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President’s Spring Agenda Signals Continued Delays on New Rules

This post comes from the Center For Effective Government

The White House Office of Management and Budget (OMB) quietly published its highly anticipated Spring 2013 Unified Agenda of Federal Regulatory and Deregulatory Actions (Unified Agenda) on July 3. The spring agenda, like the previous fall agenda, does not show a strong commitment to advancing public health, safety, or environmental protections. Rather, it shows only slight progress on rules that have been under development for years and does not suggest the administration will address the pervasive delays or lack of transparency that currently plague the rulemaking process.

What is the Unified Agenda?

The Unified Agenda is published semi-annually by OMB in accordance with Executive Order 12866. It includes an agenda prepared by each federal agency listing all regulations currently under development or review. The purpose is to: (a) improve coordination among various divisions of the federal government and (b) give the public notice of upcoming agency actions. For a more in-depth review of the Unified Agenda and each of its components, visit our Regulatory Resource Center here.

Rules that May Spring Forward

The spring agenda contains some positive measures. The agenda indicates that the U.S. Environmental Protection Agency’s (EPA) rule to limit greenhouse gas emissions for new fossil fuel-fired power plants will move forward. Unfortunately, the rule will go back to the proposal stage, despite that fact that when the last agenda was released in December, the rule was in the “final” stages of development. The rule would reduce the amount of carbon dioxide that is released into the air and contributes substantially to climate change. Fortunately, President Obama’s new climate change plan, announced in June, requires EPA to complete the proposal by September and also propose standards for existing power plants by June 2014. EPA sent the proposed rule for new power plants to the Office of Information and Regulatory Affairs (OIRA) on July 2 but has not yet submitted a draft rule for existing power plants for review.

EPA will also move forward on issuing standards for coal ash. The rule was previously listed as a long-term action but has moved to the pre-rule stage in the spring agenda. Although the rule has yet to make it to the proposal stage, it is promising that EPA will restart its work on the coal ash standard.

However, many important rules remain stalled at the agency or at OIRA. For example, EPA reports that it expects to move forward later this year on its proposed Chemicals of Concern list rule. The rule would establish a list for chemical substances identified by EPA as those that present or may present an unreasonable risk of injury to human health or the environment. EPA sent the rule to OIRA for review in 2010 where it remains today. Until OIRA completes its review, EPA will not be able to move forward as planned.

Another important proposal that has been delayed for years is the Occupational Safety and Health Administration’s (OSHA) rule to protect workers from exposure to silica dust that can lead to fatal respiratory disease. OSHA’s regulatory agenda has featured this rule since 2011, but the agency has been unable to move forward because it has been held up at OIRA for over two years. According to the spring agenda, the proposal should be complete this month – two months later than noted in the fall agenda. But it seems unlikely that OIRA will complete its review in time for OSHA to publish it in the Federal Register by the end of this month.

Even if the administration is able to make headway on each of these proposed rules, the agency will still need to repeat the regulatory procedures and send the rule to OIRA for review at least one more time before the rules would become final.

Rules That Will Fall Back

The spring agenda identifies several key health and safety rules that will not be moving forward in the near term. In some cases, the administration has chosen not to move ahead, even if it means the agency will thwart congressional or judicial deadlines. Most frustrating for advocates, the administration is not required to explain why it has chosen to change the rulemaking status or stop work on a rule. Instead, the citizens that these agencies are supposed to protect are left to speculate in the dark.

Although EPA’s regulatory plan from the fall agenda indicated that the agency’s rule on the definition of solid waste was in the final stages of development, the rule has been moved to long-term action in the spring agenda. The rule would revise the 2008 final rule on the definition of solid waste to better protect public health and the environment. EPA had agreed to a judicially enforceable deadline as a result of litigation, but the deadlines have long since passed. According to OIRA’s regulatory dashboard, the agency has not yet determined when it plans to move forward with the rule.

EPA’s recently proposed rule setting emissions standards for formaldehyde in composite wood products was also moved to long-term action in the spring agenda. Congress enacted legislation in 2010 that requires EPA to issue national emissions limits equal to those already required by California law. At the same time EPA proposed the emissions limits rule, it also proposed requirements for third-party certifications of products subject to those emissions limits. Congress set a January 2013 deadline for EPA to finalize the new standards, but both proposals were stuck at OIRA under review for over a year until they were finally released this past May. Even though the notice-and-comment period for these rules remains open until Aug. 6, EPA has already decided not to move forward on completing the emissions limits in the near term. The third-party certification rule, however, is still on the agenda for the spring. EPA has not explained why it chose to move forward only on the third-party certification rule or why the agency effectively denied the public an opportunity to comment on the emissions standard.

Conclusion

The spring 2013 agenda indicates that some important standards will be forthcoming. But unless the Obama administration acts aggressively to ensure these rules are finalized, our health, safety, and environment will continue to be compromised. The administration needs to resolve the pervasive delays and lack of transparency in the rulemaking process to show its commitment to completing these important public protections.

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