Small Business Outreach

[Tom Kelly <kelly.tom@epa.gov>]

Although the RFA did a lot to improve the treatment of small businesses in Federal regulations, Main Street has continuing concerns about the cost of regulation, and particularly about their desire to be consulted about upcoming rules.  In the mid-90's the White House sponsored a national conference on small business issues, and one of the main recommendations was to tighten up on Federal agency compliance with the RFA and its requirements for involving small businesses in rulemaking.  

In 1996 Congress passed SBREFA.  That statute did many important things, but with respect to rulemaking, one of the most significant innovations was that Federal agency compliance with the outreach and analytic requirements of the RFA became judicially reviewable.  Also, if an agency certified that a rule, if promulgated, would not impose a "significant economic impact on a substantial number of small entities," that certification had to come wrapped in a factual statement explaining the basis for that conclusion (couple that with the judicial review requirement, and you have a recipe for a lawsuit).  Finally, two agencies were singled out for a special duty.  EPA or OSHA is now required to convene a Small Business Advocacy Review Panel whenever either agency does not make the certification I described above.  I'll explain these Panels in my next note.