Letter — Committee on Small Business to Occupational Safety and Health Administration (2/22/2023)

Summary

The Committee on Small Business sent Douglas Parker, Director of the Occupational Safety and Health Administration, a letter dated February 22, 2023. It states that the Committee is investigating the agency's implementation of the Regulatory Flexibility Act, the Small Business Regulatory Enforcement Fairness Act, and Executive Order 13272, and requests documents and information. Requests due by March 10, 2023, include identification of any central OSHA position or office responsible for ensuring compliance with those laws. The letter says the Committee has broad authority to investigate “problems of all types of small business” under House Rule X.

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“Letter — Committee on Small Business to Occupational Safety and Health Administration (2/22/2023).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2023-02-22-housesbc-majority-to-osha-02-22-2023-letter-to-osha-re-rfa-cb40ad0c0f/, SHA-256 da04070dc90d27f98d3c59d7a2f21d735d8a28a846d4e73a96d3b2dabdea76da.

Full text

February 22, 2023

The Honorable Douglas Parker
Director
Occupational Safety and Health Administration
200 Constitutional Ave. N.W.
Washington, D.C. 20210

Dear Director Parker:

The Committee on Small Business is investigating the Occupational Safety and Health
Administration’s (OSHA) implementation of the Regulatory Flexibility Act (RFA), the Small
Business Regulatory Enforcement Fairness Act (SBREFA), and Executive Order 13272
(EO13272).1 We write today to request documents and information.

The RFA, SBREFA, and EO13272 were designed to provide small businesses notice of
proposed agency rules that affected their business and provide them the opportunity to
participate in the process.2 Despite this stated goal, it seems that some agencies are failing to
properly implement these measures to the detriment of small businesses across the country.

As you are well aware, agencies across the federal government are provided discretion
when determining a regulation’s impact on the small businesses. Agencies are required to
produce an IRFA in proposed rules only after the agency determines the proposed rule is
expected to have a “significant impact” on a “substantial number of small entities.”3 If not, the
agency simply certifies the rule will not have a significant economic impact on a substantial
number of small entities and provides a “factual basis for such certification.”4 That certification
is published in the Federal Register and reported to the Chief Counsel for Advocacy at SBA at
the time the proposed or final rule is published for public comment.5

If the agency determines that the proposed rule will have a significant impact on a
substantial number of small entities, section 212 of SBREFA requires agencies to publish one or

1
5 U.S.C.§§ 601-12; Pub. L. No. 104-121 (Mar. 29, 1996); Proper Consideration of Small Entities in Agency
Rulemaking, 67 Fed. Reg. 53,461 (Aug. 16, 2002).
2
5 U.S.C.§§ 601-12.
3
5 U.S.C. § 603(a).
4
5 U.S.C. § 603(b).
5
Id.
The Honorable Douglas Parker
February 22, 2023
Page 2 of 4

more small entity compliance guides for each rule, or group of rules.6 Additionally, in the final
rule, the agency needs to publish a Final Regulatory Flexibility Analysis (FRFA) that includes
but is not limited to “a description of and an estimate of the number of small entities to which the
rule will apply or an explanation of why no such estimate is available.”7

Small businesses across America deserve to know how the OSHA is working to consider
small businesses in their rulemaking process. We therefore request the following documents and
information, as soon as possible but no later than March 10, 2023:

1. Identify any central OSHA position or office, if one exists, responsible for ensuring that
OSHA complies with the RFA, SBREFA, and EO13272.

2. Identify any OSHA positions or offices responsible for reducing the regulatory burden on
small businesses.

3. Provide all small entity compliance guides produced or in use at the agency within the
last calendar year.

4. Provide the agency’s definition of “significant impact” and “substantial number of small
entities” from 2010 until present, including any and all changes over that time and the
justifications for those changes.

5. Provide the name, docket number, and citation of all rules, proposed and final, that that
the agency certified as having no significant impact on a substantial number of small
entities from 2020 to present.

6. All documents and communications relating to the agency’s determination of whether
there was a “significant impact” on a “substantial number of small entities” for all
proposed and final rules from 2020 until present.

7. All documents and communications detailing any and all factors the agency considers
when determining whether the proposed rule will have a “significant impact” on a
“substantial number of small entities” and the weight of each factor given in the
determination.

8. All documents and communications relating to consideration of alternate rule proposals
when the agency has determined a proposed or final rule has a substantial impact on a
substantial number of small entities from 2020 until present.

6
Small Business Regulatory Enforcement Fairness Act, Pub. L. 104-121, § 212 (as amended by the Small Business
and Work Opportunity Act of 2007, Pub. L. 110-28 § 8302).
7
5 U.S.C. § 604(a)(4).
The Honorable Douglas Parker
February 22, 2023
Page 3 of 4

9. All documents and communications relating to instances where input from mandated
SBREFA panels compelled the agency to amend a proposed rule, with supporting
documents, from 2020 to present.

10. All documents and communications relating to the standards the agency uses to
determine its “factual basis” to support a determination that a proposed rule would not
have a significant impact on a substantial number of small businesses.

To schedule the delivery of responsive documents or ask any related follow-up questions,
please contact Committee on Small Business Majority Staff at (202) 225-5821. The Committee
on Small Business has broad authority to investigate “problems of all types of small business”
under House Rule X. Thank you in advance for your cooperation with this inquiry.

Sincerely,

_________________________ _________________________
Roger Williams Blaine Luetkemeyer
Chairman Vice Chairman
Committee on Small Business Committee on Small Business

_________________________ _________________________
Beth Van Duyne Pete Stauber
Chairman Member of Congress
Subcommittee on Oversight, Committee on Small Business
Investigations, and Regulations

_________________________ _________________________
Dan Meuser Jake Ellzey
Member of Congress Member of Congress
Committee on Small Business Committee on Small Business

_________________________ _________________________
Marc Molinaro Aaron Bean
Member of Congress Member of Congress
Committee on Small Business Committee on Small Business
The Honorable Douglas Parker
February 22, 2023
Page 4 of 4

_________________________
Nick LaLota
Member of Congress
Committee on Small Business

cc: The Honorable Nydia M. Velasquez, Ranking Member
Committee on Small Business

The Honorable Dean Phillips, Vice Ranking Member
Committee on Small Business

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