by Celeste Monforton
In the first week of the 112th Congress, Rep. Lynn Woolsey (D-Calif.)
introduced on Jan. 5, 2011 the Protecting America’s Workers Act (HR190), [http://thomas.loc.gov/cgi-bin/query/z?c112:H.R.190.IH:] a bill to modernize some provisions of the Occupational Safety and Health Act of 1970. Key provisions of the bill include (1) extending coverage to the 8 million state and local employees not currently covered by the OSH Act; (2) enhancing whistleblower protections for workers who have safety complaints; (3) increasing the maximum penalty from $7,000 to $12,000 for a serious violation, and from $70,000 to $120,000 for a willful or repeat violation; (4) strengthening criminal penalties against employers who “knowingly” violate a standard or rule, including as much as 10 years in prison; (5) granting additional oversight authority to federal OSHA over State Plan States; (6) giving family-member victims of workplace fatalities new rights; and (7) requiring abatement of violations during the contest period. To-date, a companion bill has not yet been introduced in the Senate. In the 111th Congress, OSHA Assistant Secretary David Michaels, PhD, MPH and Deputy Asst. Secretary Jordan Barab (both members of the APHA OHS Section) testified on behalf of the Obama administration in support of a very similar bill.
President Obama issued on Jan. 18, 2011 Executive Order 13563 on “Improving Regulations and Regulatory Review.” It generally reaffirms the principles and procedures outlined in the existing executive order (EO 12866) which guides rulemaking activities for regulatory agencies like OSHA, MSHA and EPA. In this new order, the President directs agency heads to ensure the public has opportunities to participate in the rulemaking process and seek in particular the input of those who will be affected by proposed rules. He calls on agencies to coordinate across agencies to identify rules that are redundant or inconsistent, and develop plans to periodically review existing regulations to determine if any are outmoded, ineffective or excessively burdensome. “The current executive order (12866) contains much of the same direction to agencies,” observes Celeste Monforton, DrPH, MPH, OHS Section member and regulatory expert. “I don’t see this new directive as a heavy lift for either OSHA or MSHA.” In addition, the president issued two other memorandums to agency heads, one called “Regulatory Flexibility, Small Business, and Job Creation, and the other titled “Regulatory Compliance.” In the first, the president writes: “In the current economic environment, it is especially important for agencies to design regulations in a cost-effective manner consistent with the goals of promoting economic growth, innovation, competitiveness, and job creation.“ He directs agency heads to assess whether a proposed rule will have a “significant economic impact on a substantial number of small entities,” and identify ways to make the rule more flexibility for small employers. OSHA and MSHA already make such determinations in the required regulatory flexibility analyses, and OSHA already goes one step further by convening special panels of small business representatives who would be affected by a proposed OSHA health or safety standard. These SBREFA panels (named after the law that requires them (Small Business Regulatory Enforcement Fairness Act)) give the small business reps the opportunity to review OSHA’s draft regulation before it is even proposed and make suggestions on ways to make it less burdensome. The memorandum called “Regulatory Compliance” says enforcement agencies, like MSHA and OSHA, should make their inspection, citation and related date available on-line, and develop means to share such data across agencies. Think of the possibilities: Does the company that has just been cited for illegal discharges into a waterway also violate worker safety or wage and hour rules? The big caveat with the President’s announcement is the phrase “to the extent feasible.” In other words, as their budgets allow. Given the financial constraints already in place at agencies, and promises from Capitol Hill to slash budgets further, this is a good idea whose time is years down the road.