Issue Date: February 26, 2007
LEADING DEMOCRATS in Congress are taking notice that President George W. Bush is pushing to increase the White House's influence over the actions of federal agencies, including the regulation of pollutants and pharmaceuticals. Although several of the Bush moves were criticized, the latest directive, which adds layers of bureaucracy to the process of regulating products and services and requires agencies to provide a written economic rationale for their rules, is getting some action.
Two panels in the House of Representatives held back-to-back hearings on Feb. 13 on this particular Bush directive, which is viewed as a threat to Congress' power to direct agencies to issue regulations by writing specific provisions into federal laws (C&EN, Jan. 29, page 10).
For example, the Clean Air Act requires the Environmental Protection Agency to set limits on the level of pollutants, including ozone, allowed in the air. Congress stipulated in the law that these air standards must be based solely on what is required to protect human health with an adequate margin of safety.
Bush's new directive may affect congressional mandates such as this Clean Air Act provision, Congressional Research Service researcher Curtis W. Copeland told the House Judiciary Subcommittee on Commercial & Administrative Law.
Rep. John Conyers Jr. (D-Mich.), chairman of the House Judiciary Committee, said at the hearing that he is concerned that the directive will be a barrier to proposing and enacting new environmental, safety, and health rules. Rep. Linda T. Sánchez (D-Calif.), chairman of the Judiciary Subcommittee on Commercial & Administrative Law, said, "The main thrust of this new order appears to shift control of the regulatory process from the agencies—the entities that have the most substantive knowledge and experience—to the White House."
At the second hearing, Rep. Brad Miller (D-N.C.), chairman of the House Science & Technology Subcommittee on Investigation & Oversight, said, "This order allows political appointees to dictate decisions out of the shadows on health and safety issues, even if impartial scientific experts decide otherwise."
The Bush Administration brushes aside these concerns. Steven D. Aitken, acting administrator of information and regulatory affairs at the White House Office of Management & Budget (OMB), told the judiciary subcommittee that the directive is about good government and improving the way the federal government does business.
Sally Katzen, who headed OMB's Office of Information & Regulatory Affairs during the Clinton Administration, testified at both hearings. Katzen described Bush's new directive as part of a "steady and unwavering effort to consolidate authority in OMB and further restrict agency autonomy and discretion."
The first step in this effort, she said, was OMB's 2002 guidelines on the quality of information, including scientific data, that could be distributed by the federal government (C&EN, Feb. 4, 2002, page 21). The second step, Katzen said, was OMB's 2003 proposal for peer review of science to be used as the basis of regulation, a proposal that caught plenty of flak, including from the National Academy of Sciences (C&EN, Feb. 2, 2004, page 21). OMB took a third step in 2004 when it prescribed instructions for agencies preparing science and economic documents that justify new regulations. A fourth, according to Katzen, was OMB's 2006 highly controversial proposal that would establish government-wide standards for federal risk assessments. Last month, the National Research Council said this plan was fundamentally flawed and should be scrapped (C&EN, Jan. 29, page 32).
"Although each step can be justified as helping to produce better regulatory decisions, the cumulative effect is overwhelming," said Katzen, who says she supports White House review of new regulations. "Requirements are piled on requirements that the agencies must satisfy before they can issue regulations, even those that Congress authorized and even instructed them to issue," she told the subcommittees.
Despite making these extra demands, OMB hasn't asked Congress to supply agencies with more money to carry them out, Katzen continued. "The result is that fewer regulations can be issued," she said.
Also explored at the hearings was a provision in Bush's directive encouraging agencies to prepare rules by using a time-consuming, triallike procedure that has not been used for decades. Aitken of OMB said the directive simply encourages agencies to consider use of this tool, which would involve testimony from and cross-examination of those for and against particular regulations as they are crafted. A Congressional Research Service report prepared by Copeland said if OMB can convince regulators to follow this procedure, "agency rulemaking could become even more 'ossified' than it already is."
Congress still is deciding how it might respond to the directive. At the hearings, some witnesses critical of the Bush order suggested that lawmakers place provisions in annual spending laws to forbid the use of federal money to implement the directive. One pointed out that, in the past, Congress has overturned presidential directives. Others recommended continued oversight hearings to track the effect of the directive. Lawmakers are weighing their options.
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