Your Rights to Regulatory Fairness: SBREFA Update
Turville, Mary A., The National Public Accountant
As a small business owner, do you often feel overwhelmed by the impact federal regulations have on your daily business operations? To give relief to small businesses, Congress recently passed the Small Business Regulatory Enforcement Fairness Act (SBREFA). The Act was a result of the 1995 White House Conference on Small Business, where delegates overwhelmingly supported providing a way for small businesses to meaningfully participate in the regulatory process.
The SBREFA legislation (P.L. 104-121), enacted into law March 29, 1996, ensures that small entity concerns receive appropriate consideration in the development and enactment of regulatory procedures. It requires that federal agencies, including the Internal Revenue Service, consider ways to reduce any significant economic impact of new regulations on small businesses. In addition, the Act requires federal agencies to prepare "plain English" compliance guides spelling out in easy-to-follow language how small businesses can comply with federal regulations. The bill also allows small businesses to recover their expenses and legal fees from the government when enforcers make excessive demands for fines or penalties that cannot be sustained in court.
The six key aspects of the legislation are:
1. Regulatory Compliance Simplification. Federal agencies are required to develop comprehensive guidelines and a well-defined process to respond to small business inquiries on actions that businesses are required to take to comply with rules established by the agencies. These guidelines must be written in plain English.
2. Equal Access to Justice Amendments. Small businesses are given expanded authority to go to court to be awarded attorney's fees and costs when an agency has been found to be excessive in its enforcement of federal regulations.
3. Congressional Review. Congress is authorized to review each proposed major rule before it can take effect.
4. Regulatory Enforcement Reform of Penalties. Each government agency is required to establish a policy to provide, in certain circumstances, for the reduction or waiver of civil penalties for violations of a regulation.
5. Small Business Advocacy Review Panels. Before proposed rules are published, the Environmental Protection Agency and the Occupational Safety and Health Administration are required to establish government panels that receive input from affected small businesses and make public the panel reports as part of the record.
6. Oversight of Regulatory Enforcement. The Small Business Administration (SBA) Administrator must appoint a small business and agriculture regulatory-enforcement ombudsman and 10 small business regulatory fairness boards to comment on the enforcement activities of federal regulatory agencies. Small businesses are provided with a procedure to comment on the enforcement activity conducted by federal regulatory agencies. The national ombudsman must annually report to Congress on the findings.
Chronology of Small Business Regulatory Compliance
Regulatory Flexibility Act of 1980
RFA requires each federal agency to analyze the effects of its regulations on small businesses.
President Reagan's Executive Order
President Reagan's Executive Order requires the Office of Management and Budget to review each proposed new rule for analysis of the cost/benefit of that regulation.
President Clinton's Executive Order and 1995
Memorandum of Penalty Waiver
President Clinton's Executive Order 12866 directs agencies to provide the public with meaningful participation in the regulatory process and lays the foundation for public involvement. The April 1995 Memorandum gives compliance officials more flexibility in dealing with small businesses and the authority to waive penalties and use enforcement discretion to help bring entities into compliance.
Small Business Regulatory Enforcement Fairness Act of 1996 (P. …