[Federal Register: August 31, 2009 (Volume 74, Number 167)][Proposed Rules] [Page 44795-44797]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31au09-41]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Office of the Secretary
29 CFR Part 2
RIN 1290-AA23
Requirements for DOL Agencies' Assessment of Occupational Health
Risks
AGENCY: Office of the Secretary; Office of the Assistant Secretary for
Policy.
ACTION: Proposed rule; withdrawal.
-----------------------------------------------------------------------
SUMMARY: The Department of Labor ("Department" or "DOL") is
withdrawing its proposed rule governing DOL agencies' assessment of
occupational health risks. The proposed rule sought to compile
Department procedures related to risk assessment into a single
regulation and included new requirements aimed at establishing
consistent procedures intended to promote greater public input and
awareness of the Department's health rulemakings.
DATES: This withdrawal is effective on August 31, 2009.
FOR FURTHER INFORMATION CONTACT: Kathleen Franks, Office of Regulatory
and Programmatic Policy, Office of the Assistant Secretary for Policy,
U.S. Department of Labor, (202) 693-5959. This is not a toll-free
number. Individuals with hearing or speech impairments may access the
number above via TTY by calling the toll-free Federal Information Relay
Service at 1-800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Background
On August 29, 2008, the Department published in the Federal
Register (73 FR 50909 Aug. 29, 2008) a notice of proposed rulemaking
(NPRM) to codify DOL's internal risk assessment procedures for health
standard rulemakings that address workplace exposure to toxic
substances and hazardous chemicals. The NPRM stated that it summarized
and would codify DOL agencies' existing risk assessment paradigm and
requested public comment on two specific procedural requirements: A new
requirement that DOL agencies issue an Advance Notice of Proposed
Rulemaking (ANPRM) as a first step whenever developing a health
standard that would regulate workplace exposure to toxic substances or
hazardous chemicals; and a requirement that DOL agencies electronically
post all documents relied upon to develop such health standards within
fourteen days of each regulatory step. Because the Occupational Safety
and Health Administration (OSHA) and the Mine Safety and Health
Administration (MSHA) are the only two agencies within the Department
that issue health standards related to toxic substances and hazardous
chemicals, it was anticipated that the proposed rule would affect only
those agencies.
The Department accepted public comment on the NPRM for a period of
30 days. While some interested parties, including members of Congress,
urged DOL to extend the public comment period and requested that the
Department hold public hearings on the proposal, the Department
declined these requests due to its desire to adhere to the originally
published timeframe for completion of this rulemaking.
The Department received comments in response to the NPRM from a
variety of sources, including members of Congress, private citizens,
labor unions, worker advocacy organizations, industry associations,
employer groups, and risk assessment experts. The majority of the
commenters were opposed to the rulemaking.\1\
---------------------------------------------------------------------------
\1\ Comments are available for review at http://
www.regulations.gov. Reference Docket Number: DOL-2008-0002.
---------------------------------------------------------------------------
II. Reasons for Withdrawal of Proposed Rule
After careful review of the comments and upon reconsideration of
the issues involved in this rulemaking, the Department has decided to
withdraw the proposed rule. As described below, the two proposed
requirements are unnecessary. Moreover, given the nature of the issues,
the Department believes that it is more useful to continue describing
its internal risk assessment policies through guidance rather than
through promulgation of a regulation.
Proposed ANPRM Requirement. The proposal would have required DOL
agencies to issue an ANPRM in every rulemaking for a health standard
involving toxic substances or hazardous chemicals, apart from emergency
temporary standards. Many commenters were opposed to this new
requirement. See, e.g., Exs. 7.1; 16.1; 42.1; and 48.1.\2\ Some
commenters, including members of Congress and Senators, employer
groups, and worker advocacy organizations claimed that an ANPRM is not
always useful and that imposing an ANPRM requirement in a health
standard rulemaking when it was not necessary would unduly delay the
rulemaking. See, e.g., Exs. 32.1; 37.1; and 42.1. They argued that this
in turn could harm workers by unnecessarily delaying the introduction
of the health protections required by the standard. Labor unions and
worker advocacy organizations also claimed that requiring an
unnecessary ANPRM would divert agency resources from other rulemaking
efforts. See, e.g., Exs. 45.1 and 48.1.
---------------------------------------------------------------------------
\2\ "Ex." Refers to exhibits included in the rulemaking
docket, which can be referenced using the URL provided in Footnote
1, supra.
---------------------------------------------------------------------------
The current policy of both OSHA and MSHA is to publish an ANPRM
only if the agency believes it will be beneficial to the rulemaking.
This decision is made on a case-by-case basis. In light of the comments
to the proposal and after reconsideration of the proposed ANPRM
requirement, the Department has determined that OSHA and MSHA should
continue to follow their current ANPRM policy.
The Department believes that an ANPRM can be a valuable part of the
rulemaking process in the right circumstances, but that an inflexible
requirement would not fit the varied circumstances in which rulemakings
are conducted and could cause unnecessary delays. When an agency lacks
important information needed to develop an effective proposed rule, an
ANPRM provides one means of attempting to obtain that information.
However, there are times when an agency has sufficient information to
issue a successful proposed rule without taking that step. Avoiding an
ANPRM in these situations allows the agency to more effectively use its
rulemaking resources. There are also many other ways in which OSHA and
MSHA can obtain needed information without using an ANPRM, such as
holding stakeholder meetings, conducting surveys, consulting advisory
committees, doing site visits, issuing Requests for Information,
conducting peer reviews, and, in the case of OSHA, obtaining small
entity (including small business) input through procedures required by
the Small Business Regulatory Enforcement Fairness Act (5 U.S.C.
609(b)). By allowing the agency to decide whether or not to use an
ANPRM for a rulemaking, the agency retains flexibility to choose the
information gathering methods that it has determined will best fit each
individual situation.
Proposed Electronic Posting Requirement. The proposal would have
required the Department to make available, on http://www.regulations.gov
or http://www.dol.gov, "all relevant documents related to a rulemaking
addressing occupational exposure to toxic substances and hazardous
chemicals no later than fourteen days after the conclusion of the relevant
rulemaking step that relied upon or utilized those documents." 73 FR at 50914.
Commenters such as some industry associations and employer groups, who
addressed this issue generally supported the electronic posting requirement
and its goal of transparency in rulemaking. See, e.g., Exs. 11.1; 25.1;
32.1; and 38.1. Several commenters, including labor unions, other
employer groups, and industry associations however, pointed out that
the Department is already required to, and does, make rulemaking
information available online. See, e.g., Exs. 17.1; 32.1; and 35.1.
Indeed, the E-Government Act of 2002 requires all federal agencies to
maintain a publicly accessible website containing electronic dockets
for rulemakings. Public Law No. 107-347, Title II, 201 to 216 (codified
as 44 U.S.C. 3501 note), at 206(d)(1). All public comments, as well as
"other materials that by agency rule or practice are included in the
rulemaking docket" are required to be made available to the public via
the electronic docket. Public Law No. 107-347, Title II, at
206(d)(2)(A), (B). To implement the E-Government Act and provide the
public with a single government-wide access point for rulemaking
information and submissions, federal agencies were required to
consolidate all electronic rulemaking dockets on http://
www.regulations.gov. Office of Management and Budget (OMB),
Implementation Guidance for the E-Government Act of 2002, M-03-18 (Aug.
1, 2003), available at http://www.whitehouse.gov/omb/memoranda/m03-
18.pdf. The E-Government Act built on previous efforts to use
information technology to provide citizens with easier access to
government information and participation. See, e.g., OMB, Redundant
Information Systems Relating to On-Line Rulemaking Initiative, M-02-08
(May 6, 2002), available at http://www.whitehouse.gov/omb/memoranda/
m02-08.pdf.
Pursuant to the E-Government Act, it is the practice of both OSHA
and MSHA to post, in a timely manner, information relevant to agency
rulemakings on http://www.regulations.gov. This includes the posting of
all scientific studies that are relied upon in the rulemaking. The
Department has determined, therefore, that the proposed electronic
posting requirement is duplicative of E-Government Act requirements and
is not needed.
Other Requirements. The proposed regulatory text also stated that
agency risk assessments must, when the data are available, use
industry-by-industry evidence relating to working life exposures.
Proposed 29 CFR 2.9(c)(3), 73 FR at 50915. Of the commenters that
discussed the "industry-by-industry" language, the majority,
including members of Congress and Senators, risk assessment experts,
worker advocacy organizations, and labor unions viewed it as a
departure from the Department's existing longstanding practice of using
a 45-year working life assumption for selecting exposure limits for
health standards. See, e.g., Exs. 18.1; 23; 28.1; 42.1; and 48.1. Some
employer groups and industry associations, however, expressed support
for using industry-specific data to develop working life assumptions.
See, e.g., Exs. 27.1; 31.1; and 35.1.
Section 6(b)(5) of the Occupational Safety and Health Act requires
the agency to regulate in a manner that "most adequately assures * * *
that no employee will suffer material impairment of health or
functional capacity even if such employee has regular exposure to the
hazard * * * for the period of his working life." 29 U.S.C. 655(b)(5).
The Mine Act has nearly identical language, except that it refers to
miners rather than employees. 30 U.S.C. 811(a)(6)(A). To implement
these provisions, it has been the Department's longstanding practice to
use a general 45-year working life assumption. This practice is not
based on empirical data that most employees are exposed to the hazard
for 45 years. Rather, it is based on the statutory directive that "no
employee" suffer material impairment "even if" such employee is
exposed for the period of his or her working life. The Department's
practice of using a 45-year working life has won judicial approval.
See, e.g., Building and Constr. Trades Dep't, AFL-CIO v. Brock, 838
F.2d 1258, 1264-65 (D.C. Cir. 1987) (explaining that the assumption of
a 45-year working life "appear[ed] to conform to the intent of
Congress"); for examples of DOL standards using a 45-year working
life, see Asbestos, 51 FR 22612, 22648 (June 20, 1986); Bloodborne
Pathogens, 56 FR 64004, 64031 (Dec. 6, 1991); Diesel Particulate Matter
Exposure of Underground Coal Miners, 66 FR 5526, 5663-64 (Jan. 19,
2001); Hexavalent Chromium, 71 FR 10100, 10224 (Feb. 28, 2006).
OSHA and MSHA have not conducted separate industry-by-industry
analyses of working life for their risk assessments. The Department has
consistently rejected the claim that it must conduct a separate risk
assessment for each industry regulated by a standard. Public Citizen
Health Research Group v. U.S. Dep't of Labor, 557 F.3d 165, 186-188 (3d
Cir. 2009); American Dental Ass'n v. Martin, 984 F. 2d 823, 827 (7th
Cir. 1993); UAW v. OSHA, 37 F.3d 665, 670 (D.C. Cir. 1994); Control of
Hazardous Energy Sources (Lockout/Tagout), OSHA Supplemental Statement
of Reasons, 58 FR 16612-02, 16620-16621 (Mar. 30, 1993).
Guidance versus Regulation. The Department received a small number
of comments, from risk assessment experts, policy groups, and labor
unions that questioned the need for a regulation when it was possible
to issue internal guidance instead. All of these commenters argued that
the risk assessment rulemaking was unnecessary because the Department
already has risk assessment guidance and because guidance rather than
regulation is the more appropriate format for such internal Department
procedures. See, e.g., Exs. 26.1; 32.1; 46.1; and 48.1. Upon
reconsideration of this issue, the Department has concluded that a risk
assessment rulemaking is not necessary. The Department believes that
guidance, as opposed to regulation, is a more suitable vehicle for its
internal risk assessment procedures and allows the Department more
flexibility to quickly adapt and improve its risk assessment procedures
in the future. Compared to changes to internal guidance, changes to a
regulation would take far more time and require a lengthy notice and
comment rulemaking.
Other Issues. There were a number of other issues addressed in
public comments to the proposed rule. These issues included: (1)
Whether the rule was a "significant regulatory action" under
Executive Order 12866, thus requiring a cost/benefit analysis before
promulgating the rule; (2) whether the rule was substantive or
procedural and, if substantive, whether proper rulemaking procedures
were followed; (3) whether the rule was appropriately issued under 5
U.S.C. 301; and (4) whether the Assistant Secretary for Policy had a
proper delegation of authority to issue the rule. The Department notes
that these and other issues raised by commenters, while important, are
no longer relevant given the Department's decision to terminate the
rulemaking.
Withdrawal. For the reasons discussed above, the Department is
withdrawing its risk assessment rulemaking, effective on August 31, 2009.
Authority and Signature.
Megan Uzzell,
Acting Assistant Secretary for Policy.
[FR Doc. E9-20923 Filed 8-28-09; 8:45 am]
BILLING CODE 4510-23-P
