A Tale of Two Rules: Washington Bureaucracy and the Politics of Workplace Safety

Mike Elk

WASH­ING­TON, D.C. — Many laws are pro­posed in this town, but only some are passed. The same is true of reg­u­la­tions — except the White House Office of Man­age­ment and Bud­get (OMB), rather than Con­gress, is in con­trol of the process.

A look at the dif­fer­ent fates of two dif­fer­ent work­place safe­ty rules reveals the Oba­ma admin­is­tra­tion’s elec­tion year pri­or­i­ties, work­place safe­ty advo­cates say. As I’ve report­ed, OMB has for more than 14 months delayed imple­men­ta­tion of a pro­posed Occu­pa­tion­al Safe­ty and Health Admin­is­tra­tion (OSHA) rule that reg­u­lates work­ers’ expo­sure to can­cer-caus­ing sil­i­ca dust. But it recent­ly required less than one month to approve (and send out for pub­lic com­ment) a USDA rule that could harm the safe­ty of poul­try work­ers. It typ­i­cal­ly takes the OMB about 90 days to release a pro­posed reg­u­la­tion for pub­lic review.

OSHA’s efforts to con­trol seri­ous, unreg­u­lat­ed work­place haz­ards — includ­ing sil­i­ca, com­bustible dust and oth­ers — are far too slow,” says Change to Win Health and Safe­ty Direc­tor Eric Fru­min. When it is up to OSHA to fix these prob­lems them­selves, they have shown they can do that quick­ly. But for decades, OSHA has had to con­front severe indus­try pres­sures via con­gres­sion­al oppo­si­tion, White House inter­fer­ence and hys­ter­i­cal media accounts.” 

In a state­ment to In These Times explain­ing why the sil­i­ca rule has been held up for 14 months, OMB spokes­woman Moira Mack said The admin­is­tra­tion works as expe­di­tious­ly as pos­si­ble on rules. When it comes to com­plex safe­ty rules, it is crit­i­cal that we get it right.” 

Crit­ics of the rule, such as Pub­lic Cit­i­zen, dis­pute that the OMB to delay putting out for pub­lic com­ment, and into effect. 

They try to act like they are care­ful­ly con­sid­er­ing the rule and get­ting input from stake­hold­ers,” says Celeste Mon­for­ton, who lec­tures at George Wash­ing­ton University’s School of Pub­lic Health. The thing about the sil­i­ca rule is that all that any­one is ask­ing for is that it be pub­lished in the fed­er­al reg­is­ter so that pub­lic dia­logue with stake­hold­ers can begin. There has­n’t been a pub­lic pro­pos­al that we can focus on.” 

Work­place safe­ty advo­cates say that OMB pulled out all the stops to get the USDA poul­try inspec­tion rule pub­lished quick­ly for pub­lic com­ment. The rule would increase the num­ber of chick­ens mov­ing down a slaugh­ter­house pro­duc­tion line from approx­i­mate­ly 75 – 91 birds a minute to 175 birds a minute, accord­ing to the Unit­ed Food and Com­mer­cial Work­ers (UFCW), which rep­re­sents work­ers in the poul­try indus­try. OMB received the USDA poul­try rule on Decem­ber 7, 2011, con­clud­ed their review of the rule on Jan­u­ary 20, 2012, and USDA pub­lished the rule in the Fed­er­al Reg­is­ter on Jan­u­ary 27

Crit­ics say OMB did not even con­sult with OSHA offi­cials before approv­ing the rule.

USDA did not con­tact OSHA, the agency respon­si­ble for pro­tect­ing the health and safe­ty of Amer­i­can work­ers, before pub­lish­ing this pro­posed rule. This sets an alarm­ing prece­dent for all agen­cies that may want to use admin­is­tra­tive rule­mak­ing to change poli­cies that could weak­en health and safe­ty pro­tec­tions for work­ers,” the UFCW said in a recent­ly online e‑mail petition.

But Cass Sun­stein, the head of OMB’s Office of Infor­ma­tion and Reg­u­la­to­ry Affairs (OIRA), which Sen­a­tor Tom Harkin crit­i­cized last week in an inter­view with In These Times for hold­ing up key work­place safe­ty rules, cit­ed the USDA rule as an exam­ple of progress.

Writ­ing in The Chica­go Tri­bune, Sun­stein said, The Depart­ment of Agri­cul­ture has pro­posed to stream­line anti­quat­ed poul­try inspec­tion require­ments, allow­ing com­pa­nies to choose a more flex­i­ble approach with five-year sav­ings in excess of $1 billion.”

Cen­ter for Pro­gres­sive Reform Pres­i­dent Rena Stein­zor says there’s a dou­ble stan­dard at work inside the OMB.

It would seem that OIRA’s enthu­si­asm for a dereg­u­la­to­ry tro­phy to wave in the air prompt­ed a short-cir­cuit­ing of the vaunt­ed inter­a­gency review’ it so strong­ly favors when a pro­tec­tive EPA rule is involved,” Stein­zor says. Sun­stein takes great umbrage at the notion that he and his staff are any­thing but neu­tral pol­i­cy ana­lysts who objec­tive­ly assess reg­u­la­to­ry mat­ters, pro­vid­ing bad­ly need­ed smart and pen­e­trat­ing review no mat­ter which way the issues cut. Yet in this, as in so many oth­er exam­ples, OIRA greas­es the skids toward dereg­u­la­tion, while the skids that favor pro­tec­tion of pub­lic health, work­er and con­sumer safe­ty, and the envi­ron­ment are sticky indeed.”

An OMB spokesper­son would not com­ment on why the agency approved the USDA poul­try rule so quick­ly, in con­trast to the sil­i­ca dust rule. As a mat­ter of a pol­i­cy OMB does not com­ment on reg­u­la­tion that is cur­rent­ly under review,” Mack told In These Times.

Stein­zor thinks pol­i­tics is the moti­vat­ing the fac­tor. This is the great effort to prove to the Cham­ber of Com­merce that Pres­i­dent Oba­ma is [a] friend,” says Stein­zor. He gets his base upset in an effort to make him­self look rea­son­able to inde­pen­dent vot­ers, but what real-life inde­pen­dent vot­ers even know about this rule?”

Mike Elk wrote for In These Times and its labor blog, Work­ing In These Times, from 2010 to 2014. He is cur­rent­ly a labor reporter at Politico.
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