Document 6Bboyn8kYbB9xN978kbYzpMy6

Thursday February 19, 1981 i Part III The President Executive Order 12291-- Federal Regulation UCC 013347 Federal Register Vol. 46. No. 33 Thursday. February 19. 1981 Title 3-- The President \ Presidential Documents 13193 Executive Order 12291 of February 17, 1981 Federal Regulation By the authority vested in me as President by the Constitution and laws of the United States of America, and in order to 'reduce the burdens of existing and future regulations?increase agency accountability for regulatory actions, pro vide for presidential oversight of the regulatory process) minimize duplication and conflict of regulations, ana 'insure well-reasoned regulations, it is hereby ordered as follows: ; . Section 1. Definitions. For the purposes of this Order: ta) "Regulation'yor "rule" means an agency statement of general applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the procedure or practice requirements of an agency, but does not include:. (1) Administrative actions governed by the provisions of Sections 556 and 557 of Title 5 of the United States Codez (2) Regulations issued with respect to a military or foreign affairs function of the United States: or (3) Regulations related to agency organization, management, or personnel. (b) `.'Major; rule" means any regulation that is likely to result in: (1) An annual effect on the economy of $100 million or more; (2) A major increase in costs or prices for consumers, individual industries. Federal, State, or local government agencies, or geographic regions; or (3) Significant adverse effects on competition, employment, investment, pro ductivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic or export markets. (c) "Director? means the Director of the Office of Management and Budget (d) "Agency" means any authority of the United States that is an "agency" under 44 U.S.G 3502(1), excluding those agencies specified in 44 U.S.C. 3502(10). (e) "Task-Eorce" means the Presidential Task Force on Regulatory Relief. -- Secrz:''General Requirement?. In promulgating new regulations, reviewing existing regulations, and developing legislative proposals concerning regula tion. all agencies, to the extent permitted by law, shall adhere to the following requirements: (a) Administrative decisions shall be based on adequate information concern ing the need for and consequences of proposed government action: (b) Regulatory action shall not be undertaken unless the potential benefits to society for the regulation outweigh the potential costs to society, (c) Regulatory objectives shall be chosen to maximize the net benefits to society; (d) Among, alternative approaches to any given regulatory objective, the alternative involving the least net cost to society shall be chosen: and (e) Agencies shall set regulatory priorities with the aim of maximizing the aggregate net benefits to society, taking into account the condition of the UCC 013348 v 13194 Federal Register / Vo!. 48. No. 33 / Thursday. February 19. 1981 / Presidential Documents particular industries affected by regulations, the condition of the national economy, and other regulatory actions contemplated for the future. '' Sec* 3..Regulatory Impact Analysis and Review. (a) In order to implement Section 2 of this Order, each agency shall, inconnection with every major rule, prepare, and to the extent permitted by law ^consider, a Regulatory-Impact Analysis. Such Analyses may be combined with any Regulatory Flexibility Analyses performed under 5 U.S.C. 603 and 604. (b) Each agency shall initially determine whether a rule it intends to propose or to issue is a major rule, provided that, the-Director, subject to the direction of the Task,Force, shall have authority, in accordance with Sections 1(b) and 2 of this Order, to, prescribe criteria for mqjcing %uch determinations, to order a ' rule to be treated as a-majorrule, and to require any set of related rules to be considered togetheras a major rule. . (c) Except as provided in Section 8 of this Order, agencies shall prepare Regulatory Impact Analyses of major rules and transmit them, along with all notices of proposed rulemaking and all final rules, to the Director as follows: ' (1) If no notice of proposed rulemaking is to be published for a proposed major rule that is not an emergency rule, the agency shall prepare only a final Regulatory Impact Analysis, which shall be transmitted, along with the pro posed rule, to *e Director at least 60 days prior to the publication of the major rule as a final rule: (2) With respect to all other major rules, the agency shall prepare a prelimi-/ nary Regulatory Impact-Analysis, which shall be transmitted, along with a notice of proposed rulemaking, to the Director at least 60 days prior fto the publication of a noticeo|proposed rulemaking, and a final Regulatory Impact Analysis,- which shall be transmitted along with the final rule at least 30 days prior to the publication of the major rule'as a final rule; \ '(3) or all rules other than majorrules; agencies shall submit to the Director, at " least 10; days prior to publication, every notice of proposed rulemaking and final rule. ` " (df'To permit each proposed major rule to be analyzed in light of the requirements stated in Section 2 of this Order, each preliminary and final Regulatory Impact Analysis shall contain the following information: (1) A description of the-potentiabbenefits of the rule, including any beneficial effects that cannot be quantified in monetary terms, and the identification of ^ those likely to receive the benefits: (2) A description-of-the potential costs of the rule, including any adverse effects that cannot be quantified in monetary terms, and the identification of those likely to bear the costs; (3) A determination, of die potential. net benefits of the rule, including an evaluation of effects that cannot be quantified in monetary terms; (4) A description of alternative approaches that could substantially achieve the same regulatory goal at lower cost, together with an analysis of this potential benefit and costs and a brief explanation of the legal reasons why such alternatives, if proposed, could not be adopted; and (5) Unless covered by the description required under paragraph [4) of this subsection, an explanation of any legal reasons why the rule cannot be based : on the requirements set forth in Section 2 of this Order. (e) (I) The Director, subject to the direction of the Task Force, which shall resolve any issues raised under this Order or ensure that they are presented to^ the President, is authorized to review any preliminary or final Regulatory _ Impact Analysis, notice of proposed rulemaking, or final rule based on the requirements of this Order. (2) The Director shall be deemed to have concluded review unless the Director advises an agency to the contrary under subsection (f) of this Section: UCC 013349 Federal Register / Vol. 46. No. 33 / Thursday, February 19, 1981 / Presidential Documents 13195 ' s' * (A) Within 60 days of a submission under subsection (c)(1) or a submission of a preliminary Regulatory Impact Analysis or notice of proposed rulemaking ^ under subsection (c)(2); (B) Within 30 days of the submission of a final Regulatory Impact Analysis and a final rule under subsection (c)(2); and (C) Within lO days of the submission of a notice of proposed rulemaking or final rule under subsection (c)(3). (f) (1) Upon the request of the Director, an agency shall consult with the Director concerning the review of a preliminary Regulatory Impact Analysis or notice of proposed rulemaking under this Order, and shall, subject to Section 8(a)(2) of this Order, refrain from publishing its preliminary Regulatory Impact Analysis or notice of proposed rulemaking until such review is con cluded. (2) Upon receiving; notice that the Director intends to submit views with respect to any final Regulatory Impact Analysis or final rule, the agency shall, subject to Section 8(a)(2) of this Order, refrain from publishing its final Regulatory Impact Analysis or final rule until the agency has responded to the Director's views, and incorporated those views and the agency's response in .the rulemaking file. (3) Nothing in this subsection shall be construed as displacing the agencies' responsibilities delegated by lawv (g) For every rule for which an agency publishes a notice of proposed rulemaking, the agency shall include in its notice: . (1) A brief statement-setting forth the agency's initial determination whether the proposed rule is a major rule, together with the reasons underlying that determination; and (2) For each proposed major rule, a brief summary of the agency's preliminary Regulatory Impact Analysis. (h) Agencies shall make their preliminary and final Regulatory Impact Analy ses available to the public. (i) Agencies- shalT initiate- reviews- of. currently effective rules in accordance with the purposes of this Order, and perform Regulatory Impact Analyses of currently effective major rules. The Director, subject to the direction of the Task Force, may designate currently effective rules for review in accordance with this Order, and establish schedules for reviews and Analyses under this Order. ' Sec 4. Regulatory Review. Before approving any final major rule, each agency shall; (a) Make a determination that the regulation is clearly within the authority delegated by law and consistent with congressional intent, and include in the Federal Register at the time of promulgation a memorandum of law supporting that determination. (b) Make a determination that the factual conclusions upon which the rule is based have substantial support in the agency record, viewed as a whole, with - full attention to public comments in genera] and the comments of persons directly affected by the rule in particular.. v Secs 5~J(egaIaioryAgenda3t~-- (a) Each agency shall publish, in October and April of each year, an agenda of proposed regulations that the agency has issued or expects to issue, and currently effective rules that are under agency review pursuant to this Order. These agendas may be incorporated with the agendas published under 5 U.S.C. 602, and must contain at the minimum: (1) A summary of the nature of each major rule being considered, the objectives and legal basis for the issuance of the rule, and an approximate UGC 0133 50 . ( i 13196 Federal Register / Vol. 46. No. 33 / Thursday. February 19. 1981 / Presidential Documents / . ` .. schedule for completing action on any major rule for which the agency has issued a notice of proposed rulemaking; (2) The name and telephone number of a knowledgeable agency official for each item on the agenda; and (3} A list of existing regulations to be reviewed under the terms of this Order, and a brief discussion of each such regulation. (b) The Director, subject to the direction of the Task Force, may, to the extent permitted by law: (1) Require agencies to provide additional information in an agenda; and (2) Require publication of the agenda in any form. Sec>i.-TheTasitFdrce'and'^Office of Management and Budget. () To the extent permitted by law, the Director shall have authority, subject to the direction of the Task Force, to: (1) Designate any proposed or existing rule as a major rule in accordance with Section 1(b) of this Order; , (2) Prepare and promulgate uniform standards for the identification of major rules and the development of Regulatory Impact Analyses; (3) Require an agency to obtain and evaluate, in connection with a regulation, any additional relevant data from any appropriate source; (4) Waive the requirements of Sections 3, 4; or 7 of this Order with respect to any proposed or existing major rule; (5) Identify duplicative; overlapping and conflicting rules, existing or pro posed, and existing or proposed rules that are inconsistent with the policies underlying statutes governing agencies other than the issuing agency or with the purposes of this Order, and, in each such case, require appropriate interagency consultation to minimize or eliminate such duplication, overlap, or conflict; () Develop procedures for estimating the annual benefits and costs of agency regulations, on both an.aggregate and economic or industrial sector basis, for purposes of compiling a regulatory budget; . (7) In consultation with interested agencies, prepare for consideration by the President recommendations for changes in the agencies' statutes; and (8) Monitor agency compliance with the requirements of this Order and advise the President with respect to such compliance. (b) The Director, subject.to the direction of the Task Force, is authorized to establish procedures for the performance of all functions vested in the Direc tor by this Order. The Director shall take appropriate steps to coordinate the implementation of the analysis, transmittal, review, and clearance provisions of this Order with the authorities and requirements provided for or imposed upon the Director and agencies under the Regulatory Flexibility Act, 5 U.S.C. 601 etseq., and the Paperwork'Reduction Plan Act of 1980, 44 U.S.C. 3501 el . . seq. -- ,,.<j.j3ec 7.jPending Regulations-..^ (a) To the extent "necessary to permit reconsideration in accordance with this Order, agencies shall, except as provided in Section 8 of this Order, suspend dr postpone the effective dates of all major rules that they have promulgated in final form as of the date of this Order, but that have not yet become effective, excluding: (lj Major rules that cannot legally be postponed or suspended; (2) Major rules that, for good cause, ought to become effective as final rules without reconsideration. Agencies shall prepare, in accordance with Section 3 of this Order, a final Regulatory Impact Analysis for each major rule that they suspend or postpone. i< , UCC 013351 - Federal Register / Vol. 46. No. 33 / Thursday. February 19. 1981 / Presidential Documents 13197 (b) Agencies shall report to the Director no later than 15 days prior to the effective date of any rule that the agency has promulgated in final form as of the date of this Order, and that has not yet become effective, and that will not be reconsidered under subsection (a) of this Section: (1) That the rule is excepted from reconsideration under subsection (a), including a brief statement of the legal or othpr reasons for that determination; or (2) That the rule is not a major rule. (c) The Director, subject to the direction of the Task Force, is authorized, to the extent permitted by law, to: (1) Require reconsideration, in accordance with this Order, of any major rule that an agency has issued in final form as of the date of this Order and that has not become effective; and (2) Designate a rule that an agency has issued in final form as of the date of this Order and that has not yet become effective as a major rule in accordance with Section 1(b) of this Order. (d) Agencies may, in accordance with the Administrative Procedure Act and other applicable statutes, permit major rules that they have issued in final form as of the date of this Order, and that have not yet become effective, to take effect as interim rules while they are being reconsidered in accordance with this Order, provided that, agencies shall report to the Director, no later than 15 days before any such rule is proposed to take effect as an interim rule, that the rule should appropriately take effect as an interim rule while the rule is under reconsideration. (e) Except as provided in Section 8 of this Order, agencies shall, to the extent permitted by law, refrain from promulgating as a final rule any proposed major rule that has been published or issued as of the date of this Order until a final Regulatory Impact Analysis, in accordance with Section 3 of this Order, has been prepared for the proposed major rule. (f) Agencies shall report to the Director, no later than 30 days prior to promulgating as a final rule any proposed rule that the agency has published or issued as of the date of this Order and that has not been considered under the terms of this Order. (1) That the rule cannot legally be considered in accordance with this Order, together with a brief explanation of the legal reasons barring such considera tion; or (2) That the rule is not a major rule, in which case the agency shall submit to the Director a copy of the proposed rule. (g) The Director, subject to the direction of the Task Force, is authorized, to the extent permitted by law, to: (1) Require consideration, in accordance with this Order, of any proposed major rule that the agency has published or issued as of the date of this Order; and (2) Designate a proposed rule that an agency has published or issued as of the date of this Order, as a major rule in accordance with Section 1(b) of this Order. (h) The Director shall be deemed to have determined that an agency's report to the Director under subsections (b), (d), or (f) of this Section is consistent with the purposes of this Order, unless the Director advises the agency to the contrary: (1) Within 15 days of its report, in the case of any report under subsections (b) or (d): or ' (2) Within 30 days of its report, in the case of any report under subsection (f). UCC 013352 13198 Federal Register / Vol. 46, No. 33 / Thursday, February 19,1981 / Presidential Documents (i) This Section does not supersede the President's Memorandum of January 29, 1981, entitled "Postponement of Pending Regulations", which shall remain in effect until March 30,1981. (j) In complying with this Section, agencies shall comply with all applicable provisions of the Administrative Procedure Act, and with any other proce dural requirements made applicable to the agencies by other statutes. Sec. 8. Exemptions. (a) The procedures prescribed by this Order shall not apply to: (1) Any regulation that responds to an emergency situation, provided that, any such regulation shall be reported to the Director as soon as is practicable, the agency shall publish in the Federal Register a statement of the reasons why it is impracticable for the agency to follow the procedures of this Order with respect to such a rule, and the agency shall prepare and transmit as soon as is practicable a Regulatory Impact Analysis of any such major rule: and (2) Any regulation for which consideration or reconsideration under the terms of this Order would conflict with deadlines imposed by statute or by judicial order, provided that, any such regulation shall be reported to the Director together, with a brief explanation of the conflict, the agency shall publish in the Federal Register a statement of the reasons why it is impracticable for the agency to follow the procedures of this Order with respect to such a rule, and the agency, in consultation with the Director, shall adhere to the requirements of this Order to the extent permitted by statutory or judicial deadlines. (b) The Director, subject to the direction of the Task Force, may, in accordance with the purposes of this Order, exempt any class or category of regulations from any or all requirements of this Order. Sea 9. Judicial Review. This Order is intended only to Improve the internal management of the Federal government, and is not intended to create any right, or benefit, substantive or procedural, enforceable at law by a party against the United States, its agencies, its officers or any person. The determi nations made by agencies under Section 4 of this Order, and any Regulatory Impact Analyses for any rule, shall be made part of the whole record of agency action in connection with the rule. Sea 10. Revocations. Executive.Orders-No-12044, as amended, and No. 12174 are revoked. |FR Doe. 61-5790 Filed 2-17-81; *19 pm] Billing cod* 3195-01-M THE WHITE HOUSE. February 17, 1981. :.-3 UCY-.01.B53 ' ____ ___ Carter Activists Create "Baby OSHA' by Hank Cox The Regulatory Action Network: \Vadiin&on\Vateh -iZK- While cx-President Jimmy Carter has packed his bags and fled the banks o( the Potomac to more hospitable climes, some of the social-activist officials he brought into his government have burrowed into the bu reaucracy to avoid dismissal. Nowhere is this phenomenon more obvious than at the Na tional Institute for Occupa tional Safety and Health (NIOSH) where two self-ap pointed champions of the working class have trans formed a research agency into an enforcement arm of the Oc cupational Safety and. Health Administration (OSHA) in de fiance of the law and to the detriment of occupational health research. The controversial adminis trators of NIOSH are Director' Anthony Robbins and his dep uty John Froines, dubbed "Bad Man and Robbin" by their sub ordinates. Robbins came to NIOSH via the health depart ments of Vermont and Colotado where his radical anti business posture endeared him to labor union officials. Though he reportedly left both state agencies "in shambles," he was able to move onward and up-, ward through his contacts with the Oil, Chemical, and Atomic Workers Union and the per sonal support of thelate George Meany, president of the AFLCIO. Froines, who worked with Robbins in Vermont, was em ployed at OSHA when sum moned to work with Robbins at NIOSH. Froines was one of the infamous Chicago Seven who disrupted the 1968 Dem ocratic convention. Three years later, during the 1971 May Day riots in .Washington, he was heard to howl outside the De partment of Justice building: "I have not come to surrender. 1 have come to tear down the government." It did not seem likely at that time that he would pursue his goal at the taxpay ers' expense. Past and present officials of NIOSH accuse Robbins and Froines of a variety of offenses, ranging from mismanagement to malfeasance. The General Accounting Office has been asked by more than one Con gressman to conduct an in quiry, but has yet to launch a full-scale investigation. Background Both NIOSH and OSHA were created by the Occupational Safety and Health Act; OSHA to enforce job safety and health standards, and NIOSH to con duct long-term research into the causes of occupational disease. Congress took great care to separate NIOSH from OSHA, placing it in a separate depart ment, because it knew OSHA would be subject to political pressures and unable to per form objective research. Under its first leader, Dr. Marcus Key, NIOSH became a first-class research institute. "Key and his successor. Dr. John Finklea, sought to fulfill the agency's mandates by produc ing scientific criteria on work place health hazards, particu larly those suspected to cause cancer. It published its findings in criteria documents which were sent to OSHA to serve as a basis for standards, as re quired by law. Unfortunately, OSHA was unable to issue regulations as fast as NIOSH could produce criteria documents. From 1971- 78, NIOSH sent about 100 documents while OSHA issued standards for only five or six. The reason for the disparity is the complex nature of health hazatds. Under the law, NIOSH is supposed to "develop criteria dealing with toxic materials and harmful physical agents and substances which' will describe exposure levels that are safe for various periods of employment, including but not limited to the exposure levels at which no em ployee will suffer impaired health or functional capacities or diminished life expectancy as a result of his work expo sure." This task is extremely diffi cult. Though much progress has been made in industrial hygiene in recent years, no one can say exactly what levels of exposure" to hazardous substances are safe. The evidence against health hazards, especially cancercausing agents, is seldom con crete. Many scientists believe in dividual susceptibility is a more mportant factor than exposure levels in the development of occupational disease. Also, few workers aft exposed to only one hazard and the problem of mul tiple exposures greatly compli cates the issue. The criteria documents pro duced by NIOSH are compre hensive analyses of all evidence against specific hazards. They state what is known and what is not known. They are scien tifically sound, but make weak documentation for OSHA stan dards that must be defended in court." Despite the legal shortcom ings, however, the documents are the most detailed informa tion on health hazards that ex ists. They are widely used by corporate medical staff, union officials, and other health professionals as guides for re ducing work exposures. When a health hazard is present in the workplace,'a professional's first response is usually to see if there is a NIOSH criteria document on the subject.1 *zi- March 1981/Regulatory Action Network: Washington Watch UCC 013354 With or without an accom panying OSHA regulation, the criteria document is a valuable tool in the continuing campaign against occupational disease. The Robbins Soturion When Eula Bingham was ap NIOSH's estimate of the im pact of workplace exposure on cancer rates to conform to OSHA propaganda and shut off the flow of criteria documents. At the time, the institute had between 30 and 50 documents in various stages of develop is often forced to seek Federal warrants to gain access to workplaces. A spate of recent court de cisions has upheld NIOSH's right to enter the workplace, view employee records, and obtain ex parte warrants. But pointed OSHA Administrator in early 1977, she quickly voiced her disapproval of NIOSH's in dependent, scientific approach ment by private contractors, for which funds bad already been appropriated. A single criteria document can cost up to the fact that NIOSH has been forced to go to court over these matters is itself evidence of the decline in the agency's prestige. to dealing with occupational $250,000. hazards. She wanted an end to One by one, the expensive Fantasy Facts the development of criteria documents which she consid ered an embarrassment to her and important documents were completed and sent to Robbins' office where almost all of them Despite the curtailment of NIOSH research and his own meager experience in occupa agency. Bingham also wanted NIOSH to back up her allegation that disappeared. Critics say Rob Deputy director Froines. bins has sent only one docu tional health, Robbins is never theless undeterred from assert ment to OSHA during his ten ence of NIOSH from OSHA, ing himself as the expert on what more than 30% of ail cancers ure at NIOSH. Robbins says so painfully crafted by Con should be done to reduce oc are related to workplace ex the figure is three, though that gress and preserved by Key and cupational disease. posures. NIOSH had con is still far short of the 24 per Finklea, was an early casualty His approach is awesome in ducted its own research and year the institute had been of the Robbins-Froines re its simplicity. Rather than spend concluded the real figure was sending. The case of the missing gime. the time and effort required to between one and five percent. criteria documents has been a The result is a "Baby OSHA." study a suspected hazard and During public hearings on source of vigorous debate iit As NIOSH rejected the mission develop control technology, OSHA's proposed new cancer occupational health circles for assigned to it by Congress, it Robbins suggests that "sus policy, Bingham's officials put the past two years. became a covert arm of OSHA's pected" hazards be wholly pressure on NIOSH to raise its The suppression of this val enforcement mechanism. Con eliminated, regardless of the estimate. ``We've got to get the uable information appears to gress had given N1QSH the au impact on the economy and the figure up to justify the policy," be a product of the political- thority to enter workplaces and loss of jobs. one OSHA official told NIOSH representatives. Dr. John Finldea, who was ideological orientation of Rob bins, Froines, Bingham, and other social-activists who rose conduct investigations as part of its research function. Rob bins has greately expanded this A case in point is the problem of asbestos which is known to contribute to the development then director of NIOSH, balked to power in the Carter Admin minor aspect of the NIOSH of cancer among workers ex at these demands. His stubborn refusal to compromise his agency's integrity for ideologi istration. Closely allied with militant labor unions an'd en vironmental groups, they program to create an unau thorized inspection force work ing hand-in-hand with OSHA. posed to large amounts, espe cially those workers who smoke cigarettes. For years, OSHA and cal purposes reportedly infuri seemed to regard their agencies' According to Phil Bierbaum, NIOSH--along with business ated Bingham. Using her con as weapons in a dass war against NIOSH deputy director for and labor--have wrestle'd with tacts with the White House and the private enterprise system. hazards surveillance, NIOSH the question of how much ex the labor unions, Bingham had If the criteria documents could inspectors automatically report posure is dangerous. Tire prob Finklea removed and Robbins not be converted into regula all of their findings to OSHA lem is crucial, for asbestos is installed in his place. tions to use against business, and the labor unions. NIOSH used in many consumer prod Robbins quickly raised they did not fit into the OSHA- on-site investigations, called ucts. It is used in buildings as NIOSH scheme of things. health hazard evaluations, are a fire deterrent, and its heat re The expensive documents used as "precursors" for OSHA sistance and bonding properties with life-saving potential are inspections. If NIOSH finds ptake it uniquely suitable for collecting dust on NIOSH what it believes to be a hazard, automobile brakes. shelves. Tens of millions ^of tax if qrders the employer to make' In a speech before the AFL- dollars have gone down the corrections. Then OSHA con CIO, Robbins said "There is no drain. Robbins has reduced the ducts a follow-up inspection safe exposure limit for asbes criteria document staff from 35 and, if the alleged hazard has tos," a statement which cannot to a skeleton crew of five. Ac not been corrected, issues a be true since asbestos is one of cording to NIOSH insiders, the willful and repeated violation the most common minerals agency has sent very little sci citation carrying heavy penal known to man and everyone entific criteria of any kind to ties. In effect, NIOSH investi has been exposed to it. OSHA during Robbins' tenure. gators are now OSHA inspec In a speech to an incredulous "If it won't lead to an OSHA tors. gathering of the Asbestos In standard, why bother?" one This new emphasis has de formation Association, Rob NIOSH official told Washing stroyed the institute's credibil bins said the U.S. must move ton Watch. ity as a scientific organization. to "halt completely" the use of New Directions - Where once NIOSH could ex asbestos because of its hazard pect cooperation and assistance ous properties. To this pro NIOSH director Anthony Robbins. The all-important independ- from industry, the agency now nouncement, David L Kendall S-2 Regulatory Action Network: Washington Watch/March 1981 UCQ013355 V*> -Vi--. of Research Triangle Institute information but do not begin beryllium as a human carcin Standards Completion Project, responded that while there is to address the critical question ogen in defiance of scientific a long-term effort of NIOSH "no absolutely necessary use of of safe exposure levels. Var findings. In a sharply-worded to supplement OSHA's Thresh asbestos, there is no absolutely iously described as "scanty" and letter to the head of the Center old Limit Values for 380 toxic necessary use of the automobile "shabby" by leading experts, for Disease Control, Bayliss substances. Many occupational either." these reports appear to be more charged that NIOSH was trying experts believe that up to 80% A New Approach designed to frighten workers to "provide support of the pro of worker exposures to hazard than accomplish any scientific posed OSHA standard and of ous substances are related to In the absence of criteria doc purpose. the position advanced by OSHA these 380 toxic agents. OSHA uments, Robbins and Bingham The cadre of top-flight sci that beryllium should be treated has exposure limits on the books came up with a new system for entists assembled by Key and as a human carcinogen." Ac but nothing more. NIOSH be standards development. Ac Finklea in the early days of cording to Bayliss, "the entire gan a project to supplement cording to ex-NIOSH officials, NIOSH have fled the agency in study should be transferred out these limits in 1976, developing OSHA decides--with advice disgust at the antics of Robbins of NIOSH and placed in the work practice guides, sampling from the unions--what the ex and Froines. According to one hands of a truly independent methods, and the usual infor posure level for a given sub report, there is now not one research organization whose mation employers need to con stance should be, and NIOSH board-certified industrial hy scientific integrity is unblem trol exposure. Up to $10 mil tries to. scrape up some "sci gienist in a position of power ished and whose objectivity is lion was spent on the project, entific data" to back it up. at NIOSH where once there uncompromised." Clearly Bay but Robbins has released noth This cart-before-the-norse were 40. liss, who once served as assis ing. approach is probably the one creative contribution made by Professional Protests tant chief of NIOSH's biometry NIOSH insiders say it is the section at irs Cincinnati labo same old problem of OSHA not the activist OSHA-NIOSH ca Not surprisingly, the cavalier ratory, does not have much faith wanting the information. If bal, but its utility to occupa attitude of Robbins and Froines left in the institute's credibility. OSFIA doesn't want it, Robbins tional health is questionable. to scientific method has aroused Another tiff involved NIOSH doesn't send it. The guidelines "When conclusions are drawn animosity in occupational health and the American National prepared by NIOSH would be before the science is in," former circles. One particularly nasty Standards Institute (ANSI). extremely valuable to employ NIOSH deputy director Ed Baier furor arose over NIOSH's stud After participating on an ANSI ers whose workers are exposed says, "something is amiss." ies of the hazards of beryllium. committee developing a vol to the 380 toxic agents. Like What little information A former epidemiologist for untary standard for use of res the criteria documents, they are NIOSH has produced under NIOSH, David Bayliss, who was pirators and approving the final collecting dust on NIOSH Robbins and Froines has come among those who fled the Rob rule, NIOSH changed its mind shelves. in the form of "hazard reviews" bins regime, has taken strong and criticized the standard as Robbins also stopped publi and "current intelligence bul offense to efforts of NIOSH to inadequate. According to Wil cation and distribution of letins" that provide some useful rewrite the record and establish liam H. Revoir, chairman of the NIOSH's "Worker Safety and ANSI committee, the criticisms Health Guides" and "Safe ' Former Director Key Looks Back... made by NIOSH were "based Practices Manuals" which were on very little research, the use designed to help small busi As conceived by Congress, NIOSH is supposed to be a highcaliber research institute, not an enforcement agency, according to Dr. Marcus Key, the first director of the institute. Key, who served at NIOSH from 1971-1974, is now professor of occupa tional medicine at the University of Texas School of Public Health in Houston. There should be regular feedback from OSHA enforcement to of some incorrect data, ques tionable assumptions, and the use of some improper methods of calculations." Other mem bers of the ANSI panel shared Revoir's opinion of NIOSH's criticisms. nesses reduce exposures. The elimination of this inexpensive and useful program is inexplic able unless it is another ex ample of the pro-union tilt of Robbins and Froines. Small businesses are usually non NIOSH research, Key said. NIOSH and OSHA should work to gether to develop priority lists of hazardous substances for study. In.the future, NIOSH will need to produce criteria documents, Other Missing Reports In addition to the missing union. Eccentric Behavior but not on the same scale as before. Key said. Future studies criteria documents, other im - Some observers theorize that probably will not be devoted to single agents, but rather to types portant NIOSH reports have Robbins and Froines have of industry and operations and to classes of substances. v disappeared. One was a major turned their backs on occupa Also, NIOSH will have to address issues of cost-benefit analysis study of the Bunker Hill Smelter tional health research because and feasibility in future studies, Key said. "Scientists don't like in Idaho, a massive investiga it takes too long and the results cost-benefit analysis, but in the wake of the Supreme Court's tion upon which NIOSH spent do not make good news stories. decision on OSHA's benzene standard, they will have to get in more than 5500,000 of the tax Anti-business rhetoric makes volved in it," he said. payers* money. The srudy was better news copy than quiet, NIOSH cannot stick with the dose-response approach to study completed in 1976,butNIOSH painstaking research, especially ing hazards. Key said. In the future, criteria documents may he has yet to release a final report. when the results of that re part of industry-wide studies. Many top-notch occupational health Former NIOSH director Dr. search do not support their pro scientists have never been in an industrial plant, he added. To that John Finklea acknowledges it union biases. extent, they are "babes in the woods." Participation in industry could have taken NIOSH two More importantly, criteria wide studies will enable them to gain practical experience in the years or so to analyze the data, documents are peer reviewed workplace. '.'; but that does not explain why by scientific panels, a process Key added that he hated to see NIOSH become politicized. the report is still unissued in that could be embarrassing to "I hope professionalism will win out over the adversary relation 1981. -v- .: ' an institute that reaches con ship," he said. , Of greater significance is the clusions prior to conducting March 1981/Regulatory Action Network: Washington Watch UCC 013356 ,'T ' - S-3 ' .. ' ` research. Wagoner, to perform full-time A Private Consultant's Report... As friends ofJane Fonda, Tom work for the Environmental Hayden, and others in the anti Defense Fund for two years. The In late 1978, NIOSH retained a private contracting firm--Pol nuclear power movement, assignment of a Federal em icy Research, Inc. (PRI)--to identify problems with criteria doc Robbins and Froines are very ployee drawing government uments and recommend improvements in the program that would interested in nuclear power salary to work for a private sec enhance their effectiveness in reducing occupational disease. plants. They possess little ex tor activist group is highly ir The viewpoints of 45 occupational safety and health experts pertise in the subject and NIOSH regular. NIOSH officials report from labor, industry, academe, and Federal and state government is expressly forbidden by the they know of no other incident agencies were solicited. Their comments were analyzed and sum Occupational Safety and Health of a public health officer being marized in a report prepared by PRI. Act from interfering with au so used. Acknowledging that the criteria documents "make a helpful thority of other agencies. Nu Robbins also has reportedly contribution to the national effort to protect the health and well clear power plants are under instructed NIOSH personnel to being of the workers," the report suggested the criteria document the authority of the Nuclear conduct research into the value program be divided into two parts: one to serve as a basis for Regulatory Commission and of transcendental meditation as OSHA standard, and the other to provide information to con thus out of bounds for NIOSH, a means of relieving stress cerned groups such as OSHA, industry, and labor. but "Bad Man and Robbin" are among white collar employees. While some of the experts thought OSHA's inability to issue undaunted by such legal refine- Considering Robbins' own al Standards in response to criteria documents meant the documents ments. legations about the seriousness were nor useful for that purpose, others thought it bad more to When the nuclear accident of workplace carcinogens, this do with OSHA's own internal problems. Many of the experts occurred at Three Mile Island does not appear a worthwhile reported they had used the documents as reference sources for in Pennsylvania, Robbins expenditure of the agency's re information on health hazards, and that they were very useful for quickly dispatched a NIOSH sources. this purpose, regardless of their utility in standards-setting. investigator to the scene. What Robbins' latest ploy is to ex Almost all of the experts agreed that criteria documents should the investigator was supposed tend his influence by getting in contain information on what the workers can do to protect them to do is anyone's guess. In the volved in the much-publicized selves while on the job, and that this section should he written words of one NIOSH official, "Superfund" that the Environ-*, in understandable language so it can he used by workers and small he "mucked around and asked mental Protection Agency will businesses. stupid questions," much to the administer to clean up chemical The experts were very critical of NIOSH's on-site investiga annoyance of the Nuclear Reg waste sites. Congress gave tions--health hazard evaluations--recommending that such visits ulatory Commission, the Bu NIOSH no role to play in this be conducted by "knowledgeable people," which, they said, was reau of Radiological Health, and project, but once again the lure not standard NIOSH practice. D other government agencies that of publicity has tempted him had a legitimate reason To be beyond his agency's jurisdic there. tion boundaries. of it in tax-free medical incen and Human Services. Rabbins According to one eyewitness, Robbins summoned a subor Burrowing In tive and housing allowances. and Froines are his employees. Robbins has voWed to fight Apparently more concerned dinate to give him a quick brief While sabotaging NIOSH's any efforts to remove him from with his inflated salary than his ing on nuclear energy. Robbins long-term health research pro office. His wife is a lawyer in leftist ideology, Robbins is than called the Pennsylvania gram and dabbling in nuclear the general counsel's office of sounding more like a conserv health commissioner and de energy and transcendental the Department of Health and ative Republican every passing manded the immediate evacu meditation, Robbins and Froines Human Services, of which day. In a January 19 speech in ation of the Three Mile Island took care to insulate themselves NIOSH is a part, so he knows Texas, he said NIOSH and area. Fortunately, the state of from possible removal in the the rules as well as anyone. OSHA will no longer be able ficial had sufficient presence of wake of election reverses such mind to ignore the demand as occurred on November 4. Epilogue to rely on regulatory powers to fulfill their missions, hut will which Robbins had no author Neither is a Schedule C political As of this writing, Robbins have "to work harder to dem ity to make. appointee and neither can be and Froines are still in com onstrate significant risk" of Froines has reportedly used easily fired by the Reagan mand af NIOSH. Unlike OSHA, health hazards. his office and facilities to assist Administration. NIOSH is far down in the bu In the light of the Supreme in political campaigning, albeit Froines is a GS-15 in the Civil reaucratic chain and draws lit Court's benzene decision of last not on behalf of Jimmy Carter. Service. He can be transferred tle attention from the media. summer, that is an understate The object of Froines' admir but not fired. The taxpayers will Also, the issues are so complex ment. In the future, OSHA will ation and support was Gover be supporting him indefinitely. that few people ourside the oc need NIOSH's research capa nor Jerry Brown of California. Robbins has the best deal of cupational health profession are bility more than ever. In order Three former NIOSH officials all. With union backing, he ob aware of what they have.done to protect workers from haz have confirmed to Washington tained the status of Assistant to the institute. ardous substances, OSHA will Watch that Froines spent an Surgeon General and member Ironically, Robbins and have to prove the substances inordinate amount of time on ship in the Commissioned Froines draw their political are in fact hazardous. To obtain the telephone to California, at Corps, a quasi-judicial military support from the same unions that information, NIOSH will government expense, in stategy organization available only to that orchestrated the smear have to resume its research role sessions with other Brown sup Public Health Service officers. campaign against Sen. Richard and,-more importantly, regain porters. He has the status of an 0-7, Schweiker (R-PA) last year when its reputation for scientific in Another questionable Rob equivalent to a one-star gen the Senator introduced a bill to tegrity. That is not likely to bins move was the assignment eral, and draws a salary in ex curb OSHA's power. Schwei happen with Robbins and of a NIOSH official. Dr. Joseph cess of $70,000 a year, much ker is now Secretary of Health Froines in control. S-4 *> '. Regulatory Action Network: Washington Watch/March 1981 , - U (.-() !3'3'57'