January 27, 2012 Celeste Monforton, DrPH, MPH 0Comment

The Republicans’ mantra about the burden of regulations seems to have cast a spell on the Obama Administration’s attitude about promoting new regulatory initiatives. My observations about this were reinforced this week when I read the Administration’s statement accompanying its Fall 2011 regulatory plan. The message is clear: new regulations and an election year don’t mix.

The tone of this new Obama Administration regulatory statement oozes caution. Let’s set aside the fact that this “Fall 2011” regulatory plan was not released at all in the autumn, but on January 20, 2012. It seems the Obama White House wants to steal ammunition from those who claim there are too many new regulations in the pipeline, and also dampen the expectations of those who expected this Administration to aggressively implement more robust public protection rules.

In the past, the text of the Introduction to the Annual Regulatory Plan, has been plain vanilla. Last year, the Obama Administration said simply:

The Regulatory Plan serves as a defining statement of the Administration’s regulatory and deregulatory policies and priorities, [including] …a description of the most important significant regulatory and deregulatory actions that the agency reasonably expects to issue in proposed or final form during the upcoming fiscal year.

Their 2011 plan also included a lengthy narrative entitled Open Government and Evidence-Based Regulation.

Here’s how the Obama Administration is now describing its regulatory plan [emphasis added]:

It is important to understand that the Agenda and Plan are intended merely to serve as a preliminary statement, for public understanding and assessment, of regulatory and deregulatory policies and priorities that are now under contemplation. This preliminary statement often includes a number of rules that are not issued in the following year and that may well not be issued at all. …We have narrowed the list of “active rulemakings” to rules that are not merely under some form of contemplation but that also have at least some possibility of issuance over the next year. But it remains true that rules on this list….must undergo serious internal and external scrutiny before they are issued — and that there are rules on the list that may never be issued.

In this light, it should be clear that this preliminary statement of policies and priorities has extremely important limitations. No regulatory action can be made effective until it has gone through legally required processes, including those that involve public scrutiny and review. For this reason, the inclusion of a regulatory action here does not necessarily mean that it will be finalized or even proposed. Any proposed or final action must satisfy the requirements of relevant statutes, Executive Orders, and Presidential Memoranda. Those requirements, public comments, and new information may or may not lead an agency to go forward with an action that is currently under contemplation and that is included here. For example, the directives of Executive Order 13563, emphasizing the importance of careful consideration of costs and benefits, may lead an agency to decline to proceed with a regulatory action that is presented here.

In last year’s document, the Administration simply described its regulatory plan this way:

They [agencies] have tried to predict their activities over the next 12 months as accurately as possible, but dates and schedules are subject to change. Agencies may withdraw some of the regulations now under development, and they may issue or propose other regulations not included in their agendas.

Time will tell whether my observations about this cautious language in 2012 is aslo reflected in timid regulatory decisions this year. Important public protection rules are at stake, including new EPA reporting requirements of health and safety information about nanoscale material; new additions to EPA’s list of chemicals of concern such as certain phthalates, polybrominated diphenyl ethers (PBDEs), and bisphenol A; and new Labor Department rules to protect children working in agriculture, protect coal miners from black lung disease, and a proposal to protect workers exposed to respirable crystalline silica.

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