The Small Business Regulatory Enforcement Fairness Act (SBREFA)
SBREFA, the National Ombudsman, and FSIS

The Small Business Regulatory Enforcement Fairness Act (SBREFA) is a regulatory reform statute that was passed by the 104th Congress and signed into law by President Clinton March 29, 1996. SBREFA (Public Law 104-121) contains a variety of provisions, some affecting Federal Agency regulations. For example, SBREFA provides for Congressional review of Federal regulations, including those promulgated by FSIS, before the regulations can take effect.

SBREFA also provides a number of protections for small businesses against what they may regard as unfair actions by Federal regulatory agencies. Thus, SBREFA gives small businesses expanded authority to go to court and seek awards for attorneys' fees and costs when an Agency has been found excessive in its enforcement of regulations. Also, each Federal Agency is required to establish a policy to provide for the reduction, and in some circumstances, the waiver of civil penalties for violations of a regulation.

FSIS currently has authority to impose civil penalties only for violations of the shell-egg storage and handling regulations. The Agency's policy for enforcing these regulations is articulated in FSIS Directive 8840.1. After finding violations of the temperature or labeling requirements in these regulations, FSIS may issue letters of information or warning or "present your views" letters, or take other appropriate action. In addition, FSIS may seek appropriate criminal or civil penalties. In assessing civil penalties, the Agency takes into account the gravity of the violation, degree of culpability, and history of prior offenses.

SBREFA requires the Small Business Administration (SBA) Administrator to appoint a small business and agriculture regulatory-enforcement ombudsman and 10 regional small business regulatory fairness boards to comment on the enforcement activities of federal regulatory agencies. SBA has appointed such a National Ombudsman and 50 small business owners to serve on the regional Regulatory Fairness Boards. The Office of the National Ombudsman and the Fairness Boards have instituted procedures for small businesses or other small entities -- such as small towns or non-profit organizations -- to present information concerning the compliance or enforcement experiences with Federal regulatory agencies that they or the people they represent have had.

The National Ombudsman and the Fairness Boards can receive information from small businesses or other small entities concerning their interactions with Federal agencies, hold follow-up meetings on the concerns of these entities, report on significant enforcement issues, and reflect all concerns in their reports to Congress. They cannot, however, adjudicate the complaints they receive or reverse Agency decisions. The National Ombudsman must annually report to Congress on findings on complaints and progress of the Regulatory Fairness program.

From time to time, FSIS is asked to report on or respond to matters brought before the National Ombudsman or one of the Fairness Boards. Along with other USDA and Government agencies, FSIS has been asked to contribute information on its regulatory fairness policies that is ultimately reflected in the National Ombudsman's report to Congress.

FSIS personnel involved in inspection and enforcement activities should be aware that the National Ombudsman and the Fairness Boards provide, in a sense, an alternative avenue of appeal for the small businesses we regulate. In other words, in addition to appealing Agency actions through the FSIS chain of command and in addition to making their concerns known by other means, the owners or managers of small official establishments may also make their concerns known to the National Ombudsman or their regional fairness board.

Currently, only a handful of cases involving FSIS-regulated businesses are annually brought to the attention of the National Ombudsman or the SBREFA fairness boards.

Further information on SBREFA and the activities of the National Ombudsman and the regional fairness boards can be found on the RegFair web site "http://www.sba.gov/regfair." The information posted on the RegFair web site directly addresses small businesses and other small entities and provides a "Federal Agency Appraisal Form" that they can use to relate their experiences with the Federal agencies they deal with.