29

1

2

"(ii) in a case in which a provision of law requires that an action challenging a final agency reg

3

ulation be commenced before the expiration of the 1

4

5

year period provided in paragraph (1), the number of days specified in such provision of law,

6 after the date the analysis is made available to the public.

7

"(3) For purposes of this subsection, the term 'af

8 fected small entity' means a small entity that is or will

9 be adversely affected by the final rule.

10

"(4) Nothing in this subsection shall be construed to

11 affect the authority of any court to stay the effective date 12 of any rule or provision thereof under any other provision 13 of law.

14

“(5)(A) In a case in which an agency certifies that 15 such rule would not have a significant economic impact 16 on a substantial number of small entities, the court may 17 order the agency to prepare a final regulatory flexibility 18 analysis pursuant to section 604 if the court determines, 19 on the basis of the rulemaking record, that the certifi20 cation was arbitrary, capricious, an abuse of discretion, 21 or otherwise not in accordance with law.

2 23

"(B) In a case in which the agency prepared a final

23 regulatory flexibility analysis, the court may order the 24 agency to take corrective action consistent with section 25 604 if the court determines, on the basis of the rulemaking

⚫S 343 RCS

30

1 record, that the final regulatory flexibility analysis was

2 prepared by the agency without complying with section

3 604.

4

"(6) If, by the end of the 90-day period beginning

5 on the date of the order of the court pursuant to para6 graph (5) (or such longer period as the court may pro

7 vide), the agency fails, as appropriate

8

9

10

11

"(A) to prepare the analysis required by section 604; or

"(B) to take corrective action consistent with

section 604 of this title,

12 the court may stay the rule or grant such other relief as

13 it deems appropriate.

14

"(7) In making any determination or granting any

15 relief authorized by this subsection, the court shall take 16 due account of the rule of prejudicial error.

17

"(b) In an action for the judicial review of a rule, 18 any regulatory flexibility analysis for such rule (including 19 an analysis prepared or corrected pursuant to subsection 20 (a)(5)) shall constitute part of the whole record of agency 21 action in connection with such review.

22

"(c) Nothing in this section bars judicial review of 23 any other impact statement or similar analysis required 24 by any other law if judicial review of such statement or 25 analysis is otherwise provided by law.".

⚫S 343 RCS

31

1

2

3

4

5

6

་

7

8

(2) EFFECTIVE DATE.-The amendment made

by paragraph (1) shall take effect on the date of enactment of this Act, except that the judicial review

authorized by section 611(a) of title 5, United

States Code (as added by subsection (a)), shall apply

only to final agency rules issued after the date of enactment of this Act.

(c) PRESIDENTIAL AUTHORITY.—Nothing in this Act 9 shali limit the exercise by the President of the authority 10 and responsibility that the President otherwise possesses 11 under the Constitution and other laws of the United 12 States with respect to regulatory policies, procedures, and 13 programs of departments, agencies, and offices.

14

(d) TECHNICAL AND CONFORMING AMENDMENTS.— 15 (1) Part I of title 5, United States Code, is amended by 16 striking out the chapter heading and table of sections for 17 chapter 6 and inserting in lieu thereof the following:

1

"628. Standard for review of agency interpretations of an enabling statute.

(2) Chapter 6 of title 5, United States Code, is

2 amended by inserting immediately before section 601, the

3 following subchapter heading:

4

"SUBCHAPTER I-REGULATORY ANALYSIS".

•S 343 RCS

QUESTIONS AND ANSWERS

FEBRUARY 22, 1995

RESPONSES TO SENATOR THURMOND'S QUESTIONS FROM THOMASINA V. ROGERS Question 1. You indicate in your testimony that the dividing line for major decisions might be better made at $100 million rather than $50 million. Can you give us a rough idea of how many rules are promulgated each year which have annual costs of more than $100 million and how many have costs of more than $50 million? Answer 1. The Conference has not taken a position on where the dividing line should be for what constitutes a "major" rule. As our testimony states, "[w]e have no position on where the threshold should be drawn for major rules, except to note that Presidents of both parties going back to 1978 appear to believe that the $100 million effect on the economy is a reasonable break-point." Id. at 5. A decision on where a line should be drawn reflects a substantive policy decision that is outside the Administrative Conference's bailiwick.

Although we do not ourselves collect statistics on the economic impacts of rules, information provided to us from OMB's Office of Information and Regulatory Affairs indicates that over the last 15 years, the number of rules that were considered "major" or economically significant varied from the low 60s to a high of 142 in 1991. 1981-60 rules

1982-79 1983-63

1984 60

1985-59

1986-74

1987-70

1988-82

1989-79

1990 82

1991-142

1992-121

1993-104

1994-135

There are no government-wide data on the number of rules that have costs over $50 million, because that cutoff has not been in use. Most agencies probably do not maintain that information. There are a few agencies, such as the Department of Transportation, that voluntarily prepare regulatory analyses for all of their rules; it may be possible for them, by going back into their records, to gather the statistics for their own rules. We have been advised by the Environmental Protection Agency that it has gathered some preliminary information suggesting that over the next two years, approximately 45 of their actions would exceed the $100 million cutoff, and an additional 90 would exceed $25 million.

Question 2. You raise concerns about permitting private parties to require analysis of existing regulations. Can you give us any idea of how many rules now exist which have annual costs of more than $50 million and how many have costs of more than $100 million?

Answer 2. The Conference's concerns about the impact of requiring agencies to respond to any petition to review an existing rule would arise irrespective of the cutoff in the definition of "major" rule. A mechanism that derives from individual complaints would necessarily result in a random and haphazard rather than a systematic review of existing rules. Given that agencies have limited resources, their priorities for reviewing existing rules should be driven by Congress, the President and the agencies themselves, taking into consideration the full range of existing rules. An orderly process for reviewing such rules (such as the one set out in S. 291) would be a more efficient alternative than requiring the agency to respond to individual petitions on rules that might or might not have the broadest impact. We note that the Conference is at the early stages of developing recommendations on review of existing rules.

With respect to the question of how many rules now exist with annual costs of more than $100 million, we have only the data set forth in response to Question 1, above. We have no data concerning rules with impacts of $50 million.