Industry influence and White House obstacles hamper rules to protect health, safety and environment

A new report by the Center for Progressive Reform (CPR) confirms what some of us have suspected: there's not much difference between the Obama Admininstration's and GW Bush Administration's Office of Information and Regulatory Affairs (OIRA) when it comes to meetings with industry lobbyists and giving lip-service to transparency.

In "Behind Closed Doors at the White House," CPR offers a 10-year analysis of the 6,194 draft regulatory actions reviewed by OIRA, a step in the rulemaking process dictated by Executive Order (EO) 12866 for rules of particular significance. Their assessment examined the length of time for the OIRA review, the number of meetings held by OIRA staff with interest groups, and the affiliations of meeting participants. CPR also explores OIRA's interference in agency actions not covered by EO 12866 and its failure to comply with public disclosure requirements. Most importantly, CPR explains how OIRA's involvement in agency rulemaking circumvents congressional intent and delays public protections.

Among CPR's many interesting findings, they report:

Sixty-five percent of the 5,759 meeting participants who met with OIRA represented industry interests---about five times the number of people appearing on behalf of public interest groups. CPR didn't find much difference between the GW Bush Administration and the Obama Administration when it comes to who was in these meetings. During the GW Bush Administration, 68% represented industry interests and 10% public interest. During the Obama Administration, about 62% represent industry interests and 16 percent public interests.

As I've written before, when agencies already offer lengthy comment periods, as well as many days (sometimes months) of public hearings----at which individuals can testify about the proposal (and at OSHA hearings even cross-examine other witnesses)----why does OIRA continue to host these extra-curricular meetings?? As CPR aptly notes:

"No matter how many similar meetings OIRA has already agreed to, or how lopsided the process becomes when most of the meetings are requested by regulated industries to complain about pending regulations, OIRA continues to grant meeting requests. There's no reason for them, and there should be no place for them in a process that already provides ample time and methods for any interest group to participate."

The percentage of meetings that occurred before a rule had even been proposed by the agency was higher during the Obama Administration (47 percent) than it was during the GW Bush Administration (39 percent). This may make a proposal more palatable politically, but as CPR explains:

"Early interference frustrates transparency and exacerbates the potential for agencies to succumb to White House political pressure before they have even had the opportunity to seek public comment on more stringent proposals."

Their report includes a variety of informative tables. One categorizes OIRA meeting participants by type of organization. At the top of the list was "individual companies" (550 in total) with second place a category called "trade associations/professional organizations" with 371 entities. There were far fewer participants at OIRA meetings representing environmental organizations (93 groups), public health and safety organizations (34 groups) and labor unions (16 groups). Another tables lists the meeting participants by affiliation and number of meetings over the 10-year period, with 94% of the appearances by individuals representing industry groups. These tables in particular illustrate the resources and time that individuals with economic interest in a regulatory matter will devote to influencing the rule's potential impact.

Over the last year, I've written a number of posts that illustrate the exact issues described in CPR's report. In September 2010, I chastised the director of OIRA for talking about transparency, but failing to disclose promptly on OIRA's website the names and affiliations of individuals who met with OIRA staff to discuss an OSHA proposed rule. I had to reprimand OIRA again in April 2011 for the same thing. In October 2010, I wondered why OIRA was reviewing a minor OSHA proposed rule when EO 12866 only requires OIRA review of rules defined as significant. In November 2010, I asked how much longer OIRA would be reviewing this non-signficant rule, and repeated my question in December 2010 when the 90-day review period marked its 145th day. I denounced OIRA in August 2011 for taking 9 months to review a proposed rule to protect young workers from safety hazards (which was finally released after two 17 year olds lost legs in a grain auger), and reported in October 2011 that OIRA refused my request to provide copies of all the communications it had with the Labor Department concerning this proposed rule. EO 12866 specifically states "OIRA shall make available to the public all documents exchanged between OIRA and the agency during the review by OIRA under this section." This is just one of the violations exposed in "Behind Closed Doors at the White House: How Politics Trumps Protection of Public Health, Worker Safety, and the Environment."

I concur with CPR's recommendations on improving transparency and timeliness at OIRA, and directing OIRA to focus on economically significant rules. I also agree with CPR's suggestions that OIRA end its practice of meeting with outside parties during its review of a proposed or final rules. The appropriate way for an Administration to receive public input on a proposed rule is during the public comment period. Period.

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