regulatory agenda

The White House has released its Spring 2022 Regulatory Agenda and I’m not jumping for joy. At this rate, it is unlikely that, aside from a COVID-19 standard covering health care workers expected by the end of this year, this administration will finalize no major health and safety standard during this Presidential term. And its unlikely that many will even reach the proposal stage.

First a small primer in the regulatory process. There are basically 4 major steps in issuing an OSHA standard: 1) Collecting information in the form of a Request for Information (RFI) or Advance Notice of Proposed rulemaking (ANPRM), 2) SBREFA (the small business review process), 3) A proposal, or Notice of Proposed Rulemaking (NPRM), followed by comments, hearings and more comments, and 4) A final standard.  All of these steps are usually separated by several years and both the proposal and the final standard are subject to several months of White House review before issuance. And because most take more than 8 years from beginning to end, it is often difficult to launch and complete a major standard within a 2-year Presidential Term.

What’s on Tap?

Once again, after so many times I can’t count, the small business (SBREFA) review of OSHA’s Workplace Violence in Health Care and Social Services standard has been postponed — this time from December 2021 to September 2022.  The repeated delay in this standard, first put on the Regulatory Agenda in 2016 is particularly painful. Not only has workplace violence been a serious hazards for decades, but the US House of Representatives has passed two bills in successive Congresses, with a bipartisan vote, that would have significantly accelerated completion of the OSHA standard. While the bills have never come to a vote in the Senate, the bipartisan House action signals the importance of the issue and the urgency for OSHA to act. Will we even see a proposal this administration? Color me skeptical.

Also disappointing is lack of progress on revision of OSHA’s Process Safety Management standard which regulates safety in chemical facilities. It has now been over nine years since the West Fertilizer explosion that killed 15 and destroyed much of the city of West Texas. Following that explosion and other fatal chemical plant incidents, President Obama issued an Executive Order directing OSHA to update its PSM standard, originally issued in 1993. The SBREFA review of that standard was completed in August 2016, but a proposal is no where in site.  Last Fall, OSHA promised a “stakeholder meeting” in January, but that never happened and has not been delayed until next month (which I’ll believe when I see.)

Heat is supposedly everyone’s priority, but they’re still analyzing comments from the Advance Notice of Proposed Rulemaking and there is still no date set for SBREFA. No proposal is expected for the overall Infectious Disease standard for at least a year. A proposal is scheduled for a Communication Towers standard this fall and a proposal for a Tree Care standard by the end of the year. Whether those deadlines will be met or whether either will be finalized by the end of the (first) Biden term is doubtful.

One regulation that may be finalized before the end of the term is OSHA’s Standard To Improve Tracking of Workplace Injuries and Illnesses, which is kind of a do-over, as a similar version was issued during the Obama administration and then partially rescinded by Trump.  The original Obama rule required certain larger employers to submit both the OSHA injury and illness summary form to OSHA, as well as a form containing more detailed incident and injury information. All of the information (without personal identifiers) was then to be made public.  The Trump administration rescinded the requirement for submitting the detailed information and kept the requirement for the summary, which OSHA uses to target more hazardous locations.

The current version, which is predicted to be finalized by the end of this year, would restore the detailed information and expand the number of employers required to submit data by lowering the threshold from employers with 250 or more employees to employers with 100 or more employees. Employers are opposing this regulation citing confidentiality issues, although OSHA has gone to great lengths to prevent confidentiality breaches.  Employers are also worried that the information can be used by unions and worker advocates to better protect employees.

Protecting Miners

Meanwhile, across the river, MSHA seems to be making progress on its Silica standard to respond to a sharp increase in severe black lung cases among the nation’s coal miners.  OSHA updated its silica standard in 2016 by significantly lower the amount of the toxic dust that workers can be exposed to, but MSHA has not yet followed. The agency expects to issue a proposal this Fall.

Wanted: Strategic Focus

Bottom line: I’m disappointed.

It’s true that the OSHA regulatory process is glacially slow under the best of circumstances, often taking many years, or even decades to issue a single major OSHA standard. And with COVID-19 and a flat budget, we’ve hardly experienced the best of circumstances.  Just the opposite.

But tough times require strategic focus. And we haven’t seen much of that.

A wise old Deputy Secretary that I served under used to talk about footsteps in sand versus footsteps in concrete.  What that means is that the agency can work its butt off to get SBREFA finished and proposals issued. But if/when a Republican administration takes office, those accomplishment can disappear like footsteps in the sand.

Tough times require strategic focus. And we haven’t see much of that.

Final standards, on the other hand, are like footsteps in concrete. Barring a rare court action overturning a standard, or a repeal by Congress under the Congressional Review Act, final standards are generally here to stay.

So if an administration wants to have a lasting accomplishment, it needs to focus resources on finalizing whatever standards it can. In this case, Workplace Violence would seem to have been closest to finishing, and that standard has the advantage of major political support from unions, public health organizations and Congress to push through. Scattering resources around to cover COVID, heat, infectious diseases, cell towers, tree care and other standards will do no good if they aren’t finalized before something wicked this way comes in the form of a Republican administration.

And the last two years of a Presidential term are not known for great progress. After Obama got is ass whooped in the 2010 mid-terms, the White House pretty much shut down any work on OSHA rules for the next three years.  If things go poorly in November and the White House again gets anxious about the next Presidential election, don’t expect much progress on anything in the final two years of the term.

And if, God forbid, Republicans take back the White House in 2024, we’re looking at another 4 or 8 years of no major OSHA standards — workplace violence, heat, infectious diseases, tree care or anything.

Of course, if things go South in 2024, we may have much bigger things to worry about — like the fate of the country.

And on that optimistic note…

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