Bush Overhauls U.S. Regulations

[Guest guest]

http://www.nytimes.com/2004/08/14/politics/14bush.html?th= & pagewanted=print & posi\

tion=

 

August 14, 2004

 

Bush Overhauls U.S. Regulations

By JOEL BRINKLEY

 

WASHINGTON, 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 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. "