Delayed Health and Safety Standards Cost Lives

Katherine McFate

On Tuesday, I testified at a hearing of the Senate Homeland Security and Governmental Affairs Committee's Subcommittee on the Efficiency and Effectiveness of Federal Programs and the Federal Workforce about why critical health and safety standards were being delayed and how we could improve the timeliness and transparency of the rulemaking process. A condensed version of my oral testimony follows, along with a link to my written testimony.

"Our system of standards and safeguards has made this country a safer, better place. Workplace fatalities are a fraction of what they used to be. Our air is less polluted, our rivers cleaner, our food, drugs, toys, and cars are safer. Public protections have given us the highest living standards in the world, have encouraged our businesses to innovate and grow, and supported broadly shared prosperity for decades.

"But our infrastructure – both public and private – is aging, resources for enforcement are declining, a substantial proportion of the skilled workforce involved in inspection and oversight will soon retire, and our standards and safeguards are simply not keeping up with the fast march of scientific knowledge.

"Because our rulemaking system has become increasingly slow and opaque. The regulatory process has been burdened by excessive delays, redundant analytic requirements, and unwarranted legal challenges, all of which make it ever harder for us to translate new knowledge and evidence into effective public action.

"And while we wait, children and elderly people develop preventable cancers, toddlers are run over in driveways, workers are debilitated by respiratory diseases, and the planet warms."

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"Rules that come out of federal regulatory agencies now take an average of four to eight years to complete. They are based on comprehensive reviews of scientific literature by experts, cost benefit analyses, of testimony and materials gathered from a myriad of stakeholder, including representatives of regulated industries, public comments, and consultations. Industry representatives have multiple opportunities to weigh in; public interest advocates, parents, consumers, and small businesses less so.

"Centralized review of proposed and final rules by staff at the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget in the White House delays results by months and even years, by requiring duplicative cost-benefit analyses and new analytic requirements, and though the exertion of behind-the-scenes pressure on agency personnel to change the rules they developed, almost always in ways that weaken their public protection benefits."

A few examples of why that is a problem:

  • A rule to reduce coal miners' exposure to coal dust, submitted by the Mine Safety and Health Administration, has been under review at the White House Office of Information and Regulatory Affairs since August 2013, well beyond the 90-day limit the office has to look over such standards. Between 1998 and 2007, more than 10,000 miners died from black lung disease, and the prevalence of black lung cases has more than doubled since the mid-1990s.

  • According to Kids and Cars, roughly 100 children die each year after being struck by cars and trucks backing up in driveways and parking lots. The backup camera rule at the Department of Transportation was supposed to be finished by 2011. Two full years have passed since the deadline, and roughly 200 children have died – deaths that could have been prevented had this rule not been delayed.

  • The Occupational Safety and Health Administration says its updated silica standards would save more than 680 lives each year. The rule has been under development since 1997. Sixteen full years have elapsed, and delays have cost 11,000 lives.

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"The executive order governing OIRA review practices (E.O. 12866) sets a 90-day deadline for OIRA to review rules and requires OIRA to be transparent about the changes that it asks agencies to make. But the deadlines are often missed or transparency requirements are circumvented by informal reviews that can start at very early stages of the rule-making process.

"Our recommendations to reduce delay:

"Once a rule has been formally submitted for OIRA review, a failure to meet the 90-day deadline should be considered "default approval" of the rule, agencies would be allowed to issue the proposed or final rule.

"The public should be able to petition the agency responsible for the proposed or final rule to publish a rule that has been delayed more than 90 days. So either the agency or the public could demand that OIRA release a delayed rule.

"The scope of agency actions that require OIRA review should be limited. Congress could stipulate that OIRA may not review agency guidance documents, pre-rulemaking actions, or rules that are not economically significant. (The economic threshold for defining "economically significant" rules was set at $100 million in 1978. Adjusted to its gross national product today, an economically significant rule would have to cost more than $660 million; in a $17 trillion economy, this is better marker of significance.1)

"Agencies should not be forced to engage in resource-intensive exercises to search for outdated rules that businesses haven’t even identified as problematic. Our public protection agencies need to be scanning the landscape for emerging threats. We have hundreds of new chemicals, drugs, and medical devices being introduced each year; new nanomaterials are being used; we have more imported products than ever before. We need to monitor these emerging risks, not look backwards.

"Our transparency recommendations:

"OIRA should be required to provide copies of the pre- and post-review versions of the rule in the rulemaking docket; a description of the all substantive changes made to the rule by OIRA during both INFORMAL as well as formal review should be posted – in clear and simple language. This means any changes made by an entity of the Executive Office of the President, by an agency not responsible for the rule, or by an individual not employed by the executive branch (i.e., lobbyists, trade association or industry representatives) should be recorded.

"Finally, OIRA should also be required to provide a summary of the subject matter discussed in meetings with non-executive branch government personnel and outside groups and to post these summaries together with the current meeting materials on its website.

"The public has a right to know why important public protections and health and safety standards are being delayed and who’s responsible. That’s what accountability means."

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You can also read my written testimony right here on our website.

1 In recent years, OIRA has typically undertaken reviews for 600-700 rules considered either "economically significant" or deemed significant for other reasons, such as raising "novel legal or policy issues" or causing "a serious inconsistency or otherwise interfere with an action taken or planned by another agency." As of the end of February 2014, 51 rules pending at OIRA had exceeded the 90-day review period, including seven "economically significant" rules. Forty-three of these rules have been pending for more than 120 days.

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