by Stephanie Fekete, Director of Interagency Affairs
The Office of Advocacy (Advocacy) advances the views and concerns of small businesses before Congress, the White House, federal agencies, federal courts, and state policymakers. Attorneys in the Office of Interagency Affairs (Interagency) do this by monitoring the impacts of proposed regulations on small businesses. However, many of the small businesses that engage with these regulations think of them as coming directly from the agencies themselves and don’t quite understand how the process works in Washington.
When Americans think of how their government works, they often remember what they were taught in civics classes. Congress passes a bill that solves a problem, and the President signs the bill into law. In many cases, Congress directs a federal agency to create a regulation (also known as a rule), which is essentially a blueprint that explains the law and how Americans can follow it. These regulations spell out the actions the law requires, those it prohibits, and the penalties for failing to comply.
To ensure that federal agencies do not abuse this power, a law called the Administrative Procedure Act establishes standards for agencies to make regulations. However, as a balancing measure, it also provides requirements for agencies to inform the public about which rules are under consideration and requires agencies to take feedback from the public about these regulations. This process is called “notice-and-comment” because agencies must grant notice that they are crafting regulations, and they must accept comments from any member of the American public.
In practice, agencies announce what is called an advance notice of proposed rulemaking in the Federal Register. This allows for an initial round of information gathering for the agency, which it then uses to develop a proposed rule. Think of the advance notice of proposed rulemaking as a project idea and a proposed rule as the first draft of the blueprint.
Like any good blueprint, the proposed rule needs to be examined carefully to ensure that it does an adequate job. For a regulation, there are two critical steps. If the rule is a significant regulatory action, an office in the White House, the Office of Information and Regulatory Affairs (OIRA), vets the proposed rule to ensure the quality of the rule. At this step, any member of the public can weigh in through what is called a “12866 meeting,” which is a special listening session held between federal regulators and interested parties. Once approved by OIRA, the agency will then publish the proposed rule for public comment.
Once the agency receives public comments on the proposed rule, the agency revises the proposed rule and drafts a final rule. This rule goes back to OIRA for a final review, and after, it is published in the Federal Register.
Part of Advocacy’s mission is to ensure that these rules do not disproportionately impact small entities, including businesses, non-profits, and governments. Advocacy works throughout this process to amplify your voice through the following steps:
- Advocacy reviews advance notices of proposed rulemaking and issues regulatory alerts on regulations that could impact small businesses.
- Advocacy solicits feedback on advance notices of proposed rulemaking and proposed rules in online roundtables.
- Advocacy works with federal regulators to solve problems before proposed rules are issued.
- Advocacy has prepared materials on how to write an effective comment letter in the advance notice of proposed rulemaking and proposed rule stages.
- Advocacy participates in 12866 meetings when requested by a member of the public.
- Advocacy issues comment letters on proposed rules when we believe small business needs are not adequately addressed.
While Advocacy works hard on your behalf, nothing can replace small business participation in the rulemaking process. Our team encourages you to participate in Advocacy roundtables and write comment letters directly to agencies if you feel a new regulation will disproportionately harm your business.