[Congressional Record Volume 142, Number 36 (Friday, March 15, 1996)]
[Senate]
[Pages S2198-S2203]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         ADDITIONAL COSPONSORS


                                 S. 942

  At the request of Mr. Thompson, his name was added as a cosponsor of 
S. 942, a bill to promote increased understanding of Federal 
regulations and increased voluntary compliance with such regulations by 
small entities, to provide for the designation of regional ombudsmen 
and oversight boards to monitor the enforcement practices of certain 
Federal agencies with respect to small business concerns, to provide 
relief from excessive and arbitrary regulatory enforcement actions 
against small entities, and for other purposes.
  At the request of Mr. Murkowski, his name was added as a cosponsor of 
S. 942, supra.


                                S. 1610

  At the request of Mr. Bond, the name of the Senator from Indiana [Mr. 
Lugar] was added as a cosponsor of S. 1610, a bill to amend the 
Internal Revenue Code of 1986 to clarify the standards used for 
determining whether individuals are not employees.


                    Senate Concurrent Resolution 43

  At the request of Mr. Thomas, the names of the Senator from 
Connecticut [Mr. Lieberman], the Senator from Delaware [Mr. Roth], the 
Senator from Oklahoma [Mr. Nickles], and the Senator from Utah [Mr. 
Hatch] were added as cosponsors of Senate Concurrent Resolution 43, a 
concurrent resolution expressing the sense of the Congress regarding 
proposed missile tests by the People's Republic of China.


                         Senate Resolution 215

  At the request of Mr. Lautenberg, the name of the Senator from Idaho 
[Mr. Craig] was added as a cosponsor of Senate Resolution 215, a 
resolution to designate June 19, 1996, as ``National Baseball Day.''


                         Senate Resolution 226

  At the request of Mr. Domenici, the names of the Senator from 
Washington [Mrs. Murray], the Senator from North Dakota [Mr. Conrad], 
and the Senator from West Virginia [Mr. Byrd] were added as cosponsors 
of Senate Resolution 226, a resolution to proclaim the week of October 
13 through October 19, 1996, as ``National Character Counts Week.''


                           Amendment No. 3526

  At the request of Mr. Thurmond the name of the Senator from Ohio [Mr. 
Glenn] was added as a cosponsor of amendment No. 3526 proposed to H.R. 
3019, a bill making appropriations for fiscal year 1996 to make a 
further downpayment toward a balanced budget, and for other purposes.

[[Page S2199]]



                          AMENDMENTS SUBMITTED

                                 ______


           THE SMALL BUSINESS REGULATORY FAIRNESS ACT OF 1996

                                 ______


                  BOND (AND OTHERS) AMENDMENT NO. 3534

  Mr. BOND (for himself, Mr. Bumpers, Mr. Baucus, Mr. Feingold, Mr. 
Murkowski, Ms. Moseley-Braun, and Mr. Thompson) proposed an amendment 
to the bill (S. 942) to promote increased understanding of Federal 
regulations and increased voluntary compliance with such regulations by 
small entities, to provide for the designation of regional ombudsmen 
and oversight boards to monitor the enforcement practices of certain 
Federal agencies with respect to small business concerns, to provide 
relief from excessive and arbitrary regulatory enforcement actions 
against small entities, and for other purposes; as follows:

       Strike all after the enacting clause and insert the 
     following:

     SEC. 1. SHORT TITLE.

       This Act may be cited as the ``Small Business Regulatory 
     Enforcement Fairness Act of 1996''.

     SEC. 2. 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 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 the Regulatory Flexibility Act 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 the Regulatory 
     Flexibility Act.

     SEC. 3. PURPOSES.

       The purposes of this act 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 the Regulatory 
     Flexibility Act;
       (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.

     SEC. 4. EFFECTIVE DATE.

       This Act shall become effective on the date 90 days after 
     enactment, except that the amendments made by title four of 
     this Act shall not apply to interpretive rules for which a 
     notice of proposed rulemaking was published prior to the date 
     of enactment.

             TITLE I--REGULATORY COMPLIANCE SIMPLIFICATION

     SEC. 101. DEFINITIONS.

       For purposes of this Act--
       (1) the terms ``rule'' and ``small entity'' have the same 
     meanings as in section 601 of title 5, United States Code; 
     and
       (2) the term ``agency'' has the same meaning as in section 
     551 of title 5, United States Code.
       (3) the term ``small entity compliance guide'' means a 
     document designated as such by an agency.

     SEC. 102. COMPLIANCE GUIDES.

       (a) Compliance Guide.--For each rule or group of related 
     rules for which an agency is required to prepare a final 
     regulatory flexibility analysis under section 604 of title 5, 
     United States Code, the agency shall publish one or more 
     guides to assist small entities in complying with the rule, 
     and shall designate such publications as ``small entity 
     compliance guides.'' The guides shall explain the actions a 
     small entity is required to take to comply with a rule or 
     group of rules. 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 association 
     of small entities to develop and distribute such guides.
       (b) Comprehensive Source of Information.--Agencies shall 
     cooperate to make available to small entities through 
     comprehensive sources if information, the small entity 
     compliance guides and all other available information on 
     statutory and regulatory requirement affecting small 
     entities.
       (c) Limitation on Judicial review.--Any 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 small entity 
     compliance guide may be considered as evidence of the 
     reasonableness or appropriateness of any proposed fines, 
     penalties or damages.

     SEC. 103. INFORMAL SMALL ENTITY GUIDANCE.

       (a) General.--Whenever appropriate in the interest of 
     administering statutes and regulations within the 
     jurisdiction of an agency, 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.

     SEC. 104. SERVICES OF SMALL BUSINESS DEVELOPMENT CENTERS.

       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 assistance to small business concerns 
     regarding regulatory requirements, including providing 
     training with respect to cost-effective regulatory 
     compliance;
       ``(R) developing informational publications, establishing 
     resource centers of reference materials, and distributing 
     compliance guides published under section 102(a) of the Small 
     Business Regulatory Enforcement Fairness Act of 1996 to small 
     business concerns; and
       ``(S) developing programs to provide confidential onsite 
     assessments and recommendations regarding regulatory 
     compliance to small business concerns and assisting small 
     business concerns in analyzing the business development 
     issues associated with regulatory implementation and 
     compliance measures.''.

     SEC. 105. MANUFACTURING TECHNOLOGY CENTERS AND PROGRAMS 
                   ESTABLISHED UNDER SECTION 507 OF THE CLEAN AIR 
                   ACT AMENDMENT OF 1990.

       (a) General.--The Manufacturing Technology Centers and 
     other similar extension centers administered by the National 
     Institute of Standards and Technology of the Department of 
     Commerce shall, as appropriate, provide the assistance 
     regarding regulatory requirements, develop and distribute 
     information and guides and develop the programs to provide 
     confidential onsite assessments and recommendations regarding 
     regulatory compliance to the same extent as provided for in 
     Section 104 of this Act with respect to Small Business 
     Development Centers.
       (b) Section 507 Programs.--Nothing in the Act in any way 
     limits the authority and operation of the small business 
     stationary source technical and environmental compliance 
     assistance programs established under section 507 of the 
     Clean Air Act Amendments of 1990.

     SEC. 106. 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 
     businesses. Where regulations vary among the states, separate 
     guides may be created for separate states in cooperation with 
     state agencies.

                TITLE II--REGULATORY ENFORCEMENT REFORMS

     SEC. 201. 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) Definition.--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 Administration shall designate a Small 
     Business and

[[Page S2200]]

     Agriculture Regulatory Enforcement Ombudsman 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 
     Administration and to the heads of affected agencies; and
       ``(E) provide the affected agency with an opportunity to 
     comment on draft reports prepared under paragraph (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 Administration 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 appointed by 
     the Administration, who are owners or operators of small 
     entities, 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.
       ``(4) Members of the Board shall serve for terms of three 
     years or less.
       ``(5) The Administration shall select a chair from among 
     the members of the Board who shall serve for not more than 2 
     years 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. 202. 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 
     by the small entity through participation 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 Congress no later 
     than 2 years from the effective date 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.

           TITLE III--EQUAL ACCESS TO JUSTICE ACT AMENDMENTS

     SEC. 301. ADMINISTRATIVE PROCEEDINGS.

       Section 504 of title 5, United States Code, is amended--
       (1) in subsection (b), by striking ``$75'' in subparagraph 
     (b)(1) and inserting ``$125''; and
       (2) in subsection (a) by adding the following new 
     paragraph:
       ``(4) In an adversary adjudication brought by an agency, an 
     adjudicative officer of the agency shall award attorneys fees 
     and other expenses to a party or a small entity, as defined 
     in Section 601, if the decision of the adjudicative officer 
     is disproportionately less favorable to the agency than an 
     express demand by the agency, unless the party or small 
     entity has committed a willful violation of law or otherwise 
     acted in bad faith, or special circumstances make an award of 
     attorneys fees unjust. For purposes of this paragraph, an 
     ``express demand'' shall not include a recitation by the 
     agency of the maximum statutory penalty (A) in the 
     administrative complaint, or (B) elsewhere when 
     accompanied by an express demand for a lesser amount. Fees 
     and expenses awarded under this paragraph may not be paid 
     from the claims and judgments account of the Treasury from 
     funds appropriated pursuant to section 1304 of title 
     31.''.

     SEC. 302. JUDICIAL PROCEEDINGS.

       Section 2412 of title 28, United States Code, is amended--
       (1) in paragraph (d), by striking ``$75'' in subparagraph 
     (2)(A) and inserting ``$125''; and
       (2) in paragraph (d)(1) by adding the following new 
     subparagraph:
       ``(D) In a civil action brought by the United States, a 
     court shall award attorneys fees and other expenses to a 
     party or a small entity, as defined in Section 601 of title 5 
     United States Code, if the judgment finally obtained by the 
     United States is disproportionately less favorable to the 
     United States than an express demand by the United States, 
     unless the party or small entity has committed a willful 
     violation of law or otherwise acted in bad faith, or special 
     circumstances make an award of attorneys fees unjust. For 
     purposes of this subparagraph, an ``express demand'' 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. Fees and expenses awarded 
     under this subparagraph may not be paid from the claims and 
     judgments account of the Treasury from funds appropriated 
     pursuant to section 1304 of title 31.''.

            TITLE IV--REGULATORY FLEXIBILITY ACT AMENDMENTS

     SEC. 401. REGULATORY FLEXIBILITY ANALYSES.

       (a) Initial Regulatory Flexibility Analysis.--Section 
     603(a) of title 5, United States Code, is amended--
       (1) by inserting after ``proposed rule'', the phrase ``, or 
     publishes a notice of proposed rulemaking for an interpretive 
     rule involving the internal revenue laws of the United 
     States''; and
       (2) by inserting at the end of the subsection, the 
     following new sentence:
       ``In the case of an interpretive rule involving the 
     internal revenue laws of the United States, this chapter 
     applies to interpretive rules published in the Federal 
     Register for codification in the Code of Federal Regulations, 
     but only to the extent that such interpretive rules impose on 
     small entities a collection of information requirement, as 
     defined in the Paperwork Reduction Act of 1995.''.
       (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 is otherwise required to publish an initial 
     regulatory flexibility analysis, 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;

[[Page S2201]]

       ``(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, record 
     keeping 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 
     of small business 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. 402. JUDICIAL REVIEW.

       Section 611 to 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 this chapter, except the 
     requirements of sections 602, 603, 609 and 612.
       ``(2) Each court having jurisdiction to review such rule 
     for compliance with section 553 of this title or under any 
     other provision of law shall have jurisdiction to review any 
     claims of noncompliance with this chapter, except the 
     requirements of sections 602, 603, 609 and 612.
       ``(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 a petition 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, a petition 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 one 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) If the court determines, on the basis of the 
     rulemaking record, that the final agency action under this 
     chapter was arbitrary, capricious, an abuse of discretion or 
     otherwise not in accordance with the law, the court shall 
     order the agency to take corrective action consistent with 
     this chapter, which may include--
       ``(A) remanding the rule to the agency, and
       ``(B) deferring the enforcement of the rule against small 
     entities, unless the court finds good cause for continuing 
     the enforcement of the rule pending the completion of the 
     corrective action.
       ``(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) Except as otherwise required by this chapter, the 
     court shall apply the same standards of judicial review that 
     govern the review of agency findings under the statute 
     granting the agency authority to conduct a rule making.
       ``(d) Compliance or noncompliance by an agency with the 
     provisions of this chapter shall be subject to judicial 
     review only in accordance with this section.
       ``(e) 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. 403. 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 and legal reasons 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. 404. 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 new subsection:
       ``(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 the 
     small entity representatives 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) Prior to publication of a final regulatory 
     flexibility analysis that a covered agency is required by 
     this chapter to conduct--
       ``(1) an agency shall reconvene the review panel 
     established under paragraph (b)(3), or if no initial 
     regulatory flexibility analysis was published, undertake the 
     actions described in paragraphs (b) (1) through (3);
       ``(2) the panel shall review any material the agency has 
     prepared in connection with this chapter, including any draft 
     rule, collect the advice and recommendations of the small 
     entity representatives identified by the agency after 
     consultation with the Chief Counsel, on issues related to 
     subsection 604(a), paragraphs (3), (4) and (5);
       ``(3) not later than 15 days after the date a covered 
     agency convenes a review panel pursuant to paragraph (1), the 
     review panel shall report on the comments of the small entity 
     representatives and its findings as to issues related to 
     subsections 604(a), paragraphs (3), (4) and (5), provided 
     that such report shall be made public as part of the 
     rulemaking record; and
       ``(4) where appropriate, the agency shall modify the final 
     rule, the final regulatory flexibility analysis or the 
     decision on whether a final regulatory flexibility analysis 
     is required.
       ``(d) An agency may in its discretion apply subsections (b) 
     and (c) 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.
       ``(e) For purposes of this section, the term covered agency 
     means the Environmental Protection Agency and the 
     Occupational Health and Safety Administration of the 
     Department of Labor.
       ``(f) the Chief Counsel for Advocacy, in consultation with 
     the individuals identified in paragraph (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 paragraphs (b)(3), (b)(4), and (b)(5), 
     and subsection (c) 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:

[[Page S2202]]

       ``(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; or in developing a final rule, the extent to 
     which the covered agency took into consideration the comments 
     filed by the individuals identified in paragraph (b)(2);
       ``(2) special circumstances requiring prompt issuance of 
     the rule; and
       ``(3) whether the requirements of subsections (b) or (c) 
     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 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.
                                 ______


                NICKLES (AND OTHERS) AMENDMENT NO. 3535

  Mr. NICKLES (for himself, Mr. Reid, Mrs. Hutchison, and Mr. Dole) 
proposed an amendment to the bill S. 942, supra; as follows:

       At the end of the bill, add the following new title:
                     TITLE V--CONGRESSIONAL REVIEW

     SEC. 501. SHORT TITLE.

       This title may be cited as the ``Congressional Review Act 
     of 1996''.

     SEC. 502. FINDING.

       The Congress finds that effective steps for improving the 
     efficiency and proper management of Government operations 
     will be promoted if a moratorium on the effectiveness of 
     certain significant final rules is imposed in order to 
     provide Congress an opportunity for review.

     SEC. 503. MORATORIUM ON REGULATIONS; CONGRESSIONAL REVIEW.

       (a) Reporting and Review of Regulations.--
       (1) Reporting to congress and the comptroller general.--
       (A) Before a rule can take effect as a final rule, 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; and
       (iii) the proposed effective date of the rule.
       (B) The Federal agency promulgating the rule shall make 
     available to each House of Congress and the Comptroller 
     General, upon request--
       (i) a complete copy of the cost-benefit analysis of the 
     rule, if any;
       (ii) the agency's actions relevant to section 603, section 
     604, section 605, section 607, and section 609 of Public Law 
     96-354;
       (iii) the agency's actions relevant to title II, section 
     202, section 203, section 204, and section 205 of Public Law 
     104-4; and
       (iv) any other relevant information or requirements under 
     any other Act and any relevant Executive Orders, such as 
     Executive Order 12866.
       (C) Upon receipt, each House shall provide copies to the 
     Chairman and Ranking Member of each committee with 
     jurisdiction.
       (2) Reporting by the comptroller general.--
       (A) The Comptroller General shall provide a report on each 
     significant rule to the committees of jurisdiction to each 
     House of the Congress by the end of 12 calendar days after 
     the submission or publication date as provided in section 
     504(b)(2). The report of the Comptroller General shall 
     include an assessment of the agency's compliance with 
     procedural steps required by subparagraph (B) (i) through 
     (iv).
       (B) Federal agencies shall cooperate with the Comptroller 
     General by providing information relevant to the Comptroller 
     General's report under paragraph (2)(A) of this section.
       (3) Effective date of significant rules.--A significant 
     rule relating to a report submitted under paragraph (1) shall 
     take effect as a final rule, the latest of--
       (A) the later of the date occurring 45 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;
       (B) if the Congress passes a joint resolution of 
     disapproval described under section 504 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 504 is enacted).
       (4) Effective date for other rules.--Except for a 
     significant rule, a rule shall take effect as otherwise 
     provided by law after submission to Congress under paragraph 
     (1).
       (5) Failure of joint resolution of disapproval.--
     Notwithstanding the provisions of paragraph (3), the 
     effective date of a rule shall not be delayed by operation of 
     this title beyond the date on which either House of Congress 
     votes to reject a joint resolution of disapproval under 
     section 504.
       (b) Termination of Disapproved Rulemaking.--A rule shall 
     not take effect (or continue) as a final rule, if the 
     Congress passes a joint resolution of disapproval described 
     under section 504.
       (c) Presidential Waiver Authority.--
       (1) Presidential determinations.--Notwithstanding any other 
     provision of this section (except subject to paragraph (3)), 
     a rule that would not take effect by reason of this title may 
     take effect, if the President makes a determination under 
     paragraph (2) and submits written notice of such 
     determination to the Congress.
       (2) Grounds for determinations.--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; or
       (C) necessary for national security.
       (3) Waiver not to affect congressional disapprovals.--An 
     exercise by the President of the authority under this 
     subsection shall have no effect on the procedures under 
     section 504 or the effect of a joint resolution of 
     disapproval under this section.
       (d) Treatment of Rules Issued at End of Congress.--
       (1) Additional opportunity for review.--In addition to the 
     opportunity for review otherwise provided under this title, 
     in the case of any rule that is published in the Federal 
     Register (as a rule that shall take effect as a final rule) 
     during the period beginning on the date occurring 60 days 
     before the date the Congress adjourns sine die through the 
     date on which the succeeding Congress first convenes, section 
     504 shall apply to such rule in the succeeding Congress.
       (2) Treatment under section 504.--
       (A) In applying section 504 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 as a final rule) on the 15th 
     session day after the succeeding 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 must be 
     submitted to Congress before a final rule can take effect.
       (3) Actual effective date not affected.--A rule described 
     under paragraph (1) shall take effect as a final rule as 
     otherwise provided by law (including other subsections of 
     this section).
       (e) Treatment of Rules Issued Before This Title.--
       (1) Opportunity for congressional review.--The provisions 
     of section 504 shall apply to any significant rule that is 
     published in the Federal Register (as a rule that shall take 
     effect as a final rule) during the period beginning on March 
     1, 1996, through the date on which this title takes effect.
       (2) Treatment under section 504.--In applying section 504 
     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 (as a 
     rule that shall take effect as a final rule) on the date of 
     the enactment of this Act; and
       (B) a report on such rule were submitted to Congress under 
     subsection (a)(1) on such date.
       (3) Actual effective date not affected.--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 504.
       (f) Nullification of Rules Disapproved by Congress.--Any 
     rule that takes effect and later is made of no force or 
     effect by the enactment of a joint resolution under section 
     504 shall be treated as though such rule had never taken 
     effect.
       (g) No Inference to be Drawn Where Rules Not Disapproved.--
     If the Congress does not enact a joint resolution of 
     disapproval under section 504, 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. 504. CONGRESSIONAL DISAPPROVAL PROCEDURE.

       (a) Joint Resolution Defined.--For purposes of this 
     section, the term ``joint resolution'' means only a joint 
     resolution introduced during the period beginning on the date 
     on which the report referred to in section 503(a) is received 
     by Congress and ending 45 days thereafter, 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) Referral.--
       (1) In general.--A resolution described in paragraph (1) 
     shall be referred to the committees in each House of Congress 
     with jurisdiction. Such a resolution may not be reported 
     before the eighth day after its submission or publication 
     date.

[[Page S2203]]

       (2) Submission date.--For purposes of this subsection the 
     term ``submission or publication date'' means the later of 
     the date on which--
       (A) the Congress receives the report submitted under 
     section 503(a)(1); or
       (B) the rule is published in the Federal Register.
       (c) Discharge.--If the committee to which is referred a 
     resolution described in subsection (a) has not reported such 
     resolution (or an identical 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 resolution in 
     the Senate upon a petition supported in writing by 30 Members 
     of the Senate and in the House upon a petition supported in 
     writing by one-fourth of the Members duly sworn and chosen or 
     by motion of the Speaker supported by the Minority Leader, 
     and such resolution shall be placed on the appropriate 
     calendar of the House involved.
       (d) Floor Consideration.--
       (1) In general.--When the committee to which a resolution 
     is referred has reported, or when a committee is discharged 
     (under subsection (c)) from further consideration of, a 
     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 resolution, and all points of order 
     against the resolution (and against consideration of 
     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 resolution is agreed to, the 
     resolution shall remain the unfinished business of the 
     respective House until disposed of.
       (2) Debate.--Debate on the 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 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 resolution is not in order.
       (3) Final passage.--Immediately following the conclusion of 
     the debate on a 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 appropriate 
     House, the vote on final passage of the resolution shall 
     occur.
       (4) Appeals.--Appeals from the decisions of the Chair 
     relating to the application of the rules of the Senate or the 
     House of Representatives, as the case may be, to the 
     procedure relating to a resolution described in subsection 
     (a) shall be decided without debate.
       (e) Treatment if Other House Has Acted.--If, before the 
     passage by one House of a resolution of that House described 
     in subsection (a), that House receives from the other House a 
     resolution described in subsection (a), then the following 
     procedures shall apply:
       (1) Nonreferral.--The resolution of the other House shall 
     not be referred to a committee.
       (2) Final passage.--With respect to a resolution described 
     in subsection (a) of the House receiving the resolution--
       (A) the procedure in that House shall be the same as if no 
     resolution had been received from the other House; but
       (B) the vote on final passage shall be on the resolution of 
     the other House.
       (f) Constitutional Authority.--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 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. 505. SPECIAL RULE ON STATUTORY, REGULATORY AND JUDICIAL 
                   DEADLINES.

       (a) In General.--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 the 
     enactment of a joint resolution under section 504, that 
     deadline is extended until the date 12 months after the date 
     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 503(a).
       (b) Deadline Defined.--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. 506. DEFINITIONS.

       For purposes of this title--
       (1) Federal agency.--The term ``Federal agency'' means any 
     ``agency'' as that term is defined in section 551(1) of title 
     5, United States Code (relating to administrative procedure).
       (2) Significant rule.--The term ``significant rule''--
       (A) means any final rule that the Administrator of the 
     Office of Information and Regulatory Affairs within the 
     Office of Management and Budget finds--
       (i) has an annual effect on the economy of $100,000,000 or 
     more or adversely affects in a material way the economy, a 
     sector of the economy, productivity, competition, jobs, the 
     environment, public health or safety, or State, local, or 
     tribal governments or communities;
       (ii) creates a serious inconsistency or otherwise 
     interferes with an action taken or planned by another agency;
       (iii) materially alters the budgetary impact of 
     entitlement, grants, user fees, or loan programs or the 
     rights and obligations of recipients thereof; or
       (iv) raises novel legal or policy issues arising out of 
     legal mandates, the President's priorities, or the principles 
     set forth in Executive Order 12866; and
       (B) shall not include any rule promulgated under the 
     Telecommunications Act of 1996 and the amendments made by 
     such Act.
       (3) Final rule.--The term ``final rule'' means any final 
     rule or interim final rule. As used in this paragraph, 
     ``rule'' has the meaning given such term by section 551 of 
     title 5, United States Code, except that such term does not 
     include 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 or any rule of agency 
     organization, personnel, procedure, practice or any routine 
     matter.

     SEC. 507. JUDICIAL REVIEW.

       No determination, finding, action, or omission under this 
     title shall be subject to judicial review.

     SEC. 508. APPLICABILITY; SEVERABILITY.

       (a) Applicability.--This title shall apply notwithstanding 
     any other provision of law.
       (b) Severability.--If any provision of this title, or the 
     application of any provision of this title to any person or 
     circumstance, is held invalid, the application of such 
     provision to other persons or circumstances, and the 
     remainder of this title, shall not be affected thereby.

     SEC. 509. EXEMPTION FOR MONETARY POLICY.

       Nothing in this title 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. 510. EXEMPTION FOR HUNTING AND FISHING.

       Nothing in this title shall apply to rules that establish, 
     modify, open, close, or conduct a regulatory program for a 
     commercial, recreational, or subsistence activity relating to 
     hunting, fishing, or camping.

     SEC. 511. EFFECTIVE DATE.

       This title shall take effect on the date of the enactment 
     of this Act and shall apply to any rule that takes effect as 
     a final rule on or after such effective date.

                          ____________________