Bush Administration Acts Fast to Slow Things Down

Published: March 01, 2001, By Sheila A. Millar, Attorney-at-Law, Keller & Heckman, Washington, DC

In a memo released Jan. 22, 2001, Bush chief of staff Andrew H. Card Jr. requested department heads and acting department heads of federal regulatory agencies to postpone publication of proposed and final rules in the Federal Register. The move will give Bush appointees time for administrative review. Delays could have an impact on converters, suppliers, and their customers.

The move by President Bush is an affirmation of his campaign promise to take quick action once in the White House and to take a second look at the spate of regulatory initiatives released during the waning days of the Clinton Administration.

Basically, what this means is that most regulations not yet effective will be on hold. Proposed and Final regulations not sent to the Office of the Federal Register (OFR) prior to January 20 are to be held “unless and until a department or agency head appointed by the President after noon on Jan. 20, 2001, reviews and approves the regulatory action.”

Regulations already sent to the OFR and not yet published in the Federal Register are to be withdrawn for review and approval by Bush appointees. In addition, the effective date of regulations that have been published in the Federal Register, but have not yet taken effect, will be temporarily postponed for 60 days.

The plan covers “regulations” as defined in section 3(e) of Executive Order 12866, i.e., “any substantive action by an agency (normally published in the Federal Register) that promulgates or is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking.”

Of course, exceptions exist for any regulations that impact critical health and safety functions of the agency and rules subject to statutory and judicial deadlines.

The move is standard procedure when there is a change in administrations and can result in opportunities to propose substantive changes. The Administration will assess former President Clinton's order limiting road building and logging in certain parks and reserves, an action that some industry groups opposed. However, it also can result in delays in proposals and final rules sought by industry during a lengthy process of negotiation.

For example, the moratorium may delay the publication of several long-anticipated Agency rules, including final rule on the implementation of the Food Contact Notification Program (FCNP) by the Food and Drug Administration (FDA). The proposed rule was published in the Federal Register on July 13, 2000, and the final version was expected to be published in January. Now, it is unclear when we can expect to see the final rule. It also is possible there will be substantive changes to the rule by Tommy Thompson, the new Health and Human Services secretary, and the yet-to-be appointed commissioner for the FDA.

On the other hand, some rules, like the sweeping new ergonomics rule of the Occupational Safety and Health Administration (OSHA), will not be affected by the moratorium despite the potentially huge impact on industry; that rule became effective before the inauguration of President Bush.

The full impact of the moratorium has yet to be seen. Suffice to say it could be a matter of months before many rules take effect. For rules that are needed and where delay in issuance could be harmful, industry groups plan to urge that the new Administration complete its review quickly and release the measures. In other instances, industry groups may seek further agency review or changes before issuance.

And, where rules or proposals have been issued, there nevertheless remains the opportunity to present new Administration appointees with information on other regulatory actions that may be needed to clarify, reduce, or alter requirements for industry.

Sheila A. Millar, a partner with Keller and Heckman LLP, counsels both corporate and association clients. Contact her at 202/434-4143; e-mail: This email address is being protected from spambots. You need JavaScript enabled to view it..