
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 2002]
[CITE: 5USC609]

 
             TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES
 
                     PART I--THE AGENCIES GENERALLY
 
             CHAPTER 6--THE ANALYSIS OF REGULATORY FUNCTIONS
 
Sec. 609. Procedures for gathering comments

    (a) When any rule is promulgated which will have a significant 
economic impact on a substantial number of small entities, the head of 
the agency promulgating the rule or the official of the agency with 
statutory responsibility for the promulgation of the rule shall assure 
that small entities have been given an opportunity to participate in the 
rulemaking for the rule through the reasonable use of techniques such 
as--
        (1) the inclusion in an advanced notice of proposed rulemaking, 
    if issued, of a statement that the proposed rule may have a 
    significant economic effect on a substantial number of small 
    entities;
        (2) the publication of general notice of proposed rulemaking in 
    publications likely to be obtained by small entities;
        (3) the direct notification of interested small entities;
        (4) the conduct of open conferences or public hearings 
    concerning the rule for small entities including soliciting and 
    receiving comments over computer networks; and
        (5) the adoption or modification of agency procedural rules to 
    reduce the cost or complexity of participation in the rulemaking by 
    small entities.

    (b) Prior to publication of an initial regulatory flexibility 
analysis which a covered agency is required to conduct by this chapter--
        (1) a covered agency shall notify the Chief Counsel for Advocacy 
    of the Small Business Administration and provide the Chief Counsel 
    with information on the potential impacts of the proposed rule on 
    small entities and the type of small entities that might be 
    affected;
        (2) not later than 15 days after the date of receipt of the 
    materials described in paragraph (1), the Chief Counsel shall 
    identify individuals representative of affected small entities for 
    the purpose of obtaining advice and recommendations from those 
    individuals about the potential impacts of the proposed rule;
        (3) the agency shall convene a review panel for such rule 
    consisting wholly of full time Federal employees of the office 
    within the agency responsible for carrying out the proposed rule, 
    the Office of Information and Regulatory Affairs within the Office 
    of Management and Budget, and the Chief Counsel;
        (4) the panel shall review any material the agency has prepared 
    in connection with this chapter, including any draft proposed rule, 
    collect advice and recommendations of each individual small entity 
    representative identified by the agency after consultation with the 
    Chief Counsel, on issues related to subsections 603(b), paragraphs 
    (3), (4) and (5) and 603(c);
        (5) not later than 60 days after the date a covered agency 
    convenes a review panel pursuant to paragraph (3), the review panel 
    shall report on the comments of the small entity representatives and 
    its findings as to issues related to subsections 603(b), paragraphs 
    (3), (4) and (5) and 603(c), provided that such report shall be made 
    public as part of the rulemaking record; and
        (6) where appropriate, the agency shall modify the proposed 
    rule, the initial regulatory flexibility analysis or the decision on 
    whether an initial regulatory flexibility analysis is required.

    (c) An agency may in its discretion apply subsection (b) to rules 
that the agency intends to certify under subsection 605(b), but the 
agency believes may have a greater than de minimis impact on a 
substantial number of small entities.
    (d) For purposes of this section, the term ``covered agency'' means 
the Environmental Protection Agency and the Occupational Safety and 
Health Administration of the Department of Labor.
    (e) The Chief Counsel for Advocacy, in consultation with the 
individuals identified in subsection (b)(2), and with the Administrator 
of the Office of Information and Regulatory Affairs within the Office of 
Management and Budget, may waive the requirements of subsections (b)(3), 
(b)(4), and (b)(5) by including in the rulemaking record a written 
finding, with reasons therefor, that those requirements would not 
advance the effective participation of small entities in the rulemaking 
process. For purposes of this subsection, the factors to be considered 
in making such a finding are as follows:
        (1) In developing a proposed rule, the extent to which the 
    covered agency consulted with individuals representative of affected 
    small entities with respect to the potential impacts of the rule and 
    took such concerns into consideration.
        (2) Special circumstances requiring prompt issuance of the rule.
        (3) Whether the requirements of subsection (b) would provide the 
    individuals identified in subsection (b)(2) with a competitive 
    advantage relative to other small entities.

(Added Pub. L. 96-354, Sec. 3(a), Sept. 19, 1980, 94 Stat. 1168; amended 
Pub. L. 104-121, title II, Sec. 244(a), Mar. 29, 1996, 110 Stat. 867.)


                               Amendments

    1996--Pub. L. 104-121, Sec. 244(a)(2), (3), designated existing 
provisions as subsec. (a) and inserted ``including soliciting and 
receiving comments over computer networks'' after ``entities'' in par. 
(4).
    Pub. L. 104-121, Sec. 244(a)(1), which directed insertion of ``the 
reasonable use of'' before ``techniques,'' in introductory provisions, 
was executed by making the insertion in text which did not contain a 
comma after the word ``techniques'' to reflect the probable intent of 
Congress.
    Subsecs. (b) to (e). Pub. L. 104-121, Sec. 244(a)(4), added subsecs. 
(b) to (e).


                    Effective Date of 1996 Amendment

    Amendment by Pub. L. 104-121 effective on expiration of 90 days 
after Mar. 29, 1996, but inapplicable to interpretative rules for which 
a notice of proposed rulemaking was published prior to Mar. 29, 1996, 
see section 245 of Pub. L. 104-121, set out as a note under section 601 
of this title.


                  Small Business Advocacy Chairpersons

    Section 244(b) of Pub. L. 104-121 provided that: ``Not later than 30 
days after the date of enactment of this Act [Mar. 29, 1996], the head 
of each covered agency that has conducted a final regulatory flexibility 
analysis shall designate a small business advocacy chairperson using 
existing personnel to the extent possible, to be responsible for 
implementing this section and to act as permanent chair of the agency's 
review panels established pursuant to this section.''

                  Section Referred to in Other Sections

    This section is referred to in sections 611, 801 of this title.
