On September 17, 2008, the House Education and Labor Subcommittee on Workforce Protections held a hearing entitled “Secret Rule: Impact of the Department of Labor’s Work Health Risk Assessment Proposal.”  The hearing examined a proposal from the Department of Labor’s Office of Policy to change and codify the risk assessment process, by which agencies evaluate if exposure to a toxic material poses a significant risk.  Agency decisions about whether to regulate a toxic material take into account risk assessments, as well as whether proposed regulations are technologically and economically feasible. 

This proposed rule has been referred to as the “secret rule” because it was not included in the Department of Labor’s semiannual regulatory agenda, was not originally published in the Federal Register, and the documents or advice that formed the basis of the proposed rule have not been disclosed.

Leon Sequeira, Assistant U.S. Labor Secretary for Policy, testified that the proposed rule merely codifies existing risk assessment best practices into a single easy-to-reference regulation.  The proposed rule would institute two new requirements: (1) agencies developing a health standard regulating occupational exposure to a toxic substance or hazardous chemical would be required to issue an Advanced Notice of Proposed Rulemaking (ANPRM) soliciting input including scientific studies and data, and (2) agencies would be required to post online documents relied upon in developing the risk assessment no later than fourteen days after the conclusion of the relevant rulemaking step that utilized those documents.

Randel Johnson, Vice President of the U.S. Chamber of Commerce, also spoke favorably about the proposed rule.  Johnson pointed out that because courts give risk assessments of federal agencies significant deference, it is important that the initial risk assessment is accurate.  Johnson stated that requiring an ANPRM would not necessarily slow down the regulatory process, but it would allow agencies to gather all relevant data and perfect the risk assessment as early as possible in the process.

Dr. Celeste Monforton of The George Washington University School of Public Health and Margaret “Peg” Seminario, Director of Occupational Health and Safety at AFL-CIO, both testified against the proposed rule.  Monforton characterized the current procedures for issuing occupational health-protective rules as “paralyzed,” and argued that the proposed rule would make it even more difficult and time-consuming to issue such protections.  Seminario argued that the current administration has consistently refused to set any new occupational health standards, but is now rushing to lock in place these new procedures to make it more difficult for the next administration to protect workers from known health risks. Seminario also pointed out that the proposed procedures would apply to rules currently in the regulatory process, none of which have had ANPRMs, but which would now be required.  Seminario also emphasized that even though the proposed rule would require the online publication of documents relied upon in formulating rules, the Department of Labor has yet to publish any of the documents it relied upon in formulating the so-called “secret rule.”

Subcommittee Chair Woolsey (D-CA), Rep. Payne (D-NJ), and Rep. Hare (D-IL) all asked the panel questions indicating their disapproval of the proposed rule.  In her concluding remarks, Chairwoman Woolsey announced her continued commitment to protecting the health of American workers by making sure that “any ill-conceived proposal will not see the light of day - particularly this one.”