Two lawmakers are attempting to shed light on a mysterious Department of Labor rule that may change the way the federal government looks at occupational health risks. As of now, all we know of the rule is its title: "Requirements for DOL Agencies' Assessment of Occupational Health Risks."

While that may sound innocuous, Reg•Watch is always skeptical when the Bush administration (in this case, DOL brass inside the office of Secretary Elaine Chao) wades into the area of risk assessment. The administration tried in 2006 to attack the federal government's entire risk assessment process — where the nature and severity of occupational, environmental, consumer, or other risks are scientifically studied and described. That proposal was shot down by the National Academies of Science.

On July 10, Sen. Ted Kennedy (D-MA), chairman of the Senate Health, Education, Labor, and Pensions Committee, and Rep. George Miller (D-CA), chairman of the House Education and Labor Committee, wrote a letter to Chao pressing for answers on the rule. The chairmen asked Chao to provide them with several pieces of information by July 17. Among them:

• "A copy of the proposed regulation;"
• "The legal authority under which the Department expects to promulgate this regulation;" and
• The Department's timetable for officially proposing and finalizing the rule.

The rule is currently under review at OMB's Office of Information and Regulatory Affairs, according to RegInfo.gov, a government website that tracks White House reviews. OIRA reviews rules under the authority of Executive Order 12866, Regulatory Planning and Review.

Usually, RegInfo.gov provides the public with a description of a rule under review, along with purported legal authority, timetables, and an indication of stakeholders the rule may impact. The DOL rule in question provides none of those factoids — only a title.

In their letter, Kennedy and Miller point out, "This action is highly unusual and contradicts the stated purpose of E.O. 12866 which is 'to make the [regulatory] process more accessible and open to the public.' "

Stay tuned to Reg•Watch for updates.

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.

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.

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.

The U.S. Environmental Protection Agency recently made changes to its program for studying the toxic effects of industrial chemicals — the Integrated Risk Information System (IRIS). Under the revised process, the White House Office of Management and Budget (OMB) is given unprecedented control over the content and conduct of these studies.

Today, OMB Watch released a factsheet "OMB Interferes in IRIS Assessments of Toxic Chemicals," which details the problems with the revised process. The factsheet answers the following questions:

• What is IRIS?
• How does OMB interfere in IRIS assessments?
• How does the new IRIS assessment process make matters worse?
• Why is the IRIS assessment process important?

Also today, the House Science Committee's subcommittee on Investigation and Oversight held a hearing on the changes to the IRIS process. Committee members and witnesses focused their discussion on the transparency, or lack thereof, in OMB's review of IRIS assessments and on the slow pace of completion of IRIS assessments. (EPA has completed only four assessments in the past two years.)

The committee heard from John Stephenson, the Director of Natural Resources and Environment for the Government Accountability Office (GAO). Stephenson's testimony was based on a recent GAO report critical of OMB's involvement in the IRIS assessment process.

Stephenson's primary complaint about the IRIS process is that any comments from OMB or other federal agencies will not be disclosed to the public. Stephenson also warned additional steps included in the revised process could further slow EPA's efforts to complete assessments.

Rep. Brad Miller (D-NC), chair of the panel, released a document that reveals the opinions of EPA staff scientists on OMB's role in the IRIS assessment process. In responding to GAO's report, staff involved in the IRIS program said OMB's comments are often "troubling to address" and the OMB review process "has added tremendously to the time it takes to release" draft and final assessments.

Yet another report showing the Crandall Canyon mine collapse could have been prevented was released today. The House Education and Labor Committee, led by Rep. George Miller (D-CA), released the report after months of investigation. The disaster at the Crandall Canyon mine in Utah killed six miners and three rescue workers in August 2007.

The report, like two other reports released in March, finds that both the mine's operator and the Mine Safety and Health Administration are to blame.

In March 2007, four months before the disaster, a different collapse, or bump, occurred at a nearby part of Crandall Canyon mine. According to the report, officials managing mine operations and officials at Murray Energy, the mine's owner, new of the March incident but failed to report it to federal regulators — a direct violation of federal rules. The report states, "It is quite possible that, had MSHA known the full severity of the March bump," MSHA would not have allowed the mine to continue operations.

But MSHA still bears responsibility. MSHA was informally made aware of the March bump, but claims the mine's operators "downplayed" its significance. Regardless, MSHA foolishly approved (under intense pressure from the mine's operators) a plan for the company to conduct retreat mining at Crandall Canyon. Retreat mining is a dangerous technique in which miners remove support pillars in order to intentionally collapse areas of the mine no longer in use.

Because the mine's officials ignored federal law, Miller has referred them to the Justice Department for further investigation:

Last month, I sent a criminal referral to the Department of Justice, recommending that it investigate whether the mine's general manager, Laine W. Adair, individually or in conspiracy with others, willfully concealed or covered a material fact or made materially false representations in a matter under the jurisdiction of the executive branch, specifically MSHA…

Visit the committee's website to download the report and learn more.

Yesterday, the House Judiciary Committee's subcommittee on administrative law held a hearing to investigate how the Bush administration has used rulemaking practices to advance the Unitary Executive Theory .

President Bush and his minions use the Unitary Executive Theory to claim the president has complete control over the conduct of the executive branch, and that he is accountable to no one in exerting said control. Bush's penchant for issuing signing statements and his refusal to accept congressional input in his conduct of the war in Iraq are two examples of this theory.

Federal agency rulemakings also provide an opportunity for Bush to apply the Unitary Executive Theory. Time and time again, the Bush White House has foisted upon agencies decisions that ignore the plain language of federal statutes (for example, EPA's recent revision to the national air quality standard for ozone). After such decisions are made, the White House routinely invokes executive privilege in order to escape the oversight powers of Congress and extend itself beyond the grasp of public accountability.

What's really galling is that, instead of being frank about opposing public protections on their face, the Bush White House frequently attempts to alter the substantive considerations that inform regulatory decisions. In other words, officials inside White House offices, such as OMB, meddle with science in an attempt to legitimize their political opinions.

Rick Melberth, OMB Watch's director of regulatory policy, testified at the hearing, and summed up the problem:

The application of the unitary theory as it is practiced in this administration and framed in executive branch directives gives the president, and a cadre of employees that represent the president, control over the substantive decision making of agencies. As a result, politics is injected and elevated into decisions where science and rational judgment should prevail. Political appointees have greater control over the substance of regulations; politics supersedes scientific and technical information that is critical to protecting our environment and health and safety at home and in the workplace. ...

When the president has the ability to override this statutory delegation of authority, the balance of power between Congress and the Presidency is altered. There is the perception, if not the reality, that special interests are favored heavily over the needs of the public. This process does not lead to better rules and public protections. When the president makes a substantive regulatory decision based on political considerations, scientifically-based protective standards are vitiated.

As OMB Watch recently reported, a recent U.S. government study on the potentially dangerous effects of bisphenol-A and a proposal by the Canadian government to ban the substance in baby bottles have prompted major manufacturers and retailers to phase out the production and sale of products containing the chemical. Bisphenol-A is a substance commonly found in hard plastics, including water bottles and baby bottles, and resins, including those that line food cans.

But voluntary action by businesses, however responsible and well-intentioned, is no replacement for federal regulations intended to ensure the public is fully protected. So, to whom does the responsibility of regulating bisphenol-A fall?

Since the chemical is contained in the lining of food cans, the Food and Drug Administration could take action. Unfortunately, FDA has said bisphenol-A does not pose a "safety concern at the current exposure level." (A congressional investigation uncovered that FDA had relied on two industry-funded studies in making its determination not to regulate.)

Since the chemical can leach from plastics into the water supply, the Environmental Protection Agency may have a responsibility, but mum's the word at EPA since news broke of bisphenol-A's potentially harmful effects.

Since bisphenol-A is contained in a host of consumer products made of hard, polycarbonate plastic, the Consumer Product Safety Commission may also be obligated to regulate such products. Last week, members of the House Energy and Commerce Committee wrote to CPSC commissioner Nancy Nord on that very subject:

There has been less focus on the possible presence of [bisphenol-A] in infant and children products, which would come under the jurisdiction of the Consumer Product Safety Commission. Were products such as teething rings, pacifiers, and children's flatware to contain [bisphenol-A], they could pose risks of cancer and neurological disorders to infants and young children.

The letter then asks Nord if the commission has done anything in regard to the chemical.

Even though at least three prominent federal agencies could take action, it doesn't seem like any of them intend to regulate, or even study, bisphenol-A. We deserve a government that will work to inform us of the hazards we face so we can maintain at least a modicum of control over the everyday things in our lives; and a government that will work to protect us when we cannot adequately protect ourselves.

The Government Accountability Office and the Congressional Research Service have concluded that rule changes imposed by the Bush administration on the State Children's Health Insurance Program (SCHIP) in 2007 violated federal law: BNA reports:

In legal opinions released April 18, the Government Accountability Office and the Congressional Research Service said the SCHIP guidance is a rule for purposes of the Congressional Review Act (CRA) and so violates statutory requirements for congressional notice and review.