TradePost Archives > January 29, 2009 > this article

White House request to suspend pending regulations affects trade rules

January 26, 2009
World Trade\Interactive

White House Chief of Staff Rahm Emanuel issued a memo to all federal departments and agencies Jan. 20 asking them to suspend the issuance of proposed and final regulations pending further review. The memo has already prompted a delay in some trade-related rules and could affect others as well.

60-Day Delay Requested. Emanuel’s memo requests the following actions.

• No proposed or final regulation should be sent for publication in the Federal Register until it has been reviewed and approved by a department or agency head appointed and designated by President Obama after noon Jan. 20 (although this responsibility may be delegated).

• All proposed or final regulations that have not been published in the Federal Register should be withdrawn so they can be reviewed and approved as noted above.

• A 60-day extension of the effective date should be considered for any regulations that have been published in the Federal Register but have not yet taken effect so any questions of law and policy raised by those regulations can be addressed. In addition, the comment period on any such rules should be reopened for 30 days.

The memo noted that in this context the word “regulation” applies to “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.” The memo allows exceptions for emergency situations or other urgent circumstances relating to health, safety, environmental, financial or national security matters, and it does not apply to regulations subject to statutory or judicial deadlines.

Trade Rules Could be Affected. Directives like Emanuel’s are typical at the outset of a new presidential administration and are primarily aimed at preventing last-minute regulations issued by the outgoing administration from taking effect. However, the broad scope of the memo means that there will be a number of regulations subject to the White House-directed review, including the following.

• Lacey Act – A Department of Agriculture notice outlining revisions concerning the scope and enforcement of the import declaration requirement under last year’s Lacey Act amendments was withdrawn from publication in the Federal Register. It is unclear when the notice may appear, given that USDA officials have indicated that they intend to comply with the 60-day review request.

• 10+2 – U.S. Customs and Border Protection’s final importer security filing rule, also known as 10+2, is slated to become effective Jan. 26. Press reports indicate that while this rule could be subject to review, it might also fall under the “national security” exemption.

• Country of Origin Labeling – According to Inside US Trade, Agriculture Secretary Tom Vilsack said last week that he will delay by 60 days a USDA final rule on mandatory country of origin labeling for various agricultural products, which had been scheduled to enter into force March 16. Items covered by this rule include muscle cuts of beef (including veal), lamb, chicken, goat and pork; ground beef, lamb, chicken, goat and pork; perishable agricultural commodities; macadamia nuts; pecans; ginseng; and peanuts. The article noted that interested parties are likely to seek changes to the rule during the 60-day review period.