A House subcommittee hearing on the White House's anti-regulatory hit list became a venue for stakeholders to voice their positions on the broader ongoing debate over public protections and political interference in regulatory policy, pitting corporate-conservative talking points against evidence of the need for stringent safeguards. The June 28 hearing of the regulatory affairs subcommittee of the House Government Reform Committee was the second to address the White House's hit list of regulatory protections to be weakened or eliminated. This time, the committee focused on regulations targeted by the hit list from the Department of Transportation (DOT) and Department of Labor (DOL), and in particular on two rules important to worker and public safety. The first protects workers from exposure to the carcinogen hexavalent chromium, while the second limits the number of consecutive hours that trucking companies can allow their drivers to work. In the course of debating the merits of those pending rulemakings and whether they should even be included in a hit list of protections to be rolled back, the committee members and witnesses found themselves engaging in several larger and recurring debates in regulatory policy: transparency and political interference in protective policy; the relationship between regulatory protections and the competitiveness of American companies in a global marketplace; and the diversion of agency resources into navel-gazing analyses instead of action to protect the public. Specific Rules Little was learned about either the hours of service rule or the hexavalent chromium rule, because each is still a pending rulemaking about which the agencies were reluctant to divulge anything not already in the administrative record. Nonetheless, discussion of the two rules highlighted the public needs at stake in the White House hit list project. Hours of Service Rep. Stephen Lynch (D-MA), subcommittee ranking member, expressed concern that the hit list includes the Federal Motor Carriers Safety Administration's (FMCSA) current rulemaking on the hours truckers are allowed to work in a given time period. Public Citizen previously brought and won a lawsuit against the agency for issuing a rule that actually increased the number of hours truckers could drive consecutively, in the face of overwhelming research that shows a significant degradation in performance after 8 hours on the job. The U.S. Court of Appeals for the District of Columbia Circuit, in a ruling last July, held that the agency violated its statutory mandate by failing to consider the effect on the health of truck drivers and ordered the agency to revise its rules consistent with its opinion. In the wake of the court decision, the agency rushed to petition Congress to reinstate the overturned rule for one year while it is reconsidered by FMCSA. This temporary measure expires in September. Lynch expressed outrage that the agency had never considered the health of the driver, much less the safety consequences of having tired drivers operating large trucks on the nation's highways. Joan Claybrook, president of Public Citizen and former head of the National Highway Traffic Safety Administration, added that the White House Office of Management and Budget (OMB) has yet to explain why this rule was added to the hit list, when it is still actively in the rulemaking process in the wake of the federal court's rejection of the rule as an unwarranted rollback of already weak safeguards. Hexavalent Chromium Claybrook testified that the Occupational Safety and Health Administration's (OSHA) hexavalent chromium rulemaking similarly should not be included on the White House hit list, citing near unanimous agreement in the scientific community that the substance is a lung carcinogen. Despite overwhelming evidence of health risks posed by the chemical, OSHA has dragged its feet for years on promulgating a lower permissible exposure limit (PEL). In 2002 Public Citizen sued, and the U.S. Court of Appeals for the Third Circuit ruled that OSHA's years of failing to promulgate a lower standard in the face of well documented and grave public health risks exceeded the bounds of reasonableness. Industry groups continue to oppose the resulting proposed PEL of 1 microgram per cubic meter via OMB's hit list, citing a small, industry-backed study. Lynch and Claybrook pointed out the methodological superiority of a much larger study that reveals a much greater risk. They also suggested that the PEL could be specially tailored to accommodate two small industry subcategories that would be hardest hit by the costs of the rule, rather than altering a proposed PEL that is already within the reach of most of the affected industries. Larger Problems In the course of addressing the specific issues of the hit list's inclusion of hexavalent chromium and hours of service, the hearing addressed larger issues that recur throughout regulatory policy debates. Lack of Transparency The hit list is only the latest in a long line of OMB interventions in the regulatory process shrouded in secrecy. In this case, although there was transparency in the process of soliciting nominations for the hit list, it is unclear how the OMB and agencies chose which rules to include on the final hit list. Throughout the hearing, Lynch attempted to shed light on this murky process. Despite diligent questioning and obvious frustration with the process's lack of transparency, Lynch was unable to elicit from witnesses testifying on behalf of either DOL and DOT a clear picture on how the agencies derived the list of rules designated for "reform." DOT General Counsel Jeffrey Rosen even suggested that the final decision was made by OMB itself. Claybrook testified that the hit list is an unwarranted political intrusion in agency decisions. "There are two fundamental hypocrisies in OMB's interference in agency activities in the form of the 'hit list,'" she said. "One, the nomination and selection process for OMB's hit list lacks the minimum indicia of accountability and transparency that it would reasonably expect of any agency process; and, two, its unwarranted and unauthorized interference in agency and congressional priorities is unsupported by any analysis of the costs and benefits of the regulatory rollback it recommends or of the harm caused by delay in agency issuance of important new rules. The consequence of these two flaws is that OMB's list is intellectually incoherent." Regulation as Scapegoat Rep. Candice Miller (R-MI), subcommittee chairperson, repeatedly blamed government and regulation for the ills of the manufacturing sector. Claybrook pointed out that this justification for the assault on regulation might be "convenient lobbying strategy," but "it is far easier to blame the rules than deal with the truth. A wealth of research shows that direct labor costs, such as the wages for comparably skilled workers, are the major driver for industrial decisions to relocate jobs, not regulatory costs, which are less than one percent of the cost of shipped goods." Instead of regulation, the problems of manufacturing may be caused by unfair trade agreements that turn international labor cost differences into a significant problem for domestic industry. In fact, research suggests that stringent health, safety and environmental protections in industrialized nations may actually stimulate growth and competition. In the face of dramatic evidence to the contrary, Miller's remarks at the hearing seemed to suggest that all the U.S. government needs to do is to roll back environmental, health, and safety regulations and the hemorrhaging of U.S. jobs to countries with far cheaper labor costs would stop. Value of Regulation Miller and industry witnesses repeatedly equated older regulations with outdated rules. They repeatedly cited examples of industry consensus standards, which may be written in more contemporary terms than some decades-old regulations but may not necessarily be more stringent than existing regulations. They also stressed their enthusiasm for the hit list project, which industry uses as one-stop shopping for attacking regulation. In addition, they expressed their support for regulatory "sunsets," automatic expiration dates for all rules on the books, even such proven protections as the ban on lead in gasoline. At one point in the hearing, Miller cryptically added that legislation would be introduced soon, although it was unclear if she was referring to codifying industry consensus standards or to mandating regulatory sunsets. Claybrook offered an alternative view of regulation as "a modern form of the social contract. They embody a fundamentally democratic idea about the exchange of responsibilities among participants in a society." She also offered five principles that stress the value of regulatory protections:

1. Corporations, like people, should clean up after themselves and be required to prevent foreseeable harm caused by their actions and choices.
2. Government action should correct social and political wrongs; set out fair rules for participation; distribute resources fairly; and preserve and protect shared resources and the public commons.
3. Government activity both reflects and enacts moral values and collective goals—clarifying who we are and what matters to us.
4. People have a responsibility to actively respect the lives and health of people we do not know, as well as the natural environment and its limitations and gifts.
5. Voluntary risks are morally distinct from risks imposed upon the public without their knowledge or consent.

"The principles encapsulate some of what is systematically disregarded by OMB's cynical view of both government and the people whom government protects under the constitutional prescription that it 'promote the general Welfare,'" Claybrook concluded. These recurring debates will undoubtedly be repeated in the near future as anti-regulatory policy proposals are introduced.