The
following text of the Regulatory Flexibility Act of 1980, as
amended, is taken from Title 5 of the United States Code, sections
601 – 612
(The
Regulatory Flexibility Act was originally passed in 1980 (P. L.
96-354). The Act was amended by the Small Business Regulatory
Enforcement Fairness Act of 1996 (P.L. 104-121).) (PDF File)
Congressional
Findings and Declaration of Purpose
(a)
The Congress finds and declares that —(1) when adopting
regulations to protect the health, safety and economic welfare of
the Nation, Federal agencies should seek to achieve statutory
goals as effectively and efficiently as possible without imposing
unnecessary burdens on the public;
(2)
laws and regulations designed for application to large scale
entities have been applied uniformly to small businesses, small
organizations, and small governmental jurisdictions even though
the problems that gave rise to government action may not have been
caused by those smaller entities;
(3)
uniform Federal regulatory and reporting requirements have in
numerous instances imposed unnecessary and disproportionately
burdensome demands including legal, accounting and consulting
costs upon small businesses, small organizations, and small
governmental jurisdictions with limited resources;
(4)
the failure to recognize differences in the scale and resources of
regulated entities has in numerous instances adversely affected
competition in the marketplace, discouraged innovation and
restricted improvements in productivity;
(5)
unnecessary regulations create entry barriers in many industries
and discourage potential entrepreneurs from introducing beneficial
products and processes;
(6)
the practice of treating all regulated businesses, organizations,
and governmental jurisdictions as equivalent may lead to
inefficient use of regulatory agency resources, enforcement
problems and, in some cases, to actions inconsistent with the
legislative intent of health, safety, environmental and economic
welfare legislation;
(7)
alternative regulatory approaches which do not conflict with the
stated objectives of applicable statutes may be available which
minimize the significant economic impact of rules on small
businesses, small organizations, and small governmental
jurisdictions;
(8)
the process by which Federal regulations are developed and adopted
should be reformed to require agencies to solicit the ideas and
comments of small businesses, small organizations, and small
governmental jurisdictions to examine the impact of proposed and
existing rules on such entities, and to review the continued need
for existing rules.
(b)
It is the purpose of this Act [enacting this chapter and
provisions set out as notes under this section] to establish as a
principle of regulatory issuance that agencies shall endeavor,
consistent with the objectives of the rule and of applicable
statutes, to fit regulatory and informational requirements to the
scale of the businesses, organizations, and governmental
jurisdictions subject to regulation. To achieve this principle,
agencies are required to solicit and consider flexible regulatory
proposals and to explain the rationale for their actions to assure
that such proposals are given serious consideration.
§
601. Definitions
For
purposes of this chapter--
(1)
the term "agency" means an agency as defined in section
551(1) of this title;
(2)
the term "rule" means any rule for which the agency
publishes a general notice of proposed rulemaking pursuant to
section 553(b) of this title, or any other law, including any rule
of general applicability governing Federal grants to State and
local governments for which the agency provides an opportunity for
notice and public comment, except that the term "rule"
does not include a rule of particular applicability relating to
rates, wages, corporate or financial structures or reorganizations
thereof, prices, facilities, appliances, services, or allowances
therefor or to valuations, costs or accounting, or practices
relating to such rates, wages, structures, prices, appliances,
services, or allowances;
(3)
the term "small business" has the same meaning as the
term "small business concern" under section 3 of the
Small Business Act, unless an agency, after consultation with the
Office of Advocacy of the Small Business Administration and after
opportunity for public comment, establishes one or more
definitions of such term which are appropriate to the activities
of the agency and publishes such definition(s) in the Federal
Register;
(4)
the term "small organization" means any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field, unless an agency establishes, after
opportunity for public comment, one or more definitions of such
term which are appropriate to the activities of the agency and
publishes such definition(s) in the Federal Register;
(5)
the term "small governmental jurisdiction" means
governments of cities, counties, towns, townships, villages,
school districts, or special districts, with a population of less
than fifty thousand, unless an agency establishes, after
opportunity for public comment, one or more definitions of such
term which are appropriate to the activities of the agency and
which are based on such factors as location in rural or sparsely
populated areas or limited revenues due to the population of such
jurisdiction, and publishes such definition(s) in the Federal
Register;
(6)
the term "small entity" shall have the same meaning as
the terms "small business", "small organization"
and "small governmental jurisdiction" defined in
paragraphs (3), (4) and (5) of this section; and
(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.
§
602. Regulatory agenda
(a)
During the months of October and April of each year, each agency
shall publish in the Federal Register a regulatory flexibility
agenda which shall contain--
(1)
a brief description of the subject area of any rule which the
agency expects to propose or promulgate which is likely to have a
significant economic impact on a substantial number of small
entities;
(2)
a summary of the nature of any such rule under consideration for
each subject area listed in the agenda pursuant to paragraph (1),
the objectives and legal basis for the issuance of the rule, and
an approximate schedule for completing action on any rule for
which the agency has issued a general notice of proposed
rulemaking, and
(3)
the name and telephone number of an agency official knowledgeable
concerning the items listed in paragraph (1).
(b)
Each regulatory flexibility agenda shall be transmitted to the
Chief Counsel for Advocacy of the Small Business Administration
for comment, if any.
(c)
Each agency shall endeavor to provide notice of each regulatory
flexibility agenda to small entities or their representatives
through direct notification or publication of the agenda in
publications likely to be obtained by such small entities and
shall invite comments upon each subject area on the agenda.
(d)
Nothing in this section precludes an agency from considering or
acting on any matter not included in a regulatory flexibility
agenda, or requires an agency to consider or act on any matter
listed in such agenda.
§
603. Initial regulatory flexibility analysis
(a)
Whenever an agency is required by section 553 of this title, or
any other law, to publish general notice of proposed rulemaking
for any proposed rule, or publishes a notice of proposed
rulemaking for an interpretative rule involving the internal
revenue laws of the United States, the agency shall prepare and
make available for public comment an initial regulatory
flexibility analysis. Such analysis shall describe the impact of
the proposed rule on small entities. The initial regulatory
flexibility analysis or a summary shall be published in the
Federal Register at the time of the publication of general notice
of proposed rulemaking for the rule. The agency shall transmit a
copy of the initial regulatory flexibility analysis to the Chief
Counsel for Advocacy of the Small Business Administration. In 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.
(b)
Each initial regulatory flexibility analysis required under this
section shall contain--
(1)
a description of the reasons why action by the agency is being
considered;
(2)
a succinct statement of the objectives of, and legal basis for,
the proposed rule;
(3)
a description of and, where feasible, an estimate of the number of
small entities to which the proposed rule will apply;
(4)
a description of the projected reporting, recordkeeping and other
compliance requirements of the proposed 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;
(5)
an identification, to the extent practicable, of all relevant
Federal rules which may duplicate, overlap or conflict with the
proposed rule.
(c)
Each initial regulatory flexibility analysis shall also contain a
description of any significant alternatives to the proposed rule
which accomplish the stated objectives of applicable statutes and
which minimize any significant economic impact of the proposed
rule on small entities. Consistent with the stated objectives of
applicable statutes, the analysis shall discuss significant
alternatives such as--
(1)
the establishment of differing compliance or reporting
requirements or timetables that take into account the resources
available to small entities;
(2)
the clarification, consolidation, or simplification of compliance
and reporting requirements under the rule for such small entities;
(3)
the use of performance rather than design standards; and
(4)
an exemption from coverage of the rule, or any part thereof, for
such small entities.
§
604. Final regulatory flexibility analysis
(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, 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.
(b)
The agency shall make copies of the final regulatory flexibility
analysis available to members of the public and shall publish in
the Federal Register such analysis or a summary thereof.
§
605. Avoidance of duplicative or unnecessary analyses
(a)
Any Federal agency may perform the analyses required by sections
602, 603, and 604 of this title in conjunction with or as a part
of any other agenda or analysis required by any other law if such
other analysis satisfies the provisions of such sections.
(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.
(c)
In order to avoid duplicative action, an agency may consider a
series of closely related rules as one rule for the purposes of
sections 602, 603, 604 and 610 of this title.
§
606. Effect on other law
The
requirements of sections 603 and 604 of this title do not alter in
any manner standards otherwise applicable by law to agency action.
§
607. Preparation of analyses
In
complying with the provisions of sections 603 and 604 of this
title, an agency may provide either a quantifiable or numerical
description of the effects of a proposed rule or alternatives to
the proposed rule, or more general descriptive statements if
quantification is not practicable or reliable.
§
608. Procedure for waiver or delay of completion
(a)
An agency head may waive or delay the completion of some or all of
the requirements of section 603 of this title by publishing in the
Federal Register, not later than the date of publication of the
final rule, a written finding, with reasons therefor, that the
final rule is being promulgated in response to an emergency that
makes compliance or timely compliance with the provisions of
section 603 of this title impracticable.
(b)
Except as provided in section 605(b), an agency head may not waive
the requirements of section 604 of this title. An agency head may
delay the completion of the requirements of section 604 of this
title for a period of not more than one hundred and eighty days
after the date of publication in the Federal Register of a final
rule by publishing in the Federal Register, not later than such
date of publication, a written finding, with reasons therefor,
that the final rule is being promulgated in response to an
emergency that makes timely compliance with the provisions of
section 604 of this title impracticable. If the agency has not
prepared a final regulatory analysis pursuant to section 604 of
this title within one hundred and eighty days from the date of
publication of the final rule, such rule shall lapse and have no
effect. Such rule shall not be repromulgated until a final
regulatory flexibility analysis has been completed by the agency.
§
609. Procedures for gathering comments
(a)
When any rule is promulgated which will have a significant
economic impact on a substantial number of small entities, the
head of the agency promulgating the rule or the official of the
agency with statutory responsibility for the promulgation of the
rule shall assure that small entities have been given an
opportunity to participate in the rulemaking for the rule through
the reasonable use of techniques such as--
(1)
the inclusion in an advanced notice of proposed rulemaking, if
issued, of a statement that the proposed rule may have a
significant economic effect on a substantial number of small
entities;
(2)
the publication of general notice of proposed rulemaking in
publications likely to be obtained by small entities;
(3)
the direct notification of interested small entities;
(4)
the conduct of open conferences or public hearings concerning the
rule for small entities including soliciting and receiving
comments over computer networks; and
(5)
the adoption or modification of agency procedural rules to reduce
the cost or complexity of participation in the rulemaking by small
entities.
(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 purposes 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.
§
610. Periodic review of rules
(a)
Within one hundred and eighty days after the effective date of
this chapter, each agency shall publish in the Federal Register a
plan for the periodic review of the rules issued by the agency
which have or will have a significant economic impact upon a
substantial number of small entities. Such plan may be amended by
the agency at any time by publishing the revision in the Federal
Register. The purpose of the review shall be to determine whether
such rules should be continued without change, or should be
amended or rescinded, consistent with the stated objectives of
applicable statutes, to minimize any significant economic impact
of the rules upon a substantial number of such small entities. The
plan shall provide for the review of all such agency rules
existing on the effective date of this chapter within ten years of
that date and for the review of such rules adopted after the
effective date of this chapter within ten years of the publication
of such rules as the final rule. If the head of the agency
determines that completion of the review of existing rules is not
feasible by the established date, he shall so certify in a
statement published in the Federal Register and may extend the
completion date by one year at a time for a total of not more than
five years.
(b)
In reviewing rules to minimize any significant economic impact of
the rule on a substantial number of small entities in a manner
consistent with the stated objectives of applicable statutes, the
agency shall consider the following factors--
(1)
the continued need for the rule;
(2)
the nature of complaints or comments received concerning the rule
from the public;
(3)
the complexity of the rule;
(4)
the extent to which the rule overlaps, duplicates or conflicts
with other Federal rules, and, to the extent feasible, with State
and local governmental rules; and
(5)
the length of time since the rule has been evaluated or the degree
to which technology, economic conditions, or other factors have
changed in the area affected by the rule.
(c)
Each year, each agency shall publish in the Federal Register a
list of the rules which have a significant economic impact on a
substantial number of small entities, which are to be reviewed
pursuant to this section during the succeeding twelve months. The
list shall include a brief description of each rule and the need
for and legal basis of such rule and shall invite public comment
upon the rule.
§
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.
§
612. Reports and intervention rights
(a)
The Chief Counsel for Advocacy of the Small Business
Administration shall monitor agency compliance with this chapter
and shall report at least annually thereon to the President and to
the Committees on the Judiciary and Small Business of the Senate
and House of Representatives.
(b)
The Chief Counsel for Advocacy of the Small Business
Administration is authorized to appear as amicus curiae in any
action brought in a court of the United States to review a rule.
In any such action, the Chief Counsel is authorized to present his
or her views with respect to compliance with this chapter, the
adequacy of the rulemaking record with respect to small entities
and the effect of the rule on small entities.
(c)
A court of the United States shall grant the application of the
Chief Counsel for Advocacy of the Small Business Administration to
appear in any such action for the purposes described in subsection
(b).
(The
Regulatory Flexibility Act was originally passed in 1980 (P. L.
96-354). The Act was amended by the Small Business Regulatory
Enforcement Fairness Act of 1996 (P.L. 104-121)
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