[Congressional Record Volume 141, Number 22 (Friday, February 3, 1995)]
[Senate]
[Pages S2079-S2081]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
REGULATORY FLEXIBILITY AMENDMENTS ACT OF 1995
Mr. BOND. Mr. President, yesterday I introduced S. 350, the
Regulatory Flexibility Amendments Act of 1995, to provide for judicial
enforcement under the Reg Flex Act. This bill is vitally important to
America's small businesses who are suffering from the excessive burdens
of Federal Government regulations. In support of my bill, S. 350, I
have received letters from the U.S. Chamber of Commerce, the Small
Business Legislative Council, and the National Roofing Contractors
Association.
Mr. President, I ask unanimous consent that the letters and the bill,
S. 350, be printed in the Record.
[[Page S2080]] There being no objection, the material was ordered to
be printed in the Record, as follows:
S. 350
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 Flexibility
Amendments Act of 1995''.
SEC. 2. JUDICIAL REVIEW OF REGULATORY FLEXIBILITY ANALYSES.
(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 1 year 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 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 of this title 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 1-year 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) 1 year; 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 1-year 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 of this title 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 of this title if the court
determines, on the basis of the rulemaking record, that the
final regulatory flexibility analysis was prepared by the
agency without complying with 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 take effect on the date of enactment of this Act,
except that the judicial review authorized by section 611(a)
of title 5, United States Code (as added by subsection (a)),
shall apply only to final agency rules issued after the date
of enactment of this Act.
____
Chamber of Commerce
of the United States of America,
Washington, DC, February 2, 1995.
Hon. Christopher Bond,
Chairman, Senate Small Business Committee, Russell Senate
Office Building, Washington, DC.
Dear Mr. Chairman: The U.S. Chamber of Commerce Federation,
representing 215,000 businesses (96% of whom are small
businesses), 3,000 state and local chambers of commerce,
1,200 trade and professional associations, and 69 American
Chambers of Commerce abroad, is pleased to endorse your
legislation, the Regulatory Flexibility Amendment Act, which
would strengthen the Regulatory Flexibility Act (RFA) by
allowing judicial review of agency compliance.
The importance of judicial review cannot be overstated. The
original RFA was designed to provide the small business
community respite from the ever-growing hindrance of
excessive regulation by requiring federal agencies to
consider the impact of proposed regulations on small
entities. Its intent was to ensure that the least burdensome
approach for regulatory implementation was adopted. The lack
of judicial review, however, has meant that agencies do not
have to answer to any compelling authority. As a result,
agencies routinely give the RFA minimal attention, if any at
all.
Too often, small businesses have borne the brunt of the
cumulative impact of unreasonable and costly federal
mandates. Given their importance to our struggling economy,
we need to ensure not just their survival but their growth as
well. Judicial review as part of the RFA will place us closer
to that goal. That is why your legislation is so critical. It
could mean the difference between job creation and job lay-
offs.
We look forward to working with you and your colleagues in
ensuring passage of this badly needed legislation.
Sincerely,
R. Bruce Josten.
____
Small Business Legislative Council,
Washington, DC, February 2, 1995.
Hon. Christopher Bond,
Chairman, Committee on Small Business, Russell Senate Office
Building, Washington, DC.
Dear Mr. Chairman: On behalf of the Small Business
Legislative Council (SBLC) we wish to express our support for
your version of legislation to enact amendments to the
Regulatory Flexibility Act (RFA). As long-time supporters of
the RFA, we know from first-hand experience that agencies
have been able to ignore the law due to the lack of judicial
review. At the time of the enactment of the original RFA, we
thought it was a risk we could reluctantly accept in order
for us to overcome the then formidable resistance of the
bureaucracy to the entire law. Time has proven that the price
was too much to pay.
The original concept of the original law is still sound.
The goal is to have agencies undertake an analysis of
proposed rules to determine whether they have an adverse
impact on small business. If such a determination is made,
then the agency must explore alternatives to mitigate the
impact on small business.
In fact, for several years, we have said Congress should
apply the same standard when considering proposed
legislation, that is, analyze the impact on small business,
and consider alternatives. We are pleased that the Senate has
passed S. 1, the unfunded mandate reform bill. It goes a long
way towards establishing such a discipline.
The Small Business Legislative Council (SBLC) is a
permanent, independent coalition of nearly one hundred trade
and professional associations that share a common commitment
to the future of small business. Our members represent the
interests of small businesses in such diverse economic
sectors as manufacturing, retailing, distribution,
professional and technical services, construction,
transportation, tourism, and agriculture. Our policies are
developed through a consensus among our membership.
Individual associations may express their own views. For your
information, a list of our members is enclosed.
Sincerely,
John S. Satagaj,
President.
Attachment.
Members of the Small Business Legislative Council
Air Conditioning Contractors of America.
Alliance for Affordable Health Care.
Alliance of Independent Store Owners and Professionals.
American Animal Hospital Association.
American Association of Nurserymen.
American Bus Association.
American Consulting Engineers Council.
American Council of Independent Laboratories.
American Gear Manufacturers Association.
American Machine Tool Distributors Association.
American Road & Transportation Builders Association.
American Society of Travel Agents, Inc.
American Subcontractors Association.
American Textile Machinery Association.
American Trucking Associations, Inc.
American Warehouse Association.
American Wholesale Marketers Association.
AMT--The Association for Manufacturing Technology.
Architectural Precast Association.
Associated Builders & Contractors.
Associated Equipment Distributors.
Associated Landscape Contractors of America.
[[Page S2081]] Association of Small Business Development
Centers.
Automotive Service Association.
Automotive Recyclers Association.
Bowling Proprietors Association of America.
Building Service Contractors Association International.
Christian Booksellers Association.
Cincinnati Sign Supplies/Lamb and Co.
Council of Fleet Specialists.
Council of Growing Companies.
Direct Selling Association.
Electronics Representatives Association.
Florists' Transworld Delivery Association.
Health Industry Representatives Association.
Helicopter Association International.
Independent Bakers Association.
Independent Bankers Association of America.
Independent Medical Distributors Association.
International Association of Refrigerated Warehouses.
International Communications Industries Association.
International Formalwear Association.
International Television Association.
Machinery Dealers National Association.
Manufacturers Agents National Association.
Manufacturers Representatives of America, Inc.
Mechanical Contractors Association of America, Inc.
National Association for the Self-Employed.
National Association of Catalog Showroom Merchandisers.
National Association of Home Builders.
National Association of Investment Companies.
National Association of Plumbing-Heating-Cooling
Contractors.
National Association of Private Enterprise.
National Association of Realtors.
National Association of Retail Druggists.
National Association of RV Parks and Campgrounds.
National Association of Small Business Investment
Companies.
National Association of the Remodeling Industry.
National Association of Truck Stop Operators.
National Association of Women Business Owners.
National Chimney Sweep Guild.
National Association of Catalog Showroom Merchandisers.
National Coffee Service Association.
National Electrical Contractors Association.
National Electrical Manufacturers Representatives
Association.
National Food Brokers Association.
National Independent Flag Dealers Association.
National Knitwear Sportswear Association.
National Lumber & Building Material Dealers Association.
National Moving and Storage Association.
National Ornamental & Miscellaneous Metals Association.
National Paperbox Association.
National Shoe Retailers Association.
National Society of Public Accountants.
National Tire Dealers & Retreaders Association.
National Tooling and Machining Association.
National Tour Association.
National Venture Capital Association.
National Wood Flooring Association.
Opticians Association of America.
Organization for the Protection and Advancement of Small
Telephone Companies.
Passenger Vessel Association.
Petroleum Marketers Association of America.
Power Transmission Representatives Association.
Printing Industries of America, Inc.
Professional Lawn Care Association of America.
Promotional Products Association International.
Retail Bakers of America.
Small Business Council of America, Inc.
Small Business Exporters Association.
SMC/Pennsylvania Small Business.
Society of American Florists.
Turfgrass Producers International.
____
National Roofing
Contractors Association,
Washington, DC, February 2, 1995.
Hon. Christopher Bond,
Chairman, Committee on Small Business, U.S. Senate,
Washington, DC.
Dear Chairman Bond: NRCA recently testified before the
House Small Business Committee in support of strengthening
the Regulatory Flexibility Act of 1980 (Reg Flex). Judicial
review for Reg Flex is a priority for us, and we are pleased
that it's a key component of the new Republican congressional
majority's agenda for regulatory relief. We are also pleased
to inform you that NRCA strongly supports the Regulatory
Flexibility Amendments Act of 1995.
I am certain that I speak for the Regulatory Flexibility
Act Coalition, consisting of some 60 organizations
representing small business and small government entities,
when I state that we stand ready to assist your committee's
effort to amend Reg Flex to help control excessive government
regulation.
Please call if there's anything I can do.
Best wishes.
Sincerely,
Craig S. Brightup.
____________________