[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[H.R. 926 Reported in House (RH)]





                                                  Union Calendar No. 25

104th CONGRESS

  1st Session

                               H. R. 926

                          [Report No. 104-48]

_______________________________________________________________________

                                 A BILL

 To promote regulatory flexibility and enhance public participation in 
           Federal agency rulemaking, and for other purposes.

_______________________________________________________________________

                           February 23, 1995

  Reported with an amendment, committed to the Committee of the Whole 
       House on the State of the Union, and ordered to be printed





                                                  Union Calendar No. 25
104th CONGRESS
  1st Session
                                H. R. 926

                          [Report No. 104-48]

 To promote regulatory flexibility and enhance public participation in 
           Federal agency rulemaking, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           February 14, 1995

  Mr. Gekas (for himself and Mr. Hyde) introduced the following bill; 
          which was referred to the Committee on the Judiciary

                           February 23, 1995

  Reported with an amendment, committed to the Committee of the Whole 
       House on the State of the Union, and ordered to be printed
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]
    [For text of introduced bill, see copy of bill as introduced on 
                           February 14, 1995]

_______________________________________________________________________

                                 A BILL


 
 To promote regulatory flexibility and enhance public participation in 
           Federal agency rulemaking, 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. SHORT TITLE.

    This Act may be cited as the ``Regulatory Reform and Relief Act''.

             TITLE I--STRENGTHENING REGULATORY FLEXIBILITY

SEC. 101. JUDICIAL REVIEW.

    (a) Amendment.--Section 611 of title 5, United States Code, is 
amended to read as follows:
``Sec. 611. Judicial review
    ``(a)(1) Except as provided in paragraph (2), not later than 180 
days after the effective date of a final rule with respect to which an 
agency--
            ``(A) certified, pursuant to section 605(b), that such rule 
        would not have a significant economic impact on a substantial 
        number of small entities; or
            ``(B) prepared a final regulatory flexibility analysis 
        pursuant to section 604,
an affected small entity may petition for the judicial review of such 
certification or analysis in accordance with the terms of this 
subsection. A court having jurisdiction to review such rule for 
compliance with the provisions of section 553 or under any other 
provision of law shall have jurisdiction to review such certification 
or analysis.
    ``(2)(A) Except as provided in subparagraph (B), in the case where 
a provision of law requires that an action challenging a final agency 
regulation be commenced before the expiration of the 180 day period 
provided in paragraph (1), such lesser period shall apply to a petition 
for the judicial review under this subsection.
    ``(B) In the case where an agency delays the issuance of a final 
regulatory flexibility analysis pursuant to section 608(b), a petition 
for judicial review under this subsection shall be filed not later 
than--
            ``(i) 180 days; or
            ``(ii) in the case where a provision of law requires that 
        an action challenging a final agency regulation be commenced 
        before the expiration of the 180-day period provided in 
        paragraph (1), the number of days specified in such provision 
        of law,
after the date the analysis is made available to the public.
    ``(3) For purposes of this subsection, the term `affected small 
entity' means a small entity that is or will be adversely affected by 
the final rule.
    ``(4) Nothing in this subsection shall be construed to affect the 
authority of any court to stay the effective date of any rule or 
provision thereof under any other provision of law.
    ``(5)(A) In the case where the agency certified that such rule 
would not have a significant economic impact on a substantial number of 
small entities, the court may order the agency to prepare a final 
regulatory flexibility analysis pursuant to section 604 if the court 
determines, on the basis of the rulemaking record, that the 
certification was arbitrary, capricious, an abuse of discretion, or 
otherwise not in accordance with law.
    ``(B) In the case where the agency prepared a final regulatory 
flexibility analysis, the court may order the agency to take corrective 
action consistent with the requirements of section 604 if the court 
determines, on the basis of the rulemaking record, that the final 
regulatory flexibility analysis was prepared by the agency without 
observance of procedure required by section 604.
    ``(6) If, by the end of the 90-day period beginning on the date of 
the order of the court pursuant to paragraph (5) (or such longer period 
as the court may provide), the agency fails, as appropriate--
            ``(A) to prepare the analysis required by section 604; or
            ``(B) to take corrective action consistent with the 
        requirements of section 604,
the court may stay the rule or grant such other relief as it deems 
appropriate.
    ``(7) In making any determination or granting any relief authorized 
by this subsection, the court shall take due account of the rule of 
prejudicial error.
    ``(b) In an action for the judicial review of a rule, any 
regulatory flexibility analysis for such rule (including an analysis 
prepared or corrected pursuant to subsection (a)(5)) shall constitute 
part of the whole record of agency action in connection with such 
review.
    ``(c) Nothing in this section bars judicial review of any other 
impact statement or similar analysis required by any other law if 
judicial review of such statement or analysis is otherwise provided by 
law.''.
    (b) Effective Date.--The amendment made by subsection (a) shall 
apply only to final agency rules issued after the date of enactment of 
this Act.

SEC. 102. RULES COMMENTED ON BY SBA CHIEF COUNSEL FOR ADVOCACY.

    (a) In General.--Section 612 of title 5, United States Code, is 
amended by adding at the end the following new subsection:
    ``(d) Action by the SBA Chief Counsel for Advocacy.--
            ``(1) Transmittal of proposed rules and initial regulatory 
        flexibility analysis to sba chief counsel for advocacy.--On or 
        before the 30th day preceding the date of publication by an 
        agency of general notice of proposed rulemaking for a rule, the 
        agency shall transmit to the Chief Counsel for Advocacy of the 
        Small Business Administration--
                    ``(A) a copy of the proposed rule; and
                    ``(B)(i) a copy of the initial regulatory 
                flexibility analysis for the rule if required under 
                section 603; or
                    ``(ii) a determination by the agency that an 
                initial regulatory flexibility analysis is not required 
                for the proposed rule under section 603 and an 
                explanation for the determination.
            ``(2) Statement of effect.--On or before the 15th day 
        following receipt of a proposed rule and initial regulatory 
        flexibility analysis from an agency under paragraph (1), the 
        Chief Counsel for Advocacy may transmit to the agency a written 
        statement of the effect of the proposed rule on small entities.
            ``(3) Response.--If the Chief Counsel for Advocacy 
        transmits to an agency a statement of effect on a proposed rule 
        in accordance with paragraph (2), the agency shall publish the 
        statement, together with the response of the agency to the 
        statement, in the Federal Register at the time of publication 
        of general notice of proposed rulemaking for the rule.
            ``(4) Special rule.--Any proposed rules issued by an 
        appropriate Federal banking agency (as that term is defined in 
        section 3(q) of the Federal Deposit Insurance Act (12 U.S.C. 
        1813(q)), the National Credit Union Administration, or the 
        Office of Federal Housing Enterprise Oversight, in connection 
        with the implementation of monetary policy or to ensure the 
        safety and soundness of federally insured depository 
        institutions, any affiliate of such an institution, credit 
        unions, or government sponsored housing enterprises or to 
        protect the Federal deposit insurance funds shall not be 
        subject to the requirements of this subsection.''.
    (b) Conforming Amendment.--Section 603(a) of title 5, United States 
Code, is amended by inserting ``in accordance with section 612(d)'' 
before the period at the end of the last sentence.

SEC. 103. SENSE OF CONGRESS REGARDING SBA CHIEF COUNSEL FOR ADVOCACY.

    It is the sense of Congress that the Chief Counsel for Advocacy of 
the Small Business Administration should be permitted to appear as 
amicus curiae in any action or case brought in a court of the United 
States for the purpose of reviewing a rule.

                  TITLE II--REGULATORY IMPACT ANALYSES

SEC. 201. DEFINITIONS.

    Section 551 of title 5, United States Code, is amended by striking 
``and'' at the end of paragraph (13), by striking the period at the end 
of paragraph (14) and inserting a semicolon, and by adding at the end 
the following:
            ``(15) `major rule' means any rule subject to section 
        553(c) that is likely to result in--
                    ``(A) an annual effect on the economy of 
                $50,000,000 or more;
                    ``(B) a major increase in costs or prices for 
                consumers, individual industries, Federal, State, or 
                local government agencies, or geographic 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; and
            ``(16) `Director' means the Director of the Office of 
        Management and Budget.''.

SEC. 202. RULEMAKING NOTICES FOR MAJOR RULES.

    Section 553 of title 5, United States Code, is amended by adding at 
the end the following:
    ``(f)(1) Each agency shall for a proposed major rule publish in the 
Federal Register, at least 90 days before the date of publication of 
the general notice required under 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 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 
        subsection (i) from any such information that was included in 
        the notice for the rule under subsection (b).''.

SEC. 203. HEARING REQUIREMENT FOR PROPOSED RULES; AND EXTENSION OF 
              COMMENT PERIOD.

    (a) Hearing Requirement.--Section 553 of title 5, United States 
Code, as amended by section 202, is further amended by adding after 
subsection (f) the following:
    ``(g) If more than 100 interested persons acting individually 
submit requests for a hearing to an agency regarding any rule proposed 
by the agency, the agency shall hold such a hearing on the proposed 
rule.''.
    (b) Extension of Comment Period.--Section 553 of title 5, United 
States Code, as amended by subsection (a), is further amended by adding 
after subsection (g) the following:
    ``(h) If during the 90-day period beginning on the date of 
publication of a notice under subsection (f) for a proposed major rule, 
or if during the period beginning on the date of publication or service 
of notice required by subsection (b) for a proposed rule, more than 100 
persons individually contact the agency to request an extension of the 
period for making submissions under subsection (c) pursuant to the 
notice, the agency--
            ``(1) shall provide an additional 30-day period for making 
        those submissions; and
            ``(2) may not adopt the rule until after the additional 
        period.''.
    (c) Response to Comments.--Section 553(c) of title 5, United States 
Code, is amended--
            (1) by inserting ``(1)'' after ``(c)''; and
            (2) by adding at the end the following:
    ``(2) Each agency shall publish in the Federal Register, with each 
rule published under section 552(a)(1)(D), responses to the substance 
of the comments received by the agency regarding the rule.''.

SEC. 204. REGULATORY IMPACT ANALYSIS.

    Section 553 of title 5, United States Code, as amended by section 
203, is amended by adding after subsection (h) the following:
    ``(i)(1) Each agency shall, in connection with every major rule, 
prepare, and, to the extent permitted by law, consider, a regulatory 
impact analysis. Such analysis may be combined with any regulatory 
flexibility analysis 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 
prepare--
            ``(A) a preliminary regulatory impact analysis, which shall 
        be transmitted, along with a notice of proposed rulemaking, to 
        the Director at least 60 days prior to the publication of 
        notice of proposed 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, 
        including any adverse effects that cannot be quantified in 
        monetary terms, and the identification of those likely to bear 
        the costs.
            ``(D) An analysis of alternative approaches, including 
        market based mechanisms, 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.
            ``(G) An estimate of the costs to the agency for 
        implementation 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 comments 
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 comments in the agency's 
response in the rulemaking file. If the Director fails to make such 
comments in writing with respect to any final regulatory impact 
analysis or final rule within 90 days of the date the Director gives 
such notice, the agency may publish such final regulatory impact 
analysis or final rule.
    ``(7) Notwithstanding section 551(16), for purposes of this 
subsection with regard to any rule proposed or issued by an appropriate 
Federal banking agency (as that term is defined in section 3(q) of the 
Federal Deposit Insurance Act (12 U.S.C. 1813(q)), the National Credit 
Union Administration, or the Office of Federal Housing Enterprise 
Oversight, the term `Director' means the head of such agency, 
Administration, or Office.''.

SEC. 205. STANDARD OF CLARITY.

    Section 553 of title 5, United States Code, as amended in section 
204, is amended by adding after subsection (i) the following:
    ``(j) To the extent practicable, the head of an agency shall seek 
to ensure that any proposed major rule or regulatory impact analysis of 
such a rule is written in a reasonably simple and understandable manner 
and provides adequate notice of the content of the rule to affected 
persons.''.

SEC. 206. EXEMPTIONS.

    Section 553 of title 5, United States Code, as amended by section 
205, is further amended by adding after subsection (j) the following:
    ``(k)(1) The provisions of this section regarding major rules shall 
not apply to--
            ``(A) any regulation that responds to an emergency 
        situation if such regulation is reported to the Director as 
        soon as is practicable;
            ``(B) any regulation for which consideration under the 
        procedures of this section would conflict with deadlines 
        imposed by statute or by judicial order; and
            ``(C) any regulation proposed or issued in connection with 
        the implementation of monetary policy or to ensure the safety 
        and soundness of federally insured depository institutions, any 
        affiliate of such institution, credit unions, or government 
        sponsored housing enterprises regulated by the Office of 
        Federal Housing Enterprise Oversight.
A regulation described in subparagraph (B) shall be reported to the 
Director with a brief explanation of the conflict and the agency, in 
consultation with the Director, shall, to the extent permitted by 
statutory or judicial deadlines, adhere to the process of this section.
    ``(2) The Director may in accordance with the purposes of this 
section exempt any class or category of regulations from any or all 
requirements of this section.''.

SEC. 207. REPORT.

    The Director of the Office of Management and Budget shall submit a 
report to the Congress no later than 24 months after the date of the 
enactment of this Act containing an analysis of rulemaking procedures 
of Federal agencies and an analysis of the impact of those rulemaking 
procedures on the regulated public and regulatory process.

                         TITLE III--PROTECTIONS

SEC. 301. PRESIDENTIAL ACTION.

    Pursuant to the authority of section 7301 of title 5, United States 
Code, the President shall, within 180 days of the date of the enactment 
of this title, prescribe regulations for employees of the executive 
branch to ensure that Federal laws and regulations shall be 
administered consistent with the principle that any person shall, in 
connection with the enforcement of such laws and regulations--
            (1) be protected from abuse, reprisal, or retaliation, and
            (2) be treated fairly, equitably, and with due regard for 
        such person's rights under the Constitution.
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