A House panel voted last week to tie the hands of agency regulatory policy officers (RPOs). The move comes in response to continued concern about President Bush's 2007 executive order that expanded the powers of RPOs.

President Bush's E.O. 13422 — which amended E.O. 12866, Regulatory Planning and Review — dramatically expands the power of the RPO. E.O. 13422 states, "no rulemaking shall commence" without the RPO's approval. Conveniently, E.O. 13422 does not define when a rulemaking commences, thus providing the RPO with wide latitude in exercising this new authority.

Ultimately, the RPO can act as a regulatory gatekeeper within the agency. OMB Watch has expressed concern that this power may be abused when the RPO's interest align more closely with those of the White House Office of Management and Budget than with the RPO's own agency or, more importantly, the public.

E.O. 13422 also requires the RPO be selected from among the presidentially appointed positions already existing within the agency.

While the provision does not technically remove any power from the RPOs, it would tie their hands by cutting off funding for their activities. The provision reads, "None of the funds made available by this or any other Act may be used" for Bush's changes related to RPOs.

The provision is included in the House FY 2009 Financial Services and General Government Appropriations bill, which the House Appropriations Committee approved by voice vote June 25. That bill funds the Executive Office of the President and some other agencies. However, because the provision states, "by this or any other Act," the bill would freeze funding for RPOs across the federal government.

Following last week's hearing by the House Education and Labor Committee on the underreporting of workplace injuries, the committee held a hearing today entitled, Is OSHA Failing to Adequately Enforce Construction Safety Rules?

Not too surprisingly, the answer is different depending on who you ask. If you ask the brother-in-law of a worker killed in a Las Vegas accident, or the Acting Building Commissioner in New York City, or the President of the Building and Construction Trades Department of the AFL-CIO, the answer to the question is pretty similar. The Occupational Safety and Health Administration (OSHA) could be doing a lot more to save lives and prevent injuries.

Most of the questions, however, were directed to Edwin Foulke, Assistant Secretary of Labor for OSHA. In what has become the standard script for administration officials in testimony before congressional oversight committees, Foulke 1) talked about the progress the agency is making, 2) used a couple big numbers without providing a context in which to tell what those numbers mean, and 3) refused to answer questions about what resources the agency needs to do its job better.

No fewer than four times, committee members asked Foulke, in one way or another, if OSHA needed more resources for inspections, training, enforcement, or to get rules written to protect American workers. Foulke did not answer that question even once. His standard response was to talk about the progress OSHA is making in reducing the rates of injuries and accidents.

The irony of repeating that mantra before the committee — a committee that had, the week before, learned about the underreporting of injuries, that had just pointed out to him the soaring rates of increases in injuries among Hispanic construction workers, and that asked him to explain why the rates of fatalities in Canada and several European countries were about half the U.S. average — seemed lost on Foulke.

According to testimony at the hearing by the union representative, four construction workers die each day in the U.S., around 1,200 to 1,500 workers each year. That is 10 times the number of law enforcement officials and 10 times the number of firefighters lost each year. Let's stop asking the administration how it's doing and start documenting the uncomfortable facts about its performance. It may not change agency behavior at this late date, but at least such information can teach us how not to govern.

Today's Wall Street Journal reports on a major problem in the area of workplace safety. Unlike recent stories, this one is not about crane safety, combustible dust, or popcorn workers lung. Instead, the Journal profiles an issue which should be far easier to handle but has vexed the Department of Labor nonetheless: accurate data on workplace injuries.

Journal reporter Kris Maher points out why reliable injury statistics are vital to occupational safety: "Having accurate data is considered critical in making policy decisions about where safety needs to be improved and whether new regulations and rules need to be issued."

Both employers and the Labor Department are to blame. A Department official "acknowledged that workers and companies both have incentives not to report injuries, noting that contracts are sometimes awarded to companies with low injury rates," according to the article.

To make matters worse, the Occupational Safety and Health Administration isn't meeting its responsibility to collect data, and rule changes have altered the definition of what counts as an injury:

At present, the nation's safety record consists of a survey of 250,000 establishments. Recent figures show a decrease in injuries, which indicates that workplaces are getting safer.

However, research suggests the federal figures capture less than half of actual injuries. One study published in June in the Annals of Epidemiology compared employer data reported to OSHA against figures from state workers' compensation systems in six states. It found that the OSHA figures failed to count from 24% to 49% of all workplace injuries.

Another study last year by University of Illinois researchers attributed 83% of the decline in workplace injuries from 1992 to 2003 to changes in OSHA record-keeping rules. Researchers said OSHA no longer requires an injury to be recorded if the worker was able to come back to work the day after the injury. They also said OSHA stopped collecting data at workplace sites, and relied on employers to send injury information.

Today, the House Education and Labor Committee will take a critical look at the problem. You can watch the hearing, scheduled to begin at 10:30, by clicking here.

On Tuesday, a House Energy and Commerce Committee subcommittee held a hearing titled, "Safety of Phthalates and Bisphenol-A in Everyday Consumer Products." Bisphenol-A (BPA) and phthalates, both of which are common ingredients in plastic products, have come under fire recently for their potential risk to human health.

FDA's Associate Commissioner for Science, Norris Alderson, testified, saying, "A largebody of available evidence indicates that food contact materials containing BPA currently on the market are safe, and that exposure levels to BPA from these materials, including exposure to infants and children, are below those that may cause health effects."

That's been the standard response from the agency as public concern about BPA rises. However, FDA is renewing its research on the chemical, as Reg•Watch blogged earlier this week.

Late last week, FDA's lead scientist asked the agency's science board to convene a subcommittee to study the effects of BPA. The primary responsibility of the subcommittee will be to review an FDA task force report on BPA exposure and effects. "In April 2008, the FDA formed an agency-wide BPA Task Force to facilitate review of current research and new information on BPA," FDA says. After the subcommittee reviews the report this summer, "the task force will make recommendations" to the FDA commissioner.

During the hearing, Alderson, the chair of the task force, acknowledged the research could lead to regulatory action, saying, "[I]f FDA's review of data leads us to a determination that uses of BPA are not safe, the Agency will take action to protect the public health."

Because BPA is a common ingredient in the lining of metal food cans, the chemical would be ripe for FDA regulation if found to be harmful.

If FDA takes no action on BPA, Congress might. Committee member Rep. Edward Markey (D-MA) has introduced legislation that would ban BPA in food and drink containers. Because the prospects of bill's passage in the U.S. Congress are positively correlated with the cleverness of its acronym, Markey has named the bill the Ban Poisonous Additives (BPA) Act (H.R. 6228).

Rep. Brad Miller (D-NC) wrote to the White House June 11 asking about the Office of Management and Budget's role in EPA's revised process for assessing the health effects of industrial chemicals. EPA announced changes to the process, known as the Integrated Risk Information System (IRIS), in April.

One of the major problems with the revised process is the lack of transparency. OMB and other federal agencies will be able to have input into a chemical assessment without ever disclosing their views — scientific or political — to the public. Miller wrote to Susan Dudley, the head of OMB's Office of Information and Regulatory Affairs (OIRA), which will coordinate the OMB/interagency review of IRIS assessments, expressing his concern:

[T]he interagency process OIRA manages is secret. The public has no insight into who is being invited to discuss what, when. The public has no way of getting at materials associated with those discussions because the pre-decisional exemption of the Freedom of Information Act (FOIA) applies to all of those materials.

The bottom line is that if the interagency discussion taking place is solely about science, there is no reason why that discussion and all communications surrounding it, cannot survive the light of exposure to the public. The only reason to hide a discussion about science is if the discussion is actually not about science, but about other things that are being used to trump the science.

Miller is the chair of the House Science Committee subcommittee on Investigation and Oversight. Yesterday, the subcommittee held its second hearing on the changes to the IRIS process.

During the hearing, ranking member James Sensenbrenner (R-WI) discussed another problem with the revised process: the delayed completion of IRIS assessments and subsequent backlog of chemicals needing to be assessed. Sensenbrenner pointed out that EPA has completed only two IRIS assessments in each of the last two years, and called the process "broken down."

Sensenbrenner then addressed the OMB/interagency review which will allow other federal agencies, such as the Department of Defense or NASA, to delay the assessment process:

[EPA] argues that it can expedite the IRIS process by involving other agencies earlier in the process. While preventing last minute delays is an important reform, the ability of other agencies to extend the time frame of assessments should be sharply limited. Data gaps in risk assessments will always exist, as better science is always developing. The EPA needs to limit the time frame of assessments to prevent other agencies from indefinitely delaying the process.

For more information on the changes to the IRIS process, see this OMB Watch factsheet.