On August 6, two unrelated events got my attention. The first was OSHA’s announcement of a long overdue regulatory proposal. The agency released a proposed rule to protect the health of about 35,000 US workers who are exposed to beryllium. The lightweight, super-strong metal can cause a disabling respiratory disorder called chronic beryllium disease, as well as lung cancer. There is no safe level of exposure to it. The second event was the Fox News debate featuring ten Republicans vying to be the party’s 2016 Presidential candidate.
With the OSHA proposed rule fresh on my mind, I watched the debate. I heard four of the candidates (Jeb Bush, Chris Christie, Marco Rubio, and Scott Walker) grumble about regulations. One referred to regulations as “job killers” and the others pledged to weed out burdensome ones and put a cap on new ones.
The Republican candidates’ remarks about regulations repeat the same rhetoric on regulatory protections that have had traction this year on Capitol Hill. On July 28, for example, the House passed the “Regulations from the Executive in Need of Scrutiny Act” (REINS Act). If enacted, it would require federal agencies to submit major rules to Congress for approval before the regulation could take effect. (Presidential candidate Rand Paul is the sponsor of the REINS Act in the Senate.) Other bills of the same nature—with even catchier titles—-include the “Regulation Sensibility Through Oversight Restoration” (RESTORE Act) and the “Searching for and Cutting Regulations that are Unnecessarily Burdensome Act” (SCRUB Act).
Proponents of these bills insist that federal agencies—and they paint all agencies with the same brush—don’t do enough to assess the costs of the regulations they impose. Cong Steve Chabot (R-OH), who chairs the House Small Business Committee, wrote in an op-ed in Roll Call:
“Agencies often fail to assess the impacts of new rules on small businesses, neglect to consider more cost-effective ways of fulfilling their needs and do not solicit input from small businesses.”
I wonder if Congressman Chabot has looked at the analyses that accompany an OSHA rule?
OSHA’s Federal Register notice on its proposed beryllium rule is 262 pages. By my count, 112 of those pages are devoted to the agency’s assessment of the economic impact and feasibility of the proposal on the effected businesses. Much of the rest describes the scientific literature on the health effects of beryllium, a health risk assessment, and a critique by external peer reviewers of the risk assessment.
Failing to assess impacts on small businesses? Hardly.
Not only does OSHA analyze the impacts on small businesses (as defined by the SBA to typically be a business with 500 or fewer employees) but also on very small businesses defined as those with 20 or fewer employees. OSHA goes into great detail breaking down the cost estimates for each provision of the proposed rule, with specific calculations for each of the affected industries. OSHA provides tables showing the estimated costs by major provision for very small businesses in each affected industry, down to the six-digit NAICS code. It’s all pretty tedious to read.
Failing to solicit input from small businesses? Not true.
I count at least 80 places in OSHA’s Federal Register notice in which the agency specifically says it “seeks comments” or “requests comments” from the public. Small businesses and anyone else who is interested has until early November to provide input to OSHA on the proposal.
Besides that, OSHA already organized an entire process especially for representatives of small businesses to comment on the draft proposal. (It’s a rulemaking step required by the Small Business Regulatory Enforcement Fairness Act. The Small Business Administration plays a major role in selecting the small business representatives for this activity.) OSHA’s Federal Register notice for its beryllium proposed rule describes in detail the comments from those small businesses. OSHA explains how it modified the proposal based on that feedback.
Neglecting to consider more cost-effective alternatives? Not so.
OSHA’s Federal Register notice describes at least 25 regulatory alternatives it is considering. The least-costly alternatives include less stringent requirements for air monitoring to determine beryllium exposure, and dropping the requirement for certain employees to be offered CT scans to identify lung damage.
OSHA’s notice says:
“OSHA believes that inclusion of regulatory alternatives serves two important functions. The first is to explore the possibility of less costly ways (than the proposed standard) to provide an adequate level of worker protection from exposure to beryllium.”
I find it hard to believe that anyone could claim that the agency failed to assess the impact of the proposal on small businesses, neglected to consider more cost-effective ways of fulfilling their needs, or did not solicit input from small businesses. Honestly, I see an Administration that has gone overboard assessing and estimating the costs and alternatives of the proposed beryllium rule. I wish a few lawmakers would do their own reality check.