Ergonomics: Midnight Legislation or Midnight Regulation?

The lights are burning late into the night at the\r\nDepartment of Labor and on Capitol Hill, as ergonomics regulators and\r\nlegislators scramble to beat deadlines imposed by the November\r\nelections.

The lights are burning late into the night at the Department of Labor and on Capitol Hill, as ergonomics regulators and legislators scramble to beat deadlines imposed by the November elections.

With less than 90 days before the end of the year, OSHA still has not sent the final ergonomics rule to the Office of Management and Budget (OMB) for review, and with scarcely a month left for campaigning, Congress has still not completed work on the 2001 budget.

The government''s fiscal year began Oct. 1 and as usual few spending measures were ready on time.

To avoid a shutdown of the government, lawmakers approved a stopgap spending bill to fund federal agencies through mid-October, giving time for Congress and President Clinton to iron out their many differences on the spending bills.

One of the biggest obstacles to final approval of the huge Labor, Health and Human Services, and Education appropriation bills was continuing disagreement between the President and Congress over the ergonomics rule. To the surprise of some Washington insiders, Republican lawmakers have not yet abandoned their anti-ergonomics amendment, despite the President''s promise to veto the entire appropriations bill unless the ergonomics rider is removed.

But the prognosis for the amendment is not good: unlike the President, most Republican lawmakers are confronting re-election campaigns and few have forgotten how President Clinton had bested them in eleventh-hour budget battles before.

Midnight Regulation?

It is now clear that the only way OSHA can meet its self-imposed year-end deadline for the ergonomics rule is by denying OMB the statutory maximum 90 days it has to review new regulations.

This development has left Industry observers unsurprised, and OSHA Administrator Charles Jeffress unperturbed.

But Wendy Gramm, former head of the OMB department that does regulatory review is worried, "it begins to look like we''re not being as careful as we could be."

Gramm now directs the regulatory studies program at the Mercatus Center, a George Mason University think tank with strong industry ties. She said a study of the past nine elections revealed that the volume of regulation jumped on average 15 percent in the last quarter of a president''s term, compared with those same months in the administration''s non-election years.

As political appointees and other governmental officials see their options expiring, the pace of regulation increases, hence the term "midnight regulation," she explained.

Because of this phenomenon, OMB will have its hands full reviewing not just OSHA''s complex ergonomics rule, but many other regulations as well.

Not to worry, said Jeffress. While admitting that the final ergonomics rule had not been sent to OMB yet, he noted that "informal discussions between the two agencies are ongoing."

Jeffress reiterated his expectation that OMB will finish its work and the rule would be issued before the end of the year. OSHA''s long-delayed recordkeeping rule has also still not been sent to OMB, its fate bound up with ergonomics.

Gramm said there was still enough time to review the ergonomics rule adequately. "But the clock is ticking," she added.

Nowhere is it written that OSHA must issue the final rule before midnight on Dec. 31.

Even if a President opposed to ergonomics should win the election, he will not be sworn in until three weeks later, in late January 2001.

But the more the ergonomics rule looks like a last-minute "rush job," the less credibility it may have for the stakeholders who have to use it, the lawmakers who can always nullify it, and the judges who will probably make the final decision.

Ironically, it may be partly in order to avoid this "midnight regulation" perception that OSHA and OMB are rushing to finish the rule.

OMB may not take much more than a month to review a docket 200,000 pages long, according to Jennifer Krese, director of employment policy for the National Association of Manufacturers (NAM).

"From what we''re hearing, we''re looking for a final rule in mid-November," she said.

by James Nash

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