House Hearing Focuses On "Secret" DOL Rule

A Sept. 17 House Workforce Protections Subcommittee hearing considered the impact of the Department of Labor¹s (DOL) worker health risk assessment proposal, a rule critics say was developed in secret and that could weaken and delay the enactment of future workplace health standards.

“I have called this hearing today on the Department of Labor’s proposed risk assessment regulation, because, quite frankly, I’m troubled by the agency’s attempt to rush through this rule without a full consideration of its effect on the health and safety of the American worker,” said Rep. Lynn Woolsey, D-Calif., in her opening statement.

The proposed rule was brought to public attention in early July, when the Office of Management and Budget (OMB) published the proposed rule’s title on its Web site. Rep. George Miller, D-Calif., chairman of the House Education and Labor Committee, and Sen. Edward M. Kennedy, D-Mass., chairman of the Senate Health, Education, Labor and Pensions Committee, subsequently wrote to DOL requesting specific information on the rule and how it came about.

No documents were forthcoming, Woolsey said, until the day before the proposed rule was published in the Aug. 29 Federal Register.

“This proposed rule has, without explanation, leapfrogged ahead of many other worker protection standards that OSHA should have been working on for the last 8 years,” Woolsey said, referencing standards for diacetyl, cranes and beryllium, which currently are in development.

Woolsey also described the proposed rule as “misguided” and that it “will significantly affect the ability of OSHA and MSHA to protect workers from deadly health hazards.” Finally, the rule’s comment period – 30 days – is too brief, she said.

Short and Simple
In his testimony, Leon Sequeira, DOL assistant U.S. labor secretary for policy at DOL, labeled the criticism surrounding the proposed rule as “widespread, inaccurate speculation and misleading descriptions.”

“The Department’s proposed rule is short and simple,” he said. “It codifies existing best practices into a single, easy-to-reference regulation, and includes two provisions to establish consistent procedures that promote greater public input and awareness of the Department’s health rule makings.”

Those provisions, Sequeria explained, include issuing an Advanced Notice of Proposed of Rulemaking (ANPR) as part of the health standard rulemaking involving the regulation of workplace toxins, and electronically posting all documents DOL relies upon when developing the health standard.

“It’s important to note, contrary to many misleading reports, that this proposal does not affect the substance or methodology of risk assessments, and it does not weaken any health standard,” he said. “Much of the criticism of this proposal appears to reflect either a profound misunderstanding of the federal rulemaking process, or a deliberate mischaracterization of the Department’s proposal.”

To Impede or Improve?
Celeste Monforton, PhD, MPH, of the George Washington University School of Public Health, asserted that instead of being motivated by prevention, DOL “is sponsoring changes that will make it more difficult to issue health protective rules.”

Some of the problems with the proposed rule, she said, include the way it claims to value public input but fails to allow adequate time for such input, and its incomplete appraisal of key, existing documents for standard setting and risk assessment.

“The Labor Department’s proposal is a sloppy piece of work that will impede, not improve, health protections for workers,” she said.

But in his testimony, Randel Johnson, vice president of the U.S. Chamber of Commerce, said that perhaps the controversy surrounding the risk assessment rule has been blown out of proportion. First, he pointed out that this ANPR will become a Notice of Proposed Rulemaking before evolving into a final rule.

“There is a check and balance built into this,” Johnson said.

He added that there is “nothing secret” about the rule because it was introduced as an ANPR; that the courts must defer to OSHA when the agency makes a decision about a risk hazard; and that Congress always has the power to “rein in an agency that has gone too far.”

“A proper role for committee might be to look at this when it comes out as a final rule, rather than to be interfering with the agency process now,” Johnson suggested.

Seminario: Rule is Flawed, Unnecessary
Peg Seminario, the director of AFL-CIO’s department of occupational health and safety, contended that the rule is “unnecessary and unsound.”

“This new rule was developed in secret without any consultation by political appointees in the office of assistant secretary of policy during the last months of the Bush administration,” she said. “In our view, it would significantly delay and potentially weaken future occupational health protections.”

Seminario pointed out that according to DOL, the rule’s intent is to compile existing best practices related to risk assessment into a single, easy-to-reference regulation. But in reality, she said, the rule changes existing practices. Furthermore, she said the Bush administration appears to be in a hurry to set requirements making it more difficult for the next administration to protect workers from health risks.

Finally, Seminario said by adding the extra step of requiring an ANPR to the process, this rule would add “years of delay” to OSHA and MSHA rulemakings, which in turn will place workers at risk. This change would apply not only to future rules, but to those already in progress, such as OSHA’s diacetyl, beryllium and silica standards.

“This proposal is flawed, it is unnecessary, it is unsound and it will harm the health of workers in this country. It should be withdrawn by the Department of Labor and if it is not, we would highly support efforts by the Congress to stop it,” Seminario said.

Sequeira, however, said that adding an ANPR to the process will not necessarily lengthen the time it takes to complete an OSHA rulemaking. He also said that it is ironic the rule is labeled “secret” since rulemaking is a public process.

“The Department believes it’s critical that the process for regulating workplace exposure to toxins is fully transparent and accountable to the public, and that’s what this proposal seeks to do,” he explained.

For more information, read DOL Wants Consistent Procedures for Agency Risk Assessments and Miller, Kennedy Call for Withdrawal of “Secret” DOL Rule.

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