|August 14, 2004
Out of Spotlight, Bush Overhauls U.S. Regulations
By JOEL BRINKLEY, NY Times
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
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
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
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
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"
But examples of countervailing, business-friendly changes abound, some that
broke through the flak thrown up from the wars, and others that remain
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
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
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
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
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
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."
Copyright 2004 The New York Times Company