Testing new regulatory czar’s commitment to transparency with OSHA’s silica proposed rule

President Obama’s regulatory czar, Howard Shelanski, has been on the job for a month.  During his confirmation hearing Shelanski expressed his commitment to transparency.  He suggested it was one of his key priorities within the White House’s Office of Information and Regulatory Affairs (OIRA) which is housed within the Office of Management and Budget (OMB).  As noted, however, by CPR scholar Sidney Shapiro and his colleague James Goodwin, OIRA has a long history of secrecy with respect to its role in the centralized review of agencies’ regulatory activities.  Many in the open-government community and others are eager to see if the new regulatory czar will live up to his transparency promises.   He now has the perfect chance to do so.

As I noted last week, the Labor Department’s Occupational Safety and Health Administration (OSHA) finally published a proposed rule to protect workers who are exposed to respirable crystalline silica.   It is a well written proposal and, if adopted, will go a long way to prevent construction, foundry and other exposed workers from developing silicosis, lung cancer and other adverse health effects.  Sadly, this vitally important proposal languished at the OIRA for more 906 days.  That’s ten times the time period prescribed in Executive Order 12866 which covers the centralized review of agencies’ regulatory actions.

In February 2012 when the stalled rule hit the one year mark for being “in review” at OIRA, more than 300 individuals sent a letter to President Obama calling for its release.  I wrote a blog post then too, entitled “What’s taking so long?”  I wondered how the inter-agency deliberation on the proposal could be so vigorous that OIRA needed more than 52 weeks to conduct it.   Well those 52 weeks turned into 128, and I’m more curious than ever to find out why OIRA’s review took so long.

One way to shed some light on the process comes in Executive Order 12866.  It says:

“After the regulatory action has been published in the Federal Register or otherwise issued to the public, or after the agency has announced its decision not to publish or issue the regulatory action, OIRA shall make available to the public all documents exchanged between OIRA and the agency during the review by OIRA under this section.”

As far as I can tell, this disclosure has not happened for this new OSHA proposal.  I searched the on-line docket for this OSHA rulemaking at Regulations.gov and the system didn’t identify any documents representative of OIRA’s feedback to OSHA.  (If they are there, I’ll eat my words and apologize.)

I’ve previously attempted to force OMB/OIRA to follow the disclosure requirements in Executive Order 12866.  Despite its clear language about making all documents exchanged between OIRA and the agency available to the public, I had to turn to filing a Freedom of Information Act (FOIA) requests to try to compel disclosure of the documents.  That did little good.  For example, when I requested documents from OMB/OIRA on the Labor Department’s proposed rule to protect young workers employed in agriculture, the White House office responding with this assertion:

“We have determined that 1,027 pages are exempt from mandatory disclosure, in their entirety, pursuant to FOIA Exemption 5 because they are interagency or intra-agency pre-decisional deliberative materials.”

I hope a new day has dawned at OIRA under Howard Shelanski’s watch.  Maybe his staff is just a little slow posting on a website their 900 days of communications with OSHA on the agency’s silica proposal.

Seeing whether OIRA complies with the Executive Order 12866, will be a good test of the new regulatory czar’s true commitment to transparency.

On the other hand, I may be compelled to write a post with the headline “It took them that long for this?”