The midnight deregulation express

President George W. Bush and President-elect Barack Obama meet in the Oval Office of the White House Monday, Nov. 10, 2008. (Photo/Eric Draper for The White House)

President George W. Bush and President-elect Barack Obama meet in the Oval Office of the White House Monday, Nov. 10, 2008. (Photo/Eric Draper for The White House)

It’s something of a tradition — administrations using their final weeks in power to ram through a slew of federal regulations. With the election grabbing the headlines, outgoing federal bureaucrats quietly propose and finalize rules that can affect the health and safety of millions.

The Bush administration has followed this tradition and expanded it. Up to 90 proposed regulations could be finalized before President George W. Bush leaves office Jan. 20. If adopted, these rules could weaken workplace safety protections, allow local police to spy in the “War on Terror” and make it easier for federal agencies to ignore the Endangered Species Act.

What’s more, the administration has accelerated the rule-making process to ensure that the changes it wants will be finalized by Nov. 22.

That’s a key date, Nov. 22. It is 60 days before the next administration takes control — and most federal rules go into effect 60 days after they have been finalized. It would be a major bureaucratic undertaking for the Obama administration to reverse federal rules already in effect.

“The Bush administration has thought through last-minute regulations much more than past administrations,” said Rick Melberth, director of OMB Watch, a nonprofit group that tracks federal regulations. “They’ve said, ‘Let’s not only get them finalized; let’s get them in effect.’”

So what are the new rules?

The Washington Independent has highlighted five regulations notable for their potential effect and the way they slipped through the regulatory process. Four could be finalized by Nov. 22. One was already — on Election Day.

1) The Department of Labor proposed a regulation Aug. 30 that changes how workplace safety standards are met. Labor experts contend that the administration, which previously issued only one new workplace safety standard and that under court order, is trying to make it a bureaucratic nightmare for future administrations to make workplace safety rules.

Here’s what it would do:

Currently, if the Occupational Safety and Health Administration (OSHA) or the Mine Safety and Health Administration (MSHA) want to introduce a new safety standard on, say, the level of exposure to toxic chemicals, it issues what is called a notice of proposed rule-making. This notice is published in the Federal Register and then is debated by labor, business and relevant federal agencies.

The new regulation would add an “advanced notice of proposed rule-making,” meaning OSHA and MSHA would have prove that, say, the said chemical was seriously harming workers.

This would open the door for industry to challenge the validity of the risk assessment and then, if necessary, the actual safety standard that may come from that risk assessment.

“The purpose of this sort of rule is to require agencies to spend more time on a regulation which gives them less of a chance to actually regulate,” said David Michaels, a professor of workplace safety at George Washington University, “You’re adding at least a year, maybe two years, to the process.”

The regulation has not been finalized.

2) The administration proposed a rule that changes the employer-employee relationship laid out in the 1993 Family and Medical Leave Act.

Here’s what it would do:

The Family and Medical Leave Act says that employers must give their workers 12 weeks of unpaid leave if they are sick or need to take care of a family member or newborn. The employer’s health-care staff can check the legitimacy of the family or medical leave claim with the employee’s doctor or health-care provider.

The proposed regulation would allow the employer to directly speak with the employee’s doctor or health-care provider. The employer could also ask employees to provide more medical documentation of their conditions.

Why such a rule — which may threaten an employee’s privacy — is needed is unclear. The only study the Labor Department has done on the act was in 2000. The department collected comments from employers before issuing the proposed regulation, but a report analyzing the comments was never issued.

The regulation also would give employees the right to waive their rights under the Family and Medical Leave Act, making it the first national labor law to be optional. Workers, for instance, cannot waive their right to earn a minimum wage or get paid more for overtime.

The regulation was finalized on Election Day.

3) The Department of Health and Human Services proposed a rule Sept. 26 that would expand the reasons that physicians or health-care entities could decline to provide any procedure to include moral and religious grounds. The language of the regulation says the department hopes to correct “an attitude toward the health-care profession that health-care professionals and institutions should be required to provide or assist in the provision of medicine or procedures to which they object, or else risk being subjected to discrimination.”

Here’s what it would do:

The rule change seems to apply to abortion. But there are already several rules that say physicians or health-care entities can deny an abortion request. Some women’s health advocates contend that the proposed regulation’s broad language is meant to increase the number of physicians who not only don’t provide abortions but don’t provide contraception.

“Contraception is certainly the target of this rule,” contends Marylin Keefe, director of Reproductive Health Programs at the National Partnership for Women & Families. “The moral and religious objections of health-care workers are now starting to take precedence over patients.”

The regulation is notable for another reason. A rule involving an employee’s religious rights must be referred to the Equal Employment Opportunity Commission (EEOC), yet the commission was never told of this proposed regulation.

A bureaucratic battled erupted when EEOC’s legal counsel, Reed Russell, wrote a regulation comment (PDF) blasting both the substance of the proposed rule and its disregard for the rule-making process.

The regulation has not been finalized.

4) On July 31, the Justice Department proposed a regulation that would allow state and local law enforcement agencies to collect “intelligence” information on individuals and organizations even if the information is unrelated to a criminal matter.

“This is a continuum that started back on 9/11 to reform law enforcement and the intelligence community to focus on the terrorism threat,” said Bush homeland security adviser Kenneth L. Wainstein in a statement.

Critics say it could infringe on civil liberties.

Here’s what it would do:

“It expands local law enforcement’s ability to investigate criminal activity that it deems suspicious,” said Melberth of OMB Watch. “But what’s suspicious to you may not be suspicious to me. They could be investigating community organizations they think are two or three steps away from a terrorist group.”

The regulation has not been finalized.

5) Before a federal agency approves any construction project — anything from building a dam to a post office — government officials must consult the Fish and Wildlife Service and the National Marine Fisheries Service. These two agencies enforce the Endangered Species Act, and they can veto any project that adversely affects an animal on the endangered species list.

Here’s what it would do:

A regulation proposed by the Interior Department Aug. 12 would end this approval process. “It destroys a system of checks and balances that have been in place for two decades,” claimed Bob Davison, senior scientist at Defenders of Wildlife. “[A federal agency] wants to go forward with a project that [it wants] to do. So you need an independent agency to look at the decision.”

Davison is not the only conservation advocate up in arms. The Interior Department has received 200,000 public comments, which may affect the final rule.

Or not — the department shortened the comment period from 60 to 30 days in its effort to get the regulation finalized.

In May, White House Chief of Staff Josh Bolten vowed that the administration would propose no regulations after June 1. He and White House spokesman Tony Fratto have repeatedly stated their contempt for what they call “midnight regulations.”

Yet with the exception of the Family and Medical Leave Act changes, all of these regulations were proposed after June 1. And if finalized, they will affect worker’s safety, women’s health-care choices, local police powers and endangered species.

“It was a pretty resounding election,” said Keefe of the National Partnership for Women & Families. “But this administration acts like it still has a mandate.”

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Matthew Blake

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