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While the rest of the country remains transfixed by the outcome of the presidential election, Clinton administration appointees have been racing against the clock to get final initiatives and regulations in place before the curtain falls on Jan. 20. Some call it legacy-building. Others see a morass of “midnight regulations.” Either way, from the Department of Labor to the Environmental Protection Agency to Health and Human Services, political appointees are scrambling to leave their mark, especially now that prospects for a Democratic successor have grown increasingly dim. “As a former distance-runner, one thing I’ve learned is that you always run through the finish line,” says Assistant Secretary of Commerce Greg Rohde, administrator of the National Telecommunications and Information Administration, which recently launched a major initiative on spectrum allocation. “I don’t think it does justice to the job if you just go in and keep the seat warm.” Comparisons are already being made to the waning days of the Carter presidency — the last time a pro-regulatory Democratic administration handed over power to a more laissez-faire Republican regime. In the months between election night and inauguration day, Carter officials shoveled regulations out the door: new nursing home rules, additions to the endangered species list, limits on strip mining, and specifications for frozen Brussels sprouts. The Federal Register was three times its normal size on Carter’s last days in office. “Administrations always issue a lot of regulations in the final days, and it’s more true when there is change in political affiliation,” says Michael Eastman, director of federal government relations for LPA, a pro-business labor policy institute. “The real disturbing issue,” he asserts, “isn’t so much the increase in regulatory activity, but the increase in regulatory activity which doesn’t have a basis in law.” FORGING AHEAD The Environmental Protection Agency and the Department of Labor are humming with activity. It is over the policies of these two agencies that the Republicans and Democrats are most often divided, and where a change in party affiliation at the White House could have its largest impact. The EPA has dozens of rules that could be finalized before January. Many have been in the works for years, or are among those the agency is required to finish, due to court rulings or congressional directives. “Whatever had been close to completion is going through,” says an EPA spokesman. “There is not an unusual push to finalize every last possible regulation in development.” Regardless, the impact will be substantial, as industries will have to comply with new standards affecting the environment, health care, and labor relations, among other areas. And history has shown it’s difficult for the next president to reverse the regulations of his predecessor. Among the environmental regulations expected is a crackdown on diesel vehicles and fuel: By 2007, all new diesel vehicles would have to produce less than 10 percent of the pollution they produce today. The agency is also expected to rule by mid-December on whether it will regulate mercury emissions from power plants. If the EPA decides to do so, the rules would impose high costs on power companies, although they would not kick in until 2005. In addition, the agency has a proposal to significantly lower the allowable levels of arsenic in drinking water — yet another move opposed by industry. Environmentalists are also hopeful that Clinton will issue an executive order to designate Alaska’s Arctic National Wildlife Refuge as a monument, and take it out of the reach of drilling. “Our position remains that there are a number of opportunities Clinton has to leave his own legacy on environmental protection,” says Courtney Cuff, legislative director of Friends of the Earth. “Things are coming out now that are in the hopper. The question is: How aggressively will they turn on the faucet of regulations? Will it be just a drip or full steam ahead?” BUSINESS ON ‘HIGH ALERT’ Business groups are taking notice, and many are nervous about the long-term impact of these final rules. “We’re on high alert, so to speak,” says Deron Zeppelin, director of government affairs for the Alexandria, Va.-based Society for Human Resource Management, a 150,000-member group of HR professionals. “When Congress is gone, it’s the agencies’ time to kick in. That, coupled with the end of an administration — there’s a sense of urgency.” Further, he says, Clinton has consistently excelled at using the regulatory process when Congress won’t deliver. “It has been more and more difficult to get any employment or labor legislation through,” he says. “When they can’t get through the front door of Congress, they go through the back door of the regulatory agencies.” Indeed, labor and employment issues have been the focus of many recent regulations. Just days after this year’s election, the Department of Labor’s Occupational Safety and Health Administration released controversial regulations on ergonomics. That rule, which the U.S. Chamber of Commerce and other opponents say will cost businesses millions, is already being challenged in court. Labor has kept up a steady pace since then. A major initiative dealing with the affirmative action programs of federal contractors became final Nov. 13. Put forth by Labor’s Office of Federal Contract Compliance, the new rules require contractors to submit an Equal Opportunity Survey describing their affirmative action programs, including data on employee compensation and other personnel practices. Those who fail to do so risk legal action by the department. “They overturned 30 years of affirmative action law,” complains Zeppelin. Within the next few weeks, final guidelines are also expected from the Equal Employment Opportunity Commission on the issue of “tender backs.” Under the guidelines, which are based on a 1998 U.S. Supreme Court decision, workers who accept enhanced severance packages in return for waiving their right to sue can keep the money and still sue for age discrimination. And on Nov. 22, Labor revised the claims process for managed-care companies operating under ERISA. The regulations shortened the time frame that companies have to approve medical claims, and set up a procedure for plan participants to opt out of administrative review of claims in favor of judicial review. “Clearly, [the administration] realized the 106th Congress was not going to pass a patients bill of rights,” says Paul Dennett, vice president of health policy for the American Benefits Council. “They are attempting to come up with the second-best outcome available — which was regulatory.” Other agencies are also trying to get some of the administration’s pet projects on the books before the term runs out. For example, the Department of Health and Human Services is expected to release rules on medical privacy. Through a multi-agency effort, the administration is also expected to push for blacklisting regulations, which would ban companies from winning federal contracts if they violated federal rules such as environmental regulations or workplace safety standards. The rules are opposed by business, and even by some of the agencies, including the Department of Defense and the General Services Administration. Also in mid-November, the Department of Education’s Office for Civil Rights released final regulations on the agency’s jurisdiction over schools that receive federal financial aid. The move affirms a long-standing principle that the department can compel entire institutions, not just specific programs that receive federal money, to comply with nondiscrimination regulations. Still to come is the Education Department’s final guidance on the proper use of tests for purposes such as promotion or graduation and final revised guidelines on sexual harassment in schools. “For our constituents, there has been a lot of work put into these documents,” says Scott Palmer, deputy assistant secretary of the Office for Civil Rights, who notes that all the proposals were previously published as drafts in the Federal Register for public comment. “It’s not about a rush to judgment at all. It’s rather a matter of not stopping the momentum and getting done the things that are important and should get done.” At the Federal Communications Commission, Chairman William Kennard hopes to move ahead with low-power FM radio service, an initiative that has been roundly criticized by commercial broadcasters as well as congressional Republicans, who may still intervene. In addition, the FCC, working with Commerce’s NTIA, is expected to put out a Notice of Proposed Rulemaking on making new spectrum available for third-generation, or 3G, wireless devices. But NTIA head Rohde acknowledges that they can’t finish the job before Clinton’s tenure ends. “What we’re doing now is [acting on] the desire of President Clinton to move ahead,” he said at a Nov. 2 industry-government meeting. “It will be up to the next administration to determine if they want to carry on or move in a different direction.” THE ELECTION FACTOR Overall, opinions differ on whether Clinton’s final regulatory push will prove excessive. An October study by the Mercatus Center at George Mason University in Fairfax, Va., says Clinton is on track to surpass Carter’s record-setting volume of Federal Register pages, but also states that all presidents increase output in the final days. And some observers find comparisons with Carter’s last days overblown. “I don’t think there has been the same sense of ‘Let’s push things through that are a reach,’ ” says Martin Corry, director of federal affairs for AARP. “ There’s been no push to manufacture regulations and then push them out the door. What we are seeing is the usual year-end of ‘Let’s clear the decks.’ “ Others are not so sure. “If Gore had won the election, we wouldn’t have seen some of these come out,” says Randel Johnson, vice president of labor and employee benefits at the Chamber of Commerce. “Frankly, I think on ergonomics, if Gore had clearly won, OSHA would have said, ‘Let’s take a little more time with this.’ “ The issue for a future administration, especially a Bush one, is how to retract unwanted regulations. As Ronald Reagan learned, that’s difficult. When Reagan took over, he put a freeze on Carter’s last-minute rules, then outright dismantled several regulations. But later court cases determined that presidents can’t undo regulations willy-nilly. To freeze or revoke a rule, agencies must support the new stance with as much evidence as presented for the previous position. “With the ergonomics case, you have 50 pages of rules and 500 pages of explanation that all has to be unraveled and reviewed,” says Johnson. “The agencies know this case law. The word is to get this stuff out the door, and once it’s there, the prior administration’s [policies] are fairly well locked in.”

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