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SBA Office of Advocacy Continues to Carry ‘Water’ for Big Business

Apparently undeterred by all the bad press it has received lately, the Small Business Administration’s (SBA) Office of Advocacy has cast its controversy-attracting lightning rod ever higher in the air by issuing a feeble comment letter attacking the Environmental Protection Agency’s (EPA) pending rulemaking to define the scope of the Clean Water Act (“Waters of the US rule”).  The letter is just the latest evidence that the SBA Office of Advocacy has no interest in working to advance the unique interests of real small businesses—in accordance with its clear legal mandate—but instead is entirely focused on seeking to block those rules that are opposed by large business interests and their conservative allies.  

In its recent scathing report, the Government Accountability Office (GAO) raised several disturbing questions about whether and to what extent the SBA Office of Advocacy is actually fulfilling its statutory mission of serving as a “voice for small businesses within the federal government.”  Of immediate relevance here, one of the key issues identified in the report was that the SBA Office of Advocacy was never able to provide any evidence of small business input it received to inform its decision intervene in rules or the substance of its comments letter.  In other words, the SBA Office of Advocacy could never prove that its interventions were every actually prompted by small business concerns.  As described below, the SBA Office of Advocacy’s comment letter on the EPA’s Waters of the US rule only adds to these questions—and its provides additional impetus for needed reforms and increased congressional oversight to ensure that the agency is not wasting taxpayer money and helping large businesses to the direct detriment of the small firms they are supposed to be helping.

 

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The Real Price of Chicken Nuggets: Obama Administration Turns Its Back on Poultry Processing Workers; Crippled (Literally) by a Thousand Cuts

Only in Washington, D.C. is nothing portrayed as something.  Out in the nation, not so much.  And so it was late last week that the Obama Administration took a victory lap for not making life even more miserable for some of the most abused workers in America. Yup, despite the best efforts of the Occupational Safety and Health Administration (OSHA), which is supposed to watch out for workers’ well-being, the U.S. Department of Agriculture (USDA), the life-long booster for corporate agriculture, gave a swift kick in the pants to all those low-wage people of color who make the chicken nuggets and chick filets that now dominate what’s for dinner. 

Up until last Thursday, USDA was claiming loudly to anyone who would listen that it doesn’t “do” worker protection.  Then the agency did a full 180 in the middle of the road, and now claims it has addressed workers’ concerns with the help of its new best friends at OSHA. Those workers are the folks who toil at workplaces so miserable that many states make it a crime to film inside them. 

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Tweaks to Bad Chicken Processing Rule Leave Workers and Consumers in the Lurch; Rule Hurtles Out of the White House Door at Record Speed

We’ve received the bad news from impeccable sources that the much-criticized USDA poultry processing rule has passed White House review at record speed—20 days, count ‘em!—and will be released late this afternoon.  As usual, the process of OIRA review was shrouded in secrecy, with affected stakeholders filing in and out of the White House to talk about a rule they had never seen to taciturn OIRA officials who had long since cut a deal with USDA.  Of course, the late afternoon release is designed to forestall criticism in the same news cycle that will report the White House spin on the rule.  But we know enough about it to make some basic observations.

Our sources informed us that the rule will allow companies to have processing lines that run at the speed of 140 birds per minute—that’s 2.3 chickens every single second, although it’s also the current USDA maximum, allowing USDA to claim that the new rule doesn’t make matters any worse. 

OSHA, which was deeply involved in negotiations with USDA, clearly views this outcome as a great victory because it reduces by 35 birds/minute the original and outlandish USDA proposal that line speeds increase to 175 birds/minute.  But saving workers from the furthest reach of bad conditions without beginning to address their documented daily misery is incremental change, not victory. The plain truth is that study after study, including a recent NIOSH report, have documented severe ergonomic injuries at line speeds significantly below 140 birds/minute.  OSHA didn’t review those studies dispassionately in a rulemaking that would honor its mission of protecting workers from harm.  Instead, it played a numbers game with USDA under the watchful eye of White House staffers, leaving an already bad working situation to fester. 

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USDA Submits Poultry Rule to OMB: The Facts

Yesterday, USDA submitted its draft final rule on poultry slaughter “modernization” to OMB for formal review.  This rule, as regular readers of CPR Blog will remember, would remove USDA inspectors from poultry slaughtering facilities, transfer some of their food safety and quality control duties to plant employees, and allow the plants to increase their line speeds to an astonishing 175 birds per minute.  On top of that, the rule allows each plant to develop its own testing protocols for E. coli, salmonella, campylobacter and other food-safety concerns.  It’s the foxes guarding the henhouse, for sure.

Along with many of our allies in the worker health and safety and food safety communities, we have been urging USDA since early 2012 to go back to the drawing board with this ill-advised rule.  USDA published its proposed rule in January 2012 without consulting with its inspection advisory committee, without holding public meetings to solicit other stakeholders’ views, and – especially galling – without seeking input from OSHA.

In the two and a half years since USDA proposed the rule, we’ve seen a steady stream of bad news for the proponents of the rule:

  • April 2013: NIOSH releases an interim Health Hazard Evaluation (HHE) report on a poultry slaughter facility that was attempting to get special permission to adopt the “modernized” inspection scheme before the final rule goes into effect.  Interim HHE reports rarely surface publicly, but this one had such striking results that its release was inevitable.  Among other findings, NIOSH discovered that 42 percent of worker-participants had evidence of carpal tunnel syndrome and 41 percent of worker-participants worked in jobs above industry standards for hand activity and force.

  • April 2013: Kimberly Kindy, writing in the Washington Post, highlights the tragic story of a USDA inspector who died of kidney and lung failure potentially linked to the chemical brew that was used to disinfect chicken at the plant where he worked.  Plants are likely to increase the use of these chemicals if the rule goes forward.

  • September 2013: GAO criticizes USDA for failing to thoroughly evaluate the performance of pilot projects that USDA had initiated to test the validity of its “modernization” proposal.  In its characteristically dry tone, GAO concluded: “USDA may not have assurance that its evaluation of the pilot project at young chicken plants provides the information necessary to support the proposed rule…”

  • October 2013: Kimberly Kindy, writing in the Washington Post, highlights the potential for increased animal abuse problems if poultry slaughter facilities increase their line speeds as the rule would allow.

  • March 2014: NIOSH releases its final HHE report on the facility described above, noting an “alarming prevalence” of carpal tunnel syndrome among workers in the plant and cautioning that “increasing the number of birds processed per worker may result in an even higher prevalence of carpal tunnel syndrome than seen in this NIOSH evaluation.”

  • April 2014: The NIOSH final report led to an “interagency throwdown,” in which USDA officials tried to downplay the findings only to have their claims repudiated by NIOSH’s Director, Dr. John Howard, who called USDA’s spin-attempt “misleading.”

For workers and consumers, this rule presents huge risks.  USDA has been operating in a black box since proposing the rule in early 2012, so it is unclear what changes might have been made to answer the concerns raised by the public interest community and other government agencies.  OMB should send this rule back to USDA with a “return letter” that instructs the agency to at least release the draft publicly, if not start from scratch.

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NLRB gets an earful on its “joint employer” definition

A coalition of occupational health and safety experts submitted an amicus brief to the National Labor Relations Board (NLRB) last Thursday, urging the Board to reconsider its restrictive definition of “joint employer” for purposes of collective bargaining.  It’s a critical issue for workers as more and more are getting jobs through temp firms, staffing agencies, and other complex employment relationships.  The workers who got your last-minute Father’s Day gift from the Amazon warehouse to your front door, for instance, don’t all get paychecks from Amazon, but they all operate at “Prime” speed because Amazon demands it.

From a health and safety perspective, it’s important that laws like the National Labor Relations Act (NLRA) and the Occupational Safety and Health Act (OSH Act) are interpreted broadly because the remedial purposes of those statutes – to ensure all workers can collectively bargain for better working conditions and to ensure that all workers are provided safe jobs – are best achieved when all of the employers with a connection to the job are at the table.

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Winning Safer Workplaces

Thousands of U.S. workers die on the job each year, the victims of unsafe workplaces. Countless more are injured, some permanently disabled, or exposed to toxic substances that could eventually harm or kill them. While the federal Occupational Safety and Health Administration has made progress to improve workplace safety since Congress passed the OSH Act in 1971, a new advocacy manual from the Center for Progressive Reform focuses on the progress on worker safety issues  likely to come at the state and local levels, far from the general dysfunction in Washington.

Winning Safer Workplaces: A Manual for State and Local Policy Reform, written by a team of lawyers and public health researchers, offers local advocacy groups a series of policy proposals, all ripe for enactment by state legislatures, city or county councils, or state or local agencies. 

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The Real

The federal regulatory system is in crisis. For the past several decades, a damaging set of mandates has continued to pile up on the books—mandates that threaten to stifle critical progress and undermine the nation’s ability to compete in the world economy. Even today, out-of-touch policymakers are attempting to add still more of these mandates, without regard to their direct, indirect, and cumulative costs to society. One might say that we are facing a tsunami, a flood, or even an avalanche of these mandates.

You’ve heard that sort of rhetoric before, I’m certain, deployed by opponents of various safeguards protecting consumers, workers, the environment, and more. But my diagnosis of the problem refers not to regulatory safeguards that agencies are, after all, obligated to issue as part of their statutory missions, but to the growing number of duplicative and utterly wasteful “lookback” or “retrospective review” requirements that opponents of regulation have sought to erect in their ceaseless bid to block effective implementation and enforcement of landmark protective statutes.

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CPR Analyst Matthew Shudtz to Testify at OSHA Silica Hearing

Today, CPR Senior Policy Analyst Matthew Shudtz will be testifying at OSHA’s hearing on the proposed silica rule.

According to Shudtz:

The testimony raises some concerns about how OSHA arrived at its proposal to provide limited medical surveillance for silica-exposed workers.  It also covers issues related to enforcement and small business impacts.  But most importantly, the testimony reiterates the need to get this rule finalized quickly.  As we have noted many times in this space, millions of workers are exposed to silica dust at levels that cause high rates of silicosis, lung cancer, renal disease, COPD, and other health problems.  The faster this rule is put in place and enforced, the faster these workers will be able to breath safer air.

To read the testimony in full click here.

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Conflict Disclosures for Regulatory Science: Slow but Steady Progress at Last

Basic disclosures of conflicts of interest have been required by the top science journals for decades. Yet most regulatory agencies – despite strong urging from a variety of bipartisan sources – have failed to require these disclosures for private research submitted to inform regulatory decisions.  This omission is particularly alarming since, unlike journals, agencies used this research to determine the appropriate standards for protection of public health and welfare.  If anything, one would expect the agencies to apply higher scientific standards and insist on greater transparency for privately submitted research as compared to journal editors.

The failure of agencies to meet these bare minimum standards of science has not gone unnoticed.  Recently, the Administrative Conference of the U.S. recommended that agencies should, where possible, require these basic disclosures of conflicts, including “whether the experimenter or author had the legal right without approval of the sponsor of the research to: design the research; collect the data; interpret the data; and author, publish or otherwise disseminate the resulting report or full dataset.”   See Recommendation #11.  Both the Bipartisan Policy Center (p.42) and the Keystone Center (p.20,24) preceded the ACUS recommendation with similar calls for basic conflict disclosures for private research that informs regulation. An editor of Nature recently called for such disclosures, noting:  

It was the 1976 film All the President’s Men, about the uncovering of the Watergate political scandal by two Washington Post reporters, that popularized the phrase: “Follow the money.” He who pays the piper calls the tune. Science combats the undue influence of commercial interests — or at least tries to — by using a different guideline, illustrated by a popular catchphrase from another film: “Show me the money.” Give us transparency.

Even members of Congress recognize the need for basic conflict disclosures in environmental in reform legislation (see § 4(b)) that is otherwise considered by environmentalists to be far too lax.  

At last, one federal agency has begun to show leadership on this issue.  Last November, in a proposed rule that would set standards for silica exposure, OSHA requested that commenters voluntarily disclose funding sources in the course of submitting their comments.  While this is simply a voluntary request by OSHA (and compliance with this request may prove disappointing), it is still a step in the right direction.  Hopefully other agencies and Congress will follow suit and make the disclosure requirements mandatory for new research submissions that inform public and environmental regulation, holding this regulatory science to at least the minimum standards of the scientific community. 

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CPR Member Scholars file Comments on OSHA’s Silica Proposal

At long last, the comment period on OSHA’s silica proposal has closed and the next phase in this rule’s protracted timeline will commence.  In the four months since OSHA released the proposal, the agency has received hundreds of comments.  They run the gamut, from the expected support of unions and other advocates for working people, to the fear-mongering hyperbole of the major trade associations.  CPR Member Scholars Sid Shapiro and Martha McCluskey joined us in submitting our own comments to the record.  You can read them here.

Silica dust is a pervasive occupational hazard.  The vast majority of exposed workers toil in the construction industry, where clouds of dust surrounding jackhammers, masonry and concrete saws, and brick and mortar work are an all too common sight.  OSHA seeks to eliminate those dangerous conditions by encouraging employers to provide modern tools that have better dust collectors, shrouds, and water feeds to suppress the dust.  The proposal also addresses the myriad other industries where silica exposure leads to debilitating cases of lung cancer, silicosis, and silica-related kidney disease.  Dental laboratories, ship repair companies, and ceramic refractories will also be subject to the rule’s new requirements.

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