Washington Update

Washington Update: The 'stumbling block' of rulemaking reviews

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The rulemaking process has many steps, and OSHA is legally required to go through all of them for most new regulations and standards. One step along the way, however, is particularly frustrating to some stakeholders.

The Office of Information and Regulatory Affairs, which falls under the White House Office of Management and Budget, is tasked with reviewing proposed and final regulations from numerous agencies before the regulations are made public. The review is required for most rules, and is limited to 90 days. This 90-day limit can be – and, in the case of OSHA, often is – extended. In some instances, it’s extended by several months. OSHA’s proposed silica regulation was under OIRA review for more than two years. (For more on the recently issued final rule on silica, see OSHA publishes final rule on silica) And at press time, an OSHA rule that would require employers to submit electronic injury records had been under review for more than five months.

Rule No. of days under OIRA review
Confined Spaces in Construction (final rule) 140
Walking/Working Surfaces and Personal Fall Protection Systems (final rule) 172
Occupational Exposure to Beryllium (proposed rule) 306
Improve Tracking of Workplace Injuries and Illnesses (final rule) 193
(as of April 15, 2016)

Why does it typically take so much longer than the 90-day limit? The reasons can vary, but a major factor is that OIRA is a very small agency. Funding for OIRA is less than 2 percent of OSHA’s $553 million budget. In the past two years, OIRA’s budget has been flat at $9 million, although the Obama administration has requested a $1 million boost for fiscal year 2017.

And evidence suggests that it’s not hyperbole to say OIRA can’t handle more than two rules from OSHA at a time. Last July, OSHA submitted to OIRA for review its final rule on slips, trips and falls. The rule was withdrawn from review after nearly six months – without the review being completed. On the same day that rule was withdrawn, OSHA submitted its final rule on silica to OIRA for review.

This suggests OSHA is aware of the limitations OIRA has with its review process, and will swap out one rule for another based on priorities.

Sources have told me that OMB doesn’t have the staffing level or expertise to fully examine these rules. This makes sense – you can’t expect White House officials to know the ramifications of how proposed silica permissible exposure limits will affect employers and workers, or the nuances in a process regulating drug abuse treatment for prisoners.

The White House wants to make sure the rules that agencies are putting forth could beat any potential legal challenges. As a result, OIRA will spend a lot of time communicating with agency officials, stakeholder groups and other individuals to help smooth out the rule.

It may take time, but that time spent in the rulemaking process before promulgation could save time, money and energy later on. Compounding the issue, as Schneider said, is that OIRA has limited staff with a “huge plate.” When it comes to regulations on which workers’ lives are dependent, though, perhaps it’s time to look into getting more people at the table.

The opinions expressed in “Washington Update” do not necessarily reflect those of the National Safety Council or affiliated local Chapters.

Kyle W. Morrison

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