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A report to Congress from the Government Accountability Office (GAO) calls the process for creating a new OSHA regulation “protracted” and “lengthy.”
The GAO looked at the time it took OSHA to develop standards from 1981 to 2010. The average amount of time was over seven years. Fastest: 15 months. Longest: 19 years.
Congressional leaders had asked the GAO to examine:
- the time OSHA takes to develop and issue standards and the key factors that affect those time frames
- alternatives to the typical standard-setting process
- whether other regulatory agencies’ rulemaking offers insight into OSHA’s challenges, and
- ideas from occupational safety and health experts and agency officials for improving OSHA’s process.
What caused the lengthy process to create a new OSHA regulation?
- additional procedural requirements established by Congress and various presidential administrations have increased opportunities for stakeholder input into the regulatory process, requiring OSHA to take more time to explain the need for regulations
- shifting priorities (for example, a shift in priorities toward one standard took attention away from several others that previously had been a priority), and
- a rigorous standard of judicial review.
Are there ways OSHA can work around these regulatory roadblocks? Yes, but some work-arounds come with their own problems.
OSHA can address urgent hazards by issuing emergency temporary standards. However, the agency hasn’t issued an emergency temporary standard since 1983 because it’s found it difficult to compile the evidence necessary by law so that the measure will stand up to a court challenge.
Another well known alternative: Use the General Duty Clause. Example: OSHA used the GDC against Wal-Mart in 2009 after one of its employees was trampled to death by uncontrolled holiday crowds because there’s no OSHA regulation for controlling crowds at retail establishments. The potential downside: Wal-Mart and OSHA have spent many times the amount of the original $7,000 GDC fine arguing the issue in court.
So, if seven to eight years is too long a time to create a new OSHA regulation, how can the process be shortened? The GAO report states that several changes to the rulemaking process would require amending existing laws — Congress and the President would have to be in complete agreement for that to happen.
One recommendation would address updating existing regulations, particularly permissible exposure limits (PELs). Some experts have called for a change in law that would allow OSHA to revise a group of outdated exposure standards at the same time, using industry consensus standards rather than having to analyze each hazard individually.
GAO also recommends OSHA and the National Institute for Occupational Safety and Health (NIOSH) collaborate more on researching workplace hazards. Both agencies have already agreed with the recommendation.
Is seven to eight years too long to enact new OSHA regulations? Or, should OSHA just continue to use the GDC when there are no applicable standards to cover a situation? Should the process to update PELs be streamlined as suggested? Let us know what you think in the comments below.