October 4, 2010 Celeste Monforton, DrPH, MPH 1Comment

Ever since the Reagan Administration, the White House’s Office of Information and Regulatory Affairs (OIRA), which is part of the Office of Management and Budget (OMB), has been reviewing rules proposed by federal agencies. These regulations might come from the Dept of Energy (DOE) on efficiency standards for home refrigerators, HHS rule on premarket safety report for drugs or devices, or the Dept of Transportation (DOT) on limiting the use of wireless devices by commercial drivers. Presidential Executive Order (EO) 12866, issued in 1993 by President Clinton, is the instrument that grants OIRA this authority.

I can’t speak to the effectiveness of the rulemaking process for DOE, HHS, DOT or other agencies, but OSHA’s asst. secretary David Michaels is the first to admit that OSHA’s rulemaking process is broken. It takes far too long to get a new rule on the books to protects workers from known hazards that cause injuries and illnesses. The OSHA chief has said:

“OSHA will look for ways to streamline the lengthy rulemaking process. Some standards have taken more than a decade to establish, and that’s not an acceptable, timely response when we find workers are in danger.”

and this:

“…the current system for issuing standards doesn’t work well for those it’s supposed to benefit – workers. When rulemaking takes years and even decades, and when enormous resources required of a new standard mean we can only develop a few at a time, you know something is seriously wrong. When we’re still enforcing chemical standards based on science from the 1950s and 1960s, when OSHA has issued only one chemical standard in the last 12 years…you know something is seriously broken.”

I can identify a half dozen or more reasons why new federal worker safety rules are few and far between. Some factors are legal, others are political and administrative. A number of the procedural steps are not only required by law, they are consistent with our democratic principles and add value to the final product. Other steps, in contrast, are unnecessary hurdles that delay worker protections by months and years. Knocking down these obstacles would be a simple first step in improving OSHA’s rulemaking process.

That’s why I’m puzzled by what’s been going on between Obama’s reg czar—-OIRA chief Cass Sunstein—-and some proposed worker safety rules.

OSHA and the Mine Safety and Health Administration (MSHA) seem to have sent certain proposed and final rules to OIRA for review when the EO doesn’t require them to do so. One was a recent MSHA rule on rock dust to help prevent coal dust explosions; it was at OIRA for 6 weeks. Another MSHA proposal on pre-shift examinations was just sent to OMB on Sept 20.

The one that troubles me the most is a revision to a paper form on which less than 20% of U.S. employers are required to record work-related injuries. OSHA’s been working on this change for nearly a year, and the simple modification has been at OIRA for review since July 14.

The revision would add a column to the OSHA 300 log so that work-related musculoskeletal conditions are distinguished from other occupational injuries and illnesses. The characterization of these injuries stems from a major rulemaking initiative by OSHA on recordkeeping finalized at the end of the Clinton Administration.

When I ask DOL officials why this rule was sent to OMB/OIRA for review, they remarked: “because we have to.” When I probed, asking both DOL and OMB officials for the written policy that addresses OIRA’s role in reviewing agency’s regulatory actions, they referred me to EO 12866. (If anyone has insight into why OSHA sent the rule to OIRA for review, please let us know in the comments.)

Here’s what I read in EO 12866 (Section (a)(3)(A): OIRA only has the authority to review proposed and final rules classified as “significant regulatory action.” In fact, the exact language is: “OIRA may review only actions identified by the agency or by OIRA as significant regulatory actions.” (emphasis added)

The definition of a significant regulatory action under the EO 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.”

An agency decides whether a rule is “significant” or not, but if OIRA disagrees, the reg czar can notify the agency within 10 days and tell them otherwise. I can certainly imagine a situation in which agency officials don’t think their proposed regulatory action is significant, but OIRA staff believe it raises novel policy issues. In that case, the proposal’s classification would switch from “non-significant” to “significant” —-fair enough— and there would be paper trail available to the public to make the OIRA ruling transparent.

But what I’ve noticed are rules being sent to OIRA for their blessing that are not listed as “economically significant” or “significant,” but instead have the label “substantive, non-significant.” The three worker safety rules I mentioned above were given that label. Curiously, the EO does not offer a category called “substantive, non-significant.” In fact, the word “substantive” is used just a few times in the entire EO, including this provision, which acknowledges the primacy of the agencies for rulemaking:

“Because Federal agencies are the repositories of significant substantive expertise and experience, they are responsible for developing regulations and assuring that the regulations are consistent with applicable law, the President’s priorities, and the principles set forth in this Executive order.” [emphasis added]

This category “substantive, non-significant” puzzles me. Cass Sunstein himself describes his office’s role in reviewing proposed and final agency actions pursuant to the EO. If “substantive, non-significant” isn’t in the EO, why is the reg czar’s staff spending time and resources reviewing rules that don’t meet its threshold? And, why are agencies like MSHA and OSHA sending OIRA these non-significant rules?

The situation with this revision to OSHA’s injury recording log annoys me in particular, because of the reason the regulatory change is needed at all. Powerful economic interests killed an OSHA rule in March 2001 to address the hazards that lead to work-related musculoskeletal disorders. The nail in the coffin was their attack on a key pool of data about the type and incidence of these injuries. The special column to record musculoskeletal disorders on the OSHA injury log was removed by Labor Department officials in the first year of the GW Bush Administration. It took them four months from start (July 3, 2001) to finish (October 12, 2001) to make the special recording or musculoskeletal disorders (MSDs) go away.

During the Obama/Biden transition period, the new Administration heard that this minor regulatory change—-restoring the column to record MSDs—was one of the highest, short-term priorities among worker safety and public health advocates, many of whom strongly supported Mr. Obama’s presidency. It was included on Secretary Hilda Solis’ Fall 2009 regulatory plan, and was characterized as a “substantive, non-significant rule.” I didn’t pay much attention to that notation. I expected a simple change to a paper form, especially in the first year of the Obama/Solis Administration, would breeze through the rulemaking process. Surely if GW Bush’s Administration can do a rulemaking in four months to get rid of a column on a form, the Obama Administration should be able to put it back in as little time.

OSHA proposed this minor regulatory change on January 29, 2010, but before the document ever saw the light of day, it spent about 6 weeks at OIRA. When it was published, OSHA’s characterization of the proposal, which was sanctioned by OIRA, read:

“This proposed rule is not a ‘significant regulatory action’ within the context of Executive Order 12866 or the Unfunded Mandates Reform Act, or a ‘major rule’ under the Congressional Review Act. The rulemaking imposes far less than $100 million in annual costs on the economy, and does not meet any of the other criteria specified for a significant regulatory action or major rule in the Executive Order, UMRA and the Congressional Review Act.” [emphasis added]

OSHA proposed the minor regulatory change on January 29, 2010. It held a public hearing on March 9, 2010 and accepted public comments until March 30, 2010. Generally, representatives of workers and the public health community supported OSHA’s plan to restore the MSD column on the OSHA injury log, while trade associations representing businesses opposed it. OSHA staff reviewed all the public input, received policy guidance from the agency’s leadership and prepared a final rule incorporating or responding to all of the public and interagency feedback.

Because this is a non-significant regulatory action, I assumed the assistant secretary would sign the final rule and send it to the Federal Register soon thereafter. Instead, on July 14 OSHA sent it to OIRA for review. Just seven short days later, some of the same business interests that already commented on OSHA’s rule during the official public comment period met with OIRA staff to plead again their opposition to the minor OSHA revision to its injury log. These representatives of the US Chamber of Commerce, the National Association of Manufacturers, the National Association of Home Builders, and Associated Builders & Contractors provided the reg czar’s staff a duplicate of the comments they had already submitted to OSHA during the official public comment period. What’s the point of the regular rulemaking process if certain well-conducted interest groups are able to use extra-ordinary means to plead their case? Not just that, but there were 10 senior government officials who attending this meeting with the business reps: three from OMB/OIRA, three from OSHA, three from other Department of Labor offices and one from the Small Business Administration. Is this the best use of agency’s resources—hearing a repeat of comments already submitted to OSHA? And all this on a rule that, in my assessment, should not have been sent to OIRA for review in the first place??

But it doesn’t end there. Once representatives of workers learned that the Chamber of Commerce and other trade associations met with OIRA about the OSHA rule, representatives of the safety and health departments of the AFL-CIO and United Food and Commercial Workers Int’l Union rrequested their own meeting with reg czar’s staff. OIRA obliged and a second extra-ordinary meeting on this minor OSHA rule was held on August 2. There were 9 senior government officials in that meeting: three from OMB/OIRA, two from OSHA, three from other Department of Labor offices, and one from the Small Business Administration. I’m confident the labor representatives would not have requested this meeting with OIRA staff but felt compelled to do so after the business reps had done so first.

The OIRA chief is a big fan of cost-benefit analysis. With just a quick back-of-the-envelope calculation, I’m sure he would conclude that any benefit derived from these meetings is overshadowed by the government personnel costs and sheer redundancies to the notice and comment process.

OIRA staff shouldn’t have been in the position of doing that cost-benefit calculation and deciding whether or not to meet with these parties in the first place, though. OSHA followed the required procedure for making a revision to an injury recording log. The agency held a public hearing and accepted public comments, and prepared a final rule incorporating or responding to the comments. At that point, I think Assistant Secretary Michaels had the authority to sign this non-significant rule and sent it to the Federal Register. The delay and unnecessary resource use incurred by sending it to OIRA instead disappoints me both as someone who cares about worker safety and as a taxpayer who wants to see government staff time used wisely.

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