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Department of Agriculture Sends Misguided Fiasco of a Poultry Processing Rule to the White House

The U.S. Department of Agriculture (USDA) sent its benighted poultry processing rule to the White House for final review.  The millions of consumers who eat undercooked chicken at their peril and the beleaguered workers in these dank, overcrowded, and dangerous plants can only hope the President’s people come to their senses over there and kill this misguided fiasco. 

Ordinarily, we would have hoped that Department of Labor secretary Tom Perez would have put his foot down before USDA proceeded with the final rule, but after months of pleas from the National Council of La Raza, African American labor advocates, trade unions, and consumer groups across the spectrum, he has remained aloof.  Apparently, the economic needs of multi-billion dollar poultry processing companies that have brought us salmonella outbreak after salmonella outbreak will once again trump the needs of the consumers and workers, especially Hispanic and African American workers who, if they are lucky, manage to avoid cutting themselves too often on crowded assembly lines only to succumb to crippling ergonomic injuries a few years down the road.

USDA claims that the rule will “modernize” the food safety system with respect to poultry grown and slaughtered in the U.S.  This claim has got to be one of the greatest misrepresentations launched by the government so far this year.  Instead, the rule makes a pair of very bad changes that benefit an industry undeserving of the public’s trust:  (1) it pulls hundreds of federal inspectors off the line at poultry plants so they won’t be able to check birds for feces, blood, and feathers and (2) it allows chicken producers like Foster Farms, Perdue, and Pilgrim’s Pride to speed the line up from 50-70 birds/minute to 175—or close to three birds every second.

In place, the rule imposes two laughable substitutes.  The first is self-regulation by the chicken companies.  USDA doesn’t tell the companies what to test, how often to test, or what to do with test results, but rather leaves it up to each plant’s managers to decide whether consumers and workers will be at too much “risk.”  Second, workers paid subsistence wages would assume the inspector’s responsibilities, but the rule doesn’t require any training on how they might approach that critical job. At three birds a second, and with the added job of hanging and processing the carcasses as they whip by, the idea that workers can do anything other than get hurt worse is quite remarkable.


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Has OIRA really improved the timeliness of its reviews? Nope, it just has a new scheme for delaying safeguards and defeating transparency

It’s time to put to bed an unfortunate myth that’s been floating around the last few weeks.  The myth goes something like this:  The Office of Information and Regulatory Affairs (OIRA)—the opaque bureau within the White House charged with approving agencies’ draft regulations before they can be released to the public—has succeeded in improving the timeliness of its reviews during the last few months.  OIRA has long been a roadblock to the successful implementation of critical safeguards, so if true, this claim would be welcome news.  But, when OIRA’s recent record is viewed with a more critical eye, this claim simply does not hold up.

While it’s true that OIRA has recently cleared its docket of several high profile draft rules that have been stuck there for several months or even years, in many cases OIRA has done so by relying on what almost amounts to an accounting trick—one that seems calculated to skirt any meaningful transparency requirements.

A few months ago, CPR noticed a disturbing trend in which OIRA was increasingly using an obscure and relatively uncommon process known as a “withdrawal” to end some long-overdue reviews of high profile draft rules.  Among the first rules to be disposed of through this scheme included the Environmental Protection Agency’s (EPA) draft proposed Chemicals of Concern list (withdrawn from OIRA review on September 6, 2013, after 1,214 days) and the National Highway Traffic Safety Administration’s (NHTSA) draft final rule for rearview cameras in automobiles (withdrawn from OIRA on June 20, 2013, after 583 days).

So, what is a withdrawal and why does it matter?  A withdrawal occurs when the rulemaking agency (for example, the EPA or NHTSA) voluntarily withdraws a draft rule from OIRA review before it has been completed.  The withdrawal process is distinct from a “return,” which occurs when OIRA ends the review by sending the draft rule back to the rulemaking agency for more work instead of approving it.  From a transparency perspective, there is a crucial difference between withdrawals and returns.  When OIRA uses a return to end a review, Executive Order 12866 (a legal document that governs OIRA review) requires that it issue a public “return letter” that explains the problems with the draft rule and why OIRA was otherwise unable to approve it.  In contrast, with a withdrawal, the rulemaking agency is under no obligation to offer a public explanation for why it decided to withdraw the draft rule from OIRA review.

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20 Years of 12866

This coming Friday marks the 20th anniversary of a little-known but remarkably important document: Executive Order 12866, issued by President Bill Clinton in 1993. Executive Order 12866 replaced an order issued by President Ronald Reagan in 1981. Both of these documents set out a process whereby the White House – acting through the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (OMB) – would review major agency rules before they were issued.

Executive Order 12866, and the Reagan order before it, ushered in a new era in administrative law, one in which the White House would become the dominant force in administrative rulemaking and in which cost-benefit analysis would become the overarching framework for evaluating the wisdom of rules. Professional career staff in the agencies, steeped in the technical fields relevant to the agencies’ work, would see their work product changed, sometimes dramatically, by professional career staff in OIRA. Political management at the agencies would find their actions scrutinized, revised, and sometimes stopped altogether by political operatives at the White House. 

Even where statutes (as most do) charged a particular agency with making a particular technical finding and set forth a decision-making framework other than cost-benefit analysis, the White House process of regulatory review displaced those agency decision makers and supplanted the statutory standard with a cost-benefit test. The executive orders under both Reagan and Clinton qualified their reach by stating that they were to be applied “to the extent permitted by law,” but administrative law developments in the Supreme Court subsequent to the Reagan executive order – in particular, the famous Chevron decision – give tremendous leeway to agencies in interpreting the statutes they administer, and OIRA has taken upon itself to instruct agencies how to interpret these laws. Thus the constraint of following existing law is more illusory than real. 

Executive Order 12866 entered this fraught environment after over a decade of experience with Reagan’s order. Harsh criticism had followed the original order and its implementation. OIRA reviews took a long time; indeed, sometimes review never ended and rules simply died on the OIRA vine. The process was opaque. One could hardly tell what was under review, much less what OIRA had done during its review. OIRA review had become an opportunity for industry representatives to air their complaints about rules, and this part of the process was opaque as well. The same was said of the process for resolving a dispute between OIRA and the agency proposing an action. In short, in addition to worries about the substance of OIRA review, including the displacement of agency decision makers and the superimposition of a cost-benefit test on non-cost-benefit statutes, there were large concerns about the process as well.

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Transparency Withdrawn: A New Tactic for Shielding OIRA’s Regulatory Review Activities?

Yesterday, the Environmental Protection Agency (EPA) announced that it was “withdrawing” from White House review its draft final guidance that sought to clarify the scope of the Clean Water Act.  The guidance had been languishing at the Office of Information and Regulatory Affairs (OIRA), which oversees the White House regulatory review process, for 575 days, even though Executive Order 12866, the document that governs OIRA review of regulations, caps the length of reviews at 90 days plus a limited, one-time extension of 30 days.  This is just the latest episode in what now appears to be a new disturbing trend:  The Obama Administration seems to be increasingly relying on a relatively uncommon practice known as a “withdrawal” to unceremoniously dispose of long-overdue OIRA reviews involving important safeguards that are vigorously opposed by industry. 

Over the last few months, several other industry-opposed rules have met a similar fate of being withdrawn after sitting at OIRA for well beyond the time limit permitted by Executive Order 12866:

·The National Highway Traffic Safety Administration’s (NHTSA) draft final rule mandating rearview cameras to prevent back-over accidents involving children:  “Withdrawn” from regulatory review on June 20, 2013, after collecting dust at the OIRA for 583 days.

·The EPA’s draft proposed Chemicals of Concern list—an absurdly modest regulatory “action” that would have merely identified a handful of potentially harmful chemicals as worthy of additional agency scrutiny:  “Withdrawn” from OIRA review on September 6, 2013, after an astonishing delay of 1214 days.

· The EPA’s draft proposal to limit the chemical industry’s specious “confidential business information” claims to shield crucial health and safety data on their new chemicals from public disclosure:  “Withdrawn” from OIRA review on September 6, 2013 after 620 days.

Before delving into why this apparent uptick in withdrawals is cause for concern, some background may be in order.   A “withdrawal” occurs when an agency voluntarily chooses to “withdraw” a draft proposed or final rule from the regulatory review process before OIRA, as the regulatory gatekeeper, has either formally approved the draft—clearing it for publication in the Federal Register—or denied it, through a “return letter,” sending the draft back to the agency for more work.  At least, that’s the theory of how withdrawals work.  In some cases, the circumstances suggest that OIRA or other White House officials have pressured the agency into withdrawing a rule.

The Executive Order does impose on OIRA important disclosure requirements that if followed, would help to bring needed transparency to the withdrawal process.  Under the Order, these obligations are very broad, requiring OIRA to “make available to the public all documents exchanged between OIRA and the agency during the review by OIRA.”  (Emphasis mine.)  See for yourself at section 6(b)(4)(D).  Presumably, included in “all” these “documents” would be evidence of flaws or policy disagreements that led the agency to withdraw the rule.  It would also shed some light on whether this withdrawal was in fact voluntary or under pressure from the White House—and thus just a return letter by another name.

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The Regulatory Czar’s Recent Blog on Truck Driver Paperwork and the West, Texas, Tragedy

 Last week, Regulatory Czar Howard Shelanski embarked on his maiden voyage into the glamorous world of White House blogging, penning a post that touts the latest burden-reducing accomplishment of President Obama’s dubious regulatory “look-back” initiative.   On this auspicious occasion, he trumpets the Department of Transportation’s (DOT) proposed rulemaking to reduce the number of inspection reports that commercial truck drivers have to file, resulting in reduced paperwork burden costs to the tune of $1.7 billion annually.

Shelanski makes clear in the post that this DOT rulemaking is not an isolated incident, but is in fact part of the regulatory look-back initiative’s broader antiregulatory project.  He explains that the initiative is necessary because “some regulations that were well crafted when first issued can become unnecessary over time as conditions change—and regulations that aren’t providing real benefits to society need to be streamlined, modified, or repealed.”  (Emphasis mine)  In case the look-back’s antiregulatory objective wasn’t clear enough the first time around, Shelanski states emphatically at the end of the post:  “This Administration will expand and further institutionalize our regulatory look-back efforts to ensure that we continue to identify rules that need to be modified, streamlined, or repealed.”  (Emphasis mine again)

I’ve got a serious bone to pick with Shelansk’s three-part formulation of the look-back initiative’s goals (“streamline,” “modify,” “repeal”), and it’s this:  The clear language of Executive Order 13563—which lays the initiative’s groundwork—reveals that Shelanski is deliberately overlooking a fourth stated goal—to “expand” existing rules where appropriate—which, not incidentally, is all that provides the look-back process with any semblance of balance.  It’s right there in Section 6 of the order:  “. . . agencies shall consider how best to promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.”  (Emphasis mine yet again)  See for yourself.  I’ll wait.

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Shelanski Said What During the House Small Business Committee?

Earlier this week, Regulatory Czar Howard Shelanski testified before the House Small Business committee to update committee members on the progress the Obama Administration has made with the regulatory look-back process established by Executive Orders 13563 and 13610. In one interesting exchange with Rep. Blaine Luetkemeyer (R-Mo.), Shelanski offered the following perspective on the Office of Information and Regulatory Affairs’ (OIRA) approach to regulatory review:

The interpretation of an agency’s statute and the choice of policy—to the extent there is discretion under that statute—is in the first instance in the province of the department or agency that is issuing the regulations. OIRA doesn’t set policy priorities or do the initial legal interpretations for the agencies. They do that.

(Skip ahead the 20:00-minute mark of the hearing.)

If true, this statement from Shelanski would represent a dramatic shift in how OIRA sees its role in the rulemaking process. For the past 30 years or so, OIRA has never been shy about trumping agencies on their policy priorities or their choices of policy. Indeed, just a few months before Shelanski took the helm there, OIRA blatantly interfered with the EPA’s rulemaking to update the effluent limitation guidelines (ELG) for power plants, as documented in a damning new report by several national environmental groups. The draft proposal that the EPA submitted to OIRA review contained several regulatory “options” for updating the ELG, and among those the EPA identified two of the stronger options—Option 3 and Option 4—as “preferred.” When the proposal emerged from OIRA more than three months later (following several meetings between OIRA and outside groups, including a number with corporate interests opposed to a strong standard), it had been drastically altered. (See the “redline” version showing all the changes that had been made here.)  Among the changes, OIRA forced the EPA to include three new weaker options (Options 4a, 3a, and 3b). OIRA also forced the EPA drop Option 4 as a “preferred” option (this was the stronger of the two options that the EPA had initially preferred) and to instead designate all three of the new weaker options it added as “preferred.”

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Shelanski to Testify on Regulatory Look-Back, Hopefully with an Update on the Poultry Slaughter Rule

Tomorrow, the new OIRA Administrator, Howard Shelanski, will testify before the House Small Business Committee on the results of the government-wide “look-back” at existing regulations. It will be an opportunity for the Committee’s Republicans to continue their assault on government programs that keep our food safe, air and water clean, and highways fit for travel. Shelanski could follow in his predecessor’s footsteps by trying to assuage the Republicans’ fears with glowing statistics about the allegedly huge savings that are expected to flow from revising some old regulations, or he could be more supportive of his fellow public servants and highlight the myriad programs that are working just fine and don’t need to be rolled back.

Food safety and occupational health advocates are hoping Shelanski will have an opportunity to give an update on a piece of the look-back program that falls somewhere between the extremes: the Department of Agriculture’s (USDA) poultry slaughter “modernization” rule. While it is true that the poultry slaughter industry could use some 21st century upgrades to ensure that our chicken and turkey don’t arrive at the grocery store with Salmonellae. coli, and other forms of contamination, the proposal that USDA put out last year is the wrong approach.

We’ve written about the problems with the proposal in this space before. The long and the short of it is that USDA’s proposal won’t necessarily improve food safety, but it will definitely increase the risk of injury for the folks who work in the plants.

The USDA Inspector General reviewed a 15 year-old pilot program in which swine slaughter facilities were granted waivers from current regulations, plant employees were given the responsibility of certain inspection tasks, USDA inspectors were moved off of the slaughter lines, and the line speeds were allowed to increase.  Dubbed the HACCP-based Inspection Models Project (HIMP), the program is virtually identical to the proposed poultry inspection rule.  The Inspector General’s review of the swine HIMP system revealed that 3 of the 10 plants cited with the most NRs [noncompliance records] from FYs 2008 to 2011 were HIMP plants. In fact, the swine plant with the most NRs during this timeframe was a HIMP plant—with nearly 50 percent more NRs than the plant with the next highest number.

In a letter today, CPR President Rena Steinzor joined with 28 NGOs and 18 other health and safety experts urging Shelanski to notify USDA that these concerns cannot be addressed without restarting the rulemaking process. Tomorrow would be a great opportunity for Shelanski to say that this part of the look-back process needs another look. 

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Mission Critical: Under New Regulatory Czar Shelanski, OIRA Must Begin to Affirmatively Help Reinvigorate the Regulatory System

 Welcome aboard, Administrator Shelanski.  You’re already well into your first week on the job as the head of the White House Office of Information and Regulatory Affairs (OIRA).    You’ve already received plenty of valuable advice—during your confirmation hearing and from the pages of this blog, among other places—on how you can transform OIRA’s role in the regulatory system so that it’s not a continued impediment to effective government.  For example, many have urged you to end the pattern of long-overdue reviews at OIRA (at last count, 72 of the 137 rules undergoing review are past the 90-day limit provided for in Executive Order 12866), to improve transparency of OIRA’s reviews so that decision-makers can be held publicly accountable for changes they make to pending safeguards, and to restrict the use of cost-benefit analysis as a means for justifying the dilution of safeguards so that they are weaker than what applicable law requires.  These practices not only leave the public inadequately protected against unreasonable risks; they also amount to a kind of usurpation of the public will by thwarting the effective and timely implementation of laws enacted through the constitutionally-defined legislative process that is central to our unique republican form of government.

Yes, transforming OIRA so that it is not objectively “bad” is an important start.  But now I would like to urge you to think bigger and bolder.  In particular, I would like you to re-imagine OIRA’s role in the regulatory system so that it operates as a positive force for “good.”  In this new role, OIRA would actively support the efforts of protector agencies—such as the Environmental Protection Agency (EPA) and the Occupational Safety and Health Administration (OSHA)—to achieve the statutory missions that Congress has assigned to them in a vigorous, timely, effective, and wise manner.  As you continue to settle into your new job, I encourage you to think about how OIRA can start taking the following affirmative steps:

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Statement by CPR Scholar Sid Shapiro on the Senate's Confirmation of Howard Shelanski as Head of OIRA

Last night, the Senate confirmed Howard Shelanski as Administrator of the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget.

As we've written about before, the confirmation of Shelanski as head of OIRA comes at a criticial juncture. OIRA is tasked with reviewing rules proposed by federal agencies. Presently,  of the 139 rules under review at OIRA, 71 are well beyond the 90-day review limit imposed by Executive Order 12866. 

Below is Center for Progressive Reform Member Scholar Sidney Shapiro's reaction to the confirmation:

Now that he's been approved, Administrator Shelanski must begin the critical task of reinvigorating our calcified regulatory system. From clearing the backlog of overdue regulations stuck at OIRA in violation of the required deadline for finishing review to working with other Administration officials to identify ways to help implement President Obama's climate plan, thenew Regulatory Czar has a full plate.



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Three Food Safety Rules Grow Moldy at OIRA, as Import-Related Outbreaks Continue

About 15 percent of all foods we consume are imported. Looking at some particular categories, the numbers are far more striking: imports make up 91 percent of our seafood, 60 percent of our fruits and vegetables, and 61 percent of our honey. Most of these imports come from developing countries that lack any effective health and safety regulation—like China, which has had a seemingly endless run of food safety scandals and yet supplies 50 percent of our apple juice, 80 percent of our tilapia, and 31 percent of our garlic.

Unsanitary practices in these countries are well-documented: Vietnamese farmers are known to send shrimp to America in tubs of ice made from bacteria-infested water; and Mexican laborers are often given filthy bathrooms and no place to wash their hands before gathering onions and grape tomatoes for export. Despite the obvious risks of adulteration and contamination, the resource-strapped Food and Drug Administration (FDA) inspected only 2 percent of food imports and just 0.4 percent of foreign food facilities in 2011. Import-related outbreaks—like the 81 people sickened by Mexican cucumbers just a couple months ago—have become even more frequent in recent years.

The foodborne pathogens that make it to our tables often prove deadly for children, the elderly, and those with compromised immune systems. In 2008, after undergoing chemotherapy and radiation, 67-year-old Raul Rivera was told by his oncologist that he would likely survive non-Hodgkin’s lymphoma. He celebrated by taking his family out for dinner, where they ate pico de gallo. It was later discovered that the jalapeños in the salsa were imported from a Mexican farm that had used Salmonella-tainted water for irrigation. Rivera died two weeks later, not of cancer but of salmonellosis.

In January 2011, President Obama signed the Food Safety Modernization Act (FSMA), a set of sweeping reforms that would be fleshed out in rules issued by the FDA. Two and a half years later, only two proposed rules have been released—one on produce safety standards, and the other on preventive controls for human food. The FDA has drafted three other proposed rules that could significantly improve the safety of imports, but they are currently languishing at the Office of Information and Regulatory Affairs (OIRA), an office inside the White House that is notorious for blocking, weakening, and delaying the rules that it reviews.

These three rules, described below, are already many months beyond their statutory deadlines, and OIRA has held them well past the 90-day limit established by Executive Order 12866. Whenever these rules finally emerge, we should be alert to the ways that OIRA may have undermined their effectiveness, just as it substantially weakened the FDA’s preventive-controls rule before it was released in February.


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