Last week, the Senate confirmed Howard Shelanski to lead the Office of Information and Regulatory Affairs (OIRA), part of the White House Office of Management and Budget (OMB) and the source of many lengthy delays of health and safety regulations. On Sunday, the New York Times published a scathing editorial about the backlog of draft rules at OIRA, stating, "The backlog has more to do with politics than economics ... It is as if the White House were still driven by election-year motives: defuse Republican taunts and placate industry." The editorial notes that 136 draft rules are under OIRA review; 72 have been there beyond the 90-day limit, and 38 have been waiting for more than a year.
Celeste has been cataloging and criticizing OIRA's delays of several health and safety regulations, especially the delay of more than two years for an OSHA draft rule designed to protect workers from lung damage caused by respirable crystalline silica. She pointed out earlier this year that the rule in question is only a draft rule, and that releasing the draft would start the public comment period to collect input on the proposal's potential impacts -- but instead, OMB officials were meeting privately with industry groups unhappy about what they expect to be included in the draft rule.
The Times editorial gives the silica rule as one example of long-delayed labor protections, and also mentions a Department of Labor rule that would extend minimum-wage and overtime protection to home healthcare workers. (That draft rule was published in December 2011, and the public comment period closed in March 2012; we've heard nothing since then.) The editorial also mentions delays of three rules to implement the food safety law signed in January 2011 and environmental rules aimed at industrial-freezer emissions and protections for streams and wetlands. A report published last month by the Coalition for Sensible Safeguards, Down the Regulatory Rabbit Hole, describes the human consequences of delaying public-health regulations.
The Center for Progressive Reform's Sidney Shapiro and James Goodwin note that in addition to delaying regulations, OIRA has also fallen short of its own transparency standards:
The centralized regulatory review conducted by OIRA pursuant to Executive Orders 12866 and 13563 has a significant impact on the substance of regulatory decision-making, yet OIRA has consistently failed to live up to its own transparency rules. Among other things, OIRA frequently ignores its self-imposed obligation to identify the changes it or an agency makes during its review in rules submitted by agencies. OIRA even actively discourages agencies from complying with these transparency requirements, as we have found out from former EPA official and CPR Member Scholar Lisa Heinzerling.
The New York Times editorial concludes with a call for more transparency and less fear from the Obama Administration on regulations:
In April, the Senate confirmed Mr. Obama’s nominee to be director of the O.M.B., Sylvia Mathews Burwell, a former executive at the Walmart Foundation. Last week, senators confirmed the next head of OIRA, Howard Shelanski, the top economist at the Federal Trade Commission. Ms. Burwell and Mr. Shelanski have pledged to make regulatory reviews more timely. But that’s not enough. OIRA also needs to be more transparent about the changes it makes to agencies’ draft rules and why — allowing the public to evaluate whether the White House’s involvement has improved or weakened the final rules.
At the end of the day, what the public needs most is not just a more timely and transparent review process but a president unafraid of Republicans or corporate interests and determined to enact his regulatory agenda.
I hope in the coming months we'll be able to report on the release of long-delayed proposed and final rules to protect public health.
During Mr. Shelanski's confirmation hearing to be Obama's regulatory czar he insisted that deadlines and timeliness would be hallmarks of his tenure. The hefty backlog at OIRA gives him a great opportunity to make good on his promise.