The same day the Government Accountability Office (GAO) released a study finding that it takes an average of nearly 8 years for the Occupational Safety and Health Administration (OSHA) to finalize safety standards, the Senate Committee on Health, Education, Labor and Pensions (HELP) held a hearing to address why this process takes so long. HELP Committee Chairman Tom Harkin (D-IA) began the hearing by claiming that the agency “is broken” and that its rulemaking process is “mired in bureaucracy.” Citing the GAO study, Harkin noted that in the 1980s and 1990s OSHA issued 47 safety standards, but has finalized only 11 since that time. OSHA’s silica standard, he highlighted, has been in development since 1974. While hearing panelists offered different proposals to solve the rulemaking delay, most agreed that the agency needs to set priorities and focus on those rules instead of continually shifting gears and getting “mired” in its own processes.

Speaking on the first hearing panel was GAO Director Revae Moran. She discussed the GAO report, and stated that between 1981 and 2010, it took OSHA between 15 months and 19 years to finalize a total of 58 safety standards. She explained that 15 percent of these rules took more than 10 years to be issued. This significant lag was due, in large part, to the agency’s “shifting priorities,” administrative requirements placed on the agency, and the high standard of judicial review for OSHA rules. Specifically, Moran explained that a 1993 executive order required that all significant rules be subject to a cost/benefit analysis which, she claimed, can add several months to the rulemaking process. In 1996 OSHA became one of three agencies required under the Small Business Regulatory Enforcement Fairness Act (SBREFA) to convene small business panels to determine the impact rules would have on these entities. Under questioning from Sen. Harkin, Moran also noted that OSHA’s rules are subject to a high standard of review. Namely, OSHA must demonstrate that there exists substantial evidence of a material impairment to a worker to support its rule-making effort, while other agencies must show only that the rule is not arbitrary and capricious.

The GAO report makes only one recommendation to expedite the rulemaking process, however. Specifically, the report recommends that OSHA and the National Institute for Occupational Safety and Health (NIOSH) work more closely in researching occupational hazards so that OSHA can avail itself of NIOSH’s expertise. Some lawmakers and panelists criticized this lone recommendation. For example, Clinical Professor of Environmental and Occupational Health Michael Silverstein claimed that OSHA and NIOSH have been working together for the past 40 years. While he noted that while collaboration is a good thing, it would not solve OSHA’s rulemaking process.

Sen. Al Franken (D-MN) asked Moran whether other suggestions presented by other panelists – including the use of voluntary consensus standards – would be a viable option. Moran responded that it would take a legislative act to allow such standards to suffice, as OSHA is held to certain specific and high standards. Moran did, however, advocate – as did several other panelists –that once OSHA determines the need for a safety standard, it “must be able to move forward as efficiently and effectively as possible.”

Need for Rule Deadlines, OMB Reform, Business Involvement

Some witnesses supported the idea that Congress should impose mandatory deadlines for OSHA standards. Randy Rabinowitz, Director of Regulatory Policy for OMB Watch, claimed that doing so would significantly expedite the process. GAO Director Moran noted during her testimony that there were statutorily set timeframes for establishing 9 of the 58 standards examined. According to Moran, these rules were finalized, on average, in half the time.

Rabinowitz also spoke in favor of more transparency for the Office of Management and Budget. According to Rabinowitz, OMB review of an OSHA rule takes anywhere from a few months to a few years. Professor Silverstein agreed that OSHA is subject to “innumerable procedural delays” through OMB review. Among other suggestions, Rabinowitz said that Congress should require OMB to keep a public record of its meetings and disclose the changes it requires the agency to make to any rule during the process. Like many of her fellow panelists, Rabinowitz also suggested that OSHA “should pick a few hazards and see these priorities through” without shifting focus. In addition, she was in favor of allowing OSHA to rely on existing scientific analysis so that it is not forced to reinvent the wheel for subsequent rules.

Speaking on behalf of the Chamber of Commerce, attorney David G Sarvadi reiterated the call for OSHA to “set priorities and stick to its list.” He also recommended that the agency get industry experts involved and consult with businesses “often and early” in the rulemaking process.

Ranking member Mike Enzi (R-WY), however, was opposed to Congress setting dates for rules. He claimed that this is a job best left to scientific experts. He noted that since 2003 reported instances of injuries and illnesses have decreased by 30 percent, and that, although regulation is one way to further reduce this rate, OSHA should be encouraged to pursue multiple methods of injury and illness reduction. Specifically, Enzi claimed that voluntary programs such as the Voluntary Protection Program (VPP) is a means of promoting safe workplaces, but that this program is being “threatened and undermined under the current administration.” Enzi expressed the desire to bring a bi-partisan bill he co-sponsored – the Voluntary Protection Program (VPP) Act  – for markup. This bill would strengthen the VPP and make it permanent.

Panelist Silverstein agreed that the VPP is a beneficial program, but cautioned that it is often “mischaracterized as causing workplaces to become safe.” He noted that the VPP is a recognition program, which awards employers that have proven records of safe workplaces.

Enzi also criticized OSHA’s new hazard communication standard, which he claims includes provisions not discussed during stakeholder meetings. In particular, he found fault with the rule’s inclusion of information on combustible dust and the creation of a new category of “hazards not otherwise classified.”

During panelist questioning, Enzi also asked attorney Sarvadi about an OSHA memo issued earlier this year that directs field compliance officers and whistleblower investigators to keep an eye out for workplace policies and practices, including employer safety initiatives that could discourage employees from reporting injuries. Enzi asked whether this memo was an important use of the agency’s authority. Sarvadi responded that he was unsure “why this idea has persisted.” According to him, “there is no suggestion that there is a widespread underreporting.” He mentioned that employers must be careful to ensure that their incentive programs are not used inappropriately, but that this is a rulemaking issue.

A complete list of panelists and links to their testimony and an archived webcast of the hearing can be found here.