CONTENTS (4) Forest Service Implementing Policies Less Protective than Rule Page REWRITING THE RULES EXECUTIVE SUMMARY On January 20, 2001, the crowd that was gathered at the Capitol for President Bush's Inauguration had barely dispersed when the President's Chief of Staff, Andrew H. Card, Jr., took one of the most far-reaching and significant steps of the administration's early days: He issued a directive to all Federal agency heads to immediately freeze the Federal regulatory process in its tracks. Although couched in terms more familiar to the bureaucracy than the citizenry, the so-called Card memo had the potential to diminish the health and safety of tens of millions of Americans. Virtually all Federal agencies issue rules and regulations to flesh out and implement laws passed by Congress. From the school bus and gas pipeline safety rules issued by the Department of Transportation, to the drinking water and clean air regulations issued by the Environmental Protection Agency (EPA), to drug safety provisions put out by the Food and Drug Administration, Federal regulations and their enforcement are what ensure that Americans' environment, safety, and health are protected. Because of the tremendous impact these rules have on individuals and businesses alike, agencies must go through a structured, open and transparent process before issuing them. That processknown as "notice and comment" rulemaking-requires agencies to notify the public of their intent to issue rules, to allow the public to comment on the proposals, and then to justify, in writing and on the record, why the agencies decided to do what they did. By Inauguration Day 2001, literally hundreds of regulations had gone through this process, had been published in the Federal Register-the official annals of Federal agencies and were ready to go into effect. Yet without any notice to the public or opportunity for interested parties to comment, the Card memo directed agencies to hold in abeyance a slew of regulations until they could be reviewed by Bush Administration political appointees. Although most of these rules passed quickly through the new administration's political filter, some very important ones did not. A number of regulations, some of which had been subjected to years of public scrutiny and deliberation by government agencies, were put through an unusual and, in some cases, time-consuming second look by the Bush Administration. In some of those cases, the second look amounted to a death sentence for the rule. Troubled by the Card memo's government-wide interference with the regulatory process and the prospect of a reversal of so many regulations, Senator Joseph I. Lieberman asked his Governmental (1) Affairs Committee staff to look into the matter.1 Specifically, he charged his staff with reviewing the Card memo and its effect on three important rules that were final before the Bush Administration came into office: (1) The Department of Agriculture's rule conserving roadless areas in national forests: In January 2001, the U.S. Department of Agriculture (USDA) issued a rule prohibiting most road construction and logging in roadless areas of national forests. The rule, which had been in development since early 1998, sought to protect against piecemeal Forest Service decisions that were altering and fragmenting ecologically valuable areas. The rule sought to balance the need for appropriate development with the reality that our national forests contain important watersheds and fragile ecosystems that can be damaged by road development and logging. The rule did not impose an absolute ban. Exceptions included the removal of timber and the construction of roads so as to reduce the risk of wildfires and to protect from the loss of life and property. (2) The Department of the Interior's (DOI) rule regulating hard rock mining on public lands: In November 2000, DOI issued a rule regulating hard rock mining on public lands. The rule had been in development for almost a decade and sought to mitigate hard rock mining's harmful effects on soil, air, ground water, surface water, land-based and water-based vegetation, and wildlife. (3) The Environmental Protection Agency's rule capping the permissible level of arsenic in drinking water: It has long been known that arsenic in drinking water poses a wide variety of health risks. In January 2001, after nearly 2 decades of study and years of development, EPA issued a rule lowering the permissible limit for arsenic in drinking water. The rule brought the U.S. standard in line with that set by the World Health Organization and followed by the European Union. The development of each of these three rules involved extensive public comment and scrutiny, and each was accompanied by an onthe-record agency justification of its actions. Nonetheless each was promptly subjected to the new administration's second guessing. In the first two cases, the Bush Administration ultimately weakened or otherwise undermined the rules. In the third, the rule initially adopted after years of scientific study was challenged, but ultimately retained after months of additional-and unnecessary— study. In the course of its inquiry, Committee staff reviewed thousands of documents related to the agencies' initial decisions. The story the documents tell is one of administration actions characterized by a . 1 At the time he initiated the inquiry (in March 2001), Senator Lieberman served as the Governmental Affairs Committee's Ranking Minority Member. On June 6, 2001, he became the Committee's Chairman. The inquiry was conducted pursuant to the Committee's jurisdiction "to study or investigate . the efficiency and economy of operations of all branches and functions of the Government with particular references to the operations and management of Federal regulatory policies and programs." S. Res. 54, 107th Cong., 1st Sess. (2001) (ENACTED). The report is based on the review of thousands of pages of agency documents related to initial administration decisions to suspend, delay, reconsider, or modify these regulations. Committee staff began their review of these documents during the Spring and Summer of 2001. The events of September 11, 2001, interrupted the staff's inquiry and refocused Committee resources on homeland security issues and oversight, postponing the release of this report until now. troubling lack of respect for long established regulatory procedures an attempt to give short shrift to public input when possible, and to discount the science or record supporting the rules under review. Committee Majority staff's specific conclusions are outlined below: Implementation of the Card memo was of questionable le- Under governing law, an agency may not adopt a proposal to delay or change a rule's effective date without first giving the public an opportunity to comment on the proposal. But when the Office of Management and Budget (OMB) supplied Federal agencies with a model Federal Register notice to implement the Card memo, it suggested that the agencies not seek public comment, citing generally inapplicable exemptions to the public "notice and comment" requirement. In disregarding these legal requirements to open administrative actions to public review, the Bush Administration set a dangerous precedent. It treated an important legal requirement as an annoyance and an obstacle, rather than a fundamental part of the framework that makes regulatory change fair, transparent, and orderly. The administration's decision to revisit the three rules at There is no bar to agencies changing existing rules, but they may do so only by going through the same regulatory process used for adopting rules in the first place. If they ultimately choose to change the rule, agencies must justify the reasons publicly and with reference to a specific record. Staff's review of the documentation of three agencies' initial decisions to propose to suspend or otherwise undermine the rules under review suggests a disregard for analysis as to whether change was needed. At the Departments of the Interior and Agriculture, the agencies approached the decision to pursue suspension of the rules almost exclusively as a question of "how," not "whether." At EPA, the documents suggest no substantive analysis of the science underlying the rule before the administrator proposed to suspend it. Again, the suggestion that the results of a lengthy and open process are to be reopened without any analysis indicating the error of the original result, at a minimum, speaks volumes about the administration's respect for the value of the rulemaking process and the public's role in it. The administration, by choosing not to defend the Agriculture Department's rule protecting roadless areas in national forests, used a third-party lawsuit to undermine the rule without taking public responsibility for its actions. Before USDA's rule protecting roadless areas in national forests appeared in the Federal Register, groups opposing the rule filed |