Cross-posted from The Pump Handle.
I was already tired of President Obama repeating the Republican's rhetoric about big, bad regulations, how they stifle job creation, put an unnecessary burden on businesses, and make our economy less competitive. He did so last month in an op-ed in the Wall Street Journal and in his State of the Union address. But yesterday, the White House went too far.
In advance of the President's speech to the U.S. Chamber of Commerce, the chief of the Office of Information and Regulatory Affairs (OIRA) threw two OSHA initiatives under the bus. Right after mentioning President Obama's January 18 directive that agencies reduce regulatory burdens on small businesses, the OIRA chief boasted that they were already making great progress toward that goal. He offered four examples, and two of the four----2 of the 4---involved initiatives to advance worker health and safety. It's a sad day when OSHA becomes the whipping boy for a Democratic Administration.
The two OSHA proposals have been a target for months of the Chamber of Commerce, National Association of Manufacturers and other industry lobbyists. But that didn't stop the White House from bowing to business. Neither meets the criteria of being outmoded, unnecessary, or duplicative. One is OSHA's revision to its existing injury recording requirements. As I've written before (here, here, here) the Labor Department has been working on a proposal to get better data on work-related musculoskeletal disorders like tendinitis, low back pain, carpet layers knee, trigger finger, and carpal tunnel syndrome. OSHA proposed a simple revision to its paper form---called the OSHA 300 log---on which just a fraction of U.S. employers are required to record work-related injuries. The Bureau of Labor Statistics (BLS) collects a sample of these forms annually to estimate national rates of work-related injuries.
Full textSixteen months ago, President Obama stood in the well of Congress and issued a ringing call for a progressive vision of government. Working to persuade Members of Congress to adopt health care reform, he said that “large-heartedness…is part of the American character. Our ability to stand in other people's shoes. A recognition that we are all in this together; that when fortune turns against one of us, others are there to lend a helping hand.” Many took comfort from that vision, the first avowedly affirmative one we had heard from a President about the government he leads in many a year.
Since then, much of the President’s domestic agenda has been adopted, and a mid-term election “shellacking” has intervened. And now, President Obama, with the 2012 election drawing ever nearer, is embracing a far less generous vision. In an op-ed on the opinion pages of today’s Wall Street Journal, truly the belly of the conservative beast, the President embraces a frame for the coming discussion about the role of regulation in society that is right out of the Republican hymnal, calling for “balance” between safety and economic growth, and bemoaning regulations that sometimes “place[e] unreasonable burdens on business—burdens that have stifled innovation and have had a chilling effect on growth and jobs.”
He also used the op-ed to announce a new initiative “to review outdated regulations that stifle job creation and make our economy less competitive.” By casting the discussion in those terms, the President swallows the GOP’s frame for the debate hook, line, and sinker.
Full textDespite its strong condemnation of the industry-wide problems that caused last year’s BP Oil Spill, the report today from the President’s commission waivered on a crucial subject: it significantly embraced the essentially self-regulatory British "Safety Case" model of regulation that industry and its consultants have been promoting. So while the commission has done some terrific work, one of its key recommendations is very disturbing. The safety case approach ultimately leaves to the oil companies, rather than regulators, the difficult but crucial work of making sure another rig does not explode. We can do better, if Congress gives the regulators adequate funding, moves them to an agency like the EPA or OSHA whose mission is to crack down on bad actors, and gives them the authority they need to make the oil industry internalize the American people’s expectation that it operate safely.
A number of industry advocates promoted the British model; members of the Deepwater Horizon Study Group (an ad hoc group of academics headquartered at the University of California/Berkeley) suggested the concept in a letter to the Commission; and the Department of the Interior has been reportedly considering it. Given the popularity of self-regulation for the oil industry in a number of countries, it is extremely unfortunate that the Commission missed the opportunity to set a higher standard for America. Instead, it said safety cases should be part of a future regulatory system. It wrote (p. 252-253):
Full textGovernment agencies that regulate offshore activity should reorient their regulatory approaches to integrate more sophisticated risk assessment and risk management practices into their oversight of energy developers operating offshore. They should shift their focus from prescriptive regulations covering only the operator to a foundation of augmented prescriptive regulations, including those relating to well design and integrity, supplemented by a proactive, risk-based performance approach that is specific to individual facilities, operations, and environments. This would be similar to the “safety case” approach that is used in the North Sea, which requires the operator and drilling rig owners to assess the risks associated with a specific operation, develop a coordinated plan to manage those risks, integrate all involved contractors in a safety management system, and take responsibility for developing and managing the risk management process.
Every year, OSHA mails a letter to about 15,000 employers who run high-hazard worksites, warning them that their most recent annual injury and illness rates were well above average. According to OSHA,
For every 100 full-time workers, the 15,000 employers had 4.5 or more injuries or illnesses which resulted in days away from work, restricted work or job transfer. The national average is 2.0.
The letters went out in March, but I just got around to digging into the list of recipients (zip file), and thought I’d share some analysis that I haven’t seen anywhere else. Sorting the list by industry code, I put together a chart of the industries that received the most total letters -- down through the top 10 percent of them. The chart gives some additional detail (like the percent of surveyed employers who received letters in each industry), but here’s the rub:
There’s a lot of punditry left to be committed about whether and how the GOP majority in the House and the enhanced GOP minority in the Senate will work with the Obama Administration. I’m not optimistic. But even if the President and House Republicans are able to find some small patch of common ground, the hard reality that progressives need to swallow is that whatever major progressive legislation will bear Barack Obama’s signature has already become law, at least for his first term.
The same is not true, however, for what Barack Obama might accomplish simply by infusing the health and safety agencies in his Administration—from EPA to OSHA to FDA—with a sense of urgency, clearing away barriers to regulatory progress within his own White House, and insisting that the agencies enforce existing laws with newfound vigor. A string of catastrophes have shown that we need proactive government at least as much in these areas as we need cops on the beat in neighborhoods and airport security, even as Americans claim to hate government in a larger sense.
Resurrection of these agencies was a low priority for the President during his first two years. He made great appointments, but then left the agencies to cope with budget shortfalls and inadequate legal authority. As just one especially shocking example, FDA cannot order a recall of salmonella-poisoned food but instead must depend on the producer’s cooperation to get the food off the shelves. Worst of all, Cass Sunstein, his appointee to the post of “regulatory czar,” where he essentially supervises the agencies from the White House, has in many ways continued the Bush II pattern of red tape and neglect. “Yes we can” became “No we won’t” in too many instances. His small office continues to serve as a lobby for any powerful business interest—from coal companies to chemical manufacturers—intent on consigning the cops to desk duty.
Republicans followed the pattern of the Bush II Administration, screaming about overregulation and even going so far as to protest the rough treatment of British Petroleum in the Gulf. As usual, they gained traction by ranting against government writ large, not by acknowledging the need—no, the expectation and rock-solid demand—that these first-line responders keep Americans safe.
The predictable result was a mixed record--some regulators seized the opportunity and moved briskly ahead. Others bogged down.
All of that is squarely within the President’s power to fix. But will he?
Full textToday, OSHA released a “proposed interpretation” of its 39-year old noise exposure standards. Talk about making up for lost time. All joking aside, this move truly is a positive step for American workers, and may demonstrate a path of action that could help OSHA address hazards in addition to excessive noise.
Over the years, the federal courts and the Occupational Safety and Health Review Commission (OSHRC) have muddied the waters of many OSHA regulations, enforcement policies, and rulemaking procedures. Their sometimes contradictory, sometimes ambiguous decisions have left OSHA struggling to write new standards in a cumbersome rulemaking process and unable to stringently enforce existing standards—or even employers’ fundamental obligations under the General Duty Clause. The story of the noise exposure standards, as told in today’s Federal Register notice, is a prime example.
OSHA first promulgated the noise exposure standards in 1971, under its authority to adopt already-established federal health and safety standards. These rules OSHA adopted required employers to use "feasible" administrative or engineering controls if their employees were exposed to sound exceeding specified levels. (Administrative controls might be rotating shifts at high-noise tasks; engineering controls might involve isolating machinery or workers.) If those controls failed to reduce the sound below the specified levels, employers were to provide employees with earmuffs, earplugs, or other personal protective equipment. In 1975, OSHA issued interpretive guidance explaining that the rules meant exactly what they said: employers must use administrative and engineering controls to reduce noise hazards, and PPE must be used as a supplement if the other controls were insufficient.
Full textBack in the 1970s, when many of the great environmental, health, and safety statutes were adopted, public interest groups shared an overwhelming optimism that greater public participation held the key to maintaining—and even expanding upon—their successes. All they needed was a seat at the table where decisions are made, and their ideas would ultimately prevail. At first, they were right—public interest groups were able to advance their cause through participation in the regulatory process. But before long, regulated industry discovered that they could beat public interest groups at their own game by using their superior resources. The number of “public input” tables grew, and each increasingly became filled with more and more industry groups, while the seats for public interest groups often go empty. If the public interest groups are able to be present, they are often drowned out.
Once a dream, public participation in the regulatory process has too often become a nightmare for public interest groups. A number of different studies of the regulatory system confirm the extent to which regulated industry is dominating participation in the regulatory process, including for rules aimed at environmental, health, and safety issues. A 2006 study of 40 rules promulgated by four agencies (the Occupational Safety and Health Administration, the Employment Standards Administration, the Federal Railroad Administration, and the Federal Highway Administration) issued between 1994 and 2001 found that of the total number of comments, business interest filed 57 percent, governmental interests filed 19 percent, and non-business, nongovernmental interests submitted 22 percent. Public interest group comments constituted only six percent of the total comments submitted by non-business, nongovernmental interests. Another study, by Marissa Martino Golden, examined comments filed on eleven proposed regulations at three agencies (the Environmental Protection Agency, the National Highway Traffic Safety Administration, and the Department of Housing and Urban Development) and found that corporations, public utilities, and trade associations filed between 66.7 and 100 percent of the comments concerning these rules, and neither the EPA nor the NHTSA received any comments from public interest groups concerning five of the eight rules.
Full textOver at The Pump Handle, Celeste Monforton looks at federal OSHA's review, issued this week, of the state worker safety programs.
Full textSenator Mary Landrieu (D-La.) currently has a hold on Jacob Lew’s confirmation to become the next director of the Office of Management and Budget, and says she won't release it until the Obama Administration ends the moratorium on deepwater oil and gas drilling. She said that while Lew “clearly possesses the expertise necessary to serve…he lacks sufficient concern for the host of economic challenges confronting the Gulf Coast.”
Sen. Landrieu seems to be ignoring the impacts of too hastily allowing oil companies to engage in risky drilling operations – something that came sharply into focus when BP’s Deepwater Horizon oil rig exploded, killing 11 rig workers and spilling an estimated two hundred million gallons of oil into the Gulf. But the impacts of too quickly rushing back into the same inadequate regulatory oversight that contributed to this oil spill don’t seem to factor into Sen. Landrieu’s calculus. People living on the Gulf Coast are faced with the consequences of the spill’s aftermath – and effects such as stress and depression don’t easily translate into quantifiable dollars and cents.
Sen. Landrieu said Tuesday that "This moratorium is doing almost as much damage and I think more damage than the spill itself." But the predictions of widespread job losses haven't panned out.
The Obama administration wants the hold ended. After meeting with Interior Secretary Ken Salazar, Landrieu said she is still firm in her position. In addition to lifting the moratorium on deepwater drilling, Sen. Landrieu would also like to see an acceleration of permits for shallow water drilling in the Gulf.
Full textCross-posted from The Pump Handle.
Is anybody else getting tired of hearing Obama Administration officials say "sunlight is the best disinfectant?" It was uttered again on Thursday (9/23) when the President's regulatory czar, Cass Sunstein, was speaking at an event hosted by the Small Business Administration. His speech was loaded with all the transparency catch terms: "disclosure," "openness," "sunshine," "open government," "accountability," blah, blah, blah. The rhetoric was annoying to read because I'd been wrestling that week with OIRA's lack of transparency. I've been in the midst of trying to confirm whether representatives of the Chamber of Commerce, National Association of Manufacturers and other industry lobbyists met recently with the reg czar's staff about a pending OSHA rule. Setting aside that these meetings are outside the normal rulemaking procedures and undermine that process, I'm frustrated hearing a lot of talk about transparency, but not seeing it.
Someone checking the OMB/OIRA website earlier last week (screenshot, 9/20/10) would think that not a single one of this extra-ordinary meetings with OIRA staff about pending OSHA rules have taken place since the GW Bush Administration. When I learned last week from two sources that meetings about a revision to OSHA's injury log had indeed taken place, I contacted OIRA to find out why the meeting(s) were not divulged on OMB's website. (It was GW Bush's reg czar, John Graham, who began the practice in 2001 of disclosing on the OIRA website a few facts about these private meetings. His staff would promptly post the date, names and affiliations of participants, and the regulatory action of interest to them. If the outside parties provided a document, that was also posted on the OIRA site.) I heard back two days later from a helpful OMB public affairs officer.
She confirmed that representatives from the Chamber of Commerce and other business groups met with OIRA staff to discuss the pending OSHA rule on revisions to its injury log; another meeting was requested and held with individuals from the AFL-CIO. She indicated that information about such meetings are posted on the OIRA website, "though there is sometimes a brief delay." She added that the OMB/OIRA website would be updated the next day to reflect two meetings held about the pending OSHA rule.
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