A Saturday New York Times editorial criticized the Bush administration for its lack of progress on a much-needed new standard for crane and derrick safety:

The Bush administration generally prefers to fiddle, not regulate, as problems approach a crisis, but its failure to address accidents involving construction cranes is particularly hard to grasp. The administration isn't pandering to business interests. Both the building industry and labor groups have pressed for new standards and helped draft rules for the Occupational Safety and Health Administration. That was four years ago. The rules are now parked at the Office of Management and Budget, where the White House seems content to let the clock run out without approving them.

OSHA has been working on the rule since at least July 2002. The majority of the work around composing the rule came to an end in July 2004. OSHA has made little progress in getting the rule out the door over the course of the last four years.

As the Times editorial points out, the crane industry supports the new rule. In March, the Specialized Carriers & Rigging Association wrote to Secretary of Labor Elaine Chao expressing their displeasure with the agency's inaction: "The lack of progress on this important safety and health standard remains a disservice to the entire industry affected by this Standard."

Meanwhile, high-profile crane accidents continue unabated, highlighting the urgent need for federal action. Two recent disasters in New York City and one in Houston are among the many crane accidents that kill scores of people each year.

The situation surrounding the crane rule isolates the major factor that has led to the Bush administration's dismal record on public health, safety, and environmental policy. On the issue of crane safety, the existence of a problem is undeniable and all the relevant stakeholders, including industry representatives and worker safety advocates, are lobbying the administration to take action.

But regulating to protect workers means embracing the idea that government can play a positive role in society. If a new federal regulation can save lives and prove valuable for businesses, maybe regulation isn't so bad after all. Maybe we shouldn't shrink government to a size small enough that we can drown it in a bathtub. That concept is anathema to many senior officials in the Bush administration who will pursue their anti-regulatory ideology no matter what.

The National Highway Traffic Safety Administration (NHTSA) is temporarily delaying its revision to the national standard for roof strength in passenger vehicles, according to ConsumerAffairs.com. Safety advocates and lawmakers have criticized the agency for a host of flawed provisions in the proposed regulation.

NHTSA faced a statutory deadline of July 1 to complete the rule, but is also permitted to request from Congress an extension. A Senate panel urged NHTSA to ask for the additional time rather than issue the rule in its current form.

One of the major points of contention is preemption of state common law, which NHTSA has been pushing for. In the original notice, NHTSA claimed its final rule would prohibit states from enacting positive law – that is, laws passed by state legislatures and regulations developed by state agencies – different from the federal standard. NHTSA also claimed the rule would "preempt all conflicting State common law requirements, including rules of tort law," thereby eliminating a consumer's right to sue an automaker if the consumer is injured in a rollover crash.

NHTSA's decision to preempt state positive law and tort law through its regulation is in plain violation of the major federal law the agency enforces, the Motor Vehicle Safety Act. (Click here for details.) Sen. Mark Pryor (D-AR) has said preemption is not in the public's best interest, is outside of NHTSA's authority, and would result in "bipartisan opposition in the Senate."

Critics also say the proposal would not go far enough in protecting drivers. NHTSA estimates the rule change would result in 13 to 44 fewer rollover fatalities every year. Critics say a new rule should make significantly more progress than that. In 2007, more than 10,000 people died in rollover crashes. "Rollover crashes should be highly survivable," said Joan Claybrook, head of the consumer group Public Citizen, in testimony before the Senate subcommittee.

Hopefully, NHTSA will use the deadline extension to back away from the preemption provision and make the standard more protective. The new deadline is October 1. Stay tuned to Reg•Watch for updates.

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.

In today's New York Times, public policy mediator Susan Podziba writes an op-ed which uses two recent and tragic New York City crane accidents, which killed nine people, as an entree into the rulemaking process at the Occupational Safety and Health Administration (OSHA).

OSHA has had a rule to improve safety for crane and derrick workers in its regulatory pipeline for years. The pending rule, which would update an outdated policy from 1971, is welcomed by worker safety advocates and industry alike. Podziba tells the story of how the proposal was developed:

From July 2003 to July 2004, representatives of labor unions, crane manufacturers, crane operators, contractors, crane rental companies, builders, crane owners, billboard installers, insurance companies, electrical power line owners and safety experts met to discuss virtually all hazards associated with cranes — and how to prevent them. The deliberations were governed under the Federal Advisory Committee Act, which meant that the public could attend the sessions and address the representatives.

The group reached consensus on a set of revised crane standards. OSHA officials participated in the negotiations and contributed their expertise in writing enforceable regulations. According to OSHA's analysis, these standards would prevent 37 to 48 worker deaths per year. The draft regulations are about 120 pages long, and include important new requirements like the testing and certification of crane operators and the oversight of crane assembly and disassembly.

From the first day of deliberations — in accordance with the process, called negotiated rulemaking — the parties operated under this assumption: If this balanced group of stakeholders and the government could agree on a standard, then OSHA would publish it in the Federal Register as its proposed rule. After OSHA publishes a draft rule, the public has 60 days to comment before the final rule is published and becomes law.

Since then, the rulemaking has come to a grinding halt — even though the bulk of the work is already done. Why? Maybe it's because the Bush administration is ideologically opposed to new worker safety regulations. OSHA has issued only two significant new rules in seven-and-a-half years: one mandating employers pay for personal protective equipment (a no brainer) and one setting an exposure limit for chromium (required by a court deadline and not nearly as strong as the underlying science supported).

Or, maybe it's because of government-wide rulemaking process requirements. Celeste Monforton at the Pump Handle blog says, after the crane rule was written, "OSHA took nearly two years to prepare" a cost-benefit analysis. Monforton also says the rule was further slowed by the Small Business Regulatory Enforcement Fairness Act which requires OSHA give businesses a sneak preview of new rules and an opportunity for the Small Business Administration Office of Advocacy to pressure OSHA to make changes.

Whatever the reason, the two recent crane accidents are a tragic reminder of how OSHA inaction can have real world consequences.

Podziba and Monforton also remind readers of the new White House memo setting deadlines for regulations agencies want to finalize during the Bush administration. Since the proposal deadline has already passed, crane and derrick workers will have to wait until at least 2009 to see the standard finalized.

In this video, OMB Watch Executive Director Gary Bass discusses the importance of public protections; the Bush administration's track record on such protections; and what the American people can do to take our country back from the big-monied special interests that are endangering our health and safety.

You can also leave comments on our YouTube page with suggestions for future videos.

In August 2005, the Department of Transportation proposed a badly-needed update to its 1971 standard for roof strength in passenger vehicles. According to the nonprofit group Public Citizen, the regulation would save 13 to 44 lives every year (out of about 10,000 rollover-related deaths).

The proposed rule is weak on its merits. Critics charge the rule is too weak to make a marked improvement in vehicle safety and does not require automakers to adopt readily available technology that would significantly increase roof strength. (Check out Public Citizen for more.)

But a troubling provision in the proposal makes it even worse by limiting the rights of all rollover crash victims. DOT's National Highway Traffic Safety Administration (NHTSA) included language that would preempt the rights of victims to bring damages claims against automakers.

Yesterday, a Senate panel grilled a NHTSA official on the preemption language, and senators from both parties urged the agency to abandon it. Congress Daily (subscription) reports:

Sen. Claire McCaskill, D-Mo., charged that pre-emption language had been cropping up "like spring flowers" in Bush administration rule-making proposals over the past year, and added that "we in Congress are pretty upset about it."

Sen. Tom Coburn, R-Okla., appeared as a witness at the hearing. He chided NHTSA for not offering "any explanation for why the rights of a vehicle purchaser to seek a common-law remedy for harm done to them should be taken away."

Federal agencies are responsible for enforcing the positive law enacted by Congress. However, even when positive laws and regulations work, citizens must have an opportunity to seek legal redress if a product causes harm. Tort law provides that opportunity by allowing citizens to seek damages from the makers of those products.

When the Bush administration tries to preempt tort law through regulation, as it has frequently attempted, it is conflating two different types of law — and doing so to the detriment of the public.

NHTSA may finish work on the rule as early as July 1.

Yet another report showing the Crandall Canyon mine collapse could have been prevented was released today. The House Education and Labor Committee, led by Rep. George Miller (D-CA), released the report after months of investigation. The disaster at the Crandall Canyon mine in Utah killed six miners and three rescue workers in August 2007.

The report, like two other reports released in March, finds that both the mine's operator and the Mine Safety and Health Administration are to blame.

In March 2007, four months before the disaster, a different collapse, or bump, occurred at a nearby part of Crandall Canyon mine. According to the report, officials managing mine operations and officials at Murray Energy, the mine's owner, new of the March incident but failed to report it to federal regulators — a direct violation of federal rules. The report states, "It is quite possible that, had MSHA known the full severity of the March bump," MSHA would not have allowed the mine to continue operations.

But MSHA still bears responsibility. MSHA was informally made aware of the March bump, but claims the mine's operators "downplayed" its significance. Regardless, MSHA foolishly approved (under intense pressure from the mine's operators) a plan for the company to conduct retreat mining at Crandall Canyon. Retreat mining is a dangerous technique in which miners remove support pillars in order to intentionally collapse areas of the mine no longer in use.

Because the mine's officials ignored federal law, Miller has referred them to the Justice Department for further investigation:

Last month, I sent a criminal referral to the Department of Justice, recommending that it investigate whether the mine's general manager, Laine W. Adair, individually or in conspiracy with others, willfully concealed or covered a material fact or made materially false representations in a matter under the jurisdiction of the executive branch, specifically MSHA…

Visit the committee's website to download the report and learn more.

On Wednesday, the House of Representatives passed a bill that would require the Occupational Safety and Health Administration to develop regulations to protect workers from the hazards of combustible dust. The bill comes largely in response to a dust explosion in February that killed 14 workers at a Georgia sugar refinery. Because of his overwhelming disdain for federal protections in the workplace, President Bush has threatened to veto the bill.

For more on why the bill is necessary, and for a brief recap of the floor debate, visit the Pump Handle blog: "House Passes Combustible Dust Bill"

Yesterday, the Department of the Interior proposed rolling back regulations that prohibit people from carrying loaded guns in national parks, according to the Associated Press. The decision comes in response to pressure from the National Rifle Association and conservative Senators from both parties who believe the current ban on loaded guns in parks is "confusing." (The fact that a ban on guns in parks is "confusing" for members of the nation's highest legislative body is another disturbing issue that will not be discussed here.)

Dollars to donuts, the proposed change will be finalized before President Bush's term expires, in the fear the next administration may not be as friendly to the gun lobby. While most regulations take years to develop, the rollback on the gun ban is moving faster than a speeding bullet. The rule change was not included in the most recent Unified Agenda (the semiannual listing of completed or planned regulatory actions), meaning it may be a relatively new undertaking for the Interior Department. The first public word only surfaced in late February.

Those who want to lift the 25-year-old ban say that park-goers have a right to defend themselves. Of course, as Bill Wade of the Coalition of National Park Service Retirees says, "This is purely and simply a politically driven effort to solve a problem that doesn't exist." The AP article goes into more detail:

There is no data to suggest that the public would be served by allowing visitors to parks to possess concealed handguns, Wade and other critics said. They cited statistics showing that national parks are among the safest places in the country. The probability of becoming a victim of a violent crime in a national park is 1 in more than 708,000 - less likely than being struck by lightning, the groups said.

An editorial in today's New York Times condemns a policy, known as preemption, which prohibits consumers from suing manufacturers if a product harms a consumer, so long as that product is in some way regulated by the federal government. The editorial calls preemption a "perverse legal doctrine" and warns that as it "continues to spread, the public will be deprived of a vital tool for policing companies and unearthing documents that reveal their machinations."

Federal agencies are responsible for enforcing the positive law enacted by Congress. However, even when positive laws and regulations work, citizens must have an opportunity to seek legal redress if a product causes harm. Tort law provides that opportunity by allowing citizens to seek damages from the makers of those products.

A Times investigation into the birth control patch Ortho Evra proves why positive law sometimes does not work, and why tort law must be preserved:

For years, Johnson & Johnson obscured evidence that its popular Ortho Evra birth control patch delivered much more estrogen than standard birth control pills, potentially increasing the risk of blood clots and strokes, according to internal company documents.

But because the Food and Drug Administration approved the patch, the company is arguing in court that it cannot be sued by women who claim that they were injured by the product — even though its old label inaccurately described the amount of estrogen it released.

In their attempts to shirk accountability by erasing the possibility of tort claims, pharmaceutical companies and other industries have found a friend in the Bush administration. The administration has advanced a pro-preemption argument in a number of policy areas covering everything from cars to mattresses.

According to a recent paper from the Center for Progressive Reform, the administration has been fighting for preemption on two fronts. "One form has been to intervene on the side of industry in tort litigation by the filing of amicus briefs arguing that the plaintiff 's claims against the corporate defendant are preempted by the agency's regulations or its general authority over the health or safety matters at issue," the paper argues.

The Bush administration has also tried, and been largely successful, in writing regulations that expressly preempt tort law, according to the paper. Federal agencies, including the FDA and the Consumer Product Safety Commission, have inserted preemption language into the preamble of regulations.

Under Bush, agencies have been inserting the language at the last minute, after the public comment period has closed. In the case of an FDA regulation on drug labels, "FDA deprived most of the public — including state officials, Congress members, and interested individuals and citizen groups — of any chance to weigh in on the matter before the rule was finalized."

Today, the Senate Commerce Committee held a hearing investigating recent regulatory lapses at the Federal Aviation Administration (FAA). Christopher Conkey of The Wall Street Journal reports on the damning testimony of the Department of Transportation's inspector general:

Three days into an extraordinary bout of flight cancellations stemming from a special safety review of the nation's airlines, inspector general Calvin Scovell told a Senate subcommittee that the FAA continues to give airlines too much freedom on complying with safety regulations. He criticized the agency's reliance on industry-provided data to determine risk areas for its inspectors to examine, and said that airlines shouldn't be able to sidestep penalties or costly fixes by voluntarily disclosing safety missteps to regulators.

"We are concerned that FAA relies too heavily on self-disclosures and promotes a pattern of excessive leniency at the expense of effective oversight and appropriate enforcement," Mr. Scovell said in his testimony to the committee.

Scovell is right to condemn the reliance on industry-reporting, especially in area as critical as air safety. Relying on the cooperation of businesses, no matter how accommodating they may be, is no replacement for zealous government oversight.

A cursory review of government data shows that, as Americans take to the air more frequently, FAA employment is shrinking. In 1983, FAA employed one full-time staffer for every 107 departing flights. By 2006, FAA employed one full-time staffer for every 286 flights. (In his testimony, Scovell acknowledges that one of FAA's major challenges will be hiring in two critical areas: air traffic control and aircraft inspection.)

Granted, technological improvements have surely made FAA's job more effective and efficient. But the controversy surrounding FAA casts aside the notion that government is in the way. Instead, it underscores the idea that voluntary industry compliance is not an adequate substitute for strong public protections and a government that acts on behalf of its citizens.

Sunday's Cleveland Plain Dealer ran an article by Stephen Koff highlighting a problem OMB Watch has been focusing on for the past few months: declining budgets and staffing levels at federal regulatory agencies.

As a result, agencies are finding it difficult to fulfill their missions, and regulatory failures like collapsing mines, recalled toys, and contaminated food dominate headlines. From the article:

The broader safety net - protecting children from dangerous toys, adults from tainted spinach and beef, factory workers from chemical dust that can sicken or explode, miners from underground passageways that collapse - has frayed, they say. The government's own records and statistics bear this out in many ways, showing shrinking agency budgets, personnel rosters that don't keep pace with inspection demands, and White House rejection of proposed safety rules.

As agency budget and staffing levels have shrunk, regulated entities have grown. In 1981, the Food Safety Inspection Service (FSIS) — the federal regulator in charge of meat, poultry, and egg products — employed about 190 workers per billion pounds of meat and poultry inspected and approved. By 2007, FSIS employed fewer than 88 workers per billion pounds, a 54 percent drop.

The Occupational Safety and Health Administration (OSHA) has also been unable to keep up with its responsibility to enforce safety regulations in the workplace. In 1980, OSHA had approximately three staff members for every 100,000 American workers. By 2006, it had only 1.5 staff members. In 1980, OSHA and state regulators conducted 1.77 inspections per 100,000 workers. By 2005, OSHA and the states conducted only 0.668 inspections per 100,000 workers — a 62 percent drop.

The resource shortfalls of the Consumer Product Safety Commission have been well-documented; but the situation appears even worse when comparing the agency's budget and staffing levels to one of the fastest-growing yet most dangerous products it regulates — all-terrain vehicles. In 1988, when CPSC began regulating ATVs after settling a lawsuit with manufacturers, the agency employed more than 36 staff members for every 100,000 four-wheel ATVs in use. By 2004, CPSC employed fewer than seven staff members for every 100,000 ATVs. Meanwhile, old regulations have expired and the Bush administration has stalled the development of new standards.

As Koff points out, the decisions by multiple presidents and congresses to shortchange federal agencies has undermined a long-standing national focus on public protection:

The result: The era of government as consumer protector, born of 1960s and '70s activism, has faded.

Find out more through OMB Watch's Bankrupting Government project.

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.

In "Rush Is On to Cement Regulations," Wall Street Journal reporter Elizabeth Williamson previews some regulations the Bush administration may finalize in its waning days of power:

Industries from agriculture to power are pressing for the Bush administration to act on a slew of pending regulations, betting they will do worse no matter who wins the White House in the fall.

Among the rules the article mentions:

• Changes to the Family and Medical Leave Act;
• Reduced limits on emissions from power plants near national parks; and
• Reporting exemptions for farms that produce air pollution from animal waste.

In today's Washington Post, Bloomberg news columnist Cindy Skrzycki covers the Small Business Administration's recent release of its Top 10 list of rules it is asking federal agencies to review and modify. Although it is difficult for an agency to start and finish a rulemaking in a year, these rules may get some attention in the coming months.

EPA has long been considering a revision to one of the rules on the Top 10 list, and will likely try to finalize it before Bush's time runs out. The rule would make it easier for facilities to dump hazardous waste under the guise of promoting recycling of the toxic material. According to the Sierra Club, "If the rule were adopted, an estimated three billion pounds of hazardous waste annually would no longer be regulated as waste under certain conditions."

Reg•Watch has also been blogging about some regulatory proposals under agency consideration. Among them, a rule to ease current restrictions on gun possession in national parks, and a series of rules which would reduce federal funding for state-administered Medicaid programs.

If you know of other rules that are in the regulatory pipeline and, for better or worse, the Bush administration may try to finalize in the next ten months, email Reg•Watch and tell us. We'll keep posting updates as the months roll on.

Sen. Ted Kennedy's Health, Education, Labor and Pensions Committee has released a report on the Crandall Canyon Mine disaster. The collapse occurred in August 2007, trapping and killing six miners. Days later, three workers were killed during a rescue attempt.

The 75-page report contains lots of interesting yet disappointing information about Murray Energy, the mine's owner, and the U.S. Mine Safety and Health Administration. One of the most disturbing is that MSHA disregarded the opinion of one of its analysts when it approved Murray Energy's plan to conduct retreat mining at Crandall Canyon.

Federal law requires MSHA approve plans for retreat mining — the controversial technique in which miners remove support pillars in order to intentionally collapse areas of the mine no longer in use.

The report says MSHA engineer Pete Del Duca reviewed Murray Energy's plan for Crandall Canyon and recommended MSHA officials reject it. The head of MSHA's district office for the area signed-off on the recommendation and notified the mine's manager.

After MSHA sent the letter, one of Del Duca's superiors, Billy Owens, met with a representative from Murray Energy. "After this conversation, Owens told Del Duca that his analysis was flawed in several respects." Del Duca told Kennedy's committee that no one asked him to reevaluate the retreat mining plan. Del Duca's analysis had been dismissed.

According to the report, "Del Duca's analysis was prescient." A mine collapse in March and the deadly collapse in August both occurred "beyond the points Del Duca predicted would be safe."

The Kennedy report and investigation exhibits can be downloaded here. The discussion of the Del Duca analysis begins on page 36.