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.

3.  Pursuant to Executive Order 13272, OSHA shall issue these as the
Agency’s written procedures and policies for compliance with the RFA
and make them publicly available within 180 day of the date of the
order, after consulting Advocacy.  OSHA may review and modify these
procedures from time to time, provided that, at a reasonable time prior
to finalizing any revisions, the Agency shall consult with Advocacy and
issues and make the modified procedures publicly available.

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
definition for small entities referenced in RFA Section 601 (3), (4),
and (5), unless the Director believes that these definition 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 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
for 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 de minimus
number of affected small entities, the Agency will be deemed not able to
certify. 

4.   By 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 initial regulatory
flexibility analysis. 

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 so 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 Chief Counsel.

2.  At lease 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 on 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
n later than 30 days after such provision, the Chairperson shall hold at
least one-per 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 affect 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
Chairman 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 proved 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 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
therefore, 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, the Chairperson finds the
Agency 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 Pane 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 name 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 finding of the Panel,
these will be designated in the panel report as panel finding.  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
objective 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 the 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 any each recommendation agreed upon by the entire
Panel, whether as modification to the rule, or as 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 for 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 the panel report
discussion and the Agency’s response in the NPRM.

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