Washington Update: The silica effect

OSHA’s August release of its proposed rule on crystalline silica came after more than two years of White House review – something that may have set a worrisome precedent.

Most significant proposed rules undergo a period of review by the Office of Information and Regulatory Affairs, which is located in the White House’s Office of Management and Budget. Under an executive order, OIRA is limited to a 90-day review period. The review of OSHA’s silica proposal took 10 times as long, clocking in at 921 days.

The review process is intended to allow the administration to provide feedback to agencies. But the silica proposal OSHA ultimately put forth is consistent with how the agency has issued other health regulations, and the proposal lines up with recommendations NIOSH made nearly 40 years ago. So what was happening during the two-and-a-half years of review?

“That’s an excellent question that no one seems to answer,” Celeste Monforton said. Monforton, a professorial lecturer at the George Washington University School of Public Health and Health Services, has been following OSHA’s pursuit of a silica rule for several years, and claims no other proposed rule in OIRA’s history has taken this long to review.

Although it is possible the two-and-a-half-year review period was full of feedback being sent to OSHA, details of the correspondence between the administration and OSHA on the silica rulemaking process have not been released.

Regardless, Monforton questions how much input the administration could have provided during the long review period – because, she said, the people in the government with the most knowledge on silica already either work for OSHA or NIOSH. Additionally, it has been suggested that the review period was spent developing analyses supporting the rule, but Monforton believes this is unlikely, as OSHA does such work before sending the rule to OIRA.

The prolonged review of the silica proposal may not be limited to a single rule and a single review period, however – it could affect the review processes of the final silica rule and other developing rules.

Domino effect

A proposed rule is simply a collection of ideas that may or may not become law, but a final rule is the requirement the government intends to put into effect. Any final rule OSHA submits to OIRA results in a much more scrutinized review, according to Monforton. Given recent history, this could lead to even longer delays.

“Historically, the review for the final rule is much longer,” Monforton said. “If a review takes 900 days for a proposal, what in the world will the time period be for a final rule?”

As President Barack Obama has a little more than three years left in his final term, OSHA could find itself in a crunch if it wants to issue a final silica rule before the end of the current administration.

The Obama administration could be setting itself up for blowback from opposition if the final silica rule has a shorter review period than the proposed rule. Monforton pointed out that critics could complain the administration is attempting to rush out a “midnight regulation.”

Other rulemakings also could be affected. At press time, a proposed rule modernizing OSHA’s injury reporting system and a final rule on electrical safety have been under OIRA review for more than a year. Because the proposed silica rule is largely supported by stakeholders – with the exception of the strengthened permissible exposure limit – it’s conceivable that a more controversial rule could undergo a far longer review period.

“It does not bode well for what we’ll see in the future,” Monforton said.

The opinions expressed in “Washington Update” do not necessarily reflect those of the National Safety Council or affiliated local Chapters.