Commentary: Bush's Last-Minute Rush to Dismantle Public Protections

by Gary D. Bass, OMB Watch Executive Director
Those who keep an eye on the federal government know the Bush administration is not friendly toward regulation — particularly health, safety, environmental, civil rights, and consumer protections. When they have been forced to regulate, Bush officials have advanced policies that mostly let the market control the game, while the idea of strong government intervention has been left to gather dust. However, even outside the recent regulatory takeover of Fannie Mae and Freddie Mac, events show the administration is starting to kick things into high gear on regulations, trying to lock the next administration into a Bush legacy.

In May, White House Chief of Staff Joshua Bolten issued a memo that set deadlines for agency regulations during the remaining months of the Bush administration. Bolten said he wanted to stop last-minute regulatory activity — commonly known as midnight regulations. To avoid this, except in "extraordinary circumstances," Bolten said agencies should propose regulations that they want to finalize no later than June 1 and that all final rules should be published by Nov. 1.

Now that the June 1 deadline has come and gone, it appears there are a lot of "extraordinary circumstances" to be found. Recently, the Department of Health and Human Services (HHS) proposed a rule that could have far-reaching impacts on women and family planning decisions. The rule allows health care professionals at institutions that receive government money to opt out of providing abortion and sterilization if such services create a problem of conscience for the provider. HHS would require the institutions to certify they are complying with federal laws that allow health care workers to withhold services on the basis of religious or moral grounds. Violations could lead to loss of funding.

After first leaking a proposed rule that would have defined many contraceptives as abortion, HHS published a rule that leaves ambiguous the scope of services that might be curtailed.

The proposed rule was published on Aug. 26, long after the Bolten June 1 deadline, and the Bush administration is gaming the system to get the rule finalized. The Office of Management and Budget (OMB) reviewed the rule before it was released, as it does with all major rules. But OMB reviewed the HHS rule with unusual stealth: the review was done in hours, the same day HHS published the rule, ensuring that it would not appear on OMB's website until after the fact. Additionally, the comment period on the proposal is only 30 days, which is short for major rules in general, but very short for highly complex and controversial rules such as this one.

Maybe the HHS rule was posted after the fact on the OMB website because OMB learned from another "extraordinary circumstance" proposed by the Department of Labor (DOL). The public first learned about the Labor Department proposal when The Washington Post found it on the OMB website. The rule would change the way the Occupational Safety and Health Administration (OSHA) and the Mine Safety and Health Administration (MSHA) calculate estimates for on-the-job risks; a draft was written quickly, in secret, and without the consultation of occupational health experts inside OSHA and MSHA, Labor Department insiders say. Labor Secretary Elaine Chao's office forwarded the draft to OMB for the required review period on July 7, well after the Bolten June 1 deadline.

After the Post disclosed this secret rulemaking, scientists and public health experts expressed concern the rule change would downplay the severity of workplace risks. In an August letter, 80 doctors, scientists, and public health experts asked Chao to abandon the proposal. The letter said the rule "has serious flaws that would weaken current procedures and undermine occupational health rules" and would add delays to an already lengthy process for writing occupational health rules. The DOL proposal is striking for an administration that has issued only two significant workplace health and safety standards in its two terms.

OMB cleared the rule on Aug. 25, and Chao officially unveiled it on Friday, Aug. 29. Call it an early Labor Day present from those in the Bush administration hostile to workplace protections. Like the HHS rule on abortion, DOL will take public comment for only one month.

Another DOL proposed rule, this one from MSHA, violates the Bolten memo and appears to be heading swiftly toward finalization. On Sept. 8, MSHA proposed to require mandatory substance abuse testing for miners. The requirement would apply to miners who perform "safety-sensitive job duties" and their supervisors. (MSHA defines safety-sensitive job duties as, "Any type of work activity where a momentary lapse of critical concentration could result in an accident, injury, or death.") Mine operators could test for drug and alcohol use both as a condition of employment and at any time during employment.

Why would MSHA focus on drug testing when recent mine disasters have shown that miners face unconscionably hazardous working conditions including lack of adequate communications systems and rescue equipment? As Ken Ward reports in the Charleston Gazette, "Coal industry officials have long sought an MSHA rule to require drug testing of miners." Like with the other rules, MSHA will only take public comment for 30 days, indicating Bush officials — like former coal industry executive and current MSHA chief Richard Stickler — are trying to bestow a generous parting gift to the coal industry before a new administration takes over.

In another "extraordinary circumstance," on Aug. 15, the Department of Interior proposed a change in the way government agencies comply with the Endangered Species Act. The proposal would allow officials to approve development projects that could impact endangered species without consulting federal wildlife and habitat scientists.

Interior's proposal missed the Bolten memo's deadline by two-and-a-half months. OMB spent only three days reviewing the proposed rule, whereas the average review time this year for Interior rules is 64 days. Like all the others, the comment period will only be 30 days.

The hits just keep on coming. On July 31, the Department of Justice proposed a rule — again, after the June 1 deadline — that may result in additional domestic spying by allowing state and local law enforcement agencies to gather and include terrorism-related information in their federally funded criminal intelligence data systems, and to share such information with federal officials. The data would be held in the information systems for ten years instead of the current five years. Civil liberties experts noted that the rule, the first revision of police intelligence gathering since 1993, would result in local and state law enforcement conducting intelligence gathering for the federal government. In short, the proposal makes it easier for state and local police to spy on Americans. Like the others, this proposed rule only allows one month to comment.

While the Bush administration fiddles, public protections burn. We have serious problems today. Eating food, taking medications, and drinking water, for example, are increasingly like playing Russian roulette; you are never certain if you're the one who will get seriously ill. Congress needs to stop this last flurry of "extraordinary circumstances" from the Bush administration. But the next president has a bigger challenge: he has to fix a broken system.

Among the many things that need to be done, here are four:

  • First, restore credibility to the federal regulatory process. Putting politics above science and common sense must stop. Government regulations are supposed to protect us all, not just political patrons. It is time for our government to identify gaps in safeguards and take actions to protect us.
  • Second, such actions need to be done with care, but also with alacrity. Academic experts have called the current system "ossified," filled with too many analyses and opportunities to slow or stop regulations. The next president should work to remove those barriers and act quickly when new threats emerge, instead of waiting while the tolls of pollution, disease, and economic hardship mount.
  • Third, the system needs to be more transparent, thereby allowing for better public understanding and participation. National policy should reflect the views of citizens, not just well connected lobbyists and special interests.
  • Fourth, once a regulation is final, enforce it. The federal agencies in charge of inspecting our toys, food, and workplaces and monitoring the cleanliness of our air and water are facing historic resource and staffing shortfalls. We need new techniques and more feet on the ground to ensure we receive the protection we deserve.

Increasingly, it appears the Bush administration is trying to solidify a range of policies before it leaves office — the Bolten memo notwithstanding. Proposals like the ones outlined above will tie the hands of the next president and bypass Congress and the public's will. The next president will have to deal with this legacy of midnight regulations while fixing the regulatory process to get the special interests out, make it more transparent and responsive to public needs, and once again restore public trust in government.

Rule Description Proposal Date Length of Comment Period Days under OMB review
Department of Health and Human Services rule which could reduce women's access to federally funded reproductive health services.
  • Find out more from Reg•Watch,
    OMB Watch's regulatory policy blog
  • Proposed rule text
Aug. 26 30 days Less than 1 day
Department of Labor rule which would change the way occupational health agencies calculate estimates for on-the-job risks.
  • Find out more from Reg•Watch
  • Proposed rule text
Aug. 29 31 days 49 days
Mine Safety and Health Administration rule which would require drug testing for miners.
  • Find out more from Reg•Watch
  • Proposed rule text
Sept. 8 30 days 84 days
Department of Interior rule which would change the way government agencies comply with the Endangered Species Act.
  • Find out more from Reg•Watch
  • Proposed rule text
Aug. 15 31 days 3 days
Department of Justice rule which would allow local law enforcement to engage in domestic spying without good cause.
  • Find out more from OMB Watch
  • Proposed rule text
July 31 33 days 70 days

*In May, the White House instructed federal agencies to propose by June 1 any rule they wished to finalize by the end of the Bush administration.
**The typical comment period for a proposed rule lasts 60 days or two months.
***As of Aug. 31, OMB has spent an average of 65 days reviewing agency drafts.

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