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BUSH ADMINISTRATION'S ENVIRONMENTAL, HEALTH AND SAFETY RED TAPE

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.

Public Citizen’s Public Safeguards at Risk! report examines significant new federal safeguards likely to be affected by the review and delay requirements of the Card Memorandum. It also examines other significant "Safeguards to Watch" -- final regulations that have recently become effective or proposed rules that are in the pipeline.

The Card "Regulatory Review Plan" Memorandum "postpones" by 60 days the effective date of any new regulation that has been published in the Federal Register and has not yet taken effect, unless it is mandated by a statutory or judicial deadline. This effects scores of new safety standards approved by Clinton agency heads in recent months, including at least 12 rules that will make major improvements in protecting the public, workers, and the environment.

The Card Memorandum also requires agencies to withdraw new proposed and final safety standards that had been sent to, but not yet published by, the Office of Federal Register (OFR) for publication. The Memorandum sets no time limit for this review, and places no restriction on the ability of the incoming officials to make wholesale changes in the rule. At least two significant rules were affected by this requirement -- an Environmental Protection Agency (EPA) rule to improve air quality and eliminate haze and a U.S. Department of Agriculture (USDA) proposed rule requiring hot dog and ready-to-eat meat packagers to test for the dangerous Listeria pathogen.

This action by the Bush Administration may indicate a return to the ways of the Reagan and Bush I Administrations, when important safeguards proposed by the agencies were sent into an Office of Management and Budget (OMB) "black hole," where they were delayed for years, eviscerated or buried under the guise of administration "review."

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

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

Safeguards Affected by the Card Memorandum

Food Safety

Unfortunately, officials at the USDA were forced by the Card Memorandum to withdraw this important proposed rule. At a minimum, this action will delay needed requirements for pathogen testing. It is also possible that the withdrawn regulation could be substantially weakened by the Bush administration before it is resubmitted for publication.

However, officials at the EPA were forced by the Card Memorandum to withdraw their important rule announcing the their intention to monitor the health and environmental safety of genetically modified crops. It is very possible that when (and if) this rule is resubmitted to the Federal Register, it will contain provisions that favor biotech profits over consumer and environmental protections. For example, the rule may be revised to exempt several classes of genetically modified crops from EPA monitoring.

This rule was published in the Federal Register on December 21, 2000 and can be found at 65 FR 80548. , but could be delayed an additional 60 days under the Card Memorandum.

Environmental Protections

This important rule was sent to the Federal Register for publication, and the full text of the regulation was even posted on the EPA website in an "unofficial" version at http://www.epa.gov/ttn/oarpg/t1/fr_notices/bartrule.pdf. Unfortunately, the Card Memo requires the EPA to withdraw this proposed rule. At a minimum, this action will delay needed improvements in air quality. It is also possible that the withdrawn regulation will be substantially weakened by the Bush administration before -- and if -- it is resubmitted for publication in the Federal Register.

The final rule was published in the Federal Register on January 12, 2001, and can be found at 66 FR 3244. This regulation was scheduled to take effect on March 13, 2001, but could be delayed an additional 60 days due to the Card Memorandum. The logging industry may try to greatly increase its logging and construction activities in now-roadless areas during this period of delay.

Part or all of each of these three rules would have taken effect in February 2001, but now the effective dates could be delayed an additional 60 days due to the Card Memorandum. These rules were published in the Federal Register on January 12, 2001 and January 22, 2001, and can be found at 66 FR 3314, 66 FR 7170, and 66 FR 3336.

The final rule was published in the Federal Register on January 22, 2001, and can be found at 66 FR 6976. This important regulation was supposed to take effect on March 23, 2001, but could be delayed an additional 60 days under the Card Memorandum.

The rule was published in the Federal Register on January 17, 2001, and can be found at 66 FR 4500. It was scheduled to take effect on February 16, 2001, but could be delayed an additional 60 days under the Card Memorandum.

The rule was published in the Federal Register on January 18, 2001, and can be found at 66 FR 5002. It was scheduled to take effect on March 19, 2001, but could be delayed an additional 60 days due to the Card Memorandum.

This rule was published in the Federal Register on January 17, 2001, and can be found at 66 FR 4550. It was scheduled to take effect on February 16, 2001, but could be delayed an additional 60 days under the Card Memorandum.

The regulation was published in the Federal Register on January 5, 2001, and can be found at 66 FR 1206. It was scheduled to take effect on March 6, 2001, but could be delayed an additional 60 days due under Card Memorandum.

The NPS published a final rule in the Federal Register on January 22, 2001, which can be found at 66 FR 7259. The effective date of this regulation was originally set for February 21, 2001. However, the implementation of this rule will take now effect after the end of the 2001 snowmobile season, because it will be delayed 60 days under the Card Memorandum.

Medicaid

The regulations were published in the Federal Register on January 19, 2001, and can be found at 66 FR 6227. These regulations will be effective on April 19, 2001, but could be delayed an additional 60 days due to the Card Memorandum.

Workplace Health and Safety

The rule was published in the Federal Register on January 18, 2001 and can be found at 66 FR 5196. Its scheduled effective date is July 18, 2001, but could be delayed an additional 60 days under the Card Memorandum.

The new proposed regulations were announced on January 19, 2001, and can be found at 66 FR 5526 and 66 FR 5706. The rules were scheduled to take effect on March 20, 2001, but could be delayed an additional 60 days under the Card Memorandum.

Safeguards to Watch

The following important safeguards are not expected to be affected by the Card Memorandum. However, watch for regulated industries to attempt to use their influence with the Bush Administration to rescind, delay, weaken, or block them.

Food Safety and Quality

The rules were published in the Federal Register on January 19, 2001, and can be found at 66 FR 6138. This important safety standard is scheduled to take effect on January 22, 2002, and it is hoped that the Bush administration will not delay its implementation.

The final rule was published on January 9, 2001 in the Federal Register and can be found at 66 FR 1750. The rule will take effect on January 9, 2002. It is hoped that the Bush administration will not delay the implementation of this regulation, which is not set to take effect for almost a full year.

Environmental Protection

The proposed rules were published in the Federal Register on January 12, 2001, and can be found at 66 FR 2960.

Medical Privacy and Patient Safety

Although this rule was scheduled to take effect on February 26, 2001, it is not expected to be affected by the Card Memorandum because it was promulgated pursuant to a deadline set in the HIPPA Act. However, there has been no definitive word from the Bush administration confirming that this rule will not be affected. The final rule was published in the Federal Register on December 28, 2000 and can be found at 65 FR 82462.

Under a rule protecting "trade secrets" and "confidential commercial information," biotech firms and other actors in the pharmaceutical industry are currently able to prevent disclosure to the FDA of crucial data related to a drug’s safety and efficacy. The proposed protection would improve the current standard for disclosure regarding these biotech techniques. If adopted, the FDA’s new standard would help ensure that patients, doctors, and the public are aware of the risks faced by those who undergo experimental procedures involving the genes of humans and other species.

The proposed rule was published in the Federal Register on January 18, 2001 and can be found at 66 FR 4688. It is urgent that these protections be finalized.

Workplace Health and Safety

The final rule was published in the Federal Register November 14, 2000, and can be found at 65 FR 68262. The much-needed new standards were effective as of January, 16, 2001, but are likely to face congressional scrutiny and substantial resistance from industry.

It was published in the Federal Register on January 19, 2001, and can be found at 66 FR 5916. It is scheduled to take effect on January 1, 2002, and it is hoped that the Bush Administration will not delay its implementation.

The rule was published in the Federal Register on January 18, 2001, and can be found at 66 FR 5318. A deadline for the rule was set by the Needlestick Safety and
Prevention Act, so it is not expected to be affected by the Card Memorandum.

This proposed rule appeared in the Federal Register on October 17, 1997, and can be found at 62 FR 54160. Now, after three years, two full public comment periods, and a series of hearings, it is critical that OSHA finalize its tuberculosis rule.

Automotive Safety

The proposed rule appeared in the Federal Register on November 11, 2000 and can be found at 65 FR 67693.

The law was named the Transportation Recall Enhancement, Accountability and Documentation (TREAD) Act, and was codified in numerous sections of 49 U.S.C. 30101 et seq. Many -- but not all -- of the directives in the bill are subject to a statutory deadline. The "early warning" regulations, which were required within 120 days of passage of the law and must be completed by June 30, 2002, were published after the Card Memorandum was issued. The TREAD Act also requires NHTSA to release an improved tire safety standard by June, 2001.

The law was the target of intense industry lobbying, and there are many regulatory questions left to be answered as the process moves forward. Stay tuned for more industry efforts to derail it or to water it down.

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Written by: Public Citizen


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