August 31, 2009 The Pump Handle 2Comment

In a two-page notice in today’s Federal Register, the Department of Labor’s acting assistant secretary for policy has officially withdrawn the so-called “secret rule” on occupational health risk assessment.  It was exactly this time last summer that the G.W. Bush Administration’s Labor Department proposed new requirements for OSHA’s and MSHA’s preparation of occupational health risk assessments.  The proposal was infamous for both the secretive manner in which it was developed and for its likely adverse impact on the already slow pace of rules to protect workers’ from exposure to toxic materials and other health hazards.

In today’s Federal Register notice,  the Department explains its reasons for withdrawing the proposed rule, which mirror the comments expressed last year by public health, worker advocates and others.  The rule would have required OSHA and MSHA to publish an “advanced notice of proposed rulemaking”  (ANPRM) for every potential regulatory action on a health hazard.  Today’s announcement correctly notes that OSHA and MSHA should continue to have the discretion to determine whether an ANPRM is necessary, adding:

“an inflexible requirement would not fit the varied circumstances in which rulemakings are conducted and could cause unnecessary delays.”

Secretary Solis’ Labor Department also rejected the previous Administration’s plan to mandate industry-by-industry data on working life exposures—a radical departure from the OSH Act’s and Mine Act’s progressive requirements to regulate occupational hazards for the “period of his working life.”   In today’s notice, the Department offers a substantial list of judicial decisions upholding the longstanding DOL policy of using 45 years as the protective definition of a “working life,” and rejecting claims that OSHA must conduct industry-specific risk assessments.

The Pump Handle is proud of its role in exposing the previous Administration’s attempt to install hurdles in the process for protecting workers from on-the-job hazards.  Now that the “secret rule” chapter is finally closed, we look forward to seeing OSHA and MSHA ambitiously proposing health-protective standards on crystalline silica, respirable coal dust, beryllium, metal working fluids and others.

2 thoughts on “Risk assessment “secret rule” officially withdrawn

  1. Respect for due process and the rule of law need not be the enemy of health and safety. Requiring full APA rulemaking ensures that the regulatory action is both efficacious and efficient. Cutting out procedural safeguards always results in agency actions that are the product of personality rather than science.

  2. Michael,
    Did someone suggest to you that this latest action by the Dept of Labor will somehow allow it to avert APA rulemaking? It does not. OSHA and MSHA will still have to comply with all existing requirements for public notice and comment.

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