Draft House Republican Budget Would Block Prevention Program, I2P2, MSD Reporting Rules

Wednesday, October 05, 2011 – from Occupational Safety & Health Reporter™

House Appropriations Committee‘s Draft Labor-HHS-Education Bill for FY 2012

Key Provisions: House Republican bill provides $7.1 million more for OSHA, but blocks I2P2 and musculoskeletal disorder reporting rules and enforcement against small employers.

Potential Impact: Two of the administration’s signature rulemakings could be defunded if the bill is enacted, an unlikely outcome.

What’s Next: No subcommittee markup has yet been scheduled.

By Stephen Lee

House Republicans released a draft fiscal 2012 funding bill Sept. 29 that seeks to raise the Occupational Safety and Health Administration‘s budget by $7.1 million, to $565.7 million, an amount greater than what the Senate approved eight days earlier.

However, the draft bill to fund the departments of Labor, Health and Human Services, and Education, circulated by the House Appropriations Committee, also contains riders that would defund two OSHA rulemakings pegged as top priorities for the administration: the injury and illness prevention program and the recordkeeping rule for musculoskeletal disorders (MSDs).

Under the so-called prevention program rule, employers would bear the responsibility for finding and fixing safety and health hazards in their own workplaces. David Michaels, assistant secretary of labor for occupational safety and health, has called the rule his top regulatory priority. No regulatory text has yet surfaced; nor has OSHA convened a small business review of the proposed rule.

The agency’s MSD reporting rule would add a check box to the OSHA Form 300, which employers use to track injuries on the job. The rule was temporarily withdrawn in January so OSHA could collect more input from small businesses. According to OSHA’s spring regulatory agenda, the agency’s most recent action on the rule was to analyze the docket in July (41 OSHR 622, 7/14/11).

Business interests have voiced firm objections to both rulemakings, calling them overly burdensome and harmful to job creation.

Roofing Directive Also Targeted.

Another rider in the draft bill would defund the residential roofing compliance directive that generally requires workers in that sector to use conventional fall protection, such as harnesses and guard rails, unless it can be shown that they pose more of a risk to workers than nonconventional methods, such as slide guards (41 OSHR 808, 9/22/11).

The bill also includes language that would prevent OSHA from taking enforcement actions against small employers with 10 or fewer workers that have Days Away, Restricted, or Transferred (DART) rates lower than the national average for their sector.

That language has been featured in other appropriations bills, including the Senate Democratic-sponsored measure for fiscal 2012, as well as previous years’ funding measures (41 OSHR 827, 9/29/11).

“This common-sense plan is built on the simple idea that the economy isn’t just a bunch of numbers,” Rep. Denny Rehberg (R-Mont.), the Labor-HHS-Education subcommittee chairman, said in a Sept. 29 statement. “This bill is about investing in people and creating the jobs they need by funding things like education to empower innovation and restore American ingenuity, and freeing employers from stifling government regulatory burdens that replace productivity with paperwork.”

But Rep. Rosa DeLauro (D-Conn.), a member of the subcommittee, said in a Sept. 29 statement that many of the bill’s riders are “highly controversial, and most [deal] with complicated subjects well outside the expertise of the appropriations committees.”

Labor Backers Object to Riders.

The same point was made by Justin Feldman, Public Citizen’s worker health and safety advocate, in a Sept. 29 interview with BNA.

“Rulemakings have become incredibly politicized in a way they never were before,” Feldman said. “That’s made it difficult for OSHA and other regulatory agencies to do their jobs. And Congress does not have the technical expertise to be weighing in on this level of detail. The workers lose in the end.”

Moreover, according to Feldman, OSHA’s regulatory process is already glacially slow.

“This [bill] would just set their efforts back even further,” he said. “And the MSD check box rider proves that it’s all about ideology and not about costs at all, because that was less than a dollar in costs. It’s just about carrying out the [U.S.] Chamber of Commerce’s ideological agenda.”

In the preamble to its MSD rule, OSHA estimated the costs of complying with the rule at $4 for familiarization and 67 cents for each musculoskeletal disorder recorded (40 OSHR 89, 2/4/10).

Small Business Rider a Carryover.

In response to the rider exempting small businesses from enforcement, David Sarvadi, an industry attorney with Keller and Heckman LLP, said the idea made sense.

“If small employers aren’t having significant numbers of significant injuries, why should OSHA be focusing on them anyway?” Sarvadi asked. “They’re supposed to be focusing on people who are having problems and compliance issues.”

Eric Frumin, health and safety director at Change to Win, agreed generally that OSHA should not spend its enforcement resources on small employers with low DART rates.

However, he said, “small businesses are high-risk businesses, and giving a pass to employers below the average means the average isn’t going to change much. To me, deterrence is an important part of this whole picture, and this [rider] eliminates it.”

“I think it’s unfortunate that [House Republicans’] response to any attempt at promulgating regulations to protect the public’s health and safety is, ‘Just say no,’ ” Tom O’Connor, executive director of the National Council for Occupational Safety and Health, told BNA Sept. 29. “That’s their only answer to any proposal. There’s no attempt to have a reasonable negotiation, there’s no recognition of an appropriate role for government in protecting the public’s health and safety. It strikes me as completely non-viable way to govern.”

Rehberg said that by using tax dollars strategically, “we can balance critical funding for programs that actually help people and families with the real need to rein in government over-spending.”

Funding Level Higher Than Senate’s.

The fiscal 2012 funding level set out in the bill would raise OSHA’s overall budget by 1.3 percent, which outstrips the 0.4 percent increase approved by the full Senate Appropriations Committee on Sept. 21. However, the House funding level is also $17.7 million less than President Obama’s request (41 OSHR 135, 2/17/11).

The draft bill also directs $104.2 million for state plan grants, but does not set forth any other specific line item spending levels, as well as $11.7 million for the Occupational Safety and Health Review Commission, the same amount it received in fiscal 2011.

A subcommittee markup of the draft bill has been scheduled at least twice within the past few months, but cancelled both times. No new date has yet been scheduled.

On Sept. 30, a House Republican aide told BNA that Rehberg “hopes to” reschedule a markup. DeLauro, however, said Sept. 29 she was “very concerned by reports that the chairman has no plans” to have the subcommittee meet to consider and mark up the bill.

Bill Faces Long Odds.

“The fact that [House Republicans] don’t give a date makes it look questionable,” Frumin said. “That’s a clear sign that they’re not ready to proceed, and it doesn’t surprise us. Republicans on the committee are badly split, and it’s hard to imagine they would not be fighting over something as simple as level funding for OSHA.”

Moreover, “given that, if all that is true, it’s hard to envision how the Republicans will negotiate an agreement with the Senate,” Frumin said.

Marc Freedman, executive director of labor law policy at the U.S. Chamber of Commerce, agreed that funding bills in the current environment face long odds of passage.

“The history of the Labor-HHS bill being passed outright, or as a freestanding bill, is very, very short,” Freedman told BNA Oct. 3. “As a result, how the Department of Labor is going to get funded going forward is still unclear.”

Freedman said he anticipated “lot of problems, with a Republican House and a Democratic Senate. This bill usually contains so many different policy areas that the two political parties don’t agree on. Coming to some type of unified bill is extraordinarily difficult.”

OSHA’s current $558.6 million budget has been extended, in a series of short-term continuing resolutions, at the fiscal 2010 level (39 OSHR 1062, 12/17/09).

By Stephen Lee

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