Final Rules

On Monday, as expected, the EPA finalized its "endangerment finding." The Wall Street Journal provides a good summary of EPA's announcement in an article published Tuesday. As SBCRR reported in our Greenhouse Gas Regulation Fact-Sheet last month, the finding allows for a series of rulemakings to move forward.

Small business concern: Small business stakeholders remain concerned with the lack of overall small business impact analysis for the greenhouse gas regulatory proposals issued by EPA. There are half-a-dozen regulatory proposals that are expected to be finalized by March 2010. Each individual proposal may satisfy the small business impact analysis requirement of the Regulatory Flexibility Act, but there is no analysis of how all of the regulatory measures will work together to control greenhouse gas emissions.

At OMB For 90 Review
EPA's Regulation of Fly Ash (coal combustion residuals)

The EPA submitted a proposed rule on October 16 to OMB for review that may designate coal combustion residues as hazardous. While the regulation of coal combustion residuals is an issue that has been looked at by EPA for over 15-years, a spill that happened at a TVA plant in Harriman, Tennessee (40 miles west of Knoxville) on December 22, 2008 has put the regulation of fly ash on the agency's front burner. The release of materials one year ago from the TVA plant's retention facility created a tidal wave of water and ash, damaging the property of 42 people and wiping out 3 homes.

Small business concern: EPA's consideration of designating fly ash as hazardous may curb the beneficial re-use of the material in many building materials, roads, and mining projects.

Analysis for SBCRR Subscribers:

Although the EPA's submission to OMB is designated "economically significant," the EPA has not convened a small business advocacy review panel that would provide input to the agency prior to proposing the rule. Small business advocacy review panels are required when EPA designates that the proposal will have a "significant impact on a substantial number of small entities." The definition of small entities includes rural electric cooperatives and municipalities, many of which run coal-fired power plants. Representatives of those entities are encouraged to meet with OMB to explain how a proposed rule by EPA may impact them and why it is important for the agency to convene a small business advocacy review panel prior to the issuance of a proposed rule. For more information on the small business advocacy review panel process, contact Tom Sullivan.

Executive Order 12866 governs the process for stakeholders to meet with the Office of Information and Regulatory Affairs (OIRA) when a rulemaking is at OMB for its 90 day review. OIRA benefits from any additional data or information that may improve the analysis or rationale for the regulatory proposal. Any meeting under 12866 is a matter of public record, with participants and subject matter disclosed. Additionally, any data or information presented at the meeting are made public. Staff from the promulgating agency and other interested interagency personnel attend. OMB generally listens and sometimes asks questions, but OMB and staff from the promulgating agency do not answer questions about the substance of the rule because the content of the proposal is still considered a confidential work-product prior to its submission to the federal register for publication.

Out For Comment
Office of Advocacy Looking to Champion Regulatory Reforms

Every year, the SBA's Office of Advocacy requests suggestions for federal rules that should be reformed in order to benefit small business. The process, deemed the "R3 initiative" (Regulatory Review and Reform), helps federal agencies identify rules that are on the books and may be outdated, duplicative, or no longer necessary in order to achieve the agency's goals. The SBA's Office of Advocacy is proud of the transparent process it uses to move forward on nominations by small business stakeholders to review and reform federal rules. For a summary of Advocacy's activities on past reforms, visit the initiative's web-site http://www.sba.gov/advo/r3/.

Suggestions for federal rules that should be reformed are due to SBA's Office of Advocacy by December 31 so they can be included in the 2010 list of Top Ten Rules in Need of Review and Reform. Please send suggestions to the e-mail address of advocacy@sba.gov.

Next Week's Newsletter

• OMB solicits comments on improving the Paperwork Reduction Act.

Comments are due December 28. Next week's newsletter will provide insight on the importance of the PRA for small business. SBCRR subscribers will receive draft comments, key data, and suggested PRA improvements.

• 2010 Regulatory Agenda

Agencies recently drafted their proposed regulatory agendas. Next week's newsletter will highlight some of the key regulatory proposals being developed at agencies. SBCRR subscribers will benefit from analysis to help plan for activity in 2010.