Alert! Important Safeguards Put at Risk by Bush Team

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Public Safeguards at Risk by the Bush Administration’s Recent "Regulatory Freeze":

Control of Deadly Microorganisms in Food

Genetically Modified Crops

National Organics Standards

Clean Air

Protection of Federal Forests

Energy Conservation

Arsenic in Drinking Water

Public’s Right-to-Know about Industrial Releases of Toxic Lead

Pollution from Diesel Engines

Protecting Wetlands

Lead Poisoning in Children

Snowmobiles in National Parks

HMO Protections for Medicaid Patients

Workplace Dangers

Mine Safety

On January 20, 2001, President Bush’s Chief of Staff Andrew H. Card Jr. sent all federal agency heads and acting agency heads a memorandum that has important implications for scores of health, safety, and environmental standards. ....

There are a number of important unanswered questions about how the Card Memorandum will be implemented:

First, on what basis may the President’s Chief of Staff order a wholesale, 60-day delay in implementation of final rules already published in the Federal Register? Nothing in the Administrative Procedure Act or any other law permits the President to order an across-the-board freeze on the effective date of rules promulgated by agency heads. A delay in the effective date of a rule represents a potentially important change to the agency’s implementation and enforcement plan, and thus any such delay should be preceded by notice and an opportunity for public comment.

Second, what will be the fate of the rules signed by Department heads under the Clinton Administration and sent to the OFR for publication, but that will now be "withdrawn?" The Public Citizen report identifies three important safeguards that fall into this category: 1) an EPA-proposed standard to improve air quality and eliminate haze, 2) a proposed standard to reduce microbial (Listeria) contamination in food, and 3) a final standard that would require monitoring of the environmental and health effects of some genetically engineered crops. The Card Memorandum directs that such rules be withdrawn from publication for "review and approval" by Bush Administration officials. However, the Memorandum sets no timetable for such review and places no restriction on the ability of the incoming officials to make wholesale changes in the rule.

Third, what legal authority exists for the President’s Chief of Staff to delay publication of final rules signed by Clinton Administration agency heads, transmitted to the OFR for publication, and made public by OFR? We believe that there is none. While courts have held that an agency may properly withdraw a rule from the OFR prior to its public disclosure, see Kennecott Utah Copper Corp. v. Dep’t of the Interior, 88 F.3d 1191, 1203-1206 (D.C. Cir. 1996), there is no authority that suggests an agency may withdraw a rule after it has been publicly released by OFR. Indeed, the law is clear that once a rule has been signed and released, even if not published in the Federal Register, it may be enforced by the agency so long as the adversely affected party had actual notice of the rule. 5 U.S.C. § 552(a)(1); see also, e.g., Zaharakis v. Heckler, 744 F.2d 711, 714 (9th Cir. 1984). In this respect, the Card Memorandum seems at odds with controlling law.

Fourth, what role will OMB play in the review process mandated by the Card Memorandum? Nothing in the Card Memorandum rules out the possibility that affected regulations will be subject to review and modification by the OMB, which was notorious during both the Reagan and Bush I Administrations for its secretive, meddlesome, and time-consuming review process. Even for final rules that have been published but have yet to take effect, the additional delay mandated by the Card Memorandum gives disappointed regulated industries the opportunity to seek OMB’s intervention to begin the process of rescinding or modifying the rule.

The new administration should obey the law and follow the legal procedures for any reconsideration or change to health, safety, and environmental standards.

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-- Public Jeopardized (by@greed.com), February 14, 2001


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