The ACHP’s proposed rewrite of the 800 regulations has generated a lot of opposition about their impact on preservation and cultural resource reviews. But the process by which the Council has brought forth their proposals also is raising questions – including about their lack of analysis about the effects on small businesses.
The proposed rewrite, which the Council approved last Friday, has been sent to the Office of Management and Budget for review. Once it gives the green light, the Council will publish the proposed changes in a Notice of Proposed Rulemaking (NPRM) in the Federal Register.
Under the federal Regulatory Flexibility Act (5 U.S.C. 601), when agencies publish NPRMs, they are required to prepare and make public an “initial regulatory flexibility analysis,” which “shall describe the impact of the proposed rule on small entities.” (“Small entities” are defined in statute as small businesses, small organizations and small governmental jurisdictions.) The analysis must be published in the Federal Register at the same time with the NPRM and transmitted to the U.S. Small Business Administration’s Chief Counsel for Advocacy.
The analysis must include, among other things, a description of and (if feasible) an estimate of the number of small entities to which the proposed rule will apply; and a description of the projected reporting, recordkeeping and other compliance requirements of the proposed rule. Agencies also must prepare a description of any significant alternatives to the proposed rule which accomplish the stated objectives of applicable statutes and which minimize any significant economic impact of the proposed rule on small entities.
There is little doubt that the proposed changes to the 800 regulations will have significant effects on small CRM firms, who will be forced to confront a radically different Section 106 landscape as government agencies and developers try to adjust to the new regime. Furthermore, the shrinking of the process to reduce public consultation and the redefinition of adverse effects and historic properties to exclude many undertakings from the Section 106 process could very well have severe implications on many small businesses. Lastly, the new requirements for a single agency “Section 106 report” could incur compliance and reporting burdens on small CRM firms who are contracted to prepare such reports.
Yet the ACHP has declared, in a draft NRPM, that such an analysis is not required because, in their words, the changes “would not, if finalized, have a significant economic impact on a substantial number of small entities.”
That assertion fails to acknowledge the downstream impacts of these proposed changes on many small businesses – revisions that the Council took one week and no formal meetings to approve, and for which the Council is proposing a 30-day public review period, the shortest allowable by law. Changes to the Section 106 process affect not only CRM firms, but professional land surveyors, drafting/GIS staff, field technicians, construction firms, and a host of other vendors who contribute to the CRM process. These firms in turn support local businesses, from hotels to equipment suppliers and many more, when their teams are in the field. In rushing to change the rules, the Council is seemingly saying that small businesses simply do not matter.
Should the ACHP move ahead with its NPRM in its current form, it will ultimately be up to the courts to adjudicate whether it is violating the letter of the law. But neglecting the ramifications on small firms is undoubtedly contrary to the spirit of the law. Members of Congress, who place a high priority on standing up for small businesses, might have something to say about that.
ACRA will continue making the case to policymakers about its concerns with the proposed rules and will provide more information about how you can do so as well in the coming days and weeks.