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Secretary of Labor Thomas E. Perez
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OSHA PROCEDURES FOR COMPLIANCE WITH THE REGULATORY DEVELOPMENT AND REVIEW REQUIREMENTS OF THE REGULATORY FLEXIBILITY ACT

General

1. The Assistant Secretary for Occupational Safety and Health (Assistant Secretary) shall appoint a Small Business Advocacy Panel (SBAP) Chairperson as provided by the Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act (RFA). The SBAP Chairperson shall convene and chair any Small Business Advocacy Review Panels, notify the Office of Advocacy of the Small Business Administration (Advocacy) of rules potentially identified as having a significant economic impact on a substantial number of small entities, and shall have primary responsibility for OSHA compliance with the RFA.

2. The Director of the Office of Regulatory Analysis (ORA) shall maintain routine informal communication with Advocacy, consulting with personnel from that office from time to time to discuss the status of OSHA rules and to identify those rules that may result in a significant economic impact on a substantial number of small entities. The Director of ORA shall also keep the Chairperson informed of communications with Advocacy personnel, the status of upcoming rules, and other issues of interest to small businesses.

Economic and Regulatory Flexibility Analysis

1. The Director of ORA is responsible for assessing whether OSHA rules have significant economic impacts on a substantial number of small entities.

2. Only for analytical purposes, the Director of ORA shall use the SBA definitions for small entities referenced in RFA Section 601 (3), (4), and (5), unless the Director believes that these definitions are inappropriate for the rule in question (for example, because, after a reasonable effort, OSHA still lacks adequate data to use that definition). If the Director believes that these definitions are not appropriate, the Director will consult with the SBAP Chairperson to develop an alternative definition, and then will consult with Advocacy concerning the alternative definition. Any alternative definition will be published in the Federal Register notice as part of the preamble to the proposed rule, and the Agency will also solicit comment on the proposed alternative definition in the Federal Register, as required by the RFA.

3. If not able to certify that a draft proposed (final) rule will not have a significant economic impact on a substantial number of small entities, OSHA will prepare an initial (final) regulatory flexibility analysis. In making this determination, the Agency intends to use the following definition, unless the Director of ORA, in consultation with the Chairperson, finds that an alternative definition is more appropriate. If, for any group of affected small entities, the costs of the rule are estimated to exceed 1 percent of revenue or 5 percent of profit, unless there is compelling evidence that the cost may be passed on in the form of a price increase or that there is a de minimus number of affected small entities, the Agency will be deemed not able to certify.

4. Prior to the time of publication of the proposed or final rule, the Director of the appropriate Standards Directorate will assure the Chairperson that the proposed or final rule minimizes significant economic impacts on small entities to the extent possible, consistent with the objectives of the OSH Act and other relevant statutes. The Director of the ORA is responsible for the preparation of the initial and final regulatory flexibility analyses.

5. If able to certify in accordance with paragraph 3, the Assistant Secretary for OSHA shall publish a certification in the Federal Register at the time of the publication of the proposed or final rule, along with a statement providing the factual basis for such certification. This certification and statement of factual basis shall be sent to Advocacy when the agency submits a draft rule to OIRA under Executive Order 12866 or, if no submission to OIRA is required, at a reasonable time prior to the publication of the proposed or final rule in the Federal Register, pursuant to E.O. 13272.

SBREFA Panel Procedures

1. When the Director of ORA anticipates that a rule under consideration for proposal may have a significant impact on a substantial number of small entities, the Director will notify the Chairperson. In consultation with the Director of ORA, the appropriate Standards Directorate, and the Solicitor's Office, the Chairperson will determine when to initiate the Small Business Advocacy Review Panel process. When the Chairperson decides to initiate the process, the Chairperson will generally notify the Chief Counsel for Advocacy at least 60 days in advance of the projected panel convening date and adhere to the following schedule, unless an alternative schedule is found to be more appropriate after consultation with the Chief Counsel.

2. At least 60 days in advance of the projected convening date, the SBAP Chairperson will provide the Chief Counsel with information on the potential impacts of the proposed rule on small entities and the type of small entities that might be affected, including:

  • a description of the important components of the rule;
  • a description of the problem the rule is trying to solve and of the statutory obligations underlying the rule;
  • a quantitative or, if impracticable or unreliable, a qualitative description of the potential impacts;
  • a description of the types of entities likely to be affected by the proposed rule and of any small-entity stakeholder involvement in the process to date;
  • a description of any regulatory flexibility alternatives that are or have been under consideration;
  • a list of potential small entity representatives; and
  • a list of any other important documents or information that has already been developed to support the rulemaking.

3. At least 15 days after the provision of information to Advocacy, but no later than 30 days after such provision, the Chairperson shall hold at least one pre-panel meeting with other Panel members to develop regulatory flexibility alternatives, identify any information necessary to evaluate alternatives, and consult Advocacy about the potential small entity representatives (SERs). Only those persons that primarily represent one or more small entities potentially affected by a proposed rule are eligible to become SERs, and the Chairperson will be responsible for selecting on the date the Panel is convened only those that are eligible to become SERs. SERs may include trade association representatives, attorney's, and regulatory consultants if the Chairperson finds they meet the criterion for eligibility

4. At least 30 days after the provision of information, but no later than 45 days after such provision, the Chairperson shall provide each Panel member with the alternatives and supporting information identified in any pre-panel meeting and any other information the Agency developed as a result of a pre-panel meeting, and the list of SERs that the Chairperson intends to select upon convening the Panel. The appropriate Directorate shall be responsible for developing requested information and shall accommodate any reasonable information request made by any Panel member. A request is deemed to be reasonable if fulfilling such a request would not consume excessive resources or time and is relevant to the rulemaking.

5. At least 45 days after the provision of information, but no later than 60 days after such provision, the Chairperson shall identify for every Panel member the information that the Agency would like to provide the SERs, to assist SERs in providing findings and recommendations. At minimum, the information package shall include a description of the important components of the rule, of regulatory flexibility alternatives and of the impacts of the rule, with and without these alternatives. The SERs shall be asked to provide their advice and recommendations with respect to the potential impacts of the proposed rule and alternatives and on the following elements of the initial regulatory flexibility analysis (IRFA):

  • The description and estimate of the number of small entities to which the proposed rule will apply;
  • The description of the projected reporting, recordkeeping, and other compliance requirements of the proposed rule;
  • The identification of duplicative, overlapping, or conflicting Federal rules; and
  • Significant alternatives to the proposed rule that would accomplish the stated objectives of applicable statutes and which minimize any significant economic impact of the proposed rule on small entities.

Panel members will have no more than 7 days from receipt to review and approve or request a meeting to discuss the contents of the information package. No information shall be distributed to SERs without the express approval of all Panel members.

6. Unless the Chief Counsel for Advocacy waives panel review pursuant to Section 609(e) of the RFA, the Chairperson, in consultation with the relevant Directorate, the Administrator of OIRA, and the Chief Counsel, may convene the Panel no earlier than 60 days following provision of information. The Chairperson may request consideration of a waiver by submitting to the Chief Counsel a written finding, with reasons therefor, that convening a panel would not advance the effective participation of small entities in the rulemaking process (for example, if, as a result of consultation with Advocacy and/or potential SERs, OSHA modifies the rule to minimize the economic impact on small entities). If, after formal notification and consultation with potential SERs and Advocacy, the Chairperson finds the Agency can certify the rule, the Chairperson shall promptly notify the Chief Counsel by providing the draft factual basis for certification for comment if any.

7. At least 15 days following SER receipt of the information approved by the Panel, but not later than 15 days after the Panel's convening, the Chairperson shall hold at least one Panel meeting with SERs to hear their advice and recommendations on the proposed rule, its impact, and elements of the IRFA. The Chairperson may hold this meeting following Panel convening or on the day of convening.

8. The Panel Chairperson shall appoint any additional panel members from OSHA and obtain from the Administrator of OIRA and the Chief Counsel for Advocacy the names of their panel members.

9. At least 15 days after the Panel's convening, but no later than 30 days following the Panel's being convened, the Chairperson shall provide other Panel members with a draft panel report on the comments of the SERs and draft findings with respect to the topics enumerated above.

10. When panel members agree on the summary of the comments of the small entity representatives and on the draft findings of the Panel, these will be designated in the panel report as panel findings. When panel members cannot agree, the views of individual panel members shall, if the panel members so desire, be made a part of the panel report and be designated in the report as the views of individual panel members.

11. The Panel shall complete its report within 60 days of the convening of the Panel, as required by the RFA. This report must contain a description of the important components of the rule being considered for proposal and a summary of the SER comments and the findings and recommendations of SERs and the Panel with respect to the following elements of the initial regulatory flexibility analysis:

  • The description and estimate of the number of small entities to which the proposed rule will apply;
  • The description of the projected reporting, recordkeeping, and other compliance requirements of the proposed rule;
  • The identification of duplicative, overlapping, or conflicting Federal rules; and
  • Significant alternatives to the proposed rule that accomplish the stated objectives of applicable statutes and which minimize any significant economic impact of the proposed rule on small entities.

12. The Standards Directorate responsible for the rule shall be responsible for making the Panel report public as part of the rulemaking record.

13. The Director of ORA, the Director of the appropriate Standards Directorate and the Associate Solicitor for Occupational Safety and Health shall be responsible for assuring that any recommendation made by any Panel member receives an appropriate response. In general, the Agency will accept each recommendation agreed upon by the entire Panel, whether as a modification to the rule, or as an issue to be discussed in the preamble, unless further analysis or evidence collected after the Panel completes its work indicates that the recommendation is not practicable, enforceable, protective of worker safety, or consistent with the OSH Act or other relevant statutes. Even if there are subsequent data findings or circumstances that warrant a change of OSHA's position after the panel closes, the Agency will discuss the Panel's recommendation drawing liberally from panel report discussion and the Agency's response in the NPRM.