TITLE III--SMALL BUSINESS REGULATORY FAIRNESS
SEC. 301. SHORT TITLE.
This title may be cited as the `Small Business Regulatory
Enforcement Fairness Act of 1996'.
SEC. 302. FINDINGS.
Congress finds that--
(1) a vibrant and growing small business sector is critical
to creating jobs in a dynamic economy;
(2) small businesses bear a disproportionate share of regulatory
costs and burdens;
(3) fundamental changes that are needed in the regulatory
and enforcement culture of Federal agencies to make agencies
more responsive to small business can be made without compromising
the statutory missions of the agencies;
(4) three of the top recommendations of the 1995 White House
Conference on Small Business involve reforms to the way government
regulations are developed and enforced, and reductions in
government paperwork requirements;
(5) the requirements of chapter 6 of title 5, United States
Code, have too often been ignored by government agencies,
resulting in greater regulatory burdens on small entities
than necessitated by statute; and
(6) small entities should be given the opportunity to seek
judicial review of agency actions required by chapter 6 of
title 5, United States Code.
SEC. 303. PURPOSES.
The purposes of this title are--
(1) to implement certain recommendations of the 1995 White
House Conference on Small Business regarding the development
and enforcement of Federal regulations;
(2) to provide for judicial review of chapter 6 of title
5, United States Code;
(3) to encourage the effective participation of small businesses
in the Federal regulatory process;
(4) to simplify the language of Federal regulations affecting
small businesses;
(5) to develop more accessible sources of information on
regulatory and reporting requirements for small businesses;
(6) to create a more cooperative regulatory environment among
agencies and small businesses that is less punitive and more
solution-oriented; and
(7) to make Federal regulators more accountable for their
enforcement actions by providing small entities with a meaningful
opportunity for redress of excessive enforcement activities.
Subtitle A--Regulatory Compliance Simplification
SEC. 311. 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
551 of title 5, United States Code; and
(3) the term `small entity compliance guide' means a document
designated as such by an agency.
SEC. 312. COMPLIANCE GUIDES.
(a) Compliance Guide: For each rule or group of related rules
for which an agency is required to prepare a final regulatory
flexibility analysis under section 604 of title 5, United
States Code, the agency shall publish one or more guides to
assist small entities in complying with the rule, and shall
designate such publications as `small entity compliance guides'.
The guides shall explain the actions a small entity is required
to take to comply with a rule or group of rules. The agency
shall, in its sole discretion, taking into account the subject
matter of the rule and the language of relevant statutes,
ensure that the guide is written using sufficiently plain
language likely to be understood by affected small entities.
Agencies may prepare separate guides covering groups or classes
of similarly affected small entities, and may cooperate with
associations of small entities to develop and distribute such
guides.
(b) Comprehensive Source of Information: Agencies shall cooperate
to make available to small entities through comprehensive
sources of information, the small entity compliance guides
and all other available information on statutory and regulatory
requirements affecting small entities.
(c) Limitation on Judicial Review: An agency's small entity
compliance guide shall not be subject to judicial review,
except that in any civil or administrative action against
a small entity for a violation occurring after the effective
date of this section, the content of the small entity compliance
guide may be considered as evidence of the reasonableness
or appropriateness of any proposed fines, penalties or damages.
SEC. 313. INFORMAL SMALL ENTITY GUIDANCE.
(a) General: Whenever appropriate in the interest of administering
statutes and regulations within the jurisdiction of an agency
which regulates small entities, it shall be the practice of
the agency to answer inquiries by small entities concerning
information on, and advice about, compliance with such statutes
and regulations, interpreting and applying the law to specific
sets of facts supplied by the small entity. In any civil or
administrative action against a small entity, guidance given
by an agency applying the law to facts provided by the small
entity may be considered as evidence of the reasonableness
or appropriateness of any proposed fines, penalties or damages
sought against such small entity.
(b) Program: Each agency regulating the activities of small
entities shall establish a program for responding to such
inquiries no later than 1 year after enactment of this section,
utilizing existing functions and personnel of the agency to
the extent practicable.
(c) Reporting: Each agency regulating the activities of small
business 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 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
program, the number of small entities using the program, and
the achievements of the program to assist small entity compliance
with agency regulations.
SEC. 314. SERVICES OF SMALL BUSINESS DEVELOPMENT CENTERS.
(a) Section 21(c)(3) of the Small Business Act (15 U.S.C.
648(c)(3)) is amended--
(1) in subparagraph (O), by striking `and' at the end;
(2) in subparagraph (P), by striking the period at the end
and inserting a semicolon; and
(3) by inserting after subparagraph (P) the following new
subparagraphs:
`(Q) providing information to small business concerns regarding
compliance with regulatory requirements; and
`(R) developing informational publications, establishing
resource centers of reference materials, and distributing
compliance guides published under section 312(a) of the Small
Business Regulatory Enforcement Fairness Act of 1996.'.
(b) Nothing in this Act in any way affects or limits the ability
of other technical assistance or extension programs to perform
or continue to perform services related to compliance assistance.
SEC. 315. 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 entities. Where
regulations vary among the states, separate guides may be
created for separate states in cooperation with State agencies.
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SEC. 316. EFFECTIVE DATE.
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.
Subtitle B--Regulatory Enforcement Reforms
SEC. 321. 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
551 of title 5, United States Code; and
(3) the term `small entity compliance guide' means a document
designated as such by an agency.
SEC. 322. SMALL BUSINESS AND AGRICULTURE ENFORCEMENT OMBUDSMAN.
The Small Business Act (15 U.S.C. 631 et seq.) is amended--
(1) by redesignating section 30 as section 31; and
(2) by inserting after section 29 the following new section:
`SEC. 30. OVERSIGHT OF REGULATORY ENFORCEMENT.
`(a) Definitions: For purposes of this section, the term--
`(1) `Board' means a Regional Small Business Regulatory Fairness
Board established under subsection (c); and
`(2) `Ombudsman' means the Small Business and Agriculture
Regulatory Enforcement Ombudsman designated under subsection
(b).
`(b) SBA Enforcement Ombudsman:
`(1) Not later than 180 days after the date of enactment
of this section, the Administrator shall designate a Small
Business and Agriculture Regulatory Enforcement Ombudsman,
who shall report directly to the Administrator, utilizing
personnel of the Small Business Administration to the extent
practicable. Other agencies shall assist the Ombudsman and
take actions as necessary to ensure compliance with the requirements
of this section. Nothing in this section is intended to replace
or diminish the activities of any Ombudsman or similar office
in any other agency.
`(2) The Ombudsman shall--
`(A) work with each agency with regulatory authority over
small businesses to ensure that small business concerns that
receive or are subject to an audit, on-site inspection, compliance
assistance effort, or other enforcement related communication
or contact by agency personnel are provided with a means to
comment on the enforcement activity conducted by such personnel;
`(B) establish means to receive comments from small business
concerns regarding actions by agency employees conducting
compliance or enforcement activities with respect to the small
business concern, means to refer comments to the Inspector
General of the affected agency in the appropriate circumstances,
and otherwise seek to maintain the identity of the person
and small business concern making such comments on a confidential
basis to the same extent as employee identities are protected
under section 7 of the Inspector General Act of 1978 (5 U.S.C.App.);
`(C) based on substantiated comments received from small
business concerns and the Boards, annually report to Congress
and affected agencies evaluating the enforcement activities
of agency personnel including a rating of the responsiveness
to small business of the various regional and program offices
of each agency;
`(D) coordinate and report annually on the activities, findings
and recommendations of the Boards to the Administrator and
to the heads of affected agencies; and
`(E) provide the affected agency with an opportunity to comment
on draft reports prepared under subparagraph (C), and include
a section of the final report in which the affected agency
may make such comments as are not addressed by the Ombudsman
in revisions to the draft.
`(c) Regional Small Business Regulatory Fairness Boards:
`(1) Not later than 180 days after the date of enactment
of this section, the Administrator shall establish a Small
Business Regulatory Fairness Board in each regional office
of the Small Business Administration.
`(2) Each Board established under paragraph (1) shall--
`(A) meet at least annually to advise the Ombudsman on matters
of concern to small businesses relating to the enforcement
activities of agencies;
`(B) report to the Ombudsman on substantiated instances of
excessive enforcement actions of agencies against small business
concerns including any findings or recommendations of the
Board as to agency enforcement policy or practice; and
`(C) prior to publication, provide comment on the annual
report of the Ombudsman prepared under subsection (b).
`(3) Each Board shall consist of five members, who are owners,
operators, or officers of small business concerns, appointed
by the Administrator, after receiving the recommendations
of the chair and ranking minority member of the Committees
on Small Business of the House of Representatives and the
Senate. Not more than three of the Board members shall be
of the same political party. No member shall be an officer
or employee of the Federal Government, in either the executive
branch or the Congress.
`(4) Members of the Board shall serve at the pleasure of
the Administrator for terms of three years or less.
`(5) 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) Powers of the Boards.
`(1) The Board may hold such hearings and collect such information
as appropriate for carrying out this section.
`(2) The Board may use the United States mails in the same
manner and under the same conditions as other departments
and agencies of the Federal Government.
`(3) The Board may accept donations of services necessary
to conduct its business, provided that the donations and their
sources are disclosed by the Board.
`(4) Members of the Board shall serve without compensation,
provided that, members of the Board shall be allowed travel
expenses, including per diem in lieu of subsistence, at rates
authorized for employees of agencies under subchapter I of
chapter 57 of title 5, United States Code, while away from
their homes or regular places of business in the performance
of services for the Board.'.
SEC. 323. RIGHTS OF SMALL ENTITIES IN ENFORCEMENT ACTIONS.
(a) In General: Each agency regulating the activities of small
entities shall establish a policy or program within 1 year
of enactment of this section to provide for the reduction,
and under appropriate circumstances for the waiver, of civil
penalties for violations of a statutory or regulatory requirement
by a small entity. Under appropriate circumstances, an agency
may consider ability to pay in determining penalty assessments
on small entities.
(b) Conditions and Exclusions: Subject to the requirements
or limitations of other statutes, policies or programs established
under this section shall contain conditions or exclusions
which may include, but shall not be limited to--
(1) requiring the small entity to correct the violation within
a reasonable correction period;
(2) limiting the applicability to violations discovered through
participation by the small entity in a compliance assistance
or audit program operated or supported by the agency or a
state;
(3) excluding small entities that have been subject to multiple
enforcement actions by the agency;
(4) excluding violations involving willful or criminal conduct;
(5) excluding violations that pose serious health, safety
or environmental threats; and
(6) requiring a good faith effort to comply with the law.
(c) Reporting: Agencies shall report to the Committee on Small
Business and Committee on Governmental Affairs of the Senate
and the Committee on Small Business and Committee on Judiciary
of the House of Representatives no later than 2 years after
the date of enactment of this section on the scope of their
program or policy, the number of enforcement actions against
small entities that qualified or failed to qualify for the
program or policy, and the total amount of penalty reductions
and waivers.
SEC. 324. EFFECTIVE DATE.
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.
Subtitle C--Equal Access to Justice Act Amendments
SEC. 331. ADMINISTRATIVE PROCEEDINGS.
(a) Section 504(a) of title 5, United States Code, is amended
by adding at the end the following new paragraph:
`(4) If, in an adversary adjudication arising from an agency
action to enforce a party's compliance with a statutory or
regulatory requirement, the demand by the agency is substantially
in excess of the decision of the adjudicative officer and
is unreasonable when compared with such decision, under the
facts and circumstances of the case, the adjudicative officer
shall award to the party the fees 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 paragraph shall be paid
only as a consequence of appropriations provided in advance.'.
(b) Section 504(b) of title 5, United States Code, is amended--
(1) in paragraph (1)(A), by striking `$75' and inserting
'`$125';
(2) at the end of paragraph (1)(B), by inserting before the
semicolon `or for purposes of subsection (a)(4), a small entity
as defined in section 601';
(3) at the end of paragraph (1)(D), by striking `and';
(4) at the end of paragraph (1)(E), by striking the period
and inserting `; and'; and
(5) at the end of paragraph (1), by adding the following
new subparagraph:
`(F) `demand' means the express demand of the agency which
led to the adversary adjudication, but does 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.'.
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SEC. 332. JUDICIAL PROCEEDINGS.
(a) Section 2412(d)(1) of title 28, United States 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 504(a)(4) of title 5 the demand by the
United States is substantially in excess of the judgment finally
obtained by the United States and is unreasonable when compared
with such judgment, under the facts and circumstances of the
case, the court shall award to the party the fees 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 28, United States Code, is amended--
(1) in paragraph (2)(A), by striking `$75' and inserting
`$125';
(2) at the end of paragraph (2)(B), by inserting before the
semicolon `or for purposes of subsection (d)(1)(D), a small
entity as defined in section 601 of title 5';
(3) at the end of paragraph (2)(G), by striking `and';
(4) at the end of paragraph (2)(H), by striking the period
and inserting `; and'; and
(5) at the end of paragraph (2), by adding the following
new subparagraph:
`(I) `demand' means the express demand of the United States
which led to the adversary adjudication, but shall not include
a recitation of the maximum statutory penalty (i) in the complaint,
or (ii) elsewhere when accompanied by an express demand for
a lesser amount.'.
SEC. 333. EFFECTIVE DATE.
The amendments made by sections 331 and 332 shall apply to
civil actions and adversary adjudications commenced on or
after the date of the enactment of this subtitle.
Subtitle D--Regulatory Flexibility Act Amendments
SEC. 341. REGULATORY FLEXIBILITY ANALYSES.
(a) Initial Regulatory Flexibility Analysis:
(1) Section 603: 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 an interpretative
rule involving the internal revenue laws of the United States';
and
(B) by inserting at the end of the subsection, the following
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 601: Section 601 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, soliciting,
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
`(ii) 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(c)(1) of title 44, United States Code.
`(8) Recordkeeping requirement: The term `recordkeeping requirement'
means a requirement imposed by an agency on persons to maintain
specified records.
(b) Final Regulatory Flexibility Analysis: Section 604 of
title 5, United States Code, is amended--
(1) in subsection (a) to read as follows:
`(a) When an agency promulgates a final rule under section
553 of this title, after being required by that section or
any other law to publish a general notice of proposed rulemaking,
or promulgates 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 regulatory flexibility analysis shall
contain--
`(1) a succinct statement of the need for, and objectives
of, the rule;
`(2) a summary of the significant issues raised by the public
comments in response to the initial regulatory flexibility
analysis, a summary of the assessment of the agency of such
issues, and a statement of any changes made in the proposed
rule as a result of such comments;
`(3) a description of and an estimate of the number of small
entities to which the rule will apply or an explanation of
why no such estimate is available;
`(4) a description of the projected reporting, record keeping
and other compliance requirements of the rule, including an
estimate of the classes of small entities which will be subject
to the requirement and the type of professional skills necessary
for preparation of the report or record; and
`(5) a description of the steps the agency has taken to minimize
the significant economic impact on small entities consistent
with the stated objectives of applicable statutes, including
a statement of the factual, policy, and legal reasons for
selecting the alternative adopted in the final rule and why
each one of the other significant alternatives to the rule
considered by the agency which affect the impact 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. 342. JUDICIAL REVIEW.
Section 611 of title 5, United States Code, is amended to
read as follows:
`611. Judicial review
`(a)(1) For any rule subject to this chapter, a small entity
that is adversely affected or aggrieved by final agency action
is entitled to judicial review of agency compliance with the
requirements of 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 and 609(a)
shall be judicially reviewable in connection with judicial
review of section 604.
`(3)(A) A small entity may seek such review during the period
beginning on the date of final agency action and ending one
year later, except that where a provision of law requires
that an action challenging a final agency action be commenced
before the expiration of one year, such lesser period shall
apply to 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
608(b) of this chapter, an action for judicial review under
this section shall be filed not later than--
`(i) one year after the date the analysis is made available
to the public, or
`(ii) where a provision of law requires that an action challenging
a final agency regulation be commenced before the expiration
of the 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.
`(5) Nothing in this subsection shall be construed to limit
the authority of any court to stay the effective date of any
rule or provision thereof under any other provision of law
or to grant any other relief in addition to the requirements
of this section.
`(b) In an action for the judicial review of a rule, the regulatory
flexibility analysis for such rule, including an analysis
prepared or corrected pursuant to paragraph (a)(4), shall
constitute part of the entire record of agency action in connection
with such review.
`(c) Compliance or noncompliance by an agency with the provisions
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
permitted by law.'.
SEC. 343. TECHNICAL AND CONFORMING AMENDMENTS.
(a) Section 605(b) of title 5, United States Code, is amended
to read as follows:
`(b) Sections 603 and 604 of this title shall not apply to
any proposed or final rule if the head of the agency certifies
that the rule will not, if promulgated, have a significant
economic impact on a substantial number of small entities.
If the head of the agency makes a certification under the
preceding sentence, the agency shall publish such certification
in the Federal Register at the time of publication of general
notice of proposed rulemaking for the rule or at the time
of publication of the final rule, along with a statement providing
the factual basis for such certification. The agency shall
provide such certification and statement to the Chief Counsel
for Advocacy of the Small Business Administration.'.
(b) Section 612 of title 5, United States Code is amended--
(1) in subsection (a), by striking `the committees on the
Judiciary of the Senate and the House of Representatives,
the Select Committee on Small Business of the Senate, and
the Committee on Small Business of the House of Representatives'
and inserting `the Committees on the Judiciary and Small Business
of the Senate and House of Representatives'.
(2) in subsection (b), by striking `his views with respect
to the' and inserting in lieu thereof, `his or her views with
respect to compliance with this chapter, the adequacy of the
rulemaking record with respect to small entities and the'.
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SEC. 344. SMALL BUSINESS ADVOCACY REVIEW PANELS.
(a) Small Business Outreach and Interagency Coordination:
Section 609 of title 5, United States Code is amended--
(1) before `techniques,' by inserting `the reasonable use
of';
(2) in paragraph (4), after `entities' by inserting `including
soliciting and receiving comments over computer networks';
(3) by designating the current text as subsection (a); and
(4) by adding the following:
`(b) Prior to publication of an initial regulatory flexibility
analysis which a covered agency is required to conduct by
this chapter--
`(1) a covered agency shall notify the Chief Counsel for
Advocacy of the Small Business Administration and provide
the Chief Counsel with information on the potential impacts
of the proposed rule on small entities and the type of small
entities that might be affected;
`(2) not later than 15 days after the date of receipt of
the materials described in paragraph (1), the Chief Counsel
shall identify individuals representative of affected small
entities for the purpose of obtaining advice and recommendations
from those individuals about the potential impacts of the
proposed rule;
`(3) the agency shall convene a review panel for such rule
consisting wholly of full time Federal employees of the office
within the agency responsible for carrying out the proposed
rule, the Office of Information and Regulatory Affairs within
the Office of Management and Budget, and the Chief Counsel;
`(4) the panel shall review any material the agency has prepared
in connection with this chapter, including any draft proposed
rule, collect advice and recommendations of each individual
small 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 the small entity representatives
and its findings as to issues related to subsections 603(b),
paragraphs (3), (4) and (5) and 603(c), provided that such
report shall be made public as part of the rulemaking record;
and
`(6) where appropriate, the agency shall modify the proposed
rule, the initial regulatory flexibility analysis or the decision
on whether an initial regulatory flexibility analysis is required.
`(c) 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 purposed of this section, the term covered agency
means the Environmental Protection Agency and the Occupational
Safety and Health Administration of the Department of Labor.
`(e) The Chief Counsel for Advocacy, in consultation with
the individuals identified in subsection (b)(2), and with
the Administrator of the Office of Information and Regulatory
Affairs within the Office of Management and Budget, may waive
the requirements of subsections (b)(3), (b)(4), and (b)(5)
by including in the rulemaking record a written finding, with
reasons therefor, that those requirements would not advance
the effective participation of small entities in the rulemaking
process. For purposes of this subsection, the factors to be
considered in making such a finding are as follows:
`(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 provide
the individuals identified in subsection (b)(2) with a competitive
advantage relative to other small entities.'.
(b) Small Business Advocacy Chairpersons: Not later than 30
days after the date of enactment of this Act, the head of
each 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.
SEC. 345. EFFECTIVE DATE.
This subtitle shall become effective on the expiration of
90 days after the date 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. 351. CONGRESSIONAL REVIEW OF AGENCY RULEMAKING.
Title 5, United States Code, is amended by inserting immediately
after chapter 7 the following new chapter:
`CHAPTER 8--CONGRESSIONAL REVIEW OF AGENCY RULEMAKING
`Sec.
`801. Congressional review.
`802. Congressional disapproval procedure.
`803. Special rule on statutory, regulatory, and judicial
deadlines.
`804. Definitions.
`805. Judicial review.
`806. Applicability; severability.
`807. Exemption for monetary policy.
`808. Effective date of certain rules.
`801. Congressional review
`(a)(1)(A) Before a rule can take effect, the Federal agency
promulgating such rule shall submit to each House of the Congress
and to the Comptroller General a report containing--
`(i) a copy of the rule;
`(ii) a concise general statement relating to the rule, including
whether it is a major rule; and
`(iii) the proposed effective date of the rule.
`(B) On the date of the submission of the report under subparagraph
(A), the Federal agency promulgating the rule shall submit
to the Comptroller General and make available to each House
of Congress--
`(i) a complete copy of the cost-benefit analysis of the
rule, if any;
`(ii) the agency's actions relevant to sections 603, 604,
605, 607, and 609;
`(iii) the agency's actions relevant to sections 202, 203,
204, and 205 of the 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 subparagraph
(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.
`(2)(A) The 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 submission 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 (1)(B).
`(B) Federal agencies shall cooperate with the Comptroller
General by providing information relevant to the Comptroller
General's report under subparagraph (A).
`(3) A major rule relating to a report submitted under paragraph
(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 the report submitted under paragraph
(1); or
`(ii) the rule is published in the Federal Register, if so
published;
`(B) if the Congress passes a joint resolution of disapproval
described in section 802 relating to the rule, and the President
signs a veto of such resolution, the earlier date--
`(i) on which either House of Congress votes and fails to
override the veto of the President; or
`(ii) occurring 30 session days after the date on which the
Congress received the veto and objections of the President;
or
`(C) the date the rule would have otherwise taken effect,
if not for this section (unless a joint resolution of disapproval
under section 802 is enacted).
`(4) Except for a major rule, a rule shall take effect as
otherwise provided by law after submission to Congress under
paragraph (1).
`(5) Notwithstanding paragraph (3), the effective date of
a 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.
`(b)(1) A rule shall not take effect (or continue), if 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 rule may not be issued, unless the reissued or new
rule is specifically authorized by a law enacted after the
date of the joint resolution disapproving the original rule.
`(c)(1) Notwithstanding any other provision of this section
(except subject to paragraph (3)), a rule that would not take
effect by reason of subsection (a)(3) may take effect, if
the President makes a determination under paragraph (2) and
submits written notice of such determination to the Congress.
`(2) Paragraph (1) applies to a determination made by the
President by Executive Order that the rule should take effect
because such rule is--
`(A) necessary because of an imminent threat to health or
safety or other emergency;
`(B) necessary for the enforcement of criminal laws;
`(C) necessary for national security; or
`(D) issued pursuant to any statute implementing an international
trade agreement.
`(3) An exercise 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.
`(d)(1) In addition to the opportunity for review otherwise
provided under this chapter, in the case of any rule for which
a report was submitted in accordance with subsection (a)(1)(A)
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 legislative
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 succeeding 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--
`(i) such rule were published in the Federal Register (as
a rule that shall take effect) on--
`(I) in the case of the Senate, the 15th session day, or
`(II) in the case of the House of Representatives, the 15th
legislative day,
after the succeeding session of Congress first convenes;
and
`(ii) a report on such rule were submitted to Congress under
subsection (a)(1) on such date.
`(B) Nothing in this paragraph shall be construed to affect
the requirement under subsection (a)(1) that a report 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).
`(e)(1) For purposes of this subsection, section 802 shall
also apply to any major rule promulgated between March 1,
1996, 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--
`(A) such rule were published in the Federal Register on
the date of enactment of this chapter; and
`(B) a report on such rule were submitted to Congress under
subsection (a)(1) 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.
`(f) Any rule that takes effect and 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 not enact a joint resolution of
disapproval 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 regard to such rule, related
statute, or joint resolution of disapproval.
[Page: H2997]
`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 801(a)(1)(A)
is received by Congress and ending 60 days thereafter (excluding
days either House of Congress is adjourned for more than 3
days during a session of Congress), the matter after the resolving
clause of which is as follows: `That Congress disapproves
the rule submitted by the XX relating to XX, and such rule
shall have no force or effect.' (The blank spaces being appropriately
filled in).
`(b)(1) A joint resolution described in subsection (a) shall
be referred to the committees in each House of Congress with
jurisdiction.
`(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 section
801(a)(1); or
`(B) the rule is published in the Federal Register, if so
published.
`(c) In the Senate, if the committee to which is referred
a joint resolution described in subsection (a) has not 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 (b)(2), such committee may be
discharged from further consideration of such joint resolution
upon a petition supported in writing by 30 Members of the
Senate, and such joint resolution shall be placed on the calendar.
`(d)(1) In the Senate, when the committee to which a joint
resolution is referred has reported, or when a committee is
discharged (under subsection (c)) 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 to,
the joint resolution shall remain the unfinished business
of the Senate until disposed of.
`(2) In the Senate, debate on the joint resolution, and on
all debatable motions and appeals in connection therewith,
shall be limited to not more than 10 hours, which shall be
divided equally between those favoring and those opposing
the joint resolution. A motion further to limit debate is
in order and not debatable. An amendment to, or a motion to
postpone, or a motion to proceed to the consideration of other
business, or a motion to recommit the joint resolution is
not in order.
`(3) In the Senate, immediately following the conclusion of
the debate on a joint resolution described in subsection (a),
and a single quorum call at the conclusion of the debate if
requested in accordance with the rules of the Senate, the
vote on final passage of the joint resolution shall occur.
`(4) Appeals from the decisions of the Chair relating to the
application of the rules of the Senate to the procedure relating
to a joint resolution described in subsection (a) 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 a rule--
`(1) after the expiration of the 60 session days beginning
with the applicable submission or publication date, or
`(2) if the report under section 801(a)(1)(A) was submitted
during the period referred to in section 801(d)(1), after
the expiration of the 60 session days beginning on the 15th
session day after the succeeding session of Congress first
convenes.
`(f) 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 subsection
(a) of the House receiving the joint resolution--
`(A) the procedure in that House shall 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) This section is enacted by Congress--
`(1) as an exercise of the rulemaking power of the Senate
and House of Representatives, respectively, and as such it
is deemed a part of the rules of each House, respectively,
but applicable only with respect to the procedure to be followed
in that House in the case of a 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.
`803. Special rule on statutory, regulatory, and judicial
deadlines
`(a) In the case of any deadline for, relating to, or involving
any rule which does not take effect (or the effectiveness
of which is terminated) because of enactment of a joint resolution
under section 802, that deadline is extended until the date
1 year after the date of enactment of the joint resolution.
Nothing in this subsection shall be construed to affect a
deadline merely by reason of the postponement of a rule's
effective date under section 801(a).
`(b) The term `deadline' means any date certain for fulfilling
any obligation or exercising any authority established by
or under any Federal statute or regulation, or by or under
any court order implementing any Federal statute or regulation.
`804. Definitions
`For purposes of this chapter--
`(1) The term `Federal agency' means any agency as that term
is defined in section 551(1).
`(2) The term `major rule' means any rule that the Administrator
of the Office of Information and Regulatory Affairs of the
Office of Management and Budget finds has resulted in or is
likely to result in--
`(A) an annual effect on the economy of $100,000,000 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.
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 in section
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 financial structures,
reorganizations, mergers, or acquisitions thereof, or accounting
practices or disclosures bearing on any of the foregoing;
`(B) any rule relating to agency management or personnel;
or
`(C) any rule of agency organization, procedure, or practice
that does not substantially affect the rights or obligations
of non-agency parties.
`805. Judicial review
`No determination, finding, action, or omission under this
chapter shall be subject to judicial review.
[Page: H2998]
`806. Applicability; severability
`(a) This chapter shall apply notwithstanding any other provision
of law.
`(b) If any provision of this chapter or the application of
any provision of this chapter to any person or circumstance,
is held invalid, the application of such provision to other
persons or circumstances, and the remainder of 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 Committee.
`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 (and incorporates
the finding and a brief statement of reasons therefor in the
rule issued) that notice and public procedure thereon are
impracticable, unnecessary, or contrary to the public interest,
shall take effect at such time as the Federal agency promulgating
the rule determines.'.
SEC. 352. EFFECTIVE DATE.
The amendment made by section 351 shall take effect on the
date of enactment of this Act.
SEC. 353. TECHNICAL AMENDMENT.
The table of chapters for part I of title 5, United States
Code, is amended by inserting immediately after the item relating
to chapter 7 the following:
`8. Congressional Review of Agency Rulemaking
801'.
TITLE IV--PUBLIC DEBT LIMIT
SEC. 401. INCREASE IN PUBLIC DEBT LIMIT.
Subsection (b) of section 3101 of title 31, United States
Code, is amended by striking the dollar limitation contained
in such subsection and inserting `$5,500,000,000,000'.
The SPEAKER pro tempore. Pursuant to House Resolution 391,
as amended, the gentleman from Texas [Mr. Archer] will be
recognized for 30 minutes, the gentleman from Florida [Mr.
Gibbons] will be recognized for 30 minutes, the gentleman
from Pennsylvania [Mr. Clinger] will be recognized for 10
minutes, and the gentlewoman from New York [Ms. Slaughter],
the designee of the ranking minority member, will be recognized
for 10 minutes.
The Chair recognizes the gentleman from Texas [Mr. Archer].
GENERAL LEAVE
Mr. ARCHER. Mr. Speaker, I ask unanimous consent that all
Members may have 5 legislative days within which to revise
and extend their remarks on and include extraneous material
on the bill H.R. 3136.
The SPEAKER pro tempore. Is there objection to the request
of the gentleman from Texas?
There was no objection.
Mr. ARCHER. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, I rise today in strong support of H.R. 3136,
the Contract With America Advancement Act of 1996. This legislation
contains the Senior Citizens' Right to Work Act, the Line-Item-Veto
Act, the Small Business Growth and Fairness Act of 1996, and
provides for a permanent increase in the public debt limit.
Let me first compliment Chairmen Solomon, Clinger, and Bunning,
and the rest of the line-item-veto conferees for their hard
work. As the original author of line-item-veto legislation
at the request of President Reagan, I am a true believer in
the line-item veto. I know that it will help control spending
and therefore aid us in obtaining a balanced budget. Accordingly,
I welcome its inclusion in H.R. 3136.
I am also proud that the Senior Citizens' Right to Work Act
will be included in this legislation. It is another of my
career-long projects--one which I began working on with former
Senator Goldwater in the early 1970's. As you know the House
has already approved this measure by a large bipartisan vote
of 411 to 4 last December 5. It would raise the earnings limit
for seniors between the ages of 65 and 69 to $30,000 by the
year 2002, while fully preserving the long-term financial
integrity of the Social Security trust funds. In fact, according
to the Social Security actuaries, this bill improves the long-range
solvency of the trust funds by a significant amount.
This legislation is also strongly supported by a broad group
of seniors' associations, including the AARP.
We all know that the current earnings limit is too low and
is nothing more than a tax on hard-working seniors.
In our Contract With America, we promised to raise the earnings
limit which discourages older workers from remaining in the
work force and sharing their experience, knowledge, and skills
with younger workers. Today, we take another important step
in fulfilling that promise by providing relief from the onerous
earnings limit to almost 1 million senior citizens who want
or need to work. Again, I want to compliment Social Security
Subcommittee Chairman Jim Bunning and Whip Denny Hastert for
their outstanding efforts on this legislation. They have been
untiring in their work on this project.
Mr. Speaker, H.R. 3136 also includes another important element
of our Contract With America, regulatory relief for small
business. This is a vital element of the bill, and I believe
Chairman Hyde will be speaking on it in more detail.
Finally, H.R. 3136 contains an increase in the permanent
statutory debt ceiling from its current level of $4.9 trillion
to $5.5 trillion. This amount should provide the Government
with enough authority to operate through fiscal year 1997.
This is the level including in the Balanced Budget Act, and
sought by the Treasury Department. We have receive correspondence
from Treasury expressing their support for the provision.
This is a straightforward debt limit extension. As you know,
we need to pass this legislation quickly as the current temporary
limit expires tomorrow.
Section 107 of this legislation codifies Congress' understanding
that the Secretary of Treasury and other Federal officials
are not authorized to use Social Security and Medicare funds
for debt management purposes under any circumstances. Specifically,
the Secretary of the Treasury and other Federal officials
are required not to delay or otherwise underinvest incoming
receipts to the Social Security and Medicare trust funds.
They are also required not to sell, redeem or otherwise disinvest
securities, obligations or other assets of these trust funds
except when necessary to provide for the payment of benefits
and administrative expenses of these programs. The legislation
applies to the following trust funds: Federal Old-Age and
Survivors Insurance [OASI] Trust Fund; Federal Hospital Insurance
[HI] Trust Fund; and Federal Supplementary Medical Insurance
[SMI] Trust Fund.
Since late October, the total amount of public debt obligations
has been very close to the public debt limit. This has given
rise to concerns that the Social Security and Medicare trust
funds might be underinvested or disinvested for debt management
purposes. While the administration has stated that it would
not take such action, it is desirable to make clear in law
that these funds could not be used for debt management purposes.
It is the purpose of this legislation to clarify that any
limitation on the public debt shall not be used as an excuse
to avoid the full and timely investment of the Social Security
trust funds. The Secretary, by law, is the managing trustee
of these trust funds, and also the chief financial officer
of the U.S. Government charged with its day-to-day cash management.
As such, he shall take all necessary steps to ensure the full
and timely investment of the Social Security and Medicare
trust funds.
This bill seeks to assure that the Secretary of the Treasury
and other Federal officials shall invest and disinvest Social
Security and Medicare trust funds solely for the purposes
of accounting for the income and disbursements of these programs.
There are no circumstances envisioned under which the investments
of the trust funds will not be made in a timely fashion in
accordance with the normal investment practices of the Treasury,
or under which the trust funds are drawn down prematurely
for the purpose of avoiding limitations on the public debt
or to make room under the statutory debt limit for the Secretary
of the Treasury to issue new debt obligations in order to
cover the expenditures of the Government.
Mr. Speaker, this is an excellent bill, which advances many
important elements of our Contract With America, keeping our
promises to the American people. I urge my colleagues on both
sides of the aisle to support it today.
[Page: H2999]
[TIME: 1230]
Mr. Speaker, I reserve the balance of my time.
Mr. GIBBONS. Mr. Speaker, I yield 30 seconds to the gentlewoman
from California [Ms. Harman].
PERSONAL EXPLANATION
Ms. HARMAN. Mr. Speaker, I was in my district yesterday on
official business. Had I been present, I would have voted
`no' on the rule and `no' on passage of H.R. 1833, the partial
birth abortion bill; `yes' on the passage of House Resolution
379; and `yes' on the passage of House Concurrent Resolution
102.
Mr. GIBBONS. Mr. Speaker, I yield 1 minute to the gentleman
from Indiana [Mr. Jacobs].
Mr. JACOBS. Mr. Speaker, this is a paradox day in the U.S.
House of Representatives. We are going to raise the earnings
limit under Social Security immediately from about $11,000
a year to $14,000 or so a year, I believe, and that will,
on average, mean an income of about $20,000 for a Social Security
retiree. That is a very good thing to do.
The paradox is, at the same time we are not going to be doing
anything about the minimum wage. So what are we saying in
essence? We are saying that the person who is retired and
might work part time needs $24,000 a year, but the young person
who is working every day of the week and working hard, maybe
digging ditches, and has children to support can get by just
fine on $8,840 a year. So I want to congratulate my colleagues
on a sense of humor, I suppose, and a wonderful paradox.
Mr. ARCHER. Mr. Speaker, I yield such time as she may consume
to the gentlewoman from Idaho [Mrs. Chenoweth].
(Mrs. CHENOWETH asked and was given permission to revise
and extend her remarks.)
Mrs. CHENOWETH. Mr. Speaker, I rise in opposition to H.R.
3136.
Mr. Speaker, I strongly support increasing the Social Security
earnings limit. The current earnings limit of $11,280 hurts
low-to-moderate-income seniors who work out of necessity,
not choice.
Our Nation achieved unprecedented wealth and power because
of the strong work ethic, self-reliance, and personal responsibility
of today's senior citizens. They are the generation that built
this Nation. To punish these productive, industrious seniors,
who are the ones that made America great is absolutely absurd.
All Americans lose when the earnings limit prevents us from
employing the teaching and experience of our Nation's most
precious resource.
Let me also say I support wholeheartedly empowering small
businesses to challenge burdensome regulations. In fact, observation
of the catastrophic effects extraneous regulations have on
small businesses and property owners was a major motivation
for my seeking office.
We should pass legislation to increase the Social Security
earnings limit, and to empower small business, and I hope
we do it soon. However, I must vote against this measure today
because I simply cannot support what would be a monumental
mistake that would be made by this Congress if we hand over
legislative powers to the president in the form of a line-item
veto.
Mr. Speaker, let me first say that I believe that a line
item veto could be effective in eliminating wasteful port.
However, I strongly believe that the consequences of shifting
the delicate power balance of between the executive and legislative
branches of government would far outweigh any advantages gained
by this measure.
Let me remind you of Alexander Hamilton's stern warning in
Federalist No. 76 of why we must keep the powers given respectively
to the legislature and executive branches of government separate:
Without the one or the other the former would be unable to
defend himself against the depredations of that latter. (The
Legislature) might gradually be stripped of his authorities
by successive resolutions. . .
And in one mode or the other, the legislative and executive
powers might speedily come to be blended in the same hands.
Mr. Speaker, the Constitution specifically gives the power
of the purse to the people, which are represented in the Congress.
Let us not give that sacred responsibility away to the President
because we as a Congress do not have the discipline to make
necessary spending cuts. The more powers we give to the executive
to control the spending of taxpayer dollars, the less we will
have of a representative government our Founding Fathers envisioned.
Mr. Speaker, I strongly believe that the Congress will regret
the day that we surrender this tremendous power to the executive.
I urge my colleagues to stand back and take a hard look at
what we are doing today, and whether it is really worth giving
away power that rightfully belongs to this, the people's House.
Mr. ARCHER. Mr. Speaker, I yield 1 minute to the gentleman
from Illinois [Mr. Hyde], the highly respected chairman of
the Committee on the Judiciary.
(Mr. HYDE asked and was given permission to revise and extend
his remarks.)
Mr. HYDE. Mr. Speaker, I rise in support of H.R. 3136, and
particularly title III of that bill, the Small Business Regulatory
Enforcement Fairness Act of 1996.
Title III, as amended by the rule, is patterned after the
provisions of S. 942, legislation sponsored by Senator Christopher
Bond of Missouri, which passed the Senate on March 19 by the
vote of 100 to 0. It would provide important regulatory relief
for America's small businesses.
This measure is vitally important to the small business community,
which is particularly burdened by the effect of multiple,
and many times conflicting, regulatory requirements. It should
be viewed not as a total solution to all regulatory problems,
but as a good first step of making rules more fair, more rational,
and more carefully tailored to achieve the goal they are designed
to accomplish.
First, title III proposes important changes in the Regulatory
Flexibility Act, allowing judicial review of certain aspects
of that statute. The Regulatory Flexibility Act was first
enacted in 1980. Under its terms, Federal agencies are directed
to consider the special needs and concerns of small entities--that
is, small businesses, local governments, farmers, and so forth,
whenever they engage in a rulemaking subject to the Administrative
Procedure Act. The agencies must then prepare and publish
a regulatory flexibility analysis of the impact of the proposed
rule on small entities, unless the head of the agency certifies
that the proposed rule will not `have a significant economic
impact on a substantial number of small entities.'
From the beginning, the problem with this law has been the
lack of availability of a judicial reviews mechanism to enforce
the purposes of the law. Right now, if agencies do not actually
conduct a regulatory flexibility analysis or fail to follow
the other procedures set down in the act, there is no sanction.
Thus, under current law, the small business community has
no remedy.
Title III would cure this problem. In instances where an
agency should have undertaken a regulatory flexibility analysis
and did not, or where the agency needs to take corrective
action with respect to a flexibility analysis that was prepared,
small entities are authorized to seek judicial review within
1 year after final agency action. A court will then review
the agency's action under the judicial review provisions of
the Administrative Procedure Act. The remedies that a court
may order include remanding the rule back to the agency and
deferring enforcement of the rule against small entities,
pending agency compliance with the Regulatory Flexibility
Act.
Another important aspect of title III is the congressional
review procedure. This will allow Congress to review all proposed
rules to determine whether or not they should take effect.
Specifically, title III would allow Congress to postpone for
60 days the implementation of any major rule, generally defined
as having an annual effect on the economy of $100 million
or more. The language allows the President to bypass the 60-day
delay through the issuance of an Executive order, if the rule
addresses an imminent threat to the public health or safety,
or other emergency, or matters involving criminal law enforcement
or national security.
This legislation was developed by Senator Don Nickles and
Senator Harry Reid. My Judiciary Committee staff has worked
very closely with Senator Nickles' staff concerning the details
of this provision.
I think it is important to emphasize that this approach means
that Congress must be prepared to take on greater responsibility
in the rulemaking process. If during the review period, Congress
identifies problems in a proposed major rule prior to its
promulgation, we must be prepared to take action. Each standing
committee will have to carefully monitor the regulatory activities
of those agencies falling within their jurisdiction.
Title III also includes a provision which will require Federal
agencies to simplify forms and publish a plain English guide
to help small businesses comply with Federal regulations.
These compliance guides will not be subject to judicial review,
but may be
considered as evidence of the reasonableness of any proposed
fines or penalties. Federal agencies would also be directed
to reduce or waive fines for small businesses in appropriate
circumstances, if violations are corrected within a certain
period.
The proposal would also create an ombudsman within the Small
Business Administration to gather information from small businesses
about compliance and enforcement practices, and to work with
the various agencies so as to respond to the concerns of small
businesses regarding those practices.
In addition, some important changes would be made in the
Equal Access to Justice Act. The Equal Access to Justice Act
[EAJA] currently provides that certain parties who prevail
over the Federal Government in regulatory or court proceedings
are entitled to an award in attorneys' fees and other expenses,
unless the Government can demonstrate that its position was
substantially justified or that special circumstances would
make the award unjust. Eligible parties are individuals whose
net worth does not exceed $2 million or businesses, organizations,
associations, or units of local government with a net worth
of no more than $7 million and no more than 500 employees.
The act covers both adversary administrative proceedings and
civil court actions.
Title III proposes to change the Equal Access to Justice
Act so as to make it easier for small businesses to recover
their attorneys fees, if they have been subjected to excessive
and unsustainable proposed penalties. It would amend the EAJA
to create a new avenue for small entities to recover their
attorneys fees in situations where the Government has instituted
an administrative or civil action against a small entity to
enforce a statutory or regulatory requirement. In these situations,
the test for recovering attorneys' fees would become whether
the final demand of the United States, prior to the initiation
of the adjudication or civil action, was substantially in
excess of the decision or judgment ultimately obtained and
is unreasonable when compared to such decision or judgment.
The important point here is that this legislation will level
the playing field and make it far more likely that the United
States will not seek excessive fines or penalties from small
businesses and will be more likely to make fair settlement
offers prior to proceeding with a formal regulatory enforcement
action or before going to court to collect the civil fine
or penalty.
Mr. Speaker, I have only described in very general terms
today the substance of this important title. Because the language
is the product of negotiation and compromise with the Senate,
there is no formal legislative history available to explain
its terms. To cure this deficiency, I will be inserting in
the Congressional Record at a later date a document which
will serve as the equivalent of a statement of managers. The
same document will be submitted to the Record in the Senate.
It is the committee's intent that that document carry the
weight of legislative history regarding title III of H.R.
3136.
Mr. Speaker, this legislation represents an important and
significant step toward removing unnecessary and unduly burdensome
regulations from the backs of small businesses. I urge my
colleagues to support H.R. 3136 and look forward to its prompt
passage and it being signed into law.
[Page: H3000]
Mr. GIBBONS. Mr. Speaker, I yield 3 minutes to the gentleman
from Hawaii [Mr. Abercrombie].
Mr. ABERCROMBIE. Mr. Speaker, I rise to speak against H.R.
3136. My opposition stems not from a desire to prevent the
needed increase in the debt limit, nor do I oppose the increase
in the Social Security earnings limit contained in section
4, a proposition I supported with my vote in favor of H.R.
2684 last December.
Rather, my objection, Mr. Speaker, is to the measure before
us, which rests on my adamant opposition to the line-item
veto provisions of section 3. The line-item veto is not about
money as such. It is about power, specifically the balance
of power between the executive and legislative branches of
the Federal Government. This has nothing to do with Republicans
and Democrats. It has nothing to do with the contract except
the contract we should be keeping with history that provided
for our constitutional democracy to be able to sustain a balance
between the executive and the legislative. It assumes that
the executive branch, compared to the legislature, is inherently
inclined to restrain spending. In fact, however, congressional
appropriations have been lower than the amounts requested
by the past three Presidents, Democrat and Republican alike.
In denying Congress the authority to single out proposed rescissions
for individual consideration, H.R. 3136 denies to the Congress
an authority it grants to the President.
If the President can unilaterally veto individual items in
a single bill, why is Congress required to sustain or override
those vetoes as an indivisible package? Why is Congress denied
the authority, why are we denying ourselves the authority
to judge each veto cast by the President? The upshot is more
power for the executive branch, less for the legislature.
By giving the President power to veto specific tax and appropriation
items within a single bill, H.R. 3136 deprives the legislative
branch of its share of its ability to strike a compromise
with the executive.
Mr. Speaker, it upsets the carefully calibrated balance between
the legislative and executive branches of Government. That
balance is what inclines our political system to compromise.
Look at what is happening in the rest of the world where the
executive has exclusive authority. I know I am going to be
among the few votes that is going to be cast today. What I
regret is, and this has happened before in our legislative
history, there will be a few who will try to strike a balance
to keep the power of the legislature against the executive,
and one day there will be a Ph.D. writing a thesis about it,
how we gave up our power, how we gave up the balance of power
that exists in our democracy. Vote `no' on 3136.
Mr. ARCHER. Mr. Speaker, I yield 3 minutes to the gentleman
from Kentucky [Mr. Bunning], the respected chairman of the
Subcommittee on Social Security of the Committee on Ways and
Means.
(Mr. BUNNING of Kentucky asked and was given permission to
revise and extend his remarks.)
Mr. BUNNING of Kentucky. Mr. Speaker, I thank the chairman
for yielding me time.
Mr. Speaker, hopefully the third time around will be the
charm and the Social Security earnings limit will be passed.
I want to thank Dennis Hastert, the deputy whip, and all the
Republican Members of the 100th Congress class, because this
has been a class project for over 8 years.
Mr. Speaker, the House has twice passed legislation to increase
this onerous earnings limit in the 104th Congress, but lack
of Senate action has kept this measure off the President's
desk.
I have a very good feeling that the tide has turned and our
colleagues in the other body want to see this done as much
as we do.
I want to commend the House and Senate leadership for working
with the Ways and Means Committee and the Finance Committee
to make the earnings limit increase part of the debt limit
legislation.
We have worked out a fair bill which makes good policy while
actually improving the financial integrity of the Social Security
trust funds.
By increasing the earnings limit on working senior citizens,
we are fulfilling the commitment we made in the Contract With
America to bring economic relief to older workers.
The earnings limit is a depression-era relic that has outlived
its usefulness. Older workers have a great deal of knowledge
and experience and our country needs the skills of experienced
workers. The current limit is unrealistically low and sends
the message that the Federal Government does not want seniors
to continue working and contributing.
Today's older Americans are living longer and healthier.
They want to continue contributing to society, but they have
to ask themselves if it is worth losing a good part of their
Social Security benefits to do so.
In most cases, the answer is `No.' By discouraging skilled
older workers from working, we are forgoing one of society's
greatest resources--experienced workers--a commodity every
employer in the United States needs and values.
The earnings limit is particularly harsh on lower to middle-income
seniors who must work to supplement their Social Security
benefits.
Approximately 1 million working seniors have some or all
of their benefits withheld because of the current earnings
limit. These are not wealthy working seniors.
These are seniors who do not have substantial pensions, investments
or savings to supplement their Social Security checks.
The earnings limit is nothing less than a tax on work. Seniors
need and deserve some tax relief. I urge my colleagues to
join me in making this long overdue change to increase the
earnings limit to $30,000.
[Page: H3001]
Mr. GIBBONS. Mr. Speaker, I yield 3 minutes to the gentleman
from Utah [Mr. Orton].
(Mr. ORTON asked and was given permission to revise and extend
his remarks.)
Mr. ORTON. Mr. Speaker, I voted against the rule on this
particular bill, not because I oppose the provisions of the
bill in general but in specific, I have a problem with one
provision on line-item veto.
[TIME: 1245]
I am a long-time supporter of the line-item veto. That is
an issue which has not been partisan. It is an issue that
the administration has asked for. I have supported it, and
many on both sides of the aisle have supported it. The concern
I have is that the line-item veto, under this bill, will not
go into effect when we pass the bill. It will not go into
effect until the end of the current term of this President.
This President is a Democrat. This Congress is controlled
by Republicans. That looks to the public like business as
usual, like the Republicans are afraid to give a Democratic
President the authority to veto specific items of pork.
It is not like we do not have a problem ongoing with park-barrel
spending. I have in my hand the Citizens Against Government
Waste's 1996 Congressional Pig Book. In that they identify
$12.5 billion in just 8 appropriation bills that we passed
in 1996, 8 of the 13, $12.5 billion of pork.
We passed in February 1995 through this House and in March
through the other body a line-item veto bill. It took 6 months
to even appoint conferees. Now we finally have the line-item
veto coming to passage as part of this bill. It is too late
for 1996 and these billions of dollars. Under this bill, it
is too late for 1997 as well.
Did they believe that, by passing line-item veto, there would
only be Republican Presidents in the future? A Democratic
President would not be eligible to use the line-item veto?
Well, I am going to put into the record statements by the
majority leader of the House, majority leader in the Senate
and majority whip in the Senate. I am also going to put into
the Record statements by the Committee on Rules chairman and
other people on the floor of this House, saying we are not
afraid to give it to a Democrat President. Here we are giving
it, it is not just a Republican, we are giving it to him.
No, you are not, not unless he wins reelection.
So I simply believe that we ought to change one provision
in this bill. Let us make line-item veto effective immediately
upon enactment. If the President does not appropriately use
it, then Congress can challenge the President. If the President
does appropriately use it, we start cutting inappropriate
spending today rather than waiting until after the 1997 fiscal
year.
So I would urge my colleagues to revise this bill, and I
hope that we will have a motion to recommit with instructions
to do so.
Mr. CLINGER. Mr. Speaker, I yield myself 2 minutes.
As chairman of the Government Reform and Oversight Committee,
I am very pleased to rise in strong support of this measure.
Two of the provisions in this measure were initiated in the
Government Reform and Oversight Committee, and we are very
proud they are part of this debt ceiling increase, because
the line-item veto goes directly to the question of trying
to hold down the debt, which we are now going to be forced
to increase today.
The previous speaker said that this was a provision that
we should give the President right now. I would point out
to the gentleman that this was a suggestion that the President
himself made. Contrary to many of the Members on the other
side of the aisle, this President, our President, supports
the line-item veto and supports the date that has been selected.
I would also point out he does have within his own power
the key to unlock this provision and make it effective today,
and that would be if he would agree to a balanced budget agreement.
That is, as I say, in his power.
We had a lot of trouble reconciling the many differences,
frankly, that existed between the Senate and the House. Many
in this room will remember how vast those differences were.
But we were able, in the final analysis, to come to agreement.
It was a bipartisan bicameral agreement. There are Members
on both sides who support strongly the provision of the line-item
veto. There are Members on both sides, frankly, who disagree
with the line-item veto.
The intent of the legislation, Mr. Speaker, is to provide
the President a tool, only a tool, to approach this question
of deficit reduction. We have provided it not just for the
appropriations process, which would only get at about 30 percent
of the spending, we have also provided it for entitlements.
We have provided it for targeted tax preferences which have
been so abused in the past. The President is going to have
a broad authority and broad ability to deal with the deficit
and to deal with the debt, which has been spiraling out of
control.
I would point out it is important to note, consistent with
the demand of both Houses in the conference, the conference
report does not allow the President to strike any restriction,
condition, or limitation on how funds may be spent. It is
limited to whole dollar amounts. No policy can be changed
as a result of this.
Mr. Speaker, I reserve the balance of my time.
Mr. GIBBONS. Mr. Speaker, I yield 30 seconds to the gentleman
from Utah [Mr. Orton].
Mr. ORTON. Mr. Speaker, just in response to my friend who
just mentioned that it was the President who asked for this,
yes, the President asked for line-item veto. The President
did not ask for line-item veto to be until after the new year
of 1997. It was offered by the majority leader, Senator Dole,
to be available then, and the President said he wanted line-item
veto, he would be willing to accept it and would accept it
under those terms.
It was not the President suggesting to delay line-item veto
until 1997. The President did accept it, but he has asked
for it consistently to be effective immediately, and I have
a letter so stating.
Mr. GIBBONS. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, let me explain to the Chair what I am about
to do. I am going to yield to the gentlewoman from Connecticut
[Mrs. Kennelly], then I am going to get out of the way and
let the gentlewoman from New York use her 10 minutes.
I yield 2 minutes to the gentlewoman from Connecticut [Mrs.
Kennelly].
Mrs. KENNELLY. Mr. Speaker, I am delighted to stand here
today, on March 28, 1996, because it is a good day for the
United States of America, it is a good day for the economic
security of the United States of America, it is a good day
for the financial markets of the United States of America,
but most importantly it is a good day for the full faith and
credit of the United States.
We are raising the debt limit. We should have done it 5 months
ago, but we are doing it today, and I am pleased that that
is happening.
There are those who say it did not matter if we did not raise
it when we should have 5 months ago. I have to differ because
I do not think there is any way of knowing if there were not
interest rate increases or delaying schedules of auctions
for securities, or, in fact, holding those actions for securities,
or, in fact, holding those auctions when they should have.
Having said that, I am glad today has come. There is one
disappointment I have, though, in this bill. For 19 years,
for 19 years, the blind of this country have been joined with
the elderly of this country, in being able to earn a certain
amount of money over and above the Social Security earnings
test. For some reason, the majority has decided to drop the
blind from this joint relationship with those over 65. I do
think it is too bad, because it really hurts the economic
independence of the blind in this country.
I certainly hope the majority in another time will look at
this piece of legislation. I know the gentleman from Texas
[Mr. Archer] introduced it originally. I do hope once again
we can couple the blind with those over 65 so economic independence
can be theirs also.
Ms. SLAUGHTER. Mr. Speaker, I yield myself such time as I
may consume.
Mr. Speaker, it is perhaps a good day but it certainly is
a strange one. I would never have thought I would be part
of a Congress of the United States that would unilaterally
hand over major parts of its power to the executive department.
To me, the strength of the Government of the United States,
as written by the Founding Fathers, was the separation of
powers, for each part of the legislative, the executive, and
the judiciary, well defined.
With the action taken here in the House and in the Senate,
we are unilaterally handing over to the President, whomever
he or she may be, the right to veto all the work that we do
here in Congress. Members of the House who have served under
Governors, who have the right of line-item veto, have told
me that in many cases it is a genteel way to commit blackmail.
Will we save money with the line-item veto? Well, consider
this scenario: Let us say there is a President who is finding
it very difficult, perhaps, to get reelected, and to get support
from the members of his party who serve in the House or in
the Senate. He would call in a delegation, perhaps mine, New
York, which is rather large, and says to us, you are not supporting
me, but I do notice here that in the bills that have been
sent to me, that there is a very critical item under New York
that has so much money. We are then, Members, confronted with
either determining whether we are going to stand pat, face
the President of the United States and tell him to forget
about it, or allow him simply to line out what is necessary
for the people that we represent.
It is possible, is it not, that under those circumstances,
that a delegation, a legislator, anyone, a leader would decide
not to spend less money, Mr. Speaker, but could be induced
to spend more? Indeed, it may be that such a President wants
more than that has been asked for; the line-item veto does
not say that in all cases that they will be going for less;
it is entirely possible that a President will ask for more.
I believe that this measure is unconstitutional, and I hope
that it will be judged so. It is a tragedy to me that this
has been added on to what is one of the most important pieces
of legislation that we have to
come before us. The threat of fiscal default hanging over
the United States of America has left a cloud over us that
should never have been there in the first place. No nation
ever talked about defaulting by choice until this time. To
put, again, a sort of genteel from of blackmail, things that
we normally would like to debate, strikes me as not the best
way to do business.
We have heard this conference report being bipartisan and
the great support that you have had on both sides of the aisle.
I think it is important to point out, Mr. Speaker, that the
conference that took place, took place only between House
and Senate Republicans. No Democrats in the House or Senate
were a part of that conference, and indeed the Democrats only
saw the conference report after it was filed. Without any
question, this side of the House had no impact whatever on
that conference report.
But in addition, this conference report goes much further
than either the House bill or the Contract With America went.
For example, it includes Medicare, Medicaid, Social Security,
and all other entitlement programs. We are now going to say
to the President, `If you do not like the increases that we
have given in Social Security, get rid of them.' We have put
Medicare and Medicaid again up to the vagaries of the President
without the ability of the people here to make the determination
for the people who sent us, the 500,000 and more in each district
who depend upon us to make those decisions, now you want to
turn these decision over to the President.
But there is one other piece that I was particularly involved
in myself during the 100 days of the Contract With America
when line-item veto was brought up. We were concerned over
on our side about the fa |