I
104TH CONGRESS
1ST SESSION
H. R. 937
To amend title 5, United States Code, to clarify procedures for judicial
review of Federal agency compliance with regulatory flexibility analysis
requirements, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
FEBRUARY 14, 1995
Mrs. MEYERS of Kansas introduced the following bill; which was referred to
the Committee on the Judiciary and, in addition, to the Committee on
Small Business, for a period to be subsequently determined by the Speak-
er, in each case for consideration of such provisions as fall within the ju-
risdiction of the committee concerned
A BILL
To amend title 5, United States Code, to clarify procedures
for judicial review of Federal agency compliance with
regulatory flexibility analysis requirements, and for other
purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. 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) of
this title, that such rule would not have a significant
economic impact on a substantial number of small
entities; or
‘‘(B) prepared a final regulatory flexibility anal-
ysis pursuant to section 604 of this title,
an affected small entity may petition for the judicial re-
view of such certification or analysis in accordance with
the terms of this subsection. A court having jurisdiction
to review such rule for compliance with the provisions of
section 553 or under any other provision of law shall have
jurisdiction 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
judicial 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) of this title, 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 reg-
ulation be commenced before the expiration of the
180 day period provided in paragraph (1), the num-
ber 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 ‘af-
fected small entity’ means a small entity that is or will
be adversely 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 certifi-
cation was arbitrary, 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 re-
by any other law if judicial review of such statement or
analysis is otherwise provided by law.’’.
(b) EFFECTIVE DATE.—The amendment made by
subsection (a) shall apply only to final agency rules issued
after the date of enactment of this Act.
SEC. 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 follow-
ing new subsection:
‘‘(d) ACTION BY 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 Coun-
sel for Advocacy of the Small Business Administra-
tion—
‘‘(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
initial regulatory flexibility analysis from an agency
under paragraph (1), the Chief Counsel for Advo-
cacy 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 Ad-
vocacy transmits to an agency a statement of effect
of 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 gen-
eral notice of proposed rulemaking for the rule.’’.
(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. 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 pur-
pose of reviewing a rule.
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