H. R. 2586—33
the court may stay the rule or grant such other relief as it deems
appropriate.
‘‘(6) In making any determination or granting any relief author-
ized by this subsection, the court shall take due account of the
rule of prejudicial error.
‘‘(b) In an action for the judicial review of a rule, any regulatory
flexibility analysis for such rule (including an analysis prepared
or corrected pursuant to subsection (a)(4)) shall constitute part
of the whole record of agency action in connection with such review.
‘‘(c) 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 provided
by law.’’.
(B) EFFECTIVE DATE.—The amendment made by sub-
section (a) shall apply only to final agency rules issued
after the date of enactment of this Act.
(2) RULES
COMMENTED
ON
BY
SBA
CHIEF
COUNSEL
FOR
ADVOCACY.—
(A) IN GENERAL.—Section 612 of title 5, United States
Code, is amended by adding at the end the following new
subsection:
‘‘(d) ACTION BY THE SBA CHIEF COUNSEL FOR ADVOCACY.—
‘‘(1) TRANSMITTAL OF PROPOSED RULES AND INITIAL REGU-
LATORY
FLEXIBILITY
ANALYSIS
TO
SBA
CHIEF
COUNSEL
FOR
ADVOCACY.—On or before the 30th day preceding the date of
publication by an agency of general notice of proposed rule-
making for a rule, the agency shall transmit to the Chief
Counsel for Advocacy of the Small Business Administration—
‘‘(A) a copy of the proposed rule; and
‘‘(B)(i) a copy of the initial regulatory flexibility analysis
for the rule if required under section 603; or
‘‘(ii) a determination by the agency that an initial
regulatory flexibility analysis is not required for the pro-
posed rule under section 603 and an explanation for the
determination.
‘‘(2) STATEMENT OF EFFECT.—On or before the 15th day
following receipt of a proposed rule and initial regulatory flexi-
bility analysis from an agency under paragraph (1), the Chief
Counsel for Advocacy may transmit to the agency a written
statement of the effect of the proposed rule on small entities.
‘‘(3) RESPONSE.—If the Chief Counsel for Advocacy trans-
mits to an agency a statement of effect on a proposed rule
in accordance with paragraph (2), the agency shall publish
the statement, together with the response of the agency to
the statement, in the Federal Register at the time of publication
of general notice of proposed rulemaking for the rule.
‘‘(4) SPECIAL RULE.—Any proposed rules issued by an appro-
priate Federal banking agency (as that term is defined in
section 3(q) of the Federal Deposit Insurance Act (12 U.S.C.
1813(q)), the National Credit Union Administration, or the
Office of Federal Housing Enterprise Oversight, in connection
with the implementation of monetary policy or to ensure the
safety and soundness of federally insured depository institu-
tions, any affiliate of such an institution, credit unions, or
government sponsored housing enterprises or to protect the
Federal deposit insurance funds shall not be subject to the
requirements of this subsection.’’.
H. R. 2586—34
(B) CONFORMING AMENDMENT.—Section 603(a) of title
5, United States Code, is amended by inserting ‘‘in accord-
ance with section 612(d)’’ before the period at the end
of the last sentence.
(3) SENSE OF CONGRESS REGARDING SBA CHIEF COUNSEL
FOR ADVOCACY.—It is the sense of Congress that the Chief
Counsel for Advocacy of the Small Business Administration
should be permitted to appear as amicus curiae in any action
or case brought in a court of the United States for the purpose
of reviewing a rule.
(b) SUBCHAPTER HEADING.—Chapter 6 of title 5, United States
Code, is amended by inserting immediately before section 601,
the following subchapter heading:
‘‘SUBCHAPTER I—REGULATORY ANALYSIS’’.
SEC. 2005. GUIDANCE FOR JUDICIAL INTERPRETATION.
(a) IN GENERAL.—Chapter 7 of title 5, United States Code,
is amended—
(1) by striking section 706; and
(2) by adding at the end the following new sections:
‘‘§ 706. Scope of review
‘‘(a) To the extent necessary to reach a decision and when
presented, the reviewing court shall decide all relevant questions
of law, interpret constitutional and statutory provisions, and deter-
mine the meaning or applicability of the terms of an agency action.
The reviewing court shall—
‘‘(1) compel agency action unlawfully withheld or unreason-
ably delayed; and
‘‘(2) hold unlawful and set aside agency action, findings
and conclusions found to be—
‘‘(A) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law;
‘‘(B) contrary to constitutional right, power, privilege,
or immunity;
‘‘(C) in excess of statutory jurisdiction, authority, or
limitations, or short of statutory right;
‘‘(D) without observance of procedure required by law;
‘‘(E) unsupported by substantial evidence in a proceed-
ing subject to sections 556 and 557 or otherwise reviewed
on the record of an agency hearing provided by statute;
or
‘‘(F) unwarranted by the facts to the extent that the
facts are subject to trial de novo by the reviewing court.
‘‘(b) In making the determinations set forth in subsection (a),
the court shall review the whole record or those parts of it cited
by a party, and due account shall be taken of the rule of prejudicial
error.
‘‘§ 707. Consent decrees
‘‘In interpreting any consent decree in effect on or after the
date of enactment of this section that imposes on an agency an
obligation to initiate, continue, or complete rulemaking proceedings,
the court shall not enforce the decree in a way that divests the
agency of discretion clearly granted to the agency by statute to
H. R. 2586—35
respond to changing circumstances, make policy or managerial
choices, or protect the rights of third parties.
‘‘§ 708. Affirmative defense
‘‘Notwithstanding any other provision of law, it shall be an
affirmative defense in any enforcement action brought by an agency
that the regulated person or entity reasonably relied on and is
complying with a rule, regulation, adjudication, directive, or order
of such agency or any other agency that is incompatible, contradic-
tory, or otherwise cannot be reconciled with the agency rule, regula-
tion, adjudication, directive, or order being enforced.
‘‘§ 709. Agency interpretations in civil and criminal actions
‘‘(a) No civil or criminal penalty shall be imposed by a court,
and no civil administrative penalty shall be imposed by an agency,
for the violation of a rule—
‘‘(1) if the court or agency, as appropriate, finds that the
rule failed to give the defendant fair warning of the conduct
that the rule prohibits or requires; or
‘‘(2) if the court or agency, as appropriate, finds that the
defendant acted reasonably in good faith based upon the lan-
guage of the rule as published in the Federal Register.
‘‘(b) Nothing in this section shall be construed to preclude
an agency—
‘‘(1) from revising a rule or changing its interpretation
of a rule in accordance with sections 552 and 553 of this
title, and subject to the provisions of this section, prospectively
enforcing the requirements of such rule as revised or reinter-
preted and imposing or seeking a civil or criminal penalty
for any subsequent violation of such rule as revised or reinter-
preted; or
‘‘(2) from making a new determination of fact, and based
upon such determination, prospectively applying a particular
legal requirement.
‘‘(c) This section shall apply to any action filed after the date
of the enactment of the Comprehensive Regulatory Reform Act
of 1995.’’.
(b) TECHNICAL AMENDMENT.—The analysis for chapter 7 of
title 5, United States Code, is amended by striking the item relating
to section 706 and inserting the following new items:
‘‘706. Scope of review.
‘‘707. Consent decrees.
‘‘708. Affirmative defense.
‘‘709. Agency interpretations in civil and criminal actions.’’.
SEC. 2006. CONGRESSIONAL REVIEW.
(a) 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 implementation
of certain major final and proposed rules is imposed in order to
provide Congress an opportunity for review.
(b) IN GENERAL.—Title 5, United States Code, is amended
by inserting immediately after chapter 7 the following new chapter:
‘‘CHAPTER 8—CONGRESSIONAL REVIEW OF AGENCY
RULEMAKING
‘‘Sec.
‘‘801. Congressional review.
H. R. 2586—36
‘‘802. Congressional disapproval procedure.
‘‘803. Special rule on statutory, regulatory, and judicial deadlines.
‘‘804. Definitions.
‘‘805. Judicial review.
‘‘806. Applicability; severability.
‘‘807. Exemption for monetary policy.
‘‘§ 801. Congressional review
‘‘(a)(1)(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 contain-
ing—
‘‘(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 sections 603, 604,
605, 607, and 609;
‘‘(iii) the agency’s actions relevant to sections 202, 203,
204, and 205 of the Unfunded Mandates Reform Act of 1995;
and
‘‘(iv) any other relevant information or requirements under
any other Act and any relevant Executive orders, such as
Executive Order No. 12866.
‘‘(C) Upon receipt, each House shall provide copies to the Chair-
man and Ranking Member of each committee with jurisdiction.
‘‘(2)(A) The Comptroller General shall provide a report on each
major 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 802(b)(2). The report
of the Comptroller General shall include an assessment of the
agency’s compliance with procedural steps required by paragraph
(1)(B).
‘‘(B) Federal agencies shall cooperate with the Comptroller Gen-
eral by providing information relevant to the Comptroller General’s
report under subparagraph (A).
‘‘(3) A major rule relating to a report submitted under para-
graph (1) shall take effect as a final rule, the latest of—
‘‘(A) the later of the date occurring 60 days (excluding
days either House of Congress is adjourned for more than
3 days during a session of Congress) 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 802 relating to the rule, and the Presi-
dent 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 Presi-
dent; or
‘‘(C) the date the rule would have otherwise taken effect,
if not for this section (unless a joint resolution of disapproval
under section 802 is enacted).