----- forwarded message -----
Date: Sat, 14 Aug 2004 21:52:20 -0600
From: Teresa Binstock <[EMAIL PROTECTED]>
Subject: Out of Spotlight, Bush Overhauls US Regulations - environ, health, safety, etc
Out of Spotlight, Bush Overhauls U.S. Regulations
By JOEL BRINKLEY
http://www.nytimes.com/2004/08/14/politics/14bush.html
WA$$$HINGTON, Aug. 13 - April 21 was an unusually violent day in Iraq;
68 people died in a car bombing in Basra, among them 23 children. As the
news went from bad to worse, President Bush
<http://www.nytimes.com/top/news/washington/campaign2004/candidates/georgewbush/index.html?inline=nyt-per-pol>
took a tough line, vowing to a group of journalists, "We're not going to
cut and run while I'm in the Oval Office."
On the same day, deep within the turgid pages of the Federal Register,
the National Highway Traffic Safety Administration published a
regulation that would forbid the public release of some data relating to
unsafe motor vehicles, saying that publicizing the information would
cause "substantial competitive harm" to manufacturers.
As soon as the rule was published, consumer groups yelped in complaint,
while the government responded that it was trying to balance the
interests of consumers with the competitive needs of business. But
hardly anyone else noticed, and that was hardly an isolated case.
Allies and critics of the Bush administration agree that the Sept. 11
attacks, the war in Afghanistan and the war in Iraq have preoccupied the
public, overshadowing an important element of the president's agenda:
new regulatory initiatives. Health rules, environmental regulations,
energy initiatives, worker-safety standards and product-safety
disclosure policies have been modified in ways that often please
business and industry leaders while dismaying interest groups
representing consumers, workers, drivers, medical patients, the elderly
and many others.
And most of it was done through regulation, not law - lowering the
profile of the actions. The administration can write or revise
regulations largely on its own, while Congress must pass laws. For that
reason, most modern-day presidents have pursued much of their agendas
through regulation. But administration officials acknowledge that Mr.
Bush has been particularly aggressive in using this strategy.
"There's been more federal regulations, more regulatory notices, than
previous administrations," said Trent Duffy, a White House spokesman,
though he attributed much of that to the new rules dealing with domestic
security.
Scott McClellan, the chief White House spokesman, said of the changes,
"The president's common-sense policies reflect the values of America,
whether it is cracking down on corporate wrongdoing or eliminating
burdensome regulations to create jobs."
Some leaders of advocacy groups argue that the public preoccupation with
war and terrorism has allowed the administration to push through changes
that otherwise would have provoked an outcry. Carl Pope, the executive
director of the Sierra Club, says he does not think the administration
could have succeeded in rewriting so many environmental rules, for
example, if the public's attention had not been focused on national
security issues.
"The effect of the administration's concentration on war and terror has
been to prevent the public from focusing on these issues," Mr. Pope
said. "Now, when I hold focus groups with the general public and tell
them what has been done, they exclaim, 'How could this have happened
without me knowing about it?' "
The administration has often been stymied in its efforts to pass major
domestic initiatives in Congress. Even when both houses have been under
Republican control, Senate Democrats, using parliamentary rules, have
been able to block legislation eagerly sought by the White House and
business groups, including bills on energy, bankruptcy and medical
malpractice. So officials have turned to regulatory change.
Chad Colton, a spokesman for the Office of Management and Budget, which
approves all new regulations, defends the administration's handling of
new rules, saying: "The process is very open, very transparent. Some
regulations we post get hundreds of comments, even thousands." Mr.
Colton acknowledged that most comments came from industry or from public
interest groups. "But those groups represent consumers."
Clarence Ditlow, who directs one of those public interest groups, the
Center for Auto Safety, said: "People in my line of work are frustrated.
We try to work harder. But the amount of media attention and public
attention to consumer issues has gone way, way down since 9/11."
Stuart M. Butler, senior domestic policy analyst for the conservative
Heritage Foundation, while agreeing that the wars "push a lot of other
issues off the page, literally and figuratively," said, "It cuts both
ways." The White House "also can't get traction on issues they care
about, like Social Security reform, because of all the noise from the
war in Iraq."
Bush administration officials and their allies say they use regulations
because new laws are not needed for many of the changes they have made
and going to Congress every time would be needlessly complicated. But
Representative David R. Obey, the Wisconsin Democrat who is the ranking
minority member of the Appropriations Committee, said regulatory changes
did not benefit from the "checks and balances and oversight" that
Congress provides.
New regulations first appear as notices of proposed rule-making in the
Federal Register, which is published every weekday. Generally,
government officials and others directly concerned with government
business read this dense publication.
The National Highway Traffic Safety Administration published the new
rule on the public release of auto-safety information on July 28, 2003,
but outside the industry hardly anyone took notice. In the following
months, allies of tire manufacturers and automakers flooded the agency
with comments, and all of them "contended that the release of early
warning data is likely to cause substantial competitive harm," the
agency said. At the same time, consumer groups argued that the data
"should be released because it is important to the identification of
potential defects," the agency added.
When the agency published a revised final rule on April 21, 2004, it
exempted from public release warranty-claim information, industry
reports on safety issues and consumer complaints, among other data,
saying that releasing that information would cause "substantial
competitive harm."
Public Citizen, a consumer advocacy group, filed suit, saying consumers
needed the data to inform themselves about unsafe vehicles and tires.
But Ray Tyson, the chief spokesman for the highway safety agency, said:
"The suggestion that the American consumer is missing out is off the
mark. I can't believe this information would be of much interest to the
general public."
A Pro-Business Tilt
The overall regulatory record shows that the Bush administration has
heeded the interests of business and industry. Like the Reagan
administration, which made regulatory reform a priority, officials under
Mr. Bush have introduced new rules to ease or dismantle existing
regulations they see as cumbersome. Some analysts argue that the Bush
administration has introduced rules favoring industry with a dedication
unmatched in modern times.
"My thoughts go back to Herbert Hoover," said Robert Dallek, the
presidential historian. "No president could have been more friendly to
business than Hoover" until the Bush administration.
While John D. Graham, administrator of information and regulatory
affairs at the Office of Management and Budget, does not dispute the
administration's pro-business tilt, he said there had been notable
exceptions, which his office approved when government officials
"provided adequate scientific and economic justification."
Examples, Mr. Graham added, include "stricter fuel-saving rules for
S.U.V.'s" and "a 90-percent reduction in diesel-engine exhaust," as well
as "mandatory criteria for the lifesaving performance of side-impact air
bags" in cars.
But examples of countervailing, business-friendly changes abound, some
that broke through the flak thrown up from the wars, and others that
remain little known.
The administration, at the request of lumber and paper companies, gave
Forest Service managers the right to approve logging in federal forests
without the usual environmental reviews. A Forest Service official
explained that the new rule was intended "to better harmonize the
environmental, social and economic benefits of America's greatest
natural resource, our forests and grasslands."
In March of 2003, the Mine Safety and Health Administration published a
proposed new regulation that would dilute the rules intended to protect
coal miners from black-lung disease. The mine workers union called the
new rules "extremely dangerous," while a mine safety administration
official contended, "We are moving on toward more effective prevention
of black-lung disease."
In May 2003, the Bush administration dropped a proposed rule that would
have required hospitals to install facilities to protect workers against
tuberculosis. Hospitals and other industry groups had lobbied against
the change, saying that it would be costly and that existing regulations
would accomplish many of the same aims.
But workers unions and public health officials argued that the number of
tuberculosis cases had risen in 20 states and that the same precautions
that were to have been put into place for tuberculosis would also have
been effective against SARS.
The next month, the Department of Labor, responding to complaints from
industry, dropped a rule that required employers to keep a record of
employees' ergonomic injuries. Labor unions complained that without the
reporting, it would be difficult to identify dangerous workplaces. But
the department, in a statement, argued that the records "would not
provide additional information useful to identifying possible causes or
methods to prevent injury."
The administration's 2004 budget proposed to cut 77 enforcement and
related positions from the Occupational Safety and Health
Administration, while adding two new staff members whose jobs would be
to help industry comply with agency rules. Labor Secretary Elaine L.
Chao explained to a House committee that the agency would "continue to
target inspections based on the worst hazards and the most dangerous
workplaces." As the budget proposal was announced, President Bush and
other senior officials focused most of their remarks on the large
increases proposed for defense and domestic security.
A Case of Tired Truckers
In one little-known case, litigants say the administration managed to
turn a Congressional mandate on its head. In 1995, the National
Transportation Safety Board issued a startling study on fatal truck
accidents. Thousands of people die on the highways each year in
collisions with heavy trucks. The board studied 107 crashes in which the
truck driver survived and found that more than half resulted from
truck-driver fatigue. Nineteen of the truckers admitted to falling
asleep at the wheel.
As a result of that report, Congress the same year ordered the
government to revise driving-hour rules for truckers. Under regulations
unchanged since 1939, truckers could drive 10 hours at a stretch and
then had to rest for eight hours. The rules, Congress said, were to be
changed to "reduce fatigue-related incidents and increase driver
alertness." At that time, both the Senate and the House were under
Republican control, and lawmakers began debating what to do.
The truck-related accident death toll hit a new high in 1997; 5,398
people died. Congress went further in 1999 and created a new federal
agency, the Federal Motor Carrier Safety Administration, and the Clinton
administration set a goal of reducing truck-related accident fatalities
by half over the following 10 years.
Consumer and driver-safety groups, including Public Citizen and Parents
Against Tired Truckers, started lobbying the new agency to shorten the
number of hours drivers could stay behind the wheel. But trucking
industry officials argued that shorter shifts would disrupt delivery
schedules, which in turn would raise prices on thousands of products
delivered by truck.
Last year, the Department of Transportation finally issued a new rule,
saying in a prepared statement that it would "save hundreds of lives"
and "protect billions in commerce." The change would increase allowable
driving time from 10 hours without a break to 11 hours. But after 11
hours, drivers would have to take 10 hours off instead of eight.
Trucking companies said they were satisfied with the rule while truck
drivers deplored it, saying the added hours of driving time would
increase driver fatigue.
Public Citizen and the other safety groups filed suit, saying the new
rule, in all its detail, actually increased driving hours per week by 30
percent. The suit is pending. Joan Claybrook, the president of Public
Citizen, said the new rule "does nothing positive, it does a lot of
negative, and it's a big waste of four years' effort."
Courts Have Their Say
For all the ambition behind the campaign to remake the government's
regulatory structure, courts have forced the administration to pull back
a striking number of initiatives.
Last August, for example, the administration relaxed its clean-air rules
by allowing thousands of corporations to upgrade their plants without
having to install expensive pollution-control equipment, saying that
would allow plants to modernize more easily, leading to greater
efficiency and lower consumer costs.
Utilities had lobbied for change; environmental groups filed suit. In
December, a three-judge panel of the United States Court of Appeals for
the District of Columbia Circuit blocked the rule, at least temporarily,
indicating that the court doubted the administration had authority to
modify the Clean Air Act by regulation.
In a case involving air-conditioners, the Department of Energy announced
in May 2002 that it would weaken a standard issued during the Clinton
administration to make home air-conditioners more efficient. The
department did order an efficiency increase, but less than had been
mandated under Mr. Clinton. An Energy Department official said: "This is
not a rollback. It is an increase" in efficiency.
Major air-conditioner manufacturers had lobbied against the improved
efficiency standard, saying the new models would be unaffordable. Right
away, the attorneys general from seven states, including New York, New
Jersey, Connecticut and California, filed suit to restore the old
standard. In January of this year, a three-judge panel of the United
States Court of Appeals for the Second Circuit, in New York, ruled that
the Bush administration did not have the legal right to revise the
efficiency rule.
While the administration has had some successes in relaxing
environmental rules, other changes have been stymied by the courts. A
federal judge blocked a plan by the Department of the Interior to allow
an energy company to drill for oil at one proposed location, adjacent to
the Arches National Park in Utah, saying the government had not
adequately considered the environmental impact of the plan. And an
Interior Department judicial agency blocked a plan to develop the Powder
River Basin in Wyoming.
Still, the administration is pleased with its overall record of
regulatory change. Mr. Graham, the budget office official, eagerly
acknowledged that the regulatory tilt had been toward business. "The
Bush administration has cut the growth of costly business regulations by
75 percent, compared to the two previous administrations," he said.
Representative Obey said he believed most Americans remained unaware of
many of the changes.
"Most people are busy just trying to make a living," he said. "And with
all the focus on Iraq and bin Laden, it gives the administration an
opportunity to take a lot of loot out the back door without anybody
noticing."
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