Tag: Midnight Regulations

Before Midnight, a Cap on Regulations

It appears that yesterday’s House Judiciary subcommittee hearing on midnight regs featured the usual political huffing and puffing, but it also elicited a sober and detailed analysis of regulatory practices in testimony from Veronique de Rugy, PhD, Senior Research Fellow at the Mercatus Center at George Mason University.

The phenomenon of midnight regulations — the rush of new rules issued in the last days and months of an administration — does exist, she argued, offering statistical evidence to prove the point. Furthermore, the additional number of consequential and costly rules undermines effective review by the Office of Information and Regulatory Analysis of OMB.

The solution?

Until now, the most common solutions to the midnight regulations problem have suggested steps that an incoming president can take to undo his predecessor’s last-minute actions. Our solution tries to mitigate the negative effects of midnight regulations by changing the incentives on the outgoing administration. We suggest placing a cap on the number of economically significant regulations OIRA can be expected to review during a given time period.

Doing so would help prevent OIRA oversight of new regulations from being diluted. A flexible cap would afford OIRA time and resources to carefully consider new rules while preserving Congress and the President’s prerogative to increase the cap by allocating more resources to OIRA. To the extent more resources are not allocated and end-of-term regulatory spikes are eliminated, a cap would also have the effect of addressing some of the other concerns raised by midnight regulations, including a lack of accountability and democratic legitimacy.

Sounds good in theory, but first it assumes that a White House would want to cede that authority. And we can’t imagine an activist agency couldn’t cirumvent such such a cap in any case. Agency staff could do all the preliminary work, collect all the data and arguments and commentary, try to issue the regulation and if blocked by OMB or OIRA, simply have their activist friends sue in the 9th Circuit. For example.

P.S. Gee, such interesting testimony and substantive proposals for reform. Guess ProPublica’s interest has waned now that the Bush Administration has left town.

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Obama Administration Puts Pending Regulations on Hold

From the Washington Post’s Federal Eye blog, “Obama Halts New or Pending Bush Regulations,” news that Chief of Staff Rahm Emanuel has issued a memo (available here) announcing that President Barack Obama has ordered a freeze on new or proposed regulations at all government agencies and departments. The memo declares:

“…no proposed or final regulation should be sent to the Office of Federal Register for publication unless and until it has been reviewed and approved by a department or agency head appointed or designated by the President after noon on January 20, 2009, or in the case of the Department of Defense, the Secretary of Defense.”

The Post’s Ed O’Keefe also reports that the memo orders the “withdrawal of all final or proposed regulations not yet published by the Federal Register. Department and agency heads have also been asked to ‘consider extending for 60 days the effective date of regulations that have been published in the Federal Register but not yet taken effect’ unless they impact health, safety, environmental, financial, or national security matters — obviously now subject to the interpretation of Obama’s appointees.”

That a new Administration stops and reviews its predecessors’ regulations not yet in effect is an entirely reasonable and predictable act. Indeed, the Bush Administration moved deliberately on its final year’s regulatory agenda to put most of rules IN PLACE by the time it left office.

Norman Ornstein makes an interesting, related point in his NYT column Sunday about President Bush and his team’s handling of the transition to the Obama Administration, “Mr. Bush’s Gentlemanly Goodbye“:

To be sure, President Bush has signed some last-minute executive orders, especially in the environmental area, that will create headaches for Mr. Obama. But as a top Obama transition official told me, these were limited in number and scope and all done in the open.

We read those background comments from the Obama camp as undercutting frenzied efforts by activists like the Association for Justice and ProPublica to delegitimize the substance of Bush rulemaking  through a process attack against  “Midnight Regulations.”

In the end, if the Obama Administration challenges established rules, it will do so through the standard regulatory process based on the substance — not the process — of those rules. We’ll applaud or criticize those decisions based on the substance.

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Speaking of Midnight Regulations

Introduced Tuesday:

S.8
Title: A bill to return the Government to the people by reviewing controversial “midnight regulations” issued in the waning days of the Bush Administration.
Sponsor: Sen Reid, Harry [NV] (introduced 1/6/2009) Cosponsors (15)
Latest Major Action: 1/6/2009 Introduced in the Senate. Read the first time. Placed on Senate Legislative Calendar under Read the First Time.

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It’s Always Midnight at the Bottom of the Marianas Trench

There’s been much huffing on the activist left about “Midnight Regulations” being issued by the Bush Administration, that is, the supposedly last-minute surprises that the White House and agencies are springing on the public without adequate notice.

Groups like the American Association for Justice (trial lawyers), the Sierra Club (environmentalists), and ProPublica (activist, anti-business journalism) have all pounded the table against this circumvention of the regulatory and oversight process. But in most cases, these regulations have been in the works for many months if not years and have indeed followed standard practice, in line with OMB’s instructions to avoid the shortcuts and gaming that undermines the implementation of these rules.

What’s really going on here is an effort to delegitimatize the substance of the regulations, especially those that attempt to encourage energy production while maintaining public health and safety. These groups have all lost their arguments during the drafting and public comment period on the rules, so now they try a process attack against the outcome.

Why else haven’t we seen an outcry against President Bush’s announcement this week that is he is using his executive branch authority to declare national monuments in three areas of the Pacific Ocean – in total, the largest fully protected area in the world, 195,274 square miles worth? It’s an astonishingly far-reaching expansion of government control over vast regions, done not after a full policy debate in Congress but instead with a stroke of the president’s pen. Are any of the groups aggrieved over “midnight regulations” upset with this display of executive branch authority?

To its credit, at least OMB Watch acknowledges the President’s actions, trying to distinguish it from “midnight regulations” in a blog post, “Last-Minute Ocean Conservation from Bush“:

Bush’s conservation move comes not by agency regulations, but by powers granted to presidents under the Antiquities Act of 1906, according to the Post. Though the regulatory machine is shutting down, Bush has other ways of advancing his policies. Executive orders, proclamations, and the like — though easier for future presidents to undo — remain an option for Bush until his final minutes in office.

Well, then, shouldn’t OMB Watch and its allies among the anti-Bush-regulation crowd be as exercised about the new Marine Monuments as they are about the ”midnight regs?”

Sure they should be, but they’re not, which tells us it’s not the midnight that offends them, it’s Bush keeping the clock.

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Wait ‘Til the Midnight Hour? Sure, When Midnight is 2001

The anti-jobs activist group, OMB Watch, has recorded great success in pitching the claim that the Bush Administration is rushing through a batch of “midnight regulations”  meant to circumvent the normal regulatory process. As we’ve posted, the Washington Post led its paper with the story last week and ABC-TV News accepted the thesis, as well.

Now comes a CBS Evening News story, in which reporter Jim Axelrod actually presents both sides of the issue, that of OMB Watch and the White House, effectively refuting the charges of regulatory expedience.

Of course, in doing so, CBS defaults to the activists’ issue-defining terminology, the claim that the White House wants to “roll back regulations controlling air pollution, weakening the requirement to upgrade costly emission controls.”

Bunk.

CBS’s co-marketing of the OMB pitch is a reference to “New Source Review,” an issue the Wall Street Journal addresses in its lead editorial today, “New Source Rescue“:

When environmentalists oppose regulations that yield environmental benefits, something is afoot. So it is with the gathering furor over a possible Bush Administration upgrade of U.S. clean-air regulations.

Senate Democrats Barbara Boxer and Tom Carper wrote to the Environmental Protection Agency last month expressing their “grave concern” about “this dangerous proposal.” House Oversight Chairman Henry Waxman is “gravely concerned” too, about the EPA’s “reckless disregard of legal constraints on its rulemaking authority.” The trio and the green lobby are already shouting about “midnight regulations,” the last-minute ritual at the end of every Presidency.

But this rule was first proposed in 2005, and the Administration may — or may not — get around to issuing a final verdict this week. The proposal would usefully reform a permitting test called New Source Review, or NSR, which requires power plants to install state-of-the-art pollution controls when they expand their generation capacity, thus increasing smog- or soot-forming emissions.

 And…

Mr. Waxman gives the game away when he claims that the new rule would increase carbon dioxide emission by 74 million tons annually, even though CO2 is not (yet) regulated under clear-air laws. What he really means is that without this rule change the EPA will soon force the decommissioning of a large portion of the U.S. coal-fired power portfolio under New Source Review. Some 71% of the national’s coal capacity is between 27- and 57-years-old, and environmentalists want to measure any emissions change as an “increase” so that these plants are shut down.

The latest regulatory proposal for NSR is from 2005, but the Administration — and the NAM — has been working on the issue since 2001. Hard to see how seven years of labor is a rushed-through midnight regulation.

In the CBS news story, OMB Watch’s Matt Madia is honest to admit the real objection is to the substance of the regulations: “It’s environmental issues, it’s workplace safety, it’s traffic safety.” OMB Watch also objects to the “common theme for a lot of these rules, is that they’re going to be for the benefit of industry.” And since industry is by definition bad, all the rules are bad.

In the case of New Source Review, the specific goal is to prevent the continued operation of coal-fired power plants, whether they’re cleaner or not. So the protests and shouting and crying about “midnight regulations” is nothing more a sexy angle to get the media to write a story. As a media strategy, it’s a clear success. As an honest contribution to the public debate, it’s a shameful failure.

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‘Round Midnight, Regulations

The White House is pushing back against the campaign to (pre)delegitimize its agencies’ regulations as “midnight regulations” (see our post here). At today’s press briefing, Deputy Press Secretary Tony Fratto described the Administration’s thorough, well-documented process for promulgating regulations in the final months of the President’s term in office. Excerpt:

And go back to early this year, the current Chief of Staff, Josh Bolten, issued a memorandum to the heads of departments and agencies on how to deal with regulations. In fact, what the Chief of Staff wanted to avoid was this very charge that we would be trying to, in the dark of night in the last days of the administration, be rushing regulations into place ahead of the incoming, next administration.

So what he did is he set out a timetable for the consideration of regulations, when they could be approved, when final regulations should be brought forward for regulatory review, and to do it in a way that preserves all of the integrity of the regulatory review process — all the transparency, the public comment period, the internal agency review, the ability to listen to interested parties who have concerns over the regulation to come in and voice their concerns and express their points of view on proposed regulations, and then to issue them in a timely and orderly way. That’s exactly what we’re doing.

So just to hammer home the point on this, we’re trying to avoid that situation where there is a rush of regulation, or the regulation is being put forward in a way that is counter to the very appropriate goals of a system that’s characterized by integrity and transportation and public — I’m sorry, transparency and public comment and agency review of the regulations.

Thus, the Bush Administration is going to be a stickler about process and integrity, restraining itself and not doing any last minute regulatory favors for its supporters in the business community. Unlike the Clinton Administration that rolled out the monkey-fun barrels of regulations for its environmentalist and activist allies.

Seems so …fair.

We’ve put the rest of Fratto’s comments on the topic in the extended entry. The reporters ask good and fair questions, too.

(continue reading…)

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Midnight Regulations? If ‘Midnight’ Means December 2006

The Washington Post publishes today as its lead, page one story, “A Last Push to Deregulate” with a subhed, “White House to Ease Many Rules.”

The White House is working to enact a wide array of federal regulations, many of which would weaken government rules aimed at protecting consumers and the environment, before President Bush leaves office in January.

The new rules would be among the most controversial deregulatory steps of the Bush era and could be difficult for his successor to undo. Some would ease or lift constraints on private industry, including power plants, mines and farms.

Given the placement and the headline’s tone, we anticipated another bit of agenda journalism, especially since the first source cited is one of the regulatory zealots at the group, OMB Watch.

OMB Watch leads its website with activist huffing and puffing about “midnight regulations,” the nefarious practice of enacting last-minute regulations. ABC News has already bought OMB Watch’s spiel doing a segment yesterday, “The Bush Administration’s Midnight Regulations,” referring to the lead OMB spokesman and activist on the issue as an “expert.” Right. Disinterested expert.

But, kudos, the Post story is pretty balanced. It gives the Administration a place to state its case up high in the story, noting the deadlines that OMB set to allow a full examination of regulations before they’re promulgated. The reporter, R. Jeffrey Smith, describes the Clinton Administration’s undisciplined, partisan rush of last-minute regs, as well, providing some grounds for comparison: “While it remains unclear how much the administration will be able to accomplish in the coming weeks, the last-minute rush appears to involve fewer regulations than Bush’s predecessor, Bill Clinton, approved at the end of his tenure.” Including some enacted even AFTER the Clinton Administration left office.

So good job, Washington Post. Hope all the other media outlets that get lobbied into a story by OMB Watch strive for as much accuracy, balance and context. We did laugh when we encountered this paragraph, though:

As many as 90 new regulations are in the works, and at least nine of them are considered “economically significant” because they impose costs or promote societal benefits that exceed $100 million annually. They include new rules governing employees who take family- and medical-related leaves, new standards for preventing or containing oil spills, and a simplified process for settling real estate transactions.

Surely no one is going to be audacious enough to claim proposed Family and Medical Leave Act regulations are last-minute, perfidious “midnight regulations.” The Department of Labor’s Employment Standards Administration issued a request for information on the FMLA on December 1, 2006.

Working on a regulation for nearly two years really doesn’t qualify as a midnight regulation.

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Snowmobiling Past Midnight, Clinton Administration Motors On

From today’s Washington Post:

Handing environmentalists a major victory, a federal judge yesterday overturned the Bush administration’s plan to allow hundreds more snowmobiles to traverse Yellowstone and other iconic national parks each winter.

U.S. District Judge Emmet G. Sullivan threw out the National Park Service‘s 2007 plan, calling it “arbitrary and capricious, unsupported by the record, and contrary to law.”

That’s possible, we suppose, depending on the record of how courts interpret the Organic Act that created the National Park Service in 1916. The Bush Administration certainly went through the full process of issuing proposed regulations, taking public comment, etc., and there was extensive input from groups and individuals who opposed the ban on snowmobiles. 

You know what was really arbitrary and capricious? Again from the Post:

The Clinton administration published a rule in late January 2001 that would have phased out snowmobiles in Yellowstone in favor of a system of public snow coaches, but Bush cancelled that plan and pushed for expanded snowmobile access.

Late January, as in January 22, 2001, two days AFTER George W. Bush was sworn into office.  The snowmobile rule was part of a slew of Clinton administration “midnight regulations” designed to pay off constituencies, evade accountability, and set up the next administration to stumble politically. Mission accomplished.

You can bet if the Bush Administration does anything similar, environmentalists will scream and the Post’s Juliet Eilperin will write accusatory articles about the manipulation of the regulatory process.

But, to its credit, the White House has sworn off “midnight regulations.” On May 9th, Chief of Staff Josh Bolten issued a memo (a copy is here), setting the deadline for new regs on June 1, specifically trying to stop last-minute regulatory enactments. (See The New York Times in “Administration Moves to Avert a Late Rules Rush” and a Bloomberg column, “Bush Aims to Stop Midnight Surge of New Rules.”)

As we noted in a previous post, the Bush position is almost a unilateral surrender politically. The next time a pro-regulation administration takes office, midnight regulations expanding government control of the economy will return to fashion, we’re sure.

But for now, credit to the White House for bringing a little bit of good government practices to the regulatory state. Now if we could only get judges to do the same.

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Long Before Midnight, Regulatory Stepping Down

From the White House press briefing, September 4th, with spokeswoman Dana Perino:

Q At the end of the Clinton administration, the White House was criticized for putting out a lot of so-called midnight regulation, and this May, Josh Bolten put out a memo instructing federal agencies not to do that. Yet have they — has the White House reversed its policy? Because several federal agencies have proposed rules since the cut-off date.

MS. PERINO: I’ll go back and look at the memo, but I think that all the agencies are complying with what Josh asked for. And I think what he was wanting is, one, good government so that you weren’t rushing things through at the last minute. And to my knowledge, the agencies that have put forward proposed regulations have done so in a timely fashion and in a way that they can get sufficient public comment so that they meet the obligations and laws of this country.

The memo in question came from Chief of Staff Bolten on May 9th (a copy is here), setting the deadline for new regs on June 1, as reported in The New York Times in “Administration Moves to Avert a Late Rules Rush” and a Bloomberg column by Cyndi Skrzycki, “Bush Aims to Stop Midnight Surge of New Rules.”

The Clinton Administration set a record with its last-minute “Midnight regulations,” sharply criticized by Susan Dudley when she was at the Mercatus Center; she now heads the Office of Information and Regulatory Affairs at OMB, so actions match rhetoric match philosophy. Good.

As the Administration argues, this really is good government. Regulations are given full and fair scrutiny, those to be regulated aren’t hit with new and expensive surprises, and the next Administration doesn’t have to spend its first six months undoing all the mischief and defusing all the mines left over from its predecessor.

But, you can just bet the next time America is blessed with Administration that embraces the expansion of the regulatory state, Executive Branch officials will feel no such compunction. The scale only tilts one way.

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