OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov.
June 10, 1996
MEMORANDUM FOR: JOSEPH A. DEAR Assistant Secretary for Occupational Safety and Health ATTENTION: GREGORY WATCHMAN MICHAEL CONNORS FROM: JOSEPH M. WOODWARD Associate Solicitor for Occupational Safety and Health SUBJECT: Small Business Regulatory Enforcement Fairness Act of 1996
This will follow up on our recent discussions concerning this new legislation. This memorandum summarizes the principal provisions in the law and the actions it requires of OSHA. The memorandum is organized by subtitle of the legislation.
The Small Business Regulatory Enforcement Fairness Act ("the Small Business Fairness Act') was signed into law on March 29, 1996. some provisions are effective immediately, and others will take effect shortly, so it is important that we take appropriate measures promptly to implement the law.
As will become clear from the discussion of the individual provisions, much of the law relates to agency actions that affect "small entities' as defined in the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. ("the Reg Flex Act" or "Reg Flex"), including issuance of rules that have a "significant economic impact on a substantial number of small entities" and therefore require a regulatory flexibility analysis under that law. The Reg Flex Act definition of small entity in turn incorporates the definition of small business concern under the Small Business Act, unless the agency establishes one or more definitions that are appropriate to its activities, after consultation with the SBA and an opportunity for public comment. To date OSHA has not established its own general definition of small entity. Whether the agency will now do so is a critical implementation question for the new legislation.
In the absence of an OSHA definition, the generic SEA definition applies. The Small Business Act does not establish a precise statutory definition of small business concern but rather authorizes the SBA Administrator to define the term by regulations. 15 U.S.C. §632(a)(2)(A). SBA has issued regulations that establish a separate threshold for each four digit SIC code, either in terms of the number of the firm's employees or the dollar volume of its annual receipts. 13 CFR Part 121, as amended 61 FR 3280 (Jan. 31, 1996). For SIC codes in which number of employees is the measure, the most common limits are 500 or fewer, although for some SIC codes, the number is higher. Where annual receipts is the measure, there is considerable variation across SIC codes. The most common limit is $5.0 million, with the lowest being $0.5 million (agricultural production and livestock and animal specialties) and the highest $1.5 billion (insurance).
Subtitle A - Regulatory Compliance Simplification
SUMMARY. This subtitle requires preparation of compliance guides and a program to answer compliance inquires. In general, this subtitle takes effect 90 days after enactment, i.e. on June 27, 1996.
Section 212 provides that for each rule or set of closely related rules for which an agency is required to prepare a final regulatory flexibility analysis, the agency shall publish one or more guides to assist small entities in complying with the rule. Guides shall explain the actions a small entity is required to take to comply with the rule and shall be written in sufficiently plain language that they are likely to be understood by affected small entities. Agencies may cooperate with associations of small entities to develop and distribute the guides. In an enforcement action against a small entity, the content of the guide may be considered as evidence of the reasonableness or appropriateness of any proposed penalty. [The Reg Flex Act requires an agency to prepare a final regulatory flexibility analysis for a rule unless the agency head certifies that the rule will not have a significant impact on a substantial number of small entities. 5 U.S.C. 605(b)].
Section 213 directs agencies, whenever appropriate, to answer inquiries from small entities seeking compliance information and advice and to interpret and apply the law to specific sets of facts supplied by the small entity. In any enforcement action against a small entity, agency guidance applying the law to the facts supplied by the small entity may be considered as evidence of the reasonableness or appropriateness of any proposed penalty. Each agency is to establish a "program" for responding to inquiries within one year of enactment and is to report to various congressional committees no later than two years after enactment on the scope and achievements of the program and the number of small entities using the program.
ACTION REQUIRED. As of June 27, 1996, OSHA must prepare small entity compliance guides for each rule it issues that will have a significant economic impact on a substantial number of small entities. OSHA must respond to inquiries from small entities seeking compliance assistance and advice and must establish a program to do so by March 29, 1997 [see OSHA Instruction CPL 2-0.121]. While OSHA already responds to a large volume of compliance inquiries, the agency should review its current procedures in light of the provisions of the new legislation. OSHA must submit a report on its program to congressional committees by March 29, 1998. The agency's program should therefore be structured to provide the information that must be in the report, such as the number of small entities using the program.(1)
Subtitle B- Regulatory Enforcement Reforms
This subtitle establishes a regulatory enforcement ombudsman and regional regulatory fairness boards in the SBA to monitor agency enforcement activities and requires agencies to establish programs for the reduction or waiver of penalties for violations by small entities. In general the subtitle takes effect 90 days after enactment, i.e., on June 27, 1996.
Section 222 amends the Small Business Act by adding a new Section 30 to that Act. Section 30(b) of the amended Act establishes a Small Business and Agriculture Regulatory Enforcement Ombudsman in the SBA. The Ombudsman is directed to work with each agency to ensure that small business concerns that receive or are subject to an inspection, compliance assistance effort, or other enforcement-related contact by agency personnel are provided a means to comment to the Ombudsman/SBA on the enforcement activity conducted by such personnel; the ombudsman is also to establish means to receive comments from small business concerns regarding actions by agency employees conducting compliance or enforcement activities, and means to refer comments to the Inspector General of the affected agency, and is to seek to keep the identity of the commentor confidential. Based on "substantiated comments"received from small business concerns and regional fairness boards, the Ombudsman is annually to report to Congress and the agencies "evaluating the enforcement activities of agency personnel including a rating of the responsiveness to small business of the various regional and program offices of each agency." The agency is to be provided an opportunity to comment on draft reports and may include a section in the final report making comments not addressed by the Ombudsman in revisions to the draft.(2)
Section 30(c) of the amended Small Business Act directs the SBA, within 180 days of enactment, to establish a Small Business Regulatory Fairness Board in each regional office. Each Board has five members, who are small business owners or officers, and who are appointed by the SBA Administrator after receiving recommendations from the Chair and ranking minority member of the House and Senate Committees on Small Business. The principal function of the Boards is to advise the Ombudsman about agency enforcement activities that are of concern to small businesses, including reporting on substantiated instances of "excessive enforcement actions."
Section 223 directs each agency to establish a program or policy within one year of enactment to provide for the reduction, and in appropriate circumstances the waiver, of civil penalties for violations committed by small entities. Under appropriate circumstances, the agency may consider the entity's ability to pay. Programs shall contain conditions or exclusions that may include requiring the small entity to correct the violation, limiting the program to violations discovered through a compliance assistance program sponsored by the agency or a state, excluding entities that have been subject to multiple enforcement actions, excluding willful violations or violations that pose serious health, safety or environmental threats, and requiring a good faith effort to comply. Section 223 also directs each agency to report to various congressional committees within two years of enactment on the scope of the agency's policy, the number of enforcement actions against small entities that qualified or failed to qualify, and the total amount of penalty reductions and waivers.
ACTION REQUIRED. OSHA shall take action "as necessary" to assist the SBA Ombudsman in establishing means by which the Ombudsman will receive comments on-enforcement activities from small business concerns. OSHA should be prepared to respond to questions raised by small businesses, by the Ombudsman, or by the regional Boards, and to carefully review draft reports to Congress prepared by the Ombudsman. With respect to the penalty reduction provision, the OSH Act itself provides that penalties shall be based in part on the size of the employer's business, and OSHA's established policies provide for penalty reductions for small employers. In addition, OSHA does not generally assess a penalty for nonserious violations. OSHA is considering a new penalty system that would increase the discount for the smallest employers and waive penalties for nonserious violations committed by employers with 250 or fewer employees. In many respects, OSHA's existing and planned penalty relief for small employers goes beyond what the new legislation requires, since the reductions are mostly not subject to the conditions allowed in the legislation. The penalty reduction provision therefore should not have a great impact on OSHA. The agency should, however, consider the impact of the definition of 'small entity," and should assure that it will be able to provide the information needed for the report to Congress.(3)
Subtitle C - Equal Access to Justice Act Amendments
SUMMARY. This title amends the Equal Access to Justice Act (EAJA) to allow employers to recover attorney fees even if they are found to have committed an OSH Act violation if OSHA's demand for relief "is substantially in excess of the decision of the adjudicative officer and is unreasonable when compared with such decision, under the facts and circumstances of the case unless the party has committed a willful violation of law or otherwise acted in bad faith, or special circumstances make an award unjust." 5 U.S.C. §504(a) (as amended). This provision applies both to the amount of penalty sought and to non-penalty remedies such as abatement orders.
This title also amends EAJA to include in the definition of parties entitled to seek EAJA fees employers who are "small entities" within the meaning of the Reg Flex Act. 5 U.S.C. §504(b)(1)(B) (as amended) (See p. 11 below).
The hourly rate for recoverable attorney fees is increased from $75-00 per hour to $125.00 per hour. 5 U.S.C. §504(b) (as amended).
In guidance published in the Congressional Record, sponsors of the legislation expressed views as to its construction. First, the legislative history indicates that the term "demand" may include the OSHA citation. Thus, an employer may be able to qualify for attorney fees based on the demand in the citation even if the complaint or a subsequent settlement offer by OSHA demands less. The congressional statement also indicates that "special circumstances" warranting denial of fees may include the fact that the violation "endangered the lives of others." This would be a significant help to OSHA in defending against EAJA claims.
These amendments apply to any enforcement action commenced on or after March 29, 1996.
ACTION REQUIRED. No action is required of OSHA by the amendments themselves. However, OSHA should make sure that enforcement personnel are made aware of the amendments so they can take them into consideration in making enforcement decisions. OSHA should also consider whether any modification of agency procedures is warranted.(4)
Subtitle D - Regulatory Flexibility Act Amendments
SUMMARY. This subtitle makes compliance with the Regulatory Flexibility Act judicially reviewable. It also requires, for proposed standards with a significant economic impact on a substantial number of small entities, that OSHA gather advice and recommendations from small businesses prior to publication of the proposal and initial Reg Flex analysis via an SBA/Review Panel process.
The effective date of this subtitle is June 27, 1996. Final rules published after the effective date are subject to judicial review for compliance with all the requirements of the Reg Flex Act except the new SBA/Review Panel provision, which applies to proposals published after June 27, 1996.
Sections 241 through 244 of the Small Business Fairness Act amend the Reg Flex Act in numerous ways. What follows is a synopsis of all the provisions in the Reg Flex Act, as amended by the Small Business Fairness Act. (Citations are to the Reg Flex Act at 5 U.S.C. §601-612 as amended.)
§601 Definitions. The Reg Flex Act requires agencies to determine whether proposed standards will have a significant economic impact on a substantial number of small entities. "Small entities" include "small businesses," "small organizations," and "small governmental jurisdictions." OSHA must use the size classification for each category of small entity that is set out in the Reg Flex Act unless, after consultation with the SBA and notice and comment, OSHA develops its own size classifications.
As mentioned at pages 1 and 2, the category of small entity that is most important to OSHA is the "small business"category, and SBA's size classifications may not be well suited to OSHA rulemaking.
(Note: In the past, SBA has taken the view that any agency may undertake notice and comment concerning the small business size classification as part of a substantive rulemaking proceeding for a specific standard, or may develop more generic size classifications in a notice and comment proceeding independent of a standard-setting rulemaking. (Compare §605 below))
§602 Reg Flex Agenda. OSHA shall publish in the Federal Register an agenda describing every proposed and final standard likely-to have significant economic impact on a substantial number of small entities. The Agenda must be sent to the SBA for comment. OSHA should "endeavor" to give small entities notice of the agenda and invite comment. OSHA is free to consider matters that are not on the agenda and to take no action on matters that are on the agenda.
§603 Initial Reg Flex Analysis. Every OSHA Federal Register notice of proposed rulemaking must include an initial regulatory flexibility analysis, unless OSHA certifies that the rule will not have a significant economic impact on a significant number of small entities. The initial analysis must be transmitted to the Chief Counsel for Advocacy of the Small Business Administration (hereafter SBA).
The initial Reg Flex Analysis must include: a description, and where feasible, an estimate of the number of small entities to which the proposed rule will apply; identification, to the extent practicable, of any duplication, overlap or conflict between the proposed rule and other federal rules; and a description of significant alternatives' to the proposed rule which accomplish the stated objectives of applicable statutes (which would be the OSH Act).
"Significant alternatives" include differing compliance deadlines, simplified reporting requirements, use of performance rather than specification standards, and exemptions.
(Note: See §606 below.)
§604 Final Reg Flex Analysis. The final Reg Flex analysis must include: a summary of significant issues raised by public comment on the initial Reg Flex Analysis; a description and estimate of the number of small entities to which the rule will apply; a description of compliance requirements, including reporting and record keeping requirements, and an estimate of the classes of small entities subject to the requirement and the professional skills necessary for preparation of the report or record; and a description of the steps OSHA has taken to minimize the significant economic impact on small entities and significant alternatives that were considered but rejected.
(Note: The requirement that reporting and record keeping requirements be described is new. The requirement that OSHA describe what steps it has taken to minimize impact is also new.)
The final Reg Flex Analysis goes into the rulemaking docket and at least a summary of it must be included in the Federal Register notice of the final rule.
§605 Omitting a Req Flex Analysis or doing it as part of another analysis. OSHA need not conduct an initial or final Reg Flex Analysis if the head of the agency certifies that there will be no significant economic impact on a substantial number of small entities. OSHA must provide the factual basis for the certification. The certification must be transmitted to SBA.
Initial and final Reg Flex Analyses and the Reg Flex Agenda may be included in or performed as part of any other analysis or agenda, as long as the Reg Flex part complies with the Reg Flex Act requirements.
§606 Effect on other law. Nothing in the Reg Flex Act "alters in any manner standards otherwise applicable by law to agency action." This means, for example, that Section 6(b)(5)'s mandate to eliminate significant risk to the extent feasible applies to small businesses even if it is more costly for small businesses to comply than it is for larger businesses.
§607 "Economic Effects" Analyses. OSHA may describe a rule's effects on small entities quantitatively or with more general descriptive statements if quantification is not practicable or reliable.
§608 Waiver or delay of .Reg Flex Analysis. OSHA may waive or delay an initial Reg Flex Analysis by publishing with the proposal a finding that an emergency makes compliance or timely compliance impracticable.
OSHA may not waive a final Reg Flex Analysis on grounds of emergency, but OSHA may delay it for up to 6 months based on emergency. If the final Reg Flex Analysis is not "prepared" within 6 months, the rule shall lapse and have no effect and shall not be repromulgated until a final analysis has been completed.
§609 Procedures for Gathering comments. (a) Use of innovative techniques to bring small businesses into the rulemaking process, and (b) pre-proposal involvement of small entities via Small Business Advocacy Review Panels.
(a) OSHA shall make reasonable use of techniques such as publishing proposals in trade publications and giving direct notification of proposed rules to interested small entities to facilitate the small entities' ability to participate in the rulemaking process. OSHA shall also make reasonable use of special rules of procedure to make participation easy and affordable for small businesses.
(b) Pre-proposal involvement by small businesses via "Review Panels":
(Note: This section is new.)
Before publishing a proposal that OSHA has determined will have a significant economic impact on small businesses, OSHA must provide the SBA information on the potential impact of the proposed rule on small entities. Within 15 days of receipt of this information, the SBA shall identify representatives of small entities to give advice and recommendations about those potential impacts to a "Review Panel' that is convened by OSHA.
The Review Panel is comprised of: full time employees of the OSHA office "responsible for carrying out the proposed rule," OIRA, and the SBA. The Review Panel shall review OSHA's proposed draft rule and collect advice and recommendations from the small entity representatives. Within 60 days of being convened, the Panel shall report to OSHA on the comments of the small entity representatives and its findings as to issues related to the preliminary Reg Flex Analysis. The Panel's report shall be part of the rulemaking record.
OSHA shall make appropriate modifications to the proposal, Initial Reg Flex Analysis, or decision whether an Initial Reg Flex Analysis is required. OSHA may go through this exercise for rules that it certifies as not impacting small entities if it expects greater than de minimis impact.
The SBA Chief Counsel, in consultation with the small entity representatives and OIRA, may waive the Review Panel exercise. Waiver should be based on: the extent to which OSHA consulted with small employers in developing the proposal and took their concerns concerning the potential impact of the rule into consideration, special circumstances requiring prompt issuance of the rule, and whether panel members might gain a competitive advantage over non-panel small entities.
By April 30, 1996, OSHA shall designate a small business advocacy chairperson to be responsible for implementing this section and to act as permanent chair of OSHA's §609 Review Panels. (This has been done.)
(Note: The panel process is required prior to publication of the proposed rule/initial regulatory flexibility analysis. The process is not required at the final rule stage.)
§610 Periodic review of rules. OSHA was required to publish a plan in 1980 (when the Reg Flex Act was initially enacted) for periodic review of then-existing rules with significant economic impact on a substantial number of small entities. That plan was required to provide for review of rules in effect in 1980 within ten years and of each later-issued rule within ten years of promulgation. (The ten-year period can be extended in one-year increments five times if OSHA certifies that completion of review by the established date is not feasible.).
The purpose of the review is to determine whether a rule should be continued without change or should be amended or rescinded, "consistent with the stated objectives of applicable statutes, to minimize any significant economic impact upon a substantial number of small entities." Specific consideration should be given to: continued need for the rule, complaints or comments about the rule, the complexity of the rule, overlap or conflict between the rule and other Federal or state rules, and the length of time since the rule was evaluated and any intervening technological or economic changes.
Each year OSHA shall publish a list of rules to be reviewed and afford the public an opportunity to comment on the listed rules.
(Note: There is no automatic sunset provision in this section.)
§611 Judicial Review.
(Note: This entire section is new.)
Any small entity that is "adversely affected or aggrieved" by a final OSHA action governed by the Reg Flex Act can petition for review in the U.S. court of appeals. If the final action being challenged is issuance of a final standard, the petition for review would have to be filed within 59 days of issuance of the standard and be considered along with any OSH Act petition for review. If the final action being challenged is something other than a final standard, the petition for review must be filed within one year. If the challenge is to a delayed final Reg Flex Analysis, the petition must be filed within 59 days of issuance of delayed final analysis.
What can be challenged: the "small entity" size classification and the procedure by which OSHA made the classification (§601); a final Reg Flex Analysis (§604) (this challenge may include objections to §607 non-quantified descriptions of "effects" and to §609(a) innovative techniques OSHA used for gathering comment from small entities); a No-Impact certification (§605(b)); a delayed final Reg Flex Analysis (Section 608(b)); and compliance with the periodic review requirement (§610).
What is not challengeable: the regulatory agenda (§602); the initial Reg Flex Analysis (§603); a decision to waive or delay a preliminary Reg Flex Analysis on grounds of emergency; the Panel Review exercise (§609(b)).
What sanctions the reviewing court can impose: remand the rule to OSHA-for further action consistent with its opinion; stay enforcement of the rule against small entities; stay the effective date of the rule or any part of the rule; any other sanction.
ACTION REQUIRED: OSHA must take several actions to comply with the Reg Flex Act as amended. It must designate a chairperson of Small Business Advocacy responsible for implementing the Reg Flex Review Panel process (§609(b)) by April 30, 1996. It must identify any standards presently in effect that have significant economic impact on a substantial number of small entities and develop a schedule for reviewing each standard within ten years of its publication, publish a list of the standards that are to be reviewed in the next twelve months, and invite comment on those rules. OSHA must identify any standards it expects to propose or issue that are likely to have a significant economic impact on a substantial number of small entities and describe these standards in the semi-annual regulatory agenda.
OSHA must make a decision whether to use SBA size standards for small businesses or to develop its own size standards. If OSHA wants to develop its own size standards, it must decide whether to accomplish this on a case-by-case basis by including size classification as an issue in hazard-specific rulemakings or to develop generic size standards in a free-standing notice and comment proceeding.
OSHA must assure that standards now in the rulemaking process will comply with Reg Flex when issued. Rules that are now in post-comment stages should be reviewed to determine whether OSHA adequately addressed the issue of "small business" size and the requirements for a Reg Flex analysis or certification. If necessary, the record may be reopened. All rulemakings in progress should be evaluated for compliance with all the requirements of Reg Flex, including whether OSHA has made reasonable efforts to use Section 609(a) innovative techniques for gathering small business comment and whether Section 604 burdens associated with record keeping and reporting burdens have been adequately assessed.
Standards projects at the pre-proposal stage should be brought into compliance with the §609(b) SBA/Panel Review process or waivers of the Panel Review exercise should be secured from the SBA.(5)
Subtitle E - Congressional Review of Agency Rulemaking
SUMMARY. This subtitle requires agencies to submit new rules to Congress and establishes procedures for congressional consideration of a resolution of disapproval, which nullifies the rule. The subtitle also provides that a major rule may not take effect until at least 60 days after the rule's submission to Congress.
Section 801(a) provides that before a rule can take effect, the agency issuing the rule must submit to each House of Congress and to the Comptroller General a report containing a copy of the rule, a concise general statement relating to the rule, including whether it is a major rule, and the proposed effective date of the rule. In addition, under Section 801(a)(1)(B), the agency must submit to the Comptroller General at that time a complete copy of the cost-benefit analysis, if any; "the agency's actions relevant to" the Regulatory Flexibility Act and the Unfunded Mandates Act; and "any other relevant information or requirements under any other Act and any relevant executive orders." For major rules only, the Comptroller General must prepare a report on the rule within 15 days for the congressional committees having jurisdiction. The report is to include an assessment of the agency's compliance with "the procedural steps required" by Section 801(a)(1)(B). [It is unclear whether the steps referred to are merely the agency's actions in providing the relevant information to the Comptroller General, or include the agency's efforts to comply with the cited statutes.]
Section 801(a)(3) establishes requirements for the effective date of a "major rule." A major rule is a rule that OMB finds is likely to result in: an annual effect on the economy of $100 million or more; a "major" increase in costs or prices for consumers, individual industries, government agencies, or geographic regions; or "significant adverse effects"on competition, employment, investment, productivity, innovation, or the ability of U.S. firms to compete with foreign firms. A major rule takes effect the latest of (1) 60 days after submission of the rule to Congress, (2) the date the rule would otherwise have taken effect "unless a joint resolution of disapproval" is enacted, and (3) a special date determined when Congress passes a resolution of disapproval, the President vetoes the resolution, and Congress fails to override the veto. The President is given limited authority to waive the required delay in the effective date if he finds, for example, an imminent health or safety threat.
Section 802 establishes procedures, which may last far beyond 60 days, for congressional consideration of a resolution of disapproval. The effect of Sections 801 and 802 read together is to establish a minimum 60 day delay in the effective date of major rules and to create a potential period of uncertainty thereafter. if after 60 days, Congress is considering but has not acted on a resolution of disapproval, a rule may provisionally take effect, but subject to a risk of subsequent invalidation. In the event Congress disapproves the rule, the rule shall be treated as though it had never taken effect. Section 801(f). A similar situation exists for nonmajor rules. Although the new law does not delay their effectiveness, Congress may pass a resolution of disapproval of a nonmajor rule. A nonmajor rule that takes effect before the expiration of the period for congressional consideration faces a risk of retroactive invalidation.
Under Section 802, a resolution of disapproval may be introduced up to 60 days after the submission of the rule. If such a resolution is introduced, the time allowed for its consideration is less clear cut. In general, the period expires 60 Senate "session days" after submission of the rule. A session day is a legislative concept that bears no fixed relationship to a calendar day. We have been advised that a year may contain perhaps 120 session days; the number and timing of such days may be estimated but is not known with any certainty in advance. A separate provision extends the period for consideration of a resolution of disapproval when a rule is submitted during the last 60 session days (for the Senate) or the last 60 "legislative days" (a similar concept used in the House) before adjournment of a session of Congress. In that event, the rule is also subject to disapproval in the next session or Congress, with the rule treated as being submitted on the 15th session or legislative day after Congress convenes.
The effect of these provisions is that the period for consideration of a resolution of disapproval may be protracted, in some cases extending a year or more after submission of the rule, and that the exact date the period terminates cannot be determined in advance. If, however, no member introduces a resolution of disapproval within 60 days of submission, the period terminates at that point.
ACTION REQUIRED. OSHA must transmit the required report on all new rules to Congress and the Comptroller General in accordance with procedures prescribed by the Department. OSHA should consider the impact of the subtitle in establishing the effective date for regulatory provisions. OSHA will need to coordinate, as appropriate, with OMB to determine which rules should be identified as major. [The concept of a major rule under the legislation is similar, but not identical to, the concept of a significant rule under the current Executive Order.](6)
Footnote(1) The Acting Deputy Secretary has delegated to each agency primary responsibility, working closely with the Office of the Solicitor, for assuring compliance with the requirements of this subtitle. See May 28, 1996 Memorandum for All Agency Heads from Acting Deputy Secretary Cynthia A- Metzler, "Implementation of the Small Business Regulatory Enforcement Fairness Act."
In addition, the Acting Deputy Secretary has assigned formal roles to the Office of the Assistant Secretary for Policy (OASP) and to the Office of Small Business and Minority Affairs (OSBMA). OASP will work with agencies to try to identify common elements in the various agencies' compliance guides and be available to assist the agencies as needed. OSBMA will act as departmental clearinghouse, monitor, and repository of all DOL compliance guides. OSBMA will also provide a central referral point for small businesses and others calling or writing about the Department's small entity compliance programs. (OSBMA will also periodically monitor agency activities to assure, generally, that obligations under the Small Business Fairness Act have been met.) Id. (Back to Text)
Footnote(3) Each agency has the responsibility, working closely with the Office of the Solicitor, for developing its own penalty reduction policy and program. See Metzler memo, supra. OASP will monitor implementation across the Department and prepare the report to Congress. Id. (Back to Text)
Footnote(4) The Acting Deputy Secretary has delegated to the Office of the Solicitor principal responsibility for seeing that the EAJA amendments are implemented. See Metzler memo, supra. (Back to Text)
Footnote(5) The Office of the Solicitor has been assigned responsibility for implementing the Reg Flex Act through ongoing guidance and the preparation of a comprehensive guidance memorandum on the changes to the Reg Flex Act. See Metzler memo, supra.
OSHA will have responsibility for implementing the review panel and pre-proposal SBA notification requirements after appropriate consultation with the Office of the Solicitor and OSBMA. Id. (Back to Text)
Footnote(6) Each agency will be responsible for submitting it's rules to Congress and to the Comptroller General in a timely manner, using a standardized format. OASP will establish a tracking system to maintain information on the status of all DOL regulations submitted for Congressional review. See May 1, 1996 Memorandum for B. Anderson, T. Barnicle, 0. Berg, J. Dear, A. Hricko, C. Metzler, G. Palast, J. Robinson, P. Taylor, C. Smith, from J. Davitt McAteer and Anne Lewis, "Implementation of the 'Small Business Regulatory Enforcement Fairness Act of 1996.'" (Back to Text)