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Originally Posted by nation-x
umm... why the fuck wasn't this brought up before?
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I can answer this in one word - "specialization."
OK, so that word requires about 400 more to explain... indulge me.
If you look at the case law cited in the letter addressing the Regulatory Flexibility Act (RFA) implications of 2257, you will notice that the citations involve things like mining companies suing the state, companies suing the FDA, FCC, etc. because some regulation or statute unduly burdens small businesses in their market sector.
Very, very few attorneys specialize in RFA issues. Prior to when the regs were revised in 2005, the FSC legal team and other observers had no real reason to even think about the RFA, and none of them had (or have) any expertise in that area, I'm pretty certain.
My bet is that, somewhere along the line, somebody spotted a reference to the RFA in one of the DOJ's documents pertaining to the RFA - it could have been when the regs were last revised in 2005, it could have been in response to public comment submitted during that round of revisions - and said "Hey... this sounds interesting. Let's find an attorney who specializes in the RFA and ask him if there's any potential here."
Bottom line - the RFA is a pretty obscure piece of legisation. If you are an attorney not based in Washington, DC, and you do not routinely deal with federal regulatory agencies, my guess is that you probably haven't heard of it, much less have much familiarity with its contents.