Agency Interpretation of Admin Law Requirements
When issuing rules, agencies usually avoid the Reg Flex Act (RFA), which requires consideration of regulatory impacts on small businesses and other small entities. My forthcoming article in theAdministrative Law Review explains why and how agencies have avoided providing Reg Flex analyses for over 92 percent of rules.
The House recently passed a bill that contains a number of provisions to monitor this agency avoidance more closely. This bill is controversial and has drawn a White House veto threat.
One particularly interesting provision would grant an office within the Small Business Administration power to issue rules governing agency compliance with the Reg Flex Act. This would be an important change, as my forthcoming article shows that under current law SBA lacks power to define the critical but very vague Reg Flex Act provisions.
If the House bill were to pass, the Reg Flex Act might look like the National Environmental Policy Act, which has a detailed set of regulations issued by the Council on Environmental Quality. The NEPA experience (which is admittedly quite complicated and also involves a number of important judicial decisions) suggests that this provision could be an important change that may succeed where other congressional efforts to bolster the Reg Flex Act have failed.
More broadly, it also suggests the need for greater study of agency interpretation of administrative law requirements.