Key OSHA Health and Safety Initiative Potentially Delayed Months by OMB Nitpicking

by Sidney Shapiro

March 30, 2011

Last week, the White House’s Office of Information and Regulatory Affairs (OIRA) approved a survey to be conducted for the Occupational Safety and Health Administration (OSHA) as part of the agency's efforts to develop an Injury and Illness Prevention Program (I2P2) standard. Surveys, like this one, have to be approved by OIRA according to the Paperwork Reduction Act, and the lengthy approval may stall development of the I2P2 standard for four or more months for no apparently good reason. OIRA made only minor changes to the draft documents.

The I2P2 standard is OSHA’s signature regulatory initiative, and it comes in the nick of time. With its small and dwindling staff, a result of Congress putting it on a starvation diet of resources, OSHA has found it difficult to update its safety and health standards to protect workers, or to adopt new ones to address hazards that are not yet covered, leaving thousands of workers with inadequate protection. To fill this gap, Dr. David Michaels, OSHA’s administrator, and a public health expert, has proposed I2P2, a standard that would require employers to establish a management program in which employers and employees work together to identify and address workplace hazards. California already has a version of the standard on the books. The USDA uses a similar system to ensure that meat packers address potential sources of contamination in their plants.

While a four-month delay does not sound like very much, it is likely to put OSHA behind schedule in developing the standard. Typically, OSHA’s efforts to comply with the Small Business Regulatory Enforcement Fairness Act (SBREFA) involve vetting a detailed draft of a proposed rule with a Small Business Advocacy Review Panel; that's one of the next steps in this process. OSHA had planned to garner SBA Review Panel approval by June, but if the “Baseline Safety and Health Practices Survey” that sat at OIRA for more than four months awaiting approval is an important part of developing the I2P2 proposal and that proposal needs to be nearly finished before SBA review begins, it looks like the June deadline won’t be met. Based on the documentation on OIRA’s website, ERG’s final report to OSHA on the survey results won’t even be submitted until September.

Before OSHA can complete the draft for SBA, it is surveying employers to ensure that its proposal to SBA takes into account potential problems that will be revealed by the survey. Under the President’s proposed FY 2012 budget, OSHA would set aside $2.4 million of its roughly $25 million standard-setting budget for development of the I2P2 rule. In a web chat about the budget proposal last month, Dr. Michaels noted that a portion of that money would be used “to conduct extensive site surveys and economic and feasibility analyses to ensure that a rule is developed that employers of all sizes can easily comply with.” The most recent regulatory agenda indicates that OSHA planned to begin the Small Business review process in June, but a close look at OIRA’s approval of the survey instrument suggests that the plan may be delayed.

Perhaps OIRA had some good reason to sit on the OSHA request for four months, but none is apparent. Last September, OSHA announced the survey and opened a 60-day comment period. No public comments were submitted and OSHA sent the Paperwork Reduction Act documentation to OIRA for review on Nov. 3, 2010. The “Supporting Statement” for the survey reveals that OSHA sent it for review with the expectation of getting an approval before Thanksgiving (on Nov. 20, to be exact) and starting the survey process in December. While the details of the ensuing conversations between OIRA, OSHA, and Eastern Research Group (the contractor OSHA has hired to collect the data and analyze it) are not available, the end results are posted on OIRA’s website. OIRA approval finally came through four months after OSHA had expected it, and the changes were limited to minor details that should not have taken anywhere near four months to complete. For example, at OIRA’s behest, Eastern Research split the construction industry into two groups (small and large firms) for purposes of the pilot tests. The other changes were similarly minor. 

ORIA’s leisurely pace ignores the significance of the I2P2 standard. Instead of jumping in to speed OSHA’s signature initiative along, OIRA let the request sit. OIRA got to review OSHA's survey instrument, and that can't happen instantaneously. But four months seems indefensible in light of the small changes that it ended up making. Real worker safety protections will almost certainly be delayed as a result.

Tagged as: I2P2, OSHA, OIRA
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Sidney A. Shapiro holds the Fletcher Chair in Administrative Law at the Wake Forest University School of Law and is the Associate Dean for Research and Development. He is a member of the board of directors of the Center for Progressive Reform.

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