United States Office of Policy EPA 233-F-S9-001
Environmental Protection (2136) June 1999
Agency
4>EPA FACT SHEET
EPA Activities Related
to the Regulatory Flexibility
Act (RFA), as amended by the
Small Business Regulatory
Enforcement Fairness
Act (SBREFA)
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Why should I be
interested in
RFA/SBREFA?
What are the
major
components of
SBREFA?
What effect
does SBREFA
have on EPA's
rulemaking?
What are the
RFA/SBREFA
requirements
for rule
proposal?
EPA has an ongoing commitment to minimize the burden of our regulations on
small entities to the extent feasible while still meeting our statutory requirements
The Small Business Regulatory Enforcement Fairness Act (SBREFA), passed in
March 1996, amended the Regulatory Flexibility Act (RFA) to further the Agency's
partnerships with small entities in our rulemakings. One of the important goals of
the RFA, as amended by SBREFA, is to provide small entities with an expanded
opportunity to participate in the development of certain regulations. As a small
entity, you may be called upon to present the unique interests of your small business.
government, or non-profit in relation to a particular EPA rulemaking, your
participation in the rulemaking process will ensure that EPA hears small entities'
concerns.
Strengthens the Regulatory Flexibility Act (RFA). SBREFA amended the
Regulatory Flexibility Act to strengthen the RFA's analytical and procedural
requirements. These requirements ensure that small entities have a meaningful
opportunity to participate in the development of certain regulations that may
significantly affect them.
Increases Small Entity Compliance Assistance. SBREFA requires EPA to
answer fact-specific questions and, for certain rules, to publish small entity
compliance guides. We must also establish a policy or program to reduce or waive
civil penalties for certain violations by small entities.
Provides for Congressional Review of Final Rules. SBREFA provides for
expedited Congressional review of most final regulations, even those not affecting
small entities. This gives Congress the chance to introduce a bill to disapprove the
regulation in an expedited fashion.
SBREFA is consistent with EPA Administrator Carol Browner's ongoing efforts to
enhance stakeholder involvement, particularly by small entities, in the rulemaking
process. This involves outreach to the regulated community, state and local
governments, environmental groups, the general public, and the small entities within
these broader categories. SBREFA established certain formal procedural and
analytical requirements (outlined below) for the limited number of our rules with the
potential to impose a significant economic impact on a substantial number of small
entities. Perhaps equally important, is EPA's commitment to give specific attention to
the concerns of small entities, even in the more frequent cases where small entities
are not significantly affected.
Initial Regulatory Flexibility Analysis. Generally, the RFA requires EPA to prepare
an Initial Regulatory Flexibility Analysis (IRFA) for each proposed rule, unless the
Administrator certifies that the rule, if promulgated, will not have a significant
economic impact on a substantial number of small entities. A regulatory flexibility
analysis is a document that examines the type and number of small entities
potentially subject to the rule, recordkeeping and compliance requirements, and
significant regulatory alternatives, among other things.
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What are the
RFA/SBREFA
requirements
for final rule
promulgation?
What are the
compliance
assistance
provisions of
SBREFA?
What are the
congressional
review
provisions of
SBREFA?
Small Business Advocacy Review Panels. Under the RFA as amended by
SBREFA. if we must prepare an IRFA, then we also must convene a Small Business
Advocacy Review Panel prior to proposing a rule, unless we certify that the rule will
not impose a significant economic impact on a substantial number of small entities.
Each Panel is convened by EPA's Small Business Advocacy Chair and includes
representatives from the Small Business Administration, the Office of Management
and Budget, and the EPA office responsible for the rule A Panel conducts its own
outreach to individuals representative of small entities l.kely to be regulated by the
rule and prepares a report to the Administrator of EPA on potential ways to reduce
the potential impact of the rule on small entities. Each Panel report is part of the
rulemakir.g record for deciding the content of the proposed rule.
Final Regulatory Flexibility Analysis. For each rule that EPA promulgates and
does not certify as having no significant impact on a substantial number of small
entities, we must prepare a Final Regulatory Flexibility Analysis (FRFA). The
elements of a FRFA are similar to those of an IRFA, specified above. In addition,
RFA/SBREFA requires that each FRFA summarize the significant issues raised by
public comments on the IRFA, assess these issues and describe any changes made
in response to the public comments.
Small Entity Compliance Guide. For each final rule where RFA/SBREFA requires
preparation of a final regulatory flexibility analysis, the Agency also must issue a
Small Entity Compliance Guide providing small entities with a plain language
explanation of how to comply with the regulation.
In addition to compliance guides, SBREFA Section 223 requires EPA to design and
implement a policy or program to support the rights of small entities in enforcement
actions. It specifically provides for the reduction, and under appropriate
circumstances, the waiver of civil penalties for certain violations by small entities
where the violator demonstrates good faith efforts to corect violations and comply
with the law.
Section 213 of SBREFA requires agencies to provide informal guidance on existing
statutes and regulations to small entities and, relying to the extent practicable on
existing resources, establish a program to provide that guidance. In particular, we
must provide small entities with guidance on statutes and regulations administered by
the Agency, including the application of law to specific sets of circumstances supplied
by small entities.
Subtitle E of SBREFA, commonly known as the Congressional Review Act (CRA), is
wholly unrelated to the small entity provisions of SBREFA. Under the CRA, EPA
generally must, with a few exceptions, provide each Ho.se of Congress and the
General Accounting Office with copies of all final rules a~d their supporting aialyses.
Major rules (those imposing costs of $100 million or more annually) submitted under
this provision generally may no', take effect earlier than 60 calendar days after the
date of submission or publication in the Federal Register, whichever is later. Upon
receipt of a rule, members of Congress have a specified period of time to introduce a
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joint resolution of disapproval that will be considered under CRA's expedited review
procedure. If such a resolution is signed by the President, re rule will be invalidated
and treated as if it never took effect.
What has been
the progress to
date?
What other
small business
activities is
EPA engaged
in?
• An EPA SBREFA Task Force, organized in 1996, developed procedures for EPA
compliance with the Act. On February 5, 1997, the SBREFA Task Force issued
interim guidance for Agency use in implementation of S3REFA..
• To date, the Agency has completed 13 Small Business Advocacy Review Panels
in cooperation with SBA and OMB. In each case, the °anels recommended •
changes to the rule that would mitigate impacts on sma entities.
• EPA periodically releases a Tracking Report on Rules Affecting Small Entities'.
The Agency created this report to track rules of particular interest to small entities
(i.e., rules with the potential to affect them). This repor. also tracks the status of
rules that may be subject to certain requirements under the RFA as amended by
SBREFA (i.e., convening a Small Business Advocacy Review Panel or issuing a
Small Entity Compliance Guide). The report is available from the staff of the
Small Business Advocacy Chair (contact info is provided below).
• As required by SBREFA, in March 1998, EPA delivered to Congress reports on
SBREFA Section 223 - Penalty Reduction Program for Small Entities and
SBREFA Section 213 - Informal Guidance Program. These reports also are
available from the Office of the Small Business Advocacy Chair.
For more information on EPA's small business activities, access the U. S.
Environmental Protection Agency (EPA) gateway to environmental information and
contacts for small businesses at: http://www.epa.Qov/sma'!business/. This webpage
can provide you with information on environmental technical assistance,
environmental laws and regulations and financial assistant.
How Do I get
more
information?
If you want additional information on the RFA as amendec by SBREFA, the Agency's
small entity compliance assistance efforts, the elements of a regulatory flexibility
analysis or the provisions of the Congressional Review Act. contact the staff of the
Small Business Advocacy Chair.
EPA Small Business Advocacy Chair
Tom Kelly, Director
Office of Regulatory Management and Information
Tel: (202) 260-4001
Small Business Advocacy Chair Staff
Stuart Miles-McLean, Tel: (202) 260-8518; e-mail: miles-~3lean.stuart@epa.gov
Jennifer Greenamoyer, Tel: (202) 260-7829; e-mail: gree-amoyer.jennifer@epa.gov
Jennifer Kim, Tel: (202) 260-1045; email: kim.jennifer@e3a.gov
Patrick Easter, Tel: (202) 260-6843, email: easter.patrick^epa.gov
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U.S. SMALL BUSINESS ADMINISTRATION
WASHINGTON. O.C. 20416
Highlights of Snail Business Regulatory Enforcement
Fairness Act of 1996, Pub. L. 104-121
The Small Business Regulatory Enforcement Fairness Act of 1996
was signed by President Clinton on March 29, 1996. The law
provides new avenues for small businesses to participate in and
have access to the Federal regulatory arena. The SBREFA gives '
small businesses:
• more, influence over the development of. regulations,
• additional compliance assistance for Federal rules, and
• new mechanisms for addressing enforcement actions by
agencies.
DEVELOPMENT OF REGULATIONS
Regulatory Flexibility Act
Small businesses' most significant mechanism for influencing the
development of Federal regulations is the 1980 Regulatory
Flexibility Act (RPA). This law required agencies to take steps
to collect input from small entities on rulenakings and to
determine whether a regulation is expected to have a significant
economic impact on a substantial numbe* of small entitle*.
Moreover, Federal agencies are required to identify alternative
regulatory approaches- for small- businesses, that still meet the
objectives of the ^standard.-
• 7
-.*
However, as some- agencies failed t9 comply wittt the lav, the
public found little recourse in the court oft lav.- The Ssall
Business Regulatory Enforcement Fairness Act: corrects that by
permitting judicial review* of agencies' compliance with the
Regulatory Flexibility Kat.
Whenever a •verll business feels adversely affected or aggrieved
by an agency rulemaking for failure to comply with the RFA, the
small business may seeic review of the rule in court. Judicial
review now also applies to interpretative rulemakings promulgated
by the IRS that have information collection requirements..
*
The Small Business Administration's Office of Advocacy will step
up its involvement in the RFA because the~new lav gives the Chief
Counsel for Advocacy new authority to file amicua briefs in court
proceedings involving an agency's violation of the RFA.
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The following issues are subject to court review:
• the final regulatory flexibility analysis including the
agency's efforts to evaluate alternative regulatory
approaches and reason for rejecting or accepting them;
• the agency's effort to collect comments from snail
entities through a variety of mechanisms;
• the head of an agency's decision to certify that a rule
will not have an impact of small businesses, and the factual
basis for such certification;
• the agency's compliance with a requirement for periodic
reviews at the 10-year anniversary of every rule or the
enactment of the 198Q law, which ever is first.
The new law also updates the requirements of a final regulatory
flexibility analysis — including a description of the steps an
agency has taken to minimize the significant economic impact on
small businesses.
EPA and OSHA Regulatory Review Panels
The new law requires an extra step for the Environmental
Protection Agency (EPA) and the Occupational Health and Safety
Administration (OSHA) in the development of regulations.
Specifically, the SBREPA requires, that the agencies receive input
from impacted, small business- through-, the Office- of Advocacy
before proposed rules are published*
For each significant proposal, either EPA or OSHA convenes a
panel of employees from the agency, the SBA Office of Advocacy,
and the Office of Management and Budget to review a copy of the
draft proposed rule and related agency analyses under the
Regulatory Flexibility Aot*
> . \ .•-:'.
The panel, will collect advice from small business representatives.
and submit a report to the agency within 60 days of the convening
of the panel. The agency will then review the report, make any
appropriate revisions to the rule, and publish the proposed rule
with the panel report as part of the record.
Congressional Review
The SBREFA provides foSr congressional review, of rulemakings by
Federal agencies. Before any rule goes into effect, agencies are
required to forward the rule to Congress for an opportunity of
review. Major rules—those with a $10(X million impact on the
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economy or a major impact on an industry, government or
consumers, or those affecting competition, productivity or
international trade—eannot go into effect until congressional
review is complete, congressional review is subject to
presidential vetos. Congress nay take up to 60 session days for
review and use a variety of mechanisms to further delay
implementation.
COMPLIANCE ASSISTANCE
Compliance Guides.
The agencies must publish compliance guides for all rules with a
significant -small business impact. These guides must explain in
plain language how the firms can comply with the regulations.
If a small business is charged with noncompliance, the court
review may include the content of the small business compliance
guide in assessing the reasonableness of the proposed penalty.
Compliance Incpiiries
Agencies also are required. to establish a system for addressing
compliance inquiries from small business. Any guidance provided
by an agency will be considered as evidence of the reasonableness
of proposed penalties, fines or damages assessed against a small
entity.
Sroall Business Development Centers
To step up-compliance assistance, the SBRZFA requires the SBOCs
are used as a point of distribution for compliance assistance. A
listing of SBOCs are available from SBA offices.
ENFORCEMENT ACTIONS
Complaint Procagq
The new lav establishes a complaint process whereby small
businesses may register complaints about enforcement actions.
Ombudsman — The Small Business and Agriculture Regulatory
Enforcement Ombudsman works with each agency to receive comments
from small businesses concerning enforcement-related activities
conducted by agency personnel. The Ombudsman reports annually to
the Congress on agency enforcement efforts.'
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Regional Boards — Regional Small Business Regulatory
Fairness Boards will be established in each SBA regional office
to advise the Ombudsman on matters of concern to small business
relating to the enforcement activities of agencies. Board
nenbers will be comprised of small business owners and operators
to be appointed by the SBA Administrator.
Penalty Policy
Under the new law, each agency must establish a policy to provide
for the reduction, and under appropriate circumstances, for the
waiver of civil penalties for violations of statutory or
regulatory requirements by a small business. The language in
this section was adopted from a statement and Executive
memorandum issued by President Clinton in March 1995.
Equal Access to Justice
The SBREFA expands the ability of small businesses to recover
attorney fees under the 1980 Equal Access to Justice Act in
litigation with the government. In administrative and judicial
proceedings, if the government's demand is unreasonable when
compared to the judgement or decision, then the small business is
awarded attorney fees and other expenses related to defending
against the action. Allowable attorney fees were increased from
$75 under the current law to $125 per hour.
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PUBLIC LAW 104-121—MAR. 29, 1996
A-ll
110 STAT. 857
TITLE II— SMALL BUSINESS
REGULATORY FAIRNESS
Small Uusiiictt
"Small Business Regulatory
6EC, tOt. SHOUT TITLE.
This title may be cited as the
Enforcement Fairness Act of 1996*.
SEC, Z02. FINDINGS.
Congress finds thai-
CD » vibrant and growing small business sector is critical
to creating jobs in a dynamic economy;
(2) small businesses bear a disproportionate share of regu-
latory costs and burdens; •
(3) fundamental changes1 thai are needed in the regulatory
and enforcement cultura «t Federal agencies to make agencies
more responsive U ssull business, can be mad.fi: without com-
promising the sUtatorymiutoiitofthtagenciesv
(4) three of tha-top re«omm«ndaUons oTtha 1090; White
House Conference, oa Small Business involve referral to the
way government regulations ant developed and enforced,, and
reductions in govenunant paperwprk requirements: ^
(6) the requirements of chapter 6 of Utlst 5,JDntlfcT Elates
Code, have-, too often been ignored by government agencies,
resulting iti greater regulator; burdens oa small entitles than
necessitated by statute; and
(0) small entities should be given the opportunity to seek
Judicial review of agency actions required by chapter (T of title
6, United States Code. -. .
SEC. 203. PURPOSES. ? '
The purposes of this title are— . ' {
(I) to Implement certain recommendation* of. th*-1996
White House Conference on Small Business regarding the devel-
opment and enforcement of Federal regulations^
(2) to provide for Judicial review of chapter 6 of title 6,
United States Code;
Enforcement
Filmcit Act of
1096.
6 USC 601 note.
6 USC 601 note.
USC 601 note.
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110 STAT. 858 PUBLIC LAW 104-121—MAR. 29, 1996
(3) lo cncouruuc UIL- effective jiurlkipuliun of small
businesses in the Federal regulatory process;
(•i) to simplify the language of Federal regulations affecting
small businesses;
(G) to develop more accessible sources of information on
regulatory and reporting requirements for small businesses;
(6) to create a more cooperative regulatory environment
among agencies und small businesses that is less punitive
and more solution-oriented; und
(7) to make Federal regulators more accountable for Iheir
enforcement actions by providing small entities with a meaning-
ful opportunity for redress of excessive enforcement activities.
6usc6oinou. Subtitle A—Regulatory Compliance
Simplification
SEC. 211. DEFINITIONS.
For purposes of this subtitle—
(1) the terms "rule" and "small entity" have the same
meanings as in section 601 of title 5, United States Code;
(2) the term "agency" has the same meaning as in section
651 of title 6, United States Code; and
(3) the term "small entity compliance guide" means a docu-
ment designated as such by an agency.
SEC. 212. COMl'UANCt: GUIDES.
(a) COMPLIANCE GUIDE,—For each rule or group of related
rules for which an agency is required to prepare a final regulatory
flexibility analysis under section 604 of title 6, United States Code,
the agency shall publish one or more guides to assist small entitles
in complying with the rule, and shall designate such publications
us "small entity compliance guides". Ilia guide* shall explain the
action* a small entity la required to take to comply with a rule
or group of rules. The agency shall, In ita sole discretion, taking
Into account the subject matter of the nil* and the language of
t.relevant statute*, ensure that the guide ia written using sufficiently
plain language likely to be-understood by affected small entitles.
Agende* may prepare- separate guide* covering group* or classes
. of similarly aXfectwf *m*JV entitle* and may cooperate with associa-
tion^ of amall entitle* to develop and distribute such guide*.
(b) COMPREHENSIVE SOURCC or INFORMATION.—Agencies shall
cooperate to make available to amall entitle* through comprehensive
source* of Information, the smalt entity compliance guides and
all other available information on statutory and regulatory require-
ment* affecting amall entitle*.
(c) LIMITATION ON JUDICIAL REVIEW.—An agency1! small entity
compliance guide shall not be aubject to judicial review, except
that In any civil or administrative action against a small entity
for a violation occurring after the effective date of thja section.
the content of the small entity compliance guide'may be considered
as evidence of the reasonableness or appropriateness of any pro-
posed fines, penalties or damages.
SEC Us. INFORMAL SMALL ENTITY GUIDANCE.
(a) GENERAL.—Whenever appropriate In the Interest of admin-
istering statutes and regulation* within the jurisdiction of an agency
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PUBLIC LAW 104-121—MAR. 29, 199G i 10 STAT. 859
which regulates binall entities, it bhall be the practice of the agency
to answer inquiries by small entitles concerning information on,
and advice about, compliance with fluch statutes and regulations,
interpreting and applying the taw to specific sets of fuels supplied
by the small entity, -fn any civil or administrative action against,
a small entity, guidance given by an agency applying the law
to facts provided by the small entity may be considered as evidence
of the reasonableness or appropriateness of any proposed fines,
penalties or damages sought against such small entity.
(b) PROGRAM.—Each agency regulating the activities o.f small
entitles shall establish a program for responding to such inquiries
no later than 1 year after enactment of this section, utilizing exist-
ing functions und personnel of the agency to tho extent practicable.
(c) REPORTING.—Each agency regelating the activities of small
business shall report to the Committee on Small Husiness and
Committee on Governmental Affair* of the Senate and the Commit-
tee on Small Business and Committee on the Judiciary of the
House of Representatives no later than 2 years after the date
of the enactment of this section on the scope of the agency's pro-
gram, the number of small entities using the .program, and the
achievements of the program to assist small entity compliance
with agency regulations.
SEC SH. SERVICES OF SMALL BUSINESS I)EVKljOI*MENT CENTEUS.
(a) Section '21(cX3) of Uie Small Business Act (15 U.S.C.
G48(cX3)) is amended—
(1) in subparagraph (0), by striking "and" at the end;
(2) in subparagrapn (P), by striking tho period at the end
and inserting a semicolon; and
(3) by inserting after subparagraph (P) the following new
subparugraphs:
"(Q) providing information to small business concerns
regarding compliance with regulatory requirements; and
"(R) (developing informeUbnal publications, establishing
resource center* of reference materials, and distributing
compliance guldea published under section 312(a) of the
Small Business Regulatory Enforcement Fairness Act of
1996.". I •• . • •
(b) Nothing In this Act in any way affect* or limits the ability
of other technical assistance or extension programs to perform
or continue to perform services related to compliance assistance.
SEC. SIS. COOPERATION ON GUIDANCE. ' .
Agencies may, to the extent resources are available and where
appropriate, in cooperation with the States, develop guides that
fully integrate requirements of both Federal and State regulations
where regulations within an agency's area of Interest at the Federal
and State levels Impact small entitles. Where regulations vary
among the States, separate guides may be created for separate
States In cooperation with State agencies. .
SEO. 116. EFFECTIVE DATB, . . '"
This subtitle and the amendments made by this subtitle shall
take effect on the expiration of 90 days after the date of enactment
of this subtitle.
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110 STAT. 860 PUBLIC LAW 104-121—MAR. 29, 199G
HIM•.OUI.I..IL- Subtitle IJ—Regulatory Enforcement
Reforms
SEC. 221. DEFINITIONS.
For purposes of this subtitle—
- (1) the terms "rule" and "small entity", have the same
meanings aa in section G01 of title 5, United States Code;
(2) the term "agency" has the snine meaning as in section
551 of title 6, United States Code; und
(3) the term "small entity compliance yuide" means a docu-
ment designated aa such by an agency.
SEC. 222. SMALL BUSINESS AND AGniCtllTUUE ENFOUCEMENT
OMBUDSMAN.
The Small Business Act (15 U.S.C. 631 el scq.) is amended—
is use 631 nou. (l)by redesignating section 30 as section 31; and
(2) by inserting after section 29 the following new section.
I5USC657. -SEC. 30. OVERSIGHT OF UEGUlAtORY ENFORCEMENT.
"(a) DEFINITIONS.—For purposes of this section, the term—
"(1) 'Board* means a Regional Small Business Regulatory
Fairncaa Board established under subsection (c); and
"(2) 'Ombudsman* means the Small Business and Agri-
culture Regulatory Enforcement Ombudsman designated under
subsection (b).
"(b) SBA ENFORCEMENT OMBUDSMAN.—
"(1) Not later than 180 days after the date of enactment
of Una section, the Administrator shall designate a Small Busi-
ness und Agriculture Regulatory Enforcement Ombudsman,
who shall report directly to the Administrator, utilizing person-
nel of the Small Business Administration to the extent prac-
ticable. Other agencies ahull assist the Ombudsman and take
actions aa necessary to ensure compliance with the require-
ment* of this section. Nothing in this section is intended to
replace or diminish the activities of any Ombudsman or similar
office in any other agency.
i* "(2) TTie Ombudsman shall— -•
"(A) work with each agency with regulatory authority
over small businesses to ensure that small business eon*
cerns that receive or are subject to an audit, on-site inspec-
tion, compliance assistance effort, oe.other enforcement
related communication or contact by agency personnel are
provided with a means to comment on the enforcement
activity conducted by such personnel;
"(B) establish means to receive comments from small
business concerns regarding actions by agency employees
conducting compliance or enforcement activities with
respect to the small business concern, means to. refer com*
menta to the Inspector General of the affected agency in
the appropriate circumstances, and otherwise seek to main*
tain the Identity of the person and small business concern
making such comments on a confidential basis to the same
extent as employee identities are protected under section
7 of the Inspector General Act of 1978 (6 U.S.C. App.);
"(C) based on substantiated comments received from
email business concerns and the Boards, annually report
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PUBLIC LAW 104-121—MAR. 29, IU96 110 STAT. 861
to ()oit(;ret>3 and nlToclcd uycncica evaluating the enforce-
ment activities of agency personnel including a rating of
the responsiveness to small business of the various regional
and program offices of each agency;
"(0) coordinate and report annually on the activities,
findings and recommendations of the Boards to the-
Administrator and to the heads of affected agencies; and
"(E) provide the affected agency with un opportunity
to comment on draft reports prepared under subparugrapn
(C), und include a section of the final report in which
the affected agency may make such comments as are not
addressed by the Ombudsman in revisions to the draft.
"(c) RICCUONAL SMALL BUSINESS KEOUI.ATOUY FAIHNKSS F.s
BOARDS.-*
"(1) Nut later than 180 days after the date of enactment
of this section, the Administrator shall establish a Small Busi-
ness Regulatory Fairness Board In euch regional office of the
Small Business Administration.
"(2) Each Board established under paragraph (1) shall—
"(A) meet at least annually to advise the Ombudsman
on mutters of concern to small businesses relating to the
enforcement activities of agencies;
"CD) report to the Ombudsman on substantiated
instances of excessive, enforcement actions of agencies
against small business concerns Including any findings or
recommendations of the Board us to agency enforcement
policy or practice; and
"(C) prior to publication, provide comment on the
annual report of the Ombudsman prepared under sub*
section (b).
"(3) Bach Board shall consist of five members, who arc
owners, operators, or officers of small business concerns,
appointed by the - Administrator, after receiving the rec-
ommendations of the chair and ranking minority member of
the Committees oh Small Business of the House of Represents*
. lives and the* Senate. Not more than three of Uie Board mem-
bers shall be of the same political. party. No member shall
be an officer or employee of the Federal Government, (n either
the executive branch or the Congress.
"(4) Members of the Board shall servo at the pleasure
of the Administrator for terms of three years or less.
*X5) The Administrator shall select a chair from among
the members of the Board who shall serve at the -pleasure
of the Administrator for not more than 1 year as chair.
*(6) A majority of the members of the Board shall constitute
a quorum for the conduct of business, but a lesser number
may hold hearings.
"(d) POWKR8 OF THE BOARDS.
"(1). The Board may hold such hearings and collect such
information as appropriate for carrying out this section.
"(2) The Board may use the United States malls in the
same manner and undei^-the same conditions as other depart-
ments and:agendes^f the Federal Government.
• "(3) The -Board may accept donations of services necessary
to conduct its business, provided that the'donations and their
sources arc disclosed by the Board.
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10 STAT. 862 PUBLIC LAW 104-121—MAR. 29, 1996
"(4) Mumlicre of the Uoard shall serve without compensa-
tion, provided that, members of the Board shall be allowed
travel expenses, including per diem in lieu of subsistence, at
rotes authorized for employees of agencies under aubchapter
I of chapter 57 of title 6, United States Code, while away
from their homes or regular places of business In the perform-
ance of services for the Board.'.
SEC. Z2X RIGHTS OF SMAI.L ENTITIES IN ENFORCEMENT ACTIONS.
(a) IN GENERAL—Each agency regulating the activities of small
outiticB shull establish a policy or program within 1 year of enact-
ment of this section to provide for the reduction, and under appro-
priate circumstances for the waiver, of civil penalties for violations
of a statutory or regulatory requirement by a small entity. Under.
appropriate circumstances, an agency may consider ability to pay
in determining penalty assescments on small entities.
(b) CONDITIONS AND EXCLUSIONS.—Subject to the requirements
or limitations of other statutes, policies or programs established
under this section shujl contain conditions or exclusions which
may include, but ahull not be limited to—
(1) requiring the amull entity to correct the violation within
a reasonable correction period;
(2) limiting the applicability to violations discovered
through participation by the email entity in a compliance assist-
ance or audit program operated or supported by the agency
or a State;
(3) excluding small entities that have been subject to mul-
tiple enforcement actions by the agency;
(4) excluding violations Involving willful or criminal con-
duct;
(5) excluding violations that pose serious health, safety
or environmentaithreaU; and
(6) requiring a good faith effort to comply with the law.
(c) RETORTING.—Agencies shall report to the Committee on
Small Business and Committee on Governmental Affairs of the
Senate and the Committee on Small Business; and Committee on
Judiciary ot~the House of Representatives no later than 2 years
after the dale of enactment of this section on the scope of their
program or policy, the number or enforcement actions against small
entities that qualified or failed to qualify for the program or policy,
and the total amount of penalty reductions and waivers.
SEC. 114. EFFECTIVE DATE..
This subtitle and the amendments made by this subtitle shall
take effect on the expiration of 90 days after the dale of enactment
of this subtitle.
Subtitle C—Equal Access to Justice Act
Amendments
_k
SEC. Ml. ADMINISTRATIVE PROCEEDINGS.
(a) Section 604
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PUBLIC LAW 104-121—MAR. 29, 1996 110 STAT. 8G3
of the decision of the adjudicatlve officer und is unreasonable when
compared with such decision, under the facts and circumstances
of the case. Utu adjudicative officer shall award to the party the
fees and older expenses^related to defending against the excessive
demand, unless the party has committed a willful violation of .
law or otherwise acted In bad faith, or special circumstances make
an award unjust. Fees and expenses awarded under this paragraph
shall be paid only as a consequence of appropriations provided
In advance.".
(b) Section 604(b) of title 5, United Slates Code, is amended—
(1) in paragraph (1XA), by striking "$76" and inserting
"$125";
(2) at J,he end of paragraph (1KB), by insetting before
the semicolon "or for purposes of subsection (aX4), a small
entity as defined in section 601":
(3) at the end of paragraph (IXD), by striking Hnnd";
(4) al the end of paragraph (IKE), by striking the period
and insurling"; and"; and
(6) at the end of paragraph (1), by udding the following
new suhparagraph:
"(F) 'demand* means the express demand of the agency
which led to the adversary adjudication, but dues not include
a recitation by the agency of the maximum statutory penalty
(i) in the administrative complaint, or (ii) elsewhere when
accompanied by an express demand for a lesser amount.".
SEC, 132. JUDICIAL PUOCEEDINGS.
(a) Section 2412(dXl) of litlo 28. United Slates Code, is
amended by adding at the end the following new subparagraph:
"(D) If, in a civil action brought by the United States or a
proceeding for judicial review of an adversary adjudication described
in section 604UX4) of title 6. the demand by the United States
Is substantially in excess or the judgment finally obtained by the
United States and is unreasonable when compared with such judg-
ment, under the facts and circumstances of the case, the court
shall award to the party the feet- and other expenses related to
defending against the excessive demand, unless the party has
committed a willful violation of law or otherwise acted In bad
faith, or special circumstances make an award unjust. Fees and
expenses awarded under this subparagraph shall be paid only as
a consequence of appropriations provided in advance.".
(b) Section 2412(d) of title 2o\ United Statea Code, Is amended—
(1) in paragraph (2XA), by striking "$76" and inserting
"$125"; . '
(2) at the end of paragraph (2KB), by inserting before
the semicolon "or for purposes of subsection (dXIXD), a small
entity as defined In section 601 of title 6";
(3) at the end of paragraph (2X0). by striking "and";
(4) at the end of paragraph (2XH), by striking the period
and inserting "; and"; and
(6) at the end of paragraph (2), by. adding 4he following
new subporagraph: t.i ; .,: ,.-•.; .«- •• i •„•••...
*KD 'demand'* means:»the express.Demand,.of thei United
States which led to the adversary, .adjudlcaUonj-but *M* not
Include a recitation of the maximum statutory penalty (t) In
the complaint, or (II) elsewhere when accompanied by an
express demand for a lesser amount.*.
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110 STAT 86-4 PUBLIC LAW 104-121—MAR. 29, 1996
5 MM' :ui uuu- StC. '-IJJ. KtTDCTIVK DATE.
The amendments made by sections 331 and 332 shall apply
in civil actions and adversary adjudications commenced on or alter
the' da to of the enactment of this subtitle.
.Subtitle D—Regulatory Flexibility Act
Amendments
SEC. 241. HEGUl-ATOrtY FLLXIUU.ITY ANAI.YSLS.
(a) INITIAL REGULATORY FLEXIIIILJTY ANALYSIS.—
(1) SECTION eoa.—Section 603(a) of title 5, United States
Code, is amended—
(A) by inserting after "proposed rule", the phrase ",
or publishes a notice of proposed rulemaking for aii
Interpretative rule involving the internal revenue laws of
the United States"; and
(D) by inserting at the end of the subsection, the follow-
ing new sentence: "In the case of an interpretative rule
involving the internal revenue laws of the united States,
this chapter applies to interpretative rules published in
the Federal Register for codification in the Code of Federal
Regulations, but only to the extent that such interpretative
rules impose on small entities a collection of information
requirement.".
(2) SECTION coi.—Section G01 of title 5, United States Code,
is amended by striking "and" at the end of paragraph (5),
by striking the period at the end of paragraph (6) and inserting
"; and", and by adding at the end the following:
"(7) the term 'collection of information'—
"(A) means the obtaining, causing to be obtained, solic-
iting, or requiring the disclosure to third parties or the
public, of facts or opinions by or for an agency, regardless
of form or format, calling for either—
"(1) answers to identical Questions posed to, or
identical reporting or recordkeeplng requirements
Imposed on, 10 or more persons, other than agencies,
Instrumentalities, or employees of the United States;
or
"(ti) answers to questions posed to agencies,
instrumentalities, or employees of the United States
which are to be used for general statistical purposes;
and
"(D) shall not include a collection of information
described under section 35l8(c)(l) of title 44, United States
Code.
"(8) RECORDKEEPINQ REQUIREMENT.—The term 'record-
keeping requirement* means a requirement imposed by an
agency an persona to maintain specified records.".
(b) FINAL, REGULATORY FLEXIUIUTY ANALYSIS.—Section 604 of
title 6, United States Code, is amended—
(1) in subsection (a) to read as follows:
"(a) When an agency promulgates a final rule under section
653 of this title, after being required by that section or any other
law to publish a general notice of proposed rulemaking, or promul-
gates a Final interpretative rule involving the internal revenue
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PUBLIC LAW 104-121—MAR. 29, 1996 110 STAT. 8G5
laws of the United States us described in section GO.'Hu), the agency
shall prepare a final regulatory flexibility analysis. Each final regu-
latory flexibility analysis shall contain—
"(1) a succinct statement of the need fur, and objectives
of, the rule;
"(2) a summary of the significant issues ruised by the
public comments in response to the Initial regulatory flexibility
analysis, a summary of the assessment of the agency of aucn
issues, uud a statement of any changes mndu in the proposed
rule as a result of such comment*;
"(3) a description of and an estimate of the number of
small entities to which the rule will apply or an explanation
of why no such estimate is available;
14) a description of the projected reporting, recordkccping
and other compliance requirements of the rule, including an
estimate of the classes of small entities which will be subject
to the requirement and the type of professional skills necessary
for preparation or the report or record; and
"(6) a description of Uie steps the agency has taken to
minimize the significant economic Impact on small entities
consistent with the stated objectives of applicable statutes,
including a statement of the factual, policy, and legal reasons
for selecting the alternative adopted in tiie final rule and why
each one of the other significant alternatives to the rule consid-
ered by the agency which affect the impact on small entities
was rejected .*: and
(2) in subsection (b). by striking "at the time" and all
that follows and inserting "such analysis or a summary
thereof.".
SEC. X4*. JUDICIAL REVIEW.
Section 611 of title 6, United States Code, is amended to
read as follows:
M5 611. Judicial Review ...T
taXl) For any rule subject to this chapter, a small entity
that U adversely affected or aggrieved by final agency action is
entitled to judicial review of agency, compliance with the require-
ment* of section* 601, 604, 605(b), 608(b), and 610 In accordance
with chapter 7. Agency compliance with sections 607 and 609(a)
shall be judicially renewable In connection with, judicial review
of section 604.
"(2) Bach court having jurisdiction to review such rule for
compliance with section 663, or under any other provision of law,
shall have jurisdiction to review any claims of noncompliance with
sections 601,604,605(b), 608(b), and 610 in accordance with chapter
7. Agency compliance with sections 607 and 609(a) shall be judicially
reviewable in connection with judicial review of section 604.
"(3XA) A small entity may seek auch review during the period
beginning on the date, of final agency action and ending one year
later, except that where a provision of law requires that an action
challenging a final agency action be commenced before the expira-
tion of one year, such lesser period shall apply to an action for
judicial review under this section.
"(B) In the case where an agency delays the issuance of a
final regulatory flexibility analysis pursuant to section 6Q8(b) of
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HOST AT 8GG PUBLIC LAW 104-121 —MAR. oc>. 1996
lliid chapter, an action fur judicial review under thib section shall
be filed not luter than—
"(i) one year after the date- the analysis is made available
to the public, or
"(ii) where a provision of law requires that an action chal-
lenging a final agency regulation be commenced before the
expiration of the l-yca<- period, the number of days specified
_ In such provision of law that is after the date the analysis
- is made available tu the- public.
"(•I) In granting any relief in an action under this section,
the court shall order the agency to take corrective action consiatent
with this chapter and chapter 7, including, but not limited to—
"(A) remanding the rule to the agency, and
"(B) deferring tho enforcement of the rule against small
entities unless the court finds that continued enforcement of
the rule is in the public interest.
"(5) Nothing in this subsection shall be construed to limit
the authority of uny court to stay the effective date of any rule
or provision thereof under any other provision of law or to grant
any other relief in addition to the requirements of this section,
"(b) In an action for the judicial review of a rule, the regulatory
flexibility analysis for such rule, including an analysis prepared
or corrected pursuant to paragraph (aX4), shall constitute part
of the entire record of agency action In connection with such review.
"(c) Compliance or noncompliance by an agency with the provi-
sions of this chapter shall be subject to judicial review only in
accordance with this section.
"(d) Nothing In this section bars judicial review of any other
impact statement or similar analysis required by &ny other law
if judicial review of such statement or analysis is otherwise per-
mitted by law.".
SEC. Z<3. TECHNICAL AND CONFOIIMING AMENDMENTS.
(a) Section 605(b) of title 5, United States Code, is amended
to read as follows:
"(b) Sections G03 and G(M of this title shall not apply to any
proposed or Anal rule if the head of the agency certifies that
the rule will not, if promulgated, have a significant economic Impact
Federtl Rcgittcr, t.on a substantial number of small entities. If the head of the agency
publication. makes a certification under the preceding sentence, the agency
shall publish 4uch certification In the Federal Register at the time
or publication of general notice of proposed rulemaklng for the
rule or at the time of publication of tho final rule, along with
a statement providing the factual baals for such certification. The
agency shall provide such certification and statement to the Chief
Counsel for Advocacy of the Small Business Administration.".
(b) Section 612 of title 5, United Slates Code, is amended—
(1) in subsection (a), by striking "the committees on the
Judiciary of the Senate and the House of Representatives.
the Select Committee on Small Business of the Senate, and
the Committee on Small Business of the House of Representa-
tives" and inserting "the Committees on the Judiciary and
Small Business of the Senate and House o'f Representatives".
(2) In subsection (b), by striking "his views' with respect
to the" and inserting In lieu thereof, "his or her views with
respect to compliance with this chapter, the adequacy of the
rulemaking record with respect to small entitles ana the .
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PUBLIC LAW 104-121— MAR. 29, 1996 110 STAT. 867
StC. 244. SMALL IIUSINESS ADVOCACY UEVIBW
(a) SMALL BUSINESS OUTREACH AND iNTEnAGENCY COOUUINA-
TION. — Section 609 of title 6, United States Code, ia amended —
(1) before "techniques," by Inserting "the reasonable use
or;
(2) in puragrapji (4), after "entitles" by inserting "including
soliciting and receiving comment* over computer networks :
(3) by designating: the current text us subsection (a); ana
(4) by udding tho following:
"(b) I'vior to publication of an Initial regulatory flexibility analy-
sis which a covered agency is required to conduct by this chapter —
"(1) a covered agency snail notify the Chiof Counsel for
Advocacy of the Small Business Administration and provide
tho Chief Counsel with information on the potential impacts
of the proposed rule on small entities and the type of small
entitias that might be affected;
"(2) not later than 15 days after the datu of receipt of
the materials described in paragraph (1). tho Chief Counucl
shall identify individuals representative or affected small enti-
tles for the purpose of obtaining advice and recommendations
from thoso individuals about the potential Impacts of the pro-
posed rule;
*X3) the agency shall convene a review panel for such
rulo consisting wholly of full time Federal employees of the
office within the agency responsible for carrying out the pro-
' posed rule, the Office of Information and Regulatory Affairs
within the Office of Management and Budget, and Che Chief
Counsel;
M(4) the panel shall review any material the agency lias
prepared in connection with thia chapter, including any draft
Proposed rule, collect advice and recommendations of each
^dividual email entity representative identified by the agency
after consultation with the Chief Counsel, on issues related
to subsections 603(b), paragraphs (3), (4) and (5) and 603(c);
"(5) not later than 60 days after the date a covered agency
convenes a review panel pursuant to paragraph (3), the review
panel shall report on the comments of tho small entity rep*
reacntativea and Its findings as to issues related to subsections
603(b), paragraphs (3), (4) and (6) and 603(c), provided that
such report shall be made public as part of UM rulemaking
record; and . . , '
"(6) where appropriate, the agency shall modify Ute pro-
posed rulo, the initial regulatory, flexibility analysis or the
decision on whether an initial regulatory flexibility analysis
is required.
"(c) An agency may in its discretion apply subsection ,(b) to
rules that the agency intends to certify under subsection 605(b),
but the agency believes may have a greater than de minimis Impact
on a substantial number of small entities.
"(d) For purposes of this section, the term 'covered agency*
means the Environmental Protection Agency and the Occupations:!
Safety and Health Administration of the Department of Labor.
"(e) The Chief. Counsel for Advocacy, in consultation with the
individuals Identified In subsection (bX2). and with the Adminis-
trator of the Office of Information and Regulatory Affairs within
the Office of Management and Budget, may waive the requirements
of subsections (bX3), (bX4), and (bX5) by-including In the rulemaking
-------
10 STAT. 8G8
PUBLIC LAW 104-121—MAR. 29, 1996
5USCC09notc.
5 USC GO 1 note.
Reporti.
iL'dird u wiillcn (liuling, with teutons therefor, that lliusc require-
ments would not advance the ufi'ective participation of small entities
in the rulemaking process. For purposes of this subsection, the
factors to be considered .in making such u finding are as follows:
"(1) In developing a proposed rule, the extent to which
thu covered aguncy consulted with individuals representative
- of affected small entities with respect to the potential Impacts
of tho rule and took such concerns into consideration.
"(2) Special circumstances requiring prompt issuuncc of
the rule.
"(3) Whether the requirements of subsection (b) would pro-
vide the individuals identified in subsection (b)(2) with u
competitive advantage relative to other small entities.".
(b) SMALL BUSINESS ADVOCACY CIIAIRPEUSONS.—Not luter tha/i
30 days after the date of enactment of this Act, the head of each
covered agency that has conducted a final regulatory flexibility
analysis snail designate a small business advocacy chairperson
using existing personnel to the extent possible, to be responsible
for implementing this section and to act as permanent chair of
the agency's review panels established pursuant to this section
SEC. 245. EFFECTIVE DATE.
This subtitle shall become effective on the expiration of 90
daya after the dale of enactment of this subtitle, except that such
amendments shall not apply to interpretative rules for which a
notice of proposed rulemaking was published prior to the date
of enactment.
Subtitle E—Congressional Review
SEC. ZSI. CONGRESSIONAL HE VIEW OF AGENCY UULEMAKING.
Title 5, United States Code, is amended by inserting imme-
diately after chapter 7 the following now chapter:
"CHAPTER 8-CONGRESSIONAL REVIEW OF AGENCY
RULEMAKING
"804. CfcflnlUoni! °" * *
•80S. Judicial rtvtew.
dliipproYil proetdurv.
iftttoty, i '
•.
rtfulttory, and judicial deadlinei.
, .
. .r moo«Ury policy.
aUofcarUtnnilo.
"8801. Congressional review
"(aXIXA) Before a rule can take effect, the Federal agency
promulgating such rule shall aubmli to each House of the Congress
and to the Comptroller General a report containing —
"(I) a copy of the rule:
Ail) a concise general statement relalingto the rule, includ-
ing whether It is a major rule; and
"(Hi) the proposed effective date of the rule.
"(B) On the date of the submission of the report under subpara-
graph (A), the Federal agency promulgating the rule shall submit
to the Comptroller General and make available to each House
of Congress—
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PUBLIC LAW 104-121—MAR. 29, 1996
110 STAT. 8G9
"(i) a complete cupy of the coat-benefit analysis of the
rule, ifuny;
"(li) the agency's actions relevant to sections 003, 60-1,
605, 607, and 609;
"(Hi) the agency's actions relevant to sections 202, 203,
204, und 205 of {Vie Unfunded Mandates Reform Act of 1995;
and
"(iv) any other relevant information or requirements under
any other Act and any relevant Executive orders.
"(C) Upon receipt of a report submitted under subpurupraph
(A), each House shall provide copies of the report to the chairman
and ranking member of each standing committee with jurisdiction
under the rules of the House of Representatives or the Senate
to report a bill to amend the provision of law under which the
rule is issued.
"(2XA) Tlte Comptroller General shall provide a report on each
major rule to the committees of jurisdiction in each House of the
Congress by the end of 15 calendar days after the submisaion
or publication date as provided in section 802(b)(2). The report
of the Comptroller General shall include an assessment of the
agency's compliance with procedural steps required by paragraph
(1KB).
*XB) Federal agencies shall cooperate with the Comptroller Gen-
eral by providing information relevant to the Comptroller General's
report under subparagraph (A).
"(3) A major rule relating to a report submitted under para- Effective dau».
graph (1) shall take effect on the latest of—
"(A) the later of the date occurring 60 days after the date
on which—
"(i) the Congress receives Uie report submitted under
paragraph (1); or
111) the rule is published in the Federal Register, if Federal H«Kitur
so published; publication.
"(U) if the Congress passes a joint resolution of disapproval
described in section 802 relating to the rule, and the President
signs a veto ofeuch resolution, the earlier date— - .*
"(i) on which either House of Congress votes and fails
to override the veto of the President; or
"(II) occurring 30 session days after the date on which
the Congress received the veto and objections of the Presi-
dent; or
"(C) the date the rule would have otherwise taken effect.
if not for this section (unless a joint resolution of disapproval
under section 802 is enacted).
"(4) Except for a major rule, a rule shall lako effect aa otherwise Effective d»te.
provided by law after submission to Congress under paragraph
*X5) Notwithstanding paragraph (3), the effective date of a Effective daic«.
rule shall not be delayed by operation of this chapter beyond the
date on which either House of Congress votes to reject a joint
resolution of disapproval under section 802.
"(bXl) A rule shall not take effect (or continue), \t the Congress
enacts a joint resolution of disapproval, described under section
802, of the rule.
"(2) A rule that does not take effect (or does not continue)
under paragraph (1) may not be reissued in substantially the same
form, and a new rule that is substantially the same as such a
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110 STAT. 870
PUBLIC LAW 101-121—MAR. 29. 1996
Federil Rcgiiter.
publicitlon.
E(T«tlve
rule may mil lie issued, unless Uie reissued or new rule is specifi-
cally authorized by a law enacted after the date of the joint resolu-
tion disapproving the original rule.
"(cXl) Notwithstanding any other provision of Ihis section
(except subject to paragraph (3)), a rule that would not take effect
by_reason of subsection (aX3) may take effect, If the President
mo"kes a determination tinder paragraph (2) and submits written
notice (if such determination to the Congress.
"(2) Paragraph (1) applies to a determination made by the
President by Executive order that the rule should lake effect
because such rule is—
"(A) necessary because of an imminent threat to health
or safety or other emergency;
"(D) necessary for the enforcement of criminal laws;
"(C) necessary for national security; or
"(D) issued pursuant to any statute implementing an inter-
national trade agreement.
"(3) An exerciso by the President of the authority under this
subsection shall have no effect on the procedures under section
802 or the effect of a joint resolution of disapproval under this
section.
"(dXD In addition in the opportunity for review otherwise pro-
vided under this chapter, in the case of uny rule for which a
report was submitted in accordance with subsection (aXIXA) during
the period beginning on the date occurring—
"(A) In the case of the Senate, 60 session days, or
"(B) in the case of the House of Representatives, 60 legisla-
tive days,
before the date the Congress adjourns a session of Congress through
the date on which the same or succeeding Congress first convenes
its next session, section 802 shall apply to such rule in the succeed-
ing session of Congress.
"(2)(A) In applying section 802 for purposes of such additional
review, a rule described under paragraph (1) shall be treated as
though—
"(1) such rulo were published in the Federal Regisjlcr (as
'" a rule that shall take effect) on—
"(I) In Uie caw of the Senate, the 15th session day,
or
"(II) In the caso of the House of Representatives, the
15th legislative day,
after the succeeding session of Congress first convenes; and
Ml) a report on such rule were submitted to Congress
under subsection (aXl) oh such date.
"(B) Nothing In this paragraph shall be construed to affect
the requirement under subsection (aXD that a report shall be
submitted to Congress before a rule can take effect.
"(3) A rule described under paragraph (1) shall take effect
as otherwise provided by law (including other subsections of this
section).
"(eXl) For purposes of this subsection, section 802 shall also
apply to any major rule promulgated between March 1, 1096, and
the date of the enactment of this chapter.
"(2) In applying section 802 for purposes of Congressional
review, a rule described under paragraph (1) shall be treated as
though*-
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PUBLIC LAW 104-121—MAR. 29, 1996
110 STAT. 871
"(A) bucli rule wcru published in the Federal Uegialer on l\- a report on such rule wore submitted to Congress
under subsection (aXD on such date.
"(3) The effectiveness of a rule described under paragraph (1)
shall be as otherwise provided by law, unless the rule is made
of no force or effect under section 802.
"(0 Any rule that takes effect und later is made of no force
or effect by enactment of a Joint resolution under section 802 shall
be treated as though such rule had never taken effect.
"(g) If the Congress does nol enact a joint resolution of dis-
approval under section 802 respecting a rule, no court or agency
may infer any intent of the Congress from any action or inaction
of the Congress with regnrd to such rule, related statute, or joint
resolution of disapproval.
"§ 802. Congressional disapproval procedure
"(a) For purposes of this section, the term 'joint resolution'
means only a joint resolution introduced in the period beginning
on the date on which the report referred to In section 80l(aXl)(A)
is received by Congress and ending 60 days thereafter (excluding
days either Blouse of Congress is adjourned for more than 3 days
during a session of Congress), the matter after the resolving clause
of which is na follows: That Congress disapproves the rule submit-
ted by the relating to , and such rule shall have no
force or effect.' (The blank spaces being appropriately filled in).
"(bXU A joint resolution described in subsection (a) shall be
referred to the committees In each House of Congress with jurisdic-
tion.
*<2) For purposes of this section, the term 'submission or
publication date* means the later of the date on which—
"(A) the Congress receives the report submitted under sec-
tion 80 KaXl); or
"IB) the rule Is published Wv the Federal Register, if so
published. v
*te) In the Senate, if the committee to which Is referred a
Joint resolution described in subsection (a) has net reported such
joint resolution (or an identical joint resolution) at the end of
20 calendar days after the submission or publication date defined
under subsection (bX2). such committee may be discharged from
further consideration of such joint resolution upon a petition sup*
ported in writing by 30 Members of the Senate, and such joint
resolution shall be placed on the calendar. .
*XdXl) In the Senate, when the committee to which a joint
resolution la referred has reported, or when a committee Is dis-
charged (under subsection (c)i from further consideration of a joint
resolution described In subsection (a), It Is at any time thereafter
In order (even though a previous motion to the same effect has
been disagreed to) for a motion to proceed to the consideration
of the joint resolution, and all points of order against the joint
resolution (and against consideration of the joint resolution) are
waived. The motion Is not subject to amendment, or to a motion.
to postpone, or to a motion to proceed to the consideration of
other business. A motion to reconsider the vote by which the motion
is agreed to or disagreed to shall not be In order. If a motion
to proceed to the consideration of the joint resolution Is agreed
Federal Register.
publication.
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110 STAT 87'J PUBLIC LAW 104-121—MAR. ^. 199b
In, (.lie joint ('(.'solution bliull remain the unfinished ubinesb of
llio Senate until disposed of.
"(2) In the Senate, debate on the joint resolution, and on all
deb;it;ible motions nnd appeals in connection therewith, shall be
limited to not more thun 10 hours, which shall be divided equally
between Ihoso favoring nnd thoao opposing the joint resolution.
A motion further to limit debate is In order and not debatable.
Aicainendnic-nt lo, or a motion to postpone, or a motion to proceed
(o the consideration of other business, or a motion to recommit
Ihu joint resolution is not in order.
"(3) In the Senute, immediately following the conclusion of
the debute on u joint resolution described in subsection (a), uud
n single quorum call ut the conclusion of the debate if requested
in accordance with the nilea of the Senate, the vote on final passage,
of the joint resolution shall occur.
"(4) Appeals from the decisions of the Chuir relating to the
application of the rules of the Senate to the procedure relating
to u joint resolution described in subsection (u) shall be decided
without debate.
"(e) In the Senate the procedure specified in subsection (c)
or (d) shall not apply to the consideration of a joint resolution
respecting u rule—
"(1) after the expiration of the GO session days beginning
with (he applicable submission or publication date, or
"(2) if the report under section SOKaXIXA) was submitted
during the period referred to (n section BOl(dXl), after the
expiration of the 60 session days beginning on the 15th session
day after tho succeeding session of Congress first convenes.
M(0 If, before the passage by one House of a joint resolution
of that House described in subsection (a), that House receives
from the other House a joint resolution described in subsection
(a), then the following procedures shall apply:
"(1) The joint resolution of the other House shall not be
referred to a committee.
"(2) With respect to a joint resolution described in sub-
section (a) of the House receiving the joint resolution—
"(A) the procedure in that House shaJl be the same
as if no joint resolution had been received from the other
House; but
"(B) the vote on final passage shall be on the joint
resolution of the other House.
"(g) Thla section is enacted by Congress—
"(1) as an exercise of the ruiemaking power of the Senate
and House of Representatives, respectively, and as such it
is deemed u part of the rules of each House, respectively,
but applicable only with respect to the procedure to be followed
hi that House in the case of a joint resolution described in
subsection (a), and it supersedes other rules only to the extent
that it is inconsistent with such rules; and
"(2) with full recognition of the constitutional right of either
House to change the rules (so far as relating to the procedure
of that House) at any time, in the same manner, and to the
same extent as in the case of any other rule of that House.
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PUBLIC LAW 104-121—MAR. 29, 1996 110 STAT. 873
"{803. Special rule on statutory, rctfululory, and judicial
deadlines
"(a) In the caae of any deadline for, relating to, or involving
any rule which does not take effect (or the effectiveness of which
is terminated) because of enactment of a joint resolution under
section 802, that deadline is extended until Ihu date 1 year after
the dale of enactment of the joint resolution. Nothing in this sub* '
section shall be construed to affect a deadline merely by reason
of the uostpouement of a rule's effective date under section 801(a).
"(b) The term 'deadline' meuns any dutu certain for fulfilling
any obligation or exercising any authority established by or under
any Federal statute or regulation, or by or under any court order
implementing any Federal statute or regulation.
"5 804. Definitions
"For purposes of this chapter—
"(1) The term 'Federal agency* means any agency as that
term is defined In section 651(1).
"(2) The term "major rule' means any rule that the Adminis-
trator of the Office of Information and Regulatory Affairs of
the Office of Management and Budget finds hoa resulted in
or is likely to result m—
•XA) an annual effect on the economy of $ 100,000,000
or more;
"(D) a major increase in costs or prices for consumers,
Individual industries, Federal, State, or local government
agencies, or geographic regions; or
"(C) significant advene effects on competition, employ*
mcnt, investment, productivity, innovation, or on the ability
of United States-based enterprises to compete with foreign*
based enterprises in domestic and export markets.
The term does not include any rule promulgated under the
Telecommunications Act of 1996 and the amendments made
by that Act
"(3) The term 'rule' has the meaning given such term
infection 551.except that such term does not include—
"(A) any rule of particular applicability, including a
rule that approves or prescribes for the future rates, wages,
prices, services, or allowances therefor, corporate or finan-
cial structures, reorganitations, mergers, or acquisitions
thereof, or accounting practices or disclosures bearing on
any of the foregoing:
"(B) any rule relating to agency management or person-
nel; or
"(C) any rule of agency organization, procedure, or
practice that doea not substantially affect the rights or
obligations of non-agency parties.
Mfi 805. Judicial review
"No determination, finding, action, or omission under this chap-
ter shall be subject to judicial review.
"6 808. Applicability} severablllty
"(a) This chapter shall apply notwithstanding any other provi-
sion of law.
M(b) If any provision of this chapter or the application of any
provision of this chapter to any person or circumstance, is held
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110 ST. AT. 874 PUBLIC LAW 104-121—MAR. 29, 199G
invalid, the application of such provision to other persons or cir-
cumstances, and the remainder ot this chapter, shall not be affected
thereby.
"§ 807. Exemption for monetary policy
"Nothing In this chapter shall apply to rules that concern
monetary policy proposed or Implemented by the Board of Governors
of the Federal Reserve System or the Federal Open Market Commit-
tee.
"§ 808. Effective date of certain rules
. "Notwithstanding section 801—
"(1) any rule that establishes, modifies, opens, closes, or
conducts a regulatory program for a commercial, recreational,
or subsistence activity related to hunting, fishing, or camping,
or
"(2) any rule which an agency for good cause finds (und
incorporates the finding and a Uriel statement of reasons there-
for in the rule issued) that notice and public procedure thereon
arc impracticable, unnecessary, or contrary to the public
interest,
shall take effect at such time us the Federal agency promulgating
the rule determines.".
SEC. 252. EFFECTIVE DATE.
5 USC eoi note. The amendment made by section 351 shall take effect on the
dute of enactment of this Act.
SEC. 253. TECHNICAL AMENDMENT.
The table of chapters for part ( of title 6, United States Code,
is amended by inserting Immediately after the item relating to
chanter 7 the following:
"8. Conffreiilonal Review of Agency Rulcmoklni; 801".
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STAT !!64 PUBLIC LAW 96-354-SEPT 19.1980
Public Law 96-354 /V» No vAlej* \6u P/
96th Congress / ,
An Act /Ma/- L 7*? i/-<-
' -"c>> £. / KfCj/
•* '* '*"' To «m««W UtU J. Unitr* Sum Cod«. to imprvw F*««TU ruktutm* br emun* / ' ' t
•dum id tiulvw ih« «*uU£Ui rratNun* for rnh*nn<
"See, (JO. Ptnodjc rrmw tt nla.
-S«c (M. JMbcuJ rrmw
~S«t (it IUf«rw ua Mi*nv*tM«
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"? Ml. Dtfinuloni iLSCJo.
"For purpo*« of thu chapter—
"(1) the Krm agency me*ru in agency is defined in tecuon
SSKUofthuutle: ' suscsj.
"t2l the term 'rule1 means any rule for which the agency
publuhe* • p>nerii notice of proposed rulemaking punutnt to
KCUOQ te3ftji of this title, or my other law. including any rule of ' '-'^ ii3
general applicability governing Federal grunts to Slate and local
rov*rnmenu for which th* agency provide* an opportunity for
notice and public comment, except tnat the urm rule1 doe* not
Include a rule of particular applicability relating to rate*, wagw,
carporau of- financial structures or reorganization* thereof.
prices, facilities appliances, service*, or allowance* therefor or to
valuations, cost* or accounting, or practices relating to ruch
rate*, wages, itructures, prices, appliances, tennces, or
allow meet;
"t3l Uu terra 'small business' ha* the same mfaning as the
lerrn 'itnail buainesa concern' under aecuon 3 of the Small
Buiines* Act, unles* an «£tacy. alUr coniuluUoa with the '* use u:
Offlct of Advocacy of th« omall Buiineu Adminiitratioo and
after opportunity for public comment, erublishn one or more
'definition* of lucn Urm which art appropriate to the activities of
th« axtncy and publishes tuch oefuutiooU) la the Fedenl
Reeutcn
'no the unn 'email organization' mean* any not-for-profit
enterprise which la independently owned and operated and u not
dominant in iu field, unless an agency establishes, after opportu-
nity for public comment, one or more definition* of tucn Urm
which art appropriate to the activities of the agency and pub-
luhe* tuch deanitioaU) in the Federal Recuter,
"(51 the term 'imall (OTenunenul Jurisdiction' means covcrn-
menu of cities, counties, towns, umships, villazes, tchool dis-
tricts, or rpecial difthcts. with a population of less than fifty
thousand, unless an agency establish**, after opportunity for
public comment, one or more definitions, of such Urm which are
appropruu to the activities of the agency and which arc baaed
on tuch facton as location la rural or rpanely populated areas or
limited revenues due to the population of tuch jurisdiction, and
publishes such definitionU) In the Federal Register. •**&_
"161 the urtn 'imail entity* shall have the tame meaning u the
Unas 'imtil business', 'null organization' and 'small govern-
mental jurisdiction' defined in paragraphs <3u (4) and (5) of this
section; ex* <<
"(7) the term 'collection of Information*—
"(A) meant the obtaining, causing to be obtained, solic-
iting, or requiring the disclosure to third parties or the
public, of facts or opinions by or for an agency, regardless
of form or format, calling for either—
% "(I) answers to identical Questions posed to, or
Identical reporting or recordkeeping requirements
imposed on, 10 or more persons, other than agencies.
instrumentalities, or employees of the United States;
or .
til) answers to questions posed to agencies.
Instrumentalities, or employees of the United States
which are to be used for general statistical purposes;
and
, "\B) shall not include a collection of information
described under section 3518(cKU of title 44. United States
Code.
"(8) RECORDKEEPING REQUIREMENT.—The term 'record-
keeping requirement' means a requirement Imposed by an
agency on persons to maintain specified records."
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Fr*«r»l
Trtnamuul 10
SBA
Noun
"(al During ihe months of October *nd April of each yt*r. each
agency thill publish in the Federal Reguver t regulatory flexibility
igtnda which thill contain—
-U i a bnef description of the subject area of any rule which the
agency expect* to propose or promulgate which is likely to have •
iignificaat economic impact oa a subctantial number of tmill
entities;
"\2\ a tumraary of the nature of any such rule under considera-
tion for each subject area listed in the agenda pursuant to
paragraph ill the objective* and legal baaia for the issuance of
the rule, and an approximate schedule for completing action'on
any rule for which the agency has issued a general notice of
proposed rulemaking. and
"(3) the name and telephone number of an agency official
knowledgeable concerning the Items listed In paragraph (1).
"fbi Each regulatory flexibility agenda shall be transmitted to the
Chief Counsel for Advocacy of the Small Business Administration for
comment, if any.
*tc) Each agency (Hall endeavor to provide notice of each regula-
tory flexibility agenda to small entities or their representatives
through direct notification or publication of the agenda In publica-
tions likely to be obtained by such small entities aad shall invite
comments upon each subject area on the agenda.
"tdi NoOun* in this section precludes an agtncy from considering
or acting on any matter not included in a regulatory flexibility
agenda, or requires aa agency to consider or act on any matter lined
in such agenda.
S CSC M}
Public nmm«nt
iCSCil)
SBA
•{603. Initial regulatory flexibility analysis
"u> Whenever an trency u required by section 553 of this title, or
aay other law, to publish general notice of proposed rulemaking for
any proposed rule.
or publishes a notice of proposed rulemaking Tor an
interpretative rule involving the internal revenue laws of
the United States^
UM agency shall prepare and make available for
public comment aa initial retaliatory flexibility analysis. Such analy-
sis shall describe the impact of the proposed rule oa small entities.
The initial regulatory flexibility analytij or a summarr shall be
published in the Federal Refiner at the time of the publication of
general notice of proposed rulemaking for the rule. The agtncy shall
transmit a copy of the initial regulatory flexibility taalytii u the
Chief Couaaal for Advocacy of the Small Business Administration.
"In the case of an Interpretative rule
involving the internal revenue laws of the United States,
this chapter applies to interpretative rules published to
the Federal Register for codification in the Code of Federal
Regulations, but only to the extent that such Interpretative
rules impost on small entities a collection of information
requirement."
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f £03
"fbi Each initial rrgMlaiory flexibility anaJyia required under this
*«cuon shall contain—
"(i)» description of the reaacaj wny action by the ifency u
"(2) a ruccinct statement of the objective* of. and legal b«ju
for. the proposed rule;
"(3) 4 description of and. where feasible. an estimate of the
number of small entities 10 which the proposed rule will apply.
"«i * description of the projected rtporunc. recordke«ping and
other complianc* requirements of the proposed rule, including
an estimate of the clauea of until entities which will be subject
lo the requirement and the type of professional ikilli nece*iary
for preparation of the repon or record;
"<5f~tn identification, to the extent practicable, of all relevant
Federal rule* which may duplicate, overlap or conflict with the
proposed rule.
"(c) Each initial regulatory flexibility analysis shall also conuin a
description of any significant alurnauves to the proposed rule which
accomplish the stated objective* of applicable statutes and which
minimize any significant economic impact of the proposed rule on
imall entities. Comment with the rtated objectives of applicable
statute*, the analyiu shall discuss significant alternatives such as—
'XI) the establishment of differing compliance or reporting
requirement* or timetable* that take into account the resources
available to tmall entities;
"t2l the clarification, consolidation, or simplification of compli-
ance and reporting requirement* under the rule for such small
entities:
"(3 1 the use of performance rather than design standards: and
"'<) an exemption from coverage of the rule, or any part
thereof, for such small entities.
"j <04. Final regulatory flexibility analysis i i_SC KM
"(i) When an agency promulgate! a final rule under section
553 of this title, after being required by that section or any other
law to publish a general notice of proposed rulemaking, or promul-
gates a final interpretative rule involving the internal revenue
laws of the United States as described in section 603(a), the agency
shall prepare a final regulatory flexibility analysis. Each final regu-
latory flexibility analysis shall contain—
"(1) a succinct statement of the need for, and objectives
of, the rule;
*{2) a summary of the significant issues raised by the
public comments in response to the initial regulatory flexibility
analysis, a summary of the assessment of the agency of such
Issues, and a statement of any changes made in the proposed
tuleas a result of such comments;
"(3) a description of and an estimate of the number of
small entities to which the rule will apply or an explanation
of why no such estimate la available;
14) a description of the projected reporting, recordkeeping
and other compliance requirements of the rule, including an
estimate of the classes of small entitles which will be subject
to the requirement and the type of professional skills necessary
for preparation of the report or record; and
"(5) a description of the stens the agency has taken to
minimize the significant economic impact on small entities
consistent with the stated objectives of applicable statutes,
including a statement of the factual, policy, and legal reasons
for selecting the alternative adopted in the final rule .and whv
each one of the other significant alternatives to the rule consid-
ered by the agency which affect the impact on small entities
rejected."; and
"fbl The agency shall make copies of the fuiaTrefulatonr flexibility
analysis available to members of the public and shall publish in the
Federal teciiur ,uch analys(i or a , ummary thereof.
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"5 <05. Avoidance of duplicate or unnecmary tnalyttt . t.SC -•
"(tl Any Federal Mency m«y perform the »nalyt« required by
i*cuoru 602. 603. and 60< of thu mle in comunction with or u a pan
of any other agenda Or s*aJy»u required by any other law if iucn
other an*Jy*u satisfies the provuions of such section*.
•fb) Sections 603 and 604 of this title shall not apply to any
proposed or final rule if the head of the agency certifies that
the rule will not, if promulgated, have a significant economic Impact
on a substantial number of small entities. If the head of the agency
makes a certification under the preceding sentence, the agency
shall publish such certification in the Federal Register at the time
of publication of general notice of proposed rulemaking for the
rule or at the time of publication of the final rule, along with
a statement providing the factual basis for such certification. The
agency shall provide such certification and statement to the Chief
Counsel for Advocacy of the Small Business Administration.".
"ici In order to avoid duplicative action, an agency nay consider a
• series of closely related rules as one rule for the purposes of section*
602.603.604 and 610 of this title.
i esc «•» -§ 606. Effect on other law
The requirements of sections 603 and 604 of this title do not alter
in any manner standards otherwise applicable by law to agency
action. ,
; esc w: -5 JOT. Preparation of analyses
"In complying with the provuions of sections 603 and 604 of this
title, an agency may provide either a quantifiable or numerical
description of the effects of a proposed rule or alternatives to the
proposed rule, or more general descriptive statements if quantifica-
tion is not practicable or reliable.
: csc *- -j gof. Procedure for waiver or delay of completion
Pub:xtiirfi m ~(ti An agency head may waive or delay the completion of some or
pZjI*'r all of th* requirement* of section 603 of this title by publishing in the
^ Federal Register, not later than the date of publication of the final
rule, a written finding, with reasons therefor, that the final rule is
being promulgated in response to an emergency that makes compli-
ance or timely compliance with the provuions of section 603 of this
title impracticable.
«
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iuscw) -$6Q9. Procedure* for r"fc
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o
i
"(c) An agency may in its discretion apply subsection (b> to
rules that the agency intends to certify under subsection 605(b>.
but the agency believes may have a greater than de minimis impact
on a substantial number of small entities.
"(d) For purposes °f this section, the term 'covered agency'
means the Environmental Protection Agency and the Occupational
Safety and Health Administration of the Department of Labor.
"(t) The Chief Counsel for Advocacy, in consultation with the
Individuals-identified In subsection (bX2). and with the Adminis-
trator of the Office of Information and Regulatory Affairs within
the Office of Management and Budget, may waive the requirements
of subsections (bX3). (bX4). and (bX5) bv includln? in the rulemakinp
record a written finding, with reasons therefor, that those require-
ments would not advance the effective participation of small entities
in the rulemaking process. For purposes of this subsection, the
factors to be considered in making such a finding are as follows:
"(1) In developing a proposed rule, the extent to which
the covered agency consulted. with individuals representative
of affected small entities with respect to the potential impacts
of the rule and took such concerns into consideration.
"(2) Special circumstances requiring prompt Issuance of
the rule.
"(3) Whether the requirements of subsection (b) would pro-
vide the individuals identified in subsection (bX2) with a
competitive advantage relative to other small entitles.".
(bl SMALL BUSINESS ADVOCACY CHAIRPERSONS.—Not later than
30 days after the date of enactment of this Act, the head of each
covered agency that has conducted a final regulatory flexibility
analysis shall designate a small business advocacy chairperson
using existing personnel to the extent possible, to be responsible
for implementing this section and to act as permanent chair of
the agency's review panels established pursuant to this section.
S CSC
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"5611. Judicial review
"(aXl) For any rule subject to this chapter, a small entity
that is adversely affected or aggrieved by final agency action is
entitled to judicial review of agency compliance with the require-
ments of sections 601, 604. 605(b), 608(b). and 610 In accordance
with chapter 7. Agency compliance with sections 607 and 609(a)
shall be judicially reviewable In connection with judicial review
of section 604.
"(2) Each court having jurisdiction to review such rule for
compliance with section 553. or under any other provision of law,
shall have jurisdiction to review any claims of noncompliance with
sections 601. 604. 605(b), 608(b). and 610 in accordance with chapter
7. Agency compliance with sections 607 und 609(a) shall be judicially
reviewable in connection with judicial review of section 604.
"(3XA) A small entity may seek such review during the period
beginning on the date of final agency action and ending one year
later, except that where a provision of law requires that an action
challenging a final agency action be commenced before the expira-
tion of one year, such lesser period shall apply to an action for
judicial review under thi* section.
"(B) In the case where an agency delays the issuance of a
final regulatory flexibility analysis pursuant to section 608(b) of
this chapter, an action for judicial review under this section shall
be filed not later than—
"(1) one year after the date the analysis is made available
to the public, or
"(U) where a provision of law requires that an action chal-
lenging a final agency regulation be commenced before the
expiration of the 1-year period, the number of days specified
in such provision of law that is after the date the analysis
is made available to the public
"(4) In granting any relief in an action under this section,
the court shall order the agency to take corrective action consistent
with this chapter and chapter 7, Including, but not limited to—
"(A) remanding the rule to the agency, and
"(B) deferring the enforcement of the rule against small
entities unless the court finds that continued enforcement of
the rule Is in the public interest.
ft5) Nothing in this subsection shall be construed to limit
the authority of any court to stay the effective, date of any rule
or provision thereof under any other provision of law or to grant
any other relief in addition to the requirements of this section.
"(b) In an action for the judicial review of a rule, the regulatory
flexibility analysis for such rule, including an analysis prepared
or corrected pursuant to paragraph (aX4), shall constitute part
or the entire record of agency action in connection with such review.
"to Compliance or noncompliance by an agency with the provi-
sions of this chapter shall be subject to judicial review only in
accordance with this section.
"(d) 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 per-
mitted by law.".
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to "J<12. R*poru and int«r»enUon ri(hu
? "ia) The Chief Coun*el for Advocacy of the Small Buimess Admin-
LStrition ihall monitor agency compliance with thi» chapter and ihall
l CSC 112 report at leut annually thereon to the Pretident and w
'the Committees on the Judiciary and
Small Business ot the Senate and House of Representatives".
"fbl The Chief Counsel for Advocacy o'f the Small Buiine*i Admin-
istration u authorized to appear u aaucui curue in any acuon
brought in a court of the United St*t*a to renew a rule. In any tuch
acuon. the Chief Counsel u authorize u> pr««ni .Wf Qf hef ^
respect to compliance with this chapter, the adeauacy of the
rulemaking record with resp«ct to small entitles and the'
effect of the rule on imall entities.
"icl A coun of the United Sut« ihall ?rtnt the application of the
Chief Counsel for Advocacy of the Small Businesi Administration to
appear in any such action for the purposes described in iub*ecuon
Oji.".
TUU iUllilW shall become effective on the expiration of 90
days after the date of enactment of this subtitle, except that such
amendment* shall not apply to interpretative rules for which a
notice of proposed rulemaking was published prior to the date
of enactment.
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