ORC Worldwide (ORC), an international management and human resources consulting firm whose Washington, D.C. office has for more than 35 years specialized in providing a wide array of occupational safety and health consulting services to business organizations, has come out in opposition to the Department of Labor’s proposal to add another layer of regulatory review before setting new standards for chemical health risks.
In a Sept. 29 letter to the Office of the Assistant Secretary for Policy, U.S. Department of Labor, ORC contended that DOL has not established the need for a new regulation prescribing agency risk assessment procedures.
ORC stated: “The purpose of this rulemaking, according to the preamble to the DOL’s NPRM, is ‘to compile its existing best practices related to risk assessment into a single, easy to reference regulation, and to include two requirements to establish consistent procedures for conducting risk assessments that promote greater public input and awareness of the Department’s health rulemakings’
“What is notable and puzzling is the utter failure of the DOL to justify or explain in the proposal why the issuance of a regulation is a necessary or appropriate means for achieving any of these three goals. In other words, why is a regulation, as opposed to some other non-regulatory alternative, the only or even the best way to 1) ‘compile best practices related to risk assessment into a single easy to reference document, 2) ‘establish consistent procedures for conducting risk assessment,’ and 3) ‘promote greater public input and awareness’ of health rulemakings?
“A fundamental precept of modern regulation, especially in this administration, has been that there must be a demonstrable need for a rule and that there are no alternatives to a regulation that would effectively accomplish the same purpose. And while the DOL asserts that the Regulatory Flexibility Act does not apply to this rulemaking (73 FR 50910), the principle of establishing a need for a rule should not be ignored. For example, there is no evidence presented in the NPRM to indicate that procedures in the referenced OMB/DOL guidance documents are not sufficient or are not being followed, or that interested parties believe that opportunities for participation in health rulemakings are lacking in some way. ORC believes that rulemaking is not an appropriate vehicle for achieving the basic objectives described in the proposal.
ORC also contends that the requirement for an Advance Notice of Proposed Rulemaking (ANPRM) always be issued as part of every health rulemaking is excessively restrictive and unsupported.
“The point here is that there is no justification for a blanket requirement for an ANPRM, which may not always or even often accomplish the objective sought. ORC recommends that the Department establish certain “performance criteria” around the need for early
(pre-proposal) information exchange and leave it to the agencies to decide in a particular situation how to achieve those objectives.
ORC concludes by saying, “The NPRM has had the laudable effect of reviving discussion of appropriate use of science in the development of public policy, especially in occupational health rulemakings. ORC does not object to a compilation of best practices in risk assessment, with improved procedures for transparency. However, the DOL has failed to justify the need for a regulation to accomplish its objectives. In addition, the proposal is poorly drafted in significant ways that could lead at least to confusion and
at worst to conflict with the Acts whose requirements the proposal purports to clarify.
A more supportable, adaptable and effective alternative means to achieve the DOL’s objectives, and one that would address many of the concerns raised by the NPRM, would be the issuance of a guidance document instead of a regulation. Such a step would allow for the appropriate degree of flexibility and responsiveness needed for the continual improvement of risk assessment approaches and their application to DOL health rules.”
Meanwhile, the American Society of Safety Engineers (ASSE) has announced its support of the U.S. Department of Labor’s recent rulemaking requiring the Occupational Safety and Health Administration (OSHA) and the Mine Safety and Health Administration (MSHA), when developing a health standard regulating occupational exposure to a toxic substance or hazardous chemical, to add a new step to the rulemaking process by publishing A Notice of Proposed Rulemaking (ANPR) seeking relevant scientific information, to evaluate the information received, and to post the information electronically.
In a letter to DOL Secretary Elaine Chao this week, ASSE President Warren Brown, CSP, ARM, CSHM, said ASSE supports this proposal because it provides an additional opportunity for the regulated community to review and, if necessary, object to an exposure requirement that employers and safety, health and environmental (SH&E) professionals they hire have responsibility for managing.