December 17, 2014 Celeste Monforton, DrPH, MPH 1Comment

[Updated below (March 13, 2015)]

In September 2013, fifteen civil rights and labor organizations sent a 72-page petition to OSHA. The groups were urging the agency to develop a regulation to protect poultry and meatpacking workers from repetitive motion injuries. More than 16 months later, OSHA has yet to send the petitioners a single piece of paper in response to their rulemaking request. You’d think a thoughtful letter, written by pro-worker groups including the Southern Poverty Law Center, Interfaith Worker Justice and the National Council for Occupational Safety and Health, would be deserving of even a brief written response from an Obama OSHA. But no.

Today, those groups are pressing the matter. They sent a follow-up letter to OSHA chief David Michaels, PhD, MPH, asking for a written response to their petition.

 “The Administrative Procedure Act requires an agency to ‘conclude a matter presented to it,’ including a petition for issuance of a rule, ‘within a reasonable time.’ Furthermore, an agency must provide ‘prompt notice…of the denial’ of a rulemaking petition submitted to such agency. A denial must also ‘be accompanied by a brief statement of the grounds for denial. Therefore, we respectfully request that OSHA provide us with a written response to our rulemaking petition, along with the agency’s grounds for its decision.” (emphasis in original)

The group noted:

“During the most recent meeting on July 22, 2014, you indicated that OSHA would formally decline the request to promulgate a work speed standard for meat and poultry workers. However, to date we have not received a formal, written response to our petition…”

The way federal agencies such as OSHA handle (or mishandle) rulemaking petitions has been the subject of discussions at the Administrative Conference of the US (ACUS). Stephen Lee of Bloomberg BNA’s Occupational Safety & Health Reporter described in the publication’s December 11, 2014 edition a recent ACUS recommendation that

“seeks to hold agencies more accountable for handling rulemaking petitions that come in from the public…[including] that agencies draft written procedures for handling petitions.”

Lee quotes New York University law professor Jason Schwartz

‘‘Petitions provide an essential mechanism to let the public participate, not just by passively commenting on government action, but actively helping set the agenda and helping combat agency inertia. …. You can understand the frustration of petitioners who wait through years of silence, only to hear their petition has been denied because the agency says it is focused on other priorities. The point was to change the priorities.’’

 Natashia Ford worked at Wayne Farms poultry processing plant in Decatur, Alabama.

“The line never stopped. The line kept going,” she explained. The only time I think they’d stop the line is because a chicken got caught in the line, but for a human, not unless somebody got cut or something. That’s the only way the line shut down—because they’d have to rinse the blood off the line.”

Ms. Ford would like OSHA’s help in changing the priorities of poultry processing companies—to care as much about the safety of their workers as they do about the chicken products they produce. That change can happen with an OSHA regulation.

To-date, the agency has avoided giving Ms. Ford and  other poultry and meatpacking workers an answer to their petition. OSHA must be really uncomfortable explaining to them why the agency won’t regulate the hazards that cause them to suffer musculoskeletal injuries. But OSHA’s discomfort pales in comparison to the pain these workers endure cutting, twisting, slicing, bending, hanging, reaching and grabbing the poultry and meat products that end up on our lunch and dinner plates. These workers deserve an answer in writing to their request.

[Update (March 13, 2015): Last month, OSHA sent a written response to SPLC about its petition for rulemaking.  OSHA denied the request for rulemaking, saying that the agency’s limited resources do not allow it to prepare the comprehensive analysis needed to support a regulation.]

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