Re: Fwd: USDA Regulatory Flexibility Analysis

sal (sals@rain.org)
Tue, 28 Apr 1998 07:45:53 -0700

you are wrong on this from what I read. this is just what the Flexibility act
covers to my reading.
On March 29, 1996, President Clinton signed the Small Business Regulatory
Enforcement Fairness Act. Among other things, the new law amends the
Regulatory
Flexibility Act of 1980 to allow judicial review of an agency’s compliance
with
the law. This new provision gives small businesses a powerful tool to ensure
that
agencies are considering the impact of their actions on small business, small
farmers, small handlers and small certifiers. The Regulatory Flexibility Act
(RFA), first
enacted in 1980, offers small businesses, working with federal regulators, a
unique opportunity to root out some of the institutional biases that work
against the small
entrepreneur. The law recognizes that the size of a business, unit of
government, or nonprofit organization frequently has a bearing on its ability
to comply with a
federal regulation. For example, the costs of complying with a particular
regulation--measured in staff time, direct compliance costs, recordkeeping,
outside expertise
and other costs--may be manageable for a business with 500 or more employees,
or revenue in the millions of dollars. On the other hand, a smaller company
may
not have the ability to absorb the expenses as easily, to set competitive
prices, to devise innovations or even to continue as a viable entity. Whereas
larger firms may
take advantage of economics of scale, smaller entities have less output from
which to recover a relatively larger percentage of expenses. The RFA was
designed to
place the burden on the government to review all regulations to ensure that,
while accomplishing their intended purposes, they do not unduly inhibit the
ability of small
entities to compete.

Each initial regulatory flexibility analysis required under the Regulatory
Flexibility Act shall contain a description of the projected reporting,
recordkeeping and other
compliance requirements of the proposed rule, including an estimate of the
classes of small entities which will be subject to the requirement and the
type
of
professional skills necessary for preparation of the report or record.
Furthermore, each initial analysis shall contain a description of any
significant alternatives to the
proposed rule which would accomplish the stated objectives of OFPA and which
minimize any significant economic impact of the proposed rule on small
entities.
Consistent with stated objectives of applicable statues ( in this case OFPA)
the analysis shall discuss significant alternatives such as--(1) the
establishment of differing
compliance or reporting requirements or timetables that take into account the
resources available to small entities; (2) the clarification,
consolidation, or
simplification
of compliance and reporting requirements under the rule for such small
entities; (3) the use of performance rather than design standards; and (4) an
exemption from
coverage of the rule, or any part thereof, for such small entities. (5 USC
603(c))

The final regulatory flexibility analysis: (a)When an agency promulgates a
final rule under section 553 (5 USC, Rule making) of this title, after being
required by that
section or any other law to publish a general notice of proposed rulemaking,
the agency shall prepare final regulatory flexibility analysis. Each final
regulatory flexibility
analysis shall contain-- 1. a succinct statement of the need for, and the
objectives, of the rule; 2. a summary of the issues raised by the public
comments in response
to the initial regulatory flexibility analysis, a summary of the assessment of
the agency of such issues, and a statement of any changes made in the proposed
rule as a
result of such comments; and 3. a description of each of the significant
alternatives to the rule consistent with stated objectives of applicable
statutes and designed to
minimize any significant economic impact of the rule on small entities which
was considered by the agency, and a statement of the reasons why each one of
such
alternatives was rejected. (5 USC 604)

Periodic review of rules: The Regulatory Flexibility Act directs agencies to
review all rules at least once every 10 years. It says: (b) In reviewing rules
to minimize any
significant economic impact of the rule on a substantial number of small
entities in a manner consistent with the stated objectives of applicable
statutes, the agency
shall consider the following factors-- 1. the continued need for the rule; 2.
the nature of complaints or comments received concerning the rule from the
public; 3. the
complexity of the rule; 4. the extent to which the rule overlaps,
duplicates or
conflicts with other Federal rules, and, to the extent feasible, with State
and
local
governmental rules; and 5. the length of time since the rule has been
evaluated
or the degree to which technology, economic conditions, or other factors have
changed in he area affected by the rule. (5 USC 610)

Reports and intervention rights: The Regulatory Flexibility Act says: (a) The
Chief Counsel for Advocacy of the Small Business Administration shall monitor
agency
compliance with The Regulatory Flexibility Act and shall report at least
annually thereon to the President and to the Committees on the Judiciary of
the
Senate and
House of Representatives, the Select committee on Small Business of the
Senate,
and the Committee on Small Business of the House of Representatives. (b) The
Chief Counsel for Advocacy of the Small Business Administration is authorized
to appear as amicus curiae (as a person called into advise the court on
compliance or
other legal matters) in any action brought in a court of the United States to
review a rule In any such action, the Chief Counsel is authorized to present
his views with
respect to the effect of the rule on small entities. (5 USC 612) At 09:56 PM
4/26/98 -0400, Daniel Worley wrote:
>Sal and the BD List;
>
>  I hate to throw cold water on such a good idea, but the $5,000.00 gross
>income limit is not a proposed part of the rules.  It is already codified
>in the OFPA and therefore I believe excempt from the RFA rules.
>
>  In this particular point, the USDA has no choice but to follow the law
>(OFPA), although I personally don't think they were unhappy about that point.
>
>  The only way I know of to increase the gross income allowed in the
>definition of a small operator (farmer or handler) is to convince your
>Congress Critter to change the law.
>
>
>At 09:59 4/26/98 -0700, sal wrote:
>>>Date: Sun, 26 Apr 1998 08:18:00 -0700
>>>Reply-To: organic-certification@listserv.oit.unc.edu
>>>Sender: owner-organic-certification@listserv.oit.unc.edu
>>>From: "S. Moore" <sfmoore@earthlink.net>
>>>To: "BIODYNAMIC MAIL LIST (E-mail)" <bd-l@biodynamics.com>,
>>>        "Lawrence London (E-mail)" <london@sunsite.unc.edu>,
>>>        <organic-certification@listserv.oit.unc.edu>
>>>Subject: USDA Regulatory Flexibility Analysis
>>>X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0
>>>
>>>In the uproar over the absurdity of USDA's proposed rules I have heard or
>>>seen very little about the Regulatory Flexibility Act analysis contained
>>>therein.  I believe this could provide a legal pathway for virtually all
>>>organic growers to seek relief from the insanity that USDA seeks to visit
>>>upon us.  The RFA, as amended in 1996, provides that a small business which
>>>is adversely affected by agency action is entitled to judicial review of
>>>agency compliance with certain aspects of RFA.  The agency is required to
>>>prepare an analysis of the economic impact on small entities of its
>>>regulatory action.  All of this appears to me to be a possible legal
path to
>>>overcome one of the worst features of OFPA, mandatory certification.
>>>However, as with all other aspects of the rule making process, these issues
>>>probably need to be raised during the public comment period.  The comments
>>>on RFA, which I am submitting personally and on behalf of the BD
>>>Association, are presented below.  I urge other concerned parties to also
>>>submit comments to USDA on this issue.
>>>
>>>Steve Moore
>>>Moore Ranch
>>>Carpinteria, CA
>>>sfmoore@earthlink.net
>
> (Comments cut in the interest of brevity in this note)
>
>
>
>  --Dan in Sunny Puerto Rico--
>    ddworley@caribe.net
>    dan.worley@mindless.com
>
An organic growers homepage check out

http://www.rain.org/~sals/my.html

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