The White House Office of Information and Regulatory Affairs (OIRA) has rejected an Environmental Protection Agency proposed rule that would encourage the recycling of pesticide containers. EPA has been mulling the proposal for at least a few years.

The rule would establish a national recycling program that would help ensure pesticide containers are rinsed out and properly disposed of. According to EPA, "The proposed regulation is intended to protect human health and the environment by promoting recycling of pesticide containers to reduce the risk of unreasonable adverse effects to public health and the environment that may be associated with certain nonrefillable pesticide containers and the associated residues."

But the White House has rejected the EPA proposal. In a July 3 letter to EPA Deputy Administrator Marcus Peacock, OIRA Administrator Susan Dudley takes exception to the proposal. Dudley says the rule would be too costly and criticizes the agency for not examining other regulatory alternatives.

In a lot of cases, White House interference of this sort can be connected to the wishes of regulated industries. But not this time. On June 25, Dudley and other OIRA staffers, along with EPA's pesticide office, met with CropLife America — the major trade association for the pesticide industry.

CropLife America is advocating in favor of the EPA rule. In the meeting, representatives from the trade group presented OIRA with a list of other companies, trade groups, and state government agencies that also support the rule. The list, available here, is impressive in its length.

So if the rule is as good for public health as EPA claims, and if it is so popular among a diverse group of stakeholders, why would the White House reject it?

Just before it broke for its July 4 recess, the Senate approved a bill (H.R. 3564) to reauthorize the Administrative Conference of the United States (ACUS). Congress initially formed ACUS in the 1960's, but vanquished it in the mid 1990's as part of the Newt Gingrich-led effort to reduce government.

ACUS was a panel of administrative law experts. ACUS studied the federal rulemaking process and other operations of federal agencies. The panel took long-term views and made recommendations on improved performance.

The bill would authorize ACUS to receive $3.2 million from FY 2009 — FY 2011. ACUS would be a bargain at twice the price, as it has the potential to more than pay for itself by making recommendations on improved government efficiency and performance.

The idea of renewing ACUS is swimming in bipartisan support. It has already passed the House, where it is sponsored by Reps. Linda Sanchez (D-CA) and Chris Cannon (R-UT). According to BNA news service (subscription), Judiciary Committee leadership Sens. Patrick Leahy (D-VT) and Arlen Specter (R-PA) pushed the bill through the Senate last week. The bill also has the support of two Supreme Court justices: Stephen Breyer and Antonin Scalia, both former members of ACUS.

Technically, ACUS already exists. 2004 legislation reauthorized the panel. Unfortunately, since then, Congress has not funded it, making it impossible for ACUS to have employees, computers, three-hold punches, etc.

That trend is likely to continue, as insiders believe — because of election season and general ineptitude — Congress won't be able to pass appropriations bills this fall, preferring instead to pass a continuing resolution. Continuing resolutions can't appropriate funds to agencies that don't currently exist, so ACUS may remain a hollow entity.

Because some minor changes were made in the Senate, the bill will now shoot back over to the House, before being sent to the President.

The National Highway Traffic Safety Administration (NHTSA) is temporarily delaying its revision to the national standard for roof strength in passenger vehicles, according to ConsumerAffairs.com. Safety advocates and lawmakers have criticized the agency for a host of flawed provisions in the proposed regulation.

NHTSA faced a statutory deadline of July 1 to complete the rule, but is also permitted to request from Congress an extension. A Senate panel urged NHTSA to ask for the additional time rather than issue the rule in its current form.

One of the major points of contention is preemption of state common law, which NHTSA has been pushing for. In the original notice, NHTSA claimed its final rule would prohibit states from enacting positive law – that is, laws passed by state legislatures and regulations developed by state agencies – different from the federal standard. NHTSA also claimed the rule would "preempt all conflicting State common law requirements, including rules of tort law," thereby eliminating a consumer's right to sue an automaker if the consumer is injured in a rollover crash.

NHTSA's decision to preempt state positive law and tort law through its regulation is in plain violation of the major federal law the agency enforces, the Motor Vehicle Safety Act. (Click here for details.) Sen. Mark Pryor (D-AR) has said preemption is not in the public's best interest, is outside of NHTSA's authority, and would result in "bipartisan opposition in the Senate."

Critics also say the proposal would not go far enough in protecting drivers. NHTSA estimates the rule change would result in 13 to 44 fewer rollover fatalities every year. Critics say a new rule should make significantly more progress than that. In 2007, more than 10,000 people died in rollover crashes. "Rollover crashes should be highly survivable," said Joan Claybrook, head of the consumer group Public Citizen, in testimony before the Senate subcommittee.

Hopefully, NHTSA will use the deadline extension to back away from the preemption provision and make the standard more protective. The new deadline is October 1. Stay tuned to Reg•Watch for updates.

Two stories today highlight the problems with tracking the path of contaminated food through the supply chain and how those problems impact public health.

In the first story, from Washington Post reporter Annys Shin, we learn federal officials are now backing away from their earlier claim that tomatoes are responsible for the recent outbreak of a rare strain of salmonella. The news — a significant step backwards in identifying the problem, ensuring public health, and restoring peace of mind — comes more than three weeks after the tomato scare burst into the headlines.

Shin quotes FDA food safety official David Acheson as saying, "The tomato trail is still hot. It's a question of whether other items are getting hotter."

The complexity of the supply chain — which shuffles tomatoes and other produce across state and national boundaries for processing, packaging, and distribution — makes identifying the source of the contamination nearly impossible for FDA. Combine that difficulty with the FDA's resource shortfalls and the Bush administration's rosy outlook on product safety and the situation becomes even grimmer.

Meanwhile, as Shin reports, "The outbreak has sickened 869 people in 36 states and the District of Columbia since mid-April." The latest case of illness was reported June 20, two weeks after FDA's national warning.

The other story, from Columbus Dispatch reporter Misti Crane, concerns a beef recall targeted in Ohio and Michigan. Nebraska Beef, which supplies Kroger grocery stores, announced the recall after an outbreak of E. coli. Unfortunately, Crane reports, the recall "does not give information that's likely to help you figure out if what's in your refrigerator or freezer is harmful."

So while the recall has only been linked to illnesses in Ohio thus far, its effects could be much broader:

The nearly 532,000 pounds in question might have been mixed into an undetermined number of pounds of ground beef. It is common practice in meat-grinding facilities to combine product from multiple sources.

Beef parts from Nebraska Beef went to other companies in the state and to companies in Colorado, Illinois, Michigan, New York, Pennsylvania and Texas.

In the area of food safety, it seems like history is repeating itself over and over. A public health crisis prompts a federal response; but officials soon realize they are handcuffed by lack of information and lack of resources. Consumers are left in the dark, barely placated by government promises and too ill-informed to make decisions that could help them protect themselves and their families. Eventually the problem just fades away (for those not sickened by the food in question), with lessons never learned.

Yesterday, six controversial rules that would have reduced federal funding for Medicaid programs were put on hold until at least April 2009. Congress included moratoria on the rules as a provision in the war supplemental bill which President Bush signed into law. (H.R. 2642; see section 7001 for the moratoria.)

The Bush administration had finalized, or was preparing to finalize, the regulations in an effort to cut federal funding for a variety of Medicaid programs administered by the states. The regulations would have cut funding for services that help those with mental illness and intellectual disabilities and for children in foster care, among other services.

Bush had threatened to veto a stand-alone moratoria bill. Fortunately for states and Medicaid beneficiaries, Congress was able to attach the provision to the war supplemental. Regardless, the regulations are so unpopular among congressmen both houses of Congress approved the provision with veto-proof margins.

Passage of the bill means, hopefully, the Bush administration will not be able to monkey around with Medicaid for the remainder of its tenure.

The U.S. Environmental Protection Agency is close to finalizing its Advanced Notice of Proposed Rulemaking (ANPRM) on greenhouse gas emission regulation. The ANPRM is an indication that EPA may someday consider taking a look at possibly addressing global warming through some sort of undefined future action…perhaps.

Even still, the White House Office of Management and Budget (OMB) is all over the document like stink on a monkey.

The Wall Street Journal has gotten a sneak peak at the document and reports on it this morning: "The draft document…outlines how the government, under the Clean Air Act, could regulate greenhouse gas emissions…"

The Journal goes on to identify OMB's likes and dislikes:

The White House's Office of Management and Budget has asked the EPA to delete section of the document that say such emissions endanger public welfare, say how those gases could be regulated, and show an analysis of the cost of regulating greenhouse gases in the U.S. and other countries.

The OMB instead wants the document to show that the Clean Air Act is flawed …

In 2007, EPA promised — in response to a Supreme Court decision mandating it consider greenhouse gas regulation under the Clean Air Act — to actually take action greenhouse gas emissions through a notice of proposed rulemaking. But in March, EPA announced instead that it would pursue the ANPRM.

At the time, there was no proof of White House interference. However, recent reports show that OMB blocked EPA's proposal. As The New York Times reported last week, OMB went so far as to refuse to open an email containing EPA's proposal.

EPA and White House officials maintain that Johnson made the ultimate decision to punt on greenhouse gas regulation, but the evidence indicates otherwise. As we've seen with the California waiver decision and the revision to the national standard for smog, Johnson is merely a puppet for the White House.

OMB is calling the shots on seemingly every major environmental policy decision; it is running roughshod over agency scientists, ignoring the plain language of federal law, and disregarding court orders.

Jason Burnett, an associate administrator for EPA, recently resigned in frustration. The Washington Post reports on his sad yet accurate assessment:

Burnett refused to comment on the White House calls but said in an interview, "In early December, I sent an e-mail with the formal finding that action must be taken to address the risk of climate change," adding that he resigned his political appointment because the agency had been stymied in its efforts to respond to the Supreme Court. "The White House made it clear they did not want to address the ramifications of that finding and have decided to leave the challenge to the next administration. Some [at the White House] thought that EPA had mistakenly concluded that climate change endangers the public. It was no mistake."

A House panel voted last week to tie the hands of agency regulatory policy officers (RPOs). The move comes in response to continued concern about President Bush's 2007 executive order that expanded the powers of RPOs.

President Bush's E.O. 13422 — which amended E.O. 12866, Regulatory Planning and Review — dramatically expands the power of the RPO. E.O. 13422 states, "no rulemaking shall commence" without the RPO's approval. Conveniently, E.O. 13422 does not define when a rulemaking commences, thus providing the RPO with wide latitude in exercising this new authority.

Ultimately, the RPO can act as a regulatory gatekeeper within the agency. OMB Watch has expressed concern that this power may be abused when the RPO's interest align more closely with those of the White House Office of Management and Budget than with the RPO's own agency or, more importantly, the public.

E.O. 13422 also requires the RPO be selected from among the presidentially appointed positions already existing within the agency.

While the provision does not technically remove any power from the RPOs, it would tie their hands by cutting off funding for their activities. The provision reads, "None of the funds made available by this or any other Act may be used" for Bush's changes related to RPOs.

The provision is included in the House FY 2009 Financial Services and General Government Appropriations bill, which the House Appropriations Committee approved by voice vote June 25. That bill funds the Executive Office of the President and some other agencies. However, because the provision states, "by this or any other Act," the bill would freeze funding for RPOs across the federal government.

Congress is attempting to formulate and pass legislation to address problems that have become apparent at the Food and Drug Administration (FDA). After increasing questions in recent years about the safety of prescription drugs and imported food, we've learned about the limited ability of FDA to regulate effectively some of the products.

Legislation in Congress, particularly in the House Energy and Commerce Committee, that addresses ways to reform how FDA protects us from harmful products in the marketplace is being strongly opposed by lobbyists for the food and drug industries. According to an article in POLITICO, the lobbyists are trying to delay the legislation and run the clock out in this abbreviated election year session of Congress.

One of the lobbying groups active in the fight is the Grocery Manufacturers Association (GMA). It represents agribusiness and food processing companies. GMA last year put forth its own proposal calling on FDA to adopt a foreign supplier quality assurance program after FDA announced an import ban on five different types of Chinese farm-raised seafood products. Apparently, GMA thinks Congress wants to go too far in moving to protect consumers at the expense of its members.

The Energy and Commerce Committee seems undeterred, according to POLITICO: "Our plan is still to do a comprehensive overhaul of FDA to equip it to deal with an increasingly globalized market," said spokeswoman Jodi Seth. "We're interested in cleaning up the whole mess, including contaminated heparin and tainted tomatoes. Consumers want all the products they consume to be safe."

It may not be easy to get anything meaningful passed to enhance FDA's powers this session, but one would think the lobbyists would be less resistant to getting a bill completed this year — while they still have their friend in the White House.

Following last week's hearing by the House Education and Labor Committee on the underreporting of workplace injuries, the committee held a hearing today entitled, Is OSHA Failing to Adequately Enforce Construction Safety Rules?

Not too surprisingly, the answer is different depending on who you ask. If you ask the brother-in-law of a worker killed in a Las Vegas accident, or the Acting Building Commissioner in New York City, or the President of the Building and Construction Trades Department of the AFL-CIO, the answer to the question is pretty similar. The Occupational Safety and Health Administration (OSHA) could be doing a lot more to save lives and prevent injuries.

Most of the questions, however, were directed to Edwin Foulke, Assistant Secretary of Labor for OSHA. In what has become the standard script for administration officials in testimony before congressional oversight committees, Foulke 1) talked about the progress the agency is making, 2) used a couple big numbers without providing a context in which to tell what those numbers mean, and 3) refused to answer questions about what resources the agency needs to do its job better.

No fewer than four times, committee members asked Foulke, in one way or another, if OSHA needed more resources for inspections, training, enforcement, or to get rules written to protect American workers. Foulke did not answer that question even once. His standard response was to talk about the progress OSHA is making in reducing the rates of injuries and accidents.

The irony of repeating that mantra before the committee — a committee that had, the week before, learned about the underreporting of injuries, that had just pointed out to him the soaring rates of increases in injuries among Hispanic construction workers, and that asked him to explain why the rates of fatalities in Canada and several European countries were about half the U.S. average — seemed lost on Foulke.

According to testimony at the hearing by the union representative, four construction workers die each day in the U.S., around 1,200 to 1,500 workers each year. That is 10 times the number of law enforcement officials and 10 times the number of firefighters lost each year. Let's stop asking the administration how it's doing and start documenting the uncomfortable facts about its performance. It may not change agency behavior at this late date, but at least such information can teach us how not to govern.

Today's Wall Street Journal reports on a major problem in the area of workplace safety. Unlike recent stories, this one is not about crane safety, combustible dust, or popcorn workers lung. Instead, the Journal profiles an issue which should be far easier to handle but has vexed the Department of Labor nonetheless: accurate data on workplace injuries.

Journal reporter Kris Maher points out why reliable injury statistics are vital to occupational safety: "Having accurate data is considered critical in making policy decisions about where safety needs to be improved and whether new regulations and rules need to be issued."

Both employers and the Labor Department are to blame. A Department official "acknowledged that workers and companies both have incentives not to report injuries, noting that contracts are sometimes awarded to companies with low injury rates," according to the article.

To make matters worse, the Occupational Safety and Health Administration isn't meeting its responsibility to collect data, and rule changes have altered the definition of what counts as an injury:

At present, the nation's safety record consists of a survey of 250,000 establishments. Recent figures show a decrease in injuries, which indicates that workplaces are getting safer.

However, research suggests the federal figures capture less than half of actual injuries. One study published in June in the Annals of Epidemiology compared employer data reported to OSHA against figures from state workers' compensation systems in six states. It found that the OSHA figures failed to count from 24% to 49% of all workplace injuries.

Another study last year by University of Illinois researchers attributed 83% of the decline in workplace injuries from 1992 to 2003 to changes in OSHA record-keeping rules. Researchers said OSHA no longer requires an injury to be recorded if the worker was able to come back to work the day after the injury. They also said OSHA stopped collecting data at workplace sites, and relied on employers to send injury information.

Today, the House Education and Labor Committee will take a critical look at the problem. You can watch the hearing, scheduled to begin at 10:30, by clicking here.

Andrew Schneider, a reporter for the Seattle Post-Intelligencer, has a blog post on CDC's estimate of how many people may actually have been sickened by the recent outbreak of salmonella in tomatoes:

The CDC reported last night that outbreaks of the saintpaul strain of salmonella has been documented in 28 states, with 277 people sick and 43 of those hospitalized.

And the federal disease detectives released this fascinating number: More than 8,000 people may have actually been sickened in this outbreak, but no one will ever know for sure.

"Most cases of salmonellosis are not reported because some people who are ill do not seek medical attention and not all patients who seek medical care submit specimens for culturing," said a CDC spokesperson.

Based on earlier extensive studies and extrapolations, the CDC has estimated that for every one case of salmonellosis reported there are 38 additional cases that are not reported.

As tomatoes from approved areas begin to return to stores and restaurants (a local Chipotle has brought back its mild tomato salsa, much to Reg•Watch's delight), FDA appears to have shed little light on the mystery. The Los Angeles Times reported yesterday, "Consumers and farmers have criticized health officials for the slow pace of the probe, which the FDA says is unavoidable because of the wide scope of the outbreak, the shaky memories of victims and the difficulties of tracing tomatoes. As a result, shoppers have shunned the fruit and growers have suffered plunging sales."

Thus is the public health and economic toll of FDA's broken down regulatory system.

Where's Congress?

While the growing complexity of the global supply chain and years of anti-government conservatism in Washington may have brought us to the point where food safety failures routinely make headlines, the Democratic-led 110th Congress is doing little to help.

The Center for Science in the Public Interest, a nonprofit group that works on food safety and other important causes, has a list of food safety bills currently pending in Congress. CSPI lists 12 different bills, not one of which has cleared the committee stage.

On Tuesday, a House Energy and Commerce Committee subcommittee held a hearing titled, "Safety of Phthalates and Bisphenol-A in Everyday Consumer Products." Bisphenol-A (BPA) and phthalates, both of which are common ingredients in plastic products, have come under fire recently for their potential risk to human health.

FDA's Associate Commissioner for Science, Norris Alderson, testified, saying, "A largebody of available evidence indicates that food contact materials containing BPA currently on the market are safe, and that exposure levels to BPA from these materials, including exposure to infants and children, are below those that may cause health effects."

That's been the standard response from the agency as public concern about BPA rises. However, FDA is renewing its research on the chemical, as Reg•Watch blogged earlier this week.

Late last week, FDA's lead scientist asked the agency's science board to convene a subcommittee to study the effects of BPA. The primary responsibility of the subcommittee will be to review an FDA task force report on BPA exposure and effects. "In April 2008, the FDA formed an agency-wide BPA Task Force to facilitate review of current research and new information on BPA," FDA says. After the subcommittee reviews the report this summer, "the task force will make recommendations" to the FDA commissioner.

During the hearing, Alderson, the chair of the task force, acknowledged the research could lead to regulatory action, saying, "[I]f FDA's review of data leads us to a determination that uses of BPA are not safe, the Agency will take action to protect the public health."

Because BPA is a common ingredient in the lining of metal food cans, the chemical would be ripe for FDA regulation if found to be harmful.

If FDA takes no action on BPA, Congress might. Committee member Rep. Edward Markey (D-MA) has introduced legislation that would ban BPA in food and drink containers. Because the prospects of bill's passage in the U.S. Congress are positively correlated with the cleverness of its acronym, Markey has named the bill the Ban Poisonous Additives (BPA) Act (H.R. 6228).

Rep. Brad Miller (D-NC) wrote to the White House June 11 asking about the Office of Management and Budget's role in EPA's revised process for assessing the health effects of industrial chemicals. EPA announced changes to the process, known as the Integrated Risk Information System (IRIS), in April.

One of the major problems with the revised process is the lack of transparency. OMB and other federal agencies will be able to have input into a chemical assessment without ever disclosing their views — scientific or political — to the public. Miller wrote to Susan Dudley, the head of OMB's Office of Information and Regulatory Affairs (OIRA), which will coordinate the OMB/interagency review of IRIS assessments, expressing his concern:

[T]he interagency process OIRA manages is secret. The public has no insight into who is being invited to discuss what, when. The public has no way of getting at materials associated with those discussions because the pre-decisional exemption of the Freedom of Information Act (FOIA) applies to all of those materials.

The bottom line is that if the interagency discussion taking place is solely about science, there is no reason why that discussion and all communications surrounding it, cannot survive the light of exposure to the public. The only reason to hide a discussion about science is if the discussion is actually not about science, but about other things that are being used to trump the science.

Miller is the chair of the House Science Committee subcommittee on Investigation and Oversight. Yesterday, the subcommittee held its second hearing on the changes to the IRIS process.

During the hearing, ranking member James Sensenbrenner (R-WI) discussed another problem with the revised process: the delayed completion of IRIS assessments and subsequent backlog of chemicals needing to be assessed. Sensenbrenner pointed out that EPA has completed only two IRIS assessments in each of the last two years, and called the process "broken down."

Sensenbrenner then addressed the OMB/interagency review which will allow other federal agencies, such as the Department of Defense or NASA, to delay the assessment process:

[EPA] argues that it can expedite the IRIS process by involving other agencies earlier in the process. While preventing last minute delays is an important reform, the ability of other agencies to extend the time frame of assessments should be sharply limited. Data gaps in risk assessments will always exist, as better science is always developing. The EPA needs to limit the time frame of assessments to prevent other agencies from indefinitely delaying the process.

For more information on the changes to the IRIS process, see this OMB Watch factsheet.

In today's New York Times, public policy mediator Susan Podziba writes an op-ed which uses two recent and tragic New York City crane accidents, which killed nine people, as an entree into the rulemaking process at the Occupational Safety and Health Administration (OSHA).

OSHA has had a rule to improve safety for crane and derrick workers in its regulatory pipeline for years. The pending rule, which would update an outdated policy from 1971, is welcomed by worker safety advocates and industry alike. Podziba tells the story of how the proposal was developed:

From July 2003 to July 2004, representatives of labor unions, crane manufacturers, crane operators, contractors, crane rental companies, builders, crane owners, billboard installers, insurance companies, electrical power line owners and safety experts met to discuss virtually all hazards associated with cranes — and how to prevent them. The deliberations were governed under the Federal Advisory Committee Act, which meant that the public could attend the sessions and address the representatives.

The group reached consensus on a set of revised crane standards. OSHA officials participated in the negotiations and contributed their expertise in writing enforceable regulations. According to OSHA's analysis, these standards would prevent 37 to 48 worker deaths per year. The draft regulations are about 120 pages long, and include important new requirements like the testing and certification of crane operators and the oversight of crane assembly and disassembly.

From the first day of deliberations — in accordance with the process, called negotiated rulemaking — the parties operated under this assumption: If this balanced group of stakeholders and the government could agree on a standard, then OSHA would publish it in the Federal Register as its proposed rule. After OSHA publishes a draft rule, the public has 60 days to comment before the final rule is published and becomes law.

Since then, the rulemaking has come to a grinding halt — even though the bulk of the work is already done. Why? Maybe it's because the Bush administration is ideologically opposed to new worker safety regulations. OSHA has issued only two significant new rules in seven-and-a-half years: one mandating employers pay for personal protective equipment (a no brainer) and one setting an exposure limit for chromium (required by a court deadline and not nearly as strong as the underlying science supported).

Or, maybe it's because of government-wide rulemaking process requirements. Celeste Monforton at the Pump Handle blog says, after the crane rule was written, "OSHA took nearly two years to prepare" a cost-benefit analysis. Monforton also says the rule was further slowed by the Small Business Regulatory Enforcement Fairness Act which requires OSHA give businesses a sneak preview of new rules and an opportunity for the Small Business Administration Office of Advocacy to pressure OSHA to make changes.

Whatever the reason, the two recent crane accidents are a tragic reminder of how OSHA inaction can have real world consequences.

Podziba and Monforton also remind readers of the new White House memo setting deadlines for regulations agencies want to finalize during the Bush administration. Since the proposal deadline has already passed, crane and derrick workers will have to wait until at least 2009 to see the standard finalized.