[Federal Register Volume 74, Number 167 (Monday, August 31, 2009)]
[Proposed Rules]
[Pages 44795-44797]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-20923]


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DEPARTMENT OF LABOR

Office of the Secretary

29 CFR Part 2

RIN 1290-AA23


Requirements for DOL Agencies' Assessment of Occupational Health 
Risks

AGENCY: Office of the Secretary; Office of the Assistant Secretary for 
Policy.

ACTION: Proposed rule; withdrawal.

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SUMMARY: The Department of Labor (``Department'' or ``DOL'') is 
withdrawing its proposed rule governing DOL agencies' assessment of 
occupational health risks. The proposed rule sought to compile 
Department procedures related to risk assessment into a single 
regulation and included new requirements aimed at establishing 
consistent procedures intended to promote greater public input and 
awareness of the Department's health rulemakings.

DATES: This withdrawal is effective on August 31, 2009.

FOR FURTHER INFORMATION CONTACT: Kathleen Franks, Office of Regulatory 
and Programmatic Policy, Office of the Assistant Secretary for Policy, 
U.S. Department of Labor, (202) 693-5959. This is not a toll-free 
number. Individuals with hearing or speech impairments may access the 
number above via TTY by calling the toll-free Federal Information Relay 
Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Background

    On August 29, 2008, the Department published in the Federal 
Register (73 FR 50909 Aug. 29, 2008) a notice of proposed rulemaking 
(NPRM) to codify DOL's internal risk assessment procedures for health 
standard rulemakings that address workplace exposure to toxic 
substances and hazardous chemicals. The NPRM stated that it summarized 
and would codify DOL agencies' existing risk assessment paradigm and 
requested public comment on two specific procedural requirements: A new 
requirement that DOL agencies issue an Advance Notice of Proposed 
Rulemaking (ANPRM) as a first step whenever developing a health 
standard that would regulate workplace exposure to toxic substances or 
hazardous chemicals; and a requirement that DOL agencies electronically 
post all documents relied upon to develop such health standards within 
fourteen days of each regulatory step. Because the Occupational Safety 
and Health Administration (OSHA) and the Mine Safety and Health 
Administration (MSHA) are the only two agencies within the Department 
that issue health standards related to toxic substances and hazardous 
chemicals, it was anticipated that the proposed rule would affect only 
those agencies.
    The Department accepted public comment on the NPRM for a period of 
30 days. While some interested parties, including members of Congress, 
urged DOL to extend the public comment period and requested that the 
Department hold public hearings on the proposal, the Department 
declined these requests due to its desire to adhere to the originally 
published timeframe for completion of this rulemaking.
    The Department received comments in response to the NPRM from a 
variety of sources, including members of Congress, private citizens, 
labor unions, worker advocacy organizations, industry associations, 
employer groups, and risk assessment experts. The majority of the 
commenters were opposed to the rulemaking.\1\
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    \1\ Comments are available for review at http://www.regulations.gov. Reference Docket Number: DOL-2008-0002.
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II. Reasons for Withdrawal of Proposed Rule

    After careful review of the comments and upon reconsideration of 
the issues involved in this rulemaking, the Department has decided to 
withdraw the proposed rule. As described below, the two proposed 
requirements are unnecessary. Moreover, given the nature of the issues, 
the Department believes that it is more useful to continue describing 
its internal risk assessment policies through guidance rather than 
through promulgation of a regulation.
    Proposed ANPRM Requirement. The proposal would have required DOL 
agencies to issue an ANPRM in every rulemaking for a health standard 
involving toxic substances or hazardous chemicals, apart from emergency 
temporary standards. Many commenters were opposed to this new 
requirement. See, e.g., Exs. 7.1; 16.1; 42.1; and 48.1.\2\ Some 
commenters, including members of Congress and Senators, employer 
groups, and worker advocacy organizations claimed that an ANPRM is not 
always useful and that imposing an ANPRM requirement in a health 
standard rulemaking when it was not necessary would unduly delay the 
rulemaking. See, e.g., Exs. 32.1; 37.1; and 42.1. They argued that this 
in turn could harm workers by unnecessarily delaying the introduction 
of the health protections required by the standard. Labor unions and 
worker advocacy organizations also claimed that requiring an 
unnecessary ANPRM would divert agency resources from other rulemaking 
efforts. See, e.g., Exs. 45.1 and 48.1.
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    \2\ ``Ex.'' Refers to exhibits included in the rulemaking 
docket, which can be referenced using the URL provided in Footnote 
1, supra.
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    The current policy of both OSHA and MSHA is to publish an ANPRM 
only if the agency believes it will be beneficial to the rulemaking. 
This decision is made on a case-by-case basis. In light of the comments 
to the proposal and after reconsideration of the proposed ANPRM 
requirement, the Department has determined that OSHA and MSHA should 
continue to follow their current ANPRM policy.
    The Department believes that an ANPRM can be a valuable part of the 
rulemaking process in the right circumstances, but that an inflexible 
requirement would not fit the varied circumstances in which rulemakings 
are conducted and could cause unnecessary delays. When an agency lacks 
important information needed to develop an effective proposed rule, an 
ANPRM provides one means of attempting to obtain that information. 
However, there are times when an agency has sufficient information to 
issue a successful proposed rule without taking that step. Avoiding an 
ANPRM in these situations allows the agency to more effectively use its 
rulemaking resources. There are also many other ways in which OSHA and 
MSHA can obtain needed information without using an ANPRM, such as 
holding stakeholder meetings, conducting surveys, consulting advisory 
committees, doing site visits, issuing Requests for Information, 
conducting peer reviews, and, in the case of OSHA, obtaining small 
entity (including small business) input through procedures required by 
the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 
609(b)). By allowing the agency to decide whether or not to use an 
ANPRM for a rulemaking, the agency retains flexibility to choose the 
information gathering methods that it has determined will best fit each 
individual situation.
    Proposed Electronic Posting Requirement. The proposal would have 
required the Department to make

[[Page 44796]]

available, on http://www.regulations.gov or http://www.dol.gov, ``all 
relevant documents related to a rulemaking addressing occupational 
exposure to toxic substances and hazardous chemicals no later than 
fourteen days after the conclusion of the relevant rulemaking step that 
relied upon or utilized those documents.'' 73 FR at 50914. Commenters 
such as some industry associations and employer groups, who addressed 
this issue generally supported the electronic posting requirement and 
its goal of transparency in rulemaking. See, e.g., Exs. 11.1; 25.1; 
32.1; and 38.1. Several commenters, including labor unions, other 
employer groups, and industry associations however, pointed out that 
the Department is already required to, and does, make rulemaking 
information available online. See, e.g., Exs. 17.1; 32.1; and 35.1. 
Indeed, the E-Government Act of 2002 requires all federal agencies to 
maintain a publicly accessible website containing electronic dockets 
for rulemakings. Public Law No. 107-347, Title II, 201 to 216 (codified 
as 44 U.S.C. 3501 note), at 206(d)(1). All public comments, as well as 
``other materials that by agency rule or practice are included in the 
rulemaking docket'' are required to be made available to the public via 
the electronic docket. Public Law No. 107-347, Title II, at 
206(d)(2)(A), (B). To implement the E-Government Act and provide the 
public with a single government-wide access point for rulemaking 
information and submissions, federal agencies were required to 
consolidate all electronic rulemaking dockets on http://www.regulations.gov. Office of Management and Budget (OMB), 
Implementation Guidance for the E-Government Act of 2002, M-03-18 (Aug. 
1, 2003), available at http://www.whitehouse.gov/omb/memoranda/m03-18.pdf. The E-Government Act built on previous efforts to use 
information technology to provide citizens with easier access to 
government information and participation. See, e.g., OMB, Redundant 
Information Systems Relating to On-Line Rulemaking Initiative, M-02-08 
(May 6, 2002), available at http://www.whitehouse.gov/omb/memoranda/m02-08.pdf.
    Pursuant to the E-Government Act, it is the practice of both OSHA 
and MSHA to post, in a timely manner, information relevant to agency 
rulemakings on http://www.regulations.gov. This includes the posting of 
all scientific studies that are relied upon in the rulemaking. The 
Department has determined, therefore, that the proposed electronic 
posting requirement is duplicative of E-Government Act requirements and 
is not needed.
    Other Requirements. The proposed regulatory text also stated that 
agency risk assessments must, when the data are available, use 
industry-by-industry evidence relating to working life exposures. 
Proposed 29 CFR 2.9(c)(3), 73 FR at 50915. Of the commenters that 
discussed the ``industry-by-industry'' language, the majority, 
including members of Congress and Senators, risk assessment experts, 
worker advocacy organizations, and labor unions viewed it as a 
departure from the Department's existing longstanding practice of using 
a 45-year working life assumption for selecting exposure limits for 
health standards. See, e.g., Exs. 18.1; 23; 28.1; 42.1; and 48.1. Some 
employer groups and industry associations, however, expressed support 
for using industry-specific data to develop working life assumptions. 
See, e.g., Exs. 27.1; 31.1; and 35.1.
    Section 6(b)(5) of the Occupational Safety and Health Act requires 
the agency to regulate in a manner that ``most adequately assures * * * 
that no employee will suffer material impairment of health or 
functional capacity even if such employee has regular exposure to the 
hazard * * * for the period of his working life.'' 29 U.S.C. 655(b)(5). 
The Mine Act has nearly identical language, except that it refers to 
miners rather than employees. 30 U.S.C. 811(a)(6)(A). To implement 
these provisions, it has been the Department's longstanding practice to 
use a general 45-year working life assumption. This practice is not 
based on empirical data that most employees are exposed to the hazard 
for 45 years. Rather, it is based on the statutory directive that ``no 
employee'' suffer material impairment ``even if'' such employee is 
exposed for the period of his or her working life. The Department's 
practice of using a 45-year working life has won judicial approval. 
See, e.g., Building and Constr. Trades Dep't, AFL-CIO v. Brock, 838 
F.2d 1258, 1264-65 (D.C. Cir. 1987) (explaining that the assumption of 
a 45-year working life ``appear[ed] to conform to the intent of 
Congress''); for examples of DOL standards using a 45-year working 
life, see Asbestos, 51 FR 22612, 22648 (June 20, 1986); Bloodborne 
Pathogens, 56 FR 64004, 64031 (Dec. 6, 1991); Diesel Particulate Matter 
Exposure of Underground Coal Miners, 66 FR 5526, 5663-64 (Jan. 19, 
2001); Hexavalent Chromium, 71 FR 10100, 10224 (Feb. 28, 2006).
    OSHA and MSHA have not conducted separate industry-by-industry 
analyses of working life for their risk assessments. The Department has 
consistently rejected the claim that it must conduct a separate risk 
assessment for each industry regulated by a standard. Public Citizen 
Health Research Group v. U.S. Dep't of Labor, 557 F.3d 165, 186-188 (3d 
Cir. 2009); American Dental Ass'n v. Martin, 984 F. 2d 823, 827 (7th 
Cir. 1993); UAW v. OSHA, 37 F.3d 665, 670 (D.C. Cir. 1994); Control of 
Hazardous Energy Sources (Lockout/Tagout), OSHA Supplemental Statement 
of Reasons, 58 FR 16612-02, 16620-16621 (Mar. 30, 1993).
    Guidance versus Regulation. The Department received a small number 
of comments, from risk assessment experts, policy groups, and labor 
unions that questioned the need for a regulation when it was possible 
to issue internal guidance instead. All of these commenters argued that 
the risk assessment rulemaking was unnecessary because the Department 
already has risk assessment guidance and because guidance rather than 
regulation is the more appropriate format for such internal Department 
procedures. See, e.g., Exs. 26.1; 32.1; 46.1; and 48.1. Upon 
reconsideration of this issue, the Department has concluded that a risk 
assessment rulemaking is not necessary. The Department believes that 
guidance, as opposed to regulation, is a more suitable vehicle for its 
internal risk assessment procedures and allows the Department more 
flexibility to quickly adapt and improve its risk assessment procedures 
in the future. Compared to changes to internal guidance, changes to a 
regulation would take far more time and require a lengthy notice and 
comment rulemaking.
    Other Issues. There were a number of other issues addressed in 
public comments to the proposed rule. These issues included: (1) 
Whether the rule was a ``significant regulatory action'' under 
Executive Order 12866, thus requiring a cost/benefit analysis before 
promulgating the rule; (2) whether the rule was substantive or 
procedural and, if substantive, whether proper rulemaking procedures 
were followed; (3) whether the rule was appropriately issued under 5 
U.S.C. 301; and (4) whether the Assistant Secretary for Policy had a 
proper delegation of authority to issue the rule. The Department notes 
that these and other issues raised by commenters, while important, are 
no longer relevant given the Department's decision to terminate the 
rulemaking.
    Withdrawal. For the reasons discussed above, the Department is 
withdrawing its risk assessment

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rulemaking, effective on August 31, 2009.

    Authority and Signature.
Megan Uzzell,
Acting Assistant Secretary for Policy.
[FR Doc. E9-20923 Filed 8-28-09; 8:45 am]
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