If one listens to the speeches of many Republican members of Congress, especially those assigned to the House Education and Workforce Committee, you’d think the U.S. Department of Labor has unleashed an avalanche of new employment-related regulations that business must now meet. I heard one Hill staffer report on inquiries he receives from constituents who ask “how many OSHA rules were issued last month?” Imagine their surprise when they learn, OSHA barely issues one major rule per year. Whomever is telling lawmakers and business that the Labor Department’s worker safety agencies are out-of-control regulators who are cranking out new regulations hasn’t looked at the data. Nothing could be further from the truth. In fact, the regulatory agenda released last week by Labor Secretary Hilda Solis hardly resembles the ambitious list of action items I expected when the Obama Administration took office.
By my calculation, the Labor Department has issued only four final rules on worker safety topics during President Obama’s tenure, two from OSHA and two from MSHA. The four are rules that apply to only a small subset of businesses—-not sweeping rules that affect the majority of employers. OSHA issued:
*a regulation on general working conditions in shipyards requested initially in 1982 by the Shipbuilders Council of America, and
*a a modernized regulation on safety standards for cranes and derricks that dated back to a 2002 negotiated rulemaking activity.
The two MSHA rules issued only pertain to underground coal mines—a very small segment of the overall US mining industry. One rule addressed safety hazards related to high-voltage continuous mining machines, based one a proposal published in 2004. The other is a rule issued just last month concerning rock dusting in coal mines. It’s a practice that helps to prevent coal dust explosions—like the disaster that killed 29 men last year at the Upper Big Branch mine—-and stems from recommendations made to MSHA in 2006 by NIOSH.
In this latest regulatory plan and agenda, MSHA doesn’t project issuing any new worker safety rules before December 2011; OSHA projects issuing three new rules. They are:
*a final rule to protect construction workers from the hazards of confined spaces, like storage tanks and pipe work. A rule of this sort has been in place since 1993 for workers employed in manufacturing and other industries, but no such rule is on the books for construction workers. OSHA projects this rule will be issued in November 2011, the same target date OSHA projected in its previous reg agenda.
*a final rule to enhance provisions in OSHA’s existing safety standards for workers involved in electric power transmission and distribution, including new requirements for personal protective equipment. The existing rules date back to the 1970’s and these revisions were proposed in 2005 during the GW Bush Administration. In the previous regulatory agenda, OSHA indicated this rulemaking would be completed in May 2011. OSHA now projects the new rule will be finalized by September 2011.
*a final rule to harmonize the labeling of and data sheets for chemical substances to be consistent with global standards. OSHA started this rulemaking in 2006 during the GW Bush Administration. In the previous regulatory agenda, OSHA indicated this rulemaking would be completed in August 2011. OSHA now projects the new rule will be finalized by September 2011.
Neither of these two latter rules have been submitted yet by the Labor Department to the White House’s Office of Information and Regulatory Affairs (OIRA) for its review and approval. Because OIRA is allowed 90 days to complete its review and given its predilection for extending its reviews, (here, here) I won’t hold my breath expecting these rules to be issued in September, but I hopeful they will be published by the end of the year.
These not-yet-issued rules—all of which were first proposed during the GW Bush Administration—-hardly constitute an avalance of worker safety regulations. As someone who believes that there are too few meaningful rules on the books to protect workers from on-the-job injuries and illnesses, OSHA’s latest regulatory agenda is disappointing. Here are just two examples:
***A year and a half ago, OSHA proposed a simple modification to a form on which a fraction of employers are required to record on-the-job injuries. The proposed revision involved adding a column on the OSHA 300 form where an employer would place a checkmark if the work-related injury was musculoskeletal in nature. The proposal languished at the White House for months, OSHA projected in its previous reg agenda that the rule would be published in February 2011, but now OSHA isn’t even offering a date on which it expects to finalize it. (Previous posts here, here, here)
***After just a few months on the job, Labor Secretary Hilda Solis said in April 2009,
“…combustible dust explosions have caused many deaths and devastating injuries that could have been prevented. OSHA is reinvigorating the regulatory process to ensure workers receive the protection they need…”
She later said:
“It’s time for workers to stop dying in preventable combustible dust explosions. Workplace safety is not a slogan. It’s a priority clearly embodied in our laws.”
With that strong language from the Labor Secretary, you’d think OSHA would be on a fast track to propose a rule to protect workers from combustible dust hazards. In the previous regulatory agenda, OSHA indicated it would convene in April 2011 a panel of small businesses to review a draft rule—-a step required of OSHA before it can propose a rule. OSHA now projects that step won’t take place until December 2011. OSHA’s slow motion on this issue comes despite a report issued five years ago by the Chemical Safety Board with recommendations that OSHA adopt a rule to address this catastrophic hazard, and attention by the U.S. House of Representatives, which passed a bill in 2008 that would have required OSHA to issue a rule within 18 months. More troubling, the agency’s lack of urgency comes despite continued deaths, injuries and destruction in workplaces from combustible dust explosions.
Besides these specific examples that disappoint, it won’t be long before regulatory action by OSHA and MSHA will likely grind to a halt as the election cycle heats up. President Obama mentioned this yesterday in his press conference about the deficit reduction talks and it holds true for other aspects of government action. It’s largely the reason that worker rights and public health advocates urged the Obama transition team to lay the groundwork so the Labor Secretary and agency heads could hit the ground running to promptly put new protective rules in place. When I read this latest regulatory plan from the Labor Department, I have to wonder if they are telling us, that opportunity has now passed us by.
[My previous post on DOL's semi-annual regulatory agendas are:
* Frances Perkins is rolling in her grave, December 2006
* Progress (Not!) on workplace standards, May 2007
* OSHA's reg agena: where have all the hazards gone?, Dec 2007
* Solis' regulatory plan for OSHA and MSHA, May 2009
* Good news, bad news in Solis' regulatory agenda, December 2009
*Puzzled by MSHA's latest regulatory agenda, May 2010
*Perplexed by OSHA's latest regulatory agenda, May 2010
*Labor Dept reveals plan for worker health and safety regulations, December 2010]