At the Last Minute, a Raft of Rules

Bush White House Approves Regulations on Environmental, Security Matters

By R. Jeffrey Smith and Juliet Eilperin
Washington Post Staff Writers
Sunday, November 30, 2008; A04

In a burst of activity meant to leave a lasting stamp on the federal government, the Bush White House in the past month has approved 61 new regulations on environmental, security, social and commercial matters that by its own estimate will have an economic impact exceeding $1.9 billion annually.

Some of the rules benefit key industries that have long had the administration's ear, such as oil and gas companies, banks and farms. Others impose counterterrorism security requirements on importers and private aircraft owners.

The rules cover obscure as well as high-profile social and economic issues: spelling out what kinds of records must be kept by sexually explicit performers and publications, exempting hobbyists' rocket motors from federal explosives controls, expanding the collection of DNA samples from federal prisoners.

In most cases, the new regulations are meant to spell out precisely how federal employees and private citizens must comply with laws passed by Congress. But the language in those laws often had ambiguities -- reflecting lawmakers' uncertainties or disagreements -- that gave Bush's appointees broad discretion to follow their policy preferences. Similar "midnight regulations" were approved by previous presidents.

In the environmental area, the latest rules indicate that the Bush administration wants to lend a final assist to industries that feel burdened by looming pollution controls or wilderness-protection laws. A rule approved by the White House three days after the presidential election, for example, would ease constraints on environmentally damaging oil shale development throughout the West, despite objections from Colorado Gov. Bill Ritter (D) and a majority of the state's congressional delegation.

On Nov. 17, Ritter called the decision "not just premature, it's hasty and I would even argue reckless." The Interior Departmentpublished it in the Federal Register Nov. 21, and it will take legal effect in 60 days from that date, or shortly after Congress reconvenes with a larger Democratic majority.

Top officials are still finishing work on other industry-friendly measures, including a regulation inhibiting the ability of Congress to halt logging, mining, and oil and gas extraction on public lands. Another rule would allow federal agencies to proceed with development projects without undergoing independent scientific review under the Endangered Species Act.

The Bush administration's impetus for hurrying to approve and publish so many of these regulations in the Federal Register is that those deemed to have a major economic impact -- defined by the Office of Management and Budget (OMB) as more than $100 million a year -- take legal effect after 60 days.

That means Nov. 21 was an important political deadline to ensure they become effective before President-elect Barack Obama's Jan. 20 inauguration. Less significant regulations, including many still in final stages of preparation, can take effect in 30 days or less.

Once the new rules take the form of law, Democrats can undo them only by three complicated means: through a new regulatory rulemaking that would probably take years; through congressional amendments to underlying laws; or through special, fast-track resolutions of disapproval approved by the House and Senate within a few months after the start of the new congressional session on Jan. 6.

Such a quick congressional rebuke has occurred only once before, in 2001, when a Republican-controlled Congress with President Bush's backing blocked a workplace safety regulation completed in the Clinton administration's final months. But recently, spokesmen for Senate Majority Leader Harry M. Reid (Nev.) and House Speaker Nancy Pelosi (Calif.) said Democrats were prepared to use that regulatory reversal power in consultation with Obama.

The leadership "will review what oversight tools are at our disposal regarding last-minute attempts to inflict severe damage to the law in the waning moments of the Bush administration," said Pelosi spokesman Brendan Daly.

"We will do whatever it takes," said Sen. Barbara Boxer (D-Calif.), the Environment and Public Works Committee chairman. "We're all over this. We've been waiting to pass on the information" to Obama's transition team.

A spokeswoman for the OMB, who declined to be named, said "the activity of the last three weeks is expected" because the White House had ordered that draft regulations be sent to the OMB for final review by Nov. 1. She said those regulations still being completed reflect "long-standing administration priorities."

Not every draft regulation got approved. On Nov. 19, the OMB ordered the Energy Department to kill new regulations that would have forced the federal government to buy more-energy-efficient lights, appliances, and heating and cooling systems. Daniel J. Weiss, climate strategy director at the Center for American Progress Action Fund, called that retreat from a 2005 requirement "unbelievable."

The White House also ordered the Environmental Protection Agency to withdraw a new regulation mandating that truck manufacturers install equipment to monitor vehicle pollution. It blocked the Department of Veterans Affairs from issuing new promised "user-friendly" guidance on burial and survivors benefits.

Those regulations that did get the nod came from 16 agencies and departments and will have a broad impact.

A controversial new Health and Human Services rule approved in late October, for example, cuts an estimated $2 billion in state Medicaid reimbursements for outpatient services. State officials had complained that it would jeopardize dental care for children, certain lab tests and speech and occupational therapy.

"The withdrawal of this rule should be one of the first orders of business for the Obama administration," said Rep. Henry A. Waxman (D-Calif.).

A controversial Justice Department rule approved Nov. 19 orders accelerated judicial review for death sentences. Legal groups had argued that speeding up executions makes errors more likely.

Another Justice rule approved Nov. 19 spells out the personal documentation that sexually explicit performers and related publishers must make available for government inspection. The underlying 2005 law, intended to keep minors out of such performances, has been challenged in the courts as a privacy violation by sexual swingers and the magazines in which they use explicit photos to solicit partners.

Nine days after the election, the White House approved a rule allowing trucking companies to force drivers to stay on the road for 11 hours without a rest. The American Trucking Association supported the rule, but lawmakers, unions and advocacy groups have called the extended hours dangerous.

Three days after the election, the White House also approved a regulation requiring that lenders provide home buyers with a simplified summary of their financial and legal obligations. The changes, under development at the Department of Housing and Urban Development since 2002, gained impetus after lending fraud contributed to the U.S. economic meltdown.

Industry opposed the reforms, however, and as a result, HUD dropped a proposal that settlement agents read a "closing script" as they complete a transaction.

Also, loan officers won the flexibility to change some fees based on new circumstances, which critics said would bring higher costs to borrowers. Compliance was postponed until 2010.

Business groups also successfully pushed back against provisions in counterterrorism regulations proposed by the Department of Homeland Security that could have required importers and sea carriers to detail shipment information to U.S. authorities before loading.

The "10-plus-2" rule -- so named for the extra pieces of information required -- was the most significant import industry security measure since the Sept. 11, 2001, terrorist attacks, trade officials said. But the National Association of Manufacturers and others said the rule would delay shipments by two to five days and cost as much as $20 billion a year.

As a result, the OMB agreed to give importers flexibility in complying and delay some of its implementation. It was published Nov. 24 as an interim rule, rather than a final one as originally proposed.

A second counterterrorism regulation, requiring that pilots of private planes transmit crew and passenger lists before departing or entering the United States, was approved by the OMB over that industry's opposition. But a separate regulation requiring rigorous security screening for larger private planes was delayed at industry's request.

Staff writers Spenser S. Hsu, Ceci Connolly and Carol D. Leonnig contributed to this report.