China announced last week a timetable to shutter the ivory market in the world’s most populous country and the biggest trading post for elephant tusks, which are carved into decorative trinkets, necklaces, bracelets, and other household items and jewelry. The year-long phase-out, expected to be completed by the end of 2017, was a follow-up on an announcement made by Chinese President Xi Jinping last summer when he pledged to match the U.S. rulemaking action to dramatically tamp down the ivory trade here at home, made by President Obama on a trip to Kenya, which has seen its elephant population decimated by armed thugs.
Ironically, it’s the U.S. ivory rule that may be at risk, not China’s, as our nation ushers in a Republican-controlled Congress. Before the rule was finalized, Republican lawmakers included language in an annual spending bill to prevent the administration from finalizing it – at the urging of the National Rifle Association and a handful of antique dealers. Curbing the trade was viewed as an attack on business, specifically the selling of old guns with ivory and other older items made with ivory.
Take a minute to process this weighting of two social concerns. There are people in the United States more concerned with the resale of ivory antiques – and getting a few hundred or a few thousand dollars here and there — than with the very survival of the largest land mammals on the planet. These animals are being massacred by the tens of thousands every year by poachers in order to feed the demand in global ivory markets, including the United States and China. The poachers are destroying the greatest natural resource and one of the biggest economic activities throughout Africa – wildlife-based tourism, which generates billions of dollars annually and provides hundreds of thousands of jobs. Those jobs enable health care, women’s education, and the well-being and sustenance of millions of people. There are virtually no losses in the United States associated with the end of the ivory trade, but thousands of American and African jobs connected to African tourism would be lost if elephants are exterminated.
Despite attempts made by some Republican lawmakers to block the Obama Administration efforts to curb this traffic, the ivory rider was not included in the final spending package, allowing the administration to finalize the rule in June. The final rule was carefully crafted to include a de minimus exemption for items with a total weight of ivory of less than 200 grams, including musical instruments, household and decorative items, and knives and guns with ivory grips. Nevertheless, the ivory rule may become a target of Republican lawmakers who seem hell-bent on nixing anything attached to the name of the outgoing president of the United States, instead of looking at the merits of rulemaking measures. Many of these rules save the lives of animals and help people with the most basic necessities, and are supported by Republicans as well as Democrats on Capitol Hill. Rep. Peter King, R-N.Y., led a letter to the U.S. Fish and Wildlife Service cosigned by 108 of his colleagues voicing support for the ivory rule.
Among the very first legislative acts of the newly convened U.S. House were the passage of two sweeping bills to allow for a quick and mass dissolution of Obama’s rulemaking actions in 2016, including the ivory rule. It could also apply to an anti-horse-soring rule – designed to stop the torture of Tennessee Walking horses by trainers who want to exaggerate their gait – expected to be issued by the Obama Administration any day now.
The Midnight Rules Relief Act of 2017, H.R. 21, passed Wednesday on almost a straight party-line vote, would amend the Congressional Review Act to allow en bloc disapproval of multiple regulations finalized during the last year of a president’s term. Such action would prevent due consideration of the merits of individual regulations. Most animal protection rules adopted during the Obama Administration, including those announced in the final year of his term, have been many years in the making. These rules have elicited overwhelming numbers of favorable public comments, and have enjoyed strong, bipartisan congressional support.
For example, a bipartisan group of 182 Representatives and 42 Senators wrote to the U.S. Department of Agriculture in support of the anti-horse soring rule, which corrects deficiencies in the USDA’s current regulations in ways that mirror provisions in the PAST Act — legislation that had 273 House cosponsors and 50 Senate cosponsors in the 114th Congress. The PAST Act was introduced largely to force the USDA to fix these very problems, many of which were identified by a damning 2010 USDA Office of Inspector General report urging regulatory changes to overhaul the existing enforcement regimen. And the agency itself warned horse sorers that it was considering some of these changes in public notices going back to 1979. So this rule, although it has been a long time coming and is likely to be finalized within the next few days, could be characterized as a “midnight rule” and eliminated, despite the enormous number of lawmakers from both parties who have urged its adoption.
Another example is a rule made final in July that closes a loophole for the processing of downer calves—animals too sick, injured, or weak to walk—to prohibit sending them into the food supply, just as was done for downer cattle by USDA regulations in 2009. A series of undercover investigations documented that downer calves are subjected to the same heinous abuse as adult downer cows to get them on their feet for inspection, and showed the serious food safety concerns from eating calves unable to stand, as there were for downer cattle. This rule was anything but precipitously adopted—the agency had said back in 2013 that it would update its regulations to close the loophole—and a bipartisan group of 92 Representatives and 14 Senators urged the USDA and the OMB to finish this rulemaking in letters sent in 2014 and 2015.
One report found that rules issued during the “midnight” or presidential transition period spent even more time in the rulemaking process and received even more extensive vetting than other rules. That’s certainly been our experience with the measures concerning which we’ve encouraged final action. Analysis of all economically significant rulemakings finalized since 1999 showed that such rules issued during the transition period took on average 3.6 years to complete compared to 2.8 years for rules issued at other times during a term.
It would be a terrible mistake for Congress to sweep these several rules away and undercut reasonable efforts—in the works for years, after getting substantial input from Congress—to ensure that animal protection laws are carried out effectively. There was nothing nefarious or undercutting about this rulemaking, and if anything, the Obama Administration has dragged its feet on the issue, rather than rushing it through at the last minute.
The Regulations from the Executive in Need of Scrutiny (REINS) Act of 2017, H.R. 26, passed late yesterday, also on a virtually party-line vote. It would require that both houses of Congress approve a major rule (including those issued during the 60 legislative/session days prior to adjournment of the previous session), with no alteration, within a 70-day window. If both chambers are unable to swiftly approve a major rule, it would not take effect and reconsideration during that Congress would be precluded. By doing nothing, Congress would prevent existing laws from being implemented, including common sense, non-controversial rules affecting animal welfare. The bill forces expedited floor consideration by both chambers of resolutions to approve major rules and to disapprove non-major rules, and it bars judicial review of any actions taken under the REINS Act.
Congress sets the boundaries for agency rulemaking, making the REINS Act needless and redundant. It is already the case that agencies can only exercise authority that has been delegated by Congress in authorizing legislation, and if agencies overstep their authority, judicial scrutiny can be invoked and agency actions can be reversed.
We urge the Senate to reject these unwarranted, overreaching, and radical bills, and anything like them, which take a sledgehammer approach to regulations and could negate well-considered and broadly supported rules to implement and enforce animal protection laws.