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POWER STRUGGLE Lawmakers probe BUSH DIRECTIVE, fearing decrease in their influence on regulations LEADING DEMOCRATS in Congress & Technology Subcommittee on Investiga are taking notice that President George tion & Oversight, said, "This order allows W. Bush is pushing to increase the White political appointees to dictate decisions House's influence over the actions of fed out of the shadows on health and safety eral agencies, including the regulation of issues, even if impartial scientific experts pollutants and pharmaceuticals. Although decide otherwise." several of the Bush moves were criticized, The Bush Administration brushes aside the latest directive, which adds layers of these concerns. Steven D. Aitken, acting bureaucracy to the process of regulating administrator of information and regula products and services and requires agencies tory affairs at the White House Office of to provide a written economic rationale for Management & Budget (OMB), told the their rules, is getting some action. judiciary subcommittee that the directive Two panels in the House of Representa is about good government and improving tives held back-to-back hearings on the way the federal govern Feb. 13 on this particular Bush direc ment does business. tive, which is viewed as a threat to Sally Katzen, who WHITE HOUSE Congress' power to direct agencies to headed OMB's Office of CLOUT The Bush Administration issue regulations by writing specific Information & Regulatory says a recent provisions into federal laws (C&EN, Affairs during the Clinton presidential Jan. 29, page 10). Administration, testified directive at both hearings. Katzen For example, the Clean Air Act re improves how the government described Bush's new di quires the Environmental Protection operates, but rective as part of a "steady Agency to set limits on the level of pol critics say it will and unwavering effort to lutants, including ozone, allowed in slow the pace of the air. Congress stipulated in the law federal regulation. consolidate authority in that these air standards must be based solely on what is required to protect human health with an adequate margin of safety. Bush's new directive may affect congressional mandates such as this Clean Air Act provision, Congressional Research Service researcher Curtis W. Copeland told the House Judiciary Subcommittee on Commercial & Ad ministrative Law. Rep. John Conyers Jr. (D-Mich.), chairman of the House Judiciary Com mittee, said at the hearing that he is concerned that the directive will be a barrier to proposing and enacting new environmental, safety, and health rules. Rep. Linda T. Sanchez (D-Calif.), chair man of the Judiciary Subcommittee on OMB and further restrict agency autonomy Commercial & Administrative Law, said, and discretion." "The main thrust of this new order appears to shift control of the regulatory process The first step in this effort, she said, was from the agencies—the entities that have OMB's 2002 guidelines on the quality of the most substantive knowledge and expe information, including scientific data, that rience—to the White House." could be distributed by the federal govern At the second hearing, Rep. Brad Miller ment (C&EN, Feb. 4,2002, page 21). The second step, Katzen said, was OMB's 2003 (D-N.C), chairman of the House Science WWW.CEN-0NLINE.ORG
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proposal for peer review of science to be used as the basis of regulation, a proposal that caught plenty of flak, including from the National Academy of Sciences (C&EN, Feb. 2,2004, page 21). OMB took a third step in 2004 when it prescribed instructions for agencies preparing science and economic documents that justify new regulations. A fourth, according to Katzen, was OMB's 2006 highly controversial proposal that would establish government-wide standards for federal risk assessments. Last month, the National Research Council said this plan was fundamentally flawed and should be scrapped (C&EN, Jan. 29, page 32). "Although each step can be justified as helping to produce better regulatory deci sions, the cumulative effect is overwhelm ing," said Katzen, who says she supports White House review of new regulations. "Requirements are piled on requirements that the agencies must satisfy before they can issue regulations, even those that Con gress authorized and even instructed them to issue," she told the subcommittees. Despite making these extra demands, OMB hasn't asked Congress to supply agencies with more money to carry them out, Katzen continued. "The result is that fewer regulations can be issued," she said. Also explored at the hearings was a provision in Bush's directive encourag ing agencies to prepare rules by using a ^ time-consuming, triallike procedure ^ that has not been used for decades. I Aitken of OMB said the directive simZ ply encourages agencies to consider £ use of this tool, which would involve § testimony from and cross-examinao tion of those for and against particular | regulations as they are crafted. A Con8 gressional Research Service report g prepared by Copeland said if OMB k can convince regulators to follow this procedure, "agency rulemaking could become even more 'ossified' than it already is." Congress still is deciding how it might respond to the directive. At the hearings, some witnesses critical of the Bush order suggested that lawmakers place provisions in annual spending laws to forbid the use of federal money to implement the directive. One pointed out that, in the past, Congress has overturned presidential directives. Others recom mended continued oversight hearings to track the effect of the directive. Lawmak ers are weighing their options.—CHERYL HOGUE
