Workers at Risk: Regulatory Dysfunction at OSHA

This white paper explores the causes of the Occupational Safety and Health Administration (OSHA)’s regulatory dysfunctions and describes their negative impacts on OSHA and America’s Workers. With the decreasing power of unions to organize and press employers to implement strong health and safety programs, employees in every occupation rely on OSHA to protect them from occupational hazards. Yet, in the last decade, OSHA has dropped more standards from its regulatory agenda than it has finalized, largely due to insufficient budge authority. And the agency’s enforcement program has assessed such paltry fines for even fatality-related violations of the law that many employers see no incentive in addressing hazards, much less developing precautionary health and safety programs. After describing OSHA’s problems in detail, this paper outlines a number of reforms that could enhance the agency’s performance. Although certain aspects of the Occupational Safety and Health Act could use improvement, the recommendations in this paper focus on regulatory reform—administrative actions that OSHA could implement in the short term.The Kay Bailey Hutchison Center for Energy, Law, and Busines

Opening the Industry Playbook: Myths and Truths in the Debate over BPA Regulation

For the last two decades, scientists have amassed evidence that bisphenol A (BPA) poses a threat to human health. Although scientists have targeted BPA as a public health concern, plastics industry lobbyists have attempted to thwart the efforts of federal, state, and local authorities to reduce exposure to BPA. This paper reviews the major arguments advanced by the plastics industry and debunks them as “myths” that public health officials must reject. The five topics covered include: the myth of scientific consensus on safety; the myth that only studies complying with “Good Laboratory Practices” guidelines are adequate for making regulatory decisions; myths about the science of BPA exposure and metabolism; economic myths related to restrictions on BPA’s use; and the myth that state-based regulation creates an unmanageable “patchwork” of rules. After critiquing the facts and policy implications of each issue, the authors conclude with suggestions regarding how federal agencies can coordinate their work to better protect the public from the risks posed by BPA and other endocrine disrupting chemicals

Limiting Federal Agency Preemption: Recommendations for a New Federalism Executive Order

The structure of the U.S. Constitution reflects a profound respect for the principles of federalism and state sovereignty. These principles require the federal government to recognize and encourage opportunities for state and local governments to exercise their authority, especially in areas of traditional state concern such as the protection of the health, safety, and welfare of their citizens. However, over the last six years there has been a coordinated Executive Branch effortto use the regulatory process to shield certain product manufacturers from state tort liability. The Food and Drug Administration, National Highway Traffic Safety Administration, and Consumer Product Safety Commission, among others, have attempted to use the doctrine of preemption to block consumers’ access to state courts. During the Bush Administration, executive agencies have included assertions of preemption in regulatory preambles, filed amicus briefs in litigation in which other litigants have argued that federal statutes preempt state law, and submitted to Congress draft legislation that would preempt state and local authority to protect public health, safety, and the environment. The Obama administration should replace Executive Order 13132, which instructs administrative agencies to consider the federalism implications of their actions, with an Executive Order that is more protective of the legitimate interests of state governments in maintaining their traditional role in protecting the health, safety and welfare of their citizens. While the current order has some desirable features, it is inadequate to prompt the type of deliberations in which agencies should engage when they are considering whether to support the preemption of state law

Did a Federal Ethics Loophole Worsen the Vaping Crisis?

Suppose a federal agency employee works on a policy matter that affects a multi-billion-dollar industry. Could that same person quit his government job and just a few weeks later take a private sector job representing the same industry on the same policy matter that he worked on for the government? It turns out that the answer is “yes.” A loophole in federal ethics laws allows such revolving-door abuses. And sometimes the results of these abuses can be tragic. Consider the current public health crisis involving dangerous vaping products. The Office of Management and Budget (OMB) oversees the development of new regulations on behalf of the President and, due to its fierce anti-regulatory culture, it often provides a sympathetic ear to industry lobbyists seeking to block or weaken those rules. Government records show that, on April 1, 2014, Andrew Perraut, then an OMB policy analyst, met with three representatives from Cigar Rights of America who were apparently concerned about a draft rule that would extend the Food and Drug Administration’s (FDA) regulatory authority to e-cigarettes, cigars, and other tobacco products. By our count of government meeting logs, the April 1st meeting was at least the 34th meeting that Perraut had attended about this proposed rule while it underwent standard OMB review. Three-quarters of those meetings were with tobacco companies or related special interest groups. In August 2014, Perraut would leave his job at OMB and start his own consulting company. Then, in 2015, he began attending meetings again on the same FDA rule while it was undergoing a second round of White House reviews—including one meeting for which he is identified in meeting logs as representing Cigar Rights of America and other meetings for which, according to the Los Angeles Times, he was representing members of the tobacco industry. After many reported meetings with representatives of the tobacco and vaping industries, OMB officials, with the political backing of the Obama White House, reportedly blocked the FDA’s efforts to ban flavored e-cigarettes that would be especially appealing to children. When the FDA published its final tobacco rule in May 2016, provisions covering flavored e-cigarettes were notably absent. Public health officials now believe that the ensuing regulatory vacuum became a major contributing factor to the skyrocketing use of e-cigarettes among teenagers. A recent survey found that one-quarter of high school seniors had vaped at least once in the last 30 days. At last count, the current vaping-related health epidemic has already claimed 37 lives and contributed to 1,888 cases of mysterious lung disease. The most relevant federal ethics law addressing post-employment conflicts of interest generally permanently bars former executive branch employees from representing anyone before the federal government regarding any “particular matter” that “involved a specific party or specific parties” on which those former employees participated “personally and substantially” in their official capacity. The Office of Government Ethics (OGE) has said that the purpose of this law is “to prevent former government employees from leveraging relationships forged during their government service to assist others in their dealings with the government.” But whether the law achieves this goal depends on how its key terms are defined. Although the statute defines a “particular matter” as including rulemakings, it does not define what constitutes a “specific party or parties.” OGE has filled that gap by narrowly defining the concept of “particular matter involving a specific party or parties” so as to exclude generally applicable regulations such as the FDA e-cigarette rule. Excluded is “rulemaking of general applicability and the formulation of general policies, standards or objectives, or other matters of general applicability are not particular matters involving specific parties.” Thus, under this definition, agency actions such as grants or contracts would be covered by federal ethics laws, while most forms of regulations would not. So, had an OMB analyst worked as a federal employee on even a paltry contract, say to buy $100 worth of pencils from an office supply company, he would likely have been prohibited from participating in any meetings about that purchase after leaving the federal government. But his participation in reviewing a major rule affecting a multi-billion industry does not preclude him from later representing the industry on the same rule. Regardless of whether this “rulemaking” loophole made sense when OGE first adopted its narrow interpretation, it clearly does not now. Many regulated industries have become dominated by a few large businesses, such that the interests of the industry as a whole are practically indistinguishable from those of its specific members. It is unclear whether OGE has the authority to update its existing regulatory definition of “particular matter involving a specific party or parties” to reflect this new reality by removing the exclusion for “rulemaking of general applicability.” Because of this, Congress should step up and amend federal ethics laws to close this loophole. The proposed Anti-Corruption and Public Integrity Act, for example, would bar former agency employees from all lobbying activities before their old offices for at least two years after they leave the government. Alternatively, Congress could strengthen the permanent bar on lobbying on matters in which former agency employees participated by clarifying that the definition of “specific party or parties” encompasses regulations. Either of these changes might go a long way toward preventing former regulators from unduly leveraging their experience to change the shape of regulations on industry

Did a Federal Ethics Loophole Worsen the Vaping Crisis?

Suppose a federal agency employee works on a policy matter that affects a multi-billion-dollar industry. Could that same person quit his government job and just a few weeks later take a private sector job representing the same industry on the same policy matter that he worked on for the government? It turns out that the answer is “yes.” A loophole in federal ethics laws allows such revolving-door abuses. And sometimes the results of these abuses can be tragic. Consider the current public health crisis involving dangerous vaping products. The Office of Management and Budget (OMB) oversees the development of new regulations on behalf of the President and, due to its fierce anti-regulatory culture, it often provides a sympathetic ear to industry lobbyists seeking to block or weaken those rules. Government records show that, on April 1, 2014, Andrew Perraut, then an OMB policy analyst, met with three representatives from Cigar Rights of America who were apparently concerned about a draft rule that would extend the Food and Drug Administration’s (FDA) regulatory authority to e-cigarettes, cigars, and other tobacco products. By our count of government meeting logs, the April 1st meeting was at least the 34th meeting that Perraut had attended about this proposed rule while it underwent standard OMB review. Three-quarters of those meetings were with tobacco companies or related special interest groups. In August 2014, Perraut would leave his job at OMB and start his own consulting company. Then, in 2015, he began attending meetings again on the same FDA rule while it was undergoing a second round of White House reviews—including one meeting for which he is identified in meeting logs as representing Cigar Rights of America and other meetings for which, according to the Los Angeles Times, he was representing members of the tobacco industry. After many reported meetings with representatives of the tobacco and vaping industries, OMB officials, with the political backing of the Obama White House, reportedly blocked the FDA’s efforts to ban flavored e-cigarettes that would be especially appealing to children. When the FDA published its final tobacco rule in May 2016, provisions covering flavored e-cigarettes were notably absent. Public health officials now believe that the ensuing regulatory vacuum became a major contributing factor to the skyrocketing use of e-cigarettes among teenagers. A recent survey found that one-quarter of high school seniors had vaped at least once in the last 30 days. At last count, the current vaping-related health epidemic has already claimed 37 lives and contributed to 1,888 cases of mysterious lung disease. The most relevant federal ethics law addressing post-employment conflicts of interest generally permanently bars former executive branch employees from representing anyone before the federal government regarding any “particular matter” that “involved a specific party or specific parties” on which those former employees participated “personally and substantially” in their official capacity. The Office of Government Ethics (OGE) has said that the purpose of this law is “to prevent former government employees from leveraging relationships forged during their government service to assist others in their dealings with the government.” But whether the law achieves this goal depends on how its key terms are defined. Although the statute defines a “particular matter” as including rulemakings, it does not define what constitutes a “specific party or parties.” OGE has filled that gap by narrowly defining the concept of “particular matter involving a specific party or parties” so as to exclude generally applicable regulations such as the FDA e-cigarette rule. Excluded is “rulemaking of general applicability and the formulation of general policies, standards or objectives, or other matters of general applicability are not particular matters involving specific parties.” Thus, under this definition, agency actions such as grants or contracts would be covered by federal ethics laws, while most forms of regulations would not. So, had an OMB analyst worked as a federal employee on even a paltry contract, say to buy $100 worth of pencils from an office supply company, he would likely have been prohibited from participating in any meetings about that purchase after leaving the federal government. But his participation in reviewing a major rule affecting a multi-billion industry does not preclude him from later representing the industry on the same rule. Regardless of whether this “rulemaking” loophole made sense when OGE first adopted its narrow interpretation, it clearly does not now. Many regulated industries have become dominated by a few large businesses, such that the interests of the industry as a whole are practically indistinguishable from those of its specific members. It is unclear whether OGE has the authority to update its existing regulatory definition of “particular matter involving a specific party or parties” to reflect this new reality by removing the exclusion for “rulemaking of general applicability.” Because of this, Congress should step up and amend federal ethics laws to close this loophole. The proposed Anti-Corruption and Public Integrity Act, for example, would bar former agency employees from all lobbying activities before their old offices for at least two years after they leave the government. Alternatively, Congress could strengthen the permanent bar on lobbying on matters in which former agency employees participated by clarifying that the definition of “specific party or parties” encompasses regulations. Either of these changes might go a long way toward preventing former regulators from unduly leveraging their experience to change the shape of regulations on industry

Regulatory Dysfunction: How Insufficient Resources, Outdated Laws, and Political Interference Cripple the \u27Protector Agencies\u27

In the last several years, dramatic failures of the nation’s food safety system have sickened or killed tens of thousands of Americans, and caused billions of dollars of damages for producers and distributors of everything from fresh vegetables to granola bars and hamburger meat. In each case, the outbreak of food-borne illness triggered what can only be described as a frantic scramble by health officials to discover its source. Inevitably, the wrong lead is followed or a recall is too late or too narrow to prevent further illnesses, and the government has to defend itself against withering criticism. Americans expect more from the experts at the Food and Drug Administration (FDA) and their counterparts at the Department of Agriculture, but the simple truth is that they are ill-equipped to deliver. The food safety system typifies the debilitated state of the entire regulatory system that Americans rely upon to protect their health, safety, and environment. The five “protector agencies” – FDA, the Occupational Safety and Health Administration (OSHA), the Consumer Product Safety Commission (CPSC), the National Highway Traffic Safety Administration (NHTSA), and the Environmental Protection Agency (EPA) – all grapple with hefty responsibilities to protect the American public from constantly evolving hazards. The agencies have done an adequate job of eliminating or managing the basic hazards of modern industrial society. Every new car has seatbelts and passive restraints, the use of lead in gasoline and residential paint has been eliminated, and air quality has improved in many areas. Unfortunately, this progress has been marred by a series of high-profile failures. OSHA has failed to prevent musculoskeletal injuries, the leading cause of workplace illness; billions of consumer products enter the country from foreign manufacturing sites that are never inspected by product safety specialists; and the EPA is just beginning to map out a strategy for combating climate change, a threat that could eliminate 40 percent of species and lead to the relocation of hundreds of millions of people by the turn of the century. The agencies’ inability to act swiftly and decisively in the last several decades is largely the result of four problems: severe shortfalls in funding, outdated authorizing statutes, political interference, and an aging, demoralized civil service. Regulatory dysfunction begins with funding gaps that defeat agency efforts to fulfill the statutory mandates assigned by Congress. These shortfalls, which push the agencies into a state of constant default on their most important missions, are compounded by congressional neglect of its oversight and reauthorization responsibilities. With two exceptions – the Consumer Product Safety Commission Improvement Act and the FDA Amendments Act of 2007 – Congress has made no effort to renew and update the statutes in at least two decades. Compounding these problems, the protector agencies operate under the watchful eye of White House political staff who frequently and freely substitute their own judgments for those of agency staff, offering a back door for special interests disappointed in decisionmaking by agency experts to exert inappropriate influence, most often behind closed doors. The solutions to these problems – statutory amendments, an improved budget process, decentralized decisionmaking, and civil service reforms – are not simple fixes. But the alternative is a regulatory system that reverts to a purely reactionary mode, leaving public health, safety, and environmental protection to the whims of the marketplace

Workers at Risk: Regulatory Dysfunction at OSHA

The Occupational Safety and Health Administration was born with a heavy load to bear – the obligation of ensuring that every worker in America has a safe and healthful workplace for his or her entire working life. In its early years, OSHA acted with great vigor, establishing important standards for occupational health and safety that have prevented hundreds of thousands of injuries and illnesses. But the agency has not aged gracefully. Today its enforcement staff is stretched thin and the rulemaking staff struggle to produce health and safety standards that can withstand industry legal challenges. In short, OSHA is a picture of regulatory dysfunction. This white paper explores the causes of OSHA’s regulatory dysfunctions and describes their negative impacts on OSHA and America’s workers. With the decreasing power of unions to organize and press employers to implement strong health and safety programs, employees in every occupation rely on OSHA to protect them from occupational hazards. Yet, in the last decade, OSHA has dropped more standards from its regulatory agenda than it has finalized, largely due to insufficient budget authority. And the agency’s enforcement program has assessed such paltry fines for even fatality-related violations of the law that many employers see no incentive in addressing hazards, much less developing precautionary health and safety programs. After describing OSHA’s problems in detail, this paper outlines a number of reforms that could enhance the agency’s performance. Although certain aspects of the Occupational Safety and Health Act could use improvement, the recommendations in this paper focus on regulatory reform – that is, administrative actions that OSHA could implement in the short term. A subsequent white paper will address legislative reform

The Next OSHA: Progressive Reforms to Empower Workers

Congress enacted the Occupational Safety and Health Act more than 40 years ago. A transformative law at the time it was passed, the OSH Act has not proved nimble enough to address the evolving challenges faced by U.S. workers. In this paper, we discuss how changes to the OSH Act and its implementing regulations and policies could better empower workers to ensure that all workers have safe and healthy workplaces. We focus on workers and their power to influence the policies that keep them safe and healthy on the job. Numerous issues affect workers’ health and safety, from workers’ compensation reform to health care policies to wage and hour problems, but we focus here on health and safety regulation by federal agencies. Worker empowerment: We propose strenghtening education and training requirements as the first step toward empowering workers. To ensure that new knowledge and training can be put to use, we propose establishing a private right-of-action to enforce the OSH Act, much like the citizen suit provisions of environmental laws. Enforcement: We urge Congress to amend the OSH Act to increase criminal fines and jail time for employers who violate the statute and its impelementing regulations. Civil enforcement could be enhanced through use of administrative compliance orders, the Responsible Corporate Officer doctrine, the Alternative Fines Act, and inflation-adjusted penalties. We also encourage OSHA to revamp its procedures for investigating fatalities and involving workers and their representatives in enforcement proceedings. Administrative issues: Recognizing OSHA\u27s need for additional resources, we suggest that Congress and the agency explore whether certain programs (e.g., the Voluntary Protection Program) should be funded through user fees. We also discuss OSHA\u27s role in overseeing state-plan programs. We urge Congress to abolish the split-enforcement model that relies on the independent Occupational Safety and Health Review Commission to adjudicate cases. Finally, we discuss reforms to the rulemaking process that would speed the development of new safety and health standards