oversight

Workplace Safety and Health: Multiple Challenges Lengthen OSHA's Standard Setting

Published by the Government Accountability Office on 2012-04-02.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

             United States Government Accountability Office

GAO          Report to Congressional Requesters




April 2012
             WORKPLACE
             SAFETY AND
             HEALTH
             Multiple Challenges
             Lengthen OSHA’s
             Standard Setting




GAO-12-330
                                           April 2012

                                           WORKPLACE SAFETY AND HEALTH
                                           Multiple Challenges Lengthen OSHA’s Standard
                                           Setting
Highlights of GAO-12-330, a report to
congressional requesters




Why GAO Did This Study                     What GAO Found
Occupational safety and health             Between 1981 and 2010, the time it took the Department of Labor’s Occupational
standards are designed to help protect     Safety and Health Administration (OSHA) to develop and issue safety and health
about 130 million public and private       standards ranged widely, from 15 months to 19 years, and averaged more than 7
sector workers from hazards at more        years. Experts and agency officials cited increased procedural requirements,
than 8 million U.S. worksites.             shifting priorities, and a rigorous standard of judicial review as contributing to
Questions exist concerning how long it     lengthy time frames for developing and issuing standards. For example, they said
takes OSHA to issue its standards.         that a shift in OSHA’s priorities toward one standard took attention away from
GAO was asked to examine: (1) the          several other standards that previously had been a priority.
time OSHA takes to develop and issue
safety and health standards and the        In addition to using the typical standard-setting process, OSHA can address
key factors that affect these time         urgent hazards by issuing emergency temporary standards, directing additional
frames, (2) alternatives to the typical    attention to enforcing relevant existing standards, and educating employers and
standard-setting process available for     workers about hazards. However, OSHA has not issued an emergency
OSHA to address urgent hazards (3)         temporary standard since 1983 because it has found it difficult to compile the
whether other regulatory agencies’         evidence necessary to meet the statutory requirements. Instead, OSHA focuses
rulemaking offers insight into OSHA’s      on enforcement and education when workers face urgent hazards. For example,
challenges with setting standards, and     OSHA can enforce the general requirement of the Occupational Safety and
(4) ideas from occupational safety and     Health Act of 1970 (OSH Act) that employers provide a workplace free from
health experts and agency officials for
                                           recognized hazards, as it did in 2009 when it cited a major retail employer after
improving OSHA’s process. GAO
                                           one of its workers was crushed to death by uncontrolled holiday crowds. To
analyzed standards issued by OSHA
between 1981 and 2010, interviewed         educate employers and workers, OSHA coordinates and funds on-site
subject matter experts and agency          consultations and publishes information on matters as diverse as safe lifting
officials at OSHA and two similar          techniques for nursing home workers and exposure to diacetyl, a flavoring
federal regulatory agencies and            ingredient used in microwave popcorn linked to lung disease among factory
offices, and reviewed the standard-        workers.
setting process at OSHA and the            Experiences of other federal agencies that regulate public or worker health
comparison agencies and offices.
                                           hazards offer limited insight into the challenges OSHA faces in setting standards.
What GAO Recommends                        For example, officials with the Environmental Protection Agency noted that
                                           certain Clean Air Act requirements to set and regularly review standards for
To streamline OSHA standards               specified air pollutants have facilitated that agency’s standard-setting efforts. In
development, GAO recommends that           contrast, the OSH Act does not require OSHA to periodically review and update
OSHA and NIOSH more consistently           its standards. Officials with the Mine Safety and Health Administration noted that
collaborate on researching                 their standard-setting process benefits from both the in-house knowledge of its
occupational hazards, so that OSHA
                                           inspectors, who inspect every mine at least twice yearly, and a dedicated mine
can more effectively leverage NIOSH
                                           safety research group within the National Institute for Occupational Safety and
expertise in determining the needs for
new standards and developing them.         Health (NIOSH), a federal research agency that makes recommendations on
Both agencies agreed with the              occupational safety and health. OSHA must rely on time-consuming site visits for
recommendation.                            hazards information and has not consistently coordinated with NIOSH to engage
                                           that agency’s expertise on occupational hazards.
                                           Experts and agency officials identified several ideas that could improve OSHA’s
                                           standard-setting process. While some of the changes, such as improving
                                           coordination with other agencies to leverage expertise, are within OSHA’s
                                           authority, others call for significant procedural changes that would require
                                           amending existing laws. For example, some experts recommended a statutory
View GAO-12-330. For more information,     change that would allow OSHA to revise a group of outdated health standards at
contact Revae Moran at (202) 512-7215 or   the same time, using industry consensus standards as support rather than
moranr@gao.gov.
                                           having to analyze each hazard individually.
                                                                                    United States Government Accountability Office
Contents


Letter                                                                                     1
               Background                                                                  3
               OSHA’S Standard-Setting Time Frames Vary Widely and Are
                 Influenced by the Many Procedural Requirements and Other
                 Factors                                                                   7
               OSHA has Authority to Address Urgent Hazards through
                 Emergency Temporary Standards, Enforcement, and Education               20
               Other Regulatory Agencies’ Experiences Offer Limited Insight into
                 OSHA’s Challenges                                                       26
               Experts Suggested Many Ideas to Improve OSHA’s Standard-
                 Setting Process, Including More Interagency Coordination and
                 Statutory Deadlines                                                     30
               Conclusions                                                               37
               Recommendation for Executive Action                                       38
               Agency Comments                                                           38

Appendix I     Objectives, Scope, and Methodology                                        41



Appendix II    Selected Procedural Requirements for Federal Rulemaking                   44



Appendix III   Comments from the Department of Labor                                     46



Appendix IV    Comments from the Department of Health and Human Services                 48



Appendix V     GAO Contact and Staff Acknowledgments                                     50



Tables
               Table 1: Significant OSHA Safety and Health Standards Finalized
                        between 1981 and 2010                                             8
               Table 2: Selected Procedural Requirements for Federal Rulemaking          44




               Page i                                  GAO-12-330 Workplace Safety and Health
Figures
          Figure 1: Significant OSHA Safety Standards Timeline                                      10
          Figure 2: Significant OSHA Health Standards Timeline                                      11
          Figure 3: Steps in a Typical OSHA Standard-Setting Process                                13




          Abbreviations

          APA               Administrative Procedure Act
          EPA               Environmental Protection Agency
          MSHA              Mine Safety and Health Administration
          NIOSH             National Institute for Occupational Safety and Health
          OMB               Office of Management and Budget
          OSHA              Occupational Safety and Health Administration
          OSH Act           Occupational Safety and Health Act of 1970
          PEL               Permissible exposure limit


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          Page ii                                           GAO-12-330 Workplace Safety and Health
United States Government Accountability Office
Washington, DC 20548




                                   April 2, 2012

                                   Congressional Requesters

                                   Workplace safety and health standards are designed to help protect over
                                   130 million public and private sector workers from hazards at more than 8
                                   million worksites in the United States. Under the Occupational Safety and
                                   Health Act of 1970 (OSH Act), as amended, 1 the Department of Labor’s
                                   (Labor) Occupational Safety and Health Administration (OSHA) issues
                                   and enforces occupational safety and health standards, which have been
                                   credited with helping prevent thousands of work-related deaths, injuries,
                                   and illnesses. For example, OSHA’s “lockout/tagout” safety standard
                                   requires employers to install devices ensuring that heavy machinery
                                   cannot be turned on while being cleaned or repaired. In a 2000 review,
                                   OSHA attributed a 55 percent reduction in machinery-related fatalities at
                                   10 steel-producing companies between 1990 and 1997 to the provisions
                                   in this standard. However, some occupational safety and health experts
                                   have raised questions concerning whether the agency’s approach to
                                   developing standards is overly cautious, slowing the process and
                                   resulting in too few standards being issued. Others counter that the
                                   process is intentionally deliberative to balance protections provided for
                                   workers with the burden imposed on employers in complying with the
                                   standards. Further, over the past 30 years, various presidential executive
                                   orders and federal statutes, such as the Regulatory Flexibility Act, have
                                   added new procedural requirements for regulatory agencies, resulting in
                                   multiple and sometimes lengthy steps OSHA and other agencies must
                                   follow. In addition, OSHA’s authority covers nearly all U.S. industries,
                                   which requires OSHA staff to be familiar with a broad range of processes,
                                   equipment, and chemicals used at worksites.

                                   We were asked to review: (1) the time taken by OSHA to develop and
                                   issue occupational safety and health standards and the key factors that
                                   affect these time frames, (2) alternatives to the typical standard-setting
                                   process that are available for OSHA to address urgent hazards, (3)
                                   whether rulemaking at other regulatory agencies offers insight into
                                   OSHA’s challenges with setting standards, and (4) ideas that have been




                                   1
                                    Pub. L. No. 91-596, 84 Stat. 1590, codified as amended at 29 U.S.C. §§ 553, 651-78.




                                   Page 1                                          GAO-12-330 Workplace Safety and Health
suggested by occupational safety and health experts for improving the
process.

To determine how long it takes OSHA to develop and issue occupational
safety and health standards, we analyzed new standards and substantive
updates to standards finalized between calendar years 1981 and 2010
and identified as significant by the agency. We chose this time frame
because it spans multiple executive administrations and changes in
congressional leadership. Also, several statutes, executive orders, and
key court decisions affecting OSHA’s standard-setting process became
effective after 1980. To identify the key factors affecting OSHA’s time
frames for issuing standards and ideas for improving OSHA’s standard-
setting process, we conducted semistructured interviews with current and
former Labor officials and occupational safety and health experts and
analyzed their responses. We selected these experts based on our
research and the recommendations of other experts. We also reviewed
relevant federal laws, regulations, and executive orders, and interviewed
officials from the Office of Management and Budget (OMB), to determine
the required steps in the standard-setting process and how those
requirements affect the time it takes OSHA to develop and issue
standards. To identify alternatives to the typical standard-setting process
available for OSHA to address urgent hazards, we reviewed relevant
federal laws and interviewed current OSHA staff and attorneys from
Labor’s Office of the Solicitor. We also analyzed relevant agency
documentation that Labor officials provided. To determine whether
rulemaking at other regulatory agencies offers insight into OSHA’s
challenges with setting standards, we explored the regulatory process at
selected federal regulatory agencies and offices. Through semistructured
interviews with policy and program officials at the Environmental
Protection Agency (EPA) and at the Mine Safety and Health
Administration (MSHA), we learned about challenges each agency faces
when developing and issuing similar regulations and factors that affect
their time frames. Through our interviews with current and former OSHA
officials and experts representing both workers and employers, we
identified six ideas for improvement that could expedite or otherwise
improve OSHA’s standard-setting process. For more information on our
objectives, scope, and methodology, see appendix I.

We conducted this performance audit from February 2011 to April 2012 in
accordance with generally accepted government auditing standards.
Those standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe that


Page 2                                   GAO-12-330 Workplace Safety and Health
                        the evidence obtained provides a reasonable basis for our findings and
                        conclusion based on our audit objectives.



Background
Basics of the Federal   The basic process by which all federal agencies typically develop and
Rulemaking Process      issue regulations is set forth in the Administrative Procedure Act (APA) 2
                        and is generally known as the rulemaking process. 3 Rulemaking at most
                        regulatory agencies follows the APA’s informal rulemaking process, also
                        known as “notice and comment” rulemaking, which generally requires
                        agencies to publish a notice of proposed rulemaking in the Federal
                        Register, provide interested persons an opportunity to comment on the
                        proposed regulation, and publish the final regulation, among other
                        things. 4 Agencies may also take other actions to gather information during
                        the rulemaking process; for example, agencies may hold a public meeting
                        to allow stakeholders to discuss specific aspects of the proposed
                        regulation. Under the APA, a person adversely affected by an agency’s
                        rulemaking is generally entitled to judicial review of that new rule. For
                        regulations developed and issued using the APA’s notice and comment
                        rulemaking process, the court may invalidate a regulation if it finds it to be
                        “arbitrary, capricious, an abuse of discretion, or otherwise not in
                        accordance with law,” sometimes referred to as the arbitrary and
                        capricious test. 5



                        2
                         Pub. L. No. 79-404, 60 Stat. 237 (1946), codified in 1966 in scattered sections of title 5,
                        United States Code. Agencies may follow additional or alternative procedures if certain
                        exceptions apply, or when required by other statutes. The next section of this report
                        discusses in more detail the process required by the OSH Act for developing and issuing
                        occupational safety and health standards.
                        3
                         The APA defines a rule as “the whole or part of an agency statement of general or
                        particular applicability and future effect designed to implement, interpret, or prescribe law
                        or policy or describing the organization, procedure, or practice requirements of an
                        agency.” 5 U.S.C. § 551(4). For this report, we use the terms rule and regulation
                        interchangeably.
                        4
                         5 U.S.C. § 553.The APA also provides for formal rulemaking in certain cases, typically
                        when rules are required by statute to be made on the record after an opportunity for an
                        agency hearing. Formal rulemaking includes a trial-type hearing, and if challenged in
                        court, the resulting rule will be struck down if unsupported by substantial evidence.
                        5
                         5 U.S.C. §§ 702, 706(2)(A).




                        Page 3                                              GAO-12-330 Workplace Safety and Health
In addition to the APA requirements, federal agencies typically must
comply with requirements imposed by certain other statutes and
executive orders. Some of the relevant laws include the Paperwork
Reduction Act and the Regulatory Flexibility Act, which were both enacted
in 1980; 6 the Congressional Review Act, enacted in 1996; 7and the
Information Quality Act, enacted in 2000. 8 (See app. II for an overview of
requirements that commonly apply to OSHA standard setting.) In
accordance with various presidential executive orders, agencies work
closely with staff from OMB’s Office of Information and Regulatory Affairs,
who review draft regulations and other significant regulatory actions prior
to publication. 9 Most of the additional requirements that affect OSHA
standard setting were established in 1980 or later.

Agencies can supplement the notice and comment procedure for
developing regulations through a process called “negotiated rulemaking.”
Through this process, the agency convenes a negotiated rulemaking
committee, generally composed of representatives of the agency and the
various interest groups to be affected by a potential regulation, before
developing and issuing the proposed rule. If the committee comes to an
agreement on the content of a potential regulation, the agency may use it
as the proposed rule. However, any agreement by the negotiated
rulemaking committee is not binding on the agency or interest groups


6
 Paperwork Reduction Act of 1980, Pub. L. No. 96-511, 94 Stat. 2812, codified as
amended at 44 U.S.C. §§ 3501-20 and Regulatory Flexibility Act, Pub. L. No. 96-354, 94
Stat. 1164 (1980), codified as amended at 5 U.S.C. §§ 601-12.
7
 Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 is known
as the Congressional Review Act, Pub. L. No. 104-121, § 251, 110 Stat. 847, 868-74,
codified at 5 U.S.C. §§ 801-808.
8
 Section 515 of the Consolidated Appropriations Act, 2001 is known as the Information
Quality Act. Pub. L. No. 106-554, § 515, 114 Stat. 2763, 2763A-153 to 2763A-154 (2000)
(44 U.S.C. 3516 note). The law is also known as the Data Quality Act.
9
 A regulatory action is “significant” if it will (1) have an annual effect on the economy of
$100 million or more or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public health or safety, or state,
local, or tribal governments or communities; (2) create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency; (3) materially alter
the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and
obligations of the recipients; or (4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in Executive Order 12866.
Exec. Order No. 12866, 58 Fed. Reg. 51,735 (Sept. 30, 1993). The principles, structures,
and definitions established in Executive Order 12866 were reaffirmed by Executive Order
13563, 76 Fed. Reg. 3821 (Jan. 18, 2011).




Page 4                                             GAO-12-330 Workplace Safety and Health
                           represented on the committee. Negotiated rulemaking does not replace
                           any procedures required by the APA; rather, it can be used to help reach
                           agreement among the members of the committee on the content of a
                           proposed regulation, and according to proponents, it may help decrease
                           the likelihood of subsequent litigation over the regulation. 10


Legal Framework and        OSHA administers the OSH Act, which was enacted to help assure, so far
Staffing for OSHA’s        as possible, safe and healthful working conditions for the nation’s
Standard-Setting Process   workers. 11 Section 6(b) of the act authorizes the Secretary of Labor to
                           “promulgate, modify, or revoke any occupational safety or health
                           standard” when he or she determines that doing so would serve the
                           objectives of the OSH Act. 12 Occupational safety and health standards
                           are a type of regulation and are defined as standards that require
                           “conditions, or the adoption or use of one or more practices, means,
                           methods, operations, or processes, reasonably necessary or appropriate
                           to provide safe or healthful employment and places of employment.” 13
                           Section 6(b) of the act also specifies the procedures by which OSHA
                           must promulgate, modify, or revoke its standards. These procedures
                           include publishing the proposed rule in the Federal Register, providing
                           interested persons an opportunity to comment, and holding a public
                           hearing upon request.

                           Section 6(a) of the OSH Act directed the Secretary of Labor (through
                           OSHA) to adopt any national consensus standards or established federal
                           standards as safety and health standards within 2 years of the date the




                           10
                             For more details about the federal negotiated rulemaking framework, see 5 U.S.C. §§
                           561-570a.
                           11
                            Pub. L. No. 91-596, § 2, 84 Stat. 1590 (1970).
                           12
                            Codified at 29 U.S.C. § 655(b).
                           13
                             29 U.S.C. § 652(8). Throughout this report we will use the term “OSHA standards” to
                           mean “occupational safety and health standards.” OSHA standards address both health
                           and safety hazards. Private employers and most federal employers generally must comply
                           with OSHA standards. Although state and local government employers are not subject to
                           OSHA standards, states that operate their own OSHA-approved occupational safety and
                           health programs are required to include state and local government employers, and state
                           standards must be at least as effective as OSHA standards.




                           Page 5                                            GAO-12-330 Workplace Safety and Health
OSH Act went into effect. 14 In general, national consensus standards are
safety and health standards that a nationally recognized standards-
producing organization, such as the National Fire Protection Association,
adopts after reaching substantial agreement among those who will be
affected, including businesses, industries, and workers. 15 Unlike OSHA’s
standards, which are mandatory, employers may choose whether to
voluntarily follow national consensus standards. The OSH Act specified
that OSHA set standards under section 6(a) without following OSHA’s
typical standard-setting procedures or the APA, including provisions for
public comment. Indeed, according to an OSHA publication, hundreds of
requirements in current OSHA standards make reference to or are based
on about 200 consensus standards, but the OSH Act does not explicitly
require OSHA to ensure that these standards are kept up to date. 16 The
vast majority of these standards have not changed since originally
adopted, despite significant advances in technology, equipment, and
machinery over the past several decades. When a federal agency
decides to develop a rule, it is generally required by the National
Technology Transfer and Advancement Act of 1995 to use technical
standards developed or adopted by voluntary consensus standards
bodies, where appropriate, except when doing so is inconsistent with




14
  Codified at 29 U.S.C. § 655(a). The OSH Act defines an “established Federal standard”
as any operative occupational safety and health standard established by any federal
agency or contained in any Act of Congress that was in effect on the date of enactment of
the OSH Act. 29 U.S.C. § 652(10). Prior to the enactment of the OSH Act, other federal
laws included provisions designed to protect workers’ safety and health, such as the 1936
Walsh-Healey Act. OSHA included many existing federal standards in the standards it
promulgated under section 6(a) of the OSH Act.
15
  For purposes of section 6(a) of the OSH Act, a national consensus standard must have
been (1) adopted and promulgated by a nationally recognized standards-producing
organization using such procedures that the Secretary of Labor can determine that
interested and affected persons reached substantial agreement on its adoption, (2)
formulated in a manner which afforded an opportunity for diverse views to be considered,
and (3) designated as a national consensus standard by the Secretary of Labor after
consultation with other appropriate federal agencies. 29 U.S.C. § 652(9).
16
  However, the Regulatory Flexibility Act requires that agencies develop a plan for
periodic review of rules that have or will have a significant economic impact upon a
substantial number of small entities to determine whether changes should be made to
minimize such impact. 5 U.S.C. § 610. In addition, Executive Order 13563 requires
agencies to develop a plan for periodically reviewing existing significant regulations to
determine whether they should be modified so as to make the agency’s regulatory
program more effective or less burdensome. 76 Fed. Reg. 3821 (Jan. 18, 2011).




Page 6                                              GAO-12-330 Workplace Safety and Health
                         applicable law or otherwise impractical. 17 Under the OSH Act, if OSHA
                         issues a rule that differs substantially from an existing national consensus
                         standard, the agency must publish in the Federal Register an explanation
                         of why its rule will better effectuate the purposes of the OSH Act than the
                         national consensus standard. 18

                         OSHA’s Directorate of Standards and Guidance, working with staff from
                         other Labor offices, leads the agency’s standard-setting process. These
                         staff explore the appropriateness and feasibility of developing standards
                         to address workplace hazards that are not covered by existing standards.
                         Once OSHA initiates such an effort, an interdisciplinary team typically
                         composed of at least five staff focus on that issue. 19

OSHA’S Standard-
Setting Time Frames
Vary Widely and Are
Influenced by the
Many Procedural
Requirements and
Other Factors

OSHA’s Time Frames for   We analyzed the 58 significant health and safety standards that OSHA
Developing and Issuing   issued between 1981 and 2010 and found that the time frames for
Standards Vary           developing and issuing them ranged from 15 months to about 19 years
                         (see table 1). 20 At any given point during this period, OSHA staff worked


                         17
                           Pub. L. No. 104-113, § 12(d), 110 Stat. 775, 783 (15 U.S.C. § 272 note). If agencies do
                         not use such consensus standards, the law further requires that agency heads provide an
                         explanation to OMB of the agency’s reasons.
                         18
                          29 U.S.C. § 655(b)(8).
                         19
                           Teams are usually composed of several staff members from the Directorate of
                         Standards and Guidance, and at least one staff person each from the Office of the
                         Solicitor, the Directorate for Evaluation and Analysis, and the Directorate of Enforcement
                         Programs.
                         20
                           We included in our review standards that OSHA considered to be important or a priority,
                         including but not limited to standards that met the definition of “significant” under
                         Executive Order 12866.




                         Page 7                                             GAO-12-330 Workplace Safety and Health
to develop standards that eventually became final, represented in the
table below. On average, OSHA took a total of about 93 months (7 years,
9 months) to develop and issue these standards. After the agency
published the proposed standard, it took an average of about 39 months
(3 years, 3 months) to finalize the standard. The majority of these
standards—47 of the 58—were finalized between 1981 and 1999. In
addition to these final standards, OSHA staff have also worked to develop
standards that have not yet been finalized. For example, according to
agency officials, OSHA staff have been working on developing a silica
standard since 1997, a beryllium standard since 2000, and a standard on
walking and working surfaces since 2003. 21

Table 1: Significant OSHA Safety and Health Standards Finalized between 1981 and
2010

                                                                             Average number of
                                                    Average number of             months from
                       Number of standards                 months from         proposed rule to
                                           a                             b
    Decade/year                   finalized      initiation to final rule             final rule
    1980s                                   24                         70                        30
    1990s                                   23                        118                        50
    2000s                                   10                         91                        36
                                                                         c                         c
    2010                                    1                          —                        —
    Overall                                 58                         93                        39
Source: GAO analysis of Federal Register.

a
 For the purposes of this analysis, we considered a standard to have been finalized on the date it was
published in the Federal Register as a final rule.
b
 For the purposes of this analysis, we considered a standard to be initiated on the date OSHA publicly
indicated initiating work on the standard in the Federal Register, by publishing a Request for
Information or Advance Notice of Proposed Rulemaking. In cases where OSHA mentioned neither of
these in the final rule, we used the date the standard first appeared on OSHA’s semiannual regulatory
agenda.
c
Because only one standard was finalized in 2010, we did not list the average number of months.
However, the overall calculations include the 2010 standard.




21
   Agency officials told us that OSHA issued a proposed standard on beryllium in 1975, but
it was never issued as a final rule. Staff started collecting information on beryllium again in
2000. In addition, they told us that a 2010 proposed rule on walking and working surfaces
replaced an outdated proposed rule from 1990 that was never issued as a final rule
because of other regulatory priorities.




Page 8                                                  GAO-12-330 Workplace Safety and Health
We found that the time it takes OSHA to develop and issue standards
varied over the 30-year period and by the type of standard. First, as
shown in table 1, it took OSHA about 70 percent longer, on average, to
finalize standards in the 1990s than it took during the 1980s, and about
30 percent longer than during the 2000s. While we were not able to
determine the reason for this through our analysis, it demonstrates that
there is no clear trend of OSHA developing and issuing standards more
or less quickly over time. Second, we found that it took OSHA longer to
develop and issue safety standards than health standards—an average of
about 8 years, 6 months for safety standards compared with about 6
years, 4 months for health standards—even though several experts to
whom we spoke stated that health standards are more difficult for OSHA
to issue than safety standards (see figs. 1 and 2 for a depiction of the
timelines for safety and health standards issued between 1981 and
2010). 22 Part of this difference may be explained by the fact that a larger
portion of the health standards (6 of 23, compared with only 3 of 35 safety
standards) were standards for which Congress or the courts articulated
time frames for their issuance or development.




22
  The number of standards collectively depicted in figures 1 and 2 does not add to 58
because some standards went through substantive revisions and are depicted in the same
row.




Page 9                                         GAO-12-330 Workplace Safety and Health
Figure 1: Significant OSHA Safety Standards Timeline




                                        Note: For the purposes of this analysis, we considered a standard to be initiated on the date OSHA
                                        publicly indicated initiating work on the standard in the Federal Register, by publishing a Request for
                                        Information or Advance Notice of Proposed Rulemaking. In cases where OSHA mentioned neither of




                                        Page 10                                                  GAO-12-330 Workplace Safety and Health
                                        these in the final rule, we used the date the standard first appeared on OSHA’s semiannual regulatory
                                        agenda. We considered a standard to be finalized on the date it was published in the Federal
                                        Register as a final rule.



Figure 2: Significant OSHA Health Standards Timeline




                                        Note: For the purposes of this analysis, we considered a standard to be initiated on the date OSHA
                                        publicly indicated initiating work on the standard in the Federal Register, by publishing a Request for
                                        Information or Advance Notice of Proposed Rulemaking. In cases where OSHA mentioned neither of
                                        these in the final rule, we used the date the standard first appeared on OSHA’s semiannual regulatory
                                        agenda. We considered a standard to be finalized on the date it was published in the Federal
                                        Register as a final rule.
                                        a
                                         These two health standards were wholly invalidated either by court decision or congressional action.
                                        Parts of other standards may have been invalidated but such analysis is beyond the scope of our
                                        review.




                                        Page 11                                                  GAO-12-330 Workplace Safety and Health
Increased Number of            Experts and agency officials frequently cited the increased number of
Procedural Requirements,       procedural requirements established since 1980, shifting priorities, and
Shifting Priorities, and the   the relatively high standard of judicial review required for OSHA
                               standards as factors that lengthen OSHA’s time frames for developing
High Standard of Judicial      and issuing standards. In addition to these primary factors, several of the
Review Cited as                experts and agency officials also noted two secondary factors affecting
Lengthening OSHA’s             the standard-setting process: significant data challenges and an
Standard-Setting Process       institutional apprehension about setting standards in the wake of adverse
                               court decisions. We have characterized these as secondary factors
                               because they are both related to the three primary factors.

Increased Number of            Experts and agency officials indicated that the increased number of
Procedural Requirements        procedural requirements affects standard-setting time frames because of
                               the complex requirements for OSHA to demonstrate the need for
                               standards. Experts and agency officials named a variety of statutes and
                               executive orders that have imposed an increasing number of procedural
                               requirements on OSHA since 1980.

                               The process for developing and issuing standards is complex and
                               directed by multiple procedural requirements. According to Labor staff,
                               agency consideration of a new standard can be the result of information
                               OSHA receives from stakeholder petitions; occupational safety and health
                               entities, such as the National Institute for Occupational Safety and Health
                               (NIOSH) and the U.S. Chemical Safety and Hazard Investigation Board;
                               OSHA’s enforcement efforts; or staff research (see fig. 3). 23 To publicly
                               signal OSHA’s intent to pursue development of a new safety or health
                               standard, OSHA typically publishes a Request for Information or an
                               Advance Notice of Proposed Rulemaking on the topic in the Federal
                               Register. In this report, we refer to these events as “initiation.” OSHA also
                               signals the beginning of standard-setting efforts by placing the issue on
                               its regulatory agenda. 24 However, OSHA can stop the standard-setting




                               23
                                 NIOSH is a federal agency located within the U.S. Department of Health and Human
                               Services’ Centers for Disease Control. It conducts research and makes recommendations
                               on occupational safety and health. The U.S. Chemical Safety and Hazard Investigation
                               Board is an independent federal agency charged with investigating industrial chemical
                               accidents.
                               24
                                 Agencies publish a semiannual regulatory agenda of all regulations under development
                               or review, as required by Executive Order 12866 and OMB guidance. 58 Fed. Reg. 51,735
                               (Sept. 30, 1993).




                               Page 12                                        GAO-12-330 Workplace Safety and Health
                                        process either informally—by ceasing to actively work on the standard—
                                        or through a public announcement.

Figure 3: Steps in a Typical OSHA Standard-Setting Process




                                        Note: This figure is for illustrative purposes only. Not all steps identified here may be performed for all
                                        standards and some standards may involve additional steps not included here.




                                        Page 13                                                    GAO-12-330 Workplace Safety and Health
The process for developing OSHA standards varies, but the typical
process involves multiple steps. After OSHA initiates a standard-setting
effort, staff typically schedule meetings with stakeholders—employer
groups, worker groups, and other interested parties—to solicit feedback
and discuss issues related to the potential standard, including its potential
cost to employers. 25

Concurrently with these meetings, OSHA staff and contractors perform
technological and economic feasibility analyses using data gathered by
visiting worksites in industries that will be affected by the potential
standard. These analyses are necessary because the Supreme Court has
held that the OSH Act requires that standards be both technologically and
economically feasible. 26 In addition, courts have held that OSHA must
evaluate economic and technological feasibility on an industry-by-industry
basis, 27 which requires that the agency research all applications of the
hazard being regulated, as well as the expected cost for mitigating
exposure to that hazard, in every industry. For the technological feasibility
analysis, staff identify the controls required by the standard and
determine if each of them is technologically feasible for employers to
implement. Agency officials told us this is an enormous undertaking
because, for example, sometimes there are no sources of information on
the applications of various chemicals or technologies. According to OSHA
officials, this also requires visits to multiple worksites, and because these
visits are generally conducted on a voluntary basis rather than under
OSHA’s inspection authority, OSHA staff or its contractors can only visit
worksites where the employer allows the visit. 28 Collaboration with NIOSH
has, at times, helped facilitate these site visits. For example, OSHA
officials told us that their staff worked closely with NIOSH staff in
developing the technological feasibility analyses or risk assessments for



25
  We use the term “potential standard” to indicate that the development of a standard is in
the early stages, and the term “proposed standard” once an agency issues a Notice of
Proposed Rulemaking in the Federal Register.
26
 Am. Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 513 n.31 (1981).
27
 See United Steelworkers v. Marshall, 647 F.2d 1189, 1301 (D.C. Cir. 1980), quoted in
AFL-CIO v. OSHA, 965 F.2d 962, 980 (11th Cir. 1992).
28
  Labor officials told us that OSHA prefers to conduct these visits on a voluntary basis to
encourage employers to provide information about potential hazards and controls, since
employers tend to be less forthcoming with information during an inspection for
enforcement purposes.




Page 14                                            GAO-12-330 Workplace Safety and Health
standards on butadiene, methylene chloride, hexavalent chromium, silica,
and diacetyl. When OSHA performs the economic feasibility analysis, it
concludes that a standard is economically feasible if the affected industry
or industries will maintain long-term profitability and competitiveness. 29 To
do this, staff and contractors, by analyzing information they collect when
visiting worksites, must assess the extent to which employers in the
affected industries can afford to implement the required controls. In
addition to the site visits, OSHA staff sometimes conducts industry-wide
surveys to determine baseline practices and collect other relevant
information needed for the technological and economic feasibility
analyses. According to OSHA officials, the process of developing a
survey and having it approved by OMB takes a minimum of 1 year. 30

In addition to the feasibility analyses, OSHA staff generally must also
conduct economic analyses. First, OSHA must assess the costs and
benefits of significant standards as required by Executive Order 12866. 31
Second, under the Small Business Regulatory Enforcement Fairness Act
of 1996, if OSHA determines that a potential standard would have a
significant economic impact on a substantial number of small entities,
such as businesses, it is one of three federal agencies that must initiate a
panel process that seeks and considers input from representatives of the
affected small businesses. 32 The small business panel process takes
several months of work that many other federal regulatory agencies do
not have to complete in order to issue regulations. Agency officials told us
they want to consult with small businesses, but that the provisions laid out


29
 The Supreme Court has held this approach to be reasonable under the OSH Act. Am.
Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 531 n.55 (1981).
30
  Under the Paperwork Reduction Act of 1980, as amended, federal agencies may not
conduct or sponsor the collection of information from 10 or more persons without first
allowing an opportunity for public comment and obtaining OMB approval. 44 U.S.C. §§
3502, 3507.
31
  Executive Order 12866 requires that OSHA provide an assessment of the potential
overall costs and benefits for significant rules to OMB. For rules that are “economically
significant,” the agency must also submit a more detailed cost-benefit analysis.
Economically significant rules are those that will have an annual effect on the economy of
$100 million or more or will adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public health or safety, or state,
local, or tribal governments or communities. See 58 Fed. Reg. 51,735 (Sept. 30, 1993).
32
  5 U.S.C. § 609(b), (d). OSHA staff must work with the Small Business Administration to
set up the small business panels. The other two agencies that are subject to this
requirement are EPA and the Consumer Financial Protection Bureau.




Page 15                                            GAO-12-330 Workplace Safety and Health
in the requirement make it too formal a process and are duplicative of the
public hearings they hold after publishing the proposed rule. Finally,
according to OMB guidelines, if a potential standard is projected to have
an economic impact of more than $500 million, OSHA must initiate a peer
review of the underlying scientific analyses. 33

After completing the above steps, OSHA submits the preamble and text
of the potential standard to OMB for review. 34 OSHA then publishes a
Notice of Proposed Rulemaking in the Federal Register to alert the public
that OSHA intends to issue a new final standard and to invite interested
parties to comment on the proposed standard. Although OSHA is only
required under the OSH Act hold public hearings upon request, as a
general practice, officials told us that OSHA holds such hearings and has
issued regulations governing its hearing procedures. 35 Notably, an
administrative law judge presides over the hearings, and stakeholders
have the opportunity to submit evidence to support their views on specific
provisions of the proposed standards. The administrative law judge may
also permit cross-examination by stakeholders or OSHA attorneys to
bolster or challenge testimony presented during the hearing. Finally,
stakeholders can submit data and other written documents subsequent to
the hearing that OSHA must consider when crafting the final standard.

GAO has reported that, while regulatory agencies are generally subject to
a number of rulemaking requirements, many rules do not trigger certain
requirements. 36 In OSHA’s case, for example, if the agency certifies that a
standard would not have a significant economic impact on a substantial
number of small entities, OSHA would not be required to conduct small



33
  Information Quality Bulletin for Peer Review, 70 Fed. Reg. 2664 (Jan. 14, 2005). A peer
review is also required for scientific assessments determined to be novel, controversial, or
precedent-setting or have significant interagency interest.
34
  Executive Order 12866 requires that OMB review all significant regulatory actions prior
to their publication in the Federal Register. The executive order generally limits this review
period to a maximum of 90 days; however, this period may be extended on a one-time
basis for up to 30 days upon written approval of the OMB Director, or indefinitely at the
request of the head of the rulemaking agency.
35
  See 29 C.F.R. §§ 1911.15 through 1911.18.
36
  GAO, Federal Rulemaking: Improvements Needed to Monitoring and Evaluation of
Rules Development as Well as to the Transparency of OMB Regulatory Reviews,
GAO-09-205 (Washington, D.C.: Apr. 20, 2009).




Page 16                                             GAO-12-330 Workplace Safety and Health
                      business panels, which agency officials estimated adds about 8 months
                      to the standard-setting process.

Shifting Priorities   According to agency officials and experts, OSHA’s priorities may change
                      as a result of changes within OSHA, Labor, Congress, or the presidential
                      administration. During the 30-year period covered by our review,
                      administrations have alternately favored and resisted the development of
                      new federal regulations or revisions of existing regulations. For example,
                      officials told us that Assistant Secretaries typically serve for about 3
                      years, and that new appointees tend to change the agency’s priorities.
                      Some agency officials and experts told us that, regardless of the agency
                      leadership’s motivation for changes in priority, these changes often cause
                      delays in the process of setting standards. Further, officials told us that,
                      ultimately, political appointees make decisions about what standards, if
                      any, to pursue based on their goals and the agency’s resources.

                      Other experts described instances in which changes in the agency’s
                      standard-setting priorities affected the process. One example some cited
                      was OSHA’s efforts to develop the ergonomics standard. OSHA worked
                      for several years in the 1990s to develop a proposed rule on ergonomics
                      to address workers’ exposure to risk factors leading to musculoskeletal
                      disorders. After being in the preproposal stage through much of the
                      1990s, there was interest in the late 1990s for OSHA to publish a
                      proposed rule, and OSHA issued a final standard just 1 year after
                      publishing the proposed rule. 37 Several experts and agency officials noted
                      that, in order to develop the rule so quickly, the vast majority of OSHA’s
                      standard-setting resources were focused on this rulemaking effort, taking
                      attention away from several standards that previously had been a priority.
                      Agency officials told us, for example, that work on this standard used
                      nearly 50 full-time staff in OSHA’s standards office, half the staff




                      37
                       See 65 Fed. Reg. 68,262 (Nov. 14, 2000).




                      Page 17                                     GAO-12-330 Workplace Safety and Health
                               economists, and 7 or 8 attorneys, compared with the more typical 5 total
                               staff assigned to develop a new standard. 38

Standard of Judicial Review    The standard of judicial review that applies to OSHA standards if they are
                               challenged in court also affects OSHA’s time frames because it requires
                               more robust research and analysis, according to some experts and
                               agency officials. OSHA standards are subject to a different standard of
                               judicial review than most other federal regulatory agencies’ regulations.
                               Instead of the arbitrary and capricious test provided for under the APA,
                               the OSH Act directs courts to review OSHA’s standards using a more
                               stringent legal standard: it provides that a standard shall be upheld if
                               supported by “substantial evidence in the record considered as a
                               whole.” 39 According to some experts and agency officials, this more
                               stringent standard requires a higher level of scrutiny by the courts and,
                               therefore, requires OSHA staff to perform more extensive research and
                               analysis to support a new standard. For example, OSHA officials
                               explained that the substantial evidence standard requires that OSHA staff
                               conduct a large volume of detailed research in order to understand all
                               industrial processes that involve the hazard being regulated and to
                               ensure that a given hazard control would be feasible for each process.

Data Challenges and Response   OSHA officials and experts discussed two additional factors that cause
to Past Adverse Court          OSHA officials to perform an extensive amount of work in developing
Decisions                      standards, which are related to the factors described above.

                               Substantial Data Challenges

                               Agency officials said that a dearth of available scientific data for some
                               hazards; having to review and evaluate scientific studies; and limited
                               access to worksites to collect information required to demonstrate the


                               38
                                 After OSHA issued the ergonomics standard, it was met with substantial opposition
                               within Congress and, 4 months after it was issued, the standard was invalidated in
                               accordance with the Congressional Review Act. Under the Congressional Review Act, if
                               Congress enacts a joint resolution of disapproval within a certain time period after a rule is
                               submitted to Congress, the rule shall not take effect (or shall not continue in effect) and it
                               may not be reissued in substantially the same form unless expressly authorized by
                               subsequent law. For a rule to be invalidated, the President must sign the joint resolution of
                               disapproval, or, if vetoed by the President, Congress must override that veto. 5 U.S.C. §§
                               801-802. A joint resolution disapproving the ergonomics rule was enacted on March 20,
                               2001. Pub. L. No. 107-5, 115 Stat. 7 (2001).
                               39
                                 29 U.S.C. § 655(f).




                               Page 18                                             GAO-12-330 Workplace Safety and Health
need for or feasibility of a standard contribute to substantial challenges to
attaining information required for setting standards. They cited court
decisions interpreting the OSH Act’s requirements as one of the reasons
they must rigorously support the need for and feasibility of standards. For
example, in 1980, the Supreme Court held that before it can issue a
standard, OSHA must determine that the standard is necessary to
remedy a “significant risk” of material health impairment among workers. 40
As a result of this decision, OSHA generally conducts quantitative risk
assessments for each health standard, which it must ensure are
supported by substantial evidence. 41 According to agency officials, this
decision essentially established a standard of medical and scientific
certainty and has resulted in OSHA staff having to spend an inordinate
amount of effort gathering data to support the need for a standard.

Response to Adverse Court Decisions

OSHA’s standard-setting process has been significantly influenced by
court decisions interpreting statutory requirements. A key example is the
1980 “benzene decision,” in which the Supreme Court invalidated an
OSHA standard that set a new exposure limit for benzene because OSHA
failed to make a determination that benzene posed a “significant risk” of
material health impairment under workplace conditions permitted by the
current standard. 42 Another example is a 1992 decision in which the U.S.
Court of Appeals for the Eleventh Circuit struck down an OSHA health
standard that would have set or updated the permissible exposure limit
(PEL) for over 400 air contaminants. 43 In that case, the court found that
OSHA had not adequately demonstrated that current exposure to each
hazard posed significant risk, or that each standard reduced that risk to


40
 Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 639 (1980).
41
  Although the decision interpreted a provision of the OSH Act that applied only to health
hazards, Labor officials said that there is little practical distinction between the evidence
OSHA must compile to support health standards compared to safety standards. According
to OSHA’s approach to setting safety standards, which has been upheld by the U.S. Court
of Appeals for the D.C. Circuit, a safety standard must provide a “high degree of worker
protection”—a showing that differs only “modestly” from that required for health standards.
See UAW v. OSHA, 37 F.3d 665, 669 (D.C. Cir. 1994).
42
 Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 639 (1980).
43
  AFL-CIO v. OSHA, 965 F.2d 962, 986-87 (11th Cir. 1992). A PEL refers to the limit on
the amount or concentration of a hazardous substance in the air or to which skin is
exposed.




Page 19                                            GAO-12-330 Workplace Safety and Health
                              the extent feasible. Labor officials told us that the court’s decision
                              discouraged them from trying to expedite the standard-setting process by
                              combining many standards into one rulemaking effort. 44 Several experts
                              with whom we spoke observed that such adverse court decisions have
                              contributed to an institutional culture of trying to make OSHA standards
                              impervious to future adverse decisions. These experts cited the threat of
                              litigation as a disincentive to issuing standards. In contrast, agency
                              officials commented that while OSHA tries to avoid lawsuits that might
                              ultimately invalidate a standard, in general OSHA does not try to make a
                              standard “bulletproof.” Agency officials noted the agency is frequently
                              sued.



OSHA has Authority
to Address Urgent
Hazards through
Emergency
Temporary Standards,
Enforcement, and
Education

Although It Has the           OSHA has not issued any emergency temporary standards in nearly 30
Authority, OSHA Has           years, citing, among other reasons, legal and logistical challenges.
Found it Difficult to Issue   Section 6(c) of the OSH Act authorizes OSHA to issue these standards
                              without following the typical standard-setting process if two legal
Emergency Temporary           requirements are met. The Secretary of Labor must determine that: (1)
Standards                     workers are exposed to grave danger from exposure to substances or
                              agents determined to be toxic or physically harmful, or from new hazards,
                              and (2) an emergency temporary standard is necessary to protect
                              workers from that danger. 45 An emergency temporary standard becomes
                              effective immediately upon publication in the Federal Register and must



                              44
                                The court’s decision did not prohibit OSHA from setting standards for multiple hazards in
                              a single rulemaking, rather it clarified that the agency must make the required findings
                              under the OSH Act, supported by substantial evidence, for each standard.
                              45
                               Codified at 29 U.S.C. § 655(c).




                              Page 20                                           GAO-12-330 Workplace Safety and Health
                   be replaced within 6 months by a permanent standard issued using the
                   process specified in section 6(b). OSHA officials told us that meeting the
                   statutory requirements and issuing a permanent standard within the 6-
                   month time frame has proven difficult. Furthermore, OSHA’s emergency
                   temporary standards have received close scrutiny by federal courts,
                   whose decisions have characterized OSHA’s emergency temporary
                   standard authority as an extraordinary power to be used only in limited
                   situations. 46

Legal Challenges   OSHA officials noted that the emergency temporary standard authority
                   remains available, but the legal requirements to issue such a standard
                   are difficult to meet. OSHA issued nine emergency temporary standards
                   between 1971, when the agency was established, and 1983, and none
                   since that year. Five of those nine emergency temporary standards were
                   either stayed or invalidated, at least in part, by federal courts. 47

                   For OSHA to satisfy the first of the OSH Act’s two requirements for
                   issuing an emergency temporary standard, the agency must determine
                   that workers will be exposed to grave danger during the time an
                   emergency temporary standard is in effect. Establishing sufficient
                   evidence of grave danger to withstand a court challenge can be difficult,
                   even for substances whose hazards are well-known, such as asbestos. In
                   1983, OSHA issued an emergency temporary standard lowering the PEL
                   for asbestos, which was subsequently challenged in federal court by
                   representatives of the asbestos industry. The court held that OSHA failed
                   to show sufficient evidence that workers faced grave danger from
                   exposure under current limits for the 6 months the emergency temporary
                   standard would be in effect. 48 OSHA had estimated, based on



                   46
                     See, for example, Public Citizen Health Research Group v. Auchter, 702 F.2d 1150,
                   1155 (D.C. Cir. 1983), quoted in Asbestos Info. Ass’n v. OSHA, 727 F.2d 415, 422 (5th
                   Cir. 1984).
                   47
                     A stay means the court issued an order postponing the emergency temporary standard
                   from going into effect. See Asbestos Info. Ass’n v. OSHA, 727 F.2d 415 (5th Cir. 1984),
                   Taylor Diving & Salvage Co. v. U.S. Dep’t. of Labor, 537 F.2d 819 (5th Cir.1976), Florida
                   Peach Growers Ass'n v. U.S. Dep’t. of Labor, 489 F.2d 120 (5th Cir. 1974), and Dry Color
                   Mfrs. Ass’n v. Brennan, 486 F.2d 98 (3d Cir.1973). An emergency temporary standard on
                   benzene was stayed in an unpublished decision by the U.S. Court of Appeals for the Fifth
                   Circuit. See Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 623
                   (1980).
                   48
                    Asbestos Info. Ass’n v. OSHA, 727 F.2d 415, 425-27 (5th Cir. 1984).




                   Page 21                                          GAO-12-330 Workplace Safety and Health
                       mathematical projections from long-term epidemiological studies, that
                       during the 6 months the emergency temporary standard would be in
                       effect, it could prevent at least 80 eventual asbestos-related deaths.
                       However, the court found these projections too uncertain to establish a
                       grave risk over a 6-month period and noted that the type of analysis
                       OSHA used merited the public scrutiny of the notice and comment
                       standard-setting process.

                       OSHA has also found it challenging to meet the second OSH Act
                       requirement: establishing that an emergency temporary standard is
                       necessary to protect workers from the grave danger. In the asbestos
                       case, the court found that OSHA was on its way to issuing a permanent
                       standard within a year, already had the authority to conduct the education
                       activities the emergency temporary standard contained, and could
                       achieve many of the same benefits by increasing enforcement of the
                       existing standard. The court, therefore, invalidated the emergency
                       temporary asbestos standard because OSHA failed to meet both of the
                       OSH Act’s requirements. OSHA officials cited diacetyl, a food flavoring
                       ingredient, as a recent example of a hazardous substance for which the
                       OSH Act’s second requirement might have been difficult to meet if the
                       agency had chosen to pursue an emergency temporary standard. In
                       2006, the agency was urged to issue an emergency temporary standard
                       for diacetyl after investigations showed its association with severe,
                       irreversible lung disease among workers in microwave popcorn factories.
                       OSHA officials told us they could likely have established that diacetyl
                       exposure under then-current workplace conditions presented grave
                       danger to workers in the near term. These officials noted, however, that
                       because manufacturers responded quickly after diacetyl’s danger became
                       clear, OSHA had less evidence that an emergency temporary standard
                       was necessary. For example, they noted that manufacturers responded
                       with a combination of measures including improved ventilation and
                       housekeeping, reducing the concentration of diacetyl used, and
                       substituting other ingredients.

Logistical Challenge   In addition to the legal requirements, OSHA has found that issuing an
                       emergency temporary standard presents a logistical challenge. OSHA’s
                       emergency temporary standards are effective on the date of publication in
                       the Federal Register, but they must be replaced within 6 months by a




                       Page 22                                  GAO-12-330 Workplace Safety and Health
                        permanent standard. 49 This means OSHA must compile the same
                        evidence required for the typical standard-setting process—which, as
                        noted above, involves engaging with stakeholders and can take many
                        years—in this abbreviated time frame. OSHA officials noted that the
                        Congress intended this emergency temporary standard-setting authority
                        to be used under very limited circumstances.

                        OSHA has not issued an emergency temporary standard since 1983,
                        despite many requests that it do so. Labor unions and public health and
                        other advocacy organizations continue to petition OSHA to issue
                        emergency temporary standards to address a variety of workplace
                        hazards. According to OSHA records, it has received 23 petitions to issue
                        emergency temporary standards on hazardous chemicals, such as
                        formaldehyde, and also for safety hazards such as shock or injury from
                        unsecured equipment. One petition, submitted in September 2011, urges
                        OSHA to issue an emergency temporary standard to protect workers from
                        potentially fatal exposure to heat. Although OSHA has generally denied
                        these petitions, officials told us the agency considers whether to issue an
                        emergency temporary standard and takes the information into account
                        when setting its priorities for permanent standards.


OSHA Addresses Urgent   OSHA uses enforcement and education as alternatives to issuing
Hazards through         emergency temporary standards to respond relatively quickly to urgent
Enforcement and         workplace hazards. OSHA officials consider their enforcement and
                        education activities complementary: a high-profile citation or enforcement
Education               initiative on an urgent hazard generates attention that can improve worker
                        safety industry-wide.

Enforcement             OSHA may cite employers for failing to adequately protect workers from a
                        specific workplace hazard even if it has not set a standard on that hazard.
                        Under section 5(a)(1) of the OSH Act, known as the general duty clause,
                        OSHA has the authority to issue citations to employers even in the
                        absence of a specific standard under certain circumstances. The general
                        duty clause requires employers to provide a workplace free from
                        recognized hazards that are causing, or are likely to cause, death or



                        49
                          The emergency temporary standard serves as the proposed rule for a permanent
                        standard to be issued within 6 months, in accordance with all the procedural requirements
                        for OSHA’s standard setting under section 6(b) of the OSH Act.




                        Page 23                                          GAO-12-330 Workplace Safety and Health
            serious physical harm to their employees. 50 OSHA relied on the general
            duty clause when it cited Walmart for inadequate crowd management in
            the 2008 trampling death of a worker. OSHA’s investigation found that the
            company failed to protect its employees from the known risks of being
            crushed or suffocated by a large unmanaged crowd—in this case, about
            2,000 shoppers surging into the store for a holiday sale. To cite an
            employer under the general duty clause, OSHA officials told us they must,
            among other things, have evidence that the hazard is “recognized” in the
            industry and that the employer failed to take reasonable protective
            measures. According to OSHA officials, using the general duty clause
            requires significant agency resources so is not always a viable option, for
            example when OSHA cannot prove an employer knows the hazard exists
            or when a hazard is just emerging.

            Some of OSHA’s standards require general protective measures that are
            sufficiently broad to cover a variety of hazardous substances or practices.
            Such standards may be the basis for enforcement actions regarding
            urgent hazards that are not the subject of a specific standard. OSHA
            officials explained that not every conceivable workplace hazard can be
            the subject of its own standard. The agency has issued specific exposure
            limits for some hazardous substances, such as formaldehyde, but
            indicated it would be impossible to test and establish specific exposure
            limits for all chemicals present in the modern workplace. OSHA’s general
            standards include, among others, requirements for employers to follow
            protective housekeeping practices, provide respiratory protection under
            certain conditions, and inform workers about hazardous chemicals they
            are exposed to on the job. 51

Education   OSHA uses education to promote voluntary protective measures against
            urgent hazards along with its enforcement and standard-setting activities.
            Standards and enforcement are critical parts of OSHA’s education
            activities: standards inform employers about their responsibilities, and
            enforcement initiatives raise awareness of urgent hazards. OSHA officials
            believe high-profile citations serve to focus attention throughout the
            relevant industry and can create a ripple effect of improved worker
            protection. In addition to setting standards, OSHA offers on-site


            50
             Codified at 29 U.S.C. § 654(a)(1).
            51
              See, for example, 29 C.F.R. §§ 1910.22(a) (housekeeping), 1910.134 (respiratory
            protection), and 1910.1200 (hazard communication).




            Page 24                                         GAO-12-330 Workplace Safety and Health
consultations and publishes health and safety information to inform
employers and workers about urgent hazards. If its inspectors discover a
particular hazard, OSHA may send letters to all employers where the
hazard is likely to be present to inform them about the hazard and their
responsibility to protect their employees.

OSHA officials also use education to improve safety in the near term
while the agency compiles the information necessary to develop a
standard. For example, OSHA decided not to issue an emergency
temporary standard on diacetyl in part because, as it gathered evidence
to support the standard, employers implemented changes to improve
worker safety. As evidence mounts that other ingredients in food
flavorings may be hazardous, OSHA is gathering information but has not
yet published a proposed standard on diacetyl. OSHA has, in the
meantime, published educational documents such as alerts and
information bulletins for employers on diacetyl and flavorings in general,
describing protective measures, compliance assistance programs, and
employer responsibilities under the OSH Act and existing OSHA
standards. 52 The agency has also developed material for workers, giving
them the information they need to determine when they may be exposed
to diacetyl or similar substances and the types of protection they need.

OSHA’s education efforts also address other hazards for which it has
received petitions to issue emergency temporary standards. For example,
OSHA officials told us they are addressing the risks of exposure to heat
primarily through education, along with targeted enforcement in cases
where workers are known to be most at risk. OSHA’s education efforts on
this hazard include an initiative intended to reach and educate agricultural
workers through training materials designed to be culturally appropriate
and accessible, including a train-the-trainer approach for wide distribution.
These training materials were supplemented by public service radio
announcements intended to reach workers at risk of heat-related illness.




52
  OSHA has stated that some of the most relevant applicable standards include those
requiring employers to provide respiratory protection, 29 C.F.R. § 1910.134, and inform
employees about hazardous chemicals and protective measures, 29 C.F.R. § 1910.1200.




Page 25                                         GAO-12-330 Workplace Safety and Health
                       Although the rulemaking experiences of two other federal agencies shed
Other Regulatory       some light on OSHA’s challenges, their statutory framework and
Agencies’              resources differ too markedly for them to be models for OSHA’s
                       standard–setting process. Other regulatory agencies may also face
Experiences Offer      challenges similar to OSHA’s. For example, as GAO has previously
Limited Insight into   reported, EPA has faced difficulties regulating under the Toxic
                       Substances Control Act of 1976. 53 Some of these differences in statutory
OSHA’s Challenges      frameworks and resources may facilitate rulemaking efforts at other
                       agencies. For example, EPA is directed to regulate specified air pollutants
                       and review its existing regulations within specific time frames under
                       section 112 of the Clean Air Act, and MSHA benefits from a narrower
                       scope of authority than OSHA and has more specialized expertise as a
                       result of its more limited jurisdiction.


EPA                    Similar to OSHA, EPA’s Office of Air and Radiation regulates a wide
                       range of hazards across diverse industries to protect the public health.
                       This office implements the Clean Air Act, including section 112, which
                       requires EPA to regulate certain sources of air pollution and specifies the
                       substances to be controlled. 54 For example, under section 112, EPA must
                       establish standards for sources of 187 specific hazardous air pollutants. 55
                       EPA officials told us that this provision gave the agency clear
                       requirements and statutory deadlines for regulating hazardous air


                       53
                         See GAO, Chemical Regulation: Observations on Improving the Toxic Substances
                       Control Act, GAO-10-292T (Washington, D.C.: Dec. 2, 2009); and GAO, Chemical
                       Regulation: Options Exist to Improve EPA’s Ability to Assess Health Risks and Manage Its
                       Chemical Review Program, GAO-05-458 (Washington, D.C.: June 13, 2005). For this
                       review, we initially included EPA’s efforts under section 6 of this act; however, we
                       concluded that these efforts did not offer insights for OSHA because of the office’s limited
                       recent standard-setting experience. For more information on our methodology, see
                       appendix I.
                       54
                         42 U.S.C. § 7412. Section 112 of the Clean Air Act specifies a list of hazardous air
                       pollutants whose emissions are to be controlled under its provisions. After identifying the
                       pollutants to be regulated, the statute directs EPA to impose technology-based standards
                       on industry to reduce emissions. As a second step, within 8 years of issuance of the initial
                       technology-based standards, EPA is to review the remaining risks to the public and issue
                       health-based standards if necessary to provide an ample margin of safety to protect public
                       health or to prevent an adverse environmental effect. Finally, the Clean Air Act requires
                       that EPA review and, if necessary, revise the technology-based standards at least every 8
                       years, taking into account developments in practices, processes, and control technologies.
                       55
                         The provision also authorizes EPA to, by rule, add or remove pollutants from the list on
                       the basis of specified findings.




                       Page 26                                            GAO-12-330 Workplace Safety and Health
pollutants, which it previously lacked. 56 In contrast, some experts and
agency officials we spoke with identified OSHA’s relatively broad
discretion to set and change its regulatory agenda as a contributing factor
to the length of time it takes OSHA to issue standards. Even with this
relatively specific statutory mandate, EPA has faced challenges
implementing its section 112 mandate, such as insufficient funding and
court-imposed deadlines that make it difficult for the agency itself to
implement its own agenda. 57

EPA also has a statutory mandate to periodically review the standards
issued under section 112. For example, section 112 requires that EPA set
technology-based standards for stationary sources of hazardous air
pollutants, and further requires that EPA review these standards at least
every 8 years and revise them, as necessary, taking into account
developments in practices, processes, and control technologies. 58 In
contrast, the OSH Act does not specify when OSHA is to revise its
standards. OSHA’s attempt to update its standards efficiently—by
lowering the PELs for 212 air contaminants in one rulemaking—was
struck down by a federal court. 59 The court held that OSHA failed to show
adequate evidence that each individual substance presented a significant
risk at the existing exposure limit, or that the lower limit would reduce the
risk to workers to the extent feasible. OSHA and Labor officials noted
that, because the agency lacks an efficient update process, many of its
standards lag behind advances in technology.

Section 112 of the Clean Air Act requires EPA to set technology-based
standards for sources of listed hazardous air pollutants. In setting these
standards, EPA does not have to establish evidence of a listed pollutant’s


56
  However, as GAO reported in 2006, EPA failed to meet some of its statutory deadlines
under section 112 of the Clean Air Act. See GAO, Clean Air Act: EPA Should Improve the
Management of its Air Toxics Program, GAO 06-669 (Washington, D.C.: June 23, 2006).
57
 GAO-06-669.
58
 42 U.S.C. § 7412(d)(6).
59
  AFL-CIO v. OSHA, 965 F.2d 962, 986-87 (11th Cir. 1992). The revision to OSHA’s Air
Contaminants standard addressed a total of 428 hazardous substances by setting new
limits for 164 previously unregulated substances, lowering limits for 212 others, and
leaving intact limits for 52 substances OSHA had proposed to change in its Notice of
Proposed Rulemaking. In determining the limits, OSHA relied upon limits recommended or
adopted by entities such as NIOSH and the American Conference of Governmental
Industrial Hygienists. 54 Fed. Reg. 2332, 2333 (Jan. 19, 1989).




Page 27                                         GAO-12-330 Workplace Safety and Health
       risks to human health or the environment. 60 In contrast, OSHA must
       determine that significant risks to workers are present under current
       conditions before it can establish or change existing standards. OSHA
       has had to perform a specific risk assessment for every new toxic agent
       for which it intends to set a PEL.


MSHA   MSHA’s mission is more focused than OSHA’s because its authority is
       limited to one industry and it can target its regulatory resources more
       easily. In addition, the Federal Mine Safety and Health Act of 1977
       requires that MSHA inspect each mine in the United States at least two
       times a year, which facilitates its regulatory work. 61 Officials at MSHA
       noted that both this frequent on-site presence and relatively homogenous
       industry helps agency staff maintain a current knowledge base. 62 MSHA
       officials contrasted this with the vast array of workplaces and types of
       industries OSHA oversees. Officials with OSHA and Labor noted that
       OSHA’s scope of authority is so large that it cannot inspect more than a
       fraction of workplaces in any given year. As a result, OSHA and Labor
       officials told us they can call upon inspectors when researching a
       standard but must often supplement the agency’s inside knowledge by
       conducting site visits using OSHA staff or contractors.

       MSHA’s legal framework may also present fewer challenges to standard
       setting than OSHA’s. First, MSHA standards are subject to the arbitrary
       and capricious standard of review, unlike OSHA standards, which are
       reviewed under the generally more stringent substantial evidence
       standard. Second, according to MSHA officials, the agency has met the
       statutory requirements for the five emergency temporary standards it has
       issued since 1987, and no legal challenges to these standards were filed.
       Similar to OSHA’s authority to issue emergency temporary standards,
       MSHA has statutory authority to issue “an emergency temporary


       60
          EPA generally must show evidence of such effects in order to add other pollutants to the
       list. For example, EPA is required to periodically review the list of hazardous air pollutants
       and add new pollutants to the list upon finding that they present, or may present, a threat
       of adverse effects on human health or the environment. 42 U.S.C. § 7412(b)(2).
       61
         30 U.S.C. § 813(a).
       62
         MSHA officials, however, noted that the agency strained its resources in the sustained
       effort to issue regulations required by the Mine Improvement and New Emergency
       Response Act of 2006, Pub. L. No. 109-236, 120 Stat. 493, which amended the Federal
       Mine Safety and Health Act of 1977.




       Page 28                                             GAO-12-330 Workplace Safety and Health
mandatory health or safety standard” without following the APA’s notice
and comment rulemaking procedures if the Secretary of Labor determines
that (1) miners are exposed to grave danger from exposure to substances
or agents determined to be toxic or physically harmful, or to other
hazards, and (2) such a standard is necessary to protect miners from
such danger. 63 MSHA’s most recent emergency temporary standard
required underground bituminous coal mine operators to increase the
incombustible content of rock, coal, and other dust, in order to address
the risk of explosion posed by such dust. 64

Both OSHA and MSHA supplement their employees’ knowledge by
calling upon the expertise at NIOSH, with MSHA benefiting from a
specialized research group within NIOSH focused on the mining industry.
According to officials with both NIOSH and OSHA, coordination between
the two has varied over time and has improved significantly in recent
years. For example, in 2011, NIOSH and OSHA adopted a Memorandum
of Understanding that provides OSHA with access to specified NIOSH
data on the health hazards of diacetyl and allows OSHA to coordinate
with NIOSH in preparing a risk assessment to support the development of
a new diacetyl standard.




63
  30 U.S.C. § 811(b). After it issues an emergency temporary standard, MSHA has 9
months to issue a permanent standard, compared to the 6 months OSHA has to issue a
permanent standard after issuing an emergency temporary standard under the OSH Act.
64
 75 Fed. Reg. 57,849 (Sept. 23, 2010).




Page 29                                        GAO-12-330 Workplace Safety and Health
                            Agency officials and occupational safety and health experts shared their
Experts Suggested           understanding of the challenges facing OSHA and offered ideas for
Many Ideas to               improving the agency’s standard-setting process. Some of the following
                            ideas for improvement involve substantial procedural changes that may in
Improve OSHA’s              some cases be beyond the scope of OSHA’s authority and require
Standard-Setting            amending existing laws, including the OSH Act. The following ideas
Process, Including          represent those most frequently mentioned in our interviews by agency
                            officials and experts: 65
More Interagency
Coordination and            •    Improve coordination with other agencies

Statutory Deadlines         •    Expand use of voluntary consensus standards

                            •    Impose statutory deadlines

                            •    Adopt a priority-setting process

                            •    Allow alternatives for supporting feasibility

                            •    Change the standard of judicial review

                            •    More frequently use emergency temporary standard authority

                            •    Use of the general duty clause for enforcement



Improve Coordination with   To fully leverage expertise at other federal agencies, experts and agency
Other Federal Agencies to   officials suggest improving interagency coordination. Specifically, they
Leverage Expertise          indicated that OSHA has not fully leveraged available expertise at other
                            federal agencies, especially NIOSH, when developing and issuing its
                            standards. As mentioned previously, NIOSH conducts research and
                            makes recommendations on occupational safety and health, and it was
                            created at the same time as OSHA by the OSH Act. OSHA has a number
                            of staff with subject matter expertise relevant to standard setting,
                            including industrial hygienists and scientists, but the agency does not
                            always take advantage of the expertise and data at NIOSH on


                            65
                              The last two ideas for OSHA mentioned here—to more frequently use the emergency
                            temporary standard authority and to use the general duty clause for enforcement—are not
                            included in the discussion below because they are addressed in previous sections of this
                            report.




                            Page 30                                          GAO-12-330 Workplace Safety and Health
                           occupational hazards. One expert noted that NIOSH is uniquely
                           positioned as a primary research institution to help OSHA develop
                           standards using EPA-produced data and analysis on chemical hazards.
                           OSHA officials said their agency’s staff consider NIOSH’s input on an ad
                           hoc basis, but do not routinely work closely with NIOSH staff to analyze
                           risks of occupational hazards. An OSHA official cited one case in which
                           OSHA staff worked closely with NIOSH staff to prepare the technological
                           feasibility analysis for a proposed silica standard, drawing on an
                           extensive body of work on dust control technology by NIOSH engineers.
                           In addition, officials described other cases of collaboration between the
                           two agencies during OSHA’s process of visiting worksites. However,
                           NIOSH officials told us that this type of coordination has been more
                           common recently than it was in the past, when the two agencies
                           performed separate risk assessments for hazards, such as hexavalent
                           chromium.

                           OSHA officials stated that collaborating with NIOSH on risk assessments
                           could reduce the time it takes to develop a standard by several months.
                           OSHA and NIOSH have coordinated on a number of OSHA standards
                           projects; currently, the two agencies have a Memorandum of
                           Understanding stipulating that NIOSH will perform the risk assessment for
                           the OSHA standard on diacetyl. However, some experts and officials at
                           both agencies noted that collaborating in a more systematic way could
                           facilitate OSHA’s standard-setting process.


Expand OSHA’s Ability to   To ensure that OSHA’s standards keep pace with changes in technology
Use Industry Voluntary     and best practices, experts suggested the agency be allowed to more
Consensus Standards        easily adopt industry voluntary consensus standards. According to OSHA
                           officials, many OSHA standards incorporate or reference outdated
                           consensus standards, which results in challenges for employers in
                           complying with the standards and OSHA in enforcing them. Officials also
                           said that the majority of OSHA’s health standards were adopted from
                           existing federal standards—originally adopted under the Walsh-Healy
                           Act—during the agency’s first 2 years using section 6(a) of the OSH Act,
                           which directed OSHA to set standards without following the typical
                           section 6(b) standard-setting procedures or the APA. Although current at
                           the time, many industry consensus standards have since been updated to
                           reflect advancements in technology and science. However, according to
                           OSHA, most of OSHA’s standards have not been similarly updated, so
                           employers following current industry consensus standards may be out of
                           compliance with OSHA’s standards. As a result, some employers may be
                           discouraged from updating processes or technology at their worksites in


                           Page 31                                  GAO-12-330 Workplace Safety and Health
order to avoid OSHA citations. One expert said, and OSHA reported, that
this could leave workers at these worksites exposed to hazards that are
insufficiently addressed by OSHA standards that are based on out-of-date
technology or processes. OSHA has reported that these types of
standards are challenging because their inspectors must spend time
addressing them during worksite inspections. Additionally, officials told us
that issuing citations to employers that are following the most up-to-date
industry consensus standards reflects poorly on the agency. OSHA has
attempted to update some of its standards to incorporate advances in
technology and science, but the lengthy standard-setting process
presents significant challenges for updating them. In accordance with the
requirements in the OSH Act and the National Technology Transfer and
Advancement Act, 66 when updating its standards, OSHA considers using
voluntary consensus standards. However, OSHA officials told us that,
since standards developing organizations typically do not have to meet
scientific requirements in developing voluntary standards, OSHA’s ability
to base its standards on voluntary consensus standards is limited
because staff must still perform a full quantitative risk assessment for new
standards. Since 2004, OSHA has been engaged in an effort to update
several of its standards using industry consensus standards, which
officials told us started by first identifying standards that would be well-
suited to more streamlined rulemaking approaches, such as issuing a
direct final rule. 67 For example, they said they chose to update the
standard on personal protective equipment first because they expected
employers would be amenable to the update, as changes would be
consistent with the current industry consensus standard.




66
 29 U.S.C. § 655(b)(8), 15 U.S.C. § 272 note.
67
  The APA’s notice and comment rulemaking procedures are not required in certain
circumstances, such as when an agency finds, for “good cause,” that those procedures
are “impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. § 553(b). A
direct final rule is one alternative rulemaking procedure used by agencies in which the
agency publishes a rule in the Federal Register with a statement that the rule will be
effective on a particular date unless an adverse comment is received within a specified
period of time (e.g., 30 days). If an adverse comment is filed, the direct final rule is
withdrawn, and the agency may publish the rule as a proposed rule. OSHA’s regulations
provide that “minor rules or amendments in which the public is not particularly interested”
may be issued without the notice and public procedure that would otherwise be required.
29 C.F.R. § 1911.5. According to agency officials, OSHA uses the direct final rule process
for noncontroversial rules, but it is unlikely the agency would be able to use it more often
in standard setting because of the limited opportunity for public comment.




Page 32                                            GAO-12-330 Workplace Safety and Health
To address the problem of standards based on outdated consensus
standards, experts suggested that Congress pass new legislation that
would allow OSHA, through a single rulemaking effort, to revise standards
for a group of health hazards based on current industry voluntary
consensus standards or the Threshold Limit Values developed by the
American Conference of Governmental Industrial Hygienists. 68 In 1989,
OSHA attempted to revise the PELs for over 200 air contaminants by
combining them into a single rulemaking effort, but the rule was
invalidated by the court for failing to follow the OSH Act requirements for
each hazard. To save OSHA time, experts specified that any new law to
this effect should contain a provision similar to the one in the OSH Act
that excused the agency during its first 2 years from following the
standard-setting provisions of section 6(b) of the OSH Act or the APA. 69
One potential disadvantage of this proposal is that OSHA may need to do
a substantial amount of independent scientific research to ensure that
consensus standards are based on sufficient scientific evidence. While
such a law, if enacted, could exempt OSHA from conducting this
research, an abbreviated regulatory process could also result in
standards that fail to reflect relevant stakeholder concerns, such as an
imposition of unnecessarily burdensome requirements on employers. For
example, one expert stated that, while following the APA process takes
time for regulatory agencies, it leads to higher quality standards and
ensures that the basis for agency action is clear and defensible. Also,
while this change could help ensure that existing OSHA standards are
kept up to date, it could divert resources away from efforts to set new
standards.




68
  This private, not-for-profit, nongovernmental corporation is a scientific association that
has developed Threshold Limit Values as guidelines to assist in the control of potential
workplace health hazards. In developing these guidelines, committees of experts in public
health and related sciences review peer-reviewed scientific literature to determine levels
of exposure that the typical worker can experience without adverse health effects.
However, the committees consider neither economic nor technological feasibility when
determining Threshold Limit Values, nor do they result from a consensus process of
agreement among interested stakeholders.
69
 29 U.S.C. § 655(a).




Page 33                                            GAO-12-330 Workplace Safety and Health
Impose Statutory           To minimize the time it takes OSHA to develop and issue safety or health
Deadlines and Provide      standards, experts and agency officials suggested that statutory
Relief from Procedural     deadlines for issuing occupational safety and health standards be
                           imposed by Congress and enforced by the courts. OSHA officials
Requirements for Setting   indicated that it can be difficult to prioritize standards due to the agency’s
Standards                  numerous and sometimes competing goals. In the past, having a
                           statutory deadline, combined with relief from procedural requirements,
                           resulted in OSHA issuing standards more quickly. For example, the
                           Needlestick Safety and Prevention Act directed OSHA to make specified
                           revisions to its bloodborne pathogens standard within 6 months and
                           exempted the agency from the typical procedural requirements under
                           section 6(b) of the OSH Act or the APA. 70 OSHA had already spent some
                           time developing the standard before the law was passed, so it was able to
                           complete the revised standard within the required time frame. Including
                           the time spent on developing the standard before passage of the Act,
                           OSHA completed the revised standard in less than 3 years. Another
                           alternative to the full rulemaking process is for an agency to issue an
                           interim final rule, which is immediately effective as a final rule but still
                           allows for subsequent public comment. 71 However, similar to one of the
                           disadvantages described above, some legal scholars have noted that
                           curtailing the current rulemaking process required by the APA may result
                           in fewer opportunities for public input and possibly decrease the quality of
                           the standard. 72 Also, officials from MSHA told us that statutory deadlines
                           make its priorities clear, but this is sometimes to the detriment of other
                           issues that must be set aside in the meantime. Although a more
                           streamlined approach could reduce opportunities for stakeholder
                           comments and minimize agency flexibility, OSHA has used alternative




                           70
                             Pub. L. No. 106-430, 114 Stat. 1901 (2000).
                           71
                              Interim final rules are another alternative to APA notice and comment rulemaking, in
                           addition to direct final rules. In interim final rulemaking, if the public comments persuade
                           the agency that changes are needed in the interim final rule, the agency may revise the
                           rule by publishing a final rule reflecting those changes. Labor officials told us that OSHA
                           generally needs specific statutory authority to set substantive standards using an interim
                           final rule. For example, the Housing and Community Development Act of 1992 required
                           the Secretary of Labor to issue an interim final rule on occupational exposure to lead in
                           the construction industry, to be effective until replaced by a permanent standard. Pub. L.
                           No. 102-550, § 1031, 106 Stat. 3672, 3924.
                           72
                            See, for example, Jacob E. Gersen and Anne Joseph O’Connell, “Deadlines in
                           Administrative Law,” University of Pennsylvania Law Review, vol. 156 (2007-2008).




                           Page 34                                             GAO-12-330 Workplace Safety and Health
                           rulemaking procedures in the past to issue standards for which officials
                           perceive broad industry support.


Change the Standard of     Experts and agency officials suggested OSHA’s substantial evidence
Judicial Review for OSHA   standard of judicial review be replaced with the arbitrary and capricious
Standards                  standard, which would be more consistent with other federal regulatory
                           agencies. As the court stated in the case involving PELs for 428 air
                           contaminants, under the substantial evidence test, “[the court] must take
                           a ‘harder look’ at OSHA’s action than we would if we were reviewing the
                           action under the more deferential arbitrary and capricious standard
                           applicable to agencies governed by the Administrative Procedure Act.” 73
                           As a result, OSHA officials said they spend a significant amount of time
                           collecting evidence to ensure that its standards can withstand challenge
                           under the substantial evidence standard of judicial review and to satisfy
                           procedural requirements for setting standards. One expert said he
                           understood that OSHA’s more stringent standard of judicial review was
                           paired with informal rulemaking procedures as a congressional
                           compromise.

                           According to the author of a 1999 law review article, one justification for
                           judicial review of agency rulemaking is when there is a genuine concern
                           about the power many agencies have in the regulatory process. 74 If
                           Congress has similar concerns about OSHA, it may be preferable to keep
                           the current standard of review. However, the Administrative Conference
                           of the United States has recommended that Congress amend laws that
                           mandate use of the substantial evidence standard because it can be
                           unnecessarily burdensome for the agency or confusing because it has
                           been inconsistently applied by the courts. 75 As a result, changing the
                           designation for the standard of judicial review to “arbitrary and capricious”
                           could reduce the agency’s evidentiary burden.




                           73
                            AFL-CIO v. OSHA, 965 F.2d 962, 970 (11th Cir. 1992), quoting Asbestos Info. Ass’n v.
                           OSHA, 727 F.2d 415, 421 (5th Cir. 1984).
                           74
                             Mark Seidenfeld, “Bending the Rules: Flexible Regulation and Constraints on Agency
                           Discretion,” Administrative Law Review (spring, 1999).
                           75
                             59 Fed. Reg. 4669, 4670-71 (Feb. 1, 1994). The Administrative Conference of the
                           United States is an independent federal agency that makes recommendations for
                           improving federal agency procedures, including the federal rulemaking process.




                           Page 35                                         GAO-12-330 Workplace Safety and Health
Improve Strategies for      Experts suggested that OSHA minimize on-site visits by using surveys or
Supporting Economic and     basing its analyses on industry best practices, which could reduce the
Technological Feasibility   time, expense, and need for industry cooperation in conducting economic
                            and technological feasibility studies. Primarily because OSHA has broad
Analyses                    authority to regulate occupational hazards in nearly all private industries,
                            the technological and economic feasibility analyses required by the OSH
                            Act entail an extensive amount of time and resources. OSHA must
                            conduct its feasibility analyses on an industry-by-industry basis, which
                            requires numerous site visits—an activity that is time-consuming and
                            largely dependent on industry cooperation. According to agency officials,
                            in many cases, OSHA hires contractors to gather information from
                            worksites that will support standards’ feasibility analyses.

                            Two experts suggested OSHA could streamline its economic and
                            technological feasibility analyses by surveying worksites rather than
                            visiting them. However, one limitation to this method is that, according to
                            OSHA officials, in-person site visits are imperative for gathering sufficient
                            data in support of most health standards. Specifically, officials told us that
                            to fully understand the industrial processes and application of a chemical
                            to be regulated, OSHA staff or contractors must be able to observe the
                            work being performed and ask questions of workers at the site. In
                            addition, the only way for OSHA to know about ambient chemical levels is
                            to collect on-site air samples all day long. In light of this limitation, this
                            method may be more appropriate for safety hazards. The other method
                            experts suggested is allowing OSHA to base economic and technological
                            feasibility assessments on industry best practices, which one expert
                            noted would require a statutory change. For example, OSHA could base
                            these analyses on the fact that a minimum percentage of workplaces in a
                            particular industry use technology or methods that decrease exposure to
                            hazards. However, the broad scope of OSHA’s authority would still result
                            in this being a substantial amount of work at the outset, as OSHA would
                            still be required to determine feasibility on an industry-by-industry basis.


Adopt a Priority-Setting    Experts suggested that OSHA develop a priority-setting process for
Process for Addressing      addressing hazards. GAO has reported that, by developing strategies
Hazards                     such as aligning agencywide objectives, federal agencies can
                            demonstrate a commitment to a course of action. 76 Similarly, having a


                            76
                             GAO, Managing for Results: Enhancing Agency Use of Performance Information for
                            Management Decision Making, GAO-05-927 (Washington D.C.: Sept. 9, 2005).




                            Page 36                                       GAO-12-330 Workplace Safety and Health
              priority-setting process could lead to improved program results. Currently,
              however, OSHA has no process or guidance to use in setting priorities, as
              officials told us they do not have a document that explains how priorities
              are or should be set. OSHA officials also said that ideas for which
              hazards to regulate come from a number of sources, including petitions
              from stakeholders, information from NIOSH, OSHA’s enforcement efforts,
              recommendations from the Chemical Safety Board, and staff research.
              While staff in OSHA’s standards office use this information to make
              recommendations to Labor’s Assistant Secretary for OSHA and the
              Deputy Secretary on which hazards to regulate, not all of their
              recommendations make it to the agency’s regulatory agenda, which is
              developed according to agency goals and resources. In addition,
              according to OSHA officials, decisions about which hazards to regulate
              guide OSHA standards activity for 6 months, the duration of the biannual
              regulatory agenda. As a result, the ability of the managers of OSHA’s
              standards office to plan with certainty work beyond this 6-month time
              frame may be limited.

              One expert suggested that OSHA develop a priority-setting process that
              more directly involves stakeholders with expertise in occupational safety
              and health in recommending new standards. OSHA attempted such a
              process in 1994 when it initiated a formal priority planning process.
              However, the expert said that, after an established committee of experts
              identified a list of priority hazards, the political climate changed with a new
              Congress that was generally more critical of the role of executive
              agencies in developing new standards, and OSHA shifted its focus away
              from this initiative. Nevertheless, this process allowed OSHA to articulate
              its highest priorities for addressing occupational hazards. Reestablishing
              a similar priority-setting process could have several benefits for OSHA,
              such as improving a sense of transparency among stakeholders and
              facilitating OSHA management’s ability to plan its staffing and budgetary
              needs. However, adopting such a process may not immediately address
              OSHA’s challenges in expeditiously setting standards because a process
              like this could take time and would require commitment from agency
              management.


              Setting occupational safety and health standards is one of OSHA’s
Conclusions   primary methods for ensuring that workers are protected from
              occupational hazards, but OSHA faces a number of challenges in setting
              these standards promptly and efficiently. The additional procedural
              requirements established since 1980 by Congress and various executive
              orders have increased opportunities for stakeholder input in the regulatory


              Page 37                                    GAO-12-330 Workplace Safety and Health
                     process and required agencies to evaluate and explain the need for
                     regulations, but they have also resulted in a more protracted rulemaking
                     process for OSHA and other regulatory agencies. The process for
                     developing new standards for previously unregulated occupational
                     hazards and new hazards that emerge is a lengthy one and can result in
                     periods when there are insufficient protections for workers. Nevertheless,
                     any streamlining of the current process must guarantee sufficient
                     stakeholder input to ensure that the quality of standards does not suffer.
                     In addition, ideas for changes to the regulatory process must weigh the
                     benefits of addressing hazards more quickly against a potential increase
                     in the regulatory burden to be imposed on the regulated community. Most
                     methods for streamlining that have been suggested by experts and
                     agency officials are largely outside of OSHA’s authority because many
                     procedural requirements are established by federal statute or executive
                     order. However, OSHA can coordinate more routinely with NIOSH on risk
                     assessments and other analyses required to support the need for
                     standards, saving OSHA time and expense. NIOSH’s and OSHA’s
                     current efforts to coordinate on the development of a new standard, which
                     officials and staff from both agencies support, provides a useful template
                     for increased and regular coordination on similar efforts.


                     To enhance collaboration and streamline the development of OSHA’s
Recommendation for   occupational safety and health standards, we recommend that the
Executive Action     Secretary of Labor and the Secretary of the Department of Health and
                     Human Services instruct the Assistant Secretary of Labor for
                     Occupational Safety and Health and the Director of the National Institute
                     for Occupational Safety and Health to develop a more formal means of
                     collaboration between the two agencies. Specifically, the two agencies
                     should establish a more consistent and sustained relationship through a
                     formal agreement, such as a Memorandum of Understanding, allowing
                     OSHA to better leverage NIOSH’s capacity as a primary research
                     institution when building the scientific record required for standard setting.


                     We provided a draft of this report to the six agencies that assisted us in
Agency Comments      gathering information: Labor (OSHA and MSHA), Department of Health
                     and Human Services (NIOSH), EPA, U.S. Chemical Safety and Hazard
                     Investigation Board, OMB, and the Department of Commerce (National
                     Institute of Standards and Technology). We received written comments
                     from Labor and the Department of Health and Human Services; both sets
                     of comments are reproduced in appendices III and IV, respectively. Both
                     Labor’s Assistant Secretary for OSHA and the Department of Health and


                     Page 38                                    GAO-12-330 Workplace Safety and Health
Human Services’ Assistant Secretary for Legislation agreed with GAO’s
recommendation. They also both described the ways in which OSHA and
NIOSH currently collaborate, each noting the expected benefits of
maintaining collaboration through a formalized agreement. Labor’s OSHA
and MSHA, EPA, and the Department of Commerce also provided
technical comments, which we incorporated in the report as appropriate.


As agreed with your offices, unless you publicly announce the contents of
this report earlier, we plan no further distribution until 30 days from the
report date. At that time, we will send copies to the appropriate
congressional committees and other interested parties. In addition, this
report will be available at no charge on the GAO website at
http://www.gao.gov.

If you or your staff members have any questions about this report, please
contact me at (202) 512-7215 or moranr@gao.gov. Contact points for our
Offices of Congressional Relations and Public Affairs may be found on
the last page of this report. Key contributors to this report are listed in
appendix V.




Revae Moran, Director
Education, Workforce
  and Income Security Issues




Page 39                                   GAO-12-330 Workplace Safety and Health
List of Committees

The Honorable Tom Harkin
Chairman
Committee on Health, Education, Labor, and Pensions
United States Senate

The Honorable Patty Murray
Chairman
Subcommittee on Employment and Workplace Safety
Committee on Health, Education, Labor, and Pensions
United States Senate

The Honorable George Miller
Ranking Member
Committee on Education and the Workforce
House of Representatives

The Honorable Lynn C. Woolsey
Ranking Member
Subcommittee on Workforce Protections
Committee on Education and the Workforce
House of Representatives




Page 40                               GAO-12-330 Workplace Safety and Health
Appendix I: Objectives, Scope, and
              Appendix I: Objectives, Scope, and
              Methodology



Methodology

              To determine how long it takes the Occupational Safety and Health
              Administration (OSHA) to develop and issue safety and health standards,
              we reviewed occupational safety and health standards and substantive
              updates to those standards. We selected standards that met two criteria:
              (1) they were published as a final rule between calendar years 1981 and
              2010 and (2) OSHA identified each standard as significant. To identify our
              universe of standards for this analysis, we first conducted an electronic
              legal database search for final rules published by OSHA in the Federal
              Register between 1981 and 2010. We chose this time frame because it
              spans multiple executive administrations and changes in congressional
              leadership. Also, several statutes, executive orders, and key court
              decisions affecting OSHA’s standard-setting process became effective in
              or after 1980. We excluded from our review any rules that were not
              occupational safety or health standards, such as recordkeeping
              requirements or general administrative regulations, 1 and any rules that
              were minor or technical amendments to existing standards. For this list,
              we included only standards for which OSHA’s semiannual regulatory
              agenda or other evidence indicated that OSHA considered the standard
              to be important or a priority, including but not limited to standards that met
              the definition of “significant” under Executive Order 12866. For each
              standard, we identified the dates of three regulatory benchmarks—
              initiation, 2 proposed rule, and final rule 3—and calculated the time elapsed
              between each benchmark to analyze trends. We confirmed with OSHA
              staff the accuracy of our selected benchmark dates and that the list of
              standards met our criteria.

              There are some limitations to this approach because the development of
              a standard may not have a clear beginning or end point. For example,
              OSHA may have begun work on a standard prior to its appearance on the
              regulatory agenda or the publication of a Request for Information or
              Advance Notice of Proposed Rulemaking in the Federal Register.


              1
               In making this determination, we did not assess whether any particular rule met the
              definition of “occupational safety and health standard” under the OSH Act.
              2
               For the purposes of this analysis, we considered a standard’s initiation date to be the
              date OSHA publicly indicated starting work on the standard in the Federal Register by
              publishing a Request for Information or Advance Notice of Proposed Rulemaking. In
              cases where OSHA did not indicate in the final rule having published either type of notice,
              we used the date the standard first appeared on OSHA’s semiannual regulatory agenda.
              3
                For the purposes of this analysis, we considered a standard to be “finalized” on the date
              it was published in the Federal Register as a final rule.




              Page 41                                            GAO-12-330 Workplace Safety and Health
Appendix I: Objectives, Scope, and
Methodology




Conversely, it is possible that although a standard appeared on the
regulatory agenda, work did not begin on the standard until sometime
later. According to OSHA officials, once development of a particular
standard has begun, work may stop and start again due to various factors
such as changing priorities. Furthermore, the date a final rule was
published does not necessarily coincide with the date the rule took effect,
which may be some time later. While our analysis will not reflect these
distinctions, we selected these benchmarks to ensure consistency and
maximize comparability across different standards.

To identify the key factors affecting OSHA’s time frames for issuing
standards and ideas for improving OSHA’s standard-setting process, we
conducted semistructured interviews with current and former Labor staff,
as well as occupational safety and health experts, and analyzed their
responses. We identified these experts, who represented both workers
and employers, through our own research and through recommendations
from other experts. The experts had direct experience with setting
standards at OSHA, testified at past congressional hearings on
occupational safety and health issues, or published written material on
federal rulemaking. Finally, we reviewed relevant federal laws,
regulations, executive orders, and other guidance and interviewed
officials from the Office of Management and Budget to determine the
required steps in the standard-setting process and how those
requirements affect the time it takes OSHA to develop and issue
standards.

To identify alternatives to the typical standard-setting process available
for OSHA to address urgent hazards, we reviewed relevant federal laws
and interviewed current OSHA staff and attorneys from the Department of
Labor’s Office of the Solicitor. We also interviewed experts identified as
described above. We assessed the extent to which OSHA has used its
authority to issue emergency temporary standards by analyzing a history
of petitions for these standards provided to us by Labor staff.

To determine whether rulemaking at other regulatory agencies offers
insight into OSHA’s challenges with setting standards, we explored the
regulatory process at three other federal regulatory agencies and offices.
For these comparisons, we selected agencies with authority to issue
regulations relating to public health or safety. We also included some
agencies whose statutory frameworks were similar to OSHA’s and some
whose statutory frameworks were different than OSHA’s. We based our
selection of comparison agencies and offices on our interviews with
experts, as well as a review of the literature, previous GAO work, and


Page 42                                  GAO-12-330 Workplace Safety and Health
Appendix I: Objectives, Scope, and
Methodology




relevant federal laws. Using these criteria, we initially selected Labor’s
Mine Safety and Health Administration (MSHA) and two offices of the
Environmental Protection Agency (EPA): the Office of Pollution
Prevention and Toxics and the Office of Air and Radiation. For the EPA
offices, we specifically focused on their rulemaking experiences under
section 6 of the Toxic Substances Control Act and section 112 of the
Clean Air Act. However, after further review, we concluded that the Office
of Pollution Prevention and Toxics did not offer insights for OSHA
because of the office’s limited recent standard-setting experience and, as
a result, we excluded the Toxic Substances Control Act from our review.
Through a review of relevant federal laws and semistructured interviews
with staff in EPA’s Office of Air and Radiation and at MSHA, we learned
about challenges each agency faces when developing and issuing
regulations and the factors that affect their time frames. Although states
may also issue standards in the absence of an applicable federal
standard or under an OSHA-approved plan, we did not look to these
states to gain insight into OSHA’s challenges with setting standards.
Based on our interviews with experts, and because rulemaking at the
state level is governed by state law and is not subject to federal
rulemaking procedural requirements, we determined that any
comparisons between OSHA and states with respect to time frames for
issuing standards would be inapt.

We compiled the ideas for improving OSHA’s standard-setting process by
analyzing statements from interviews with current and former agency
officials and experts representing both workers and employers. The six
ideas discussed in the report represent those most frequently mentioned
that are not otherwise addressed by other parts of our report.

We conducted this performance audit from February 2011 to April 2012 in
accordance with generally accepted government auditing standards.
Those standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe that
the evidence obtained provides a reasonable basis for our findings and
conclusion based on our audit objectives.




Page 43                                  GAO-12-330 Workplace Safety and Health
Appendix II: Selected Procedural
                                         Appendix II: Selected Procedural
                                         Requirements for Federal Rulemaking



Requirements for Federal Rulemaking

                                         Table 2 presents a summary of federal rulemaking requirements that
                                         apply to OSHA standard setting. This table is not intended to be a
                                         complete list of all procedural requirements that govern rulemaking at
                                         OSHA or at other federal regulatory agencies. In addition, this table
                                         presents only a selected summary of the requirements; for the complete
                                         requirements contained in each source, refer directly to the cited source.

Table 2: Selected Procedural Requirements for Federal Rulemaking

                      Year
Source of             enacted or
requirement           issued     Citation              Description of requirement
Paperwork             1980       Pub. L. No. 96-       Agencies are required to publish for public comment any proposed collection
Reduction Act of                 511, 94 Stat.         of information associated with a proposed rule. Agencies must then submit
1980                             2812, codified as     the proposed information collection to the Office of Information and
                                 amended at 44         Regulatory Affairs, and certify that, among other things, the collection is
                                 U.S.C. §§ 3501-       necessary for the proper performance of agency functions, is not
                                 20.                   unnecessarily duplicative, and reduces burden on respondents to the extent
                                                       practicable and appropriate. The information collection must inform
                                                       respondents why the information is being collected, how the information will
                                                       be used, and provide an estimate of the burden. The Office of Information
                                                       and Regulatory Affairs must, after another public comment period, approve
                                                       each information collection request and assign it a control number before it
                                                       can be implemented.
Regulatory Flexibility 1980      Pub. L. No. 96-       Agencies are required to publish for public comment, along with the proposed
Act                              354, 94 Stat. 1164    rule, a regulatory flexibility analysis, or certify that the proposed rule would
                                 (1980), codified as   not have a “significant economic impact upon a substantial number of small
                                 amended at 5          entities.” The regulatory flexibility analysis must contain, among other things,
                                 U.S.C. §§ 601-12.     a description of the reasons for and objectives of the rule, a description and
                                                       estimate of the impact of the proposed rule on small entities, and a
                                                       description of potential alternatives that could minimize the impact on small
                                                       entities. When publishing the final rule, the agency must also publish a final
                                                       regulatory flexibility analysis, addressing the comments received and
                                                       explaining why alternatives were rejected.
                                                                                                                       b
Executive Order       1993       58 Fed. Reg.          Agencies are required to submit “significant” regulatory actions to the Office
     a
12866                            51,735 (Oct. 4,       of Information and Regulatory Affairs before publishing them in the Federal
                                 1993).                Register, including the text of the regulatory action, as well as the agency’s
                                                       assessment of its potential costs and benefits. For economically significant
                                                       rules, the agency must also submit a cost-benefit analysis of the proposal
                                                       and potential alternatives. Staff from this office generally must notify the
                                                       agency of the results of its review within 90 calendar days of submission.
Small Business       1996        Pub. L. No. 104-      If a proposed rule is expected to have a significant impact on a substantial
Regulatory                       121, tit. II, 110     number of small entities, OSHA, EPA, and the Bureau of Consumer Financial
Enforcement                      Stat, 847, 857-74,    Protection are required to work with the Small Business Administration to
Fairness Act of 1996             codified in           form panels with representatives of affected small businesses, prior to
                                 scattered sections    publishing the rule. Agency staff must publish the recommendations from
                                 of 5 U.S.C. and 15    panel members in the Federal Register along with the proposed rule.
                                 U.S.C., and as a
                                 note to 5 U.S.C. §
                                 601.




                                         Page 44                                              GAO-12-330 Workplace Safety and Health
                                         Appendix II: Selected Procedural
                                         Requirements for Federal Rulemaking




                      Year
Source of             enacted or
requirement           issued     Citation                 Description of requirement
Congressional         1996       Pub. L. No. 104-         Agencies are required to submit their rules to Congress and GAO before they
Review Act                       121, § 251, 110          can take effect. GAO must report to Congress on agencies’ compliance with
                                                                                                 c
                                 Stat. 847, 868-74        procedural requirements. Major rules cannot be effective until 60 days after
                                 (1996), codified at      publication or submission to Congress, whichever is later. If Congress enacts
                                 5 U.S.C. §§ 801-         a joint resolution of disapproval within a certain time period after a rule is
                                 808.                     submitted, the rule shall not take effect (or shall not continue in effect), and it
                                                          may not be reissued in substantially the same form unless expressly
                                                          authorized by subsequent law.
Information Quality   2000       Consolidated             The Office of Management and Budget and federal agencies are directed to
Act                              Appropriations           issue guidelines for ensuring and maximizing “the quality, objectivity, utility,
                                 Act, 2001, Pub. L.       and integrity of information” agencies disseminate, including information that
                                                                                        d
                                 No. 106-554, §           supports regulatory actions.
                                 515, 114 Stat.
                                 2763A-153 to
                                 2763A-154 (2000)
                                 (44 U.S.C. 3516
                                 note).
                                         Sources: GAO summary of selected federal laws and executive orders.

                                         a
                                          Executive Order 13563, among other things, reaffirmed the principles, structures, and definitions
                                         established in Executive Order 12866. 76 Fed. Reg. 3821 (Jan. 21, 2011).
                                         b
                                          A regulatory action is defined by Executive Order 12866 as “significant” if it will (1) have an annual
                                         effect on the economy of $100 million or more or adversely affect in a material way the economy, a
                                         sector of the economy, productivity, competition, jobs, the environment, public health or safety, or
                                         state, local, or tribal governments or communities (also called “economically significant”); (2) create a
                                         serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3)
                                         materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights
                                         and obligations of the recipients; or (4) raise novel legal or policy issues arising out of legal mandates,
                                         the President’s priorities, or the principles set forth in the executive order.
                                         c
                                           A “major rule” is defined in the Congressional Review Act as a rule that the Office of Information and
                                         Regulatory Affairs finds has resulted in or is likely to result in (1) an annual effect on the economy of
                                         $100 million or more; (2) a major increase in costs or prices for consumers, individual industries,
                                         federal, state, or local government agencies, or geographic regions; or (3) significant adverse effects
                                         on competition, employment, investment, productivity, innovation, or on the ability of United States-
                                         based enterprises to compete with foreign-based enterprises in domestic and export markets.
                                         d
                                          Office of Management and Budget guidelines issued pursuant to the Information Quality Act require
                                         agencies to conduct a peer review of certain scientific information. Information Quality Bulletin for
                                         Peer Review, 70 Fed. Reg. 2664 (Jan. 14, 2005).




                                         Page 45                                                               GAO-12-330 Workplace Safety and Health
Appendix III: Comments from the
              Appendix III: Comments from the Department
              of Labor



Department of Labor




              Page 46                                      GAO-12-330 Workplace Safety and Health
Appendix III: Comments from the Department
of Labor




Page 47                                      GAO-12-330 Workplace Safety and Health
Appendix IV: Comments from the
             Appendix IV: Comments from the Department
             of Health and Human Services



Department of Health and Human Services




             Page 48                                     GAO-12-330 Workplace Safety and Health
Appendix IV: Comments from the Department
of Health and Human Services




Page 49                                     GAO-12-330 Workplace Safety and Health
Appendix V: GAO Contact and Staff
                  Appendix V: GAO Contact and Staff
                  Acknowledgments



Acknowledgments

                  Revae Moran, Director, (202) 512-7215 or moranr@gao.gov
GAO Contact
                  In addition to the individual named above, Gretta L. Goodwin, Assistant
Staff             Director; Sara Pelton, Analyst-in-Charge; and Anna Bonelli, Analyst-in-
Acknowledgments   Charge; managed all aspects of this assignment; Suzanne Rubins and
                  Sarah Newman made significant contributions to all phases of the work;
                  Sarah Cornetto made substantial contributions by providing legal advice
                  and assistance; Jean McSween provided assistance in designing the
                  study; Ashley McCall provided assistance with occupational safety and
                  health literature; Kate van Gelder and Susan Aschoff assisted in message
                  and report development; James Bennett created the report’s graphics;
                  and Ashanta Williams, Lise Levie, and Daniel S. Meyer reviewed the
                  report to check the facts presented.




(131059)
                  Page 50                                 GAO-12-330 Workplace Safety and Health
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