[House Report 104-48]
[From the U.S. Government Publishing Office]



  

104th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 1st Session                                                     104-48
_______________________________________________________________________


 
                    REGULATORY REFORM AND RELIEF ACT

_______________________________________________________________________


 February 23, 1995.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______


 Mr. Hyde, from the Committee on the Judiciary, submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 926]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on the Judiciary, to whom was referred the bill 
(H.R. 926) to promote regulatory flexibility and enhance public 
participation in Federal agency rulemaking and for other 
purposes, having considered the same, report favorably thereon 
with an amendment and recommend that the bill as amended do 
pass.
  The amendment is as follows:
  Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. SHORT TITLE.

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

             TITLE I--STRENGTHENING REGULATORY FLEXIBILITY

SEC. 101. JUDICIAL REVIEW.

  (a) Amendment.--Section 611 of title 5, United States Code, is 
amended to read as follows:

``Sec. 611. Judicial review

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

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

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

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

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

                  TITLE II--REGULATORY IMPACT ANALYSES

SEC. 201. DEFINITIONS.

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

SEC. 202. RULEMAKING NOTICES FOR MAJOR RULES.

  Section 553 of title 5, United States Code, is amended by adding at 
the end the following:
  ``(f)(1) Each agency shall for a proposed major rule publish in the 
Federal Register, at least 90 days before the date of publication of 
the general notice required under subsection (b), a notice of intent to 
engage in rulemaking.
  ``(2) A notice under paragraph (1) for a proposed major rule shall 
include, to the extent possible, the information required to be 
included in a regulatory impact analysis for the rule under subsection 
(i)(4)(B) and (D).
  ``(3) For a major rule proposed by an agency, the head of the agency 
shall include in a general notice under subsection (b), a preliminary 
regulatory impact analysis for the rule prepared in accordance with 
subsection (i).
  ``(4) For a final major rule, the agency shall include with the 
statement of basis and purpose--
          ``(A) a final regulatory impact analysis of the rule in 
        accordance with subsection (i); and
          ``(B) a clear delineation of all changes in the information 
        included in the final regulatory impact analysis under 
        subsection (i) from any such information that was included in 
        the notice for the rule under subsection (b).''.

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

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

SEC. 204. REGULATORY IMPACT ANALYSIS.

  Section 553 of title 5, United States Code, as amended by section 
203, is amended by adding after subsection (h) the following:
  ``(i)(1) Each agency shall, in connection with every major rule, 
prepare, and, to the extent permitted by law, consider, a regulatory 
impact analysis. Such analysis may be combined with any regulatory 
flexibility analysis performed under sections 603 and 604.
  ``(2) Each agency shall initially determine whether a rule it intends 
to propose or issue is a major rule. The Director shall have authority 
to order a rule to be treated as a major rule and to require any set of 
related rules to be considered together as a major rule.
  ``(3) Except as provided in subsection (j), agencies shall prepare--
          ``(A) a preliminary regulatory impact analysis, which shall 
        be transmitted, along with a notice of proposed rulemaking, to 
        the Director at least 60 days prior to the publication of 
        notice of proposed rulemaking, and
          ``(B) a final regulatory impact analysis, which shall be 
        transmitted along with the final rule at least 30 days prior to 
        the publication of a major rule.
  ``(4) Each preliminary and final regulatory impact analysis shall 
contain the following information:
          ``(A) A description of the potential benefits of the rule, 
        including any beneficial effects that cannot be quantified in 
        monetary terms and the identification of those likely to 
        receive the benefits.
          ``(B) An explanation of the necessity, legal authority, and 
        reasonableness of the rule and a description of the condition 
        that the rule is to address.
          ``(C) A description of the potential costs of the rule, 
        including any adverse effects that cannot be quantified in 
        monetary terms, and the identification of those likely to bear 
        the costs.
          ``(D) An analysis of alternative approaches, including market 
        based mechanisms, that could substantially achieve the same 
        regulatory goal at a lower cost and an explanation of the 
        reasons why such alternative approaches were not adopted, 
        together with a demonstration that the rule provides for the 
        least costly approach.
          ``(E) A statement that the rule does not conflict with, or 
        duplicate, any other rule or a statement of the reasons why 
        such a conflict or duplication exists.
          ``(F) A statement of whether the rule will require on-site 
        inspections or whether persons will be required by the rule to 
        maintain any records which will be subject to inspection.
          ``(G) An estimate of the costs to the agency for 
        implementation and enforcement of the rule and of whether the 
        agency can be reasonably expected to implement the rule with 
        the current level of appropriations.
  ``(5)(A) the Director is authorized to review and prepare comments on 
any preliminary or final regulatory impact analysis, notice of proposed 
rulemaking, or final rule based on the requirements of this subsection.
  ``(B) Upon the request of the Director, an agency shall consult with 
the Director concerning the review of a preliminary impact analysis or 
notice of proposed rulemaking and shall refrain from publishing its 
preliminary regulatory impact analysis or notice of proposed rulemaking 
until such review is concluded. The Director's review may not take 
longer than 90 days after the date of the request of the Director.
  ``(6)(A) An agency may not adopt a major rule unless the final 
regulatory impact analysis for the rule is approved or commented upon 
in writing by the Director or by an individual designated by the 
Director for that purpose.
  ``(B) Upon receiving notice that the Director intends to comment in 
writing with respect to any final regulatory impact analysis or final 
rule, the agency shall refrain from publishing its final regulatory 
impact analysis or final rule until the agency has responded to the 
Director's comments and incorporated those comments in the agency's 
response in the rulemaking file. If the Director fails to make such 
comments in writing with respect to any final regulatory impact 
analysis or final rule within 90 days of the date the Director gives 
such notice, the agency may publish such final regulatory impact 
analysis or final rule.
  ``(7) Notwithstanding section 551(16), for purposes of this 
subsection with regard to any rule proposed or issued by an appropriate 
Federal banking agency (as that term is defined in section 3(q) of the 
Federal Deposit Insurance Act (12 U.S.C. 1813(q)), the National Credit 
Union Administration, or the Office of Federal Housing Enterprise 
Oversight, the term `Director' means the head of such agency, 
Administration, or Office.''.

SEC. 205. STANDARD OF CLARITY.

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

SEC. 206. EXEMPTIONS.

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

SEC. 207. REPORT.

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

                         TITLE III--PROTECTIONS

SEC. 301. PRESIDENTIAL ACTION.

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

                          Purpose and Summary

    H.R. 926, the ``Regulatory Reform and Relief Act'' is 
designed to improve the federal regulatory system by: (1) 
strengthening the Regulatory Flexibility Act of 1980,\1\ (2) 
amending the Administrative Procedure Act \2\ to require the 
preparation of regulatory impact analyses whenever a ``major 
rule'' is promulgated by a federal agency, and (3) directing 
the President to prescribe regulations for the executive branch 
aimed at protecting citizens from abuse and retaliation in 
their dealings with the regulatory system.
    \1\ 5 U.S.C. 601-12.
    \2\ 5 U.S.C. 551 et seq.
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    Title I of the bill strengthens the Regulatory Flexibility 
Act of 1980 which was designed to relieve the regulatory burden 
on small entities by requiring agencies when promulgating rules 
to consider their impact on such small entities and, where 
possible, to mitigate the effect of such rules. First, H.R. 926 
grants to affected small entities judicial review to determine 
whether rules have been adopted in compliance with RFA. 
Secondly, it requires agencies to circulate proposed rules to 
the Chief Counsel for Advocacy of the Small Business 
Administration (SBA) at least 30 days prior to their 
publication so as to permit him an opportunity to comment upon 
the effect they would have on small entities. Finally, the bill 
states as the sense of the Congress that the Chief Counsel for 
Advocacy of the SBA should be authorized to file briefs as an 
amicus curiae in actions before any federal court.
    Title II of the bill is intended to provide the public 
greater opportunity to participate in the agency rulemaking 
process. This provision requires agencies to give advance 
notice to the public of impending rulemaking activity, and 
creates new procedures by which citizens may affect agency 
determinations to hold a public hearing or extend a public 
comment period. Most significantly, title II requires agencies 
to complete and publish a regulatory impact analysis with 
regard to all major rules and provides authority to the 
director of the Office of Management and Budget (OMB) to 
enforce agency compliance with such analysis requirements. The 
impact analysis criteria require agencies to undertake a cost 
and benefit analysis of every major rulemaking and explain why 
the method chosen by an agency to implement a law is the least 
costly. Provisions created by this legislation will be subject 
to judicial review under the same standard as are the 
provisions of the Administrative Procedure Act, which this 
title amends.
    Title III of the bill responds to the problem of abuse and 
retaliation by government regulators. It directs the President, 
within 180 days of enactment, to prescribe regulations for 
employees of the executive branch to protect persons against 
abuse, reprisal, or retaliation in connection with the 
enforcement of Federal laws and regulations. Such regulations 
must also insure that persons are treated fairly, equitably, 
and with due regard for their Constitutional rights.

                Background and Need for the Legislation

    On January 9, 1995, H.R. 9 was introduced by 
Representatives Archer, DeLay, Saxton, Smith of Washington, and 
Tauzin, for themselves and 111 co-sponsors. The bill, entitled 
the ``Job Creation and Wage Enhancement Act of 1995'', 
contained several provisions aimed at improving the climate for 
business and production, as well as attempting to improve the 
Federal regulatory system for all citizens.\3\ Divided into 
twelve titles, the bill was referred for consideration to 
several committees of the House, with the Judiciary Committee 
receiving primary reference to titles VI, VII, VIII, and IX. 
The first three of these titles, relating to improvement of the 
Federal regulatory system, were the subject of hearings in the 
Subcommittee on Commercial and Administrative Law,\4\ while 
title IX, concerning private property rights protections and 
compensation, was the subject of a hearing by the Subcommittee 
on the Constitution.\5\
    \3\ The purpose stated at the outset of H.R. 9 is: To create jobs, 
enhance wages, strengthen property rights, maintain certain economic 
liberties, decentralize and reduce the power of the Federal Government 
with respect to the States, localities, and citizens of the United 
States, and to increase the accountability of Federal officials.
    \4\ The subcommittee's hearings were held February 3 and 6, 1995.
    \5\ The subcommittee held one hearing on February 10, 1995.
---------------------------------------------------------------------------
    Subsequent to hearings by the Subcommittee on Commercial 
and Administrative Law, H.R. 926 was introduced on February 14, 
1995 by Mr. Gekas, together with Mr. Hyde. The bill contained 
the substance of titles VI, VII, and VIII of H.R. 9 as revised 
and improved, taking into consideration comments offered by 
witnesses at the hearings and suggestions proposed by other 
Members. Title I of H.R. 926 is based upon Title VI of H.R. 9, 
while titles II and III of the former are based respectively on 
titles VII and VIII of the latter.
    On February 16, 1995, the Judiciary Committee reported H.R. 
926 to the House by a voice vote, after having adopted several 
amendments.

                                title i

    The Regulatory Flexibility Act was signed into law by 
President Jimmy Carter on September 19, 1980 and became 
effective on January 1, 1981.\6\ The Act sought to ensure that 
agencies ``fit regulatory and informational requirements to the 
scale of the business, organizations, and governmental 
jurisdictions subject to regulation.'' \7\ It encouraged 
agencies to use innovative administrative procedures in dealing 
with individuals, as well as small businesses, small 
organizations, and small governmental bodies that might 
otherwise be unnecessarily adversely affected by Federal 
regulations.
    \6\ Public Law 96-354. The legislation was passed by the Senate on 
August 6, 1980 and by the House of Representatives on September 9, 
1980. House consideration is reported at 126 Cong. Rec. 24823 (1980).
    \7\ Footnote to 5 U.S.C. 601, Findings and Declarations of Purpose.
---------------------------------------------------------------------------
    The Act was based on the conclusion that while the cost of 
regulatory compliance is essentially constant among entities, 
the size of an entity is relevant to its compliance potential. 
In business, for example, there would appear to be an obvious 
difference in the respective abilities of smaller and larger 
companies to spread the cost of complying with a regulation 
because of their varying volumes of sales or production. Given 
a company with sales of $1 million and another with $10 
million, the smaller may be crucially affected in its ability 
to set competitive prices or perhaps even to make a profit 
while the larger would be less affected because of its sheer 
size.\8\ The Act intends that agencies take this difference 
into account rather than merely concluding reflexively in 
drafting rules that ``one size fits all''.
    \8\ During hearings before the Senate prior to the enactment of the 
Regulatory Flexibility Act of 1990, Dr. Milton Kafoglis, a member of 
President Carter's Council on Wage and Price Stability, described the 
economic argument for regulatory flexibility for small entities:
    There seem to be clear economies of scale imposed by most 
regulatory endeavors. Uniform application of regulatory requirements 
thus seems to increase the size firm that can effectively compete. The 
cost curve of the firm is shifted upward and to the right with its 
minimum point (or the elbow in an L-shaped cost curve) occurring at a 
larger output. If one employs the economists' theoretical ``dominant 
firm'' model and introduces such upward shifts in cost curves (the 
small firms'), the share of the dominant firm will increase while that 
of small firms will decrease. As a result industrial concentration will 
have increased. This hypothesis has not been questioned and is 
consistent with most of the case analyses that have been completed. It 
suggests that the ``small business'' problem goes beyond sympathy for 
the small businessman, but strikes at the heart of the established 
national policy of maintaining competition and mitigating monopoly. S. 
Rep. No. 878, 96th Cong., accompanying S. 299, p. 3-4.
---------------------------------------------------------------------------
    The Regulatory Flexibility Act applies to every federal 
rule for which notice is required by Section 553(b) of the 
Administrative Procedure Act or other laws.\9\ The Act requires 
an agency to prepare one or more of three documents:
    \9\ This exempts such things as interpretive rules, which are those 
intended only to implement a statute and in which Congress has not 
delegated legislative-type authority to the agency. One theory behind 
the exemption of interpretive rules from ``notice and comment'' 
rulemaking is that an agency is merely following the specifics of 
legislation and has little or no discretion to change the rules.
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          A certification that a proposed rule will not have a 
        significant impact on a substantial number of small 
        entities, or
          An initial regulatory flexibility analysis, and 
        subsequently
          A final regulatory flexibility analysis.
    Pursuant to Section 605(b) of the Act, the certification is 
to be made by the head of the agency and published in the 
Federal Register at the time of general notice of proposed 
rulemaking for the rule or at the time of final publication of 
the rule. It is to be accompanied by ``a succinct statement 
explaining the reasons for such certification.'' \10\ Debate 
during floor consideration indicated that this explanation 
should be more than a mere statement that a rule will not have 
a significant impact on a substantial number of small entities. 
It must explain the decision to certify and discuss why it 
draws that conclusion, and any doubt as to whether an impact 
analysis should be filed, must be resolved in favor of 
performing the analysis.\11\
    \10\ 5 U.S.C. 605(b).
    \11\ 126 Cong. Rec. H8468 (daily ed. Sept. 9, 1980) (statement of 
Representative Andy Ireland).
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    If an agency anticipates that a proposed rule will have a 
significant impact on a substantial number of small entities, 
it must prepare an initial regulatory flexibility analysis and 
publish it in the Federal Register at the time of publication 
of general notice of proposed rulemaking for the rule. This 
initial regulatory flexibility analysis is supposed to include:
          A description of the reasons why the agency is 
        considering such action;
          A succinct statement of the objective of and legal 
        basis for the proposed rule;
          A description of the reporting, recordkeeping and 
        other compliance requirements of the proposed rule;
          An identification, to the extent practicable, of all 
        relevant Federal rules which may duplicate, overlap, or 
        conflict with the proposed rule; and
          A description of any significant alternatives to the 
        proposed rule which accomplish the stated objectives of 
        applicable statutes and which minimize any significant 
        economic impact on small entities.\12\
    \12\ 5 U.S.C. 603.
---------------------------------------------------------------------------
    When an agency promulgates its final rule, it must either 
prepare a final regulatory flexibility analysis or certify that 
its rule will not have a significant impact on a substantial 
number of small entities. The final regulatory flexibility 
analysis must discuss comments received from the regulated 
community and others as well as the alternatives considered by 
the agency while drafting the final rule.\13\
    \13\ 5 U.S.C. 604.
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    The RFA gives the Chief Counsel for Advocacy of the Small 
Business Administration the responsibility of monitoring 
compliance with the Act and requires him to report annually on 
this to the President and the Congress.\14\ It gives him the 
authority to appear as amicus curiae in any action brought in a 
court of the United States to review a rule in order to present 
his views with respect to the effect of the rule on small 
entities.\15\
    \14\ 5 U.S.C. 612.
    \15\ Id. The Chief Counsel for Advocacy has only infrequently 
attempted to appear as amicus under this section. In the case of Lehigh 
Valley Farmers v. Block 640 F. Supp. 1497, aff'd 829 F.2d 409 (1987), 
there was debate between the Office for Advocacy and the Department of 
Justice over the constitutionality of the former's appearance as amicus 
and the Chief Counsel withdrew his brief. In September of 1994, the 
Chief Counsel filed notice of intent to file an amicus brief in Time 
Warner Entertainment Limited Partnership v. Federal Communications 
Commission, No. 93-1723 (D.C. Circuit), but came to an accord with the 
FCC obviating his need to file.
---------------------------------------------------------------------------
    Despite the specific requirements that are placed on 
agencies by the Act, there has been concern that agencies are 
circumventing its spirit by taking advantage of 5 U.S.C. 611, 
which exempts ``any determination by an agency concerning the 
applicability of any of the provisions'' of the Act from 
judicial review. Section 611 does authorize a regulatory 
flexibility analysis to be made part of the record on review of 
the ultimate reasonableness of a rule. A court could determine 
that a defective regulatory flexibility analysis led an agency 
to underestimate the effect of a rule on small entities and 
this might be of such a magnitude as to undermine the rule's 
rationality.\16\ But this may be of little practical 
significance to the successful functioning of the RFA. As the 
former Acting Chief Counsel for Advocacy of the SBA, Doris S. 
Freeman noted:

    \16\ In Thompson v. Clark, 741 F. 2d 401, (D.C. Cir. 1984), then 
Judge Scalia hypothesized such a case, saying that the rule would be 
set aside: . . . not because the regulatory flexibility analysis was 
defective, but because the mistaken premise reflected in the . . . 
analysis deprives the rule of its required rational support, and thus 
causes it to violate--not any special obligation of the Regulatory 
Flexibility Act--but the general legal requirement of reasoned, 
nonarbitrary decisionmaking, . . . . (at 405).
---------------------------------------------------------------------------
          Thus, a federal agencies can ignore the burden 
        imposed on small business until those burdens are 
        sufficient to undercut the rationality of a rule. The 
        probability that any particular rule will fail due to 
        the faulty premises underpinning an incorrect 
        regulatory flexibility analysis are rare indeed. With 
        the potential for federal court litigation fairly 
        remote, agencies have little to lose in ignoring their 
        responsibilities under the RFA.\17\

    \17\ Hearing on H.R. 830 Before Subcomm. on Administrative Law and 
Governmental Relations of the House Comm. on the Judiciary, 103rd Cong. 
1st Sess. Serial No. 69, p. 37 (1993) (testimony of Doris S. Freeman).
---------------------------------------------------------------------------
    In testimony this year,\18\ Representative Ike Skelton 
pointed to a 1987 report of the House Committee on Small 
Business entitled: ``Implementation of the Regulatory 
Flexibility Act--A Five Year Report''. The report resulted from 
the work the Small Business subcommittees on Exports, Tourism, 
and Special Problems, chaired at that time by Representative 
Skelton.\19\ The report discusses at considerable length the 
problems with enforcement of the RFA, concluding that Section 
605(b) (permitting agencies to certify no significant impact on 
small entities) was particularly subject to abuse because the 
prohibition against judicial review contained in Section 611 
makes it impossible to question the agency's action. The 
apparent conflict within the Act has been noted by the 
courts.\20\
    \18\ Hearing on H.R. 9, Before the Subcomm, on Commercial and 
Administrative Law of the House Comm. on the Judiciary, 104th Cong., 
1st Session. (1995).
    \19\ H. Rep. No. 273, 100th Cong. (1987).
    \20\ In Lehigh Valley Farmers v. Block, supra., the court stated in 
a footnote: ``We would be less than candid if we did not recognize that 
Congress theoretically rendered Sections 603 and 604 of the RFA 
nullities based on Sections 605 and 611. However, it for Congress to 
correct this anomaly if it so desires.'' (at 1520).
---------------------------------------------------------------------------
    In his 1993 annual report on implementation of RFA, the 
Chief Counsel for Advocacy of the SBA, Jere W. Glover, noted 
that many agencies have decided merely to use boilerplate 
certifications. The Counsel's report indicated that the Federal 
Energy Regulatory Commission, for one, has modified its 
procedures from providing a statement explaining its 
certification to a simple assertion that a rule will not have a 
significant impact upon a substantial number of small 
entities.\21\ After identifying similarly recalcitrant agencies 
(i.e. Food and Nutrition Service, Forest Service, Bureau of 
Indian Affairs, and the Departments of Transportation and 
Justice), the report explained: ``The Office of Advocacy is 
powerless to force agencies to provide concise statements 
explaining their rationale [for certification].'' \22\
    \21\ Standards of Conduct and Reporting Requirements for 
Transportation and Affiliate Transactions of Natural Gas Pipelines, 59 
Fed. Reg. 268 (1994). Although the report criticized FERC for its use 
of boilerplate certifications, it did note that in other ways it was 
one of the agencies most responsive to small business concerns because 
of its willingness to modify a rule after taking account of concerns 
raised by small entities.
    \22\ Annual Report of the Chief Counsel for Advocacy on 
Implementation of the Regulatory Flexibility Act, U.S. Small Business 
Administration, p.16 (1993).
---------------------------------------------------------------------------
    Thus, the most significant feature of title I of H.R. 926 
is its deletion of the prohibition against judicial review 
contained in Section 611 of the RFA. This is in clear response 
to strong sentiment expressed not only during the hearings, but 
also from many other sources and for many years. The National 
Performance Review, chaired by Vice-President Gore, made 
deletion of the ban against judicial review its primary 
recommendation with respect to the Small Business 
Administration. Many small businesses, manufacturing and 
municipal organizations have concurred with the Vice-
President.\23\
    \23\ See Hearings on H.R. 9, supra. Also, Hearings on H.R. 930 
before Subcomm. on Administrative Law and Governmental Relations of the 
House Comm. on the Judiciary, Rep. No. 69, 103rd Cong. (1993).
---------------------------------------------------------------------------
    There was some concern that providing judicial review might 
result in an influx of court challenges to agency rules,\24\ 
although the National Performance Review discounted its impact. 
Nonetheless, the committee thought it sound policy to create a 
right to judicial review with distinct parameters. Thus Section 
101 of title I, while providing for judicial review, limits the 
time during which an affected small entity may seek judicial 
review to 180 days after the effective date of an agency's 
rule, or, in cases where an agency has delayed the issuance of 
a final regulatory analysis because of an emergency, 180 days 
after the final regflex analysis has been made available to the 
public.\25\ If a shorter time period is provided by law under 
which the rule was promulgated, then the shorter time period 
controls.\26\
    \24\ Hearing on H.R. 830, ibid 63-9 (testimony of Professor Thomas 
O. McGarity, University of Texas Law School).
    \25\ Section 101(2)(B) of H.R. 926.
    \26\ Section 101(2)(A) of H.R. 926.
---------------------------------------------------------------------------
    But, beyond judicial review there are other ways to promote 
the successful functioning of the RFA and H.R. 926 attempts to 
do so.
    The Office of Chief Counsel for Advocacy within the Small 
Business Administration was established by law in 1976.\27\ The 
law gives the Counsel a wide variety of responsibilities which 
are aimed at making the SBA and other Federal agencies 
sensitive to the concerns of small business and vice-versa. The 
Counsel was subsequently entrusted oversight responsibility of 
RFA.\28\ Drafters of H.R. 830 of the 103rd Congress, upon which 
H.R. 926 is based, argued that one way to ensure a successful 
RFA is to bolster the Counsel in his oversight role. Thus, they 
proposed that Counsel be given advance notification of proposed 
federal rules so that he can comment upon them to the agency 
before they are published.
    \27\ P.L. 94-305, Title II, Sec. 201. 15 U.S.C. 634a et seq.
    \28\ 5 U.S.C. 612.
---------------------------------------------------------------------------
    It is obviously desirable that rules be drafted so well 
that they never need to be challenged. One way this quality of 
product can be achieved with respect to the particular concerns 
of small entities is to provide for pre-publication review by 
the Chief Counsel for Advocacy. As the principal sponsor, 
Representative Thomas Ewing noted: ``This would involve that 
office in this process at an earlier stage. Advocacy should be 
working hand-in-hand with the regulators to write rules which 
meet the requirements of the RFA and keep the agencies out of 
court.'' \29\ The committee agreed with the drafters, although 
it should also be noted that the Counsel's role is only to 
comment and suggest. He cannot veto an agency's proposed rule.
    \29\ Hearing on H.R. 830, supra. See also the statement of James W. 
Morrison, appearing on behalf of the National Association of the Self-
Employed, who suggested that pre-publication notification could remedy 
the lack of useful effect from 5 U.S.C. 602 regarding the provision of 
regulatory agendas to the Counsel. Id. at 79.
---------------------------------------------------------------------------
    As was discussed above, the Counsel is authorized by law to 
appear as amicus curiae in his oversight function with respect 
to the RFA. But, given the history of the RFA, it appears 
useful at this point to restate this authority as a sense of 
Congress.

                                title ii

    The methods by which the Federal government promulgates and 
enforces regulations is a subject which has received increased 
scrutiny in the past three decades. Since 1887, when Congress 
established the first modern day regulatory agency, the 
Interstate Commerce Commission, to regulate American railroads, 
the Federal government has liberally increased its role in 
regulating American business.\30\ However, by the 1960's and 
1970's, this unfettered growth of Federal agencies and the 
cumbersome process by which they implement regulatory actions 
had attracted many critics.
    \30\ Since 1887, 56 regulatory agencies have been created; and as 
of June 1994, those agencies collectively employ over 131,000 
regulatory staff.
---------------------------------------------------------------------------
    Consequently, starting in the mid-1970's five successive 
U.S. presidents attempted, through the Executive branch, to 
impose some criteria on the agency rulemaking process. 
Beginning in 1974, a series of executive orders were initiated 
to impose objective standards upon the process, and to attempt 
to measure the impact of regulations created pursuant to that 
process. In 1974 and 1976 respectively, President Ford imposed 
an ``Inflationary Impact Analysis'' on regulations, and then an 
``Economic Impact Analysis'' on the rulemaking process.\31\ In 
1978, President Carter called for ``Economic Impact 
Statements'' on regulations,\32\ and in 1981, President Reagan 
in his order on ``Federal Regulations'' required regulatory 
impact analysis to be completed on all regulations before they 
could be issued,\33\ Most recently, in 1993, President Clinton 
imposed a ``Regulatory Planning Review'' on the rulemaking 
process.\34\ This Executive branch movement toward measuring 
and curbing what appears to be the inevitable growth of federal 
regulations has generated support during the past two decades 
for legislative efforts with similar goals.
    \31\ Exec. Order No. 11821, 3 C.F.R. 926 (1971-1975 compilation) 
and Exec. Order No. 11949, 3 C.F.R. 161 (1976).
    \32\ Exec. Order No. 12044, 43 Fed. Reg. 12661 (1978).
    \33\ Exec. Order No. 12291, 3 C.F.R. 127 (1982). President Bush 
continued to enforce Executive Order 12291 during his administration.
    \34\ Exec. Order No. 12866, 58 Fed. Reg. 51735 (1993).
---------------------------------------------------------------------------
    Title II of H.R. 926, entitled ``Regulatory Impact 
Analysis'' is the most recent legislative product of sporadic 
congressional efforts which began over thirty years ago.\35\ 
The most successful of those efforts culminated in 1982, when 
the Senate passed S. 1080, the ``Regulatory Reform Act'', by a 
vote of 94 to 0.\36\ This legislation represents the first 
viable legislative attempt, since the demise of S. 1080, to 
codify improvements to the agency rulemaking process which 
executive orders have temporarily imposed during the past three 
decades.
    \35\ In the 88th Congress, in 1964, the Subcommittee on 
Administrative Practice and Procedure [of the Senate Judiciary 
Committee] held three days of hearings and heard from 36 witnesses on a 
bill intended to update and improve the procedural rules that govern 
proceedings before departments and agencies. Hearings on this subject 
continued in the 89th, the 94th, and the 95th Congresses. [During the 
96th Congress], the Subcommittee on Administrative practice and 
Procedure [of the Senate Judiciary Committee] embarked on an ambitious 
schedule of ten days of hearings, receiving testimony from over 100 
witnesses on all manner of regulatory reform. During the [96th 
Congress], the [Senate] Committee on Governmental Affairs held eleven 
days of hearings on Regulatory Reform legislation and heard testimony 
from 80 witnesses. S. Rep. No. 284, 98th Cong., 1st Sess. 1-2 (1981).
    \36\ Despite the overwhelming and bipartisan support for the bill 
in the Senate, S. 1080 was never afforded a vote in the House. S. 1080 
contained provisions which are similar to those of this title, 
including a requirement that Federal agencies complete and publish a 
preliminary and final regulatory impact analysis during the 
consideration of, and upon publication of a major rule.
---------------------------------------------------------------------------
    Without question it is the Executive branch which is 
charged with enforcing the laws Congress passes; and agencies 
are the governmental entities within the Executive responsible 
for crafting the regulations by which to implement Federal 
laws. However, Congress has the power to address the Federal 
agency rulemaking process and did so comprehensively in 1946, 
with the enactment of the ``Administrative Procedure Act'' 
(APA), which is codified in title 5 of the U.S. Code.\37\ The 
failure to date of the Executive branch to comprehensively 
discipline the rulemaking process is due in part to the limited 
authority of executive orders. An executive order cannot amend 
the primary rulemaking statute, the APA; and an executive order 
can easily be repealed simply by the issuance of a subsequent 
order.\38\
    \37\ 5 U.S.C. Sec. 551 et seq.
    \38\ A recent example of the ephemeral nature of executive orders 
is the revocation of President Reagan's 1981 Executive Order 12291, 
supra, by President Clinton's Executive Order 12866, supra, on 
September 30, 1993. The repeal of Reagan's Order by President Clinton 
did not require any action by the Legislative branch, and is not 
subject to review by the Judicial branch; it is simply an internal 
Executive branch mechanism.
---------------------------------------------------------------------------
    A major impetus for the drafting of title VII of H.R. 9, 
the predecessor to this title, was frustration by many in the 
business community at the revocation of President Reagan's 
Executive Order 12291 by President Clinton.\39\ The Reagan 
Executive Order not only mandated completion by agencies of a 
regulatory impact analysis, but provided substantial 
enforcement authority to the director of OMB to oversee agency 
compliance. The subsequent Clinton Executive Order is generally 
less imposing on agencies, provides more agency discretion, and 
grants less enforcement authority to the director of OMB.\40\
    \39\ ``The regulatory impact analysis you are considering today is 
the result of meetings with scores of business leaders and individuals 
throughout the country who have found themselves snagged in government 
red tape, . . . .'' Hearings on H.R. 9, supra (testimony of Congressman 
Bob Franks).
    \40\ For example, the language of Reagan Executive Order 12291 
provides in part the following:

        To permit each proposed major rule to be analyzed in 
      light of the requirements of this Order . . . each 
      preliminary and final regulatory impact analysis shall 
      contain the following information: (1) a description of the 
      potential benefits of the rule . . ., (2) a description of 
      the potential cost of the rule . . ., (3) a determination 
      of the net benefits of the rule . . ., (4) a description of 
      alternative approaches that could substantially achieve the 
      same regulatory goal at a lower cost . . .,
        Upon the request of the director, an agency shall consult 
      with the director concerning the review of preliminary 
      regulatory impact analysis . . . and shall . . . refrain 
      from publishing its preliminary regulatory impact analysis 
      . . . until such review is concluded. (Emphasis added)

  By contrast, the language of Clinton Executive Order 12866, provides 
in part the following:

        To ensure that the agencies' regulatory programs are 
      consistent with the philosophy set forth above, agencies 
      should adhere to the following principles, to the extent 
      permitted by law and where applicable: (1) each agency 
      shall identify the problem it intends to address . . ., (2) 
      each agency shall examine whether existing regulations . . 
      . have created, . . . the problem that a new regulation is 
      intended to correct . . ., (3) each agency shall identify 
      and assess available alternatives to direct regulation, . . 
      . (4) in setting regulatory priorities, each agency shall 
      consider, to the extent reasonable, the degree and nature 
      of the risks posed. . . .
        Coordinated review of a agency rulemaking is necessary to 
      ensure that regulations are consistent with applicable law, 
      . . . . The Office of Management and Budget shall carry out 
      that review function. . . . To the extent permitted by law, 
      OMB shall provide guidance to agencies . . . and shall be 
      the entity that reviews individual regulations. . . . 
      (emphasis added)
    The literal differences between Reagan Executive Order 
12291 and Clinton Executive Order 12866 are fundamental. While 
the Clinton Order addresses the same topics as Executive Order 
12291, its language is significantly different, and tends to 
weaken rather than strengthen regulatory analysis in the 
Executive branch. Specifically, the express regulatory impact 
analysis and decisional criteria provisions of the Reagan Order 
are replaced in Clinton's Order with general statements of 
``Regulatory Philosophy'' and ``Principles of Regulation'' that 
speak in the more benign ``shoulds'' rather than the Reagan 
Order's mandatory ``shalls''. A consequence of President 
Clinton's revocation of the 1981 Reagan Order was the 
incorporation by reference of Executive Order 12291 into the 
legislative language of title VII of H.R. 9.
    Title II of H.R. 926 represents a substantial rewrite of 
title VII of H.R. 9. Reagan Executive Order 12291 is not 
incorporated by reference into title II as it was in H.R. 9. 
Instead, the APA, specifically section 553 of title 5, is 
amended to include some original and some amended provisions of 
Executive Order 12291. For example, title II contains a reduced 
set of impact analysis criteria, which was created, in part, 
through combining language from the previous Reagan Order and 
from title VII of H.R. 9. Furthermore, the definition of a 
major rule, pursuant to this legislation, will now be included 
within the definition provision of the APA, but generally 
reflects the definition of a major rule from prior Executive 
Order 12291.

                               Title III

    Title III of H.R. 926 is derived from title VIII of H.R. 9, 
which sought to provide a citizen's regulatory bill of rights 
and protection for private sector whistleblowers. The 
Commercial and Administrative Law Subcommittee heard testimony 
and received other evidence indicating the presence of 
regulatory abuse and its disruptive effects on the confidence 
that citizens and businessmen alike should have in the 
functioning of their government. There is, furthermore, a 
perception that retaliatory actions may be taken by government 
agencies against private sector whistleblowers, and such 
perceptions can have very real consequences in determining 
whether a person decides to come forward with his or her 
evidence. As Representative Tom DeLay advised the Subcommittee 
during the hearing on title VIII, ``Our constituents struggle 
daily to comply with an unending array of regulatory 
requirements [and] at the very least they should feel free to 
speak openly about regulatory actions taken against them that 
they believe to be unfair.''
    There is clearly broad agreement that persons who are the 
subjects of regulatory abuse should as a matter of course be 
protected from abuse by regulators, and that persons who 
criticize regulators should be protected from reprisals against 
such criticism. These are the concerns that underlie this 
title.
    After discussions among the Members and careful 
consideration of the testimony and other communications 
received, it was decided that the concerns giving rise to title 
VIII would be best met at this time as follows: The President, 
pursuant to his authority under 5 U.S.C. 7301, is directed 
within 180 days of enactment to prescribe regulations for 
employees of the executive branch of government to insure that 
Federal laws and regulations shall be administered consistent 
with the principle that any person shall, in connection with 
the enforcement of such laws and regulations, (1) be protected 
from abuse, reprisal, or retaliation, and (2) be treated 
fairly, equitably, and with due regard for such person's rights 
under the Constitution.
    Recent examples of the exercise of the President's 
authority under 5 U.S.C. 7301 to ``prescribe regulations for 
the conduct of employees in the executive branch'' would 
include executive orders relating to a drug-free Federal 
workplace,\41\ setting forth principles of ethical conduct for 
government officials and employees \42\ and prescribing ethical 
commitments by executive branch appointees.\43\
    \41\ Exec. Ord. No. 12564. 51 Fed.Reg. 32889 (1986).
    \42\ Exec. Ord. No. 12674, 54 Fed.Reg. 15159 (1989), as amended by 
Exec. Ord. No. 12731, 55 Fed.Reg. 42547 (1990).
    \43\ Exec. Ord. No. 12834, 58 Fed.Reg. 5911 (1993).
---------------------------------------------------------------------------
    The regulations issued pursuant to title III prohibiting 
regulatory abuse and retaliation and requiring fair and 
equitable treatment should receive the broadest possible 
dissemination throughout the executive branch. Their content 
should also be incorporated into agency training, agency field 
manuals, and elsewhere as appropriate. In the future, the 
Committee anticipates that it may conduct regular oversight 
hearings into the subject of regulatory abuse and reprisals by 
agencies of the Federal Government.

                                Hearings

    The Committee's Subcommittee on Commercial and 
Administrative Law held two days of hearings on titles VI, VII 
and VIII of H.R. 9, the precursors of titles I, II and III of 
H.R. 926, on February 3 and 6, 1995.
    Testimony on title VI was received on February 3 from the 
following witnesses: Representative Ike Skelton; Representative 
Tom Ewing; John Spotila, General Counsel, Small Business 
Administration; Jere Glover, Chief Counsel for Advocacy, Small 
Business Administration; Joseph Stehlin, representing Green 
Cove Maritime, Inc.; Rick Stadelman, Executive Director, 
Wisconsin Towns and Townships; Bennie Thayer, President of the 
National Association of Self-Employed; Donald Dorr, Esq., 
representing the U.S. Chamber of Commerce; James P. Carty, Vice 
President of Small Manufacturers, National Association of 
Manufacturers; Kim McKernan, Director of House Governmental 
Affairs, National Federation of Independent Businessmen; and 
David Vladek, representing Public Citizen.
    Testifying on title VIII on February 3 were Representative 
Tom DeLay; Jamie Gorelick, Deputy Attorney General, United 
States Department of Justice; Edward Hudgins, Director of 
Regulatory Studies at the CATO Institute; and Susan Eckerly, 
Deputy Director of Economic Policy at the Heritage Foundation. 
Testimony was received from Professor Thomas O. McGarity of the 
University of Texas School of Law, who at the time of his 
scheduled appearance was testifying before another 
Congressional committee and was made part of the record.
    On February 6, the Subcommittee heard testimony on title 
VII from the following persons: Representative Bob Franks; 
Representative David McIntosh; Sally Katzen, Administrator of 
the Office of Information and Regulatory Affairs of the Office 
of Management and Budget; Cornelius E. Hubner, President of the 
American Felt and Filter Company; Brian Maher, President of 
Maher Terminals; Al Wenger, Executive Officer, Wenger Feed 
Mills; Ed Dunkelberger, Esq., representing the National Food 
Processors Association; C. Boyden Gray, Esq.; David Hawkins, 
Senior Attorney, Natural Resources Defense Council; James C. 
Miller, representing Citizens for a Sound Economy; Thomasina 
Rogers, Chair of the Administrative Conference of the United 
States, accompanied by Ernest Gellhorn, Esq.; Gary Bass, 
Executive Director, OMB Watch; and George C. Freeman, Jr., 
Esq., Chairman of the American Bar Association's Working Group 
on Regulatory Reform.
    Additional material was submitted by a number of 
individuals and organizations.

                        Committee Consideration

    On February 16, 1995, the Committee met in open session and 
ordered reported the bill H.R. 926, with amendments, by voice 
vote, a quorum being present.

                         Vote of the Committee

    There were three amendments adopted by voice vote. The 
first was an amendment offered by Mr. Gekas which provides an 
exemption from the pre-publication notification requirements of 
section 102 for certain monetary agencies. The second was an 
amendment offered by Mr. Schumer which provides an exemption 
for certain monetary agencies from OMB enforcement authority 
over the impact analysis requirements of title II. The third 
was an amendment offered by Mr. Reed which limits the period 
for review of the OMB director to 90 days regarding preliminary 
and final impact analyses and proposed final rules.
    There were recorded votes on four amendments during the 
Committee's consideration of H.R. 926, as follows:
    1. An amendment offered by Mr. Frank to an amendment by Mr. 
Gekas regarding an exemption for certain banking agencies from 
the pre-publication requirement to notify the Chief Counsel for 
Advocacy of the SBA. Defeated 13-16.
        YEAS                          NAYS
Mr. Conyers                         Mr. Hyde
Ms. Schroeder                       Mr. Moorhead
Mr. Frank                           Mr. McCollum
Mr. Schumer                         Mr. Gekas
Mr. Boucher                         Mr. Coble
Mr. Bryant (Texas)                  Mr. Schiff
Mr. Reed                            Mr. Gallegly
Mr. Nadler                          Mr. Canady
Mr. Scott                           Mr. Inglis
Mr. Watt                            Mr. Goodlatte
Mr. Serrano                         Mr. Buyer
Ms. Lofgren                         Mr. Bono
Ms. Jackson Lee                     Mr. Heineman
                                    Mr. Bryant (Tennessee)
                                    Mr. Flanagan
                                    Mr. Barr

    2. A Substitute amendment to the Schumer amendment offered 
by Mr. Watt, further exempting monetary agencies from the 
regulatory impact analysis requirements of title II. Defeated 
13-19.
        YEAS                          NAYS
Mr. Conyers                         Mr. Hyde
Ms. Schroeder                       Mr. Moorhead
Mr. Frank                           Mr. Sensenbrenner
Mr. Schumer                         Mr. McCollum
Mr. Boucher                         Mr. Gekas
Mr. Bryant (Texas)                  Mr. Coble
Mr. Reed                            Mr. Schiff
Mr. Nadler                          Mr. Gallegly
Mr. Scott                           Mr. Canady
Mr. Watt                            Mr. Inglis
Mr. Serrano                         Mr. Goodlatte
Ms. Lofgren                         Mr. Buyer
Ms. Jackson Lee                     Mr. Hoke
                                    Mr. Bono
                                    Mr. Heineman
                                    Mr. Bryant (Tennessee)
                                    Mr. Chabot
                                    Mr. Flanagan
                                    Mr. Barr

    3. An amendment offered by Mr. Reed increasing the monetary 
threshold for defining a ``major rule'' in title II from $50 
million to $100 million. Defeated 13-19.
        YEAS                          NAYS
Mr. Conyers                         Mr. Hyde
Ms. Schroeder                       Mr. Moorhead
Mr. Frank                           Mr. Sensenbrenner
Mr. Schumer                         Mr. McCollum
Mr. Boucher                         Mr. Gekas
Mr. Bryant (Texas)                  Mr. Coble
Mr. Reed                            Mr. Smith (Texas)
Mr. Nadler                          Mr. Schiff
Mr. Scott                           Mr. Gallegly
Mr. Watt                            Mr. Canady
Mr. Serrano                         Mr. Inglis
Ms. Lofgren                         Mr. Goodlatte
Ms. Jackson Lee                     Mr. Hoke
                                    Mr. Bono
                                    Mr. Heineman
                                    Mr. Bryant (Tennessee)
                                    Mr. Chabot
                                    Mr. Flanagan
                                    Mr. Barr

    4. An amendment offered by Mr. Conyers requiring that all 
contracts to an agency regarding informal rulemakings be 
described, recorded and made available to the public. Defeated 
14-19.
        YEAS                          NAYS
Mr. Conyers                         Mr. Hyde
Ms. Schroeder                       Mr. Moorhead
Mr. Frank                           Mr. Sensenbrenner
Mr. Schumer                         Mr. McCollum
Mr. Berman                          Mr. Gekas
Mr. Boucher                         Mr. Coble
Mr. Bryant (Texas)                  Mr. Smith (Texas)
Mr. Reed                            Mr. Schiff
Mr. Nadler                          Mr. Gallegly
Mr. Scott                           Mr. Canady
Mr. Watt                            Mr. Inglis
Mr. Serrano                         Mr. Goodlatte
Ms. Lofgren                         Mr. Hoke
Ms. Jackson Lee                     Mr. Bono
                                    Mr. Heineman
                                    Mr. Bryant (Tennessee)
                                    Mr. Chabot
                                    Mr. Flanagan
                                    Mr. Barr

                      Committee Oversight Findings

    In compliance with clause 2(l)(3)(A) of rule XI of the 
Rules of the House of Representatives, the Committee reports 
that the findings and recommendations of the Committee, based 
on oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

         Committee on Government Reform and Oversight Findings

    No findings or recommendations of the Committee on 
Government Reform and Oversight were received as referred to in 
clause 2(l)(3)(D) of rule XI of the Rules of the House of 
Representatives.

               New Budget Authority and Tax Expenditures

    Clause 2(l)(3)(B) of House rule XI is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 2(l)(C)(3) of rule XI of the 
Rules of the House of Representatives, the Committee sets 
forth, with respect to H.R. 926, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 403 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                 Washington, DC, February 23, 1995.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 926, the 
Regulatory Reform and Relief Act.
    Enactment of H.R. 926 could effect direct, spending. 
Therefore, pay-as-you-go procedures would apply to the bill.
    If you wish further details on this estimate, we will be 
pleased to provide them.
            Sincerely,
                                              James L. Blum
                              (For Robert D. Reischauer, Director).
    Enclosure.
    1. Bill number: H.R. 926.
    2. Bill title: Regulatory Reform and Relief Act.
    3. Bill status: As ordered reported by the House Committee 
on the Judiciary on February 17, 1995.
    4. Bill purpose: Title I of H.R. 926 would permit small 
entities to petition for judicial review of a federal agency's 
compliance with the requirements of the Regulatory Flexibility 
Act. The bill also would require that a federal agency transmit 
to the Small Business Administration (SBA) a copy of any 
proposed rule (and the agency's initial regulatory flexibility 
analysis, if required) at least 30 days prior to the 
publication of the notice of proposed rulemaking. The SBA would 
be permitted to transmit to the proposing agency the SBA's 
analysis of the proposed rule's effects on small business.
    Title II of the bill would make several changes to the 
current laws relating to federal rulemaking. These provisions 
would apply to most agency rules expected to have an effect on 
the economy of at least $50 million annually. First, the bill 
would require a 90-day advanced notice to the public of 
proposed rulemaking. Second, H.R. 926 would require agencies to 
hold an informal hearing on a rule if more than 100 persons 
request such a hearing, and to extend the public comment period 
on proposed rules by 30 days if more than 100 persons make such 
a request. Third, the bill would require agencies to prepare a 
preliminary regulatory impact analysis along with the public 
notice of proposed rulemaking, in addition to a final 
regulatory impact analysis.
    Title III of H.R. 926 would require the President, within 
180 days of enactment of the bill, to prescribe guidelines to 
protect private sector whistleblowers from retaliation by 
federal regulatory agencies.
    5. Estimated cost to the Federal Government:
    Title I.--Federal agencies required to file regulatory 
flexibility analyses would incur some additional costs in 
transmitting the required documents to the SBA, but CBO does 
not expect these costs to be significant. Based on information 
from the SBA, CBO estimates that reviewing proposed rules and 
preparing analyses of their effects on small businesses would 
cost the federal government approximately $200,000 per year 
over the next five years, assuming appropriation of the 
necessary amounts.
    Title II.--We estimate that enactment of Title II of H.R. 
926 would increase the cost of issuing and reviewing 
regulations by the major federal regulatory agencies by at 
least $150 million annually. Few of the agencies that would be 
affected by this bill have had time to systematically study the 
additional costs that its implementation would impose. The 
provisions are similar to the work most agencies now conduct 
for some regulations expected to have an economic impact 
greater than $100 million annually. This estimate assumes that 
agencies will try to adhere to their current schedules for 
implementing new regulations and revising existing rules. CBO 
has insufficient information at this time to estimate the cost 
impacts of this bill on all federal agencies; however, we 
believe the major cost impacts would fall upon the agencies 
discussed below.
    EPA currently spends more than $120 million annually on 
regulatory impact analysis to support rule making efforts for 
regulations expected to have an economic impact greater than 
$100 million annually. Based on preliminary information from 
the agency, we estimate that requiring regulatory impact 
analysis for regulations with annual economic impacts of $50 
million or more would increase the agency's costs by $50 
million to $100 million annually.
    The Department of Agriculture (USDA) currently prepares 
regulatory impact assessments, environmental impact statements, 
and risk analyses for all regulatory actions affecting human 
health, safety, or the environment that are expected to result 
in annual costs to the economy of more than $100 million. Based 
on information from USDA, we estimate that lowering the 
threshold for these analyses would increase the number of 
assessments and cost/benefit studies by 50 to 100 each year. 
The additional costs associated with such assessments and 
studies range from less than $100,000 for a relatively routine 
rule to several million dollars for a major regulatory change. 
CBO estimates that most of the additional work would cost 
$150,000 to $250,000 per analysis, or an additional $10 million 
to $25 million annually for the department.
    Based on information from the Food and Drug Administration, 
CBO estimates that the bill's requirements would add less than 
$15 million annually to the agency's current spending on pre-
market regulatory activities.
    The Department of the Interior currently spends about $50 
million per year for regulatory analysis. This work is carried 
out primarily by the Office of Surface Mining, the Minerals 
Management Service, and the Bureau of Land Management as part 
of their overall regulatory enforcement activities. Lowering 
the threshold for regulatory analyses from $100 million to $50 
million would increase the number of analyses these agencies 
would have to prepare, resulting in additional annual costs of 
less than $20 million.
    Requirements in Title II of H.R. 926 also would increase 
costs for the Occupational Safety and Health Administration, 
the Mine Safety and Health Administration, and the Consumer 
Product Safety Commission. Based on information from these 
agencies, CBO estimates that enactment of the bill would result 
in total additional costs of less than $15 million per year for 
these agencies.
    The Department of Energy, Department of Transportation, and 
Department of Defense would incur additional costs to implement 
the bill. CBO cannot quantify the impact on these agencies at 
this time, but the additional costs could be significant.
    6. Comparison with spending under current law: CBO 
estimates that enactment of this bill would add at least $150 
million annually to the cost of issuing regulations.
    7. Pay-as-you-go considerations: Section 252 of the 
Balanced Budget and Emergency Deficit Control Act of 1985 sets 
up pay-as-you-go procedures for legislation affecting direct 
spending or receipts through 1998. Enactment of H.R. 926 could 
affect direct spending; therefore, pay-as-you-go procedures 
would apply to the bill.
    Enactment of Title I of H.R. 926 could result in additional 
lawsuits against the federal government requesting judicial 
review of federal agency compliance with the requirements of 
the Regulatory Flexibility Act. To the extent that the 
additional lawsuits were successful and the plaintiffs were 
awarded attorney's fees, enactment of H.R. 926 could result in 
additional direct spending because these fees are paid from the 
Claims, Judgments and Relief Acts account. CBO cannot estimate 
either the likelihood or the magnitude of the direct spending, 
because there is no basis for predicting either the outcome of 
possible litigation or the amount of potential compensation.
    8. Estimated cost to State and local governments: How 
enactment of H.R. 926 would affect the budgets of state and 
local governments is unclear. If regulations that would impose 
additional requirements on state and local governments are 
delayed by the enactment of these provisions, then costs to 
these entities would be less. It is also possible, however, 
that some regulatory actions that would otherwise provide 
relief to state and local governments could be delayed, thereby 
increasing their costs for various activities. CBO has no basis 
for predicting the direction, magnitude, or timing of such 
impacts.
    9. Estimate comparison: None.
    10. Previous CBO estimate: None.
    11. Estimate prepared by: John Webb and Mark Grabowicz 
(226-2860), and Connie Takata (226-2820).
    12. Estimate approved by: Paul N. Van de Water, Assistant 
Director for Budget Analysis.

                     Inflationary Impact Statement

    Pursuant to clause 2(l)(4) of rule XI of the Rules of the 
House of Representatives, the Committee estimates that H.R. 926 
will have no significant inflationary impact on prices and 
costs in the national economy.

                      Section-By-Section Analysis

             Title I--Strengthening Regulatory flexibility

Section 101--Judicial review

    Currently, 5 U.S.C. 611 generally bars judicial review of 
the Regulatory Flexibility Act. Judicial review is provided 
only in those limited instances when an action for judicial 
review is instituted on other grounds and only to the extent 
that the regflex analysis is to be made part of the record to 
be considered by the court in those cases. Not reviewable is an 
agency's certification that a regflex analysis is not required, 
nor is the adequacy of the analysis unless considered as a part 
of a larger challenge.
    Section 101 creates a new 5 U.S.C. 611 which in subsection 
(a)(1) grants judicial review of compliance with regflex to 
affected small entities but requires that they must petition 
within 180 days after the effective date of the final rule they 
seek to challenge. The challenge must be brought to the court 
having jurisdiction to review such rule for compliance with the 
provisions of the Administrative Procedure Act or any other 
provision of law.
    Subsection (a)(2)(A) provides that where a provision of law 
requires that an action challenging a final agency regulation 
be commenced before 180 days, a challenge based upon the RFA 
must be brought within that shorter time. Subsection (a)(2)(B) 
covers those situations where an agency has foregone the 
issuance of a regflex analysis because it was operating under 
an emergency situation described in Section 608 of the Act. In 
those cases, an affected small entity has 180 days to seek 
judicial review from the date the analysis is made available to 
the public or within a shorter period if a law requires a 
challenge be brought in such a shorter time.
    Subsection (a)(3) defines ``affected small entity'' as one 
that is or will be adversely affected by the rule. Thus, if a 
rule creates requirements that will be imposed on identifiable 
small entities at a time certain in the future, aggrieved 
entities must seek judicial review within the time period 
established in the bill.
    Subsection (a)(4) states that nothing in the subsection 
shall be construed to affect a court's authority to stay a 
rule's effective date. A court is left to determine what is 
appropriate under the circumstances, consistent with its 
authority, but should consider the availability of remedies 
described subsections (5) and (6) following.
    Subsection (5)(A) gives a court reviewing a challenge under 
the RFA the authority to order an agency to prepare a regflex 
analysis if the agency has improperly certified that a proposed 
rule would not have a significant impact on a substantial 
number of small entities. The standard that the court is to 
follow is that, on the basis of the rulemaking record, the 
certification was ``arbitrary, capricious, an abuse of 
discretion, or otherwise not in accordance with law.''
    If the agency has prepared a final regflex analysis, 
subsection (5)(B) authorizes the court to order the agency to 
take corrective action consistent with Section 604 of the RFA 
(which describes what should be in a final regflex analysis.)
    Subsection (6) grants agencies a 90-day period in which to 
take corrective action pursuant to Subsection (5). If after 
that period the agency has not complied, the court may stay the 
rule or grant such other relief as it deems appropriate.
    Subsection (7) requires the court to take due account of 
the rule of prejudicial error.
    Subsection (7)(b) provides that in an action for judicial 
review of a rule, a regflex analysis shall be considered part 
of the whole record of agency action in connection with such 
review.
    Subsection (7)(c) states that nothing in the section bars 
judicial review of any other impact statement or analysis 
required or permitted by another law.
    Subsection 101(b) provides that the amendments contained in 
subsection (a) apply only to final agency rules issued after 
the date of enactment.

Section 102--Rules commented upon by SBA Chief Counsel for Advocacy

    Section 102(a) amends 5 U.S.C. 612 by adding to it a new 
subsection (d). The new subsection attempts to bolster the role 
of the Chief Counsel for Advocacy of the Small Business 
Administration by providing in subparagraph (1) that when an 
agency promulgates rules, it must send them to the Chief 
Counsel at least 30 days prior to the publication of a general 
notice of proposed rulemaking. Subparagraph (2) gives the Chief 
Counsel fifteen days to transmit a written statement to the 
agency discussing the effect of the proposed rule on small 
entities. Subparagraph (3) provides that the Chief Counsel's 
statement, together with any response by the agency, shall be 
published in the Federal Register at the time of publication of 
the general notice of proposed rulemaking for the rule. 
Subparagraph (4) was added during committee consideration as an 
amendment offered by Representative Gekas. It provides an 
exception to the requirement that proposed rules be sent to the 
Chief Counsel prior to publication for those issued by an 
``appropriate banking agency'',\44\ the National Credit Union 
Administration or the Office of Federal Housing Enterprise 
Oversight in connection with the implementation of monetary 
policy or to ensure the safety and soundness of federally 
insured depository institutions, any affiliate of such an 
institution, credit unions, or government sponsored housing 
enterprises or to protect the Federal deposit insurance funds. 
The exception recognizes that in this narrow class of 
situation, given the volatility of financial markets and their 
sensitivity to information, it would be not be advantageous to 
provide advance notice to the Chief Counsel.
    \44\ Reference is made to the definition of that term in Section 
3(q) of the Federal Deposit Insurance Act (12 U.S.C. 1813(q)).
---------------------------------------------------------------------------

Section 103--Sense of the Congress regarding the SBA Chief Counsel for 
        Advocacy

    Section 103 merely states as the sense of Congress that the 
Chief Counsel for Advocacy of SBA should be permitted to appear 
as amicus curiae in any action or case brought in a federal 
court to review a rule. Section 612 of title 5 gives the Chief 
Counsel that authority, but it is viewed as useful in the 
context of the Chief Counsel's responsibilities and his 
position within the federal bureaucracy to restate this point.

                  title ii--regulatory impact analysis

Section 201--Definitions

    Section 201 makes two amendments to section 551 of title 5 
of the U.S. Code. First, section 201 adds a new paragraph (15) 
to section 551 defining ``major rule''. A ``major rule'' is 
generally defined to mean any rule that is likely to result in 
an annual effect on the economy of $50 million or more; or 
result in a major increase in costs for consumers, industries, 
or government agencies; or result in significant adverse 
effects on employment or productivity, or on the ability of 
U.S. companies to compete with foreign companies in export 
markets. This definition is identical to that found in previous 
Executive Order 12291 issued by President Reagan on February 
17, 1981 except for the monetary threshold of $50 million. The 
monetary threshold in the prior Reagan Order was set at $100 
million.
    The definition of a major rule is pivotal to this 
legislation since only major rules are subject to the impact 
analysis requirements mandated by this title. The determination 
of the level at which to set the monetary threshold was 
significant for the business community who supported title VII 
of H.R. 9. A major rule in H.R. 9 was defined to mean any 
proposed rulemaking which affects more than 100 persons or 
compliance with which requires the expenditure of more than $1 
million by any single person. That definition which established 
a relatively low trigger for requiring impact analysis 
attracted many comments on H.R. 9.
    Most of the witnesses who testified at the Subcommittee's 
hearing on February 6, 1995, regarding title VII of H.R. 9 
encouraged the Committee to raise the monetary threshold for 
the definition of a major rule contained in the bill. Witnesses 
suggested that defining a major rule at too low a threshold 
would require impact analysis on so many perfunctory and 
innocuous rulemakings that it would be wasteful; and indicated 
that covering too many rules would dilute OMB's enforcement 
effectiveness.\45\ However, some witnesses testifying on behalf 
of the business community emphasized the need to lower the 
definition of a major rule from the current level of $100 
million set forth in Clinton Executive Order 12286. At least 
one witness encouraged the Committee to lower the monetary 
threshold of the definition to below that contained in title 
VII.\46\ The major rule definition in this section represents a 
compromise between the competing interests, who are effected by 
the rulemaking process of the Administrative Procedure Act.
    \45\ See Hearings on H.R. 9 Before the Subcomm. on Commercial and 
Administrative Law of the House Comm. on the Judiciary, 104th Cong., 
1st Sess. (1995) (testimony of Sally Katsen, Administrator of the 
Office of Information and Regulatory Affairs, and C. Boyden Gray, 
Esquire).
    \46\ Id., (testimony of Cornelius E. Hubner).
---------------------------------------------------------------------------
    Section 201 adds another paragraph (16) to section 551 to 
clarify that the term ``director'' as used in title II means 
the director of OMB. Where the term ``director'' is used in 
title II to mean a person other than the director of OMB, its 
use is distinguished by the specific language of the relevant 
subsection which includes that term.

Section 202--Rulemaking notices for major rules

    Under current law, section 553 of title 5 of the U.S. Code 
is that provision of the APA which governs the process of 
informal rulemaking. Section 201 amends section 553 by adding a 
new subsection (f) which creates new notice procedures and adds 
new substantive requirements to the current notice provisions. 
Subsection (f) requires a new Advance Notice of Proposed 
Rulemaking to be published at least 90-days prior to the 
currently required ``general notice.'' This new requirement is 
significant in that it provides the public considerably more 
notice of an agency's impending rulemaking activities and 
allows the public to become involved in the process at a 
substantially earlier point than current practice generally 
provides. Current law, pursuant to section 553, only requires 
agencies to provide ``general notice'' to the public regarding 
informal rulemaking. Agencies have the discretion to determine 
limitations for the general notice requirement; which in 
practice, ranges between 15 to 45 days.
    Section 202 requires that the advance notice of proposed 
rulemaking include ``to the extent possible'' some of the 
information required in a regulatory impact analysis. This 
information, is to include an explanation of the necessity of 
the rule as set forth by the agency and of the specific legal 
authority upon which the rulemaking is based. Furthermore, such 
notice should include an analysis of alternative approaches 
available to the agency that could have achieved the same 
regulatory goal, together with an explanation as to why those 
alternatives were not adopted. This provision is an attempt to 
ensure that the advance notice required in this section is 
sufficiently substantive to provide meaningful guidance to the 
public regarding the purpose and legitimacy of a rulemaking, 
and to make available to the public an agency's analysis of 
potential alternative methods.
    The limiting words, ``to the extent possible'' are included 
in section 202 regarding the advance notice requirement due to 
practical considerations. It is not likely, with regard to all 
major rules, that 90-days prior to a general notice, an agency 
will be in a position to articulate all the information 
required in new subsections (i)(4)(B) and (D). However, it is 
expected that much information will be available to an agency 
at this point in time with regard to many rules; and therefore, 
despite some latitude the requirement is mandated.
    A significant provision in the new subsection (f) of the 
APA is the requirement that agencies provide a preliminary 
impact analysis of a rule at the time the general notice of 
proposed rulemaking is provided. An impact analysis is a 
significant agency review of potential costs and benefits of a 
rule including explanations of agency determinations.\47\ The 
requirement to make a preliminary impact analysis available to 
the public, at the general notice stage, is intended to give 
the public an opportunity to comment upon specific agency 
determinations and conclusions regarding a pending rulemaking. 
this new procedural requirement allows the public the 
opportunity for a substantially more detailed review of a 
potential rule during the comment period, than current law 
presently allows. The Committee is hopeful that this additional 
information will allow the public to more substantively impact 
the content of a final rule.
    \47\ See specific discussion of regulatory impact analysis--Section 
204 herein.
---------------------------------------------------------------------------
    Finally, section 202 requires agencies to include a final 
regulatory impact analysis together with the statement of basis 
and purpose for a final major rule. This provision also places 
the burden on the agency to delineate all changes in the final 
impact analysis from any information which the agency provided 
at the advance notice stage. In other words, if the agency's 
explanation of the necessity or legal authority of a rule, or 
its analysis of potential alternative approaches that could 
have been adopted has changed between the time of the advance 
notice and the time of the final rule, the agency must describe 
those changes in a way that informs the public of the 
differences.

Section 203--Hearing requirement for proposed rules; and extension of 
        comment period

    Section 203 of title II adds a new subsection (g) to 
section 553 of title 5 of the U.S. Code for the purpose of 
providing two procedural changes. First, new subsection (g) 
provides that if more than 100 interested persons acting 
individually submit requests for a hearing to an agency 
regarding any rule, then the agency shall hold such a hearing 
on the proposed rule. To the extent that a hearing on a 
proposed rule gives the public an opportunity to interact with 
an agency and express their views on agency determinations, 
this new procedural requirement would appear inconsequential. 
However, considered together with the new requirement that a 
preliminary regulatory impact analysis be provided at the 
general notice stage (as provided under section 202 herein), 
individuals who have reviewed such analysis may be able to have 
a significant impact on the direction an agency has indicated 
with regard to a proposed rulemaking. The requirement in new 
subsection (g) that the 100 interested persons ``individually 
submit requests,'' is intended to require that 100 different 
interested persons make such requests. It is not intended to 
allow, for example, 100 employees of one company to make such 
requests and mandate agency compliance. It should also be noted 
that the type of hearing contemplated by section 203 is not a 
formal agency hearing but is intended to be merely a public 
hearing, organized and noticed by the agency.\48\
    \48\ The type of hearing contemplated in this provision is not the 
type of hearing required by section 554 of title 5 of the U.S. Code.
---------------------------------------------------------------------------
    Section 203 adds a new subsection (h) to section 553 of 
title 5 of the U.S. Code. New subsection (h) provides that if 
during the 90-day period beginning on the date of the advance 
notice of proposed rulemaking, required under new subsection 
(f), more than 100 persons individually contact an agency to 
request an extension of the public comment period pursuant to 
subsection (c) of section 553 of title 5, that the agency shall 
provide an additional 30-day period; and may not adopt a rule 
until that additional 30-day period expires. The comment period 
provided for under current law, may become more significant, in 
the event that the new advance notice and preliminary impact 
analysis requirements of this legislation become law. If these 
new provisions, as contemplated, provide the public an 
opportunity for more informed participation in agency 
rulemaking, then additional time within which to prepare 
substantive comments to an agency may be advantageous. It is 
important to note, that as with subsection (g), the requirement 
that ``more than 10 persons individually contact the agency'', 
is intended to require contact by 100 different individuals; 
and is not intended to allow, for example, 100 employees of one 
company to trigger agency compliance.
    New subsection (h) amends section 553(c) of title 5 of the 
U.S. Code by placing the current language of subsection (c) 
into a new paragraph (1), and by creating a new paragraph (2). 
New paragraph (2) shall require agencies to publish in the 
Federal Register all comments submitted to the agency on a 
proposed rulemaking. This provision is intended to confirm that 
agencies are required to publish general responses to the 
substance of comments received by an agency which are relevant 
to the subject matter of a proposed rulemaking. This provision 
is not intended to require an agency to publish an individual 
response to each and every comment received by an agency 
regarding such rulemakings.

Section 204--Regulatory impact analysis

    Section 204 of title II amends section 553 of title 5 of 
the U.S. Code by adding new subsection (i). Subsection (i) 
generally requires that agencies prepare and consider a 
regulatory impact analysis for every major rule. This provision 
makes clear that agencies shall have the discretion to 
determine whether the rule is a major rule pursuant to the 
definition provided in section 201 herein. Furthermore, 
subsection (i) provides the Director of OMB with the authority 
to order a rule, not so defined, to be treated as a major rule 
or to require any set of related rules, not defined as major 
rules, to be considered together as one major rule. This 
provision is intended to grant the OMB Director considerable 
discretion in requiring any particular rule or set of related 
rules to be subject to the impact analysis requirements of this 
legislation.
    Subsection (i) creates procedures pursuant to which an 
agency must abide for the transmitting of impact analysis to 
the Director of OMB. Specifically, this provision requires a 
preliminary regulatory impact analysis to be transmitted along 
with a notice of proposed rulemaking to the Director at least 
60 days prior to publication of the proposed rulemaking. 
Furthermore, subsection (i) requires a final regulatory impact 
analysis to be transmitted to the Director together with the 
final rule at least 30-days prior to the publication of a major 
rule. These time frames are intended to give the OMB Director 
sufficient time to review these analyses prior to publication.
    Most significantly, new subsection (i)(4) sets forth the 
specific information which each preliminary and final 
regulatory impact analysis must contain. The seven analysis 
criteria set forth in (i)(4) are the result of the reduction by 
elimination and combination of the twenty-three criteria 
originally included in title VII of H.R. 9. Subparagraph 
(i)(4)(A) requires an agency to provide a description of the 
potential benefits of a rule, and to identify the individuals 
likely to receive those benefits. Subparagraph (i)(4)(B) 
requires an agency to explain the necessity and reasonableness 
of a rule and to set forth the specific legal authority upon 
which a rule is based; and requires a description of the 
condition the rule is to address. Subparagraph (i)(4)(C) 
requires an agency to describe the potential cost of a rule and 
identify the individuals most likely to bear those costs. This 
provision is intended to require an agency to identify 
individuals within the private sector who are most likely to be 
burdened by the potential costs of a rulemaking.
    Subparagraph (i)(4)(D) requires an agency to make public an 
analysis of alternative approaches, other than one chosen by 
the agency, which the agency considered but discarded in its 
determination of how best to implement a law. Subparagraph (D) 
specifically requires an analysis of market-based mechanisms 
that could have achieved the same regulatory goal, and 
explanations as to why such market-based mechanisms were not 
adopted for the rulemaking. This provision requires that an 
agency not only explain any alternative approaches that were 
considered and not adopted, but to demonstrate that the rule 
provides for the least costly approach. To some extent, an 
agency's determination of the least costly approach must be 
based on estimations; however, subparagraph (i)(4)(D) is 
intended to require an agency to make as realistic a cost 
analysis of its potential alternatives as information available 
at the time of the analysis allows.
    Subparagraph (i)(4)(E) places some burden on agencies to 
research current regulations in order to determine that a 
pending rule does not conflict with any other regulation issued 
by that agency or issued by other agencies. Subparagraph (E) 
further requires an agency to explain why such a conflict 
between two regulations should exist if it is contemplated that 
such a conflict is unavoidable.
    Subparagraph (i)(4)(F) merely requires an agency to state 
whether, based on the information available at the time the 
rule is published, the rule will require on-site inspections or 
whether individuals affected by the rule will be required to 
maintain records which will be subject to inspection. If an 
agency rulemaking contemplates on-site inspections or 
inspections of records, required by the rule, then it is 
expected that the agency should have some idea of where the on-
site inspections will be required, and who will be required to 
maintain records to be made subject to inspection. Subparagraph 
(i)(4)(F) requires the agency to, based on information 
available to it, publish that information.
    Subparagraph (i)(4)(G) requires agencies to estimate the 
cost to the agency for implementing and enforcing a rule. 
Furthermore, subparagraph (G) requires an agency to, based on 
information available to it, to determine whether it can 
implement a rule with its current level of appropriations.
    The regulatory impact analysis requirements of subsection 
(i)(4) are intended to mandate that agencies perform 
comprehensive analysis regarding many aspects of a proposed 
rule. These criteria are intended to lighten the burden of 
regulations on private citizens by requiring agencies to 
implement laws through the method which is least costly on 
individuals and businesses engaged in commerce in the United 
States. While in some respects the language of the impact 
criteria appears to place an undue burden on agencies, it is 
intended that the burden be placed upon agencies to avoid 
unnecessarily costly regulations rather than on citizens in 
complying with such regulations.
    Subsection (i) provides authority to the director of the 
OMB to enforce agency compliance with the new impact analysis 
requirements. Specifically, this provision authorizes the OMB 
director to review any preliminary or final impact analysis, 
notice of proposed rulemaking or final rule in order to 
determine whether the impact analysis requirements have been 
satisfied. Pursuant to subsection (i), an agency may not adopt 
a final regulatory impact analysis until the director has 
either approved it or commented upon it in writing.
    An agency may not publish a final impact analysis or final 
rule that is commented upon in writing by the director until 
those comments have been responded to by the agency and 
incorporated in the agency rulemaking file. This provision is 
intended to provide significant enforcement authority to the 
OMB director to require agency compliance with the impact 
analysis criteria set forth in new subsection (i). The OMB 
director is empowered to either approve an agency's impact 
analysis statement or compel an agency to conform its final 
impact analysis and/or final rule to the mandates of the 
analysis requirements.
    The Committee adopted an amendment by voice vote to create 
a 90-day deadline by which the OMB director must either approve 
or comment upon a final regulatory impact analysis or final 
rule. Pursuant to the amendment, new subsection (i) provides 
that an agency may publish a final impact analysis or final 
rule in the event that the director fails to either approve or 
respond in writing to such analysis or rule within 90-days 
after the date of request for review by the director. This 
language is intended to prevent the OMB director from vetoing a 
rule or impact analysis by simply failing to respond back to 
the agency once the director has initiated a review. The 
amendment was offered in response to testimony elicited at the 
Subcommittee hearing on February 6, 1995, wherein concerns were 
expressed that granting review authority to the OMB director 
without a time limitation could allow OMB to completely 
frustrate the agency rulemaking process.
    Finally, the Committee adopted an amendment to subsection 
(i) to preclude OMB oversight of impact analysis requirements 
for certain monetary agencies. Section 204 now provides that 
with regard to major rulemakings by the Federal Reserve Board, 
the Office of the Comptroller of the Currency, the Federal 
Deposit Insurance Corporation, the National Credit Union 
Administration, or the Office of Housing Enterprise Oversight, 
that the term ``director'', will mean the head of such agency. 
This provision is intended to require impact analysis to be 
completed by these agencies, but in order to avoid potential 
political conflicts of interest, it specifically exempts them 
from OMB review.

Section 205--Standard of clarity

    Section 205 amends section 553 of title 5 of the U.S. Code 
by creating new subsection (j). Section 205 represents a 
substantial rewrite of a more extensive provision included in 
title VII of H.R. 9. The language of section 205 is intended to 
merely encourage the head of an agency to ensure that 
regulatory impact analysis, and rules published by the agency 
are written in a simple and understandable manner that provides 
adequate notice to those affected by the rule. This provision 
does not provide authority to the director of OMB to enforce 
its requirements; and is intended to merely encourage agency 
compliance. This provision is not intended to create 
justiciable questions regarding improper grammar or sentence 
structure or to interfere with court interpretations of 
adequate notice.

Section 206--Exemptions

    Section 206 amends section 553 of title 5 of the U.S. Code 
to create a new subsection (k). Section 206 specifically 
exempts from the impact analysis requirements of this 
legislation, any regulation that responds to an emergency 
situation and any regulation for which consideration under 
these procedures would conflict with deadlines imposed by 
statute or by judicial order. This provision is intended to 
preclude impact analysis requirements from delaying the 
issuance of a regulation regarding an emergency situation. 
Furthermore, this provision is intended to allow agencies to 
forego compliance with impact analysis requirements where it is 
evident that to complete such analysis would make it impossible 
for the agency to meet a statutorily or judicially imposed 
deadline. The language of section 206 requires that regardless 
of the exemption regarding statutorily or judicially imposed 
deadlines, an agency must report to the OMB director why such 
conflict exists; and attempt to comply with the analysis 
requirements of this legislation to the extent permitted by the 
relevant statutory or judicial deadline.
    The Committee adopted an amendment by voice vote which 
exempts one other class of regulations pursuant to section 206. 
Consequently, section 206 completely exempts from the impact 
analysis process, any regulations concerned with the 
implementation of monetary policy or to ensure the safety and 
soundness of federally insured depository institutions. This 
provision is intended to exempt such regulations that are 
issued by the Federal Reserve Board, the Office of the 
Comptroller of the Currency, the Federal Deposit Insurance 
Corporation, the National Credit Union Administration or the 
Office of Federal Housing Enterprise Oversight.
    Finally, new subsection (k) provides authority to the 
director of OMB to exempt from the impact analysis 
requirements, any class or category of regulations. This 
provision is intended to allow discretion to the director of 
OMB to exempt from its review authority those rulemakings which 
it lacks the requisite expertise to competently review.

Section 207--Report

    Section 207 requires the director of OMB to submit a report 
to the Congress within 24 months of the date of enactment of 
this legislation containing an analysis of rulemaking 
procedures of Federal agencies. The report mandated by this 
section requires the OMB director to review the impact of 
federal rulemaking procedures on the regulated public and the 
regulatory process. This provision is intended to require the 
OMB director to analyze potential improvements in the 
rulemaking process which have resulted as a consequence of the 
enactment of this legislation.

                         title iii--protections

Section 301--Presidential action

    This section of the bill directs the President to prescribe 
regulations for government employees in order to insure that 
Federal laws and regulations are administered consistent with 
the principle that any person shall, in connection with their 
enforcement, be protected from abuse, reprisal, or retaliation, 
and be treated fairly, equitably, and with due regard for such 
persons' Constitutional rights. The President is given 180 days 
from the date of enactment to take such action. Authority to 
prescribe regulations for the conduct of employees in the 
executive branch is vested in the President under 5 U.S.C. 
7301.

                              Agency Views

    The Administration was represented during hearings on the 
material reflected in title I by John Spotila, General Counsel 
of the Small Business Administration. Sally Katzen, 
Administrator of the Office of Information and Regulatory 
Affairs (OIRA), testified on behalf of the Administration with 
respect to the material reflected in title II, and Deputy 
Attorney General Jamie Gorelick testified with respect to the 
material reflected in title III. In addition, letters were 
received from: Ricki Tigert Helfer, Chairman of the Federal 
Deposit Insurance Corporation; Derek J. Vander Schaaf, Deputy 
Inspector General of the Department of Defense; Steven Herman, 
Assistant Administrator of the Environmental Protection Agency; 
and Donna Shalala, Secretary of Health and Human Services, all 
with respect to title VIII of H.R. 9. The Committee made 
substantive changes to title VIII of that bill in response to 
these letters, the testimony of witnesses, and consultation 
with Members, which are reflected in title III of H.R. 926.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3 of rule XIII of the Rules of the 
House of Representatives, changes in existing law made by the 
bill, as reported, are shown as follows (existing law proposed 
to be omitted is enclosed in black brackets, new matter is 
printed in italic, existing law in which no change is proposed 
is shown in roman):

                      TITLE 5, UNITED STATES CODE

          * * * * * * *

                     PART I--THE AGENCIES GENERALLY

          * * * * * * *

                  CHAPTER 5--ADMINISTRATIVE PROCEDURE

          * * * * * * *

                SUBCHAPTER II--ADMINISTRATIVE PROCEDURE

          * * * * * * *

Sec. 551. Definitions

  For the purpose of this subchapter--
          (1) * * *
          * * * * * * *
          (13) ``agency action'' includes the whole or a part 
        of an agency rule, order, license, sanction, relief, or 
        the equivalent or denial thereof, or failure to act; 
        [and]
          (14) ``ex parte communication'' means an oral or 
        written communication not on the public record with 
        respect to which reasonable prior notice to all parties 
        is not given, but it shall not include requests for 
        status reports on any matter or proceeding covered by 
        this subchapter[.];
          (15) ``major rule'' means any rule subject to section 
        553(c) that is likely to result in--
                  (A) an annual effect on the economy of 
                $50,000,000 or more;
                  (B) a major increase in costs or prices for 
                consumers, individual industries, Federal, 
                State, or local government agencies, or 
                geographic regions, or
                  (C) significant adverse effects on 
                competition, employment, investment, 
                productivity, innovation, or on the ability of 
                United States-based enterprises to compete with 
                foreign-based enterprises in domestic and 
                export markets; and
          (16) ``Director'' means the Director of the Office of 
        Management and Budget.
          * * * * * * *

Sec. 553. Rule making

  (a) This section applies, according to the provisions 
thereof, except to the extent that there is involved--
          * * * * * * *
  (c)(1) After notice required by this section, the agency 
shall give interested persons an opportunity to participate in 
the rule making through submission of written data, views, or 
arguments with or without opportunity for oral presentation. 
After consideration of the relevant matter presented, the 
agency shall incorporate in the rules adopted a concise general 
statement of their basis and purpose. When rules are required 
by statute to be made on the record after opportunity for an 
agency hearing, sections 556 and 557 of this title apply 
instead of this subsection.
  (2) Each agency shall publish in the Federal Register, with 
each rule published under section 552(a)(1)(D), responses to 
the substance of the comments received by the agency regarding 
the rule.
          * * * * * * *
  (f)(1) Each agency shall for a proposed major rule publish in 
the Federal Register, at least 90 days before the date of 
publication of the general notice required under subsection 
(b), a notice of intent to engage in rulemaking.
  (2) A notice under paragraph (1) for a proposed major rule 
shall include, to the extent possible, the information required 
to be included in a regulatory impact analysis for the rule 
under subsection (i)(4)(B) and (D).
  (3) For a major rule proposed by an agency, the head of the 
agency shall include in a general notice under subsection (b), 
a preliminary regulatory impact analysis for the rule prepared 
in accordance with subsection (i).
  (4) For a final major rule, the agency shall include with the 
statement of basis and purpose--
          (A) a final regulatory impact analysis of the rule in 
        accordance with subsection (i); and
          (B) a clear delineation of all changes in the 
        information included in the final regulatory impact 
        analysis under subsection (i) from any such information 
        that was included in the notice for the rule under 
        subsection (b).
  (g) If more than 100 interested persons acting individually 
submit requests for a hearing to an agency regarding any rule 
proposed by the agency, the agency shall hold such a hearing on 
the proposed rule.
  (h) If during the 90-day period beginning on the date of 
publication of a notice under subsection (f) for a proposed 
major rule, or if during the period beginning on the date of 
publication or service of notice required by subsection (b) for 
a proposed rule, more than 100 persons individually contact the 
agency to request an extension of the period for making 
submissions under subsection (c) pursuant to the notice, the 
agency--
          (1) shall provide an additional 30-day period for 
        making those submissions; and
          (2) may not adopt the rule until after the additional 
        period.
  (i)(1) Each agency shall, in connection with every major 
rule, prepare, and, to the extent permitted by law, consider, a 
regulatory impact analysis. Such analysis may be combined with 
any regulatory flexibility analysis performed under sections 
603 and 604.
  (2) Each agency shall initially determine whether a rule it 
intends to propose or issue is a major rule. The Director shall 
have authority to order a rule to be treated as a major rule 
and to require any set of related rules to be considered 
together as a major rule.
  (3) Except as provided in subsection (j), agencies shall 
prepare--
          (A) a preliminary regulatory impact analysis, which 
        shall be transmitted, along with a notice of proposed 
        rulemaking, to the Director at least 60 days prior to 
        the publication of notice of proposed rulemaking, and
          (B) a final regulatory impact analysis, which shall 
        be transmitted along with the final rule at least 30 
        days prior to the publication of a major rule.
  (4) Each preliminary and final regulatory impact analysis 
shall contain the following information:
          (A) A description of the potential benefits of the 
        rule, including any beneficial effects that cannot be 
        quantified in monetary terms and the identification of 
        those likely to receive the benefits.
          (B) An explanation of the necessity, legal authority, 
        and reasonableness of the rule and a description of the 
        condition that the rule is to address.
          (C) A description of the potential costs of the rule, 
        including any adverse effects that cannot be quantified 
        in monetary terms, and the identification of those 
        likely to bear the costs.
          (D) An analysis of alternative approaches, including 
        market based mechanisms, that could substantially 
        achieve the same regulatory goal at a lower cost and an 
        explanation of the reasons why such alternative 
        approaches were not adopted, together with a 
        demonstration that the rule provides for the least 
        costly approach.
          (E) A statement that the rule does not conflict with, 
        or duplicate, any other rule or a statement of the 
        reasons why such a conflict or duplication exists.
          (F) A statement of whether the rule will require on-
        site inspections or whether persons will be required by 
        the rule to maintain any records which will be subject 
        to inspection.
          (G) An estimate of the costs to the agency for 
        implementation and enforcement of the rule and of 
        whether the agency can be reasonably expected to 
        implement the rule with the current level of 
        appropriations.
  (5)(A) the Director is authorized to review and prepare 
comments on any preliminary or final regulatory impact 
analysis, notice of proposed rulemaking, or final rule based on 
the requirements of this subsection.
  (B) Upon the request of the Director, an agency shall consult 
with the Director concerning the review of a preliminary impact 
analysis or notice of proposed rulemaking and shall refrain 
from publishing its preliminary regulatory impact analysis or 
notice of proposed rulemaking until such review is concluded. 
The Director's review may not take longer than 90 days after 
the date of the request of the Director.
  (6)(A) An agency may not adopt a major rule unless the final 
regulatory impact analysis for the rule is approved or 
commented upon in writing by the Director or by an individual 
designated by the Director for that purpose.
  (B) Upon receiving notice that the Director intends to 
comment in writing with respect to any final regulatory impact 
analysis or final rule, the agency shall refrain from 
publishing its final regulatory impact analysis or final rule 
until the agency has responded to the Director's comments and 
incorporated those comments in the agency's response in the 
rulemaking file. If the Director fails to make such comments in 
writing with respect to any final regulatory impact analysis or 
final rule within 90 days of the date the Director gives such 
notice, the agency may publish such final regulatory impact 
analysis or final rule.
  (7) Notwithstanding section 551(16), for purposes of this 
subsection with regard to any rule proposed or issued by an 
appropriate Federal banking agency (as that term is defined in 
section 3(q) of the Federal Deposit Insurance Act (12 U.S.C. 
1813(q)), the National Credit Union Administration, or the 
Office of Federal Housing Enterprise Oversight, the term 
``Director'' means the head of such agency, Administration, or 
Office.
  (j) To the extent practicable, the head of an agency shall 
seek to ensure that any proposed major rule or regulatory 
impact analysis of such a rule is written in a reasonably 
simple and understandable manner and provides adequate notice 
of the content of the rule to affected persons.
  (k)(1) The provisions of this section regarding major rules 
shall not apply to--
          (A) any regulation that responds to an emergency 
        situation if such regulation is reported to the 
        Director as soon as is practicable;
          (B) any regulation for which consideration under the 
        procedures of this section would conflict with 
        deadlines imposed by statute or by judicial order; and
          (C) any regulation proposed or issued in connection 
        with the implementation of monetary policy or to ensure 
        the safety and soundness of federally insured 
        depository institutions, any affiliate of such 
        institution, credit unions, or government sponsored 
        housing enterprises regulated by the Office of Federal 
        Housing Enterprise Oversight.
A regulation described in subparagraph (B) shall be reported to 
the Director with a brief explanation of the conflict and the 
agency, in consultation with the Director, shall, to the extent 
permitted by statutory or judicial deadlines, adhere to the 
process of this section.
  (2) The Director may in accordance with the purposes of this 
section exempt any class or category of regulations from any or 
all requirements of this section.
          * * * * * * *

            CHAPTER 6--THE ANALYSIS OF REGULATORY FUNCTIONS

          * * * * * * *

Sec. 603. Initial regulatory flexibility analysis

  (a) Whenever an agency is required by section 553 of this 
title, or any other law, to publish general notice of proposed 
rulemaking for any proposed rule, the agency shall prepare and 
make available for public comment an initial regulatory 
flexibility analysis. Such analysis shall describe the impact 
of the proposed rule on small entities. The initial regulatory 
flexibility analysis or a summary shall be published in the 
Federal Register at the time of the publication of general 
notice of proposed rulemaking for the rule. The agency shall 
transmit a copy of the initial regulatory flexibility analysis 
to the Chief Counsel for Advocacy of the Small Business 
Administration in accordance with section 612(d).
          * * * * * * *

[Sec. 611. Judicial review

  [(a) Except as otherwise provided in subsection (b), any 
determination by an agency concerning the applicability of any 
of the provisions of this chapter to any action of the agency 
shall not be subject to judicial review.
  [(b) Any regulatory flexibility analysis prepared under 
sections 603 and 604 of this title and the compliance or 
noncompliance of the agency with the provisions of this chapter 
shall not be subject to judicial review. When an action for 
judicial review of a rule is instituted, any regulatory 
flexibility analysis for such rule shall constitute part of the 
whole record of agency action in connection with the 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.]

Sec. 611. Judicial review

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

Sec. 612. Reports and intervention rights

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

    We agree that steps need to be taken to make the regulatory 
process more sensitive to the needs of small businesses. Small 
businesses lack the staff and resources to follow regulatory 
developments, are less likely to have their interests 
represented by trade associations and lobbyists, and may bear a 
disproportionate cost of complying with federal regulations. We 
support the concept of bringing greater accountability to the 
Federal agencies that deal with small businesses and taxpayers. 
Nonetheless, we continue to have significant concerns about 
Title II of the bill.
    The rulemaking process has been criticized as being overly 
prescriptive, expensive, and laden with burdensome and useless 
paperwork. Title II exacerbates these problems by creating a 
costly, time-consuming, and maze-like process that does nothing 
to streamline government or roll back red tape. In fact, Title 
II fails its own test: it is not the most cost-effective 
approach to regulatory reform.
    The most obvious problem with Title II is that it defines a 
``major rule''--the trigger for time-consuming procedural steps 
and costly analysis--as any rule with an annual effect on the 
economy of $50 million. For 20 years, beginning with the 
Administration of former President Gerald Ford, the Executive 
Branch has used $100 million as the benchmark for defining a 
``major rule,'' a standard that in today's dollars would be 
$300 to $400 million. Presidents Reagan and Bush, in fact every 
President since Ford regardless of party affiliation, set the 
threshold at $100 million. The vast majority of the witnesses, 
including C. Boyden Gray--President Bush's White House Counsel 
and current Chairman of Citizens for a Sound Economy--
recommended that the $100 million threshold be retained.
    Another problem with the definition of ``major rule'' is 
the inclusion of two other triggers drawn from Reagan Executive 
Order 12,291. It is one thing to use expansive language in a 
flexible executive order; but it is another to use the same 
language in a statute that is subject to judicial review. For 
example, what is a ``significant effect on competitiveness''? 
Does that include a regulation that makes small business more 
competitive with big business? How do you quantify an effect on 
innovation? These questions could lead to endless litigation. 
The Committee rightly eliminated consideration of indirect 
effects from Title I of the bill, but we are concerned that we 
are introducing the same concept here.
    OMB has the authority under the bill to call any rule a 
``major rule,'' so truly far-reaching regulations will not 
escape notice. However, the resources devoted to regulatory 
analysis should be commensurate with the significance of the 
decision to be made. The EPA estimates it will cost taxpayers 
up to $1.6 million for each Regulatory Impact Analysis and risk 
assessment. Do we really want to impose that kind of cost on 
the Federal Emergency Management Agency before it makes changes 
to grants for disaster victims or technical changes to flood 
maps? Or the Food and Drug Administration before it approves 
the use of a new sweetener in food? Or the Department of the 
Interior before it opens migratory bird hunting season? At a 
time when we are burdened with enormous deficits, we should 
prioritize more wisely.
    Another issue is the extended timeline for regulations. 
Title II could add two years to the length of time it takes to 
issue a regulation. The public expects government to act in a 
timely and appropriate fashion to protect health, safety, and 
the environment. Likewise, industry does not benefit from 
interminable delay--businesses will be unable to get timely 
answers on how laws are to be implemented. The timeline can and 
should be condensed, and reconsidered altogether for situations 
where there is a substantial threat to public health or safety.
    H.R. 926 is a significant improvement over the 23-step 
analysis that would have been required by H.R. 9. But we still 
have some concerns with several of the remaining steps and 
would like to continue working with the Committee to establish 
practical criteria that ensure that agencies will choose the 
approach that provides the most for the resources spent. The 
bill's ``least costly'' language does not accomplish this and 
in fact could force an agency to ignore the most cost-effective 
approach. The bill could also cause expensive, never ending 
rulemaking proceedings by forcing an agency to analyze an 
unreasonable number of hypothetical alternatives to the rule. 
We understand that is not the intent of the drafters, and hope 
to work with the Chairman to clarify this section prior to 
floor consideration.
    The Regulatory Impact Analysis, as part of the rulemaking 
record, is reviewable when the regulation itself is challenged. 
This is the appropriate time for review. To allow for separate 
review of the Regulatory Impact Analysis itself is litigation 
overkill.
    Both the Chairman and the Ranking Member were concerned 
that simply by dragging its heels, OMB could hold up urgent 
rules indefinitely. The Committee voted to eliminate the 
possibility of a pocket veto by OMB. We understand technical 
changes are necessary to give full effect to the Committee's 
decision and that the majority is willing to make the necessary 
changes.
    However, we continue to be concerned about the possibility 
of perverting the requirements of openness and accountability 
in the regulatory process by allowing ex parte and third party 
contacts to be off the record at critical stages of the 
regulation writing process. Congressional investigations over 
the years have repeatedly documented the profound impact that 
such secret contacts can have on important regulations 
affecting the public health and welfare. We believe that 
consistent with the spirit of the Administrative Procedure Act, 
records should be kept when government officials involved in 
writing regulations meet with private parties attempting to 
influence the outcome of those regulations. Justice Brandeis 
once said that the best antiseptic for government misdeeds was 
sunshine. Unfortunately, an amendment to put such ``sunshine'' 
requirements in statute was defeated.
    Finally, we commend the Committee for adopting amendments 
to preserve the necessary independence of the bank regulatory 
agencies, especially as it affects their responsibilities 
concerning the safety and soundness of the U.S. banking system 
and the conduct of monetary policy. Banking regulators must be 
able to exercise independent and expeditious judgement to 
safeguard system stability and protect the Federal deposit 
insurance funds. In order to fulfill these obligations, the 
regulators must be as free as possible from political influence 
and unnecessary bureaucratic layers that could distort or delay 
implementation of regulations directly affecting the nation's 
financial and economic stability. We are pleased that the 
Committee recognized that the procedures outlined in H.R. 926 
are not appropriate for every type of regulation.
    Carefully crafted regulations protect consumers from 
dangerous products, control immigration, establish traffic 
lanes for airplanes, quarantine areas to prevent the spread of 
pests such as the medfly, and help combat drug trafficking by 
setting standards for tracing money laundering, among other 
things. Government must be able to take these important actions 
efficiently without wasting taxpayer's money. While the 
Committee has made substantial improvements to the bill, many 
Members of the minority continue to believe that it will 
unnecessarily slow and add needless expense to the regulatory 
process. We hope the majority will continue to work with us to 
resole these problems so that we can enact legislation that 
provides remedies for the shortcomings of the regulatory 
process without undermining its strengths.

                                   Jack Reeds.
                                   Xavier Becerra.
                                   Robert Scott.
                                   Jose E. Serrano.
                                   Jerrold Nadler.
                                   Scheila Jackson-Lee.
                                   Melvin L. Watt.
                                   John Conyers, Jr.
                                   Pat Schroeder.
                                   John Bryant.
                                   Zoe Lofgren.
                                   Howard L. Berman.
                                   Barney Frank.
                                   Charles Schumer.