Small Business Administration: Office of Advocacy - Letter dated - 09/17/97 - Department of Labor, Occupational Safety and Health Administration - OSHA intends to publish a proposed rule for steel erection, subpart R of 29 CFR part 1926, and has requested a waiver from the Small Business Regulatory Enforcement Fairness Act panel process"

Office of Advocacy

Honorable Greg Watchman
Acting Assistant Secretary
for Occupational Safety and Health
Department of Labor
200 Constitution Avenue, NW
Washington, DC 20210

Dear Mr. Watchman:

On September 4, 1997, the Office of Advocacy received your letter dated August 28, 1997, regarding the Occupational Safety and Health Administration's proposed rule that would revise the standard for steel erection, subpart R of 29 CFR part 1926.

The letter notified the Office of Advocacy of OSHA's intent to issue a proposed rule as required by the Small Business Regulatory Enforcement Fairness Act (Public Law 104-121). In addition, the agency requested a waiver from the Small Business Advocacy Review Panel for this rulemaking. OSHA also provided:

a summary of the potential impacts of the proposed rule on small entities and the type of small entities affected;
a description of the Steel Erection Negotiated Rulemaking Advisory Committee process;
a list of individuals representative of small businesses with which to consult; and
factors for consideration of a waiver from the panel process.

The Office of Advocacy must comply with section 609 of the Regulatory Flexibility Act (the Act) in consideration of the agency's request for a waiver. The Chief Counsel for Advocacy, in consultation with representatives of small entities (identified as required by subsection (b)(2) of the Act) and the Administrator of the Office of Information and Regulatory Affairs, may waive the requirements of subsections (b)(3), (b)(4), and (b)(5) of the Act. If a waiver is granted, Advocacy must include in the rulemaking record a written finding with reasons that the panel process would not advance the effective participation of small entities in the rulemaking process. The factors to be considered will be: (1) the extent to which the agency consulted with individuals representative of small entities with respect to the potential impact of the rule and considered such concerns; (2) special circumstances requiring prompt issuance of the rule; and (3) unfair competitive advantages that small businesses would gain from the panel process.

As required by subsection (b)2 of the Act, not later than 15 days after the date of receipt of the intent to issue a proposed rule, the Chief Counsel shall identify individuals representative of affected small entities for the purpose of obtaining advice and recommendations about the potential impacts of the proposed rule. In compliance with this provision, Advocacy has identified small business representatives that were members of the Steel Erection Negotiated Rulemaking Advisory Committee, participants in workgroups, and non participating affected parties.

A list of the identified individuals is provided. As we continue the consultation regarding small business concerns, additional small businesses may be identified. Advocacy will contact you with those names.

At the request of OSHA, the Office of Advocacy is currently reviewing the request for a waiver under subsection 609(e)of the Act. We appreciate the information supplied by OSHA on small business involvement in the negotiated rule process.

Advocacy will provide a response to OSHA as quickly as possible. We may require further information, such as additional economic impact data. Additionally, Advocacy would appreciate information on any new developments regarding the agency's attempt to minimize the impact of this rule on specific small business sectors.

If you have any questions please contact me or Sarah Rice of my staff at (202) 205-6533.

Sincerely,

Jere W. Glover
Chief Counsel for Advocacy

cc: Honorable Sally Katzen