Mr. Bob Barbee
Field Director
Alaska Field Office
National Park Service
2525 Gambell Street
Room 107
Anchorage, Alaska 99503-2892
Dear Mr. Barbee:
This letter shall serve as a comment on the above referenced proposed rule which was published in the Federal Register on September 17, 1996. The Office of Advocacy contends that the proposed rule does not comply with the requirements of the Regulatory Flexibility Act.
Background
The Office of Advocacy of the U.S. Small Business Administration (SBA) was established by Congress under Pub. L. No. 94-305 to advocate the views of small business before federal agencies and Congress. Advocacy is also required by §612 of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612) to monitor agency compliance with the RFA. On March 28, 1996, President Clinton signed the Small Business Regulatory Enforcement Fairness Act which made a number of significant changes to the Regulatory Flexibility Act, the most significant being provisions to allow judicial review of agencies' regulatory flexibility analyses.
Because of these changes, appropriate administrative and policy actions are needed within your agency to assure that the Bureau is in compliance with the law and to avoid judicial review of agency regulations.
Regulatory Flexibility Act Requirements
Initial Regulatory Flexibility Analysis
In accordance with RFA, Federal agencies are required to consider the impact of regulations on small entities in developing the proposed and final regulations. If the proposed rule is expected to have a significant economic impact, negative or positive, an initial regulatory flexibility analysis (IRFA) must be prepared and published with the proposed rule. The required IRFA is prepared in order to ensure that the agency has considered all reasonable regulatory alternatives that would minimize the rule' s economic impact on affected small entities. In accordance with Section 603(b) of the RFA, each IRFA must address the reasons that an agency is considering the action; the objectives and legal basis of the rule; the type and number of small entities to which the rule will apply; the projected reporting, record keeping, and other compliance requirements of the proposed rule; and all federal rules that may duplicate, overlap or conflict with the proposed rule.
Certification
If a proposed rule is not expected to have a significant economic impact on a substantial number of small entities, the agency does not have to prepare an IRFA. However, the agency head must sign a certification. For a certification to be adequate, an agency must perform a threshold analysis to determine the economic impact on small entities. The certification must be published in the Federal Register, along with the proposal and be accompanied by an explanation of the factual basis for the certification.
In the above referenced proposed rule, the certification consisted of unsubstantiated statement that the rule would not have a significant impact on a substantial number of small entities. The certification was devoid of any type of support or explanation. Clearly, the lack of the requisite support is in direct contrast to the requirements of RFA. As such, the certification in the proposed rule is inadequate. Without the substantive basis of the certification, small entities are unable to intelligently review the proposed rule and submit truly informed comments.
Small Entity Defined
Please note that the Act defines small entities as: "small business concerns", as defined in Section 3 of the Small Business Act; small organizations or nonprofit enterprises that are independently owned and operated, and are not dominant in a particular field; and small governmental jurisdictions (i.e. cities, counties, towns, townships, villages, school districts, or special districts with populations of less than 50,000). In that the population of the majority of the communities in Alaska is less than 50,000, the majority of the communities may qualify as small governmental organizations. Accordingly, a careful economic review of the proposed rule is necessary to assure that the small communities of Alaska will not be forced to comply with unduly burdensome regulations.
Because of the potential economic implications that the regulatory initiatives that the Alaska Field Office of the Department of Interior may have on small entities, it is incumbent upon the regulators at the agency to give the RFA adequate attention. Failure to do so disregards the requirements and fundamental spirit of RFA. Such impropriety may lead to judicial review of the agency' s actions.
If you would like to discuss this matter or if this office can be of any further assistance, please contact, Jennifer A. Smith, Assistant Advocate for Economic Regulation. She may be reached either by mail at the above address or by telephone at (202) 205-6943.
Please include a copy of this letter in the record of each of the above referenced proceedings. Thank you for your attention to this matter.
Sincerely,
Chief Counsel for Advocacy
Jere W. Glover
Jennifer A. Smith
Assistant Advocate
cc: David Funk
Fax 907-257-2448