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Title 5 — Government Organization and Employees — § 605. Avoidance of duplicative or unnecessary analyses

Summary

These pages (224 and 225) of Title 5, Government Organization and Employees, carry § 605, which lets an agency perform the analyses required by sections 602, 603 and 604 as part of any other analysis required by law, and exempts a rule from sections 603 and 604 if the head of the agency certifies that it will not have a significant economic impact on a substantial number of small entities. The certification, with a statement of its factual basis, must be published in the Federal Register and given to the Chief Counsel for Advocacy of the Small Business Administration, and a series of closely related rules may be treated as one rule. The pages also carry sections 606 to 608 and part of 609; under section 608 an agency head may delay a final analysis for not more than one hundred and eighty days in an emergency, after which a rule without one shall lapse and have no effect.

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§ 605                 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES                                              Page 224

§ 241(b), Mar. 29, 1996, 110 Stat. 864; Pub. L.                  pretative rules for which a notice of proposed rule-
111–203, title X, § 1100G(c), July 21, 2010, 124 Stat.           making was published prior to Mar. 29, 1996, see section
2113; Pub. L. 111–240, title I, § 1601, Sept. 27, 2010,          245 of Pub. L. 104–121, set out as a note under section 601
                                                                 of this title.
124 Stat. 2551.)
                                                                                     EFFECTIVE DATE
                      Editorial Notes                              Section effective Jan. 1, 1981, except that the require-
                                                                 ments of this section applicable only to rules for which
                       AMENDMENTS
                                                                 a notice of proposed rulemaking was issued on or after
   2010—Subsec. (a)(1). Pub. L. 111–240, § 1601(1), struck       Jan. 1, 1981, see section 4 of Pub. L. 96–354, set out as
out ‘‘succinct’’ before ‘‘statement’’.                           a note under section 601 of this title.
   Subsec. (a)(2). Pub. L. 111–240, § 1601(2), substituted
‘‘statement’’ for ‘‘summary’’ before ‘‘of the significant        § 605. Avoidance of duplicative or unnecessary
issues’’ and ‘‘of the assessment’’.                                  analyses
   Subsec. (a)(3), (4). Pub. L. 111–240, § 1601(3), (4), added
                                                                   (a) Any Federal agency may perform the anal-
par. (3) and redesignated former par. (3) as (4). Former
par. (4) redesignated (5).                                       yses required by sections 602, 603, and 604 of this
   Subsec. (a)(5). Pub. L. 111–240, § 1601(3), redesignated      title in conjunction with or as a part of any
par. (4) as (5). Former par. (5), relating to description of     other agenda or analysis required by any other
steps taken to minimize the significant economic im-             law if such other analysis satisfies the provi-
pact on small entities, redesignated (6).                        sions of such sections.
   Pub. L. 111–203, § 1100G(c)(1), which directed amend-           (b) Sections 603 and 604 of this title shall not
ment of par. (4) by striking ‘‘and’’ at the end, was exe-        apply to any proposed or final rule if the head of
cuted to par. (5) to reflect the probable intent of Con-         the agency certifies that the rule will not, if
gress and the intervening redesignation of par. (4) as (5)       promulgated, have a significant economic im-
by Pub. L. 111–240, § 1601(3). See above.
                                                                 pact on a substantial number of small entities.
   Subsec. (a)(6). Pub. L. 111–240, § 1601(3), redesignated
par. (5), relating to description of steps taken to mini-        If the head of the agency makes a certification
mize the significant economic impact on small entities,          under the preceding sentence, the agency shall
as (6).                                                          publish such certification in the Federal Reg-
   Pub. L. 111–203, § 1100G(c)(3), added par. (6) relating to    ister at the time of publication of general notice
description of steps taken to minimize any additional            of proposed rulemaking for the rule or at the
cost of credit for small entities.                               time of publication of the final rule, along with
   Pub. L. 111–203, § 1100G(c)(2), which directed amend-         a statement providing the factual basis for such
ment of par. (5) by substituting ‘‘; and’’ for period at         certification. The agency shall provide such cer-
end, was executed to par. (6), relating to description of
                                                                 tification and statement to the Chief Counsel
steps taken to minimize the significant economic im-
pact on small entities, to reflect the probable intent of        for Advocacy of the Small Business Administra-
Congress and the intervening redesignation of par. (5)           tion.
as (6) by Pub. L. 111–240, § 1601(3). See above.                   (c) In order to avoid duplicative action, an
   1996—Subsec. (a). Pub. L. 104–121, § 241(b)(1), amended       agency may consider a series of closely related
subsec. (a) generally. Prior to amendment, subsec. (a)           rules as one rule for the purposes of sections 602,
read as follows: ‘‘When an agency promulgates a final            603, 604 and 610 of this title.
rule under section 553 of this title, after being required
by that section or any other law to publish a general            (Added Pub. L. 96–354, § 3(a), Sept. 19, 1980, 94
notice of proposed rulemaking, the agency shall pre-             Stat. 1167; amended Pub. L. 104–121, title II,
pare a final regulatory flexibility analysis. Each final         § 243(a), Mar. 29, 1996, 110 Stat. 866.)
regulatory flexibility analysis shall contain—
     ‘‘(1) a succinct statement of the need for, and the                              Editorial Notes
   objectives of, the rule;                                                            AMENDMENTS
     ‘‘(2) a summary of the issues raised by the public
   comments in response to the initial regulatory flexi-           1996—Subsec. (b). Pub. L. 104–121 amended subsec. (b)
   bility analysis, a summary of the assessment of the           generally. Prior to amendment, subsec. (b) read as fol-
   agency of such issues, and a statement of any                 lows: ‘‘Sections 603 and 604 of this title shall not apply
   changes made in the proposed rule as a result of such         to any proposed or final rule if the head of the agency
   comments; and                                                 certifies that the rule will not, if promulgated, have a
     ‘‘(3) a description of each of the significant alter-       significant economic impact on a substantial number
   natives to the rule consistent with the stated objec-         of small entities. If the head of the agency makes a cer-
   tives of applicable statutes and designed to minimize         tification under the preceding sentence, the agency
   any significant economic impact of the rule on small          shall publish such certification in the Federal Register,
   entities which was considered by the agency, and a            at the time of publication of general notice of proposed
   statement of the reasons why each one of such alter-          rulemaking for the rule or at the time of publication of
   natives was rejected.’’                                       the final rule, along with a succinct statement explain-
   Subsec. (b). Pub. L. 104–121, § 241(b)(2), substituted        ing the reasons for such certification, and provide such
‘‘such analysis or a summary thereof.’’ for ‘‘at the time        certification and statement to the Chief Counsel for
of publication of the final rule under section 553 of this       Advocacy of the Small Business Administration.’’
title a statement describing how the public may obtain
such copies.’’                                                          Statutory Notes and Related Subsidiaries
                                                                          EFFECTIVE DATE OF 1996 AMENDMENT
        Statutory Notes and Related Subsidiaries
                                                                   Amendment by Pub. L. 104–121 effective on expiration
          EFFECTIVE DATE OF 2010 AMENDMENT                       of 90 days after Mar. 29, 1996, but inapplicable to inter-
                                                                 pretative rules for which a notice of proposed rule-
  Amendment by Pub. L. 111–203 effective on the des-             making was published prior to Mar. 29, 1996, see section
ignated transfer date, see section 1100H of Pub. L.              245 of Pub. L. 104–121, set out as a note under section 601
111–203, set out as a note under section 552a of this title.     of this title.
          EFFECTIVE DATE OF 1996 AMENDMENT                                           EFFECTIVE DATE
  Amendment by Pub. L. 104–121 effective on expiration             Section effective Jan. 1, 1981, see section 4 of Pub. L.
of 90 days after Mar. 29, 1996, but inapplicable to inter-       96–354, set out as a note under section 601 of this title.
Page 225             TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES                                          § 609

§ 606. Effect on other law                                   § 609. Procedures for gathering comments
  The requirements of sections 603 and 604 of                  (a) When any rule is promulgated which will
this title do not alter in any manner standards              have a significant economic impact on a sub-
otherwise applicable by law to agency action.                stantial number of small entities, the head of
(Added Pub. L. 96–354, § 3(a), Sept. 19, 1980, 94            the agency promulgating the rule or the official
Stat. 1168.)                                                 of the agency with statutory responsibility for
                                                             the promulgation of the rule shall assure that
       Statutory Notes and Related Subsidiaries              small entities have been given an opportunity to
                                                             participate in the rulemaking for the rule
                    EFFECTIVE DATE                           through the reasonable use of techniques such
  Section effective Jan. 1, 1981, see section 4 of Pub. L.   as—
96–354, set out as a note under section 601 of this title.       (1) the inclusion in an advanced notice of
                                                               proposed rulemaking, if issued, of a statement
§ 607. Preparation of analyses
                                                               that the proposed rule may have a significant
  In complying with the provisions of sections                 economic effect on a substantial number of
603 and 604 of this title, an agency may provide               small entities;
either a quantifiable or numerical description of                (2) the publication of general notice of pro-
the effects of a proposed rule or alternatives to              posed rulemaking in publications likely to be
the proposed rule, or more general descriptive                 obtained by small entities;
statements if quantification is not practicable                  (3) the direct notification of interested small
or reliable.                                                   entities;
                                                                 (4) the conduct of open conferences or public
(Added Pub. L. 96–354, § 3(a), Sept. 19, 1980, 94              hearings concerning the rule for small entities
Stat. 1168.)                                                   including soliciting and receiving comments
                                                               over computer networks; and
       Statutory Notes and Related Subsidiaries
                                                                 (5) the adoption or modification of agency
                    EFFECTIVE DATE                             procedural rules to reduce the cost or com-
  Section effective Jan. 1, 1981, see section 4 of Pub. L.     plexity of participation in the rulemaking by
96–354, set out as a note under section 601 of this title.     small entities.
§ 608. Procedure for waiver or delay of comple-                (b) Prior to publication of an initial regu-
    tion                                                     latory flexibility analysis which a covered agen-
                                                             cy is required to conduct by this chapter—
  (a) An agency head may waive or delay the                      (1) a covered agency shall notify the Chief
completion of some or all of the requirements of               Counsel for Advocacy of the Small Business
section 603 of this title by publishing in the Fed-            Administration and provide the Chief Counsel
eral Register, not later than the date of publica-             with information on the potential impacts of
tion of the final rule, a written finding, with                the proposed rule on small entities and the
reasons therefor, that the final rule is being pro-            type of small entities that might be affected;
mulgated in response to an emergency that                        (2) not later than 15 days after the date of re-
makes compliance or timely compliance with                     ceipt of the materials described in paragraph
the provisions of section 603 of this title imprac-            (1), the Chief Counsel shall identify individuals
ticable.                                                       representative of affected small entities for
  (b) Except as provided in section 605(b), an                 the purpose of obtaining advice and rec-
agency head may not waive the requirements of                  ommendations from those individuals about
section 604 of this title. An agency head may                  the potential impacts of the proposed rule;
delay the completion of the requirements of sec-                 (3) the agency shall convene a review panel
tion 604 of this title for a period of not more                for such rule consisting wholly of full time
than one hundred and eighty days after the date                Federal employees of the office within the
of publication in the Federal Register of a final              agency responsible for carrying out the pro-
rule by publishing in the Federal Register, not                posed rule, the Office of Information and Reg-
later than such date of publication, a written                 ulatory Affairs within the Office of Manage-
finding, with reasons therefor, that the final                 ment and Budget, and the Chief Counsel;
rule is being promulgated in response to an                      (4) the panel shall review any material the
emergency that makes timely compliance with                    agency has prepared in connection with this
the provisions of section 604 of this title imprac-            chapter, including any draft proposed rule,
ticable. If the agency has not prepared a final                collect advice and recommendations of each
regulatory analysis pursuant to section 604 of                 individual small entity representative identi-
this title within one hundred and eighty days                  fied by the agency after consultation with the
from the date of publication of the final rule,                Chief Counsel, on issues related to subsections
such rule shall lapse and have no effect. Such                 603(b), paragraphs (3), (4) and (5) and 603(c);
rule shall not be repromulgated until a final reg-               (5) not later than 60 days after the date a
ulatory flexibility analysis has been completed                covered agency convenes a review panel pursu-
by the agency.                                                 ant to paragraph (3), the review panel shall re-
                                                               port on the comments of the small entity rep-
(Added Pub. L. 96–354, § 3(a), Sept. 19, 1980, 94              resentatives and its findings as to issues re-
Stat. 1168.)                                                   lated to subsections 603(b), paragraphs (3), (4)
       Statutory Notes and Related Subsidiaries
                                                               and (5) and 603(c), provided that such report
                                                               shall be made public as part of the rulemaking
                    EFFECTIVE DATE                             record; and
  Section effective Jan. 1, 1981, see section 4 of Pub. L.       (6) where appropriate, the agency shall mod-
96–354, set out as a note under section 601 of this title.     ify the proposed rule, the initial regulatory


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