Regulatory Flexibility Act Exposed

The Regulatory Flexibility Act was adopted by ALEC's Commerce, Insurance, and Economic Development Task Force and approved by the ALEC Board of Directors in 2003. According to ALEC.org, the Act was reviewed by the CIED Task Force at the States and Nation Policy Summit on November 30, 2012, and approved by the ALEC Legislative Board on January 28, 2013. (Accessed on 7/14/2015).

CMD's Bill Summary

This bill promotes deregulation "by creating procedures to analyze the availability of more flexible regulatory approaches for small business." It requires that agencies review all regulations to make sure they do not impose a disproportionate burden on small business. It also allows small businesses to seek judicial review of agency actions that don't comply with this law.

This is essentially a state version of the federal bill of the same name passed in 1980, along with amendments in 1996 that added judicial review.

ALEC Bill Text

Summary

A bill* to improve state rulemaking by creating procedures to analyze the availability of more flexible regulatory approaches for small businesses.

Findings:

(1) A vibrant and growing small business sector is critical to creating jobs in a dynamic economy;

(2) Small businesses bear a disproportionate share of regulatory costs and burdens;

(3) Fundamental changes that are needed in the regulatory and enforcement culture of state agencies to make them more responsive to small business can be made without compromising the statutory missions of the agencies;

(4) When adopting regulations to protect the health, safety and economic welfare of [State], state agencies should seek to achieve statutory goals as effectively and efficiently as possible without imposing unnecessary burdens on the public;

(5) Uniform regulatory and reporting requirements can impose unnecessary and disproportionately burdensome demands including legal, accounting and consulting costs upon small businesses with limited resources;

(6) The failure to recognize differences in the scale and resources of regulated businesses can adversely affect competition in the marketplace, discourage innovation and restrict improvements in productivity;

(7) Unnecessary regulations create entry barriers in many industries and discourage potential entrepreneurs from introducing beneficial products and processes;

(8) The practice of treating all regulated businesses as equivalent may lead to inefficient use of regulatory agency resources, enforcement problems, and, in some cases, to actions inconsistent with the legislative intent of health, safety, environmental and economic welfare legislation;

(9) Alternative regulatory approaches that do not conflict with the stated objective of applicable statutes may be available to minimize the significant economic impact of rules on small businesses;

(10) The process by which state regulations are developed and adopted should be reformed to require agencies to solicit the ideas and comments of small businesses, to examine the impact of proposed and existing rules on such businesses, and to review the continued need for existing rules.

Model Legislation

Section 1. {Short Title}

This act may be cited as the Regulatory Flexibility Act of [2003]

Section 2. {Definitions}

(a) As used in this section:

(1) "Agency" means each state board, commission, department or officer authorized by law to make regulations or to determine contested cases;

(2) "Proposed regulation" means a proposal by an agency for a new regulation or for a change in, addition to or repeal of an existing regulation;

(3) "Regulation" means each agency statement of general applicability, without regard to its designation, that implements, interprets, or prescribes law or policy, or describes the organization, procedure, or practice requirements of any agency. The term includes the amendment or repeal of a prior regulation, but does not include

• statements concerning only the internal management of any agency and not affecting private rights or procedures available to the public,

• declaratory rulings or

• intra-agency or interagency memoranda;

(4) "Small business" means a business entity, including its affiliates, that

• is independently owned and operated and

• employs fewer than [five hundred] full-time employees or has gross annual sales of less than [six] million dollars.

Section 3. {Economic Impact Statements}

(a) Prior to the adoption of any proposed regulation that may have an adverse impact on small businesses, each agency shall prepare an economic impact statement that includes the following:

(1) An identification and estimate of the number of the small businesses subject to the proposed regulation;

(2) The projected reporting, record keeping and other administrative costs required for compliance with the proposed regulation, including the type of professional skills necessary for preparation of the report or record;

(3) A statement of the probable effect on impacted small businesses;

(4) A description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation.

Section 4. {Regulations Affecting Small Businesses}

(a) Prior to the adoption of any proposed regulation on and after [January 1, 2003], each agency shall prepare a regulatory flexibility analysis in which the agency shall, where consistent with health, safety, environmental and economic welfare consider utilizing regulatory methods that will accomplish the objectives of applicable statutes while minimizing adverse impact on small businesses. The agency shall consider, without limitation, each of the following methods of reducing the impact of the proposed regulation on small businesses:

(1) The establishment of less stringent compliance or reporting requirements for small businesses;

(2) The establishment of less stringent schedules or deadlines for compliance or reporting requirements for small businesses;

(3) The consolidation or simplification of compliance or reporting requirements for small businesses;

(4) The establishment of performance standards for small businesses to replace design or operational standards required in the proposed regulation; and

(5) The exemption of small businesses from all or any part of the requirements contained in the proposed regulation.

(b) Prior to the adoption of any proposed regulation that may have an adverse impact on small businesses, each agency shall notify the [Department of Economic and Community Development or similar state department or council that exists to review regulations] of its intent to adopt the proposed regulation. The [Department of Economic and Community Development or similar state department or council that exists to review regulations] shall advise and assist agencies in complying with the provisions of this section.

Section 5. {Judicial Review}

(a) For any regulation subject to this section, a small business that is adversely affected or aggrieved by final agency action is entitled to judicial review of agency compliance with the requirements of this section.

(b) A small business may seek such review during the period beginning on the date of final agency action and ending one year later.

Section 6. {Periodic Review of Rules}

(a) Within four years of the enactment of this law, each agency shall review all agency rules existing at the time of enactment to determine whether such rules should be continued without change, or should be amended or rescinded, consistent with the stated objectives of those statutes, to minimize economic impact of the rules on small businesses in a manner consistent with the stated objective of applicable statutes. If the head of the agency determines that completion of the review of existing rules is not feasible by the established date the agency shall publish a statement certifying that determination. The agency may extend the completion date by one year at a time for a total of not more than five years.

(b) Rules adopted after the enactment of this law should be reviewed every five years of the publication of such rules as the final rule to ensure that they minimize economic impact on small businesses in a manner consistent with the stated objectives of applicable statutes.

(c) In reviewing rules to minimize economic impact of the rule on small businesses, the agency shall consider the following factors--

(1) The continued need for the rule;

(2) The nature of complaints or comments received concerning the rule from the public;

(3) The complexity of the rule;

(4) The extent to which the rule overlaps, duplicates or conflicts with other Federal, State and local governmental rules; and

(5) The length of time since the rule has been evaluated or the degree to which technology, economic conditions, or other factors have changed in the area affected by the rule.

Endnotes

• This model legislation was based in part by legislation drafted by Connecticut [see Conn. Gen. Stat. Ann. §4-168a (Westlaw through 2001)]. Connecticut’s regulatory flexibility is successful in part because of an accompanying piece of legislation that enacted a Regulatory Review Committee, which has power to veto regulations [see Conn. Gen. Stat. Ann. §4-170 (Westlaw through 2001)].

Adopted by the CIED Task Force and approved by the ALEC Board of Directors in 2003.