During his first week in office, President Obama promised an Administration defined by
“unprecedented level of openness…to ensure the public trust and establish a system of transparency, public participation, and collaboration.”
But that’s not been the case when it comes to a draft worker safety rule developed by federal OSHA. Almost all the participation has been among special interest groups–not the ordinary workers who have the most at stake—and not in a public process that builds trust and is participatory.
The proposed regulation would affect workers exposed to respirable crystalline silica (e.g., stonecutting, sandblasting, tuckpointing, brickmaking, foundries, and road, tunnel and bridge crews) who are at increased risk of developing the lung disease silicosis, cancer, autoimmune and other disorders. Instead of allowing the public dialogue to commence on a proposed rule, the White House has been “reviewing” OSHA draft proposed silica rule since February 14. I wonder how much reviewing is actually going on. White House staff have hosted at least seven meetings with special interest groups, most of whom are opposed to the worker safety rule.
When President Obama extolled the virtues of public engagement to enhance Government effectiveness, I didn’t think he meant closed-door meetings with special interest who want to influence a draft rule before it is even proposed. The parade of lobbyists began when a group organized by the American Chemistry Council’s Crystalline Silica Panel met with staff from the White House’s Office of Information and Regulatory Affairs (OIRA) on March 31 hoping to convince the OIRA staff that an OSHA rule on silica is not needed. Participants at the meeting included representatives from the Industrial Minerals Association-North America, Unimin Corporation, the American Foundry Society, and the Refractories Institute. The way this game is played in Washington, once OIRA opens the door to one group, others start marching in, often to reinforce the anti-regulation message.
On April 7, it was a meeting with Whiteacre Greer Co., Redland Brick Inc., the Brick Industry Association, and the Glenn Consulting Group;
On April 19, a meeting with Associated Builders & Contractors, Associated General Contractors of America, the American Road & Transportation Builders Association, Independent Electrical Contractors, Mechanical Contractors Assn. of America, Mason Contractors Assoc. of America, the National Association of Home Builders, the National Roofing Contractors Association, and the American Subcontractors Association;
On June 8, a meeting with Martin Marietta, Vulcan Materials Co., National Stone Sand & Gravel Assoc., and Maryland Materials Inc.;
On June 14, a meeting with the National Concrete Masonry Association, National Redi-mix Concrete Association, Portland Cement Association and the Precast/Prestressed Concrete Institute.
Logically, organizations that are supportive of the OSHA rule tried to counter the messages of opposition by requesting their own meetings. The American Thoracic Society—physicians who specialize in treating lung disease—-met with OIRA staff on May 4. The next day, representatives of the AFL-CIO, Change to Win, the Laborer’s Health and Safety Fund, the Center for Construction Research & Training, the United Auto Workers, and the United Steelworkers had their own meeting with OIRA staff.
Despite all the rhetoric about making government more efficient and effective, the Obama Administration is as guilty as its predecessor for allowing these extra-curricular discussions to continue. As I’ve written in the past, the Administrative Procedure Act guides the process that OSHA and many other federal agencies use to develop proposed and final rules. It is meant to be a process that applies to everyone equally; not one that gives special access to the politically-connected, economically privileged, or favored groups. Agencies like OSHA, develops a proposed rule and the public is given an opportunity–an equal opporunity—to provide comments. The comment period is open to everyone. This should be the one and only avenue for those who endorse or oppose a proposed rule to provide their perspective, expertise, or opinion to an Administration. There’s no reason that OIRA couldn’t respond in this way to requests for meetings on draft proposed rules:
“we appreciate your interest in this issue and we hope you will comment on the agency’s proposed regulatory text and alternatives when they are published.”
I agreed with the President’s statement that
“knowledge is widely dispersed in society, and public officials benefit from having access to that dispersed knowledge. Executive departments and agencies should offer Americans increased opportunities to participate in policymaking and to provide their Government with the benefits of their collective expertise and information.”
But, I expected such dialogue, discussion and debate on regulatory alternatives for worker safety improvements to occur through the Administrative Procedure Act process. Afterall, those are the mechanisms in which ordinary citizens are expected to participate.
The White House’s stalled review of the draft OSHA rule is disconcerting to key Members of Congress. Senators Tom Harkin (D-IA) and Patty Murray (D-WA) and Representatives George Miller (D-CA) and Lynn Woolsey (D-CA) sent a letter to the Office of Management and Budget’s Jacob Lew saying the delay “of a long overdue safety standard threatens to leave two million workers at risk” of disease.