Secret Risk Assessment Rule Aims to Halt Worker Safety Protections

The Bush administration is trying to rush through a Department of Labor (DOL) draft rule to require new worker safety standards to be based on a new risk assessment process that would potentially tie the hands of future administrations. The new rule was sent to the Office of Information and Regulatory Affairs (OIRA) for review in secret, violating the process OIRA has insisted agencies use for rulemaking.

The new rule would require the Occupational Safety and Health Administration (OSHA) and the Mine Safety and Health Administration (MSHA) to alter their current risk assessment approaches and to take an additional step in the rulemaking process before a workplace safety rule can be proposed. The current process is the outgrowth of the legal requirements Congress put in place decades ago to ensure these two agencies adequately safeguard worker health.

The new rule is the first attempt by the administration to put a new risk assessment process in place since a failed effort to change risk assessment in 2006. Then, OIRA administrator John Graham put forward a draft risk assessment bulletin that would have imposed a one-size-fits-all process on all regulatory agencies. The draft bulletin called for some of the same changes the new rule contains but was vigorously opposed by the scientific community and public interest groups, including OMB Watch. The Graham proposal was reviewed by a panel of the National Academy of Sciences (NAS). In the report issued by NAS in January 2007, the panel called the draft bulletin "fundamentally flawed" and urged the administration to withdraw it. The draft bulletin was withdrawn and replaced in September 2007 with a statement of risk assessment principles for agencies to follow.

The Bush administration's proposed rule would change the process in several ways. First, it would require OSHA and MSHA to collect data from each regulated industry sector and develop profiles of the industries and their job categories. Second, among the numerous ways the agencies could collect this information, they would now be required to issue an Advanced Notice of Proposed Rulemaking (ANPRM) as one method. The requirement to use an ANPRM can add years to the rulemaking process and in many instances would be completely unnecessary. These two changes have the potential to add years to the regulatory process just by the sheer quantity of information to be collected and analyzed.

Third, from these new profiles, which would have to be continually updated as the industries supply more information, the agency would have to calculate new assumptions about the numbers of years workers stay in their jobs in each industry. The draft rule states, "In the Department's view, customizing the number of hours, days, weeks and years attributed to a 'working life,' on an industry-specific basis, most closely hews to Congress's intent in directing the Secretary to set standards based upon the 'best available evidence' and upon consideration of the 'latest available scientific data.'" But the new calculation would focus on the average number of years a worker stays in that industry. The result would be a less protective standard for those who spend more than the average number of years in an industry.

Fourth, the rule would require the agencies to use a central estimate and disclose the endpoints of the risk estimates used when producing a protective standard. Again, this would provide a less protective standard, especially for sensitive populations such as older workers. NAS criticized the use of central estimates in OMB's draft risk assessment bulletin. In its report, NAS wrote, "Those numerical quantities are meaningful only in the context of some distribution that arises when variability and uncertainty are taken into consideration. A central estimate and a risk range might be misleading in situations when sensitive populations are of primary concern."

Fifth, the rule would require the agencies to quantify the level of uncertainty, if possible, a practice the NAS panel also criticized. According to the NAS report, there aren't good analytical tools to conduct uncertainty analyses, and the use of them may actually lead to lower quality risk assessments. OSHA and MSHA would have to spend considerable time developing these analytical approaches in the absence of reliable methods and across a range of issues.

Analyzing and quoting from the proposed rule is quite an achievement because of how secret this rulemaking process has been. DOL did not disclose the proposed rule in any of the department's regulatory agendas or plans that agencies are required to develop and disclose to the public twice every year. It first appeared July 7 on OIRA's website as a rule OIRA was reviewing but was identified only by its title, Requirements for DOL Agencies' Assessment of Occupational Health Risks. It was developed not by the workplace safety and health experts within OSHA and MSHA, but by political appointees at the highest levels of DOL, the regulatory policy officer and his staff. Knowledge about the contents of the proposed rule is purely a result of agency whistleblowers and intrepid reporters and investigators.

In addition, White House Chief of Staff Josh Bolten issued a memo May 9 to all agencies, directing that any new rules the agencies wish to finalize during this administration be proposed by June 1 and finalized by November 1. If DOL really is trying to rush this through the rulemaking process, it violates the White House memo (although the memo does not have the force of law and can be waived by OIRA at its discretion).

When President Bush issued changes in January 2007 to the executive order that governs the regulatory process, OMB Watch expressed fears that the new responsibilities given to regulatory policy officers (RPOs) would result in a direct line of reporting and regulatory control between the RPOs and OIRA, sidelining the agencies' experts. This rule appears to be an example of the backdoor, behind-the-scenes manipulation of the rulemaking process we feared would result from the enhanced powers given to RPOs.

On July 30, Rep. George Miller (D-CA), chair of the House Education and Labor Committee, introduced H.R. 6660, which would prohibit the Secretary of Labor from issuing this specific rule. The bill follows a letter sent July 10 by Miller and Sen. Ted Kennedy (D-MA) that called on Secretary of Labor Elaine Chao to brief them on the content of the rule and the reasons why DOL did not follow the procedural requirements for disclosing the rule. The proposed rule is currently under review at OIRA. There is no word yet on when the Labor Department will propose the rule or whether the agency might try to directly issue a final rule.