Worker safety rulemaking 101, Part 2

The process of putting a new federal regulation in place to protect individuals from serious hazards at work often takes five or more years. Part 1 of "Worker safety rulemaking" described the steps leading up to OSHA proposing a new rule, to the point where the agency's chief decides whether to send the draft proposed rule to the White House for approval.

Submitting draft proposed rule to White House for review. Under a 1993 Presidential Executive Order (EO 12866), all significant regulatory actions planned by a federal agency must be submitted to the White House's Office of Information and Regulatory Affairs (OIRA) for review. A "significant regulatory action" is any regulatory action that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more, or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive order."

Looking at the recent history of OIRA's review of proposed worker safety regulations, nearly all of them are classified as either "economically significant" or "other significant." This tells us that OSHA doesn't make regulatory decisions on its own---whether to propose, finalize, or withdraw a rule---but with the White House's involvement. It occurred in previous Presidential Administrations and it happens in this one.

EO 12866 indicates the OIRA's review should take no more than 90 days, but there are plenty of example (here, here) in which the review lasted much longer. After receiving OIRA's approval, which is sometimes contingent on the agency making revisions to the proposed rule, OSHA can publish it in the Federal Register to begin the public comment process.

Requesting public comment on a proposed rule. Under the OSH Act, OSHA is required to give interested parties 30 days to submit comments on a proposed new health or safety standard. Typically, the agency provides a 60 or 90 day comment period, and may also extend the time period on its own accord or at the request of interested parties. Individuals may submit comments by mail, email, fax or hand carry them.

In addition to providing the draft regulatory text, OSHA's Federal Register document will also describe the evidence relied on by the agency to support the rule, explain its cost of compliance estimate, and request input on very specific questions. In OSHA's 2008 proposed safety standard on cranes and derricks, for example, the agency asked interested parties for their expertise on questions, such as:

"Would a parts supplier be able to furnish the correct part if the type of device (e.g., boom hoist limiting device) and the model of the crane are provided?" and

"Should the rule require guy tension (as well as other guy specifications) to be developed by a qualified person if not available from the manufacturer?"

These kinds of questions tell me that OSHA staff had been looking closely at how this construction equipment is used on worksites. It also shows an appreciation that unlike the OSHA staff, individuals who work everyday with this equipment probably have answers to these questions at their fingertips. Experts who participate in the public comment process and share their expertise provide valuable information to the agency.

All the comments submitted by the public, along with all the documents developed by OSHA to support the rule, are posted on Regulations.gov and organized by a Regulation Identifier Number (RIN). For example, OSHA's 2007 proposed rule on working conditions in shipyards drew comments from 42 individuals and organizations, from the Puget Sound Shipbuilder's Association, Trident Seafood and the US Navy, to Northrop Grumman and Golden Alaska Seafood. (A proposed rule that potentially could affect a wider variety of industries would likely receive comments from ten times as many individuals and organizations.) The North Pacific Fishing Vessels Owners (NPFVO), among others, requested a public hearing on the proposed rule.

Conducting a public hearing on the proposed rule. Under the OSH Act, any individual with objections to the proposed rule may request a public hearing on it. The request must be made no later than the final day for submitting public comments, and must state the person's grounds for objecting to the proposed rule. Within 30 days of receiving the request, OSHA must post a notice in the Federal Register announcing the time and place for the hearing.

OSHA's public hearings on a proposed rule follow procedures outlined in 29 CFR 1911, and are overseen by an administrative law judge. An excerpt of the judge's instructions for OSHA's 2008 shipyard safety proceeding illustrates how the hearing is conducted:

"My role as presiding judge will be limited to conducting this hearing to assure that a complete and accurate record is made and that all interested parties receive a fair hearing and have an opportunity to submit their information. ...Last month, OSHA sent the prehearing guidelines and hearing schedule to those persons and organizations who filed a notice of intention to appear at this hearing."

"After each witness has completed giving oral testimony, parties who have filed a notice of intention to appear may question the witness. Each participant is expected to limit questions to 15 minutes. After participants have questioned the witness, OSHA will then have an opportunity to ask questions."

The key OSHA staff responsible for developing the proposed rule will participate in the hearing, as well as the agency's legal advisors from the office of the Solicitor of Labor.

Some OSHA public hearings last for a couple of days, others have extended for several weeks. The number of days set aside for the public hearing depends on how many individuals submit a notice to OSHA of their intent to testify. The greater the number of witnesses, the longer the hearing will take to complete. In 1994 when OSHA proposed a rule on indoor air quality, which included provisions to address occupational exposure to tobacco smoke, the hearing seemed to last the entire fall season. It began in September and ended in December. (The proposal was later withdrawn by OSHA.)

When the administrative law judge gavels the hearing closed, another comment period begins for individuals who participated in the hearing. This is their opportunity to supplement or clarify the information they presented, offer new data or evidence, and comment on the testimony of other witnesses. Following OSHA's public hearing on its proposed cranes and derricks rule, for example, the judge established a 90-day post-hearing comment period. That means for this particular OSHA rule, interested parties had an eight-month period to participate actively and provide input on the proposal.

Reviewing the record of comments & preparing the final rule. The public comment period and hearing generates thousands of pages of information and evidence for OSHA to consider. If the agency learned its proposed regulatory approach is infeasible for some or all of the industries potentially affected by it, OSHA would likely revise its approach, or even drop the idea of a new regulation altogether. Those are the type of difficult policy decisions for the OSHA director to make. It's one of the reasons that this person is subject to advice and consent by the U.S. Senate.

Proceeding from the proposed rule stage to a final rule requires an additional investment in agency resources. OSHA staff must review all the public comments submitted and testimony provided, and make recommendations to senior agency officials on how to address concerns raised by the commenters. Staff will use the evidence submitted by interested parties to revise the regulatory text of the rule.

Let's say, for example, OSHA had proposed that employers provide task training to workers every six months. Commenters offered credible evidence explaining that annual task training would be sufficient. Examining the issue, the OSHA chief agrees and the staff revise the draft rule accordingly.

The regulatory text of many OSHA final rules differs from what was presented in the proposed rule. OSHA doesn't, however, just pull something out of thin air and insert it in the final rule. The agency has a legal obligation to demonstrate that the provisions of the final rule are a "logical outgrowth" (504 F.2d 646 (1974)) of the rulemaking record of the proposed rule.

As a result of revising the regulatory text, most of the analyses that OSHA prepared to support the proposed rule would have to be recalculated to conform with the final rule. These include the:

Technological feasibility analysis;

Economic feasibility analysis;

Regulatory Flexibility analysis to estimate impact on small businesses;

Paperwork burden calculation;

Cost-of-compliance estimate;

Cost-effectiveness assessment; and

Benefits projected.

Receiving feedback and approval in the Labor Department for draft final rule. As was the case for the proposed rule, OSHA will ask other Labor Department officials and the Solicitor of Labor to review and provide feedback on the final regulatory text, the history and explanation of the rule, and all of the required analyses. Once the Labor Department brass is satisfied with the documents, and if the rule is considered a "significant regulatory action," OSHA will submit it to the White House's OIRA for review. As is the case for a proposed rule, OIRA is supposed to complete its review within 90 days. If approved, OSHA will publish the final rule in the Federal Register and list a date or series of dates for employers to comply with it. OSHA's final rule on shipyard safety, for example, was published on May 2, 2011. Most provisions took affect four months later, and a few will not be enforceable until the end of October.

Objecting to a new OSHA final rule. Under the OSH Act, anyone who may be adversely affected by a standard issued may file a petition in the U.S. court of appeals challenging its validity. This must be done within 60 days of the final rule being issued. A request for judicial review by one individual or organization (or a group of them) may compel others to intervene in the lawsuit. Look at all the parties that joined the lawsuit against OSHA's 1989 final rule on hazardous air contaminants.

A request for federal court review of the rule does not automatically halt the rule's implementation. The petitioner would have to file a motion requesting a "stay" of the rule. As Randy Rabinowitz explains in her excellent textbook "Occupational Safety and Health Law" (2nd ed., Bureau of National Affairs, 2008) the criteria often used by courts to determine whether to issue a stay includes whether the petitioner has made a strong showing that they are likely to prevail on their appeal; demonstrated they will suffer irreparable harm without the stay; and/or explained why a stay is in the public interest. Over the years, some petitioners have prevailed in their requests for stays, others have not.

In one of OSHA's more recent rulemakings on a health hazard, the agency issued a final rule on hexavalent chromium---a known human carcinogen--- that included a permissible exposure limit (PEL) of 5 micrograms per cubic meter of air (8-hour time-weighted average.) The 2006 final rule was challenged by Public Citizen and the United Steelworkers as not protective of workers' health. They argued that a 1 microgram PEL was feasible and should have been adopted by OSHA. The U.S Court of Appeals for the Third Circuit heard the case and ruled on it three years later. The court upheld the OSHA rule and reinforced language from previous decisions that give deference to the decisions of federal regulatory agencies:

"...the ultimate determination of the appropriate exposure level is a legislative decision in the exercise of congressionally delegated powers. Even though we might have drawn different inferences from the information before the Secretary, his conclusion was reasonably drawn from the record and, therefore, it must be upheld. ...We will accordingly not disturb the Agency's decision."

Currently, OSHA has one proposed rule open for public comment. The proposal covers several topics including a draft provision to require employers to notify OSHA within 8 hours of any work-related hospitalization. Currently, employers are only required to notify OSHA when three or more employees are hospitalized. Another provision would require employers to notify the agency within 24 hours of a worker suffering an amputation injury. Under existing OSHA rules, employers are not required to contact OSHA when an amputation occurs. Finally, the agency is proposing to convert the industry classification system it uses (i.e., SIC which was originally established in 1937) to the North American Industry Classification System (NAICS). OSHA is providing a 90 day comment period, which ends on September 20, on the proposal.

As for final rules, OSHA does not have any currently at OIRA for review. The agency's most recent regulatory agenda indicates it is preparing several final rules it expects to publish in the coming months: a globally harmonized system for hazard communication (in September 2011), improved safety standards for employees working around electric power transmission and distribution lines (in September 2011), and standards for construction workers who enter confined spaces (in November 2011). Based on the information presented above, and your own understanding of the Obama Administration's views about regulations, I'll let you predict which of these final rules will be issued by those target dates.

This two-part post "Worker safety rulemaking" describes the major steps followed by OSHA to issue a new regulation. The process is dictated by statutory requirements and Administration policies. It may appear systematic and efficient, but there are numerous ways the process gets sidetracked, resulting in long delays before new, more protective worker safety rules are put in place. More on that in a future post.