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.Full text
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.Full text
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.Full text
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.Full text
Today, separate House committees will hold hearings that address two federal agencies’ efforts to regulate toxic chemicals. The House Energy and Commerce Committee’s Subcommittee on Environment and the Economy will hold its fifth hearing on issues arising out of ongoing efforts to reform the Toxic Substances Control Act (TSCA). Simultaneously, the House Education and Workforce Committee’s Subcommittee on Workforce Protections will hold a hearing addressing, among other things, OSHA’s recent attempts to spur better protections for workers who face chemical hazards. The two hearings have been framed differently and will feature different witnesses, but they share a common thread: each committee’s Republican majority is championing a worldview in which federal agencies should be restricted from engaging in the most basic form of protective action – gathering and sharing information about toxic chemicals’ risks.
The Energy and Commerce hearing, which has a rather conspicuous absence of EPA officials on the witness list, will focus on the provisions of TSCA that relate to chemical testing. It is commonly accepted that EPA – and especially, the public – lack sufficient knowledge about the hazards presented by toxic chemicals in our environment. TSCA does not set out minimum requirements for testing that companies must undertake before putting a chemical in the stream of commerce, so we are left to deduce potential toxicity from whatever information companies voluntarily disclose to EPA in their “pre-manufacture notifications” and EPA’s own analysis of potential toxicity using models that compare chemicals of similar structure and composition. To make matters worse, some 60,000 chemicals were already on the market when Congress wrote TSCA in 1976 and their uses were grandfathered in, meaning that companies were not required to submit any testing information to EPA. Expect witnesses at the hearing to agree that more information would improve the balance between protecting the environment and protecting chemical companies’ bottom lines. But don’t expect them to agree on how to get more information. As we wrote in a July 2013 Issue Alert, the best solution involves multiple pieces: minimum data sets for all new and existing chemicals, prioritized review of those data sets, and information sharing between EPA and the European Chemicals Agency, which is pulling in large amounts of new information through its revolutionary REACH legislation.Full text
A video called, “,” featured on OSHA’s website, introduces Bill Ellis, a retired painter and sandblaster. After years of exposure to fine particles of blasted rock, he developed a respiratory disease called silicosis and died, leaving behind his wife, children, and grandchildren. Ellis’s final months were painful. For a silicosis patient, just drawing breath is an ordeal—like sucking air through a straw.
Thousands of laborers are exposed to the tiny stone particles, called silica, that killed Ellis. Any time workers blast sandstone, saw concrete, or cut brick, that dust is in the air. Because of the broad danger and the availability of relatively inexpensive protective gear, OSHA has proposed rules updating worker safety standards for silica. The current rules have not been revised in over forty years.
The would lower the permissible exposure limit (PEL) of silica dust from 100-250 micrograms per cubic meter of air to 50 micrograms. The rule could nearly 700 lives and prevent 1,600 new cases of silicosis each year. After including costs of implementation, average net benefits are estimated at $1.8 to $7.5 billion per year.
The potential benefits of the rule are truly remarkable. The result seems like a dream situation, where a government agency can protect people and save money. Isn’t that what regulatory agencies are supposed to do?Full text
When we all sit down for Thanksgiving dinner next week, we hope that the food we are feeding our families is wholesome and that the workers who produce it are safe. Thanks to the U.S. Department of Agriculture (USDA), ever the mindless booster of corporate profits, that turkey at the center of the table already disappoints both expectations, and if USDA has its way, matters are about to get much worse. Hiding behind disingenuous promises to “modernize” the food safety system, USDA has decided to pull federal food inspectors off the line at poultry processing plants across the nation. No new preventative measures to ensure that poultry is free of salmonella would happen. And already crowded, bloody, stinking lines would speed up dramatically—to as many as 175 birds per minute, or three birds/second. Workers who suffer grave ergonomic injuries from the repetitive motions of hanging, cutting, and packing the birds would endure conditions that are two or three times worse than the status quo.
The consequences of USDA’s de-regulatory scheme are well documented. Back in 2001, the Government Accountability Office (GAO) found significant food safety concerns in pilot plants authorized to test the new system and just this past summer slammed the USDA’s data in justifying the program. The Agency is using data cherry-picked from two-year snapshots over a 15-year period of the piloted system to justify the program and relying on old and inaccurate economic analysis.
One of the healthiest things a person can do is to eat lots of fruits and vegetables. Unless they’re contaminated with dangerous pathogens, that is. Contaminated produce has been responsible for an alarming number of deaths and illnesses in recent years, from Listeria-tainted cantaloupes that killed up to 43 people in 2011 to a Cyclospora outbreak linked to salad mix and cilantro that sickened 631 people in 25 states this past summer.
For this reason, the Food Safety Modernization Act (FSMA) directed the Food and Drug Administration (FDA) to set standards to ensure the safety of the fruits and vegetables in our food supply. The FDA’s proposed rule on produce safety would address some of the most likely sources of contamination on farms, including tools and equipment, water used in agricultural activities, and worker health and hygiene. At the Center for Progressive Reform we submitted comments to the FDA, urging the agency to issue the final produce rule as soon as possible, in its strongest, most protective form.
We focused most of our attention on the economic analysis that accompanied the FDA’s proposal. The FDA found that the rule is easily justified on economic grounds, estimating annual benefits of $1.04 billion—representing 1.75 million avoided illnesses in the United States—and annual domestic costs of $460 million.
But once we looked behind these numbers, it became clear that the rule’s benefits will be even more significant, and its costs considerably smaller, than the FDA suggests. The agency’s estimates are built on flawed assumptions, and those flaws were greatly exacerbated by the White House Office of Information and Regulatory Affairs (OIRA) during the 13 months that it spent marking up the proposal and delaying its release. By misrepresenting the rule’s impacts, these distortions help to fuel needless negativity towards the rule, from members of Congress, produce-industry associations, and farmers themselves.
Below are some examples of how the analysis overestimates the rule’s costs.Full text
Today, Center for Progressive Reform board member and University of Texas School of Law professor Thomas O. McGarity will testify at aHearing hosted by the Senate Judiciary Committee entitled, "Justice Delayed II: the Impact of Nonrule RuleMakiing in Auto Safey and Mental Health."
McGarity's testimony can be read in full here.
According to the testimony, some possible solutions to the problems created by nonrule rulemaking include:
Agencies that are conscientiously committed to carrying out their statutory missions will continue to employ informal rulemaking with all of its burdensome accoutrements if they have no other alternative. For example, EPA’s statutes typically require it to use informal rulemaking to fill in the necessary implementation details, and they often specify precise deadlines for EPA action. Its heavy rulemaking output during the past few years is a testament to the ability of a very determined agency to employ even a broken system to achieve important statutory goals. But those efforts consumed scarce resources that are unlikely to be available in such quantities in the future. The agency has on many occasions made policy through less formal devices like guidance documents that are not subject to many of the requirements that afflict informal rulemaking. And it will no doubt continue to do so as the resources available to the agency dwindle.Full text
Tomorrow, a subcommittee of the Senate Judiciary Committee chaired by Senator Richard Blumenthal (D. Connecticut) hosts a Hearing on the consequences of excessive regulatory “ossification” entitled, “Justice Delayed II: The Impact of Nonrule Rulemaking on Auto Safety and Mental Health.” I will be testifying at that hearing on the effects of agencies’ moving to more informal rule-making procedures as a way to avoid the burdensome analytical and internal review requirements that currently make it so difficult for them to promulgate rules.
During the 1980s and 1990s, the rulemaking process became increasingly rigid and cumbersome as presidents, courts and Congress added an assortment of analytical requirements to the simple rulemaking model and as evolving judicial doctrines obliged agencies to take great pains to ensure that the technical bases for rules were capable of withstanding judicial scrutiny under what is now called the “hard look” doctrine of judicial review. More than twenty years ago, Professor E. Donald Elliott, himself a former General Counsel of the Environmental Protection Agency, referred to this phenomenon as the "ossification" of the rulemaking process, and I wrote an article based on my study for the Carnegie Commission describing the ossification phenomenon, identifying some of its causes, and suggesting some ways to “de-ossify” the rulemaking process.
My 2012 article on “blood sport” rulemaking highlights many of the tactics that stakeholders now use for slowing down or influencing the outcome of high-stakes rulemaking proceedings, many of which are employed outside the APA’s notice-and-comment process. Under the pressure of constant opposition from the regulated industries and with only sporadic countervailing pressure from beneficiaries of the regulated programs, statutory deadlines are missed, ambitious policy goals remain unachieved, and the protections envisioned by the authors of the statute gradually erode away.
Along with many other scholars, I am convinced that the current rulemaking process is not merely ossified -- it is broken.Full text