SEC. 201. SHORT TITLE.
This title may be cited as the "Small Business Regulatory Enforcement
Fairness Act of 1996".
SEC. 202. FINDINGS.
Congress finds that--
(1) a vibrant and growing small business sector is critical to creating jobs
in a dynamic economy;
(2) small businesses bear a disproportionate share of regulatory costs and
burdens;
(3) fundamental changes that are needed in the regulatory and enforcement
culture of Federal agencies to make agencies more responsive to small business
can be made without compromising the statutory missions of the agencies;
(4) three of the top recommendations of the 1995 White House Conference on
Small Business involve reforms to the way government regulations are developed
and enforced, and reductions in government paperwork requirements;
(5) the requirements of chapter 6 of title 5, United States Code, have too
often been ignored by government agencies, resulting in greater regulatory
burdens on small entities than necessitated by statute; and
(6) small entities should be given the opportunity to seek judicial review of
agency actions required by chapter 6 of title 5, United States Code.
SEC. 203. PURPOSES.
The purposes of this title are--
(1) to implement certain recommendations of the 1995 White House Conference
on Small Business regarding the development and enforcement of Federal
regulations;
(2) to provide for judicial review of chapter 6 of title 5, United States
Code;
(3) to encourage the effective participation of small businesses in the
Federal regulatory process;
(4) to simplify the language of Federal regulations affecting small
businesses;
(5) to develop more accessible sources of information on regulatory and
reporting requirements for small businesses;
(6) to create a more cooperative regulatory environment among agencies and
small businesses that is less punitive and more solution- oriented; and
(7) to make Federal regulators more accountable for their enforcement actions
by providing small entities with a meaningful opportunity for redress of
excessive enforcement activities.
Subtitle A--Regulatory Compliance Simplification
SEC. 211. DEFINITIONS.
For purposes of this subtitle--
(1) the terms "rule" and "small entity" have the same meanings as in section
601 of title 5, United States Code;
(2) the term "agency" has the same meaning as in section 551 of title 5,
United States Code; and
(3) the term "small entity compliance guide" means a document designated and
entitled as such by an agency.
SEC. 212. COMPLIANCE GUIDES.
(a) COMPLIANCE GUIDE.--
(1) IN GENERAL.--For each rule or group of related rules for
which an agency is required to prepare a final regulatory flexibility analysis
under section 605(b) of title 5, United States Code, the agency shall publish 1
or more guides to assist small entities in complying with the rule and shall
entitle such publications 'small entity compliance guides'.
(2) PUBLICATION OF GUIDES.--The publication of each guide
under this subsection shall include--
(A) the posting of the guide in an easily identified location
on the website of the agency; and
(B) distribution of the guide to known industry contacts,
such as small entities, associations, or industry leaders affected by the rule.
(3) PUBLICATION DATE.--An agency shall publish each guide
(including the posting and distribution of the guide as described under
paragraph (2))--
(A) on the same date as the date of publication of the
final rule (or as soon as possible after that date); and
(B) not later than the date on which the requirements of that
rule become effective.
(4) COMPLIANCE ACTIONS.--
(A) IN GENERAL.--Each guide shall explain the actions a
small entity is required to take to comply with a rule.
(B) EXPLANATION.--The explanation under subparagraph (A)--
(i) shall include a description of actions needed to meet
the requirements of a rule, to enable a small entity to know when such
requirements are met; and
(ii) if determined appropriate by the agency, may include
a description of possible procedures, such as conducting tests, that may
assist a small entity in meeting such requirements, except that, compliance
with any procedures described pursuant to this section does not establish
compliance with the rule, or establish a presumption or inference of such
compliance.
(C) PROCEDURES.--Procedures described under subparagraph
(B)(ii)--
(i) shall be suggestions to assist small entities; and
(ii) shall not be additional requirements, or diminish
requirements, relating to the rule.
(5) AGENCY PREPARATION OF GUIDES.--The agency shall, in its
sole discretion, taking into account the subject matter of the rule and the
language of relevant statutes, ensure that the guide is written using
sufficiently plain language likely to be understood by affected small entities.
Agencies may prepare separate guides covering groups or classes of similarly
affected small entities and may cooperate with associations of small entities to
develop and distribute such guides. An agency may prepare guides and apply this
section with respect to a rule or a group of related rules.
(6) REPORTING.--Not later than 1 year after the date of
enactment of the Fair Minimum Wage Act of 2007, and annually thereafter, the
head of each agency shall submit a report to the Committee on Small Business and
Entrepreneurship of the Senate, the Committee on Small Business of the House of
Representatives, and any other committee of relevant jurisdiction describing the
status of the agency's compliance with paragraphs (1) through (5).
(b) Comprehensive Source of Information.--Agencies shall cooperate to make
available to small entities through comprehensive sources of information, the
small entity compliance guides and all other available information on statutory
and regulatory requirements affecting small entities.
(c) Limitation on Judicial Review.--An agency's small entity compliance guide
shall not be subject to judicial review, except that in any civil or
administrative action against a small entity for a violation occurring after the
effective date of this section, the content of the small entity compliance guide
may be considered as evidence of the reasonableness or appropriateness of any
proposed fines, penalties or damages.
SEC. 213. INFORMAL SMALL ENTITY GUIDANCE.
(a) General.--Whenever appropriate in the interest of administering statutes
and regulations within the jurisdiction of an agency which regulates small
entities, it shall be the practice of the agency to answer inquiries by small
entities concerning information on, and advice about, compliance with such
statutes and regulations, interpreting and applying the law to specific sets of
facts supplied by the small entity. In any civil or administrative action
against a small entity, guidance given by an agency applying the law to facts
provided by the small entity may be considered as evidence of the reasonableness
or appropriateness of any proposed fines, penalties or damages sought against
such small entity.
(b) Program.--Each agency regulating the activities of small entities shall
establish a program for responding to such inquiries no later than 1 year after
enactment of this section, utilizing existing functions and personnel of the
agency to the extent practicable.
(c) Reporting.--Each agency regulating the activities of small business 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 the Judiciary
of the House of Representatives no later than 2 years after the date of the
enactment of this section on the scope of the agency's program, the number of
small entities using the program, and the achievements of the program to assist
small entity compliance with agency regulations.
SEC. 214. SERVICES OF SMALL BUSINESS DEVELOPMENT CENTERS.
(a) Section 21(c)(3) of the Small Business Act (15 U.S.C. 648(c)(3)) is
amended--
(1) in subparagraph (O), by striking "and" at the end;
(2) in subparagraph (P), by striking the period at the end and inserting a
semicolon; and
(3) by inserting after subparagraph (P) the following new subparagraphs:
"(Q) providing information to small business concerns regarding compliance
with regulatory requirements; and
"(R) developing informational publications, establishing resource centers of
reference materials, and distributing compliance guides published under section
312(a) of the Small Business Regulatory Enforcement Fairness Act of 1996.".
(b) Nothing in this Act in any way affects or limits the ability of other
technical assistance or extension programs to perform or continue to perform
services related to compliance assistance.
SEC. 215. COOPERATION ON GUIDANCE.
Agencies may, to the extent resources are available and where appropriate, in
cooperation with the States, develop guides that fully integrate requirements of
both Federal and State regulations where regulations within an agency's area of
interest at the Federal and State levels impact small entities. Where
regulations vary among the States, separate guides may be created for separate
States in cooperation with State agencies.
SEC. 216. 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 B--Regulatory Enforcement Reforms
SEC. 221. DEFINITIONS.
For purposes of this subtitle--
(1) the terms "rule" and "small entity" have the same meanings as in section
601 of title 5, United States Code;
(2) the term "agency" has the same meaning as in section 551 of title 5,
United States Code; and
(3) the term "small entity compliance guide" means a document designated as
such by an agency.
SEC. 222. SMALL BUSINESS AND AGRICULTURE ENFORCEMENT OMBUDSMAN.
The Small Business Act (15 U.S.C. 631 et seq.) is amended--
(1) by redesignating section 30 as section 31; and
(2) by inserting after section 29 the following new section:
SEC. 30. OVERSIGHT OF REGULATORY ENFORCEMENT.
"(a) Definitions.--For purposes of this section, the term--
"(1) 'Board' means a Regional Small Business Regulatory Fairness Board
established under subsection (c); and
"(2) 'Ombudsman' means the Small Business and Agriculture Regulatory
Enforcement Ombudsman designated under subsection (b).
"(b) SBA Enforcement Ombudsman.--
"(1) Not later than 180 days after the date of enactment of this section, the
Administrator shall designate a Small Business and Agriculture Regulatory
Enforcement Ombudsman, who shall report directly to the Administrator, utilizing
personnel of the Small Business Administration to the extent practicable. Other
agencies shall assist the Ombudsman and take actions as necessary to ensure
compliance with the requirements of this section. Nothing in this section is
intended to replace or diminish the activities of any Ombudsman or similar
office in any other agency.
"(2) The Ombudsman shall--
"(A) work with each agency with regulatory authority over small businesses to
ensure that small business concerns that receive or are subject to an audit,
on-site inspection, compliance assistance effort, or other enforcement related
communication or contact by agency personnel are provided with a means to
comment on the enforcement activity conducted by such personnel;
"(B) establish means to receive comments from small business concerns
regarding actions by agency employees conducting compliance or enforcement
activities with respect to the small business concern, means to refer comments
to the Inspector General of the affected agency in the appropriate
circumstances, and otherwise seek to maintain the identity of the person and
small business concern making such comments on a confidential basis to the same
extent as employee identities are protected under section 7 of the Inspector
General Act of 1978 (5 U.S.C. App.);
"(C) based on substantiated comments received from small business concerns
and the Boards, annually report to Congress and affected agencies evaluating the
enforcement 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 Business 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 subsection (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 recommendations of the chair and ranking minority member of the
Committees on Small Business of the House of Representatives and the Senate. Not
more than three of the Board members 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 departments 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.
"(4) Members of the Board shall serve without compensation, 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 performance 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 enactment of this section
to provide for the reduction, and under appropriate 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 assistance or audit program operated or
supported by the agency or a State;
(3) excluding small entities that have been subject to multiple enforcement
actions by the agency;
(4) excluding violations involving willful or criminal conduct;
(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 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 judgment, 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.".
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 following 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, soliciting, 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 'recordkeeping 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 promulgates a final interpretative rule
involving the internal revenue laws of the United States as described in section
603(a), the agency shall prepare a final regulatory flexibility analysis. Each
final regulatory 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 considered 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:
"Sec. 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 requirements 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 expiration 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 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 challenging 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 provisions 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 permitted 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
Representatives" 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".
SEC. 244. SMALL BUSINESS ADVOCACY REVIEW PANELS.
(a) Small Business Outreach and Interagency Coordination.-- 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 analysis 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 entities for the purpose of obtaining advice
and recommendations from those individuals about the potential impacts of the
proposed 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 proposed 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 representatives 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 proposed 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 Administrator 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 record a written finding, with reasons therefor,
that those requirements 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 provide 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 immediately 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.
Sec. 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, including 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 subparagraph (A), the
Federal agency promulgating the rule shall submit to the Comptroller General and
make available to each House of Congress--
"(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 General by
providing information relevant to the Comptroller General's report under
subparagraph (A).
"(3) A major rule relating to a report submitted under paragraph (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 President; 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 rule may not be issued, unless the reissued or
new rule is specifically authorized by a law enacted after the date of the joint
resolution disapproving the original rule.
"(c)(1) Notwithstanding any other provision of this section (except subject
to paragraph (3)), a rule that would not take effect by reason of subsection
(a)(3) may take effect, if the President makes a determination under paragraph
(2) and submits written notice of such determination to the Congress.
"(2) Paragraph (1) applies to a determination made by the President by
Executive order that the rule should take effect because such rule is--
"(A) necessary because of an imminent threat to health or safety or other
emergency;
"(B) necessary for the enforcement of criminal laws;
"(C) necessary for national security; or
"(D) issued pursuant to any statute implementing an international trade
agreement.
"(3) An exercise by the President of the authority under this subsection
shall have no effect on the procedures under section 802 or the effect of a
joint resolution of disapproval under this section.
"(d)(1) In addition to the opportunity for review otherwise provided under
this chapter, in the case of any rule for which a report was submitted in
accordance with subsection (a)(1)(A) during the period beginning on the date
occurring--
"(A) in the case of the Senate, 60 session days, or
"(B) in the case of the House of Representatives, 60 legislative days, before
the date the Congress adjourns a session of Congress through the date on which
the same or succeeding Congress first convenes its next session, section 802
shall apply to such rule in the succeeding session of Congress.
"(2)(A) In applying section 802 for purposes of such additional review, a
rule described under paragraph (1) shall be treated as though--
"(i) such rule were published in the Federal Register (as a rule that shall
take effect) on--
"(I) in the case of the Senate, the 15th session day, or
"(II) in the case of the House of Representatives, the 15th legislative day,
after the succeeding session of Congress first convenes; and
"(ii) a report on such rule were submitted to Congress under subsection
(a)(1) on such date.
"(B) Nothing in this paragraph shall be construed to affect the requirement
under subsection (a)(1) that a report shall be submitted to Congress before a
rule can take effect.
"(3) A rule described under paragraph (1) shall take effect as otherwise
provided by law (including other subsections of this section).
"(e)(1) For purposes of this subsection, section 802 shall also apply to any
major rule promulgated between March 1, 1996, and the date of the enactment of
this chapter.
"(2) In applying section 802 for purposes of Congressional review, a rule
described under paragraph (1) shall be treated as though--
"(A) such rule were published in the Federal Register on the date of
enactment of this chapter; and
"(B) a report on such rule were submitted to Congress under subsection (a)(1)
on such date.
"(3) The effectiveness of a rule described under paragraph (1) shall be as
otherwise provided by law, unless the rule is made of no force or effect under
section 802.
"(f) Any rule that takes effect and later is made of no force or effect by
enactment of a joint resolution under section 802 shall be treated as though
such rule had never taken effect.
"(g) If the Congress does not enact a joint resolution of disapproval under
section 802 respecting a rule, no court or agency may infer any intent of the
Congress from any action or inaction of the Congress with regard to such rule,
related statute, or joint resolution of disapproval.
Sec. 802. Congressional disapproval procedure
"(a) For purposes of this section, the term 'joint resolution' means only a
joint resolution introduced in the period beginning on the date on which the
report referred to in section 801(a)(1)(A) is received by Congress and ending 60
days thereafter (excluding days either House of Congress is adjourned for more
than 3 days during a session of Congress), the matter after the resolving clause
of which is as follows: 'That Congress disapproves the rule submitted by the __
relating to __, and such rule shall have no force or effect.' (The blank spaces
being appropriately filled in).
"(b)(1) A joint resolution described in subsection (a) shall be referred to
the committees in each House of Congress with jurisdiction.
"(2) For purposes of this section, the term 'submission or publication date'
means the later of the date on which--
"(A) the Congress receives the report submitted under section 801(a)(1); or
"(B) the rule is published in the Federal Register, if so published.
"(c) In the Senate, if the committee to which is referred a joint resolution
described in subsection (a) has not reported such joint resolution (or an
identical joint resolution) at the end of 20 calendar days after the submission
or publication date defined under subsection (b)(2), such committee may be
discharged from further consideration of such joint resolution upon a petition
supported in writing by 30 Members of the Senate, and such joint resolution
shall be placed on the calendar.
"(d)(1) In the Senate, when the committee to which a joint resolution is
referred has reported, or when a committee is discharged (under subsection (c))
from further consideration of a joint resolution described in subsection (a), it
is at any time thereafter in order (even though a previous motion to the same
effect has been disagreed to) for a motion to proceed to the consideration of
the joint resolution, and all points of order against the joint resolution (and
against consideration of the joint resolution) are waived. The motion is not
subject to amendment, or to a motion to postpone, or to a motion to proceed to
the consideration of other business. A motion to reconsider the vote by which
the motion is agreed to or disagreed to shall not be in order. If a motion to
proceed to the consideration of the joint resolution is agreed to, the joint
resolution shall remain the unfinished business of the Senate until disposed of.
"(2) In the Senate, debate on the joint resolution, and on all debatable
motions and appeals in connection therewith, shall be limited to not more than
10 hours, which shall be divided equally between those favoring and those
opposing the joint resolution. A motion further to limit debate is in order and
not debatable. An amendment to, or a motion to postpone, or a motion to proceed
to the consideration of other business, or a motion to recommit the joint
resolution is not in order.
"(3) In the Senate, immediately following the conclusion of the debate on a
joint resolution described in subsection (a), and a single quorum call at the
conclusion of the debate if requested in accordance with the rules of the
Senate, the vote on final passage of the joint resolution shall occur.
"(4) Appeals from the decisions of the Chair relating to the application of
the rules of the Senate to the procedure relating to a joint resolution
described in subsection (a) shall be decided without debate.
"(e) In the Senate the procedure specified in subsection (c) or (d) shall not
apply to the consideration of a joint resolution respecting a rule--
"(1) after the expiration of the 60 session days beginning with the
applicable submission or publication date, or
"(2) if the report under section 801(a)(1)(A) was submitted during the period
referred to in section 801(d)(1), after the expiration of the 60 session days
beginning on the 15th session day after the succeeding session of Congress first
convenes.
"(f) If, before the passage by one House of a joint resolution of that House
described in subsection (a), that House receives from the other House a joint
resolution described in subsection (a), then the following procedures shall
apply:
"(1) The joint resolution of the other House shall not be referred to a
committee.
"(2) With respect to a joint resolution described in subsection (a) of the
House receiving the joint resolution--
"(A) the procedure in that House shall be the same as if no joint resolution
had been received from the other House; but
"(B) the vote on final passage shall be on the joint resolution of the other
House.
"(g) This section is enacted by Congress--
"(1) as an exercise of the rulemaking power of the Senate and House of
Representatives, respectively, and as such it is deemed a part of the rules of
each House, respectively, but applicable only with respect to the procedure to
be followed in that House in the case of a joint resolution described in
subsection (a), and it supersedes other rules only to the extent that it is
inconsistent with such rules; and
"(2) with full recognition of the constitutional right of either House to
change the rules (so far as relating to the procedure of that House) at any
time, in the same manner, and to the same extent as in the case of any other
rule of that House.
"Sec. 803. Special rule on statutory, regulatory, and judicial deadlines
"(a) In the case of any deadline for, relating to, or involving any rule
which does not take effect (or the effectiveness of which is terminated) because
of enactment of a joint resolution under section 802, that deadline is extended
until the date 1 year after the date of enactment of the joint resolution.
Nothing in this subsection shall be construed to affect a deadline merely by
reason of the postponement of a rule's effective date under section 801(a).
"(b) The term 'deadline' means any date certain for fulfilling any obligation
or exercising any authority established by or under any Federal statute or
regulation, or by or under any court order implementing any Federal statute or
regulation.
Sec. 804. Definitions
"For purposes of this chapter--
"(1) The term 'Federal agency' means any agency as that term is defined in
section 551(1).
"(2) The term 'major rule' means any rule that the Administrator of the
Office of Information and Regulatory Affairs of the Office of Management and
Budget finds has resulted in or 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, employment, investment,
productivity, innovation, or on the ability of United States-based enterprises
to compete with foreign-based enterprises in domestic and export markets.
The term does not include any rule promulgated under the Telecommunications
Act of 1996 and the amendments made by that Act.
"(3) The term 'rule' has the meaning given such term in section 551, except
that such term does not include--
"(A) any rule of particular applicability, including a rule that approves or
prescribes for the future rates, wages, prices, services, or allowances
therefor, corporate or financial structures, reorganizations, mergers, or
acquisitions thereof, or accounting practices or disclosures bearing on any of
the foregoing;
"(B) any rule relating to agency management or personnel; or
"(C) any rule of agency organization, procedure, or practice that does not
substantially affect the rights or obligations of non-agency parties.
Sec. 805. Judicial review
"No determination, finding, action, or omission under this chapter shall be
subject to judicial review.
Sec. 806. Applicability; severability
"(a) This chapter shall apply notwithstanding any other provision of law.
"(b) If any provision of this chapter or the application of any provision of
this chapter to any person or circumstance, is held invalid, the application of
such provision to other persons or circumstances, and the remainder of this
chapter, shall not be affected thereby.
Sec. 807. Exemption for monetary policy
"Nothing in this chapter shall apply to rules that concern monetary policy
proposed or implemented by the Board of Governors of the Federal Reserve System
or the Federal Open Market Committee.
Sec. 808. Effective date of certain rules
"Notwithstanding section 801--
"(1) any rule that establishes, modifies, opens, closes, or conducts a
regulatory program for a commercial, recreational, or subsistence activity
related to hunting, fishing, or camping, or
"(2) any rule which an agency for good cause finds (and incorporates the
finding and a brief statement of reasons therefor in the rule issued) that
notice and public procedure thereon are impracticable, unnecessary, or contrary
to the public interest, shall take effect at such time as the Federal agency
promulgating the rule determines.".
SEC. 252. EFFECTIVE DATE.
The amendment made by section 351 shall take effect on the date of enactment
of this Act.
SEC. 253. TECHNICAL AMENDMENT.
The table of chapters for part I of title 5, United States Code, is amended
by inserting immediately after the item relating to chapter 7 the following:
"8. Congressional Review of Agency Rulemaking..................... 801".
Source: www.senate.gov
May 25, 2007