“April showers bring May flowers.” To that well-known spring-related proverb one might soon add “the Spring Regulatory Agenda brings new groundless complaints from corporate interests and their anti-regulatory allies in Congress about so-called regulatory overreach.” Last Wednesday, the Obama Administration issued the 2013 edition of the Spring Regulatory Agenda, one of two documents the President must issue every year (the other is published in the fall) that compiles and summarizes the various regulatory actions that the Administration expects to take in the near future. Over the past few years, regulatory opponents have grown fond of pointing to the Spring and Fall Regulatory Agendas as still further evidence of the so-called “regulatory tsunami” that is allegedly hindering the economy and to support their campaign to “reform” our regulatory system. I expect that these same groups will waste little time in the coming days to misrepresent the latest regulatory agenda to bolster their attacks on our system of regulatory safeguards.
In fact, a careful comparison of one Regulatory Agenda to the next reveals just the opposite of what regulatory opponents claim: progress on needed safeguards has all but stalled, as new rules have become subject to new delay upon new delay. Rather than documenting a flurry rulemaking activity, the semiannual Regulatory Agenda has become more of a litany of the latest delays of and extensions to expected timelines for issuing proposals or final rules.
Full textWelcome aboard, Administrator Shelanski. You’re already well into your first week on the job as the head of the White House Office of Information and Regulatory Affairs (OIRA). You’ve already received plenty of valuable advice—during your confirmation hearing and from the pages of this blog, among other places—on how you can transform OIRA’s role in the regulatory system so that it’s not a continued impediment to effective government. For example, many have urged you to end the pattern of long-overdue reviews at OIRA (at last count, 72 of the 137 rules undergoing review are past the 90-day limit provided for in Executive Order 12866), to improve transparency of OIRA’s reviews so that decision-makers can be held publicly accountable for changes they make to pending safeguards, and to restrict the use of cost-benefit analysis as a means for justifying the dilution of safeguards so that they are weaker than what applicable law requires. These practices not only leave the public inadequately protected against unreasonable risks; they also amount to a kind of usurpation of the public will by thwarting the effective and timely implementation of laws enacted through the constitutionally-defined legislative process that is central to our unique republican form of government.
Yes, transforming OIRA so that it is not objectively “bad” is an important start. But now I would like to urge you to think bigger and bolder. In particular, I would like you to re-imagine OIRA’s role in the regulatory system so that it operates as a positive force for “good.” In this new role, OIRA would actively support the efforts of protector agencies—such as the Environmental Protection Agency (EPA) and the Occupational Safety and Health Administration (OSHA)—to achieve the statutory missions that Congress has assigned to them in a vigorous, timely, effective, and wise manner. As you continue to settle into your new job, I encourage you to think about how OIRA can start taking the following affirmative steps:
Full textIs the annual cost of federal regulation really $1.75 trillion? Do regulations really hinder job creation and economic growth? Is it true that agencies are free to issue costly regulations without legal authority or political accountability? These are just some of the myths spread by supporters of legislation to further weaken the ability of protector agencies, such as the Environmental Protection Agency (EPA), the Food and Drug Administration (FDA), and the Occupational Safety and Health Administration (OSHA), to carry out their congressionally mandated mission of safeguarding the public.
The subject will be explored in detail at a congressional briefing on June 25, organized by the Center for Progressive Reform and the Coalition for Sensible Safeguards, and is hosted by Reps. John Conyers (D-MI) and Steve Cohen (D-TN). The briefing is open to the media.
What: Congressional Briefing: Anti-Regulatory Myths: What Regulatory Critics Don't Tell You, hosted by Reps. John Conyers, Jr. (D-MI) and Steve Cohen (D-TN) addressing common misconceptions about the impact of federal regulation.
When: 10a.m. on Tuesday, June 25, 2013
Where: Room 2237 Rayburn House Office Building.
Full textYesterday's confirmation hearing for Dr. Howard Shelanski—President Barack Obama’s nominee to serve as the next “Regulatory Czar,” or Administrator of the White House Office of Information and Regulatory Affairs (OIRA)—may have been the “most important hearing in Washington this week,” but it did not produce much in the way of bombshells or drama. Rather, it was a relatively staid affair, which at times had a distinct “going through the motions” vibe.
On the positive side, the hearing generated some good discussion about the problems associated with OIRA’s role in the rulemaking process. Several of the questions posed by Chairman Carper (D-DE) and Senator Levin (D-MI) were very thoughtful. Senator Levin described the excessive rule delays at OIRA as “chronic” and asked what the nominee would do to address them. He also touched on the problems of extending OIRA review to independent regulatory agencies (as some recent legislative proposals from anti-regulatory members of Congress have sought to do). Chairman Carper addressed the need to limit cost-benefit analysis for rules promulgated under statutes where such statutes prohibit this analysis (which happens to be most of them).
Shelanksi offered some thoughtful answers to these and other question. He stated that, if confirmed, his top priority would be to ensure “timely review” of agency rules, as opposed to OIRA’s current pattern of routinely violating the 90-day limit that Executive Order 12866 places on such reviews. Shelanski also repeatedly acknowledged the need to conduct OIRA review consistently with the statutes under which agency regulations are issued. For example, during one exchange, Chairman Carper noted that for some statutory provisions—such as the provisions of the Clean Air Act under which the Environmental Protection Agency (EPA) sets National Ambient Air Quality Standards (NAAQS)—explicitly prohibit the use of cost-benefit analysis. In response, Shelanski noted that OIRA review involves several elements in addition to cost-benefit analysis, and that its review of NAAQS would likely need to focus on those other elements. Since OIRA has routinely ignored such statutory provisions, Shelanski's assertion that he intends to comply with the law is noteworthy.
But, there were also some concerning moments during the hearing.
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The confirmation hearing for Howard Shelanski, President Obama’s pick to serve as the Administrator of the White House Office of Information and Regulatory Affairs (OIRA) is set to take place Wednesday before the Senate Homeland Security and Government Affairs Committee. If confirmed, Shelanski would become the Administration’s new “Regulatory Czar,” a description that indicates the significant influence OIRA’s administrator has concerning what agency rules look like and, indeed, whether those rules are issued at all.
Shelanski’s confirmation hearing comes at a crucial juncture in the Obama presidency. Progress on many important rules has been halted, including the EPA’ rule to limit greenhouse gas emissions from future power plants. Of the 139 reviews currently pending at OIRA, 71 are beyond the 90-day limit set by Executive Order 12866. A number of rules have been under review for a year or even two years. If the President is to live up to his promise in his first post-election State of the Union address to take decisive action on pressing issues such as climate change, OIRA will have to change its tune. We will be listening during the hearing to see whether Shelanski is prepared to finish up regulations that are necessary to protect the public and the environment, rather than continuing the tortoise-like review process that has characterized the President’s first term. The answers to the following questions will provide the answer:
Will Shelanski ensure the quick completion of reviews for rules that have been stuck at OIRA for well beyond the 90-day limit in Executive Order 12866? Senators should ask about the many rules that are pending at OIRA, such as the EPA’s Chemicals of Concern rule (stuck since May, 2010); the Department of Transportation’s Requirements for the Transportation Of Lithium Batteries (since October, 2010); the Occupational Safety and Health Administration’s (OSHA) Silica rule (since February, 2011), OSHA’s Injury and Illness Recording Requirements (since November, 2011); the National Highway Traffic Safety Administration’s Rearview Camera rule (since November, 2011 despite a legislative deadline of February, 2011); and the Department of Energy’s Federal Building Standards rule (since December, 2011).
Full textLast week, CPR’s Tom McGarity had a column in the Christian Science Monitor, describing the ways that the political right’s war on regulation and enforcement helped contribute to the West, Texas, fertilizer plant explosion last month. Today, he’s got a separate piece in the Dallas Morning News (and this past Friday, it was in the Houston Chronicle) taking a look at the Texas legislature’s response to the disaster.
In the piece, McGarity takes a state legislator to task for declaring — even while the investigation into the West disaster is still ongoing — that "'the state of Texas is in good shape' when it comes to regulatory programs designed to protect its residents from future explosions. Therefore, he didn’t see the need for 'any major changes.'"
McGarity notes that Texas doesn’t even have an occupational safety and health entity that might have inspected the plant. Had it, he writes, its concern for worker safety
would have alerted it to the risks posed by the ammonium nitrate. And the steps taken to reduce those risks would have protected the entire community of West, not just the workers. When it comes to protecting public health and safety from threats posed by unsafe fertilizer plants in rural areas and equally dangerous industrial operations in major cities, Texas politicians have adopted a Wild West attitude that gives Texas businesses great freedom to innovate and grow the economy. But the Legislature and the governor have been less concerned about ensuring that these companies exercise that freedom in a responsible manner and are held accountable when they don’t.
It's well worth the read.
Full textJust days before The Washington Post's Kimberly Kindy published her eye-opening story of chemical showers in chicken processing plants and the untimely death of a federal food safety inspector, OSHA announced fines totaling $58,775 in a case involving a worker fatality at another chicken processing plant – this one in Canton, Georgia. According to OSHA's press release, the worker "became caught in an unguarded hopper while attempting to remove a piece of cardboard."
The agency does not typically release the full details of an investigation until it is "closed" by virtue of penalties being paid, a settlement, or a court decision, so we'll only be able to glean the basics of this tragic incident from the public inspection file and press release, for now. But the basics tell a troubling story. OSHA cited Pilgrim's Pride, which boasts billions of dollars in chicken sales annually and employs about 38,000 workers, for violating rules that embody some of the most basic safety principles, like the need to have controls in place to prevent life-threatening machinery from starting up while a worker is servicing it. What's worse, the citation for failing to have procedures in place to control "potentially hazardous energy" has been classified as a "repeat" violation because the plant was cited for similar violations just two years ago.
And yet the U.S. Department of Agriculture (USDA) has proposed to give this plant and others like it significantly more leeway to lower their production costs at the expense of providing safe workplaces. USDA's proposed revisions to poultry slaughter inspections will allow plants to speed up their processing lines in a way that poses serious threats to workers' health and safety. Musculoskeletal problems are already rampant in these factories as a result of repetitive motion and awkward positions. But speeding up the lines, which will decrease processing costs by about three pennies per chicken (a cumulative profit totaling millions of dollars per year), is the incentive that USDA is giving to Pilgrim's Pride and other processors to get them to make the capital investments necessary to adopt a new inspection system. That extra profit will be earned on the backs (and shoulders and wrists) of the workers who will have to cope with dizzying new line speeds.
Full textCPR's Tom McGarity has an op-ed in this morning's Christian Science Monitor describing the regulatory environment in which that West, Texas, fertilizer plant came to have a large stockpile of explosive material while operating with little or no oversight from state or federal authorities. An April 17 explosion at the plant claimed at least 15 lives and destroyed several hundred homes.
McGarity notes that Texas has no state program for occupational health and safety, so leaves such matters to the federal Occupational Safety and Health Administration (OSHA). But with its tiny staff of inspectors (2,400 in all), OSHA's its resources are stretched so thin that it has inspected the plant just once -- in the mid-1980s. Similarly, the Environmental Protection Agency (EPA) has insufficient staff to inspect more than once a decade. Meanwhile the Texas Commission on Environmental Quality is so small, it can only respond to complaints. He writes:
Full textThese regulatory agencies are supposed to be protecting the public from the risks posed by unsafe workplaces, releases of toxic pollutants, and catastrophic explosions. Yet their failure to focus on the risks posed by the West Fertilizer Company is not atypical. We saw similar failures with the 2005 Texas City refinery explosion (15 workers killed, 170 injured), the 2008 explosion at the Dixie Crystal sugar refinery in Georgia (14 workers killed), and the 2008 explosion at a Bayer CropScience chemical plant in West Virginia (two workers killed).
This lack of attention to the safety of our workplaces and neighborhoods is no accident. It is the product of a concerted attack by the US Chamber of Commerce, industry trade associations, and conservative think tanks on what they see as onerous regulatory programs – but ones that were enacted by Congress over the years to protect the public from irresponsible corporate misconduct.
The Department of Agriculture’s (USDA) proposal to “modernize” the poultry inspection system by replacing government inspectors with company employees, and speeding up the processing line to a staggering 175 birds per minute, has been exposed on numerous occasions as a disaster-waiting-to-happen for food and worker safety. In its zeal to save money for poultry corporations, the White House’s Office of Information and Regulatory Affairs (OIRA) failed to conduct its much-vaunted “interagency review” before giving the proposed rule its stamp of approval—it even neglected to invite the Occupational Safety and Health Administration (OSHA) to weigh in on the obvious dangers posed to workers.
As if more evidence were needed that the poultry rule is a horrible idea, it turns out that the rule also poses a number of serious threats to the environment that went unaddressed in the USDA’s analysis, as CPR President Rena Steinzor and I explain in a letter sent today to OIRA Deputy Administrator Dominic Mancini.
As proposed, the rule threatens to significantly increase water pollution in at least two distinct ways. First, it would lead to an increase in the use of poultry-sanitizing chemicals, which then have to be discharged into nearby water bodies where they will have toxic effects on aquatic life and threaten ecosystems. Poultry plants are expected to increase their reliance on something called “online reprocessing” (OLR), where all carcasses, visually contaminated or not, pass through automatic sprayers on the line that drench them with large amounts of antimicrobial chemicals like chlorine and trisodium phosphate (imagine a car wash … but for chickens). In the more traditional method, only those carcasses that are visually identified as contaminated are taken off the line for reprocessing, undergoing procedures that use smaller amounts of chemicals.
Full textThis post originally appeared on Harvard Law School’s Bill of Health and on RegBlog and is cross-posted with permisison.
For many of the federal agencies that promulgate and enforce regulations to protect public health, safety, and the environment, the era of “big government” never even began. The U.S. Occupational Safety and Health Administration (OSHA) is a prime example: the agency employs about 2,000 inspectors, who are collectively able to visit roughly 100,000 establishments each year to look for unsafe and unhealthy conditions in the workplace. This may sound like an ample effort, until one considers the scope of the problem: OSHA’s rules apply to more than 8 million establishments, and every year more than 4,500 workers die in traumatic occupational accidents, while epidemiologists estimate that about 40,000 additional workers die prematurely from chronic over-exposures to toxic substances.
According to data from the Labor Department, analyzed by the AFL-CIO (read the report here – page 91), the ratio of OSHA inspectors to number of covered establishments is such that it would take OSHA between 26 and 243 years to inspect all of the jobsites in each state once only.
So OSHA—and the nation’s workers—can ill afford for its inspectors to spend time checking out establishments that are fully compliant with all regulatory and other norms, while at the same time miss opportunities to find and fix instances of grave danger elsewhere, before workers are killed or stricken with disease.
This is where modern methods of statistical analysis, in particular the concept of “predictive policing,” come in.
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