Workplace Safety and Health: Multiple Challenges Lengthen OSHA's Standard Setting
Published: 2012-04-19T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: This testimony discusses 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.
The 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." 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.
section_title: What GAO Found
paragraphs: 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) 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 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.

section_title: Letter
paragraphs: 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. 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  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) 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  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.
subsections: section_title: Background
paragraphs: The basic process by which all federal agencies typically develop and  issue regulations is set forth in the Administrative Procedure Act (APA),  and is generally known as the rulemaking process. 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. 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. 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  regulatory actions prior to publication.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   These procedures  use to promulgate, modify, or revoke its standards. 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.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   According to an OSHA  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.
section_title: OSHA’s Standard- Setting Time Frames Vary Widely and Are Influenced by the Many Procedural Requirements and Other Factors
paragraphs: We analyzed the 58 significant health and safety standards OSHA issued  between 1981 and 2010 and found that the time frames for developing  and issuing them averaged about 93 months (7 years, 9 months), and  ranged from 15 months to about 19 years (see table 1).
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. For a depiction of the timelines for safety  and health standards issued between 1981 and 2010, see appendix I.
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). businesses. 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.
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.
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   According to OSHA officials, this more stringent standard  whole.” (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.
29 U.S.C. § 655(f).
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.
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   Another example is a 1992 decision in which a  current standard. 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.
section_title: OSHA Has Authority to Address Urgent Hazards through Emergency Temporary Standards, Enforcement, and Education
paragraphs: OSHA has not issued any emergency temporary standards in nearly 30  years, citing, among other reasons, legal and logistical challenges.  OSHA officials noted that the emergency temporary standard authority  remains available, but the legal requirements to issue such a standard— demonstrating that workers are exposed to grave danger and establishing  that an emergency temporary standard is necessary to protect workers  from that grave danger—are difficult to meet. Similarly difficult to meet,  according to officials, is the requirement that an emergency temporary  standard must be replaced within 6 months by a permanent standard  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   Under the general duty clause, OSHA has the  harm to their employees. 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.
29 U.S.C. § 654(a)(1).
section_title: Other Regulatory Agencies’ Experiences Offer Limited Insight into OSHA’s Challenges
paragraphs: Although the rulemaking experiences of EPA and MSHA shed some light  on OSHA’s challenges, their statutory framework and resources differ too  markedly for them to be models for OSHA’s standard–setting process.  For example, EPA is directed to regulate certain sources of specified air  pollutants and review its existing regulations within specific time frames  under section 112 of the Clean Air Act, which EPA officials told us gave  the agency clear requirements and statutory deadlines for regulating  hazardous air pollutants. 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.
section_title: Experts Suggested Many Ideas to Improve OSHA’s Standard-Setting Process, Including More Interagency Coordination and Statutory Deadlines
paragraphs: Agency officials and occupational safety and health experts shared their  understanding of the challenges facing OSHA and offered ideas for  improving the agency’s standard-setting process.involve substantial procedural changes that may be beyond the scope of  OSHA’s authority and require amending existing laws, including the OSH  Act.
Improve coordination with other agencies: Experts and agency  officials noted that OSHA has not fully leveraged available expertise  at other federal agencies, especially NIOSH, in developing and  issuing its standards. OSHA officials said the agency considers  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   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.  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  burdensome for agencies. 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.
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. 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.
section_title: Concluding Remarks
paragraphs: The process for developing new and updated safety and health standards  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.
section_title: GAO Contact and Staff Acknowledgments
paragraphs: For questions about this testimony, 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  statement. Individuals who made key contributions to this statement  include, Gretta L. Goodwin, Assistant Director; Susan Aschoff; Tim Bober;  Anna Bonelli; Sarah Cornetto; Jessica Gray; and Sara Pelton.
section_title: Appendix I: Timelines of Significant OSHA Safety and Health Standards
paragraphs: 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.