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Frequently Asked Questions
What small entities should know about EPA and the Small Business Regulatory Enforcement Fairness Act
- Why should I be interested in RFA/SBREFA?
- What is SBREFA?
- How does SBREFA affect EPA's rulemaking?
- What does RFA/SBREFA require for proposed rules?
- What does RFA/SBREFA require for final rules?
- What is the progress to date?
What Potential small entity representatives should know about the Small Business Advocacy Review Panel process
- What is an EPA Small Entity Representative?
- Why does EPA need Small Entity Representatives?
- Who is eligible to be a Small Entity Representative?
- Who chooses Small Entity Representatives?
- At what stage in the rulemaking does the Panel process occur?
- What will being a Small Entity Representative entail?
- What will be done with my small entity input?
Where can I get more information?
What small entities should know about EPA and the Small Business Regulatory Enforcement Fairness Act
Why should I be interested
in RFA/SBREFA?
EPA has an ongoing commitment to minimize the burden of our regulations
on small entities to the extent we can while still meeting our
statutory requirements. The Regulatory Flexibility Act (RFA),
as amended by Small Business Regulatory Enforcement Fairness Act
(SBREFA), provides small entities with an expanded opportunity
to participate in the development of certain regulations.
What is SBREFA?
SBREFA was signed into law on March 29, 1996, and contains five
distinct sections:
- Subtitle A–Regulatory Compliance Simplification:
Among other things, requires the agency to publish Small Entity
Compliance Guides that are written in plain language and explain
the actions a small entity must take to comply with a rule
or group of rules.
- Subtitle B–Regulatory Enforcement Reforms: Requires
agencies to support the rights of small entities in enforcement
actions, specifically providing for the reduction, and in
certain cases, the waiver of civil penalties for violations
by small entities.
- Subtitle C–Equal Access to Justice: Provides small
businesses with expanded authority to go to court to be awarded
attorneys' fees and costs when an agency has been found to
be excessive in enforcement of federal regulations.
- Subtitle D–Regulatory Flexibility Act Amendments:
Provides small entities with expanded opportunities to participate
in the development of certain regulations.
- Subtitle E–Congressional Review of Agency Rulemaking: Agencies generally must provide Congress and the General Accounting Office with copies of all final rules and supporting analyses. Congress may decide not to allow a rule to take effect.
How does SBREFA affect
EPA's rulemaking?
SBREFA established certain formal procedural and analytical requirements
(outlined below) for rules with the potential to impose a significant
economic impact on a substantial number of small entities. But
EPA also considers the concerns of small entities in the more
frequent cases where impacts on small entities are more modest,
even though SBREFA doesn't require it.
What does RFA/SBREFA
require for proposed rules?
Initial Regulatory Flexibility Analysis. Generally,
the RFA requires EPA to prepare an Initial Regulatory Flexibility
Analysis (IRFA) for each proposed rule unless the rule will not
have a significant economic impact on a substantial number of
small entities. A regulatory flexibility analysis examines the
type and number of small entities potentially subject to the rule,
recordkeeping and compliance requirements, and significant regulatory
alternatives, among other things.
Small Business Advocacy Review Panel. When an IRFA is required, EPA must also convene a Small Business Advocacy Review Panel before proposing a rule. EPA's Small Business Advocacy Chair convenes each Panel, which includes representatives from the Small Business Administration, the Office of Management and Budget, and EPA. A Panel conducts its own outreach to Small Entity Representatives likely to be subject to the rule and prepares a report to the Administrator of EPA on ways to reduce the potential impact of the rule on small entities. Each Panel's report becomes part of the rulemaking record for the proposed rule.
What does RFA/ SBREFA
require for final rules?
Final Regulatory Flexibility Analysis. When EPA
issues a rule that may have a significant impact on a substantial
number of small entities, we must prepare a Final Regulatory Flexibility
Analysis (FRFA). The elements of a FRFA are similar to those of
an IRFA, outlined above. In addition, each FRFA must summarize
the significant issues raised by public comments on the IRFA,
assess these issues, and describe any changes made in response
to the comments.
Small Entity Compliance Guide. When a FRFA is required, EPA must also publish Small Entity Compliance Guides that are written in plain language and explains the actions a small entity must take to comply with a rule or group of rules.
- EPA has completed over 29 SBAR Panels in cooperation with SBA and
OMB. In each case, the Panel recommended changes to the rule that would
reduce impacts on small entities.
- In July 2000, EPA launched a new RFA/SBREFA web site: www.epa.gov/sbrefa.
The primary purpose of the site is to provide public access to information
and documents produced for, or directly related to, the Agency's implementation
of SBREFA.
- Small Entity Compliance Guides are available on the RFA/SBREFA web
site.
- In March 1998, EPA delivered to Congress reports on SBREFA Section
223 - Penalty Reduction Program for Small Entities and SBREFA Section
213 - Informal Guidance Program. These reports are also available from
the SBAC staff or from the RFA/SBREFA web site.
- To date, EPA has submitted over 2,500 documents to Congress under the Congressional Review Act.
What Potential small entity representatives should know about the Small Business Advocacy Review Panel process
What is an EPA Small
Entity Representative?
The Small Business Advocacy Review (SBAR) Panel will ask a selected
group of Small Entity Representatives (SERs) to provide comments
on behalf of their company, community, or organization to advise
the Panel regarding a particular proposed rule. SERs' participation
in the rulemaking process will ensure that EPA hears small entity
concerns.
A SER is a person appointed by the Small Business Advocacy Chair (SBAC) as a participating representative of small entities likely to be subject to the requirements of a specific proposed rule under development. The Regulatory Flexibility Act (RFA) defines small entities as small businesses, small governments, and small non-profit organizations.
Why does EPA need
Small Entity Representatives?
EPA has an ongoing commitment to minimize the burden of its regulations
on small entities to the extent feasible, while still meeting
its statutory requirements. The Small Business Regulatory Enforcement
Fairness Act (SBREFA), enacted in March 1996, amended the RFA
to provide small entities with an expanded opportunity to participate
in the development of certain regulations.
In particular, EPA must convene a SBAR Panel for certain proposed rules under development, unless the Agency determines the rule will not impose a significant economic impact on a substantial number of small entities. Each Panel is led by the SBAC and includes federal representatives from the Small Business Administration (SBA), the Office of Management and Budget (OMB), and EPA. The Panel meets with SERs likely to be subject to the rule to hear their views on the potential impacts of the rule and on ways to reduce them.
Who is eligible to
be a Small Entity Representative?
A small entity stakeholder is eligible to be a SER if he or she
is directly subject to the particular proposed regulation that
is under development and meets one of the following definitions
of small entity listed below. Please note, however, EPA has the
authority to use an alternative definition after notice and comment,
and for small businesses, consulting with SBA.
- Small Business: Defined under Section 3 of the Small
Business Act. SBA defines "small business" variably,
based on each firm's category in the North American Industry
Classification System.
- Small Organization: Any not-for-profit enterprise which
is independently owned and operated and is not dominant in
its field.
- Small Governmental Jurisdiction: Governments of cities, counties, towns, townships, villages, school districts, or special districts, with population of less than 50,000.
Typically, EPA prefers the actual owners or operators of small businesses, community officials, and non-profit organizations for this purpose. However, a person from a trade association that exclusively or primarily represents potentially regulated small entities, may also serve as a SER.
Who chooses Small
Entity Representatives?
For each rule that may have a significant economic impact on a
substantial number of small entities, EPA identifies what types
of small entities are likely to be subject to the rule and works
in partnership with other Agency offices in developing a list
of potential SERs. EPA also consults with the SBA Chief Counsel
for Advocacy to identify individuals to serve as SERs. The SBAC
considers these recommendations and appoints a group of official
SERs.
At what stage in
the rulemaking does the Panel process occur?
Prior to proposing a rule, EPA engages its small entity stakeholders
in a dialog to learn more about their concerns and ideas regarding
the rule under development. If the Agency believes that the rule
may have a significant economic impact on a substantial number
of small entities, EPA will begin the SBAR Panel process. This
process is intended to provide a special opportunity for small
entities to participate in the rulemaking.
What will being a
Small Entity Representative entail?
Generally, SERs will be asked to review background information,
listen to informational briefings and provide oral and written
comments to the Agency and later to the Panel.
Typically, prior to convening a Panel, EPA will provide the SERs with some background information on the rule and ask for their initial feedback. The Agency may also arrange a meeting with small entities potentially subject to a particular rule to hear their initial concerns and suggestions. Representatives of OMB and SBA are also invited to this meeting.
After the SBAR Panel is convened, the Panel will provide the SERs with some additional information, followed by a teleconference or a face-to-face meeting to give them the opportunity to communicate directly with the Panel members. The Panel also generally requests SERs' comments in writing. The goal of this consultation is to provide a forum for the SERs to raise issues of concern and to provide the Panel with insight into technical issues and potential ways of approaching them.
What will be done
with my small entity input?
Each SBAR Panel has 60 days to consider SER comments in addition
to other rule-related materials prepared by EPA and prepare a
report to the Administrator of EPA on the potential small entity
impacts of the rule and on possible ways to reduce those impacts.
The Panel report is considered by the Agency as it makes decisions
on the proposed rule and is made part of the official rulemaking
record with all written small entity comments appended. SERs may
also submit comments during the standard public comment period
after the publication of the proposed rule in the Federal
Register.
Where can I get more information?
For more information on EPA's small business activities, check out www.epa.gov/smallbusiness. This web page provides information on environmental technical assistance, environmental laws and regulations and financial assistance. Several EPA documents are also available that can provide more information on the RFA/SBREFA, the Agency's small entity compliance assistance efforts and the elements of a regulatory flexibility analysis. These documents and further assistance with any RFA/SBREFA questions are available from the SBAC, SBAC staff, or from the RFA/SBREFA web site, listed below.
Small Business Advocacy Chair
Alexander CristofaroSmall Business Advocacy Chair Staff
Name Phone Lanelle Wiggins (202) 566-2372 wiggins.lanelle@epa.gov Nathaniel Jutras (202) 564-0301 jutras.nathaniel@epa.gov Caryn Muellerleile (202) 564-2855 muellerleile.caryn@epa.gov Lakeshia Walker (202) 564-6571 walker.lakeshia@epa.gov SBREFA Web site
