Predicting key regulatory action on new worker safety protections should not be that difficult

The Labor Department released last week its semi-annual regulatory agenda and it’s full of disappointment for those expecting new worker safety regulations from the Obama Administration. The Mine Safety and Health Administration (MSHA) doesn't expect to publish a proposed rule to protect mine workers from respirable silica until April 2016. Six months ago, the agency suggested the proposal was imminent. OSHA doesn't expect to convene a panel of small businesses to review a draft proposed rule to address combustible dust until February 2016. A year ago the agency said it would be ready for that step in December 2014. Even a rule that simply clarifies an employer’s responsibility to maintain injury records---a clarification made necessary by a judge’s ruling---is stuck in the regulatory black hole.

On top of that, delayed action is occurring on pre-regulatory steps. Last fall, MSHA indicated it planned to request information from the public in April 2015 on the adequacy of its regulations to protect workers exposed to diesel exhaust. MSHA said it wanted to hear from the public in light of the International Agency for Research on Cancer’s designation in 2012 of diesel exhaust as a human carcinogen. Now MSHA projects they will publish a “request for information” in December 2015. Another “request for information,” this one on the adequacy of requirements for operators of metal and nonmetal mines (non-coal) to examine work areas for hazards, was expected to be published next month. Now it’s not expected until September.

I’ve written many times before about OSHA’s and MSHA’s regulatory agendas (e.g., here, here, here) and their questionable value. The document is supposed to provide the public with realistic information on what the agencies expect to accomplish on the regulatory initiatives they’ve identified as their priorities. For the most part, OSHA's and MSHA's regulatory agendas are fiction.

Get this: OSHA issued one major rule this year (and I predict it will be the only one) which will protect construction workers from confined space hazards. For five years---five years---the agency suggested in its regulatory agenda that work on it was nearly complete. In June 2011, the agency estimated the final rule would be published in November 2011. In January 2012, the agency estimated it would be issued in June 2012. In November 2013, the estimate was February 2014. How can those estimates---time after time after time---be so wrong?

Cole Stangler with International Business Times received this explanation when he asked this question to the Labor Department. They told him the regulatory agenda is

"more of a guidance document than a firm schedule, and although we try to meet the scheduled times, the timing of the actual regulatory process is influenced by many factors that are often difficult to predict.”

Here are two things wrong with that explanation.

(1) the regulatory agenda is not akin to a “guidance document.” Although I don’t expect agencies to be held firm to their estimated target dates for key action, the regulatory agenda is supposed to “promote predictability and reduce uncertainty.” Those are President Obama's words, not mine. I can understand missing the mark on a projected target date by a few months, but not each and every time, and for each and every rule. It seems to me there is no serious effort made by the agencies to provide target dates to the public that are realistic.

(2) There’s no doubt that the “regulatory process is influenced by many factors.” Yes, staff come and go, agency decision-makers have busy schedules, new information and data becomes available, inter-agency squabbles develop. But these factors and others are not “difficult to predict,” they are par for the course and should be expected.

For two agencies with about 40 years of rulemaking history---and experienced staff who know many of the managerial, budgetary, legal and political factors that can (and will) develop----the agencies’ target date estimates should surely be closer to the mark. Political foot dragging and lack of accountability allow the fiction to continue.

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