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)