rssThe Midnight De-Regulation Express
Tuesday, November 11, 2008 at 6:01 am
- 40 Comments
President George W. Bush (WDCpix)
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.
Illustration by: Matt Mahurin
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 to be finalized by Nov. 22. One was already — on Election Day.
1) The Dept. 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 Admin. or the Mine Health and Safety Admin. 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 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 Dept. 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 gives employees the right to waive their rights under the Family and Medical Leave Act, making it the first national labor law to be optional. A worker, for instance, cannot waive his right to earn a minimum wage or get paid more for overtime.
The regulation was finalized on Election Day.
3) The Dept. 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 they 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 for Reproductive Health at the National Partnership for Women and 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 and Opportunity Commission, 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 Dept. 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 Dept. 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 the 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 Dept. 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 changes, each of these regulations were proposed after June 1. And if finalized, they will effect 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 and Families. “But this administration acts like it still has a mandate.”
40 Comments
Comment posted November 11, 2008 @ 8:12 am
Excellent, at least he is doing a few things right – too little too late – given that he has failed conservatives utterly for eight years. But the ass who wrote this piece as if these laws were cause for dismay is likely to feel otherwise. Too bad, consider it a last splatter of spit on your mewling, metrosexual, progressive face.
Comment posted November 11, 2008 @ 9:17 am
Anyone that considers Bush a conservative, doesn't deserve to call themselves one.
Comment posted November 12, 2008 @ 10:16 am
Zee,
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Comment posted November 12, 2008 @ 11:49 am
well, the Congressional Review Act of 1996 should help this underground war between Obama and Bush right now. According to Politico, “The law contains a clause determining that any regulation finalized within 60 days of congressional adjournment — Oct. 3, in this case — is considered to have been legally finalized on Jan. 15, 2009. The new Congress then has 60 days to review it and reverse it with a joint resolution that can’t be filibustered in the Senate.
In other words, any regulation finalized in the last half-year of the Bush administration could be wiped out with a simple party-line vote in the Democrat-controlled Congress.”
This can be the Holy Grail to beat back the Bushies, who have infected the bureaucracy with these well-hidden regs, that now number over 200, as of this writing.
Comment posted November 13, 2008 @ 7:11 am
The proposed FMLA waiver provision is actually more limited; it does not allow an employee to waive her right to FMLA leave. Rather, the provision will allow an employee to waive in a settlement agreement or severance agreement her right to make an FMLA claim (or lawsuit) against her employer without that waiver being reviewed by the Department of Labor or a Court. Currently, courts are split as to whether such a waiver of an FMLA claim needs to be reviewed by a Court or DOL (as waivers of minimum wage claims are) or not.
Comment posted November 21, 2008 @ 4:36 am
number 3 on the list. It says that it “clearly refers to contraception.” I'm sorry, but that's a bit of a stretch. True bush is an ass, true he's pushing through some crap, but number 3 is a tricky one, because with all of our desire for rights, privacy, and non-discriminination, doesn't it seem odd that this liberal article is trashing the one thing that he is trying to do that actually is working to protect the rights of some doctors who happen to not want to perform certain procedures? He is not attacking the right of a lady to go elsewhere for a procedure, simply keeping the doctors from getting “discriminated against” for THEIR own beliefs. It's a tricky two-way street, eh? Great Article!!
Comment posted November 21, 2008 @ 9:50 am
Yes, a thoughtful article. Re #3 on the list.
“Working to protect the rights of some doctors who happen to not want to perform certain procedures”? Let's consider personal integrity for a moment. If a particular procedure is morally repugnant for a doctor, he/she is not FORCED to do it.
Is it greed or fear of losing patients that keeps a doctor from saying “I don't perform 'ZZZ' procedure, let me refer you to someone who does,” or putting up a sign in his/her office stating the services he/she provides?
Comment posted December 8, 2008 @ 10:03 am
Whats the difference – he's had an agenda since the moment he stepped into office. We have been lied to – cheated out of freedoms and scared with the whole TERROR TACTICS (alquada – osama – WMD'S – OH MY!)- this admin has been nothing more than a FRONT for the true people who run this country – BIG BIZ – MILITARY – CIA – FBI – BANKS – PHAMICUTICAL.
we go on strike and protest in front of plants and factories when we want a raise but question your governments agenda and the blaent lies they tell us and what – your a TERRORIST – YOUR UNPATRIOTIC – YOUR A CONSPIRSY THERIST blah blah blah –
I don't have kids and i'll tell you why – who in their right mind would want to bring the most precious thing in the world into this hole. What future are we leaving for the next generation or generations to come.
WAKE THE F#@% UP AMERICA – DO YOUR RESEARCH – IT IS OUR RIGHT TO QUESTION YOUR GOVERNMENT AND THEIR ACTIONS AND AGENDA!!!!!
our whole system is breaking down and all we can do is point the finger at each other – LOOK – QUESTION THINGS.
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Comment posted January 1, 2009 @ 12:04 pm
Congress? Hello. Hello? Is anyone home? Is anyone listening? Did you take an oath of office? Are you really a co-equal branch of government? You know…checks and balances?
Its no wonder your approval rating is in a close race with Bush's toward zero.
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Comment posted January 26, 2009 @ 3:02 pm
“Right of a lady to go elsewhere for a procedure” is a hollow argument throughout much of the country. If you live in North Dakota, Arkansas, Idaho, or any of another dozen states, you likely don't have a Planned Parenthood or similar clinic that provides free/discounted contraception within miles, towns, or even between you and the next state. Considering how funding has been pulled from clinics like Planned Parenthood under the last administration, there are even fewer branches of facilities able to keep their heads above water and provide patients with what the PATIENT wants. People in this country forget that healthcare providers provide a service to consumers. Their personal beliefs should not be able to overrule your needs as a patient. You pay them for their medical expertise, not their opinions or leanings. So “going elsewhere” is hard enough these days, and considering the budget woes facing the Obama administration, will likely not be a priority in the near future. Contraception has gotten much harder to come by – federal funding is no longer provided for colleges to have it available to students at a discounted rate, for example. I have no problem with doctors refusing to provide contraception IF they actually know another doctor they can refer the patient to who will. Under this new rule, I fear the sense of obligation to assist the patient with what the PATIENT wants will continue to flicker out.
Comment posted January 26, 2009 @ 11:02 pm
“Right of a lady to go elsewhere for a procedure” is a hollow argument throughout much of the country. If you live in North Dakota, Arkansas, Idaho, or any of another dozen states, you likely don't have a Planned Parenthood or similar clinic that provides free/discounted contraception within miles, towns, or even between you and the next state. Considering how funding has been pulled from clinics like Planned Parenthood under the last administration, there are even fewer branches of facilities able to keep their heads above water and provide patients with what the PATIENT wants. People in this country forget that healthcare providers provide a service to consumers. Their personal beliefs should not be able to overrule your needs as a patient. You pay them for their medical expertise, not their opinions or leanings. So “going elsewhere” is hard enough these days, and considering the budget woes facing the Obama administration, will likely not be a priority in the near future. Contraception has gotten much harder to come by – federal funding is no longer provided for colleges to have it available to students at a discounted rate, for example. I have no problem with doctors refusing to provide contraception IF they actually know another doctor they can refer the patient to who will. Under this new rule, I fear the sense of obligation to assist the patient with what the PATIENT wants will continue to flicker out.
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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.
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