September 23, 2008 The Pump Handle 0Comment

J. Davitt McAteer, who served as acting Solicitor of Labor for nearly two years,* submitted formal objections today on DOL’s proposed risk assessment rule, and indicated that if the Administration “refuses to withdraw the proposal,” he asks for public hearings [plural] and an extension of the comment period.  McAteer, who also served as the MSHA chief from 1994-2000, lays out a number of fallacies in DOL’s legal justification for the proposed rule.  In response to DOL’s assertation that they have the general authority to mandate specific risk assessment practices on MSHA and OSHA, McAteer writes: 

“These proposed regulations constitute a thinly veiled attempt to expand this limited ministerial authority into an unathorized substantive rulemaking procedure.  Indeed the title of the proposed regulations clearly indicates that the proposal goes far beyond Section 301’s grant of authority and are therefore invalid…”

McAteer reminds Asst. Secretary Sequiera, the political appointee who signed off on the proposed rule, that under the Mine Act and the OSH Act, Congress outlined specific requirements for rulemaking which supplement or supercede the minimal requirements of the Administrative Procedure Act.  He writes:

“The Supreme Court has recognized that, in rulemaking, administrative agencies must follow the specific mandates of their enabling statutes (Bowers v. Georgetown Hospital, 1988).   The court said ‘it is axiomatic that an administrative agency’s power to promulgate legislative regulations is limited to the authority delegated by Congress.” (emphasis in original)

McAteer also points to a number of examples in the OSH Act and Mine Act which expressly require the Secretary to publish a notice of proposed rulemaking, NOT an ADVANCED notice of proposed rulemaking (ANPRM), which is what DOL’s proposed regulation would require.

The short 30-day comment period for this proposed rule ends on Monday, September 29.  Mr. McAteer’s letter is the fourth request sent to Asst. Secretary Sequiera asking for the rulemaking record to be open for an extended period of time.  So far, Mr. Sequiera has not answered those requests.

*February 1996 to December 1997

Celeste Monforton, MPH, DrPH is a researcher at The George Washington University School of Public Health.  She expressed her serious concerns about DOL’s proposed rule on risk assessment at a congressional hearing on September 17 (here).

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