Midnight Regulations


Ever since Jimmy Carter became a lame duck after the 1980 elections, outgoing presidents have proposed “midnight regulations” in the final weeks of their term. The Bush Administration is keeping up the tradition, and how. Elizabeth Kolbert at The New Yorker has a partial list that gives us a flavor:

The Administration has proposed rules that would: make it harder for the government to limit workers’ exposure to toxins, eliminate environmental review from decisions affecting fisheries, and ease restrictions on companies that blow up mountains to get at the coal underneath them. Other medical alert system in the works include rules to allow “factory farms” to ignore the Clean Water Act, rules making it tougher for employees to take family or medical leave, and rules that would effectively gut the Endangered Species Act.

ProPublica is compiling a more thorough list. As Kolbert writes, they are less “regulation” as they are “deregulation.”

Joaquin Sapien at ProPublica points out some helpful tips and Web sites that can help with the usually arduous process of tracking rule changes in the federal bureaucracy. Naturally, he points to OMB Watch as a great resource. He also points to various federal sources, other Web sites and search engines. ProPublica has devised a helpful flow chart to show “how the sausage is made.” And he ends the article with the caveat that the online tools are notoriously cumbersome and not that easy to use.

But all of this begs the question, why is all of this so bloody difficult? These are important rules. It all should be much more open, transparent and easy to use.

Update: Sapien followed up his article with another asking whether the Obama Administration can “turn back the clock on Bush’s midnight rules?” The short answer is yes and no. “The problem with what the Bush administration is doing is that these rules are extremely cumbersome to adopt, and they are every bit as cumbersome to undo,” Sapien quotes David Vladeck, an administrative law professor at Georgetown University. “It condemns the next administration to spend years fighting on the old administration’s agenda.”

The article points to the 12-year old Congressional Review Act, which “allows Congress to vote to disapprove any rule finalized within about six months before Congress adjourns.” But as Sapien reports, it has only struck down only one of the nearly 50,000 rules submitted to Congress since the act has been in effect. Ugh! Those sure aren’t good odds.