Regulatory tsunami, what tsunami?
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 according to the regulatory watchdog group OMB Watch. Efforts to attack the scientific evidence employed by agencies continued.
Both efforts are likely to re-emerge next year.
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 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 the Office of Management and Budget’s (OMB) Office of Information and Regulatory Affairs (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. More than a year ago, Sens. Frank Lautenberg (D-NJ) and Sheldon Whitehouse (D-RI) wrote to OIRAasking 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 industrysays 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.
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 analysisindicated 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.
Source: OMB Watch. Effective January 7, 2013, the 30-year-old nonprofit has a new name: The Center for Effective Government.