When it comes to OIRA’s antiregulatory meddling, the Federal Aviation Administration’s (FAA) pilot fatigue rule provides as textbook an example as you could ask for. Following Congress’s instruction that the rule be based on the best available science regarding human sleep patterns, the agency drafted a rule that set minimum rest standards for all commercial pilots. But, the rule couldn’t take effect without the White House’s Office of Information and Regulatory Affairs’ (OIRA) review and final approval. After more than four months, the rule that emerged from the OIRA review gauntlet had been significantly weakened. The minimum rest standards now applied only to commercial passengerpilots, while commercial cargo pilots were completely exempted. The change was based not on sleep science, as Congress mandated. What’s the justification? Fatigue generally affects all pilots the same, no matter what they happen to be hauling behind them. Against logic, OIRA justified the changes on the basis of an irrelevant, and arguably illegal, cost-benefit analysis: According to OIRA, the benefits of protecting cargo from fatigue-induced plane crashes, unlike the benefits of protecting passengers, simply did not justify the costs of abiding by the minimum rest standards. Not coincidentally, during the months-long review, a parade of cargo airline industry representatives marched through OIRA’s doors arguing for the change, relying on this very same cost-benefit analysis argument.
The story above is a familiar one, and most accounts of OIRA interference typically stop with the weakened and delayed final rule’s issuance. In reality, though, OIRA interference usually sets off a chain reaction of negative consequences—in the form of real harms to real people and to the effective functioning of our system of governance—that are worth taking a close look at. Indeed, the FAA’s pilot fatigue rule provides a glaring example of these negative consequences, as several recent developments have demonstrated.
Most dramatically, this past August a UPS cargo plane crashed while attempting an early morning landing at Birmingham–Shuttlesworth International Airport in Alabama, killing both crewmembers on board. In addition to the two fatalities, all of the cargo on the plane was destroyed in the crash, and some homes located near the airport were also allegedly damaged. The National Transportation Safety Board (NTSB) expects that its investigation into this incident will take several months to complete. At this point, however, the NTSB has found no evidence of mechanical failure and is now looking into whether the crash was a result of pilot error—including whether pilot fatigue was a contributing factor. The incident does provide a vivid illustration of what OIRA has put at stake with its meddling. It also provides a cautionary warning of the kinds of needless tragedies we can potentially expect if commercial cargo pilots remain exempted from the FAA’s minimum rest standards.Full text
Yesterday, the Environmental Protection Agency (EPA) announced that it was “withdrawing” from White House review its draft final guidance that sought to clarify the scope of the Clean Water Act. The guidance had been languishing at the Office of Information and Regulatory Affairs (OIRA), which oversees the White House regulatory review process, for 575 days, even though Executive Order 12866, the document that governs OIRA review of regulations, caps the length of reviews at 90 days plus a limited, one-time extension of 30 days. This is just the latest episode in what now appears to be a new disturbing trend: The Obama Administration seems to be increasingly relying on a relatively uncommon practice known as a “withdrawal” to unceremoniously dispose of long-overdue OIRA reviews involving important safeguards that are vigorously opposed by industry.
Over the last few months, several other industry-opposed rules have met a similar fate of being withdrawn after sitting at OIRA for well beyond the time limit permitted by Executive Order 12866:
·The National Highway Traffic Safety Administration’s (NHTSA) draft final rule mandating rearview cameras to prevent back-over accidents involving children: “Withdrawn” from regulatory review on June 20, 2013, after collecting dust at the OIRA for 583 days.
·The EPA’s draft proposed Chemicals of Concern list—an absurdly modest regulatory “action” that would have merely identified a handful of potentially harmful chemicals as worthy of additional agency scrutiny: “Withdrawn” from OIRA review on September 6, 2013, after an astonishing delay of 1214 days.
· The EPA’s draft proposal to limit the chemical industry’s specious “confidential business information” claims to shield crucial health and safety data on their new chemicals from public disclosure: “Withdrawn” from OIRA review on September 6, 2013 after 620 days.
Before delving into why this apparent uptick in withdrawals is cause for concern, some background may be in order. A “withdrawal” occurs when an agency voluntarily chooses to “withdraw” a draft proposed or final rule from the regulatory review process before OIRA, as the regulatory gatekeeper, has either formally approved the draft—clearing it for publication in the Federal Register—or denied it, through a “return letter,” sending the draft back to the agency for more work. At least, that’s the theory of how withdrawals work. In some cases, the circumstances suggest that OIRA or other White House officials have pressured the agency into withdrawing a rule.
The Executive Order does impose on OIRA important disclosure requirements that if followed, would help to bring needed transparency to the withdrawal process. Under the Order, these obligations are very broad, requiring OIRA to “make available to the public all documents exchanged between OIRA and the agency during the review by OIRA.” (Emphasis mine.) See for yourself at section 6(b)(4)(D). Presumably, included in “all” these “documents” would be evidence of flaws or policy disagreements that led the agency to withdraw the rule. It would also shed some light on whether this withdrawal was in fact voluntary or under pressure from the White House—and thus just a return letter by another name.Full text
Last week, Regulatory Czar Howard Shelanski embarked on his maiden voyage into the glamorous world of White House blogging, penning a post that touts the latest burden-reducing accomplishment of President Obama’s dubious regulatory “look-back” initiative. On this auspicious occasion, he trumpets the Department of Transportation’s (DOT) proposed rulemaking to reduce the number of inspection reports that commercial truck drivers have to file, resulting in reduced paperwork burden costs to the tune of $1.7 billion annually.
Shelanski makes clear in the post that this DOT rulemaking is not an isolated incident, but is in fact part of the regulatory look-back initiative’s broader antiregulatory project. He explains that the initiative is necessary because “some regulations that were well crafted when first issued can become unnecessary over time as conditions change—and regulations that aren’t providing real benefits to society need to be streamlined, modified, or repealed.” (Emphasis mine) In case the look-back’s antiregulatory objective wasn’t clear enough the first time around, Shelanski states emphatically at the end of the post: “This Administration will expand and further institutionalize our regulatory look-back efforts to ensure that we continue to identify rules that need to be modified, streamlined, or repealed.” (Emphasis mine again)
I’ve got a serious bone to pick with Shelansk’s three-part formulation of the look-back initiative’s goals (“streamline,” “modify,” “repeal”), and it’s this: The clear language of Executive Order 13563—which lays the initiative’s groundwork—reveals that Shelanski is deliberately overlooking a fourth stated goal—to “expand” existing rules where appropriate—which, not incidentally, is all that provides the look-back process with any semblance of balance. It’s right there in Section 6 of the order: “. . . agencies shall consider how best to promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.” (Emphasis mine yet again) See for yourself. I’ll wait.Full text
Tomorrow, a new panel in the Senate Judiciary Committee—the Subcommittee on Oversight, Federal Rights, and Agency Action—will bring some much-need sanity to the discussion of federal regulatory policy when it holds a hearing entitled “Justice Delayed: The Human Cost of Regulatory Paralysis.” What’s so refreshing about this hearing is that it starts from the premise that blocked and delayed safeguards are a problem that needs to be solved.
Crucially, this hearing will provide an opportunity to shine a light on the costs that are imposed on the public when regulations aimed at protecting people and the environment are unnecessarily delayed. These costs represent real harm to real people—and they are by definition preventable.
Previously, in this space, I examined the costs to the public that would result from the new delays to three rules that were announced in the Spring 2013 Regulatory Agenda. These included at least 300 premature deaths from the delay of the National Highway Traffic Safety Administration’s (NHTSA) Rearview Mirror Rule and at least 1,000 premature deaths and 1,467 non-fatal heart attacks that would result from the delay of the EPA’s updated ozone National Ambient Air Quality Standard (NAAQS). All of these costs are preventable, but not prevented.
Several of the scheduled witnesses for tomorrow’s Senate Judiciary hearing will help to provide a clear picture of what the costs of regulatory delay entail. CPR President Rena Steinzor will testify about how environmental regulations have benefited the public greatly, and how the continued delay of several pending safeguards—such as the Environmental Protection Agency’s (EPA) rules to control disposal of hazardous coal ash waste and to require cleaner-burning automobile fuel—produce great harm.
Tomorrow’s hearing is a welcome development, because when it comes to the issue of federal regulatory policy, sanity has been in short supply on Capitol Hill for the last four-plus years. And the timing of the hearing couldn’t be better, as it takes place during what House Republicans are calling “Stop Government Abuse Week,” a week dedicated to bashing public servants and voting on ill-conceived bills, including the REINS Act and the Energy Consumers Relief Act, which if passed, would make it all but impossible for the EPA and other agencies to carry out their congressionally mandated missions of safeguarding the public.Full text
Earlier this week, Regulatory Czar Howard Shelanski testified before the House Small Business committee to update committee members on the progress the Obama Administration has made with the regulatory look-back process established by Executive Orders 13563 and 13610. In one interesting exchange with Rep. Blaine Luetkemeyer (R-Mo.), Shelanski offered the following perspective on the Office of Information and Regulatory Affairs’ (OIRA) approach to regulatory review:
The interpretation of an agency’s statute and the choice of policy—to the extent there is discretion under that statute—is in the first instance in the province of the department or agency that is issuing the regulations. OIRA doesn’t set policy priorities or do the initial legal interpretations for the agencies. They do that.
(Skip ahead the 20:00-minute mark of the hearing.)
If true, this statement from Shelanski would represent a dramatic shift in how OIRA sees its role in the rulemaking process. For the past 30 years or so, OIRA has never been shy about trumping agencies on their policy priorities or their choices of policy. Indeed, just a few months before Shelanski took the helm there, OIRA blatantly interfered with the EPA’s rulemaking to update the effluent limitation guidelines (ELG) for power plants, as documented in a damning new report by several national environmental groups. The draft proposal that the EPA submitted to OIRA review contained several regulatory “options” for updating the ELG, and among those the EPA identified two of the stronger options—Option 3 and Option 4—as “preferred.” When the proposal emerged from OIRA more than three months later (following several meetings between OIRA and outside groups, including a number with corporate interests opposed to a strong standard), it had been drastically altered. (See the “redline” version showing all the changes that had been made here.) Among the changes, OIRA forced the EPA to include three new weaker options (Options 4a, 3a, and 3b). OIRA also forced the EPA drop Option 4 as a “preferred” option (this was the stronger of the two options that the EPA had initially preferred) and to instead designate all three of the new weaker options it added as “preferred.”Full text
“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 text
Welcome 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 text
Yesterday'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.
Earlier this week, Karen Mills, the current Administrator of the Small Business Administration (SBA), announced her intention to leave office, opening up another second-term vacancy for President Obama to fill in the coming months. The SBA position is unlikely to attract as much media attention or pundit speculation as the EPA or Energy Interior posts, but it could have a big impact on whether the Obama Administration is able to take on the long to-do list of public health, safety, and environmental challenges that the nation currently faces. The next SBA Administrator can and should begin the critical process of reshaping the controversial SBA Office of Advocacy so that it focuses on helping truly small businesses, without undermining regulatory safeguards.
A recent CPR white paper I co-authored examined how the Office of Advocacy uses federal tax dollars to try to block health, safety, and environmental regulations, often at the behest of large companies. This small and largely unaccountable office, the paper argues, exerts significant influence over the federal rulemaking process, and its work all too often does not benefit truly small business. Rather, the Advocacy office typically echoes the viewpoints of large corporate interests who are already well represented in the rulemaking process, often with the result of watering down or bottling up safeguards needed to protect people and the environment against unreasonable risks.
The white paper concludes by offering several recommendations aimed at creating a more productive role for the Office of Advocacy to play in the federal regulatory system. First, it recommends reorienting the Advocacy office’s mission so that it works toward promoting small business competitiveness—that is, finding ways to help small businesses meet effective regulatory standards without undermining the capacity to compete with larger firms (what we call “win-win” regulatory solutions). Second, mindful that some of the "small" businesses the Advocacy office thinks are its constituents have as many as 1,500 employees, the white paper recommends restricting the Advocacy office’s focus to truly small firms—those with 20 or fewer employees—which lack the resources and expertise to participate meaningfully in individual rulemakings on their own.Full text
Yesterday, the Mine Safety and Health Administration (MSHA) finalized the long overdue Pattern of Violations rule, a measure that will enhance the agency’s enforcement authority by making it easier for the agency to hold scofflaw mines strictly accountable for repeatedly and needlessly putting their workers at risk of chronic illness, severe injury, or even death. The deterrent effect of this enhanced enforcement authority will discourage delinquent mine operators from cutting corners on health and safety, a development that will produce significant benefits for America’s miners. MSHA estimates (see page 6) that the rule will prevent nearly 1,800 non-fatal injuries over the next 10 years, in addition to reducing instances of illnesses and fatalities.
The Pattern of Violations rule was one of the high priority regulatory actions that MSHA announced in response to 2010’s Upper Big Branch Mine disaster, in which 29 miners were killed in a massive mine explosion. Several investigations of the incident revealed that the explosion was precipitated by a deadly combination of hazardous conditions including improperly maintained mining equipment, inadequate ventilation, and insufficient rock dusting; the Upper Big Branch Mine had had been repeatedly cited for many of these kinds of hazards in the months prior to the disaster. Between 2005 and the time of the explosion, MSHA had cited the Upper Big Branch Mine for 1,342 violations. In 2009 alone, the agency cited the mine for 515 different safety violations, around 200 of which MSHA deemed to be “significant and substantial,” or violations that could reasonably be expected to lead to a serious injury or illness. The Upper Big Branch Mine’s operator—the now defunct Massey Energy Company—also had a long history of operating mines with similar health and safety violations.
Under the existing rules, delinquent mines that in practice had a long pattern of violations could avoid official “pattern of violations” status—which would enable MSHA to order the mine to withdraw workers from any part of the operation that it subsequently finds to have a significant and substantial violation—by appealing the citations. The Massey Energy Company had resorted to that tactic with Upper Big Branch, and MSHA had also made an error that stopped the company from moving a step closer to receiving a pattern of violation notification. Had a proper Pattern of Violations rule been in place, and had MSHA properly implemented it, the Upper Big Branch Mine disaster might have been prevented.Full text