Small Business Outreach

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

When EPA concludes that an upcoming regulatory proposal will likely not be "certified" under the Reg Flex Act (i.e., exempt from the analytic and procedural requirements of the RFA because the agency asserts the rule, if promulgated will NOT impose a "significant economic impact on a substantial number of small entities"), the Small Business Advocacy Chair (that's me) convenes a Panel under the terms of SBREFA.

The Panel comprises the Chair, and senior officials of the EPA program office developing the rule, the Chief Counsel for Advocacy at SBA, and the Director of the President's Office of Information and Regulatory Affairs at OMB.  Since the Panel is required to conduct outreach and accept advice from small entities subject to the rule, we also assemble a group of "Small Entity Representatives," who receive detailed information about EPA's plans for the rule.  Over a period of sixty days, the Federal Panel reviews the rule, its major requirements, the advice from the small businesses and communities, and any number of alternatives designed to meet the statutory objectives of the regulation, while reducing burden on the small entities.  To date, we have completed 22 of these Panels, and in every case we have found creative ways to "soften the blow" on small businesses through a variety of mechanisms.

Some of these mechanisms involve exclusions for businesses operating below a certain threshold (i.e., "low-flow" exclusions under Effluent Guidelines in the Water program, or "limited throughput" exclusions under Maximum Achievable Control Technology standards in the Air program). Some involve less rigorous testing (such as in the engine certification programs managed by the Office of Transportation and Air Quality).  Some involve less intensive reporting.  Each rule presents its own difficulties and its own opportunities.  

It's important to realize, though, that the RFA upholds the priority of the environmental statute.  Our job under the RFA is to meet the stated objective of the environmental statute while minimizing burden on small entities.  We can't give small businesses a break if doing so would jeopardize the rule's effectiveness or legal defensibility.  In most cases EPA's authorizing statutes don't give us the latitude to exclude pollution sources simply because their ownership is classified as a small business.  For that reason, we look hard to find operating characteristics that justify an exception, and which tend to be associated with the small-volume operations that are likely to characterize a small business.