E9-20923. Requirements for DOL Agencies' Assessment of Occupational Health Risks

AGENCY:

Office of the Secretary; Office of the Assistant Secretary for Policy.

ACTION:

Proposed rule; withdrawal.

SUMMARY:

The Department of Labor (“Department” or “DOL”) is withdrawing its proposed rule governing DOL agencies' assessment of occupational health risks. The proposed rule sought to compile Department procedures related to risk assessment into a single regulation and included new requirements aimed at establishing consistent procedures intended to promote greater public input and awareness of the Department's health rulemakings.

DATES:

This withdrawal is effective on August 31, 2009.

FOR FURTHER INFORMATION CONTACT:

Kathleen Franks, Office of Regulatory and Programmatic Policy, Office of the Assistant Secretary for Policy, U.S. Department of Labor, [phone]. This is not a toll-free number. Individuals with hearing or speech impairments may access the number above via TTY by calling the toll-free Federal Information Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Background

On August 29, 2008, the Department published in the Federal Register (73 FR 50909 Aug. 29, 2008) a notice of proposed rulemaking (NPRM) to codify DOL's internal risk assessment procedures for health standard rulemakings that address workplace exposure to toxic substances and hazardous chemicals. The NPRM stated that it summarized and would codify DOL agencies' existing risk assessment paradigm and requested public comment on two specific procedural requirements: A new requirement that DOL agencies issue an Advance Notice of Proposed Rulemaking (ANPRM) as a first step whenever developing a health standard that would regulate workplace exposure to toxic substances or hazardous chemicals; and a requirement that DOL agencies electronically post all documents relied upon to develop such health standards within fourteen days of each regulatory step. Because the Occupational Safety and Health Administration (OSHA) and the Mine Safety and Health Administration (MSHA) are the only two agencies within the Department that issue health standards related to toxic substances and hazardous chemicals, it was anticipated that the proposed rule would affect only those agencies.

The Department accepted public comment on the NPRM for a period of 30 days. While some interested parties, including members of Congress, urged DOL to extend the public comment period and requested that the Department hold public hearings on the proposal, the Department declined these requests due to its desire to adhere to the originally published timeframe for completion of this rulemaking.

The Department received comments in response to the NPRM from a variety of sources, including members of Congress, private citizens, labor unions, worker advocacy organizations, industry associations, employer groups, and risk assessment experts. The majority of the commenters were opposed to the rulemaking.^[1]

II. Reasons for Withdrawal of Proposed Rule

After careful review of the comments and upon reconsideration of the issues involved in this rulemaking, the Department has decided to withdraw the proposed rule. As described below, the two proposed requirements are unnecessary. Moreover, given the nature of the issues, the Department believes that it is more useful to continue describing its internal risk assessment policies through guidance rather than through promulgation of a regulation.

Proposed ANPRM Requirement. The proposal would have required DOL agencies to issue an ANPRM in every rulemaking for a health standard involving toxic substances or hazardous chemicals, apart from emergency temporary standards. Many commenters were opposed to this new requirement. See, e.g., Exs. 7.1; 16.1; 42.1; and 48.1.^[2] Some commenters, including members of Congress and Senators, employer groups, and worker advocacy organizations claimed that an ANPRM is not always useful and that imposing an ANPRM requirement in a health standard rulemaking when it was not necessary would unduly delay the rulemaking. See, e.g., Exs. 32.1; 37.1; and 42.1. They argued that this in turn could harm workers by unnecessarily delaying the introduction of the health protections required by the standard. Labor unions and worker advocacy organizations also claimed that requiring an unnecessary ANPRM would divert agency resources from other rulemaking efforts. See, e.g., Exs. 45.1 and 48.1.

The current policy of both OSHA and MSHA is to publish an ANPRM only if the agency believes it will be beneficial to the rulemaking. This decision is made on a case-by-case basis. In light of the comments to the proposal and after reconsideration of the proposed ANPRM requirement, the Department has determined that OSHA and MSHA should continue to follow their current ANPRM policy.

The Department believes that an ANPRM can be a valuable part of the rulemaking process in the right circumstances, but that an inflexible requirement would not fit the varied circumstances in which rulemakings are conducted and could cause unnecessary delays. When an agency lacks important information needed to develop an effective proposed rule, an ANPRM provides one means of attempting to obtain that information. However, there are times when an agency has sufficient information to issue a successful proposed rule without taking that step. Avoiding an ANPRM in these situations allows the agency to more effectively use its rulemaking resources. There are also many other ways in which OSHA and MSHA can obtain needed information without using an ANPRM, such as holding stakeholder meetings, conducting surveys, consulting advisory committees, doing site visits, issuing Requests for Information, conducting peer reviews, and, in the case of OSHA, obtaining small entity (including small business) input through procedures required by the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 609(b)). By allowing the agency to decide whether or not to use an ANPRM for a rulemaking, the agency retains flexibility to choose the information gathering methods that it has determined will best fit each individual situation.

Proposed Electronic Posting Requirement. The proposal would have required the Department to make available, on http://www.regulations.gov or http://www.dol.gov, “all relevant documents related to a rulemaking addressing occupational exposure to toxic substances and hazardous chemicals no later than fourteen days after the conclusion of the relevant rulemaking step that relied upon or utilized those documents.” 73 FR at 50914. Commenters such as some industry associations and employer groups, who addressed this issue generally supported the electronic posting requirement and its goal of transparency in rulemaking. See, e.g., Exs. 11.1; 25.1; 32.1; and 38.1. Several commenters, including labor unions, other employer groups, and industry associations however, pointed out that the Department is already required to, and does, make rulemaking information available online. See, e.g., Exs. 17.1; 32.1; and 35.1. Indeed, the E-Government Act of 2002 requires all federal agencies to maintain a publicly accessible website containing electronic dockets for rulemakings. Public Law No. 107-347, Title II, 201 to 216 (codified as 44 U.S.C. 3501 note), at 206(d)(1). All public comments, as well as “other materials that by agency rule or practice are included in the rulemaking docket” are required to be made available to the public via the electronic docket. Public Law No. 107-347, Title II, at 206(d)(2)(A), (B). To implement the E-Government Act and provide the public with a single government-wide access point for rulemaking information and submissions, federal agencies were required to consolidate all electronic rulemaking dockets on http://www.regulations.gov. Office of Management and Budget (OMB), Implementation Guidance for the E-Government Act of 2002, M-03-18 (Aug. 1, 2003), available at http://www.whitehouse.gov/​omb/​memoranda/​m03-18.pdf. The E-Government Act built on previous efforts to use information technology to provide citizens with easier access to government information and participation. See, e.g., OMB, Redundant Information Systems Relating to On-Line Rulemaking Initiative, M-02-08 (May 6, 2002), available at http://www.whitehouse.gov/​omb/​memoranda/​m02-08.pdf.

Pursuant to the E-Government Act, it is the practice of both OSHA and MSHA to post, in a timely manner, information relevant to agency rulemakings on http://www.regulations.gov. This includes the posting of all scientific studies that are relied upon in the rulemaking. The Department has determined, therefore, that the proposed electronic posting requirement is duplicative of E-Government Act requirements and is not needed.

Other Requirements. The proposed regulatory text also stated that agency risk assessments must, when the data are available, use industry-by-industry evidence relating to working life exposures. Proposed 29 CFR 2.9(c)(3), 73 FR at 50915. Of the commenters that discussed the “industry-by-industry” language, the majority, including members of Congress and Senators, risk assessment experts, worker advocacy organizations, and labor unions viewed it as a departure from the Department's existing longstanding practice of using a 45-year working life assumption for selecting exposure limits for health standards. See, e.g., Exs. 18.1; 23; 28.1; 42.1; and 48.1. Some employer groups and industry associations, however, expressed support for using industry-specific data to develop working life assumptions. See, e.g., Exs. 27.1; 31.1; and 35.1.

Section 6(b)(5) of the Occupational Safety and Health Act requires the agency to regulate in a manner that “most adequately assures * * * that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard * * * for the period of his working life.” 29 U.S.C. 655(b)(5). The Mine Act has nearly identical language, except that it refers to miners rather than employees. 30 U.S.C. 811(a)(6)(A). To implement these provisions, it has been the Department's longstanding practice to use a general 45-year working life assumption. This practice is not based on empirical data that most employees are exposed to the hazard for 45 years. Rather, it is based on the statutory directive that “no employee” suffer material impairment “even if” such employee is exposed for the period of his or her working life. The Department's practice of using a 45-year working life has won judicial approval. See, e.g., Building and Constr. Trades Dep't, AFL-CIO v. Brock, 838 F.2d 1258, 1264-65 (D.C. Cir. 1987) (explaining that the assumption of a 45-year working life “appear[ed] to conform to the intent of Congress”); for examples of DOL standards using a 45-year working life, see Asbestos, 51 FR 22612, 22648 (June 20, 1986); Bloodborne Pathogens, 56 FR 64004, 64031 (Dec. 6, 1991); Diesel Particulate Matter Exposure of Underground Coal Miners, 66 FR 5526, 5663-64 (Jan. 19, 2001); Hexavalent Chromium, 71 FR 10100, 10224 (Feb. 28, 2006).

OSHA and MSHA have not conducted separate industry-by-industry analyses of working life for their risk assessments. The Department has consistently rejected the claim that it must conduct a separate risk assessment for each industry regulated by a standard. Public Citizen Health Research Group v. U.S. Dep't of Labor, 557 F.3d 165, 186-188 (3d Cir. 2009); American Dental Ass'n v. Martin, 984 F. 2d 823, 827 (7th Cir. 1993); UAW v. OSHA, 37 F.3d 665, 670 (D.C. Cir. 1994); Control of Hazardous Energy Sources (Lockout/Tagout), OSHA Supplemental Statement of Reasons, 58 FR 16612-02, 16620-16621 (Mar. 30, 1993).

Guidance versus Regulation. The Department received a small number of comments, from risk assessment experts, policy groups, and labor unions that questioned the need for a regulation when it was possible to issue internal guidance instead. All of these commenters argued that the risk assessment rulemaking was unnecessary because the Department already has risk assessment guidance and because guidance rather than regulation is the more appropriate format for such internal Department procedures. See, e.g., Exs. 26.1; 32.1; 46.1; and 48.1. Upon reconsideration of this issue, the Department has concluded that a risk assessment rulemaking is not necessary. 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. Compared to changes to internal guidance, changes to a regulation would take far more time and require a lengthy notice and comment rulemaking.

Other Issues. There were a number of other issues addressed in public comments to the proposed rule. These issues included: (1) Whether the rule was a “significant regulatory action” under Executive Order 12866, thus requiring a cost/benefit analysis before promulgating the rule; (2) whether the rule was substantive or procedural and, if substantive, whether proper rulemaking procedures were followed; (3) whether the rule was appropriately issued under 5 U.S.C. 301; and (4) whether the Assistant Secretary for Policy had a proper delegation of authority to issue the rule. The Department notes that these and other issues raised by commenters, while important, are no longer relevant given the Department's decision to terminate the rulemaking.

Withdrawal. For the reasons discussed above, the Department is withdrawing its risk assessment rulemaking, effective on August 31, 2009.

Authority and Signature.

Megan Uzzell,

Acting Assistant Secretary for Policy.

Footnotes

1.  Comments are available for review at http://www.regulations.gov. Reference Docket Number: DOL-2008-0002.

2.  “Ex.” Refers to exhibits included in the rulemaking docket, which can be referenced using the URL provided in Footnote 1, supra.