of law or otherwise acted in bad faith, or special 
                circumstances make an award of attorney's fees unjust. 
                For purposes of this subparagraph, an `express demand' 
                shall not include a recitation of the maximum statutory 
                penalty (i) in the complaint, or (ii) elsewhere when 
                accompanied by an express demand for a lesser amount. 
                Fees and expenses awarded under this subparagraph may 
                not be paid from the claims and judgments account of 
                the Treasury from funds appropriated pursuant to 
                section 1304 of title 31, United States Code.''.

            TITLE IV--REGULATORY FLEXIBILITY ACT AMENDMENTS

SEC. 401. REGULATORY FLEXIBILITY ANALYSES.

    (a) Initial Regulatory Flexibility Analysis.--Section 603(a) of 
title 5, United States Code, is amended--
            (1) by inserting after ``proposed rule'', the phrase ``, or 
        publishes a notice of proposed rulemaking for an interpretive 
        rule involving the internal revenue laws of the United 
        States''; and
            (2) by inserting at the end of the subsection, the 
        following new sentence: ``In the case of an interpretive rule 
        involving the internal revenue laws of the United States, this 
        chapter applies to interpretive rules published in the Federal 
        Register for codification in the Code of Federal Regulations, 
        but only to the extent that such interpretive rules impose on 
        small entities a collection of information requirements, as 
        defined in the Paperwork Reduction Act of 1995.''.
    (b) Final Regulatory Flexibility Analysis.--Section 604 of title 5, 
United States Code, is amended--
            (1) in subsection (a) to read as follows:
    ``(a) When an agency promulgates a final rule under section 553 of 
this title, after being required by that section or any other law to 
publish a general notice of proposed rulemaking, or is otherwise 
required to publish an initial regulatory flexibility analysis, the 
agency shall prepare a final regulatory flexibility analysis. Each 
final regulatory flexibility analysis shall contain--
            ``(1) a succinct statement of the need for, and objectives 
        of, the rule;
            ``(2) a summary of the significant issues raised by the 
        public comments in response to the initial regulatory 
        flexibility analysis, a summary of the assessment of the agency 
        of such issues, and a statement of any changes made in the 
        proposed rule as a result of such comments;
            ``(3) a description of and an estimate of the number of 
        small entities to which the rule will apply or an explanation 
        of why no such estimate is available;
            ``(4) a description of the projected reporting, record 
        keeping and other compliance requirements of the rule, 
        including an estimate of the classes of small entities which 
        will be subject to the requirement and the type of professional 
        skills necessary for preparation of the report or record; and
            ``(5) a description of the steps the agency has taken to 
        minimize the significant economic impact on small entities 
        consistent with the stated objectives of applicable statutes, 
        including a statement of the factual, policy, and legal reasons 
        for selecting the alternative adopted in the final rule and why 
        each one of the other significant alternatives to the rule 
        considered by the agency which affect the impact on small 
        business was rejected.''; and
            (2) in subsection (b), by striking ``at the time'' and all 
        that follows and inserting ``such analysis or a summary 
        thereof.''.

SEC. 402. JUDICIAL REVIEW.

    Section 611 of title 5, United States Code, is amended to read as 
follows:
``Sec. 611. Judicial review
    ``(a)(1) For any rule subject to this chapter, a small entity that 
is adversely affected or aggrieved by final agency action is entitled 
to judicial review of agency compliance with the requirements of this 
chapter, except the requirements of sections 602, 603, 609 and 612.
    ``(2) Each court having jurisdiction to review such rule for 
compliance with section 553 of this title or under any other provision 
of law shall have jurisdiction to review any claims of noncompliance 
with this chapter, except the requirements of sections 602, 603, 609 
and 612.
    ``(3)(A) A small entity may seek such review during the period 
beginning on the date of final agency action and ending one year later, 
except that where a provision of law requires that an action 
challenging a final agency action be commenced before the expiration of 
one year, such lesser period shall apply to a petition for judicial 
review under this section.
    ``(B) In the case where an agency delays the issuance of a final 
regulatory flexibility analysis pursuant to section 608(b) of this 
chapter, a petition for judicial review under this section shall be 
filed not later than--
            ``(i) one year after the date the analysis is made 
        available to the public, or
            ``(ii) where a provision of law requires that an action 
        challenging a final agency regulation be commenced before the 
        expiration of the one year period, the number of days specified 
        in such provision of law that is after the date the analysis is 
        made available to the public.
    ``(4) If the court determines, on the basis of the rulemaking 
record, that the final agency action under this chapter was arbitrary, 
capricious, an abuse of discretion or otherwise not in accordance with 
the law, the court shall order the agency to take corrective action 
consistent with this chapter, which may include--
    ``(A) remanding the rule to the agency, and
    ``(B) deferring the enforcement of the rule against small entities, 
unless the court finds good cause for continuing the enforcement of the 
rule pending the completion of the corrective action.
    ``(5) Nothing in this subsection shall be construed to limit the 
authority of any court to stay the effective date of any rule or 
provision thereof under any other provision of law or to grant any 
other relief in addition to the requirements of this section.
    ``(b) In an action for the judicial review of a rule, the 
regulatory flexibility analysis for such rule, including an analysis 
prepared or corrected pursuant to paragraph (a)(4), shall constitute 
part of the entire record of agency action in connection with such 
review.
    ``(c) Except as otherwise required by this chapter, the court shall 
apply the same standards of judicial review that govern the review of 
agency findings under the statute granting the agency authority to 
conduct a rulemaking.
    ``(d) Compliance or noncompliance by an agency with the provisions 
of this chapter shall be subject to judicial review only in accordance 
with this section.
    ``(e) Nothing in this section bars judicial review of any other 
impact statement or similar analysis required by any other law if 
judicial review of such statement or analysis is otherwise permitted by 
law.''.

SEC. 403. TECHNICAL AND CONFORMING AMENDMENTS.

    (a) Section 605(b) of title 5, United States Code, is amended to 
read as follows:
    ``(b) Sections 603 and 604 of this title shall not apply to any 
proposed or final rule if the head of the agency certifies that the 
rule will not, if promulgated, have a significant economic impact on a 
substantial number of small entities. If the head of the agency makes a 
certification under the preceding sentence, the agency shall publish 
such certification in the Federal Register, at the time of publication 
of general notice of proposed rulemaking for the rule or at the time of 
publication of the final rule, along with a statement providing the 
factual and legal reasons for such certification. The agency shall 
provide such certification and statement to the Chief Counsel for 
Advocacy of the Small Business Administration.''.
    (b) Section 612 of title 5, United States Code, is amended--
            (1) in subsection (a), by striking ``the committees on the 
        Judiciary of the Senate and the House of Representatives, the 
        Select Committee on Small Business of the Senate, and the 
        Committee on Small Business of the House of Representatives'' 
        and inserting ``the Committees on the Judiciary and Small 
        Business of the Senate and House of Representatives''.
            (2) in subsection (b), by striking ``his views with respect 
        to the'' and inserting in lieu thereof, ``his or her views with 
        respect to compliance with this chapter, the adequacy of the 
        rulemaking record with respect to small entities and the''.

SEC. 404. SMALL BUSINESS ADVOCACY REVIEW PANELS.

    (a) Small Business Outreach and Interagency Coordination.--Section 
609 of title 5, United States Code, is amended--
            (1) before ``techniques,'' by inserting ``the reasonable 
        use of'';
            (2) in paragraph (4), after ``entities'', by inserting 
        ``including soliciting and receiving comments over computer 
        networks'';
            (3) by designating the current text as subsection (a); and
            (4) by adding the following new subsection:
    ``(b) Prior to publication of an initial regulatory flexibility 
analysis which a covered agency is required to conduct by this 
chapter--
            ``(1) a covered agency shall notify the Chief Counsel for 
        Advocacy of the Small Business Administration and provide the 
        Chief Counsel with information on the potential impacts of the 
        proposed rule on small entities and the type of small entities 
        that might be affected;
            ``(2) not later than 15 days after the date of receipt of 
        the materials described in paragraph (1), the Chief Counsel 
        shall identify individuals representative of affected small 
        entities for the purpose of obtaining advice and 
        recommendations from those individuals about the potential 
        impacts of the proposed rule;
            ``(3) the agency shall convene a review panel for such rule 
        consisting wholly of full-time Federal employees of the office 
        within the agency responsible for carrying out the proposed 
        rule, the Office of Information and Regulatory Affairs within 
        the Office of Management and Budget, and the Chief Counsel;
            ``(4) the panel shall review any material the agency has 
        prepared in connection with this chapter, including any draft 
        proposed rule, collect advice and recommendations of the small 
        entity representatives identified by the agency after 
        consultation with the Chief Counsel, on issues related to 
        subsections 603(b), paragraphs (3), (4) and (5) and 603(c);
            ``(5) not later than 60 days after the date a covered 
        agency convenes a review panel pursuant to paragraph (3), the 
        review panel shall report on the comments of the small entity 
        representatives and its findings as to issues related to 
        subsections 603(b), paragraphs (3), (4) and (5) and 603(c): 
        Provided, That such report shall be made public as part of the 
        rulemaking record; and
            ``(6) where appropriate, the agency shall modify the 
        proposed rule, the initial regulatory flexibility analysis or 
        the decision on whether an initial regulatory flexibility 
        analysis is required.
    ``(c) Prior to publication of a final regulatory flexibility 
analysis that a covered agency is required by this chapter to conduct--
            ``(1) an agency shall reconvene the review panel 
        established under paragraph (b)(3), or if no initial regulatory 
        flexibility analysis was published, undertake the actions 
        described in paragraphs (b) (1) through (3);
            ``(2) the panel shall review any material the agency has 
        prepared in connection with this chapter, including any draft 
        rule, collect the advice and recommendations of the small 
        entity representatives identified by the agency after 
        consultation with the Chief Counsel, on issues related to 
        subsection 604(a), paragraphs (3), (4) and (5);
            ``(3) not later than 15 days after the date a covered 
        agency convenes a review panel pursuant to paragraph (1), the 
        review panel shall report on the comments of the small entity 
        representatives and its findings as to issues related to 
        subsection 604(a), paragraphs (3), (4) and (5): Provided, That 
        such report shall be made public as part of the rulemaking 
        record; and
            ``(4) where appropriate, the agency shall modify the final 
        rule, the final regulatory flexibility analysis or the decision 
        on whether a final regulatory flexibility analysis is required.
    ``(d) An agency may in its discretion apply subsections (b) and (c) 
to rules that the agency intends to certify under subsection 605(b), 
but the agency believes may have a greater than de minimis impact on a 
substantial number of small entities.
    ``(e) For purposes of this section, the term `covered agency' means 
the Environmental Protection Agency and the Occupational Health and 
Safety Administration of the Department of Labor.
    ``(f) The Chief Counsel for Advocacy, in consultation with the 
individuals identified in paragraph (b)(2) and with the Administrator 
of the Office of Information and Regulatory Affairs within the Office 
of Management and Budget, may waive the requirements of paragraphs 
(b)(3), (b)(4), and (b)(5), and subsection (c) by including in the 
rulemaking record a written finding, with reasons therefor, that those 
requirements would not advance the effective participation of small 
entities in the rulemaking process. For purposes of this subsection, 
the factors to be considered in making such a finding are as follows--
            ``(1) in developing a proposed rule, the extent to which 
        the covered agency consulted with individuals representative of 
        affected small entities with respect to the potential impacts 
        of the rule and took such concerns into consideration; or in 
        developing a final rule, the extent to which the covered agency 
        took into consideration the comments filed by the individuals 
        identified in paragraph (b)(2);
            ``(2) special circumstances requiring prompt issuance of 
        the rule; and
            ``(3) whether the requirements of subsection (b) or (c) 
        would provide the individuals identified in subsection (b)(2) 
        with a competitive advantage relative to other small 
        entities.''.
    (b) Small Business Advocacy Chairpersons.--Not later than 30 days 
after the date of enactment of this Act, the head of each agency that 
has conducted a final regulatory flexibility analysis shall designate a 
small business advocacy chairperson using existing personnel to the 
extent possible, to be responsible for implementing this section and to 
act as permanent chair of the agency's review panels established 
pursuant to this section.

                     TITLE V--CONGRESSIONAL REVIEW

SEC. 501. SHORT TITLE.

    This title may be cited as the ``Congressional Review Act of 
1996''.

SEC. 502. FINDING.

    The Congress finds that effective steps for improving the 
efficiency and proper management of Government operations will be 
promoted if a moratorium on the effectiveness of certain significant 
final rules is imposed in order to provide Congress an opportunity for 
review.

SEC. 503. MORATORIUM ON REGULATIONS; CONGRESSIONAL REVIEW.

    (a) Reporting and Review of Regulations.--
            (1) Reporting to congress and the comptroller general.--
                    (A) Before a rule can take effect as a final rule, 
                the Federal agency promulgating such rule shall submit 
                to each House of the Congress and to the Comptroller 
                General a report containing--
                            (i) a copy of the rule;
                            (ii) a concise general statement relating 
                        to the rule; and
                            (iii) the proposed effective date of the 
                        rule.
                    (B) The Federal agency promulgating the rule shall 
                make available to each House of Congress and the 
                Comptroller General, upon request--
                            (i) a complete copy of the cost-benefit 
                        analysis of the rule, if any;
                            (ii) the agency's actions relevant to 
                        section 603, section 604, section 605, section 
                        607, and section 609 of Public Law 96-354;
                            (iii) the agency's actions relevant to 
                        title II, section 202, section 203, section 
                        204, and section 205 of Public Law 104-4; and
                            (iv) any other relevant information or 
                        requirements under any other Act and any 
                        relevant Executive Orders, such as Executive 
                        Order 12866.
                    (C) Upon receipt, each House shall provide copies 
                to the Chairman and Ranking Member of each committee 
                with jurisdiction.
            (2) Reporting by the comptroller general.--
                    (A) The Comptroller General shall provide a report 
                on each significant rule to the committees of 
                jurisdiction to each House of the Congress by the end 
                of 12 calendar days after the submission or publication 
                date as provided in section 504(b)(2). The report of 
                the Comptroller General shall include an assessment of 
                the agency's compliance with procedural steps required 
                by subparagraph (B) (i) through (iv).
                    (B) Federal agencies shall cooperate with the 
                Comptroller General by providing information relevant 
                to the Comptroller General's report under paragraph 
                (2)(A) of this section.
            (3) Effective date of significant rules.--A significant 
        rule relating to a report submitted under paragraph (1) shall 
        take effect as a final rule, the latest of--
                    (A) the later of the date occurring 45 days after 
                the date on which--
                            (i) the Congress receives the report 
                        submitted under paragraph (1); or
                            (ii) the rule is published in the Federal 
                        Register;
                    (B) if the Congress passes a joint resolution of 
                disapproval described under section 504 relating to the 
                rule, and the President signs a veto of such 
                resolution, the earlier date--
                            (i) on which either House of Congress votes 
                        and fails to override the veto of the 
                        President; or
                            (ii) occurring 30 session days after the 
                        date on which the Congress received the veto 
                        and objections of the President; or
                    (C) the date the rule would have otherwise taken 
                effect, if not for this section (unless a joint 
                resolution of disapproval under section 504 is 
                enacted).
            (4) Effective date for other rules.--Except for a 
        significant rule, a rule shall take effect as otherwise 
        provided by law after submission to Congress under paragraph 
        (1).
            (5) Failure of joint resolution of disapproval.--
        Notwithstanding the provisions of paragraph (3), the effective 
        date of a rule shall not be delayed by operation of this title 
        beyond the date on which either House of Congress votes to 
        reject a joint resolution of disapproval under section 504.
    (b) Termination of Disapproved Rulemaking.--A rule shall not take 
effect (or continue) as a final rule, if the Congress passes a joint 
resolution of disapproval described under section 504.
    (c) Presidential Waiver Authority.--
            (1) Presidential determinations.--Notwithstanding any other 
        provision of this section (except subject to paragraph (3)), a 
        rule that would not take effect by reason of this title may 
        take effect, if the President makes a determination under 
        paragraph (2) and submits written notice of such determination 
        to the Congress.
            (2) Grounds for determinations.--Paragraph (1) applies to a 
        determination made by the President by Executive order that the 
        rule should take effect because such rule is--
                    (A) necessary because of an imminent threat to 
                health or safety or other emergency;
                    (B) necessary for the enforcement of criminal laws; 
                or
                    (C) necessary for national security.
            (3) Waiver not to affect congressional disapprovals.--An 
        exercise by the President of the authority under this 
        subsection shall have no effect on the procedures under section 
        504 or the effect of a joint resolution of disapproval under 
        this section.
    (d) Treatment of Rules Issued at End of Congress.--
            (1) Additional opportunity for review.--In addition to the 
        opportunity for review otherwise provided under this title, in 
        the case of any rule that is published in the Federal Register 
        (as a rule that shall take effect as a final rule) during the 
        period beginning on the date occurring 60 days before the date 
        the Congress adjourns sine die through the date on which the 
        succeeding Congress first convenes, section 504 shall apply to 
        such rule in the succeeding Congress.
            (2) Treatment under section 504.--
                    (A) In applying section 504 for purposes of such 
                additional review, a rule described under paragraph (1) 
                shall be treated as though--
                            (i) such rule were published in the Federal 
                        Register (as a rule that shall take effect as a 
                        final rule) on the 15th session day after the 
                        succeeding Congress first convenes; and
                            (ii) a report on such rule were submitted 
                        to Congress under subsection (a)(1) on such 
                        date.
                    (B) Nothing in this paragraph shall be construed to 
                affect the requirement under subsection (a)(1) that a 
                report must be submitted to Congress before a final 
                rule can take effect.
            (3) Actual effective date not affected.--A rule described 
        under paragraph (1) shall take effect as a final rule as 
        otherwise provided by law (including other subsections of this 
        section).
    (e) Treatment of Rules Issued Before This Title.--
            (1) Opportunity for congressional review.--The provisions 
        of section 504 shall apply to any significant rule that is 
        published in the Federal Register (as a rule that shall take 
        effect as a final rule) during the period beginning on March 1, 
        1996, through the date on which this title takes effect.
            (2) Treatment under section 504.--In applying section 504 
        for purposes of Congressional review, a rule described under 
        paragraph (1) shall be treated as though--
                    (A) such rule were published in the Federal 
                Register (as a rule that shall take effect as a final 
                rule) on the date of the enactment of this Act; and
                    (B) a report on such rule were submitted to 
                Congress under subsection (a)(1) on such date.
            (3) Actual effective date not affected.--The effectiveness 
        of a rule described under paragraph (1) shall be as otherwise 
        provided by law, unless the rule is made of no force or effect 
        under section 504.
    (f) Nullification of Rules Disapproved by Congress.--Any rule that 
takes effect and later is made of no force or effect by the enactment 
of a joint resolution under section 504 shall be treated as though such 
rule had never taken effect.
    (g) No Inference to be Drawn Where Rules Not Disapproved.--If the 
Congress does not enact a joint resolution of disapproval under section 
504, no court or agency may infer any intent of the Congress from any 
action or inaction of the Congress with regard to such rule, related 
statute, or joint resolution of disapproval.

SEC. 504. CONGRESSIONAL DISAPPROVAL PROCEDURE.

    (a) Joint Resolution Defined.--For purposes of this section, the 
term ``joint resolution'' means only a joint resolution introduced 
during the period beginning on the date on which the report referred to 
in section 503(a) is received by Congress and ending 45 days 
thereafter, the matter after the resolving clause of which is as 
follows: ``That Congress disapproves the rule submitted by the ____ 
relating to ____, and such rule shall have no force or effect.''. (The 
blank spaces being appropriately filled in.)
    (b) Referral.--
            (1) In general.--A resolution described in paragraph (1) 
        shall be referred to the committees in each House of Congress 
        with jurisdiction. Such a resolution may not be reported before 
        the eighth day after its submission or publication date.
            (2) Submission date.--For purposes of this subsection the 
        term ``submission or publication date'' means the later of the 
        date on which--
                    (A) the Congress receives the report submitted 
                under section 503(a)(1); or
                    (B) the rule is published in the Federal Register.
    (c) Discharge.--If the committee to which is referred a resolution 
described in subsection (a) has not reported such resolution (or an 
identical resolution) at the end of 20 calendar days after the 
submission or publication date defined under subsection (b)(2), such 
committee may be discharged from further consideration of such 
resolution in the Senate upon a petition supported in writing by 30 
Members of the Senate and in the House upon a petition supported in 
writing by one-fourth of the Members duly sworn and chosen or by motion 
of the Speaker supported by the Minority Leader, and such resolution 
shall be placed on the appropriate calendar of the House involved.
    (d) Floor Consideration.--
            (1) In general.--When the committee to which a resolution 
        is referred has reported, or when a committee is discharged 
        (under subsection (c)) from further consideration of, a 
        resolution described in subsection (a), it is at any time 
        thereafter in order (even though a previous motion to the same 
        effect has been disagreed to) for a motion to proceed to the 
        consideration of the resolution, and all points of order 
        against the resolution (and against consideration of 
        resolution) are waived. The motion is not subject to amendment, 
        or to a motion to postpone, or to a motion to proceed to the 
        consideration of other business. A motion to reconsider the 
        vote by which the motion is agreed to or disagreed to shall not 
        be in order. If a motion to proceed to the consideration of the 
        resolution is agreed to, the resolution shall remain the 
        unfinished business of the respective House until disposed of.
            (2) Debate.--Debate on the resolution, and on all debatable 
        motions and appeals in connection therewith, shall be limited 
        to not more than 10 hours, which shall be divided equally 
        between those favoring and those opposing the resolution. A 
        motion further to limit debate is in order and not debatable. 
        An amendment to, or a motion to postpone, or a motion to 
        proceed to the consideration of other business, or a motion to 
        recommit the resolution is not in order.
            (3) Final passage.--Immediately following the conclusion of 
        the debate on a resolution described in subsection (a), and a 
        single quorum call at the conclusion of the debate if requested 
        in accordance with the rules of the appropriate House, the vote 
        on final passage of the resolution shall occur.
            (4) Appeals.--Appeals from the decisions of the Chair 
        relating to the application of the rules of the Senate or the 
        House of Representatives, as the case may be, to the procedure 
        relating to a resolution described in subsection (a) shall be 
        decided without debate.
    (e) Treatment if Other House Has Acted.--If, before the passage by 
one House of a resolution of that House described in subsection (a), 
that House receives from the other House a resolution described in 
subsection (a), then the following procedures shall apply:
            (1) Nonreferral.--The resolution of the other House shall 
        not be referred to a committee.
            (2) Final passage.--With respect to a resolution described 
        in subsection (a) of the House receiving the resolution--
                    (A) the procedure in that House shall be the same 
                as if no resolution had been received from the other 
                House; but
                    (B) the vote on final passage shall be on the 
                resolution of the other House.
    (f) Constitutional Authority.--This section is enacted by 
Congress--
            (1) as an exercise of the rulemaking power of the Senate 
        and House of Representatives, respectively, and as such it is 
        deemed a part of the rules of each House, respectively, but 
        applicable only with respect to the procedure to be followed in 
        that House in the case of a resolution described in subsection 
        (a), and it supersedes other rules only to the extent that it 
        is inconsistent with such rules; and
            (2) with full recognition of the constitutional right of 
        either House to change the rules (so far as relating to the 
        procedure of that House) at any time, in the same manner, and 
        to the same extent as in the case of any other rule of that 
        House.

SEC. 505. SPECIAL RULE ON STATUTORY, REGULATORY AND JUDICIAL DEADLINES.

    (a) In General.--In the case of any deadline for, relating to, or 
involving any rule which does not take effect (or the effectiveness of 
which is terminated) because of the enactment of a joint resolution 
under section 504, that deadline is extended until the date 12 months 
after the date of the joint resolution. Nothing in this subsection 
shall be construed to affect a deadline merely by reason of the 
postponement of a rule's effective date under section 503(a).
    (b) Deadline Defined.--The term ``deadline'' means any date certain 
for fulfilling any obligation or exercising any authority established 
by or under any Federal statute or regulation, or by or under any court 
order implementing any Federal statute or regulation.

SEC. 506. DEFINITIONS.

    For purposes of this title--
            (1) Federal agency.--The term ``Federal agency'' means any 
        ``agency'' as that term is defined in section 551(1) of title 
        5, United States Code (relating to administrative procedure).
            (2) Significant rule.--The term ``significant rule''--
                    (A) means any final rule that the Administrator of 
                the Office of Information and Regulatory Affairs within 
                the Office of Management and Budget finds--
                            (i) has an annual effect on the economy of 
                        $100,000,000 or more or adversely affects in a 
                        material way the economy, a sector of the 
                        economy, productivity, competition, jobs, the 
                        environment, public health or safety, or State, 
                        local, or tribal governments or communities;
                            (ii) creates a serious inconsistency or 
                        otherwise interferes with an action taken or 
                        planned by another agency;
                            (iii) materially alters the budgetary 
                        impact of entitlement, grants, user fees, or 
                        loan programs or the rights and obligations of 
                        recipients thereof; or
                            (iv) raises novel legal or policy issues 
                        arising out of legal mandates, the President's 
                        priorities, or the principles set forth in 
                        Executive Order 12866; and
                    (B) shall not include any rule promulgated under 
                the Telecommunications Act of 1996 and the amendments 
                made by such Act.
            (3) Final rule.--The term ``final rule'' means any final 
        rule or interim final rule. As used in this paragraph, ``rule'' 
        has the meaning given such term by section 551 of title 5, 
        United States Code, except that such term does not include any 
        rule of particular applicability including a rule that approves 
        or prescribes for the future rates, wages, prices, services, or 
        allowances therefor, corporate or financial structures, 
        reorganizations, mergers, or acquisitions thereof, or 
        accounting practices or disclosures bearing on any of the 
        foregoing or any rule of agency organization, personnel, 
        procedure, practice or any routine matter.

SEC. 507. JUDICIAL REVIEW.

    No determination, finding, action, or omission under this title 
shall be subject to judicial review.

SEC. 508. APPLICABILITY; SEVERABILITY.

    (a) Applicability.--This title shall apply notwithstanding any 
other provision of law.
    (b) Severability.--If any provision of this title, or the 
application of any provision of this title to any person or 
circumstance, is held invalid, the application of such provision to 
other persons or circumstances, and the remainder of this title, shall 
not be affected thereby.

SEC. 509. EXEMPTION FOR MONETARY POLICY.

    Nothing in this title shall apply to rules that concern monetary 
policy proposed or implemented by the Board of Governors of the Federal 
Reserve System or the Federal Open Market Committee.

SEC. 510. EXEMPTION FOR HUNTING AND FISHING.

    Nothing in this title shall apply to rules that establish, modify, 
open, close, or conduct a regulatory program for a commercial, 
recreational, or subsistence activity relating to hunting, fishing, or 
camping.

SEC. 511. EFFECTIVE DATE.

    This title shall take effect on the date of the enactment of this 
Act and shall apply to any rule that takes effect as a final rule on or 
after such effective date.

            Passed the Senate March 19, 1996.

            Attest:

                                                             Secretary.
104th CONGRESS

  2d Session

                                 S. 942

_______________________________________________________________________

                                 AN ACT

To promote increased understanding of Federal regulations and increased 
   voluntary compliance with such regulations by small entities, to 
provide for the designation of regional ombudsmen and oversight boards 
 to monitor the enforcement practices of certain Federal agencies with 
 respect to small business concerns, to provide relief from excessive 
 and arbitrary regulatory enforcement actions against small entities, 
                        and for other purposes.

S 942 ES----2
S 942 ES----3
S 942 ES----4
S 942 ES----5
```