DOL Withdraws Risk Assessment Rule

The Department of Labor (DOL) on Aug. 31 officially withdrew the controversial risk assessment rule that critics claimed could jeopardize worker safety by delaying rulemaking on occupational exposure to toxins and chemicals.

The rule, “Requirements for DOL Agencies' Assessment of Occupational Health Risks,” was proposed Aug. 31, 2008. It would have required DOL agencies to issue an Advance Notice of Proposed Rulemaking (ANPRM) for all health standards involving toxic substances or hazardous chemicals and to electronically post documents within 14 days of each regulatory step in a rulemaking.

Supporters of the rule said it would provide consistent procedures for agency risk assessments, promote transparency and public awareness of rulemakings and ensure the latest scientific data are used in occupational exposure risk assessments. The rule, however, drew widespread criticism from a variety of safety stakeholders who said it would unnecessarily slow the regulatory process to protect workers from hazardous substances.

When DOL first submitted the proposed regulation to the Office of Management and Budget (OMB) on July 7, 2008, Rep. George Miller, D-Calif., chairman of the House Education and Labor Committee, and the late Sen. Edward M. Kennedy, D-Mass., immediately called for its withdrawal, claiming it was a last-minute “secret rule” that could weaken the process of enacting new legislation to protect workers.

In its notice of withdrawal, DOL acknowledged that the majority of the risk assessment experts, labor unions, worker advocacy groups, individuals and others who commented during the 30-day comment period were opposed to the rule.

Guidance, Not Regulation

The notice of withdrawal stated that the proposed rule’s two new regulations are “unnecessary.” In regards to the ANPRM requirement, OSHA and MSHA currently publish an ANPRM on a case-by-case basis if it appears to be beneficial to the specific rulemaking. DOL determined these agencies “should continue to follow their current ANPRM policy” instead of imposing “an inflexible requirement that would not fit the varied circumstances in which rulemakings are conducted and could cause unnecessary delays.”

The withdrawal notice also addressed the requirement to electronically post all documents related to a rulemaking, stating it already is the current practice of OSHA and MSHA to post relevant information on http://www.regulations.gov.

Overall, according to the notice, DOL found “it is more useful to continue describing its internal risk assessment policies through guidance rather than through promulgation of a regulation.”

“The Department believes that guidance, as opposed to regulation, is a more suitable vehicle for its internal risk assessment procedures and allows the department more flexibility to quickly adapt and improve its risk assessment procedures in the future,” the notice stated.

AIHA: Rule Was Flawed

Cathy L. Cole, president of the American Industrial Hygiene Association (AIHA), said the association is pleased DOL has withdrawn the proposed rule.

“AIHA opposed this rule from the beginning because of our concern that the rule would extend the process needed to protect workers from exposure to workplace toxins,” Cole said. “The fact that the DOL did not seek input from professionals who deal with workplace hazards on a daily basis led AIHA and many others to believe the rule had numerous flaws. While we understand why the DOL felt they needed such a rule, the process used was flawed.”

To learn more about reactions to the rule, read Stakeholders Weigh In On DOL Risk Assessment Rule and House Hearing Focuses On "Secret" DOL Rule, which details testimony heard during the Sept. 17, 2008, House Workforce Protections Subcommittee hearing on the rule.

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