Problem 2-7

 

UNFUNDED MANDATES

REGULATORY FLEXIBILITY

E.O. 12866

TRIGGER

§  421(1): executive agency
 

§  202(a): “federal mandate” causing aggregate expenditures by “governments” or “private sector” of $100 million or more.

§   601(1): executive or independent agency

§   603(a): any time §503 requires NPR
 

§   605(b): unless no significant impact on substantial number of small entities

§      3(b): executive agency
 

§      3(f)(1): rule with impact of $100 million or more on economy or “adversely affect in material way” economy,... “governments”

ANALYSIS REQUIREMENTS

§   202(a): identification, anticipated costs & benefits, future costs, impact on national economy

§   603(a)(b)(4): estimates of classes of small entities impacted by paperwork requirements and of professional skills necessary to meet requirements
 

§      603(c): analysis methods to reduce regulatory impact on small entities

§       6(a)(B): assessment of costs & benefits, cost & benefits of feasible alternatives.

PUBLICATION

§   202(b): summary of results in NPR

 

 

§   603(a): summary of initial results in NPR
 

§  604(b): summary of final results at time final rule is published

§  6(a)(3)(D): make the analysis available to the public.

CONSULTATION

§   202(a) statement of extent of prior consultation, summaries, and response
 

§   204: develop process to permit elected officials input

§  609(a): special procedures to notify small entities
 

§  609(b): EPA & OSHA must establish interagency review panel to review comments of small entity representatives

§  6(a)(1): involve, where appropriate, interested persons, such as governmental officials (ii) minimum of 60 day comment period

SUBSTANTIVE

REQUIREMENTS

§   205(a)-(b): impose least burdensome option or explain choice

 

§   1(a) choose alternative that maximizes net benefits
 

§   1(b)(5): design regulations in most cost effective manner
 

§   1(b)(11): tailor regulations to impose least burden on society

EXECUTIVE

ENFORCEMENT

§   205(c): certifies to Congress compliance with 205(a)-(b)

§   612: SBA Chief Counsel for Advocacy reports to President (and Congress)

 

§   6(b): OMB oversight

§   7: resolution of conflicts by VP

JUDICIAL REVIEW

§   401: (i) substantive review restricted to §706(1)(B);

(ii)
can compel agency to undertake a report

(iii) inadequacy or failure to prepare report is not a basis for invaliding a rule

(iv) study becomes part of rulemaking record

§   611(a)(1)-(2): review of compliance with procedural requirements
 

§   611(a)(4): if noncompliance, court can remand rule or stay enforcement against small entities
 

§   611(b): study becomes part of rulemaking record

§   None