[Senate Report 106-153]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 273
106th Congress                                                   Report
                                 SENATE
 1st Session                                                    106-153

======================================================================



 
  AMENDING PROVISIONS OF LAW ENACTED BY THE SMALL BUSINESS REGULATORY 
 ENFORCEMENT FAIRNESS ACT OF 1996 TO ENSURE FULL ANALYSIS OF POTENTIAL 
 IMPACTS ON SMALL ENTITIES OF RULES PROPOSED BY CERTAIN AGENCIES, AND 
                           FOR OTHER PURPOSES

                                _______
                                

               September 8, 1999.--Ordered to be printed

                                _______


Mr. Bond, from the Committee on Small Business, submitted the following

                              R E P O R T

                         [To accompany S. 1156]

    The Committee on Small Business to which the bill (S. 1156) 
to amend provisions of law enacted by the Small Business 
Regulatory Enforcement Fairness Act of 1996 to ensure full 
analysis of potential impacts on small entities of rules 
proposed by certain agencies, and for other purposes, was 
referred, having considered the same, reports favorably on the 
bill as amended and recommends that the bill do pass. The bill 
(S. 1156) amends provisions of law enacted by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) 
to ensure full analysis of potential economic and other impacts 
on small entities of rules proposed by certain agencies, and 
for other purposes. An amendment to the bill was offered by 
Senator Wellstone during the markup of the bill, and was 
accepted by the committee by unanimous consent.
    The Committee reported S. 1156 to improve the opportunities 
of small businesses to participate in the Federal rulemaking 
process and to include the Internal Revenue Service (IRS) of 
the Department of the Treasury in the small entity panel review 
process established under SBREFA in 1996. This legislation is 
in response to concerns raised by small businesses since the 
implementation of the SBREFA panel process.

                            I. INTRODUCTION

    In 1996, Congress passed the Small Business Regulatory 
Enforcement Fairness Act with the intent of ensuring that small 
businesses would be given an opportunity to participate 
directly in those rulemakings of certain Federal agencies that 
often have the most impact on them, namely those from the 
Occupational Safety and Health Administration (OSHA) and the 
Environmental Protection Agency (EPA). The signature provision 
of the Act was the requirement that OSHA and EPA convene panels 
consisting of personnel from the covered agency, a 
representative from the Office of Information and Regulatory 
Affairs within the Office of Management and Budget and the 
Chief Counsel for Advocacy of the Small Business 
Administration. In addition, individuals representative of 
small businesses affected by the regulation are to be selected 
to review the draft regulation and make recommendations to the 
panel about the potential impacts of the proposed rule. This 
was expected to yield better, more tailored rules, with less 
burden on small businesses.
    Since the implementation of SBREFA, there have been a total 
of 18 rulemakings from OSHA and EPA that have triggered the 
requirement to convene review Panels. These rulemakings have 
demonstrated the practicality and merits of bringing small 
business input into the process at the time it can have the 
most impact. The Small Business Advocacy Review Panel Technical 
Amendments Act of 1999 will refine that process so that small 
businesses will be able to participate to a greater extent and 
allow them additional time to review data and materials 
submitted to them by the agency during the process. In 
addition, the bill will bring the Internal Revenue Service, the 
agency that has perhaps the most impact on small businesses, 
into the Panel process by mandating the agency to convene 
panels for certain proposed rulemakings that will impact small 
businesses.
    Like the Regulatory Flexibility Act, which it amended, 
SBREFA is a remedial statute, designed to redress the fact that 
uniform Federal regulations impose disproportionate impacts on 
small entities, including small business, small not-for-
profits, and small governments. It is well settled that small 
businesses continue to face higher regulatory compliance costs, 
as a percentage of their gross revenues, than their big-
business counterparts. With the vast majority of businesses in 
this nation being small enterprises, it only makes sense for 
the rulemaking process to ensure that the concerns of such 
small entities get a fair airing early in the development of a 
Federal regulation.
    Consistent with the overall purpose of the Regulatory 
Flexibility Act and SBREFA, the objective of the panel process 
is to help agencies develop rules that will be effective while 
imposing the least possible burden on the small businesses 
affected. To date, the results have been encouraging. Chief 
Counsel for Advocacy, Jere Glover, has stated that ``Small 
entities have brought extremely valuable information to the 
regulatory deliberations of the panels. As a result, major 
changes have been made to the agencies' draft regulations. What 
is important to note is that these changes were accomplished 
without sacrificing the agencies' public policy objectives. 
Unquestionably, the SBREFA panel process has had a very 
salutary impact on the regulatory deliberations of [OSHA and 
EPA].'' (Annual Report of the Chief Counsel for Advocacy on 
Implementation of the Regulatory Flexibility Act, Calendar Year 
1998, page iv.)
    Another provision of SBREFA (Sec. 603(a)) requires the IRS 
to generate an Initial Regulatory Flexibility Analysis for 
interpretative rules to determine the impact of these rules on 
small businesses. However, the Treasury Department has 
interpreted this requirement in a way that all but eliminates 
its application. If the Treasury Department and the IRS had 
implemented SBREFA as Congress originally intended, the 
regulatory burdens on small businesses could have been 
identified and then reduced, and small businesses could have 
been saved considerable trouble in fighting unwarranted 
rulemaking actions.
    For instance, with input from the small business community 
early in the process, the IRS' 1997 temporary regulations on 
the uniform capitalization rules could have taken into 
consideration the adverse effects that inventory accounting 
would have on farming businesses, and especially nursery 
growers. See Temp. Treas. Reg. Sec. 1.263A-4T, 62 Fed. Reg. 
44542 (1997). Similarly, if the IRS had conducted an Initial 
Regulatory Flexibility Analysis, it would have learned of the 
enormous problems surrounding its limited-partner regulations 
prior to issuing the proposal in January 1997. See Prop. Treas. 
Reg. Sec. 1.1402(a)-2, 62 Fed. Reg. 1701 (1997). These proposed 
regulations, which have become known as the ``stealth tax 
regulations,'' wouldraise self-employment taxes on countless 
small businesses operated as limited partnerships or limited liability 
companies and also would impose burdensome new recordkeeping and 
collection of information requirements.
    Therefore, to make sure that the IRS properly considers the 
impact of tax regulations on small businesses, S. 1156 
specifically requires the Treasury Department and the IRS to 
comply with the Regulatory Flexibility Act and SBREFA when 
promulgating rules. In particular, the Committee expects that 
the IRS will conduct and publish Initial as well as Final 
Regulatory Flexibility Analyses. The bill also includes the IRS 
in the agencies required to convene Small Business Advocacy 
Review Panels as described under SBREFA. Coverage of the IRS 
under the panel process and the other technical changes are 
strongly supported by the Small Business Legislative Council, 
the National Association for the Self-Employed, the National 
Federation of Independent Business, the United States Chamber 
of Commerce, and many other organizations representing small 
businesses. It is also significant that the changes have the 
support of the Chief Counsel for Advocacy.

                      II. DESCRIPTION OF THE BILL

    The Small Business Advocacy Review Panel Technical 
Amendments Act of 1999 clarifies and amends certain provisions 
of law enacted as part of the Small Business Regulatory 
Enforcement Fairness Act of 1996.
    The bill focuses on Section 244 of the Small Business 
Regulatory Enforcement Fairness Act of 1996, which amended 
chapter 6 of title 5, United States Code (commonly known as the 
Regulatory Flexibility Act). As a result, each ``covered 
agency'' (which under current law is only OSHA and EPA) is 
required to convene a Small Business Advocacy Review Panel 
(panel) to receive advice and comments from small entities. 
Specifically, under Section 609(b), each covered agency is to 
convene a panel of Federal employees, representing the Office 
of Information and Regulatory Affairs within the Office of 
Management and Budget, the Chief Counsel of Advocacy of the 
Small Business Administration, and the covered agency 
promulgating the regulation, to receive input from small 
entities prior to publishing an Initial Regulatory Flexibility 
Analysis for a proposed rule with a significant economic impact 
on a substantial number of small entities. Not later than 60 
days after the panel is convened, it produces a report 
containing comments from the small entities and the panel's own 
recommendations. The report is provided to the head of the 
agency, who reviews it and, where appropriate, modifies the 
proposed rule, initial regulatory analysis, or the decision on 
whether the rule significantly impacts small entities. The 
panel report then becomes a part of the rulemaking record.
    In 1996, SBREFA expressly included the IRS under the 
Regulatory Flexibility Act directing the agency to conduct and 
publish Initial and Final Regulatory Flexibility Analyses. 
However, the Treasury Department has interpreted the law 
essentially to exclude the Treasury Department and the IRS from 
being covered. The Small Business Advocacy Review Panel 
Technical Amendments Act of 1999 clarifies which interpretative 
rules involving the Internal Revenue Code are to be subject to 
compliance with SBREFA, and thus with the Regulatory 
Flexibility Act. In addition, the IRS would be required, under 
the bill, to convene a Small Business Advocacy Review Panel for 
rules that would have a significant economic impact on a 
substantial number of small entities in the same way as OSHA 
and EPA have been doing since SBREFA went into effect. The 
Committee is confident that the IRS will be able to implement 
the panel process as required under the bill without 
jeopardizing tax administration just as OSHA and EPA have been 
able to implement the process without sacrificing their policy 
objectives.
    Specifically, the bill strikes the language in Section 603 
of title 5 that included IRS interpretative rules under the 
Regulatory Flexibility Act, ``but only to the extent that such 
interpretative rules impose on small entities a collection of 
information requirement.'' The Treasury Department has 
misconstrued this language in two ways. First, unless the IRS 
imposes a requirement on small businesses to complete a new 
OMB-approved form, the Treasury Department determines that the 
Regulatory Flexibility Act does not apply. In so doing, the IRS 
has failed to consider the burdens imposed on small business 
taxpayers of complying with new IRS regulations. Second, in the 
limited circumstances where the IRS has acknowledged imposing a 
new reporting requirement, the Treasury Department has limited 
its analysis of the impact on small businesses to the burden 
imposed by any new tax form with which a taxpayer must comply. 
As a result, the Treasury Department and the IRS have turned 
Regulatory Flexibility Act compliance into an unnecessary, 
second Paperwork Reduction Act.
    To address this problem, S. 1156 revises the fifth sentence 
in Section 603 to read as follows:

          In the case of an interpretative rule involving the 
        internal revenue laws of the United States, this 
        chapter applies to interpretative rules (including 
        proposed, temporary and final regulations) published in 
        the Federal Register for codification in the Code of 
        Federal Regulations.

    The remaining provisions of the bill address the mechanics 
of convening a panel, the selection of the small entity 
representatives invited to submit advice and recommendations to 
the panel, and the publication of the panel reports.
    This bill would lengthen, by 30 days, the time that small 
entity representatives, participating in the panel process, 
have to review the usually technical and voluminous materials 
to be considered during panel deliberations. The Committee is 
concerned that this task would be almost impossible for the 
average small businessperson who spends most of his or her time 
actually running a business. For those small business owners 
who would like to participate but do not have a great deal of 
time to review technical data, the bill requires OSHA, EPA and 
IRS to prepare detailed summaries of background data and 
information, if a small entity representative requests that 
they do so.
    The bill would also allow a small entity representative, if 
he or she chooses, to make an oral presentation to the panel. 
The Committee is aware that many small entity representatives 
expressed a desire to make oral presentations, and learned that 
this opportunity was not available. This bill would make it 
clear that agencies are to provide this opportunity.
    Many small entities have expressed their interest in 
reviewing the panel report before the rule is proposed. This 
bill would require the panel report, including any written 
comments submitted by the small entity representatives, to be 
printed in the Federal Register with the proposed rule, or as 
soon as practicable but not later than 180 days after the date 
the head of the agency receives the report.
    The role of the Chief Counsel for Advocacy in the selection 
of small entities to serve on the panels is enhanced by 
specifying that the selections are to be made by the agency 
promulgating the regulation ``in consultation'' with the Chief 
Counsel. The original bill language required that the Chief 
Counsel ``concur'' with the agency's selections. That language 
was changed to the ``consultation with'' language under an 
amendment submitted by Senator Wellstone. The Committee 
realizes that it is the agency who convenes these panels and 
appoints the small entity representatives who will participate. 
However, it is the Committee's expectation that the Chief 
Counsel's views on the selection of participants for a panel 
will be respected. The Committee wishes to emphasize the 
importance of effective, meaningful consultation between 
covered agencies and the Chief Counsel on the selection of 
small entity representatives for a panel. The Committee intends 
for covered agencies to rely on the Chief Counsel as a resource 
for identifying small entity representatives to participate in 
the process and to accommodate suggestions from the Chief 
Counsel for panel participants, if possible. The Chief Counsel 
has significant and specific expertise with SBREFA, and 
therefore, his opinions and suggestions should carry 
significant weight.
    The bill also expands the definition of a small entity to 
make clear that an organization that ``primarily represents the 
interests of 1 or more small entities'' may participate in the 
Panels. Through another amendment offered by Senator Wellstone, 
this expansion was clarified to provide that only those 
organizations that ``primarily'' represent small businesses 
would qualify to participate in the panel process. This 
amendment addressed a concern that organizations that are 
dominated by large entities could have been considered small 
entity representatives under the original bill language. 
Individuals representing ``primarily'' small entities are also 
permitted to participate in the panel process.
    The Committee's intention is to ensure that the small 
entities and businesses that are affected by regulations from 
OSHA, EPA, and IRS have the opportunity to participate directly 
in the rulemaking process at the point when their views can 
have the most effect. In short, the bill is intended to 
continue and expand on the early success that EPA and OSHA have 
shown this process has for small businesses.

                          III. COMMITTEE VOTE

    In compliance with rule XXVI(7)(b) of the Standing Rules of 
the Senate, the following vote was recorded on July 15, 1999.
    After a quorum was established pursuant to Committee rules, 
amendments offered by Senator Wellstone were adopted under 
unanimous consent, and then a motion by Senator Bond to adopt 
the Small Business Advocacy Review Panel Technical Amendments 
Act of 1999, S. 1156, as amended by Senator Wellstone, was 
approved unanimously with the following senators voting to 
approve: Bond, Kerry, Burns, Coverdell, Bennett, Snowe, Enzi, 
Fitzgerald, Crapo, Abraham, Levin, Harkin, Lieberman, 
Wellstone, Cleland, Landrieu, Edwards.

                  IV. EVALUATION OF REGULATORY IMPACT

    In compliance with rule XXVI(11)(b) of the Standing Rules 
of the Senate, it is the opinion of the Committee that no 
significant additional regulatory impact will be incurred in 
carrying out the provisions of this legislation. There will be 
no additional impact on the personal privacy of companies or 
individuals who utilize the services provided.

                            V. COST ESTIMATE

    In compliance with rule XXVI(11)(a)(1) of the Standing 
Rules of the Senate, the Committee estimates the cost of the 
legislation will be equal to amounts indicated by the 
Congressional Budget Office in the following letter.

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, July 26, 1999.
Hon. Christopher S. Bond,
Chairman, Committee on Small Business,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 1156, the Small 
Business Advocacy Review Panel Technical Amendments Act of 
1999.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Mark Hadley 
and Cynthia Dudzinski.
            Sincerely,
                                          Barry B. Anderson
                                    (For Dan L. Crippen, Director).
    Enclosure.

S. 1156--Small Business Advocacy Review Panel Technical Amendments Act 
        of 1999

    CBO estimates that implementing S. 1156 would cost between 
$13 million and $15 million a year over the 2000-2004 period, 
assuming appropriation of the necessary amounts. S. 1156 would 
not affect direct spending or receipts; therefore, pay-as-you-
go procedures would not apply. The bill contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act and would not affect the budgets 
of state, local, or tribal governments.
    Under the Small Business Regulatory Enforcement Fairness 
Act of 1996 (SBREFA), the Environmental Protection Agency (EPA) 
and the Occupational Safety and Health Administration (OSHA) 
must convene panels, prior to publishing regulations, to 
analyze the potential impact of those regulations on small 
businesses. Panels consist of employees of the agency proposing 
the regulation, the Small Business Administration (SBA), and 
the Office of Management and Budget (OMB). Panels collect 
advice from representatives of the small businesses that would 
be affected and submit a report to the agency proposing the 
regulation.
    S. 1156 would amend SBREFA to include the Internal Revenue 
Service (IRS), thus requiring that agency to convene panels to 
analyze the regulations it intends to issue, including 
interpretive rules involving U.S. internal revenue laws. The 
bill also would change the panel process by allowing small 
business representatives to make oral presentations to panels, 
extending the period of review, requiring agencies to print 
reports by panels in the Federal Register, and making agencies 
provide more information.
    Based on the number of regulations the IRS expects to issue 
each year and the experiences of EPA and OSHA, CBO estimates 
that implementing S. 1156 would cost the IRS about $13 million 
in 2000, and similar amounts in subsequent years. Annual costs 
would rise gradually to about $15 million by 2004. We expect 
that the bill would apply to about 50 IRS regulations each 
year. In addition, CBO estimates that implementing the changes 
to the panel review process would cost EPA, OSHA, OMB, and SBA 
less than $500,000 a year.
    On May 28, 1999, CBO transmitted an estimate for H.R. 1882, 
the Small Business Review Panel Technical Amendments Act of 
1999, as ordered reported by the House Committee on Small 
Business on May 25, 1999. CBO estimated that bill would cost 
about $2 million each year over the 2000-2004 period. H.R. 1882 
would not apply to interpretive rules issued by the IRS; 
therefore, CBO expects that it would apply to fewer than 10 
regulations each year.
    The CBO staff contacts are Mark Hadley and Cynthia 
Dudzinski. This estimate was approved by Robert A. Sunshine, 
Deputy Assistant Director for Budget Analysis.

                         VI. SECTION BY SECTION

Section 1. Short title

    This Act may be cited as the ``Small Business Advocacy 
Review Panel Technical Amendments Act of 1999.''

Section 2. Findings and purposes

    This section sets forth Congressional findings on the 
impact of regulations on small businesses and the early 
successes of the Small Business Regulatory Enforcement Fairness 
Act.

Section 3. Ensuring full analysis of potential impacts on small 
        entities of rules proposed by certain agencies

    This section clarifies the process for selection of the 
small entity representatives and the timing of the panel's 
activities. Small entity representatives affected by the draft 
proposal are to be identified by the covered agency in 
consultation with the Chief Counsel for Advocacy. The number of 
days provided for this process is extended from 15 to 30 days. 
The panel is to be convened not earlier than 30 days after the 
covered agency transmits information to the identified small 
entity representatives. Small entity representatives may 
request the opportunity to present their comments orally. The 
panel report is to be printed in the Federal Register within 
180 days after the date the agency head receives the report or 
as part of the publication of the notice of proposed 
rulemaking, whichever is earlier.

Section 4. Definitions

    This section expands the definition of a ``covered agency'' 
to include the Internal Revenue Service. Currently, only EPA 
and OSHA are included. The definition of a ``small entity 
representative'' eligible to participate on a Panel is also 
specified as a small entity, or an individual or organization 
that ``primarily represents the interests of 1 or more small 
entities.''

Section 5. Collection of information requirement

    This section deletes language that limited the scope of IRS 
interpretative rules covered by The Regulatory Flexibility Act. 
It amends Section 601 to strike the definitions for 
``collection of information'' and ``recordkeeping.'' Also, the 
section amends the fifth sentence in Section 603(a) to read:

          In the case of an interpretative rule involving the 
        internal revenue laws of the United States, this 
        chapter applies to interpretative rules (including 
        proposed, temporary and final regulations) published in 
        the Federal Register for codification in the Code of 
        Federal Regulations.

Section 6. Effective date

    This section provides that the Act will be effective 90 
days after the date of enactment.

                      VII. CHANGES IN EXISTING LAW

    In the opinion of the Committee, it is necessary to 
dispense with the requirement of Section 12 of rule XXVI of the 
Standing Rules of the Senate in order to expedite the business 
of the Senate.

                                  
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