BUSH admin called on its REWRITING THE RULES of admin process

[Barry Carter]

Dear Friends,

I just got this from another list. I think it is germane to several current topics:

Subject: WALL: BUSH admin called on its REWRITING THE RULES of admin process
Date: Sun, 3 Nov 2002 03:48:33 -0800 (PST)
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REWRITING THE RULES

Report prepared by the Majority Staff of the Committee on Governmental
Affairs United States Senate
October 24, 2002

http://www.senate.gov/~gov_affairs/envrollbacksreport.pdf




This complete document is 90 pages long. Because Acrobat files are less
than transparent, I've converted the first ten pages ( Index plus Exec.
Summary) into Text format, for e-mail dissemination.

In background, this report describes a butchering of the laws governing
administrative procedures, laws which were designed - and enacted - during
the Roosevelt/Truman administrations to impose ideas of fairness, public
input and departmental accountability on all federal agencies having
dealings with the public.

So here you find Bush's brand-new Chief of Staff ordering all Federal
agency heads to immediately freeze the Federal regulatory process in its
tracks. With the ostensible purpose of scrutinizing rules that had been
recently placed in the pipeline, the administration had some rules killed
without going through the required process - of holding public hearings
for the taking of evidence to support rulechanges.

All the public can do - at this point - is to take the administration to
court, agency by agency, to have a judicial review of whether the rule
changes were justified by the evidence placed on the hearing record.

A few years down the road - the courts will find the agencies to have
acted unlawfully, but just how they will reverse illegal actions is
something else.


When the Dems regained control of the Senate, Sen. Liebermann became chair
of the Committee on Governmental Affairs; he commissioned the staff
report to be focussed on
(1) The Department of Agriculture's rule conserving roadless areas in
national forests:
(2) The Department of the Interior's (DOI) rule regulating hard rock
mining on public lands: and
(3) The Environmental Protection Agency's rule capping the permissible
level of arsenic in drinking water:
and how the agencies attempted to gut the rule, aginst the poublic's
interest.

Now read on

MichaelP

==========
http://www.senate.gov/~gov_affairs/envrollbacksreport.pdf

REWRITING THE RULES
Report prepared by the Majority Staff of the Committee on Governmental Affairs
United States Senate
October 24, 2002

Index

Executive Summary ............................................................3
Introduction and Background .................................................11
Findings and Conclusions ....................................................15
I. The Card Memo ......................................................15
A. What Happened ................................................15
B. Legal Concerns ................................................20
C. Public Participation ............................................24
II. The Bush Administration's Attempts to Change Three Rules ...............26
A. Roadless Area Conservation Rule ..................................27
1) The Rule's Development ...................................31
2) Department Delays and Reviews Rule ........................33
3) Legal Strategy ...........................................36
4) Forest Service Implementing Policies Less Protective than Rule ....45
B. Hardrock Mining ("3809") Regulation ..............................49
1) The Rule's Development ...................................53
2) Department Considers Suspension Options ....................58
3) Changes Address Industry Concerns ..........................65
C. Arsenic in Drinking Water Standard ................................68
1) The Rule's Development ...................................70
2) Arsenic Rule Targeted for Change ...........................74
3) Additional Study and Decision to Retain Standard ...............85


REWRITING THE RULES

Executive Summary

On January 20, 2001, the crowd that was gathered at the Capitol for
President Bush's Inauguration had barely dispersed when the President's
Chief of Staff Andrew Card took one of the most far-reaching and
significant steps of the administration's early days: he issued a
directive to all Federal agency heads to immediately freeze the Federal
regulatory process in its tracks. Although couched in terms more familiar
to the bureaucracy than the citizenry, the so-called Card memo had the
potential to diminish the health and safety of tens of millions of
Americans.

Virtually all Federal agencies issue rules and regulations to flesh out
and implement laws passed by Congress. From the school bus and gas
pipeline safety rules issued by the Department of Transportation, to the
drinking water and clean air regulations issued by the Environmental
Protection Agency (EPA), to drug safety provisions put out by the Food and
Drug Administration, Federal regulations and their enforcement are what
ensure that Americans' environment, safety, and health are protected.

Because of the tremendous impact these rules have on individuals and
businesses alike, agencies must go through a structured, open, and
transparent process before issuing them. That process - known as "notice
and comment" rulemaking - requires agencies to notify the public of their
intent to issue rules, to allow the public to comment on the proposals,
and then to justify, in writing and on the record, why the agencies
decided to do what they did.

By Inauguration Day 2001, literally hundreds of regulations had gone
through this process, had been published in the Federal Register - the
official annals of Federal agencies - and were ready to go into effect.
Yet without any notice to the public or opportunity for interested parties
to comment, the Card memo directed agencies to hold in abeyance a slew of
regulations until they could be reviewed by Bush administration political
appointees.

Although most of these rules passed quickly through the new
administration's political filter, some very important ones did not. A
number of regulations, some of which had been subjected to years of public
scrutiny and deliberation by government agencies, were put through an
unusual and, in some cases, time-consuming second look by the Bush
administration. In some of those cases, the second look amounted to a
death sentence for the rule.

Troubled by the Card memo's government-wide interference with the
regulatory process and the prospect of a reversal of so many regulations,
Senator Joseph I. Lieberman asked his Governmental Affairs Committee staff
to look into the matter. note 1

===========

note 1:
At the time he initiated the inquiry (in March 2001), Senator Lieberman
served as the Governmental Affairs Committee's Ranking Minority Member. On
June 6, 2001, he became the Committee's Chairman. The inquiry was
conducted pursuant to the Committee's jurisdiction "to study or
investigate . . . the efficiency and economy of operations of all branches
and functions of the Government with particular references to the
operations and management of Federal regulatory policies and programs." S.
Res. 54, 107th Cong., 1st Sess. (2001) (enacted). The report is based on
the review of thousands of pages of agency documents related to initial
administration decisions to suspend, delay, reconsider, or modify these
regulations. Committee staff began their review of these documents during
the Spring and Summer of 2001. The events of September 11, 2001,
interrupted the staff's inquiry and refocused Committee resources on
homeland security issues and oversight, postponing the release of this
report until now.

===========

Specifically, he charged his staff with reviewing the Card memo and its
effect on three important rules that were final before the Bush
administration came into office:

(1) The Department of Agriculture's rule conserving roadless areas in
national forests: In January 2001, the U. S. Department of Agriculture
(USDA) issued a rule prohibiting most road construction and logging in
roadless areas of national forests. The rule, which had been in
development since early 1998, sought to protect against piecemeal Forest
Service decisions that were altering and fragmenting ecologically valuable
areas. The rule sought to balance the need for appropriate development
with the reality that our national forests contain important watersheds
and fragile ecosystems that can be damaged by road development and
logging. The rule did not impose an absolute ban. Exceptions included the
removal of timber and the construction of roads so as to reduce the risk
of wildfires and to protect from the loss of life and property.

(2) The Department of the Interior's (DOI) rule regulating hard rock
mining on public lands: In November 2000, DOI issued a rule regulating
hard rock mining on public lands. The rule had been in development for
almost a decade and sought to mitigate hard rock mining's harmful effects
on soil, air, ground water, surface water, land-based and water-based
vegetation, and wildlife.

(3) The Environmental Protection Agency's rule capping the permissible
level of arsenic in drinking water: It has long been known that arsenic in
drinking water poses a wide variety of health risks. In January 2001,
after nearly two decades of study and years of development, EPA issued a
rule lowering the permissible limit for arsenic in drinking water. The
rule brought the U.S. standard in line with that set by the World Health
Organization and followed by the European Union.

The development of each of these three rules involved extensive public
comment and scrutiny, and each was accompanied by an on-the-record agency
justification of its actions. Nonetheless each was promptly subjected to
the new administration's second guessing. In the first two cases, the Bush
administration ultimately weakened or otherwise undermined the rules.

In the third, the rule initially adopted after years of scientific study
was challenged, but ultimately retained after months of additional - and
unnecessary - study. In the course of its inquiry, Committee staff
reviewed thousands of documents related to the agencies' initial
decisions. The story the documents tell is one of administration actions
characterized by a troubling lack of respect for long established
regulatory procedures - an attempt to give short shrift to public input
when possible, and to discount the science or record supporting the rules
under review.

COMMITTEE MAJORITY STAFF'S SPECIFIC CONCLUSIONS ARE OUTLINED BELOW:

Implementation of the Card memo was of questionable legality and gave an
early warning of the administration's lack of respect for the process of
developing regulations, including those providing a variety of important
environmental and public protections.

Under governing law, an agency may not adopt a proposal to delay or change
a rule's effective date without first giving the public an opportunity to
comment on the proposal. But when the Office of Management and Budget
(OMB) supplied Federal agencies with a model Federal Register notice to
implement the Card memo, it suggested that the agencies not seek public
comment, citing generally inapplicable exemptions to the public "notice
and comment" requirement. In disregarding these legal requirements to open
administrative actions to public review, the Bush administration set a
dangerous precedent. It treated an important legal requirement as an
annoyance and an obstacle, rather than a fundamental part of the framework
that makes regulatory change fair, transparent, and orderly.

The administration's decision to revisit the three rules at issue appears
based on a pre-determined hostility to the regulations rather than a
documented, close analysis of the rules or the agencies' basis for issuing
them.

There is no bar to agencies changing existing rules, but they may do so
only by going through the same regulatory process used for adopting rules
in the first place. If they ultimately choose to change the rule, agencies
must justify the reasons publicly and with reference to a specific record.

Staff's review of the documentation of three agencies' initial decisions
to propose to suspend or otherwise undermine the rules under review
suggests a disregard for analysis as to whether change was needed. At the
Departments of the Interior and Agriculture, the agencies approached the
decision to pursue suspension of the rules almost exclusively as a
question of "how," not "whether." At EPA, the documents suggest no
substantive analysis of the science underlying the rule before the
administrator proposed to suspend it. Again, the suggestion that the
results of a lengthy and open process are to be reopened without any
analysis indicating the error of the original result, at a minimum, speaks
volumes about the administration's respect for the value of the rulemaking
process and the public's role in it.

The administration, by choosing not to defend the Agriculture Department's
rule protecting roadless areas in national forests, used a third-party
lawsuit to undermine the rule without taking public responsibility for its
actions.

Before USDA's rule protecting roadless areas in national forests appeared
in the Federal Register, groups opposing the rule filed suit to overturn
it in Federal court. USDA - which had decided to postpone the rule's
effective date without any apparent analysis, research, or systematic
review of either the substance or procedure associated with the roadless
rule, and considered options for how to rescind or revise the rule with
only a bare outline of identified deficiencies - took the opportunity
given it by the court challenge to abandon the rule by simply choosing not
to defend it in court. The use of stealth tactics rather than an
above-board, open rulemaking process was an unacceptable circumvention of
the law's requirements for public participation. The effective reversal
through acquiescence in litigation allowed the administration to adopt its
own policies and management directives reversing the rule's prohibitions
on timber harvesting and road construction without the scrutiny and
comment that should have been afforded to the public - and without the
assumption of responsibility for its actions that flows from a public and
transparent decision on the record.

The Bush administration's proposal to suspend the hard rock mining rule
was not based on documented substantive analysis, and the ultimate
decision to rescind parts of the rule will allow mining projects that pose
unwarranted environmental and health threats to continue. In contrast to
the two other rules reviewed by Majority staff, DOI's hard rock mining
rule was not subject to the Card memorandum's blanket 60-day freeze
because it was already in effect when the Bush administration came into
office. Nevertheless, it too was targeted for the waste pile. As in the
case of the roadless rule, Interior Department documents reveal no
substantive analysis of the existing rule that would set the predicate for
a new approach. Majority staff can conclude only that DOI reached its
decision based on factors other than reasoned agency analysis, such as a
predetermined intent to take such an action or the influence of continuing
opposition to the rule by those concerned about mining revenues.

In this case, DOI sought public comment on its proposed suspension of the
rule.

Although the public overwhelmingly opposed the proposed rollback, DOI
adopted a revised version of the rule - one that eliminated key provisions
previously identified as objectionable to the mining industry.
Furthermore, DOI concluded that existing laws and regulations (most of
which had been on the books for more than 20 years) would be adequate to
protect the land, its resources, and the water. In Majority staff's
judgment, this is highly unlikely, as those tools were available during
the period that gave rise to the concerns about hardrock mining's
environmental and health threats in the first place. In fact, a growing
consensus that these requirements were not effectively protecting the
environment prompted the Clinton administration to issue a new hardrock
mining rule.

EPA conducted a time-consuming and unnecessary review of the
decades-in-the-making rule limiting arsenic in drinking water.

EPA's rule on levels of arsenic permitted in drinking water nearly
suffered a fate similar to DOI's hard rock mining rule. When the new
administration entered office, EPA career staff briefed Administrator
Christine Todd Whitman in support of the Clinton-issued rule, some
stakeholders reiterated their concerns about compliance costs and
uncertainties about health effects, and EPA consulted with White House
staff. Administrator Whitman then announced her decision to propose
withdrawing the rule, reportedly telling representatives of water agencies
that she would "replace sound-bite rule making with sound-science rule
making."

Although Administrator Whitman announced that she wanted to be "sure that
the conclusions about arsenic in the rule are supported by the best
available science," Majority staff's review casts doubt on the
substantiveness of EPA's decision to reconsider the rule. EPA documents
generated prior to Administrator Whitman's announcement reflect no visible
comprehensive analysis, work product, or narrative identifying the nature
of the deficiencies in the science used to establish the Clinton-issued
rule; they are instead limited to brief staff notes with questions
regarding cost/benefit analysis and scientific studies.

EPA is required by law to use the best available, peer-reviewed science
studies in setting standards under the Safe Drinking Water Act of 1976
(SDWA). Thus, the new administrator's criticism of the previous
administration's "sound-bite" rule making was a serious allegation certain
to be given credence due to her position. It should not have been lodged
without appropriate analysis supporting a conclusion regarding
deficiencies in the science.

In fact, despite the administrator's protestation about the previous
administration, it was the Bush administration that seemed to put sound
science behind other considerations. In April 2001, OMB staff, in the
presence of staff from the White House Domestic Policy Office and the
Council of Economic Advisors, pressed the EPA to dilute the arsenic
standard, even though the SDWA assigns EPA, not OMB, the responsibility
for setting contaminant levels for drinking water. The Majority staff is
troubled by OMB's role in pressuring the EPA to reject its own expert
judgment regarding the science and the application of the law.

In September 2001, an additional study by the National Academy of Sciences
confirmed the Academy's earlier conclusion that the available science
required implementing a downward revision of the standard as "promptly as
possible." After nine months of review, the Bush administration ended up
precisely where the Clinton administration did: with the view that the
Clinton administration's standard would stand. In light of these results,
and the apparent absence of a rational basis for reopening the rule at the
outset, Majority staff questions why it was necessary to subject the rule
to months of uncertainty and review. staff's review casts doubt on the
substantiveness of EPA's decision to reconsider the rule. EPA documents
generated prior to Administrator Whitman's announcement reflect no visible
comprehensive analysis, work product, or narrative identifying the nature
of the deficiencies in the science used to establish the Clinton-issued
rule; they are instead limited to brief staff notes with questions
regarding cost/benefit analysis and scientific studies.

EPA is required by law to use the best available, peer-reviewed science
studies in setting standards under the Safe Drinking Water Act of 1976
(SDWA). Thus, the new administrator's criticism of the previous
administration's "sound-bite" rule making was a serious allegation certain
to be given credence due to her position. It should not have been lodged
without appropriate analysis supporting a conclusion regarding
deficiencies in the science.

In fact, despite the administrator's protestation about the previous
administration, it was the Bush administration that seemed to put sound
science behind other considerations. In April 2001, OMB staff, in the
presence of staff from the White House Domestic Policy Office and the
Council of Economic Advisors, pressed the EPA to dilute the arsenic
standard, even though the SDWA assigns EPA, not OMB, the responsibility
for setting contaminant levels for drinking water. The Majority staff is
troubled by OMB's role in pressuring the EPA to reject its own expert
judgment regarding the science and the application of the law.

In September 2001, an additional study by the National Academy of Sciences
confirmed the Academy's earlier conclusion that the available science
required implementing a downward revision of the standard as "promptly as
possible." After nine months of review, the Bush administration ended up
precisely where the Clinton administration did: with the view that the
Clinton administration's standard would stand. In light of these results,
and the apparent absence of a rational basis for reopening the rule at the
outset, Majority staff questions why it was necessary to subject the rule
to months of uncertainty and review.

======================

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--

With kindest regards,

Barry Carter
<[EMAIL PROTECTED]>
2319 Balm
Baker City, Oregon 97814
Phone: 541-523-3357
Web Pages:
Forest - http://www.subtleenergies.com/ormus/bmnfa/index.htm
ORMUS - http://www.subtleenergies.com/ormus/whatisit.htm

We must either let the Law of Love rule us through and through or not at all. Love among ourselves based on hatred of others breaks down under the slightest pressure. The fact is such love is never real love. It is an armed peace. And so it will be in this great movement in the West against war. War will only be stopped when the conscience of mankind has become sufficiently elevated to recognize the undisputed supremacy of the Law of Love in all the walks of life. Some say this will never come to pass. I shall retain the faith till the end of my earthly existence that this shall come to pass . . .
--Mahatma Gandhi--