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E-M:/ Sen. Levin Still Going Off Deep End on Reg Reform

Enviro-Mich message from "Alex J. Sagady & Associates" <ajs@sagady.com>

Date: Mon,  5 Apr 1999 17:50:43 -0500
From: Reece Rushing  <rushingr@ombwatch.org>
Subject: CSS Alert -- Reg 'Reform' Back Again 
To: "Citizens for Sensible Safeguards List" <css@lyris.ombwatch.org>
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	    Citizens for Sensible Safeguards

               REG 'REFORM' BACK AGAIN

Last session's regulatory "reform" bill, sponsored by Sens. 
Fred Thompson (R-TN) and Carl Levin (D-MI), has been introduced
again as S. 746 and will be the subject of an April 21 hearing 
in the Governmental Affairs Committee.

As a result of a deal reached with the Clinton Administration  
at the end of the 105th Congress, S. 746 contains 
significant improvements from last year's version (although 
problems still remain). Among the changes, Thompson and Levin 
agreed to:

*	completely remove the look-back provision of the bill, 
which would have put agencies on a treadmill of re-reviewing 
rules already on the books;

*	add language intended to keep the courts from reviewing
the content of an agency's rulemaking analysis;

*	raise the threshold for peer review of cost-benefit 
analysis and risk assessment to cover rules exceeding $500 
million instead of $100 million; and

*	add a stronger "savings clause" so that S. 981 does not
override underlying statutes.

While recognizing these improvements, CSS still believes the 
bill's one-size-fits-all approach is flawed and would delay the
issuing of important public and environmental protections while
giving opponents of regulations new footholds to affect the 

The current rulemaking process takes far too long, often more 
than ten years for a major standard. But S. 746 would only add 
to the delays through broad overly-prescriptive analytical 
requirements for cost-benefit analysis (including tests for 
cost-effectiveness and net benefits) and risk assessment and a 
one-size-fits-all approach to "peer review." Under this 
rigorous legislation, agencies would not have sufficient 
flexibility and would often find themselves performing tasks 
that are redundant or unnecessary. 

For example, risk assessments are not currently required for 
toxics right-to-know regulations, which impose no regulatory 
controls and simply provide for the availability of information
on toxic releases. Yet S. 746 would require such procedures by 
law. If not done, a court could invalidate the rule. 

The omnibus approach does not work for "peer review" either. 
For example, OSHA prepares a risk assessment, where 
appropriate, when it regulates a toxic substance or harmful 
physical agent. The Occupational Safety and Health Act already 
requires the agency to hold a public hearing -- with the 
opportunity to present testimony and examine witnesses -- as 
part of the rulemaking. This process provides for a full review
of the proposed rule and any associated risk assessment or 
cost-benefit analysis. Requiring OSHA to hold a separate peer 
review proceeding runs counter to the idea of a streamlined 
executive branch.

Even apart from whether a broad "peer review" requirement is 
prudent, the process set up by S. 746 is deeply flawed. Most 
troubling, the bill does not bar those with conflicts-of- 
interest from serving on peer review panels, potentially giving
self-interested parties another bite at the apple. This 
fox-in-the-hen-house approach makes little sense, especially 
considering that those with an interest in the outcome of a 
regulation already have extensive opportunity to participate in
the rulemaking process, and they do so vigorously.

For credibility's sake, employees of entities that would be 
regulated by the rule in question should not be allowed to 
serve as members of a peer review committee. Such participation
is inherently inconsistent with the degree of scientific 
disinterest that must be a hallmark of legitimate peer review. 
Ironically, while S. 746 allows conflict-of-interest 
participation, it does not allow agency experts to participate.

In addition, S. 746 moves in the wrong direction on the issue 
of transparency and accountability at OMB, actually lowering 
the bar on requirements in place since 1986. S. 746 no longer 
calls on OMB to put its decisions in writing when reviewing 
rules, and requires only the  logging of "significant" (rather 
than "substantive") meetings and phone calls.

Perhaps most disturbing, however, is that there would be no 
meaningful time-constraints on regulatory review at OMB. OMB's 
past abuses have been well-chronicled over the years. From 
worker protection to environmental regulation to consumer 
safety, rules have languished there, particularly prior to the 
Clinton Administration. In fact, that is why the Clinton 
Administration established a rigid time-frame through Executive
Order 12866 in 1993. There is no reason to revert back to the 
days of potentially endless review when OMB served as a 
regulatory black hole.

Reece Rushing
CSS Coordinator, OMB Watch 
Phone: 202-234-8494
Fax: 202-234-5150
E-mail: rushingr@ombwatch.org
Date: 04/05/99
Time: 17:50:44

Alex J. Sagady & Associates        Email:  ajs@sagady.com

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Communications on Air, Water and Waste Issues
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