June 7, 2012

SBA/Advocacy Letter to OIRA on Consensus Standards Activities

The attached letter from Winslow Sargeant, Chief Counsel for Advocacy to OIRA Administrator Sunstein provides SBA’s views in response to OMB’s “Request for Information on Federal Participation in the Development and Use of Voluntary Consensus Standards and In Conformity Assessment Activities.”  In the letter, Advocacy urged OMB to inlcude in Circular A-119 guidance on consideration of small entity interests through the Regulatory Flexibility Act (RFA).

The RFA requires federal agencies to assess the impact of their regulatory proposals on small entities and consider significant alternatives that are feasible, meet the agencies objectives, and minimize the burden on small entities. Advocacy recommends the following to enhance agency RFA compliance when using private technical standards in rulemaking:

Impacts include the cost of access to private technical standards.

To ensure agencies adequately consider the potential disproportionate effects of its rules on small entities, agencies should not assume that voluntary consensus standards universally reflect existing business practice. If an agency certifies a rule under section 605(b) of the RFA, the agency must have a factual basis that does not rely on the existence of the private technical standard.

Agencies should consider and request comment on regulatory alternatives that do not rely on private technical standards, particularly if the agency proposes to use a non-consensus standard.



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