With five days left in calendar year 2012, the Obama Administration released to the public its current plan for regulatory and deregulatory activities, including those affecting individuals exposed to hazards in their work environment. Executive Order 12866 (adopted in 1993) says the annual regulatory plan “shall be” published in October, and the Regulatory Flexibility Act (5 USC 602) says the semi-annual regulatory agendas “shall” be published in April (Spring) and October (Fall). The Obama Administration failed to meet either of these deadlines, and simply issued for 2012 one regulatory plan and one agenda. They were made public on December 21, 2012. No explanation was provided by the Administration for its non-compliance with EO 12866 or the Reg Flex Act.
As I've written before, one aim of the agencies' regulatory agendas and plans is to inform the public of the Administration's current priorities and enhance planning for individuals and entities that may be affected by new or revoked regulations. For coal miners, the agenda may offer a hint at when to expect the Labor Department to begin enforcing a more protective exposure limit for respirable coal dust so their lungs might stave off black lung disease. Likewise, construction workers may get a better idea when they will have the same type of protection when working in confined spaces, such as storage tanks and pipes, as those that have been in place since 1993 for workers in other industries.
But as the table below reveals, neither OSHA nor MSHA are particularly astute at making realistic projections of target dates for proposing and finalizing new worker safety protections. Two years ago, for example, the Labor Department's regulatory agenda suggested that MSHA would be proposing a regulation in July 2011 to protect miners from exposure to respirable crystalline silica. It's a hazard that causes the irreversible and progressive lung disease silicosis and is associated with lung cancer, autoimmune disorders, and chronic renal disease. This latest regulatory agenda from Hilda Solis' Labor Department indicates we may see a proposed rule in August 2013. Similarly, OSHA reported in December 2010 that it expected to issue a final rule in November 2011 to protect those construction workers from confined spaces hazards. This newly released agenda offers a target date of July 2013.
[Correction: the entry marked * should read December 21, 2012 (not 2013)]
These inaccurate predictions of time-to-propose and time-to-finalize new worker safety regulations are certainly not new to the Obama Administration. There are plenty of similar examples from the George W. Bush and Bill Clinton Administrations. It makes me wonder why these projections are so often incorrect, and consistently erroneous by underestimating the time for issuing a proposed or final rule.
Some of the wide off-the-mark predictions of target dates can be explained. Take, for example, OSHA's suggestion in 2010 that it would propose for public comment in April 2011 a rule to protect workers from respirable crystalline silica. The agency completed its work on that proposal well in advance to meet that target date, but who could have predicted that the White House's Office of Information and Regulatory Affairs (OIRA) would hold captive the proposal for nearly two years and counting.
But we can't point to OIRA for the cause of all the missed predictions. It's hard to believe that with hundreds of years of combined experience in OSHA and MSHA preparing the analyses and documents required in a regulatory package that their target-date predictions could be so far and so often off the mark. Is it that the technical staff know how long it takes to get their work completed, but it's the great unknown when it comes to receiving timely feedback up-the-chain of command. That feedback comes from powerful political appointees inside and outside the Labor Department whose priorities may clash with new worker safety regulations. Or is it that the annual regulatory plan and semi-annual regulatory agendas are prepared by OSHA and MSHA merely to satisfy the letter of EO 12866 and the Reg Flex Act? After all, there's no consequence for giving the public false expectations. I guess these target dates are meaningless as a measure of agency officials' and top managers' performance.
I hope the Obama Administration proves me wrong with this most recent agenda for new worker safety and health protections. Here are the regulatory actions and new target dates suggested by MSHA and OSHA for key rulemaking activities:
- MSHA final rule on pattern of violations.
- OSHA direct final rule to clarify requirements for digger derricks.
- OSHA final rule to revise provisions in its standard on electric power transmission and distribution.
- OSHA final defining enforcement procedures for employers participating in OSHA’s on-site consultation program.
- Review by small business representatives of OSHA draft proposed rule to protect healthcare and other high-risk workers from infectious diseases.
- MSHA final rule on proximity detection on continuous mining machines to protect underground coal miners from crushing injuries.
- OSHA final rule to convert its industry classification codes from the SIC system to the NAICS system.
- OSHA final rule modifying its rule on vertical tandem lifts in shipyards.
- OSHA proposed rule to protect workers from exposure to respirable crystalline silica.
- OSHA proposed rule to modernize the system that employers use to record work-related injuries and illnesses.
- OSHA final rule to protect construction workers from confined space hazards.
- MSHA proposed rule on proximity detection on mobile equipment to protect miners from crushing injuries.
- OSHA proposed rule to protect workers exposed to beryllium.
- OSHA final rule on walking and working surfaces.
- MSHA proposed rule to protect mine workers from exposure to respirable crystalline silica.
- Review by small business representatives of OSHA draft proposed rule on combustible dust.
- OSHA proposed rule on injury and illness prevention programs.