Required Reading Regulation Contest
Thoughts
About September 11, 2001: Airline Security
(From
an essay placed onTrekLok.com September 18, 2001)
None
of these are really necessary, though. They don't need to subdue an entire plane
full of passengers. All they have to do is secure a 4-foot wide passageway
between the front cabin and the cockpit, and only for two minutes. Of course,
there is the matter of the cockpit door being locked. That might add an extra 15
seconds to the operation while they kick it in or use rolling serving carts as
battering rams, but a better idea is just to wait for one of the pilots to come
out to pee, or for one of the flight attendants to deliver a cup of coffee, or
maybe the hijackers grope her a little or pretend to be drunk and unruly so one
of the pilots comes out to put a stop to it . You get the point. So what's the
answer?
There
is only one way to prevent hijackers from gaining control of an airplane and
that is to harden the cockpit. No way to get in short of explosives (which are
very easy to screen on the ground), and nobody goes in or out during a flight.
Some aircraft re-design will be required (secure walls and doors, a mini-lav for
the crew, a slot to get food in and out), and it will cost, but it will be less
than the cost of not doing it. I look forward to the day when a cockpit door
opening during a flight will seem as alien to us as smoking in an elevator seems
now. Meanwhile, the FAA bans corkscrews and forks. Unknown Author
The following articles are taken from Congressional Quarterly Weekly
Turf
Battles, Lobbying Blitz Roil ‘Broadband’ Deregulation
How
to open the market to high-speed Internet service and give battered tech sector
a break has become one of the Hill’s most fiercely debated issues
RE:
LEGISLATION HR 1542 BY LAUZIN AND JOHN D. DINGELL, D-MICHIGAN TO DEREGULATE THE
MARKET FOR HIGH-SPEED "BROADBAND" INTERNET TRAFFIC
Tauzin
and Dingell's proposal seeks to address the way data is transmitted over long
distances, as well as how independent phone companies can connect to regional
Bell companies' local networks. But
it has raised competitiveness issues and prompted rival bills and fierce
lobbying, including a spate of print and television ads. ...
John
Conyers Jr. of Michigan, the ranking Democrat on the Judiciary Committee, and
Christopher B. Cannon, R-Utah, introduced as yet unnumbered bills May 3, 2001
that would require the Bells to reduce their share of local phone markets to a
maximum of 85 percent before they would be allowed to carry any Internet
traffic.
One
of the bills would also create a $3 billion loan program to help independent
telecommunications companies deploy broadband services to underserved areas....
The
controversy over the Tauzin-Dingell bill comes at a particularly sensitive time
for the telecommunications industry. Internet
service providers, small independent competitors to the Bells and equipment
manufacturers have all been buffeted by the economic downturn.
Some
high-tech interests have questioned whether giving the Bills the kind of breaks
that Tauzin and Dingell are proposing would chill investment in their smaller
competitors, which have struggled to compete.
But supporters of the bill are convinced that it would speed deployment
of broadband services and help jump-start the information technology sector.
The
Tauzin-Dingell bill has become the most hotly lobbied technology legislation in
t he 107th Congress, with interest groups on both sides running a slew of print,
radio and television advertisements.
Prominent
players in the debate include the United States Telecom Association, the primary
lobbying group for the Bells. It
argues that its members need regulatory relief to compete with cable television
companies and other high-speed Internet providers.
Opponents
include long-distance carriers such as AT&T Corp., competitive local
exchange phone carriers, Internet service providers and consumer groups.
They contend that the Tauzin-Dingell bill would give the Bells a
stranglehold on high-speed Internet service and delay the development of
next-generation Web technology. ...
If
the Tauzin-Dingell bill is referred to the Judiciary Committee, it is unclear
how many amendments will be added to the underlying language and whether they
will water down its deregulatory intent. ...
Seeking
an Alternative
"There
is more pressure than ever for Congress to facilitate deployment of high-speed
broadband, but Tauzin-Dingell is not the only game in town," said Adam D.
Thierer, director of telecommunications studies at the Cato Institute, a
libertarian think tank ... lawmakers may turn to the idea of giving tax credits
to telecommunications companies that deploy broadband systems.
That's the goal of companion bills (S 88, HR 267) by Sen. John D.
Rockefeller IV, D-W.Va., and Reps. Phil English, R-Pa., and Robert T. Marsui, D-Calif.
The
legislation calls for a 10 person annual tax credit for five years to companies
that bring "current generation" broadband to residents and businesses
in underserved rural and inner-city areas.
The measures also propose a 20 percent annual credit for five years to
companies that invest in "next generation" broadband services for
residential customers.
An
analysis of a similar proposal last year by the Joint Committee on Taxation
estimated that such a credit would cost $1.4 billion over 10 years.
A key concern of supporters is whether the broadband credit can be
bundled with other breaks for business in a larger tax bill without breaking
congressional budget caps.
"A
lot of the senators represent a lot of the rural parts of America, so my guess
is there would be a lot of interest in it," said Max Baucus of Montana,
ranking Democrat on the Senate Finance Committee.
"But it's all in the mix [of tax provisions], and we have an upper
limit."
Bill
to Relieve Small Businesses Of Liability for Pollution Cleanup
Advances Quickly in House May
19, 2001 page 1161
RE: LEGISLATION HR 1831 TO EXEMPT
COMPANIES THAT DUMP SMALL AMOUNTS OF WASTE FROM SUPERFUND LIABILITY
The
bill would protect businesses that discard less than 110 gallons of liquid waste
or less than 200 pounds of solid, non-hazardous waste at a superfund site.
It would also apply to small businesses that dump ordinary garbage in a
landfill that later is designated a superfund site.
The
superfund law (PL 96-510) has been the nation's main tool for cleaning up toxic
waste sites since 1980. Congress
has not been able to agree on its reauthorization, so some lawmakers decided to
move the small business exemption separately. ...
Companies
that want to be exempt from superfund liability would have to meet several
criteria, including:
•
Disposal of the waste must have occurred before April 1, 2001.
•
The waste must not have contributed significantly to cleanup costs.
•
The company that disposed of the waste must have complied with all
government requests for information and not impeded the cleanup.
•
The company and its employees must not have been convicted of a crime
related to disposal of the waste.
The
Transportation panel and the Energy and Commerce Environment and Hazardous
Materials Subcommittee approved the bill by voice vote May 16, 2001.
The full Energy and Commerce Committee approved it by voice vote the next
day.
Supporters
say the measure is aimed at protecting businesses that have not significantly
harmed the environment from being sued by large polluters that want to recover
some of their government-mandated cleanup costs.
The
bill specifies that if a polluter wants to seek payments from a business that
has been exempted from government cleanup requirements, the burden of proof is
on the company trying to recover costs. That
company must prove the smaller business failed to meet the conditions for
exemption.
The
bill also codifies the EPA's current practice of reducing fines related to a
cleanup if a company proves it cannot afford to pay them. ...
FLURRY
OF PAPERWORK TURNING INTO BLIZZARD
By
Mike Christensen
Soon
after they took over Congress in 1995, Republicans decreed that the burden of
filling out federal paperwork had to be eased.
Instead, according to a new General Accounting Office report, it has
increased.
In
fiscal 2000, in fact, federal paperwork increased by a net of nearly 180 million
"burden hours," the second largest yearly gain since the law (PL
104-13) was passed.
A
burden hour is supposed to measure the time it takes to collect data and fill
out federal forms, surveys and reports.
Though
the measurement has been used for half a century, the GAO remarked to a House
Government Reform subcommittee April 24 that the burden hour's relationship to
the real burden "is unclear."
Nevertheless,
the main engine of these burden hours is the Internal Revenue Service, which,
according to the GAO, is responsible for 83 percent of the paperwork load,
followed at a great distance by the departments of Labor, Transportation and
Health and Human Services and the Environmental Protection Agency.
Though
some agencies reduced their paperwork burdens in fiscal 2000—the Federal Trade
Commission and the Defense and Transportation departments—the IRS's estimate
for fiscal 2000 increased by 240 million burden hours over fiscal 1999.
The
culprits: changes in tax forms 1040 and 1040A. (The second is the short form.)
Under
the law, the Office of Management and Budget is supposed to keep the flurry of
forms in check.
NOMINEE'S
FAITH IN RISK ANALYSIS SHARPENS DEBATE ON RULEMAKING PROCESS
To
his supporters, John D. Graham, the soft-spoken Harvard professor nominated to
head the Office of Information and Regulatory Affairs, is an academic who will
apply common-sense evaluations to the regulations issued by more than 50 federal
agencies, ensuring that government resources are applied wisely.
They say it makes no sense to spend taxpayers' dollars on problems that
may be far less dangerous than perceived.
To
his opponents, Graham is someone who will use a patina of science to block
government rules needed to protect Americans from health, safety and
environmental hazards.
Graham
is getting attention because he is one of the foremost proponents of "risk
analysis"—which calculates the likelihood of a hazard against the costs
and benefits of preventing it. Every
major government regulation overturned or created by the Bush administration
would go through his agency, which is part of the Office of Management and
Budget (OMB).
Robert
W. Hahn, director of the American Enterprise Institute Brookings Institution
Join Center for Regulatory Studies, says Graham will use "the same
[critical] people use every day" to make decisions.
"When you think about crossing the street, you [weigh] the increased
risk of an accident against the benefit of getting to the other side," he
said.
But
Joan Claybrook, president of the consumers group Public Citizen, questions the
research techniques used by Graham, director of Harvard's Center for Risk
Analysis. "The problems with his methodology is that it's garbage in,
garbage out," she said. "It's not a neutral evaluation; it's policy-driven
toward a predetermined finding."
Sally
Katzen, administrator of the Office of Information and Regulatory Affairs under
President Bill Clinton, does not believe Graham will drive the agency into a
stark anti-regulatory stance.
"Can
[risk analysis] be manipulated for ulterior motives?
Sure," said Katzen. "Do I suspect that's what the office is
going to do? I don't, actually ... He's not a madman or an ideologue by a
longshot."
Everyone
involved in the regulatory debate agrees that Graham will have one of the most
politically sensitive jobs in the administration if he is confirmed by the
Senate, as most observers expect.
"This
executive office is pure hell," said Gary Bass, director of OMB Watch, a
public interest group that has been monitoring the agency since the Reagan
administration.
"You're
hit by the politics of the president. You're
hit by demands from industry, public interests, Congress, not to mention the
agencies—and almost all of those people have different perspectives. Because
of the high stakes, you always end up alienating someone," he said.
Cost
and Benefits
Graham
argues that risk analysis is a valuable tool in setting budget and policy
priorities, and that it makes sense to use systematic methods to figure out
whether a perceived threat or hazard is real. He also believes new risks may be
created when regulations are issued to fix a problem.
"The
basic problem we face as citizens and as policymakers is a distortion of
priorities," Graham told the Senate Governmental Affairs Committee in 1995,
when he was testifying about regulatory overhaul. "We regulate some often
tiny or nonexistent risks too much and ignore larger and better-documented
risks."
Critics
question the way Graham gauges proposed solutions. Instead of estimating the
number of lives that would be saved by a regulation—one commonly used
standard—Graham tries to determine how many years of life would be saved.
That means, say critics, that he dismisses problems that might not arise
for decades and solutions that might add a few high-quality years to an
individual's life.
Wendy
Lee Gramm, who headed the Office of Information and Regulatory Affairs in the
mid-1980s, defends Graham's methodology. "People say, "How can you
value a life?" But the point is, we're always evaluating tradeoffs,"
said Gramm, now director of regulatory studies at the Mercatus Center of the
George Mason University in Arlington, Virginia.
"Sometimes
it's not life or death; it's just extending a life," said Gramm, who headed
a regulatory agency, the Commodity Futures Trading Commission, from 1988 to
1993. "It's not an all-or-nothing decision."
Public
Citizen, however, says its criticism of Graham goes beyond his methods. The
group claimed in a March report that he has skewed data to support the claims of
corporate donors to the Harvard center such as Merck & Co., Inc., Exxon
Mobil Corp., Bethlehem Steel Corp. and the Shell Foundation.
Claybrook
takes particular issue with a Harvard center study, released in July, on
motorists' use of cell phones. Researchers, including Graham, said they could
not clearly document how much the risk of an accident increases if a driver is
talking on a cell phone.
"We
simply do not have enough reliable information on which to base reasonable
policy," the study concluded. "Although there is evidence that using a
cellular phone while driving poses risks to both the driver and others, it may
be premature to enact substantial restrictions."
Claybrook
believes it is obvious that cell phone regulation would save lives and notes
that the study was funded by a $300,000 contribution from AT&T Wireless
Group.
"It's
simplistic and naive to say that the funding automatically corrupts the findings
of the study," said David Ropeik, a spokesman for the Harvard Center for
Risk Analysis. "We are funded
by a number of government agencies, but [critics] don't mention that because it
doesn't fit into their thesis.""
Ropeik
said the cell phone study was reviewed by outside experts and included a
disclosure of its funding source.
Public-interest
groups say they fear a return to the early days of the Reagan administration,
when regulations disappeared down a "black hole" at the Office of
Information and Regulatory Affairs. During that time, congressional Democrats
charged, regulations would go in for review and disappear for months or years
without explanation.
OMB
Watch's Bass said he is also concerned the White House may retreat from the more
open regulatory processes that evolved under Clinton.
"This
nominee has to go on record in terms of what kinds of transparency he would
bring to [the agency]," Bass said. "Right now [under Bush], you can't
find out anything. You have no idea what criteria is used for upholding some
rules and withdrawing others."
Congressional
critics worry Graham will be reluctant to allow any rules to go forward. Cost
"could lead you always to say no" to regulations, said Henry A. Waxman
of California, ranking Democrat on the House Government Reform Committee.
"Not
only has the administration acted so far in complete disregard for the views of
the public, but they're also putting people in place like Graham, who will
continue that pattern," Waxman said.
Some
Democrats on the Senate Government Affairs Committee are eager to quiz Graham,
who joined OMB as a consultant in mid-March and has been visiting Capitol Hill
regularly to seek political guidance from his allies and a chance to plead his
case before skeptics.
"Based
on what I've read about Mr. Graham, we're going to take a very close look at his
philosophy, his research [and] the impact of h is views about rules and
regulations on health and safety," said Sen. Richard J. Durbin, D-Illinois
Still,
Graham is expected to be confirmed easily with the support of Democrats such as
Carl Levin of Michigan. Three years ago, when Levin and Chairman Fred Thompson,
R-Tennessee, were pushing for a bill that would require agencies to include risk
analysis when writing regulations, Graham testified in favor of their proposal.
The measure was reported out of committee but the GOP leadership opted against
bringing it to the floor.
Graham's
Agenda
Every
president since Jimmy Carter has ordered federal agencies to weigh potential
costs and benefits when writing a rule. Today,
every major regulation with an economic impact of more than $100 million must
undergo a formal cost-benefit evaluation.
It
is more difficult to evaluate risks, however. Many agencies try to determine the
likelihood that a particular hazard could occur when formulating
regulations—but there are no government standards about whether or how to use
risk analysis.
Graham
would likely change that. Over the
past decade, he has repeatedly testified before Congress about problems in the
current rule-making process. In 1995 testimony before a House Commerce
subcommittee, Graham outlined suggestions to update the system. They included:
•
"Broad-based rankings of health, safety and environmental risks that cut
across the jurisdictions of existing agencies" and "could help inform
the budgetary allocations of Congress and OMB."
•
A mechanism "to make sure that the findings of benefit-cost analyses are
actually used by federal agencies when making specific rulemaking
decisions."
•
Stronger White House oversight of federal agencies. "No significant risk
assessment should be published by a federal agency without the opportunity for
review by an interagency panel of experts under the leadership of the executive
office of the president," said Graham.
American
Enterprise Institute Brookings analyst Hahn predicts that Graham's interest in
more risk analysis will have two main effects on government policy.
"The
administration will be less likely to pass regulations that would be burdensome
to the average consumer, and ... there will be greater attention to achieving
the same objectives in less costly ways," Hahn said. "We'll see costs
more seriously considered."
A
former OMB administrator says Graham's toughest task may be confronting the
tension that has always existed between his office and regulatory agencies.
"A
lot of agencies have bureaucratic staff with their own agenda and special
interests," said James C. Miller III, who headed OMB under Reagan.
"Graham
is going to make sure that he has a lot of clout in the White House so that when
there's a confrontation with an agency—and there is always some sort of
defining showdown—he will win."
GOVERNMENTAL
AFFAIRS: NET WATCHDOG
By
Adriel Bettelheim and Rebecca Adams.
The
Governmental Affairs Committee spends most of its time overseeing the
nuts-and-bolts procedures of the federal bureaucracy, such as computer and
accounting operations and the collection of census data. But chairmanship of the
panel will nonetheless provide a high-profile platform for 2000 Democratic vice
presidential candidate Joseph I. Lieberman of Connecticut to criticize the Bush
administration and further his presumed 2004 presidential aspirations.
Unlike
current Chairman Fred Thompson, R-Tenn., Lieberman is expected to raise frequent
questions about White House decisions to roll back environmental and workplace
safety regulations. He also is likely to ask whether the administration
consulted with industry representatives about regulations under development, in
violation of a 1993 executive order issued by President Bill Clinton. ...
Lieberman
already has expressed concern over Bush's regulatory policies. He was one of
three panel Democrats who voted against the nomination of Harvard University
profession John D. Graham to be administrator of the Office of Information and
Regulatory Affairs. Lieberman cited Graham's past criticisms of clean-air and
clean-water statutes and questioned whether he would weaken federal health,
environmental and safety standards. Nevertheless, the committee voted 9-3 on May
23 to recommend Graham's confirmation.
The
Connecticut lawmaker also has sent letters to the departments of Agriculture and
Interior and to the EPA seeking explanations of how the administration made
decisions to scuttle some environmental and labor regulations that Clinton
issued shortly before leaving office. The regulations would have imposed tougher
standards for arsenic in drinking water and for the cleanup of hardrock mining
operations and closed off 58.5 million acres of natural forest land to
development. He asked for descriptions of any meetings that were held and
documents that were exchanged, but aides said May 22 that Lieberman has gotten
no response. ...
DEAL
FALLS THROUGH ON ERGONOMICS RULES
CQ
Almanac 2000 November 4, 2000 page
2-111
Occupational
Safety and Health Administration (OSHA) has been at work on regulations to limit
injuries or disabilities from performing repetitive tasks ... The [regulations]
would require that 1.6 million employers set up programs to limit the repetitive
motion injuries of about 27 million workers—from airport cargo handlers to
automobile assembly line workers, and from grocery checkout clerks to textile
mill weavers. Another 300,000 businesses each year would have to act the first
time a worker suffered a job-related repetitive stress disorder that required
medical treatment, reassignment to light duty or time off ... Business groups
say the pending rules' breadth and vagueness would drive up their cost of
compliance—their estimates range from $14 billion to $80 billion a year—and
would wrongly cut into business productivity and profitability. OSHA and Labor
Department officials, meanwhile, say the rule is intended to be flexible and
would not require most companies to act. While costing employers $4.2 billion
annually, they say, the rule would also save them $9 billion a year in lost
productivity. This is the argument embraced by labor as well.
In the
drive to reshape federal rules, executive branch is seen as the path of least
resistance
GOP,
BUSINESSES REWRITE THE REGULATORY PLAYBOOK
By
Rebecca Adams May
5, 2001 pp 990-996
Talk
about efficiency. Even before tough new air conditioner energy-conservation
standards were published by the Clinton administration in January, several major
manufacturers began a concerted lobbying campaign to change the rules.
Then
George W. Bush became president, and the effort took on greater momentum. The
industry won sympathy from important GOP lawmakers such as Senate Majority
Leader Trent Lott of Mississippi, Senate Finance Committee Chairman Charles E.
Grassley of Iowa and members of the Texas congressional delegation. They
petitioned White House aides and officials from the Office of Management and
Budget (OMB), which oversees regulations. And they enlisted the support of
career Department of Energy officials who, according to industry leaders, had
recommended increasing air conditioner and heat pump efficiency by 20 percent
instead of the 30 percent that outgoing Secretary Bill Richardson had ordered.
Within
weeks, the drive paid off. On April 13, Bush political adviser Karl Rove told
reporters that the administration would increase the efficiency standards by 20
percent. The industry was satisfied but environmentalists were furious.
A
new form of regulatory activism appears to be taking hold in the
Republican-controlled government. GOP lawmakers, who for years were chafing
under President Bill Clinton's regulatory agenda, are moving to undo his
policies. And industry lobbyists—aware of the difficulties of trying to
shepherd legislation through the evenly divided Senate—are pushing hard for
the administration to use its executive powers to lessen the government burden
on business.
In
the Reagan years, Republicans complained of the "iron triangle"—an
unbreakable alliance among Democratic committee chairmen, agency officials and
interest groups that worked in concert to achieve common goals, whether it was
funding for special projects or protecting specific constituencies. Reagan OMB
directors David Stockman and James C. Miller III made it part of their mission
to break the triangle.
Now,
it appears, the old iron triangle has been turned on its head. Environmentalists
and consumer activists say they fear the formation of a new triad—composed of
industry officials, the White House and GOP committee chairmen—that leaves
them out of the equation.
"It's
fair to say they haven't been seeking us out for advice on how to proceed,"
said Debbie Sease, legislative director for the Sierra Club.
Today's
triangles may not have the permanence or secrecy that characterized the networks
of the past. But many regulatory experts predict that the new dynamic will
control the rule-making process in more than 50 federal agencies. Corporate
lobbyists, mindful of the Republicans' thin margin of control in Congress, are
expected to make their case directly to the White House and to political
appointees at the agencies, where they are likely to find a sympathetic ear.
"There's
a new level of belief that agency regulations are likely to be more helpful than
harmful," said Roy Blunt, R-Mo.,, House chief deputy whip. "For the
past eight years, no one ever thought that could be the case. It's mind-boggling
to be able to call former House staffers who are now in the White House or at an
agency to see what they can do to help us."
He
and other Republicans say that the administration is simply following the model
created by Clinton, who they argue pursued a policy of aggressive regulation,
especially in the areas of environment, health and workplace safety.
"I
think it's appropriate for this White House to use the administrative side as
aggressively as the previous administration," said Sen. Judd Gregg, R-N.H.,
a member of the Governmental Affairs Committee.
Gregg
expects one of the main tools that Republicans will use to change regulatory
policy will be OMB's Office of Information and Regulatory Affairs (OIRA), which
monitors every major regulation that agencies issue. The nominee to head that
office, Harvard professor John D. Graham, is known as an expert on and advocate
of risk analysis, a tool researchers use to evaluate the relative harm that can
come from various threats to human health and the environment.
Risk analysis is controversial because critics say that it can be used to undermine or undo regulations that society needs. But others say it can be useful to avoid imposing burdensome regulations on business when the risk is not really that great ...
The
Democrats' challenge is likely to become greater as Bush appointees—many of
whom come from the private sector, conservative think tanks and trade groups
that vigorously opposed Clinton policies—fill agencies and take full control
of the regulatory process.
"If
you think it's been rough so far, just wait," said William Kovacs, U. S.
Chamber of Commerce vice president for technology, environment and regulatory
affairs. He predicts big fights
over some of the environmental issues, such as clean air standards that were
left unresolved in the Clinton years.
Business
groups and their congressional allies have a long list of goals. Among them:
•
They expect the Occupational Safety and Health Administration to take a
cooperative rather than confrontational approach in getting business to improve
work conditions. Republicans have
long argued that this agency is so overbearing and punitive that businesses are
afraid to seek its help in addressing problems.
•
The health care industry and House Ways and Means Committee Chairman Bill
Thomas, R-Calif., have long sought to overhaul procedures used by the Health
Care Financing Administration (HCfa), which regulates Medicare and Medicaid, and
curtail its power. Now that top hospital lobbyist Thomas A. Scully has been
nominated to head the agency, Thomas and the industry are more likely to get
what they want.
•
The Bush administration is preparing a national energy plan, scheduled to be
released in the next few weeks, that is expected to contain a number of
proposals that can be accomplished by administrative action, such as allowing
increased drilling on public land and easing regulatory restrictions on energy
producers. Other agencies are considering low-profile ways to help ease the
regulatory burden on businesses.
Undoing
Clinton's Rules
During
his final weeks in office, Clinton issued a number of rules that Republicans say
were traps deliberately set to put Bush in politically difficult positions.
Clinton signed off on more than 50 regulations after the election, prompting
Bush spokesman Ari Fleischer to call him a "busy beaver" in his final
days. Republicans note that it is not unusual for incoming presidents to conduct
a broad review of last-minute rules signed by their predecessors.
"Some
regulations that the Clinton administration put forward were blatantly
political," said Rep. Christopher Shays, R-Connecticut "And I believe
that some of them were done to stiff this administration."...
Thus
far in his term, Bush has already signed legislation (PL 107-5) to kill a
Clinton ergonomics rule opposed by many major business groups, who argued that
it would cost too much to implement. He has also signaled his intention to
reverse or revise Clinton regulations, including one to toughen cleanup
standards for hardrock mining operations.
Bush
also stoked public criticism by reneging on a campaign pledge to regulate carbon
dioxide and by rejecting the Kyoto Protocol on global warming.
Perhaps
the most controversial move was reversing a Clinton rule to reduce the levels of
arsenic in drinking water. The rule, issued in December, would have lowered the
amount of arsenic permitted in drinking water to 10 parts per billion from 50
parts per billion. EPA Administrator Christine Todd Whitman announced March 20
that the rule would be withdrawn, leading Democrats and some GOP moderates to
complain that the administration was out of touch with the public. Some
political scientists believe the issue may have tipped the political scales.
Bush's
regulatory strategy will be labeled in two categories, "Before arsenic and
after arsenic," said Gary Bass, director of OMB Watch, a group that
monitors the agency.
George
C. Edwards III, professor of political science at Texas A&M University and
director of the Center for Presidential Studies in the Bush School of Government
and Public Service, said that outcries like the one over arsenic may force the
White House to voice more concern about the environment.
"They
got a negative reaction to the first regulatory decisions on environmental
protection," Edwards said. "It's not what they actually meant...and
they've been playing catchup ever since. That fact may temper them.."
Complaints
from environmental activists—and moderate Republicans, who fear a backlash
from suburban voters in 2002—have caused the White House to become more wary
about overturning Clinton rules—and more savvy about explaining any changes.
Bush announced several pro-environment moves the week of April 16, including
decisions to uphold Clinton rules restricting wetlands development and lowering
the levels at which factories must report lead emissions.
The
White House also has upheld Clinton regulations involving complex medical
privacy rules and tougher emission standards for diesel engines. But those
actions have not muted criticism. Consumer groups point out that the Bush
administration agreed to change the privacy regulations largely because health
industry groups protested that the rules would make it tougher to dispense
prescriptions and treat patients.
The
president's decision to uphold Clinton's diesel fuel emission standards pleased
automakers as well as environmental groups. According to energy industry
lobbyists and environmentalists, however, the administration is quietly
conducting a study that could lead to the rules being relaxed.
Observers
predict the administration will always have a strong conservative and
pro-business ideology at its core, but they say it is now presenting a more
cautious public face to stem concerns.
Graham's
Role
GOP
lawmakers are encouraging the administration to consider the costs and benefits
of any new rules on business, including rules that were proposed during the
Clinton years. The focus of that effort will be the OMB's regulatory affairs
office.
"This
administration will take a responsible, conservative approach," said Senator
Rick Santorum, R-Pennsylvania. "We'll do it in a way that's supported by
the evidence, and not to appease interest groups."
OMB
and Congress have a long history of conflict. During Republican administrations,
Democrats charged that OMB officials were delaying, changing or killing
regulations ordered by Congress and written by government experts. The agency
would write a rule, OMB would put it under "review," sometimes
indefinitely, and lawmakers would protest.
Reagan
beefed up the agency's oversight power by issuing an executive order in 1981
that required agencies to prove that a regulations's benefits would
"outweigh" its costs—a standard Democrats said was often tough to
prove. Later, Reagan banned agencies from issuing any regulatory policies that
were not approved by OMB at the start of each year.
Democratic
chairmen in the House were outraged by Reagan's actions, and John D. Ingell,
D-Michigan, then head of the House Energy and Commerce Committee, routinely
called officials to Capitol Hill and demanded that they explain regulatory
decisions.
"Dingell
would beat up on me all the time," said Christopher DeMuth, president of
the American Enterprise Institute and an administrator of OMB's regulatory
affairs office under Reagan.
In
1986, the Democratic-controlled House forced a showdown by deleting funds for
OMB's regulatory division from the fiscal 1987 budget. Lawmakers restored the
money after OMB director Miller and Wendy Lee Gramm, head of the regulatory
affairs office, agreed to make the rule-making process more transparent by
disclosing White House documents related to regulatory decisions.
In
the first Bush administration, Democrats pushed through a number of bills to
strengthen clean air standards. And in each case, the Democratic-controlled
Congress, aware of OMB's power, was very specific about how the agencies were to
implement the laws such as amendments to the 1990 Clean Air Act (PL 101-549).
"We
had to write a lot of detail in the law because we were afraid to leave it up to
EPA," said Henry A. Waxman of California, ranking Democrat on the House
Government Reform Committee. "We had to mandate things that otherwise would
be [optional] if you had confidence that the people administering it had the
same goals in mind as the authors."
After
Clinton took office in 1993, he tried to open the regulatory process further
when he issued an executive order requiring the White House to document any
closed-door meeting between OMB officials and outside groups on a regulation.
The order, which also required the cost of a regulation to "justify"
its benefit, is still in effect.
With
the GOP controlling the White House and Congress, Dingell said he may use discharge petitions—which members may sign if they want to
bring a bill from committee directly to the floor—to publicize the issues. But
he realizes his options to force real change on a GOP administration are
limited.
"I
will still do what I can," Dingell said. "But I [could] do a lot more
if I were still chairman."
Blocking
Regulations
The
White House and Congress have several weapons beyond writing a new law that they
can use to kill or alter regulations. They include:
• Reopening
a rule. The 1946 Administrative Procedures Act allows that White House to
reopen the rulemaking process by soliciting new public comments, as it did in
February with the medical privacy regulation. After considering the comments,
the president can either modify a regulation or allow it to take effect without
changes.
•
Enforcement. They can also limit the funds available to agencies to
enforce regulations. Bush has proposed cutting the funds of nine agencies and
the EPA in his fiscal 2002 budget, which could affect the enforcement of a
variety of labor, environmental, health and public safety regulations.
•
Congressional review. Congress can reverse a rule thorough the
Congressional Review Act (PL 104-121). Conservative lawmakers successfully used
it for the first time ever in march to kill the ergonomics regulation.
The
White House can indirectly reverse a regulation through the courts—either by
mounting a weak defense of a rule written by a previous administration or by
seeking a settlement with plaintiffs whose arguments it supports. This tactic is
a gamble because judges can be unpredictable and their rulings can be appealed.
But since the creation of numerous health and safety laws in the 1970s, legal
challenges to regulations have become a common tool of both business and
public-interest groups.
"One
of the best ways to get rid of a regulation is to get a friendly lawsuit,"
said Jim Tozzi, deputy administrator of the regulatory office under Reagan.
For
example, the administration tacitly encouraged a suit brought by the timber
industry and western state officials against a Clinton regulation that blocked
road building in 58.5 million acres of national forests.
In
the suit, the Boise Cascade Corp., a major timber company, argued that the rule
was not legal because the Clinton administration did not follow the property
procedures in writing it. Environmentalists had been watching the case to see
whether the Bush administration would mount a vigorous defense of the rules. But
on May 4, the administration announced a compromise under which the rule would
go forward, but could be changed to allow forest plans to be written on a
case-by-case basis, with input from local officials.
The
judge in the case, U. S. District Court Judge Edward J. Lodge, had indicated
that he thought the Clinton process was "grossly inadequate." He must
decide by May 12 whether to block the rules.
Environmental
groups, which cited the roads issue to attack Bush's environmental record, said
the administration's plan was actually an effort to undermine the regulation.
The groups had used an advertising campaign that features bucolic images of
forests and wildlife, then shift jarringly to pictures of trees falling to the
sound of chainsaws. A narrator says timber companies are trying to destroy the
nation's forests, and that Bush may let them. The ad effort, by the Heritage
Forests Campaign, released new ads the week of April 30 calling on Bush to
strongly defend the rules.
The
White House is also said to be considering settlements in several lawsuits that
seek to overturn Clinton regulations, including rules to phase out the use of
snowmobiles in national parks and the reintroduce grizzly bears to areas in
Idaho and Montana. In another suit, business groups are seeking to kill more
stringent reporting requirements for lead emissions. In this case, Bush kept the
Clinton rule, which required more businesses to report their lead emissions.
Environmental
Defense and the Natural Resources Defense Council are joining as many suits as
possible in defense of the Clinton rules. The groups say they will fight hard to
prevent settlements.
Political
Fallout
Democrats
say they expect a political backlash from the Bush administration's regulatory
decisions.
"We
have an election in two years," said Sen. Barbara Boxer, D-Calif. "Let
the people decide whether President Bush is being reasonable."
This
month, the Sierra Club is running ads criticizing Bush on the environment. A
coalition of environmentalists is also issuing daily faxes, e-mails and calls to
supporters to generate concern about Bush's energy policy.
Bush's
moves on the environment have "invigorated us to try to find ways to stop
the administration," said Patty Murray, D-Wash., chairwoman of the
Democratic Senatorial Campaign Committee.
A
Democratic party television ad released April 29 attacks Bush's arsenic decision
and criticizes a proposal by the Department of Agriculture, later scuttled, that
would have ended testing of school lunch meat for salmonella.
The
ad features a young girl asking, "May I please have some more arsenic in my
water, Mommy?" A boy follows with the question, "More salmonella in my
cheeseburger, please?"
Administration
officials call the ad unfair—Rove called it
"laughable"—particularly since the salmonella proposal was never an
official position.
"This
administration will be judged over the totality of its record," Rove said
on NBC's "Meet the Press" April 29.
In
the meantime, such ads can be expected to continue as the two parties battle
over the role and scope of the regulatory process in getting federal policies
changed. And just as industry can effectively mobilize its allies in Congress
and the agencies, experts say, so can their adversaries.
"We're
seeing a fundamental shift in power," said Harvard's King. "When there
are shift like this, there is always some turmoil...it's natural."
MEMBERS
CONSIDER STREAMLINING ENVIRONMENTAL REVIEW,
PERMIT PROCESS FOR ROAD AND AIRPORT EXPANSIONS
By
James C. Benton May19,
2001 page 1163
Having
committed billions of dollars to fund new highway and airport projects across
the country, members of Congress are now looking for ways to expedite their
construction.
"The
average time for a highway, I believe, is 12 years, [and] the average time for
an airport is 15, and that's just unacceptable," House Transportation and
Infrastructure Chairman Don Young, R-Alaska, said in a recent interview.
Subcommittees
of Young's panel will hold a series of hearings the week of May 21 to gather
information on problems with transportation backlogs.
The series is dubbed "congestion week" by committee staffers.
Among
the options under consideration is ordering federal, state and local agencies to
speed building permit applications by conducting reviews, concurrently instead
of consecutively.
President
Bush's fiscal 2002 budget calls for some $35.3 billion for highway
improvements—an amount consistent with the 1998 surface transportation law (PL
105-178)—and $12.9 billion for airport improvements under the 2000 Federal
Aviation Administration (FAA) reauthorization (PL 106-181).
Many
members believe the additional money will not produce projects fast enough
unless environmental reviews and the permitting process are streamlined. ...
Congestion
Worsening
Environmentalists
and others are skeptical of pushing major project reviews along too quickly,
especially under the Bush administration's deregulation agenda. Regulatory
"reform" occupies a significant place in proposals like the energy
policy the White House unveiled May 17.
Yet
worsening congestion has brought a growing number of calls from members of
Congress for some kind of program to ensure that needed projects are not
unnecessarily delayed.
Evidence
of the problem abounds. On May 7,
the Texas Transportation Institute issued a report that said traffic congestion
in 1999 cost the nation $78 billion, forced travelers to spend 4.5 billion hours
and 6.8 billion gallons of fuel sitting in traffic, and caused an average delay
of 36 hours per person per year.
An
FAA study issued in April found that demand for air travel has reached the point
where some of the nation's busiest airports have more flights scheduled for
landings or takeoffs than they can handle. ...
Rep.
John L. Mica, R-Florida, suggested in a May 16 interview that
"environmental streamlining" could mean combining aviation easement
provisions, or cutting the time for state or local agencies to review permits by
making permit processes run concurrently.
James
L. Oberstar of Minnesota, the ranking Democrat on the House Transportation
Committee, is eager to see what proposals emerge from the hearings, but he will
seek to ensure a balance between accelerating projects and protecting the
environment, Democratic aids said. "He's not going to sacrifice the
environment to build a runway," an aide said.
At
an April 4 hearing on congestion, Transportation Secretary Norman Y. Mineta said
he has made reducing transportation congestion a priority, and he supports the
principle of streamlining permit and construction processes for airport runways.
"I
knew that, in addition to safety, a central challenge was addressing the gap
between the demand for transportation and the capacity of our transportation
infrastructure," Mineta said at a recent House Appropriations subcommittee
meeting.
"Now
we face the stiff challenge of building the necessary capacity to match that
demand," he said.
THE
ANTI-FUN POLICE ARE WATCHING
Should government be in the business of regulating rollerblading and
bungee-jumping? OK, how about
hopscotch?
By
Jonathan Walters
(Governing
March 3, 1993
p. 23)
As
if Big Government didn't have a bad enough reputation, it seems that a growing
number of states and localities just don't want some people to have any fun.
Skateboarders
are being banned from public plazas. Bungee-jumpers are being grounded.
Whitewater-rafting companies are being scrutinized for tougher
regulation, and so are rock-climbing schools. Even rollerbladers are being
slapped with fines in some jurisdictions for the transgression of being neither
car nor pedestrian, but a legally unacceptable combination of the two.
The
curmudgeon capital of the country, though, has to be Charlestown, Indiana. There
it is now illegal to play hopscotch, soccer, baseball or basketball in streets,
alleys or even on sidewalks. Scofflaw
tykes can be slapped with a $100 fine. There is now provision—yet—for
requiring them to finish their vegetables, as well.
What
prompted Charlestown's wave of cranky rule making? "There was a group of
kids regularly playing basketball in the streets," says Mayor Bob Braswell.
"The city attorney said we couldn't discriminate against just them."
So the city made its ban as broad as possible.
Braswell hints that the ban will be very selectively policed.
But
while that may be the current intention, such ordinances have a way of taking on
a life of their own, many years after being passed, points out David Cooper, who
monitors government activity affecting rollerbladers for the International
In-Line Skating Association.
Rollerbladers
have been getting pulled over mostly because of a wave of anti-roller skating
laws passed in the 1970s aimed at keeping young kids and their clamp-on skates
off the streets and out of harm's way. Cooper argues that rollerbladers are a
whole new breed of skater—most of them adults, at that.
Ancient
ordinances notwithstanding, there does seem to be some other force at work here.
Some insist that government is just doing its job, protecting people from public
nuisances and unscrupulous thrill-providers who don't take proper safety
precautions. Others fret about what they see as the creeping influence of
self-appointed safety types out to protect fun-seekers from themselves.
The
extent to which that is a property role for government has long been debated
among public officials, of course. In Vermont, bungee-jumping outfits may have
to get certified, but if people want to leap, it's their business, thinks
Vermont Governor Howard Dean, who, in an interview with the Burlington Free
Press, summed up his sentiment on a possible statewide jumping ban.
"You can't outlaw everything that you think is insane. I suppose
people have the right to do crazy things."
In
Vermont, maybe, but apparently not in that crucible of individual freedom, New
Hampshire, where "Live Free or Die" is stamped on every license plate.
The state has banned all bungee-jumping from balloons and cranes.
"It's just like regulating restaurants," argues Robert E. Dunn
Jr., assistant commissioner of the New Hampshire Department of Safety. "We
have to assure the public that it is safe."
That
probably is not the best comparison. After all, who goes to McDonald's for a
burger and a thrill instead of a burger and a shake? Better would be to cite
government's general role in making sure that fly-by-night businesses don't jump
into activities where safety is of paramount concern.
So
give government the benefit of the doubt on bungee-jumping. But rollerblading?
"[Governments] argue that you have hotdogs taking out old
ladies," says the rollerbladers' Cooper. His suggestion is simple and
logical: Go after the rogue skaters, just as you would a lousy driver.
Don't broad-brush.
Cooper
is confident that rollerbladers will ultimately win the day. "It's because
of our demographics. We're not your screw-the-establishment types. We carry our
cellular phones when we skate."
MONIQUE
IN TANGLES
Wall
Street Journal
June 18, 1993
Monique
Landers is a 15-year-old high school student who already has her own small
African hair-braiding business. That
is she did until six weeks ago when the state of Kansas shut her down
because she didn't have a cosmetology license.
Monique
learned she had to close her business just after she returned from New York,
where she had been honored as one of five Outstanding High School Entrepreneurs.
An official at the Kansas Cosmetology Board read about her award and
promptly demanded that she desist.
Monique
started her business in Wichita last year with the help of the National
Foundation for Teaching Entrepreneurship, NFTE was founded in 1987 by Steve
Mariotti, a New York City businessman who decided after he was mugged that
inner-city youths should be given an alternative to life on the streets.
His program teaches students in 10 cities how to develop a business plan
and market a product or service. A
remarkable 84% of graduates report they use the knowledge to earn money for
themselves.
Monique
started "A Touch of Class," and began braiding and washing the hair of
friends and family members. She
made a profit of about $100 a month.
This
was too much for the Kansas Cosmetology Board, which warned her it was illegal
for her to in any way touch hair for profit without a license.
If she didn't stop, they wrote the youngster, she was subject to "a
fine or imprisonment in the county jail or both."
Nancy
Shobe, the Board's executive director, says Monique should go to a yearlong
cosmetology school if she wants to braid hair.
Monique says few schools even teach braiding, and anyway none will take
her until she turns 17. "I need to finish school first," she told us.
"The Board won't let me earn my own money, and won't let kids like
me learn how to take care of ourselves."
The
Board acted after it received complaints from hair salons and cosmetology
schools. Monique's customers didn't
complain. In shutting her down it is doing what licensing boards routinely do:
impose right and unreasonable barriers to newcomers who want to enter a
business.
Last
year, we reported on Taalib-Dan Uqdah, a Washington, DC hair-braider, who was
almost shut down because he posed a threat to other salons. John Stossel, a
reporter for ABC's "20/20," says his 20 years of consumer reporting
have taught him that licensing board "rules can end up hurting more people
than they protect."
Monique
is one of the victims of those rules. She mainly wants to better herself. One of
her brothers has been in jail, and a sister has been expelled from school.
"I think owning your own business is a way of being free," she says.
"If more kids knew they could grow up to be their own boss they would be
more responsible and cause less trouble."
Perhaps
Monique has technically violated Kansas's cosmetology statute. If so, it's time
it and the licensing laws in other states that regulate 500 occupations,
covering 10% of the nation's work force, were overhauled. A valuable program
such as NFTE has enough trouble turning at-risk youth around without having to
battle petty bureaucrats at the same time.
TAKING
A STAND ON REGULATION
By Helen P.
Rogers
pp. 80, 81, 82
Humptey
- Polls show people are willing to sacrifice for common goals that are judged to
be good for today's society and the future.
Dumptey
- Judged by whom and using what criteria?
Not
if the trade-off means wasting the time and intelligence of men and women who
sit in judgment rather than turning their energies and abilities to more
productive endeavors.
Not
if the trade-off means wasting the time and intelligence of those who must take
time away from home, business, trade or profession to fill out forms and appear
before numerous hearings and commissions.
Not
if the trade-off is a huge and unnecessary expenditure of money for
archaeological reports, environmental impact reports, clearances by engineers,
architect plans and so on and so forth whether opinions and skills of these
professionals are needed or not. Requirements
such as these contribute to high real estate prices, lifting property ownership
to heights beyond the average consumer.
Who
is the better judge? A detached body of individuals or those who are going to
invest their time and money in the project? Who has the most at stake if a
project or a product turns out to be safe or dangerous? The potential
beneficiaries or the potential victims?
Humptey
- On the other hand many communities have greatly benefited from successful
growth management. The atmosphere engendered by good government and civic
leadership is what this country is all about. Good managers keep the business of
government moving forward efficiently and effectively.
Dumptey
- That may be in specific instances and who is not for good, efficient,
effective government? I certainly am not against all forms of government, and I
might well agree that where community interest, rather than narrow parochial
concerns are represented, everyone benefits. But more often than not boards,
supervisors, commissions and what have you, operate in an arbitrary and
inconsistent manner keeping citizens on their toes and fearful. People can be
productive only if they can be certain that the rules will not be changed and
the carpet won't be pulled out from under them. The existence of consistent
plans lets everyone know the rules of the game and what is expected and then
manufacturers, builders, investors can all confidently and positively. The fewer
the rules and regulations the easier it is to instill this necessary feeling of
certainty.
Humptey
- But the whole point of planning commissions and master plans is to look ahead
and prevent damage.
Dumptey
- I think communities have given too much power to planning departments and
other representative groups in recent years. It's gotten to the point where
these not-necessarily-qualified-for-anything-in-particular citizen groups
dispense their yeas or nays in a kingly manner, breathing life or death into
projects while fellow citizens, for the most part, acquiesce like good subjects.
I
understand that many people believe planning is an improvement over a free
market, but I don't for a moment think that is true. For one thing the
trade-offs (loss of freedom and productivity) are too great to be considered an improvement
in my estimation. We are reverting to a static time in history when scarcity
was rampant and it was commonplace to ask "May I please be grated the
ability to do what I desire with my property?" What else are permits? There
has been a very real failure both to define and uphold property rights. A lot of
our problems are caused by the absence of the principles of property rights,
free markets and individual accountability.
Humptey
- You must admit the success of intervention depends on the branch of government
that does the intervening.
Dumptey
- I might agree, especially when one branch of government overrules another. For
example the Hyatt Corp. spent eleven years to get approval to build a 400 room
hotel on a one-time oil field a few miles north of Santa Barbara. The process
included 1,000 pages of environmental analysis and public consideration of
alternative sites for the hotel. Local activists wanted studies of locations
that didn't have zoning for visitor use or weren't even owned by Hyatt—any
ploy to stop the company. Thank goodness the California Supreme Court found the
procedure ridiculous. It said "Rules regulating the protection of the
environment must not be subverted into an instrument for the oppression and
delay of social, economic or recreational development and advancement." I
say bravo!
Humptey
- I don't consider courts government intervention. How about an example
of societal good resulting from laws and regulations—from legislative
entities?
Dumptey
- I've got those too. At the end of 1990 the San Francisco Board of Supervisors
passed a resolution which has got to be considered big time intervention; in
fact, it amounts to mammoth micromanaging of the workplace. In an attempt to
alleviate straining and neck injuries by employees, the new law would mandate
the type, size and height of chairs and video displays for workers in every
business with more than 15 employees. These publicly elected supervisors have
decided that employees of private companies must have a fifteen minute break
every two hours. Would you call this a social good? I would call it a misuse and
inexcusable expansion of power. How will the resolution be enforced? It brings
the promise of more law suits and adds one more disincentive to employment.
Humptey
- I take it you are against supervision by all kinds of boards, commissions, or
committees. Many people don't like micromanagement by the federal government,
but you seem to be against almost any regulation.
Dumptey
- Even excessive regulation by kings. Let me tell you a story:
When
Louis XIV was king of France he tried his hand at micromanagement. He managed to
bring the entire French economy almost to a standstill. The textile industry was
in a shambles as weavers waited for permission to weave their cloth. The
regulations concerning that one industry filled a book more than 3,000 pages
long. The weavers of Saint-Maxixent negotiated with the government for four
years in order to gain permission to use black warp. When the permission finally
came it did them no good because they were never able to get permission to use
black woof and it takes "two to weave"—two threads, that is.
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