The Bush Administration appears to be signaling an easing of regulatory burdens on business. In a draft report to Congress (“Costs of Benefits of Federal Regulations”) published in March, the Office of Management and Budget (OMB) called for more rigorous scientific analysis of the benefits and drawbacks of rules before they can be issued.
Although all sides agree that regulations should use good science to prove social and economic benefits, the issue of scientific oversight has been the most recent industry weapon in fighting regulations that are deemed burdensome or without merit. By arguing that regulations have no scientific merit, industry groups, including trucking, have been able to delay or stop rulemaking involving changes in ergonomics regulations and hours of service, for example.
In the case of ergonomics, the Bush Administration recently backed away from the Clinton Administration's stricter proposals and recommended voluntary guidelines instead. Despite years of scientific research and study, OSHA officials privately admit that producing bulletproof regulations was nearly impossible. Because of the complicated nature of musculoskeletal disorders, and since this area of medicine is still evolving, it's impossible to produce a set of rules based on airtight scientific conclusions.
BATTLE OF THE EXPERTS
Opponents of this tactic contend that it's impossible to account for every single scrap of scientific data available, and that doing so is tantamount to purposely mucking up the regulatory process. They also say that regulatory rulemaking often becomes mired in “battles of the scientific experts,” much the way expert courtroom witnesses square off, each with impeccable credentials and armed with what they claim to be the “best” science.
Opponents of the Bush Administration say that by insisting on greater scientific scrutiny, the White House is ensuring that fewer regulations will be produced in coming years.
A spokesperson for OMB denies that the Administration is cutting back on regulations by using science or anything else as an excuse. He adds that OMB would like to expand the staff of its Office of Information and Regulatory Affairs (OIRA), which oversees agency regulatory proposals, to include an advisory panel.
“OIRA envisions that the panel will be comprised of academics with specialized expertise in economics, administrative law, regulatory analysis, risk assessment, engineering, statistics and health and medical science,” the report stated.
By increasing impartial scientific analysis of data, OMB hopes to produce regulations that are not only based on the best science available, but that also warrant the financial and social burdens that inevitably result. Moreover, they hope to insulate themselves from the inevitable battles pitting scientific experts against one another.
The stakes are high. OMB estimates that regulations cost the U.S. about $640 billion in 2001. “Regulation can increase the cost of producing goods and services in this country, thereby raising prices to consumers, creating potential competitive problems for U.S. firms in a global economy, exacerbating fiscal challenges to state and local governments, and placing jobs and wages at risk,” the report noted.
President Bush's activities to date do little to dispel allegations that the Administration is anti-regulation. The report noted: “The 20 significant rules that OMB returned to agencies for reconsideration from July 1, 2001 to March 1, 2002 are more than the total number of rules returned to agencies during the Clinton Administration. Inadequate analysis by agencies is the most common reason for returns.” One of Bush's first actions when he took office was to freeze Clinton-era rulemaking proceedings.
Members of Congress have not yet weighed in on the report. While the Administration does not need lawmakers' approval to go ahead with its plan, it does need its support, especially in terms of budget appropriations. Congress also has the authority to overturn regulations it deems inappropriate or push those it favors.
The next battleground of the Administration's stance may be hours-of-service regulations. How the FMCSA handles the scientific evidence regarding driving and fatigue will play a vital role in the proposal, as well as how it is received by the trucking industry.