Yesterday, Reg•Watch asked the question, "Will Congress Wrap Up Consumer Safety Bill?" The answer turned out to be "no," as lawmakers' talks stalled during a meeting intended to finalize a version of a bill to reform the Consumer Product Safety Commission.

Lawmakers did agree to set up a publicly searchable consumer product complaint database which was one of the controversial provisions that needed to be worked out.

Other sticking points remain, including a ban on phthalates, extended protections for whistleblowers, and federal preemption of state law. The House and Senate conference committee members hope to meet again next week to hash out the remaining differences.

In a few minutes, members of the House and Senate are set to meet to work on sorting out differences between their respective versions of consumer product safety legislation. Both versions of the bill would expand the budget and authority of the beleaguered Consumer Product Safety Commission, but other provisions have proved contentious.

Congress Daily (subscription) reports:

The House passed its CPSC reauthorization in December and the Senate approved its version in March. Conferees first met last month, when they agreed on 21 items. They left the more troublesome measures for today.

Among them, a ban on phthalates in children's products, which is included in the Senate version but not the House's. Studies have shown phthalate exposure to cause developmental abnormalities, particularly in fetuses and infants. The European Union and the state of California have already announced restrictions on phthalates.

The creation of a publicly accessible consumer complaint database, another Senate invention, has also stoked debate. Critics of the database say it would be too expensive, according to Congress Daily. The Senate version also includes protection for whistleblowers who report dangerous products from their perches at private firms. (Read more on the whistleblower issue here.)

Both bills include a provision that would preclude CPSC from establishing rules that preempt state and local law — an issue that has angered industry trade groups. The Bush administration has a penchant for including language in federal rules saying that if a product maker complies with federal regulation, the product maker is not liable under state common law. This legal doctrine, known as preemption, prevents consumers from seeking damages, or tort, claims after being injured by a product. Hopefully, the provision in the CPSC bill will survive the House/Senate conference.

CPSC is in dire need of reform after more than a year of product safety debacles. In 2007, CPSC was in the news for all the wrong reasons. Recalls of lead-contaminated children's products reached all-time highs. A long-term vacancy in the commission left it without a quorum, preventing it from conducting official business. President Bush nominated a product industry lobbyist to fill the vacancy, but the conflict of interest of a lobbyist regulating his former cronies was too much for Congress and the public to swallow, and the nomination was pulled. Finally, the acting commissioner, Nancy Nord, was caught taking lavish trips funded by the consumer product industry.

Mostly due to the outrage over lead in toys, Congress had hoped to finalize the legislation by Christmas 2007. After that convenient PR deadline passed, Democratic leadership let the bill slide down its list of priorities. Four months after passage of the Senate version, a conference of House and Senate leaders is only now working out the controversial aspects of the bill.

Reg•Watch Update: "On Consumer Product Bill, More Work Remains"

A recent Associated Press investigation shows the Environmental Protection Agency has been using new statistics to assign monetary values to the lives potential regulations will save. "The 'value of a statistical life' is $6.9 million, the Environmental Protection Agency reckoned in May – a drop of nearly $1 million from just five years ago," according to AP.

The value of a statistical live, or VSL, is an estimate of how much a person would be willing to pay to reduce their risk of death by some set proportion. Technically, the VSL approach does not value a human life but rather a "statistical life." The benefit to society monetized in the approach represents a reduced risk of death for a population, not a certain avoidance of death for an individual.

Realistically, when it's time to study the potential effects of a regulation, federal agencies estimate the number of lives the regulation will save, then multiply that figure by the VSL. Essentially, the federal government is saying the value of a person's life is equivalent to whatever dollar figure statisticians and economists come up with.

AP provides a good description of the policymaking impact:

Though it may seem like a harmless bureaucratic recalculation, the devaluation has real consequences.

When drawing up regulations, government agencies put a value on human life and then weigh the costs versus the lifesaving benefits of a proposed rule. The less a life is worth to the government, the less the need for a regulation, such as tighter restrictions on pollution.

Consider, for example, a hypothetical regulation that costs $18 billion to enforce but will prevent 2,500 deaths. At $7.8 million per person (the old figure), the lifesaving benefits outweigh the costs. But at $6.9 million per person, the rule costs more than the lives it saves, so it may not be adopted.

Of course, the real travesty here is that federal officials actually allow the VSL to influence their decision when they're considering a new federal standard. If a regulation has the potential to save hundreds or thousands of lives, shouldn't that be enough to prod policymakers into action? Is it necessary to assign a dollar value to everything…and everyone?

For now, the answer is "yes." Officials at EPA and other agencies are forced into playing a game that only makes sense in Washington D.C.'s perverse political climate. The Bush White House, for example, is more than happy to reject proposed regulations if the monetized compliance costs exceed monetized benefits (as they did recently with an EPA recycling rule.)

Benefits such as quality of life, ecological preservation, or even a reduced number of deaths have no bearing on the Office of Management and Budget's decisions — unless they are translated into dollars and cents. Anyone advocating for newer or stronger public protections has a Catch 22 on their hands: Either refuse to place a value on the greatest benefits of a new regulation, saved lives, and see the policy rejected by the White House or attacked by industry lobbyists; or go through the ridiculous (and morally questionable) exercise of placing a dollar value on a human life.

On last night's Colbert Report, Stephen Colbert pokes fun at the ridiculousness of using VSL to make decisions about regulation. Watch it here:

For a description of how VSL undermines public protections, see the OMB Watch report, Polluted Logic: How EPA's ozone standard illustrates the flaws of cost-benefit analysis.

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.

On Friday, the Environmental Protection Agency finally released its Advanced Notice of Proposed Rulemaking asking for public comment on the issue of greenhouse gas emission regulation. The notice — which is not a formal policy proposal but merely a suggested framework for future action — is accompanied by statements from senior officials from across the Bush administration that disavow the document's substance.

Susan Dudley, head of the White House's regulatory clearinghouse, the Office of Information and Regulatory Affairs, said the policy "cannot be considered Administration policy or representative of the views of the Administration."

Other letters of disapproval came from the heads of the departments of Agriculture, Commerce, Energy, and Transportation, the White House Council of Economic Advisors and the Office of Science and Technology Policy, the Small Business Administration Office of Advocacy, and the White House Council on Environmental Quality.

The ANPRM and the accompanying letters mark the end of a successful campaign, waged primarily by White House officials, to whittle into virtual nothingness any meaningful federal action on greenhouse gas emissions.

After a March 2007 Supreme Court case, Massachusetts v. EPA, found that EPA must regulate greenhouse gas emissions under the Clean Air Act or give good cause as to why it should not, President Bush signed an executive order forming an interagency team to evaluate the case and future regulatory action. EPA Administrator Stephen Johnson promised he would propose a new rule by the end of 2007.

But those promises were merely a mask for the gross deception that was forthcoming. EPA staff spent who-knows-how-many hours preparing a draft proposed rule and an "endangerment finding," a document saying greenhouse gases are detrimental to public welfare. An endangerment finding is a legal trigger for regulatory action under the Clean Air Act.

But acknowledging that global warming poses a danger to society is not this administration's cup of tea; and we know that it has little or no interest in regulations to protect the public.

When EPA sent the documents to OMB for review, OMB officials refused to open the email. Since OMB wouldn't read the documents — the bureaucratic equivalent of sticking your fingers in your ear and yelling, "I can't hear you" — EPA was forced to go back to the drawing board.

Then, in March 2008, Johnson faulted on his earlier promise to propose new federal requirements, instead pledging the agency would publish an Advanced Notice of Proposed Rulemaking to solicit public comment.

But even after White House officials had forced EPA to do as little as possible, they still weren't done meddling with the substance of EPA's work. As the Wall Street Journal recently reported, "The White House's Office of Management and Budget has asked the EPA to delete section of the document that say such emissions endanger public welfare, say how those gases could be regulated, and show an analysis of the cost of regulating greenhouse gases in the U.S. and other countries."

The economic analysis referred to also mysteriously underwent editing that downplayed the economic benefits of regulation, according to The Los Angeles Times:

In a draft of the document completed in May, EPA staff members concluded that regulations reducing greenhouse gas emissions could save $2 trillion through lowered gasoline costs and other benefits over 30 years. In the final document, that figure was slashed more than 50%, to $830 billion. The lower figure is based largely on an estimate that gasoline will cost $2 a gallon over the next three decades, less than half the current price.

Finally, Friday afternoon, the American public received the final slap in the face from the Bush administration which is asking for comments on a document that it does not support, on proposed policy it has no intention of pursuing, and on a problem it is not willing to acknowledge exists.

The New York Times has an article this morning further underscoring the problems the FDA has tracking the sources of food-borne illness outbreaks. The toll of the current salmonella outbreak has exceeded 1,000 victims "in what officials said Wednesday was the largest food-borne outbreak in the last decade."

Initially, tomatoes were thought to be the culprit of the outbreak. FDA then said it was expanding its search to other types of produce but emphasized tomatoes were still the lead suspect. But according to the article, "Federal investigators have now linked at least some of the outbreak to fresh jalapenos."

The complexity of the supply chain — which shuffles tomatoes and other produce across state and national boundaries for processing, packaging, and distribution — makes identifying the source of this or any other food-borne illness outbreak a major challenge for FDA. A retailer may buy produce from multiple distributors, each of which likely collects a variety of goods from multiple growers.

However, critics say the FDA itself is at least partially to blame. According to two consumer groups, Center for Science in the Public Interest and the Consumer Federation of America, FDA does not have the necessary safeguards in place to prevent and track food-borne illnesses. Those groups say, "Source traceability for produce, written food safety plans for farmers, processors, and packinghouses, and tighter controls on repacking" are necessary but lacking, despite repeated pleas from food safety advocates.

In the case of the salmonella outbreak, more than a month after the first nationwide warning FDA has been unable to tell consumers what type of produce to watch out for, and it isn't even sure whether the source is foreign or domestic.

Despite the worsening public health crisis and the growing embarrassment for FDA, the agency won't be changing its tune on food tracking. According to the Times article, "Dr. David Acheson, the agency's associate commissioner for foods, said in a telephone interview on Monday that the F.D.A. lacked authority to require full trace-back capability, adding, 'It's the industry's responsibility to put that kind of system in place, not ours.' "

Acheson was promoted at FDA last year to lead its food safety efforts. He started with a "commitment to making the wobbly global food-safety system work better," according to The Washington Post.

But based on his comment that FDA is not responsible for food tracking, Acheson clearly fits in well with the Bush administration's hands-off approach to regulating which leaves consumers fending for themselves. Acheson seems determined to make sure FDA repeats its failures.

The Times article also addresses the issue of whether FDA has the authority to track food through the supply chain:

But Dr. David A. Kessler, the F.D.A. commissioner in the Clinton and first Bush administrations, said the agency has the authority to require the industry to trace produce as it travels from "farm to table," but has lacked "the impetus" to do so.

"The technology exists to trace the entire chain of a food product," Dr. Kessler said. "The agency needs to require the industry to put into effect mechanisms to do full trace-back. That regulation could be put in place in months, not years."

A 2006 Supreme Court decision has seriously hindered EPA's ability to enforce the Clean Water Act, according to new documents released by two House Committee chairmen.

The decision in the case, which pertained to enforcement of the act in non-navigable wetlands, made a real mess of things. According to The Washington Post, "That 5 to 4 decision, known as Rapanos v. United States, held that the Army Corps of Engineers had exceeded its authority when it denied two Michigan developers permits to build on wetlands…"

But the majority opinion was split. While four of the five wanted to kneecap the Corps' ability to preserve wetlands from development, the other, Justice Kennedy, wrote a separate opinion to advocate for case-by-case evaluation.

Even though the Rapanos case related to an Army Corps of Engineers permitting decision, it had big implications for the Clean Water Act at large and EPA's enforcement of it. That led the Corps and EPA to issue a joint guidance document that attempts to clarify federal enforcement obligations in the wake of the decision.

But apparently, the guidance isn't working. In a memo released by Reps. Henry Waxman (D-CA) and James Oberstar (D-MN), EPA admits that the uncertainty created by the Rapanos decision has forced staff to abandon or alter enforcement actions against wetland polluters. From the memo:

Data collected from the regions shows that a significant portion of the CWA enforcement docket has been adversely affected. While we are not able to distinguish whether these impacts are due primarily to the Rapanos decision or to the Guidance, this information revealed that from July 2006 to the present, [EPA regional offices] decided not to pursue formal enforcement in 304 separate instances where there were potential CWA violations because of jurisdictional uncertainty. In addition, the regions identified 147 instances where the priority of an enforcement case was lowered due to jurisdictional concerns. Finally, the regions indicated that lack of CWA jurisdiction has been asserted as an affirmative defense in 61 enforcement cases since July 2006. Thus, since July 2006, the Rapanos decision or the Guidance negatively affected approximately 500 enforcement cases.

Waxman and Oberstar wrote a critical letter to EPA Administrator Stephen Johnson because "instead of sounding the alarm about the EPA's enforcement problems, the agency's public statements have minimized the impact of the Rapanos decision."

The Pump Handle blog has an interesting post about a new Department of Labor proposal (currently sans description) titled, "Requirements for DOL Agencies' Assessment of Occupational Health Risks."

While that's all we know about the proposal at the moment, the administration has tried in the past 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.

Is this the kind of last minute administrative change the Bush administration will try to push through to secure its legacy? Will other health and safety agencies like EPA or FDA engage in similar practices? Those questions are merely speculation, but stay tuned to Reg•Watch for any developments.

The Pump Handle: "Secret rule on OSHA risk assessment?"

Posted by Matt Madia, 04:49:40 PM

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