oversight

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

Published by the Government Accountability Office on 2012-04-19.

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

                             United States Government Accountability Office

GAO                          Testimony
                             Before the Committee on Health,
                             Education, Labor, and Pensions,
                             U.S. Senate

                             WORKPLACE SAFETY
For Release on Delivery
Expected at 10:00 a.m. EDT
Thursday, April 19, 2012

                             AND HEALTH
                             Multiple Challenges
                             Lengthen OSHA’s Standard
                             Setting
                             Statement of Revae Moran, Director
                             Education, Workforce, and Income Security




GAO-12-602T
Chairman Harkin, Ranking Member Enzi, and Members of the
Committee:

Thank you for the opportunity to discuss the challenges the Department
of Labor’s (Labor) Occupational Safety and Health Administration (OSHA)
faces in developing and issuing safety and health standards. 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, and have been credited with helping
prevent thousands of work-related deaths, injuries, and illnesses.
However, questions have been raised concerning whether the agency’s
approach to developing standards is overly cautious, resulting in too few
standards being issued. Others counter that the process is intentionally
deliberative to balance protections provided for workers with the
compliance burden imposed on employers. Over the past 30 years,
various presidential executive orders and federal laws have added new
procedural requirements for regulatory agencies, resulting in multiple and
sometimes lengthy steps OSHA and other agencies must follow.

My remarks today are based on findings from our report, which is being
released today, entitled Workplace Safety and Health: Multiple
Challenges Lengthen OSHA’s Standard Setting. 1 For this report, 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
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. Through
semistructured interviews with current and former Labor officials and
occupational safety and health experts representing both workers and
employers, we identified the key factors affecting OSHA’s time frames for
issuing standards and ideas for improving OSHA’s standard-setting
process. We reviewed relevant federal laws and interviewed current



1
GAO-12-330 (Washington, D.C.: Apr. 2, 2012).




Page 1                                                          GAO-12-602T
OSHA staff and attorneys from Labor’s Office of the Solicitor to identify
alternatives to the typical standard-setting process available for OSHA to
address urgent hazards. To determine whether rulemaking at other
regulatory agencies offers insight into OSHA’s challenges with setting
standards, we conducted semistructured interviews with policy and
program officials at the Environmental Protection Agency (EPA) and at
the Mine Safety and Health Administration (MSHA). For more information
on our scope and methodology, see the full report. This testimony is
based on work performed between February 2011 and April 2012 in
accordance with generally accepted government auditing standards.

In summary, we found that, between 1981 and 2010, the time it took
OSHA to develop and issue safety and health standards ranged from 15
months to 19 years and averaged more than 7 years. Experts and agency
officials cited several factors that contribute to the lengthy time frames for
developing and issuing standards, including increased procedural
requirements, shifting priorities, and a rigorous standard of judicial review.
We also found that, in addition to using the typical standard-setting
process, OSHA can address urgent hazards by issuing emergency
temporary standards, although the agency has not used this authority
since 1983 because of the difficulty it has faced in compiling the evidence
necessary to meet the statutory requirements. Instead, OSHA focuses on
enforcement activities—such as enforcing the general requirement of the
Occupational Safety and Health Act of 1970 (OSH Act) 2 that employers
provide a workplace free from recognized hazards—and educating
employers and workers about urgent hazards. Experiences of other
federal agencies that regulate public or worker health hazards offered
limited insight into the challenges OSHA faces in setting standards. For
example, EPA officials pointed to certain requirements of the Clean Air
Act to set and regularly review standards for specified air pollutants that
have facilitated the agency’s standard-setting efforts. In contrast, the OSH
Act does not require OSHA to periodically review its standards. Also,
MSHA officials noted that their standard-setting process benefits from
both the in-house knowledge of its inspectors, who inspect every mine at
least twice yearly, and a dedicated mine safety research group within the
National Institute for Occupational Safety and Health (NIOSH), a federal
research agency that makes recommendations on occupational safety
and health. OSHA must instead rely on time-consuming site visits to



2
Pub. L. No. 91-596, 84 Stat. 1590.




Page 2                                                             GAO-12-602T
             obtain information on hazards and has not consistently coordinated with
             NIOSH to assess occupational hazards. Finally, experts and agency
             officials identified several ideas that could improve OSHA’s standard-
             setting process. In our report being released today, we draw upon one of
             these ideas and recommend that OSHA and NIOSH more consistently
             collaborate on researching occupational hazards so that OSHA can more
             effectively leverage NIOSH expertise in its standard-setting process.


             The basic process by which all federal agencies typically develop and
Background   issue regulations is set forth in the Administrative Procedure Act (APA), 3
             and is generally known as the rulemaking process. 4 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. 5 Under the APA, a person adversely affected by an agency’s
             notice and comment rulemaking is generally entitled to judicial review of
             that new rule, and a court may invalidate the 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. 6 In addition to the requirements of the APA, federal
             agencies typically must comply with requirements imposed by certain
             other statutes and executive orders. In accordance with various
             presidential executive orders, agencies work closely with staff from the
             Office of Management and Budget’s (OMB) Office of Information and
             Regulatory Affairs, who review draft regulations and other significant


             3
              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.
             4
              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 testimony, we use the terms rule and regulation
             interchangeably.
             5
              The APA also provides for formal rulemaking in certain cases. 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 U.S.C. § 553.
             6
              5 U.S.C. §§ 702, 706(2)(A).




             Page 3                                                                             GAO-12-602T
regulatory actions prior to publication. 7 Most of the additional
requirements that affect OSHA standard setting were established in 1980
or later.

The process OSHA uses to develop and issue standards is spelled out in
the OSH Act. Section 6(b) of the act specifies the procedures OSHA must
use to promulgate, modify, or revoke its standards. 8 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 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 OSH Act went into effect, without following the
procedures set forth in section 6(b) or the APA. 9 According to an OSHA
publication, 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. In leading the agency’s
standard-setting process, staff from OSHA’s Directorate of Standards and
Guidance, in collaboration with staff from other Labor offices, explore the



7
 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 (sometimes referred to as “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. 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).
8
 Codified at 29 U.S.C. § 655(b).
9
 Codified at 29 U.S.C. § 655(a). In general, national consensus standards are voluntary
safety and health standards that a nationally recognized standards-producing organization
adopts after reaching substantial agreement among those who will be affected, including
businesses, industries, and workers. For purposes of section 6(a) of the OSH Act, a
national consensus standard must have met certain requirements. See the full report for
more information on national consensus standards. 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.




Page 4                                                                          GAO-12-602T
                      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.


                      We analyzed the 58 significant health and safety standards OSHA issued
OSHA’s Standard-      between 1981 and 2010 and found that the time frames for developing
Setting Time Frames   and issuing them averaged about 93 months (7 years, 9 months), and
                      ranged from 15 months to about 19 years (see table 1). 10
Vary Widely and Are
Influenced by the     Table 1: Significant OSHA Safety and Health Standards Finalized between 1981 and
Many Procedural       2010

Requirements and                                                                                    Average number of
                                                                          Average number of              months from
Other Factors                                 Number of standards                months from          proposed rule to
                          Decade/year                    finalizeda    initiation to final ruleb             final rule
                          1980s                                   24                          70                        30
                          1990s                                   23                         118                        50
                          2000s                                   10                          91                        36
                                                                                                c
                          2010                                     1                          —                         —c
                          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.




                      10
                        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 5                                                                                 GAO-12-602T
During this period, OSHA staff 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. 11 For a depiction of the timelines for safety
and health standards issued between 1981 and 2010, see appendix I.

Experts and agency officials frequently cited the increased number of
procedural requirements established since 1980 as a factor that
lengthens OSHA’s time frames for developing and issuing standards.
They indicated that the increased number of procedural requirements
affects the agency’s standard-setting time frames because of the complex
requirements OSHA must comply with to demonstrate the need for new
or updated standards (see fig. 1). For example, OSHA must evaluate
technological and economic feasibility of a potential standard 12 using data
gathered by visiting worksites in industries that will be affected, on an
industry-by-industry basis. 13 Agency officials told us this is an enormous
undertaking because, for example, it requires visits to multiple worksites.
In addition to the feasibility analyses, OSHA staff generally must also
conduct economic analyses, including assessing the costs and benefits of
significant standards, 14 and may be required to initiate a panel process
that seeks and considers input from representatives of affected small




11
   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.
12
  These analyses are necessary because the Supreme Court has held that the OSH Act
requires that standards be both technologically and economically feasible. Am. Textile
Mfrs. Inst. v. Donovan, 452 U.S. 490, 513 n.31 (1981).
13
  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). Assessing feasibility on an
industry-by-industry basis 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.
14
  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. See 58
Fed. Reg. 51,735 (Sept. 30, 1993).




Page 6                                                                           GAO-12-602T
businesses. 15 According to agency officials, the small business panel
process takes about 8 months of work, and OSHA is one of only three
federal agencies that is subject to this requirement. 16




15
  Under the Small Business Regulatory Enforcement Fairness Act of 1996, this panel
process is required if OSHA determines that a potential standard would have a significant
economic impact on a substantial number of small entities, such as businesses. OSHA
staff must work with the Small Business Administration to set up the small business
panels. 5 U.S.C. § 609(b),(d).
16
  The other two agencies that are subject to this requirement are EPA and the Consumer
Financial Protection Bureau.




Page 7                                                                       GAO-12-602T
Figure 1: 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 8                                                                                      GAO-12-602T
Experts and agency officials also told us that changing priorities are a
factor that affects the time frames for developing and issuing standards,
explaining that priorities may change as a result of changes within OSHA,
Labor, Congress, or the presidential administration. Some agency officials
and experts told us such changes often cause delays in the process of
setting standards. For example, some experts noted that the agency’s
intense focus on publishing an ergonomics rule in the 1990s took
attention away from several other standards that previously had been a
priority. 17

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 than the standard that applies to many
other agencies’ regulations, according to some experts and agency
officials. 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.” 18 According to OSHA officials, this more stringent standard
(known as the “substantial evidence” standard) requires a higher level of
scrutiny by the courts and as a result, OSHA staff must conduct a large
volume of detailed research in order to understand all industrial
processes involved in the hazard being regulated, and to ensure that a
given hazard control would be feasible for each process.

According to OSHA officials and experts, two additional factors result in
an extensive amount of work for the agency in developing standards:

•     Substantial data challenges, which stem from a dearth of available
      scientific data for some hazards and having to review and evaluate
      scientific studies, among other sources. In addition, according to
      agency officials, certain court decisions interpreting the OSH Act
      require rigorous support for the need for and feasibility of standards.


17
  OSHA issued a final standard just 1 year after publishing the proposed rule, but,
according to agency officials, in order to develop the rule so quickly, the vast majority of
OSHA’s standard-setting resources were focused on this rulemaking effort, including
nearly 50 full-time staff in OSHA’s standards office, half the staff economists, and 7 or 8
attorneys. The rule was invalidated by Congress 4 months after it was issued under the
Congressional Review Act. Pub. L. No. 107-5, 115 Stat. 7 (2001).
18
    29 U.S.C. § 655(f).




Page 9                                                                           GAO-12-602T
      An example of one such decision cited by agency officials is a 1980
      Supreme Court case, which resulted in OSHA having to conduct
      quantitative risk assessments for each health standard and ensure
      that these assessments are supported by substantial evidence. 19

•     Response to adverse court decisions. Several experts with whom we
      spoke observed that adverse court decisions have contributed to an
      institutional culture in the agency of trying to make OSHA standards
      impervious to future adverse decisions. However, agency officials said
      that, in general, OSHA does not try to make a standard “bulletproof”
      because, while OSHA tries to avoid lawsuits that might ultimately
      invalidate the standard, the agency is frequently sued. For example, in
      the “benzene decision,” the Supreme Court invalidated OSHA’s
      revised standard for benzene because the agency failed to make a
      determination that benzene posed a “significant risk” of material
      health impairment under workplace conditions permitted by the
      current standard. 20 Another example is a 1992 decision in which a
      U.S. Court of Appeals struck down an OSHA health standard that
      would have set or updated the permissible exposure limit for over 400
      air contaminants. 21




19
  Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 639 (1980). 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 and the evidence it must compile for safety
standards.
20
    Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 639 (1980).
21
    AFL-CIO v. OSHA, 965 F.2d 962, 986-87 (11th Cir. 1992).




Page 10                                                                      GAO-12-602T
                       OSHA has not issued any emergency temporary standards in nearly 30
OSHA Has Authority     years, citing, among other reasons, legal and logistical challenges. 22
to Address Urgent      OSHA officials noted that the emergency temporary standard authority
Hazards through        remains available, but the legal requirements to issue such a standard—
                       demonstrating that workers are exposed to grave danger and establishing
Emergency              that an emergency temporary standard is necessary to protect workers
Temporary Standards,   from that grave danger—are difficult to meet. Similarly difficult to meet,
                       according to officials, is the requirement that an emergency temporary
Enforcement, and       standard must be replaced within 6 months by a permanent standard
Education              issued using the process specified in section 6(b) of the OSH Act.

                       OSHA uses enforcement and education as alternatives to issuing
                       emergency temporary standards to respond relatively quickly to urgent
                       workplace hazards. OSHA officials consider their enforcement and
                       education activities complementary. It its enforcement efforts to address
                       urgent hazards, OSHA uses the general duty clause of the OSH Act,
                       which requires employers to provide a workplace free from recognized
                       hazards that are causing, or are likely to cause, death or serious physical
                       harm to their employees. 23 Under the general duty clause, OSHA has the
                       authority to issue citations to employers even in the absence of a specific
                       standard under certain circumstances. Along with its enforcement and
                       standard-setting activities, OSHA also educates employers and workers
                       to promote voluntary protective measures against urgent hazards.
                       OSHA’s education efforts include on-site consultations and publishing
                       health and safety information on urgent hazards. For example, 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 workers.




                       22
                         Section 6(c) of the OSH Act authorizes OSHA to issue these standards without following
                       the typical standard-setting procedures if certain statutory requirements are met.
                       29 U.S.C. § 655(c).
                       23
                        29 U.S.C. § 654(a)(1).




                       Page 11                                                                    GAO-12-602T
                       Although the rulemaking experiences of EPA and MSHA shed some light
Other Regulatory       on OSHA’s challenges, their statutory framework and resources differ too
Agencies’              markedly for them to be models for OSHA’s standard–setting process.
                       For example, EPA is directed to regulate certain sources of specified air
Experiences Offer      pollutants and review its existing regulations within specific time frames
Limited Insight into   under section 112 of the Clean Air Act, which EPA officials told us gave
OSHA’s Challenges      the agency clear requirements and statutory deadlines for regulating
                       hazardous air pollutants. 24 MSHA benefits from a narrower scope of
                       authority than OSHA and has more specialized expertise as a result of its
                       more limited jurisdiction and frequent on-sight presence at mines.
                       Officials at MSHA, OSHA, and Labor noted that this is very different from
                       OSHA, which oversees a vast array of workplaces and types of industries
                       and must often supplement the agency’s inside knowledge by conducting
                       site visits.


                       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. 25 Some of the ideas
Improve OSHA’s         involve substantial procedural changes that may be beyond the scope of
                       OSHA’s authority and require amending existing laws, including the OSH
Standard-Setting       Act.
Process, Including     •   Improve coordination with other agencies: Experts and agency
More Interagency           officials noted that OSHA has not fully leveraged available expertise
                           at other federal agencies, especially NIOSH, in developing and
Coordination and           issuing its standards. OSHA officials said the agency considers
Statutory Deadlines        NIOSH’s input on an ad hoc basis but OSHA staff do not routinely
                           work closely with NIOSH staff to analyze risks of occupational
                           hazards. They stated that collaborating with NIOSH on risk
                           assessments, and generally in a more systematic way, could reduce




                       24
                         42 U.S.C. § 7412. 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).
                       25
                         The ideas presented here are those most frequently mentioned in our interviews by
                       agency officials and experts that are not addressed in other sections of the full report. For
                       more information on our methodology, see the full report.




                       Page 12                                                                          GAO-12-602T
     the time it takes to develop a standard by several months, thus
     facilitating OSHA’s standard-setting process.

•    Expand use of voluntary consensus standards: According to OSHA
     officials, many OSHA standards incorporate or reference outdated
     consensus standards, which could leave workers exposed to hazards
     that are insufficiently addressed by OSHA standards that are based
     on out-of-date technology or processes. 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 using current industry voluntary consensus standards,
     eliminating the requirement for the agency to follow the standard-
     setting provisions of section 6(b) of the OSH Act or the APA. One
     potential disadvantage of this proposal is that any abbreviation to the
     regulatory process could also result in standards that fail to reflect
     relevant stakeholder concerns, such as an imposition of unnecessarily
     burdensome requirements on employers.

•    Impose statutory deadlines: OSHA officials indicated that it can be
     difficult to prioritize standards due to the agency’s 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. However, 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. 26 Also, officials from MSHA told
     us that, while statutory deadlines make its priorities clear, this is
     sometimes to the detriment of other issues that must be set aside in
     the meantime.

•    Change the standard of judicial review: Experts and agency officials
     suggested OSHA’s substantial evidence standard of judicial review be
     replaced with the arbitrary and capricious standard, which would be
     more consistent with other federal regulatory agencies. The
     Administrative Conference of the United States has recommended
     that Congress amend laws that mandate use of the substantial
     evidence standard, in part because it can be unnecessarily




26
 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 13                                                                    GAO-12-602T
     burdensome for agencies. 27 As a result, changing the standard of
     review to “arbitrary and capricious” could reduce the agency’s
     evidentiary burden. However, if Congress has concerns about
     OSHA’s current regulatory power, it may prefer to keep the current
     standard of review. 28

•    Allow alternatives for supporting feasibility: Experts suggested that
     OSHA minimize on-site visits—a time-consuming requirement for
     analyzing the technological and economic feasibility of new or
     updated standards—by using surveys or basing its analyses on
     industry best practices. One limitation to surveying worksites is that,
     according to OSHA officials, in-person site visits are imperative for
     gathering sufficient data in support of most health standards. Basing
     feasibility analyses on industry best practices would require a
     statutory change, as one expert noted, and would still require OSHA
     to determine feasibility on an industry-by-industry basis.

•    Adopt a priority-setting process: Experts suggested that OSHA
     develop a priority-setting process for addressing hazards, and as
     GAO has reported, such a process could lead to improved program
     results. 29 OSHA attempted such a process in the past, which allowed
     the agency to articulate its highest priorities for addressing
     occupational hazards. Reestablishing such a process may improve a
     sense of transparency among stakeholders and facilitate OSHA
     management’s ability to plan its staffing and budgetary needs.
     However, it may not immediately address OSHA’s challenges in
     expeditiously setting standards because such a process could take
     time and would require commitment from agency management.




27
  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.
28
  One suggested justification for judicial review of agency rulemaking is when there is
genuine concern about the power agencies have in the regulatory process. Mark
Seidenfeld, “Bending the Rules: Flexible Regulation and Constraints on Agency
Discretion,” Administrative Law Review (spring, 1999).
29
 See GAO, Managing for Results: Enhancing Agency Use of Performance Information for
Management Decision Making, GAO-05-927 (Washington D.C.: Sept. 9, 2005).




Page 14                                                                       GAO-12-602T
                     The process for developing new and updated safety and health standards
Concluding Remarks   for occupational hazards 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. Additional
                     procedural requirements established since 1980 by Congress and various
                     executive orders have increased opportunities for stakeholder input in the
                     regulatory 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. Ideas for
                     changes to the regulatory process must weigh the benefits of addressing
                     hazards more quickly against a potential increase in the regulatory
                     burden 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. In our report being released
                     today, we recommend that OSHA and NIOSH more consistently
                     collaborate on researching occupational hazards so that OSHA can more
                     effectively leverage NIOSH expertise in its standard-setting process. Both
                     agencies agreed with this recommendation.


                     Mr. Chairman, this concludes my prepared statement. I would be pleased
                     to respond to any questions you or other Members of the Committee may
                     have.


                     For questions about this testimony, please contact me at (202) 512-7215
GAO Contact and      or moranr@gao.gov. Contact points for our Offices of Congressional
Staff                Relations and Public Affairs may be found on the last page of this
                     statement. Individuals who made key contributions to this statement
Acknowledgments      include, Gretta L. Goodwin, Assistant Director; Susan Aschoff; Tim Bober;
                     Anna Bonelli; Sarah Cornetto; Jessica Gray; and Sara Pelton.




                     Page 15                                                        GAO-12-602T
Appendix I: Timelines of Significant OSHA
              Appendix I: Timelines of Significant OSHA
              Safety and Health Standards



Safety and Health Standards

              The following two figures (fig. 2 and fig. 3) depict a timeline for each of the
              58 significant safety and health standards OSHA issued between 1981
              and 2010.




              Page 16                                                            GAO-12-602T
                                        Appendix I: Timelines of Significant OSHA
                                        Safety and Health Standards




Figure 2: 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




                                        Page 17                                                                                   GAO-12-602T
                                        Appendix I: Timelines of Significant OSHA
                                        Safety and Health Standards




                                        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.



Figure 3: 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.



(131170)
                                        Page 18                                                                                 GAO-12-602T
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