At a House Energy and Commerce Committee hearing yesterday, members, meat industry representatives and federal regulators debated the safety of using carbon monoxide to make packaged meat appear red for longer periods of time. Critics believe using the gas to preserve the redness of the meat, even after it has potentially spoiled, is misleading to consumers.

Tests into the safety of the practice revealed dubious results. According to The Washington Post:

The tests, conducted by Cargill and Hormel Foods, both of Minnesota, were part of a joint effort to persuade federal regulators to allow use of the gas without going through a public approval process. Inexplicably, however, the tests found that microbial counts on meat that had been left under-refrigerated went down over time instead of up, as expected, even as other indicators of spoilage increased, suggesting the possibility of some kind of error….

Yet Agriculture Department scientists did not question the data when they reviewed them a few weeks later, and then relied upon them to reverse the agency's earlier decision to oppose the technology.

Despite this revelation, officials from USDA and FDA would neither acknowledge the mystery nor commit to investigating the matter themselves. According to Reuters, "Officials at the Food and Drug Administration and U.S. Agriculture Department said they stand by the safety of the carbon monoxide practice and would revisit the process if new data becomes available."

Why would officials wait for new data when the existing data make no sense?

Every two weeks, in OMB Watch's e-newsletter The Watcher, we analyze a few recent issues in regulatory policy. Here are the articles from the November 6 issue:

Vice President Reemerging in Regulatory Review Meetings
Representatives from the office of Vice President Richard Cheney have been involved in three current administration rulemakings. Their presence is indicative of a recent trend in which Cheney has involved his office in high-profile regulations. OIRA has held more than 540 regulatory review meetings since February 2002. A representative from OVP has been present at only 11, about two percent. However, eight of those 11 meetings have occurred since February. Read more...

Congress Told of FDA's Lax Inspection of Foreign Drug Makers — Again
The Government Accountability Office (GAO) recently told Congress that the U.S. Food and Drug Administration (FDA) inspects an estimated seven percent of foreign drug manufacturing facilities. Read more...

CPSC Reform Efforts Progress as Agency Woes Continue
On Oct. 30, the Senate Commerce Committee approved by voice vote the CPSC Reform Act of 2007 (S. 2045). Recent high-profile regulatory failures have highlighted the need for expansion of CPSC's authority and resources. Read more...

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Today, the House Judiciary Committee subcommittee on Administrative Law held an oversight hearing on the Congressional Review Act (CRA). The CRA, passed in 1996, requires agencies submit final regulations to Congress at which point lawmakers have an opportunity to disapprove the regulation by joint resolution.

The CRA is theoretically a thoughtful check in government policy-making. Congress passes laws which agencies then enforce through regulations and is in the best position to determine its own intent. If Congress finds an agency has misinterpreted statute or overstepped its bounds, it can nullify the rule. If Congress takes no action, the regulation goes into effect as envisioned by the agency.

But witnesses at today's hearing find the CRA to be underutilized. House Parliamentarian John Sullivan uses statistics to illustrate:

However, of approximately 40,000 submissions to the Congress under the CRA to date, only one has been disapproved. Since the 105th Congress, only 43 joint resolutions of disapproval have been introduced in the House and Senate. None of the 25 House joint resolutions passed the House. Three of the 18 Senate joint resolutions passed the Senate. One of those Senate joint resolutions also passed the House. Thus, the disapproval mechanism established by the Act has invalidated one rule.

Other witnesses opined changes to the CRA may expand the law's viability as a congressional oversight mechanism. Sally Katzen, Clinton-era administrator of the White House Office of Information and Regulatory Affairs, suggested the process be leaner and meaner:

Limiting the scope of the CRA to the more important rules would somewhat reduce Congressional authority, but it would enable Congress to focus on the rules that are likely to have the greatest impact on the public.

Katzen recommended amending the CRA so that only "major" rules are covered. In regulatory policy, "major" has varying definitions. Beyond the definitional dilemma, Congressional Research Service scholar Mort Rosenberg recognized the subjectivity of the term major could lead to political shenanigans: "The difficulty would be designating a determiner that is politically acceptable and constitutionally appropriate."

Nonetheless, this could be a good way to make the CRA more effective and expand our elected representatives' involvement in agency rulemaking.