Some investigative journalism at the Federal Times shows just how little rulemaking federal agencies have engaged in during the Bush administration:

Many regulatory agencies have submitted fewer rules during the current Bush administration's two terms than during Bill Clinton's tenure, or even during George H.W. Bush's single term.

The Food Safety and Inspection Service (FSIS), for example, submitted 91 new rules to the Office of Management and Budget during the first President Bush's term, and 83 during the Clinton administration. But during the current administration, when U.S. meat and poultry production has increased by nearly 10 percent, FSIS has proposed just 16 new rules.

And that pattern has been mirrored at other agencies. Compared with the Clinton administration, rulemaking is down more than 50 percent at the Food and Drug Administration (FDA); down 57 percent at the Environmental Protection Agency; and down almost 20 percent at the Federal Aviation Administration.

The article ties the administration's anti-regulatory attitude to a host of health and safety scandals that have dominated headlines:

Failures by [FSIS] led to the nation's largest-ever beef recall. A wave of imported "toxic toys," containing everything from lead paint to the date-rape drug, spooked consumers during the holiday season. And high-profile industrial accidents, like the explosion at a sugar plant in Georgia last month, raised questions about the Occupational Safety and Health Administration's effectiveness.

It's hard to pinpoint why agencies are submitting fewer rules to OMB, but Reg•Watch has two theories. Maybe the delay and politicization associated with the OMB review process has created a chilling effect in federal agencies. OMB's constant efforts to dismiss scientific conclusions (i.e. EPA's recent ozone standard), or the stall tactics the office uses to delay action (i.e. the rule to protect the North Atlantic right whale), may have depressed expectations that public protection standards can quickly move through the regulatory gauntlet unscathed.

Another theory is that political appointees inside federal agencies are nipping regulations in the bud. Throughout his administration, Bush has installed men and women with close ties to the industries they regulate who may not look favorably upon rules they believe would hurt corporate bottom lines. Considering the lack of transparency in most federal agencies, it would be relatively easy for one of these officials to kill a proposed regulation before the public is notified.

Maybe it's both, maybe neither, but one thing is for sure: when the book is closed on the Bush administration, there will be a lot of catching up to do and countless messes to clean up.

Wall Street Journal reporter Joseph Pereira writes today about state government efforts to limit the presence of certain substances in children's toys, particularly lead. Both the U.S. Congress and U.S. Consumer Product Safety Commission (CPSC) have been unable to quickly enact policies to respond to public concern over toy safety.

Numerous past congresses and presidents have allowed CPSC's budget and staffing levels to whither. As a result, the agency is unable to handle the rising tide of imported products on our store shelves. In the light of last year's record number of toy recalls and growing public concern, state legislatures and administrations have grown impatient:

Many state lawmakers are upset that Congress and federal regulators haven't done more since the recalls. "If the federal government would do something I would gladly defer to them, but they aren't, so we have to," says Illinois Rep. Elaine Nekritz…

The article breaks down toy standards in a handful of states that have chosen to pursue legislation or regulation stricter than federal requirements. Two notable substances which have become the target of regulation are lead and phthalates, a chemical used to soften plastics which studies have associated with developmental abnormalities.

Because of the differences among state standards, industry lobbyists are now complaining about the multiple requirements toy makers will have to meet. In the article, Carter Keithley, the president of the Toy Industry Association (TIA), the national lobbying arm for toy makers, says, "Having different standards for different states is just going to create complete chaos." The article also reports, "The TIA says it has hired lobbyists to battle legislative proposals in 10 states."

However, regardless of states' efforts, toy makers will find it harder and harder to sell their products to major retailers if those products contain phthalates or more than trace amounts of lead. Toys "R" Us has announced it will enforce a standard for lead in toys sold at its stores that will be stronger than the federal standard. The retailer has also announced it will phase out phthalates in its products by the end of the year. Target Corp. told The Wall Street Journal it will eliminate the use of phthalates in Target brand toys.

The TIA supports bills in both the U.S. House and Senate that would tighten the federal standard for lead and provide more resources for CPSC. TIA does not support standards for phthalates, claiming there is "no solid, scientific evidence that any person has ever been harmed by the presence of phthalates in toys." (Click here for TIA statements.)

Ultimately, getting lead, phthalates, and other harmful substances out of toys will be a great victory for consumers. But we should also take note as to who guided us on that path to victory. Instead of the federal government leading the way, strong action by concerned states and responsible retailers has relegated Congress and CPSC to mere followers.

Yesterday, the Senate passed in a 79-13 vote (roll call) legislation (S. 2663) to provide more funding and more authority to the Consumer Product Safety Commission. The bill will now need to be reconciled with a House version (H.R. 4040) passed in December.

The bill takes positive steps on several issues Reg•Watch has been blogging about:

Budget and Staff
The Senate bill would infuse the agency with much-needed resources, assuming future congresses appropriate the levels of funding outlined. The bill would nearly double the agency's budget to $156 million by FY 2015. The House bill would bring funding levels to $100 million by FY 2011. (See Graph below for inflation-adjusted forecast.) The Senate bill would also require the agency to employ a staff of at least 500 by the beginning of FY 2014.

Click to enlarge

Quorum
The Senate bill would allow CPSC to have a quorum and conduct formal business with only two commissioners for 9 months. The provision is necessary because CPSC's voting quorum has expired as a result of President Bush's refusal to nominate a suitable third commissioner. One of CPSC's three commissioners resigned in 2006. Under the Consumer Product Safety Act, CPSC can continue to conduct formal business with two commissioners for six months. That quorum expired in January 2007, but in August Congress passed legislation extending the quorum another six months. On Feb. 4, the quorum expired again. The House bill would also extend the quorum. Both bills would restore CPSC to a five-member commission.

Lead
Both bills would require CPSC to set tighter standards for lead in children's toys. The bills would call for a standard of 100 parts per million for the content of toys and 90 parts per million for paint or coatings on toys. In 2007, CPSC announced 106 recalls of lead-contaminated products totaling 17,126,810 individual items — a 500 percent increase from 2006.

Industry-funded travel
The Senate bill would ban industry-funded travel for CPSC commissioners. In November, a Washington Post investigation revealed Nord and former Chair Hal Stratton have taken nearly 30 trips financed by some industries that CPSC is responsible for regulating. According to the investigation, "The airfares, hotels and meals totaled nearly $60,000, and the destinations included China, Spain, San Francisco, New Orleans and a golf resort on Hilton Head Island, S.C."

The bill would also protect employees who blow the whistle on dangerous products, and enhance the ability of state attorneys general to enforce product safety laws and regulations when the feds drop the ball. Both of those provisions survived debate on the bill despite significant partisan wrangling.

The federal regulator of meat, poultry, and egg products, the Food Safety and Inspection Service (FSIS), faces resource limitations that make it more difficult for the agency to ensure the safety of the food supply. Although the agency's budget has risen since it was created, staffing levels have dropped steadily, according to a new article by OMB Watch. Widespread vacancies in the agency have spread FSIS's inspection force too thin. Meanwhile, the number of meat, poultry, and egg product recalls has risen, and a recent recall of 143 million pounds of beef is the largest in the nation's history.

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Posted by Matt Madia, 01:38:31 PM