Letter to The Honorable Michael S. Regan, Administrator, Environmental Protection Agency (February 22, 2023)

Summary

A February 22, 2023 letter from the Committee on Small Business to Michael S. Regan, Administrator of the Environmental Protection Agency (EPA), stating that the Committee is investigating the EPA's implementation of the Regulatory Flexibility Act (RFA), the Small Business Regulatory Enforcement Fairness Act (SBREFA), and Executive Order 13272 (EO13272). The letter states that the Office of Advocacy in the Small Business Administration sent the EPA nine letters in 2022 and raises the rule revising the definition of the waters of the United States (WOTUS). The letter requests a staff level briefing no later than March 3, 2023, and numbered requests for documents and information no later than March 10, 2023. The signature block names Roger Williams, Chairman, Blaine Luetkemeyer, Vice Chairman, and Beth Van Duyne.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Issuer: Congressional materials
Document type: 405466 2023 02 23 Williams Luetkemeyer And Van Duyne Lead Committee Att0
Date: 2023-02-23
Case: 405466 2023 02 23 Williams Luetkemeyer And Van Duyne Lead Committee Att0

Cite this document

“Letter to The Honorable Michael S. Regan, Administrator, Environmental Protection Agency (February 22, 2023).” Dated 2023-02-23. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2023-02-23-405466-2023-02-23-williams-luetkemeyer-and-van-duyne-lead-committee-att0/, SHA-256 23413aa7e763da2c9f841e8f279486a236139f3598c605c002d1b2ee72756d51.

Full text

February 22, 2023

The Honorable Michael S. Regan
Administrator
Environmental Protection Agency
1700 G Street N.W.
Washington, D.C. 20552

Dear Administrator Regan:

The Committee on Small Business is investigating the Environmental Protection
Agency’s (EPA) 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 you failed to respond. We write
today to request a staff level briefing and request additional documents and information.

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 nine letters from the Office of Advocacy
(Advocacy) in the Small Business Administration (SBA) in 2022 alone, noting that your Initial
Regulatory Flexibility Analysis’ (IRFA) were insufficient, improper, or you failed to conduct the
analysis at all.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 EPA forged ahead with the rule—certifying again in the final

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 S. Regan
February 22, 2023
Page 2 of 4

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 EPA is working to consider
small businesses in their rulemaking process. We therefore request a staff level briefing on the
EPA’s 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 EPA position or office, if one exists, responsible for ensuring that
EPA complies with the RFA, SBREFA, and EO13272.

2. Identify any EPA 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 S. Regan
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 S. Regan
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 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

_________________________
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

File and source

File: 405466_2023-02-23_williams-luetkemeyer-and-van-duyne-lead-committee-_att0.pdf
Size: 171,597 bytes
SHA-256: 23413aa7e763da2c9f841e8f279486a236139f3598c605c002d1b2ee72756d51
Our copy: 405466_2023-02-23_williams-luetkemeyer-and-van-duyne-lead-committee-_att0.pdf
Original: No public link identified.