H. R. 3136—15
to Congress and affected agencies evaluating the enforce-
ment 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
Administrator and to the heads of affected agencies; and
‘‘(E) provide the affected agency with an opportunity
to comment on draft reports prepared under subparagraph
(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 Administrator shall establish a Small Busi-
ness 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 sub-
section (b).
‘‘(3) Each Board shall consist of five members, who are
owners, operators, or officers of small business concerns,
appointed by the Administrator, after receiving the rec-
ommendations of the chair and ranking minority member of
the Committees on Small Business of the House of Representa-
tives and the Senate. Not more than three of the Board mem-
bers shall be of the same political party. No member shall
be an officer or employee of the Federal Government, in either
the executive branch or the Congress.
‘‘(4) Members of the Board shall serve at the pleasure
of the Administrator for terms of three years or less.
‘‘(5) The Administrator shall select a chair from among
the members of the Board who shall serve at the pleasure
of the Administrator for not more than 1 year 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 depart-
ments 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.
H. R. 3136—16
‘‘(4) Members of the Board shall serve without compensa-
tion, 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 perform-
ance of services for the Board.’’.
SEC. 223. 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 enact-
ment of this section to provide for the reduction, and under appro-
priate 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
through participation by the small entity in a compliance assist-
ance or audit program operated or supported by the agency
or a State;
(3) excluding small entities that have been subject to mul-
tiple enforcement actions by the agency;
(4) excluding violations involving willful or criminal con-
duct;
(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 the Committee on
Small Business and Committee on Governmental Affairs of the
Senate and the Committee on Small Business and Committee on
Judiciary of the House of Representatives no later than 2 years
after the date of enactment of this section 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.
SEC. 224. EFFECTIVE DATE.
This subtitle and the amendments made by this subtitle shall
take effect on the expiration of 90 days after the date of enactment
of this subtitle.
Subtitle C—Equal Access to Justice Act
Amendments
SEC. 231. ADMINISTRATIVE PROCEEDINGS.
(a) Section 504(a) of title 5, United States Code, is amended
by adding at the end the following new paragraph:
‘‘(4) If, in an adversary adjudication arising from an agency
action to enforce a party’s compliance with a statutory or regulatory
requirement, the demand by the agency is substantially in excess
H. R. 3136—17
of the decision of the adjudicative officer and is unreasonable when
compared with such decision, under the facts and circumstances
of the case, the adjudicative officer shall award to the party the
fees and other expenses related to defending against the excessive
demand, unless the party has committed a willful violation of
law or otherwise acted in bad faith, or special circumstances make
an award unjust. Fees and expenses awarded under this paragraph
shall be paid only as a consequence of appropriations provided
in advance.’’.
(b) Section 504(b) of title 5, United States Code, is amended—
(1) in paragraph (1)(A), by striking ‘‘$75’’ and inserting
‘‘$125’’;
(2) at the end of paragraph (1)(B), by inserting before
the semicolon ‘‘or for purposes of subsection (a)(4), a small
entity as defined in section 601’’;
(3) at the end of paragraph (1)(D), by striking ‘‘and’’;
(4) at the end of paragraph (1)(E), by striking the period
and inserting ‘‘; and’’; and
(5) at the end of paragraph (1), by adding the following
new subparagraph:
‘‘(F) ‘demand’ means the express demand of the agency
which led to the adversary adjudication, but does not include
a recitation by the agency of the maximum statutory penalty
(i) in the administrative complaint, or (ii) elsewhere when
accompanied by an express demand for a lesser amount.’’.
SEC. 232. JUDICIAL PROCEEDINGS.
(a) Section 2412(d)(1) of title 28, United States Code, is
amended by adding at the end the following new subparagraph:
‘‘(D) If, in a civil action brought by the United States or a
proceeding for judicial review of an adversary adjudication described
in section 504(a)(4) of title 5, the demand by the United States
is substantially in excess of the judgment finally obtained by the
United States and is unreasonable when compared with such judg-
ment, under the facts and circumstances of the case, the court
shall award to the party the fees and other expenses related to
defending against the excessive demand, unless the party has
committed a willful violation of law or otherwise acted in bad
faith, or special circumstances make an award unjust. Fees and
expenses awarded under this subparagraph shall be paid only as
a consequence of appropriations provided in advance.’’.
(b) Section 2412(d) of title 28, United States Code, is amended—
(1) in paragraph (2)(A), by striking ‘‘$75’’ and inserting
‘‘$125’’;
(2) at the end of paragraph (2)(B), by inserting before
the semicolon ‘‘or for purposes of subsection (d)(1)(D), a small
entity as defined in section 601 of title 5’’;
(3) at the end of paragraph (2)(G), by striking ‘‘and’’;
(4) at the end of paragraph (2)(H), by striking the period
and inserting ‘‘; and’’; and
(5) at the end of paragraph (2), by adding the following
new subparagraph:
‘‘(I) ‘demand’ means the express demand of the United
States which led to the adversary adjudication, but 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.’’.
H. R. 3136—18
SEC. 233. EFFECTIVE DATE.
The amendments made by sections 331 and 332 shall apply
to civil actions and adversary adjudications commenced on or after
the date of the enactment of this subtitle.
Subtitle D—Regulatory Flexibility Act
Amendments
SEC. 241. REGULATORY FLEXIBILITY ANALYSES.
(a) INITIAL REGULATORY FLEXIBILITY ANALYSIS.—
(1) SECTION 603.—Section 603(a) of title 5, United States
Code, is amended—
(A) by inserting after ‘‘proposed rule’’, the phrase ‘‘,
or publishes a notice of proposed rulemaking for an
interpretative rule involving the internal revenue laws of
the United States’’; and
(B) by inserting at the end of the subsection, the follow-
ing new sentence: ‘‘In the case of an interpretative rule
involving the internal revenue laws of the United States,
this chapter applies to interpretative rules published in
the Federal Register for codification in the Code of Federal
Regulations, but only to the extent that such interpretative
rules impose on small entities a collection of information
requirement.’’.
(2) SECTION 601.—Section 601 of title 5, United States Code,
is amended by striking ‘‘and’’ at the end of paragraph (5),
by striking the period at the end of paragraph (6) and inserting
‘‘; and’’, and by adding at the end the following:
‘‘(7) the term ‘collection of information’—
‘‘(A) means the obtaining, causing to be obtained, solic-
iting, or requiring the disclosure to third parties or the
public, of facts or opinions by or for an agency, regardless
of form or format, calling for either—
‘‘(i) answers to identical questions posed to, or
identical reporting or recordkeeping requirements
imposed on, 10 or more persons, other than agencies,
instrumentalities, or employees of the United States;
or
‘‘(ii) answers to questions posed to agencies,
instrumentalities, or employees of the United States
which are to be used for general statistical purposes;
and
‘‘(B) shall not include a collection of information
described under section 3518(c)(1) of title 44, United States
Code.
‘‘(8) RECORDKEEPING
REQUIREMENT.—The term ‘record-
keeping requirement’ means a requirement imposed by an
agency on persons to maintain specified records.’’.
(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 promul-
gates a final interpretative rule involving the internal revenue
H. R. 3136—19
laws of the United States as described in section 603(a), the agency
shall prepare a final regulatory flexibility analysis. Each final regu-
latory 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, recordkeeping
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 consid-
ered by the agency which affect the impact on small entities
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. 242. JUDICIAL REVIEW.
Section 611 of title 5, United States Code, is amended to
read as follows:
‘‘§ 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 require-
ments of sections 601, 604, 605(b), 608(b), and 610 in accordance
with chapter 7. Agency compliance with sections 607 and 609(a)
shall be judicially reviewable in connection with judicial review
of section 604.
‘‘(2) Each court having jurisdiction to review such rule for
compliance with section 553, or under any other provision of law,
shall have jurisdiction to review any claims of noncompliance with
sections 601, 604, 605(b), 608(b), and 610 in accordance with chapter
7. Agency compliance with sections 607 and 609(a) shall be judicially
reviewable in connection with judicial review of section 604.
‘‘(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 expira-
tion of one year, such lesser period shall apply to an action 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
H. R. 3136—20
this chapter, an action 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 chal-
lenging a final agency regulation be commenced before the
expiration of the 1-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) In granting any relief in an action under this section,
the court shall order the agency to take corrective action consistent
with this chapter and chapter 7, including, but not limited to—
‘‘(A) remanding the rule to the agency, and
‘‘(B) deferring the enforcement of the rule against small
entities unless the court finds that continued enforcement of
the rule is in the public interest.
‘‘(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) Compliance or noncompliance by an agency with the provi-
sions of this chapter shall be subject to judicial review only in
accordance with this section.
‘‘(d) 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 per-
mitted by law.’’.
SEC. 243. 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 basis 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 Representa-
tives’’ 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’’.
H. R. 3136—21
SEC. 244. SMALL BUSINESS ADVOCACY REVIEW PANELS.
(a) SMALL BUSINESS OUTREACH AND INTERAGENCY COORDINA-
TION.— 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:
‘‘(b) Prior to publication of an initial regulatory flexibility analy-
sis 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 enti-
ties for the purpose of obtaining advice and recommendations
from those individuals about the potential impacts of the pro-
posed 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 pro-
posed 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 each
individual small entity representative 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 rep-
resentatives 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 pro-
posed rule, the initial regulatory flexibility analysis or the
decision on whether an initial regulatory flexibility analysis
is required.
‘‘(c) An agency may in its discretion apply subsection (b) 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.
‘‘(d) For purposes of this section, the term ‘covered agency’
means the Environmental Protection Agency and the Occupational
Safety and Health Administration of the Department of Labor.
‘‘(e) The Chief Counsel for Advocacy, in consultation with the
individuals identified in subsection (b)(2), and with the Adminis-
trator of the Office of Information and Regulatory Affairs within
the Office of Management and Budget, may waive the requirements
of subsections (b)(3), (b)(4), and (b)(5) by including in the rulemaking
H. R. 3136—22
record a written finding, with reasons therefor, that those require-
ments 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.
‘‘(2) Special circumstances requiring prompt issuance of
the rule.
‘‘(3) Whether the requirements of subsection (b) would pro-
vide 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
covered 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.
SEC. 245. EFFECTIVE DATE.
This subtitle shall become effective on the expiration of 90
days after the date of enactment of this subtitle, except that such
amendments shall not apply to interpretative rules for which a
notice of proposed rulemaking was published prior to the date
of enactment.
Subtitle E—Congressional Review
SEC. 251. CONGRESSIONAL REVIEW OF AGENCY RULEMAKING.
Title 5, United States Code, is amended by inserting imme-
diately after chapter 7 the following new chapter:
‘‘CHAPTER 8—CONGRESSIONAL REVIEW OF AGENCY
RULEMAKING
‘‘Sec.
‘‘801. Congressional review.
‘‘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.
‘‘808. Effective date of certain rules.
‘‘§ 801. Congressional review
‘‘(a)(1)(A) Before a rule can take effect, 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, includ-
ing whether it is a major rule; and
‘‘(iii) the proposed effective date of the rule.
‘‘(B) On the date of the submission of the report under subpara-
graph (A), the Federal agency promulgating the rule shall submit
to the Comptroller General and make available to each House
of Congress—
H. R. 3136—23
‘‘(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.
‘‘(C) Upon receipt of a report submitted under subparagraph
(A), each House shall provide copies of the report to the chairman
and ranking member of each standing committee with jurisdiction
under the rules of the House of Representatives or the Senate
to report a bill to amend the provision of law under which the
rule is issued.
‘‘(2)(A) The Comptroller General shall provide a report on each
major rule to the committees of jurisdiction in each House of the
Congress by the end of 15 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 on the latest of—
‘‘(A) the later of the date occurring 60 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, if
so published;
‘‘(B) if the Congress passes a joint resolution of disapproval
described in section 802 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 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).
‘‘(4) Except for a major rule, a rule shall take effect as otherwise
provided by law after submission to Congress under paragraph
(1).
‘‘(5) Notwithstanding paragraph (3), the effective date of a
rule shall not be delayed by operation of this chapter beyond the
date on which either House of Congress votes to reject a joint
resolution of disapproval under section 802.
‘‘(b)(1) A rule shall not take effect (or continue), if the Congress
enacts a joint resolution of disapproval, described under section
802, of the rule.
‘‘(2) A rule that does not take effect (or does not continue)
under paragraph (1) may not be reissued in substantially the same
form, and a new rule that is substantially the same as such a