Group Targets 'Midnight' Rules

Posted: November 14, 2011

The Administrative Council of the United States (ACUS) is crafting a report exploring the problem of “midnight” rules -- EPA and other agency regulations passed in the final days of an administration -- that could include recommendations to try and reduce the number of last-minute rules.

ACUS' Committee on Rulemaking is looking to have a final report on midnight rules completed early next year for consideration by the whole conference at its June 2012 meeting, which will focus on the uptick of regulatory activity that often occurs at the end of a presidential administration. ACUS is an independent federal agency focused on providing advice to improve the administrative process.

The second Bush administration attempted to cut back on last-minute regulations by issuing a memorandum directing agencies to abide by certain deadlines for proposing and finalizing rules, though the effort had mixed results. Environmentalists also touted an internal Bush EPA list of rules the agency was rushing to promulgate before the end of the term, including changes to the Clean Air Act's new source review (NSR) program that critics warned would weaken NSR requirements.

Jack Beermann of Boston University School of Law, who is writing the ACUS report, said at a Nov. 14 rulemaking committee meeting in Washington, DC, that it is oftentimes hard to pin down what is wrong with midnight rules, but noted that people oftentimes have a “negative reaction” to the late-term rules. “Midnight regulations have become part of every presidential transition for several decades,” Beermann said at the meeting discussing the report.

There are a number of recommendations ACUS could consider including in the report, such as suggestions that outgoing administrations include an explanation of the timing of late-term rules or boosting the powers of an incoming administration to “suspend, amend or rescind” rules issued in the midnight period by the outgoing administration, according to an early outline of the report. The report could also urge greater coordination between transitioning administrations on major rules or suggest outgoing administrations get all rules out by a certain deadline.

Beermann said that, according to many interviews he has done for the report, there are not necessarily quality, transparency or political problems with the midnight rules, and he added that many respondents say there are adequate tools for the incoming administrations to deal with the rules.

In the early days of the Obama administration, some environmentalists suggested the then-Democratic majority in both chambers of Congress used legislative tools such as the Congressional Review Act to undo Bush administration midnight rules -- though those efforts went nowhere.

Even if the report does not include a number of significant recommendations for reform, Beermann thinks the project is worth pursuing. “Because given the notoriety of the issue and the fact people are interested to hear what the conference thinks about it, even if we do not come up with any strong recommendations, I think it is important to get the report out on the table,” Beermann said.

Jim Tozzi, a member of the full ACUS, noted that it could be useful to produce a compendium of “remedies available” for incoming administrations, particularly focused on what works and what is legally sound. The report will also look at evidence about late-stage rules and historical context surrounding the issue.