Committee on Small Business — Letter to the Honorable Michael Connor, U.S. Army Corps of Engineers (2023)

Summary

Letter dated February 22, 2023, from the Committee on Small Business to Michael Connor, Assistant Secretary, U.S. Army Corps of Engineers, about the Army Corps' implementation of the Regulatory Flexibility Act, the Small Business Regulatory Enforcement Fairness Act, and Executive Order 13272. The letter says the Office of Advocacy in the Small Business Administration noted in a February 7, 2022 letter that the Army Corps improperly certified its proposed rule on the definition of the waters of the United States, and that the Army Corps certified again in the final rule posted on January 18, 2023. It requests a staff level briefing by March 3, 2023, and documents and information by March 10, 2023.

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“Committee on Small Business — Letter to the Honorable Michael Connor, U.S. Army Corps of Engineers (2023).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2023-02-22-housesbc-majority-to-army-corps-02-22-2023-letter-to-army-c-260228f954/, SHA-256 723783831cb6c7e1c284681cb7401cf7be76b6ff6d5176a6b01af949a7191226.

Full text

February 22, 2023

The Honorable Michael Connor
Assistant Secretary
U.S. Army Corps of Engineers
441 G Street NW
Washington, DC 20314-1000

Dear Assistant Secretary Connor:

The Committee on Small Business is investigating the U.S. Army Corps of Engineers’
(Army Corps) implementation of the Regulatory Flexibility Act (RFA), the Small Business
Regulatory Enforcement Fairness Act (SBREFA), and Executive Order 13272 (EO13272).1 We
write today to request a staff level briefing and request documents and information.

The RFA, SBREFA, and EO13272 were designed to provide small businesses notice of
proposed agency rules that affected their business and provide them the opportunity to
participate in the process.2 Despite this stated goal, it seems that some agencies are failing to
properly implement these measures to the detriment of small businesses across the country. In
fact, your agency received letter from the Office of Advocacy (Advocacy) in the Small Business
Administration (SBA) noting that you improperly certified a rule in your Initial Regulatory
Flexibility Analysis (IRFA).3

Of particular concern is the rule revising the definition of the waters of the United States
(WOTUS) under the clean water act. Advocacy argued in a letter to you on February 7, 2022 that
you improperly certified the proposed rule as having no significant impact on a substantial
number of small entities.4 Yet, the Army Corps forged ahead with the rule—certifying again in

1
5 U.S.C.§§ 601-12; Pub. L. No. 104-121 (Mar. 29, 1996); Proper Consideration of Small Entities in Agency
Rulemaking, 67 Fed. Reg. 53,461 (Aug. 16, 2002).
2
5 U.S.C.§§ 601-12.
3
See generally, Letters To Agencies, U.S. SMALL BUS. ADMIN. (last visited Feb. 9, 2023),
https://advocacy.sba.gov/category/regulation/letters-to-agencies/.
4
Letter from Major L. Clark, III, Deputy Chief Counsel, and Astrika W. Adams, Asst. Chief Counsel, Office of
Advocacy, U.S. Small Bus. Admin., to Michael S. Regan, Administrator, U.S. Env’t Protection Agency & Michael
L. Connor, Asst. Sec’y, Dept. of Army (Feb. 7, 2022), available at https://cdn.advocacy.sba.gov/wp-
content/uploads/2022/02/08152154/Comment-Letter-Proposed-WOTUS-Definition-2022.pdf.
The Honorable Michael Connor
February 22, 2023
Page 2 of 4

the final rule posted on January 18, 2023, that WOTUS would not substantially impact a
substantial number of small entities.5

As you are well aware, agencies across the federal government are provided discretion
when determining a regulation’s impact on the small businesses. Agencies are required to
produce an IRFA in proposed rules only after the agency determines the proposed rule is
expected to have a “significant impact” on a “substantial number of small entities.”6 If not, the
agency simply certifies the rule will not have a significant economic impact on a substantial
number of small entities and provides a “factual basis for such certification.”7 That certification
is published in the Federal Register and reported to the Chief Counsel for Advocacy at SBA at
the time the proposed or final rule is published for public comment.8

If the agency determines that the proposed rule will have a significant impact on a
substantial number of small entities, section 212 of SBREFA requires agencies to publish one or
more small entity compliance guides for each rule, or group of rules.9 Additionally, in the final
rule, the agency needs to publish a Final Regulatory Flexibility Analysis (FRFA) that includes
but is not limited to “a description of and an estimate of the number of small entities to which the
rule will apply or an explanation of why no such estimate is available.”10

Small businesses across America deserve to know how the Army Corps is working to
consider small businesses in their rulemaking process. We therefore request a staff level briefing
on the Army Corps compliance with the RFA, SBREFA, and EO13272, as soon as possible but
no later than March 3, 2023. In addition, we request the following documents and information, as
soon as possible but no later than March 10, 2023:

1. Identify any central Army Corps position or office, if one exists, responsible for ensuring
that Army Corps complies with the RFA, SBREFA, and EO13272.

2. Identify any Army Corps positions or offices responsible for reducing the regulatory
burden on small businesses.

3. Provide all small entity compliance guides produced or in use at the agency within the
last calendar year.

4. Provide the agency’s definition of “significant impact” and “substantial number of small
entities” from 2010 until present, including any and all changes over that time and the
justifications for those changes.

5
Revised Definition of “Waters of the United States,” 88 Fed. Reg. 3004 (Jan. 18, 2023)
6
5 U.S.C. § 603(a).
7
5 U.S.C. § 603(b).
8
Id.
9
Small Business Regulatory Enforcement Fairness Act, Pub. L. 104-121, § 212 (as amended by the Small Business
and Work Opportunity Act of 2007, Pub. L. 110-28 § 8302).
10
5 U.S.C. § 604(a)(4).
The Honorable Michael Connor
February 22, 2023
Page 3 of 4

5. Provide the name, docket number, and citation of all rules, proposed and final, that that
the agency certified as having no significant impact on a substantial number of small
entities from 2020 to present.

6. All documents and communications relating to the agency’s determination of whether
there was a “significant impact” on a “substantial number of small entities” for all
proposed and final rules from 2020 until present.

7. All documents and communications detailing any and all factors the agency considers
when determining whether the proposed rule will have a “significant impact” on a
“substantial number of small entities” and the weight of each factor given in the
determination.

8. All documents and communications relating to consideration of alternate rule proposals
when the agency has determined a proposed or final rule has a substantial impact on a
substantial number of small entities from 2020 until present.

9. All documents and communications relating to instances where input from mandated
SBREFA panels compelled the agency to amend a proposed rule, with supporting
documents, from 2020 to present.

10. All documents and communications relating to the standards the agency uses to
determine its “factual basis” to support a determination that a proposed rule would not
have a significant impact on a substantial number of small businesses.

To schedule the delivery of responsive documents or ask any related follow-up questions,
please contact Committee on Small Business Majority Staff at (202) 225-5821. The Committee
on Small Business has broad authority to investigate “problems of all types of small business”
under House Rule X. Thank you in advance for your cooperation with this inquiry.

Sincerely,

_________________________ _________________________
Roger Williams Blaine Luetkemeyer
Chairman Vice Chairman
Committee on Small Business Committee on Small Business
The Honorable Michael Connor
February 22, 2023
Page 4 of 4

_________________________ _________________________
Beth Van Duyne Pete Stauber
Chairman Member of Congress
Subcommittee on Oversight, Committee on Small Business
Investigations, and Regulations

_________________________ _________________________
Dan Meuser Maria Salazar
Member of Congress Member of Congress
Committee on Small Business Committee on Small Business

_________________________ _________________________
Jake Ellzey Marc Molinaro
Member of Congress Member of Congress
Committee on Small Business Committee on Small Business

_________________________ _________________________
Aaron Bean Nick LaLota
Member of Congress Member of Congress
Committee on Small Business Committee on Small Business

cc: The Honorable Nydia M. Velasquez, Ranking Member
Committee on Small Business

The Honorable Dean Phillips, Vice Ranking Member
Committee on Small Business

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