Letter to The Honorable Lauren M. McFerran, Chairman, National Labor Relations Board (February 22, 2023)
Summary
Lauren M. McFerran, Chairman of the National Labor Relations Board, is addressed in this February 22, 2023 letter from the Committee on Small Business. The letter says Republicans on the Committee wrote last Congress and the Committee appreciated the narrative response. It states that the Office of Advocacy in the Small Business Administration noted on November 29, 2022 that the agency underestimated the cost of compliance for the Standard for Determining Joint-Employer Status Rule and failed to adequately consider alternatives. The Committee asks for documents and information by March 10, 2023.
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“Letter to The Honorable Lauren M. McFerran, Chairman, National Labor Relations Board (February 22, 2023).”
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February 22, 2023
The Honorable Lauren M. McFerran
Chairman
National Labor Relations Board
1015 Half Street S.E.
Washington, D.C. 20570
Dear Chairman McFerran:
The Committee on Small Business is investigating the National Labor Relations Board’s
(NLRB) implementation of the Regulatory Flexibility Act (RFA), the Small Business Regulatory
Enforcement Fairness Act (SBREFA), and Executive Order 13272 (EO13272).1 Republicans on
this Committee wrote to you last Congress and we appreciated your narrative response. We write
today to request additional documents and information related to our investigation.
As mentioned in our last letter, 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 a letter from the Office of Advocacy
(Advocacy) in the Small Business Administration (SBA) on November 29, 2022 noting that your
agency underestimated the cost of compliance for the Standard for Determining Joint-Employer
Status Rule and failed to adequately consider alternatives.3
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.”4 If not, the
agency simply certifies the rule will not have a significant economic impact on a substantial
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
Letter from Major L. Clark, III, Deputy Chief Counsel, and Janis C. Reyes, Asst. Chief Counsel, Office of
Advocacy, U.S. Small Bus. Admin., to Lauren McFerran, Chairman and Roxanne L. Rothchild, Exec. Sect’y, Nat’l
Labor Relations Board (Nov. 29, 2022) available at https://cdn.advocacy.sba.gov/wp-
content/uploads/2022/11/29104056/Comment-Letter-NLRB-Joint-Employer-Rule-508c.pdf.
4
5 U.S.C. § 603(a).
The Honorable Lauren M. McFerran
February 22, 2023
Page 2 of 4
number of small entities and provides a “factual basis for such certification.”5 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.6
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.7 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.”8
Small businesses across America deserve to know how the NLRB is working to consider
small businesses in their rulemaking process. We therefore request the following documents and
information, as soon as possible but no later than March 10, 2023:
1. Provide all small entity compliance guides produced or in use at the agency within the
last calendar year.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
5
5 U.S.C. § 603(b).
6
Id.
7
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).
8
5 U.S.C. § 604(a)(4).
The Honorable Lauren M. McFerran
February 22, 2023
Page 3 of 4
7. 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
_________________________ _________________________
Beth Van Duyne Pete Stauber
Chairman Member of Congress
Subcommittee on Oversight, Committee on Small Business
Investigations, and Regulations
_________________________ _________________________
Dan Meuser Jake Ellzey
Member of Congress Member of Congress
Committee on Small Business Committee on Small Business
_________________________ _________________________
Marc Molinaro Aaron Bean
Member of Congress Member of Congress
Committee on Small Business Committee on Small Business
The Honorable Lauren M. McFerran
February 22, 2023
Page 4 of 4
_________________________
Nick LaLota
Member of Congress
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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