Reexamining Rules: Section 610 of the Regulatory Flexibility Act

Publication Date: March 2005

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Government

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Abstract:

As part of a broader regulatory reform agenda, some interest groups have suggested that Congress require agencies to reexamine their existing regulations to determine whether they are still needed or can be made less burdensome. One model that has been suggested for such regulatory "lookbacks" is an expansion of a requirement in Section 610 of the Regulatory Flexibility Act (RFA) of 1980. That provision requires each agency to develop a plan for the review of its existing rules that have or will have a "significant economic impact on a substantial number of small entities." Agencies are required to review any new rules within 10 years of their publication as a final rule, and to provide an annual Federal Register notice of rules they have designated for review within the next 12 months. The Unified Agenda of Federal Regulatory and Deregulatory Actions is intended to be a compendium of agency rulemaking actions within the next 12 months. Therefore, the number of Section 610 notices in the Unified Agenda should provide some indication of the extent to which agencies are conducting the required "lookbacks" under the RFA.

Although this statutory "lookback" requirement has been in place since 1981, it difficult to determine with any degree of certainty whether agencies are consistently implementing it. However, it appears that agencies are carrying out relatively few Section 610 reviews. Several agencies have consistently indicated that they plan to issue dozens of rules each year with a significant impact on small entities, but have published few if any notices of Section 610 reviews in the Unified Agenda. The RFA gives agencies a significant amount of discretion to decide which rules are covered by the review requirement. There also appears to be substantial confusion or disagreement among the agencies regarding what Section 610 requires, thereby limiting its effectiveness. For example, some agencies said the statutes underlying their rules had a significant impact on small entities, not the rules themselves, so they did not have to review them under Section 610.

The poor implementation history of Section 610 of the RFA offers a number of valuable lessons for current advocates of even broader "lookback" reviews. For any such process to work, Congress faces the challenge of clearly specifying what rules should be reviewed and how the reviews should be conducted. Also, some means of tracking the reviews, congressional or executive branch oversight, and a meaningful enforcement mechanism appear important to improving the implementation of the lookback requirement. Otherwise, agencies are unlikely to conduct many more reviews than have occurred pursuant to Section 610. Legislation has been introduced in the 109th Congress (H.R. 682) that addresses some of the issues regarding the implementation of the RFA and Section 610 reviews.

This report will be updated when additional information about Section 610 or broader lookback reviews become available.