AMERICAN SOCIETY OF SAFETY ENGINEERS

White Paper
Effective Reorganization for NIOSH
September 2004

Summary
  • NIOSH is a federal institute placed within CDC. CDC is currently undergoing reorganization, as part of its “Futures Initiative.” Under the plan, NIOSH will be clustered with several environmental health agencies into the Coordinating Center for Environmental Health, Injury Prevention, and Occupational Health. None deal with occupational safety and health issues.
  • Within CDC, the relative importance of NIOSH as reflected in CDC's budget has steadily decreased over the years. The Administration's proposed FY 2005 budget for NIOSH is $279 million, only about two dollars per worker per year for its mission. Another HHS institute, the National Institute for Environmental Health Sciences was created about the same time as NIOSH with a similar budget. NIEHS' FY 2005 proposed budget of $650 million – 233 percent more than NIOSH.
  • All of NIOSH's main functions involve working cooperatively with OSHA and MSHA in an advisory capacity. It is logical to relocate NIOSH to an independent agency status within the U.S. Department of Labor, much like the Bureau of Labor Statistics. In the beginning there may have been good reason to locate NIOSH away from the Department of Labor to ensure independence, the risks of NIOSH's losing its independence now pale in comparison to the weak budgetary support it has received over the years as part of CDC, its isolation in CDC among health-related agencies, and its apparent demotion in the CDC organizational structure.
Statutory Charge

Both the National Institute for Occupational Safety and Health (NIOSH) and the Occupational Safety and Health Administration (OSHA) were created under the same statute, the Occupational Safety and Health Act of 1970 (OSH Act), 29 U.S.C. § 651 et seq. Established in Sec. 22 of the OSH Act, 29 U.S.C. §6711 , NIOSH was placed within the Department of Health, Education and Welfare, which later became the Department of Health and Human Services. The research, training and education activities assigned to NIOSH under the Act are contained in Sections 20 and 21, 29 U.S.C. §669 and §670. NIOSH was tasked with developing and establishing recommended occupational safety and health standards, conducting research, providing information on toxic substances and training occupational safety and health professionals.

When Congress established NIOSH as a separate institute, it was with the expressed intent of “provid[ing] occupational safety and health research with the visibility and status it merits" and "elevat[ing] the status of occupational safety and health research." Under the “Javits Amendment” to the OSH Act, the creation of NIOSH was aimed at elevating the status of occupational safety and health research to place it on an equal footing with research conducted by HEW in other public health matters2. Additionally, the “Javits Amendment” maintained that the research and recommendations of NIOSH “will be of critical importance in continually improving occupational safety and health standards under this act.”3 Today, NIOSH's work directly impacts 130 million workers in the United States, showing the continued relevance of the agency's mission.

The Federal Mine Safety and Health Act of 1977 also created a role for NIOSH in mine safety and health programs. Section 103 of the Mine Act gives NIOSH personnel the same rights of entry into mines as provided to Mine Safety and Health Administration enforcement personnel, in order to facilitate NIOSH's work in conducting research, sampling for toxic substances, and developing appropriate training materials. NIOSH was specifically directed to develop and publish, within three years after enactment of the Mine Act, a list of all substances found in mines that are toxic at the concentrations in which they normally occur. The Secretary of Labor was directed to coordinate with NIOSH in developing mining standards governing toxic materials and harmful physical agents at mine sites in the United States.

Section 501(a) of the Mine Act additionally directs the Secretary of HEW, through NIOSH, 4 to conduct such studies, research, experiments, and demonstrations as may be appropriate--


1 The Senate Report indicates that, when it enacted the OSH Act, Congress intended that NIOSH would perform all of the research previously conducted by the Bureau of Occupational Safety and Health (“BOSH”) in the Health Services and Mental Health Administration of the Department of Health, Education and Welfare.

2 U.S. Code and Congressional News, 91 st Congress, 2 nd Session, pp. 5221-2.

3 Id at 5221.

4 Section 303(a)(2) of the Mine Act.


(1) to improve working conditions and practices in coal or other mines, and to prevent accidents and occupational diseases originating in the coal or other mining industry;
(2) to develop new or improved methods of recovering persons in coal or other mines after an accident;
(3) to develop new or improved means and methods of communication from the surface to the underground area of a coal or other mine;
(4) to develop new or improved means and methods of reducing concentrations of respirable dust in the mine atmosphere of active workings of the coal or other mine;
(5) to develop epidemiological information to

(A) identify and define positive factors involved in occupational diseases of miners,
(B) provide information on the incidence and prevalence of pneumoconiosis and other respiratory ailments of miners, and
(C) improve mandatory health standards;

(6) to develop techniques for the prevention and control of occupational diseases of miners, including tests for hypersusceptibility and early detection;
(7) to evaluate the effect on bodily impairment and occupational disability of miners afflicted with an occupational disease;
(8) to prepare and publish from time to time, reports on all significant aspects of occupational diseases of miners as well as on the medical aspects of injuries, other than diseases, which are revealed by the research carried on pursuant to this subsection;
(9) to study the relationship between coal or other mine environments and occupational diseases of miners;
(10) to develop new and improved underground equipment and other sources of power for such equipment which will provide greater safety;
(11) to determine, upon the written request by any operator or authorized representative of miners, specifying with reasonable particularity the grounds upon which such request is made, whether any substance normally found in a coal or other mine has potentially toxic effects in the concentrations normally found in the coal or other mine or whether any physical agents or equipment found or used in a coal or other mine has potentially hazardous effects, and shall submit such determinations to both the operators and miners as soon as possible; and
(12) for such other purposes as they deem necessary to carry out the purposes of the Mine Act.

NIOSH's recommendations were intended to prompt action by MSHA. The Senate report on the Mine Act specifically notes:

Where recommendations, accompanied by appropriate criteria, are received from the National Institute for Occupational Safety and Health (NIOSH), the Secretary must within 60 days commence standards promulgation procedures. In such circumstances, he must, within the specified time period, either refer the matter to an advisory committee, publish a proposed standard, or publish the reasons for a determination not to issue a proposed standard.

NIOSH's Current Functions

NIOSH is the only federal agency with the mission to conduct research and develop practical solutions to prevent work injury and illness. Its research supports regulatory decisions by OSHA such as the promulgation of the bloodborne pathogens standard, and the agency provides recommended exposure limits (“RELs”) for new airborne contaminants that are not currently covered by OSHA standards.

In addition to assisting regulatory activities, NIOSH funds Educational Resource Centers (“ERCs”). These multi-disciplinary, university based occupational health and safety training and research centers serve as a primary vehicle for the development and training of a corps of trained occupational health practitioners and other safety professionals.

NIOSH also conducts “Health Hazard Evaluations” (“HHEs”) at selected worksites to learn whether workers are exposed to hazardous materials or harmful conditions. During a HHE, NIOSH staff visits the workplace, meets with the employer and the employee representatives to discuss health and safety issues. They will tour the workplace, review records about exposure and health, interview or survey employees, measure exposures, and do medical testing. At the end of this evaluation, NIOSH will provide a written report to the employer and to the employee representatives. This information, which does not result in any citations or civil penalties, is beneficial in helping the employer more precisely focus its safety training and in identifying any gaps in existing programs.

Among the tools NIOSH offers to assist businesses create and manage their occupational health programs are the Pocket Guide to Chemical Hazards and the NIOSH Manual of Analytical Methods (NIOSH is also the governmental agency that approves respiratory protection equipment) . It is heavily involved in homeland security and played a pivotal role in managing responder health at the World Trade Center site. The agency is also tasked with performing research on emerging occupational safety and health hazards, such as those posed by nanotechnology. On the preventative side, NIOSH develops many publications and videos that can be used for worker training on myriad subjects – and much of this material is available to employers on the agency website at no cost.

With responsibility for the National Occupational Research Agenda (NORA), NIOSH oversees the national's priorities for occupational safety and health research . Approximately seventy-five percent of new funding for NORA is dedicated to extramural research in 21 priority areas. These include topics such as control technology and personal protective equipment, mine safety and health, occupational lung disease, traumatic injuries, and hearing loss prevention.

NIOSH Funding and CDC Reorganization

NIOSH is now located in the Centers for Disease Control and Prevention (CDC). However, this placement of the agency was carried out through the administrative discretion of the Secretary of HHS, rather than by an act of Congress.

Within the CDC, the relative importance of NIOSH as reflected in CDC's budget has been steadily decreasing over the years. CDC's proposed budget for fiscal year 2005 is $6.91 billion, and only $279 million of this has been allocated for occupational safety and health and support of NIOSH's many functions and for its extramural research grants. Thus, NIOSH represents just over 4 percent of CDC's entire budget. Despite being the primary federal agency for occupational disease and injury prevention, NIOSH receives only about two dollars per worker per year for its mission of professional education, research and outreach. To place this in proper perspective, the National Institute for Environmental Health Sciences (NIEHS) is located within HHS and was created at approximately the same time as NIOSH with a similar budget. For FY 2005, however, NIEHS' proposed budget is $650 million – 233 percent of NIOSH's planned spending authority.

CDC is currently undergoing reorganization, as part of its “Futures Initiative.” It plans to cluster NIOSH with several environmental health agencies into the Coordinating Center for Environmental Health, Injury Prevention, and Occupational Health. This massive restructuring, slated to take effect on October 1, 2004, would move NIOSH to a lower level within the departmental structure, obscuring its historical identity and likely diminishing its effectiveness. The Coordinating Center would be located in Atlanta, Georgia. NIOSH's current headquarters are at the main HHS building in Washington, DC. The head of the new Coordinating Center, Dr. Henry Falk, is a physician with a background in environmental and public health but no clear experience in the occupational safety and health area. The other agencies that would be clustered with NIOSH within this Coordinating Center are the National Center for Environmental Health, the Agency for Toxic Substances and Disease Registry, and the National Center for Injury Prevention and Control (which focuses on non-occupational issues).

The American Society of Safety Engineers (ASSE) is concerned that this development will undermine NIOSH's ability to carry out its statutory responsibilities – particularly in the area of occupational safety – and adversely impact NIOSH's research functions and ability to take action to advance the research initiatives under NORA. The demotion of NIOSH, in terms of direct reporting authority to the head of CDC, and the erosion of its independent functions -- such as publication authority, marketing, oversight of the Educational Resource Centers, and work with Congress on budgetary issues -- will further dilute its ability to carry out its statutory mission under the OSH Act and the Mine Act.

A More Suitable Place

Given these facts, ASSE believes it is time to find a more suitable organizational location for NIOSH in the federal government. CDC's core mission, which it performs laudably, centers on personal and public health issues. Addressing occupational safety and health issues involves an entirely different set of capabilities, knowledge and resources. All of NIOSH's main functions involve working cooperatively with OSHA and MSHA in an advisory capacity. It is logical to relocate NIOSH to an independent agency status within the U.S. Department of Labor, much like the Bureau of Labor Statistics. While, in the beginning, there may have been good reason to locate an occupational research agency away from the Department of Labor to ensure its independence, the risks of NIOSH's losing its independence now pale in comparison to the weak budgetary support it has received over the years as part of CDC, its isolation in CDC among health-related agencies, and its apparent demotion in the CDC organizational structure. NIOSH, despite its status, has demonstrated its vital role in ensuring the safety and health of workers. Those many voices across the spectrum of occupational safety and health who support NIOSH can help ensure its continued vitality. ASSE believes that NIOSH can more readily, visibly, and credibly fulfill its mission of protecting workers and advancing safety and health research by being situated within the same cabinet department that is also dedicated to these goals. The draft legislation that follows will ensure effective reorganization for NIOSH to achieve this purpose.

DRAFT LEGISLATION TO RELOCATE NIOSH
WITHIN US DEPARTMENT OF LABOR

(Note: In Senate, jurisdiction lies in the Committee on Health, Education, Labor and Pension only. In the House of Representative, concurrent referral to the Committees on Education and the Workforce, and Commerce would be required).

109 th Congress
1 st Session

To amend the Occupational Safety and Health Act of 1970 and the Federal Mine Safety and Health Act of 1977 to transfer the National Institute for Occupational Safety and Health from the U.S. Department of Health and Human Services to the U.S. Department of Labor.

IN THE HOUSE OF REPRESENTATIVES [DATE]

Mr./Ms. ______________ introduced the following bill; which was referred to the Committee on Education and the Workforce and the Committee on Commerce

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the "NIOSH Empowerment for the Workforce Act (“NEW Act”)." SEC. 2. FINDINGS. (a) The Congress finds and declares that it is necessary to relocate the National Institute for Occupational Safety and Health from the U.S. Department of Health and Human Services to the U.S. Department of Labor, in order to maintain its identity and focus, and to provide sufficient resources to conduct its core responsibilities under the Occupational Safety and Health Act of 1970, and the Federal Mine Safety and Health Act of 1977. These activities include, but are not limited to: (1) intramural and extramural research related to occupational safety and health, (2) development of solutions to protect American workers from occupational diseases and safety hazards, (3) conducting health hazard evaluations at American workplaces; and (4) compilation of information to inform the regulatory activities of the Occupational Safety and Health Administration and of the Mine Safety and Health Administration. (b) Congress directs that hereafter, the National Institute for Occupational Safety and Health shall be situated as a separate agency within the U.S. Department of Labor, retaining all powers and authority conferred upon it under the Occupational Safety and Health Act of 1970, and the Federal Mine Safety and Health Act of 1977. (c) The Institute shall be headed by a Director who shall be appointed by the Secretary of Labor, and who shall serve for a term of six years unless previously removed by the Secretary of Labor. (d) The Occupational Safety and Health Act of 1970, 29 U.S.C. §651 et seq., shall be amended to delete all references to the Secretary of Health, Education and Welfare, and to the Secretary of Health and Human Services. (e) The Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq., shall be amended to delete all references to the Secretary of Health, Education and Welfare, and to the Secretary of Health and Human Services. SEC. 3. EFFECTIVE DATE.

This act shall take effect on the first day of the month following enactment.


 

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