Honorable Sally Katzen
Administrator
Office of Information
and Regulatory Affairs
Office of Management and Budget
305 Old Executive Office Building
17th Street and Pennsylvania Avenue, NW
Washington, DC 20503
Dear Ms. Katzen:
The Small Business Administration's Office of Advocacy is submitting comments for your consideration. We have reviewed the Occupational Safety and Health Administration's (OSHA) draft final rule for occupational exposure to methylene chloride (MC) and the accompanying economic analysis. Three primary issues should be resolved.
First, the Office of Advocacy believes that the economic data and public comments indicate that the agency should explore and develop flexible alternatives for the small firms affected by this rulemaking, beyond micro businesses with less than 20 employees.
The final regulatory flexibility analysis submitted defines small businesses as less than 20 employees. OSHA published this size standard along with an economic analysis in the 1991 proposed rule. As you know, the preferred definition of "small business" for the purposes of the Regulatory Flexibility Act is industry- specific. (See 13 CFR Part 121.) While no one commented on the size standard per se, there were clear indications in OSHA's economic data that there would be a significant impact on several industries that are predominantly small businesses. For instance, three industries groups--furniture stripping, polyurethane foam blowing and construction--were singled out by OSHA.
The regulatory alternatives developed, using OSHA's size standard of less than 20 employees, were somewhat beneficial to two of the three industries. These industries i.e., furniture stripping and construction, are predominantly micro businesses that fall into OSHA's definition of small. However, the characteristics of the manufacturing sector indicate that the size standard was not appropriate in that industry for the purposes of regulatory flexibility. OSHA took steps to address some of the issues raised by micro businesses but did not fully consider alternatives for the other small businesses in the affected industries.
Second, with regard to the Paperwork Reduction Act (44 U.S.C. §3501 et seq.), the agency is proposing to solicit public comments on information collection at the time of the final rule's publication. The information collection is an essential and fundamental element of the rule itself. Much of this rule's requirements are collecting information, notifying employees, recording findings, etc., and must satisfy the Administrative Procedure Act, Regulatory Flexibility Act, as well as, the Paperwork Reduction Act. We are concerned that the agency implies that the information collection warrants separate and less stringent scrutiny by citing 44 U.S.C. §3507 (c)(2).
Because OSHA is proposing to seek comments on information collection in conjunction with publishing the final rule, employers will be subjected to an incomplete and confusing standard until OMB's approval of information collection is completed. This conflict cannot be reconciled easily unless a solicitation for public comment on information collection precedes the publication of the final rule.
We also ask that OMB assures the certification required by the Paperwork Reduction Act (44 U.S.C. 3506(c)(3)) relies on the definition of small entities, as provided for in the Regulatory Flexibility Act and the Small Business Act.
Finally, any policy differences between that of OSHA and that of the Environmental Protection Agency (EPA) should be clearly identified. OSHA has clarified in the draft preamble (p.22) that it is premature to draw conclusions about the anticipated EPA action. However, some small businesses will face compliance with standards from two agencies, and the delineation should be addressed by the agencies. The Administration also should assure the differing views of the two agencies are reconciled as to the hazards associated with methylene chloride before the rule is finalized. The government must speak with one voice or provide a sustainable explanation for policy differences.
If you have any questions about these comments, please contact me or Anita Drummond of my staff.
Sincerely,
Jere W. Glover
Chief Counsel for Advocacy
cc: Honorable Joseph A. Dear