Specifically, Subsection 610(a) of the RFA requires each agency to develop a plan for the review of its existing rules that have or will have a "significant economic impact on a substantial number of small entities." The Section 610 review plans were to require agencies to review all existing rules within 10 years of the effective date of the statute (January 1, 1981), and require any new rules to be reviewed within 10 years of their publication as a final rule. Subsection 610(c) of the RFA requires agencies to provide an annual Federal Register notice of rules they have designated for review within the next 12 months. However, it appears that agencies are carrying out relatively few Section 610 reviews. One reason why so few reviews are done is that the act gives agencies a significant amount of discretion to decide which rules are covered by the review requirement. There also appears to be substantial confusion among the agencies regarding what Section 610 requires, thereby limiting its effectiveness. In essence, the Agenda is intended to be a compendium of agency rulemaking actions within the next 12 months. Therefore, the number of Section 610 notices in the Unified Agenda should provide some indication of the extent to which agencies are conducting the required "lookbacks" under the RFA. GAO also reported that discretionary reviews more often resulted in changes to rules and related documents than mandatory reviews. Implications for Regulatory Reform

The failure of Section 610 of the RFA to get many agencies to review the impact of their existing rules on small entities offers a number of valuable lessons for current advocates of even broader "lookback" requirements. Without some type of enforcement of the review requirement, agencies are unlikely to conduct many more reviews than have occurred pursuant to Section 610. Similar legislation was introduced in the 109 th Congress ( H.R. Specifically, within 180 days after enactment, the bill would require agencies to publish in the Federal Register and on their websites a plan for reviewing all existing rules that the agency heads determine have a "significant economic impact on a substantial number of small entities"—regardless of whether the agency published a final regulatory flexibility analysis under Section 604 of the RFA at the time the rule was promulgated. 4458 would clarify how agencies' reviews under Section 610 of the RFA should be conducted.
Section 610 of the Regulatory Flexibility Act (RFA) of 1980 requires each agency to develop a plan for the review of its existing rules that have or will have a "significant economic impact on a substantial number of small entities." Agencies are required to review any new rules within 10 years of their publication as a final rule, and to provide an annual Federal Register notice of rules they have designated for review within the next 12 months. The Unified Agenda of Federal Regulatory and Deregulatory Actions is intended to be a compendium of agency rulemaking actions within the next 12 months. Therefore, the number of Section 610 notices in the Unified Agenda should provide some indication of the extent to which agencies are conducting the required "lookbacks" under the RFA.
It appears that agencies are carrying out relatively few Section 610 reviews. Several agencies have consistently indicated that they plan to issue dozens of rules each year with a significant impact on small entities, but have published few if any notices of Section 610 reviews in the Unified Agenda. The RFA gives agencies a significant amount of discretion to decide which rules are covered by the review requirement. There also appears to be substantial confusion or disagreement among the agencies regarding what Section 610 requires, thereby limiting its effectiveness. For example, some agencies said the statutes underlying their rules had a significant impact on small entities, not the rules themselves, so they did not have to review them under Section 610. In July 2007, GAO reported that agencies frequently initiated regulatory reviews on their own, and those reviews were more effective in bringing about changes to rules than mandatory review requirements like Section 610.
The poor implementation history of Section 610 of the RFA offers a number of valuable lessons for current advocates of even broader "lookback" reviews. For any such process to work, Congress faces the challenge of clearly specifying what rules should be reviewed and how the reviews should be conducted. Also, some means of tracking the reviews, congressional or executive branch oversight, and a meaningful enforcement mechanism appear important to improving the implementation of the lookback requirement. Otherwise, agencies are unlikely to conduct many more reviews than have occurred pursuant to Section 610. Legislation has been introduced in the 110th Congress (H.R. 4458) that addresses some of the issues regarding the implementation of the RFA and Section 610 reviews.
This report will be updated when additional information about Section 610 or broader lookback reviews become available.