The Obama Administration's Regulatory Agenda: Many Overdue Rules Need to Be Finalized to Fulfill Legislative and Public Safety Promises

by Randy Rabinowitz, 1/23/2013

Each year, the Office of Management and Budget (OMB) is supposed to publish two agendas of planned rules and at least one regulatory plan summarizing economically significant rulemakings likely to move forward in the near future. In 2012, the Obama administration skipped the spring agenda entirely and did not publish the fall agenda until December, likely because of the elections. The plan that finally emerged contains some positive measures but does not go far enough to significantly advance consumer, workplace safety, or environmental protections.

The Unified Regulatory Agenda was published on Dec. 20, 2012, as most of Washington was heading out of town for the winter holidays. OMB describes the agenda as a statement of "regulatory and deregulatory" policies. The introduction barely mentions the need to protect the public from harm and goes on to explain that agencies may never publish some of the rules listed in the agenda because, for example, a "careful consideration of costs and benefits may lead an agency to decline to proceed" with a rule it previously thought was necessary. OMB then asserts that the number of economically significant rules listed in the agenda is lower than in previous years, despite the fact that the Affordable Care Act and the Dodd-Frank financial reform law both require a significant number of new rules.

OMB ends by noting that agencies must retrospectively review existing regulations and, based on that review, may either "streamline, modify, or eliminate" rules. Significantly, OMB left out the option to strengthen rules, even though retrospective review may show that a particular public health protection is inadequate or that industry exaggerated the costs of compliance with the original rule. Instead, OMB emphasizes reducing costs to business. This is an unfortunate but familiar story.

The regulatory plans from individual agencies are a mixed bag. On the positive side, the FDA recently issued overdue proposals to implement the Food Safety Modernization Act, and the Consumer Financial Protection Bureau is moving forward with rules to strengthen homeowner and home buyer protections from mortgage scams, as required by the Dodd-Frank financial reform legislation. The Department of Health and Human Services is producing a stream of rules to implement the Affordable Care Act. And the president has promised to aggressively use his executive powers to adopt gun safety measures.

But the Occupational Safety and Health Administration's (OSHA) regulatory plan contains few new proposals. Under the Obama administration, OSHA has published only one new health standard, a revision to the agency's Hazard Communication standard designed to harmonize the American approach to notifying workers about chemical hazards with those of other countries. Presumably, some employees will benefit from uniform hazard information across nations, but the emphasis of this rulemaking has been on saving employers money ($556 million by OSHA's estimate), not on improving the health and safety of affected workers.

The Unified Agenda indicates that OSHA plans to publish a proposed rule to protect workers from silica exposure. But this has been in its plan for more than two years, while OMB blocked OSHA from publishing the proposed rule by keeping the standard in an ongoing review process. During this time, OSHA estimates that more than 100 workers have died of silica-induced lung cancer. Even if the silica proposal is finally published, the unreasonably long delay caused by OMB review means that a final standard is still years away. Because OSHA has been unable to move forward on the silica rule, other initiatives to protect worker health, such as standards to reduce worker exposure to beryllium and diacetyl, have dropped off the schedule.

The U.S. Environmental Protection Agency's (EPA) regulatory plan includes a number of important final rules that should improve environmental standards. Among the actions said to be in the final stages of development is a rule that would set greenhouse gas emission standards for new electric power plants for the first time. EPA will also revisit the air quality standard for ozone pollution that the president ordered the EPA to withdraw in September 2011. The proposed new standard limiting ground-level ozone pollution is now slated to be published in October.

Other actions remain stalled in earlier rulemaking stages, are identified only as long-term actions, or have disappeared from this year's regulatory plan altogether. Although EPA proposed new standards for the regulation of coal ash in 2010, little progress has been made toward issuing comprehensive national standards, and the rule has been pushed back to a long-term action in the last two regulatory plans. Especially troubling is the fact that EPA's proposed Chemicals of Concern List rule has languished at OMB for over two years. The proposed rule would add chemicals to a list of substances that present or may present an unreasonable risk of injury to human health or the environment and was submitted to the Office of Information and Regulatory Affairs (OIRA) for review in May 2010. The rule has now been excluded from EPA's regulatory plan, despite being listed in previous plans.

While EPA's plan includes a statement of the priorities established by Administrator Lisa Jackson, her departure from the agency could mean that these priorities, as well as the actions listed in the regulatory plan, will change.

This administration passed important legislation in its first term ā€“ the Affordable Care Act, the Food Safety Modernization Act, and the Wall Street Reform and Consumer Protection Act, among others. The president has promised action on climate change in his second term. But average Americans won't benefit from these laws until the regulations defining them are developed and approved. Unfortunately, the White House has not been aggressive or effective in promulgating rules, especially worker safety standards. With his "final election" behind him, and gridlock in Congress, we hope the president and his cabinet will begin to move important public health and safety rules through the regulatory process more quickly and efficiently. Without more deliberate efforts to speed the rulemaking process, the president's legislative legacy ā€“ and more importantly, the health and safety of many Americans ā€“ will be at risk.