In 2007, President Bush used administrative decrees — such as issuing a new regulatory executive order and giving new powers to executive branch offices — to impact the regulatory process. The administration is likely to continue pursuing administratively what it cannot accomplish legislatively or does not wish to do in the light of day.

Suppressing Science

For the last seven years, the Bush administration has systematically suppressed scientific evidence, discounted scientific and technical studies, and suppressed the right of agency scientists to talk publicly about their work in order to delay or prevent new regulations. In 2008, there is evidence that this practice will continue.

For example, the U.S. Environmental Protection Agency (EPA) waited two years before denying California's Clean Air Act waiver request to implement the state's program to reduce greenhouse gas emissions from vehicles. The Senate Committee on Environment and Public Works held a hearing Jan. 24 to uncover the reasons why EPA Administrator Stephen Johnson denied California's waiver request. Johnson's decision marked the first time California had ever been denied such a waiver.

The chair of the committee, Sen. Barbara Boxer (D-CA), noted in her opening statement that "EPA has failed to fully respond to our request for information, has limited access and censored documents, and has left open-ended the timeline for compliance with this Committee's request. This failure to cooperate with the oversight committee is unacceptable and must be corrected." Since then, EPA has permitted some congressional staff to view the documents but generally claims agency documents leading to the decision to be exempt from congressional or public inspection.

On Jan. 23, the EPA's Clean Air Scientific Advisory Committee (CASAC) released a letter expressing its "serious concerns" about EPA's implementation of a new process for reviewing National Ambient Air Quality Standards (NAAQS) for air pollutants. The process includes a "policy assessment" that is supposed to contain underlying scientific justifications and supporting data. During the application of this new process to the review of lead standards by CASAC, the policy assessment 1) omitted "the fundamental scientific rationale" for considering the range of policy options, and 2) expanded the range of options to include those that had already been "dismissed on scientific grounds" earlier, thus "unavoidably" slowing down the review process.

Institutionalizing Management Practices

In its last year, look for the administration to institutionalize certain management practices that narrow the definition of agency success and expand the definition of agency failure. For example, on Nov. 13, 2007, Bush issued Executive Order 13450, Improving Government Program Performance. The order solidifies the Performance Assessment Rating Tool (PART) as the evaluation mechanism for government programs. PART has been widely criticized by Congress, agencies, and performance management experts. (Read OMB Watch's article on the new order here.)

On Jan. 31, the National Research Council (NRC) released a report critical of the Office of Management and Budget's (OMB) use of PART as a tool for rating the efficiency of research programs. EPA asked an NRC panel to evaluate ways to better measure the efficiency "[a]fter experiencing difficulty meeting OMB's requirements to demonstrate the efficiency of its research programs," according to an NRC press release.

The report criticized PART for focusing on ultimate outcomes — measuring lives saved, for example — instead of immediate outcomes such as whether the research resulted in disseminating new tools or added to a body of knowledge. The report also criticized OMB for its lack of consistency in applying efficiency standards to research programs across government. This management by numbers approach ignores questions of whether an agency's research agenda is the right one, whether the research is of high quality, and whether the program is sufficiently flexible to allow mid-course corrections based on new information. OMB's response to the report and changes to its PART practices is something OMB Watch will be following closely.

OMB Watch identified another management practice the administration recently began in our December 2007 review of regulatory news. The Small Business Administration's (SBA) Office of Advocacy now provides industry officials and anti-regulatory lobbyists with a new vehicle to voice their complaints with federal regulations through its Regulatory Review and Reform Initiative, or "r3". SBA launched the initiative in July. The r3 initiative 1) includes uniform recommendations for the conduct of agency reviews and 2) solicits from the business community recommendations on which existing rules agencies should review.

On Jan. 10, the SBA issued its first list of more than eighty regulations that businesses and lobbyists want agencies to review. According to its press release, the Office of Advocacy "will transmit the Top 10 list to agencies in the spring and will work to ensure that the listed rules will be reviewed and reformed. In order to track agency progress, the recommended reforms will be posted on Advocacy's website and an update on the status of reforms will be published twice a year." Of the 82 submissions, 37 of them deal with environmental, consumer, or workplace protections. Institutionalizing a regulatory hit list and pushing agencies to reform regulations according to businesses' wishes places the Office of Advocacy in the position of actively advocating against the missions of regulatory agencies and may further decrease agency discretion. We expect more attempts by the administration in 2008 to diminish the role of regulatory agencies.

Circumventing the Law

Look for the Bush administration to explore ways to avoid legal restrictions that result in policies inconsistent with its priorities. Three such attempts are already underway. The first is a move by the administration to reverse the 2001 Roadless Area Conservation Rule (Roadless Rule) forest by forest. On Jan. 25, a new forest management plan was released for the Tongass National Forest in Alaska, which would open the area to logging and road building, according to a press release by the Natural Resources Defense Council (NRDC). The new plan was ordered more than two years ago after a court found that an earlier plan to open the Tongass under a 2003 Bush exemption to the Roadless Rule was inadequate and unjustified.

Bush has tried to overturn the Roadless Rule, which protects more than 58 million acres of national forest lands from development, since the beginning of his administration. Stymied by court decisions supporting the rule, the administration is apparently trying to overturn the restrictions on timber company activity on public lands by developing forest plans that allow logging in protected areas. According to NRDC, plans similar to the Tongass forest plan have been issued for forests in Idaho and Colorado.

The second example of the administration sidestepping the law is a Jan. 16 Food and Drug Administration (FDA) proposed change to a rule regarding the labeling of drugs and medical devices. FDA's long-standing rules have permitted drug and device manufacturers to change or add to their labels any new consumer safety information without waiting for FDA approval. The proposed rule would "drastically limit the situations in which a manufacturer is permitted to make add [sic] or strengthen a contraindication, warning, precaution, or adverse reaction in the absence of FDA approval unless there is 'evidence of a causal association'", according to a letter sent to FDA by several House and Senate committee chairs.

The legislators argue that the proposed rule ignores language in the Food and Drug Administration Amendments Act of 2007 which preserves the responsibility of the manufacturers to "promptly update their own product labels to reflect the most current safety information available." Both the law and Congress's intent regarding the labeling responsibilities are clear, the letter states, and FDA has not provided any rationale for the change. To the signatories, the rule ignores this provision to accomplish another end — FDA's rule is intended to protect pharmaceutical and device manufacturers against liability for marketing unsafe products.

The third example addresses the recently enacted modifications to the Freedom of Information Act that includes creation of an ombudsman-like office in the National Archives. Even though the president signed the legislation into law, in his FY 2009 budget, he proposes defunding the office and moving it to the Justice Department, which has authority for implementing FOIA. Thus, Bush would have the fox guarding the hen house, as critics have complained that the Department of Justice has become overly politicized since 2001. These types of strategies may be employed often in 2008 by the Bush administration to protect the special interests that have had special access to regulators for years. We can likely expect more delay, interventions to publish weak rules when required, and the institution of procedures that the Bush administration hopes will continue into the next administration.