II

103D CONGRESS

2D SESSION S. 2521

To amend chapter 6 of title 5, United States Code, to modify the judicial

review of regulatory flexibility analyses, and for other purposes.

IN THE SENATE OF THE UNITED STATES

OCTOBER 6 (legislative day, SEPTEMBER 12), 1994

Mr. WALLOP (for himself and Mr. PRESSLER) introduced the following bill;

which was read twice and referred to the Committee on the Judiciary

A BILL

To amend chapter 6 of title 5, United States Code, to modify

the judicial review of regulatory flexibility analyses, 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 ‘‘Regulatory Flexibility

5 Amendments Act of 1994’’.

6 SEC. 2. JUDICIAL REVIEW OF REGULATORY FLEXIBILITY

7 ANALYSES.

8 (a) AMENDMENT.—Section 611 of title 5, United

9 States Code, is amended to read as follows:
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1 ‘‘§ 611. Judicial review

2 ‘‘(a)(1) Except as provided in paragraph (2), not

3 later than 1 year after the effective date of a final rule

4 with respect to which an agency—

5 ‘‘(A) certified, pursuant to section 605(b) of

6 this title, that such rule would not have a significant

7 economic impact on a substantial number of small

8 entities; or

9 ‘‘(B) prepared final regulatory flexibility analy10 sis pursuant to section 604 of this title,

11 an affected small entity may petition for the judicial re12 view of such certification or analysis in accordance with

13 the terms of this subsection. A court having jurisdiction

14 to review such rule for compliance with the provisions of

15 section 553 of this title or under any other provision of

16 law shall have jurisdiction to review such certification or

17 analysis.

18 ‘‘(2)(A) Except as provided in subparagraph (B), in

19 the case where a provision of law requires that an action

20 challenging a final agency regulation be commenced before

21 the expiration of the 1-year period provided in paragraph

22 (1), such lesser period shall apply to a petition for the

23 judicial review under this subsection.

24 ‘‘(B) In the case where an agency delays the issuance

25 of a final regulatory flexibility analysis pursuant to section
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1 608(b) of this title, a petition for judicial review under

2 this subsection shall be filed not later than—

3 ‘‘(i) 1-year; or

4 ‘‘(ii) in the case where a provision of law re5 quires that an action challenging a final agency reg6 ulation be commenced before the expiration of the 1-

7 year period provided in paragraph (1), the number

8 of days specified in such provision of law,

9 after the date the analysis is made available to the public.

10 ‘‘(3) For purposes of this subsection, the term ‘af11 fected small entity’ means a small entity that is or will

12 be adversely affected by the final rule.

13 ‘‘(4) Nothing in this subsection shall be construed to

14 affect the authority of any court to stay the effective date

15 of any rule or provision thereof under any other provision

16 of law.

17 ‘‘(5)(A) In the case where the agency certified that

18 such rule would not have a significant economic impact

19 on a substantial number of small entities, the court may

20 order the agency to prepare a final regulatory flexibility

21 analysis pursuant to section 604 of this title if the court

22 determines, on the basis of the rulemaking record, that

23 the certification was arbitrary, capricious, an abuse of dis24 cretion, or otherwise not in accordance with law.
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1 ‘‘(B) In the case where the agency prepared a final

2 regulatory flexibility analysis, the court may order the

3 agency to take corrective action consistent with the re4 quirements of section 604 of this title if the court deter5 mines, on the basis of the rulemaking record, that the final

6 regulatory flexibility analysis was prepared by the agency

7 without observance of procedure required by section 604

8 of this title.

9 ‘‘(6) If, by the end of the 90-day period beginning

10 on the date of the order of the court pursuant to para11 graph (5) (or such longer period as the court may pro12 vide), the agency fails, as appropriate—

13 ‘‘(A) to prepare the analysis required by section

14 604 of this title; or

15 ‘‘(B) to take corrective action consistent with

16 the requirements of section 604 of this title,

17 the court may stay the rule or grant such other relief as

18 it deems appropriate.

19 ‘‘(7) In making any determination or granting any

20 relief authorized by this subsection, the court shall take

21 due account of the rule of prejudicial error.

22 ‘‘(b) In an action for the judicial review of a rule,

23 any regulatory flexibility analysis for such rule (including

24 an analysis prepared or corrected pursuant to subsection
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1 (a)(5)) shall constitute part of the whole record of agency

2 action in connection with such review.

3 ‘‘(c) Nothing in this section bars judicial review of

4 any other impact statement or similar analysis required

5 by any other law if judicial review of such statement or

6 analysis is otherwise provided by law.’’.

7 (b) EFFECTIVE DATE.—The amendment made by

8 subsection (a) shall take effect on the date of enactment

9 of this Act, except that the judicial review authorized by

10 section 611(a) of title 5, United States Code (as added

11 by subsection (a)), shall apply only to final agency rules

12 issued after the date of enactment of this Act.

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