In nearly 30 years, OSHA has issued 58 major standards, 47 of them before 2000, the remaining 11 since then. The Reagan administration promulgated standards at a rate four times faster than the Obama administration. In addition, the time to from start to finish to issue a standard varies wildly; one standard took as little time as 15 months to issue, while another standard took 19 years. Members of Congress on both sides of the aisle agree this is too long.
“OSHA takes an eternity to issue a new safety rule,” said Chairman Tom Harkin (D, Iowa), in his opening remarks for the April 19 Senate Committee on Health, Education, Labor and Pensions (HELP) hearing to examine delays in the agency’s standard-setting process, after noting that 12 employees die each day in work-related incidents.
“Despite a steady decline workplace fatalities and injuries, we can and must do better,” said Sen. Michael Enzi (R, Wyo.), who suggested not only the “necessary tool” of new or updated standards, but also more emphasis on voluntary programs like OSHA’s Voluntary Protection Program and on workplace drug testing efforts.
OSHA Takes Longer Than EPA, Others
With an average standard-setting time of nearly 8 years, OSHA takes 50 percent longer than EPA to set a new standard and two and five times longer than other federal rulemaking agencies.
The HELP Committee hearing, Time Takes Its Toll: Delays in OSHA’s Standard-Setting Process and the Impact on Worker Safety, occurred on the same day the U.S. Government Accounting Office released its report on standards setting at the agency.
Testifying before the HELP Committee, GAO Director Revae Moran observed that 25 percent of OSHA standards take 10 years or more to implement. “In some cases, we were not able to tell why it takes OSHA so long” to promulgate a standard, she said.
She did point out that the GAO report, Multiple Challenges Lengthen OSHA's Standard Setting, noted that several experts observed that adverse court decisions have contributed to an institutional culture in the agency of trying to make OSHA standards impervious to future adverse decisions. Agency officials, however, claimed that in general, OSHA does not try to make a standard “bulletproof” because “they know they’re going to be sued, no matter what.”
Suggestions to Speed Process
GAO asked agency officials and occupational safety and health experts to share their understanding of the challenges facing OSHA and offer ideas for improving the agency’s standard-setting process. The group suggested:
- Improve coordination with other agencies: Experts and agency officials noted that OSHA has not fully leveraged available expertise at other federal agencies, especially NIOSH, in developing and issuing its standards.
- Expand use of voluntary consensus standards: According to OSHA officials, many OSHA standards incorporate or reference outdated consensus standards, which could leave workers exposed to hazards that are insufficiently addressed by OSHA standards that are based on out-of-date technology or processes. Experts suggested that Congress pass new legislation that would allow OSHA, through a single rulemaking effort, to revise standards for a group of health hazards using current industry voluntary consensus standards, eliminating the requirement for the agency to follow the standard-setting provisions of section 6(b) of the OSH Act or the Administrative Procedure Act. One potential disadvantage of this proposal is that any abbreviation to the regulatory process could also result in standards that fail to reflect relevant stakeholder concerns, such as an imposition of unnecessarily burdensome requirements on employers.
- Impose statutory deadlines: OSHA officials indicated that it can be difficult to prioritize standards due to the agency’s numerous and sometimes competing goals. In the past, having a statutory deadline, combined with relief from procedural requirements, resulted in OSHA issuing standards more quickly.
- Change the standard of judicial review: Experts and agency officials suggested OSHA’s substantial evidence standard of judicial review be replaced with the arbitrary and capricious standard, which would be more consistent with other federal regulatory agencies.
- Allow alternatives for supporting feasibility: Experts suggested that OSHA minimize on-site visits – a time-consuming requirement for analyzing the technological and economic feasibility of new or updated standards – by using surveys or basing its analyses on industry best practices.
- Adopt a priority-setting process: Experts suggested that OSHA develop a priority-setting process for addressing hazards, and as GAO has reported, such a process could lead to improved program results.
Suggestions from HELP Panel
Members of the panel testifying before the committee included: Tom Ward , member of Local 1, Local 1 Michigan, International Union of Bricklayers and Allied Craftworkers; Michael Silverstein, MD, MPH , clinical professor of Environmental and Occupational Health University of WA School of Public Health and Community Medicine, retired director of the state OSHA Program at Washington State Department of Labor and Industries; Randy Rabinowitz , director, regulatory policy, OMB Watch; and David G. Sarvadi , a partner at Keller and Heckman LLP. They had their own suggestions to shorten OSHA’s standard-setting process.
Silverstein suggested that the agency, on some of the more important rulemakings such as updating the PELs, engage in expedited rulemaking and “should stick to its priority list” even as congressional or administration priorities change. Rabinowitz suggested shortening what she calls “the hand-wringing period” that occurs at OSHA between the close of the public comment period and the publication of a standard. Sarvidi agreed with her characterization of that period, also suggesting OSHA could speed up the rulemaking process by “getting managers at the agency to stick to the deadlines they set.”