Scholars urge Reg Czar reforms

University of Maryland Law Professor Rena Steinzor called for fundamental changes to the role of OMB's Office of Information and Regulatory Affairs (OIRA) in federal regulatory review, at a House Committee hearing held on April 30.  The Subcommittee on Investigations and Oversight of the Committee on Science and Technology has been examining OIRA's functions and responsibilities, with the chairman stating:

"...Though rarely in the headlines, OIRA has, in the years since its creation under President Reagan, quietly become the most powerful regulatory office in the Federal government."

Professor Steinzor noted that the nomination of Cass Sunstein, President Obama's choice for OIRA chief,* is looming, thus it is appropriate to examine the office's function.  Steinzor made three specific points:

1. The Administration and Congress "should define a new mission" for the OIRA chief;
2. "OIRA should stop reviewing individual regulatory proposals"; and
3. OIRA must stay out of science policy.

In her written testimony, she offers a critique of cost-benefit analysis (CBA) and describes retrospective assessments of CBA which show that as tools used in public health decision-making, CBA  "weaken protection of health, safety and enviornment, not strengthen it."  Professor Steinzor's proposal depicts the current OIRA scheme as a "regulatory killing ground" and makes the compelling point that:

"OIRA is staffed by approximately 40-50 economists who cannot possibly review every regulatory proposal thoroughly.  Nevertheless, the threat of OIRA review is deeply disruptive of rulemaking.  Because agencies do not know which CBA the OIRA economists may find objectionable, they must gird up for battle over each regulation they are developing."

She suggests that a redefined role for the OIRA "regualtory czar" should focus on improving public health protections, by assisting agencies like EPA, FDA, OSHA, CPSC and NHTSA, by:

• "giving them adequate resources to fulfill their statutory mandates"
• "helping them to develop strong, proactive agendas," and
• "ensuring that they receive enhance legal authority to take decisive action."

Steinzor offers examples of how these specific public health agencies are plagued by "acute and dangerous regulatory dysfunction."  Her brief portrayal of OSHA includes examples that are all-too familiar to readers of TPH:

• "the existing standard for crane safety has not been updated since 1971."
• "beryllium, an extraordinarily toxic metal...is regulated under a 1949 standard that is ten times less protective than a standard" applied in DOE facilities;
• "OSHA has issued only two new standards to control chemical exposures in the workplace iver the last ten years; and
• "Descriptions of conditions in meat and poultry packing plants by GAO and a superb series of reports in the Charlotte Observer are hair-raising.

Her examples related to our nation's other key public health agencies are equally gripping, as is her recommendation that OIRA give up its reign as the reviewer with final say on agency rules.  She notes previous Administrations apparently

"...did not have confidence in their appointees [heading] agencies could exert enough control over career staff to accomplish presidential goals.  Ironically, this fear that agency heads would 'go native' did not really materialize, especially under Bush II.  Futhermore,  all of the agencies have ample expertise to prepare [regulatory] documents, under the supervision of political appointees who have expertise in the matter..."

Professor Steinzor concluded her testimony urging that economist-laden OIRA get out of the business of reviewing agency science.  She reminds us of instances in our recent past (G.W. Bush terms) in which OIRA ursurped control over scientific data quality, peer review, risk analysis, among others.

"Given this unfortunate track record, it is vitally important that OIRA under the Obama Administration confine its supervision of government to areas within its expertise, leaving to experts, such as White House science policy advisor John Holdren, the difficult job of restoring the independence and integrity of regulatory and other science policy issues throughout the government."

In my January 9 post "Worrisome pick for Obama's regulatory czar," I expressed my concern about Cass Sunstein's affinity for CBA, and its reliance on monetized benefits and latency discounting.  The most convincing assessment of the inadequacy and inappropriateness of CBA for public health protections is the book by Ackerman and Heinzerling, Priceless: On Knowing the Price of Everything and the Value of Nothing (New Press, 2005).   A Senate confirmation hearing on Cass Sunstein's nomination has not yet been scheduled.

*Note: The U.S. Senate offers a website with info on nominations received, and their status.  Professor Cass Sunstein was nominated on April 20, 2009 (see PN 323 referred to the  Committee on Homeland Security and Governmental Affairs, chaired by Joseph Lieberman.)