Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)

The Federal Trade Commission has amended its Rules of Practice to incorporate the provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) concerning congressional review of certain agency rules and the issuance of small business compliance guides for certain rules. The revised rule also reflects statutory amendments to the Equal Access to Justice Act (EAJA). The amendments to the FTC's Rules of Practice were published in the July 6, 1998, Federal Register and became effective immediately.

Enacted in March 1996, SBREFA requires federal agencies to establish policies and programs to make their regulations more understandable to small businesses.

Under SBREFA's congressional review provision, information concerning most newly promulgated rules must be submitted to Congress and the Comptroller General. SBREFA also provides that whenever an agency issues a rule that requires a final regulatory flexibility analysis under the Regulatory Flexibility Act, the agency is required to publish one or more guides explaining how small businesses are to comply with the rule. The Federal Register notice states how the Commission complies with SBREFA's regulatory and rulemaking requirements.

SBREFA's amendments to the EAJA include a provision allowing certain small businesses to recover post-complaint attorney fees in instances where the agency's final demand is substantially in excess of the decision of the adjudicative officer, and is unreasonable when compared with that decision, under all the facts and circumstances of the case. This provision is limited to adversary adjudications, judicial review of the agency's enforcement actions, civil penalty actions, or adversary administrative adjudications initiated on or after March 29, 1996.

Specifically, the Commission has amended its Rules of Practice to, among other things: track the statutory obligation to prepare a small business compliance guide for each rule that requires a regulatory flexibility analysis; incorporate the statutory requirement that the Commission submit certain rules, guides, interpretations, and policy statements to Congress and the Comptroller General for review; and clarify certain provisions of the EAJA in order to make the operation of the EAJA more explicit.

Copies of the Federal Register Notice are available from the FTC's web site at http://www.ftc.gov and also from the FTC's Consumer Response Center, Room 130, 6th Street and Pennsylvania Avenue, N.W., Washington, D.C. 20580; 202-FTC-HELP (202-382-4357); TDD for the hearing impaired 1-866-653-4261. To find out the latest news as it is announced, call the FTC NewsPhone recording at 202-326-2710.