With much of the regulatory process crimped by the partial government shutdown, labor and consumer groups are crying foul on the Friday release of a controversial final rule on workplace injury reporting by the Labor Department’s Occupational Safety and Health Administration.
The rule is characterized by OSHA as designed to protect worker privacy by ending a May 2016 Obama administration requirement that large firms regularly report worker illnesses electronically. Though there was no statutory deadline or threat of damage to life or property, the regulatory rollback was approved on Jan. 17 by the White House Office of Information and Regulatory Affairs, where the staff was reduced by the lapse in appropriations.
A coalition of labor and consumer groups on Friday filed suit against the move taken during a shutdown to roll back the major Obama administration rule.
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“By preventing routine government collection of information that may be quite sensitive, including descriptions of workers’ injuries and body parts affected, OSHA is avoiding the risk that such information might be publicly disclosed under the Freedom of Information Act,” the regulatory agency said in a Jan. 24 announcement to trade groups. “In addition, this rule will allow OSHA to focus its resources on initiatives that its past experience has shown to be useful—including continued use of information from severe injury reports that helps target areas of concern.”
But labor groups have argued for months against the rule change, miffed that OIRA had denied them a requested meeting just days before the shutdown began on Dec. 22. AFL-CIO health and safety director Peg Seminario sent an email to OIRA stating that she was “surprised and disturbed to see that review of deregulatory actions is apparently considered an essential function, but involving the public in this process is not.”
In a December statement, Seminario also said, “Instead of increasing life-saving measures aimed at protecting working people at their workplaces, the Trump administration is rolling back existing safety and health rules and has failed to move forward on any new safety and health protections.”
Asked for comment, OSHA official Francis Meilinger referred Government Executive to the Office of Management and Budget, which did not respond—perhaps due to the shutdown that has reduced OMB’s personnel from 488 to 161, according to its December shutdown contingency plan.
OIRA itself noted the shutdown impact on its Reginfo.gov website with a Jan. 7 statement: “DURING THE LAPSE OF APPROPRIATIONS, the Office of Information and Regulatory Affairs is conducting review of regulatory actions that are deemed excepted activity; therefore, the Regulatory Review Dashboard will be updated. Please contact us at email@example.com to determine whether OIRA is accepting meetings with outside parties for any particular regulatory action under review.”
But the developments raise larger questions about the functioning of the regulatory process and the Federal Register during a shutdown. Though several rules appeared in its Friday issue, the website for the register contains this disclaimer: "During the funding lapse, Federalregister.gov is not being supported. If data feeds are not available from [the Government Publishing Office], FederalRegister.gov will not be updated, so please use the official edition of the Federal Register on Govinfo."
Sam Berger, an attorney who worked for OMB during the 2013 shutdown now with the Center for American Progress, pointed to the shutdown procedure standard being used in the Federal Register, as published in a bulletin by the National Archives and Records Administration. Under the Jan. 14 Justice Department guidance, he said in an email to Government Executive, “funded agencies [must show] delaying publication until the end of the [shutdown] would prevent or significantly damage the execution of funded functions at the agency."
For OIRA, he said, the standard “is the same for any part of government that isn’t funded, but that works with funded agencies. If the rule is excepted (for example, necessary to protect life and property) then OIRA can bring staff on to review,” he added, arguing that OIRA can’t justify bringing back furloughed employees to process the OSHA rule. If the agency is funded (as is the Labor Department), “then OIRA can only bring staff on if not moving forward with the rule during the shutdown would prevent or undermine the funded function.”
Robert Weissman, president of Public Citizen, on Thursday sent a note to his allies in the Coalition for Sensible Safeguards saying, “Although shut down, OIRA is apparently still open for business – that is, for business. Public Citizen is currently litigating a case on behalf of ourselves, the American Public Health Association, and the Council of State and Territorial Epidemiologists. In that case, we are challenging the administration’s suspension, without notice-and-comment, of the electronic submission requirements.”
The suit filed Friday in U.S. District Court for the District of Columbia charges Labor Secretary Alexander Acosta, his department and OSHA with violations of the 1946 Administrative Procedure Act. “The Rollback Rule should be declared unlawful and set aside,” it argued, “because OSHA has failed to provide a reasoned explanation for its change in position, failed to adequately consider comments submitted in opposition to the change, and relied on considerations that have no sound basis in law.”