The Bush Administration's Midnight Regulations
Critics say proposed rules would hurt consumers, environment, safety.
October 30, 2008— -- The Bush administration is trying to push through a wave of new regulations despite a promise by the White House to ban last-ditch rule-making in the waning days of the presidency, say watchdog groups and experts.
Every administration tries to pass last minute rules in hopes of leaving a lasting mark. But experts say the Bush administration is expected to approve a greater number more quickly than previous administrations – something they said could lead to bad and costly policy.
"The administration wants to leave a legacy," said Gary Bass, executive director of OMB Watch, which has been critical of these proposals. "But across the board it means less protection for the public."
The proposed regulations are of particular concern to watchdog groups who say they could hurt public safety, the environment and consumers.
Among the newest proposed regulations, according to OMB Watch:
Permit health care professionals at federally funded institutions to opt out of providing abortion and sterilization if such processes create "a problem of conscience for the provider." Women's groups have attacked this proposals as a way to limit access to abortions.
Require drug testing for miners. Critics have questioned why this would be a priority given the high safety concerns associated with mining facilities.
Change how occupational safety agencies calculate job-risk for miners, despite opposition from health and safety groups, which said it would "undermine" health rules.
Allow Interior Department officials to approve development projects without full consulting federal wildlife and habitat scientists on the impact on endangered species.
Ease rules for police on allowing them to launch criminal intelligence investigation if the target is suspected of links to terrorism. Proponents say it brings policy in line with current process but critics say it infringes on first amendment rights.
"It's safe to say that these regulations are designed to serve regulated industry and the conservative agenda," said Bass.
Another key concern with the last-minute up tick in rule making is that agencies have less time to reviewing regulations. (One study found that the volume of regulations in an outgoing administration's final quarter-year were 17 percent higher than the number in non-elections years.)
"The real problem is that you have this massive inflow of regulations and yet the checks and balances and the people who do the checks are still the same," said Veronique de Rugy, a research fellow at the Mercatus Center at George Mason University and has studied so-called midnight regulations in past administrations. "Hence all the regulations that are coming through are not given proper oversight."
Already, some proposed regulations have seen the public comment period drop from the traditional 60 days to just over 30 days. A spokesperson for the Office of Management and Budget noted in an email response that publicly available statistics show that the average review period has not gone down and said public comment periods were determined by each agency.
It wasn't supposed to be this way. In May, Josh Bolten, then-head of the Office of Management and Budget, which oversees regulatory approval, issued a memo barring new proposals after June. It also required that all new regulations be completed by Nov. 1.
That hasn't been the case. Many proposed regulations have yet to be finalized and new ones have already come out since the June deadline.
A spokesperson for OMB said in an email response that the Bolten memo "wasn't intended to wholesale shut down work on important regulatory matters after November 1st, but to emphasize due diligence."
She added: "Ensuring the integrity of the process is important to the Administration."
If the regulations go through, there may be little anyone can do to change them in the short term, experts say. A new administration could get Congress to overturn, but that has rarely succeeded and can be vetoed by the president. A new administration could also restart a new regulatory process to change back the rules, but that is a lengthy process. Or it could ask the court to stop regulations, but historically they have limited jurisdiction to intervene.
Either way, says de Rugy, "whether you think regulations are good or bad, one of the things we should all agree upon is that the process they have to go through is open and that it is rigorous and protects tax payers from bad regulations."
But, she adds, the current process "is everything but transparent."