Regulatory Flexibility Act:

Agencies' Interpretations of Review Requirements Vary

GGD-99-55: Published: Apr 2, 1999. Publicly Released: Apr 19, 1999.

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Pursuant to a congressional request, GAO updated its previous reports on agencies' use of the Unified Agenda of Federal Regulatory and Deregulatory Actions to publish final rule notices, focusing on: (1) how many agencies had no Agenda entries that were characterized as Regulatory Flexibility Act (RFA) of 1980, section 610 reviews, whether agencies are interpreting the review requirements consistently, and why certain agencies that appeared subject to the requirements had no entries; (2) how many of the section 610 review entries in these Agendas appeared to meet the notification requirements in subsection 610(c); (3) if the section 610 review entries did not appear to meet the statutory requirements, why certain agencies' entries were characterized as section 610 reviews; and (4) whether any federal agencies had revised their section 610 review plans.

GAO noted that: (1) the April 1998 and November 1998 editions of the Unified Agenda each contained about 4,500 entries that were submitted by 61 federal departments, agencies, and commissions; (2) the April 1998 edition of the Agenda identified 22 entries from 7 agencies as section 610 reviews; (3) the November 1998 edition of the Agenda identified 31 entries from 8 agencies as section 610 reviews; (4) 6 of the more than 50 agencies with no section 610 review entries in either edition of the Agenda indicated in these and 19 previous editions of the Agenda that many of their regulatory actions would have a significant economic impact on a substantial number of small entities (SEISNSE), thereby indicating that the agencies may need to review these rules under section 610; (5) officials in three of these agencies offered different reasons why their agencies had no section 610 review entries in the April or November editions of the Agenda; (6) however, GAO could not determine with certainty whether any of the agencies without section 610 review entries in these editions of the Agenda should have had such entries; (7) also, no data are readily available to identify such rules and agencies differ in their interpretations of the section 610 review requirements; (8) of the 22 entries in the April 1998 Unified Agenda that were characterized as section 610 reviews, only 2 appeared to satisfy all of the public notification requirements of subsection 610(c) of the RFA; (9) of the 31 section 610 review entries in the November 1998 edition of the Agenda, only one appeared to satisfy all of the requirements of subsection 610(c) of the RFA; (10) the entries frequently indicated that the underlying rules would not have a SEISNSE and that the rules had already been reviewed; (11) the Department of Transportation (DOT) and the Environmental Protection Agency had the most section 610 review entries in the April 1998 and November 1998 editions of the Unified Agenda; (12) many of their section 610 review entries did not appear to meet the notice requirements of subsection 610(c) because they used the Section 610 Review notation to inform the public about the results of previously conducted reviews, and because of the way in which they interpreted certain entry elements in the Agenda; (13) DOT said it would review all of its rules between 1998 and 2008 to determine whether any rule published within the previous 10 years had a SEISNSE; and (14) for any such rule, DOT said it would then determine whether the impact of the rule could be lessened.

Matter for Congressional Consideration

  1. Status: Closed - Not Implemented

    Comments: Congress has not amended the Regulatory Flexibility Act (RFA; 5 U.S.C. 601-612) to clarify the meaning of section 610.

    Matter: If Congress is concerned that section 610 of the Regulatory Flexibility Act has been subject to varying interpretations, it may wish to consider specifying whether section 610 reviews should be done of rules that had a significant economic impact on a substantial number of small entities (SEISNSE) at the time they were published as final rules or whether such reviews should be done of rules that, at the time of the review, have a SEISNSE.

Recommendations for Executive Action

  1. Status: Closed - Implemented

    Comments: After consulting with OIRA and the agencies, the Regulatory Information Service Center instructed agencies that their entries should differentiate between future/ongoing section 610 reviews and reviews that are completed. Doing so should avoid confusion regarding whether the agencies' entries meet the requirements of the act. In July 1999, OIRA issued guidance to the agencies regarding how the October 1999 Agenda entries should be prepared, which reflected this change in format.

    Recommendation: In fulfilling his responsibilities under Executive Order 12866 to specify how agencies should prepare their agendas, the Acting Administrator, Office of Information and Regulatory Affairs (OIRA), should instruct agencies that choose to use the Unified Agenda to satisfy the requirements of subsection 610(c) of the RFA on how to do so. Specifically, the Acting OIRA Administrator should require agencies to indicate in the notation after the entry titles whether their section 610 review entries are forthcoming reviews (with the notation New Section 610 Review) or report the results of previously conducted reviews (with the notation Results of Section 610 Review).

    Agency Affected: Executive Office of the President: Office of Management and Budget: Office of Information and Regulatory Affairs

  2. Status: Closed - Implemented

    Comments: After consulting with OIRA and the agencies, the Regulatory Information Service Center instructed agencies that their entries should differentiate between future/ongoing section 610 reviews and reviews that are completed. Doing so should avoid confusion regarding whether the agencies' entries meet the requirements of the act. In the data form instructions for the October 1999 Uniformed Agenda, RISC told the agencies to check one of three boxes: (1) Section 610 Review (Planned or Current); (2) Completion of Section 610 Review; or (3) Rulemaking from a Section 610 Review. The October 1999 index reflected these different categories.

    Recommendation: The Acting Executive Director, Regulatory Information Service Center (RISC), should reflect this difference between forthcoming and completed section 610 reviews in the Unified Agenda's index to entries that agencies have designated for section 610 review.

    Agency Affected: General Services Administration: Regulatory Information Service Center

  3. Status: Closed - Implemented

    Comments: In July 1999, the Administrator of OMB's Office of Information and Regulatory Affairs notified regulatory policy officers at executive departments and agencies that the information provided in each Agenda entry "should apply to the current activity you are reporting, and not to the underlying rule that you are reviewing or amending."

    Recommendation: The Acting Executive Director, RISC, should clarify whether the Regulatory Flexibility Analysis Required field in a section 610 review entry refers to the underlying rule being reviewed or to the effect of the review itself.

    Agency Affected: General Services Administration: Regulatory Information Service Center

 

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