In a memorandum to regulatory agencies, White House Chief of Staff Joshua Bolten has set a Nov. 1 deadline for any new regulations agencies wish to finalize by the end of the Bush administration. The memo will shape the work of White House officials and federal agency heads as they consider which regulations to push through in the coming months, with an eye toward securing an administrative legacy for President Bush.

Bolten issued the memo under the guise of reversing "the historical tendency of administrations to increase regulatory activity in their final months" — commonly known as midnight regulations. In reality, the memo may simply change when the clock strikes midnight in order to insulate potentially controversial rules from disapproval by a new administration. Other rules moving slowly through the regulatory pipeline may be delayed until after Bush leaves office.

Bolten sent the memo on May 9 to the heads of executive branch departments. The memo states, "Except in 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."

While the November 1 deadline is clear, the June 1 deadline can be interpreted in two ways. The term "proposed" likely refers to a federal agency's publication of a notice of proposed rulemaking in the Federal Register — the usual point at which a rule is first revealed to the public and opened for comment. However, because the memo does not specify to whom the rule must be proposed by June 1, it may also refer to the Office of Management and Budget review process, which is the final intra-governmental clearance before public release of a proposed rule.

The memo gave agencies 22 days, including weekends, to adjust to this new schedule. Inevitably, this will have an impact on the ability of agencies to complete work that may have been in the pipeline for later in 2008. While there is no way to know which rules will be delayed and which accelerated, it is clear that rules still in the developmental stage as of June 1 are not likely to be finalized if the Bolten memo is followed.

For example, President Bush said in 2007 that he would act on climate change. In response, EPA Administrator Stephen Johnson described plans to publish an advanced notice of rulemaking on climate change in a March 27 letter to the Senate Committee on Environment and Public Works. The advanced notice is expected to be issued some time in June. Presumably, this would mean that the administration has decided it will not finalize any rules on this topic during the remainder of Bush's term.

This may also create a series of unintended consequences. For example, there is a controversial rule being considered that would force international HIV/AIDS grantees to choose between adopting government policy explicitly opposing prostitution and sex trafficking for their entire organization or setting up a completely separate affiliated organization. The rule is in response to a 2003 law requiring a pledge to oppose prostitution and sex trafficking in order to receive government funding, and that law is being challenged in court. According to the Brennan Center for Justice, "During oral argument, the government's attorney informed the court and the plaintiffs that USAID and HHS [Department of Health and Human Services] intended to issue guidelines that would permit Global AIDS Act grantees to form privately funded affiliates that could operate free of the pledge requirement....HHS has informed the court that it will put its July 2007 guidelines through a notice and comment process by April 2008. The court will wait to assess the constitutionality of the guidelines until after that process has ended."

The comments on the proposed guidelines were issued before June 1, which means it is possible that the agency could issue a final rule during Bush's remaining time in office. HHS would need to review the comments, draft a final rule, clear it internally within HHS, send it to OMB for review, and publish it by November 1. If that schedule is not followed, there will be no final rule, according to the Bolten memo. If there is no final rule, it is unclear how the court will proceed.

The only publicly available list of rules in the pipeline is the most recent Unified Agenda, the semiannual listing of an administration's planned regulatory actions. It is notorious for inaccurate timetables but may provide some clue as to what regulations could be affected by the Bolten memo.

The following is a list of important environmental, public health, and public safety regulations that might or might not make the cut off date for the Bolten memo. All of these rules have been proposed and opened for public comment. Most of these are efforts to weaken public protections. If they were to be stopped by the Bolten memo, it would allow the next administration to revisit the decisions to chip away at the regulations. On the other hand, if accelerated, it would simply move the midnight regulations up in time to November 1.

* Proposal dates are based on when the notice of proposed rulemaking (NPRM) was published in the Federal Register. Where two dates are given, an NPRM was republished or a supplemental NPRM was published. Planned completion dates are based on projections from the Spring 2008 Unified Agenda of Regulatory and Deregulatory Actions, available online here.

Worker safety rules are conspicuously absent from the list above. The Bush administration has consistently failed to develop regulations necessary to protect workers under the Occupational Safety and Health Act. The administration apparently does not plan to finalize exposure standards for harmful chemicals such as beryllium or crystalline silica or safety standards for construction workers working in confined spaces, according to the most recent Unified Agenda. The administration may finalize rules to improve mine safety, as required by the Mine Improvement and New Emergency Response Act.

Options for the Next Administration and Congress

A new presidential administration, regardless of party affiliation, will have difficulty stopping rules the Bush administration finalizes by November 1 if those rules are not to his or her liking. Shortly after taking office in 2001, Bush rejected several Clinton-era rules. However, those rules had not yet taken effect. (The Administrative Procedure Act requires final rules take effect no less than 30 days after publication.) Both Bush and President Clinton suspended all rules that agencies had completed but not yet published in the Federal Register.

The Nov. 1 deadline should allow enough time for controversial rules to take effect before a new president enters the White House. In those cases, the only option for a new president would be to initiate a brand new rulemaking to cancel out the other rule.

Congress will likely have options if it finds fault with any Bush administration rules. Congress could invoke the Congressional Review Act — a little-used tool that gives Congress a 60-day window to disapprove of executive branch regulations.

Under the act, congressional members have 60 working days after a rule is finalized to introduce a resolution to reject it. In order for the rule to be rejected, a majority of both houses of Congress must then approve the resolution, and the president must not veto it. Since a president is unlikely to disapprove of one of his own agency's rules, and since presidential vetoes are difficult to overcome, the act is virtually impossible to utilize successfully.

However, if that 60-day window does not close by the end of a session of Congress — a likelihood for regulations finalized later in 2008 — the time period starts over. Indeed, the only time Congress has used a Congressional Review Act challenge successfully was in rejecting a Clinton administration rule (setting standards for ergonomics in the workplace) shortly after Bush took office.