Title 5, U.S. Code
Chapter 6—The Analysis of Regulatory Functions
Sec. 601. Definitions.
Sec. 602. Regulatory agenda.
Sec. 603. Initial regulatory flexibility analysis.
Sec. 604. Final regulatory flexibility analysis.
Sec. 605. Avoidance of duplicative or unnecessary analyses.
Sec. 606. Effect on other law.
Sec. 607. Preparation of analyses.
Sec. 608. Procedure for waiver or delay of completion.
Sec. 609. Procedures for gathering comments.
Sec. 610. Periodic review of rules.
Sec. 611. Judicial review.
Sec. 612. Reports and intervention rights.
Sec. 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.
Sec. 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, [1] and 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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).