Earlier this year, President Obama issued Executive Order 13,563, requiring all Executive branch federal agencies to establish procedures for a retrospective review all of their existing regulations. Initially, I was hopeful this review would yield real results; that the President had finally heard the pleas of our small business community and was ready to give them the tools necessary to expand their businesses and create jobs.
In late August, the White House released the final plans of this review and their plan to move forward, claiming that many of their changes were focused specifically on small businesses. Unfortunately, the reality is that this plan is nothing more than smoke and mirrors. It focuses on modest, cost-cutting measures such as reduced paperwork, but does nothing to confront the most problematic and debilitating federal regulations that are crippling our small businesses.
For instance, independent regulatory commissions like the SEC and the Federal Reserve do not fall under the jurisdiction of Executive Order 13,563. As a result, this review does not include regulations created by Dodd-Frank, which are some of the most burdensome for small businesses. Further, loopholes in the Executive Order could allow agencies to repeal or modify rules and then impose that same "requirement" later on through a different process.
The answer to our overregulation problem cannot be solved with just a review. In fact, from 1978 to 2004 there have been seven reviews similar to Executive Order 13,563, yet our regulatory environment is more out-of-control than ever. In 1980, Congress even took on regulatory reform, passing the Regulatory Flexibility Act (RFA), legislation aimed at relieving the stress of onerous regulation on small businesses. The RFA mandates that all federal agencies examine the impact of their proposed rules on small businesses, and if those impacts are significant, the agency must consider less burdensome alternatives.
Quite simply, if agencies adhered to the RFA from the onset, the need for these presidentially mandated retrospective reviews would be eliminated. Unfortunately, loopholes and inadequacies have allowed many agencies to avert the RFA's requirements. Earlier this year, I sponsored two bills aimed at strengthening the RFA; the Small Business Size Standard Flexibility Act of 2011 (H.R. 585) and the Regulatory Flexibility Improvements Act of 2011 (H.R. 527). These two bills would close loopholes used by agencies to avoid compliance with the RFA.