February 6, 2003 The Honorable John D. Graham, Ph.D. Administrator Office of Information and Regulatory Affairs Office of Management and Budget New Executive Office Building, Rm. 10235 725 17th Street, NW Washington, DC 20503 Re: Office of Advocacy's Review of Rules and Guidance Documents Recommended for Reform Dear Dr. Graham: On December 19, 2002, your office released its report to Congress entitled, "Stimulating Smarter Regulation." In the report and a subsequent Memorandum for the President's Management Council, you requested assistance from the Office of Advocacy (Advocacy) of the U.S. Small Business Administration (SBA) in reviewing the rules recommended for reform. Specifically, you asked Advocacy to identify those rules that "offer potential to reduce unjustified regulatory burdens on small businesses." This letter responds to that request. Congress established Advocacy under Pub. L. No. 94-305 to advocate the views of small business before Federal agencies and Congress. Because Advocacy is an independent entity within the U.S. Small Business Administration (SBA), the views expressed by Advocacy do not necessarily reflect the position of the Administration or the SBA. Among Advocacy's primary statutory mandates is the requirement to measure the direct costs and other effects of government regulation on small businesses, and make legislative and non-legislative proposals for eliminating excessive or unnecessary regulations on small businesses.(1) In addition, the Chief Counsel for Advocacy is required by section 612(a) of the Regulatory Flexibility Act (RFA)(2) to monitor agency compliance with the RFA. The RFA requires Federal agencies to consider the impacts of their regulatory proposals on small entities, and determine whether there are equally effective alternatives that would reduce the regulatory burden on small entities. On August 13, 2002, President Bush underscored the importance of agency compliance with the RFA and the Office of Advocacy's role in giving a voice to small businesses in the rulemaking process when he signed Executive Order 13272, titled "Proper Consideration of Small Entities in Agency Rulemaking." While reform of many, if not all, of the regulations and guidance documents identified in OIRA's report could achieve benefits for small businesses, Advocacy has reviewed the rules and guidance documents listed on Tables 13 and 14 of OIRA's report, as well as the rules and guidance documents concerning selected independent agencies. Advocacy identified as high priorities for small business the subset of rules and guidance documents listed on the attached tables. Advocacy made its determinations based on the comments submitted to OIRA, input received from small businesses in preparing Advocacy's comments on OIRA's draft report,(3) and Advocacy's direct involvement in agency rulemaking affecting small businesses. The Office of Advocacy will contact each agency directly to offer our expertise and assistance in their review of these regulations and guidance documents.(4) We welcome the opportunity to work with OIRA and our federal regulatory partners in their efforts to modify or rescind regulations and guidance documents affecting small businesses. Please do not hesitate to contact me, or my Director of Interagency Affairs, Suey Howe at 202-205-6533. Sincerely, Thomas M. Sullivan Chief Counsel for Advocacy Suey Howe Director of Interagency Affairs Enclosures ENDNOTES 1. 15 U.S.C. 634b(3). 2. 5 U.S.C. 601 et seq. 3. Advocacy's May 28, 2002 letter to OIRA on its draft report is available in pdf format on Advocacy's website, http://www.sba.gov/advo/laws/comments/omb02_0528.pdf 4. Similar letters will be sent to each agency and Advocacy staff will follow up by telephone to participate in the agency's review. High Priorities for Small Business selected from Table 13: Nominations Referred to Agencies for Evaluations - Regulations Agency Regulation Ref. Number HHS/CMS Medicare and Medicaid Programs; Hospital 31 Conditions of Participation; Patients' Rights (1-hour Restraint Rule) Rule) HHS/CMS Medicare Program; Revisions to Payment Policies 32 and Five-Year Review of and Adjustments to the Relative Value Unites Under the Physician Fee Schedule for Calendar Year 2002 HHS/CMS Estimate of Impacts: 33 Certificates of Medical Necessity Justice Hemp Food Products (Interpretation and 68 Clarification of Listing Tetrahydrocannabinols in Schedule I) Labor Computer Professional Exemption under FLSA 78 Labor FLSA Administrative Exception 80 Labor/OSH Lead in Construction 93 A Labor/OSH Sling Standard 96 A State Flight Simulators 105 DOT Disadvantaged Business Enterprise 106 DOT/RSPA Emergency Preparedness 157 DOT/RSPA Hazardous Materials Training Requirements 158 Treasury/ Flexible Spending Accounts 162 IRS Treasury/ Monthly Versus Semi-Monthly Federal Employment 166 IRS Tax Deposits Treasury/ Partnership Investments in Qualified Small 168 IRS Business Stock EPA TRI Alternative Reporting Threshold (Form A) 188 EPA Export Notification Requirements 190 EPA Storage for Reuse Regulations (PCBs) 192 EPA TRI: Lowering Reporting Thresholds for PBT 210 Chemicals NARA Disposition of Federal Records 253 USPS Commercial Mail Receiving Agencies 267 High Priorities for Small Business selected from Table 14: Nominations Referred to Agencies for Evaluations - Guidance Documents Agency Guidance Documents Ref. Number HHS Discrimination Against Persons with LEP 7 Justice Guidance on Federal Prison Industries 11 Labor Coordination of FMLA with other Leave Policies 12 EPA TRI Reporting Forms and Instructions 26 EPA TRI Reporting Questions and Answers and other 27 Guidance SBA Guidance on Credit Unions 48 Rules/Guidance Documents of Independent Agencies Agency Rules/Guidance Documents Ref. Number FCC Telephone Number Portability 217 FCC Broadband Access to the Internet over Cable 218 FCC Remedying Interference to Public Safety 234 Communications in the 800 MHz band