[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[H.R. 937 Introduced in House (IH)]







104th CONGRESS
  1st Session
                                H. R. 937

    To amend title 5, United States Code, to clarify procedures for 
     judicial review of Federal agency compliance with regulatory 
       flexibility analysis requirements, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           February 14, 1995

Mrs. Meyers of Kansas introduced the following bill; which was referred 
to the Committee on the Judiciary and, in addition, to the Committee on 
   Small Business, for a period to be subsequently determined by the 
  Speaker, in each case for consideration of such provisions as fall 
           within the jurisdiction of the committee concerned

_______________________________________________________________________

                                 A BILL


 
    To amend title 5, United States Code, to clarify procedures for 
     judicial review of Federal agency compliance with regulatory 
       flexibility analysis requirements, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. JUDICIAL REVIEW.

    (a) Amendment.--Section 611 of title 5, United States Code, is 
amended to read as follows:
``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) of this title, 
        that such rule would not have a significant economic impact on 
        a substantial number of small entities; or
            ``(B) prepared a final regulatory flexibility analysis 
        pursuant to section 604 of this title,
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) of this 
title, a petition for judicial review under this subsection shall be 
filed not later than--
            ``(i) 180 days; or
            ``(ii) in the case where a provision of law 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 of this title.
    ``(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 of 
        this title; or
            ``(B) to take corrective action consistent with the 
        requirements of section 604 of this title,
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. 2. RULES COMMENTED ON BY SBA CHIEF COUNSEL FOR ADVOCACY.

    (a) In General.--Section 612 of title 5, United States Code, is 
amended by adding at the end the following new subsection:
    ``(d) Action by 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 of a proposed rule 
        in accordance with paragraph (2), the agency shall publish the 
        statement, together with the response of the agency to the 
        statement, in the Federal Register at the time of publication 
        of general notice of proposed rulemaking for the rule.''.
    (b) Conforming Amendment.--Section 603(a) of title 5, United States 
Code, is amended by inserting ``in accordance with section 612(d)'' 
before the period at the end of the last sentence.

SEC. 3. SENSE OF CONGRESS REGARDING SBA CHIEF COUNSEL FOR ADVOCACY.

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