By David Michaels
Earlier today, President Bush took another step to limit the ability of regulatory agencies to protect the nationâs health and environment.
The President signed amendments to Executive Order (E.O.) 12866, further centralizing the control the Office of Management and Budget (OMB) has over agency activities, and making it more difficult for public health agencies to issue regulations or even guidance documents.
OMB Watch had just posted its preliminary analysis of the amendments. Here's an excerpt:
â¢ It shifts the criterion for promulgating regulations from the identification of a problem like public health or environmental protection to the identification of "â¦the specific market failure (such as externalities, market power, lack of information)â¦that warrant new agency action."
â¢ It requires guidance documents to go through the same OMB review process as proposed regulations before agencies can issue them.
â¢ It also requires "significant" guidance documents (those that are estimated to have at least a $100 million effect on the economy, among other criteria) to go through the same OMB review process as "significant" regulations.
â¢ It makes the agencies' Regulatory Policy Officer a presidential appointment and gives that person the approval authority for any commencement or inclusion of any rulemaking in the Regulatory Plan unless specifically authorized by the agency head.
â¢ It requires each agency to estimate the "combined aggregate costs and benefits of all its regulations planned for that calendar year to assist with the identification of priorities," which will be overseen by the Regulatory Policy Officer.
This White House clearly has no shame. Less than a week ago, the National Academy of Sciences called for OMB to withdraw a proposed risk assessment bulletin and to leave the risk assessment to the agencies. (Here's our post on the NAS review.) The Academyâs report was unprecedented - I cannot recall the NAS ever telling the White House to simply withdraw a document, rather than to modify it.
David Michaels heads the Project on Scientific Knowledge and Public Policy (SKAPP) and is Professor and Associate Chairman in the Department of Environmental and Occupational Health, the George Washington University School of Public Health and Health Services.
Those who checked out the FR print of the executive order will note the date: 1993. That was while you-know-who was president, and before you-know-who became speaker of the house. The 1993 EO carried forward and combined two Reagan era EO's, which in turn intensified a Carter era EO giving OMB its role in executive branch oversight of agency rulemaking.
So it's not just one party but the dominance of a set of ideas which drives these documents. On the other hand, it surely makes a difference who at OIRA is reading the RIA's. More important, is anyone at OSHA writing them?
These EO's, and the Regulatory Flexibility Act (also of 1980) are attempts to repeal, or place additional barriers to the formal requirements of Section 6(b) of the OSHAct.
For all that, it's my judgement that most standards lowering PEL's could get over such barriers. Ergonomics without doubt got over those barriers.
The significant risk and feasiblity criteria were written by activist judges to interpret the OSHAct to restrain OSHA from protecting workers. These EO's somewhat implement the RIA. There are two levels to this problem. First, did or can OSHA do the work which could meet the requirements? - a somewhat objective exercise using judgment of public health scientists. Second, did OSHA try in good faith and get knocked down by activist judges and OMB bureaucrats who distorted the facts.