OSHA Review Plan Includes Final Rules On Standards Improvement Project, GHS

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As part of a White House-led plan to review federal regulations, the Occupational Safety and Health Administration announced May 26 that it will soon issue two rules, one to improve the system for keeping its regulations up to date, and the other to improve chemical hazard communication.

The first rule, to be issued under OSHA's broad Standards Improvement Project, will bring about changes to the agency's respiratory protection standard, including harmonizing testing requirements for self-contained breathing apparatuses with the Department of Transportation's requirements, and clarifying that aftermarket cylinders meet the National Institute for Occupational Safety and Health's quality assurance requirements, OSHA said May 26. The new rule would help employers to comply with their regulatory obligations without imposing any additional burdens on employers, OSHA said.

The second regulation would bring the U.S. standard for communicating chemical hazards closer to the United Nations' Globally Harmonized System of Classification and Labelling of Chemicals.

Further, while the first rule would not reduce employee protection, it would yield more than $43 million in annual cost savings to employers, David Michaels, assistant secretary of labor for occupational safety and health, said May 26.

Reporting Burden Reduced.

In addition, an estimated 1.9 million hours per year of redundant reporting burdens would be eliminated, Cass Sunstein, administrator of the White House Office of Information and Regulatory Affairs, said May 26.

“Businesses are not any longer going to be saddled with the obligation to fill out unnecessary government forms, which means that their employees will have more time to be productive and do their real work,” Sunstein, said at a briefing convened by the American Enterprise Institute.

Neither Sunstein nor OSHA gave a precise date on when the final rule would be issued. OSHA's press release said only that the rule is “forthcoming.”

Both final rules were announced as the Labor Department released its preliminary regulatory plan in compliance with Executive Order 13,563, which Sunstein called an effort to “change the regulatory culture of Washington” (41 OSHR 48, 1/20/11).

GHS Rule Also Announced.

The second final rule, known colloquially as the Globally Harmonized System or “GHS” rule, is projected to bring on some $585 million in annual savings, Sunstein said.

In its regulatory review plan, the Labor Department said businesses would realize “substantial savings” as a result of the harmonized hazard classifications, safety data sheet forms, and warning labels brought on by the rule. Producers would also see cost savings because they would no longer be required to produce as many safety data sheets.

Overall, the potential savings for employers could be as high as $798.4 million per year, the Labor Department said.

Neither Sunstein nor OSHA gave a date on when the GHS final rule would be issued. The target date published in OSHA's most recent regulatory agenda was August 2011 (75 Fed. Reg. 79,804; 40 OSHR 1053, 12/23/10).

The Labor Department also identified a strategy for regulating offshore oil drilling called a “safety case regulatory regime” as a candidate for potential review. This approach, used by the United Kingdom, Norway, and Australia to regulate the offshore energy industry, requires companies to develop plans for controlling risks, training key personnel, and installing preventive technologies and was included in a set of recommendations by the presidential oil spill commission after the Deepwater Horizon oil spill in 2010 (41 OSHR 27, 1/13/11).

Former OSHA Policy Analyst Critical.

Celeste Monforton, a researcher at George Washington University's School of Public Health and Health Services, told BNA May 26 she saw the OSHA announcements as evidence that the Obama administration “continues to pander to the business community and waste the Labor Department's precious resources, doing lookback reviews that are unnecessary, and diverting resources from the agency's core functions of enforcing labor laws.”

During his remarks, Sunstein denied that the White House is “bending over for business,” saying he found it “not a helpful way of thinking” about government regulation. He also said he had not noticed any slowdown in regulatory activity as a result of the lookback, and that he did not expect the departmental lookbacks to compromise rulemaking activities going forward.

But Monforton, a former OSHA policy analyst under the Clinton administration, also questioned the significance of the two OSHA final rules, saying they have long been in development.

“It's embarrassing to read the administration's announcements about reducing regulatory burdens for two OSHA rules that have been in the pipeline,” Monforton said. “The administration is trying to take credit for reducing a regulatory burden on a hazard communication modernization that was proposed in 2006 under the Bush administration and has been stalled at the Labor Department or the Office of Management and Budget.”

Moreover, on the topic of the Standards Improvements Project rule, Monforton said she was “extremely disappointed that the White House has bought into this dangerous rhetoric about paperwork burdens and regulatory burdens, when just last week a report was released on the disaster at Upper Big Branch, [showing] that dangerous rhetoric about paperwork burdens has led mine operators and workers to consider vital records as just paperwork, and fail to make the connection between having written records and their value in protecting workers' lives.”

On May 19, an independent panel released a report on the explosion at Massey Energy Co.'s Upper Big Branch mine that killed 29 miners in April 2010, broadly finding that the explosion was preventable (41 OSHR 465, 5/26/11).

Labor Department Plan Revealed.

Under the executive order, Cabinet-level agencies were required to submit plans to OIRA describing how they plan to review their significant rules and determine whether they are obsolete, unnecessary, excessively burdensome, or redundant because of other regulations.

The Labor Department's preliminary plan lists various factors that will be used in prioritizing which regulations it will review going forward, including the age of the regulation, the number of entities or workers affected, evidence of noncompliance, paperwork brought on by the regulation, petitions for modification or exemption, and technological advances.

The Labor Department also said agency heads will continue to develop plans for retrospective analysis and will review its regulations at least twice a year, as part of the process it undergoes when developing its regulatory agenda.

“The effort to change the culture of regulation is foremost in this enterprise,” Sunstein said. “The change involves constant exploration of what is working and what isn't, through hard wiring analysis and continuing scrutiny into the agency process. … My hope is that this process might inaugurate a broader, less polarized, more evidence-based, less anachronistic, less sound-bite-filled conversation about how we might promote economic growth and job creation in an economically troubled time, while also protecting the health and safety of the American people.”

Legal Scholar Questions Lack of Expansion.

Amy Sinden, a professor at Temple University Law School, said May 26 she had hoped to hear more discussion about the possible expansion of government regulations, which were contemplated under the executive order.

“The executive order seemed agnostic as to whether regulation was good or bad,” said Sinden, who is also a member scholar at the Center for Progressive Reform think tank. “But the language today seemed to be that regulation is bad, very one-sided. When you look at what Sunstein said today, you're only seeing one side of the equation. He talks about regulations that are out of date or unnecessary.”

During his briefing at the American Enterprise Institute, Sunstein, under questioning from an audience member, said strengthening can come not only from expanding regulations but also from modifying or scaling them back.

Nevertheless, “there is no question that there are parts of the plans that expand,” Sunstein said.

He also said, however, that “the fundamental emphasis of this particular process is on cost reduction and burden reduction.”

When asked about agency guidance documents, which some critics have alleged are used by agencies to informally achieve policy goals that cannot be reached through the rulemaking process, Sunstein said OIRA has a process in place to determine whether agency guidance documents are “really legitimately guidance documents.”

“If a guidance document is costing more than $100 million per year, then it ain't a guidance document,” he said.

By Stephen Lee

The Department of Labor's preliminary regulatory improvement and review plan is available at http://op.bna.com/env.nsf/r?Open=jstn-8h8rf4