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Rulemaking Requirements Concerning Small Entities

The DOT "Rulemaking Requirements"

The DOT has posted on this Web site a document that provides a brief summary of the Rulemaking Requirements affecting the rulemaking process in DOT.  Small entities interested in learning more about these requirements may want to review the document, which also contains links to the various legal requirements (e.g., statutes and executive orders).  Small entities may want to pay particular attention to the following requirements summarized in this document.

The Regulatory Flexibility Act

Among other things, this statute requires that (with exceptions) agencies prepare a regulatory flexibility analysis for proposed and final rules, if the agency cannot certify that the rule will not have a significant economic impact on a substantial number of small entities (SEIOSNOSE).  At DOT, we analyze the costs and benefits for all of our rulemakings to ensure that potential impacts of draft rules on small entities will be properly considered, and, where possible, we try to alleviate any disproportionate regulatory burden on small entities.  This statute also requires that we regularly review existing rules with a SEIOSNOSE to determine whether we can lessen or eliminate their burdens on small entities.  The DOT has a regular plan for the review of these rules.  Our plan and its results are published in the fall issue of our semiannual Regulatory Agenda.

The Small Business Regulatory Enforcement Fairness Act

Among other things, this statute requires educational outreach efforts to help small employers understand and better comply with our regulatory programs, we have continuing outreach efforts to improve our communication with small entities; educate our employees to be more sensitive to small entity concerns; provide training and other educational opportunities, such as training materials and modules that interested entities can reproduce and use, providing guidance on individual rules.

The Small Business Paperwork Relief Act of 2002

This statute institutes a process to make paperwork reduction an ongoing effort and introduces measures to make it easier for small businesses to comply with the law. Among other things, it

  • Requires the Office of Management and Budget to publish an annual list of compliance assistance resources available to small businesses in the Federal Register and on the Internet.
  • Requires each Federal agency to establish one point of contact to act as a liaison for small businesses” with respect to information collections and the control of paperwork.  The DOT’s point of contact is the Chief Information Officer (CIO) at 202-366-9201.
  • Requires each agency to make efforts to further reduce paperwork requirements for businesses with fewer than 25 employees.
  • Required agencies to report on their enforcement actions against small businesses and penalty reductions in such actions to Congress and the Small Business and Agricultural Regulatory Ombudsman so that they can monitor the regulatory burden reduction efforts of the Agencies.

Where feasible, DOT has eliminated unnecessary paperwork and simplified requirements to lessen the impact on small entities by consolidating multiple reports, licenses, and other documentation.  We allow electronic maintenance, submission, or disclosure of information, when practicable, as a substitute for paper and for the use and acceptance of electronic signatures, when practicable.

Executive Order 13272, "Proper Consideration of Small Entities in Agency Rulemaking"

The DOT carefully implements the requirements in Executive Order 13272 that Federal agencies take "appropriate account of the potential impact" of their rulemakings on small entities.  The purpose of the Executive Order is to ensure that regulatory agencies and the SBA Office of Advocacy work closely together as early as possible in the regulatory drafting process to address disproportionate impacts on small entities and appropriately reduce their regulatory burden.  The DOT works closely with the Office of Advocacy, taking advantage of its expertise and training.  We also welcome general and rulemaking specific comments from small entities.

Presidential Memorandum of March 4, 1995 (Regulatory Reinvention Initiative)

This memorandum, among other things, required that agencies substantially expand their use of negotiated rulemaking.  The DOT has been a leader in using negotiated rulemaking and welcomes suggestions for additional rulemakings where it would be helpful to use this process.

The memorandum also directs agencies to focus regulatory programs on results, not process.  The DOT has revised its job standards for regulatory enforcement positions to evaluate employees based on their facilitating compliance rather than by numbers of enforcement cases.  It also has a policy to provide for the reduction, and under appropriate circumstances for the waiver, of civil penalties for violations of a statutory or regulatory requirement by a small entity.  Under appropriate circumstances (e.g, where not prohibited by statute), an agency may consider ability to pay in determining penalty assessments on small entities.