Pub.L. 104-122 Making further continuing appropriations for the fiscal year 1996, and for other purposes. <> ...

	Web GovRecords.org

    ``(c) <<NOTE: Establishment.>>  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.

[[Page 110 STAT. 862]]

            ``(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. 223. 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. 224. 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. 231. 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

[[Page 110 STAT. 863]]

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.''.

SEC. 232. 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.''.

[[Page 110 STAT. 864]]

SEC. 233. <<NOTE: 5 USC 504 note.>>  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. 241. 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

[[Page 110 STAT. 865]]

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, 
        recordkeeping 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. 242. JUDICIAL REVIEW.

    Section 611 of title 5, United States Code, is amended to read as 
follows:

``Sec. 611. Judicial review

    ``(a)(1) For any rule subject to this chapter, a small entity that 
is adversely affected or aggrieved by final agency action is entitled to 
judicial review of agency compliance with the requirements of 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

[[Page 110 STAT. 866]]

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 

Other Popular 104th Congressional Public Laws Documents:

Other Documents:

104th Congressional Public Laws Records and Documents