Earlier this month, the U.S. Government Accountability Office issued a report on the snail's pace of the OSHA process of issuing new rules to protect workers from health and safety hazards on-the-job. One telling table in the document showed the agency issued about 20 new major regulations in each of the previous two decades (i.e., 24 in the 1980's and 23 in the 1990's), but during the 2000's, OSHA only issued 10 final rules. Although some of these regulations only affected a fraction of all U.S. businesses because the hazards are industry-specific (e.g., servicing of rim wheels, grain handling,) GAO calculated it took nearly 8 years for OSHA to issue a new worker protection rule.
The GAO report was released as part of a Senate hearing by the Committee on Health, Education, Labor & Pensions (HELP) entitled "Time Takes its Toll: Delays in OSHA's Standard-Setting Process and the Impact on Worker Safety." Several of the witnesses made the case that OSHA's inability to issue new safety rules expeditiously has real consequences for affected workers, their families and communities. Equally important, the witnesses offered a slew of ideas for potentially accelerating OSHA's rulemaking process in order to shave off of these delays.
The witnesses----Michael Silverstein, MD, MPH (University of Washington School of Public Health & Community Medicine,) Randy Rabinowitz, JD (OMB Watch) and David Savardi, MSc, JD (on behalf of the U.S. Chamber of Commerce)---- offered a variety of ideas for improving the process. Some of them could be taken up by the Administration itself, while others would need congressional action.
The Administration could, for example:
(1) acknowledge that the public hearing process used for years by OSHA is unique among federal agencies. It provides more than ample opportunity for interested parties to air their views and debate the testimony of others. An administrative law judge presides over the hearing which often goes on for several weeks or months. For that reason, OMB should exempt OSHA rules from the review requirements of Executive Order 12866. As Dr. Silverstein noted,
"All issues of concern to OMB are discussed and debated on the record, including the need for regulatory action, economic impacts, potential alternatives, and technological and economic feasibility. ...Given this openly deliberative process the OMB review only slows down the rulemaking without adding substantial value."
(2) direct OSHA and NIOSH to work together to establish a priority list for workplace health and safety standards, with NIOSH committing to invest resources in developing criteria documents with detailed data on exposures, risks and feasible controls; and OSHA committing to rely on these analyses to support regulatory proposals.
(3) exempt OSHA and NIOSH from OMB review of survey instruments that the agencies use to collect data from employers and workers on hazards, methods in use to eliminate or control them, and the costs related to addressing the hazards. Under the Paperwork Reduction Act (PRA), OMB staff review all agencies' "information collection" requests for surveys going to nine or more businesses or individuals. The OMB approval process often takes as long as one year. As Ms. Rabinowitz noted:
"the PRA was supposed to reduce the burden on government paperwork on citizens and non-government entities. Ironically, centralization and review by OMB generated new paperwork and delays for government agencies as they waited for the office to review and approve their requests to collect the information necessary to support new standards."
(4) prohibit OMB from second guessing OSHA's scientific judgement. The authority to develop regulations to protect workers from significant health and safety risks resides with the Secretary of Labor, acting through OSHA. As Ms. Rabinowitz commented:
"OMB analysts are not qualified to assess the complex toxicological, epidemiological, and quantitative judgements OSHA makes when it evaluates workplace risks."
Moreover, interested parties can challenge OSHA's final rules in the U.S. Court of Appeals if they believe the Secretary acted improperly. (Many OSHA standards have been challenged in this way and the courts have decided whether the agency action met all its legal obligations.)
(5) remind itself and the Labor Department that a good workplace safety regulation is better than no rule at all. As Mr. Savardi put it "do not make 'perfect' the enemy of the 'good.'" This is especially true when OSHA is developing a PROPOSED rule---the document about which it will seek and receive extensive public input. The agency can propose multiple approaches, offer alternatives, and ask for information on options it is considering but for which it may need more information. All the t's and i's don't have to be crossed and dotted in the PROPOSED standard. The final regulation issued by OSHA must merely be a logical outgrowth of the proposal and the rulemaking record.
There are also steps that Congress could take up (if there was a majority of Members who cared enough about working people and protecting them from serious occupational hazards,) such as:
(1) giving OSHA a deadline to update the agency's permissible exposure limits for hundreds of toxic substances to make them more protective of workers' health and consistent with limits already adopted by industry consensus groups, or international organizations.
(2) appropriating funds for NIOSH to conduct of a national occupational exposure survey to assemble reliable data on U.S. workers' exposure to chemical, physical, biological and organizational hazards. The last national survey of this kind was completed in 1983.
(3) directing OSHA to act, by a date certain, when the U.S. Chemical Safety and Hazard Investigation Board (CSB) or other federal agency within its statutory mandate, recommends a new or improved standard.
(4) allowing OSHA to adopt rules that are technologically based and placing the responsibility on the affected industries for demonstrating why such controls are infeasible.
(5) prohibiting OMB from imposing analytical requirements on OSHA, such as cost-benefit analysis, which contradict the agency's authorizing statute and U.S. Supreme Court's interpretations of it.
Implementing some or all of these recommendations could substantially improve OSHA's performance in issuing protective standards for workers who are exposed to dangerous on-the-job hazards. The Obama Administration has the authority to do some of them, and I hope the Secretary of Labor is urging her White House colleagues to seriously consider them. Congress is another story, with bills flying up and down the halls of Congress that would make it even more difficult for OSHA to issue regulations.
Senator Tom Harkin (D-IA), the chairman of the HELP Committee, concluded the hearing with this promise:
"this committee is going to move ahead on some OSHA things, I can assure you."
The Senator didn't say if those things would address fixing OSHA's rulemaking process, but if he chose to do so, he already has a nifty list from which to work.
I thought it was interesting that Senator Harkin at one point said that he hadn't realized how much of a role OMB played in the OSHA regs (i.e., that it's responsible for big chunks of the delay). Sometimes it seems like Congressional hearings are just about grandstanding and firing off sound bites, so it's nice to be reminded that they can actually be an opportunity for members to learn something.