Book Description

Section 212 does not appear to have had much of an impact in the agencies and years that we examined, and its implementation has varied across and sometimes within the agencies. The statute gives agencies broad discretion to decide which of their rules require compliance guides, what has to be in the guides, how they are developed, when they have to be published, and how they are distributed to affected small entities. Using that discretion, an agency could legally exclude all of its rules from coverage by the statute, designate a previously published document as its small entity compliance guide, or develop and publish a guide with no input from small entities years after the covered rule takes effect. Some of the ineffectiveness and inconsistency in the implementation of section 212 are traceable to the broad discretion provided to agencies in the RFA regarding the term significant economic impact on a substantial number of small entities. Although a single, rigid definition of this term may not be feasible, we believe that some additional clarity can be provided. Other problems with the compliance guide requirement are traceable to section 212 itself. We offer suggestions on how Congress may wish to amend the statute to make clear when agencies must prepare a compliance guide under section 212 and the meaning of key terms in the statute.