March 31, 2011
Partner David E. Frulla was quoted in the Washington Business Journal article, "Feds fail to adapt rules for small biz." The article discussed the often failed efforts of federal agencies to fully take into account the concerns of small businesses as it pertains to the federal regulations they choose to implement. The 1980 Regulatory Flexibility Act (RFA) was put in place to both give small businesses greater influence in the regulatory process and ensure that federal agencies took into account the effect of their regulations on those businesses. However it has been shown that agencies do not always show compliance with the spirit of this act.
"The RFA has been interpreted to be strictly procedural," said Mr. Frulla. "Agencies are not required to choose the least burdensome viable regulatory option [and] no requirement exists for an agency's RFA analysis to be based on the best scientific, economic and social information available." He said that, "The fact that the RFA lacks any substantive obligation has, quite frankly, limited its utility."
He was noted saying that among the most significant flaws in existing law is the lack of a clear requirement for agencies to adopt more flexible regulatory alternatives to proposed rules to limit the burden on the small business community. "Some agencies provide those alternatives anyway, but many don't," he said. "When such a failure occurs, it generally has one of two roots: One, the agency really has not understood or acknowledged the true nature of the regulatory burden [that would be inflicted] on small entities, or, two, the agency does understand the unnecessary burden and decides to inflict it anyway. Neither outcome should be acceptable."