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A delayed process

June 1, 2012

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Stakeholders discuss how to speed up the pace of OSHA’s rulemaking procedures

By Kyle W. Morrison, senior associate editor

With some OSHA standards taking as long as 20 years to promulgate due to a variety of mandatory steps, stakeholders recently suggested to Congress that OSHA could speed up the process by sticking to its priorities.

Several factors influence the length of time of a rulemaking, including complex procedural framework and a high standard of judicial review, according to Revae Moran, director of education, workforce and income security at the Government Accountability Office.

However, other agencies have to meet some of the same requirements as OSHA, leading GAO to believe prolonged standards setting could be the result of shifting agency priorities, Moran said.

For instance, OSHA will invest in one proposed rulemaking for a period of time before refocusing attention on another rulemaking, resulting in the original proposal languishing. But this effect of shifting priorities, most often due to a change in administration, is hard to quantify.

“That’s not documented anywhere, so it was difficult for us to determine exactly what happened,” Moran said. “For example, in the scaffold standard, why it would take 19 years to set a scaffold standard doesn’t necessarily make sense.”

On April 19, GAO released a report (.pdf file) exploring the challenges that lengthen OSHA’s standards-setting process. That same day, Moran testified about the report before the Senate Health, Education, Labor and Pensions Committee.

Other witnesses who spoke before the committee agreed that OSHA should identify a list of priorities and see them through. However, the agency’s previous attempt at a standards-setting priority process was derailed by partisan sparring in the mid-1990s, said Michael Silverstein, an environmental and occupational health professor at the University of Washington in Seattle and former assistant director for industrial safety and health at the Washington State Department of Labor and Industries.

Following the Republican take-over of Congress in the 1994 midterm elections, standards were scrutinized and the regulatory process was criticized, making it difficult to move standards forward, Silverstein said.

“The debate became kind of trivialized in some ways,” Silverstein told the senators. “Under those circumstances, it became very difficult to stick to OSHA’s priority list.”



Recommendations

GAO’s report offered only one recommendation to improve the speed of the standards-setting time frame: OSHA and NIOSH should work together more consistently on occupational hazard research – something both agencies said they would do.

Several stakeholders at the hearing expressed disappointment in GAO’s limited recommendations, noting that several other actions could shorten the process, such as:

  • Ask Congress to set mandatory deadlines for issuing rules
  • Shorten the length of time the Office of Management and Budget has to review proposed rules
  • Allow OSHA the option to adopt rules that are technology-based, with industries shouldering the burden of proof demonstrating infeasibility
  • Allow stakeholders to become more involved earlier with the standards development process

Although GAO addressed several of these stakeholder suggestions in its report, most of the recommendations would limit OSHA’s consideration of stakeholder concerns or require “substantive” procedural or legislative changes, Moran said.

Noting the balance needed between advancing safety standards that protect workers and ensuring a robust process in developing those rules, committee Chairman Sen. Tom Harkin (D-IA) promised the committee would move forward on OSHA-related issues in the future.

“No one wants or expects OSHA to issue new rules without careful consideration of the impact on health and the cost of compliance,” Harkin said. “But it is simply unconscionable that workers must suffer while an OSHA rule is mired in bureaucracy.”

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