[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.
     

                          ____________________