Time to End the Rule of Un-elected Officials over Regulatory Standards
Firebrand founder, Thomas Paine once wrote that "government in its best form is but a necessary evil; in its worst, an intolerable one." I don't think he would have been so generous toward government were he able to see what the federal government he and his fellow founders established has evolved into in setting the modern technical standards by which industry and citizens must live.
Un-elected federal bureaucrats are now circumventing the U.S. Constitution by unilaterally writing and enforcing regulatory laws through a system known as "consensus standards" — an oxymoron in this case.
This year, the House Subcommittee on Workforce Protections heard testimony from industry and union experts on the issue of non-consensus standards, in which regulations carrying the weight of law are written by a single outside group with no oversight, public participation or input from competing organizations — a violation of federal law by the federal government itself.
The Occupational Health and Safety Administration (OSHA) is required by the Occupational, Safety and Health Act (OSH) to conduct rigorous examination taking into account the Data Quality Act, the Regulatory Flexibility Act, a small business impact analysis, stakeholder input and judicial review before finalizing any new health or workplace safety regulation.
However, the career bureaucrats at OSHA devised a clever scheme to overcome this requirement for external review of their rule writing.
What should be consensus standards are now written primarily by the non-governmental American Conference of Governmental Industrial Hygienists (ACGIH). The hearings revealed that OSHA employees are in fact actively participating as members of ACGIH in writing the standards, bypassing all Congressional safeguards.
And the gross errors created by this scheme are magnified by the nation's current regulatory climate. Nearly half of all states have adopted their own safety and health programs in lieu of federal OSHA standards. These states must provide safety and health protection equal to or greater than what is required by OSHA. As a result, many states indirectly rely upon non-consensus standards to match or exceed OSHA regulations.
Our fight in Congress against these folks that Paine clearly would have listed as "tyrants," right alongside the agents of Great Britain, is on hold for now. It is politically next to impossible to push through regulatory reform in an election year, so the conclusion of this fight must wait until 2007.
There are three routes to victory. The first is we can win voluntary return to true consensus standards through firm executive action from the administration. The second route is we can push through new laws guaranteeing that all future standards will be true consensus standards. Or, third, we can ask the courts to force OSHA to comply with the law.
The year 2007 promises a fight against a regulatory bureaucracy that Thomas Paine would be glad to call "intolerable."
About the Author
Charlie Whitlow Norwood, Jr. was the U.S. Representative for Georgia's Ninth Congressional District. Norwood served as chairman of the House Subcommittee on Workforce Protections. He was vice chairman of the Commerce Subcommittee on Health from 2001-2004, and vice chairman of the Oversight and Investigations Subcommittee of the Committee on Education and the Workforce from 1997-2000. He was a member of the Energy and Commerce Committee and the Committee on Education and the Workforce throughout his congressional career, and served on the Commerce Committee Energy and Power Subcommittee from 1995-2000.