Bush Administration: A Status ReportIn the final months of the George W. Bush Administration, federal agencies issued a number of controversial final rules, many of which were scheduled

CRS Report for CongressPrepared for Members and Committees of Congress

“Midnight Rules” Issued Near the End of the

Bush Administration: A Status Report

Curtis W. Copeland

Specialist in American National Government

August 25, 2009

Congressional Research Service

7-5700

www.crs.gov

R40777

http://www.crs.gov/

“Midnight Rules” Issued Near the End of the Bush Administration: A Status Report


Summary

In the final months of the George W. Bush Administration, federal agencies issued a number of

controversial final rules, many of which were scheduled to take effect just before or just after

President Bush left office on January 20, 2009. Similar “midnight rulemaking” has occurred near

the end of each recent presidency in which party control of the White House changed hands. To

repeal, suspend, or amend these rules, federal agencies in the new administration must issue new

regulations by using the sometimes lengthy rulemaking process. Some observers expected that

one or more of the Bush Administration’s midnight rules would be reversed using the

Congressional Review Act (CRA, 5 U.S.C. §§801-808), which would have been possible even for

rules that were issued during the previous session of Congress and that had already gone into

effect.

Some of the Bush Administration’s proposed rules that were of concern to certain interest groups

were never issued as final rules, and some final rules that were issued have been implemented

unchanged by the Obama Administration. This report examines the status (as of August 2009) of

25 Bush Administration midnight rules that have been challenged in some way since they were

issued. Federal agencies have delayed or stayed the implementation of some of these rules, and

have announced that certain rules are under review or will be rescinded. Some of these agency

actions were prompted by petitions for reconsideration of the rules that had been filed by interest

groups. Congress has also played a role in stopping certain rules (e.g., giving issuing agencies the

authority to withdraw certain rules without going through the rulemaking process, and delaying

the implementation of one rule). Other midnight rules have been delayed or implemented as a

result of court orders, and several other rules are in effect but still under legal or administrative

challenges. However, none of the Bush Administration’s midnight rules have been reversed using

the CRA, and none can be during the remainder of the 111th Congress because the deadline for

submitting a resolution of disapproval has passed.

Although a few of the Bush Administration’s midnight rules have been withdrawn in whole or in

part, many of them are still “in play” seven months after the start of the Obama Administration.

The continuation of such rules suggests that eliminating or changing them can require concerted

efforts by multiple parties during an extended period of time. Agencies have delayed some rules

by going through the full or abbreviated rulemaking process, but other agencies did so by just

issuing new final rules. Congress may not have used the CRA to revoke rules because only parts

of some Bush Administration’s rules were viewed as objectionable, or because of the possible

prohibition of future agency rulemaking without subsequent congressional authorization.

However, Congress has other options to delay or stop rules, such as provisions that can be added

to appropriations legislation. The Bush Administration attempted to ensure that its final rules

were in effect by January 20, 2009, and doing so prevented most of them from being covered by a

regulatory moratorium that was established that day by President Obama’s chief of staff.

However, that effort did not prevent other actions by Congress, federal agencies, interest groups,

or the courts to delay or withdraw the rules.

This report will not be updated.



Contents

Introduction ..................................................................................................................................... 1

The Bolten Memorandum................................................................................................................ 2

The Emanuel and Orszag Memoranda ............................................................................................ 3

Some Proposed Rules Were Not Issued as Final Rules ................................................................... 4

Some Midnight Rules Have Been Implemented As Issued ............................................................. 6

At Least 25 Bush Administration Midnight Rules Have Been Challenged ..................................... 7

Agency Actions to Delay or Stay the Effective Dates of Rules ................................................ 8 DOL/EBSA Rule on Investment Advice ............................................................................. 8 EPA Rule on “Fugitive Emissions” ..................................................................................... 9 EPA Aggregation Rule ........................................................................................................ 9 FAR Amendment on Employment Eligibility Verification ............................................... 10 HHS/CMS Rule on Durable Medical Equipment ............................................................. 10 USAID Rule on Partner Vetting System ............................................................................ 11

Agency Actions to Review or Rescind Rules .......................................................................... 12 DHS/ICE “No-Match” Rule ............................................................................................. 12 DOI/OSMRE “Excess Spoil” Rule ................................................................................... 13 DOL/ESA Rule on Labor Organization Annual Financial Reports .................................. 14 EPA Rule on Particulate Matter Less than 2.5 Micrometers ............................................. 15 EPA Rule on RCRA Comparable Fuel Exclusion ............................................................. 15 EPA Rule on Air Quality Standards for Lead .................................................................... 16 HHS Coercive Practices Rule ........................................................................................... 16 HUD Rule on RESPA and “Required Use” ...................................................................... 17 DOI/FWS Rule on the Habitat for the Northern Spotted Owl .......................................... 18

Congressional and Agency Actions to Stop or Delay Implementation ................................... 18 DOI/FWS and DOC/NMFS Endangered Species Act Rule .............................................. 19 HHS/CMS Rule on Outpatient Facility Services .............................................................. 20 Treasury/Federal Reserve Rule on Internet Gambling ...................................................... 20

Judicial Actions to Stop or Ensure Implementation ................................................................ 21 DOI/NPS and FWS Rule on Concealed Firearms in Parks............................................... 21 DOJ Rule on Certification of State Capital Counsel Systems .......................................... 21 DOL/ETA Rule on Temporary Employment of H-2A Aliens ........................................... 22

Rules in Effect but Under Legal or Administrative Challenge................................................ 23 EPA Rule on Transfers of Water ....................................................................................... 23 EPA Rule Revising Definition of Solid Waste .................................................................. 23 EPA Rule on Animal Waste Air Emissions ....................................................................... 24 DOT/FMCSA Rule on Hours of Service of Drivers ......................................................... 24

Concluding Observations .............................................................................................................. 25

Addressing and Resolving Midnight Rules Can Be Difficult ................................................. 27 Shortening the Rulemaking Process ................................................................................. 28

Other Methods Used to Delay or Challenge Midnight Rules ................................................. 30 Petitions for Reconsideration ............................................................................................ 31 Judicial Review ................................................................................................................. 32 Preventing Midnight Rules from Being Issued ................................................................. 32

The Congressional Review Act Was Not Used ....................................................................... 33 Limitations to Using the CRA .......................................................................................... 34



Other Congressional Options ............................................................................................ 35 Effect of the Bolten Memorandum .......................................................................................... 36

Tables

Table 1. Status of Selected Midnight Rules (as of August 2009) .................................................. 26

Contacts

Author Contact Information .......................................................................................................... 38


Congressional Research Service 1

Introduction

In the final months of the George W. Bush Administration, federal agencies issued dozens of

controversial final rules, many of which were scheduled to take effect just before or just after

President Bush left office on January 20, 2009. Similar “midnight rulemaking” has taken place at

the end of every recent presidential administration in which the party in control of the White

House has changed. 1 To eliminate or change such rules, federal agencies in the new

administration must issue new regulations by going through the sometimes lengthy rulemaking

process delineated in the Administrative Procedure Act (APA, 5 U.S.C. §§551 et seq.) and other

statutes and executive orders.2 Congress also has tools at its disposal to reverse or delay such

rules, including the Congressional Review Act (CRA, 5 U.S.C. §§801-808), even if the rules were

issued during the previous session of Congress and have already gone into effect.3 For example,

under the CRA’s “carryover” provisions, any final rule that was submitted to Congress during the

110th Congress after May 15, 2008, was treated as if it had been submitted on the 15

th legislative

day of the 111th Congress. A CRA resolution of disapproval could then be introduced during the

following 60 days of continuous session.4 Some observers expected that one or more of the Bush

Administration’s midnight rules would be reversed using the CRA during the 111th Congress.

5

This report describes what happened to some of the more controversial Bush Administration

midnight rules (defined as final rules that were published after the start of the CRA carryover

period). As discussed in detail below, some of the proposed rules that were of concern to one or

more interest groups were never issued as final rules, and some of the final rules that were issued

have been implemented by the Obama Administration without change or delay. However, other

Bush Administration rules have been delayed, blocked, or rescinded as a result of actions taken

by Congress, interest groups, the courts, federal agencies, or a combination of actors. None of the

Bush Administration’s rules have been reversed using the CRA, though, and none can be now or

in the future. The report concludes with some observations regarding how difficult it can be to

delay or reverse these rules; the options that are available to federal agencies, interest groups, and

1 See, for example, Jay Cochran, III, “The Cinderella Constraint: Why Regulations Increase Significantly During Post-

Election Quarters,” Mercatus Center, George Mason University, March 8, 2001. Cochran determined that, in election

years since 1948 with complete executive branch turnover, the volume of rulemaking during the post-election quarter

(measured by the number of pages in the Federal Register) increased by an average of 27% when compared to the

same periods in non-election years. See also Jason M. Loring and Liam R. Roth, “After Midnight: The Durability of the

‘Midnight’ Regulations Passed by the Two Previous Outgoing Administrations,” Wake Forest Law Review, vol. 40

(2005), pp. 1441-1465, which indicated that the George H.W. Bush and William J. Clinton Administrations issued

numerous “midnight rules.” 2 For more information, see CRS Report RL32240, The Federal Rulemaking Process: An Overview, by Curtis W.

Copeland. 3 For more information on the CRA, see CRS Report RL31160, Disapproval of Regulations by Congress: Procedure

Under the Congressional Review Act, by Richard S. Beth. Also see CRS Report RL30116, Congressional Review of

Agency Rulemaking: An Update and Assessment of The Congressional Review Act after a Decade, by Morton

Rosenberg. For more information on the options available to reverse midnight rules, see CRS Report RL34747,

Midnight Rulemaking: Considerations for Congress and a New Administration, by Curtis W. Copeland. 4 “Days of continuous session” includes all calendar days except those in which either the House of Representatives or

the Senate is not in session for more than three days. For more information on the CRA’s carryover provisions, see

CRS Report RL34633, Congressional Review Act: Disapproval of Rules in a Subsequent Session of Congress, by

Curtis W. Copeland and Richard S. Beth. 5 Ralph Lindeman, “Congressional Review Act Eyed as Vehicle for Hill to Overturn ‘Midnight Regulations,’” BNA

Daily Report for Executives, November 26, 2008, p. C-1, which described the CRA as “chief among the legislative

tools being examined” to reverse the Bush Administration’s midnight rules.

http://apps.crs.gov/products/rl/html/RL32240.html









Congress; and some possible reasons why the CRA was not used. First, however, the report

describes actions that were taken by both the outgoing Bush Administration and the incoming

Obama Administration to address midnight rulemaking—actions that, in some ways, set the stage

for the events to follow.

The Bolten Memorandum

On May 9, 2008, White House chief of staff Joshua B. Bolten issued a memorandum to the heads

of executive departments and agencies stating that federal agencies needed to “resist the historical

tendency of administrations to increase regulatory activity in their final months.” To prevent that

from occurring at the end of the Bush presidency, the memorandum said that, except for

“extraordinary circumstances, regulations to be finalized in this Administration should be

proposed no later than June 1, 2008, and final regulations should be issued no later than

November 1, 2008.”6 He also said the administrator of the Office of Information and Regulatory

Affairs (OIRA) within the Office of Management and Budget (OMB) would “coordinate an effort

to complete Administration priorities in this final year,” and that the OIRA administrator would

“report on a regular basis regarding agency compliance with this memorandum.”7

Despite this initiative, and statements from the White House notwithstanding,8 the number of

rules that federal agencies promulgated in the final months of the Bush Administration increased

noticeably. One indication of this increase is the number of major final rules that were sent to the

Government Accountability Office (GAO) pursuant to requirements in the CRA. The CRA

requires that all final rules be sent to each house of Congress and GAO before they can take

effect,9 and requires GAO to provide Congress with a report on each final rule that OIRA

designates as a “major” rule (e.g., rules with at least a $100 million impact on the economy)

within 15 calendar days of the rule being sent to GAO and Congress.10

From November 1, 2008,

through January 2009, federal agencies sent GAO a total of 341 “significant” or “substantive”

final rules, a 51% increase from the number of such rules sent during the same period one year

earlier (225 rules).11

During the same November 2008 – January 2009 timeframe, the agencies

6 See http://www.whitehouse.gov/omb/inforeg/cos_memo_5_9_08.pdf for a copy of this memorandum. The

memorandum said that agencies needed to “resist the historical tendency of administrations to increase regulatory

activity in their final months.” 7 Under Executive Order 12866, OIRA reviews all significant rules before they are published in the Federal Register

and is the President’s chief representative in the rulemaking process. See CRS Report RL32397, Federal Rulemaking:

The Role of the Office of Information and Regulatory Affairs, by Curtis W. Copeland. 8 See Ralph Lindeman, AWhite House Denies Effort to Issue Last-Minute Pro-Business Regulations,” BNA Daily

Report for Executives, November 3, 2008, p. A-15, in which deputy White House press secretary Tony Fratto denied

there had been an increase in rulemaking activity. Specifically, he said “We’re not doing that in this administration.”

His comments were made in response to a report by R. Jeffrey Smith, “A Last Push to Deregulate; White House to

Ease Many Rules,” Washington Post, October 31, 2008, p. A1. 9 5 U.S.C. §801(a)(1)(A).

10 5 U.S.C. §801(a)(2)(A).

11 GAO’s database can be accessed at http://www.gao.gov/fedrules/. Section 3(f) of the executive order defines a

“significant regulatory action” as any regulatory action that is “likely to result in a rule that may (1) Have an annual

effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the

economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal

governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned

by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the

rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the

(continued...)

http://www.whitehouse.gov/omb/inforeg/cos_memo_5_9_08.pdf



http://www.gao.gov/fedrules/



sent GAO 37 major rules, compared with 23 during the same period one year earlier (a 61%

increase). The surge in rulemaking at the end of the Bush Administration is also apparent in the

number of significant final rules that OIRA reviewed pursuant to Executive Order 12866.

According to the Regulatory Information Service Center, from September 1, 2008, through

December 31, 2008, OIRA reviewed a total of 190 significant final rules—a 102% increase when

compared with the same period in 2007 (when OIRA reviewed 94 significant final rules).12

The Emanuel and Orszag Memoranda

In one of the Obama Administration’s first actions, on January 20, 2009, Rahm Emanuel, assistant

to President Obama and chief of staff, sent a memorandum to the heads of executive departments

and agencies requesting that they generally (1) not send proposed or final rules to the Office of

the Federal Register, (2) withdraw from the office rules that had not yet been published in the

Federal Register, and (3) consider postponing for 60 days the effective dates of rules that had

been published in the Federal Register but had not yet taken effect.13

The next day, Peter R.

Orszag, Director of OMB, sent a memorandum to the heads of executive departments and

agencies providing guidance on implementing the third provision in the Emanuel memorandum.14

The Orszag memorandum said that agencies’ decisions on whether to extend the effective dates of

rules should be based on such considerations as whether the rulemaking process was procedurally

adequate, whether the rule reflected proper consideration of all relevant facts, and whether

objections to the rule were adequately considered. The Orszag memorandum also said that public

comments were to be sought regarding both the agencies’ “contemplated extension of the

effective date and the rule in question.” Agencies were also instructed to consult with OMB and

the Office of Legal Counsel within the Department of Justice (DOJ) before extending the

effective dates of any rules, particularly when the rules were scheduled to take effect before

public comments could be solicited.

The Emanuel and Orszag memoranda were only the latest in a long history of incoming

presidential administrations imposing a moratorium on new regulations by executive departments

and independent agencies. For example, on January 20, 2001, Andrew H. Card, Jr., assistant to

President George W. Bush and chief of staff, sent a memorandum to the heads and acting heads of

all executive departments and agencies generally directing them to (1) not send proposed or final

rules to the Office of the Federal Register, (2) withdraw from the office rules that had not yet been

published in the Federal Register, and (3) postpone for 60 days the effective dates of rules that

had been published but had not yet taken effect.15

The Card memorandum instructed agencies to

exclude from these requirements any rules promulgated pursuant to statutory or judicial

deadlines, and to notify the OMB Director of any rules that should be excluded because they

(...continued)

President’s priorities, or the principles set forth in this Executive order.” A “substantive” rule is defined in the Unified

Agenda as having less impact than a “significant” rule, but more impact than “routine and frequent” or “informational”

rules. 12

See http://www.reginfo.gov/public/do/eoCountsSearchInit?action=init to access this database.

13 Executive Office of the President, “Memorandum for the Heads of Executive Departments and Agencies,” 74

Federal Register 4435, January 26, 2009. 14

See http://ombwatch.org/regs/PDFs/OrszagMemo09-08.pdf for a copy of this memorandum. 15 U.S. White House Office, “Regulatory Review Plan,” 66 Federal Register 7702, January 24, 2001. To view a copy

of this memorandum, see http://www.whitehouse.gov/omb/inforeg/regreview_plan.pdf.

http://www.reginfo.gov/public/do/eoCountsSearchInit?action=init

http://ombwatch.org/regs/PDFs/OrszagMemo09-08.pdf

http://www.whitehouse.gov/omb/inforeg/regreview_plan.pdf



“impact critical health and safety functions of the agency.” The memorandum indicated that these

actions were needed to “ensure that the President’s appointees have the opportunity to review any

new or pending regulations.”16

Some Proposed Rules Were Not Issued as Final

Rules

Several controversial proposed rules that were expected to be issued as final rules in late 2008 or

early 2009 were never finalized by the Bush Administration. For example:

In July 2008, DOJ published a proposed rule that would “clarify and update”

policies governing criminal intelligence systems that receive federal funding, but

that the American Civil Liberties Union said could make it easier for state and

local police to collect, share, and retain sensitive information about Americans,

even when no underlying crime is suspected.17

In a front-page story in the

Washington Post, the chairman of the House Homeland Security Committee

characterized certain aspects of the proposed rule as “very troubling.”18

Although

DOJ indicated in the fall 2008 edition of the Unified Agenda that it planned to

issue the final rule by January 2009,19

the department did not do so.

The Environmental Protection Agency (EPA) was expected to make final a

proposed rule on the agency’s “new source review” program that would alter

current requirements for when upgrades at older power plants would require the

installation of modern anti-pollution equipment.20

EPA said that the change

would balance environmental protection with the “economic need of sources to

use existing physical and operating capacity.” However, several environmental

groups contended that the change would weaken existing protections and was

counter to a recent decision of the Supreme Court related to this issue.21

On

16 The incoming Clinton Administration did much the same thing. On January 22, 1993, Leon E. Panetta, the Director

of OMB, sent a memorandum to the heads and acting heads of Cabinet departments and independent agencies

requesting them to (1) not send proposed or final rules to the Office of the Federal Register for publication until they

had been approved by an agency head appointed by President Clinton and confirmed by the Senate, and (2) withdraw

from the Office of the Federal Register all regulations that had not been published in the Federal Register and that

could be withdrawn under existing procedures. See http://www.prop1.org/rainbow/adminrec/930122lp.htm for a copy

of this memorandum. 17 For the proposed rule, see U.S. Department of Justice, Office of Justice Programs, “Criminal Intelligence Systems

Operating Procedures,” 73 Federal Register 44673, July 31, 2008. 18 Spencer S. Hsu and Carrie Johnson, “U.S. May Ease Police Spy Rules,” Washington Post, August 16, 2008, p. A-1. 19 The Unified Agenda of Federal Regulatory and Deregulatory Actions (Unified Agenda) is compiled and published

twice each year by the Regulatory Information Service Center (RISC) within the General Services Administration

(GSA), and provides the public with information about regulations that federal agencies are considering or reviewing.

To view the Unified Agenda, see http://www.reginfo.gov/public/do/eAgendaMain. To view this entry, see

http://www.reginfo.gov/public/do/eAgendaViewRule?pubId=200904&RIN=1121-AA59. For more information, see

CRS Report R40713, The Unified Agenda: Implications for Rulemaking Transparency and Participation, by Curtis W.

Copeland. 20 For the proposed rule, see U.S. Environmental Protection Agency, “Supplemental Notice of Proposed Rulemaking

for Prevention of Significant Deterioration and Nonattainment New Source Review: Emission Increases for Electric

Generating Units,” 72 Federal Register 26201, May 8, 2007. 21 American Lung Association, EarthJustice, Environmental Defense, Natural Resources Defense Council, and Sierra

(continued...)

http://www.prop1.org/rainbow/adminrec/930122lp.htm

http://www.reginfo.gov/public/do/eAgendaMain

http://www.reginfo.gov/public/do/eAgendaViewRule?pubId=200904&RIN=1121-AA59

http://apps.crs.gov/products/r/html/R40713.html



December 10, 2008, EPA announced that it would not be issuing a final rule on

this issue, citing a recent decision on a related matter by the U.S. Court of

Appeals for the District of Columbia Circuit.22

The same day, EPA also decided

not to issue another final rule that some contended would change emissions

standards for industrial facilities operating near national parks.23

A congressional

hearing on these and other rules had been scheduled for December 11, 2008, and

an official from the Natural Resources Defense Counsel (NRDC) said that the

timing of EPA’s announcement was “clearly a result of the House hearing on

midnight regulations.”24

The Mine Safety and Health Administration (MSHA) within the Department of

Labor (DOL) was expected to finalize a September 2008 proposed rule that

would prohibit the possession or consumption of alcohol and drugs on mine

property, and would prohibit workers from being under the influence of alcohol

and drugs while performing certain job functions.25

The comment period for the

proposed rule ended on November 10, 2008, and MSHA indicated in the fall

2008 edition of the Unified Agenda that it planned to issue the final rule by

January 2009.26

However, after business, labor, and other groups expressed

criticisms of the proposed rule, MSHA did not issue the final rule.27

DOL indicated in the fall 2008 edition of the Unified Agenda that it planned to

issue a final rule by November 2008 that would change the way that occupational

health risk assessments were conducted in the department. After the proposed

rule was issued in August 2008, legislation was introduced in the 110th Congress

(H.R. 6660 and S. 3566) to prohibit the issuance or enforcement of the final rule.

The legislation was not enacted, but DOL never issued the final rule.28

(...continued)

Club, “Comments on EPA’s Proposed ‘Supplemental Notice of Proposed Rulemaking for Prevention of Significant

Deterioration and Nonattainment New Source Review: Emission Increases for Electric Generating Units,’” available at

http://www.regulations.gov/fdmspublic/component/main?main=DocumentDetail&o=0900006480273d62. 22 Andrew Chidlers, “EPA Drops Rules to Alter Emissions Test, Allow Coal-Fired Power Plants Near Parks,” BNA

Daily Report for Executives, December 11, 2008, p. A-15. 23 For characterizations of this rule, see Juliet Eilperin, “Clean-Air Rules Protecting Parks Set to Be Eased,”

Washington Post, May 16, 2008, p. A-1; and Mark Clayton, “Why National Parks, Coal-Fired Power Plants May Be

Neighbors,” Christian Science Monitor, April 24, 2008, p. 13. 24 Andrew Chidlers, “EPA Drops Rules to Alter Emissions Test, Allow Coal-Fired Power Plants Near Parks,” BNA

Daily Report for Executives, December 11, 2008, p. A-15, quoting John Walke, NRDC clean air programs director. The

congressional hearing was held by the House Select Committee on Energy Independence and Global Warming. For

more information, see http://globalwarming.house.gov/pubs/archives_110?id=0061#main_content. 25 For the proposed rule, see U.S. Department of Labor, Mine Safety and Health Administration, “Alcohol- and Drug-

Free Mines; Policy Prohibitions, Testing, Training, and Assistance,” 73 Federal Register 52136, September 8, 2008. 26 See http://www.reginfo.gov/public/do/eAgendaViewRule?pubId=200810&RIN=1219-AB41 for this entry. 27 Gayle Cinquegrani, “Union, Mine Operators Blast Proposed Rule, Citing Lack of Need, Privacy, Conflicting Laws,”

BNA Daily Labor Report, December 12, 2008, p. C-1. 28

For the proposed rule, see U.S. Department of Labor, Office of the Secretary, “Requirements for DOL Agencies=

Assessment of Occupational Health Risks,” 73 Federal Register 50909, August 29, 2008. For characterizations of the

rule, see Carol D. Leonnig, “U.S. Rushes to Change Workplace Toxin Rules,” Washington Post, July 23, 2008, p. A1;

and Gayle Cinquegrani, “Miller Introduces House Bill to Prohibit DOL ‘Secret Rule’ on Workplace Toxin Exposure,”

BNA Daily Report for Executives, August 1, 2008, p. A-7. On August 18, 2008, a Washington Post editorial

recommended that the Department of Labor withdraw its proposed rule. See “A Toxic Proposal: The Labor Department

Politicizes a Regulation of Workplace Health,” Washington Post, August 18, 2008, p. A10.

http://www.congress.gov/cgi-lis/bdquery/z?d110:H.R.6660:

http://www.congress.gov/cgi-lis/bdquery/z?d110:S.3566:

http://www.regulations.gov/fdmspublic/component/main?main=DocumentDetail&o=0900006480273d62

http://globalwarming.house.gov/pubs/archives_110?id=0061#main_content

http://www.reginfo.gov/public/do/eAgendaViewRule?pubId=200810&RIN=1219-AB41



In at least one case, a final rule that was expected but not issued at the end of the Bush

Administration was later issued during the first six months of the Obama Administration. In

August 2005, the National Highway Traffic Safety Administration (NHTSA) within the

Department of Transportation (DOT) proposed strengthening the agency’s safety standard on roof

crush resistance in passenger cars and other vehicles.29

After a June 4, 2008, Senate oversight

hearing and a bipartisan letter of concern from several Senators, the Secretary of Transportation

asked Congress to extend the statutory deadline for the issuance of the final rule until October

2008.30

In the fall 2008 edition of the Unified Agenda, NHTSA indicated that it planned to issue

the final rule in December 2008. However, after two other extensions of the deadline, DOT

ultimately published a final rule in May 2009 that was stronger in several respects from what had

been initially proposed.31

Some Midnight Rules Have Been Implemented As

Issued

In other cases, federal agencies published final rules shortly before the end of the Bush

Administration, and the rules have been implemented during the Obama Administration without

delay or change. For example:

On January 15, 2009, the Agricultural Marketing Service within the Department

of Agriculture (USDA) published a final rule establishing mandatory country of

origin labeling for certain meats, fish, nuts, and other commodities.32

The rule

was scheduled to take effect on March 16, 2009. Pursuant to the Emanuel

memorandum, USDA reviewed the rule for several weeks to determine whether it

should be delayed or changed. On February 20, 2009, the Secretary of

Agriculture announced that the rule would go into effect as scheduled, but he

asked the affected industries to follow additional voluntary practices.33

He also

said that the department would monitor implementation of the rule and the

industries’ performance in relation to these suggestions for voluntary action to

determine if new rulemaking was needed.

29 U.S. Department of Transportation, National Highway Traffic Safety Administration, “Federal Motor Vehicle Safety

Standards; Roof Crush Resistance,” 70 Federal Register 49223, August 23, 2005. 30 “DOT Secretary Peters Seeks Extension to Oct. 1 of Roof Crush Final Rule Deadline,” BNA Daily Report for

Executives, July 2, 2008, p. A-12. In her letter, the Secretary said the delay was necessary because of the “number of

new comments we received and the additional analyses that are required.” 31 U.S. Department of Transportation, National Highway Traffic Safety Administration, “Federal Motor Vehicle Safety

Standards; Roof Crush Resistance,” 74 Federal Register 22348, May 12, 2009. For example, compared to the proposal,

the final rule adopted a higher strength-to-weight ratio, a two-sided test (instead of a one-sided test), and added a new

headroom requirement. 32 U.S. Department of Agriculture, Agricultural Marketing Service, “Mandatory Country of Origin Labeling of Beef,

Pork, Lamb, Chicken, Goat Meat, Wild and Farm-Raised Fish and Shellfish, Perishable Agricultural Commodities,

Peanuts, Pecans, Ginseng, and Macadamia Nuts,” 74 Federal Register 2658, January 15, 2009. 33 To view a copy of the Secretary’s announcement, see http://www.usda.gov/wps/portal/!ut/p/_s.7_0_A/7_0_1OB/

.cmd/ad/.ar/sa.retrievecontent/.c/6_2_1UH/.ce/ 7_2_5JM/.p/5_2_4TQ/.d/2/_th/J_2_9D/_s.7_0_A/7_0_1OB?

PC_7_2_5JM_contentid=2009%2F02%2F0045.xml&PC_7_2_5JM_parentnav=LATEST_RELEASES&

PC_7_2_5JM_navid=NEWS_REL.

http://www.usda.gov/wps/portal/



On December 16, 2008, the Fish and Wildlife Service (FWS) within the

Department of the Interior (DOI) published a final rule providing “measures that

are necessary and advisable to provide for the conservation of the polar bear.”34

Among other things, the rule stated that “any incidental take of polar bears that

results from activities that occur outside of the current range of the species is not

a prohibited act under the [Endangered Species Act].” On March 11, 2009,

Congress enacted the Omnibus Appropriations Act, 2009 (P.L. 111-8), Section

429 of which authorized the Secretary of the Interior to withdraw this rule within

the next 60 days “without regard to any provision of statute or regulation that

establishes a requirement for such withdrawal.”35

On May 8, 2009, however, the

Secretary of the Interior announced that DOI would retain the Bush

Administration’s rule, but would “closely monitor the implementation of the rule

to determine if additional measures are necessary to conserve and recover the

polar bear and its habitat.”36

On November 26, 2008, the Transportation Security Administration (TSA) within

the Department of Homeland Security (DHS) published a final rule that would,

among other things, establish security requirements for certain railroad facilities,

requiring them to provide TSA with information on specified hazardous

materials.37

The rule was to have taken effect on December 26, 2008, but on

December 19, 2008, TSA extended the effective date of one section of the rule

(requiring a secure chain of physical custody for rail cars containing one or more

rail security-sensitive materials) until April 1, 2009, to allow affected carriers,

shippers, and receivers additional time to come into compliance with the rule’s

requirements.38

The Obama Administration decided not to change the rule, and

all of its provisions were in effect after April 1, 2009.39

At Least 25 Bush Administration Midnight Rules

Have Been Challenged

At least 25 other Bush Administration midnight rules have been delayed, stayed, amended, or

rescinded. The methods by which these actions occurred varied considerably. In some cases, the

agencies that issued the rules appeared to be solely responsible for the actions taken. In many

34 U.S. Department of the Interior, Fish and Wildlife Service, “Endangered and Threatened Wildlife and Plants; Special

Rule for the Polar Bear,” 73 Federal Register 76249, December 16, 2008. 35 As discussed later in this report, Section 429 also permitted the Secretary of the Interior and the Secretary of

Commerce to withdraw a December 16, 2008, rule on “Interagency Cooperation Under the Endangered Species Act”

(73 Federal Register 76272). This rule was withdrawn on May 4, 2009. 36 U.S. Fish and Wildlife Service, News Release, “Salazar Retains Conservation Rule for Polar Bears,” May 8, 2009,

available at http://www.fws.gov/news/NewsReleases/showNews.cfm?newsId=20FB90B6-A188-DB01-

04788E0892D91701. 37 U.S. Department of Homeland Security, Transportation Security Administration, “Rail Transportation Security,” 73

Federal Register 72130, November 26, 2008. 38 U.S. Department of Homeland Security, Transportation Security Administration, “Rail Transportation Security,” 73

Federal Register 77531, December 19, 2008. 39 Telephone conversation between the author and David H. Kasminoff, Office of Chief Counsel, TSA, July 23, 2009.

http://www.congress.gov/cgi-lis/bdquery/R?d111:FLD002:@1(111+8)

http://www.fws.gov/news/NewsReleases/showNews.cfm?newsId=20FB90B6-A188-DB01-04788E0892D91701

http://www.fws.gov/news/NewsReleases/showNews.cfm?newsId=20FB90B6-A188-DB01-04788E0892D91701



other cases, however, Congress, interest groups, the courts, or a combination of actors played a

role in preventing the rules from taking effect as scheduled.

Agency Actions to Delay or Stay the Effective Dates of Rules

DOL/EBSA Rule on Investment Advice

On January 21, 2009, the Employee Benefits Security Administration (EBSA) within DOL

published a final rule permitting additional fees to be paid to those providing investment advice to

participants and beneficiaries of participant-directed individual retirement account plans, and to

beneficiaries of individual retirement accounts.40

The rule was scheduled to take effect on March

23, 2009. However, on February 4, 2009, in response to the Emanuel and Orszag memoranda,

EBSA published a notice of proposed rulemaking in the Federal Register seeking comment on a

possible 60-day extension of the effective date of the rule (i.e., until May 22, 2009), and on issues

of law and policy raised by the rule.41

On March 20, 2009, EBSA published a final rule delaying

the effective date until May 22 “for agency review of questions of law and policy.”42

On May 22,

2009, EBSA published another final rule (without a prior proposed rule) delaying the effective

date until November 18, 2009.43

The agency said in this rule that the “complexity and

significance of issues involved justify delaying the effective and applicability dates of the final

rule for an additional 180 days in order to afford the Department time for further review.”

Congressional action related to this issue is also possible. On June 24, 2009, the House

Committee on Education and Labor approved and ordered to be reported H.R. 2989, the “401(k)

Fair Disclosure and Pension Security Act of 2009.” According to Investment News, enactment of

the legislation “could effectively nullify a January ruling by the Department of Labor and the

Bush administration which allowed brokers and reps affiliated with financial services providers to

serve as 401(k) advisers.”44

On July 31, 2009, the House Committee on Education and Labor

reported the bill, and the committee report stated the following:

The bill would prohibit providers of investment services to defined contribution plans from

supplying investment advice to those plans and would impose new requirements on other

service providers that supply investment advice to plans. Some of the business transactions

that would be prohibited under the bill would be permitted under the Department of Labor’s

final rules pertaining to investment advice, which are scheduled to become effective on

November 18, 2009. 45

40 U.S. Department of Labor, Employee Benefits Security Administration, “Investment Advice—Participants and

Beneficiaries,” 74 Federal Register 3822, January 21, 2009. Although this and other midnight rules were not published

in the Federal Register until after the start of the Obama Administration, these rules were on file at the Office of the

Federal Register by January 16, 2009, and therefore were considered issued during the Bush Administration. 41 U.S. Department of Labor, Employee Benefits Security Administration, “Investment Advice—Participants and

Beneficiaries,” 74 Federal Register 6007, February 4, 2009. 42 U.S. Department of Labor, Employee Benefits Security Administration, “Investment Advice—Participants and

Beneficiaries,” 74 Federal Register 11847, March 20, 2009. 43 U.S. Department of Labor, Employee Benefits Security Administration, “Investment Advice—Participants and

Beneficiaries,” 74 Federal Register 23951, May 22, 2009. 44 Mark Bruno, “House Committee Approves Bill Restricting 401(k) Advice to Indie Advisers,” Investment News,

available at http://www.investmentnews.com/article/20090624/REG/906249961. 45 U.S. Congress, House Committee on Education and Labor, 401(k) Fair Disclosure and Pension Security Act of 2009,

(continued...)


http://www.investmentnews.com/article/20090624/REG/906249961



Also on July 31, 2009, the House Committee on Ways and Means granted an extension for further

consideration of the legislation, ending not later than October 16, 2009.

EPA Rule on “Fugitive Emissions”

On December 19, 2008, EPA published a final rule on “Prevention of Significant Deterioration

(PSD) and Nonattainment New Source Review (NSR): Reconsideration of Fugitive Emissions,”

which would exempt certain industries from the requirement to count such emissions in

determining whether the NSR program applies.46

The rule went into effect on January 20, 2009.

On February 17, 2009, NRDC petitioned EPA for reconsideration of the rule’s implementation,

citing the review authority and procedures in Section 307(d)(7)(B) of the Clean Air Act.47

On

April 24, 2009, EPA administrator Lisa P. Jackson notified NRDC that she had granted its request,

and said that EPA would publish a Federal Register notice in the near future addressing the

specific issues for which the agency was granting reconsideration.48

She also said that she was

granting NRDC’s request that EPA stay the effectiveness of the rule for three months. However,

as of August 2009, EPA had not published a Federal Register notice implementing the stay, so the

rule technically remained in effect.

EPA Aggregation Rule

On January 15, 2009, EPA published a final rule amending the agency’s definition of

“modification” in the Clean Air Act’s NSR program, addressing when a source must aggregate

separate physical changes and changes in the method of operation for the purpose of determining

whether they are a single change resulting in a significant emission release.49

The rule was to

have taken effect on February 17, 2009. However, on January 30, 2009, NRDC submitted a

petition to EPA for reconsideration of the rule under procedures provided for in Section

307(d)(7)(B) of the Clean Air Act. On February 13, 2009, EPA announced that it would delay the

effective date of the rule until May 18, 2009, and would convene a reconsideration proceeding.50

In explanation, EPA said that NRDC had met the statutory requirements for review, and noted that

the Emanuel and Orszag memoranda had called on agencies to consider delaying rules that had

not taken effect. On March 18, 2009, EPA proposed an additional delay and sought comments by

(...continued)

report to accompany H.R. 2989, 111th Cong., 1st sess., H.Rept. 111-244 (Washington: GPO, 2009), pp. 63-64. 46 U.S. Environmental Protection Agency, “Prevention of Significant Deterioration (PSD) and Nonattainment New

Source Review (NSR): Reconsideration of Fugitive Emissions,” 73 Federal Register 77882, December 19, 2008. EPA

defines “fugitive emissions” in this context as emissions that could not reasonably pass through a stack, chimney, vent,

or other opening. Examples include windblown dust from surface mines and volatile organic compounds emitted from

leaking pipes and fittings at petroleum refineries. 47 That provision (codified at 42 U.S.C. §7607(d)(7)(B)) states that if a person raising an objection can demonstrate that

it was impracticable to do so during the public comment period for a rule, or if the grounds for such objection arose

after the comment period, and if the objection is of central relevance to the outcome of the rule, the EPA administrator

is required to convene a proceeding for reconsideration of the rule, and is allowed to stay the effectiveness of the rule

for up to three months. 48 See http://www.epa.gov/nsr/documents/NRDC.pdf for a copy of this letter. 49 U.S. Environmental Protection Agency, “Prevention of Significant Deterioration (PSD) and Nonattainment New

Source Review (NSR): Aggregation and Project Netting,” 74 Federal Register 2376, January 15, 2009. 50 U.S. Environmental Protection Agency, “Prevention of Significant Deterioration (PSD) and Nonattainment New

Source Review (NSR): Aggregation and Project Netting,” 74 Federal Register 7193, February 13, 2009.


http://www.congress.gov/cgi-lis/cpquery/R?cp111:FLD010:@1(hr244):

http://www.epa.gov/nsr/documents/NRDC.pdf



April 17, 2009, on the duration of the delay.51

On May 14, 2009, EPA published a final rule

delaying the effective date of the aggregation rule until May 18, 2010.52

EPA said the one-year

delay was needed because of the complexity of the issues under review, the likelihood of

significant public interest, and the agency’s experience in previous NSR reconsiderations.

FAR Amendment on Employment Eligibility Verification

On November 14, 2008, the Department of Defense (DOD), the General Services Administration

(GSA), and the National Aeronautics and Space Administration (NASA) jointly published a final

rule amending the Federal Acquisition Regulation (FAR) on employment eligibility verification,

requiring that certain contractors and subcontractors use the E-Verify system as the means to

verify that certain employees are eligible to work in the United States.53

The rule took effect on

January 15, 2009, and in a section entitled “applicability date,” contracting officers were

instructed to modify certain existing contracts to include the clause in certain future work orders

“if the remaining period of performance extends at least six months after the final rule’s effective

date, and the amount of work or number of orders expected under the remaining performance

period is substantial.”54

On January 30, 2009, the agencies published an amendment to the final

rule, extending the applicability date to May 21, 2009.55

On April 17, 2009, the agencies

published another amendment, delaying the applicability date until June 30, 2009.56

The agencies

published a third amendment on June 5, 2009, delaying the applicability of the rule until

September 8, 2009.57

The agencies did not explain in any of these amendments why the

applicability date was being extended.

HHS/CMS Rule on Durable Medical Equipment

On January 16, 2009, the Centers for Medicare and Medicaid Services (CMS) within the

Department of Health and Human Services (HHS) published an interim final rule58

implementing

51 U.S. Environmental Protection Agency, “Prevention of Significant Deterioration (PSD) and Nonattainment New

Source Review (NSR): Aggregation,” 74 Federal Register 11509, March 18, 2009. 52 U.S. Environmental Protection Agency, “Prevention of Significant Deterioration (PSD) and Nonattainment New

Source Review (NSR): Aggregation,” 74 Federal Register 22693, May 14, 2009. 53 U.S. Department of Defense, General Services Administration, and National Aeronautics and Space Administration,

“Federal Acquisition Regulation; FAR Case 2007-013, Employment Eligibility Verification,” 73 Federal Register

67651, November 14, 2008. E-Verify is an internet system operated by DHS, in partnership with the Social Security

Administration, that allows employers to electronically verify the employment eligibility of their newly hired

employees. To use that system, employers must agree to abide by current legal hiring procedures and ensure that no

employee will be discriminated against in the use of the program. 54 Ibid. 55 U.S. Department of Defense, General Services Administration, and National Aeronautics and Space Administration,


5621, January 30, 2009. 56 U.S. Department of Defense, General Services Administration, and National Aeronautics and Space Administration,


17793, April 17, 2009. 57 U.S. Department of Defense, General Services Administration, and National Aeronautics and Space Administration,


26981, June 5, 2009. 58 Interim final rules are published without a previous notice of proposed rulemaking, and can be viewed as a particular

application of the “good cause” exception to notice and comment procedures that is permitted in 5 U.S.C. 553(b)(B).

For more information, see Michael Asimow, “Interim Final Rules: Making Haste Slowly,” Administrative Law Review,

(continued...)



certain provisions within the Medicare Improvements for Patients and Providers Act of 2008

(MIPPA) that, among other things, delayed certain aspects of the competitive acquisition

program.59

The rule was to take effect on February 17, 2009. However, on February 10, 2009,

CMS published a notice of a proposed 60-day delay in the rule’s effective date, and solicited

comments within three days (i.e., by February 13, 2009) on both the proposed delay and on the

rule itself.60

In explanation, CMS cited the Emanuel memorandum, and said the delay would be

used to review “issues of law and policy raised by this rule.” On February 19, 2009, CMS

published a 60-day delay in the effective date until April 18, 2009.61

On April 13, 2009, an

industry group representing durable medical equipment suppliers asked CMS to withdraw the

rule, asserting that it would have a negative impact on patients and businesses nationwide.62

Several Members of Congress also reportedly requested that CMS rescind the rule. Nevertheless,

on April 17, 2009, CMS issued a statement that the rule would take effect on April 18, and said it

would issue guidelines on the program in the future.63

On May 29, 2009, CMS said that the first

round of the competitive bidding program would begin in the fall.64

USAID Rule on Partner Vetting System

On January 2, 2009, the U.S. Agency for International Development (USAID) published a final

rule exempting portions of the agency’s partner vetting system (PVS) from one or more

provisions of the Privacy Act.65

The PVS is a system of records that would support the vetting of

“principle employees” of non-governmental organizations who apply for USAID funding and

other such organizations who apply for registration as private and voluntary organizations. The

information would be used to ensure that USAID funds are not used to support individuals or

entities deemed to be a risk to national security. The rule was scheduled to go into effect on

February 2, 2009. However, on February 2, 2009, citing the Emanuel memorandum, USAID

published a final rule delaying the effective date for 60 days, and requesting comments from the

(...continued)

vol. 51 (summer 1999), pp. 703-755. 59 U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services, “Medicare Program;

Changes to the Competitive Acquisition of Certain Durable Medical Equipment, Prosthetics, Orthotics and Supplies

(DMEPOS) by Certain Provisions of the Medicare Improvements for Patients and Providers Act of 2008 (MIPPA),” 74

Federal Register 2873, January 16, 2009. 60 U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services, “Medicare Program;



Federal Register 6557, February 10, 2009. 61 U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services, “Medicare Program;



Federal Register 7653, February 19, 2009. This publication was described as a “delay of effective date,” not as a

proposed or final rule. 62 “Industry Group Asks CMS to Withdraw DME Competitive Bid Interim Final Rule,” BNA Health Care Policy

Report, April 20, 2009, p. 585. 63 “Competitive Bidding for DME Will Resume; CMS Will Issue Further Guidance to Suppliers,” BNA Health Care

Policy Report, April 27, 2009, p. 621. 64 “Bidding for DME Suppliers to Begin in Fall, Registration to Start in Summer, CMS Says,” BNA Health Care Policy

Report, June 8, 2009, p. 862. See http://www.cms.hhs.gov/DMEPOSCompetitiveBid/01_overview.asp for more

information on this program. 65 U.S. Agency for International Development, “Privacy Act of 1974, Implementation of Exceptions,” 74 Federal

Register 9, January 2, 2009.

http://www.cms.hhs.gov/DMEPOSCompetitiveBid/01_overview.asp



public within 30 days.66

On April 2, 2009, the agency published another final rule delaying

implementation for another 30 days.67

No reason was given for the delay. Then, on May 6, 2009,

USAID delayed the rule’s implementation until August 4, 2009.68

Again, no reason was given for

the delay. On June 26, 2009, USAID published a proposed rule on applying PVS to the agency’s

acquisitions, but also said that it had “not yet made a final decision whether to implement PVS. If

and when USAID decides to implement PVS, it will be implemented incrementally, with an

initial pilot program in several USAID locations worldwide.”69

Congress may also play a role in determining whether the partner vetting rule is implemented.

Section 7034(m) of the Senate version of the appropriations bill funding USAID for FY2010 (S.

1434, 111th Congress) states that

No further action to finalize or implement a Partner Vetting System (PVS) shall be taken by

the Secretary of State or the Administrator of the United States Agency for International

Development (USAID) until a new USAID Administrator has been confirmed and has

undertaken a comprehensive review of the scope, methodology and effect of PVS, including

consultation with affected organizations, the Committees on Appropriations and Foreign

Relations of the Senate and the Committees on Appropriations and Foreign Affairs of the

House of Representatives.

In explanation, the Senate Committee on Appropriations report for the legislation states that the

committee is concerned that the vetting system “could have unintended, adverse consequences for

assistance programs implemented by [non-governmental organizations] and contractors.” Review

by the new USAID administrator is required to “ensure a new PVS reflects the right balance

between security, privacy and effective implementation of assistance programs.” The

appropriations bill was placed on the Senate’s legislative calendar on July 9, 2009, and as of

August 2009, has not been acted upon. The comparable appropriations bill from the House of

Representatives (H.R. 3081) does not contain a similar provision.

Agency Actions to Review or Rescind Rules

DHS/ICE “No-Match” Rule

On October 28, 2008, Immigration and Customs Enforcement (ICE) within DHS published a

supplemental final rule on “safe harbor procedures for employers who receive a no-match letter”

from the Social Security Administration.70

Those “no-match” letters indicate that an employee’s

name and social security number as provided by the employers do not match a list of names and

66 U.S. Agency for International Development, “Privacy Act of 1974, Implementation of Exceptions,” 74 Federal

Register 5808, February 2, 2009. 67 U.S. Agency for International Development, “Privacy Act of 1974, Implementation of Exceptions,” 74 Federal

Register 14931, April 2, 2009. 68 U.S. Agency for International Development, “Privacy Act of 1974, Implementation of Exceptions,” 74 Federal

Register 20871, May 6, 2009. 69 U.S. Agency for International Development, “Partner Vetting in USAID Acquisitions,” 74 Federal Register 30494,

June 26, 2009. 70 U.S. Department of Homeland Security, Immigration and Customs Enforcement, “Safe Harbor Procedures for

Employers Who Receive a No-Match Letter: Clarification; Final Regulatory Flexibility Analysis,” 73 Federal Register

63843, October 28, 2008.






numbers, and thereby cast doubt on the employment eligibility of their employees. Previously, in

August 2007, ICE had published a final rule setting out those procedures.71

However, the rule

never went into effect because of a lawsuit filed by the AFL-CIO and others, and a subsequent

court action.72

The October 2008 supplemental final rule was an attempt to address the issues

raised in the lawsuit, but generally reaffirmed the text of the August 2007 rule.

The October 2008 rule was supposed to take effect upon publication. However, because of the

continuing court challenge, neither the August 2007 rule nor the October 2008 rule ever went into

effect. On July 9, 2009, DHS announced its intention to propose a new regulation that would

rescind the October 2008 “no-match” rule, but said it would push ahead with full implementation

of a separate rule requiring federal contractors to use an electronic system to verify employees’

authorization to work in the United States (E-Verify).73

On August 19, 2009, ICE published a

proposed rule to rescind the August 2007 and October 2008 rules, saying that the department had

“determined to focus its enforcement efforts relating to the employment of aliens not authorized

to work in the United States on increased compliance through improved verification.”74

Comments on the proposed rescission were required by September 18, 2009.

DOI/OSMRE “Excess Spoil” Rule

On December 12, 2008, the Office of Surface Mining Reclamation and Enforcement (OSMRE)

within DOI published a final rule on “Excess Spoil, Coal Mine Waste, and Buffers for Perennial

and Intermittent Streams” that permitted coal mine operators to dispose of excess mountaintop fill

within 100 feet of streams when other options are “not reasonably feasible.”75

The rule took effect

on January 12, 2009. Environmental groups filed two lawsuits in relation to the rule, both in the

U.S. District Court for the District of Columbia.76

On April 27, 2009, the Secretary of the Interior

announced that DOI and DOJ had concluded the December 2008 rule had “legal deficiencies,”

and that DOI would seek to replace the rule with a revised rule.77

The Secretary directed DOJ to

file a pleading with the U.S. District Court for the District of Columbia requesting that the rule be

vacated and remanded to DOI for further action.

On August 12, 2009, U.S. District Judge Henry H. Kennedy, Jr., rejected a request from the

defendants in the case (the Secretary of the Interior, the EPA administrator, and the acting director

71 U.S. Department of Homeland Security, Immigration and Customs Enforcement, “Safe Harbor Procedures for

Employers Who Receive a No-Match Letter,” 72 Federal Register 45611, August 15, 2007. 72 AFL-CIO v. Chertoff, 552 F.Supp.2d 999 (N.D. Cal. 2007). The October 2008 final rule describes the issues in this

case and other court actions. 73 U.S. Department of Homeland Security, Office of the Press Secretary, “Secretary Napolitano Strengthens

Employment Verification with Administration’s Commitment to E-Verify,” July 8, 2009, available at

http://www.dhs.gov/ynews/releases/pr_1247063976814.shtm. 74 U.S. Department of Homeland Security, Immigration and Customs Enforcement, “Safe-Harbor Procedures for

Employers Who Receive a No-Match Letter: Rescission,” 74 Federal Register 41801, August 19, 2009. 75 U.S. Department of the Interior, Office of Surface Mining Reclamation and Enforcement, “Excess Spoil, Coal Mine

Waste, and Buffers for Perennial and Intermittent Streams,” 73 Federal Register 75814, December 12, 2008. 76 National Parks Conservation Association v. Salazar, No. 09-00115, 2009 U.S. Dist. LEXIS 73019 (D.D.C. Aug. 12,

2009). 77 U.S. Department of the Interior, Office of the Secretary, “News Release: Salazar Moves to Withdraw 11th Hour

Mountaintop Coal Mining Rule,” April 27, 2009. See also Alan Kovski, “Interior Will Ask Court to Remand Rule on

Rock Waste from Surface Coal Mines,” BNA Daily Environmental Report, April 28, 2009, p. A-10.

http://www.dhs.gov/ynews/releases/pr_1247063976814.shtm



of OSMRE) to dismiss the case on the grounds that there no longer exists a case or controversy.78

The judge said that there was no precedent for dismissal and remand to the agencies under these

circumstances, and that the agency must follow APA procedures before repealing the rule. The

ruling did not address the underlying issues in the case, and deliberations were expected to

continue in the U.S. District Court for the District of Columbia.

DOL/ESA Rule on Labor Organization Annual Financial Reports

On January 21, 2009, the Employment Standards Administration (ESA) within DOL published a

final rule on labor organization reporting.79

The rule made changes to the form used by labor

organizations to file annual financial reports, clarified reporting responsibilities, and established

procedures by which the Secretary of Labor could revoke an organization’s ability to file a

simplified report. It was scheduled to take effect on February 20, 2009, and would apply

prospectively to labor organizations whose fiscal years began on or after July 1, 2009. However,

on February 3, 2009, ESA proposed delaying the effective date of the rule by 60 days, citing the

Emanuel and Orszag memoranda.80

Comments on the proposed delay were requested by February

13, 2009. On February 20, 2009, ESA published a final rule delaying the effective date until April

21, 2009.81

On March 19, 2009, ESA proposed delaying the effective date for an additional 180 days, and

delaying the applicability date by six months.82

On April 21, 2009, ESA published a final rule

delaying the effective date until October 19, 2009, and delaying the applicability of the regulation

until January 1, 2010.83

In explanation, ESA said the delay would “allow additional time for the

agency and the public to consider a proposal to withdraw the January 21 regulations, and,

meanwhile, to permit unions to delay costly development and implementation of any necessary

new accounting and recordkeeping systems and procedures.” In a separate Federal Register

publication that same day, ESA proposed to withdraw the January 21 final rule.84

Originally,

comments on the proposed withdrawal were due by May 21, but the comment period was later

extended to June 22, 2009.85

In the spring 2009 edition of the Unified Agenda, ESA indicated that

it planned to finalize the withdrawal in October 2009.86

78 Alan Kovski, “Court Refuses to Cut Short Legal Dispute Over Disposal of Mine Waste in Streams,” BNA Daily

Report for Executives, August 13, 2009, p. A-21. 79 U.S. Department of Labor, Employment Standards Administration, “Labor Organization Annual Financial Reports,”

74 Federal Register 3678, January 21, 2009. 80 U.S. Department of Labor, Employment Standards Administration, “Labor Organization Annual Financial Reports,”

74 Federal Register 5899, February 3, 2009. 81 U.S. Department of Labor, Employment Standards Administration, “Labor Organization Annual Financial Reports,”

74 Federal Register 7814, February 20, 2009. 82 U.S. Department of Labor, Employment Standards Administration, “Labor Organization Annual Financial Reports,”

74 Federal Register 11700, March 19, 2009. 83 U.S. Department of Labor, Employment Standards Administration, “Labor Organization Annual Financial Reports,”

74 Federal Register 18132, April 21, 2009. 84 U.S. Department of Labor, Employment Standards Administration, “Labor Organization Annual Financial Reports,”

74 Federal Register 18172, April 21, 2009. 85 U.S. Department of Labor, Employment Standards Administration, “Labor Organization Annual Financial Reports,”

74 Federal Register 23811, May 21, 2009. 86 U.S. Department of Labor, Employment Standards Administration, “Labor Organization Annual Financial Reports,”

74 Federal Register 21964, May 11, 2009.



EPA Rule on Particulate Matter Less than 2.5 Micrometers

On May 16, 2008, EPA published a final rule on the “Implementation of the New Source Review

(NSR) Program for Particulate Matter Less Than 2.5 Micrometers.”87

According to EPA’s

description in the rule, the NSR program was created by the Clean Air Act “to ensure that

stationary sources of air pollution are constructed or modified in a manner that is consistent with

air quality goals in the area.” The rule took effect on July 15, 2008. That day, NRDC and the

Sierra Club submitted a petition to EPA for reconsideration of the rule. On January 14, 2009, EPA

denied the petition for reconsideration.

On February 10, 2009, Earthjustice submitted a petition for reconsideration of the rule to EPA on

behalf of NRDC and the Sierra Club. The petition was filed under the authority of Section

307(d)(7)(B) of the Clean Air Act, and asked EPA to reconsider both the January 2009 denial as

well as specific provisions of the rule itself. On June 1, 2009, EPA published a notice in the

Federal Register stating that, through a letter signed on April 24, 2009, it had granted the petition

for reconsideration.88

Specifically, EPA (1) agreed to obtain public comment on each of the four

issues raised in the petition; and (2) stayed the “grandfathering” provision (to which the

petitioners objected) for three months, until September 1, 2009.89

EPA said it would seek public

comment and hold a public hearing on these issues in the future. As part of the future notice of

proposed rulemaking, EPA said it intended to propose repeal of the grandfathering provision.

On July 23, 2009, EPA published a proposal to extend its stay of the grandfathering provision for

an additional nine months (i.e., until June 2010), but also requested comments by August 24,

2009, on shorter and longer extensions.90

The agency said that it believed that nine additional

months “would provide adequate time for EPA to propose, take comment on, and issue a final

action on issues that are associated with the grandfathering provision that we are proposing to

repeal.”

EPA Rule on RCRA Comparable Fuel Exclusion

On December 19, 2008, EPA published a final rule that expanded the amount of hazardous waste

the could be burned as fuel under an exemption to the Resource Conservation and Recovery Act

(RCRA).91

The rule took effect on January 20, 2009. On March 18, 2009, the Louisiana

Environmental Action Network and the Sierra Club filed a lawsuit in the U.S. Court of Appeals

for the D.C. Circuit asking EPA to reconsider the rule.92

In April 2009, EPA asked the court to

87 U.S. Environmental Protection Agency, “Implementation of the New Source Review (NSR) Program for Particulate

Matter Less Than 2.5 Micrometers,” 73 Federal Register 28321, May 16, 2008. 88 U.S. Environmental Protection Agency, “Implementation of the New Source Review (NSR) Program for Particulate

Matter Less Than 2.5 Micrometers,” 74 Federal Register 26098, June 1, 2009. 89 Under this “grandfathering” provision, if an applicant for a permit had submitted their application to EPA before July

15, 2008, they could meet the requirements for particulate matter by relying on requirements applicable to larger

particles (10 micrometers in diameter and smaller instead of 2.5 micrometers and smaller). 90 U.S. Environmental Protection Agency, “Implementation of the New Source Review (NSR) Program for Particulate

Matter Less Than 2.5 Micrometers (PM2.5); Proposal To Extend Administrative Stay,” 74 Federal Register 36427,

July 23, 2009. 91 U.S. Environmental Protection Agency, “Expansion of RCRA Comparable Fuel Exclusion,” 73 Federal Register

77954, December 19, 2009. 92 Louisiana Environmental Action Network v. Jackson, D.C. Cir., No. 09-1105, March 18, 2009. See also, Andrew

Childers, “Environmental Groups Sue EPA to Block Implementation of Comparable Fuels Rule,” BNA Daily

(continued...)



hold the litigation in abeyance because the agency was considering withdrawing the rule. On May

5, 2009, EPA said that it would publish a proposed withdrawal of the rule in November 2009, and

ask for comments on the proposal. After evaluating the comments, EPA said it would make a

decision on whether to repeal the exclusion.93

As of August 2009, the rule was still in effect.

EPA Rule on Air Quality Standards for Lead

On November 12, 2008, EPA published a final rule that revised the primary and secondary

national ambient air quality standards (NAAQS) for lead.94

The rule took effect on January 12,

2009. That day, NRDC submitted a petition to EPA on behalf of several other organizations

seeking reconsideration of certain provisions of the rule. The petition raised objections to the

emissions threshold for monitoring lead emissions at specific sources for lead, saying that the

final rule “ignored EPA’s own analysis showing that the threshold should be set at lower

emissions level to better protect public health.”95

On July 22, 2009, EPA granted the petition for

reconsideration to allow the agency to reconsider the emissions threshold and related monitoring

issues.96

EPA also said that it intended to initiate a rulemaking process for this reconsideration.

However, as of August 2009, the rule was still in effect.

HHS Coercive Practices Rule

On December 19, 2008, the Office of the Secretary within HHS published a final rule “to ensure

that Department funds do not support morally coercive or discriminatory practice or policies in

violation of federal law.”97

The rule went into effect on January 20, 2009, but HHS components

were given discretion to phase in the rule’s written certification requirement by no later than the

beginning of the next federal fiscal year following the effective date (i.e., by October 1, 2009).

Also, the certification requirement is not effective pending completion of the corresponding

information collection process under the Paperwork Reduction Act, and (as of August 2009) HHS

has not sought OMB approval for the information collection.

On January 15, 2009, Representative Diana DeGette introduced H.R. 570, the “Protecting

Patients and Health Care Act of 2009.” The bill was referred to the House Committee on Energy

and Commerce the same day, and states that the December 2008 coercive practices rule “shall

have no force or effect.” No further action has been taken on the proposed legislation.

(...continued)

Environment Report, March 19, 2009, p. A-1. 93 Charlotte E. Tucker, “EPA Says It Intends to Withdraw Rule Allowing More Waste to Be Burned as Fuel,” BNA

Daily Environment Report, May 6, 2009, p. A-7. 94 U.S. Environmental Protection Agency, “National Ambient Air Quality Standards for Lead,” 73 Federal Register

66964, November 12, 2008. 95 See http://www.epa.gov/air/lead/pdfs/0122009petitionReconsideration.pdf for a copy of this petition. 96 See http://www.epa.gov/air/lead/pdfs/OAR.09.000.7687.pdf for a copy of this letter. 97 U.S. Department of Health and Human Services, Office of the Secretary, “Ensuring That Department of Health and

Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law,”

73 Federal Register 78072, December 19, 2008. For more information on this issue, see CRS Report R40722, Health

Care Providers’ Religious Objections to Medical Treatment: Legal Issues Related to Religious Discrimination in

Employment and Conscience Clause Provisions, by Cynthia Brougher and Edward C. Liu.


http://www.epa.gov/air/lead/pdfs/0122009petitionReconsideration.pdf

http://www.epa.gov/air/lead/pdfs/OAR.09.000.7687.pdf






On March 10, 2009, HHS published a proposed rule that would, if made final, rescind the

December 2008 final rule.98

In this proposal, HHS cited commenters who “asserted that the rule

would limit access to patient care and raised concerns that individuals could be denied access to

services, with effect felt disproportionately by those in rural areas or otherwise underserved.”

Therefore, HHS said it “believes it is important to have an opportunity to review this regulation to

ensure its consistency with current Administration policy and to reevaluate the necessity for

regulations.” Comments on the proposed rule were requested by April 9, 2009. As of August

2009, HHS had taken no further action on the rule.

HUD Rule on RESPA and “Required Use”

On November 17, 2008, the Department of Housing and Urban Development (HUD) published a

final rule under the Real Estate Settlement Procedures Act (RESPA) that was intended to

“simplify and improve the process of obtaining mortgages and reduce consumer settlement

costs.”99

Certain provisions, including revisions to the definition of the term “required use,”100

were to have taken effect on January 16, 2009, although implementation of other provisions was

delayed until January 1, 2010.101

However, on January 15, 2009, HUD published a final rule

delaying the “required use” definition in the rule until April 16, 2009, citing recent litigation that

had been initiated by the National Association of Home Builders and others.102

On March 10,

2009, HUD published a final rule delaying the effective date of this provision until July 16, and

solicited comment on whether the “required use” definition should be withdrawn.103

On May 15,

98 U.S. Department of Health and Human Services, Office of the Secretary, “Rescission of the Regulation Entitled

‘Ensuring That Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies

or Practices in Violation of Federal Law,’” 74 Federal Register 10207, March 10, 2009. 99 U.S. Department of Housing and Urban Development, Office of the Assistant Secretary for Housing, “Real Estate

Settlement Procedures Act (RESPA): Rule To Simplify and Improve the Process of Obtaining Mortgages and Reduce

Consumer Settlement Costs,” 73 Federal Register 68204, November 17, 2008. Several Members of Congress had

expressed concerns about the earlier proposed rule. See Mike Ferullo, “House Members Circulate Letter to HUD

Urging Withdrawal of Proposed RESPA Rule,” BNA Daily Report for Executives, July 22, 2008, p. A-28. 100 Existing regulations at 24 CFR 3500.2 define “required use” as “a situation in which a person must use a particular

provider of a settlement service in order to have access to some distinct service or property, and the person will pay for

the settlement service of the particular provider or will pay a charge attributable, in whole or in part, to the settlement

service.” 101 HUD explained in the November 2008 final rule (p. 68236) that the changes to the “required use” definition were

intended to limit tying certain types of discounts to the use of an affiliated settlement service provider. U.S. Department

of Housing and Urban Development, Office of the Assistant Secretary for Housing, “Real Estate Settlement Procedures

Act (RESPA): Rule To Simplify and Improve the Process of Obtaining Mortgages and Reduce Consumer Settlement

Costs,” 73 Federal Register 68204, November 17, 2008. 102 U.S. Department of Housing and Urban Development, Office of the Assistant Secretary for Housing, “Real Estate


Consumer Settlement Costs; Deferred Applicability Date for the Revised Definition of ‘Required Use,’” 74 Federal

Register 2369, January 15, 2009. The litigation was identified in the rule as National Association of Home Builders, et

al. v. Steve Preston, et al., Civ. Action No. 08-CV-1324, United States District Court for the Eastern District of

Virginia, Alexandria Division. HUD said that “good cause exists to publish this final rule for effect without first

soliciting public comment as public comment is impracticable, given the litigation schedule established by the court.” 103 U.S. Department of Housing and Urban Development, Office of the Assistant Secretary for Housing, “Real Estate


Consumer Settlement Costs; Further Deferred Applicability Date for the Revised Definition of ‘Required Use’ and

Solicitation of Public Comment on Withdrawal of Required Use Provision,” 74 Federal Register 10172, March 10,

2009. HUD said it did not publish a proposed rule because “requiring public comment before extending the effective

date would be contrary to the interest of justice and the public interest.”



2009, HUD published a final rule withdrawing the revisions to the definition of “required use,”

and returning to the previous definition of the term as of June 15, 2009.104

HUD said it would

initiate a new rulemaking process for the definition of “required use.”

DOI/FWS Rule on the Habitat for the Northern Spotted Owl

On August 13, 2008, the Fish and Wildlife Service (FWS) within DOI published a final rule

revising the designated critical habitat for the northern spotted owl under the Endangered Species

Act, as amended.105

The rule became effective on September 12, 2008, and reduced the owl’s

habitat on federal land from nearly 6.9 million acres to about 5.3 million acres. It also reportedly

served as a partial basis for the Bush Administration’s forest management plan that would

increase logging in Western Oregon (known as the Western Oregon Plan Revisions, or WOPR).

However, on July 16, 2009, the Secretary of the Interior announced that the WOPR was “legally

indefensible and must be withdrawn.”106

The Secretary also said that the spotted owl protections

had been challenged in federal court,107

and that the process by which they were developed had

been called into question by the department’s inspector general. The assistant secretary for fish,

wildlife, and parks said that the federal government would ask the court to vacate the spotted owl

rule, and if the court agrees to do so, the owl’s habitat would revert back to the 6.9 million acres

designated in 1992.108

Congressional and Agency Actions to Stop or Delay

Implementation

As noted in earlier sections of this report, legislation has been introduced in the 111th Congress

that would, if enacted, affect certain Bush Administration midnight rules. The Senate version of

the appropriations bill funding USAID for FY2010 (S. 1434) would prevent USAID from

implementing the January 2009 partner vetting rule until a new USAID administrator has

reviewed the rule and consulted with relevant congressional committees. Also, H.R. 2989 as

104 U.S. Department of Housing and Urban Development, Office of the Assistant Secretary for Housing, “Real Estate


Consumer Settlement Costs; Withdrawal of Revised Definition of ‘Required Use’,” 74 Federal Register 22822, May

15, 2009. 105 U.S. Department of the Interior, Fish and Wildlife Service, “Endangered and Threatened Wildlife and Plants;

Revised Designation of Critical Habitat for the Northern Spotted Owl,” 73 Federal Register 47326, August 13, 2008. 106 See http://www.doi.gov/news/09_News_Releases/071609b.html for a copy of the Secretary’s news release. See

also, Alan Kovski, “Interior to Revise Rules for Oregon Forests, Wants to Review Spotted Owl Recovery Plan,” BNA

Daily Environment Report, July 17, 2009, p. A-7. 107 Carpenters Industrial Council v. Salazar, D.D.C., No. 1: 08-cv-1409, March 31, 2009. 108 As mentioned earlier in this report, in a somewhat similar case, a U.S. District judge concluded in August 2009 that

there was no precedent for him to dismiss the DOI “excess spoil” rule, and that the agency would have to follow notice

and comment procedures to repeal it. In a related development, on July 24, 2009, the Public Lands Foundation, a

nonprofit organization founded by Bureau of Land Management employees, sent a letter to the Secretary of the Interior

stating that the agency’s decision to withdraw the WOPR was illegal in that the agency did not follow notice and

comment procedures. An attorney for an association of northwest counties reportedly reached a similar conclusion. See

Alan Kovski, “Interior’s Move to Revise Oregon Forest Plan Criticized as Violation of Legal Procedures,” BNA Daily

Environmental Report, August 19, 2009, p. A-2.



http://www.doi.gov/news/09_News_Releases/071609b.html



reported by the House Committee on Education and Labor would nullify portions of the January

2008 DOL rule regarding investment advice. Other congressional actions during the 111th

Congress have already helped to stop or delay the implementation of certain midnight rules, or

may do so in the future.

DOI/FWS and DOC/NMFS Endangered Species Act Rule

On December 16, 2008, FWS within DOI and the National Marine Fisheries Service (NMFS)

within the Department of Commerce (DOC) published a final rule on “Interagency Cooperation

Under the Endangered Species Act.”109

The rule gave federal agencies greater authority to

determine when and how their actions may affect species under the Endangered Species Act.

Several Members of Congress and others expressed concerns that the rule could weaken act’s

effectiveness.110

The rule took effect on January 15, 2009.

On March 3, 2009, President Obama instructed DOI and DOC to review the rule and “determine

whether to undertake new rulemaking procedures.”111

The President also requested the heads of

all agencies to “exercise their discretion, under the new regulation, to follow the prior

longstanding consultation and concurrence practices involving the FWS and NMFS.” In addition,

Section 429 of the Omnibus Appropriations Act, 2009 (P.L. 111-8), which was enacted on March

11, 2009, authorized the Secretaries of the Interior and Commerce to withdraw this rule within the

next 60 days “without regard to any provision of statute or regulation that establishes a

requirement for such withdrawal.”112

As a result, the agencies could withdraw the rule without

going through the sometimes lengthy rulemaking process that is prescribed in the APA, Executive

Order 12866, and other statutes and executive orders. The legislation also said that if either or

both secretaries withdraw the rule, the provisions of law in effect before the rule was issued

would be in effect. On May 4, 2009, FWS and NMFS jointly issued a final rule that withdrew the

December 2008 rule immediately and returned to the requirements that existed before it took

effect.113

The agencies did not request comments on the withdrawal, but they did solicit

comments on potential changes to their regulations on interagency cooperation under the

Endangered Species Act.

109 U.S. Department of the Interior, Fish and Wildlife Service, and the U.S. Department of Commerce, National Marine

Fisheries Service, “Interagency Cooperation Under the Endangered Species Act,” 73 Federal Register 76272,

December 16, 2008. 110 For in-depth information about this rule, see CRS Report RL34641, Changes to the Consultation Regulations of the

Endangered Species Act (ESA), by Kristina Alexander and M. Lynne Corn. See also Juliet Eilperin, “Endangered

Species Act Changes Give Agencies More Say,” Washington Post, August 12, 2008, p. A-1. 111 See http://www.whitehouse.gov/the_press_office/Memorandum-for-the-Heads-of-Executive-Departments-and-

Agencies/ for a copy of this memorandum. 112 As noted earlier in this report, Section 429 also authorized DOI to use these expedited procedures to withdraw a

final rule relating to “Endangered and Threatened Wildlife and Plants; Special Rule for the Polar Bear” that was

published by the Fish and Wildlife Service on December 16, 2008 (73 Federal Register 76249). However, DOI

announced on May 8, 2009, that it would retain the rule. 113 U.S. Department of the Interior, Fish and Wildlife Service, and the U.S. Department of Commerce, National Marine

Fisheries Service, “Interagency Cooperation Under the Endangered Species Act,” 74 Federal Register 20421, May 4,

2009.




http://www.whitehouse.gov/the_press_office/Memorandum-for-the-Heads-of-Executive-Departments-and-Agencies/

http://www.whitehouse.gov/the_press_office/Memorandum-for-the-Heads-of-Executive-Departments-and-Agencies/



HHS/CMS Rule on Outpatient Facility Services

On November 7, 2008, CMS within HHS published a final rule to “align the Medicaid definition

of outpatient hospital services more closely to the Medicare definition.”114

CMS said the rule

would “improve the functionality of the applicable upper payment limits” and “clarify the scope

of services for which Federal financial participation is available.” The rule took effect on

December 8, 2008.

On February 17, 2009, Congress enacted the American Recovery and Reinvestment Act (P.L.

111-5), also referred to as the economic stimulus bill. Section 5003(c) of the legislation precluded

CMS from taking any action to implement the outpatient facility services rule with regard to any

services that were provided between December 8, 2008, (the rule’s effective date) and June 30,

2009.115

On May 6, 2009, CMS published a proposed rule to rescind the November 7, 2008,

rule.116

Comments on the proposed actions were requested by June 1, 2009. On June 30, 2009,

CMS published a final rule rescinding the November 2008 rule.117

In explanation, CMS said it

had become concerned that the rule “could have an adverse impact on the availability of covered

services for beneficiaries.”118

Treasury/Federal Reserve Rule on Internet Gambling

On November 18, 2008, the Department of the Treasury and the Board of Governors of the

Federal Reserve System published a final rule prohibiting the “funding of unlawful internet

gambling.”119

The rule implemented provisions of the Unlawful Internet Gambling Enforcement

Act of 2006 (31 U.S.C. §§ 5361-5637), and, among other things, established applicable

definitions, designated payment systems, established exemptions, and established the regulatory

enforcement framework. The rule also requires financial firms to establish and implement

policies that are “reasonably” designed to prevent payments to businesses engaged in unlawful

internet gambling. Although the rule was effective on January 19, 2009, compliance with the rule

was not required until December 1, 2009.

On May 6, 2009, Representative Barney Frank introduced H.R. 2266, the “Reasonable Prudence

in Regulation Act,” which would delay compliance with the internet gambling rule for one year,

114 U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services, “Medicaid Program;

Clarification of Outpatient Hospital Facility (Including Outpatient Hospital Clinic) Services Definition,” 73 Federal

Register 66187, November 7, 2008. 115 In addition to this rule, Section 5003 also extended previously enacted moratoria on two other Medicaid regulations.

Section 5003(a) extended the moratorium on regulations relating to optional case management services and allowable

provider taxes to July 1, 2009. Section 5003(b) extended the moratorium on regulations relating to school-based

administration and school-based transportation to July 1, 2009. 116 U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services, “Medicaid Program:

Rescission of School-Based Services Final Rule, Outpatient Services Definition Final Rule, and Partial Rescission of

Case Management Services Interim Final Rule,” 74 Federal Register 21232, May 6, 2009. As the title indicates, the

agency also proposed full or partial rescission of two other rules that had been issued in 2007. 117 U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services, “Medicaid Program:

Rescission of School-Based Administration/Transportation Final Rule, Outpatient Hospital Services Final Rule, and

Partial Rescission of Case Management Interim Final Rule,” 74 Federal Register 31183, June 30, 2009. 118 Ibid., p. 31186. 119 U.S. Department of the Treasury and the Board of Governors of the Federal Reserve System, “Prohibition on

Funding of Unlawful Internet Gambling,” 73 Federal Register 69382, November 18, 2008.






until December 1, 2010.120

The bill was referred to the House Committee on Financial Services,

and has not been acted upon since referral.

Judicial Actions to Stop or Ensure Implementation

DOI/NPS and FWS Rule on Concealed Firearms in Parks

On December 10, 2008, the National Park Service (NPS) and FWS within DOI published a final

rule that would “reflect state laws authorizing the possession of concealed firearms” in national

park areas and national wildlife refuges.121

The rule went into effect on January 9, 2009. On

March 19, 2009, in response to a request by the National Parks Conservation Association and the

Coalition of National Park Service Retirees, the District Court for the District of Columbia

granted a preliminary injunction regarding the implementation and enforcement of the rule.

Citing this action, and the possibility that the Obama Administration might alter the rule, Section

512 (“Protecting Americans from Violent Crime”) of the Credit Card Accountability

Responsibility and Disclosure Act of 2009 (P.L. 111-24, May 22, 2009) prohibits the Secretary of

the Interior from promulgating or enforcing any rule that prohibits firearms in national parks or

wildlife refuges if not otherwise prohibited by law and in compliance with law of the State in

which the park or refuge is located. However, this provision does not take effect until nine months

after the date of enactment (i.e., not until February 2010). As of August 2009, the rule was still

covered by the injunction and was not in effect.

DOJ Rule on Certification of State Capital Counsel Systems

On December 11, 2008, the Office of the Attorney General within DOJ published a final rule

implementing certification procedures for states seeking to qualify for expedited habeas corpus

review procedures in capital cases under chapter 154 of Title 28, U.S. Code.122

The rule took

effect on January 12, 2009, and implemented Section 507 of the USA PATRIOT Improvement

and Reauthorization Act of 2005 (P.L. 109-177), which assigned responsibility for chapter 154

certifications to the Attorney General of the United States, subject to de novo review by the Court

of Appeals for the District of Columbia Circuit. Previously, such certifications had been left to the

federal court of appeals for the circuit in which a state was located.

On January 8, 2009, the District Court in the Northern District of California issued a temporary

restraining order against DOJ regarding the rule, and issued a preliminary injunction regarding

the rule on January 20, 2009.123

The court prohibited DOJ from putting the rule into effect

“without first providing an additional comment period of at least thirty days and publishing a

120 Representative Frank also introduced H.R. 2267, the Internet Gambling Regulation, Consumer Protection, and

Enforcement Act of 2009, which would reportedly address issues in the Unlawful Internet Gambling Enforcement Act. 121 U.S. Department of the Interior, National Park Service and Fish and Wildlife Service, “General Regulations for

Areas Administered by the National Park Service and the Fish and Wildlife Service,” 73 Federal Register 74966,

December 10, 2008. 122 U.S. Department of Justice, Office of the Attorney General, “Certification Process for State Capital Counsel

Systems,” 73 Federal Register 75327, December 11, 2008. 123 Habeas Corpus Resource Center v. United States Department. of Justice, No. 08-2649, 2009 U.S. Dist. LEXIS 7562

(N.D. Cal. Jan. 20, 2009). To view a copy of the restraining order, see http://capitaldefenseweekly.com/library/

optin_tro.PDF.




http://capitaldefenseweekly.com/library/optin_tro.PDF

http://capitaldefenseweekly.com/library/optin_tro.PDF



response to any comments received during that period.”124

Citing this injunction, DOJ announced

on February 5, 2009, that it had decided to solicit further comment on all aspects of the rule for

60 days (i.e., until April 6, 2009), and said it would “publish a summary and response as

appropriate.”125

As of August 2009, DOJ had taken no further action, and the preliminary

injunction was still in force.

DOL/ETA Rule on Temporary Employment of H-2A Aliens

On December 18, 2008, the Employment and Training Administration (ETA) within DOL

published a final rule revising certain provisions of the H-2A visa program.126

The program

provides a means for U.S. agricultural firms to employ foreign workers on a temporary basis to

perform agricultural labor or services when U.S. labor is in short supply. The final rule was

scheduled to take effect on January 17, 2009. On January 12, 2009, the United Farm Workers and

others filed a lawsuit in the U.S. District Court for the District of Columbia requesting a

temporary restraining order and a preliminary injunction to prevent the implementation of the

rule.127

On January 15, 2009, the court denied that request because the plaintiffs had not shown

“likely imminent and irreparable harm,” but did not address the substantive challenges to the rule,

which remained pending.128

The rule then went into effect as scheduled on January 17, 2009.

On March 17, 2009, ETA proposed that the rule be suspended for nine months, and that the

previous H-2A regulation be reinstated.129

The agency noted the still pending legal issues before

the court, and said the delay would allow the department time to “reconsider the new

requirements in light of issues that have arisen” since the publication of the rule (e.g., potential

resource limitations within the department and state workforce agencies, and the potentially

different policy positions of the new administration). Comments on the proposed suspension were

required by May 27, 2009. On May 29, 2009, ETA published a final rule suspending the

December 2008 rule, with the suspension becoming effective on June 29, 2009.130

The agency

also republished and reinstated the regulations that were previously in place (i.e., as of January

16, 2009) for a period of nine months, after which ETA said it would either engage in further

rulemaking or lift the suspension.

However, a federal judge in the U.S. District Court for the Middle District of North Carolina

issued a preliminary injunction blocking the substitution of the previous regulations for the 2008

rule.131

The injunction had been sought by several growers associations, who contended that the

suspension of the rule had not followed the requirements of the Administrative Procedure Act.

124 Ibid. 125 U.S. Department of Justice, “Certification Process for State Capital Counsel Systems,” 74 Federal Register 6131,

February 5, 2009. 126 U.S. Department of Labor, Employment and Training Administration, and Wage and Hour Division, “Temporary

Employment of H-2A Aliens in the United States,” 73 Federal Register 77110, December 18, 2009. 127 United Farm Workers v. Chao, 593 F. Supp. 2d 166 (D.D.C. 2009). 128 Ibid., p. 167. 129 U.S. Department of Labor, Employment and Training Administration, and Wage and Hour Division, “Temporary

Employment of H-2A Aliens in the United States,” 74 Federal Register11408, March 17, 2009. 130 U.S. Department of Labor, Employment and Training Administration, and Wage and Hour Division, “Temporary

Employment of H-2A Aliens in the United States,” 74 Federal Register 25972, May 29, 2009. 131 North Carolina Growers Association v. Solis, No. 1:09-cv-00411, 2009 U.S. Dist. LEXIS 64861, at *3 (M.D.N.C.

June 29, 2009, revised July 1, 2009).



The judge agreed with the growers’ argument that they would suffer economic damages because

of higher wages that would be required under the old rule, and said that the injunction would

remain in effect until the completion of the trial on the merits of the case, the creation of a new H-

2A rule following the APA, or a further order of the court. As of August 2009, the injunction was

still in place.

Rules in Effect but Under Legal or Administrative Challenge

EPA Rule on Transfers of Water

On June 13, 2008, EPA published a final rule indicating that National Pollutant Discharge

Elimination System permits are not required for transfers of water from one body of water to

another.132

The rule took effect on August 12, 2008. On October 2, 2008, nine states filed a

lawsuit in the U.S. District Court for the Southern District of New York accusing EPA with

violating the Clean Water Act by issuing the rule.133

In announcing the lawsuit, New York

Attorney General Andrew Cuomo said the rule was illegal, and could hurt the state’s fishing

industry and contaminate drinking water. The Southern District of New York stayed the case

pending the Eleventh Circuit’s decision in a separate case. In June 2009, the U.S. Court of

Appeals for the Eleventh Circuit cited EPA’s “unitary waters” theory in the June 2008 final rule

when it reversed an earlier court ruling that pumping polluted water from canals in the Everglades

into Lake Okeechobee violated the Clean Water Act.134

EPA Rule Revising Definition of Solid Waste

On October 30, 2008, EPA published a final rule under the Resource Conservation and Recovery

Act (RCRA, 42 U.S.C. §6901, et seq.) that excluded certain types of materials from the definition

of solid waste.135

The rule took effect on December 29, 2008. On January 29, 2009, the Sierra

Club submitted a petition to EPA under Section 7004(a) of RCRA (42 U.S.C. §6974(a))

requesting that the agency repeal the rule and stay its implementation.136

On March 6, 2009, a

coalition of industry associations requested that EPA deny the Sierra Club petition.137

On May 27,

2009, EPA said it wanted to hear from a wider range of stakeholders before making a decision

regarding the Sierra Club petition, and announced a public meeting in Arlington, Virginia, on

June 30, 2009.138

EPA said in this notice that it did not plan to repeal or stay implementation of

132 U.S. Environmental Protection Agency, “National Pollutant Discharge Elimination System (NPDES) Water

Transfers Rule,” 73 Federal Register 33697, June 13, 2009. 133 New York v. Environmental Protection Agency, No. 08-8430 (S.D.N.Y. filed October 2, 2008). See also, Charlotte

E. Tucker, “EPA Final Rule Allowing Water Transfers Challenged in Federal Court by Nine States,” BNA Daily

Environmental Report, October 6, 2008, p. A-8. 134 Drew Douglas, “11th Circuit Reverses Ruling on Pumping Water From Canals Into Lake Okeechobee,” BNA Daily

Report for Executives, June 8, 2009, p. A-11. 135 U.S. Environmental Protection Agency, “Revisions to the Definitions of Solid Waste,” 73 Federal Register 64668,

October 30, 2008. 136 See http://www.earthjustice.org/library/legal_docs/definition-of-solid-waste-petition-for-reconsideraton-final.pdf for

a copy of this petition. Section 7004(a) permits any person to petition the EPA administrator for the promulgation,

amendment, or repeal of any regulation under the chapter. 137 See http://www.socma.com/assets/file/socma1/PDFfiles/GR_PDF_files/Industry-Letter-to-EPA-in-Response-to-

Sierra-Club-Petition-3-6-09.pdf for a copy of this letter. 138 U.S. Environmental Protection Agency, “Revisions to the Definitions of Solid Waste,” 74 Federal Register 25200,

(continued...)

http://www.earthjustice.org/library/legal_docs/definition-of-solid-waste-petition-for-reconsideraton-final.pdf

http://www.socma.com/assets/file/socma1/PDFfiles/GR_PDF_files/Industry-Letter-to-EPA-in-Response-to-Sierra-Club-Petition-3-6-09.pdf

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the rule, but said it was interested in receiving comments by July 14, 2009, on possible revisions

to the rule. On July 6, 2009, EPA extended the comment period to August 13, 2009.139

EPA Rule on Animal Waste Air Emissions

On December 18, 2008, EPA published a final rule exempting farms from a requirement to report

air emissions from animal waste under the Comprehensive Environmental Response,

Compensation, and Liability Act of 1980, as amended.140

The rule took effect on January 20,

2009. On January 15, 2009, a coalition of environmental organizations filed a petition for review

with the U.S. Court of Appeals for the D.C. Circuit, asking the court to review the regulation.141

The coalition said that concentrated animal feeding operations (CAFOs), which would be

generally exempt under the rule, generate waste that is known to release high levels of toxic

pollutants like ammonia and hydrogen sulfide into the air.142

On January 21, 2009, the National

Pork Producers Council sued EPA to stop enforcement of the rule, citing the absence of a system

that would allow producers to comply with certain reporting provisions that were applicable to

CAFOs.143

As of August 2009, EPA had taken no action to rescind, suspend, or change the rule,

and the courts have not acted on either of the legal actions.144

On August 25, 2009, the Court of

Appeals for the D.C. Circuit granted a motion to hold the case in abeyance for 90 days pending

mediation.

DOT/FMCSA Rule on Hours of Service of Drivers

On November 19, 2008, the Federal Motor Carrier Safety Administration (FMCSA) within DOT

published a final rule concerning permissible hours of service for commercial drivers.145

The rule

adopted as final the provisions of the agency’s December 2007 interim final rule,146

and became

effective on January 19, 2009. The rule allows commercial drivers to drive up to 11 hours within

a 14-hour window, following at least 10 consecutive hours off duty. It also allows motor carriers

(...continued)

May 27, 2009. 139 U.S. Environmental Protection Agency, “Revisions to the Definitions of Solid Waste,” 74 Federal Register 31905,

July 6, 2009. 140 U.S. Environmental Protection Agency, “CERCLA/EPCRA Administrative Reporting Exemption for Air Releases

of Hazardous Substances From Animal Waste at Farms,” 73 Federal Register 76948, December 18, 2009. 141 Waterkeeper Alliance v. Environmental Protection Agency, No. 09-1017 (D.C. Cir. filed January 15, 2009). 142 Bill Pritchard, “Environmental Groups Sue EPA Over Rule Exempting Farms From Emissions Reporting,” BNA

Daily Report for Executives, January 16, 2009, p. A-24. 143 Bill Pritchard, “Pork Producers Sue to Block Enforcement of EPA Rule Governing Emissions Reporting,” BNA

Daily Report for Executives, January 23, 2009, p. A-18. That case was originally brought in the D.C. Circuit, but the

pork producers withdrew the case on February 23, 2009, and filed the suit in the U.S. District Court for the Western

District of Wisconsin. On March 16, it filed another lawsuit with the D.C. Circuit on the same reporting issue. On May

22, 2009, the Wisconsin District Court issued and order staying an EPA motion to dismiss the case. On July 23, 2009,

the Wisconsin District Court declined to declare that the pork producers are exempt from the reporting requirements.

See Bill Pritchard, “Court Declines to Declare Pork Producers Exempt From Reporting Waste Emissions,” BNA Daily

Report for Executives, July 29, 2009. 144 Telephone conversation between the author and Lynn Beasley of EPA’s Office of Emergency Management. 145 U.S. Department of Transportation, Federal Motor Carrier Safety Administration, “Hours of Service of Drivers,” 73

Federal Register 69567, November 19, 2008. 146 U.S. Department of Transportation, Federal Motor Carrier Safety Administration, “Hours of Service of Drivers,” 72

Federal Register 71247, December 17, 2007.



and drivers to restart calculations of the weekly on-duty limits after the driver has been off duty

for 34 consecutive hours. On March 9, 2009, Public Citizen and several other groups, including

the International Brotherhood of Teamsters, filed a lawsuit against FMSCA in the U.S. Court of

Appeals for the District of Columbia Circuit, asking the court to review the regulation.147

Pleadings in the lawsuit are scheduled to end by December 2009. The same organizations also

sent a letter to the Secretary of Transportation urging him to issue new regulations, but DOT had

not done so as of August 2009.

Concluding Observations

During the first months of the Obama Administration, the Bush Administration’s midnight rules

have been addressed in very different, rule-specific ways. Some of the rules have been

implemented as published, but others have had their implementation delayed, been fully or

partially withdrawn, are subject to legal challenge, or may be affected by pending legislation.

Table 1 below provides summary information on the August 2009 status of 25 of the Bush

Administration’s midnight rules that have been challenged. About half of the rules were in effect,

but the others were either not in effect or were only partially in effect. About half of the rules had

their implementation delayed at least once after they were published as final rules, and some of

those delays occurred after the rules had already taken effect. Some of the delays were initiated

by the agencies that issued the rules, sometimes citing the Emanuel memorandum as an impetus

(e.g., the DOL investment advice rule and the EPA aggregation rule). Other delays were

precipitated by legal actions initiated by interest groups (e.g., the DHS “no match” rule, and the

DOJ capital counsel systems rule). Among the rules that were in effect, the issuing agencies have

announced that several will be vacated or withdrawn in the future (e.g., the DOI excess spoil rule,

the DOI northern spotted owl rule, and the EPA comparable fuel exclusion rule). Some of the

rules that were not in effect had already been rescinded (e.g., the HHS outpatient rule) or have

been proposed for withdrawal by the issuing agency (e.g., the HHS coercive practices rule). Other

rules are the subjects of unresolved legal action (e.g., the EPA water transfers rule) or legislative

initiatives (e.g., the internet gambling rule issued by the Department of the Treasury and the

Federal Reserve Board). Congress and the courts have acted to stop certain rules (e.g., the

DOC/DOI Endangered Species Act rule, and the DOJ rule on state capital counsel systems), and

to continue the implementation of other rules (e.g., the DOI concealed firearms rule and the DOL

rule on temporary employment of H-2A aliens).

147 “IBT, Other Advocacy Groups File Lawsuit Challenging FMCSA Hours of Service Rule,” BNA Occupational

Safety & Health Daily, March 25, 2009.



Table 1. Status of Selected Midnight Rules (as of August 2009)

Department

/Agency Rule

Currently In

Effect Status

DHS/ICE Safe Harbor Procedures for

“No-Match” Letter Recipients

No Court challenges have delayed implementation;

DHS announced on 07/09/09 that it planned to

rescind the rule.

DOI/FWS &

DOC/NMFS

Interagency Cooperation and

the Endangered Species Act

No Pursuant to authority provided by Congress,

the agencies withdrew the rule on 05/04/09.

DOI/OSMRE “Excess Spoil” Disposal Yes DOI said the rule had “legal deficiencies” and

would be replaced with a revised rule.

DOI/NPS and

FWS

Concealed Firearms in

National Parks and Wildlife

Refuges

No On 03/19/09, the court granted an injunction

prohibiting implementation and enforcement of

the rule.

DOI/FWS Habitat for the Northern

Spotted Owl

Yes DOI will ask the court to vacate the rule,

noting that it has been challenged in court.

DOJ Certification of State Capital

Counsel Systems

No On 01/20/09, the court issued an injunction;

on 02/05/09, DOJ solicited comments on the

rule.

DOL/EBSA Investment Advice Fees No DOL has delayed the effective date three

times, now until 11/18/09.

DOL/ESA Labor Organization Financial

Reporting

No DOL has delayed implementation until

10/19/09; plans to withdraw the rule in 2009.

DOL/ETA Temporary Employment of

H-2A Aliens

Yes DOL suspended implementation, but the court

blocked the suspension on 06/29/09.

DOT/FMCSA Hours of Service of Drivers Yes On 03/09/09, Public Citizen and others filed

lawsuit, requested that DOT issue a new rule.

EPA “Fugitive Emissions” and New

Source Review

Yes EPA granted a petition for reconsideration on

04/24/09 and said it would stay the rule, but

has not published the required notice.

EPA Aggregation of Changes for

New Source Review

No EPA granted a petition for reconsideration and

delayed the effective date until 05/18/10.

EPA Particulate Matter Less Than

2.5 Micrometers

Partial EPA has stayed and plans to repeal the rule’s

grandfathering provisions, and is seeking

comments on other provisions.

EPA RCRA Comparable Fuel

Exclusion

Yes EPA said it will propose withdrawal of the rule

in late 2009.

EPA Definition of Solid Waste Yes EPA requested comments until 08/13/09 on

possible changes to the rule.

EPA Animal Waste Air Emissions Yes Interest groups have asked the court and EPA

to review and stop the rule.

EPA Water Transfers Yes Nine states have sued EPA to stop the rule.

EPA Air Quality Standards for Lead Yes EPA granted a petition for reconsideration of

the rule on 07/22/09.

FAR (DOD/

GSA/ NASA)

Employment Verification No Agencies have delayed the effective date of the

rule until 09/08/09.

HHS/CMS Durable Medical Equipment Yes After a 60-day delay, the rule took effect on

04/18/09.



Department

/Agency Rule

Currently In

Effect Status

HHS Coercive Practices Yes, but no

information

collection

On 03/10/09, HHS proposed rescinding the

rule.

HHS/CMS Outpatient Hospital Facility

Services

No HHS rescinded the rule on 06/30/09.

HUD RESPA and “Required Use” Partial After delaying implementation twice, HUD

withdrew the “required use” definition on

05/15/09.

Treasury/

Federal

Reserve

Internet Gambling Yes, but no

compliance

until 12/01/09

Legislation has been introduced to delay the

compliance date until 12/01/10.

USAID Partner Vetting System No USAID has delayed implementation until

08/04/09.

Source: CRS, based on information in the Federal Register and other sources.

Addressing and Resolving Midnight Rules Can Be Difficult

Although the issues surrounding some of the Bush Administration’s midnight rules appear to have

been resolved (e.g., when the rules were withdrawn or implemented by the agencies), most of the

rules were still “in play” seven months after the start of the Obama Administration. Efforts by the

issuing agencies, interest groups, the courts, or Congress to reverse, change, or ensure the

implementation of these rules are likely to continue for months to come. That level of continuing

activity, on top of the number of actions that have already been taken, indicates that reversing or

delaying midnight rules can be difficult, often requiring a concerted effort over an extended

period of time by multiple parties both within and outside of government. The perseverance of

these rules also demonstrates that midnight rules can extend a President’s influence beyond his

term of office. As one observer said, issuing final rules at the end of a presidency is “a way for an

administration to have life after death.”148

In fact, activities regarding some of the Clinton Administration’s midnight rules are still ongoing,

more than eight years after the rules were issued. For example, on January 12, 2001, the Clinton

Administration’s Forest Service published a final rule that barred the construction of roads in

certain “roadless” areas.149

The rule was subsequently challenged in court, and the most recent

action occurred in June 2009, when a federal judge in Wyoming refused to reconsider his August

2008 decision that the roadless rule was not properly issued.150

That decision is being appealed to

the U.S. Court of Appeals for the 10th Circuit, and the Obama Administration filed a notice on

August 13, 2009, reserving its right to join in the appeal.151

Separately, in May 2005, the Bush

148 John M. Broder, “A Legacy Bush Can Control,” New York Times, September 9, 2007, p. A1, quoting Phillip Clapp,

president of the National Environmental Trust. 149 U.S. Department of Agriculture, Forest Service, “Special Areas; Roadless Area Conservation,” 66 Federal Register

3244, January 12, 2001. 150 Wyoming v. United States Department of Agriculture, 570 F. Supp. 2d 1309, 1350 (2008). See also Alan Kovski,

“Fight Over 2001 Roadless Rule Moving from Wyoming to 10th Circuit Court,” BNA Daily Report for Executives, June

18, 2009, p. A-31. 151 Tripp Baltz, “Justice Department Files Notice of Appeal of Wyoming Judge’s Ruling on Roadless Areas,” BNA

Daily Report for Executives, August 17, 2009, p. A-13.



Administration published a rule that would allow states a larger say in the regulation of roadless

areas.152

In 2006, a district court ruled that this “state petitions rule” violated the National

Environmental Policy Act and the Endangered Species Act, and reinstated the Clinton

Administration’s roadless rule. On August 5, 2009, this decision was upheld by the U.S. Court of

Appeals for the Ninth Circuit.153

Other studies have also indicated that eliminating or changing midnight rules may be difficult, or

otherwise unlikely to occur. For example, a 2005 study reported that the incoming Clinton

Administration repealed 2 of 23 (9%) midnight rules that were issued by EPA, the Occupational

Safety and Health Administration (OSHA), and NHTSA at the end of the George H.W. Bush

Administration, and amended 11 other rules (48%).154

The incoming George W. Bush

Administration repealed 1 of 33 (3%) of the Clinton Administration’s midnight rules from these

agencies, and amended 5 other rules (15%). Although it is too early to tell what the final tally will

be for the 25 Bush Administration rules that are profiled in this report, it is already clear that

efforts by various parties to delay or eliminate them have often been difficult and time

consuming. A number of factors account for that difficulty (e.g., competing interest groups), but

one reason may be the requirements of the rulemaking process.

Shortening the Rulemaking Process

Once a final rule has been published in the Federal Register, the only way for a new

administration to eliminate or change the rule (even just changing the effective date) is by going

back through the sometimes lengthy rulemaking process—i.e., publishing a notice of proposed

rulemaking in the Federal Register, taking comments from the public, and then publishing a final

rule. The January 21, 2009, memorandum issued by OMB Director Orszag specifically required

agencies to obtain comments from the public on any proposed delay in a rule’s effective date, and

most of the agencies that delayed their rules did so in this manner. For example, in February and

March 2009, the Employee Benefits Security Administration within DOL sought comment on a

proposed extension of the agency’s rule on investment advice fees, took comments for two weeks,

and a month later published a final rule delaying the effective date for 60 days.155

In one case, the issuing agency expedited this process by substantially shortening the public

comment period. In February 2009, one week before the CMS rule on durable medical equipment

was scheduled to take effect, the agency proposed a 60-day delay in the effective date and

allowed the public to comment on the proposed delay for three days—a much shorter period of

time than is usually provided for proposed rules.156

After the abbreviated comment period, CMS

152 U.S. Department of Agriculture, Forest Service, “Special Areas; State Petitions for Inventoried Roadless Area

Management,” 70 Federal Register 25654, May 13, 2005. 153 California v. USDA, 9th Cir., No. 07-15613, August 5, 2009. To view a copy of this opinion, see

http://www.ca9.uscourts.gov/datastore/opinions/2009/08/05/07-15613.pdf. See also Alan Kovski, “Ninth Circuit

Affirms District Court Rejection of Bush Administration Roadless Area Rule,” BNA Daily Report for Executives,

August 6, 2009. 154 Jason M. Loring and Liam R. Roth, “After Midnight: The Durability of the Midnight Regulations Passed by the

Two Previous Outgoing Administrations,” Wake Forest Law Review, vol. 40 (2005), pp. 1441-1465. 155 U.S. Department of Labor, Employee Benefits Security Administration, “Investment Advice—Participants and

Beneficiaries,” 74 Federal Register 11847, March 20, 2009. 156 Although the APA does not specify a minimum period for public comment, the Administrative Conference of the

United States recommended in 1993 that agencies allow at least 30 days. See ACUS Recommendation 93-4, Improving

the Environment for Agency Rulemaking, 59 Federal Register 4670 (February 1, 1994). Also, Section 6(a) of Executive

(continued...)

http://www.ca9.uscourts.gov/datastore/opinions/2009/08/05/07-15613.pdf



published a final rule less than a week later (and two days after the rule took effect), delaying the

effective date of the rule for 60 days.

Congress greatly shortened the rulemaking process by enacting legislation authorizing DOC and

DOI to withdraw the Endangered Species Act rule and another rule affecting polar bears “without

regard to any provision of statute or regulation that establishes a requirement for such

withdrawal.” Using this authority, DOC and DOI published a final rule withdrawing the

Endangered Species Act rule without going through notice and comment, and without review by

OIRA. Although congressional authority greatly expedited the withdrawal process, it also allowed

the agency to prevent the public from having a voice in that process, and gave the issuing

agencies—not Congress—the final decision regarding whether the rules should be reversed.157

Using this discretion, DOI decided not to withdraw the polar bear rule.

Agencies can shorten the rulemaking process by invoking the APA’s “good cause” exception to

notice and comment rulemaking, and some of the Bush Administration’s midnight rules were

delayed in this manner. For example, on two occasions, HUD said it was “impracticable” or

“contrary to the interest of justice and the public interest” to publish a proposed rule delaying the

“required use” definition in the RESPA rule, and cited the litigation schedule that had been

established by a court.158

In other cases, however, the agencies delayed the implementation of the rules without going

through notice and comment, without specific congressional authorization, and without citing

“good cause” or providing other justifications for the delay. For example:

On three occasions after their final rule on employment eligibility verification

took effect, DOD, GSA, and NASA published amendments to the rule delaying

the applicability date for a total of nearly eight months. The agencies did not

publish proposed rules before taking any of these actions, and did not explain in

the final rules why the actions were being taken.

On the day that the USAID partner vetting system rule was scheduled to take

effect (February 2, 2009), USAID published a final rule delaying the effective

date for 60 days, and reopening the comment period on the rule for 30 days.

Although USAID cited the Emanuel memorandum’s requirement that agencies

“consider” delaying rules that had not taken effect, the agency did not previously

publish a proposed rule, and did not specifically invoke the good cause exception

or otherwise explain why the rule was being delayed. Subsequently, USAID

published two other final rules delaying the effective date of the rule by 30 days

(...continued)

Order 12866 states that significant rules should generally have a comment period of at least 60 days. See Executive

Order 12866, “Regulatory Planning and Review,” 58 Federal Register 51735, October 4, 1993. The January 2009

durable equipment rule that was delayed was a significant rule, but CMS and OIRA did not consider the proposed and

final rules delaying the effective date to be significant. 157 The Omnibus Appropriations Act authorized the Secretaries of the Interior and Commerce to withdraw two rules,

the Endangered Species Act rule and a rule affecting polar bears. DOI decided to retain the polar bear rule. 158 The APA also provides explicit exceptions to the NPRM requirement for certain categories of regulatory actions,

such as rules dealing with military or foreign affairs; agency management or personnel; or public property, loans,

grants, benefits, or contracts. Further, the APA says that the NPRM requirements do not apply to interpretative rules;

general statements of policy; or rules of agency organization, procedure, or practice.



and then 60 days. The agency did not explain why either of these delays was

being implemented.

EBSA within DOL initially used notice and comment procedures to delay the

effective date of its rule on investment advice for 60 days. However, on May 22,

2009, EBSA delayed the rule a second time for 180 days (until November 18,

2009) without going through notice and comment “to afford the Department time

for further review.” The agency did not specifically invoke the “good cause”

exception or provide any other explanation for the delay.

When agencies use the good cause exception, the APA requires that they explicitly say so and

provide a rationale for the exception’s use when the rule is published in the Federal Register.159

The use of the good cause exception was common with regard to delays of the Clinton

Administration’s midnight rules,160

and the agencies often did not otherwise explain why the rules

were being delayed. One author noted that such practices “tended to evade judicial challenge due

to their short time frames, but they did occasion criticism.”161

Another author concluded that

individual short-term “temporary” suspensions of effective dates should not be allowed to “lapse

into multiple short-term postponements, all the while refusing to recognize that informal

rulemaking will be required for many of the delayed rules.”162

Other Methods Used to Delay or Challenge Midnight Rules

In addition to using the rulemaking process, agencies can sometimes delay other parts of a

regulatory program. For example, the HHS rule on coercive practices went into effect on January

20, 2009, but a written certification requirement in the rule was not effective until the department

received OMB approval to collect information pursuant to the requirements in the Paperwork

Reduction Act. As of August 2009, HHS had not sought OMB approval for this collection of

information, so the certification requirement was not in effect.

Agencies can also elect to leave the previous administration’s rules unchanged, but not implement

or enforce them. For example, on November 18, 2008, the Bureau of Land Management (BLM)

within DOI published a final rule setting out “policies and procedures for the implementation of a

commercial leasing program for the management of federally-owned oil shale and any associated

159 For a discussion of the good cause exception and relevant court cases, see Jeffrey S. Lubbers, ed., A Guide to

Federal Agency Rulemaking, Fourth Edition (Chicago: ABA Publishing, 2006), pp. 105-122. 160 The Administrative Procedure Act allows an agency to avoid notice and comment procedures for rules of agency

organization, procedure, or practice when an agency finds, for “good cause,” that those procedures are “impracticable,

unnecessary, or contrary to the public interest.” 161 Jeffrey S. Lubbers, ed., A Guide to Federal Agency Rulemaking, Fourth Edition (Chicago: ABA Publishing, 2006),

pp. 121-122. For a discussion of these criticisms, see William M. Jack, “Taking Care That Presidential Oversight of the

Regulatory Process is Faithfully Executed: A Review of Rule Withdrawals and Rule Suspensions Under the Bush

Administration’s Card Memorandum,” Administrative Law Review, vol. 54 (Fall 2002), pp. 1479-1518. Some federal

courts have considered any delay in a rule’s effective date to require notice and comment rulemaking. See Natural

Resources Defense Council, Inc. v. EPA, 683 F.2d 752, 761 (3d Cir. 1982); and Council of the Southern Mountains v.

Donovan, 653 F.2d 573 (D.C. Cir. 1981). One such action pursuant to the Card memorandum was rejected by a court.

See Natural Resources Defense Council v. Abraham, 355 F.3d 179, 204-05 (2d Cir. 2004). 162 William M. Jack, “Taking Care That Presidential Oversight of the Regulatory Process is Faithfully Executed: A

Review of Rule Withdrawals and Rule Suspensions Under the Bush Administration’s Card Memorandum,”

Administrative Law Review, vol. 54 (Fall 2002), p. 1517.



minerals located on Federal lands.”163

Oil shale is a sedimentary rock from which synthetic crude

oil can be produced. In January 2009, the Bush Administration issued a solicitation on research,

development, and demonstration leases for oil shale in Colorado and Utah.164

However, on

February 27, 2009, the Secretary of the Interior in the Obama Administration withdrew the

solicitation, saying that it would have locked in low royalty rates that would have “shortchanged

taxpayers.”165

The withdrawal notice also requested comments from the public on the terms and

conditions of any future oil shale leases. As of August 2009, DOI has not published a subsequent

solicitation.

Petitions for Reconsideration

In addition to actions that agencies take on their own, midnight rules have been delayed or

challenged in other ways. Section 553(e) of the APA requires that each agency give an “interested

person” the right to petition for the repeal of a rule.166

According to the Attorney General’s

Manual on the APA, the right to petition applies not only to substantive rules but also to

interpretations and statements of general policy, and to organizational and procedural rules. It also

says that agencies should establish procedures governing the receipt and handling of such

petitions.167

Some statutes provide specific petition criteria and procedures that go beyond the APA’s general

requirement, and those procedures were used with regard to several of the Bush Administration’s

midnight rules. For example, Section 307(d)(7)(B) of the Clean Air Act states that (1) if a person

raising an objection to a rule can demonstrate that it was impracticable to raise the objection

during the public comment period, or that the grounds for such objection arose after the comment

period; and (2) if the objection is of central relevance to the outcome of the rule, then the EPA

administrator is required to convene a proceeding for reconsideration of the rule. Also, the

administrator is allowed to stay the effectiveness of the rule for up to three months.168

This

petitioning procedure is notable in that it requires agency reconsideration of a rule if somewhat

subjective thresholds in the petition are met (i.e., that the issue of concern is “central” to the rule,

and that it was “impractical” for the petitioner to raise such concerns during the comment period).

Public interest groups (particularly Earthjustice, NRDC, and the Sierra Club) submitted petitions

163 U.S. Department of the Interior, Bureau of Land Management, “Oil Shale Management; General,” 73 Federal

Register 69414, November 18, 2008. 164 U.S. Department of the Interior, Bureau of Land Management, “Potential for Oil Shale Development; Call for

Nominations—Oil Shale Research, Development, and Demonstration (R, D, and D) Program,” 74 Federal Register

2611, January 15, 2009. 165 U.S. Department of the Interior, Bureau of Land Management, “Potential for Oil Shale Development; Withdrawal of

the Call for Nominations—Oil Shale Research, Development, and Demonstration (R, D, and D) Program and Request

for Public Comment,” 74 Federal Register 8983, February 27, 2009. See also Tripp Baltz, “Interior Withdraws

‘Flawed’ Research Leases for Oil Shale Development in Colorado, Utah,” BNA Daily Report for Executives, February

26, 2009. 166 5 U.S.C. §553(e). 167 U.S. Department of Justice, Attorney General’s Manual on the Administrative Procedure Act (1947), p. 38,

reprinted in Administrative Conference of the United States, Federal Administrative Procedure Sourcebook, 2nd ed.

(1992), p. 104. 168 Other statutes just permit petitions for reconsideration, and do not provide criteria or mandatory procedures. See, for

example, Section 7004(a) of RCRA (42 U.S.C. §6974(a)), which simply states that any person may petition the EPA

administrator for the repeal of any regulation, and that the administrator must act on the petition within a “reasonable

time” and publish a notice explaining the action in the Federal Register.



under this provision with regard to at least five EPA rules that were issued near the end of the

Bush Administration (fugitive emissions, aggregation, particulate matter smaller than 2.5

micrometers, air quality standards for lead, and the definition of solid waste). EPA granted most

of those petitions and announced delays in the rules’ effective dates, or new rulemaking actions.

Judicial Review

In at least nine other cases, interest groups have gone to court to stop or delay certain Bush

Administration midnight rules: (1) the DHS “no match” rule, with court challenges delaying both

the October 2008 rule and a related August 2007 rule; (2) the DOI “excess spoil” rule, which is

the subject of two lawsuits; (3) the EPA rule on “comparable fuel” under RCRA; (4) the DOI

“spotted owl” rule; (5) the DOI rule on concealed firearms in national parks; (6) the EPA rule on

water transfers, which is the subject of a lawsuit brought by nine states; (7) the EPA rule on air

emissions from animal waste, which is the subject of two lawsuits; (8) the DOJ rule on

certification of state counsel systems; and (9) the DOL rule on temporary employment of H-2A

aliens. Several of these legal actions appear to have delayed the rules. For example:

In January 2009, the District Court for the Northern District of California issued

a temporary restraining order, and then a preliminary injunction, regarding the

DOJ rule on certification of state capital counsel systems.

In March 2009, the District Court for the District of Columbia granted a

preliminary injunction regarding the implementation or enforcement of the DOI

rule on concealed firearms in national parks.

The Secretary of the Interior announced in April 2009 that the department’s

excess spoil rule had “legal deficiencies,” and directed DOJ to request that the

court vacate and remand the rule to DOI for further action.

In April 2009, EPA asked the U.S. Court of Appeals to hold litigation on the

RCRA comparable fuels rule in abeyance, and later announced that it would

propose that the rule be withdrawn.

In one case, however, an interest group went to court to ensure implementation of a Bush

Administration midnight rule, and that effort was successful. After DOL attempted to suspend the

implementation of the department’s rule on temporary employment of H-2A aliens (which was in

part precipitated by a lawsuit filed by the United Farm Workers), the U.S. District Court for the

Middle District of North Carolina issued a temporary injunction sought by a growers association

blocking the suspension of the rule.

Preventing Midnight Rules from Being Issued

As discussed earlier in this report, several controversial Bush Administration proposed rules were

never published as final rules, sometimes as a result of congressional, interest group, or legal

actions. For example:

DOJ did not finalize its proposed rule on criminal intelligence systems after the

chairman of the House Committee on Homeland Security characterized certain

aspects of the rule as “very troubling” in a front page story in the Washington

Post.



EPA said it did not finalize two proposed rules regarding the new source review

program because of a recent court decision, but others said the decision was

affected by a congressional hearing on these and other midnight rules that was

scheduled for the day after EPA’s announcement.

MSHA did not issue a final rule on the use of drugs or alcohol on mine property

after business, labor, and other groups publicly criticized the proposed rule.

DOL did not publish a final rule on occupational risk assessments after

legislation was introduced to prevent the issuance or enforcement of the rule.

Therefore, another strategy that appears to have been used to counter midnight rulemaking at the

end of the Bush Administration was preventative in nature, with the intended effect being to stop

the final rules from being issued at all.

The Congressional Review Act Was Not Used

Although agency and congressional actions, petitions for reconsideration, interest group pressure,

and lawsuits have prevented, delayed, stopped, or reversed several of the Bush Administration’s

midnight rules, the Congressional Review Act was not used to disapprove any of the rules. In late

2008 and early 2009, some observers believed that the CRA would be the primary tool used to

reverse these rules.169

After all, the CRA is most (and some would argue, only) useful in a

particular set of circumstances related to a presidential transition—i.e., when the incoming

President is of a different party than the outgoing President, but of the same party as both houses

of Congress.170

Since those conditions existed at the start of the 111th Congress for the first time

since the CRA was last used (in 2001, to reverse the DOL ergonomics rule), it was expected that

Congress would use the CRA again. Also, there was no shortage of potential targets, with

organizations such as OMB Watch and ProPublica developing lists of Bush Administration

midnight rules that they believed could be reversed.171

One resolution of disapproval was introduced in January 2009 regarding a Bush Administration

midnight rule—the DOC/NMFS and DOI/FEW rule on interagency cooperation under the

Endangered Species Act. However, that resolution (H.J.Res. 18) was arguably introduced before

the time period specified in the CRA, and would therefore have been ineligible for expedited

consideration under the CRA.172

In any case, Congress did not act on this disapproval resolution.

169 Ralph Lindeman, “Congressional Review Act Eyed as Vehicle for Hill to Overturn ‘Midnight Regulations’,” BNA

Daily Report for Executives, November 26, 2008, p. C-1, which described the CRA as “chief among the legislative

tools being examined” to reverse the Bush Administration’s midnight rules. 170 See, for example, “The Mysteries of the Congressional Review Act,” Harvard Law Review, vol. 122 (June 2009),

pp. 2162-2183, which states (p. 2169) that “the presentment requirement of the CRA means that disapproval

resolutions will likely only be enacted in times of presidential transition.” See also Susan E. Dudley, “Reversing

Midnight Regulations,” Regulation, vol. 24 (Spring 2001), p. 9, who noted that the “veto threat is diminished [after a

transition], since the president whose administration issued the regulations is no longer in office.” 171 See http://www.ombwatch.org/node/9739 and http://www.propublica.org/special/midnight-regulations for lists of

Bush Administration midnight rules. 172 On January 15, 2009, Representative Nick Rahall introduced H.J.Res. 18, which provided for congressional

disapproval under the CRA for the DOC/DOI rule regarding interagency cooperation under the Endangered Species

Act. The rule had been published in the Federal Register on December 16, 2008, and was scheduled to take effect on

January 15, 2009. However, the carryover provisions of the CRA appear to require that resolutions regarding such rules

cannot be introduced until the 15th legislative day of the new session, which did not occur in the House of

Representatives until January 28, 2009.

http://www.congress.gov/cgi-lis/bdquery/z?d111:H.J.Res.18:

http://www.ombwatch.org/node/9739

http://www.propublica.org/special/midnight-regulations

http://www.congress.gov/cgi-lis/bdquery/z?d111:H.J.Res.18:



Also, as discussed elsewhere in this report, Congress later authorized the agencies to withdraw

the rule without going through regular rulemaking procedures, and they did so in May 2009.

Section 802(a) of the CRA requires that resolutions of disapproval must be introduced no later

than 60 days after the date that the rule is submitted to Congress, “excluding days either House of

Congress is adjourned for more than 3 days during a session of Congress.” Rules that were

carried over from a previous session of Congress are treated as if they were submitted on the 15th

legislative or session day of the new session. According to the House and Senate calendars for the

111th Congress, the Senate reached the 15

th session day on January 27, 2009, and the House of

Representatives reached the 15th legislative day on January 28, 2009. Starting from that date, the

Senate reached the 60th

subsequent “day of continuous session” on April 22, 2009, and the House

of Representatives reached that mark on April 23, 2009. Therefore, no other CRA resolutions of

disapproval can now be introduced regarding any of the Bush Administration’s midnight rules.

Limitations to Using the CRA

There are a number of possible explanations for why the CRA may not have been viewed as a

viable option in addressing these rules. First, the text of the CRA and its legislative history

indicates that it does not permit disapproval of only part of a rule.173

The objections that had been

raised with regard to some of the Bush Administration’s midnight rules focused on certain parts

of the rules. For example, HUD withdrew only the definition of “required use” in the

department’s November 2008 RESPA rule, as that definition was the subject of litigation that had

been filed by the National Association of Home Builders. Also, EPA stayed only the

“grandfathering” provision in the agency’s rule on particulate matter less than 2.5 micrometers,

and requested public comment on that and three other specific issues. If the CRA had been used

to disapprove these rules, all of their elements would have been eliminated, not just these

particular provisions.

Also, if Congress enacts a CRA resolution of disapproval, the rule at issue is deemed not to have

had any effect at any time.174

Several of the Bush Administration’s midnight rules had taken effect

by January 20, 2009, or shortly thereafter, so any use of the CRA would have retroactively

negated the rules. Doing so would likely have required the agencies to reverse any enforcement

actions that were initiated when the rules were in effect.

Finally, the CRA says that a disapproved rule cannot be “reissued in the same form,” and a new

rule that is “substantially the same” as the disapproved rule cannot be issued unless it is

specifically authorized by a law enacted after the disapproval.175

As another CRS report noted,

Opponents of a disapproval resolution may argue that successful passage of a resolution may

disable an agency from ever promulgating rules in the “area” covered by the resolution

without future legislative reauthorization since a successful disapproval resolution must

necessarily bring down the entire rule. Or, at the very least, it may be contended that any

future attempt by the agency to promulgate new rules with respect to the subject matter will

be subject to judicial challenge by regulated persons who may claim that either the new rules

173 CRS Report RL30116, Congressional Review of Agency Rulemaking: An Update and Assessment of The

Congressional Review Act after a Decade, by Morton Rosenberg. 174 5 U.S.C. §801(f). 175 5 U.S.C. §801(b)(2).





are substantially the same as those disapproved or that the statute provides no meaningful

standard to discern whether a new rule is substantially the same and that the agency must

await congressional guidance in the form of a statute before it can engage in further

rulemaking in the area. The practical effect of these arguments, then, may be to dissuade an

agency from taking any action until Congress provides clear authorization.176

Although the report asserts that this provision should not be viewed as a blanket prohibition on

similar rulemaking, the lack of clarity with regard to the implications of this provision may

persuade Members of Congress not to use the CRA when other options are available.

Other Congressional Options

Other congressional options are, in fact, available. For example, although the CRA has been used

to stop only one rule since its enactment in 1996, Congress has added dozens of provisions to

agency appropriations bills in recent years that restrict federal rulemaking or regulatory activity.

Some of those provisions have prevented certain rules from being implemented or enforced—the

immediate impact of a CRA resolution of disapproval.177

For example, within the Consolidated

Appropriations Act of 2008 (P.L. 110-161):

Section 741 within Division A of the legislation (funding USDA and other

agencies, 121 Stat. 1881) stated, in part that “None of the funds made available in

this Act may be used to pay the salaries or expenses of personnel to ... implement

or enforce section 352.19 of title 9, Code of Federal Regulations.”178

Section 621 within Division D of the legislation (funding the Department of the

Treasury and other agencies, 121 Stat. 2016) stated: “None of the funds made

available by this Act may be used by the Federal Communications Commission

to implement the Fairness Doctrine, as repealed in General Fairness Doctrine

Obligations of Broadcast Licensees (50 Fed. Reg. 35418 (1985)), or any other

regulations having the same substance.”

Title I of Division G of the legislation (funding salaries and expenses at OSHA,

121 Stat. 2163) stated that “no funds appropriated under this paragraph shall be

obligated or expended to administer or enforce any standard, rule, regulation, or

order under the Act with respect to any employer of 10 or fewer employees who

is included within a category having a Days Away, Restricted, or Transferred

(DART) occupational injury and illness rate, at the most precise industrial

classification code for which such data are published, less than the national

average rate as such rates are most recently published by the Secretary, acting

through the Bureau of Labor Statistics, in accordance with section 24 of the

Act.”179

176 CRS Report RL30116, Congressional Review of Agency Rulemaking: An Update and Assessment of The

Congressional Review Act after a Decade, by Morton Rosenberg. 177 Other provisions in appropriations acts during recent years appear to have been specifically designed to slow down

or prevent the issuance of certain midnight rules. For a discussion of these provisions, see CRS Report RL34354,

Congressional Influence on Rulemaking and Regulation Through Appropriations Restrictions, by Curtis W. Copeland. 178 Section 3 of the Meat Inspection Act covers the inspection of meat and meat food products. Section 903 of the

Federal Agriculture Improvement and Reform Act of 1996 involves the regulation of commercial transportation of

equine for slaughter. 9 C.F.R. 352.19 concerns ante-mortem inspections at establishments that slaughter horses. 179 The provision went on to provide certain exceptions (e.g., “to provide, as authorized by the Act, consultation,

(continued...)







As noted earlier in this report, one such appropriations provision has already been introduced in

the 111th Congress regarding a Bush Administration midnight rule. The Senate version of the

appropriations bill funding USAID for FY2010 (S. 1434, 111th Congress) would prevent USAID

from implementing the January 2009 partner vetting rule until a new USAID administrator has

reviewed the rule and consulted with relevant congressional committees.

Unlike a CRA resolution of disapproval, however, these types of appropriations provisions do not

eliminate the underlying regulatory requirements. Also, such provisions are generally applicable

only for the period of time and the agencies covered by the relevant appropriations bill. Finally, if

the agencies have independent sources of funding (e.g., user fees) or implement their regulations

through state or local governments, the appropriations limitations may not be as restrictive on the

agencies as they seem to be.

Congress can also make it easier for agencies to stop an outgoing administration’s rules. As noted

earlier in this report, Section 429 of the Omnibus Appropriations Act, 2009 (P.L. 111-8)

authorized the Secretaries of the Interior and Commerce to withdraw two December 2008 rules

“without regard to any provision of statute or regulation that establishes a requirement for such

withdrawal” within 60 days of enactment: (1) a rule on “Interagency Cooperation Under the

Endangered Species Act,” and (2) a “Special Rule for the Polar Bear.” Although this approach

allowed the agencies to withdraw the rules quickly, without going through the rulemaking

process, it did not specifically require the agencies to withdraw the rules (and DOI decided not to

withdraw one of the rules), and prevented the public from having a say in that reversal process.

Effect of the Bolten Memorandum

The May 2008 Bolten memorandum did not accomplish its stated objective of ensuring that the

Bush Administration’s final rules were generally published by November 1, 2008. Some of the

most controversial rules that were expected to be issued at the end of the Bush Administration

were never published as final rules, and many other final rules were not published until well after

the November 1 deadline. Of the 25 final rules discussed in this report, 20 of them were published

after the November 1 deadline, including 14 that were published after December 1, and 5 that

were not published until January 2009. As noted earlier in this report, the number of final rules

published in the final months of the Bush Administration (after November 1) was higher than the

number published during the same period one year earlier.

Some observers have suggested that the Bolten memorandum was actually intended to make it

more difficult for the next presidential administration to stop the implementation of the Bush

Administration’s rules,180

and it appears to have partially achieved this objective. The January 20,

2009, Emanuel memorandum, like all other regulatory moratoriums at the start of previous

(...continued)

technical assistance, educational and training services, and to conduct surveys and studies”). 180 Christopher Carlberg, “Early to Bed for Federal Regulations: A New Attempt to Avoid ‘Midnight Regulations’ and

Its Effect on Political Accountability, The George Washington Law Review, vol. 77 (June 2009), pp. 992-1001, in

which the author said (p. 998) that “By requiring that regulations be passed more than sixty days before the end of his

Administration, President Bush may have ensured that most of the regulations passed under his watch will not be easily

overturned.” Also, Gary Bass of OMB Watch testified in February 2009 that “By getting these rules into effect, the

hands of the next administration—whether Democrat or Republican—would be tied, thereby extending the policy

priorities of the Bush administration into the future.” Available at http://judiciary.house.gov/hearings/pdf/

Bass090204.pdf.



http://judiciary.house.gov/hearings/pdf/Bass090204.pdf

http://judiciary.house.gov/hearings/pdf/Bass090204.pdf



presidential administrations, did not apply to any rules that had already taken effect. Although

many of the Bush Administration’s midnight rules were not published until after the November 1

deadline, most were published early enough to have gone into effect by January 20, 2009, and

were therefore exempt from the Emanuel memorandum.181

Of the 25 final rules that are discussed

in this report, 20 had taken effect by the start of the Obama Administration. All five of the rules

that had not gone into effect were delayed pursuant to the Emanuel memorandum.182

Other

studies have also noted that most of the Bush Administration’s midnight rules had taken effect by

the start of the Obama Administration.183

In contrast, at the start of the George W. Bush

Administration, many Clinton Administration rules had not taken effect.184

Although putting most of the Bush Administration’s midnight rules into effect by January 20,

2009, prevented them from being covered by the Emanuel memorandum’s requirements, doing so

did not prevent other types of congressional, agency, interest group, or court actions to delay or

reverse the rules. For example:

EPA’s rule on particulate matter smaller than 2.5 micrometers took effect on June

15, 2008, more than six months before President Bush left office. However, in

April 2009 the agency granted a petition for reconsideration and stayed the rule

until September 2009.

The HHS/CMS rule on outpatient hospital facility services took effect on

December 8, 2008, but the department rescinded the rule on June 30, 2009.

The DOI/NPS and FWS rule on concealed firearms in national parks took effect

on January 9, 2009, but a court granted an injunction regarding implementation

and enforcement on March 19, 2009.

The DOC/NMFS and DOI/FWS rule on interagency cooperation under the

Endangered Species Act took effect on January 15, 2009, but about two months

later, Congress authorized the agencies to withdraw the rule without regard to

existing rulemaking requirements. Less than two months later, the agencies

withdrew the rule.

The DOD/NASA/GSA rule on employment verification took effect on January

15, 2009, but the agencies have delayed the applicability date until September

2009.

The HUD rule on RESPA took effect on January 16, 2009, but the department

withdrew the “required use” definition on May 15, 2009.

181 The APA generally prohibits rules from taking effect until at least 30 days after they are published, and the CRA

generally requires agencies to delay the effective date of major rules for 60 days after they are provided to Congress. 182 Those rules were the DOL rules on investment advice fees and labor union financial reporting, the EPA rule on

aggregation, the HHS rule on durable medical equipment, and the USAID partner vetting system rule. 183 Reece Rushing, Rick Melberth, and Matt Madia, After Midnight: The Bush Legacy of Deregulation and What

Obama Can Do, Center for American Progress and OMB Watch, available at http://www.americanprogress.org/issues/

2009/01/after_midnight.html. 184 According to GAO, federal agencies submitted 385 rules to GAO between January 1, 2001, and January 20, 2001,

including 12 major rules. Given the delay requirements in the APA and the CRA, these rules generally did not take

effect before January 20, 2009. During the same period of time at the end of the George W. Bush Administration (i.e.,

between January 1, 2009, and January 20, 2009), federal agencies submitted only 138 rules, and only 1 major rule.

http://www.americanprogress.org/issues/2009/01/after_midnight.html

http://www.americanprogress.org/issues/2009/01/after_midnight.html



In a few cases, delays and reversals of final rules issued near the end of the Bush Administration

occurred relatively quickly. Both of the rules that have been withdrawn (Endangered Species Act

cooperation and outpatient hospital facility services) were aided by congressional authorizations

or delays in implementation. On the other hand, because of competing interest group pressures

and the time required to go through rulemaking and judicial processes, efforts to address certain

midnight rules are likely to continue for months, if not years, to come.

Author Contact Information

Curtis W. Copeland

Specialist in American National Government

[email protected], 7-0632

mailto:[email protected]

Documents

Bush Administration: A Status ReportIn the final months of the George W. Bush Administration, federal agencies issued a number of controversial final rules, many of which were scheduled