‘Needlessly delayed’

Workers are dying as a result of delays in the rulemaking process, witnesses told a Senate subcommittee on Aug. 1.

A hearing convened by the newly created Oversight, Federal Rights and Agency Action Subcommittee examined the costs and burdens created by federal regulations, as well as the process proposed rules undergo.

During the hearing, some stakeholders suggested the rulemaking process, which involves a 90-day review by the White House’s Office of Management and Budget, is inefficient and impedes the issuance of helpful and lifesaving rules.

Subcommittee Chair Sen. Richard Blumenthal (D-CT) opened the hearing by reflecting on the 1987 L’Ambiance Plaza tragedy in Connecticut, in which 28 workers died in a building collapse stemming from a construction technique known as “lift slab.” Five years before the incident, OSHA issued an advance notice of proposed rulemaking that would prohibit workers from being onsite during use of the technique. The rule was not finalized until three years after the tragedy.

“Many other rules and many other rulemaking procedures have been needlessly delayed … with tragic costs for many, many Americans,” Blumenthal said.

AFL-CIO Safety and Health Director Peg Seminario noted that worker deaths also occurred during the eight-year process to update OSHA’s Cranes and Derricks in Construction Standard, an update that was widely agreed upon.

Seminario placed part of the blame for rulemaking delays on general regulatory opposition, which she said has led to agencies having to complete extended analyses and comply with increased requirements.

As an example, she pointed out that OSHA’s proposed update to its Silica Standard has been in the making for 16 years and, at press time, had been under review by OMB’s Office of Information and Regulatory Affairs for more than two years – far longer than the 90 days a review is supposed to last.

However, Patrick McLaughlin, a senior research fellow at Mercatus Center at George Mason University in Arlington, VA, testified that statutory deadlines and shorter review times have negatively affected regulatory analyses.

“If time can improve regulations, then time should be taken,” McLaughlin said, adding that delays in the rulemaking process may be worthwhile if a better rule is the end result.

Seminario directly questioned that assertion, suggesting more concern is being placed on the rulemaking process than on the outcome of issuing rules. “I don’t agree that analysis for the sake of analysis and getting better analysis is really worth it,” she said. “I think we have to re-examine if we haven’t gone too far.”

To illustrate her point, Seminario reflected on some of OSHA’s very first promulgated regulations – which were finalized in a couple of years – that had decent analyses and were backed by the courts. People who are not in favor of issuing new rules use additional analyses as a way of slowing down the process, she said.

Regulatory capture

The delays also could be caused by “regulatory capture,” Sen. Sheldon Whitehouse (D-RI) suggested. Regulatory capture occurs when an agency acts in the interest of an industry or group it is meant to regulate instead of the interest of the public. The idea of industries having undue regulatory influence over their regulators is not uncommon, and the concept’s existence is supported in academic circles and through real-life observances, Whitehouse said.

“We saw appalling conduct out of the Minerals Management Service in the run-up to the Gulf explosion and oil spill,” Whitehouse said, referring to the now-defunct agency tasked with oil rig safety oversight prior to the 2010 Deepwater Horizon tragedy. The senator also cited mine explosions as real-world evidence of regulatory capture affecting the Mine Safety and Health Administration.

Seminario concurred, but stressed that the issue goes beyond federal agencies. During a meeting between OMB and family members of workers killed on the job, then-OIRA Administrator Cass Sunstein remarked to Seminario how unusual that meeting was. OMB routinely meets with industry representatives, but not worker advocates, Sunstein told her.

“Regulatory capture is a huge problem, and it’s not just in the agencies but it’s in the White House,” Seminario said.

The Aug. 1 hearing was the first for the new subcommittee. Blumenthal promised separate hearings in the future to address each of the various topics brought up, including delays on environmental and transportation regulations.