Under a deadline imposed by White House Chief of Staff Josh Bolten, federal agencies were to propose any regulation they wished to finalize under President Bush's watch by June 1 or wait for a new president to take the reigns of government. But several controversial rules that missed the June 1 deadline appeared destined for completion nonetheless.

Reg•Watch has been keeping track of the controversial rules which include rules which would allow local law enforcement to engage in domestic spying without good cause; change the way government agencies comply with the Endangered Species Act; educe women's access to federally funded reproductive health services; change the way occupational health agencies calculate estimates for on-the-job risks; and require mandatory drug testing for miners.

Evidence indicates the Bush administration intends to finalize these rules even though they missed the June 1 deadline ordered by Bolten in a May 2008 memo. Most went through an expedited review at OMB's Office of Information and Regulatory Affairs (OIRA) — the White House office in charge of reviewing agency rules — and were open to public comment for only a short time.

The Institute for the Study of Regulation — a project of the NYU School of Law — wrote to OMB expressing concern about some of the rules and questioning their status under the Bolten deadline. (h/t The Pump Handle.) Susan Dudley, head of OIRA, responded: "[T]he Memorandum was not intended to be a moratorium on proposed regulations, and thus excludes from its terms regulations proposed after June 1, 2008 that are not finalized during this Administration."

Dudley's statement implies because the batch of rules mentioned above missed the June 1 deadline, they won't be finalized under Bush's term. That would certainly be good news. Unfortunately, she follows with this statement: "It further contemplates some circumstances in which it would be appropriate for individual regulations to proceed without regard to deadlines if approved by OIRA."

Indeed, at least the rule that would change the way government agencies treat endangered species is proceeding apace. The Department of Interior instructed its employees to review the 300,000 comments it received on the proposal — most of which opposed the plan — in just one week. An environmental assessment of the regulation is open for public comment …for just 10 days.

Whether proposed rules made or missed the June 1 deadline, agencies are now in a rush to comply with the second deadline in the memo which requires agencies finalize rules by November 1. But with that deadline fast approaching, and some Bush administration whims not yet satisfied, even more rules may violate the Bolten memo.

The administration is pushing other rules which would ease restrictions on mountaintop mining; allow truck drivers to work longer hours without taking breaks; restrict access to family and medical leave for workers; and exempt factory farms from reporting air pollution.

Dudley's office is in the process or reviewing a these controversial rules, among others, and agencies may be sending more rules over to OIRA in the coming days. After OIRA's review, agencies may still need to dot i's and cross t's making the November 1 deadline increasingly impractical.

The only conclusion one can draw from these circumstances is that the Bush administration will do what it wants, when it wants. Is anyone surprised?

OMB Watch Executive Director Gary Bass appeared on the Diane Rehm show today to discuss the issue of midnight regulations and President Bush's attempt to secure an administrative legacy. Listen to it here.

This morning Reg•Watch blogged about EPA's revision to the national air quality standard for lead. The new regulation is significantly better than the current standard which had not been revised since 1978.

But another part of the new regulation raised Reg•Watch's suspicion. Currently, the network EPA uses to monitor concentrations of airborne lead has some serious problems. According to Felicity Barringer at The New York Times, "Currently, 133 monitors are in operation nationwide, down from about 800 in 1980, an E.P.A. spokeswoman, Cathy Milbourn, said."

That's a problem because, after all, you can't enforce an air quality regulation if you don't know how much pollution is in the air. Recognizing this, EPA proposed some new requirements for monitoring lead particles suspended in the air.

In its proposed rule, released in May, EPA announced that it would set emissions thresholds as one criterion to determine whether monitoring is needed. The air around any facility emitting amounts of lead above the threshold would have to be monitored. EPA proposed a range for the threshold: 200 kg - 600 kg per year.

A draft of the final rule circulating among officials at EPA and OMB just days ago showed that EPA had settled on ½ ton per year as the final threshold. But the final rule, published yesterday, set the emissions threshold at 1 ton per year. What gives?

Well, the White House Office of Management and Budget may be responsible for the decision to water down the emissions threshold requirement. On Oct. 14, just one day before EPA administrator Stephen Johnson signed the final version of the rule, an EPA employee sent an email to an OMB employee saying, "[I]f OMB wants a 1 ton threshold, it would have to provide a rationale for that point of view."

The officials named in the email are the same who squared off during EPA's recent revision to the national standard for ozone, or smog: EPA deputy administrator Marcus Peacock and Susan Dudley, head of OMB's Office of Information and Regulatory Affairs.

Apparently, OMB was able to provide some kind of rationale that satisfied EPA. According to EPA estimates, the ½ ton threshold would have swept in about 259 lead polluting facilities while the 1 ton threshold will apply to 135 facilities. Reg•Watch is not well versed in air quality monitoring, but something sure smells fishy. Feel free to email with thoughts or insight.

On Tuesday, President Bush issued one of his infamous signing statements for a bill that will improve the independence of inspector general (IG) offices within the federal government. Since IG offices monitor efficiency, waste, and fraud in the government, but are also housed within the federal government, Congress saw fit to enact new measures to insulate IG offices from political pressures. (More on the bill here.)

Bush objects to a part of the bill that attempts to stem political interference in the work of IG offices. If administration officials find an IG particularly vexing, they can slash the IG's budget in order to reduce their capacity to uncover government fraud and waste. Since the budget process is not transparent, the administration can claim its request is all the IG needs — without revealing the intra-administration conflict.

The bill requires the president to include in his annual budget request to Congress a separate line item for each agency's IG. More importantly, it requires the president to submit the IG's original request for funds, that is, what each IG believes he or she needs to carry out the functions of the office.

In the signing statement, Bush basically makes the claim that the president can ignore this provision. He complains, "[T]he bill includes provisions that purport to direct or regulate the content of the President's budget submissions, including provisions that purport to direct the President to include the comments of Inspectors General with respect to those submissions."

Actually, upon Bush's signature, the bill does not "purport" anything. Bills passed by Congress and signed a president become law. They set rules and conditions of behavior for the government and society. Mr. Bush would do well to consult a dictionary for the meaning of both words.

Bush goes on to state, "The executive branch shall construe section 8 of the bill in a manner consistent with the President's constitutional authority to recommend for congressional consideration such measures as the President shall judge necessary and expedient."

Of note, the bill does not require the president or Congress to actually abide by the IG's request; it merely requires greater transparency so that Congress and the public have access an important bit of government information. As it is, nothing in the bill impedes a president's ability to carry out any function.

Luckily for inspectors general, and for the prospects of good governance, Bush won't be submitting any more budget requests to Congress.

The National Oceanic and Atmospheric Administration (NOAA) has finalized a long-awaited rule that will protect the North Atlantic right whale, one of the planet's most critically endangered marine species. Fewer than 400 right whales are left, according to NOAA.

The rule sets a speed limit on shipping vessels traveling in the Atlantic during seasons when the right whale is most active. NOAA maintained the speed limit in its initial proposal: 10 knots. That is good news, since collisions with ships are a major threat to right whales. According to The Washington Post, "Since NOAA first proposed the regulation in 2006, at least three right whales have died from ship strikes, and two have been wounded by propellers."

However, as expected, another aspect of NOAA's final rule is weaker than originally proposed. NOAA initially proposed extending the protection area in which the speed limit would be enforced 30 nautical miles off shore. In the final rule, NOAA shrank the protection zone to only 20 nautical miles.

The smaller protection zone encompasses a smaller portion of right whale activity. From the Post:

Researchers at NOAA's Fisheries Service estimate that about 83 percent of right whale sightings in the mid-Atlantic region are within 20 nautical miles of shore, while the 30-mile limit would encompass 90 percent of all sightings.

The White House could have played a role in weakening the rule. The Office of Information and Regulatory Affairs — the arm of the White House responsible for reviewing and editing agency regulations — kept the rule under its watch for 573 days. By its own rules, OIRA is to review rules for no longer than 120 days.

During that time, several other White House offices attacked the scientific basis for NOAA's plan to protect the right whale. The office of Vice President Dick Cheney said, "[W]e have no evidence (i.e., hard data) that lowering the speeds of 'large ships' will actually make a difference." The White House Council of Economic Advisors even went so far as to rerun statistical models the agency used to come to its determination.

The White House may have been working on behalf of industry. The World Shipping Council opposed the rule, and lobbied the White House to stop it.

Indeed, a NOAA official told The Washington Post in August, ""Time is money in shipping. There was a concern about the increased cost to carriers … We accommodated that by reducing the speed zones."

At least now all this mishegas is finally over. The rule will go into effect in December. (The Ocean Conservancy has more on the areas and times of year of enforcement.) If the rule is properly enforced, it will significantly increase the right whale's chances of survival.

EPA is finalizing a potentially major revision to the national air quality standard for lead, and industry has come a knockin'. On Oct. 2, several officials from the Office of Management and Budget's Office of Information and Regulatory Affairs (OIRA) — the arm of the White House in charge of reviewing and editing new rules — met with several lobbyists from the battery recycling industry. That industry would eventually face new compliance requirements if EPA adopts a strict new standard.

One official from the White House Council of Economic Advisors, one from the White House Council on Environmental Quality, one official from EPA, and another from the Department of Energy also attended.

In May, EPA proposed tightening the standard for lead exposure to between 0.10 μg/m³ (micrograms per cubic meter) and 0.30 μg/m³. The current standard, which EPA has not revised since 1978, is 1.5 μg/m³.

At the meeting, the Gradient Corporation — a product defense firm whose clientele has included the tobacco industry — circulated a 15-page slide show reviewing the scientific uncertainty surrounding EPA's proposal. Injecting uncertainty into regulatory science is a common tactic of product defense firms and industry lobbyists. (Public health expert David Michaels profiled this extensively in his book Doubt is Their Product.)

The slide show is a veritable how-to manual for White House officials who like to challenge the conclusions of agency scientists in order to undermine environmental and public health regulations. (See the right whale rule for a recent example.)

Lobbyists at the meeting also complained of the potential compliance costs the rule would impose. In comments on the proposal, the Association of Battery Recyclers said a tighter standard "will threaten the continuing viability of the industry."

Fortunately for the public, the Clean Air Act prohibits EPA from considering economic factors when it sets major air quality standards. EPA must base its determination on health issues.

Lead exposure poses a number of health risks for humans, especially kids. According to EPA, lead exposure can affect brain development and "can lead to IQ loss, poor academic achievement, permanent learning disabilities, and delinquent behavior." Lead exposure can also damage red blood cells and weaken a child's immune system.

But that won't stop industry lobbyists from pressuring federal officials to finalize a rule weaker than what was proposed in May. And White House officials, never shy to circumvent the law, may help those industry lobbyists pressure EPA. The mere presence of an official from the White House Council of Economic Advisors is cause for concern. If EPA cannot consider economics, what value can economic advisors possibly add to the discussion?

The whole scenario is similar to the events leading up to EPA's revision to the national air quality standard for ozone, or smog. During that rulemaking, EPA proposed a range from which it would choose a final standard. When making its decision, EPA faced pressure from industry lobbyists and interference from White House officials.

If the pattern follows, EPA will ultimately take a step in the right direction but fall short of fully protecting public health. EPA tightened the standard for ozone but chose the upper end of its proposed range. EPA's staff scientists and independent advisors, as well as environmentalists and public health advocates, all agree the upper end of the proposed range for the lead standard, 0.30 μg/m³, is inadequate to fully protect human health.

EPA is under court order to finalize the rule by October 15. Stay tuned to Reg•Watch for updates.

The long-awaited rule to protect the North Atlantic right whale is coming soon, according to President Bush himself. Speaking at the Smithsonian Museum of Natural History on Friday, Bush briefly discussed the rule: "There are fewer than 400 North Atlantic Right Whales left in the world… And there are going to be new regulations that will be coming to be shortly that require ships to slow down as they approach seaports where these whales are likely to be."

Bush's pronouncement comes after the rule was stuck inside his White House for 573 days. In that time, the White House Council of Economic Advisors and the Vice President's office attacked the science behind the rule in attempt to derail it. Although the rule has not yet been unveiled, early signs indicate it may be somewhat weaker than what the National Oceanic and Atmospheric Administration originally proposed.

Had Bush been in the mood to be frank, his comment would have sounded more like this:

Scientists say if even one more right whale female dies, the entire species could be set on a path toward extinction. The National Oceanic and Atmospheric Administration has spent years developing a new policy to reduce the risk that ships will crash into and kill right whales.

The White House, under my leadership, fought hard to undermine that policy. I think the free market can save the whales. Whales don't deserve a bailout — they're not Wall Street execs. (Chuckle.) So we delayed, we interfered, we threw the kitchen sink at this rule to see if we couldn't turn it back. After a year-and-a-half, we've decided to let it through. See, I wanted to make sure this rule got finished under my watch, with a concession or two to industry, before some new guy comes in.