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.
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