Mr. Dan Goldin
Administrator
National Aeronautics and Space Administration
NASA Headquarters
Washington, D.C. 20546
Dear Mr. Goldin:
The Office of Chief Counsel for Advocacy of the U.S. Small Business Administration Advocacy was created in 1976 to represent the views and interests of small business in federal policy making activities. The Chief Counsel participates in rulemakings when he deems it necessary to ensure proper representation of small business interests. Advocacy is also charged with measuring the cost of regulations on small businesses. When Congress enacted the Regulatory Flexibility Act (RFA) of 1980, it mandated that the Office of Advocacy monitor agency compliance with the law and report annually to the President and to Congress.
In 1996, the Small Business Regulatory Enforcement Fairness Act (SBREFA) amended the RFA significantly, the major change being a provision that allows small entities appealing final regulations to seek judicial review of agency compliance with certain provisions of the RFA. SBREFA also strengthened the amicus curiae authority of the chief counsel for Advocacy by allowing him to address (1) agency compliance with the RFA; (2) the adequacy of an agency's rulemaking record with respect to small entities; and (3) the effect of the rule on small entities.
The Office of Advocacy has reviewed several of your recent proposed and final rules. In nearly every instance your agency certifies that a rule "will not have a significant impact on a substantial number of small entities." While this may be the case, your agency fails, as required under section 605(b) of RFA, to include a statement providing the factual basis for this determination. When certifying "no significant impact", your certification should, at a minimum, contain a description of the affected entities and the impacts that clearly justify the "no impact" certification. Agency certifications are subject to judicial review. Certifications of "no significant economic impact on a substantial number of small entities" have major legal implications for agencies. Therefore, standard certifications need to be avoided.
Many agencies underestimate the impact of their rules on the small business community. Advocacy urges agencies to err on the side of caution and analyze alternatives to demonstrate that the impact on small entities is minimized.
Thank you in advance for your attention to this matter. Please do not hesitate to contact me if you have questions concerning this matter, 202-205-6533.
Sincerely,
Jere W. Glover
Chief Counsel for Advocacy