Small Entities and Rulemaking
Potential SBAR Panel: CERCLA 108(b) Hard Rock Mining Financial Assurance Proposed Rule
Top Three Questions
- What is a Small Business Advocacy Review Panel?
- What is a Small Entity Representative (SER)?
- Who is eligible to be a SER?
What is the Implication of the CERCLA 108(b) Hardrock Mining Financial Assurance Proposed Rule on Small Entities?
Financial responsibility requirements help ensure that owners and operators of these facilities, and not taxpayers, pay for environmental cleanup. These requirements will be developed under section 108(b) of the Comprehensive Environmental Response, Compensation and Liability Act, commonly called "Superfund."
In an earlier Federal Register notice, EPA identified classes of facilities within the hardrock mining industry as those for which EPA will first develop financial responsibility requirements under section 108(b). In the notice, EPA defined hard rock mining as the extraction, beneficiation or processing of metals and non-metallic, non-fuel minerals.
The Regulatory Flexibility Act requires EPA to establish a federal panel for rules that may have a significant economic impact on a substantial number of small entities.
Additional information about the CERCLA 108(b) Hardrock Mining Financial Assurance Proposed Rule is updated and available on EPA's Superfund Financial Responsibility page.
What is a Small Business Advocacy Review Panel?
EPA expects to conduct a Small Business Advocacy Review (SBAR) Panel for the development of a proposed rulemaking that would require owners and operators of certain hardrock mining and mineral processing facilities to demonstrate financial responsibility to address CERCLA liabilities at their facilities.
The Regulatory Flexibility Act as amended by the Small Business Regulatory Enforcement Fairness Act (RFA/SBREFA) requires EPA to convene an SBAR Panel for a proposed rule unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The Panel process offers an opportunity for small businesses, small governments, and small not-for-profit organizations (collectively referred to as small entities) to provide advice and recommendations to ensure that EPA carefully considers small entity concerns regarding the impact of the potential rule on their organizations. The Panel itself is comprised of federal employees from EPA, the Office of Management and Budget (OMB), and the Office of Advocacy in the Small Business Administration (SBA). Small Entity Representatives (SERs) provide advice and recommendations to the Panel. Typically, EPA prefers that SERs be small business owners or operators, small organization officials, or small government officials. Other representatives, such as trade associations that exclusively or at least primarily represent potentially regulated small entities, also may serve as SERs. These other representatives are evaluated on a case-by-case basis.
Information about what constitutes a "small business" is available at the SBA's web page on size standards A "small government" is defined as a jurisdiction serving a population of 50,000 residents or fewer. A "small organization" is defined as any "not-for-profit enterprise which is independently owned and operated and is not dominant in its field." To learn more, review EPA's Small Entities and Rulemaking - Frequent Questions web page.
How Can I Get Involved?
If you are a small entity that may be subject to a proposed rule establishing financial responsibility requirements for facilities within the hard rock mining industry, you are eligible to serve as a SER. As mentioned above, other representatives that exclusively or at least primarily represent potentially regulated small entities may also serve as SERs. The role of a SER is to provide advice and recommendations to ensure that the Panel carefully considers small entity concerns regarding the potential rule's impact on their organizations and to communicate with other small entities within their sector who do not serve as SERs.
You may nominate yourself to serve as a SER by following the directions in the next section. Depending on the volume of responses, EPA may not be able to invite all eligible candidates to participate as SERs. Generally, SERs will be asked to review background information, listen to informational briefings, and provide oral and written advice and recommendations to the Panel. At least one face-to-face meeting is typically held with the SERs in Washington, DC; a toll-free conference line is provided for this meeting.
Who Should I Contact?
- qualify as "small" under SBA's definition AND expect to be directly subject to requirements of the proposed rule; or
- exclusively represent or at least primarily represent potentially regulated small entities (e.g., a trade association that exclusively or primarily represents small entities). Nominees such as these will be evaluated on a case by case basis.
Individuals who are interested in potentially serving as a SER should send a message to RFA-SBREFA@epa.gov or call Lanelle Wiggins at 202-566-2372 by no later than July 6, 2015. In the message, please provide:
- Your name
- Name of your company, governmental jurisdiction, or not-for-profit organization
- Size of your company, governmental jurisdiction, or not-for-profit organization
- If you are representing a business, you may confirm that your business meets the definition of "small" by consulting SBA's web page on size standards. Please provide the primary North American Industry Classification System (NAICS) code for your firm; the size standard for your industry; and whether your average annual receipts or average annual employment for your firm is above or below the size standard for your industry. Note that a 'firm' includes parent company and all subsidiaries.
- A small governmental jurisdiction means governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than 50,000.
- A small organization means any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
- If you are with a group such as a trade association that represents small entities potentially subject to the rulemaking, please provide information about your membership, the number of small members in your organization, and a qualitative statement describing how your group can truly represent only the unique interests of your members that qualify as small entities.
- Contact information (preferably, a minimum of a phone number and email address)
Email nominations should be submitted with the subject line, "SER Self-Nomination for CERCLA 108(b) Hardrock Mining Financial Assurance Proposed Rulemaking." Please check back for updates and remember: Depending on the volume of responses, EPA may not be able to invite all qualified candidates to participate as SERs.