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Of News, No News, and the Fine Art of Salmon Policy Riders

November 20, 2015

Let’s face it: no news is no news. Congress is still considering the funding levels that agencies will receive and there is nothing new to report about the substance or the process. Meantime, we continue to deliver the message to the Hill that FDA needs to be a national priority as funding decisions are made.

Once they agree upon appropriations numbers, Congress will still have the difficult task of deciding upon policy riders, so-called because the availability of monies is used to establish what would otherwise be considered a policy matter for a substantive committee. Policy riders usually take the form of language that goes like this: “No funds under this Act shall be used to support [insert program, activity or initiative].”

Whether it passes or not, there is likely to be a rider that defunds Planned Parenthood and another that would limit monies going to certain parts of the Affordable Care Act. Based on the events of the last week, there is likely to be a policy rider concerning funding of refugee resettlement in the United States. Immigration policy, more generally, is a likely area for appropriations riders, as might the Iran nuclear deal and the Transpacific Trade Pact.

A bill with no major or controversial policy riders is called “a clean bill.” With both Houses in Republican hands and a Democratic President, Republicans are going to want a number of policy riders this appropriations cycle, while Democrats will insist that only a clean bill is acceptable. Over the last few years, Republicans have concentrated on one or two riders of special importance to them and have been rebuffed by the Senate Democrats’ threat of a filibuster and the likelihood of a Presidential veto.

Although the Republican strategy is still being shaped, it looks like they are going to field a large number of policy riders and hope to get a few of them into the final package. Democrats will still be insisting on a clean bill, but might yield on a few riders that are more palatable to them.

Where does FDA fit into this picture? Typically, FDA has been below the radar and appropriators have been content to shape the agency agenda through report language. However, nothing prevents FDA from being subject to an appropriations policy rider. FDA could become a target: because what it does matters and people care about the outcomes of agency action. Further, FDA must implement its statutory responsibilities whether it makes Congress happy or not.

An example is FDA’s decision (this week) to approve a genetically modified Atlantic Salmon. This decision brings to a close more than a decade of fierce stakeholder debate. Over that period, policy riders and legislative amendments have been offered in multiple attempts to undercut the agency’s ability to make this decision. There is a chance this will come up again as part of the debate over FY 16 omnibus appropriation bill.

Salmon may not be the only cause for a policy rider. Think of anything that FDA has done this year that was controversial … and it is a potential topic of a rider.

Which brings us back to my first point: no one wants another government shut-down, but figuring out appropriations numbers is only one obstacle to getting funding legislation into place by December 11.

Note: This week’s Analysis and Commentary was written by Steven Grossman, the deputy executive director of the Alliance for a Stronger FDA.

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