Labor Dept. Uses OMB To Aid Secret OSHA Midnight Deregulation

August 13, 2008

The White House is racing the clock to execute a secret 11th-hour effort to hamstring the next administration's ability to assess occupational health and safety risks that might need regulation.

Assistant Labor Secretary Leon R. Sequeira refused to disclose the administration proposal to the Washington Post, saying he could not do so without permission from the White House Office of Management and Budget (OMB). The Post obtained the text of the proposal nonetheless, summarizing it in a July 23, 2008, page one story. The proposal's handling appears to violate both the law and orders the White House has publicly issued to agencies.

The rulemaking in question, according to the Post, would add review steps to any risk assessment by the Labor Department's Occupational Safety and Health Administration (OSHA) — "making it harder to limit worker exposure to carcinogens and other dangerous chemicals in the workplace." OSHA rules protecting workers often protect nearby communities from environmental exposures.

The Administrative Procedure Act (APA) of 1946 requires that agencies do their rulemaking in the open and on the record — subject to public notice and comment, based on the idea that regulatory decisions should be based on publicly available evidence rather than backroom deals with political supporters. But OMB, using a number of laws and executive orders, has assumed increasing authority to dictate or overturn agency rulemaking. Claiming not to be bound by APA openness requirements, OMB has often served as a back-channel for closed-door pleadings by industry groups that make political donations to the President, critics charge.

The Bush Administration swept into office vowing to reverse all regulatory actions finalized in the last months of the Clinton administration — characterizing them as "midnight regulations." White House Chief of Staff Joshua Bolten ordered agencies in a May 9, 2008, memo to get all their regulatory proposals into the Federal Register by June 1 — ostensibly to avoid midnight regulation. But that order was interpreted by many as urging to get midnight regulations done early — and the administration now seems to be headlong into its own last minute rush to deregulate.

The Post inferred that the risk-assessment rule was being rushed through from the fact that it had been proposed after Bolten's June 1 deadline and had not been included in OSHA's regulatory agenda. OMB has been a stout supporter of the regulatory agenda as a tool for slowing hasty or ill-conceived rulemaking.

Rep. George Miller (D-CA) has introduced a bill to block the OSHA risk-assessment rulemaking. The rule change has still not been formally proposed. He called the move a "secret rulemaking."

While the Post vaulted the story to national attention, it was actually broken July 8 by SEJ member Celeste Monforton. Monforton, an environmental and occupational health researcher at George Washington Univ., posted it on an excellent but overlooked public health blog, The Pump Handle.