Bush Wants Sun to Set on Midnight Regulations

By Cindy Skrzycki
Tuesday, June 3, 2008

The Bush administration promises that as it leaves office in January, federal agencies won't make the usual last-minute rush to paper Washington with new regulations.

White House Chief of Staff Joshua B. Bolten issued a May 9 memo outlining a disciplined exit to replace what could be called midnight madness. Except in extraordinary circumstances, regulations that agencies plan to put out should be proposed by June 1 and final rules issued by Nov. 1, he said.

Bolten wrote that the administration needed to continue a "principled approach to regulation as we sprint to the finish, and resist the historical tendencies of administrations to increase regulatory activities in their final months."

Critics of the administration interpret the directive as a move to shut down the regulatory apparatus early. Bush officials say it's merely an effort to ensure agencies have time to review rules and give the public a chance to comment.

If the order is followed, it would be the first time since 1948 that there wouldn't be a significant jump in output in the days before the regulatory coach turns into a pumpkin, according to a study of the phenomenon.

No matter who controls the White House, when power shifts to the other party, the page count in the Federal Register -- where new regulations are published -- in the period between an election and inauguration is, on average, 17 percent higher than in non-election years, according to a study titled "Midnight Regulations" by the Mercatus Center, a nonprofit economic research group at George Mason University.

Perhaps the best-known example was the Clinton administration issuing a controversial rule in November 2000 designed to prevent ergonomic, or repetitive stress, injuries on the job. The proposal had taken almost a decade of work, in part because of delays imposed by a Republican-controlled Congress.

It was part of 26,542 pages of rules that federal agencies published in the last three months of Clinton's tenure -- a 51 percent increase over the same period in the previous three years, according to the Mercatus study.

On Jan. 20, 2001, the new Bush White House told agencies to postpone any Clinton-era rules not yet in effect and to suspend work on those not yet published. In one of his first acts, Bush signed a law that scrapped the Clinton repetitive-motion rule. Clinton also had blocked completed rules that weren't yet public.

"The public is ill-served," Gary Bass, executive director of OMB Watch, said of the Bolten memo. "It wants government to be its protector. This memo says 'We are done November 1.' " Bass's nonprofit organization monitors the Office of Management and Budget and federal rulemaking.

Conservatives said the Bolton memo merely moves up the date for getting often-controversial rules out the door.

"There are things they want to achieve, and this memo doesn't change that," said Veronique de Rugy, a senior research fellow at Mercatus who recently updated the study.

Several important and contentious rules are still in the pipeline. The Bush administration has not issued a final rule on how automakers should meet stricter fuel-economy requirements for cars and light trucks -- an issue of particular interest in a world of $4-a-gallon gas.

The Department of Transportation is supposed to update in July its 34-year-old standard for vehicle "roof crush resistance" to reduce the risk of injury and fatalities in rollover accidents.

Interest groups have their own priorities. The U.S. Chamber of Commerce wants the Environmental Protection Agency to issue an advanced notice of proposed rulemaking to fulfill an April 2007 Supreme Court ruling that the EPA consider regulating carbon dioxide as a contributor to climate change. Environmental groups oppose this approach.

William Kovacs, the Chamber of Commerce's vice president for regulatory affairs, said the interested parties need the time to comment, a period that is likely to stall any final decision during the remainder of the Bush administration.

The Grocery Manufacturers Association and other groups representing the food industry met with OMB and Agriculture Department officials on March 20 to try to lobby against disclosing the names of retailers affected by certain recalls of tainted meat or poultry products. The Department of Agriculture had issued the proposal in March 2006 to name the retailers.

Other important issues include whether the administration will exempt farms that raise large numbers of animals from having to get water pollution permits from the EPA, and whether it will determine how many hours a day truckers should be allowed to drive.

Peg Seminario, AFL-CIO safety and health director, predicted that the administration will find time to put new rules into effect to increase the financial disclosure requirements of unions.

Susan Dudley, a former Mercatus regulatory studies director who now heads OMB's office of regulatory review, fingered the Clinton administration as a big-time midnight regulator while she was at Mercatus.

"Like Cinderella leaving the ball, many of Clinton's 7,000 presidential appointees hurried to issue last-minute 'midnight' regulations before they turned back into ordinary citizens at noon on January 20," she wrote in the spring 2001 issue of Regulation, a magazine published by the libertarian Cato Institute.

De Rugy said Dudley "knows better than anyone" what a last-minute surge of rules implies, and "they are trying to avoid the label."

Cindy Skrzycki is a regulatory columnist with Bloomberg News. She can be reached atcskrzycki@bloomberg.net.

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