Spring 2013 looked like it would be a banner season for progress by the Obama Administration on new worker safety regulations.  In the Labor Department’s most recent regulatory agenda, the Mine Safety and Health Administration (MSHA) and the Occupational Safety and Health Administration (OSHA) indicated they’d be taking key steps in March through June 2013 on rules to better protect workers from health and safety hazards.  I thought these optimistic projections meant President Obama’s second term would be a more productive one than his first.  With the Presidential election behind them, the Administration could be charging ahead with much-needed and long-overdue worker safety regulations.   Afterall, Obama’s campaign slogan was “Forward.”   But six months into his second term, the Administration’s regulatory apparatus appears as constipated as ever.

• OSHA projected it would issue in March a final rule to enhance protections for workers involved in electric power transmission and distribution.  It’s still “under review” at the White House’s Office of Information and Regulatory Affairs (OIRA) and has been for more than 10 months.
• MSHA suggested it would issue this month a final rule for proximity detection devices to protect underground coal miners from crushing injuries.   Since 2010, at least 85 mine workers have been injured, including eight fatally, from incidents involving underground equipment used at the coal face.   MSHA has yet to submit the final rule to OIRA for review.
• OSHA indicated it would be convening in April a group of small business representatives to review a draft rule on protections for healthcare and social services workers from infectious diseases, such as tuberculosis.  That review panel has yet to be convened.
• OSHA projected that two proposed regulations, one on respirable crystalline silica and the other to modernize the tracking of work-related injury and illness, would be issued this month.  Publication of those proposals would trigger the beginning of the public comment process.  Both of these regulatory initiatives have been stuck at OIRA for review.  The OSHA proposal on crystalline silica has been “under review” for 26 months and injury tracking proposal has racked up 18 months of “review.”
• MSHA indicated it would issue in June a final rule to reduce miners’ exposure to respirable coal dust in order to prevent black lung and other respiratory diseases.  MSHA has yet to submit the final rule to OIRA for review.

As I recapped for myself this lack of progress, fresh on my mind are the reflections of Georgetown law professor Lisa Heinzerling in Inside EPA: A Former Insider’s Reflection on the Relationship between the Obama EPA and the Obama White House.  She explains how OIRA violates Executive Order 12866 and abuses its power so that some regulatory packages simply, as she says,“wither quietly on the vine” and die.  I wonder if that’s the fate of these worker safety rules?

Heinzerling served from January 2009 to December 2010 as a senior Obama Administration official at the Environmental Protection Agency (EPA).   I wrote last month about some of Heinzerling’s initial remarks, but this longer paper is more illuminating and disturbing.    Heinzerling writes from her experience environmental protection rules, but I fear the “wither on the vine” tactics are at play with worker safety regulations.    How is it that OSHA’s proposed rule on crystalline silica is “under review” for more than two years?

OIRA’s review of agency rules is supposed to last no longer than 90 days, with one 30-day extension permitted (in writing) if agreed to by the agency head and the director of the Office of Management and Budget.   The requirement is laid out plainly in Executive Order 12866.   Heinzerling explains how it actually works.  She draws on her own experience, as well as what is now in print by President Obama’s former OIRA director Cass Sunstein.  Heinzerling writes:

“Sunstein explains that, in fact, the prevailing understanding of EO 12,866 holds that an agency head may, on her own, request an indefinite extension of OIRA review.   This would mean that neither the requirement that the OMB Director agree “in writing” to the extension nor the requirement that the extension be once, for 30 days only, holds under the present understanding of EO 12,866.  This would, in turn, mean that if an agency head asks for an extension, there actually is no deadline for completing OIRA review.  This remodeling of EO 12,866’s structure on the timelines for review is news in and of itself.  Many outside observers believe that there is in fact a deadline for OIRA review.  OIRA itself encourages this (mis)understanding by displaying 90 days as a timing benchmark on its regulatory dashboard.”

“But it is worse than that.  It is worse because the way that agency heads come to request extended review, in my experience, is that OIRA calls an official at the agency and asks the agency to ask for an extension.  It is clear, in such a phone call, that the agency is not to decline to ask for such an extension.  Thus, not only is there no deadline for OIRA review, but OIRA itself controls the agency’s “requests” for extensions.  In this way, it comes to pass that rules can remain at OIRA for years.”

So technically, the reason that OSHA’s silica proposed rule is still being “reviewed” at OIRA after 26 months, and its proposal on tracking injuries is still there after 18 months, is because the OSHA’s chief requested it?  What a bunch of baloney.  While the White House allows OIRA’s abuse of power to go on, public protections suffer.  The White House knows how OIRA operates.  They obviously like it that way.

I won’t be holding my breath any longer to see much progress in Obama’s second term on new worker safety regulations.