May 27, 1999
Rosario Cirrincione
Freedom of Information and
Privacy Acts Division
Office of the Asst. Secretary
for Public Affairs
U.S. Dept. of Health and Human Services
200 Independence Avenue, SW
Washington, DC 20201-0004
Dear Ms. Cirrincione:
The Department of Health and Human Services (HHS) published the above-referenced proposed rule setting forth certain revisions to the department’s Freedom of Information Act (FOIA) regulations in an effort to streamline and condense said regulations. The proposed rule also contains new provisions implementing the Electronic Freedom of Information Act Amendments of 1996 in order to bring HHS into compliance with new FOIA requirements for electronic records. The purpose of this letter is to advise HHS that the Regulatory Flexibility Act (RFA)(1) certification contained in the proposed rule is inadequate and does not comply with the technical requirements of the RFA.
The Office of the Chief Counsel for Advocacy of the U.S. Small Business Administration was created in 1976 to represent the views and interests of small businesses in federal policy making activities. The Chief Counsel participates in rulemakings and other agency actions when he deems it necessary to ensure proper representation of small business interests. In addition to these responsibilities, the Chief Counsel monitors agencies’ compliance with the Regulatory Flexibility Act (RFA), and works with federal agencies to ensure that their rulemakings demonstrate an analysis of the impact that their decisions will have on small businesses.
Section 605(b) of the RFA requires agencies to include with each certification a statement of factual basis to support the certification. Section 605 reads:
Prior to its amendment by the Small Business Regulatory Enforcement Fairness Act of 1996, the RFA only required "a succinct statement explaining the reasons for such certification." The change in the law means that federal agencies must now provide a more substantive explanation for certifying a rule. In any event, HHS has provided no factual basis—succinct or substantive—for certifying the instant proposed rule. This is not to say that the agency lacks justification for certifying the rule, only that the agency has not complied with the technical requirement to provide a factual basis. The importance of this requirement is that it allows small businesses and other interested parties the opportunity to evaluate and comment on the agency’s rationale for certifying a rule.
Prior to publication of a final rule in this case, the Office of Advocacy urges HHS to publish a technical correction in the Federal Register that contains a factual basis for its certification. Moreover, HHS should consider implementing comprehensive guidance for its regulation drafters, if it does not already exist, to avoid such oversights in the future. Section 605 of the RFA is judicially reviewable and courts have remanded rules in the recent past due to technical violations of the RFA.(2)
Thank you for the opportunity to comment on this proposed rule. Please do not hesitate to contact our office if you have any questions, 202-205-6532.
Sincerely,
Jere W. Glover
Chief Counsel for Advocacy
Shawne Carter McGibbon
Asst. Chief Counsel for Advocacy
ENDNOTES
1. 5 U.S.C. § 601-612, as amended by the Small Business Regulatory Enforcement Fairness Act, Pub. L. No. 104-121, 110 Stat. 866 (1996).
2. See Northwest Mining Association v. Babbitt, 5 F. Supp. 2d 9 (U.S. App. D.C. 1998) (The court remanded a Department of Interior rule because the agency failed comply with section 601 of the RFA that requires agencies to consult with the Office of Advocacy prior to using a new definition of "small.").