Regulatory Flexibility Act: Agencies' Interpretations of Review Requirements Vary

GGD-99-55 Published: Apr 02, 1999. Publicly Released: Apr 19, 1999.
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Highlights

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.

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Recommendations

Matter for Congressional Consideration

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

Recommendations for Executive Action

Agency Affected Recommendation Status
Office of Information and Regulatory Affairs 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).
Closed - Implemented
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.
Regulatory Information Service Center 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.
Closed - Implemented
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.
Regulatory Information Service Center 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.
Closed - Implemented
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."

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