U.S. Small Business Administration
Office of Advocacy
Annual Report of the Chief Counsel for Advocacy on Implementation
of the Regulatory Flexibility Act, Calendar Year 1995
U.S. Government Printing Office
Washington, D.C.: 1996
To the President and Congress of the United States:
The Regulatory Flexibility Act of 1980 (RFA) requires federal
agencies to consider the effects of their regulatory actions on
small businesses and other small entities and to minimize any
undue disproportionate burden. As SBA's chief counsel for
advocacy charged with monitoring federal agency compliance with
the act, I am pleased to submit to you this report covering
activities undertaken in calendar year 1995.
In 1995, the Office of Advocacy reviewed some 2700 proposed
and final rules for their small business impacts. The review
reflected a wide spectrum of agency compliance, ranging from
complete adherence to the letter and spirit of the RFA to
complete disregard for the law's requirements.
The delegates to the June 1995 White House Conference on
Small Business, recognizing the importance of the RFA,
recommended, among other things, that the law provide for better
enforcement of the law, including judicial review of agency RFA
decisions. The White House Conference delegates also asked that
IRS rules in particular be made subject to the law.
I am pleased to report a small business RFA victory in 1996.
The Small Business Regulatory Enforcement Fairness Act, enacted
in March 1996, will allow small businesses to sue a federal
agency for failure to comply with the dictates of the RFA and
will subject more rules to the requirements of the act.
With this new tool at the disposal of the small business
community, we can look forward to more victories ahead. I look
forward to its implementation, and I encourage small businesses
and small business advocates to maximize its effectiveness by
making use of the new law wherever it is appropriate.
Jere W. Glover
Chief Counsel for Advocacy
U.S. Small Business Administration
Jere W. Glover
Chief Counsel for Advocacy
U.S. Small Business Administration
Contents
Executive Summary
The Regulatory Flexibility Act
The Role of the Office of Advocacy in Rulemaking
Agency Experiences with the RFA in 1995
U.S. Department of the Treasury, Internal Revenue Service
Independent Contractors
Meals and Entertainment Recordkeeping
Environmental Protection Agency
Hazardous Waste Identification Rule
Toxic Release Inventory Rules
Industrial Storm Water
Federal Communications Commission
Telephone Number Portability
Broadcast Network and Affiliate Relationships
Competitive Bidding for Wireless Services
Office of Management and Budget
Paperwork Reduction Act
U.S. Department of Labor, Occupational Safety and Health
Administration
Respiratory Protection
Indoor Air Pollution
Workplace Hazard Abatement
Federal Energy Regulatory Commission
U.S. Department of Agriculture
Enhanced Poultry Inspection
Hazard Analysis and Critical Control Point Systems
Use of the Term "Fresh"
California Almonds
Forest Management Plans
U.S. Department of the Interior
The Banking Regulators
The Federal Acquisition Regulation and the Major Procuring
Agencies
U.S. Department of Defense
The Small Business Regulatory Enforcement Fairness Act of 1996
Conclusion
Appendix A: Regulatory Comments Filed by the Office of Advocacy
in 1995
Appendix B: Regulatory Flexibility Provisions of the Small
Business Regulatory Enforcement Fairness Act of 1996 .Abbreviations
ACF Administration for Children and Families
AMS Agricultural Marketing Service
APA Administrative Procedure Act
BLM Bureau of Land Management
CRA Community Reinvestment Act
DoD U.S. Department of Defense
DOE U.S. Department of Energy
DOI U.S. Department of the Interior
DOL U.S. Department of Labor
DOT U.S. Department of Transportation
EPA Environmental Protection Agency
FAA Federal Aviation Administration
FAR Federal Acquisition Regulation
FASA Federal Acquisition Streamlining Act of 1994
FCC Federal Communications Commission
FCS Food and Consumer Service
FDA Food and Drug Administration
FERC Federal Energy Regulatory Commission
FRFA final regulatory flexibility analysis
FS Forest Service
FSIS Food Safety and Inspection Service
FTC Federal Trade Commission
FWS Fish and Wildlife Service
GSA General Services Administration
HACCP hazard analysis and critical control point systems
HCFA Health Care Financing Administration
HHS U.S. Department of Health and Human Services
HUD U.S. Department of Housing and Urban Development
IAQ indoor air quality
IRFA initial regulatory flexibility analysis
IRS Internal Revenue Service
NASA National Aeronautics and Space Administration
NMFS National Marine Fisheries Service
OFPP Office of Federal Procurement Policy
OIRA Office of Information and Regulatory Affairs
OMB Office of Management and Budget
OSHA Occupational Safety and Health Administration
PCS personal communications systems
PRA Paperwork Reduction Act
RCRA Resource Conservation and Recovery Act
RFA Regulatory Flexibility Act
RHCDS Rural Housing and Community Development Service
RUS Rural Utilities Services
SARA Superfund Amendments and Reauthorization Act
SBA U.S. Small Business Administration
SBREFA Small Business Regulatory Enforcement Fairness Act
SEC Securities and Exchange Commission
SMR specialized mobile radio
TRI toxic release inventory
USC United States Code
USDA U.S. Department of Agriculture
WHCSB White House Conference on Small Business.Executive Summary
The Chief Counsel for Advocacy is charged with monitoring agency
compliance with the Regulatory Flexibility Act (RFA) and
reporting to Congress and the President on its implementation.
This report addresses regulatory flexibility activity in calendar
year 1995.
In the past year, agency compliance with the RFA has
mirrored performance of previous years: some agencies are in full
compliance, others comply only partially, and still others do not
comply at all. In 1995, The Office of Advocacy participated in
numerous rulemakings and filed 57 formal comment letters covering
59 of the rulemakings. Advocacy's formal comments ranged from in-
depth discussions of regulatory alternatives to comments that
simply point out an agency's failure to follow proper RFA
procedures.
The first section of this report provides an overview of the
Regulatory Flexibility Act. Because comment letters reflect only
a small fraction of Advocacy's work to enforce the RFA, the
second section summarizes Advocacy's role in rulemaking,
describing the office's efforts to foster compliance with the
act. The third section discusses the Advocacy regulatory comments
and final agency actions taken in 1995. The appendix lists the
comments filed by the Office of Advocacy during 1995.
Most important, in March 1996, the Regulatory Flexibility
Act was amended for the first time since its enactment in 1980.
Finally, the small business groups accomplished their
longstanding goal of obtaining judicial review of agency actions
under the RFA. Under the original act, agency small business
analyses were not subject to independent court review. Under the
new Small Business Regulatory Enforcement Act of 1996 (SBREFA),
small businesses could finally sue a federal agency for failure
to comply with the dictates of the RFA. Agencies are now looking
much more seriously at their obligations under the act, since
they can now be held accountable for their small business
regulatory actions.
The RFA seeks to address situations in which small
businesses bear a disproportionate share of the regulatory burden
imposed on America's businesses. While initiatives such as the
RFA are steps in the right direction, small businesses still have
a long way to go before they are on a level playing field with
their larger counterparts.
The Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) requires each federal agency
to review its regulations to ensure that the ability of small
entities to invent, to produce or to compete is not inhibited
unnecessarily by regulation. The major goals of the act are to
increase federal agency awareness and understanding of the impact
of regulations on small business, to require that agencies
communicate and explain their findings to the public, and to
provide regulatory relief to small entities.
For a long time, experts have assumed that the cost of
compliance with federal regulations is more burdensome for small
firms than for large. A recent Office of Advocacy study bore
witness to this assumption's veracity:
...the average annual cost of regulation, paperwork, and tax
compliance for firms with fewer than 500 employees is about
$5,000 per employee, compared with about $3,400 per employee
for firms with more than 500 employees. While the total
burden on a firm increases with firm size, the burden per
employee or per dollar of sales decreases with firm size.
The disproportionate impact of the costs of regulatory
compliance gives large firms a competitive advantage. The Office
of Advocacy study found that small businesses employ 53 percent
of the work force, but are responsible for 63 percent of the
total cost of business regulation. Therefore, if the economy is
to maintain a viable and competitive small business sector, the
artificial competitive disadvantage created by the impact of
federal regulation on small firms needs to be eliminated.
The RFA is intended to address this problem by requiring
agencies to eliminate any unnecessary and disproportionate burden
their regulations may place on small business. To achieve this
goal, agencies must balance the burdens imposed by regulations
against their benefits and propose alternatives to those
regulations that create economic disparities between different-
sized entities. These alternatives may take the form of separate
compliance or reporting requirements, timetables or exemptions
that take into account the limited resources available to small
entities. The result may be regulation based on "tiering," with
different requirements for businesses of different sizes, or a
decision not to regulate smaller entities at all.
The RFA seeks to change fundamentally the federal
bureaucracy's method of regulating small entities. The RFA
applies to every federal rule for which notice and comment is
required under Section 553(b) of the Administrative Procedure Act
(APA) or any other law. The APA contains some exemptions to its
notice and comment requirements, most notably for interpretative
rules. Interpretative rules are those intended only to interpret
a statute--not to add new legislative-type requirements. Other
exemptions include regulations that concern agency management and
personnel; regulations involving grants, benefits, and public
property; and regulations issued when an agency "for good cause
finds...that notice and public procedure thereon are
impracticable, unnecessary, or contrary to the public interest."
Because these regulations are not subject to notice and comment
rulemaking, the RFA does not apply.
The RFA was enacted to ensure federal agency recognition of
the impact of regulation on small firms and to require that steps
be taken to examine means to alleviate disproportionate impacts.
The theory behind this process is that if agencies have the
choice of selecting two different methods of meeting their
statutory obligations, they will opt for the procedure that is
less burdensome on small business.
In order to meet RFA obligations, a two-step process must be
undertaken. First, the agency must make a threshold determination
of whether the proposed or final rule will have a significant
economic impact on a substantial number of small entities. This
determination requires the agency to examine data on the number
of small entities in the regulated community, the number that
will be affected by the regulation and the economic impact that
the regulation will have on small entities.
Second, if an agency concludes that the rule will not have a
significant economic impact on a substantial number of small
entities, it may certify to that effect. Announcement of the
certification is required in the Federal Register and the
certification must be accompanied by "a succinct statement
explaining the reasons for such certification...." The
statement must provide sufficient analysis to apprise the
regulated community of the reasons for the agency's conclusion.
An alternative second step is necessary if the agency
determines that the proposal will have a significant economic
impact on a substantial number of small entities. Under this
circumstance, the agency must prepare an initial regulatory
flexibility analysis. The analysis must contain: (1) a
description of the reasons why action by the agency is being
considered; (2) a succinct statement of the objectives of, and
legal basis for, the proposed rule; (3) a description of, and
when feasible, an estimate of the classes of small entities that
will be subject to the requirements and the type of professional
skills necessary for preparation of the report or record; and (4)
an identification, to the extent practicable, of all relevant
federal rules that may duplicate, overlap, or conflict with the
proposed rule.
The most significant requirement specified in the RFA
mandates that an agency describe and examine significant
alternatives to the proposed regulation that accomplish the
objectives of the agency but minimize the economic impact on
small entities. Significant alternatives may include, but are not
limited to: (1) establishment of diverse compliance or reporting
requirements that take into account the resources available to
small entities; (2) performance rather than design standards; or
(3) exemptions of small entities from all or part of the rule.
When an agency issues a final rule, it must either prepare a
final regulatory flexibility analysis or again certify that the
rule will not have a significant economic impact on a substantial
number of small entities. The final regulatory flexibility
analysis must discuss comments received and alternatives
considered during the rulemaking process.
The issues raised in the initial regulatory flexibility
analysis are often integrated into the final analysis. However,
the RFA specifically requires agencies to: (1) summarize the
issues raised by public comments; (2) summarize the agency's
assessment of those comments; (3) state any changes made in the
proposed rule as a result of the comments; (4) describe each of
the significant alternatives to the rule, consistent with the
regulatory objectives; and (5) state why each of the alternatives
not chosen was rejected. Unlike the initial analysis, a final
analysis or summary need not be published in the Federal
Register; rather, an agency need only make it available to the
public and indicate how it may be obtained.
The Role of the Office of Advocacy in Rulemaking
The Office of Advocacy's statutory responsibility is to represent
the interests of small business before the federal government and
to monitor federal agency compliance with the Regulatory
Flexibility Act. The Office of Advocacy encourages compliance
with the RFA through a variety of methods, only one of which is a
formal comment letter. Often, Advocacy is involved in the
rulemaking process at the very outset, raising the potential
impact of a rule and recommending modifications before it is
formally proposed. In some instances, Advocacy has persuaded
federal agencies to abandon rulemakings that would have a
substantially negative impact on a significant number of small
businesses without commensurate benefits.
One of the most important functions of the Office of
Advocacy is outreach to the regulated small business community.
Through meetings with small business trade associations, Advocacy
is made keenly aware of the impact that potential and proposed
rulemakings will have on small entities, enabling the office to
represent these findings before Congress and federal agencies. A
major part of Advocacy's outreach efforts is implemented through
regular outreach meetings such as the Procurement Roundtable, a
group of 25 individuals representing small business trade
associations, small businesses and the Congress.
The Office of Advocacy also leads the Environmental
Roundtable, a similar group of 130 stakeholders from both the
private and public sectors who meet to bridge the differences
between government and business. The Environmental Roundtable was
a major force in the successful effort to seek regulatory relief
in two major rules: the toxic release inventory (TRI) right-to-
know rule and the storm water rules.
The Office of Advocacy is also a member of the Executive
Committee of the Securities and Exchange Commission's Annual
Government-Business Forum on Small Business Capital Formation.
This forum brings together a cross section of small business
owners, policymakers, experts and academia to make
recommendations to Congress and federal agencies on small
business securities, tax and credit issues.
Regularly scheduled meetings like those of the Procurement
Roundtable have enabled Advocacy to give small businesses a seat
at the legislative table. Advocacy used input from the
Procurement Roundtable to leverage its influence on drafting of
the Federal Acquisition Streamlining Act of 1994 and the Federal
Acquisition Reform Act of 1996. In fact, more than half of the
recommendations advanced by Advocacy, including procurement goals
for women, the preservation of subcontracting plans and the
extension of the Department of Defence minority enterprise
development (Section 1207) program were incorporated into the
Federal Acquisition Streamlining Act of 1994.
While regularly scheduled meetings with stakeholders
increase Advocacy's leverage in the issues affecting small
business, they do not replace the hard work and personal
relationships that the office has developed with both the
regulators and the regulated.
Advocacy's work with the Securities and Exchange Commission
(SEC) is an excellent example of how hard work and personal
relationships develop regulations that are "small-business-
friendly." In this example, the Office of Advocacy played a
critical role in helping the SEC develop simplified registration
requirements for small companies. The SEC changed the
requirements for small companies--those with less than $25
million in annual revenues--from its complex S-K system to its
less costly and less burdensome SB system. The Office of
Advocacy estimates that between 3,000 and 3,500 companies are
eligible to register under this new system each year.
The information Advocacy gains from these and other meetings
with the regulated community is used in Advocacy's efforts to
encourage agency compliance with the spirit of the RFA, but
Advocacy's information gathering does not stop with meetings.
Correspondence from individual small business owners and
operators is often cause enough for Advocacy to take action.
In 1994, a gas station owner wrote the chief counsel
suggesting that the Office of Advocacy examine the excessive
paperwork requirements imposed on gasoline stations. The gas
station owner contended that filing 66 reports annually with 15
different reporting locations identifying the fact that 22
gasoline outlets do, in fact, store gasoline does not appear to
add significantly to the community's right to know about
hazardous chemicals in the neighborhood. As a direct result of
this letter, the Office of Advocacy began working with the
Environmental Protection Agency (EPA) to find alternatives to
this unnecessary and burdensome reporting requirement.
Approximately 600,000 forms annually would be eliminated by this
initiative.
Unfortunately, a number of agencies are not always as
receptive to Advocacy's efforts as the EPA and the SEC have been.
Where the agency involved is recalcitrant, the chief counsel for
advocacy must use stronger methods to encourage compliance.
Section 612 of the RFA authorizes the chief counsel to file
amicus or "friend of the court" briefs in court when another
party challenges an agency regulation. In appropriate
circumstances, simply the threat of filing an amicus brief can
radically alter an agency's desire to fully comply with the RFA.
For example, when the National Marine Fisheries Service
(NMFS) proposed stringent measures to reduce overfishing on the
Georges Bank, the Office of Advocacy was forced to threaten
litigation to force the NMFS to use less burdensome alternatives
to the proposed regulations. Legal counsels in both the NMFS
and the Department of Commerce quickly contacted the chief
counsel for advocacy, offering to meet to resolve their
differences. After detailed discussions, the NMFS modified how it
would comply with the RFA. In fact, the NMFS even asked Advocacy
to comment--and adopted those comments--on their internal RFA
compliance guide.
Unfortunately, the threat of intervention in litigation,
while often producing excellent results, is not a magic bullet
forcing agency compliance with the RFA. The Office of Advocacy
does not have the resources to intervene in every circumstance in
which an agency did not comply with the RFA, nor is the office
informed of every instance of noncompliance.
Meetings, personal relationships and even amicus briefs are
not, however, the only means available to the Office of Advocacy
to promote agency compliance. The chief counsel frequently
testifies before Congress on agency compliance, bringing to
congressional attention agencies' willingness or refusal to
comply with the RFA.
Early in 1995, the chief counsel testified before the House
and Senate Small Business Committees on improving agency
compliance with the RFA. In his testimony, Chief Counsel for
Advocacy Jere W. Glover highlighted agencies that are complying
with the RFA, as well as several recalcitrant agencies, in an
effort to turn up the compliance heat. In June, the chief counsel
raised the concern that the agencies implementing the Federal
Acquisition Streamlining Act rule were not in compliance with the
RFA. Bringing non-complying agencies to the attention of the
congressional oversight committees is yet another means by which
the chief counsel is changing the federal agency culture of one-
size-fits-all regulation.
In all of these examples, effective advocacy has been backed
by solid data--much of which is the product of original research
commissioned by the Office of Advocacy specifically for this
purpose. The Advocacy study, Small Business Lending in the United
States, is an example of just how much good research can affect
policy. In 1994 and again in 1995, the Office of Advocacy
released a study that listed by state and in rank order the
"small business friendliness" of the lending practices of all
commercial banks. From this report, based on the call reports
filed with bank regulatory authorities, small business owners can
determine which banks are lending to small businesses in their
areas. In part because of the usefulness of this study, the
Senate Banking Committee decided not to drop the call reporting
requirement from the Community Reinvestment Act.
In a seminal study completed in fall 1995, the Office of
Advocacy examined the very heart of the RFA--the cost of
regulation to a small firm. While many economists, legislators,
policy analysts and small business owners have decried the
adverse and disproportionate impact of regulation on small
business, no comprehensive study existed that confirmed that
premise. This report proved--beyond a shadow of a doubt--that
small business, which employs 53 percent of the work force, is
responsible for 63 percent of the total cost of business
regulation. It also suggested that the RFA, as currently
implemented, does not provide sufficient regulatory relief to the
small business sector.
Leveling the fiscal burden of regulation between large and
small businesses has a real-world impact. While not all of the
revisions, modifications, or deletions of rules at Advocacy's
initiative have been measured for their dollar value, some have.
For instance, a major EPA rulemaking that affected small
businesses by regulating underground storage tanks imposed new
requirements on more than 400,000 facilities. In a cooperative
effort between the EPA and the Office of Advocacy, a proposal and
final rules were developed to lessen the effect on small firms.
EPA adopted Advocacy's position that less expensive tanks were
acceptable to meet tank technical standards. A more reasonable
leak detection scheme was also promulgated. Savings are estimated
at $1 billion annually.
In the field of telecommunications, Advocacy's proposed
change--adopted by the Federal Communications Commission (FCC) in
1994--to the method for calculating fees to be paid by cable
operators will save small cable operators approximately $3.5
million per year.
After the breakup of AT&T, subscriber line charges imposed
by the FCC were originally scheduled to cost small businesses $6
per line per month. That fee was reduced to $2 per line per month
after intervention by the Office of Advocacy, resulting in
savings of hundreds of millions of dollars since the inception of
the subscriber line charges in 1984.
The Office of Advocacy worked closely with the FCC in 1993-
1994 to structure bidding rules favorable to small businesses for
the auction of immensely valuable 30-megahertz (MHz) personal
communications services (PCS) licenses. The FCC's rules resulted
in a 25-percent bidding credit for small businesses, ultimately
valued at more than $1 billion for all markets nationwide. The
rules also allowed for reduced up-front deposits and favorable
payment terms for small businesses that won licenses, helping to
open this important new market for hundreds of small businesses.
In agriculture, Advocacy's efforts to deregulate markets for
navel oranges led to the termination of the navel orange program
in late 1992, resulting in sales increases to small businesses of
more than $50 million. This increase in revenue resulted from
allowing growers and handlers to ship as much fruit as they
desired in an unregulated market.
Similarly, consistent with Advocacy's comments, the U.S.
Department of Agriculture (USDA) withdrew its interim rule
mandating safe handling statements on the labels of raw meat and
poultry products. The rule would have forced the industry to
comply with new labeling rules within 60 days. The rule affected
approximately 20 billion packages of meat and poultry products,
at a $600 million cost to the industry. Advocacy comments were
relied upon in an ensuing court case that led to an injunction
delaying the implementation of the interim rule. The interim rule
would have become effective before requirements for label changes
under the Nutrition Labeling Act, thereby requiring processors
and packers to implement label changes twice within a short
period. The final rule in November 1995 extended the time for
compliance, allowing firms to print only one set of labels
instead of two--with an estimated savings of at least $600
million.
The Labor Department also adopted changes suggested by
Advocacy in 1989 to the substantive content of regulations under
the Davis-Bacon Act. Savings to small businesses and taxpayers as
a result of these actions are estimated at approximately $400
million annually.
Another example of the real-world cost of regulation is
EPA's proposed 1992 regulation that would have required a warning
label on any product that was manufactured with an ozone
depleting chemical. In the final rule, EPA adopted Advocacy's
narrower definition for the term "manufactured with," saving $77
million to $385 million (1992 dollars) based on EPA's estimates,
and up to several billion dollars based upon Advocacy's estimate.
The list of cost savings goes on, but the point is the same-
-the Regulatory Flexibility Act has a direct bearing on the small
business bottom line. To the extent that agencies comply with the
RFA, cost-saving regulatory alternatives will be found to level
the playing field between large and small companies. When
agencies ignore the RFA--as some continue to do--small businesses
will continue to be placed at a competitive disadvantage.
Agency Experience with the RFA in 1995
The Office of Advocacy provided formal comments in 59 rulemaking
proceedings in 1995. In some instances, Advocacy's
participation included substantive comments about agency
proposals. In other cases, the comments simply pointed out the
agency's failure to follow proper procedure in complying with the
RFA. The following discussion will focus on some of Advocacy's
substantive comments.
Internal Revenue Service
According to the Internal Revenue Service (IRS), the rules they
have issued are interpretative rules and therefore not subject to
the RFA. Unlike substantive rulemaking, interpretative rules can
be challenged in court and the court may substitute its own
interpretation for that of the agency. Interpretative rules can
and often do have a substantial impact on the entities subject to
the rules, especially interpretative rules issued by the IRS,
which can affect every small business in the country.
Unfortunately, most small entities have neither the financial nor
the legal wherewithal to challenge the interpretation in court.
However, the new Small Business Regulatory Enforcement
Fairness Act of 1996 will, beginning in 1996, specifically
subject some IRS interpretative rules to the Regulatory
Flexibility Act requirements. The law says that all
interpretative rules proposed on June 27, 1996, or later that are
codified into the Code of Federal Regulations and include
reporting or recordkeeping requirements are subject to the RFA.
Although the rules issued by the IRS have not, until now,
been identified in the law as subject to the RFA, the Office of
Advocacy has had some success in convincing the IRS to modify
some of its rules to lessen the impact on small firms. This was
especially true after the June 1995 White House Conference on
Small Business (WHCSB). The Office of Advocacy has specifically
targeted tax issues, and particularly two issues of great
importance to the delegates, detailed below.
Independent Contractors
A legislative clarification of the independent contractor status
was the top recommendation of the White House Conference. The
Office of Advocacy presented the WHCSB findings to the IRS
commissioner and other Treasury officials and found a receptive
ear. The Department of the Treasury embarked on several
administrative changes to ease the burden of this requirement on
affected businesses. First, the IRS announced new rules in the
fall that will standardize enforcement of the law nationwide.
Second, the national office will be informed of any enforcement
actions taken by the IRS districts. Third, revenue agents will
receive a standardized manual and training to ensure uniform
application of the laws. Fourth, decisions on worker
classifications will be expedited by use of employees trained
specifically for this work. Fifth, the IRS commissioner is
expected to make additional recommendations to ease the
enforcement burden on small businesses in 1996, including
procedures to permit reduced penalties for good faith efforts by
small businesses.
Meals and Entertainment Recordkeeping
The recommendation that business meals and entertainment expenses
be restored to 100 percent deductibility received the second
highest number of votes at the White House Conference. This
recommendation would require a change in existing law. The Office
of Advocacy requested that the IRS consider some administrative
action to ease the burden on small businesses. The IRS recognized
that the extensive recordkeeping to claim the deduction was the
most burdensome part of the regulation. Expense records must be
kept for expenditures of $25 or more. In October 1995, the IRS
raised this threshold (which dates back to 1962) to $75, which
should eliminate millions of paper records and receipts currently
kept by small businesses.
Environmental Protection Agency
Hazardous Waste Identification Rule
Published in 1992, the EPA's proposal was intended to establish a
less burdensome system for regulating low-risk wastes that are
currently subject to full hazardous waste regulation under the
Resource Conservation and Recovery Act (RCRA). The Office of
Advocacy commented to the EPA that their proposal was, in fact,
more costly to small businesses than current regulations. The EPA
redid the regulations and promulgated a new proposal in December
1995.
Toxic Release Inventory Rules
In 1991, Advocacy filed a rulemaking petition asking EPA to
exempt from reporting under the Superfund Amendments and
Reauthorization Act (SARA), Section 313 (toxic chemical release
reporting), those facilities--most of which are small businesses-
-having minimal or "de minimis" releases of toxic chemicals. In
response, the EPA promulgated a streamlined reporting option for
such facilities in November 1994. Savings are estimated at tens
of millions of dollars annually in reporting and other regulatory
costs. The EPA estimates a reduction of 434,000 paperwork hours
as a result of the shorter form's adoption.
Industrial Storm Water
The Office of Advocacy played a leading role in identifying
unnecessary and expensive provisions in proposed regulations
regarding industrial storm water permits. The Office of
Advocacy's intervention led to significant improvements in the
general storm water regulations promulgated in 1992, and the
multi-sector regulations that were promulgated in 1995. Total
savings should exceed tens of millions of dollars annually. The
EPA deleted expensive and unnecessary monitoring requirements
from the SARA Section 313 facilities. In fact, the Office of
Advocacy demonstrated that the Section 313 facilities had cleaner
storm water than the non-Section 313 facilities.
Federal Communications Commission
The Federal Communications Commission (FCC) oversees virtually
all aspects of the telecommunications marketplace, including
local and long distance telephone operators, cable television
operators, television and radio broadcasters, satellite
communication providers, wireless telecommunications providers
and others. Through an auction process, it also oversees the
awarding of electromagnetic spectrum for new communications uses.
Telephone Number Portability
The dawn of true competition in local telephone service arrived
with the signing into law of the Telecommunications Act of 1996
in February 1996. In anticipation of these new competitive
realities, the FCC had already began to explore so-called "number
portability" or the freeing up of telephone numbers to follow
customers as they switched telephone providers rather than remain
captive to incumbent telephone companies.
In an era of increasing competition, small businesses must
be able to switch freely between both local and long distance
telephone companies without having to change telephone numbers if
they are to realize the promise of competition. If changing
telephone companies required changing telephone numbers, few
small businesses would avail themselves of the lower rates or
improved services that competition would offer.
As important as number portability is to small business
users and others, however, the FCC's proposed rules applicable to
number portability could have created significant regulatory
hurdles for small telephone companies. In September 1995, the
Office of Advocacy raised three specific issues whose impact on
small business the FCC had failed adequately to take into
account.
First, Advocacy pointed out, given the complexity of the
issues involved, it was particularly important that the FCC
delegate its authority to oversee the implementation of number
portability issues to an independent numbering commission. This
procedural safeguard would help ensure that small businesses'
concerns with inappropriate regulatory burdens would receive a
fair hearing. The mandate for this independent body was added by
Congress to the Telecommunications Act of 1996 and the
independent commission was established by the FCC early in 1996.
There was also an urgent need to establish a data base and
computer network for number portability. Without such a network,
smaller telephone providers could be put at a serious operational
disadvantage. The FCC announced in February that it would release
its final order on number portability issues by May 1996. The
Office of Advocacy will continue to work with the FCC to ensure
that this and other regulatory safeguards are in place to protect
small businesses and other user groups.
Finally, the Office of Advocacy raised the issue of a fair
and equitable financing mechanism to operate both the independent
commission and the data base. As initially proposed, there was a
risk that smaller telephone providers might bear a
disproportionate burden for financing these safeguards. A
provision was added to the Telecommunications Act, however,
mandating that the financial burden be borne in a competitively
neutral fashion.
Broadcast Network and Affiliate Relationships
The disproportionate power national television and radio networks
possess in their dealings with local broadcasting affiliates long
ago gave rise to a series of regulations limiting their ability
to unfairly disadvantage the smaller station owners. These
regulations are generically called the "network rules."
Citing the diminished dominance of the networks in a video
marketplace with dozens--and soon hundreds--of channels
available, the FCC issued a rule proposing to reduce or eliminate
five of these protections: the "right to reject" rule, the
"option time" rule, the "exclusive affiliation" rule, the
"territorial exclusivity" rule and the "dual network" rule.
The FCC made little effort to assess the impact such a
change would have on local broadcasting affiliates. Moreover, in
October 1995, the Office of Advocacy urged the FCC to maintain
its existing affiliate protections, citing the networks'
continued dominance of ratings shares and therefore advertising
dollars. Modification or elimination of the rules would clearly
have a significant economic impact on a substantial number of
small entities and trigger the applicability of the Regulatory
Flexibility Act. The Office of Advocacy argued that the rules
pose a minimal burden on television networks, while providing an
essential safety net that preserves local television stations'
independence.
With the passage of the Telecommunications Act, this and
related proceedings will almost certainly be delayed well into
1996. The Office of Advocacy will continue to work with the FCC
to minimize the impact of this proceeding on thousands of local
broadcasters.
Competitive Bidding for Wireless Services
Pursuant to the Regulatory Flexibility Act, the Office of
Advocacy intervened in the FCC's proceeding to reorganize
specialized mobile radio (SMR) providers within the 800-MHz band.
While this reorganization was intended to allow larger SMR
providers to aggregate spectrum and compete with the new personal
communications systems providers, it also proposed relocating
hundreds of small mobile radio providers and their customers. The
FCC's proposal stated that it would have a significant economic
impact on a substantial number of small entities, and therefore,
the agency prepared the required initial regulatory flexibility
analysis.
The Office of Advocacy recommended that the commission
implement a number of modifications to its proposed order to
minimize its negative impact on small entities, particularly
small incumbent SMR licensees and their customers. Principal
among these recommendations were proposals to expand small
business eligibility for special auction status, to allow
extended implementation and construction requirements for small
SMR operators, and to avoid monopolization of the newly vacated
service areas for incumbent licensees.
The commission incorporated and further modified a number of
the suggestions made by the Office of Advocacy in a report and
order issued in December 1995. While the FCC took some steps to
discourage monopolization of the new SMR services (subdividing
groups of channels to be auctioned separately), it failed to
institute any outright prohibitions against monopolizing local
markets. The FCC embraced expanded service areas for incumbent
SMR providers from their current local service areas to the wider
so-called "economic areas" that new PCS providers will be
employing, an issue of vital concern to SMR providers. The
commission, however, rejected continuation of its extended
implementation and construction requirements.
Finally, an industry coalition (including many smaller SMR
providers) submitted a consensus proposal to the FCC in early
1996 dealing with a number of outstanding issues in a manner
responsive to small entities' needs.
Office of Management and Budget
Paperwork Reduction Act
The Office of Management and Budget (OMB), Office of Information
and Regulatory Affairs published a proposal implementing the
revisions to the Paperwork Reduction Act enacted in 1995.
Advocacy commented that one proposed provision appeared to create
a loophole that would allow agencies to avoid soliciting public
comment and submitting materials for OMB review by declaring that
their actions are prescribed by statute. In the final rule, OMB
explicitly declared that paperwork review was required in this
situation. Advocacy also commented that language was needed to
clarify that agency information collections undertaken by
inspectors general are also covered by the PRA. OMB reaffirmed
its authority to review inspector general paperwork requirements
in the final rule.
Occupational Health and Safety Administration
Respiratory Protection
The Occupational Safety and Health Administration (OSHA) proposed
modifying its existing standard on respiratory protection. The
proposal included requirements for a written respiratory
protection program; procedures for selecting respirators;
requirements for medical evaluations; fit testing procedures;
maintenance and use requirements; training; and criteria for
evaluating program effectiveness.
Advocacy commented in April 1995 that OSHA erred in its
calculation of the impact of the proposal on small firms,
ignoring the differential effect on small businesses. For
illustrative purposes, the office examined the impact on the
construction industry, which is dominated by small firms, and
found a significant impact. Advocacy also requested alternative
language for proposed provisions relating to definitions, the
selection of respirators, medical evaluations, fit testing and
other aspects of the proposal. In response, the Department of
Labor is considering comments and has taken no further action to
date.
Indoor Air Pollution
In 1994, OSHA issued a very controversial proposed rule to
regulate the air quality in indoor work environments. In the rule
preamble, OSHA stated that it "...believes that the standard will
not have a significant adverse effect on a substantial number of
small entities." OSHA further asserted that "[t]he nature of
compliance action limits the potential for exceptionally large
compliance burdens on small businesses because most costs will be
incurred on a per employee or per square foot basis" and that
"...small firms will incur low costs because they have small
floorspace and few employees."
The Office of Advocacy submitted formal comments in January
1995 disputing OSHA's RFA determination, calling into question
the impact of numerous provisions of the proposal and requesting
that OSHA recall the proposal. The office pointed out that, based
on calculations from Bureau of Census data in the Small Business
Data Base maintained by the office, 6.201 million establishments
could be affected by the proposal; 88.0 percent of these were
small with fewer than 500 employees and 74.2 percent had fewer
than 20 employees. The office also noted that a review of OSHA's
own data showed that the hardest hit industries are dominated by
small businesses. Advocacy stated that OSHA established no
correlation and offered no evidence of a relationship between a
business' cost of compliance and number of employees or number of
square feet.
Finally, the Office of Advocacy noted that the compliance
costs associated with the development of indoor air quality (IAQ)
compliance programs, including training IAQ operation and
maintenance workers and informing employees about the standard,
and compliance with related standards, would place a
disproportionate burden on small firms. Many of the requirements,
in fact, called for a level of technical expertise outside the
scope of knowledge or ability of most small business people.
Because of Advocacy's efforts and the widespread outcry against
this proposed rule, it is being held in abeyance.
In a related matter, in February 1995, the Office of
Advocacy questioned the appropriateness of the Environmental
Protection Agency's collection of potentially duplicative
information from small business building tenants and landlords
regarding indoor air pollution management, noting the existence
of the OSHA proposal addressing the same issue. As a result of
this inquiry, the EPA withdrew its information collection request
from OMB in July 1995.
Workplace Hazard Abatement
OSHA's proposed rule detailed a regulatory scheme for employers
to certify or document that workplace hazards had been abated
following citation by an OSHA inspector. The Office of Advocacy
commented to OSHA that the proposal would have a significant
impact on small businesses, and suggested that other
possibilities be considered with respect to "other-than-serious"
hazards and alternatives be developed to the numerous paperwork
requirements in the proposal. Advocacy was also concerned about
the subjectivity of the proposal's requirement to provide "the
most appropriate documentation" of abatement.
For the first time, OSHA policy and standards staff
collaborated with the Office of Advocacy on a review of the
proposed rule, and changes to the regulatory language were
examined. In 1995, OSHA adopted Advocacy's suggested changes to
the proposal, expected to save millions of dollars and burden
hours for small businesses.
Federal Energy Regulatory Commission
The Office of Advocacy also participated in a landmark rulemaking
at the Federal Energy Regulatory Commission involving the opening
of markets in the generation and transmission of electrical power
to competition (so-called open access transmission). Such open
access raises the possibility of price discrimination against
small business commercial customers. While the office endorsed
mandating open access, the office suggested methods for ensuring
that the savings derived from competition would be passed on to
commercial customers, thereby reducing the rates that they pay
for electrical power.
U.S. Department of Agriculture
Enhanced Poultry Inspection
The U.S. Department of Agriculture (USDA) withdrew this proposed
rule, consistent with comments filed by Advocacy in 1994.
According to industry estimates, this withdrawal saved the
poultry processing industry at least $60 million in up-front
costs, and at least $185 million in annual recurring costs.
Hazard Analysis and Critical Control Point Systems
As a result of Advocacy intervention, the USDA negotiated a
compromise with the meat and poultry industries affected by
hazard analysis and critical control point systems (HACCP) in
July 1995. The compromise is process-oriented, with emphasis on
industry input. USDA agreed to review, revise or repeal its
existing regulations as needed to avoid unnecessary layering and
duplication prior to publication of a final HACCP rule. According
to conservative USDA estimates, the HACCP regulation would have
cost the meat and poultry industries an average of $100 million
per year as originally written.
In addition, Advocacy had commented on a Food and Drug
Administration (FDA) proposed HACCP for the seafood industry in
January 1994. The office had supported the HACCP, but expressed
some concerns regarding specific impacts on small entities.
Subsequently, FDA and Advocacy met to discuss potential problem
areas. Before publication of the final rule, Advocacy was
contacted by the OMB Office of Information and Regulatory Affairs
about its comments on the proposal. Several of Advocacy's
concerns were addressed in the final rule. Specifically, the
implementation period was extended from one year to two years,
and ship (non-land-based) processing sites were exempted from the
recordkeeping requirements.
Use of the Term "Fresh"
The Food Safety and Inspection Service (FSIS) of the USDA
published a notice of proposed rulemaking outlining amendments to
the federal poultry products inspection regulations to prohibit
the use of the term "fresh" on the labeling of raw poultry
products whose internal temperature has ever been below 26
degrees Fahrenheit.
The Office of Advocacy argued that the USDA had made an
incorrect determination that there would be no significant
economic impact on small businesses without conducting an initial
regulatory flexibility analysis on all affected industries. In
the proposed rulemaking, the USDA had examined the impact only on
the poultry processing industry, ignoring the effect the proposed
regulations would have on the retail/wholesale industry.
The USDA--instead of reconsidering its original
certification as requested by Advocacy--issued a final rule that
introduced an entirely new proposal requiring that previously
frozen poultry be labeled "hard chilled." During the debate over
the USDA appropriations, Congress reversed the labeling rule,
calling it "a bad way to use federal law and the federal
regulatory process."
California Almonds
As readers of previous annual reports know, the Agricultural
Marketing Service (AMS) has a longstanding practice of ignoring
its obligations under the RFA. Advocacy's comments on the March
1995 proposal to hold in abeyance the assessments from almond
growers is illustrative. AMS proposed to terminate temporarily
the advertising program for almond growers for the years 1994-
1995, thus eliminating grower payments. At the same time, AMS
certified the rule as having no significant effect on small
growers.
Advocacy pointed out the inconsistency between this
certification and past AMS statements indicating that the
advertising program, which it now proposes to end, bore
significant benefits for small almond producers. If the program
had real benefits, then ending such a program should have had a
significant negative effect on growers. AMS provided no
explanation of this apparent dichotomy.
Forest Management Plans
The Forest Service's April 1995 proposal for developing forest
management plans was also certified as having no significant
small business effect. Advocacy, however, pointed out the
inconsistency between the certification and the designation that
this was a major rule under Executive Order 12866. The
certification was particularly odd since the rule would have a
significant effect on a sector of the economy that is dominated
by small businesses and communities (those that use the national
forests and the communities affected by that use). The office
advised the Forest Service to prepare an initial regulatory
flexibility analysis that would examine alternative forest
planning procedures likely to lessen the burdens on small
entities.
Department of Interior
In March 1995, the Department of the Interior proposed to
designate critical habitat for the Pacific Coast population of
the Western Snowy Plover. The proposal was certified as having no
significant impact on a substantial number of small entities,
despite the department's failure to perform any analysis.
Although the department indicated that it lacked sufficient data,
it further stated that small businesses would not suffer from
differential impacts.
The Office of Advocacy requested that the initial regulatory
flexibility analysis be performed and made available for comment
by affected small businesses. Indeed, the legislative history of
the Endangered Species Act specifically cites regulatory
flexibility analyses as being appropriate for the designation of
critical habitats.
The Banking Regulators
The Community Reinvestment Act (CRA) was enacted by Congress to
ensure that financial institutions have a continuing and
affirmative obligation to meet the credit needs of their local
communities.
At the end of 1993, in response to a presidential directive,
the federal banking regulators--the Federal Reserve Board, the
Federal Deposit Insurance Corporation, the Office of the
Comptroller of the Currency, and the Office of Thrift
Supervision--published in the Federal Register proposed
regulations to revise implementation of the CRA. Based on more
than 6,000 comments received, the banking regulators issued
revised proposed regulations in 1994.
Previously, the CRA was implemented through 12 assessment
factors. The banking regulators proposed to change the factors to
three tests that would emphasize performance over paperwork. The
tests addressed lending, investment, and service. Banks would
have the option of being assessed utilizing an approved CRA
strategic place for their institution. The proposed regulations
would have also required the collection of small business data
and data on small minority- and women-owned businesses.
The banking regulators certified that all of the proposed
regulations would not have a significant economic impact on a
substantial number of small entities. They rationalized that
because the proposed regulations provided a "small institution
assessment option"--a streamlined examination process for
financial institutions with less than $250 million in assets--
there would be no significant impact on small financial
institutions.
While the Office of Advocacy fully supported the small
financial institution alternatives provided by the federal
banking regulators, the office disagreed with the regulatory
flexibility certification. Advocacy concluded that if a small
institution option were necessary, a regulatory flexibility
analysis would have documented why it was necessary in order to
reduce the burden on small institutions. Further, it would have
provided a basis for determining whether the assessment option is
the most practicable and valuable means of implementing the CRA
without overly burdening small institutions. Merely providing an
option--without an explanation as to why it was needed--did not
give the public adequate information to evaluate either the
option or the alternatives.
In response to the Office of Advocacy's comment letter, the
banking regulators did a regulatory flexibility analysis and
changed their rule--adopting Advocacy's comments.
The Federal Acquisition Regulation and the Major Procuring
Agencies
The Department of Defense (DoD), the General Services
Administration (GSA), and the National Aeronautics and Space
Administration (NASA) jointly promulgated multiple procurement
regulations during 1995. The three agencies, operating under the
guidance of the Federal Acquisition Regulation (FAR) Council,
developed more than 20 rules implementing the Federal Acquisition
Streamlining Act of 1994 (FASA).
FASA repealed or substantially modified more than 225
provisions of law to reduce paperwork burdens, facilitate the
acquisition of commercial products, enhance the use of simplified
procedures for small purchases, transform the acquisition process
to electronic commerce, and improve the efficiency of the laws
governing the procurement of goods and services.
Many aspects of the new law will benefit small firms.
However, there are other provisions that were not embraced by the
small business community. The Office of Advocacy, because of the
significance of the acquisition reforms and the magnitude of
regulations involved, took a very pro-active stance in informing
the Office of Federal Procurement Policy (OFPP) and the FAR
Council about small businesses' concerns. Advocacy also asked the
OFPP Administrator and the FAR Council to exercise the full
intent and due process required by the RFA in developing the
implementing procurement reform regulations.
Advocacy reviewed and commented on numerous draft proposed
procurement reform implementing rules. The office also commented
on 11 proposed rules, pointing out RFA deficiencies, small
business concerns and regulatory alternatives. In addition,
Advocacy testified four times before the FAR Council,
highlighting its written comments on certain FASA rules.
Advocacy's involvement in reviewing and commenting on the
FASA rules, especially its outspoken comments regarding RFA
deficiencies, prompted the House Small Business Committee to
invite Advocacy to testify before the committee on the
implementation of the 1994 procurement reform law.
Although some small business concessions were won and the
FAR Council--through the DoD, GSA and NASA--appears more diligent
in RFA compliance, Advocacy remains concerned, but guardedly
optimistic, about future RFA compliance.
Department of Defense
The Department of Defense has skirted the intent of the RFA in a
significant proposal establishing rights of government
contractors in technical data. In the early 1980s, criticism
about abuses in spare parts procurement and the need to comply
with statutory competition requirements prompted the DoD to seek
greater rights in technical data. The result was the
proliferation of new DoD policies which, as a condition of
contract, favored the government acquiring unlimited technical
data rights.
In June 1994, the DoD published a proposed rule in the
Federal Register adopting recommendations from a government-
industry committee designed to resolve government and industry
disputes regarding rights in technical data. The Office of
Advocacy, in several letters to the DoD, advised that the
proposed rulemaking was not in compliance with the RFA. Further,
Advocacy warned that the regulation restricted the public
availability of technical data rights, ultimately reducing
competition and increasing government costs.
Although the department conducted an initial regulatory
flexibility analysis (IRFA), the IRFA was not prepared in
compliance with the RFA. The DoD did not properly analyze the
impact of technical data rights on small firms, especially those
that use technical data. The rule places substantial reliance on
recommendations made by an advisory committee, without
independent analysis by the department. An independent review by
the DoD would have alerted the department to the significant
burdens imposed on small business users of technical data and
alternatives that might have alleviated these burdens.
The rule was published as a final rule with minimal
modifications and without a proper analysis or consideration of
alternatives.
.The Small Business Regulatory Enforcement Fairness Act of 1996
On March 29, 1996, President Clinton signed the Small Business
Regulatory Enforcement Fairness Act of 1996. This legislation was
the culmination of many years of effort by small business trade
associations and a bipartisan group of senators and
representatives to improve the effectiveness of the Regulatory
Flexibility Act. Senators Christopher (Kit) Bond R-MO, Dale
Bumpers (D-AR) and Pete Domenici (R-NM), and Representatives Jan
Meyers (R-KS), John LaFalce (D-NY) and Thomas Ewing (R-IL) were
the chief congressional sponsors of this bipartisan legislation.
Several major provisions are noteworthy. Most important, the
new law permits judicial review of agencies' compliance with the
Regulatory Flexibility Act. Since the RFA's passage in 1980, as
noted in the Office of Advocacy's previous annual reports on RFA
compliance, many agencies have neglected to comply with the law.
Advocacy's view--and that of many small business advocates--is
that this noncompliance was caused, in large part, by the
inability to enforce the act's provisions.
Now, however, if an agency fails to comply with the RFA in
its rulemaking, a small business that is adversely affected or
aggrieved may seek review of the rule in court. The court can
invalidate rules with inappropriate regulatory flexibility
analyses or rules that have been certified as having no
significant effect on small businesses. This revision in the law
is expected to have a very salutory effect on the rules
themselves, because agencies will be more likely to choose small-
business-friendly alternatives to avoid adverse court decisions.
In addition, coverage of the rules subject to the RFA has
been increased. Small business advocates have sought to ensure
that Internal Revenue Service rulemakings, long criticized for
their noncompliance with the letter or spirit of the RFA, are
specifically included within the scope of the law. The RFA now
also applies to interpretative rulemakings promulgated by the IRS
that have information collection requirements.
The new law updates the requirements of a final regulatory
flexibility analysis, mandating that agencies include a
description of the steps taken to minimize the significant
economic impact on small businesses. It is hoped that this
provision will help focus agency efforts to issue rules that
reflect small business needs.
Last, SBREFA adds a new procedure for obtaining small
business input on proposed rules issued by the Environmental
Protection Agency and the Occupational Safety and Health
Administration. For all significant small business rules, before
issuing a proposal, both EPA and OSHA must seek advice from small
business representatives chosen by the chief counsel for
advocacy. The agency must then reconsider its draft proposal
based on the advice received from the small business
representatives. This procedure could dramatically improve small
business outcomes in EPA and OSHA regulations.
SBREFA opens a new chapter in regulatory flexibility
compliance. The Office of Advocacy looks forward to implementing
the new law, and the small business community should get involved
in using SBREFA to maximize its effectiveness.
.Conclusion
As is evident in this report, the Regulatory Flexibility Act as
written in 1980 was not sufficient to ensure agency compliance.
Agencies such as the Internal Revenue Service, the U.S.
Department of Agriculture (with the Forest Service and
Agricultural Marketing Service being especially egregious
violators), and the Department of the Interior, could ignore the
RFA.
On March 29, 1996, however, the Small Business Regulatory
Enforcement Fairness Act of 1996 was enacted as Public Law 104-
121. For the first time, regulatory flexibility analyses and
agency certifications will be subject to judicial review, and
paperwork requirements issued by the Internal Revenue Service
will be subject to regulatory flexibility analyses. Federal
agencies, whose regulatory flexibility decisions will now be
subject to review in the courts, should have substantial
additional incentive to comply fully with the requirements of the
Regulatory Flexibility Act.
Appendix A: Regulatory Comments Filed by the Office of Advocacy
in 1995
Date Agency Comment Summary
12/15/95 USDA/FAS Proposed rule regarding dairy
tariff-rate import quota
licensing (7 CFR Part 6).
11/13/95 USDA/FSIS Proposed rule published in the
Federal Register on October
24, 1995, concerning "Pathogen
Reduction in Red Meat and
Poultry; Hazard Analysis and
Critical Control Point
Systems" (60 Fed. Reg. 6774,
FSIS Docket No. 93-016P).
11/01/95 FCC The Small Cable Business
Association filed a petition
to deny the prospective
transfer of broadcast licenses
involved in the merger of
Capital Cities/ABC, Inc., and
Disney. The companies filed
timely objections to the
petition to deny.
10/30/95 FCC Review of the Commission's
regulations governing
programming practices of
broadcast television networks
and affiliates (MM Docket No.
95-92).
10/10/95 FCC Amendment of Part 36 of the
Commission's rules and
establishment of a joint board
to review telephone universal
service issues (CC Docket No.
80-286).
10/02/95 USDA/FWS Proposed rule published in the
Federal Register on August 10,
1995, designating critical
habitat for the marbled
murrelet (Brachyramphus
marmoratus) in Washington,
Oregon, and California (60
Fed. Reg. 40892).
09/27/95 FCC Implementation of sections of
the Cable Television Consumer
Protection and Competition Act
of 1992: rate regulation (MM
Docket No. 92-266 and MM
Docket No. 93-215).
09/27/95 HHS/FDA Proposed rule published in the
Federal Register on July 27,
1995, concerning the over-the-
counter availability of
ephedrine drugs in
bronchodilator drug products
(60 Fed. Reg. 38643).
09/12/95 FCC Telephone number portability
(CC Docket No. 95-116 RM
8535).
08/17/95 USDA/RHCDS Proposed rule published in the
Federal Register on May 12,
1995. USDA incorrectly
certified that the proposed
rule to revise an existing
program would not have a
significant economic impact
upon a substantial number of
small entities.
08/15/95 DOD/GSA/NASA Interim rules: Federal
Acquisition Regulations;
simplified acquisition
procedures/FACNET [FAR Case
94-770] and electronic
contracting [FAR Case 94-104].
08/14/95 HHS/ACF Proposed rule published in the
Federal Register on June 15,
1995, to impose safety
requirements for vehicles used
to transport children in Head
Start programs (60 Fed. Reg.
31612).
08/11/95 FTC Proposed rule published in the
Federal Register on April 7,
1995, requesting comments on
the FTC's trade regulation
rule governing the disclosure
requirements associated with
the sale of franchises
(franchise disclosure rule).
08/07/95 HUD Proposed rule published in the
Federal Register on June 8,
1995, on "Minimum Capital" (60
Fed. Reg. 30201).
08/07/95 OMB Proposed rule published in the
Federal Register on June 8,
1995, titled "Controlling
Paperwork Burdens on the
Public; Regulatory Changes
Reflecting Recodification of
the Paperwork Reduction Act"
(60 Fed. Reg. 30438).
08/07/95 DOE/FERC Proposed rule published in the
Federal Register on April 7,
1995, "Promoting Wholesale
Competition Through Open
Access Nondiscriminatory
Transmission Services by
Public Utilities, Recovery of
Stranded Costs by Public
Utilities and Transmitting
Utilities" (Docket Nos. RM95-
8-000 and RM94-7-001; 60 Fed.
Reg. 17622).
08/01/95 HHS/HCFA Proposed rule published in the
Federal Register on June 2,
1995, concerning "Changes to
the Hospital Inpatient
Prospective Payment Systems
and Fiscal Year 1996 Rates"
(BPD-825-P; 60 Fed. Reg.
29202).
07/12/95 USDA/FS Proposed rule published in the
Federal Register on April 13,
1995, to revise the procedures
for developing forest
management plans as required
by the National Forest
Management Act, 16 U.S.C. 472,
1600-87 (60 Fed. Reg. 18886).
07/05/95 USDA/FSIS Proposed rule published in the
Federal Register on February
3, 1995, concerning the
development and implementation
of new food safety regulations
(60 Fed. Reg. 6774).
06/29/95 DOT/FAA Proposed rule published in the
Federal Register on March 29,
1995, titled "Commuter
Operations and General
Certification and Operations
Requirements" (60 Fed. Reg.
61231).
06/16/95 EPA Regulatory relief for small
businesses under the right-to-
know requirements of Title III
of the Superfund Amendments
and Reauthorization Act of
1986, also known as the
Emergency Planning and
Community Right-to-Know Act of
1986.
06/08/95 FCC Spectrum allocation for
various services in
preparation for the World
Radio Conference-International
Telecommunications Union.
05/24/95 FCC Amendment of Parts 2 and 90 of
the Commission's rules to
provide for the use of 200
channels outside the
designated filing areas in the
896-901 MHz and 935-940 MHz
bands allotted to the
specialized mobile radio pool
(PR Docket Nos. 89-553; 93-
253; 93-252).
05/18/95 USDA/FSIS Proposed rule published in the
Federal Register on January
17, 1995, concerning
amendments to the federal
poultry products inspection
regulations to prohibit the
use of the term "fresh" on the
labeling of raw poultry
products whose internal
temperature has ever been
below 26ø Fahrenheit (60 Fed.
Reg. 3454).
05/15/95 DOD/GSA/NASA Proposed rule published in the
Federal Register on March 16,
1995, entitled "Federal
Acquisition Regulation:
Special Contracting Methods"
(FAR Case 94-710; (60 Fed.
Reg. 14340).
05/15/95 DOD/GSA/NASA Proposed rule published in the
Federal Register on March 16,
1995, entitled "Federal
Acquisition Regulation; Task
and Delivery Order Contracts"
(FAR Case 94-711; 60 Fed. Reg.
14346).
04/28/95 DOL Proposed rule published in the
Federal Register on March 29,
1995, concerning the permanent
replacement of lawfully
striking employees by federal
contractors (60 Fed. Reg.
16354).
04/24/95 USDA/AMS Proposed rule published in the
Federal Register on March 24,
1995, reducing the expenses
and assessment rates for
almonds grown in California
(60 Fed. Reg. 16552).
04/13/95 DOL/OSHA Modification of existing
standard on respiratory
protection (59 Fed. Reg.
58884; 29 CFR parts 1910,
1915, and 1926; Docket H-049).
04/13/95 DOI/BLM Proposed rules published in
the Federal Register on March
10, 1995 and April 10, 1995,
regarding royalty payments on
heavy oil extracted from
federal and Indian lands (60
Fed. Reg. 18081, April 10,
1995; 60 Fed. Reg. 16424,
March 20, 1995).
04/12/95 USDA/AMS Proposed rule published in the
Federal Register on April 5,
1995, concerning sweet onions
grown in the Walla Walla
Valley of Washington and
Oregon (60 Fed. Reg. 17274).
04/12/95 DOD/GSA/NASA Proposed ruled published in
the Federal Register on March
1, 1995, entitled "Federal
Acquisition Regulation;
Acquisition of Commercial
Items" (FAR Case 94-790).
04/11/95 FCC Telephone company cable
television cross-ownership
rules, Sections 63.53-63.58
(CC Docket No. 87-266).
04/06/95 DOD/GSA/NASA Proposed rule published in the
Federal Register on March 6,
1995, entitled "Federal
Acquisition Regulation;
Simplified Acquisition
Procedures and FACNET" (FAR
Case 94-770).
03/29/95 USDA/AMS Interim final rule published
in the Federal Register on
March 21, 1995, on nectarines
and peaches grown in
California (60 Fed. Reg.
14891).
03/20/95 FCC Allocation of spectrum below 5
GHz transferred from federal
government use (ET Docket No.
94-32).
03/16/95 DOL Interim final rule published
in the Federal Register on
January 19, 1995, to institute
amendments to the existing
regulations governing the
filing and enforcement of
attestations by employers
using alien crew members for
longshore activities in U.S.
ports (60 Fed. Reg. 3950).
03/15/95 DOI/FWS Proposed rule published in the
Federal Register on March 2,
1995, designating critical
habitat for the Pacific Coast
population of the Western
Snowy Plover (60 Fed. Reg.
11768).
03/14/95 DOT/FAA Proposed rule published in the
Federal Register on December
13, 1994, revisions to
training and qualification
requirements for air carriers
and commercial operations (59
Fed. Reg. 64272).
03/14/95 USDA/RUS Proposed rule published in the
Federal Register on February
16, 1995, clarifying
restrictions on borrower
investments, loans, and
guarantees (60 Fed. Reg.
8981).
03/13/95 USDA/FCS Proposed rule published in the
Federal Register on January
27, 1995, for "National School
Lunch Program and School
Breakfast Program: Compliance
with the Dietary Guidelines
for Americans and Food-Based
Menu Systems" (60 Fed. Reg.
5514).
03/10/95 USDA/AMS Agricultural Marketing Service
working with the Office of
Advocacy to ensure that small
business input is reflected in
the rulemaking record.
03/06/95 FCC Review of the "Prime Time
Access Rule" (Section
73.658(k) of the Commission's
rules; MM Docket No. 94-123).
03/01/95 FCC Amendment of Part 90 of the
Commission's rules to
facilitate future development
of SMR systems in the 800 MHz
frequency band (PR Docket No.
93-144; RM-8117, RM-8030, RM-
8029).
02/27/95 USDA/AMS Meeting with Mr. Hatamiya on
February 13, 1995, to discuss
the Agricultural Marketing
Service's compliance with the
Regulatory Flexibility Act.
02/22/95 FCC Amendment of Part 73, Subpart
G, of the Commission's rules
regarding the emergency
broadcast system (FO Docket
91-301 and FO Docket 91-171).
02/21/95 FAA Proposed rule published in the
Federal Register on October
21, 1994, concerning proposed
revisions of medical standards
and medical certification
procedures for airmen.
02/14/95 FCC Rulemaking to amend Part 1 and
Part 21 of the Commission's
rules to redesignate the 27.7
-29.5 GHz band and to
establish rules and policies
for local multi-point
distribution service (CC
Docket No. 92-297).
02/13/95 DOD/GSA/NASA Interim rule published in the
Federal Register on December
15, 1994, entitled "Federal
Acquisition Regulation; Micro-
Purchase Procedures."
02/12/95 USDA/FSIS Proposed rule published in the
Federal Register on December
6, 1994, regarding poultry
products produced by
mechanical separation and
products in which such poultry
products are used (Docket No.
93-008P, 59 Fed. Reg. 62629).
01/05/95 FCC Implementation of Section
309(j) of the Communications
Act: Competitive Bidding 800
MHZ SMR (PP Docket No. 93-
253).
01/20/95 EPA Proposed rule published in the
Federal Register on March 9,
1994, to ban the manufacture,
processing and distribution of
fishing sinkers containing any
lead or zinc "that are less
than or equal to 1 inch in any
dimension" (59 Fed. Reg.
11122).
01/26/95 DOL/OSHA Two regulatory proposals,
under consideration by OSHA:
the Indoor Air Quality
Standard and Ergonomic
Standards.
01/30/95 USDA/AMS Failure to comply with RFA.
01/30/95 DOD/GSA/NASA Proposed rule published in the
Federal Register on December
1, 1994, entitled "Federal
Acquisition Regulation;
Officials Not To Benefit
(Ethics) (59 Fed. Reg. 61738).
01/30/95 DOD/GSA/NASA Proposed rule published in the
Federal Register on December
1, 1994, entitled "Federal
Acquisition Regulation;
Whistleblower Protections for
Contractor Employees (Ethics)
(59 Fed. Reg. 61738).
01/30/95 DOD/GSA/NASA Proposed rule published in the
Federal Register on December
1, 1994, entitled "Federal
Acquisition Regulation;
Procurement Integrity (Ethics)
(59 Fed. Reg. 61740).
Appendix B
Regulatory Flexibility Provisions of the Small Business
Regulatory Enforcement Fairness Act of 1996
* Last Modified: 6/15/01