OSHA Agenda Will Include Diacetyl, Secretary Says

Secretary of Labor Hilda Solis announced that the Occupational Safety and Health Administration (OSHA) intends to limit workers' exposure to the food flavoring chemical diacetyl. Diacetyl regulation was one of the many worker protection issues left unresolved by the Bush administration.

Diacetyl is a chemical compound used to give foods like microwave popcorn a buttery flavor. Exposure to diacetyl can cause the onset of bronchiolitis obliterans, a degenerative and potentially fatal lung disease. In July 2006, labor unions petitioned OSHA to issue an emergency standard to protect exposed workers, but OSHA denied the request.

Pledging faster action on regulation, Solis said March 16 [1], "It is imperative that the Labor Department move quickly to address exposure to food flavorings containing diacetyl." She called deaths stemming from diacetyl exposure "preventable."

Solis also announced that OSHA has withdrawn [2] the Bush administration's early plans for regulating diacetyl. In January, OSHA published an Advanced Notice of Proposed Rulemaking (ANPRM) that merely [3] describes the issue of diacetyl exposure and asks for insight from commenters. The notice does not propose policy solutions for limiting exposure.

Solis said withdrawing the Bush-era document is critical to moving forward on a more aggressive path. By cutting the ANPRM step from the process, OSHA can begin to navigate through other requirements it must satisfy before issuing a formal regulatory proposal.

Workers may witness a renewed and more aggressive OSHA under President Obama. Obama's budget outline [4], released in February, would increase OSHA funding, "enabling it to vigorously enforce workplace safety laws and whistleblower protections, and ensure the safety and health of American workers."

Obama has yet to announce his nominee to lead OSHA. Solis was formally sworn in as Labor Secretary March 13.

Under President Bush, OSHA made little progress in writing new occupational safety and health regulations. The agency's Unified Agenda of Federal Regulatory and Deregulatory Actions [5] – a semiannual publication federal agencies prepare to announce upcoming and recently completed rules – shows dozens of rules stuck in the regulatory pipeline. (See graphic below.) Some potentially life-saving regulations, like one to protect construction workers in confined spaces or another to limit exposure to silica dust, have languished at the agency for more than a decade.

Meanwhile, new and pressing occupational health and safety issues, such as diacetyl, have lengthened OSHA's queue of regulatory obligations. For example, OSHA in 2008 announced its intent to set new safety requirements for tree care and maintenance workers. Falls and machinery accidents cause dozens of deaths in the industry each year, according to OSHA. Like diacetyl, OSHA issued an ANPRM for tree care safety but has not projected when it will take action.

The slow pace of OSHA rulemaking can at least partially be attributed to the many requirements imposed by overarching laws and executive policies intended to govern federal rulemaking. Like other agencies, OSHA must solicit public comments on rules (under the Administrative Procedure Act), submit rules to the White House for review (under Executive Order 12866), and analyze a rule's impact on a variety of subpopulations, public sectors, and private industries. Unlike other agencies, OSHA has its own hybrid rulemaking process than can add another layer of complexity.

In addition, OSHA (and the U.S. Environmental Protection Agency) is required by the Small Business Regulatory Enforcement Fairness Act [6] (SBREFA) to convene panels of small business representatives to assess a regulation's potential impact on the regulated community. These panels get a sneak peak at regulations under development, and their comments and suggestions are often incorporated before the proposals ever reach the public. The SBREFA panel process can take years.

OSHA will conduct the SBREFA panel for diacetyl differently than previous administrations have by making the process more transparent. OSHA will place the advanced copy of the regulatory proposal, usually reserved for the panels, in the public docket. OSHA will also make SBREFA panel meetings open to the general public.

Stuck in the pipeline: OSHA rulemakings six years and older

Twice per year, in the fall and spring, federal agencies publish their Unified Agenda of Federal Regulatory and Deregulatory Actions, which announces regulations in any stage of development and those recently completed. Agencies generally place upcoming rules into one of four categories: pre-rule, proposed rule, final rule, or long-term action.

OSHA has consistently failed to make progress on regulations identified in its Unified Agenda. As a result, OSHA regulations needed to ensure worker health and safety have gone unfinished, as this graphic shows.

All information in this graphic is based on OSHA Unified Agendas from 1995-2008. (Older Unified Agendas are not available online.) The most recent version, which was published Nov. 24, 2008, is available here [7].

Notes:

• *OSHA first proposed a fall prevention rule in 1990 but allowed the rulemaking to remain dormant. In 1998, the issue again began to appear as an entry in OSHA's Unified Agenda.
• **OSHA addressed vertical tandem lifts by reopening another rulemaking related to longshoring. OSHA's intent to reopen first appeared in the Fall 1997 Unified Agenda.
• ***OSHA published the final rule Dec. 10, 2008.