Regulatory Flexibility Act Report: Agencies' Noncompliance with the RFA (Committee on Small Business, 2024)

Summary

This is the Regulatory Flexibility Act (RFA) Report: Agencies' Noncompliance with the RFA, a House Committee on Small Business Staff Report from 2024. The executive summary states that the Committee, under Chairman Roger Williams, launched an official investigation into federal agencies' compliance with the RFA on February 22, 2023. It says the Committee reviewed more than 100 proposed and final rules, sent 66 letters to 34 different federal government agencies, with 13 hearings on the regulatory burdens. The report states four findings: that agencies often improperly certify rules, underestimate costs and the number of impacted small businesses, fail to assess whether a rule is duplicative, and in some cases refuse to comply with congressional oversight. It also has sections on solutions and an appendix listing agency letters.

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: 406007 2024 06 03 Wtas Stakeholders React To Committee On Small Busi Att0
Date: 2024-06-03
Case: 406007 2024 06 03 Wtas Stakeholders React To Committee On Small Busi Att0

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“Regulatory Flexibility Act Report: Agencies' Noncompliance with the RFA (Committee on Small Business, 2024).” Dated 2024-06-03. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2024-06-03-406007-2024-06-03-wtas-stakeholders-react-to-committee-on-small-busi-att0/, SHA-256 42d30b2caf0821164a29cf19dba30dd24fcd00672b99be4e60bec2d8a79e91c4.

Full text

Regulatory Flexibility Act (RFA)
Report:
Agencies’ Noncompliance with the
RFA

The House Committee on Small Business
Staff Report 2024

1
Table of Contents

I. Committee Action. ..................................................................................... 4

II. Executive Summary. .................................................................................. 5

III. Introduction to the RFA.............................................................................. 6

IV. The Committee’s Investigation. ................................................................. 8

A. Certification........................................................................................... 8
1. EPA WOTUS Rule. ...................................................................................9
2. EPA Clean Power Plant Rule...................................................................10
3. DOL / OSHA: Walkaround Rule.............................................................11
4. CFPB: Credit Card Penalty Fees Rule (Regulation Z)............................12
5. FMC: Demurrage and Detention Billing Requirements Rule. ................13

B. Overall Impact. ................................................................................... 13
1. Underestimating Compliance Cost and Burden. .....................................15
a. DOL: Davis-Bacon and Related Acts; Apprentice Rule; Non-
Displacement Rule; Fiduciary Rule; and Joint Employer Rule......15
i. David-Bacon and Related Acts...........................................16
ii. Apprentice Rule..................................................................16
iii. Non-Displacement Rule. ....................................................17
iv. Fiduciary Rule. ...................................................................18
v. Joint Employer Rule...........................................................18
b. CPSC: Residential Gas Furnaces and Boilers Rules. .....................20
c. DOE: Commercial Refrigeration and Distribution Transformers
Rules...............................................................................................20
i. Commercial Refrigeration Rule. ........................................20
ii. Distribution Transformers Rule..........................................21
d. EPA: EtO Rule; Methane Rule; PFAS Rule; Air Quality Standards
Rule; and Clean Power Plant Rule. ................................................21
i. EtO Rule. ............................................................................22
ii. Methane Rule......................................................................22
iii. PFAS Rule. .........................................................................23
iv. Air Quality Standards Rule. ...............................................23
v. Clean Power Plant Rule......................................................24
e. FDA: Tobacco Product Standard for Characterizing Flavors in
Cigars Rule. ....................................................................................24
f. BOEM: Rice’s Whale Rule.............................................................25
g. FTC: Non-Compete Clause Rule....................................................26
2. Underestimating the Number of Small Entities Impacted.......................26
a. Federal Energy Regulatory Commission Rules..............................27

2
b. DOL: Fiduciary Rule; Non-Displacement of Qualified Workers
Rule Davis-Bacon and Related Acts; Overtime Rule under Fair
Labor Standards Act; and Independent Contractor Classification..32
i. Fiduciary Rule. ...................................................................32
ii. Non-Displacement of Qualified Workers Rule...................33
iii. Davis-Bacon and Related Acts. ..........................................33
iv. Overtime Rule under Fair Labor Standards Act.................34
v. Independent Contractor Classification. ..............................34
3. Alternative Rules.....................................................................................35
a. DOL: Davis-Bacon and Related Acts and Overtime Rule under
Fair Labor Standards Act................................................................35
b. ATF: Definition of “Engaged in the Business” as a Dealer in
Firearms Rule. ................................................................................36
c. FDA: Tobacco Product Standard for Characterizing Flavors in
Cigars..............................................................................................36

C. Compounding Impact of Duplicative Regulations. ............................ 36
1. DOL: Fiduciary Rule and Workplace Injury Rule...................................40
a. Fiduciary Rule. ...............................................................................40
b. Workplace Injury Rule....................................................................40
2. DOE and FTC: Ceiling Fans Rules. ........................................................41
3. OMB/FAR Council and SEC: Climate Disclosure Rule. ........................41
4. EPA and DOE: Electric Vehicles. ............................................................42

D. Congressional Oversight and Administrative Procedure Act.............. 43
1. The FDA, BOEM, and DOL: Policy not to Discuss Proposed Rules
with Congress..........................................................................................43
2. The DOE, DOL, and SEC: Ramifications of Shortened Comment
Period.......................................................................................................44

V. Solutions................................................................................................... 45
A. Significant Impact on a Substantial Number of Small Entities Certification. ........45
B. Regulatory Flexibility Act Reforms. ......................................................................46
C. Rule Challenges......................................................................................................46
D. Periodic Review of Rules. ......................................................................................46
E. Cumulative Economic Impact of the Rule. ............................................................47

VI. Conclusion. .............................................................................................. 47

Appendix 1

3
I. Committee Action

4
II. Executive Summary
On February 22, 2023, the Committee on Small Business (Committee), under Chairman Roger Williams,
launched an official investigation into federal agencies’ compliance with the Regulatory Flexibility Act (RFA).
These letters were a continuation of an investigation that began in October 2022 by then Committee Ranking
Member Blaine Luetkemeyer. In the 118th Congress, the Committee conducted a comprehensive, three-phase
investigation to identify the main compliance issues and find solutions to prevent agencies from overregulating
small businesses. This included investigating federal agencies’ rulemaking process, the adequacy of their RFA
analysis, and the burden their regulations impose on small businesses. This report examines these processes
and burdens by analyzing agencies’ rules, responses to the Committee’s letters, and findings from the hearings.
Furthermore, this report examines potential legislative solutions resulting from these investigative findings.

Nearly every week, the Biden Administration finds new ways to hamper businesses across America by
creating burdensome new regulations and mandates on small businesses. This Administration has repeatedly
shown that they do not consider the best interests of business owners when making their rules and regulations.
Since President Biden took office, his Administration has passed 891 final rules costing $1.47 trillion and 232.4
million paperwork hours.1 In a single week alone in April, the Biden Administration issued $875 billion in new
costs from final rules.2 This is an unfortunate reality that the small business owners must face every day; trying to
run their businesses while battling against a mountain of ever-changing regulations.

During this investigation, the Committee reviewed more than 100 proposed and final rules, sent 66 letters to
34 different federal government agencies, and held 13 hearings on the regulatory burdens created by the Biden
Administration. This work established the evidence to support four findings that show the main issues with the
agencies’ RFA compliance.

Finding 1: The RFA allows agencies to certify a rule if it does not have a significant impact on a
substantial number of small entities. However, often, agencies improperly certify the rules
in order to avoid conducting the RFA analysis, which means that rules are being finalized
without adequately assessing the true impacts to small businesses.

Finding 2: Agencies often underestimate both the costs and the number of impacted small businesses
when conducting an RFA analysis. This creates a disparity between what the agency claims
and what the real-world impact of the rules are on small businesses. Furthermore, the
agencies often fail to adequately consider less burdensome alternatives, or they choose to
finalize a rule that is even more harmful to small businesses than other alternatives, without
adequate justification.

Finding 3: Agencies repeatedly fail to appropriately assess if a rule is duplicative or conflicts with
other rules, which causes small businesses to suffer from multiple overlapping regulations
from both within the same agency and across the federal government.

Finding 4: Some agencies refused to comply with congressional oversight and provide Congress
with requested information during their rulemaking process. This violates both the
Constitution and Administrative Procedure Act and prevents this Committee from its duty
to protect Main Street America.

Unfortunately, most agencies are failing to properly comply with the RFA’s requirements—in fact many
are treating it like a check the box exercise rather than actually analyzing the effects of their regulations. This
is failing to live up to the spirit of letter of the law and is causing small businesses to suffer. Both the first and
second phases of the Committee’s investigation revealed that agencies often neglect to adequately assess how
1
Regulation Rodeo, Am. Action Forum, (last visited May 10, 2024), https://www.regrodeo.com.
2
Dan Goldbeck, The biggest week on record, Am. Action Forum (Apr. 22, 2024).

5
their regulations would affect small businesses. The third phase showed that even after Congressional oversight,
agencies still persistently refuse to comply with the RFA’s requirements and to provide this Committee with
the required information to conduct Constitutionally mandated oversight. The issues with the RFA compliance
identified by this Committee harm American small businesses and require a cross-jurisdictional approach to be
remedied.

In nearly every hearing held by the Committee this Congress, small businesses noted the increased burden and
harms they face due to the Biden Administrations regulatory state. The Committee will continue evaluating federal
agencies’ RFA compliance and seek legislative solutions to better protect small businesses. The Committee’s in-
depth investigation uncovered a number of potential solutions to strengthen the protections for small entities,
particularly in the Biden Administrations climate of over-regulation.

III. Introduction to the RFA
The massive number of regulations that federal agencies pass each year and the number of paperwork hours
to comply are detrimental to a small business. Staying on top of this ever-changing regulatory system is no small
undertaking, and often business owners must either take time away from their core duties to stay in compliance,
or hire an employee solely dedicated to the task. Compliance diverts critical resources from being reinvested into
a business, helping it to grow, innovate, and succeed.

The RFA was created to prevent excessive regulatory burdens from being imposed on small businesses.3 The
RFA was signed into law by President Jimmy Carter on September 19, 1980 with the aim of requiring federal
agencies to consider the impact their regulations will have on small entities, who often are disproportionately
impacted by federal bureaucracy.4 The RFA requires agencies to analyze whether proposed regulations are expected
to have a “significant economic impact on a substantial number of small entities.”5 However, this Committee’s
investigation shows that federal agencies are no longer following the law in a way that lives up to its intent when
it was initially passed.

The agencies must take three steps to comply with the RFA in their rulemaking process. First, the agency
must determine whether the RFA applies to a particular regulation. The RFA applies to rules subject to notice
and comment rulemaking under the Administrative Procure Act (APA) or any other relevant law.6 If the agency
concludes that the RFA applies—which it does for almost all rules issued by agencies these days—they move
onto the second step to provide further economic impact analyses. However, an agency can get around the intent
of the law if it determines that a rule will not have a significant economic impact on a substantial number of small
entities. This loophole allows agencies to pass burdensome regulations that are detrimental to small businesses
without ever attempting to calculate the true cost of the regulation. This certification must include a factual basis
analysis for this determination, which provides, at minimum, a description of the affected entities and the impacts
that clearly justify the “no impact” certification.7

Second, if the agency determines that the RFA applies, agencies must conduct a front-end Initial Regulatory
Flexibility Analysis (IRFA).8 The IRFA is designed to “describe the impact of the proposed rule on small entities.”9
The agency must examine the costs and other economic implications for the different industries targeted by the

3
Regulatory Flexibility Act, Pub. L. No. 96-354, 94 Stat. 1164 (1980); Small Business Regulatory Enforcement Fairness Act, Pub. L.
No. 104-121, Title II, 110 Stat. 847 (1996).
4
See U.S. Small Bus. Admin. Office of Advocacy, A Guide for Government Agencies: How to Comply with the Regulatory
Flexibility Act, 93 (Aug. 2017).
5
5 U.S.C. § 603(c).
6
5 U.S.C § 553(b); see also 5 U.S.C. § 601(2).
7
5 U.S.C. § 605(b).
8
Id. at § 603(a).
9
Id.

6
rule.10 The direct impacts of a rule include compliance costs and economic implications that derive from additional
compliance costs, such as economic viability, competitiveness, productivity, and employment. Additionally, the
agency must include a prescription of any significant alternatives to the proposed rule which minimizes any
significant economic impact on small entities while still accomplishing the objectives of the rule.11 This analysis
must discuss these alternatives, such as exempting certain businesses from the rule or establishing different
reporting requirements.12

Lastly, when finalizing a rule, agencies must conduct a back-end Final Regulatory Flexibility Analysis (FRFA).
The FRFA must include the agency’s responses to comments made by the SBA’s Office of Advocacy’s (Advocacy)
Chief Counsel, incorporating a detailed statement of any changes made to the proposed rule in the final rule as a
result of such comments.13 The agencies also must revise the IRFA based on the public comments they received.
SBA Office of Advocacy, RFA Compliance Guide

10
U.S. Small Bus. Admin. Off. of Advocacy, A Guide for Government Agencies: How to Comply with the Regulatory Flexi-
bility Act, 32-34 (Aug. 2017).
11
5 U.S.C. § 603(c).
12
Id.
13
Id. at § 604(3).

7
In addition to the IFRA and FRFA, the RFA requires three agencies, the Environmental Protection Agency
(EPA), Occupational Safety and Health Administration (OSHA), and Consumer Financial Protection Bureau
(CFPB), to conduct Small Business Advocacy Review (SBAR) panels or “SBREFA panels.”14 These panels review
proposed rules that will have a negative impact on small entities. They collect advice and recommendations from
the representatives of affected small entities and also review relevant materials that the agency has collected. The
panels must make a public report as a part of the rulemaking record. The agency then shall modify the proposed
rule and the IFRA as appropriate.

IV. The Committee’s Investigation
The Committee conducted a comprehensive, three-phase investigation into federal agencies’ compliance with
the RFA to identify the main issues and find solutions to prevent agencies from overregulating small businesses.
The Committee found that most agencies are failing to properly comply with the RFA’s requirements which,
in turn, hurts small businesses. The investigation revealed four main areas in which the agencies mostly fail to
properly consider small businesses: (1) improper certification; (2) underestimated overall impact (costs, number
of small entities, and alternatives); (3) overlapping regulations; and (4) lack of compliance with Congressional
oversight and the APA-issues.

During the first phase of the investigation, the Committee examined the resources agencies use during the
rule-making process to ensure compliance with the RFA, the resources available to small businesses related to
new regulations, recent regulations imposed, and the impact/burden they had on small businesses. The Committee
sent a total of 25 letters to 25 agencies in this phase.15 These letters specifically requested documents and
communications related to rule certification, SBREFA panels (for those that are required to conduct them), factual
basis analysis, and alternative rules considered. Unfortunately, many of the agencies were incredibly delayed
in their responses to the Committee and when they did respond, they failed to provide many of the requested
documents.

The second phase of the investigation focused on agency compliance with the RFA on a rolling case-by-case
basis as proposed and final regulations were published. This review found that agencies often improperly certified
that a rule would not have a significant impact on a substantial number of small entities or agencies downplayed
the burden of the rule on small businesses, despite frequent evidence to the contrary. The Committee’s 66 letters to
34 agencies in this phase focused on certification, overall impact of the rules, overlapping rules, and APA issues.16

The third phase of the investigation followed up with the agencies who failed to respond to, or adequately
address, the issues noted during the first and second phases. During this last phase, the Committee sent letters
to the Department of Energy (DOE), the Department of Labor (DOL)/ the OSHA, and the EPA. The Committee
requested all communications relating to four separate DOE rules, six DOL/OSHA rules, and eight EPA rules.
Even in instances where the agencies responded to the Committee’s previous letters, they all failed to produce any
requested communications, obstructing Congressional oversight.

A. Certification
The certification process is one of the primary obstacles to RFA compliance. Numerous agencies attest that
the rule has no significant effect on a substantial number of small entities but fail to provide sufficient justification
for their reasoning. The RFA states that the agencies can only certify if a substantial number of small entities
are not significantly adversely affected by the rule.17 In order to guarantee that the agencies thoroughly evaluate
the possible certification and do not merely certify to avoid conducting the IRFA and FRFA, Advocacy—the
independent voice for small businesses in the federal government—supplies guidelines to agencies on what a

14
Id. at § 609(b).
15
See Appendix 1.
16
See Appendix 1.
17
See 5 U.S.C. § 605(b).

8
proper certification should include.18

Advocacy provides factors agencies should consider to provide a sufficient factual basis when certifying a
rule.19 These factors include description of small entities affected, economic impacts on small entities, significant
economic impact criteria, substantial number criteria, description of assumptions and uncertainties, and certification
statement.20 This threshold analysis must provide a factual basis for the determination of why the agency believes
that rule will not have a significant economic impact on a substantial number of small entities.21 According to
Advocacy, the factual basis requirement means that “at a minimum, a certification should contain a description of
the number of affected entities and the size of the economic impacts and why either the number of entities or the
size of the impacts justifies the certification.”22

The courts have clarified when and how the agencies can certify. In one of the landmark cases, North Carolina
Fisheries Ass’n v. Daley, the court explained that a mere conclusory statement that there is no significant impact
on small businesses is insufficient.23 The court explained that “[w]hile the federal government cannot be expected
to explore every possible contingency before certifying that there is no significant impact, the government must
make some showing that it has at least considered the potential effects.”24

During the first phase of the Committee’s investigation into the agencies’ compliance with the RFA, several
agencies were asked to provide the name, docket number, and citation of all rules, proposed and final, that the agency
certified as having no significant impact on a substantial number of small entities from 2020 to February 2023.
None of the agencies provided an adequate response to this request. Throughout the course of this investigation,
the Committee identified six agencies and at least 12 instances where these agencies improperly certified rules
from 2020 to May 2024.25 These agencies failed to provide a factual basis and instead used conclusory statements
certifying the rules, against what the RFA, the Advocacy’s guidelines, and the courts require. The biggest offenders
were the EPA and DOL. Below are just five examples where agencies failed to provide adequate factual basis
analysis and improperly certified rules.

1. EPA WOTUS Rule
The Committee held a hearing on EPA’s Waters of the United States Proposed Rule (WOTUS Rule) on
March 8, 2023.26 The 141-page WOTUS Rule would, among other things: (1) impose burdensome and expensive
obligations; (2) have a significant impact on many lands intensive industries such as farming, mining, and real
estate development; and (3) cause unnecessary and expensive delays in the permitting process.27 Importantly, the
ambiguity of the rule failed to provide the certainty small businesses desperately needed on the definition of a
waterway that is covered by the WOTUS Rule. In fact, the rule was so ambiguous and broad that the Supreme
Court limited the scope of the definition of a waterway covered by the WOTUS rule.28

In an attempt to quickly finalize this rule, the EPA certified that the WOTUS rule would not have a significant
impact on a substantial number of small entities, allowing the agency to skip the full RFA analysis process.
18
U.S. Small Bus. Admin., Off. of Advocacy, A Guide for Government Agencies: How to Comply with the Regulatory Flex-
ibility Act, 12-13 (Aug. 2017).
19
Id.
20
Id.
21
Id.
22
Id. at 13.
23
North Carolina Fisheries Ass’n, Inc. v. Daley, 16 F. Supp. 2d 647 (E.D. Va. 1997).
24
Id.
25
See e.g., Letters to Agencies, U.S. Small Bus. Admin., Off. of Advocacy (last visited Apr. 14, 2024), https://advocacy.sba.gov/
category/regulation/letters-to-agencies/.
26
See Small Business Perspectives on the Impacts of the Biden Administration’s Waters of the United States (WOTUS) Rule: Hearing
Before H. Comm. on Small Bus., 118th Cong. (Mar. 8, 2023).
27
Id.
28
See Sackett v. Env’r Prot. Agency, 598 U.S. 651 (2023).

9
However, as this Committee identified during the hearing, the EPA improperly certified the rule.29 According
to Chairman Williams, “the EPA … unilaterally decided that they do not need to conduct any further analysis
on the rule. According to the SBA’s Office of Advocacy, which is charged with speaking out against overly
burdensome regulations, this determination by the EPA was not based on any factual analysis.”30 Specifically,
the EPA overlooked direct, and significant cost on small businesses, when certifying the rule would lack such an
impact.

According to testimony given in the Committee on Transportation and Infrastructure hearing, Missouri
Farm Bureau President stated, “the process to arrive at a jurisdictional determination is tortuous and costly.”31 A
jurisdictional determination could take between six months and a year to receive, and in the meantime a farmer
or rancher is stuck in limbo.32 Adding insult to injury, the use of case-by-case determinations threatens to create a
seriously unequal playing field, where identical features may be viewed as jurisdictional or not depending upon
where the property is located.”33 This rule would impose these uncertainties on all private landowners, not just
farmers. However, the EPA still determined that the WOTUS rule would not affect small businesses and were able
to skirt the requirements to calculate the cost of these delays on small business owners.

2. EPA Clean Power Plant Rule
The EPA also inadequately certified its Clean Power Plant Proposed Pule.34 This rule would require power
plants to implement carbon capture technology and/or integrate hydrogen into their fuel cycle; plants that do
not implement these technologies and meet emissions goals could be shut down.35 In addition to the letter sent
inquiring into the certification that this rule would not have a significant impact on substantial number of small
entities, on February 14, 2024, the Committee held a hearing titled “Burdensome regulations: Examining the
Impact of EPA Regulations on Main Street.”36 Among other rules, this hearing examined the Clean Power Plant
Rule, illustrating how the EPA’s analysis was inadequate. The hearing exposed that rule would force plants to
shut down, which would increase energy costs for small businesses and may deprive some small businesses of the
energy needed to conduct its business, especially in rural communities.37 Additionally, the cost of compliance for
manufacturers under this rule ranges from an estimated $10 to $14 billion.38 Unfortunately, the EPA finalized this
rule without remedying the certification issue on May 9, 2024, despite objections from the Committee, Advocacy,
and other relevant stakeholders.39 Additionally, the EPA took two months to provide a surface level response to
the Committee’s inquiry.40

29
See Small Business Perspectives on the Impacts of the Biden Administration’s Waters of the United States (WOTUS) Rule: Hearing
Before H. Comm. on Small Bus., 118th Cong. (Mar. 8, 2024).
30
See id.
31
Press Release, Comm. on Transp. and Infrastructure, Infrastructure Stakeholders Highlight Numerous Negative Impacts of Biden
Administration’s Flawed, Burdensome WOTUS Rule (Feb. 8, 2023).
32
Id.
33
Id.
34
See New Source Performance Standards for Greenhouse Gas Emissions from New, Modified, and Reconstructed Fossil Fuel-Fired
Electric Generating Units; Emission Guidelines for Greenhouse Gas Emissions from Existing Fossil Fuel-Fired Electric Generating
Units; and Repeal of the Affordable Clean Energy Rule, 88 Fed. Reg. 33240 (2023) (to be codified at 40 C.F.R. § 60).
35
See id.
36
Burdensome Regulations: Examining the Impact of EPA Regulations on Main Street: Hearing Before H. Comm. on Small Bus., 118th
Cong. (Feb. 9, 2024).
37
Id.
38
See New Source Performance Standards for Greenhouse Gas Emissions from New, Modified, and Reconstructed Fossil Fuel-Fired
Electric Generating Units; Emission Guidelines for Greenhouse Gas Emissions from Existing Fossil Fuel-Fired Electric Generating
Units; and Repeal of the Affordable Clean Energy Rule, 88 Fed. Reg. 33240 (2023) (to be codified at 40 CFR § 60); See also NAM
Fights Restrictive Power Plant Rule, Nat’l Assoc. of Mfrs. (Nov. 29, 2023).
39
See id.
40
See Letter from Tim Del Monico, Assoc. Adm’r. U.S. Env’t Prot. Agency, to Roger Williams, Chairman, H. Comm. on Small Bus.
(Apr. 24, 2024).

10
The Committee discovered that the EPA, instead of conducting an IRFA, relied on historical data to make
estimates to support its determination that no significant impact on a substantial number of small entities results
from the proposed rule.41 To adequately analyze whether certification is appropriate in the particular situation, the
EPA should have used current instead of historical data, which is likely out of date given the constantly changing
economic landscape. Specifically, the EPA did not fully consider the costs or the Best System of Emissions
Reduction (BESR), relying instead “on promises by large businesses about future investments, which is an
unreasonable standard by which to regulate small entities.”42 Promises by large entities are not an acceptable
factual basis on which the EPA can argue they complied with the RFA.

Further, several assumptions in the EPA’s analysis “are at a high level of generality and do not demonstrate
recognition of the serious barriers that would face small entities under the proposed rule” and “based on optimistic
projections and announced investment decisions by large businesses.”43 Thus, the EPA largely ignored the reality
of how small businesses operate. This rule will likely result in “significant delay in any future investment” in the
small entities operating in this space, “despite the need for greater investment due to the projected electrification
of our economy.”44

Additionally, the EPA did not provide a sufficient answer to this Committee’s inquiry in identifying the rules
it certified from 2020 to February 2023.45 At a minimum, the EPA improperly certified five rules during this time
period.46 This is a very concerning trajectory for small businesses, and the regulatory burdens imposed on them
by the EPA alone.

3. DOL / OSHA: Walkaround Rule
OSHA certified its Employee Representation During Workplace Inspections Proposed Rule (Walkaround
Rule) which would expand the definition of what types of “third parties” may accompany the officers on OSHA
inspections. Under the proposed rule, third parties, such as union representatives and community activists, would
gain access to non-organized private businesses on private property, where unions normally would not have such
access.47 OSHA alleged that there are no costs of compliance for employers.48 However, OSHA failed to provide
a factual basis for that certification.

OSHA stated that if an entity has to implement safety policies and rules for third parties, any costs associated
with these policies are not attributable to this proposed rule.49 However, without the proposed rule, these safety
procedures and other compliance costs would not be triggered during the inspection. Thus, OSHA failed to consider
potential costs to employers. These costs could include additional screening and security, training employees on
new third-party visitor protocols, providing additional protections for confidential business information, potential
liability for injuries to third parties at the workplace and during the inspection, and providing additional personal
protective and other safety and health equipment.50

41
See Letter from Major L. Clark, III, Deputy Chief Counsel, Off. of Advocacy, U.S. Small Bus. Admin., to Michael S. Reagan,
Adm’r, U.S. Env’t Prot. Agency, 3 (Aug. 8, 2023). Importantly, this certification only covers the elements of this rule that apply to new
sources.
42
Id. at 4.
43
Id.
44
Id. at 7. Additionally, the EPA failed to consider that the small entities subject to the proposed rule that are prevented from making
investments are also significantly impacted, even if their compliance costs appear to be zero.
45
See Letter from Ron Pierce, Dir., Off. of Small and Disadvantaged Bus. Utilization, U.S. Dep’t of Energy, to Roger Williams, Chair-
man, H. Comm. on Small Bus. (Apr. 12, 2023).
46
See Rob Smith, The Regulatory Flexibility Act: Turning a paper tiger into a legitimate constraint on one-size-fits-all agency
rulemaking, Nat’l Federation of Indep. Bus., 29-32 (May 2, 2023).
47
Worker Walkaround Representative Designation Process, 88 Fed. Reg. 59825 (2023) (to be codified at 29 C.F.R. § 1903).
48
Id.
49
Id.
50
See Letter from Major L. Clark, III, Deputy Chief Counsel, Off. of Advocacy, U.S. Small Bus. Admin., to Douglas L. Parker, Assis-
tant Sec’y of Labor for Occupational Health, U.S. Occupational Safety & Health Admin., 4-5 (Nov. 13, 2023).

11
This Committee wrote to OSHA requesting further information about this certification, however, OSHA failed
to substantively answer the Committee’s questions relating to potential costs and ambiguous terms used in the
regulation.51 On April 1, 2024, OSHA finalized the rule without conducting the proper RFA analysis and despite
objections from the Committee, Advocacy, and other small businesses.52 In the final rule, OSHA states that it
“has determined that, while these revisions may impose societal costs and that some employers may decide to
undertake actions not directly required to comply with any requirements in this rule, the revisions impose no new
direct cost burden on employers.”53 This is fundamentally untrue. OSHA not only ignored stakeholder input but
acknowledged that there would be costs to small entities and still did not conduct the proper analysis.

This is not the only time OSHA (as part of the DOL) failed to adequately certify its rule or provide this
Committee with requested information. During this Committee’s investigation, the DOL ignored the Committee’s
request to identify the rules it certified from 2020 to February 2023.54 Nonetheless, the Committee found the DOL
improperly certified at least three rules during this time period.55

4. CFPB: Credit Card Penalty Fees Rule (Regulation Z)
The Consumer Financial Protection Bureau’s (CFPB) certified its Credit Card Penalty Fees Rule without
providing sufficient factual basis analysis.56 The rule change would lower the amount consumers may owe to
crediting institutions to eight dollars for late payments, end the automatic annual inflation adjustment, and cap
late fees at 25 percent of the required minimum payment.57 This change will negatively impact small credit firms
the most and restrict access to credit in local communities.58 This is particularly concerning as small businesses’
access to capital has become more strained under the Biden Administration. This Committee wrote to the CFPB
requesting further information about their certification.59 The CFPB, in response, assured the Committee of its
commitment to “direct and meaningful engagement across the full range of businesses that are impacted by the
agency’s work, including small businesses and the financial institutions that serve them.”60 In the same letter, the
CFPB noted the proposed Credit Card Penalty Fees Rule “would not have a significant economic impact on a
substantial number of small entities,” because

. . . credit cards represent a very small fraction of both assets and revenue for small banks
[and] for this reason and for most small banks, even a large reduction in credit card
late fee revenue would represent well below one percent of bank revenue and, therefore,
would not have a significant economic impact on those entities.’

However, the Committee found that this assertion was not supported by an adequate factual basis as required
by the RFA.61 In the CFPB’s analysis, small banks and credit unions were grouped together, seemingly to downplay

51
See Letter from Liz Watson, Assistant Sec’y, U.S. Dep’t of Labor, to Roger Williams, Chairman, H. Comm. on Small Bus. (Jan. 31,
2024).
52
See Worker Walkaround Representative Designation Process, 39 Fed. Reg. 22558 (2024) (to be codified at 29 C.F.R. § 1903).
53
See Id.
54
See Letter from Liz Watson, Assistant Sec’y, U.S. Dep’t of Labor, to Roger Williams, Chairman, H. Comm. on Small Bus. (Mar. 10,
2023).
55
See Rob Smith, The Regulatory Flexibility Act: Turning a Paper Tiger into a Legitimate Constraint on One-Size-Fits-All Agency
Rulemaking, Nat’l Federation of Indep. Bus., 29-32 (May 2, 2023).
56
See Credit Card Pentalty Fees (Regulation Z), 89 Fed. Reg. 19128 (2024) (to be codified at 12 C.F.R. § 1026).
57
Id.
58
Chelsey Cox, Consumer Financial Protection Bureau targets excessive credit card fees in new rule proposal, CNBC (Feb. 1, 2023).
59
Letter from Roger Williams, Chairman, H. Comm. on Small Bus., to Rohit Chopra, Dir., U.S. Consumer Fin. Prot. Bureau (May 17,
2023).
60
Letter from Rohit Chopra, Dir., U.S. Consumer Fin. Prot. Bureau, to Roger Williams, Chairman, H. Comm. on Small Bus., 3 (Jun. 1,
2023).
61
See Letter from Major L. Clark, III, Deputy Chief Counsel, Off. of Advocacy, U.S. Small Bus. Admin., to Rohit Chopra, Dir., U.S.
Consumer Fin. Prot. Bureau, 4 (May 5, 2023).

12
the burdens imposed by the proposed rule.62 As a result, small banks and credit unions may experience impacts
beyond the scope of what the CFPB addressed.63 Several examples exist regarding the deficiency of the CFPB’s
analysis. For instance, the CFPB does not provide any information regarding whether some of the proposed fees
cover the costs incurred by a small institution or whether the fees are sufficient to encourage on-time payments.64
This information is important to address in the analysis to determine whether a significant impact on small entities
results from the proposed rule.

Notably, in just the first year of the 118th Congress, the CFPB improperly certified at least three additional
rules.65

5. FMC: Demurrage and Detention Billing Requirements Rule
The Federal Maritime Commission (FMC) failed to provide a sufficient factual basis when it certified its
Demurrage and Detention Billing Requirements Rule. The rule increased billing costs by changing the manner in
which ocean carriers, marine terminal operators, and non-vessel-operating common carriers invoice and collect
demurrage or detention from others.66 Based on the FMC’s data, a shocking number of these impacted entities are
small businesses—out of about 8,700 impacted entities 97 percent are small businesses. At a time of rising shipping
costs, this additional regulatory burden makes matters worse for small businesses in the shipping industry.67

The FMC certified that the rule does not have a significant economic impact on a substantial number of
small entities.68 However, the certification did not include sufficient factual basis analysis as required by statute.69
Instead the FMC’s conclusory statement was solely based on presumptions. The FMC presumed that the large
entities would bear most of the rulemaking costs and small entities would face only be minimal costs.70 Conclusory
statements and presumptions do not show that the agency “has at least considered the potential effects” of the
rule on small entities.71 To consider potential effects, agencies must conduct a proper certification analysis which
shows how they came to an conclusion that the rule does not have a significant economic impact on a substantial
number of small entities.

These are just five examples from rules proposed and passed during the 118th Congress. Agencies taking
advantage of this loophole in the RFA is not a new problem. In Fiscal Year 2022, Advocacy noted at least six rules
that were improperly certified as not affecting a significant number of small businesses.72 NFIB noted at least 13
instances of improper certification between May 2021 and December 2022.73 Reforms must be made to ensure
that this check the box exercise comes to an end and agencies are held accountable to their legal obligations
during their rulemaking.

B. Overall Impact
The agencies’ rulemaking imposes widespread impacts on small businesses. This has been particularly true
under the Biden Administration that has imposed final rules totaling nearly $1.5 trillion to date—with the number
expected to increase before the end of this year. It is worth nothing that the Biden Administration’s rules have
62
See id.
63
See id.
64
See id.
65
See Rob Smith, The Regulatory Flexibility Act: Turning a Paper Tiger into a Legitimate Constraint on One-Size-Fits-All Agency
Rulemaking, Nat’l Federation of Indep. Bus., 29-32 (May 2, 2023).
66
Demurrage and Detention Billing Requirements, 89 Fed. Reg. § 14330 (2024) (to be codified at 46 C.F.R. 541).
67
See generally Yan Carriere-Swallow, et. al., How soaring shipping costs raise prices around the world, IMF Blog (Mar. 28, 2022).
68
Demurrage and Detention Billing Requirements, 89 Fed. Reg. § 14330 (2024) (to be codified at 46 C.F.R. 541).
69
See id.; 5 U.S.C. § 605(b).
70
See Demurrage and Detention Billing Requirements, 89 Fed. Reg. § 14330 (2024) (to be codified at 46 C.F.R. 541).
71
N. C. Fisheries Ass’n, Inc. v. Daley, 16 F. Supp. 2d, 647 (E.D. Va. 1997).
72
U.S Small Bus. Admin., Off. of Advocacy, Report on the Regulatory Flexibility Act, FY2022 (Apr. 2023).
73
Rob Smith, The Regulatory Flexibility Act: Turning a Paper Tiger Into a Legitimate Constraint on One-Size-Fits-All Agency
Rulemaking, Nat’l Fed. Of Independent Bus. (May 2023).

13
disproportionately cost a high amount compared to past Administrations. In a single week alone in April 2024,
the Biden Administration added $875 billion in new costs—nearly as much in one week as the entire eight years
of the Obama Presidency.74

The RFA requires agencies to assess the overall impact of a proposed rule, evaluating the compliance burden
and costs, number of impacted small entities, and alternative rules. Furthermore, the analysis should be conducted
with the backdrop of economic realities small businesses face. Several economic headwinds in the last couple of
years have negatively impacted small businesses—supply chain disruptions, staffing shortages, and inflation.76
Many small businesses continue to be challenged by labor shortages, with 20 percent of small businesses facing
significant labor shortages, and another 25 percent facing a moderate shortage.77

Inflation remains an immense burden for small businesses, with 70 percent of small businesses reporting
increased average selling prices due to inflation.78 Complying with regulations further increases the inflationary
pressure across the country. When a business is forced to spend more time and resources on compliance costs, they
are forced to pass the associated costs along to consumers. To make matters worse, the Committee’s investigation
revealed that agencies either omit, or consciously ignore, the economic realities small businesses face when
promulgating rules and conducting the RFA impact analyses.

Small businesses face various compliance costs caused by the agencies’ rulemaking. They might need to hire
additional employees or outside counsel to help familiarize and keep them in compliance with the ever-changing
regulatory landscape. Rule changes that affect the small businesses’ suppliers also cause downstream effects on a
small entity that increase costs. Furthermore, the rules often impact more entities than the agencies estimate. This
means that the effects are broader than agencies lead to believe in their RFA analyses.

This section highlights how the agencies downplay the compliance costs, underestimate the number of
impacted small businesses, and fail to consider alternative rules—harming small businesses in the process.

74
Dan Goldbeck, The biggest week on record, Am. Action Forum (Apr. 22, 2024).
75
Regulation Rodeo, Am. Action Forum, (last visited May 10, 2024), https://www.regrodeo.com.
76
Covid-19 Small Business Survey (23), Nat’l Federation of Indep. Bus., 2 (Jan. 5, 2023).
77
Id.
78
Id.

14
1. Underestimating Compliance Cost and Burden

Despite the requirements in the RFA, the Committee repeatedly found that the agencies underestimate the costs
that compliance with the rules will impose on small entities. The agencies both downplay costs of compliance and
understate number of affected entities.79 These underestimations have serious implications for small businesses.
By conducting inaccurate economic analysis, agencies are able to hide the true cost of their regulations and
small businesses are forced to pick up the tab. This tactic circumvents the intent of the RFA and can force small
businesses to deal with an onslaught of regulations that can be detrimental to their operations.

Not only do many regulations have direct monetary implications for small businesses, but they also have
broader associated costs that agencies often fail to consider. The agencies must, as required by the RFA, take into
account compliance costs and economic implications, such as economic viability, competitiveness, productivity,
and employment.80 According to the compliance guidance provided to agencies by Advocacy, the agencies should
also identify cost burdens for both the affected industry sectors and the individual small entities.81 These costs
include, for example, engineering and hardware acquisition, maintenance and operation, employee skill and
training, administrative practices, productivity, and promotion.82 For the agency to develop a rational rule, it “will
require the acquisition of data that describe the scope of the problem, the entities affected, and the extent of those
effects on the entities and the problem being addressed.”83

There are costs imposed by rules that might not be clear on their face, but in order to ensure small businesses
interests are actually considered, agencies should include these costs in their RFA analysis. For instance, when a
rule relates to privacy concerns the practical cost of implementing the rule should be considered, such as providing
additional protections for confidential business information, training staff, or implementing additional screening
and security. Even though some agencies have estimated the additional physical equipment that would need to
be purchased or the extra manpower hours required to comply with the regulation, these estimations still tend to
neglect other intangible costs, such as the amount of money necessary to conduct staff training or install necessary
software. While the RFA does not explicitly require consideration of intangible costs, Advocacy guidance and
training does.

Agencies also tend to underestimate the time it takes for small businesses to familiarize themselves with
the rules. The majority of small businesses lack legal and compliance staff to assist them in comprehending the
implications of the regulations. In addition to numerous stakeholders expressing concerns regarding the agencies’
failure to account for the time required to fully understand how to comply with the rules, outside legal counsel
costs are also often higher than the agencies’ estimates. Consequently, the time and cost to become familiar with
the rules are underestimated and the burden on small businesses is larger than the agencies lead on.

a. DOL: Davis-Bacon and Related Acts; Apprentice Rule; Non-Displacement Rule; Fiduciary
Rule; and Joint Employer Rule

The Committee wrote to the DOL about multiple rules that could substantially harm small businesses. The
Committee’s investigation found that the DOL has been one of the worst offenders of underestimating compliance
costs for small businesses. Furthermore, on October 19, 2023, the Committee held a hearing titled “Burdensome
Regulations: Examining the Effects of DOL Rulemaking on America’s Job Creators” that focused on the impacts
of the DOL burdensome regulations and economic pressures on small businesses.84 Among other things, the
hearing examined the rules discussed below showing how the DOL has failed to consider the costs its regulations

79
“Compliance Costs” refers to costs small businesses incur only to be compliant with the Rule.
80
U.S. Small Bus. Admin Off. of Advocacy, A Guide for Government Agencies: How to Comply with the Regulatory Flexi-
bility Act, 32-34 (Aug. 2017).
81
Id.
82
Id.
83
Id.
84
Burdensome Regulations: Examining the Effects of DOL Rulemaking on America’s Job Creators, Hearing before the H. Comm. On
Small Bus. 118th Cong. (Oct. 19, 2023).

15
impose on small businesses.

i. Davis-Bacon and Related Acts

Davis-Bacon and Related Acts final rule from the DOL makes two major changes to the methodology used to
determine the prevailing wage for construction workers employed in federal and federally subsidized construction
projects.85 The rule implements the three-step method, known as “30 percent rule,” to identify prevailing wage.86
This method increases prevailing wages for approximately 32 percent of construction workers and revokes the
separation of metro and rural wage data.87 The revocation and separation of metropolitan and rural data sets will
improperly skew the data towards the higher metropolitan cost of living prices rather than rural cost of living
which is often lower.88 The direct employer costs for small businesses are estimated to be an additional $39.3
million during the first year.89

This Committee wrote to the DOL concerned about these compliance costs and the number of small businesses
impacted.90 The DOL responded, after the deadline, without addressing any of the Committee’s direct questions.91
Especially concerning in the DOL’s response was that they said the DOL “estimates that 67 percent of firms holding
Davis-Bacon contracts are small businesses, which indicates small businesses are successfully competing for
such contracts today.”92 The DOL’s reasoning is flawed. The fact that small businesses are successfully competing
in the contracts today does not support the DOL’s reasoning that this rule change will not significantly burden
small businesses. It will be very likely that the small businesses who have been successful until now will not be
in the future once the full impact of the rule comes into effect. The massive compliance costs will jeopardize
small entities’ success and make it harder for them to compete against their larger counterparts. Unfortunately,
despite objections from the Committee, Advocacy, and stakeholders, on October 23, 2023, this rule which clearly
imposes exceptionally high costs and burden on small businesses, went into effect.93

ii. Apprentice Rule

Another example of the DOL ignoring compliance burden and cost is their proposed Apprentice Rule, which
seeks to enhance the National Apprenticeship System by modernizing regulations for Registered Apprenticeships.94
The Committee wrote to the DOL requesting more information, however, in its delayed response, the DOL failed
to answer the Committee’s questions but instead provided general information about the rule and its rulemaking
process.95 This Committee found that the rule would impose significant compliance costs for small businesses. The
proposed rule would introduce significant changes to how training programs are structured, including prescribing
minimum quality and content requirements to a program’s standards and its apprenticeship agreements as well as
establishing procedures concerning the registration, cancellation, and deregistration of apprenticeship programs.96
The current apprenticeship program has adequate standards making these additions not only burdensome but also
85
See Updating the Davis-Bacon and Related Acts Regulations, 88 Fed. Reg. 57526 (2023) (to be codified at 29 CFR §§ 1, 3, 5).
86
See id.
87
See id.
88
Isabella Hindley, DOL’s Davis-Bacon Final Rule Could Worsen Inflation, Am. Action Forum (Aug. 16, 2023).
89
See Updating the Davis-Bacon and Related Acts Regulations, 88 Fed. Reg. 57526 (2023) (to be codified at 29 CFR §§ 1, 3, 5).
90
Letter from Roger Williams, et. al., Chairman, H. Comm. on Small Bus., to Julie Su, Acting Sec’y, Dep’t of Labor, (Sept. 28, 2023).
91
See Letter from Liz Watson, Assistant Sec’y, Dep’t of Labor, to Roger Williams, Chairman, H. Comm. on Small Bus. (Oct. 18,
2023).
92
See id.
93
See Updating the Davis-Bacon Rule & Related Acts Regulations, 88 Fed. Reg. 57526 (2023) (to be codified at 29 C.F.R. §§ 1, 2, 5).
94
See National Apprenticeship System Enhancements, 89 Fed. Reg. 3118 (2024) (to be codified at 29 C.F.R. §§ 29, 30).
95
Letter from Roger Williams, et. al., Chairman, H. Comm. on Small Bus., to Julie Su, Acting Sec’y, Dep’t of Labor, (Feb. 15, 2024);
Letter from Liz Watson, Ass. Sec’y, Dep’t of Labor, Roger Williams, Chairman, H. Comm. on Small Bus. (Apr. 29, 2024).
96
See National Apprenticeship System Enhancements, 89 Fed. Reg. 3118 (2024) (to be codified at 29 C.F.R. §§ 29, 30).

16
duplicative.

Moreover, the proposed rule would require the adoption of a time-based model—effectively eliminating
flexible competency-based approaches to workforce development—thereby discouraging employer participation
in the government-registered apprenticeship programs.97 The rule would place an especially high burden on small
businesses by imposing unrealistic administrative requirements, including, requiring mandatory disclosures from
training program sponsors, submitting an equitable recruitment plan, keeping records of employment decisions
that affect apprentices, and providing details about the operation, performance, and advancement of the training
program.98 These new requirements will discourage small business participation in the apprenticeship programs.
Discouraging participation in a program designed to bolster the American workforce is counterproductive.
Especially given the labor shortage of skilled workers nationwide—nearly 90 percent of small business owners
with job openings are struggling to find qualified applicants.99

Despite all of these compliance costs and burdens imposed by the rule, the DOL does not seem to believe they
are significant enough. In the DOL’s RFA analysis, while the DOL acknowledges the significant costs on small
businesses, the DOL brushes over this burden and instead focuses on the alleged benefits of protecting “the safety
and welfare of apprentices.”100

iii. Non-Displacement Rule

In some cases, agencies have underestimated the familiarization and paperwork hour burdens. The DOL’s Non-
Displacement of Qualified Workers Under Service Contracts Rule is an example of this.101 This rule implements
and enforces the Executive Order 14055 to mandate the contractors and subcontractors who are engaged in
federal service contracts to offer the right of first refusal for employment on the successor contracts to service
employees previously employed under the predecessor contract.102

The Committee wrote to the DOL requesting more information about the DOL’s justification for its time
estimate for businesses to comply and familiarize themselves with the rule, however, the DOL’s delayed response
was very high level.103 The DOL claimed, referring to the final rule, that “the Department believes that its average
time estimate is appropriate based on a range of factors. These include the fact that many firms will familiarize
themselves with the content of the rule in ways other than reading the final rule as published in the federal
register.”104 The rule is 70 pages long and includes complex requirements—even if some firms would familiarize
themselves with the content other ways, the DOL’s estimate of 30 minutes to review and understand the rule is
hardly enough for an average small business owner.

The DOL not only understated how long it would take to review the rule but also how long it would take to
comply with the rule. The underestimation is clear—the DOL’s explanation of how long it will take to complete
various steps to comply with the rule does not match with their final time estimation.105 The rule imposes time-
consuming compliance burdens, such as notices to affected workers and their representatives, possible location-

97
Rebecca Rainey, New apprenticeship proposal draws warning on scope of overhaul, Bl, (December 27, 2023).
98
See National Apprenticeship System Enhancements, 89 Fed. Reg. 3118 (2024) (to be codified at 29 C.F.R. §§ 29, 30).
99
NAT’L FED’N OF INDEP. BUS., SMALL BUS. OPTIMISM INDEX, 2 (Dec. 2023).
100
See National Apprenticeship System Enhancements, 89 Fed. Reg. 3118 (2024) (to be codified at 29 C.F.R. §§ 29, 30).
101
See Nondisplacement of Qualified Workers Under Service Contracts, 88 Fed. Reg. 86736 (2023) (to be codified at 29 C.F.R. § 9).
102
See id.
103
See Letter from Roger Williams, Chairman, H. Comm. on Small Bus., to Julie Su, Acting Sec’y, Dep’t of Labor (Feb. 1, 2024).
104
See Letter from Julie Su, Acting Sec’y, Dep’t of Labor, to Roger Williams, Chairman, H. Comm. on Small Bus. (Mar. 20, 2024).
105
See Nondisplacement of Qualified Workers Under Service Contracts, 88 Fed. Reg. 86736 (2023) (to be codified at 29 C.F.R. § 9).

17
continuity notices, and successor contractor’s mandatory offer letters.106 Additionally, the final rule imposes
additional far-reaching compliance costs for small entities that could result in inefficiencies in the procurement
process since the contractor cannot bring its own uniquely qualified employees to the project.107

iv. Fiduciary Rule

The Committee wrote to the DOL about its proposed rule changes to the Retirement Security Rule and
amendments to Prohibited Transaction Exemptions (Fiduciary Rule).108 The Committee expressed concerns about
the changes imposing considerable costs for small businesses—mainly in the form of lost income.109 These changes
would amend nearly 50-year-old standards and subject more small business financial professionals to the strictest
fiduciary standards of conduct. This threatens the commission of many small entity broker-dealers and insurance
agents selling IRAs and annuities to 401(k) participants rolling their savings out of an employer-sponsored
plan.110 The proposed changes would eliminate the exemption they have historically used to earn commissions
on those sales.111 The Committee is concerned that the increased burden and historic level of lost commission
would lead these small financial professionals to go out of business or limit their services—negatively impacting
both the business owners and the consumers. The direct costs are significant as well; during the first year alone,
the estimated aggregate cost is $248 million on all small entities due to the proposed amendments, amounting
to approximately $22,459 per entity.112 Despite of these substantial impacts on small businesses, the DOL stated
that it “believes the costs associated with the amendments are modest because the rulemaking was developed in
consideration of other regulatory conduct standards.”113

On April 25, 2024, the DOL finalized the rule against this Committee’s, Advocacy’s, and stakeholders’
objections.114 Even though the DOL made some changes and clarifications to this rule, the final rule still significantly
hurts small businesses. The rule will require significant investment of both money and time to implement the
compliance processes and supervision for incorporating the products to comply with this new fiduciary standard.
According to the study conducted by Oxford Economics, the proposed rule would result in over $2.5 billion
in costs, 120 million sheets of papers annually, and the industry startup costs are estimated to run almost $3.9
billion.115 Since there were only minor changes in the final rule, the burden imposed is similar to these estimations
by Oxford Economics about the proposed rule.116

v. Joint Employer Rule

The Committee wrote to the National Labor Relations Board (NLRB) about its costly and burdensome
rule change to the Standard for Determining Joint Employer Status.117 This change expands the joint-employer
definition under the National Labor Relations Act (NLRA) by allowing a joint employer finding based solely
on indirect and unexercised control.118 In its response, the NLRB failed to adequately answer the Committee’s

106
See id.
107
Id.; DOL issues nondisplacement of qualified workers under service contracts final rule, ABC disappointed, ABC (Dec. 18, 2023).
108
See Letter from Roger Williams, Chairman, H. Comm. on Small Bus., to Julie Su, Acting Sec’y, Dep’t of Labor (Dec. 7, 2023).
109
See id.
110
Id.; Austin R. Ramsey, Biden touts 401(k) fiduciary rules as attack against ‘junk fees’, Bloomberg Law (Oct. 31, 2023).
111
Id.
112
See Retirement Security Rule: Definition of an Investment Advice Fiduciary, 88 Fed. Reg. 75890 (2023) (to be codified at 29 C.F.R.
2510).
113
See Id.
114
See Retirement Security Rule: Definition of an Investment Advice Fiduciary, 89 Fed. Reg. 32122 (2024) (to be codified at 29 C.F.R.
2510).
115
The economic consequences of the US Department of Labor’s proposed new fiduciary standard, Oxford Econ. (Aug. 18, 2015).
116
Id.
117
See Letter from Roger Williams, Chairman, H. Comm. on Small Bus., to Lauren McFerran, Chairman, Nat’l Labor Rel. Bd. (Dec.
7, 2023).
118
See Standard for Determining Joint Emp’r Status, 88 Fed. Reg. 73946 (2023) (to be codified at 29 C.F.R. 103).

18
questions.119 Instead of providing answers to the questions about the NLRB’s reasoning and rationale related to
the issues the Committee raised, such as costs and alternatives, the NLRB mostly just directed the Committee to
the final rule which does not include the requested information.120

Despite the lack of appropriate response from the NLRB, the Committee found that this rule is significantly
burdensome for small businesses. Removing the current clear and predictable joint employer standards prevents
employers from predicting the risks and costs of their contracts with providers, vendors, subcontractors, and
franchisees.121 Beyond predictability, the rule expands liability to alleged joint employers which will almost
certainly increase costs.

The rule changes rescind and replace the current joint employer rule adopted in 2020 that defines an entity as
a joint employer only if it exercises actual and direct control over a specified and clearly defined essential terms
and conditions of employment.122 As such, the new rule deems entities as joint employers if they have authority
or control over any essential term or condition of their employment, even they do not actually exercise such
control.123 The rule also expands the definition of “essential terms and conditions of employment,” by including
additional undefined terms.124 Further, it extends the entities’ bargaining responsibility to representatives of the
other purported joint employer’s employees.125

Several stakeholders raised the concern that the NLRB has underestimated the compliance costs for small
entities. This is a reasonable concern, given that the estimated compliance costs are minimal, based only on the
time estimate that it takes to become familiar with the new rule. The NLRB thereby dismisses legitimate concern
about the costs for small entities if an entity is determined to be a joint-employer under this new rule contrary to its
previous status. These costs include, for example, increased operational costs because the rule extends the entities’
bargaining responsibility to representatives of the other purported joint-employer’s employees. According to the
rule, the joint-employer must participate in collective bargaining with the other employer’s unionized employees.126
Since the new rule significantly extends the definition of joint employer creating a large joint employer net, this
will make bargaining responsibilities extremely burdensome for small businesses.

This rule was so outrageous that it was vacated by the U.S. District Court for the Eastern District of Texas
before it could even go into effect on March 11, 2024.127 The Court reasoned that the rule was overly broad in
regard to common law and inconsistent with the National Labor Relations Act.128 The court pointed out—the same
concern that this Committee raised in its letter—that the rule “would treat virtually every entity that contracts
for labor as a joint employer because virtually every contract for third-party labor has terms that impact, at least
indirectly, at least one of the specified ‘essential terms and conditions of employment.’”129

119
See Letter from Lauren McFerran, Chairman, Nat’l Labor Rel. Bd., to Roger Williams, Chairman, H. Comm. on Small Bus. (Feb.
15, 2024).
120
See id.
121
Mark G. Kisicki, et al., NLRB casts wider joint-employer net with new final rule, Ogletree Deakins (Oct. 27, 2023).
122
See Standard for Determining Joint Emp’r Status, 88 Fed. Reg. 73946 (2023) (to be codified at 29 C.F.R. 103).
123
See id.
124
See id.
125
See id.
126
See id.
127
Chamber of Com. et. al. v. Nat’l Labor Rel. Bd., et. al., No. 6:23-cv-00553, Dkt. 44 (Mar. 8, 2024).
128
Chamber of Com. et. al. v. Nat’l Labor Rel. Bd., et. al., No. 6:23-cv-00553, Dkt. 44 (Mar. 8, 2024).
129
Id. at 25.

19
b. CPSC: Residential Gas Furnaces and Boilers Rules

The Committee wrote to the Consumer Product Safety Commission’s (CPSC) regarding their proposed rule
that would create new product safety standards for residential furnaces and boilers.130 The CPSC responded to
the Committees’ inquiry, however, it claims that the proposed rule will not have a significant impact on small
importers.131 However, this Committee found that the rule imposes a significant direct cost on small entities and
is attempting to reiterate pursuing policy over the requirements of the law. These new standards laid out in the
rule would require the small businesses that manufacture residential furnaces and boilers to abandon or redesign
many of their product lines—an endeavor which could cost each small business up to $13.8 million.132 $13.8
million compliance cost is clearly significant and will be extremely detrimental to small businesses. Even though
the analysis showed an astronomical price tag, the CPSC continues to move forward with the regulation. This
example demonstrates that even when the RFA analysis takes place, agencies are simply able to ignore the results
of their work to move forward with their agenda, regardless of the small businesses that are harmed in the process.

c. DOE: Commercial Refrigeration and Distribution Transformers Rules

The Committee wrote to the DOE about multiple rules that could substantially harm small businesses.
Furthermore, on November 3, 2023, the Committee held a hearing titled “Burdensome Regulations: Examining the
Effects of Department of Energy Rulemaking on America’s Job Creators.”133 This hearing examined the impacts
of the DOE’s burdensome regulations and economic pressures on small businesses and American consumers. The
following rules were also discussed in the hearing and the Committee found them to be extremely burdensome
on small entities.

i. Commercial Refrigeration Rule

The DOE’s proposed rule change to the energy conservation standards for commercial refrigeration equipment
imposed a significant compliance burden on small businesses.134 The proposed rule would decrease the maximum
estimated energy consumption permissible for commercial refrigeration equipment.135 This rule would require
the small businesses that manufacture commercial refrigeration equipment to abandon or redesign many of their
product lines—an extremely costly endeavor.136 This, in turn, will lead to extremely high compliance costs for small
entities despite the fact that the DOE says that small entities would only incur “some conversion costs.”137 The
Committee sent a letter to the DOE inquiring about the proposed rule’s impact on small entities.138 A month after
the deadline for response, the DOE provided a high level response without adequately answering the Committee’s
questions.139 Particularly, the Committee asked about the additional costs to comply with the updated standards,
however, the DOE completely ignored the question.140
130
See Letter from Roger Williams, Chairman, H. Comm. on Small Bus., to Alexander Hoehn-Saric, Chairman, Consumer Prod. Safe-
ty Comm. (Nov. 9, 2023).
131
See Letter from Alexander Hoehn-Saric, Chairman, Consumer Prod. Safety Comm., to Roger Williams, Chairman, H. Comm. on
Small Bus., (Nov. 9, 2023); Safety Standard for Residential Gas Furnaces and Boilers, 88 Fed. Reg. 73272 (2023) (to be codified at 16
C.F.R. § 1408).
132
See id.
133
Burdensome Regulations: Examining the Effects of Department of Energy Rulemaking on America’s Job Creators, Hearing Before
H. Comm. on Small Bus., 118th Cong. (Nov. 3, 2023).
134
See Energy Conservation Program: Energy Conservation Standards for Commercial Refrigerators, Freezers, and Refrigera-
tor-Freezers, 88 Fed. Reg. 70196 (2023) (to be codified at 10 C.F.R. § 431).
135
Id.
136
Id.
137
Id.
138
Letter from Roger Williams, et. al., Chairman, H. Comm. on Small Bus., to Jennifer Granholm, Sec’y, Dept. of Energy (Nov. 2,
2023).
139
Letter from Mandy Mahoney, Bldg. Technologies Off. Dir., Off. of Energy Efficiency and Renewable Energy, to Roger Williams,
Chairman, H. Comm. on Small Bus. (Dec. 18, 2023).
140
Id.

20
ii. Distribution Transformers Rule

The Committee inquired about the DOE’s rule change to energy conservation standards for distribution
transformers. The rule amends the energy conservation standards for three categories of distribution transformers
that are manufactured in, or imported into, the United States.141 During this time of historically high energy prices,
it appears this rule would have a substantial impact on small businesses nationwide. The rule fails to consider all
direct economic impacts to small utilities who are required to purchase and use distribution transformers. Despite
asserting this rule will not have a substantial impact on small entities, the DOE recognized “that distribution
transformer manufacturers, including small businesses, will incur conversion costs to comply with standards.”142

The Committee sent a letter to the DOE, raising concerns about the cost burdens of the proposed rule.143
However, despite of the Committee’s concerns that the DOE failed to consider small entities in its rulemaking
process, the DOE finalized the rule on April 22, 2024.144 Over two months after the deadline to respond had
passed, the agency provided an inadequate response; the DOE explained its RFA policies and procedures yet
failed to answer any questions about the proposed rule’s impact on small businesses specifically.145

d. EPA: EtO Rule; Methane Rule; PFAS Rule; Air Quality Standards Rule; and Clean Power
Plant Rules

The Committee has written to the EPA about multiple rules that could substantially harm small businesses.146
The EPA took over two months to respond and provided an inadequate response to the Committee, simply
alleging “the EPA starts considering small business impacts early in the rulemaking process.”147 Furthermore,
on February 14, 2024, the Committee held a hearing titled “Burdensome Regulations: Examining the Impact of
EPA Regulations on Main Street.” This hearing examined some of the EPA’s most damaging rules illustrating
how the EPA has overregulated American industries stifling innovation and making it hard for small businesses
to function.148 Since 2021, rules issued by the EPA are estimated to have cost the U.S. economy over $249.7
billion across all industries and increased paperwork hours for all businesses by nearly 6.5 million hours.149 The
rules discussed below, also covered in the hearing, will have a significant impact on a substantial number of small
businesses, increasing costs and regulatory burdens.

141
See Energy Conservation Program: Energy Conservation Standards for Distribution Transformers, 88 Fed. Reg. 1722 (2023) (to be
codified at 10 C.F.R § 431).
142
See Energy Conservation Program: Energy Conservation Standards for Distribution Transformers, 89 Fed. Reg. 29834 (2024) (to be
codified at 10 C.F.R § 431).
143
See Letter from Roger Williams, Chairman, H. Comm. on Small Bus., to Jennifer Granholm, Sec’y, Dept. of Energy (May 16,
2023).
144
See Letter from Roger Williams, Chairman, H. Comm. on Small Bus., to Jennifer Granholm, Sec’y, Dept. of Energy (May 16,
2023); Energy Conservation Program: Energy Conservation Standards for Distribution Transformers, 89 Fed. Reg. 29834 (2024) (to
be codified at 10 C.F.R § 431).
145
See Letter from Alejandro Moreno, Acting Assistant Sec’y, Dept. of Energy, to Roger Williams, Chairman, H. Comm. on Small
Bus. (Aug. 2, 2023).
146
See Letter to Michael Reagan, Adm’r, Env’t Prot. Agency, from Roger Williams, Chairman, H. Comm. on Small Bus. (Feb. 14,
2024).
147
See Letter from Tim Del Monico, Assoc. Adm’r. Env’t Prot. Agency, to Roger Williams, Chairman, H. Comm. on Small Bus. (Apr.
24, 2024).
148
Burdensome Regulations: Examining the Impact of EPA Regulations on Main Street: Hearing Before H. Comm. on Small Bus.,
118th Cong. (Feb. 14, 2024).
149
Regulation Rodeo, Am. Action Forum, (last visited May 10, 2024), https://www.regrodeo.com.

21
i. EtO Rule

The Committee wrote to the EPA about its National Emission Standards for Hazardous Air Pollutants:
Commercial Ethylene Oxide (EtO) Sterilization Technology Review (EtO) proposed rule’s harmful impact on
small businesses.150 However, the EPA failed to address the Committee’s concerns and finalized this rule on April
5, 2024.151 In the EPA’s response to the Committee’s letter, it assured that “the EPA considered the latest data and
science, while taking into account the importance of a safe and reliable supply of sterilized medical devices for
patients and hospitals.”152 However, this is contrary to the Committee’s findings. This rule would effectively ban
the commercial use of Ethelyne Oxide (EtO).153 EtO is an essential chemical used throughout numerous industries
in the U.S., most notably in the sterilization of medical equipment.154 Dr. Lishan Aklog, M.D., the Chairman and
CEO of PAV Med Inc., testified before the Committee on February 14, 2024, that banning ethylene oxide leads to
supply chain issues, patient suffering, and even death.155 Eliminating EtO would require manufactures to change
how they sterilize medical equipment, either adopting more costly or less effective solutions.156 Further, Dr. Aklog
said that “alternatives to sterilize medical devices are not appropriate” or do not work, and the only available
technology is EtO.157 Small medical device manufacturers may not be able to sterilize their equipment properly
with alternatives to EtO, and it will be costly for these entities to receive new Food and Drug Administration
(FDA) approval for the new sterilization techniques. While larger entities may be able to afford to comply with
this rule, small businesses may not be able to shoulder the costs and could be forced to shut down.158 Despite the
EPA initially indicating this rule would cost companies only $86 million to comply with, industry estimates that
the true total cost is over $220 million for all businesses.159

ii. Methane Rule

The EPA’s Methane Rule implements unnecessary requirements that oil and gas companies must constantly
and actively search for methane leaks in their facilities.160 This undertaking would be costly, and incomplete
compliance may result in businesses being fined. Oil and gas companies already have an incentive to monitor for
and stop leaks, given that each leak is lost profit. Additionally, the rule could require businesses to capture excess
methane that is currently being released or flared. This would require a costly retooling.161 Industry has described
this regulation as incoherent and indicated it would limit the ability of companies to innovate.162 The Committee
wrote to the EPA being concerned that nearly 90 percent of all oil and gas extractors are small businesses, these

150
See Letter to Michael Reagan, Adm’r. Env’t Prot. Agency, from Roger Williams, Chairman, H. Comm. on Small Bus. (Feb. 14,
2024).
151
See National Emission Standards for Hazardous Air Pollutants: Ethylene Oxide Emissions Standards for Sterilization Facilities
Residual Risk and Technology Review, 89 Fed. Reg. 24090 (2024) (to be codified at 40 C.F.R. § 60, 63).
152
See Letter from Tim Del Monico, Assoc. Adm’r. Env’t Prot. Agency, to Roger Williams, Chairman, H. Comm. on Small Bus. (Apr.
24, 2024).
153
NAM pushed back on restrictive chemical rule, Nat’l Assoc. of Mfrs. (Nov. 15, 2023).
154
See National Emission Standards for Hazardous Air Pollutants: Commercial Ethylene Oxide (EtO) Sterilization Technology Re-
view, 88 Fed. Reg. 22790 (2023) (to be codified at 40 CFR § 63).
155
Burdensome Regulations: Examining the Impact of EPA Regulations on Main Street Before H. Comm. on Small Bus., 118th Cong.
(Feb. 14, 2024) (statement of Dr. Lishon Aklog, Chair & CEO PAVMed, Inc.).
156
Letter from Cathy McMorris Rodgers, et al., Chair, H. Comm. on Energy & Com., to Lael Brainard, et al., Dir., U.S. Nat’l Econ.
Council. (Sept. 28, 2023); NAM Pushed Back on Restrictive Chemical Rule, Nat’l Assoc. of Manufacturers (Nov. 15, 2023).
157
Burdensome Regulations: Examining the Impact of EPA Regulations on Main Street Before H. Comm. on Small Bus., 118th Cong.
(Feb. 14, 2024) (statement of Dr. Lishon Aklog, Chair & CEO PAVMed, Inc.).
158
Katie Hobbins, EtO Proposal Could Cost Companies More Than the $220 Million Estimated, Medical Device & Diagnostic
Indus. (Jun. 14, 2023).
159
Id.; Burdensome Regulations: Examining the Impact of EPA Regulations on Main Street Before H. Comm. on Small Bus., 118th
Cong. (Feb. 14, 2024).
160
See Standards of Performance for New, Reconstructed, and Modified Sources and Emissions, Guidelines for Existing Sources: Oil
and Natural Gas Sector Climate Review, 87 Fed. Reg. 74702 (2023) (to be codified at 40 C.F.R. § 60).
161
Jennifer Hijazi, Popular EPA Methane Rule Comes with Cost, Monitoring Concerns, BL (Dec. 8, 2023); EPA Finalizes Methane
Rule, Nat’l Assoc. of Mfrs. (Dec. 6, 2023).
162
News Release, Am, Petrolium Inst., API Calls on Congress to Repeal IRA’s Methane Fee (Jan. 12, 2023).

22
rules will disproportionately increase costs for them, and may result in many small wells closing.163 Yet, in its
delayed response, the EPA claims it has evaluated “the economic impact of the proposed standards on small
entities and appropriate steps that could be taken to minimize economic impacts in a final rule.”164

iii. PFAS Rule

The Committee sent a letter to the EPA raising concerns that the small businesses that use perfluoroalkyl and
polyfluoroalkyl substances (collectively “PFAS”) may experience substantial disruptions to their operations when
the PFAS National Primary Drinking Water Regulations are enforced.165 Two months after the deadline to respond
had past and only two days prior the EPA finalized the rule, the EPA finally responded the Committee. However,
the response was high-level without addressing all the Committee’s questions. Furthermore, unfortunately, the
EPA failed to properly consider small entities and finalized the rule on April 26, 2024.166

In the final rulemaking, the EPA alleges it has “provided maximum flexibility for small systems.”167 The
EPA’s PFAS National Primary Drinking Water Rule would require treatment of PFAS used in manufacturing
under certain circumstances.168 These new standards are purportedly aimed at reducing the amount of PFAS in the
water supply.169 The EPA issued this rule despite concerns over whether this rule would actually improve health
outcomes, and it is estimated to cost water systems, big and small, approximately $40 billion.170 PFAS is used
in the production of medical devices, cell phones, and numerous other products. Regulating its use will create
additional regulatory burdens on water systems and manufacturers, and likely increase consumer costs on many
goods.171

iv. Air Quality Standards Rule

The Committee wrote to the EPA regarding its proposed rule’s Reconsideration of the National Ambient Air
Quality Standards for Particulate Matter (PM2.5).172 The EPA responded to the Committee two months late and
nearly two months after finalizing the rule without answering any of the Committee’s questions. The Committee
raised concerns that the rule would require the enactment of significant controls to mitigate the emission of
particulate matter 2.5 micrometers or smaller—which is emitted when almost anything is burned, destroyed, or
crushed.173 This new rule will most heavily impact industries that must heat or burn raw materials and mining
operations.174 This will increase the regulatory burden for companies of all sizes, make the permitting process
more difficult, and lead to increased outsourcing.175 Small businesses would be faced with significant and costly
operations adjustments, with the rule’s projected costs between $162 and $197 billion for all companies to comply

163
See Letter from Roger Williams, Chairman, H. Comm. on Small Bus., to Michael Reagan, Adm’r. Env’t Prot. Agency (Feb. 14,
2024).
164
See Letter from Tim Del Monico, Assoc. Adm’r. U.S. Env’t Prot. Agency, to Roger Williams, Chairman, H. Comm. on Small Bus.
(Apr. 24, 2024).
165
See Letter from Roger Williams, Chairman, H. Comm. on Small Bus., to Michael Reagan, Adm’r. Env’t Prot. Agency (Feb. 14,
2024).
166
PFAS National Primary Drinking Water Regulation, 89 Fed. Reg. 32532 (2024) (to be codified at 40 CFR §§ 141, 142).
167
Id.
168
PFAS National Primary Drinking Water Regulation Rulemaking, 88 Fed. Reg. 18638 (Mar. 29, 2023).
169
EPA Proposes PFAS Standards, Nat’l Assoc. of Mfrs. (Mar. 16, 2023).
170
Id.
171
Pat Rizzuto, PFAS Rule to Cost Many Millions More, EPA Analysis Finds, Bloomberg Law (Nov. 23, 2023).
172
See Letter from Roger Williams, Chairman, H. Comm. on Small Bus., to Michael Reagan, Adm’r. Env’t Prot. Agency (Feb. 14,
2024); See Reconsideration of the National Ambient Air Quality Standards for Particulate Matter, 88 Fed. Reg. 5558 (2023) (to be
codified at 40 CFR §§ 50, 53, 58).
173
See id.
174
NAM pushed back on harmful new air regulations, Nat’l Assoc. of Mfrs. (Feb. 9, 2023).
175
Id.

23
with. It is also estimated that this rule could put nearly one million jobs at risk.176 Despite of the Committee’s
objections and these heavy consequences, the EPA finalized the rule on March 6, 2024, certifying that the action
will not have a significant economic impact on small entities because “it will not impose any requirements on
small entities.”177

v. Clean Power Plant Rule

The EPA’s Clean Power Plant proposed rule would require power plants to implement carbon capture
technology and/or integrate hydrogen into their fuel cycle; plants that do not implement these technologies and
meet emissions goals could be shut down.178 At the time of proposal, the EPA certified “that the proposed standards
would not have a significant impact on a substantial number of small entities.”179 However, in its letter to the EPA,
the Committee raised concerns that the process of integrating carbon capture or hydrogen technologies would be
costly for manufacturers—estimates range from $10 to $14 billion across the industry.180

While the cost of this rule is substantial, it also relies on technology that is either unproven or has not
been deployed on a large scale.181 Implementing cutting edge, expensive technologies increases cost for small
businesses. This would also have a knock-on effect of increasing energy costs for consumers.182 Small businesses
are reliant on the electric grid and this rule would increase the cost of energy, while also potentially creating
energy scarcity in more rural communities. Additionally, such a large change could amount to a “generational
shift” in technology, which the Supreme Court has previously ruled as an impermissible way to implement best
practices in emission reduction standards.183 The EPA took two months to provide a surface level response to the
Committee’s inquiry.184 Unfortunately, despite objections from the Committee, on May 9, 2024, the EPA finalized
the rule which clearly imposes exceptionally high costs and burden on small businesses.185

e. FDA: Tobacco Product Standard for Characterizing Flavors in Cigars Rule

The FDA’s proposed a rule to create a product standard for cigars that would result in a product ban of all
cigars with a “characterizing flavor” other than tobacco.186 This Committee raised significant questions about
downstream impacts on small business resulting from revenue losses—not just from sale of menthol products,
but by secondary sales, such as someone purchasing a soda when purchasing menthol products—for convenience
176
Letter from Shelly Moore Capito, et al., Ranking Member, Sen. Comm. on Env’t and Pub. Works, to Michael Reagan, et al., Adm’r,
U.S. Env’t Prot. Agency (Dec. 18, 2023); U.S. Air Quality Standards and the Manufacturing Sector, Nat’l Assoc. of Mfrs. (Apr.
2023).
177
Letter from Tim Del Monico, Assoc. Adm’r. U.S. Env’t Prot. Agency, to Roger Williams, Chairman, H. Comm. on Small Bus.,
(Apr. 24, 2024); Reconsideration of the National Ambient Air Quality Standards for Particulate Matter, 89 Fed. Reg. 16202 (2024) (to
be codified at 40 CFR §§ 50, 53, 58).
178
See New Source Performance Standards for Greenhouse Gas Emissions From New, Modified, and Reconstructed Fossil Fuel-Fired
Electric Generating Units; Emission Guidelines for Greenhouse Gas Emissions from Existing Fossil Fuel-Fired Electric Generating
Units; and Repeal of the Affordable Clean Energy Rule, 88 Fed. Reg. 33240 (2023) (to be codified at 40 CFR § 60).
179
Letter from Tim Del Monico, Assoc. Adm’r. U.S. Env’t Prot. Agency, to Roger Williams, Chairman, H. Comm. on Small Bus. (Apr.
24, 2024).
180
Id., See also NAM Fights Restrictive Power Plant Rule, Nat’l Assoc. of Mfrs. (Nov. 29, 2023).
181
Erin Kelly, Thousands of Co-op Members Voice Opposition to EPA’s Power Plant Rule, NRECA (Aug. 22, 2023); Id.
182
The Biden Administration’s Executive Overreach and Its Effect on American Energy Independence: Hearing Before H.Comm. on
Natural Resources Subcomm. on Oversight and Investigations, 118th Cong., 3 (May 11, 2023) (statement of Diana Furchtgott-Roth,
Dir., Ctr. on Energy, Climate, & Env’t, & The Herbert and Joyce Morgan Fellow in Energy & Env’t Policy, The Heritage Found.).
183
Letter from Shelly Moore Capito, et al., Ranking Member, Sen. Comm. on Env’t & Pub. Works, to Michael Reagan, et al., Adm’r,
U.S. Env’t Prot. Agency (Dec. 18, 2023); See also W.V. v. EPA, 142 S. Ct. 2587 (2022).
184
See Letter from Tim Del Monico, Assoc. Adm’r. U.S. Env’t Prot. Agency, to Roger Williams, Chairman, H. Comm. on Small Bus.
(Apr. 24, 2024).
185
See New Source Performance Standards for Greenhouse Gas Emissions From New, Modified, and Reconstructed Fossil Fuel-Fired
Electric Generating Units; Emission Guidelines for Greenhouse Gas Emissions from Existing Fossil Fuel-Fired Electric Generating
Units; and Repeal of the Affordable Clean Energy Rule, 88 Fed. Reg. 39798 (2024) (to be codified at 40 CFR § 60).
186
See Tobacco Product Standard for Characterizing Flavors in Cigars, 87 Fed. Reg. 26396 (2022) (to be codified at 21 C.F.R. § 1166).

24
stores and other small retailers nationwide.187 The analysis indicated that more than 115,000 small business
retailers of flavored tobacco products will be impacted by the proposed rule. The FDA acknowledged that “the
proposed rule would have a significant economic impact on a substantial number of small entities,” however, in
its RFA analysis, the FDA failed to quantify the revenue loss that banning the products under the proposed rule
would have on average small business retailers by category.188

Nearly four months after the Committee sent a letter to the FDA, the FDA finally responded. However, the FDA
refused to answer any of the Committee’s questions and stated that “because the rulemaking process is ongoing,
FDA is unable to respond to many of the questions outlined in your letter at this time.”189 Fortunately, even
though the FDA refused to answer any specific questions, after pressure from the Committee and other parties,
the implementation of this rule was paused and the FDA continues to review the rule based on the comments.190

f. BOEM: Rice’s Whale Rule

The Committee wrote to the Bureau of Ocean Energy Management (BOEM) about its proposed Rice’s Whale
Rule.191 The rule would exclude nearly six million acres from Lease Sale 261 and create additional requirements
for operators and vessels in the Gulf of Mexico.192 Specifically, the BOEM added an additional term to the Gulf
of Mexico Oil and Gas Lease Sale No. 261, and all future sales, which reduced the land available for purchase and
what that land is permitted to be used for, requires operators and vessels adhere to a 10-knot speed limit during
the day, and prohibits nighttime travel in the Rice’s Whale’s protective area.193 This removes opportunities for
small oil and gas producers to lease land to run and grow their businesses. The 10-knot speed limit restrictions
on shipping will increase inefficiencies in the supply chain, which will in turn increase costs for consumers and
create logjams at ports.194 This cost will be felt disproportionately by small oil and gas operators in the Gulf, who
are less able to take advantage of economies of scale. Together, these provisions have a substantial impact on a
significant number of small businesses.

In its letter to the BOEM, the Committee expressed concerns that the BOEM inadequately considered the
economic impacts of its rule.195 Initially, the BOEM refused to answer any of the Committee’s questions but finally
six months after the deadline for response had passed, the BOEM provided a response to the Committee’s inquiry
answering a few of the questions.196 Importantly, however, the BOEM failed to answer the Committee’s inquiry
about the costs the small businesses may incur to comply with the rule. Unfortunately, despite objections from
the Committee, on April 24, 2024, the BOEM finalized the rule which clearly imposes exceptionally high costs
and burden on small businesses.197 In the final rule, the BOEM acknowledged that since 69 percent of affected

187
Letter from Roger Williams, Chairman, H. Comm. on Small Bus., to Shalanda Young, Dir, Off. Mgmt. & Budget, et al. (June 28,
2023).
188
See Tobacco Product Standard for Characterizing Flavors in Cigars, 87 Fed. Reg. 26396 (2022) (to be codified at 21 C.F.R. § 1166).
189
Letter from Erin O’Quinn, Food and Drug Admin.to Roger Williams, Chairman, H. Comm. on Small Bus. (Oct. 18, 2023).
190
Alexander Tin, Menthol cigarette ban delayed due to “immense” feedback, Biden administration says, CBS News (Apr. 26, 2024).
191
Letter from Roger Williams, et. al., Chairman, H. Comm. on Small Bus., to Liz Klein, Dir., Bureau of Ocean Energy Mgmt. (Oct.
12, 2023); Risk Management & Financial Assurance for OCS Lease & Grant Obligations, 88 Fed. Reg. 42136 (2023) (to be codified at
30 C.F.R. §§ 550, 556, 590).
192
Bureau of Ocean Energy Mgmt, BOEM NTL No. 2023-G01, Notice to Lessees and Operators of Federal Oil and Gas, and Sulphur
Leases in the Gulf of Mexico Outer Continental Shelf, 1 (Aug. 17, 2023).
193
Id.
194
Samuel Stettheimer, Alabama Port Authority Rejects Possible Whale-Saving Rule, The Ala. Pol. Reporter (Jul. 17, 2023); Nathan
Cobb, Council Says Proposed Rule on Rice’s Whales could Cripple Ports, Including Panama City, Panama City New Herald (Jul. 6,
2023).
195
Letter from Roger Williams, et. al., Chairman, H. Comm. on Small Bus., to Liz Klein, Dir., Bureau of Ocean Energy Mgmt. (Oct.
12, 2023).
196
Letter from Liz Klein, Dir., Bureau of Ocean Energy Mgmt., to. Roger Williams, Chairman, H. Comm. on Small Bus (Apr. 11,
2024).
197
Risk Management & Financial Assurance for OCS Lease & Grant Obligations, 88 Fed. Reg. 31544 (2024) (to be codified at 30
C.F.R. 550, 556, 590).

25
companies are small businesses, “BOEM expects the rule will affect a substantial number of small entities.”198

g. FTC: Non-Compete Clause Rule

The Committee wrote to inquire about the Federal Trade Commission’s (FTC) Non-Compete Clause rule.199
However, in its response, the FTC failed to adequately answer any of the Committee’s questions but instead
gave a general answer about considering various commenters concerns, including the Committee’s.200 This
proposed rule would ban the use of non-compete clauses in employment contracts, impacting competition and
legal liability.201 This rule would impose significant costs on small businesses and pose a serious risk of loss and
potential closures. This rule demonstrates the failure to consider the economic benefits of non-compete agreements
for small businesses, and the impact the rule may have on competition and on the U.S. economy altogether.202
Specifically, the FTC failed to consider that banning non-compete agreements could make it more challenging
for small businesses to prevent their workers from being poached by large corporations with more resources,
threatening the innovation small businesses contribute to the American economy.203

The Committee raised concerns that the FTC underestimated the costs and impact of this proposed rule on
small businesses.204 The FTC estimated that 2.94 million small firms will be impacted by the proposed rule, but
maintains the costs are limited to updating contractual practices—only costing small businesses between $317.88
to $563.84 per entity.205 However, the FTC has ignored significant implications for small businesses—failing to
include the costs of hiring additional legal resources or hiring and retaining additional workers.206 Additionally,
this fails to recognize that small businesses have harder times attracting and retaining talented workers. As this
Committee continually hears about the effects of labor shortages across the country, this will put small firms in a
weaker position compared to their larger counterparts.

Despite of this Committee’s objections, the FTC finalized the rule on April 23, 2024.207 The main issues still
remain: the rule removes a crucial tool to protect trade secrets, it stifles innovation coming from small businesses,
and large corporations can easily poach talent from these small entities.208 Furthermore, the rule has already
led to lawsuits from interested parties. One of them accurately argued that “the sheer economic and political
significance of a nationwide noncompete ban demonstrates that this is a question for Congress to decide, rather
than an agency.”209

2. Underestimating the Number of Small Entities Impacted
The RFA requires the agencies to estimate how many small entities will be impacted by any new rule.
However, the Committee frequently discovered during the investigation that agencies underestimate the number
of impacted small entities. Regulations have broader effects than agencies often account for, which will cause
some small businesses to be excluded from these calculations. While a few agencies have asked interested parties
to submit more information and data in public comments, not all agencies request data as they ought to in order to
198
Id.
199
Letter from Roger Williams, Chairman, H. Comm. on Small Bus., to Lina M. Khan, Chair, Fed. Trade Comm’n (Mar. 14, 2024);
See Non-Compete Clause Rule, 88 Fed. Reg. 3482 (2023) (to be codified at 16 C.F.R. § 910).
200
Letter from April J. Tabor, Sec’y, Fed. Trade Comm’n, to Roger Williams, Chairman, H. Comm. on Small Bus. (Mar. 14, 2024).
201
See id.
202
Letter from Roger Williams, Chairman, H. Comm. on Small Bus., to Lina M. Khan, Chair, Fed. Trade Comm’n (Mar. 14, 2024).
203
Id.
204
Id.
205
See Non-Compete Clause Rule, 88 Fed. Reg. 3482 (2023) (to be codified at 16 C.F.R. § 910).
206
See Letter from Major L. Clark, III, Deputy Chief Counsel, Off. of Advocacy, U.S. Small Bus. Admin., et al., to April Tabor, Acting
Sec’y of the Comm’n, Fed. Trade Comm’n (Mar. 20, 2023).
207
See Press Release, Fed. Trade Comm’n, FTC announces rule banning noncompetes (Apr. 23, 2024).
208
Eric Rivell, FTC votes to ban noncompete agreements, Fox News (Apr. 23, 2024).
209
Chamber of Com. v. Fed. Trade Comm’n, Pl. Compl. for Declaratory & Injunctive Relief ¶ 20.

26
accurately estimate the number of small entities affected. Incorrect certifications and the enactment of excessively
onerous regulations without triggering an RFA analyses are often the result of underestimating the number of
affected small entities.

The agencies frequently restrict the proposed regulation costs to only the small entities that directly fall under
the affected industry and leave the other affected small entities out of these calculations. However, the Committee
found that small entities face financial hardships as a result of supplier regulations and other business-related
regulations. These small businesses should be accounted for when estimating the number of impacted small
entities. Agencies must carefully consider these downstream impacts and the actual number of impacted small
entities during the rulemaking process to avoid further harm to small businesses down the supply chain.

Besides underestimating the number of impacted small businesses, the regulations often disproportionally
impact small entities. Small businesses already have fewer resources than their larger counterparts and adding
regulations that disproportionately impact small businesses is outrageous. Whether the issue is that the rule
has a disproportional impact on small entities, or the agency has underestimated its impact, it has real world
implications for small businesses making their operations harder. On some occasions, agencies might even do
these calculations with willful ignorance. The Committee found that several agencies either omitted the number of
small entities impacted by a proposed rule or appeared to manipulate existing guidelines to downplay the number
of small entities impacted, as the following example demonstrates.

a. Federal Energy Regulatory Commission Rules

In response to the Committee’s letter, the Federal Energy Regulatory Commission (FERC) produced documents
regarding their RFA analysis that show just how far some agencies will go to avoid proper compliance with the
RFA. The FERC’s production included an email chain where the FERC career staff discussed what should be
considered a “small entity” prior to publishing a Notice of Proposed Rulemaking (NPRM) to update its Standards
for Business Practices of Interstate Natural Gas Pipelines in March 2021.210 The emails show how the FERC
career personnel applied the SBA’s size regulations to minimize the number of small entities included in their
initial RFA impact analysis, without regard for accuracy. At the outset of the emails, the Committee was alarmed
by the lack of knowledge as to which small entities should be counted. The emails revealed that the FERC career
employees did not know what small entities to include. Specifically, one career employee acknowledged they did
not know how to “discern whether a company should be excluded from the list of small entities,” and noted it
“probably won’t make a difference if we just bury this and not make a [big] deal out of it.”211

210
See Standards for Business Practices of Interstate Natural Gas Pipelines, 86 Fed. Reg. 12879 (2021) (to be codified at 18 C.F.R. §
284).
211
E-mail from , Off. of the Gen. Counsel, Fed. Energy Reg. Comm’n, to , et. al., Economist, Fed.
Energy Reg. Comm’n (Nov. 20, 2020, 10:34 am ET) (on file).

27
Additionally, the number and percentage of small entities substantially impacted by the NPRM varied
significantly throughout the email chain, starting with an estimated 62 entities, or 35 percent, and ending with 11
entities, or 6.2 percent. The FERC was able to reduce this estimation by selectively interpreting the SBA’s size
standards and picking data that represents the lowest possible estimate of small businesses significantly impacted
by the NPRM, not the most accurate estimation.

The FERC states in its published NPRM that “most of the natural gas pipelines regulated by the Commission
do not fall within the RFA’s definition of a small entity, which is currently defined for natural gas pipelines as a
company that, in combination with its affiliates, has total annual receipts of $30 million or less.”212 The FERC
settled on “only 11 companies [representing] six percent” of the total possible small businesses that may have
a significant burden imposed on them by the proposed rule.213 Yet, emails show the FERC career personnel
explaining, with reference to the “SBA [size determination] regulation” that the total respondents should be 35
percent, approximately 62 entities, which is much higher than the 11 small entities the FERC ultimately reported
in the NPRM.214

212
Standards for Business Practices of Interstate Natural Gas Pipelines, 86 Fed. Reg. 12879 (2021) (to be codified at 18 C.F.R. § 284).
213
Email from Off. of Energy Market Regul., Fed. Energy Reg. Comm’n, to et. al., Economist, Fed.
Energy Reg. Comm’n, et. al. (Nov. 26, 2020, 2:37 am ET) (on file).
214
Email from , Off. of Energy Market Regul., Fed. Energy Reg. Comm’n, to , Mgmt. Analyst, Fed.
Energy Reg. Comm’n, et. al., (Nov. 20, 2020, 9:49 pm ET) (on file).

28
29
30
Internally, there were several questions about the FERC’s reduced estimate. For instance, the FERC career
personnel warned that the reported number “appears to be, if anything, a potentially significant underestimate
of the small [pipeline companies] who will be complying with an order on the proposed rule.”215 Another email
raises concerns that the career employee coming to this figure “did not describe his methodology,” and noted the
consensus among the FERC career personnel that it was “time to move on.”216 The FERC career personnel also
noted the number appears to be the “unscientific/estimated/ballpark/fabricated data calculations based on the
number of compliance filings received … for 2019.”217 This ballpark estimate was the number small businesses
needed to rely on in issuing comments about the economic impact.

The FERC emails also revealed a motivation to publish an initial analysis with deflated figures. For example,
one FERC career employee cautioned that including a larger number of small entities is “ammunition for 63 small
companies to argue, either via comments to the NPRM and/or their subsequent compliance filings to the final rule,
that they cannot comply . . . because it would ‘significantly burden them.’”218 Notably, the number in the NPRM
215
Email from , Economist, Fed. Energy Reg. Comm’n, to , Off. of Energy Market Regulation, Fed. En-
ergy Reg. Comm’n, et. al. (Nov. 24, 2020, 11:36 am ET) (on file). Additional emails reveal that the “lowest number of entities come to
22 percent [roughly 42 entities] for 2019.” Email from , Mgmt. Analyst, Fed. Energy Reg. Comm’n, to
Off. of Energy Market Regul., Fed. Energy Reg. Comm’n (Nov. 5, 2020, 4:57 pm ET) (on file).
216
Email from , Economist, Fed. Energy Reg. Comm’n, to , Off. of Energy Market Regul., Fed. Energy
Reg. Comm’n, et. al. (Nov. 27, 2020, 8:58 am ET) (on file).
217
Email from , Off. of Energy Market Regul., Fed. Energy Reg. Comm’n, to , Mgmt. Analyst, Fed.
Energy Reg. Comm’n, et. al., (Nov. 20, 2020, 9:49 pm ET) (on file). FERC’s burden estimate for the proposals in this NOPR are for
one-time implementation of the information collection requirements of the NOPR, and estimated the one-time implementation cost of
the proposals in the NOPR is $1,977,580 (or $11,110 per entity, regardless of entity size), and did not consider the estimated $11,110
impact per entity to be significant. See 86 Fed. Reg. at 12883, 12885.
218
Email from , Off. of Energy Market Regul., Fed. Energy Reg. Comm’n, to , Mgmt. Analyst, Fed.
Energy Reg. Comm’n, et. al., (Nov. 20, 2020, 9:49 pm ET) (on file).

31
aligned with the “unscientific/estimated/ ballpark/fabricated data calculations based on the number of compliance
filings received the last round and the total numbers for 2019.”219 This ballpark estimate was the baseline small
businesses had to rely on to make comments.

It is extremely concerning that an analysis of the number of impacted small businesses is conducted in this
manner among the FERC career staff. The lack of knowledge, using inaccurate numbers, the mindset of “we
just bury this,” and selectively interpreting the SBA’s size standards is shocking. Even after the career staff
acknowledged that the number is potentially a significant underestimate—without being transparent about the
methodology used—they chose to use the “unscientific/estimated/ ballpark/fabricated” data in the NPRM. What
makes matters even worse, some career employees have been with the FERC for nearly thirty years. This shows
a deep-rooted agency culture of evading the RFA’s requirements and manipulating numbers for their own benefit.
If this is happening at FERC it is certainly happening elsewhere—they are not unique.

b. DOL: Fiduciary Rule; Non-Displacement of Qualified Workers Rule; Davis-Bacon
and Related Acts; Overtime Rule under Fair Labor Standards Act; and Independent
Contractor Classification Rule

The Committee has written to the DOL about multiple rules that could substantially harm small businesses
due to their inability to properly estimate impacted entities. Furthermore, on October 19, 2023, the Committee
held a hearing titled “Burdensome Regulations: Examining the Effects of DOL Rulemaking on America’s Job
Creators” that focused on the impacts of the DOL burdensome regulations and economic pressures on small
businesses.220 Among other things, the hearing examined the rules discussed below showing how the DOL has
failed accurately estimate the number of impacted small businesses and how its rules impact a disproportional
number of small entities.

i. Fiduciary Rule

The Committee wrote to the DOL about its proposed rule changes to the Fiduciary Rule noting how the
number of affected entities were disproportionally small entities.221 While addressing some of the questions in its
response, the DOL failed to substantively answer most of the Committee’s questions.222 The Committee found
that nearly all the impacted entities are small businesses—over 97 percent of broker-dealers and 99 percent of
registered investment advisors are small businesses.223 While the DOL included the analysis of affected small
entities, it did not acknowledge that such a large percentage of impacted entities for being small was an issue.224
Furthermore, the DOL minimized this impact by claiming that “the costs associated with the amendments are
modest.”225 Rule such as this, where the impacts of the rule are significant and almost all entities impacted are
small businesses, is exactly what the RFA is attempting to prevent from being promulgated.

On April 25, 2024, the DOL finalized the rule against this Committee’s objections.226 Even though the DOL
made some changes and clarifications to this rule, they did not make any changes to avoid the disproportional
harm to small businesses.

219
Id.
220
Burdensome Regulations: Examining the Effects of DOL Rulemaking on America’s Job Creators, Hearing Before H. Comm. on
Small Bus., 118th Cong. (Oct. 19, 2023).
221
Letter from Roger Williams, Chairman, H. Comm. on Small Bus., to Julie Su, Acting Sec’y, Dep’t of Labor (Dec. 7, 2023).
222
Letter from Julie Su, Acting Sec’y, Dep’t of Labor., to Roger Williams, Chairman, H. Comm. on Small Bus (Feb. 15, 2024).
223
See Retirement Security Rule: Definition of an Investment Advice Fiduciary, 88 FR 75890 (2023) (to be codified at 29 CFR 2510).
224
See id.
225
See id.
226
Retirement Security Rule: Definition of an Investment Advice Fiduciary, 89 Fed. Reg. 32122 (2024) (to be codified at 29 C.F.R.
2510).

32
ii. Non-Displacement of Qualified Workers Rule

Similarly, the DOL’s Non-Displacement of Qualified Workers under Service Contracts rule disproportionally
impacts small entities. This rule implements and enforces the Executive Order 14055 to mandate the contractors
and subcontractors who are engaged in federal service contracts to offer the right of first refusal for employment
on the successor contracts to service employees previously employed under the predecessor contract.227 The
Committee wrote to the DOL expressing concerns about the rule impacting a disproportional number of small
contractors and subcontractors, however, the DOL’s delayed response was very high level.228 The DOL barely
answered any of the Committee’s questions and gave empty assurances that it “recognizes the important role
small businesses play in our economy.”229 This rule disproportionally impacts small entities—up to 74 percent
of impacted entities are small contractors and subcontractors.230 However, even majority of the impacted entities
are small, the DOL did not address this disparity in the final rule.231 This rule will likely discourage these small
contractors and subcontractors from federal contracts, causing widespread impact on small businesses and the
whole US economy.232

iii. Davis-Bacon and Related Acts

Another example in which the rule impacts a disproportional number of small entities and underestimates this
number is the DOL’s rule change entitled “Davis-Bacon and Related Acts.”233 This final rule from the DOL makes
two major changes to the methodology used to determine the prevailing wage for construction workers employed
in federal and federally subsidized construction projects.234 The DOL estimates that majority of potentially affected
entities are small businesses—ranging from 67 to 70 percent of all affected firms. Many stakeholders, including
this Committee, wrote to the DOL noting that this number being an underestimation. Yet, when finalizing the
rule, the DOL refused to significantly amend the rule to make it less burdensome for this disproportionately large
number of small businesses.

The Committee wrote to the DOL expressing concern about the number of small businesses impacted and
specifically asked about the likelihood that the DOL underestimated to the number of impacted small entities.235
The DOL responded, after the deadline, without addressing any of the Committee’s direct questions.236 Neither
did the DOL address the Committee’s concern about the number of impacted small businesses or the potential
underestimation of the number of entities.237 Unfortunately, despite objections from the Committee and other
relevant stakeholders, the rule went into effect on October 23.238

227
Nondisplacement of Qualified Workers Under Service Contracts, 88 FR 86736 (2023) (to be codified at 29 CFR 9).
228
Letter from Roger Wiliams, Chairman, H. Comm. on Small Bus., to Liz Watson, Assistant Sec’y, Congressional and Intergovern-
mental Affairs, Dep’t of Labor (Feb. 1, 2024); Letter from Liz Watson, Assistant Sec’y, Congressional and Intergovernmental Affairs,
Dep’t of Labor, to Roger Wiliams, Chairman, H. Comm. on Small Bus. (Mar. 20, 2024).
229
Letter from Liz Watson, Assistant Sec’y, Congressional and Intergovernmental Affairs, Dep’t of Labor, to Roger Wiliams, Chair-
man, H. Comm. on Small Bus. (Mar. 20, 2024).
230
Nondisplacement of Qualified Workers Under Service Contracts, 88 Fed. Reg. 86736 (2023) (to be codified at 29 C.F.R. § 9).
231
Id.
232
See id.
233
See Updating the Davis-Bacon and Related Acts Regulations, 88 Fed. Reg. 57526 (2023) (to be codified at 29 CFR §§ 1, 3, 5).
234
See id.
235
Letter from Roger Williams, Chairman, H. Comm. on Small Bus. to Julie Su, Acting Sec’y, Dep’t of Labor (Sept. 28, 2023).
236
Letter from Liz Watson, Assistant Sec’y for Congressional & Intergovernmental Affairs, Dep’t of Labor, to Roger Williams, Chair-
man, H. Comm. on Small Bus. (Oct. 18, 2023).
237
Id.
238
See Updating the Davis-Bacon and Related Acts Regulations, 88 Fed. Reg. 57526 (2023) (to be codified at 29 CFR §§ 1, 3, 5).

33
iv. Overtime Rule under Fair Labor Standards Act

In addition to providing high estimates, agencies also provide unacceptably large ranges of the number of
small entities that could be impacted. One example is the DOL’s proposed Overtime Rule under the Fair Labor
Standards Act (FLSA), where the DOL both provided an overly broad estimate of the number of small entities
and imposed significant monetary impacts on those small businesses.239 The Committee wrote to the DOL about
this rule’s disproportional impact on small businesses, however, the DOL refused to provide the Committee with
any information.240

The proposed rule would expand eligibility for overtime pay for about three million workers under the FLSA.241
It would raise the threshold for time-and-a-half overtime pay from $35,568 to $55,000.242 The DOL estimates that
the rule would affect 1.3 million workers who are employed by between 179,700 and 1.3 million small entities;
comprising from 2.8 percent to 20.8 percent of all small entities.243 This burdensome rule change will cost direct
employers between $294.6 million to $356.0 million for affected small entities just during the first year.244 As this
Committee stated in its letter to the DOL, this is an unacceptably large range of businesses that may be impacted,
because it obfuscates the real impact of the rule.245 Despite of this Committee’s pressure, the DOL finalized this
rule on April, 26, 2024.246 Contrary to the Committee’s objections, the final rule impacts even more entities than
the proposed rule estimated—the small businesses will comprise from 3.2 percent to 23.9 percent of all affected
entities.247
v. Independent Contractor Classification Rule

The Committee wrote to the DOL about it finalizing the rule titled “Employee or Independent Contractor
Classification Under the Fair Labor Standards Act” expressing concerns about the rule’s extremely detrimental
impact on small businesses and urging the DOL to delay the rule from coming into effect until DOL provides proper
consideration of small entities.248 However, in its response, the DOL claimed that it has “carefully considered the
views and concerns of independent contractors and other small businesses in drafting its Classification Rule” and
the DOL will not delay the rule’s scheduled effective date of March 11, 2024.249

The Committee strongly disagreed with the DOL’s stand because this rule disproportionally impacts small
businesses—particularly in construction, trucking, and health care sectors.250 It will make it harder for businesses
239
See Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees,
89 Fed. Reg. 32842 (2023) (to be codified at 29 CFR §541).
240
Letter from Roger Williams, Chairman, H. Comm. on Small Bus. to Julie Su, Acting Sec’y, Dep’t of Labor (Sept. 28, 2023); Letter
from Liz Watson, Assist. Sec’y for Congressional & Intergovernmental Affairs, Dep’t of Labor, to Roger Williams, Chairman, H.
Comm. on Small Bus. (Oct. 18, 2023).
241
See Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees,
89 Fed. Reg. 32842 (2023) (to be codified at 29 CFR §541).
242
Id.
243
Id.
244
Id.
245
Letter from Roger Williams, Chairman, H. Comm. on Small Bus., to Julie A. Su, Acting Sec’y, U.S. Dep’t of Labor (Sept. 28,
2023).
246
Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees, 89
Fed. Reg. 32842 (2024) (to be codified at 29 CFR §541).
247
Id.
248
Letter from Roger Williams, Chairman, H. Comm. on Small Bus. to Julie Su, Acting Sec’y, Dep’t of Labor (Sept. 28, 2023); See
Employee or Indep. Contractor Under the Fair Labor Standards Act, 89 Fed. Reg. 1638 (2024) (to be codified at 29 C.F.R. §§ 780,
788, 795).
249
Letter from Liz Watson, Assist. Sec’y for Congressional and Intergovernmental Affairs, Dep’t of Labor, to Roger Williams, Chair-
man, H. Comm. on Small Bus. (Oct. 18, 2023).
250
Leah Shepherd, DOL’s Rule Narrows Scope of Independent Contractor Classification, SHRM (Jan. 10, 2024); Chris Marr & Rebec-
ca Rainey, Labor Department Cements Rule Change on Gig Worker Status (1), BL (Jan. 9, 2024).

34
to classify workers as independent contractors (IC)—which in turn will decrease flexibility and employment
opportunities resulting in lost earnings for millions of Americans.251 This rule impacts over 22 million ICs and
threaten their status.252 Many ICs who will be forced to be classified as employees under the new rule would no
longer be able to operate as their own small business. With that, they lose the unique freedom of being a small
business and the ability to innovate, adapt, and improve to survive and grow. These factors could prevent small
businesses from hiring employees if the costs are too prohibitive. Businesses utilizing ICs are concerned that the
rule will make it harder to hire, which is particularly concerning given today’s labor shortages.253 In fact, according
to Advocacy, the only way employers would have certainty is by classifying their workers as employees requiring
additional costs for benefits and wages.254 However, the DOL did not take these factors into consideration in their
estimate. These consequences of the rule are so catastrophic that the rule has already triggered multiple lawsuits.255

3. Alternative Rules
In their rulemaking process, agencies must consider alternatives that may minimize any significant economic
impact of the rules for small entities and include them in the IFRA.256 This is a key provision of the RFA so that
the agencies finalize a rule that will accomplish its goals while not disproportionately burdening small businesses.
Advocacy recommends that the agencies address the costs, benefits, and other economic implications as part of
the alternative rules’ discussion. However, the Committee found that agencies often have inadequate consideration
of alternatives, omit possible alternatives from the agency’s published analysis, or the agency’s assessment of
alternative burdens in comparison to the rule is lacking. If anything, agencies have shown nothing to demonstrate
they take the alternatives requirement seriously.

Over the course of the Committee’s RFA investigation, the Committee wrote to several agencies about the
consideration of alternatives for rules with especially burdensome compliance requirements. However, 79 percent
of agencies failed to answer a single question asked by this Committee regarding alternatives.

a. DOL: Davis-Bacon and Related Acts and Overtime Rule under Fair Labor Standards Act

The Committee has written to the DOL on multiple occasions requiring information about its extremely
burdensome rules, such as Davis-Bacon and Related Acts and Overtime Rule under the Fair Labor Standards
Act.257 The Committee inquired about the alternative rules that the DOL considered to lessen the rule’s impact on
small businesses. As discussed earlier in this report, these rules imposed burdensome and expensive compliance
requirements, and are the exact type of rules the RFA requires agencies to consider alternatives for. Unfortunately
for the Main Street, the DOL failed to answer a single question about alternatives it considered to imposing
millions of dollars in costs and thousands of paperwork hours on small businesses. Furthermore, the alternatives
the DOL discussed in the RFA analyses lack substance or in some instances are completely absent.

251
Chris Marr & Rebecca Rainey, Labor Department Cements Rule Change on Gig Worker Status (1), BL (Jan. 9, 2024).
252
See Employee or Indep. Contractor Under the Fair Labor Standards Act, 87 Fed. Reg. 62218 (Oct. 13, 2022) (comment from Major
Clark, III, et al., Deputy Chief Counsel, SBA Off. of Advocacy (Dec. 12, 2022)).
253
See Employee or Indep. Contractor Under the Fair Labor Standards Act, 87 Fed. Reg. 62218 (Oct. 13, 2022) (comment from Mi-
chael Johnson, President, National Stone, Sand & Gravel Association (Dec. 13, 2022)).
254
See generally Chris Marr & Rebecca Rainey, Labor Department Cements Rule Change on Gig Worker Status (1), BL (Jan. 9,
2024); Employee or Indep. Contractor Under the Fair Labor Standards Act, 87 Fed. Reg. 62218 (Oct. 13, 2022) (comment from Major
Clark, III, et al., Deputy Chief Counsel, SBA Off. of Advocacy (Dec. 12, 2022)).
255
Rebecca Rainey, Challenges to DOL’s Contractor Rule: Mounting Lawsuits Explained, BL (Mar. 5, 2024).
256
4 U.S.C. §§ 601-612.
257
See Letter from Roger Williams, Chairman, H. Comm. on Small Bus., to Julie A. Su, Acting Sec’y, U.S. Dep’t of Labor (Sept. 28,
2023) (regarding the Fair Labor Standards Act); Letter from Roger Williams, Chairman, H. Comm. on Small Bus., to Julie A. Su,
Acting Sec’y, U.S. Dep’t of Labor (Sept. 28, 2023) (regarding Davis Bacon & Related Acts).

35
b. ATF: Definition of “Engaged in the Business” as a Dealer in Firearms Rule

This Committee asked the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) questions relating to
the alternatives it considered when changing the definition of “Engaged in the Business” as a dealer in firearms.258
This proposed rule would require nearly 25,000 new individuals or entities to register as a Federally Licensed
Firearm (FFL) Dealer, functionally turning them into small businesses.259 This change creates an ambiguous
standard that could cause an individual to be labeled as being “engaged in the business of selling firearms,”
requiring them to register with and pay a fee to the ATF.260 The ATF, in response to the Committee’s questions,
merely stated it “did not find any suitable alternatives that would meet the objectives of this rule that would
minimize the economic impact that this rule would have on small entities.”261 This demonstrated to the Committee
that, so long as agencies cannot reconcile lowering compliance burdens with the policy objectives of the rule,
considering alternatives is nothing more than a rubber stamp.

c. FDA: Tobacco Product Standard for Characterizing Flavors in Cigars Rule

The Committee found other concerning examples of agency considerations of alternatives. One situation is
when agencies consider an alternative that does nothing to advance the objectives of the RFA. The FDA’s Tobacco
Product Standard for Characterizing Flavors in Cigars proposed rule fails to properly consider alternative rules
and uses inadequate alternatives examples.262 The Committee wrote to the FDA raising concerns about the rule’s
impact on small businesses and asking about the alternatives the FDA considered.263 However, the FDA refused
to answer any of the Committee’s questions and did not provide any information about the alternatives in the
response.264

This burdensome proposed rule creates a product standard for cigars that would result in a product ban of all
cigars with a “characterizing flavor” other than tobacco.265 The IRFA briefly details only three alternatives—a
delayed effective date, prohibiting menthol as an intentional additive, and exemptions—to minimize the proposed
rule’s burden on small businesses.266 However, a brief explanation of surface level alternatives is not sufficient.
Furthermore, the delayed start date is not an acceptable alternative that would reduce its regulatory burden. After
pressure from the Committee and other outside stakeholders, OMB paused the FDA’s implementation of this rule,
and the agency continues to review the rule based on the comments.267

C. Compounding Impact of Duplicative Regulations
Overlapping regulations are one of the main problems with agencies’ RFA compliance. Many overlapping
regulations from various agencies, or sometimes even from the same agency, burden small businesses. The
RFA requires agencies to include in each IRFA an identification, to the extent practicable, of all relevant federal

258
See Letter from Roger Williams, Chairman, H. Comm. on Small Bus., to Steven M. Dettelbach, Dir., Bureau of Alcohol, Tobacco,
Firearms, & Explosives (Oct. 12, 2023).
259
Definition of “Engaged in the Business” as a Dealer in Firearms, 88 FR 61993, 62017 (2023) (to be codified at 27 CFR 478).
260
Id.
261
Letter from Ann M. Vallandingham, Acting Assist. Dir. of Public and Gov’t Affairs, Bureau of Alcohol, Tobacco, Firearms, & Ex-
plosives, to Roger Williams, Chairman, H. Comm. on Small Bus. (Dec. 4, 2023).
262
See Tobacco Product Standard for Characterizing Flavors in Cigars, 87 Fed. Reg. 26396 (2022) (to be codified at 21 C.F.R. § 1166).
263
Letter from Roger Williams, H. Comm. on Small Bus., to Robert Califf, Comm’r, Food & Drug Admin. (Jun. 28, 2023).
264
Letter from Erin O’Quinn, Acting Assoc. Comm’r for Legislative Affairs, to Roger Williams, H. Comm. on Small Bus. (Oct. 18,
2023).
265
See Tobacco Product Standard for Characterizing Flavors in Cigars, 87 Fed. Reg. 26396 (2022) (to be codified at 21 C.F.R. § 1166).
266
Dep’t Of Health & Human Serv., Food & Drug Admin., Fda-2021-N-1309, Tobacco Product Standard For Characterizing
Flavors In Cigars, 112 (May 2022).
267
Alexander Tin, Menthol cigarette ban delayed due to “immense” feedback, Biden administration says, CBS News (Apr. 26, 2024).

36
rules which may duplicate, overlap, or conflict with the proposed rule.268 According to Advocacy, duplicative or
overlapping rules “are based on the same or similar reasons for the regulation, the same or similar regulatory
goals, and if they regulate the same classes of industry.”269 Additionally, rules are conflicting when they “impose
two conflicting regulatory requirements on the same classes of industry.”270 The Advocacy’s RFA Compliance
Guide directs agencies to examine potential conflicting and duplicative rules that could add cumulative regulatory
burdens on small entities without any gain in regulatory benefits.271

Some agencies have produced their own RFA compliance guides that include guidance on how to avoid
duplicative regulations. Many times, the guides are similar to the Advocacy’s RFA Compliance Guide, but not
always. For example, the EPA produced its own RFA compliance guide to the Committee in April 2023. Significant
differences exist between the Advocacy’s RFA Compliance Guide and EPA’s. Most notably, the EPA’s guidance
does not mention the requirement to examine potential conflicting and duplicative rules that could add cumulative
regulatory burdens on small entities. The EPA RFA guidance states:

Many EPA rules complement requirements imposed by other EPA rules or rules
promulgated by other Federal Agencies. EPA’s authority and responsibility
intersect with those of many other Federal Agencies and Departments (e.g., OSHA,
Transportation, Energy, Interior). In principle, these controls should all work
together to create a comprehensive system of environmental management. Each
agency should, therefore, coordinate its regulatory requirements with those already
in place. The lead OGC attorney for your rulemaking can assist in identifying
duplicate, overlapping, or conflicting rules.272

It is important for the agencies to consider overlapping regulations and include guidance on how to examine
them in their internal guides. There are 439 federal government agencies that impose regulations on small
businesses and there is often overlap between these rules.273 Besides regulations by federal agencies, also state
and local regulations add to the regulatory burden that drowns small businesses. Often there is overlap and
conflict also between local, state, and federal regulations. Even though the RFA requires agencies to identify the
duplicative, overlapping, or conflicting regulations among federal agencies, no comprehensive approach has been
adopted concerning the myriad of regulations enforced by diverse agencies that small enterprises need to adhere
to.

Unfortunately, agencies frequently fall short in properly identifying the regulations governing the same field
and agencies often lose sight of what their counterparts are issuing. Take, for example, energy efficiency standards
and resources across the federal government. One may think the only player would be the DOE. Unfortunately
for small businesses, the requirements go far beyond that and include the EPA, the Department of Agriculture
(USDA), the Department of the Treasury (Treasury), the Department of the Interior (Interior), the Department of
Housing and Urban Development (HUD), the SBA, Fannie Mae, the Department of Health and Human Services
(HHS), and the Department of Veterans Affairs (VA).274

Manufacturers are likewise heavily impacted by a flurry of regulations across the federal government. A study
by the National Association of Manufacturers (NAM) found that regulatory costs have increased by 35 percent in

268
See 5 USC § 603(b)(5).
269
U.S. Small Bus. Admin. Off. of Advocacy, A Guide for Government Agencies: How to Comply with the Regulatory Flex-
ibility Act, 40 (Aug. 2017).
270
Id.
271
Id.
272
U.S. Env’t Prot. Agency, Final Guidance for EPA Rulewriters: Regulatory Flexibility Act as amended by the Small
Business Regulatory Fairness Act, 36 (Nov. 30, 2006) (on file).
273
Agencies Found, Fed. Reg. (last visited Apr. 14, 2024), https://www.federalregister.gov/agencies.
274
Lynn J. Cunningham, Cong. Research Serv., R40913, Renewable Energy and Energy Efficiency Incentives: A Summary of
Federal Programs (Feb. 10, 2023).

37
the past decade and in 2022, regulations cost manufacturers $350 billion.275 This meant that a small manufacturer’s
compliance costs was about $50,100 per employee. This burdensome impact of increased regulations was also
brought up in the Committee’s “Tax Day” hearing.276 Mr. Charles Wetherington, a small business manufacturer,
testified that his “regulatory expenses have gone up 460 percent in the last eight years and [the regulations have]
not done anything to make the products better or safer.”277

Requirements coming from all facets of the federal government are difficult for someone who is well
versed in bureaucratic process to track – let alone a small business who should be more concerned about making
payroll than complying with rules coming out of Washington.

The massive number of regulations that federal agencies pass each year and the number of paperwork hours it
causes for businesses illustrate how the compounding impact of never-ending red tape is truly an issue for small
businesses. Over the duration of President Biden’s Administration, federal agencies have passed 891 final rules
costing $1.47 trillion and 232.4 million paperwork hours.278 The 2023 Federal Register is almost 20,000 pages
longer than the 2021 edition.279 The 2023 Federal Register sits at 90,402 pages, making it the second longest
version of this document in US history.280 It is not possible, let alone reasonable, to believe that individuals
or small businesses have the ability to sift through over 90,000 pages to ensure compliance with each new—
potentially overlapping, duplicative, or conflicting—rule. Additionally, as of May 10, 2023, in 2024 alone, the
Federal Register includes 180 new final rules costing $1.2 trillion and 12.4 million paperwork hours.281 $1.2
trillion additional costs in only in about four months are unacceptable.

275
Nat’l Assoc. of Mfrs, The Cost of Federal Regulation to the U.S. Economy, Manufacturing and Small Business, 2 (Oct.
2023).
276
Tax Day: Exploring the Adverse Effects of High Taxes and a Complex Tax Code, Hearing before the H. Comm. On Small Bus. 118th
Cong. (Apr. 19, 2024) (testimony of Mr. Charles Wetherington, President, BTE Technologies, LLC).
277
Id.
278
Regulation Rodeo, Am. Action Forum, (last visited May 10, 2024), https://www.regrodeo.com.
279Clyde
Wayne Crews Jr., Biden’s 2023 Federal Register Page Count Is The Second-Highest Ever, Forbes (Dec. 29, 2023).
280
Id.
281
Regulation Rodeo, Am. Action Forum, (last visited May 10, 2024), https://www.regrodeo.com.

38
282

This Committee has expressed concerns that regulations, and the cumulative effect of existing regulations,
have a disproportionate, negative impact on small businesses. Regulations, especially duplicative regulations,
often harm small businesses more than large and established businesses in at least three ways: (1) disproportionate
cost burdens, (2) economies of scale in compliance, and (3) barriers to entry.283 Small businesses have consistently
said that unreasonable government regulations are one of the biggest issues that they face each year.284

Throughout the Committee’s investigation, several examples of overlapping and duplicative regulations could
have been identified with a thorough RFA analysis.

282
Clyde Wayne Crews Jr., Biden’s 2023 Federal Register Page Count Is The Second-Highest Ever, Forbes (Dec, 29, 2023).
283
Chris Edwards, Entrepreneurs and regulations: Removing state and local barriers to new businesses, The Cato Inst. (May 5,
2021).
284
William C. Dunkelberg and Holly Wade, NFIB small business economic trends, Nashville: Nat’l Fed’n of Indep. Bus., 18 (Dec.
2020).

39
1. DOL: Fiduciary Rule and Workplace Injury Rule

a. Fiduciary Rule

In this Committee’s letter to the DOL about their Fiduciary Rule, the Committee asked about the DOL’s
justification to regulate an area that is already regulated by other agencies.285 In its delayed response, the DOL
explained this by claiming that it “seeks to address…gaps in existing regulations that currently leave some
retirement investors vulnerable to advice that is not in their best interest.”286 However, the retirement-level
securities, IRA and annuities sales, advice is already regulated by the US Securities and Exchange Commission’s
Regulation Best Interest standard, and 40 state-based annuity sales regulations that mirror best-interest policies.287
The DOL attempted to augment other regulators’ authority by adding its own regulations to already regulated
space. By doing so, the DOL added unnecessary red tape to an area with an existing regulatory framework to
protect consumers.

This rule both overlaps with other agencies’ current regulations and exceeds Congressional intent. The rule
package is very similar to the previous rule that was vacated by the U.S. Court of Appeals for the Fifth Circuit
in 2018 for exceeding the DOL’s legal authority by expanding the definition of “investment advice fiduciary”
beyond the meaning that Congress intended.288 One of the key failures of the prior rule was that the rule did not
make a distinction between investment advice for a fee and sales activity, the same issue as the new proposed rule
has.289 Additionally, the new rule does not make it clear whether competitive bidding processes for investment
managers might inadvertently trigger fiduciary status.290 Despite a similar rule have already been overturned and
the existing regulatory framework in place, the DOL still decided to push this new rule forward.

On April 25, 2024, the DOL finalized the rule against this Committee’s objections.291 Even though the DOL
made some changes and clarifications to this rule, this rule still significantly hurts small businesses and adds
additional red tape that overlaps with other agencies’ regulations. This rule has already led to challenges and
litigation.292

b. Workplace Injury Rule
The Committee’s inquiry into the OSHA’s proposed Workplace Injury Rule illustrates how issues with
overlapping or duplicative regulations arise imposing costs and confusion for small businesses.293 The OSHA
responded to this Committee a month late without addressing the Committee’s specific questions and dismissing
the Committee’s legitimate concerns about the rule’s impact on small businesses stating that “[a]lthough
OSHA’s recent final rule revised [previous] provisions for clarity, it did not make any substantive changes to the
requirements.”294 However, the new rule’s requirements differ from the previous one, for example, the updated
regulation requires organizations with over 100 employees in high-risk industries to electronically submit detailed,
case-specific information for each recordable injury and illness, in addition to the annual summary that was
previously required.295
The OSHA estimates that the total cost of the rule will be $7.7 million annually: $7.1 million cost to the
285
Letter from Roger Williams, H. Comm. on Small Bus., to Julie Su, Acting Sec’y, Department of Labor (Dec. 7, 2023).
286
Letter from Julie Su, Acting Sec’y, Dep’t of Labor., to Roger Williams, Chairman, H. Comm. on Small Bus (Feb. 15, 2024).
287
Austin R. Ramsey, Biden rolls legal dice by proposing fourth fiduciary 401(k) rule, BL (Nov. 7, 2023).
288
See Chamber of Com. of the U.S. v. U.S. Dep’t of Labor, 885 F.3d 360 (5th Cir. 2018)
289
Id.; Retirement Security Rule: Definition of an Investment Advice Fiduciary, 88 Fed. Reg. 75890 (2023) (to be codified at 29 C.F.R.
2510); Austin R. Ramsey, Biden rolls legal dice by proposing fourth fiduciary 401(k) tule, BL (Nov. 7, 2023).
290
Austin R. Ramsey, Biden rolls legal dice by proposing fourth fiduciary 401(k) rule, BL (Nov. 7, 2023).
291
Retirement Security Rule: Definition of an Investment Advice Fiduciary, 89 Fed. Reg. 32122 (2024) (to be codified at 29 C.F.R.
2510).
292
Ben Miller, Insurer group files first suit over Biden 401(k) advice rule (1), BL (May 2, 2024).
293
Letter from Roger Williams, Chairman, H. Comm. on Small Bus., to Julie A. Su, Acting Sec’y, U.S. Dep’t of Labor, et al. (Aug. 3,
2023).
294
Letter from Liz Watson, Ass. Sec’y, U.S. Dep’t of Labor., to Roger Williams, Chairman, H. Comm. on Small Bus. (Sept. 15, 2024).
295
Improve Tracking of Workplace Injuries, 29 C.F.R. § 1904 (2023) (to be codified at 29 C.F.R. § 1904).

40
private sector to “become familiar with the rule’s requirements, update software, and submit forms electronically,”
and $0.6 million cost to the government.296 This rule is problematic not only for these burdensome compliance
requirements, but because it regulates 66 different industries that are regulated also by other agencies.297 Regulating
so many industries that already need to comply with countless other regulations and agencies who are their main
regulators, will create overlap. The OSHA rule is an example of a far-reaching rule where the OSHA seemingly
did not consider the rules promulgated by other agencies directly regulating these specific sections of the economy.

2. DOE and FTC: Ceiling Fans Rules
An example of small businesses getting hit from all sides across agencies is the energy-related regulations
for ceiling fans. The Committee wrote the DOE on August 24, 2023, about the regulatory burden of its proposed
energy conservation standards for ceiling fans.298 After more than two months, the DOE provided a high level
response barely answering any of the Committee’s questions.299 This proposed rule would decrease the maximum
estimated energy consumption permissible for large diameter and belt driven ceiling fans.300 The rule would
require numerous small business fan manufacturers to redesign their products and may put between 10 and 30
percent of small business ceiling fan manufacturers out of business.301

Ceiling fan manufacturers need to know several sets of regulations from several agencies at any given time,
many of which incorporate and reference regulations only promulgated by the DOE. However, it is unlikely that
a small ceiling fan manufacturer would know to check at least 6 other agencies—such as the DOE, EPA, OSHA,
DOL, CPSC, and FTC—beyond the DOE’s regulatory framework for energy-related regulations. For example,
the FTC’s proposed Energy Labeling Rule, directly impacts labeling requirements for a wide variety of home
fixtures including ceiling fans and large appliances.302 Further, under the Biden Administration, agencies that
would not normally engage in energy or climate related rules are now expanding their reach. For instance, the
CPSC has involved itself in regulating energy standards for certain consumer products. These kinds of overlaps
add unnecessary red tape and confusion for small businesses.

3. OMB/FAR Council and SEC: Climate Disclosure Rule

Some of the strongest examples of duplicative regulations involve climate disclosure regulations. The
Committee wrote to the Office of Management and Budget (OMB) regarding Federal Acquisition Regulatory
Council’s (FAR Council) proposed rule about climate disclosures.303 In its response to the Committee’s letter,
OMB did not answer any of the Committee’s questions but only stated that they have “shared [the Committee’s]
letter with the members of the FAR Council so that [the Committee’s] comments may be taken under consideration
as the FAR Council evaluates the public comment and makes revisions, as appropriate, before publishing a final
rule.”304 This rule would require certain federal contractors to disclose greenhouse gas emissions and monetary
climate-related risks, along with requiring them to create targets to reduce emissions.305 This will burden recipients
296
Id.
297
News Release, Dep’t of Labor, Occupational Safety & Health Admin., Dep’t of Labor Announces Rule Expanding Submission
Requirements For Injury, Illness Data Provided By Employers In High-Hazard Industries (Jul. 17, 2023).
298
See Energy Conservation Standards for Ceiling Fans, 88 Fed. Reg. 40932 (2023) (to be codified at 10 C.F.R. § 430); Letter from
Roger Williams, Chairman, H. Comm. on Small Bus., to Jennifer M. Granholm, Sec’y, Dep’t. of Energy (Aug. 24, 2023).
299
Letter from Amanda Mahoney, Bldg. Tech. Off. Dir., to Roger Williams, Chairman, H. Comm. on Small Bus. (Oct. 30, 2023).
300
See Energy Conservation Standards for Ceiling Fans, 88 Fed. Reg. 40932 (2023) (to be codified at 10 C.F.R. § 430).
301
88 Fed. Reg. at 41007-08. (Table VI.1 shows that at least three of the ten large diameter ceiling fan manufactures will experience
conversion costs greater than 20 percent of triennial revenues).
302
See Energy Labeling Rule, 89 Fed. Reg. 7566 (Feb. 2, 2024) (to be codified at 16 C.F.R. § 305).
303
Letter from Roger Williams, Chairman, H. Comm. on Small Bus., to Mathew C. Blum, Acting Adm’r, Off. of Federal Procurement
Policy (Jun. 9, 2023).
304
Letter from Wintta M. Woldemariam, Ass. Dir., Off. of Federal Procurement Policy, to Roger Williams, Chairman, H. Comm. on
Small Bus. (Jul. 21, 2023).
305
See Federal Acquisition Regulation: Disclosure of Greenhouse Gas Emissions and Climate-Related Financial Risk, 87 Fed. Reg.
68412 (2022) (to be codified at 48 C.F.R. §§ 1. 4, 9, 23, 52).

41
of federal contracts with substantial and unreasonable costs.306 In fact, the proposed rule states, the “DOD, GSA,
and NASA expect this rule may have a significant economic impact on a substantial number of small entities.”307
Additionally, the Securities and Exchange Commission (SEC) Climate Disclosure Rule already mandates entities
to report their greenhouse gas emissions, climate-related risks that are likely to have a material impact on their
business, and strategies to mitigate emissions.308 For small businesses subject to both rules, requiring virtually
the same disclosures, compliance burdens and costs are essentially doubled. This is the scenario the RFA was
designed to prevent.

4. EPA and DOE: Electric Vehicles Rules

Another clear example of overlapping regulations is between the EPA and DOE regarding electric vehicles.
This Committee wrote the EPA regarding its proposed rule change to the vehicle emissions standards for light
duty passenger cars, light trucks, and medium-duty vehicles.309 After three months, the EPA provided a high-level
response to the Committee determining “the proposed standards would not have economic impacts sufficient
to trigger the Regulatory Flexibility Act.”310 The Committee found this to be false. This rule would require that
vehicles made after 2027 meet heightened tailpipe emissions standards, require batteries within electric vehicles
meet certain durability requirements, and limit the number of non-electric vehicles that importers are permitted to
import annually.311 Thus, this proposed rule would require numerous small entities to re-engineer their vehicles to
comply with these increased standards, limit the supply of vehicles for Independent Commercial Importers (ICI),
and create new standards for battery longevity.312

Furthermore, the EPA asserts that this rule would have minimal effects on small businesses, in part, based
on its claim that all small entity vehicle manufacturers in the United States specialize in electric vehicles. The
Committee found this assertion to be false as well. Currently, Shelby Supercar Company makes the fastest
domestic production vehicle in the United States, and Hennessey Special Vehicles makes the second fastest—both
companies are small entities, and neither uses electric power units in its vehicles.313 Unfortunately, on April 18,
2024, the EPA finalized this rule despite being made aware of this error by the Committee.314

While small businesses will need to revise their operations to comply with this costly and burdensome rule,
they also must adhere to the DOE’s recent final rule regulating the same area. On March 29, 2024, the DOE released
an updated equation that determines how the petroleum-equivalent fuel economy is calculated.315 The paradigm
between these two stringent regulations—in an effort to advance the Biden Administration’s EV policies—runs

306
Nat’l Council of Farmer Cooperatives, Comments Regarding the DoD, GSA, and NASA proposed rule to
implement
certain GHG and climate-related financial disclosures; Docket ID#: FAR Case 2021-015, Docket No.
FAR-2021-0015,
Sequence No. 1., at 2 (FAR Case 2021-015) (Feb. 11, 2023).
307
See Federal Acquisition Regulation: Disclosure of Greenhouse Gas Emissions and Climate-Related Financial Risk, 87 Fed. Reg.
68412 (2022) (to be codified at 48 C.F.R. §§ 1. 4, 9, 23, 52).
308
See Enhancement and Standardization of Climate-Related Disclosures for Investors, 89 Fed. Reg. 21668 (2024) (to be codified at
17 C.F.R. §§ 210, 229, 230, 232, 239, 249).
309
Letter from Roger Williams, Chairman, H. Comm. on Small Bus., to Michael S. Regan, Adm’r, U.S. Env’t Prot. Agency (Aug. 3,
2023).
310
See Letter from Tim Del Monico, Assoc. Adm’r, U.S. Env’t Prot. Agency, to Roger Williams, Chairman, H. Comm. on Small Bus.,
(Oct. 17, 2023).
311
See Multi-Pollutant Emissions Standards for Model Years 2027 and Later Light-Duty and Medium-Duty Vehicles, 88 Fed. Reg.
29184 (2023) (to be codified at 40 CFR §§ 85, 86, 600, 1036, 1037, 1066).
312
Id.
313
Dustin Hawley, Worlds Fastest Production Vehicles, J.D. Power (Last visited Jul. 14, 2023).
314
See Multi-Pollutant Emissions Standards for Model Years 2027 and Later Light-Duty and Medium-Duty Vehicles, 88 Fed. Reg.
27842 (2024) (to be codified at 40 CFR §§ 85, 86, 600, 1036, 1037, 1066, 1068).
315
See Petroleum-Equivalent Fuel Economy Calculation, 89 Fed. Reg. 22041 (2024) (to be codified at 10 C.F.R. § 474).

42
a serious risk where small business, in complying with one rule, may not be able to comply with the other. This
is the danger of overlapping regulations the RFA considers and is another reason why agencies are required to
ensure their regulations harmonize, not overlap, with other regulations from other agencies.

D. Congressional Oversight and Administrative Procedure Act
When Congress passes a law to create an agency, it typically gives the power to regulate certain matters to
that agency.316 However, agencies can only act within the authority granted by Congress and Congress maintains
legislative oversight over rules.317 The Constitution charges Congress with the responsibility and power to
conduct oversight of the federal agencies.318 Congress has undisputable capacity to oversee the performance of
federal agencies, consistent with its constitutional authority.319 Possession of relevant information is an essential
precondition to the effective discharge of Congress’s oversight duties. Congress “cannot conduct effective oversight
of the federal government without detailed information about the operations of its departments and agencies.”320

Agencies must also follow the requirements provided in the APA in the rulemaking process. The APA regulates
the agencies’ rulemaking when they are generating rules within the authority Congress has granted them. The APA
requires agencies to provide the public with adequate notice of a proposed rule.321 After they have provided notice,
the agency then must provide “interested persons with a meaningful opportunity to comment on the proposed
rule through the submission of written ‘data, views, or arguments.’”322 The APA does not determine how long the
comment period must be, however, the courts have explained the agency must “provide an ‘adequate’ opportunity
to comment—of which the length of the comment period represents only one factor for consideration.”323 These
comments must be submitted through the formal process and ex parte communications (communications with
outside entities) are prohibited in order to prevent undue influence from outside entities into the rulemaking
process. Unfortunately, some agencies attempted to improperly apply this prohibition to Congress. It is clear
from the case law and Congress’ constitutional duty to conduct oversight that communications with Congress
are not prohibited. After the comment period ends, agencies must consider the “relevant matter presented” and
incorporate into the adopted rule a “concise general statement” of the “basis and purpose” of the final rule.324

1. The FDA, BOEM, and DOL: Policy not to Discuss Proposed Rules with Congress
As part of the Committee’s investigation into how agencies comply with the RFA, the Committee sent the
FDA, BOEM, and DOL letters seeking a deeper explanation of their proposed rules’ impact on small businesses.325
However, the FDA, BOEM, and DOL attempted to interfere with congressional oversight by refusing to provide
any information to the Committee regarding some of their proposed rules claiming that it was against their policy
or the APA. In response, the Committee wrote to the FDA, BOEM, and DOL regarding their policies to not
316
Cong. Research Serv., R41546, A Brief Overview of Rulemaking & Judicial Review, at 17 (2017).; U.S. Gov’t Accountabil-
ity Off., GAO-24-105870, Legislative Branch Options for Enhancing Congressional Oversight of Rulemaking and Estab-
lishing & Office of Legal Counsel, at 4 (2023).
317
U.S. Const. art. 1, § 1; Cong. Research Serv., R41546, A Brief Overview of Rulemaking & Judicial Review, 1 (2017); 3 Ad-
min. L. § 13.03; U.S. Gov’t Accountability Off., GAO-24-105870, Legislative Branch Options for Enhancing Congressional
Oversight of Rulemaking & Establishing & Office of Legal Counsel, at 1 (2023).
318
U.S. Const. art. 1, § 1.
319
See AT&T v. U.S., 117 F.3d 1368, 1369 (Fed. Cir. 1999).
320
Comm. on the Judiciary of the U.S. H.R. v. McGahn, 968 F.3d 755, 760 (D.C. Cir. 2020).
321
5 U.S.C. § 553(b).
322
Cong. Research Serv., R41546, A Brief Overview of Rulemaking & Judicial Review, at 2 (2017).
323
See N.C. Growers’ Ass’n v. UFW, 702 F.3d 755, 770 (4th Cir. 2012); Cong. Research Serv., R41546, A Brief Overview of
Rulemaking & Judicial Review, at 2 (2017).
324
Cong. Research Serv., R41546, A Brief Overview of Rulemaking & Judicial Review, at 3 (2017); 5 U.S.C. § 553(c).
325
Letter from Roger Williams, et al., Chairman, H. Comm. on Small Bus., to Robert M. Califf, M.D., Comm’r, U.S. Food & Drug
Admin. (Jun. 28, 2023).

43
discuss their proposed rules with Congress.

The FDA, BOEM, and DOL withholding requested information prevented the Committee from conducting
proper oversight over these rules. As a general rule, ex parte communications between federal agencies and
Congress are encouraged for Notice-and-Comment rulemakings.326 Courts have found that better legislation
and rules are created when agencies and Congress work together to create rules which implement legislation
correctly.327 This is valuable since agencies are tasked with implementing laws and have subject matter expertise
in the relevant field, while Congress is responsible for passing the laws, thus having a better understanding of its
intent and purpose.

In their responses to the Committee’s inquire about the proposed rules, the agencies indicated that small
businesses and their comments were being heard in this rulemaking process.328 While it was reassuring the FDA,
BOEM, and DOL claimed to have considered these interests, the purpose of this Committee’s letters was to
ensure that the agencies were, indeed, complying with their obligations to small businesses. Congress’ authority
to conduct oversight is inherent in Article I, sec. 1 which states: “All legislative powers herein granted shall be
vested in a Congress of the United States.” The United States Supreme Court has consistently affirmed Congress’s
authority to conduct oversight and investigations, holding that “the power of inquiry—with process to enforce
it—is an essential and appropriate auxiliary to the legislative function.”329 Rule X of the Rules of the United States
House of Representatives delegates this responsibility to standing committees.330

Denying the Committee the requested information prevents it from upholding and acting in furtherance of
its legislative function, namely reviewing regulatory burdens imposed on small businesses by federal agencies
and determining how they may be alleviated.331 This includes the ability of Congress to initiate investigations to
inform itself about how existing laws function, whether new laws are necessary and if old laws should be repealed
or altered.

2. The DOE, DOL, and SEC: Ramifications of Shortened Comment Period
This Committee also raised concerns about comment periods being shortened by the EPA, DOL, DOE, and
SEC.332 Each of these agencies either omitted an answer in their response for the length of their comment period
or did not respond to the Committee’s letters altogether. 333 The lack of responsiveness for this particular concern
is apparent.

For instance, this Committee wrote the DOL raising this concern regarding their Fiduciary Rule.334 In
November 2023, 18 trade associations wrote a letter to the DOL noting “significant and unanticipated” regulatory
326
Maeve P. Carey, et al., Cong. Research Serv., IF12368, Communications Between Congress & Federal Agencies During
the Rulemaking Process (Mar. 30, 2023).
327
Sierra Club v. Costle, 657 F.2d 298, 409 (D.C. Cir. 1981).
328
Letter from Erin O’Quinn, Acting Assoc. Comm’r for Legislative Affairs, U.S. Food & Drug Admin., to Roger Williams, et al.,
Chairman, H. Comm. on Small Bus. (Oct. 18, 2023).
329
McGrain v. Daugherty, 273 U.S. 135, 174 (1927).
330
Trump v. Mazars USA, LLP, 140 S. Ct. 2019 (2020); McGrain v. Daugherty, 273 U.S. 135 (1927).
331
Rules of the H.R., Rule X(1)(q)(1), 118th Cong. (2022).
332
Letter from Roger Williams, Chairman, H. Comm. on Small Bus., to Jennifer M. Granholm, Sec’y, U.S. Dep’t of Energy (Nov. 2,
2023); Letter from Roger Williams, Chairman, H. Comm. on Small Bus., to Julie A. Su, Acting Sec’y, U.S. Dep’t of Labor (Dec. 7,
2023); Letter from Roger Williams, Chairman, H. Comm. on Small Bus., to Michael S. Reagan, Adm’r, U.S. Env’t Prot. Agency (Aug.
3, 2023); Letter from Roger Williams, Chairman, H. Comm. on Small Bus., to Gary Gensler, Chairman, U.S. Sec. & Exch. Comm’n
(July. 27, 2023).
333
Letter from Roger Williams, Chairman, H. Comm. on Small Bus., to Jennifer M. Granholm, Sec’y, U.S. Dep’t of Energy (Nov. 2,
2023); Letter from Roger Williams, Chairman, H. Comm. on Small Bus., to Julie A. Su, Acting Sec’y, U.S. Dep’t of Labor (Dec. 7,
2023); Letter from Roger Williams, Chairman, H. Comm. on Small Bus., to Michael S. Reagan, Adm’r, U.S. Env’t Prot. Agency (Aug.
3, 2023); Letter from Roger Williams, Chairman, H. Comm. on Small Bus., to Gary Gensler, Chairman, U.S. Sec. and Exch. Comm’n
(July. 27, 2023).
334
Letter from Roger Williams, Chairman, H. Comm. on Small Bus., to Julie A. Su, Acting Sec’y, U.S. Dep’t of Labor (Dec. 7, 2023).

44
changes and highlighting the need for a 60-day extension to the comment period to provide meaningful feedback
and comment.335 Despite raising concerns about increased costs associated with providing financial advisory
services, potential limitations on small firms’ ability to offer holistic investment advice and recommendations, and
potential barriers to entry into the profession, the DOL denied the request.336

This Committee asked the DOL whether it considered extending the comment period to 90 days, or longer,
given the impacted entities sufficient time to respond.337Although the DOL has claimed to recognize “the important
role small businesses play in our economy,” the DOL ignored the Committee’s question in their response.338
Without a sufficient comment period, small businesses are not able to properly voice their concerns—defeating
the purpose of the notice-and-comment framework and depriving small businesses the ability to advocate for
themselves in the rulemaking process.

The DOE and SEC also avoided accountability by limiting opportunities for small businesses to engage in
the regulatory process. This Committee asked the DOE why its comment period was 60 days for its Commercial
Refrigeration Rule, 15 days shorter than the agency’s own guidelines, but the DOE refused to answer the question.339
Additionally, the Committee questioned why the SEC’s comment period on proposed rules has drastically declined
since 2021, and whether the SEC has considered the impact of a shortened comment period on small businesses.340
The SEC ignored the question.341

V. Solutions
This Committee has developed several suggested reforms to overcome the issues found with agencies’ RFA
compliance and to strengthen the RFA. As discussed in this report, federal agencies constantly fail to comply with
the RFA’s requirements causing small businesses to suffer. The agencies are supposed to comply with the RFA’s
requirements to lessen the regulatory burden on small businesses; however, as illustrated in this report, the current
regulatory framework is insufficient to protect American small businesses. Change is required. This section lays
out four main areas of reform that the Committee believes will help relieve the regulatory burdens on small
entities imposed by federal regulators.

A. Significant Impact on a Substantial Number of Small Entities Certification
When an agency is determining whether their proposed regulation will have a significant impact on a substantial
number of small entities, they must either choose to conduct a full regulatory flexibility analysis or certify that the
proposed rule will not have a significant economic impact on a substantial number of small entities. Most agencies
merely choose the latter to avoid doing the work associated with an RFA analysis.

335
Letter from Major L. Clark, III, Deputy Chief Counsel, Off. of Advocacy, U.S. Small Bus. Admin., to Lisa M. Gomez, Assistant
Sec’y of Labor, Emp. Benefits Sec. Admin., U.S. Dep’t of Labor (Dec. 20, 2023).
336
Letter from Major L. Clark, III, Deputy Chief Counsel, Off. of Advocacy, U.S. Small Bus. Admin., to Lisa M. Gomez, Assistant
Sec’y of Labor, Emp. Benefits Sec. Admin., U.S. Dep’t of Labor (Jan. 2, 2024).
337
Letter from Roger Williams, Chairman, H. Comm. on Small Bus., to Julie A. Su, Acting Sec’y, U.S. Dep’t of Labor (Dec. 7, 2023).
338
Letter from Liz Watson, Assistant Sec’y, U.S. Dep’t of Labor, to Roger Williams, Chairman, H. Comm. on Small Bus. (Mar. 10.
2023). See Letter from Liz Watson, Assistant Sec’y, U.S. Dep’t of Labor, to Roger Williams, Chairman, H. Comm. on Small Bus.
(Feb. 15, 2024).
339
See Letter from Roger Williams, Chairman, H. Comm. on Small Bus., to Jennifer M. Granholm, Sec’y, U.S. Dep’t of Energy (Nov.
2, 2023); Letter from Mandy Mahoney, Bldg. Tech. Off. Dir., Off. Energy Efficiency & Renewable Energy, U.S. Dep’t of Energy, to
Roger Williams, Chairman, H. Comm. on Small Bus. (Dec. 18, 2023).
340
Letter from Roger Williams, Chairman, H. Comm. on Small Bus., to Gary Gensler, Chairman, U.S. Sec. & Exch. Comm’n (July.
27, 2023).
341
Letter from Gary Gensler, Chairman, U.S. Sec. & Exch. Comm’n, to Roger Williams, Chairman, H. Small Bus. Comm., et al. (Sep.
26, 2023).

45
To avoid the certification being merely a box checking exercise, the Committee concurs with Advocacy’s
recommendation that agencies should answer the following questions in their analysis:

• Which small entities will be affected?
• Has adequate economic data been obtained?
• What are the economic implications/impacts of the proposal or do the data reveal a significant economic
impact on a substantial number of small entities?

Additionally, each agency seems to have a different definition of what a significant impact on a substantial
number of small entities means. While the Committee understands that creating a uniform definition across the
federal government of a significant impact on a substantial number of small entities is unrealistic, the Committee
believes it would be beneficial for each agency to submit a report to Congress on the definition they use so that
they can be held to that standard when submitting subsequent rules.

B. Regulatory Flexibility Act Reforms

Currently, the RFA only requires agencies to consider small entities that are directly impacted by a rule, not
those who are affected by the downstream impacts. For example, when considering updated requirements for
ceiling fans, the DOE is merely required to consider small entities which manufacture ceiling fans, not those who
would have to purchase new ceiling fans to stay in compliance with new regulations. The Committee believes
that agencies should be required to consider the indirect costs imposed on small entities when conducting an RFA
analysis.

Further, the RFA uses language which makes it very flexible standard to rulemaking agencies, such as “when
feasible” and “to the extent practicable.” The Committee believes that the statute should be amended so that
agencies are compelled to do this analysis and not merely get by with saying that additional analysis is not
“practicable.”

C. Rule Challenges
Advocacy is the chief, independent advocate for small entities within the federal government. Advocacy is the
“watchdog” of the RFA and works to compel agencies to adhere to the requirements of the RFA. Unfortunately,
their authority is often ignored because they lack enforcement mechanisms to urge agencies to comply with their
guidance.

The Committee supports providing a pathway for small entities to petition Advocacy to review a rule, and if
Advocacy believes that small entities were not accurately accounted for, Advocacy could then require the agency
to reconsider the rule and conduct a full RFA analysis.

D. Periodic Review of Rules
The RFA requires agencies to review their rules that have a significant impact on a substantial number of small
entities to be reviewed at least every 10 years. Agencies have the option to delay this review for a year up to five
times. The Committee believes that if a rule is so important that it must still be in effect after 10 years, there is no
rationale for why an agency would have to delay the review of a rule for five years. The Committee believes that
an agency should be able to delay for one year and must give a valid rationale for why it is doing so.

Further, when the agency is reviewing the rule, they must again only consider the direct costs the rule has
had on small entities. The Committee believes that agencies should be required to also consider the indirect costs
imposed by the rule on Main Street.

46
E. Cumulative Economic Impact of the Rule
Given that many agencies fail to consider the economic reality when drafting new rules, the Committee believes
that amending the current IRFA requirements to include stronger language and descriptions of the cumulative
economic impact of the rule, any disproportionate impacts on small entities, and how the rule may impair their
access to credit is necessary. Currently, the RFA’s language provides an exceptional amount of flexibility to
agencies, using language like “to the extent practicable” and “when feasible.” The Committee believes this could
be remedied by altering this language to require agencies to respond to the requirements within the RFA in all
instances.

VI. Conclusion
The massive number of regulations that federal agencies pass each year and the resulting paperwork
hours illustrate how detrimental an unchecked regulatory regime can be on small businesses. Under the Biden
Administration, this regulatory state has gotten dramatically worse.

The investigation exposed several main problems, including how agencies pivot the RFA’s requirements and
get away with overregulating small businesses. First, agencies improperly certify the rules in order to avoid
conducting the RFA analysis, which means that these burdensome regulations come into effect without adequately
assessing the real impacts to small businesses. Second, agencies underestimate both the costs and the number
of impacted small businesses which creates a disparity between what the agency claims and what the real-world
impact of the rules are on small businesses. Third the agencies often do not adequately consider less burdensome
alternatives, or they choose to finalize a rule that is even more harmful to small businesses than other alternatives
would have been. Fourth, agencies repeatedly fail to appropriately assess if a rule overlaps, conflicts, or is
duplicative of other rules, which causes small businesses to suffer from multiple overlapping regulations from
both within same agency and across the federal government. Lastly, some agencies have refused to submit to
congressional oversight and provide Congress with required information during their rulemaking process, which
violates both the Constitution and the APA and prevents this Committee from its duty to protect Main Street
America.

This Committee found that the RFA, as it is, fails to protect small business interests and agencies treat it
like a “check the box” exercise rather than actually analyzing the effects of their regulations. This Committee
has developed several reforms to overcome the issues with the RFA compliance and to strengthen the RFA. As
discussed in this report, federal agencies constantly fail to comply with the RFA’s requirements, hurting small
businesses. The current regulatory framework is insufficient to protect American small businesses and change is
required.

47
Appendix 1

Agency Rule Date Sent Response Date (if applicable)
1. Army Corps Implementation of RFA, SBREFA, and 2/22/2023 3/10/2023
EO13272
2. CFPB Implementation of RFA, SBREFA, and 2/22/2023 3/10/2023
EO13272

3. CPSC Implementation of RFA, SBREFA, and 2/22/2023 5/5/2023
EO13272
4. USDA Implementation of RFA, SBREFA, and 2/22/2023 3/30/2023
EO13272
5. Commerce Implementation of RFA, SBREFA, and 2/22/2023 5/19/2023
EO13272
6. DOD Implementation of RFA, SBREFA, and 2/22/2023 3/10/2023
EO13272
7. ED Implementation of RFA, SBREFA, and 2/22/2023 No Response
EO13272
8. DOE Implementation of RFA, SBREFA, and 2/22/2023 4/12/2023
EO13272
9. DOI Implementation of RFA, SBREFA, and 2/22/2023 3/14/2023
EO13272
10. DOL Implementation of RFA, SBREFA, and 2/22/2023 3/10/2023
EO13272
11. DOT Implementation of RFA, SBREFA, and 2/22/2023 4/20/2023
EO13272
12. EPA Implementation of RFA, SBREFA, and 2/22/2023 3/7/2023
EO13272
13. FDIC Implementation of RFA, SBREFA, and 2/22/2023 12/21/2022
EO13272
14. Fed. Reserve Implementation of RFA, SBREFA, and 2/22/2023 6/23/2023
EO13272
15. FERC Implementation of RFA, SBREFA, and 2/22/2023 4/26/2023
EO13272
16. FTC Implementation of RFA, SBREFA, and 2/22/2023 Retransmitted 117th cong. Re-
EO13272 sponse on 3/14
17. HHS Implementation of RFA, SBREFA, and 2/22/2023 3/10/2023
EO13272
18. HUD Implementation of RFA, SBREFA, and 2/22/2023 3/16/2023
EO13272
19. IRS Implementation of RFA, SBREFA, and 2/22/2023 5/12/2023
EO13272
20. NLRB Implementation of RFA, SBREFA, and 2/22/2023 4/3/2023
EO13272
21. OSHA Implementation of RFA, SBREFA, and 2/22/2023 3/10/2023- same as DOL
EO13272 response
22. SBA Implementation of RFA, SBREFA, and 2/22/2023 1/19/2023
EO13272

48
23. SEC Implementation of RFA, SBREFA, and 2/22/2023 6/2/2023
EO13272
24. Treasury Implementation of RFA, SBREFA, and 2/22/2023 3/17/2023
EO13272
12/12/2022
25. VA Implementation of RFA, SBREFA, and 2/22/2023 4/18/2023
EO13272
26. FTC Eyeglass Rule 5/15/2023 5/26/2023
27. DOE Energy Conservation Program: Energy Conser- 5/16/2023 8/2/2023
vation Standards for Distribution Transformers
28. CFPB Credit Card Penalty Fees (Regulation Z) 5/17/2023 6/1/2023

29. BLM Conservation and Landscape Health 5/18/2023 8/7/2023

30. Federal Federal Acquisition Regulation: Disclosure of 6/9/2023 7/21/2023
Acquisition Greenhouse Gas Emissions and Climate-Related
Regulation Financial Risk
Council
(OMB)
31. United US Citizens and Immigration Servies Fee 6/9/2023 8/4/2023
States Schedule and Changes to Certain Other Immi-
Citizen and gration Benefit Request Requirements
Immigration
Services
32. DOE Energy Conservation Standards for Battery 6/22/2023 8/2/2023
Chargers
33. FDA Tobacco Product Standard for Characterizing 6/28/2023 10/18/2023
Flavors in Cigars
34. EPA Perchloroethylene (PCS); Regulation Under the 6/29/2023 8/29/2023
Toxic Substances Control Act (TSCA)
35. MSHA Lowering Miners’ Exposure to Respirable Crys- 7/20/2023 1/10/2024
talline Silica
36. DOL Lowering Miners’ Exposure to Respirable Crys- 7/20/2023 1/10/2024
talline Silica
37. EPA Multi-Pollutant Emissions Standards for Model 7/20/2023 10/17/2023
Years 2027 and Later Light-Duty and Medi-
um-Duty Vehicles
38. SEC Private Fund Advisers; Documentation of Reg- 7/27/2023 9/26/2023
istered Investment Adviser Compliance Reviews
39. BOEM Risk Management and Financial Assurance for 8/3/2023 4/14/2023
OCS Lease and Grant Obligations
40. EPA Lead Paint Standards 8/3/2023 No resp.

41. OSHA Improve Tracking of Workplace Injuries and 8/3/2023 9/15/2023
Illnesses
42. DOE Energy Conservation Program: Energy Conser- 8/24/2023 10/30/2023
vation Standards for Ceiling Fans
43. DOL Updating the Davis-Bacon and Related Acts and 9/28/2023 10/18/2023
Regulation
44. DOL Fair Labor Standards Act 9/28/2023 10/18/2023

49
45. ATF Change to Definition of “Engaged in the Busi- 10/12/2023 12/4/2023
ness of Selling Firearms”
46. BOEM Lease Sale 261 and Rice’s Whale 10/12/2023 4/11/2024

47. DOL & Lowering Miners’ Exposure to Respirable Crys- 11/2/2023 11/21/23
MSHA talline Silica – Insufficient Response
48. DOE Energy Conservation Program: Energy Conser- 11/2/2023 4/11/2024
vation Standards for Commercial Refrigerators,
Freezers, and Refrigerator-Freezers
49. CPSC Safety Standard for Residential Gas Furnaces 11/9/2023 1/5/2024
and Boilers; Correction

50. DOL OSHA Worker Walkaround Representative Designation 11/15/2023 1/31/2024
Process
51. OMB/ OIRA Tobacco Product Standard for Menthol in Ciga- 11/16/2023 2/1/2024
rettes
52. BOEM Lease Sale 261 and Rice’s Whale – Insufficient 11/20/2023 4/11/2023
Response
53. FDA Tobacco Product Standard for Characterizing 11/20/2023 No resp.
Flavors in Cigars - Insufficient Response
54. BIS/ Com- Gun Export Pause 12/5/2023 3/8/2024
merce
55. DOL Retirement Security Rule: Definition of an In- 12/7/2023 2/15/2024
vestment Advice Fiduciary
56. NLRB Joint Employer Status Under the National Labor 12/7/2023 1/4/2024
Relations Act
57. DOL Employee or Independent Contractor Classifica- 1/18/2024 2/6/2024
tion Under the Fair labor Standards Act

58. FTC CARS Rule 1/25/24 2/8/2024
59. EPA National Emission Standards for Hazardous Air 2/14/2024 4/24/2024
Pollutants: Commercial Ethylene Oxide (EtO)
Sterilization Technology Review

Methane

PFAS National Primary Drinking Water Regula-
tion Rulemaking

Reconsideration of the National Ambient
Air Quality Standards for Particulate Matter
(Pm2.5)

Clean Power Plant Rule
60. DOL National Apprenticeship System Enhancements 2/15/2024 4/29/2024

61. DOL/ OSHA RFA Follow Up 3/13/2024 No resp.

50
62. DOE RFA Follow Up 3/13/2024 No resp.

63. EPA RFA Follow Up 3/13/2024 No resp.

64. FTC Non-Compete Clause Rule 3/14/2024 4/15/2024

65. FTC RFA Fees 5/9/2024 No resp.

66. CFPB RFA Fees 5/9/2024 No resp.

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