http://www.nytimes.com/2007/01/30/washington/30rules.html?ex=1327813200&en=cfa98d503efced9a&ei=5089&partner=rssyahoo&emc=rss
President Bush, seen here at the White House Monday,
has signed an executive order that in effect
increases his control over guidelines the government
issues regarding health, safety, privacy and other
issues.
By
ROBERT PEAR
Published: January 30, 2007
WASHINGTON, Jan. 29 — President Bush has signed a
directive that gives the White House much greater
control over the rules and policy statements that
the government develops to protect public health,
safety, the environment, civil rights and privacy.
In an executive order published last week in the
Federal Register, Mr. Bush said that each agency
must have a regulatory policy office run by a
political appointee, to supervise the development of
rules and documents providing guidance to regulated
industries. The White House will thus have a
gatekeeper in each agency to analyze the costs and
the benefits of new rules and to make sure the
agencies carry out the president’s priorities.
This strengthens the hand of the White House in
shaping rules that have, in the past, often been
generated by civil servants and scientific experts.
It suggests that the administration still has ways
to exert its power after the takeover of Congress by
the Democrats.
The White House said the executive order was not
meant to rein in any one agency. But business
executives and consumer advocates said the
administration was particularly concerned about
rules and guidance issued by the Environmental
Protection Agency and the Occupational Safety and
Health Administration.
In an interview on Monday, Jeffrey A. Rosen, general
counsel at the White House Office of Management and
Budget, said, "This is a classic good-government
measure that will make federal agencies more open
and accountable."
Business groups welcomed the executive order, saying
it had the potential to reduce what they saw as the
burden of federal regulations. This burden is of
great concern to many groups, including small
businesses, that have given strong political and
financial backing to Mr. Bush.
Consumer, labor and environmental groups denounced
the executive order, saying it gave too much control
to the White House and would hinder agencies’
efforts to protect the public.
Typically, agencies issue regulations under
authority granted to them in laws enacted by
Congress. In many cases, the statute does not say
precisely what agencies should do, giving them
considerable latitude in interpreting the law and
developing regulations.
The directive issued by Mr. Bush says that, in
deciding whether to issue regulations, federal
agencies must identify "the specific market failure"
or problem that justifies government intervention.
Besides placing political appointees in charge of
rule making, Mr. Bush said agencies must give the
White House an opportunity to review "any
significant guidance documents" before they are
issued.
The Office of Management and Budget already has an
elaborate process for the review of proposed rules.
But in recent years, many agencies have circumvented
this process by issuing guidance documents, which
explain how they will enforce federal laws and
contractual requirements.
Peter L. Strauss, a professor at Columbia Law
School, said the executive order "achieves a major
increase in White House control over domestic
government."
"Having lost control of Congress," Mr. Strauss said,
"the president is doing what he can to increase his
control of the executive branch."
Representative Henry A. Waxman, Democrat of
California and chairman of the Committee on
Oversight and Government Reform, said: "The
executive order allows the political staff at the
White House to dictate decisions on health and
safety issues, even if the government’s own
impartial experts disagree. This is a terrible way
to govern, but great news for special interests."
Business groups hailed the initiative.
"This is the most serious attempt by any chief
executive to get control over the regulatory
process, which spews out thousands of regulations a
year," said William L. Kovacs, a vice president of
the United States Chamber of Commerce. "Because of
the executive order, regulations will be less
onerous and more reasonable. Federal officials will
have to pay more attention to the costs imposed on
business, state and local governments, and society."
Under the executive order, each federal agency must
estimate "the combined aggregate costs and benefits
of all its regulations" each year. Until now,
agencies often tallied the costs and the benefits of
major rules one by one, without measuring the
cumulative effects.
Gary D. Bass, executive director of O.M.B. Watch, a
liberal-leaning consumer group that monitors the
Office of Management and Budget, criticized Mr.
Bush’s order, saying, "It will result in more delay
and more White House control over the day-to-day
work of federal agencies."
"By requiring agencies to show a ‘market failure,’ "
Dr. Bass said, "President Bush has created another
hurdle for agencies to clear before they can issue
rules protecting public health and safety."
Wesley P. Warren, program director at the Natural
Resources Defense Council, who worked at the White
House for seven years under President Bill Clinton,
said, "The executive order is a backdoor attempt to
prevent E.P.A. from being able to enforce
environmental safeguards that keep cancer-causing
chemicals and other pollutants out of the air and
water."
Business groups have complained about the
proliferation of guidance documents. David W. Beier,
a senior vice president of Amgen, the biotechnology
company, said Medicare officials had issued such
documents "with little or no public input."
Hugh M. O’Neill, a vice president of the
pharmaceutical company Sanofi-Aventis, said guidance
documents sometimes undermined or negated the
effects of formal regulations.
In theory, guidance documents do not have the
force of law. But the White House said the documents
needed closer scrutiny because they "can have
coercive effects" and "can impose significant costs"
on the public. Many guidance documents are made
available to regulated industries but not to the
public.
Paul R. Noe, who worked on regulatory policy at the
White House from 2001 to 2006, said such aberrations
would soon end. "In the past, guidance documents
were often issued in the dark," Mr. Noe said. "The
executive order will ensure they are issued in the
sunshine, with more opportunity for public comment."
Under the new White House policy, any guidance
document expected to have an economic effect of $100
million a year or more must be posted on the
Internet, and agencies must invite public comment,
except in emergencies in which the White House
grants an exemption.
The White House told agencies that in writing
guidance documents, they could not impose new legal
obligations on anyone and could not use "mandatory
language such as ‘shall,’ ‘must,’ ‘required’ or
‘requirement.’ "
The executive order was issued as White House aides
were preparing for a battle over the nomination
of Susan E. Dudley to be administrator of the Office
of Information and Regulatory Affairs at the Office
of Management and Budget.
President Bush first nominated Ms. Dudley last
August. The nomination died in the Senate, under a
barrage of criticism from environmental and consumer
groups, which said she had been hostile to
government regulation. Mr. Bush nominated her again
on Jan. 9.
With Democrats in control, the Senate appears
unlikely to confirm Ms. Dudley. But under the
Constitution, the president could appoint her while
the Senate is in recess, allowing her to serve
through next year.
Some of Ms. Dudley’s views are reflected in the
executive order. In a primer on regulation written
in 2005, while she was at the Mercatus Center of
George Mason University in Northern Virginia, Ms.
Dudley said that government regulation was generally
not warranted "in the absence of a significant
market failure."
She did not return calls seeking comment on Monday.
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