The Food and Drug Administration (FDA) issued two new standards May 4 intended to protect Americans from potentially contaminated foreign food. From the agency:

The first rule strengthens FDA’s ability to prevent potentially unsafe food from entering commerce. It allows the FDA to administratively detain food the agency believes has been produced under insanitary or unsafe conditions. Previously, the FDA’s ability to detain food products applied only when the agency had credible evidence that a food product presented was contaminated or mislabeled in a way that presented a threat of serious adverse health consequences or death to humans or animals. [...]

The second rule requires anyone importing food into the United States to inform the FDA if any country has refused entry to the same product, including food for animals. This new requirement will provide the agency with more information about foods that are being imported, which improves the FDA’s ability to target foods that may pose a significant risk to public health. 

These are the kinds of commonsense safeguards that we should expect from our government. If a government scientist or other expert suspects that food could be dangerous, he or she should be able to check it out. And at the risk of sounding ignorantly American, if food isn’t good enough for another country, it shouldn’t be good enough for the U.S.

Foodborne illness sickens one in six Americans, hospitalizes 128,000, and kills 3,000 every year, according to the CDC. It’s one of those hazards that we can’t be expected to protect ourselves from without help – help that can come in the form of safeguards established by the FDA and other agencies.

The standards, both issued as interim final rules, are the first display of FDA’s enhanced rulemaking authority provided by the Food Safety Modernization Act, a sweeping food safety reform package signed into law in January after months of legislative deal-making. The rules are effective July 3.

The Department of Labor announced March 16 that it will accept public comments on its plan to review existing regulations and their impact. Labor, like all agencies, is conducting the review in accordance with an executive order President Obama signed Jan. 18.

“The Department also requests that submitters provide, in as much detail as possible, an explanation of why a regulation or reporting requirement should be modified, streamlined, expanded, or repealed, as well as specific suggestions of ways the Department can better achieve its regulatory objectives.”

The window for public input is quite small: the comment period closes March 31, only 15 days after the Labor Department opened it, and only nine days from now. The Department is hosting the public discussion using an interactive, blog-like interface at dolregs.ideascale.com.

The brevity may be a symptom of the time frame Obama gave agencies to work within when he issued his executive order. Obama gave agencies 120 days to develop a review plan, which they then must submit to the White House Office of Information and Regulatory Affairs. The 120-day deadline is coming up on May 18.

(Critics of Obama’s order and accompanying Wall Street Journal editorial, including OMB Watch, fear that the regulatory review is being conducted in response to congressional and lobbyist complaints about regulation, and that the review will be used to generate a hit list of regulations industry wants to undo.)

Hopefully, in that short time period, the Labor Department will hear about the important role its standards play in the preservation of worker health, safety, and rights. American workers depend on rules written by Labor Department agencies like the Occupational Safety and Health Administration, the Mine Safety and Health Administration, and the Wage and Hour Division, as well as the proper enforcement of those rules.

The Labor Department joins the Environmental Protection Agency and the Department of Homeland Security as the only agencies, as far as I know, to invite public comment on the regulatory review process.

Editor's Note: This post was originally published as a comment in response to "Turning Rule Writers Into Problem Solvers: Creating a 21st Century Government That's Open and Competent by Improving Regulation and Regulatory Review" on Cairns Blog. Additionally, a correction was made in this version regarding the number of comments EPA received in response to its TRI rollback rule during the Bush administration.

The three ideas for reforming participation in the rulemaking process in Beth’s Noveck's blog post, "Turning Rule Writers Into Problem Solvers: Creating a 21st Century Government That's Open and Competent by Improving Regulation and Regulatory Review," may or may not be useful. They certainly can and should be tested empirically. But the focus on these participation issues must be complemented by reform of the rulemaking process itself.

There are numerous problems with the process. A mainstay of our current rulemaking approach involves comparing costs and benefits. Yet most often, federal agencies end up relying on the regulated community’s estimate of its compliance costs. When cost estimates originate from the regulated community, they are likely to have biased outcomes – especially when there is no way to verify them. Since all decisions about the regulation start with these numbers, we are building a house on a faulty foundation. Moreover, these cost estimates are never tested once the regulation is put into place, even though there is ample evidence that implementation costs go down with technological innovations and other market-based solutions.

If rulemaking is guided by cost and benefits, why is there no assessment for the cost of delay? Not looking at the cost of delay harms the public but benefits the regulated community. If we don’t look at the cost of delay, there is little incentive for action.

Under today’s rulemaking approach, participation is skewed. Small businesses and state/local/tribal governments get special access to discuss proposed rules before the public does. When there is an opportunity for selected audiences to interact with agencies at the expense of other audiences, such as beneficiaries, it raises questions of fairness. It also contributes to a perception that special interests have taken over the rulemaking process – and if not a takeover, then certainly a cozy relationship, such as the relationship that existed between the former Minerals Management Service and the energy industry.

The amount of analysis and paperwork associated with a rulemaking that an agency must go through has become absurd. Through organic statutes, Congress often requires analyses – and each administration tends to add more analytical requirements (often without eliminating old ones). The result is what some experts call “paralysis by analysis,” which, of course, tilts the regulatory playing field in favor of inaction.

I could go on listing the problems with the rulemaking process, not to mention the lack of public education in our schools about administrative government and civic participation. Technology may play some role in making things better, but fundamental policy reform is even more essential.

Additionally, technology solutions skirt the reality that politics play in rulemaking decisions. During the Bush administration, EPA received more than 122,000 comments opposing efforts to reduce data collection under the Toxics Release Inventory (TRI) and only a handful supporting EPA’s effort. Yet EPA moved forward with its proposed gutting of the TRI program. Why participate in a rulemaking process that may be rigged from the start? It fosters disenchantment and discourages meaningful participation.

Beth’s third idea raises concern about who would participate in providing alternative ideas with empirical data to support the idea. Certainly average citizens do not have the technical expertise for such efforts, and most nonprofits don’t either. Most likely, it would be Big Oil, Wall Street, and other regulated special interests that would have the resources to provide the empirical support for ideas. They already do that now. While there should be pilot projects to test Beth’s ideas, let’s not get giddy about technology suddenly changing all power dynamics. Technology may provide tools to help, but it is not necessarily the solution.

Maybe it is coincidental that 2012 is an election year, and it appears that President Obama is suddenly using the rulemaking process as a tool to reach out to the business community. But since last week’s new regulatory policy directives that Beth describes, we’ve seen decisions on regulations that seem to benefit corporate interests. For example:

• On Jan. 18, rules under the H-2B Visa Program, a program that improved the process for setting wage rates employers must pay to temporary foreign workers, came out. But the implementation was delayed until at least 2012.
• On Jan. 19, OSHA backed off a proposed workplace noise rule in response to complaints from major business groups.
• On Jan. 21, FDA withdrew its draft guidance on menu-labeling regulations and instructed states and localities to hold off on enforcement until a final federal rule is published.
• On Jan. 25, OSHA suspended its proposed rule to restore a tracking mechanism on employer injury and illness logs for work-related musculoskeletal disorders.

In each of these cases, there may be legitimate – even rational – reasons to slow down or scotch the regulation. But if a perception grows that the Obama administration is capitulating to business interests over public interests, the best public participation approaches in the world are not going to result in a stronger democracy.

The public comment period for the U.S. Environmental Protection Agency’s proposal to regulate toxic coal ash ends today. OMB Watch urges you to tell the EPA to set standards fully protective of public health and the environment. You can submit comments at Regulations.gov, or, for more background and assistance, visit the website of Earthjustice, an environmental group campaigning in favor of strong coal ash standards.

Coal ash is a dangerous byproduct of coal combustion and can contain arsenic, lead, chromium, and other heavy metals. Reports link exposure to the toxic components in coal ash to cancer and other health problems. The toxins in coal ash can leach from landfills and surface impoundments into rivers, lakes, or streams, risking contamination of your drinking water. New calls for regulation of coal ash began in 2008 after an impoundment in Kingston, TN, failed, releasing 5.4 million cubic yards of coal ash that buried a community.

In its June 21 notice, EPA proposed two options for regulating coal ash. The first option would designate coal ash as a hazardous waste, requiring special handling, transportation, disposal, and any potential reuse. The second would regulate coal ash in a way typically only used to control less toxic wastes such as household garbage – an option that would limit EPA's responsibility and authority over coal ash management. The choice is clear: EPA must choose the first, stronger option to ensure that communities are protected.