H. R. 2586
One Hundred Fourth Congress
of the
United States of America
AT THE FIRST SESSION
Begun and held at the City of Washington on Wednesday,
the fourth day of January, one thousand nine hundred and ninety-five
An Act
To provide for a temporary increase in the public debt limit, and for other purposes.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. TEMPORARY INCREASE IN PUBLIC DEBT LIMIT.
Subsection (b) of section 3101 of title 31, United States Code,
is amended by adding at the end the following new sentence:
‘‘During the period after the date of the enactment of this sentence,
the preceding sentence shall be applied by substituting for the
dollar amount contained therein—
‘‘(1) ‘$4,967,000,000,000’ for the portion of such period
before December 13, 1995, and
‘‘(2) ‘$4,800,000,000,000’ after December 12, 1995.’’
SEC. 2. APPLICABILITY OF PUBLIC DEBT LIMIT TO FEDERAL TRUST
FUNDS AND OTHER FEDERAL ACCOUNTS.
(a) PROTECTION
OF FEDERAL FUNDS.—Notwithstanding any
other provision of law—
(1) no officer or employee of the United States may—
(A) delay the deposit of any amount into (or delay
the credit of any amount to) any Federal fund or otherwise
vary from the normal terms, procedures, or timing for
making such deposits or credits, or
(B) refrain from the investment in public debt obliga-
tions of amounts in any Federal fund,
if a purpose of such action or inaction is to not increase the
amount of outstanding public debt obligations, and
(2) no officer or employee of the United States may
disinvest amounts in any Federal fund which are invested
in public debt obligations if a purpose of the disinvestment
is to reduce the amount of outstanding public debt obligations.
(b) PROTECTION OF BENEFITS AND EXPENDITURES FOR ADMINIS-
TRATIVE EXPENSES.—
(1) IN GENERAL.—Notwithstanding subsection (a), during
any period for which cash benefits or administrative expenses
would not otherwise be payable from a covered benefits fund
by reason of an inability to issue further public debt obligations
because of the applicable public debt limit, public debt obliga-
tions held by such covered benefits fund shall be sold or
redeemed only for the purpose of making payment of such
benefits or administrative expenses and only to the extent
cash assets of the covered benefits fund are not available from
month to month for making payment of such benefits or
administrative expenses.
H. R. 2586—2
(2) ISSUANCE OF CORRESPONDING DEBT.—For purposes of
undertaking the sale or redemption of public debt obligations
held by a covered benefits fund pursuant to paragraph (1),
the Secretary of the Treasury may issue corresponding public
debt obligations to the public, in order to obtain the cash
necessary for payment of benefits or administrative expenses
from such covered benefits fund, notwithstanding the public
debt limit.
(3) ADVANCE NOTICE OF SALE OR REDEMPTION.—Not less
than 3 days prior to the date on which, by reason of the
public debt limit, the Secretary of the Treasury expects to
undertake a sale or redemption authorized under paragraph
(1), the Secretary of the Treasury shall report to each House
of the Congress and to the Comptroller General of the United
States regarding the expected sale or redemption. Upon receipt
of such report, the Comptroller General shall review the extent
of compliance with subsection (a) and paragraphs (1) and (2)
of this subsection and shall issue such findings and rec-
ommendations to each House of the Congress as the Comptrol-
ler General considers necessary and appropriate.
(c) PUBLIC DEBT OBLIGATION.—For purposes of this section,
the term ‘‘public debt obligation’’ means any obligation subject
to the public debt limit established under section 3101 of title
31, United States Code.
(d) FEDERAL FUND.—For purposes of this section, the term
‘‘Federal fund’’ means any Federal trust fund or Government
account established pursuant to Federal law to which the Secretary
of the Treasury has issued or is expressly authorized by law directly
to issue obligations under chapter 31 of title 31, United States
Code, in respect of public money, money otherwise required to
be deposited in the Treasury, or amounts appropriated.
(e) COVERED BENEFITS FUND.—For purposes of subsection (b),
the term ‘‘covered benefits fund’’ means any Federal fund from
which cash benefits are payable by law in the form of retirement
benefits, separation payments, life or disability insurance benefits,
or dependent’s or survivor’s benefits, including (but not limited
to) the following:
(1) the Federal Old-Age and Survivors Insurance Trust
Fund;
(2) the Federal Disability Insurance Trust Fund;
(3) the Civil Service Retirement and Disability Fund;
(4) the Government Securities Investment Fund;
(5) the Department of Defense Military Retirement Fund;
(6) the Unemployment Trust Fund;
(7) each of the railroad retirement funds and accounts;
(8) the Department of Defense Education Benefits Fund
and the Post-Vietnam Era Veterans Education Fund; and
(9) the Black Lung Disability Trust Fund.
SEC. 3. CONFORMING AMENDMENTS.
Subsections (j), (k), and (l) of section 8348 of title 5, United
States Code, and subsections (g) and (h) of section 8438 of such
title are hereby repealed.
SEC. 4. COMMITMENT TO A SEVEN–YEAR BALANCED BUDGET.
(a) With the enactment of this Act the President and the Congress
commit to enacting legislation in calendar year 1995 to achieve
H. R. 2586—3
a balanced budget, as scored by the non-partisan Congressional
Budget Office, not later than the fiscal year 2002.
(b) The Congress affirms that it will not enact legislation provid-
ing for a further increase in the permanent statutory limit on
the public debt unless the President signs into law the balanced
budget legislation referred to in subsection (a).
SEC. 5. MEDICARE COVERAGE OF CERTAIN ANTI-CANCER DRUG
TREATMENTS.
(a) COVERAGE
OF
CERTAIN
SELF-ADMINISTERED
ANTICANCER
DRUGS.—Section 1861(s)(2)(Q) of the Social Security Act (42 U.S.C.
1395x(s)(2)(Q)) is amended—
(1) by striking ‘‘(Q)’’ and inserting ‘‘(Q)(i)’’; and
(2) by striking the semicolon at the end and inserting ‘‘,
and’’; and
(3) by adding at the end the following:
‘‘(ii) an oral drug (which is approved by the Federal Food and
Drug Administration) prescribed for use as an anticancer
nonsteroidal antiestrogen for the treatment of breast cancer or
nonsteroidal antiandrogen agent for the treatment of prostate can-
cer;’’.
(b) UNIFORM COVERAGE
OF ANTICANCER DRUGS
IN ALL SET-
TINGS.—Section 1861(t)(2)(A) of such Act (42 U.S.C. 1395x(t)(2)(A))
is amended by adding (including a nonsteroidal antiestrogen or
nonsteroidal antiandrogen regimen)’’ after ‘‘regimen’’.
(c) CONFORMING AMENDMENT.—Section 1834(j)(5)(F)(iv) of such
Act (42 U.S.C. 1395m(j)(5)(F)(iv)) is amended by striking ‘‘prescribed
for use’’ and all that follows through ‘‘1861(s)(2)(Q))’’ and inserting
‘‘described in section 1861(s)(2)(Q))’’.
(d) EFFECTIVE DATE.—The amendments made by this section
shall apply to drugs furnished on or after the date of the enactment
of this section.
TITLE I—HABEAS CORPUS REFORM
SEC. 101. FILING DEADLINES.
Section 2244 of title 28, United States Code, is amended by
adding at the end the following new subsection:
‘‘(d)(1) A 1-year period of limitation shall apply to an application
for a write of habeas corpus by a person in custody pursuant
to the judgment of a State court. The limitation period shall run
from the latest of—
‘‘(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
‘‘(B) the date on which the impediment to filing an applica-
tion created by State action in violation of the Constitution
or laws of the United States is removed, if the applicant was
prevented from filing by such State action;
‘‘(C) the date on which the constitutional right asserted
was initially recognized by the Supreme Court, if the right
has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
‘‘(D) the date on which the factual predicate of the claim
or claims presented could have been discovered through the
exercise of due diligence.
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‘‘(2) The time during which a properly filed application for
State post-conviction or other collateral review with respect to the
pertinent judgment or claim shall not be counted toward any period
of limitation under this subsection.’’.
SEC. 102. APPEAL.
Section 2253 of title 28, United States Code, is amended to
read as follows:
‘‘§ 2253. Appeal
‘‘(a) In a habeas corpus proceeding or a proceeding under section
2255 before a district judge, the final order shall be subject to
review, on appeal, by the court of appeals for the circuit in which
the proceeding is held.
‘‘(b) There shall be no right of appeal from a final order in
a proceeding to test the validity of a warrant to remove to another
district or place for commitment or trial a person charged with
a criminal offense against the United States, or to test the validity
of such person’s detention pending removal proceedings.
‘‘(c)(1) Unless a circuit justice or judge issues a certificate
of appealability, an appeal may not be taken to the court of appeals
from—
‘‘(A) the final order in a habeas corpus proceeding in which
the detention complained of arises out of process issued by
a State court; or
‘‘(B) the final order in a proceeding under section 2255.
‘‘(2) A certificate of appealability may issue under paragraph
(1) only if the applicant has made a substantial showing of the
denial of a constitutional right.
‘‘(3) The certificate of appealability under paragraph (1) shall
indicate which specific issue or issues satisfy the showing required
by paragraph (2).’’.
SEC. 103. AMENDMENT OF FEDERAL RULES OF APPELLATE PROCE-
DURE.
Rule 22 of the Federal Rules of Appellate Procedure is amended
to read as follows:
‘‘Rule 22. Habeas corpus and section 2255 proceedings
‘‘(a) APPLICATION FOR THE ORIGINAL WRIT.—An application for
a writ of habeas corpus shall be made to the appropriate district
court. If application is made to a circuit judge, the application
shall be transferred to the appropriate district court. If an applica-
tion is made to or transferred to the district court and denied,
renewal of the application before a circuit judge shall not be per-
mitted. The applicant may, pursuant to section 2253 of title 28,
United States Code, appeal to the appropriate court of appeals
from the order of the district court denying the writ.
‘‘(b) CERTIFICATE
OF
APPEALABILITY.—In a habeas corpus
proceeding in which the detention complained of arises out of proc-
ess issued by a State court, an appeal by the applicant for the
writ may not proceed unless a district or a circuit judge issues
a certificate of appealability pursuant to section 2253(c) of title
28, United States Code. If an appeal is taken by the applicant,
the district judge who rendered the judgment shall either issue
a certificate of appealability or state the reasons why such a certifi-
cate should not issue. The certificate or the statement shall be
forwarded to the court of appeals with the notice of appeal and
H. R. 2586—5
the file of the proceedings in the district court. If the district
judge has denied the certificate, the applicant for the writ may
then request issuance of the certificate by a circuit judge. If such
a request is addressed to the court of appeals, it shall be deemed
addressed to the judges thereof and shall be considered by a circuit
judge or judges as the court deems appropriate. If no express
request for a certificate is filed, the notice of appeal shall be deemed
to constitute a request addressed to the judges of the court of
appeals. If an appeal is taken by a State or its representative,
a certificate of appealability is not required.’’.
SEC. 104. SECTION 2254 AMENDMENTS.
Section 2254 of title 28, United States Code, is amended—
(1) by amending subsection (b) to read as follows:
‘‘(b)(1) An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a State court
shall not be granted unless it appears that—
‘‘(A) the applicant has exhausted the remedies available
in the courts of the State; or
‘‘(B)(i) there is an absence of available State corrective
process; or
‘‘(ii) circumstances exist that render such process ineffective
to protect the rights of the applicant.
‘‘(2) An application for a writ of habeas corpus may be denied
on the merits, notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the State.
‘‘(3) A State shall not be deemed to have waived the exhaustion
requirement or be estopped from reliance upon the requirement
unless the State, through counsel, expressly waives the require-
ment.’’;
(2) by redesignating subsections (d), (e), and (f) as sub-
sections (e), (f), and (g), respectively;
(3) by inserting after subsection (c) the following new sub-
section:
‘‘(d) An application for a writ of habeas corpus on behalf of
a person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was adjudicated
on the merits in State court proceedings unless the adjudication
of the claim—
‘‘(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States;
or
‘‘(2) resulted in a decision that was based on an unreason-
able determination of the facts in light of the evidence presented
in the State court proceeding.’’;
(4) by amending subsection (e), as redesignated by para-
graph (2), to read as follows:
‘‘(e)(1) In a proceeding instituted by an application for a writ
of habeas corpus by a person in custody pursuant to the judgment
of a State court, a determination of a factual issue made by a
State court shall be presumed to be correct. The applicant shall
have the burden of rebutting the presumption of correctness by
clear and convincing evidence.
‘‘(2) If the applicant has failed to develop the factual basis
of a claim in State court proceedings, the court shall not hold
H. R. 2586—6
an evidentiary hearing on the claim unless the applicant shows
that—
‘‘(A) the claim relies on—
‘‘(i) a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court, that
was previously unavailable; or
‘‘(ii) a factual predicate that could not have been pre-
viously discovered through the exercise of due diligence;
and
‘‘(B) the facts underlying the claim would be sufficient
to establish by clear and convincing evidence that but for con-
stitutional error, no reasonable factfinder would have found
the applicant guilty of the underlying offense.’’; and
(5) by adding at the end the following new subsections:
‘‘(h) Except as provided in title 21, United States Code, section
848, in all proceedings brought under this section, and any subse-
quent proceedings on review, the court may appoint counsel for
an applicant who is or becomes financially unable to afford counsel,
except as provided by a rule promulgated by the Supreme Court
pursuant to statutory authority. Appointment of counsel under this
section shall be governed by section 3006A of title 18.
‘‘(i) The ineffectiveness or incompetence of counsel during Fed-
eral or State collateral post-conviction proceedings shall not be
a ground for relief in a proceeding arising under section 2254.’’.
SEC. 105. SECTION 2255 AMENDMENTS.
Section 2255 of title 28, United States Code, is amended—
(1) by striking the second and fifth undesignated para-
graphs; and
(2) by adding at the end the following new undesignated
paragraphs:
‘‘A 1-year period of limitation shall apply to a motion under
this section. The limitation period shall run from the latest of—
‘‘(1) the date on which the judgment of conviction becomes
final;
‘‘(2) the date on which the impediment to making a motion
created by governmental action in violation of the Constitution
or laws of the United States is removed, if the movant was
prevented from making a motion by such governmental action;
‘‘(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
‘‘(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the exer-
cise of due diligence.
‘‘Except as provided in title 21, United States Code, section
848, in all proceedings brought under this section, and any subse-
quent proceedings on review, the court may appoint counsel for
a movant who is or becomes financially unable to afford counsel
shall be in the discretion of the court, except as provided by a
rule promulgated by the Supreme Court pursuant to statutory
authority. Appointment of counsel under this section shall be gov-
erned by section 3006A of title 18.
‘‘A second or successive motion must be certified as provided
in section 2244 by a panel of the appropriate court of appeals
to contain—
H. R. 2586—7
‘‘(1) newly discovered evidence that, if proven and viewed
in light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that no reasonable
factfinder would have found the movant guilty of the offense;
or
‘‘(2) a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court, that was
previously unavailable.’’.
SEC. 106. LIMITS ON SECOND OR SUCCESSIVE APPLICATIONS.
(a) CONFORMING AMENDMENT
TO SECTION 2244(a).—Section
2244(a) of title 28, United States Code, is amended by striking
‘‘and the petition’’ and all that follows through ‘‘by such inquiry.’’
and inserting ‘‘, except as provided in section 2255.’’.
(b) LIMITS ON SECOND OR SUCCESSIVE APPLICATIONS.—Section
2244(b) of title 28, United States Code, is amended to read as
follows:
‘‘(b)(1) A claim presented in a second or successive habeas
corpus application under section 2254 that was presented in a
prior application shall be dismissed.
‘‘(2) A claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in a prior
application shall be dismissed unless—
‘‘(A) the applicant shows that the claim relies on a new
rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable;
or
‘‘(B)(i) the factual predicate for the claim could not have
been discovered previously through the exercise of due dili-
gence; and
‘‘(ii) the facts underlying the claim, if proven and viewed
in light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that, but for constitu-
tional error, no reasonable factfinder would have found the
applicant guilty of the underlying offense.
‘‘(3)(A) Before a second or successive application permitted by
this section is filed in the district court, the applicant shall move
in the appropriate court of appeals for an order authorizing the
district court to consider the application.
‘‘(B) A motion in the court of appeals for an order authorizing
the district court to consider a second or successive application
shall be determined by a three-judge panel of the court of appeals.
‘‘(C) The court of appeals may authorize the filing of a second
or successive application only if it determines that the application
makes a prima facie showing that the application satisfies the
requirements of this subsection.
‘‘(D) The court of appeals shall grant or deny the authorization
to file a second or successive application not later than 30 days
after the filing of the motion.
‘‘(E) The grant or denial of an authorization by a court of
appeals to file a second or successive application shall not be appeal-
able and shall not be the subject of a petition for rehearing or
for a writ of certiorari.
‘‘(4) A district court shall dismiss any claim presented in a
second or successive application that the court of appeals has
authorized to be filed unless the applicant shows that the claim
satisfies the requirements of this section.’’.
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SEC. 107. DEATH PENALTY LITIGATION PROCEDURES.
(a) ADDITION OF CHAPTER TO TITLE 28, UNITED STATES CODE.—
Title 28, United States Code, is amended by inserting after chapter
153 the following new chapter:
‘‘CHAPTER 154—SPECIAL HABEAS CORPUS
PROCEDURES IN CAPITAL CASES
‘‘Sec.
‘‘2261. Prisoners in State custody subject to capital sentence; appointment of coun-
sel; requirement of rule of court or statute; procedures for appointment.
‘‘2262. Mandatory stay of execution; duration; limits on stays of execution; succes-
sive petitions.
‘‘2263. Filing of habeas corpus application; time requirements; tolling rules.
‘‘2264. Scope of Federal review; district court adjudications.
‘‘2265. Application to State unitary review procedure.
‘‘2266. Limitation periods for determining applications and motions.
‘‘§ 2261. Prisoners in State custody subject to capital sen-
tence; appointment of counsel; requirement of
rule of court or statute; procedures for appoint-
ment
‘‘(a) This chapter shall apply to cases arising under section
2254 brought by prisoners in State custody who are subject to
a capital sentence. It shall apply only if the provisions of subsections
(b) and (c) are satisfied.
‘‘(b) This chapter is applicable if a State establishes by statute,
rule of its court of last resort, or by another agency authorized
by State law, a mechanism for the appointment, compensation,
and payment of reasonable litigation expenses of competent counsel
in State post-conviction proceedings brought by indigent prisoners
whose capital convictions and sentences have been upheld on direct
appeal to the court of last resort in the State or have otherwise
become final for State law purposes. The rule of court or statute
must provide standards of competency for the appointment of such
counsel.
‘‘(c) Any mechanism for the appointment, compensation, and
reimbursement of counsel as provided in subsection (b) must offer
counsel to all State prisoners under capital sentence and must
provide for the entry of an order by a court of record—
‘‘(1) appointing one or more counsels to represent the pris-
oner upon a finding that the prisoner is indigent and accepted
the offer or is unable competently to decide whether to accept
or reject the offer;
‘‘(2) finding, after a hearing if necessary, that the prisoner
rejected the offer of counsel and made the decision with an
understanding of its legal consequences; or
‘‘(3) denying the appointment of counsel upon a finding
that the prisoner is not indigent.
‘‘(d) No counsel appointed pursuant to subsections (b) and (c)
to represent a State prisoner under capital sentence shall have
previously represented the prisoner at trial or on direct appeal
in the case for which the appointment is made unless the prisoner
and counsel expressly request continued representation.
‘‘(e) The ineffectiveness or incompetence of counsel during State
or Federal post-conviction proceedings in a capital case shall not
be a ground for relief in a proceeding arising under section 2254.
This limitation shall not preclude the appointment of different
counsel, on the court’s own motion or at the request of the prisoner,
H. R. 2586—9
at any phase of State or Federal post-conviction proceedings on
the basis of the ineffectiveness or incompetence of counsel in such
proceedings.
‘‘§ 2262. Mandatory stay of execution; duration; limits on
stays of execution; successive petitions
‘‘(a) Upon the entry in the appropriate State court of record
of an order under section 2261(c), a warrant or order setting an
execution date for a State prisoner shall be stayed upon application
to any court that would have jurisdiction over any proceedings
filed under section 2254. The application shall recite that the State
has invoked the post-conviction review procedures of this chapter
and that the scheduled execution is subject to stay.
‘‘(b) A stay of execution granted pursuant to subsection (a)
shall expire if—
‘‘(1) a State prisoner fails to file a habeas corpus application
under section 2254 within the time required in section 2263;
‘‘(2) before a court of competent jurisdiction, in the presence
of counsel, unless the prisoner has competently and knowingly
waived such counsel, and after having been advised of the
consequences, a State prisoner under capital sentence waives
the right to pursue habeas corpus review under section 2254;
or
‘‘(3) a State prisoner files a habeas corpus petition under
section 2254 within the time required by section 2263 and
fails to make a substantial showing of the denial of a Federal
right or is denied relief in the district court or at any subsequent
stage of review.
‘‘(c) If one of the conditions in subsection (b) has occurred,
no Federal court thereafter shall have the authority to enter a
stay of execution in the case, unless the court of appeals approves
the filing of a second or successive application under section 2244(b).
‘‘§ 2263. Filing of habeas corpus application; time require-
ments; tolling rules
‘‘(a) Any application under this chapter for habeas corpus relief
under section 2254 must be filed in the appropriate district court
not later than 180 days after final State court affirmance of the
conviction and sentence on direct review or the expiration of the
time for seeking such review.
‘‘(b) The time requirements established by subsection (a) shall
be tolled—
‘‘(1) from the date that a petition for certiorari is filed
in the Supreme Court until the date of final disposition of
the petition if a State prisoner files the petition to secure
review by the Supreme Court of the affirmance of a capital
sentence on direct review by the court of last resort of the
State or other final State court decision on direct review;
‘‘(2) from the date on which the first petition for post-
conviction review or other collateral relief is filed until the
final State court disposition of such petition; and
‘‘(3) during an additional period not to exceed 30 days,
if—
‘‘(A) a motion for an extension of time is filed in the
Federal district court that would have jurisdiction over
the case upon the filing of a habeas corpus application
under section 2254; and
H. R. 2586—10
‘‘(B) a showing of good cause is made for the failure
to file the habeas corpus application within the time period
established by this section.
‘‘§ 2264. Scope of Federal review; district court adjudications
‘‘(a) Whenever a State prisoner under capital sentence files
a petition for habeas corpus relief to which this chapter applies,
the district court shall only consider a claim or claims that have
been raised and decided on the merits in the State courts, unless
the failure to raise the claim properly is—
‘‘(1) the result of State action in violation of the Constitu-
tion or laws of the United States;
‘‘(2) the result of the Supreme Court recognition of a new
Federal right that is made retroactively applicable; or
‘‘(3) based on a factual predicate that could not have been
discovered through the exercise of due diligence in time to
present the claim for State or Federal post-conviction review.
‘‘(b) Following review subject to subsections (a), (d), and (e)
of section 2254, the court shall rule on the claims properly before
it.
‘‘§ 2265. Application to State unitary review procedure
‘‘(a) For purposes of this section, a ‘unitary review’ procedure
means a State procedure that authorizes a person under sentence
of death to raise, in the course of direct review of the judgment,
such claims as could be raised on collateral attack. This chapter
shall apply, as provided in this section, in relation to a State
unitary review procedure if the State establishes by rule of its
court of last resort or by statute a mechanism for the appointment,
compensation, and payment of reasonable litigation expenses of
competent counsel in the unitary review proceedings, including
expenses relating to the litigation of collateral claims in the proceed-
ings. The rule of court or statute must provide standards of com-
petency for the appointment of such counsel.
‘‘(b) To qualify under this section, a unitary review procedure
must include an offer of counsel following trial for the purpose
of representation on unitary review, and entry of an order, as
provided in section 2261(c), concerning appointment of counsel or
waiver or denial of appointment of counsel for that purpose. No
counsel appointed to represent the prisoner in the unitary review
proceedings shall have previously represented the prisoner at trial
in the case for which the appointment is made unless the prisoner
and counsel expressly request continued representation.
‘‘(c) Sections 2262, 2263, 2264, and 2266 shall apply in relation
to cases involving a sentence of death from any State having a
unitary review procedure that qualifies under this section. Ref-
erences to State ‘post-conviction review’ and ‘direct review’ in such
sections shall be understood as referring to unitary review under
the State procedure. The reference in section 2262(a) to ‘an order
under section 2261(c)’ shall be understood as referring to the post-
trial order under subsection (b) concerning representation in the
unitary review proceedings, but if a transcript of the trial proceed-
ings is unavailable at the time of the filing of such an order
in the appropriate State court, then the start of the 180-day limita-
tion period under section 2263 shall be deferred until a transcript
is made available to the prisoner or counsel of the prisoner.
H. R. 2586—11
‘‘§ 2266. Limitation periods for determining applications and
motions
‘‘(a) The adjudication of any application under section 2254
that is subject to this chapter, and the adjudication of any motion
under section 2255 by a person under sentence of death, shall
be given priority by the district court and by the court of appeals
over all noncapital matters.
‘‘(b)(1)(A) A district court shall render a final determination
and enter a final judgment on any application for a writ of habeas
corpus brought under this chapter in a capital case not later than
180 days after the date on which the application is filed.
‘‘(B) A district court shall afford the parties at least 120 days
in which to complete all actions, including the preparation of all
pleadings and briefs, and if necessary, a hearing, prior to the
submission of the case for decision.
‘‘(C)(i) A district court may delay for not more than one addi-
tional 30-day period beyond the period specified in subparagraph
(A), the rendering of a determination of an application for a writ
of habeas corpus if the court issues a written order making a
finding, and stating the reasons for the finding, that the ends
of justice that would be served by allowing the delay outweigh
the best interests of the public and the applicant in a speedy
disposition of the application.
‘‘(ii) The factors, among others, that a court shall consider
in determining whether a delay in the disposition of an application
is warranted are as follows:
‘‘(I) Whether the failure to allow the delay would be likely
to result in a miscarriage of justice.
‘‘(II) Whether the case is so unusual or so complex, due
to the number of defendants, the nature of the prosecution,
or the existence of novel questions of fact or law, that it is
unreasonable to expect adequate briefing within the time
limitations established by subparagraph (A).
‘‘(III) Whether the failure to allow a delay in a case, that,
taken as a whole, is not so unusual or so complex as described
in subclause (II), but would otherwise deny the applicant
reasonable time to obtain counsel, would unreasonably deny
the applicant or the government continuity of counsel, or would
deny counsel for the applicant or the government the reasonable
time necessary for effective preparation, taking into account
the exercise of due diligence.
‘‘(iii) No delay in disposition shall be permissible because of
general congestion of the court’s calendar.
‘‘(iv) The court shall transmit a copy of any order issued under
clause (i) to the Director of the Administrative Office of the United
States Courts for inclusion in the report under paragraph (5).
‘‘(2) The time limitations under paragraph (1) shall apply to—
‘‘(A) an initial application for a writ of habeas corpus;
‘‘(B) any second or successive application for a writ of
habeas corpus; and
‘‘(C) any redetermination of an application for a writ of
habeas corpus following a remand by the court of appeals
or the Supreme Court for further proceedings, in which case
the limitation period shall run from the date the remand is
ordered.
‘‘(3)(A) The time limitations under this section shall not be
construed to entitle an applicant to a stay of execution, to which
H. R. 2586—12
the applicant would otherwise not be entitled, for the purpose
of litigating any application or appeal.
‘‘(B) No amendment to an application for a writ of habeas
corpus under this chapter shall be permitted after the filing of
the answer to the application, except on the grounds specified
in section 2244(b).
‘‘(4)(A) The failure of a court to meet or comply with a time
limitation under this section shall not be a ground for granting
relief from a judgment of conviction or sentence.
‘‘(B) The State may enforce a time limitation under this section
by petitioning for a writ of mandamus to the court of appeals.
The court of appeals shall act on the petition for a writ of mandamus
not later than 30 days after the filing of the petition.
‘‘(5)(A) The Administrative Office of United States Courts shall
submit to Congress an annual report on the compliance by the
district courts with the time limitations under this section.
‘‘(B) The report described in subparagraph (A) shall include
copies of the orders submitted by the district courts under para-
graph (1)(B)(iv).
‘‘(c)(1)(A) A court of appeals shall hear and render a final
determination of any appeal of an order granting or denying, in
whole or in part, an application brought under this chapter in
a capital case not later than 120 days after the date on which
the reply brief is filed, or if no reply brief is filed, not later than
120 days after the date on which the answering brief is filed.
‘‘(B)(i) A court of appeals shall decide whether to grant a
petition for rehearing or other request for rehearing en banc not
later than 30 days after the date on which the petition for rehearing
is filed unless a responsive pleading is required, in which case
the court shall decide whether to grant the petition not later than
30 days after the date on which the responsive pleading is filed.
‘‘(ii) If a petition for rehearing or rehearing en banc is granted,
the court of appeals shall hear and render a final determination
of the appeal not later than 120 days after the date on which
the order granting rehearing or rehearing en banc is entered.
‘‘(2) The time limitations under paragraph (1) shall apply to—
‘‘(A) an initial application for a writ of habeas corpus;
‘‘(B) any second or successive application for a writ of
habeas corpus; and
‘‘(C) any redetermination of an application for a writ of
habeas corpus or related appeal following a remand by the
court of appeals en banc or the Supreme Court for further
proceedings, in which case the limitation period shall run from
the date the remand is ordered.
‘‘(3) The time limitations under this section shall not be con-
strued to entitle an applicant to a stay of execution, to which
the applicant would otherwise not be entitled, for the purpose
of litigating any application or appeal.
‘‘(4)(A) The failure of a court to meet or comply with a time
limitation under this section shall not be a ground for granting
relief from a judgment of conviction or sentence.
‘‘(B) The State may enforce a time limitation under this section
by applying for a writ of mandamus to the Supreme Court.
‘‘(5) The Administrative Office of United States Courts shall
submit to Congress an annual report on the compliance by the
courts of appeals with the time limitations under this section.’’.
H. R. 2586—13
(b) TECHNICAL AMENDMENT.—The part analysis for part IV
of title 28, United States Code, is amended by adding after the
item relating to chapter 153 the following new item:
‘‘154.
Special
habeas
corpus
procedures
in
capital cases ..........2261.’’.
(c) EFFECTIVE DATE.—Chapter 154 of title 28, United States
Code (as added by subsection (a)), shall apply to cases pending
on or after the date of enactment of this Act.
SEC. 108. TECHNICAL AMENDMENT.
Section 408(q) of the Controlled Substances Act (21 U.S.C.
848(q)) is amended by amending paragraph (9) to read as follows:
‘‘(9) Upon a finding that investigative, expert, or other services
are reasonably necessary for the representation of the defendant,
whether in connection with issues relating to guilt or the sentence,
the court may authorize the defendant’s attorneys to obtain such
services on behalf of the defendant and, if so authorized, shall
order the payment of fees and expenses therefor under paragraph
(10). No ex parte proceeding, communication, or request may be
considered pursuant to this section unless a proper showing is
made concerning the need for confidentiality. Any such proceeding,
communication, or request shall be transcribed and made a part
of the record available for appellate review.’’.
SEC. 109. SEVERABILITY.
If any provision of this title, an amendment made by this
title, or the application of such provision or amendment to any
person or circumstance is held to be unconstitutional, the remainder
of this title, the amendments made by this title, and the application
of the provisions of such to any person or circumstances shall
not be affected thereby.
TITLE II—REGULATORY REFORM
SEC. 2001. SHORT TITLE.
This title may be cited as the ‘‘Comprehensive Regulatory
Reform Act of 1995’’.
SEC. 2002. ANALYSIS OF AGENCY RULES.
(a) IN GENERAL.—(1) 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 section 553(c)
that is likely to result in—
‘‘(A) an annual effect on the economy of $100,000,000
or more;
‘‘(B) a major increase in costs or prices for consumers,
individual industries, Federal, State, or local government
agencies, or geographic regions, or
‘‘(C) significant adverse effects on competition, employ-
ment, investment, productivity, innovation, or on the ability
of United States-based enterprises to compete with foreign-
based enterprises in domestic and export markets;
‘‘(16) ‘Director’ means the Director of the Office of Manage-
ment and Budget;
H. R. 2586—14
‘‘(17) ‘cost’ means the reasonably identifiable significant
adverse effects, quantifiable and nonquantifiable, including
social, environmental, health, and economic effects that are
expected to result directly or indirectly from implementation
of a rule or other agency action;
‘‘(18) ‘cost-benefit analysis’ means an evaluation of the costs
and benefits of a rule, quantified to the extent feasible and
appropriate and otherwise qualitatively described, that is pre-
pared in accordance with the requirements of this subchapter
at the level of detail appropriate and practicable for reasoned
decision making on the matter involved, taking into consider-
ation the significance and complexity of the decision and any
need for expedition; and
‘‘(19) ‘reasonable alternatives’ means the range of reason-
able regulatory options that the agency has authority to con-
sider under the statute granting rulemaking authority, includ-
ing flexible regulatory options, unless precluded by the statute
granting the rulemaking authority.’’.
(2) 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 publica-
tion of the general notice required under subsection (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 information 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 subsection (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 summary of a final regulatory impact analysis of
the rule in accordance with subsection (i); and
‘‘(B) a clear delineation of all changes in the information
included in the final regulatory impact analysis under sub-
section (i) from any such information that was included in
the notice for the rule under subsection (b).
The agency shall provide the complete text of a final regulatory
impact analysis upon request.
‘‘(5) The issuance of a notice of intent to engage in rulemaking
under paragraph (1) and the issuance of a preliminary regulatory
impact analysis under paragraph (3) shall not be considered final
agency action for purposes of section 704.
‘‘(6) In a rulemaking involving a major rule, the agency conduct-
ing the rulemaking shall make a written record describing the
subject of all contacts the agency made with persons outside the
agency relating to such rulemaking. If the contact was made with
a non-governmental person, the written record of such contact shall
be made available, upon request to the public.’’.
(3)(A) HEARING REQUIREMENT.—Section 553 of title 5, United
States Code, is further amended by adding after subsection (f)
the following:
‘‘(g) If more than 100 interested persons acting individually
submit requests for a hearing to an agency regarding any major
H. R. 2586—15
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, 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 major
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 additional
period.’’.
(C) RESPONSE TO COMMENTS.—Section 553(c) of title 5, United
States Code, is amended—
(i) by inserting ‘‘(1)’’ after ‘‘(c)’’; and
(ii) 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), responses to the
substance of the comments received by the agency regarding the
rule.’’.
(4) Section 553 of title 5, United States Code, is further
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 regu-
latory flexibility analysis performed 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 Director 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 pre-
pare—
‘‘(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 rulemaking, 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 authority, and
reasonableness of the rule and a description of the condition
that the rule is to address.
‘‘(C) A description of the potential costs of the rule, includ-
ing any adverse effects that cannot be quantified in monetary
terms, and the identification of those likely to bear the costs.
H. R. 2586—16
‘‘(D) An analysis of alternative approaches, including mar-
ket based mechanisms or other flexible regulatory options that
could substantially achieve the same regulatory goal at a lower
cost and an explanation of the reasons why such alternative
approaches were not adopted, together with a demonstration
that the rule provides for the least costly approach.
‘‘(E) A statement that the rule does not conflict with, or
duplicate, any other rule or a statement of the reasons why
such a conflict or duplication exists.
‘‘(F) A statement of whether the rule will require on-site
inspections or whether persons will be required by the rule
to maintain any records which will be subject to inspection,
and a statement of whether the rule will require persons to
obtain licenses, permits, or other certifications, including speci-
fication of any associated fees or fines.
‘‘(G) An estimate of the costs to the agency for implementa-
tion and enforcement of the rule and of whether the agency
can be reasonably expected to implement the rule with the
current level of appropriations.
‘‘(5)(A) The Director is authorized to review and prepare com-
ments on any preliminary or final regulatory impact analysis, notice
of proposed rulemaking, or final rule based on the requirements
of this subsection.
‘‘(B) Upon the request of the Director, an agency shall consult
with the Director concerning the review of a preliminary impact
analysis or notice of proposed rulemaking and shall refrain from
publishing its preliminary regulatory impact analysis or notice of
proposed rulemaking until such review is concluded. The Director’s
review may 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 com-
ments in the agency’s response in the rulemaking file.
‘‘(7)(A) Except as provided in subparagraph (B), no final major
rule subject to this section shall be promulgated unless the agency
head publishes in the Federal Register a finding that—
‘‘(i) the benefits of the rule justify the costs of the rule;
and
‘‘(ii) the rule employs to the extent practicable flexible
alternatives as set forth in paragraph (4)(D) and adopts the
reasonable alternative which has the greater net benefits and
achieves the objectives of the statute.
‘‘(B) If, applying the statutory requirements upon which the
rule is based, a rule cannot satisfy the criteria of subparagraph
(A), the agency head may promulgate the rule if the agency head
finds that—
‘‘(i) the rule employs to the extent practicable flexible
reasonable alternatives of the type described in paragraph
(4)(D); and