IB
Union Calendar No. 25
104TH CONGRESS
1ST SESSION
H. R. 926
[Report No. 104–48]
To promote regulatory flexibility and enhance public participation in Federal
agency rulemaking, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
FEBRUARY 14, 1995
Mr. GEKAS (for himself and Mr. HYDE) introduced the following bill; which
was referred to the Committee on the Judiciary
FEBRUARY 23, 1995
Reported with an amendment, committed to the Committee of the Whole
House on the State of the Union, and ordered to be printed
[Strike out all after the enacting clause and insert the part printed in italic]
[For text of introduced bill, see copy of bill as introduced on February 14, 1995]
A BILL
To promote regulatory flexibility and enhance public partici-
pation in Federal agency rulemaking, and for other pur-
poses.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Regulatory Reform and
Relief Act’’.
TITLE I—STRENGTHENING
REGULATORY FLEXIBILITY
SEC. 101. JUDICIAL REVIEW.
(a) AMENDMENT.—Section 611 of title 5, United
States Code, is amended to read as follows:
‘‘§ 611. Judicial review
‘‘(a)(1) Except as provided in paragraph (2), not later
than 180 days after the effective date of a final rule with
respect to which an agency—
‘‘(A) certified, pursuant to section 605(b), that
such rule would not have a significant economic im-
pact on a substantial number of small entities; or
‘‘(B) prepared a final regulatory flexibility anal-
ysis pursuant to section 604,
an affected small entity may petition for the judicial review
of such certification or analysis in accordance with the
terms of this subsection. A court having jurisdiction to re-
view such rule for compliance with the provisions of section
553 or under any other provision of law shall have jurisdic-
tion to review such certification or analysis.
‘‘(2)(A) Except as provided in subparagraph (B), in
the case where a provision of law requires that an action
challenging a final agency regulation be commenced before
the expiration of the 180 day period provided in paragraph
(1), such lesser period shall apply to a petition for the judi-
cial review under this subsection.
‘‘(B) In the case where an agency delays the issuance
of a final regulatory flexibility analysis pursuant to section
608(b), a petition for judicial review under this subsection
shall be filed not later than—
‘‘(i) 180 days; or
‘‘(ii) in the case where a provision of law re-
quires that an action challenging a final agency regu-
lation be commenced before the expiration of the 180-
day period provided in paragraph (1), the number of
days specified in such provision of law,
after the date the analysis is made available to the public.
‘‘(3) For purposes of this subsection, the term ‘affected
small entity’ means a small entity that is or will be ad-
versely affected by the final rule.
‘‘(4) Nothing in this subsection shall be construed to
affect the authority of any court to stay the effective date
of any rule or provision thereof under any other provision
of law.
‘‘(5)(A) In the case where the agency certified that such
rule would not have a significant economic impact on a
substantial number of small entities, the court may order
the agency to prepare a final regulatory flexibility analysis
pursuant to section 604 if the court determines, on the basis
of the rulemaking record, that the certification was arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law.
‘‘(B) In the case where the agency prepared a final
regulatory flexibility analysis, the court may order the
agency to take corrective action consistent with the require-
ments of section 604 if the court determines, on the basis
of the rulemaking record, that the final regulatory flexibil-
ity analysis was prepared by the agency without observance
of procedure required by section 604.
‘‘(6) If, by the end of the 90-day period beginning on
the date of the order of the court pursuant to paragraph
(5) (or such longer period as the court may provide), the
agency fails, as appropriate—
‘‘(A) to prepare the analysis required by section
604; or
‘‘(B) to take corrective action consistent with the
requirements of section 604,
the court may stay the rule or grant such other relief as
it deems appropriate.
‘‘(7) In making any determination or granting any
relief authorized 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)(5)) 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.
SEC. 102. 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 ADVO-
CACY.—
‘‘(1) TRANSMITTAL
OF
PROPOSED
RULES
AND
INITIAL REGULATORY 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 rulemaking 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 re-
quired for the proposed 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 ini-
tial regulatory flexibility 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 Advo-
cacy transmits 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 appropriate 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
institutions, any affiliate of such an institution, cred-
it unions, or government sponsored housing enter-
prises or to protect the Federal deposit insurance
funds shall not be subject to the requirements of this
subsection.’’.
(b) CONFORMING AMENDMENT.—Section 603(a) of
title 5, United States Code, is amended by inserting ‘‘in
accordance with section 612(d)’’ before the period at the end
of the last sentence.
SEC. 103. 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.
TITLE II—REGULATORY IMPACT
ANALYSES
SEC. 201. DEFINITIONS.
Section 551 of title 5, United States Code, is amended
by striking ‘‘and’’ at the end of paragraph (13), by striking
the period at the end of paragraph (14) and inserting a
semicolon, and by adding at the end the following:
‘‘(15) ‘major rule’ means any rule subject to sec-
tion 553(c) that is likely to result in—
‘‘(A) an annual effect on the economy of
$50,000,000 or more;
‘‘(B) a major increase in costs or prices for
consumers, individual industries, Federal, State,
or local government agencies, or geographic re-
gions, or
‘‘(C) significant adverse effects on competi-
tion, employment, investment, productivity, in-
novation, or on the ability of United States-
based enterprises to compete with foreign-based
enterprises in domestic and export markets; and
‘‘(16) ‘Director’ means the Director of the Office
of Management and Budget.’’.
SEC. 202. RULEMAKING NOTICES FOR MAJOR RULES.
Section 553 of title 5, United States Code, is amended
by adding at the end the following:
‘‘(f)(1) Each agency shall for a proposed major rule
publish in the Federal Register, at least 90 days before the
date of publication of the general notice required under sub-
section (b), a notice of intent to engage in rulemaking.
‘‘(2) A notice under paragraph (1) for a proposed
major rule shall include, to the extent possible, the informa-
tion required to be included in a regulatory impact analysis
for the rule under subsection (i)(4)(B) and (D).
‘‘(3) For a major rule proposed by an agency, the head
of the agency shall include in a general notice under sub-
section (b), a preliminary regulatory impact analysis for
the rule prepared in accordance with subsection (i).
‘‘(4) For a final major rule, the agency shall include
with the statement of basis and purpose—
‘‘(A) a final regulatory impact analysis of the
rule in accordance with subsection (i); and
‘‘(B) a clear delineation of all changes in the in-
formation included in the final regulatory impact
analysis under subsection (i) from any such informa-
tion that was included in the notice for the rule under
subsection (b).’’.
SEC. 203. HEARING REQUIREMENT FOR PROPOSED RULES;
AND EXTENSION OF COMMENT PERIOD.
(a) HEARING REQUIREMENT.—Section 553 of title 5,
United States Code, as amended by section 202, is further
amended by adding after subsection (f) the following:
‘‘(g) If more than 100 interested persons acting indi-
vidually submit requests for a hearing to an agency regard-
ing any rule proposed by the agency, the agency shall hold
such a hearing on the proposed rule.’’.
(b) EXTENSION OF COMMENT PERIOD.—Section 553
of title 5, United States Code, as amended by subsection
(a), is further amended by adding after subsection (g) the
following:
‘‘(h) If during the 90-day period beginning on the date
of publication of a notice under subsection (f) for a proposed
major rule, or if during the period beginning on the date
of publication or service of notice required by subsection
(b) for a proposed rule, more than 100 persons individually
contact the agency to request an extension of the period for
making submissions under subsection (c) pursuant to the
notice, the agency—
‘‘(1) shall provide an additional 30-day period
for making those submissions; and
‘‘(2) may not adopt the rule until after the addi-
tional period.’’.
(c) RESPONSE TO COMMENTS.—Section 553(c) of title
5, United States Code, is amended—
(1) by inserting ‘‘(1)’’ after ‘‘(c)’’; and
(2) by adding at the end the following:
‘‘(2) Each agency shall publish in the Federal Register,
with each rule published under section 552(a)(1)(D), re-
sponses to the substance of the comments received by the
agency regarding the rule.’’.
SEC. 204. REGULATORY IMPACT ANALYSIS.
Section 553 of title 5, United States Code, as amended
by section 203, is amended by adding after subsection (h)
the following:
‘‘(i)(1) Each agency shall, in connection with every
major rule, prepare, and, to the extent permitted by law,
consider, a regulatory impact analysis. Such analysis may
be combined with any regulatory flexibility analysis per-
formed under sections 603 and 604.
‘‘(2) Each agency shall initially determine whether a
rule it intends to propose or issue is a major rule. The Di-
rector shall have authority to order a rule to be treated as
a major rule and to require any set of related rules to be
considered together as a major rule.
‘‘(3) Except as provided in subsection (j), agencies
shall prepare—
‘‘(A) a preliminary regulatory impact analysis,
which shall be transmitted, along with a notice of
proposed rulemaking, to the Director at least 60 days
prior to the publication of notice of proposed rule-
making, and
‘‘(B) a final regulatory impact analysis, which
shall be transmitted along with the final rule at least
30 days prior to the publication of a major rule.
‘‘(4) Each preliminary and final regulatory impact
analysis shall contain the following information:
‘‘(A) A description of the potential benefits of the
rule, including any beneficial effects that cannot be
quantified in monetary terms and the identification
of those likely to receive the benefits.
‘‘(B) An explanation of the necessity, legal au-
thority, and reasonableness of the rule and a descrip-
tion of the condition that the rule is to address.
‘‘(C) A description of the potential costs of the
rule, including any adverse effects that cannot be
quantified in monetary terms, and the identification
of those likely to bear the costs.
‘‘(D) An analysis of alternative approaches, in-
cluding market based mechanisms, that could substan-
tially achieve the same regulatory goal at a lower cost
and an explanation of the reasons why such alter-
not take longer than 90 days after the date of the request
of the Director.
‘‘(6)(A) An agency may not adopt a major rule unless
the final regulatory impact analysis for the rule is approved
or commented upon in writing by the Director or by an
individual designated by the Director for that purpose.
‘‘(B) Upon receiving notice that the Director intends
to comment in writing with respect to any final regulatory
impact analysis or final rule, the agency shall refrain from
publishing its final regulatory impact analysis or final rule
until the agency has responded to the Director’s comments
and incorporated those comments in the agency’s response
in the rulemaking file. If the Director fails to make such
comments in writing with respect to any final regulatory
impact analysis or final rule within 90 days of the date
the Director gives such notice, the agency may publish such
final regulatory impact analysis or final rule.
‘‘(7) Notwithstanding section 551(16), for purposes of
this subsection with regard to any rule proposed or issued
by an appropriate 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 Admin-
istration, or the Office of Federal Housing Enterprise Over-
sight, the term ‘Director’ means the head of such agency,
Administration, or Office.’’.
SEC. 205. STANDARD OF CLARITY.
Section 553 of title 5, United States Code, as amended
in section 204, is amended by adding after subsection (i)
the following:
‘‘(j) To the extent practicable, the head of an agency
shall seek to ensure that any proposed major rule or regu-
latory impact analysis of such a rule is written in a reason-
ably simple and understandable manner and provides ade-
quate notice of the content of the rule to affected persons.’’.
SEC. 206. EXEMPTIONS.
Section 553 of title 5, United States Code, as amended
by section 205, is further amended by adding after sub-
section (j) the following:
‘‘(k)(1) The provisions of this section regarding major
rules shall not apply to—
‘‘(A) any regulation that responds to an emer-
gency situation if such regulation is reported to the
Director as soon as is practicable;
‘‘(B) any regulation for which consideration
under the procedures of this section would conflict
with deadlines imposed by statute or by judicial
order; and
‘‘(C) any regulation proposed or issued in con-
nection with the implementation of monetary policy
or to ensure the safety and soundness of federally in-
sured depository institutions, any affiliate of such in-
stitution, credit unions, or government sponsored
housing enterprises regulated by the Office of Federal
Housing Enterprise Oversight.
A regulation described in subparagraph (B) shall be re-
ported to the Director with a brief explanation of the con-
flict and the agency, in consultation with the Director,
shall, to the extent permitted by statutory or judicial dead-
lines, adhere to the process of this section.
‘‘(2) The Director may in accordance with the pur-
poses of this section exempt any class or category of regula-
tions from any or all requirements of this section.’’.
SEC. 207. REPORT.
The Director of the Office of Management and Budget
shall submit a report to the Congress no later than 24
months after the date of the enactment of this Act contain-
ing an analysis of rulemaking procedures of Federal agen-
cies and an analysis of the impact of those rulemaking pro-
cedures on the regulated public and regulatory process.
TITLE III—PROTECTIONS
SEC. 301. PRESIDENTIAL ACTION.
Pursuant to the authority of section 7301 of title 5,
United States Code, the President shall, within 180 days
of the date of the enactment of this title, prescribe regula-
tions for employees of the executive branch to ensure that
Federal laws and regulations shall be administered consist-
ent with the principle that any person shall, in connection
with the enforcement of such laws and regulations—
(1) be protected from abuse, reprisal, or retalia-
tion, and
(2) be treated fairly, equitably, and with due re-
gard for such person’s rights under the Constitution.
HR 926 RH——2