Congressional opponents of public protections spent much of 2012 attempting to increase the procedural hurdles to establishing new rules that would implement federal laws and standards. Efforts to attack the scientific evidence employed by agencies continued. Both efforts are likely to re-emerge next year.

Legislative Assaults on Regulations Continued throughout 2012

Last year's end-of-year wrap up described the legislative attacks on specific health, safety, and environmental standards, as well as the regulatory process itself. Most of these bills were passed by the Republican-controlled House of Representatives but stalled in the Democratically-controlled Senate.

In 2012, such attacks continued. In July, the House passed the "Red Tape Reduction and Small Business Job Creation Act," nicknamed "the regnibus" because it comprised seven different pieces of anti-regulatory legislation. The most prominent of the bills was the so-called "Regulatory Freeze for Jobs Act," which would prohibit any new rules until the unemployment rate falls and stays below six percent.

The House also passed a package of anti-environmental bills on Sept. 21 in a last-ditch effort to further its majority's anti-regulatory agenda before it adjourned for the November elections. The legislative package, short-titled the "Stop the War on Coal Act of 2012," was comprised of five measures (four of which had already passed the House) that would limit the U.S. Environmental Protection Agency's (EPA) ability to regulate coal ash or to limit greenhouse gas emissions. The package also included the "Transparency in Regulatory Analysis of Impacts on the Nation (TRAIN) Act" (H.R. 2401), which would require that an interagency panel of non-experts review any EPA regulations before they are issued and submit a report to Congress on the costs of proposed regulations.

The Senate took no action on any of the anti-regulatory measures.

However, more seemingly innocuous bills were introduced in 2012 and could gain traction in 2013. Specifically, the Independent Agency Regulatory Analysis Act (S. 3468), introduced on Aug. 1 by Sens. Mark Warner (D-VA), Rob Portman (R-OH), and Susan Collins (R-ME), would require independent regulatory agencies to complete detailed cost-benefit analyses before proposing a rule and would empower the Office of Information and Regulatory Affairs (OIRA) to review and delay rules proposed by independent agencies, thereby undermining their very status as "independent." The legislation seemed headed straight to mark-up within the Senate's Homeland Security and Governmental Affairs Committee (HSGAC) until a massive public education campaign by advocates and commissioners of independent agencies stopped its movement. However, this bill and similar ones could resurface in 2013.

While the bill's supporters have presented it as a noncontroversial "process" bill, a number of independent agency regulators wrote that the bill "would interfere with our ability to promulgate rules critical to our missions in a timely manner and would likely result in unnecessary and unwarranted litigation in connection with our rules."¹ Among the agencies impacted are those charged with oversight of the banking and financial industry, such as the Securities and Exchange Commission (SEC), and the Consumer Product Safety Commission (CPSC), which is responsible for ensuring the safety of our products and children's toys.

Rulemaking Delays and Setbacks

A number of rules that would have strengthened health, safety, and environmental protections were stalled in the regulatory review process during 2012. Some speculated that these delays were intended to avoid publishing controversial rules during the election season. Some rules were finally released after the election, but the public is still waiting for about 108 actions pending review that have been delayed beyond the 120-day deadline set by executive order. Although some regulations have been held up at the agency level, OIRA was a significant source of delay in 2012.

One long-delayed rule is an effort by the Occupational Safety and Health Administration (OSHA) to strengthen workplace exposure limits for crystalline silica, a known cause of lung cancer and disabling respiratory illness. The silica rule has been at OIRA since Feb. 14, 2011 – almost two years. During this time, OSHA estimates that more than 100 workers have died from silica-related illnesses. This unreasonable delay occurred after OIRA held a number of closed-door meetings with industry groups and sparked a letter from 300 occupational health experts, public safety advocates, and labor officials, urging President Obama to release the rule for public comment. Almost a year after the letter was sent, the rule remains at OIRA.

Another proposed rule long past due is the U.S. Environmental Protection Agency's (EPA) effort to add toxics to its Chemicals of Concern List. Under the Toxic Substances Control Act (TSCA), EPA is supposed to add chemicals to its list of substances that present (or may present) an unreasonable risk of injury to human health or the environment. The rule is not economically significant and would have important health and safety benefits, yet it has been stalled at OIRA since May 2010. Over a year ago, Sens. Frank Lautenberg (D-NJ) and Sheldon Whitehouse (D-RI) wrote to OIRA asking that the proposed rule be released. OIRA has yet to release the rule or explain the reason for the delay.

Three sets of food safety regulations are also stuck at OIRA, even though the Food Safety Modernization Act of 2011 requires the Food and Drug Administration to promulgate the regulations by specific deadlines. Even the food industry says that delaying the regulations increases uncertainty, but the proposals have been under review at OIRA for over a year.

OIRA's Pattern of Delay

Under Executive Order 12866, OIRA review is limited to 90 days with a possible 30-day extension, but rules are routinely delayed beyond the 120-day deadline. An examination of OIRA review counts shows that the average number of days each agency action was under review was significantly higher in 2012 compared to the previous three years.

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OIRA completed about 390 reviews in 2012 (as of Nov. 30), far fewer than in the past three years. Of those, 77 reviews were related to economically significant rules. The average number of days it took OIRA to review each action increased from 39 days in 2009 to 75 days in 2012. A total of 108 actions have been at OIRA for 120 days or more. Only 21 of these pending actions are economically significant; 87 pending reviews are not economically significant actions.

Despite claims that there has been a "regulatory tsunami," a recent OMB Watch analysis indicated that the administration has been a relatively timid regulator, and OIRA is actually taking longer to review rules than in the past. In August, OIRA Administrator Cass Sunstein left his post and left behind a disappointing record of blocking rules that were opposed by industry interests. An interim administrator was appointed for the remainder of the year, and a new OIRA administrator will be nominated in the coming months.

Attacks on Agencies' Scientific Analyses

Opponents of regulation are increasingly attacking the scientific analyses conducted or synthesized by agencies, even when no regulatory proceeding is contemplated. Industry interests now routinely challenge agencies' scientific review processes and demand endless rounds of comment and peer review before government agencies can finalize rules preventing health hazards. These processes can take years. In the meantime, people get sick and die as a result of these delays.

The House held a hearing in 2012 entitled "Strengthening the Scientific Backbone of the EPA: An Examination of Agency Practices and Foundations for Regulations Affecting the American Economy." This hearing focused on "concerns about the role of science at EPA since its inception in 1970" and questioned the quality and integrity of the science EPA uses in regulatory decisions and in cost-benefit analyses, the role of peer reviews and advisory panels in reviewing scientific evidence, and even discussed the public's perception of EPA's science.

In September, Rep. Ralph Hall (R-TX), Chairman of the House Committee on Science, Space, and Technology, introduced the "EPA Science Advisory Board Reform Act of 2012" (H.R. 6564), which seeks to alter EPA's scientific review processes. This bill would limit the number of government-funded scientists allowed to serve on the EPA's Science Advisory Board (SAB) to 10 percent of the total board membership and prohibit specialized experts involved in a rulemaking, directly or indirectly, from serving on the board. The bill would attempt to make industry-funded scientists a majority of the members of the SAB. When industry scientists are not in the majority, the bill would guarantee them the right to file a dissenting report from any EPA finding of risk. This bill is widely supported by industry trade associations and is likely to reappear in 2013.

Notes
¹ In an Oct. 26, 2012, letter to members of HSGAC, Ben Bernanke, Chairman of the Board of Governors of the Federal Reserve System, Mary Schapiro, Chairman of the U.S. Securities and Exchange Commission, and four other financial regulators urged the committee to consider the negative consequences of the bill before moving forward with it. Available at http://www.ombwatch.org/files/regs/financial_regulators_ltr_lieberman_collins_s3468.pdf.

Photo by flickr user alex_ford, used under a Creative Commons license.