September 5, 2007 The Pump Handle 0Comment

With summer vacation over and school back in session, my thoughts naturally turn to homework, term papers and due dates.  Perhaps if Secretary of Labor Elaine Chao and OSHA’s Asst. Secretary Edwin Foulke viewed their responsibilities to the nation’s workers like students with homework assignments, they’d take more responsibility for completely their assignments well and on time.  Right now, OSHA (and the Secretary) seem to treat deadlines like those students who never show up for class, and then expect the teacher to give them an extension.

A few months ago, Mrs. Chao and Mr. Foulke signed-off on OSHA’s semi-annual regulatory agenda and it was published in the Federal Register (72 FR 22828, 4/30/07)  The document is supposed to outline what OSHA “can accomplish in the next 12 months” based on “available resources.” (FR 22828)   In regulatory circles, however, the Department of Labor’s regulatory agendas are a joke because the “expected action dates” are meaningless.  These agendas are not taken seriously by anyone because OSHA (and MSHA, too)  rarely follow-through with the described action by the published target date.  Then, every six months, a new regulatory agendas which provides revised target dates which are equally meaningless.*  (Previous post on this topic here, here, here)   

OSHA’s current regulatory agenda, for example, describes a variety of important rulemakings that should be completed to protect workers from health hazards.  A rule to protect workers from chronic beryllium disease and lung cancer seems to be perpetually stuck in limbo created by the “Small Business Regulatory Enforcement Fairness Act” (SBREFA) mandates (more here on OSHA’s Beryllium rule and SBREFA) and a rule to protect workers from the serious adverse health effects of respirable crystalline silica seems to be subject to endless, alleged, peer review.  Do either of these hazards, which have been recognized as threats to workers’ health for decades (in fact centuries for respirable silica,) need this much review before a rule is even proposed?  Isn’t that the purpose of the public comment and public hearing process?

OSHA’s regulatory agenda also indicates that the agency would issue a proposed rule in August 2007 to protect construction workers from the dangers of entering confined spaces.  Well, August has come and gone, and there’s no proposal yet.  This is not a worker hazard that has emerged in just the last few years.  No, OSHA formally recognized in the early 1980’s that construction workers were dying in confined spaces and a workplace safety standard was needed.  In 1993 when OSHA issued a safety standard on confined space to protect workers in “general industry” (i.e., factories, plants, other workplaces, but not construction sites) it acknowledged that the public comments included recommendations that the rule be expanded to cover construction workers. (58 FR 4462, 01/14/93) 

In the agency’s April 1994 semi-annual regulatory agenda, it stated:

“OSHA has recently promulgated a final rule covering permit-required confined spaces for general industry. here is no comparable standard for the construction industry at this time. This rulemaking is necessary to assure the safety and health of construction employees who are required to perform work in confined spaces and who are not adequately protected at the present time.” 

The agency promised to issue a proposed rule by December 1995; then 1995 became 1996, and then 1997.  In November 1998, its regulatory agenda seemed more definitive:

“OSHA intends to issue a proposed rule addressing this construction industry hazard in the summer of 1999, after extensive discussions with the Advisory Committee on Construction Safety and Health, and other stakeholders” with a proposal published by July 1999.

But, no.  These promises came and went.  Every six months, OSHA’s regulatory agenda was revised, and every time, there was a a new “target date” for this and many other worker safey and health rules.

OSHA’s April 2000 agenda again noted its plan to address confined space dangers for construction workers:  

“OSHA intends to issue a proposed rule addressing this construction industry next year.”

Then its December 2002 agenda again said:

“OSHA intends to issue a proposed rule addressing this construction industry hazard next year.”

You get the picture.  Now, it’s September 2007, and OSHA’s last regulatory agenda (April 30, 2007) said the proposed rule to protect construction workers from confined spaces would be published by August 2007.  

So, where is it? 

Well, this time, it looks like there really may be a rule and it’s at OMB’s Office of Information and Regulatory Affairs (OIRA).  It was submitted by OSHA to ORIA in mid-July (here) for this layer of White House review.  Typically, OIRA will take at least 90 days to evaluate an OSHA proposed rule.  During that time, companies and trade association affected by the rule may ask to meet with OMB staff. (example here and here) 

This may also be the first major OSHA rule reviewed by an OIRA led by Susan Dudley, who  was recess-appointed by President Bush in April 2007.  (Previous posts here, here, here)  It may be our first concrete example of how the new OIRA chief marries her philosphical views on workplace regulations to the statutory requirements of the OSH Act which require the agency to regulate serious hazards based on the “best available evidence”.

Celeste Monforton, MPH worked at OSHA from 1991-1995 and MSHA from 1996-2001.  She is a research associate, lecturer and doctoral candidate at the George Washington School of Public Health and the SKAPP Project.



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