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Federal Rulemaking Process for Significant Regulatory Actions SBA Rulemaking to Help Small Business Receive Federal Contract Awards

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Federal Rulemaking Process for Significant Regulatory Actions SBA Rulemaking to Help Small Business Receive Federal Contract Awards SBA Government Contracting and Business Development U. S. Small Business Administration Small Business Administration (SBA) and the Federal Rulemaking Process for Significant Regulatory Actions SBA Rulemaking To Help Small Business Receive Federal Contract Awards The SBA is required to make rules in order to carry out its responsibility to level the playing field and help Small Business concerns receive a fair share of government contracts. It is a simple process but it is shaped by numerous statutory and regulatory requirements. This presentation presents that process in 12 steps that are discussed in the materials that follow. SBA Rulemaking To Help Small Business Receive Federal Contract Awards Congress Passes Statute SBA Develops Draft Proposed Rule Internal Agency Clearance: Review/Approval of Draft Proposed Rule within SBA OMB/OIRA Review of Draft Proposed Rule Publication of Notice of Proposed Rulemaking Public Comments Response to Comments/Development of Draft Final Rule Internal Agency Clearance Review/Approval of Draft Final Rule OMB/OIRA Review of Draft Final Rule Publication of Final Rule Rule Takes Effect Implement Rule through FAR Change SBA Rulemaking To Help Small Business Receive Federal Contract Awards The Administrative Procedure Act of 1946 defines a rule as “the whole or part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy.” The Federal rulemaking process consists of a set of procedures that federal agencies are required to follow when writing regulations. These procedures reflect various statutes as well as Executive Orders. This presentation provides an overview of the steps in that process. The first step in the process that initiates rulemaking is the statutory requirement. Congress Passes Statute The Federal rulemaking process often begins when the President signs a law passed by Congress that either requires or authorizes an agency to write and issue regulations. For SBA, the Small Business Act is the primary statute that initiates the need for issuance of a rule. Other legislation may cause issuance of a rule when it requires a change to a procurement factor that impacts the Small Business community. Examples of other legislation includes the Small Business Jobs Act of 2010 and various annual National Defense Authorization Acts that impact procurement and Small Business programs. Unanticipated changes in technology, decisions from appeals and protests, or other regulations may require SBA to revise previously issued rules. SBA Rulemaking To Help Small Business Receive Federal Contract Awards SBA Develops Draft Proposed Rule SBA drafts proposed rules to amend or change existing rules contained in the Code of Federal Regulations. These rules implement the Small Business Act and are intended to provide Small Business concerns a fair opportunity to receive government contracts. These rules may impact all Small Businesses or provide rules for a specific Small Business program such as sole source awards for Woman Owned Small Business, Price Evaluation Preference for HUBZone Small Business, Set Aside procurements for Service Disabled Veteran Owned Small Business, Mentor Protégé Programs, and the 8(a) Business Development Program. These rules also establish the procurement authorities and responsibilities that help the SBA and the 24 Chief Financial Officer Agencies strive to meet the government-wide prime contracting goal (23% of all eligible contract awards) as well as individual socio-economic goals for Small Disadvantaged Business (5%), Historically Underutilized Business Zone (3%), Service Disabled Veteran Owned Small Business (3%) and Woman Owned Small Business (5%) concerns. SBA Rulemaking To Help Small Business Receive Federal Contract Awards Internal Agency Clearance: Review/Approval of Draft Proposed Rule within SBA Within SBA, the draft proposed rule undergoes a review and approval process where all stakeholders have an opportunity to address their functional equities. For example, the Office of Government Contracting and Business Development would receive comment from internal components such as the HUBZone Program Office, Office of Government Contracting , Woman Owned Small Business program, Office of Business Development, and the All Small Mentor Protégé Program Office. Additional clearances would include the Office of General Counsel, Office of Advocacy, Office of Hearings and Appeals, Office of Inspector general and other organizational elements. Once all comments and concerns are addressed, the draft proposed rule would be revised and sent to the Administrator for signature. SBA Rulemaking To Help Small Business Receive Federal Contract Awards OMB/OIRA Review of Draft Proposed Rule The Office of Management and Budget’s (OMB) Office of Information and Regulatory Affairs (OIRA) provides presidential review of SBA’s rulemaking. SBA must submit significant rules to OIRA for review, and often must submit rules that are not significant (less than $100 million impact) but which have an impact on the government contracting community. OMB provides the rule to all Federal agencies for comment. This process typically takes 90 days, but can take longer or less time. In addition to assuring that the proposed draft rule appropriately reflected the statutory requirements, the OMB OIRA would make a determination whether the rule is a significant regulatory action requiring a Regulatory Impact Analysis for purposes of Executive Order 12866 or rose to the level of a major rule under the Congressional Review Act. OMB OIRA assures compliance with Executive Orders (EO) and other statutory requirements, including the areas paraphrased below: - EO 12866 - Regulatory Impact Analysis - EO 13563 - Public Comment, Open Exchange of Information, Consultation with Stakeholders - EO 12988 - Civil Justice Reform - EO 13132 – Federalism Implications - Paperwork Reduction Act - Regulatory Flexibility Act SBA Rulemaking To Help Small Business Receive Federal Contract Awards The Administrative Procedure Act (APA) has the broadest impact on federal rulemaking. The APA generally requires publication of a notice in the Federal Register of proposed rulemaking. The notice provides the terms or substance of the proposed rule, the legal authority, and the particulars of the rule making proceedings. It also provides an opportunity for interested persons to comment on the proposed rulemaking. SBA Rulemaking To Help Small Business Receive Federal Contract Awards Public Comments Generally an agency must provide a minimum of 30 days for public comment, but usually a comment period of 60 days is recommended. In the notice of proposed rulemaking, SBA provides a number of means to provide comment on proposed rulemaking: - On-Line: Federal eRulemaking Portal: http://www.regulations.gov - By Mail or Hand Delivery/Courier: paper, disk, or CD/ROM submissions to: U.S. Small Business Administration Office of Policy, Planning and Liaison 409 Third Street, SW 8th Floor Washington, DC 20416 SBA posts all comments on www.regulations.gov Individuals, companies, trade groups, members of Congress and others may comment on the rule. SBA Rulemaking To Help Small Business Receive Federal Contract Awards Response to Comments/Development of Draft Final Rule After the SBA considers all public comments received, the SBA may use suggestions, in whole or in part, to adjust the proposed rulemaking. The SBA will post all public comments on www.regulations.gov together with other supporting materials (e.g., hearing records, regulatory studies) that are placed in a rulemaking docket for public inspection. SBA Rulemaking To Help Small Business Receive Federal Contract Awards Internal Agency Clearance Review/Approval of Draft Final Rule within SBA After disposition of public comment and revision (if needed) of the proposed rulemaking, SBA begins the process of publishing the final rule. SBA drafts a final rule and conducts an internal agency clearance for approval within SBA of the proposed final rule, similar to the process for a proposed rule, i.e., all offices within SBA are provided an opportunity to comment on the final rule prior to signature by the Administrator. SBA Rulemaking To Help Small Business Receive Federal Contract Awards OMB/OIRA Review of Draft Final Rule After internal clearance and approval of the draft final rule, SBA submits it to OMB Office of Information and Regulatory Affairs (OIRA) for review in accordance with applicable Executive Orders (e.g., EO 12866, EO 13422, EO 13563). The final rule is made available to other federal agencies for comments. This process generally takes 90 days, but may be longer or shorter. OIRA also must review the rule for compliance with Executive Orders and other laws applicable to rulemaking. SBA Rulemaking To Help Small Business Receive Federal Contract Awards Publication of Final Rule After receiving approval from OMB Office of Information and Regulatory Affairs (OIRA), SBA proceeds to publish the final rule in the Federal Register. A rule is typically effective 30 days after publication in the Federal Register, but may be effective later or earlier as circumstances dictate. For example, the effective date of a rule may be delayed if system changes are required and have not been completed, such as changes to System for Award Management or the electronic Subcontracting Reporting System. SBA Rulemaking To Help Small Business Receive Federal Contract Awards Rule Takes Effect Rules that pertain solely to SBA, such
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