The Office of Advocacy (Advocacy) highlighted a recent American Bar Association (ABA) panel on the Regulatory Flexibility Act (RFA). The panel was part of the ABA’s semi-annual Administrative Law conference, which focuses on how federal agencies operate and issue regulations. The RFA, which requires federal agencies to consider the impact of their regulations on small businesses, is an integral part of that administrative law process.
Advocacy staff, along with representatives from the National Federal of Independent Business (NFIB) and the American Road and Transportation Builders Association formed the panel. Advocacy’s Assistant Chief Counsel Bruce Lundegren kicked off the panel by explaining what the RFA is and what it requires. He noted that the RFA requires an economic analysis of regulations to lessen the impact on small businesses.
Next, Patrick Delehanty, Advocacy’s director of Economic Research, walked through an example of what a proper RFA analysis looks like. He also noted that considering significant regulatory alternatives is a key aspect of the analysis.
After Delehanty, Beth Milito from the NFIB Small Business Legal Center outlined the various legal cases that have been brought under the RFA and the judicial decisions that shape its application. She noted that while early cases did not allow for judicial review, Congress amended the statute to protect the right to sue agencies for failure to comply. NFIB’s Legal Center has been involved in several lawsuits under the RFA that have defined the scope and enforceability of the statute.
Finally, Prianka Sharma, vice president and counsel with the American Road and Transportation Builders Association, discussed how small businesses can effectively participate in the rulemaking process and ensure that their voice is heard. She outlined strategies for effective communication, comment letter writing, and using the RFA to ensure agencies better understand the regulations they issue. The Office of Advocacy has developed similar materials for effective small business participation and communication in the rulemaking process; for more information, view and download our Basic Guide to Federal Rulemaking.
The RFA panel was one of several on ABA’s crowded two-day agenda and was timely given the plethora of regulations that small businesses confront. Hopefully, understanding the statute will help agencies to better analyze the impact of their rules and adopt more sound regulations for small businesses.
The Office of Advocacy provides training on the RFA for all federal agencies under Executive Order 13272 and would welcome the opportunity to schedule training for any federal agency. Advocacy is also available to speak to small businesses and trade associations about the RFA and effective participation in the regulatory process. For more information, please contact Bruce Lundgren, assistant chief counsel, at bruce.lundegren@sba.gov.