How Hasty Obama-Era Rules Are Doing More Harm Than Good

In a flurry of activity during its waning hours, the Obama administration hastily approved far too many ill-conceived regulations that will affect the livelihoods of hundreds of thousands of Americans. In this rush to regulate, the outgoing administration violated regulatory procedures on vitally important issues, and, as a consequence, the expected impacts from these finalized rules are poorly understood.

As an example, the Occupational Safety and Health Administration (OSHA) issued a final rule imposing limits on worker exposure to beryllium. Beryllium is a very light metal — lighter than aluminum — with one of the highest melting points. It is also six times stronger than steel. Beryllium has many uses in everyday items, such as electrical contacts and springs. It is also valuable for more esoteric uses such as for communication satellites, spacecraft, and missiles.

Handling beryllium can be dangerous. Prolonged exposure can lead to lung disease known as chronic beryllium disease, and it has been linked to chromosomal damage. Beryllium can be handled safely, however, if proper procedures are followed. And, this is where the proper regulatory environment matters.

In its rush to implement new regulations before the next administration, OSHA took procedural shortcuts that are disconcerting. Specifically, regulatory agencies are required to issue a proposed rule and provide all interested parties time for comments and input.

The public comment period is a crucial part of the regulatory process. The purpose of the public comment period is to gather input from people with expertise, or perspectives, that the regulatory agency may be missing. Ultimately, it is only with the inclusion of a multitude of perspectives that an effective regulatory environment can be established.

If, during this comment period, persuasive new data, arguments, or criticisms are raised, the agency is supposed to adjust the proposed regulation in response to these new insights.

OSHA broke with these established procedures when it issued its regulations on beryllium. Perhaps most troubling, the maritime and construction industries that were specifically covered in the final regulations issued on Jan. 9 were explicitly exempted from the proposed rules that were open to the public for comment.

In other words, a rule that was initially intended to address one issue (beryllium alloy manufacturing), was materially changed by adding in language that expanded the regulations to other industries (the maritime and construction industries). Importantly, since the exposure levels vary significantly between beryllium’s use in manufacturing and its use in the maritime and construction industries, the public comments on the proposed rules may be no longer applicable.

The comment period is particularly important because these regulations could have significant economic consequences. According to a recent letter from Republican Congressman Bradley Byrne of Alabama, this last-minute change could negatively impact the employment in an industry that directly employs more than 400,000 Americans.

If OSHA, upon further review, determined that the regulations should apply to more industries than originally considered, then the proper procedure would have been to open a new public comment period that would have enabled an open and transparent process instead of inserting them in what appears to be a last-minute rush.

The consequences from this regulatory bait and switch extends beyond beryllium. Overly burdensome regulations are a significant obstacle to economic growth. If OSHA’s actions become standard practice, enabling regulators to arbitrarily, and materially, alter the final regulations without proper vetting, then the value from the public comment period will be diminished. The result will be a less appropriate, and more costly, regulatory state.

Consequently, OSHA should extend the current implementation delay of the beryllium rule and restart a new comment period that enables relevant public input to guide the final rule. Going forward, OSHA should be required to follow open and transparent rule making processes. Otherwise, the economic costs created by excessive regulations will only worsen over time.

Nothing contained in this blog is to be construed as necessarily reflecting the views of the Pacific Research Institute or as an attempt to thwart or aid the passage of any legislation.

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