Recess Appointments, Regulations and Small Business

By August 20, 2010Regulations

President Obama announced his intent to make four recess appointments to “key Administration posts” today:

  • Maria del Carmen Aponte, Nominee for Chief of Mission, Republic of El Salvador
  • Richard Sorian, Nominee for Assistant Secretary for Public Affairs, Department of Health and Human Services
  • Elisabeth Hagen, Nominee for Under Secretary for Food Safety, Department of Agriculture
  • Winslow Sargeant, Nominee for Chief Counsel of Advocacy, Small Business Administration

Major business and manufacturing trade associations that represent small businesses, including the National Association of Manufacturers, recently joined in a letter to the President raising objections to Sargeant’s appointment to the important position representing small business on regulatory issues within the Administration. Those responsibilities are many, and they presuppose an experienced attorney with regulatory experience. Excerpt:

The Office of Advocacy advances the interests of small businesses by also ensuring that the requirements set forth by the Regulatory Flexibility Act of 1980,3 as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 19964 are met. The Office of Advocacy reviews the Regulatory Flexibility analysis or certification prepared by federal departments and agencies, submits comments on proposed rules, hosts public roundtables to solicit comments from small business entities, presents Congressional testimony, engages in Interagency dialogue, files amicus curiae, periodically reviews existing regulations, and participates as a panel member on SBREFA panels when convened by the respective federal agency.

The Office of Advocacy’s SBREFA responsibilities have been significantly expanded under the Dodd-Frank Wall Street Reform and Consumer Protection Act (P.L. 111-517) to include the newly created Consumer Financial Protection Bureau (CFPB). The Small Business Fairness and Regulatory Transparency provisions included in P.L. 111-517 requires the CFPB to include recommendations from a Small Business Advocacy Review Panel with any proposed rules that are anticipated to have significant impact on small firms and to inform the public of how its rules will impact small business access to credit.

The letter also cites arguments by Sen. Olmpia Snowe (R-ME) and other members of the Senate Small Business Committee who had written Sargeant’s qualifications were better fitted to serving as the SBA’s Deputy Administrator. (Earlier, Snowe news release, September 2009.)

In his statement announcing the recess appointments, the President chided Senators who had prevented the confirmation and urged them “to stop playing politics with our highly qualified nominees.” One president’s “playing politics” is a Senator’s legitimate criticism, though.

Despite the business community’s objections to Sargeant’s appointment to the advocacy position, there’s no doubt he knows business. We wish him well on his new multitude of responsibilities, and look forward to working with him.

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