Regulatory agencies such as OSHA and MSHA were able to push through key rules in the final days of Clinton''s Administration.
OSHA issued its recordkeeping, steel erection and needlestick rules and MSHA issued a rule protecting miners from diesel particulate pollution.
However, as soon as Bush assumed the presidency on Saturday, he signed an order prohibiting regulatory agencies from issuing any new rules, and delaying, for 60 days, the effective dates of rules that had already been issued, including the recent rules issued by OSHA and MSHA.
This means that these three, last-minute rules are final because the have already been published in the Federal Register but they won''t go into effect until 60 days after their original effective dates.
Although the rules'' effective dates may be delayed, legal observers say that Bush does not have the authority to rescind or withdraw any of these rules.
Under a precedent that was established in 1981, if Bush wishes to do more than delay the dates of the rules, he will need to ask Congress to pass measures under the never-before-used Congressional Review Act that will revoke one or more of the rules.
Under the 1996 law giving Congress the authority to revoke new regulations, there is a provision barring the Senate from delaying such a measure with a filibuster.
If the Republicans cannot muster enough votes to revoke the rules legislatively, they will go into effect 60 days late, in spite of the administration''s opposition.
But the Republicans in Congress could attempt to include budget riders that will forbid the agencies from expending any funds to enforce them.
In addition, Bush could direct OSHA and MSHA to undertake new formal rulemaking procedures aimed at revoking the rules.
Such a rulemaking procedure would be unprecedented, and it would have the burden of demonstrating that it would not be "arbitrary and capricious" for an agency to issue a rule that completely denies the validity of a rule that is already being enforced.
Rules that went into effect prior to Bush''s inauguration are not effected. Which means that OSHA''s ergonomics and bloodborne pathogens standards are not subject to the 60-day delay.
The ergonomics standard took effect on Jan. 17, four days before Bush was inaugurated and the bloodborne pathogens standard will still go into effect as scheduled on April 18, because that was a date set by Congress, which is not subject to change by the White House.
by Virginia Sutcliffe