Labor Department's Secret OSHA Rule August 05, 2008 Chicago AFL-CIO…

Labor Department's Secret OSHA Rule
August 05, 2008
Chicago
AFL-CIO Executive Council statement

For nearly eight years, the Bush administration has failed to protect the health and safety
of America's workers. Within weeks of taking office in 2001, President Bush supported
and signed legislation repealing the Occupational Safety and Health Administration's
ergonomics standard--a rule that was 10 years in the making and would have prevented
hundreds of thousands of serious injuries each year. Driven by an intense anti-regulatory
ideology (except when it comes to imposing new onerous and intrusive regulatory
burdens on labor organizations and their representatives), the administration has
withdrawn dozens of worker protection rules that were under development and has failed
to issue new health and safety rules on serious hazards such as silica, diacetyl and crane
safety. During its entire tenure, the administration has issued only two major OSHA
rules, and only as a result of union lawsuits. Employers have gotten the message. In far
too many workplaces, worker health and safety is given short shrift, as we have seen in
tragedies such as those at the Sago Mine, BP, Crandall Canyon and Imperial Sugar, as
well as the continuing fatalities from collapsing cranes, falls, explosions, occupational
disease and other hazards.

Apparently, eight years of harmful neglect are not enough for the political ideologues at
the Department of Labor. Now, in a last-minute action, Secretary of Labor Elaine Chao's
political operatives are moving quickly and secretly to adopt a rule to tie the hands of
future administrations and cripple their ability to adopt new rules to protect the health and
well-being of America's workers. On July 7, 2008--without any prior notice to the
public, and in violation of the Bush administration's own policy of not issuing new
proposals after June 1, 2008--the Department of Labor sent a proposed rule to the Office
of Management and Budget for approval. The proposal, which was developed by
political operatives and not experts within OSHA and the Mine Safety and Health
Administration (MSHA), would dictate changes in the way OSHA and MSHA assess the
risks posed by workplace hazards, and would erect new procedural hurdles for adopting
new regulations in the future to protect workers from these hazards. The public outcry
from unions, worker safety and public health advocates, leaders in Congress including
Rep. George Miller and Sen. Edward Kennedy, scientists and others has been swift, and it
is growing as this secret last-minute action gains more attention.

This administration has done enough damage to worker safety and health. The Bush
administration should withdraw this secret rule. If it does not, Congress must act to stop
this cynical midnight regulation.
Honorable
United States House of Representatives
Washington, D.C. 20515

Dear Member of Congress,

I am writing to urge that you co-sponsor H.R. 6660 (Miller, D-CA) a bill which would
stop the Department of Labor from proceeding with a proposed rule that would seriously
undermine the ability of the federal government to protect workers' health.

The new rule would add an entire additional layer of review to the regulatory process by
requiring notice and comments for all risk-related studies before a proposal could be
issued. This regulatory burden would further delay the promulgation of needed new
standards to protect workers from workplace health hazards.

In addition, the rule would change the assumptions underlying the current manner in
which risk assessments are conducted to those favored by industry, eroding the
effectiveness of all future OSHA or MSHA standards far beyond the life of this
administration.

In the past 7 ½ years, the Labor Department has issued one health standard ­ and that was
done under court order for hexavalent chromium. It has failed to meet its own deadlines
on regulations to protect workers from the health effects of silica, or beryllium, or from
the serious health effects of diacetyl, which causes popcorn lung.

Rather than devote what time remains during the current Administration to issuing
needed standards, the Department of Labor has decided to devote its resources to further
weakening the ability of OSHA or MSHA to issue any future health standards.

H.R. 6660 would forbid the Department of Labor from issuing, administering or
enforcing this proposed rule.

Failure to stop implementation of this rule will dramatically and drastically adversely
affect the health of the membership of our union and working people throughout this
country. We urge you to oppose this initiative and become a co-sponsor of HR 6660.
H.R.6660
Title: To prohibit the Secretary of Labor from issuing, administering, or
enforcing any rule, regulation, or requirement derived from the proposal
submitted to the Office of Management and Budget entitled "Requirements
for DOL Agencies' Assessment of Occupational Health Risks" (RIN:1290-
AA23).
Sponsor: Rep Miller, George [CA-7] (introduced 7/30/2008)         Cosponsors
(11)
Latest Major Action: 7/30/2008 Referred to House committee. Status:
Referred to the House Committee on Education and Labor.

COSPONSORS(11), ALPHABETICAL [followed by Cosponsors
withdrawn]: (Sort: by date)
Rep Andrews, Robert E. [NJ-1] -    Rep Bishop, Timothy H. [NY-1] -
7/30/2008                          7/30/2008
Rep Clarke, Yvette D. [NY-11] -    Rep Davis, Danny K. [IL-7] -
7/30/2008                          7/30/2008
                                   Rep Holt, Rush D. [NJ-12] -
Rep Hare, Phil [IL-17] - 7/30/2008
                                   7/30/2008
Rep Payne, Donald M. [NJ-10] -     Rep Sanchez, Linda T. [CA-39] -
7/30/2008                          7/30/2008
Rep Sarbanes, John P. [MD-3] -     Rep Shea-Porter, Carol [NH-1] -
7/30/2008                          7/30/2008
Rep Woolsey, Lynn C. [CA-6] -
7/30/2008
Bush Administration Rushes to Issue Secret Rule
           on Worker Health Risks
In a last minute action, political operatives at the US Department of Labor are
rushing to lock in new requirements that would make it harder for the next
administration to develop and issue protective workplace health rules. This new
rule would change the procedures and criteria OSHA and MSHA use to assess
worker health risks when developing new standards. It would add years of delay
to the standard setting process and weaken protections for workers.

This cynical move by the Bush Administration comes after 8 years of failing to
protect workers from job hazards, starting with the repeal of OSHA's ergonomics
standard in 2001. Since then, the Bush Administration has withdrawn dozens of
pending rules, and refused to set needed standards on crane safety, silica,
tuberculosis and noise. The Administration has issued only one OSHA health
rule - on hexavalent chromium ­ and that was a result of a court order.

This risk assessment rule was never listed on the public regulatory agenda. It
was developed in secret by political operatives without the involvement of OSHA
and MSHA scientists, and sent in July to the Office and Management and
Budget (OMB) for review. If this measure goes into effect, it will cripple future
efforts to set workplace standards for chemical hazards. The proposal would:

    ·   Require a new unnecessary extra step to seek comments on risk
        assessments before issuing any proposed health rules, adding years of
        delay to setting new standards.
    ·   Change the criteria that OSHA and MSHA standards protect workers if
        exposed over a working lifetime of 45 years, and instead base exposures
        on the average of years working in an industry. This would increase
        permissible exposures for all workers and put long-term workers,
        including coal miners, construction workers and chemical workers at
        much greater risk of developing disease.
    ·   Go into effect without the public hearings, which have been conducted
        for all other OSHA health standards.

We need to act now to stop the Bush Administration's Secret Rule:

   ·    Send a letter or e-mail to Secretary of Labor Elaine Chao demanding that
        she withdraw this rule that will put workers in danger.
   ·    Contact your Congressional representatives and urge them to support
        and cosponsor legislation to block the DOL secret rule (H.R. 6660).
   ·    Share this information with your co-workers and urge them to take action.
OMB Watch
{category_name} :


Published on 08/05/2008
http://www.ombwatch.org/article/articleview/4317/1/{category_id}

          Secret Risk Assessment Rule Aims to Halt Worker Safety Protections

The Bush administration is trying to rush through a Department of Labor (DOL) draft
rule to require new worker safety standards to be based on a new risk assessment process
that would potentially tie the hands of future administrations. The new rule was sent to
the Office of Information and Regulatory Affairs (OIRA) for review in secret, violating
the process OIRA has insisted agencies use for rulemaking.

The new rule would require the Occupational Safety and Health Administration (OSHA)
and the Mine Safety and Health Administration (MSHA) to alter their current risk
assessment approaches and to take an additional step in the rulemaking process before a
workplace safety rule can be proposed. The current process is the outgrowth of the legal
requirements Congress put in place decades ago to ensure these two agencies adequately
safeguard worker health.

The new rule is the first attempt by the administration to put a new risk assessment
process in place since a failed effort to change risk assessment in 2006. Then, OIRA
administrator John Graham put forward a draft risk assessment bulletin that would have
imposed a one-size-fits-all process on all regulatory agencies. The draft bulletin called for
some of the same changes the new rule contains but was vigorously opposed by the
scientific community and public interest groups, including OMB Watch. The Graham
proposal was reviewed by a panel of the National Academy of Sciences (NAS). In the
report issued by NAS in January 2007, the panel called the draft bulletin "fundamentally
flawed" and urged the administration to withdraw it. The draft bulletin was withdrawn
and replaced in September 2007 with a statement of risk assessment principles for
agencies to follow.

The Bush administration's proposed rule would change the process in several ways. First,
it would require OSHA and MSHA to collect data from each regulated industry sector
and develop profiles of the industries and their job categories. Second, among the
numerous ways the agencies could collect this information, they would now be required
to issue an Advanced Notice of Proposed Rulemaking (ANPRM) as one method. The
requirement to use an ANPRM can add years to the rulemaking process and in many
instances would be completely unnecessary. These two changes have the potential to add
years to the regulatory process just by the sheer quantity of information to be collected
and analyzed.

Third, from these new profiles, which would have to be continually updated as the
industries supply more information, the agency would have to calculate new assumptions
about the numbers of years workers stay in their jobs in each industry. The draft rule
states, "In the Department's view, customizing the number of hours, days, weeks and
years attributed to a 'working life,' on an industry-specific basis, most closely hews to
Congress's intent in directing the Secretary to set standards based upon the 'best available
evidence' and upon consideration of the 'latest available scientific data.'" But the new
calculation would focus on the average number of years a worker stays in that industry.
The result would be a less protective standard for those who spend more than the average
number of years in an industry.

Fourth, the rule would require the agencies to use a central estimate and disclose the
endpoints of the risk estimates used when producing a protective standard. Again, this
would provide a less protective standard, especially for sensitive populations such as
older workers. NAS criticized the use of central estimates in OMB's draft risk assessment
bulletin. In its report, NAS wrote, "Those numerical quantities are meaningful only in the
context of some distribution that arises when variability and uncertainty are taken into
consideration. A central estimate and a risk range might be misleading in situations when
sensitive populations are of primary concern."

Fifth, the rule would require the agencies to quantify the level of uncertainty, if possible,
a practice the NAS panel also criticized. According to the NAS report, there aren't good
analytical tools to conduct uncertainty analyses, and the use of them may actually lead to
lower quality risk assessments. OSHA and MSHA would have to spend considerable
time developing these analytical approaches in the absence of reliable methods and across
a range of issues.

Analyzing and quoting from the proposed rule is quite an achievement because of how
secret this rulemaking process has been. DOL did not disclose the proposed rule in any of
the department's regulatory agendas or plans that agencies are required to develop and
disclose to the public twice every year. It first appeared July 7 on OIRA's website as a
rule OIRA was reviewing but was identified only by its title, Requirements for DOL
Agencies' Assessment of Occupational Health Risks. It was developed not by the
workplace safety and health experts within OSHA and MSHA, but by political
appointees at the highest levels of DOL, the regulatory policy officer and his staff.
Knowledge about the contents of the proposed rule is purely a result of agency
whistleblowers and intrepid reporters and investigators.

In addition, White House Chief of Staff Josh Bolten issued a memo May 9 to all
agencies, directing that any new rules the agencies wish to finalize during this
administration be proposed by June 1 and finalized by November 1. If DOL really is
trying to rush this through the rulemaking process, it violates the White House memo
(although the memo does not have the force of law and can be waived by OIRA at its
discretion).

When President Bush issued changes in January 2007 to the executive order that governs
the regulatory process, OMB Watch expressed fears that the new responsibilities given to
regulatory policy officers (RPOs) would result in a direct line of reporting and regulatory
control between the RPOs and OIRA, sidelining the agencies' experts. This rule appears
to be an example of the backdoor, behind-the-scenes manipulation of the rulemaking
process we feared would result from the enhanced powers given to RPOs.

On July 30, Rep. George Miller (D-CA), chair of the House Education and Labor
Committee, introduced H.R. 6660, which would prohibit the Secretary of Labor from
issuing this specific rule. The bill follows a letter sent July 10 by Miller and Sen. Ted
Kennedy (D-MA) that called on Secretary of Labor Elaine Chao to brief them on the
content of the rule and the reasons why DOL did not follow the procedural requirements
for disclosing the rule. The proposed rule is currently under review at OIRA. There is no
word yet on when the Labor Department will propose the rule or whether the agency
might try to directly issue a final rule.