The Bush administration is working on a spate of rules it hopes to finalize before its time in power expires. The last-minute rules cover a broad range of policy, but many share a common trait: relaxing existing requirements on businesses. The Bush administration appears to be pushing to deregulate in areas like environmental protection, worker leave, and auto safety. Many of the controversial rules are expected to be finalized in the coming weeks. The administration is pushing to finalize rules in November, not January, in order to assure they cannot be undone by the next president.

Tying the Hands of the Next Administration

Regulations are considered final upon publication in the Federal Register, but generally, federal law requires agencies wait at least 30 or 60 days before making the rules effective. By the time a new president takes the reins of government, the Bush administration hopes to make sure all of its regulations are not only final but effective.

The Clinton administration published many rules in the Federal Register in January 2001, just days before leaving office. Because those rules were not yet effective, the incoming president, George W. Bush, took a second look at those rules and suspended many of them. Although Bush's move was of questionable legality, it was never challenged in court.

Bush was able to derail a regulation that would have precluded businesses in repeated violation of the law (including tax laws, labor laws, employment laws, environmental laws, antitrust laws, and consumer protection laws) from receiving government contracts.

Now, the Bush administration is pushing rules a future administration might find objectionable. However, by ensuring those rules are in effect by Jan. 20, Bush is preventing the next president from employing the same strategy of suspending last-minute rules.

The White House Response

The White House foreshadowed this November push when, in May, it instructed agencies to finalize rules by Nov. 1. In a memo, White House Chief of Staff Joshua Bolten wrote, "[R]egulations to be finalized in this Administration should be proposed no later than June 1, 2008." All final rules were to be completed by Nov. 1 except in extraordinary circumstances, according to the memo.

Many upcoming rules will miss the Nov. 1 deadline. However, the administration continues to push to finish rules by mid-November — at least 60 days before Bush leaves office.

Bolten claimed the deadline was meant to curtail the usual flurry of last-minute activity that has characterized the final weeks of previous administrations. White House spokesman Tony Fratto made the same assertion on Oct. 31. He claimed, "What the Chief of Staff wanted to avoid was this very charge that we would be trying to, in the dark of night in the last days of the administration, be rushing regulations into place ahead of the incoming, next administration."

Disputing news reports that claim regulatory activity is increasing, Fratto said, "We're not doing that in this administration." Speaking of the White House Office of Management and Budget's mandatory review of agencies' significant regulations, he said, "There's no great increase in the number of regulations that we're reviewing right now."

According to an OMB website, OMB's Office of Information and Regulatory Affairs (OIRA) reviewed 83 final rules from Sept. 1 to Oct. 31. During the same period in 2007, OIRA reviewed 34 final rules; in 2006, 42 final rules; and in 2005, 33 final rules.

However, it is the quality, not the quantity, of rules that worries critics most. Several rules will rollback existing requirements that prevent environmental pollution. Others will require recipients of government funding to endorse the administration's policies.

The last-minute push is consistent with the Bush administration's Janus-faced view on government regulation — relaxing requirements when they impose burdens on businesses and adding requirements when they impose conservative ideology on regulatory agencies and/or the public.

The Rush to Regulate

Like the Clinton administration, the Bush administration is rushing through rules to ensure an administrative legacy. However, the Bush administration is doing so in a more compressed timeframe. Agencies have truncated the development and review process for some of these rules. For several rules, the Bush administration accepted public comment for only 30 days. The standard comment period for major controversial rules lasts 60 days.

Rushed rulemakings can lead to policy that does not take into account the views of all stakeholders and benefits neither the public nor the regulated community. Eli Lehrer of the Competitive Enterprise Institute, a conservative think tank advocating for a smaller role for government, recently told Reuters, "At this point, in the current economic climate, it would be especially harmful to push through ill-considered regulations in the final days of the administration."

A Department of Labor rule on calculating the severity of on-the-job risks, specifically exposure to toxic chemicals, sped through Labor Secretary Elaine Chao's office without consultation with occupational health experts in the department. The rule is based largely on a report prepared by an outside consultant paid $349,000 by the department. That report has not been disclosed to the public.

A rule that could allow government-approved projects to intrude on the habitats of endangered species is also moving rapidly. In response to public outcry, the Department of the Interior extended the comment period to 60 days from 30 days. The Department received about 300,000 comments, mostly negative.

An internal e-mail uncovered by the Associated Press showed that senior Interior officials pushed staff to review all the comments in just one week. One calculation claims staff would have to review seven comments per minute to meet that mandate.

In October, Interior released a separate document that examines the environmental impact of the rule. As required by law, the document was opened to public comment, but the period only lasted ten days.

Fratto defended the Bush administration's procedures for finalizing regulations saying, "We're going to deal with regulations and … we're going to do it in an open and transparent way and make sure that the public is involved and that everyone can review the regulations that we put forward."

Relaxing Requirements on Industry

While some rules have been rushed, others have been in development for years. Critics have long feared upcoming rules that will make it easier for power plants to avoid installing pollution controls or allow trucking companies to force their drivers to work 11-hour shifts.

A rule to ease restrictions on mountaintop mining companies was first proposed in January 2004. The rule would allow the companies to dump the waste generated by mountaintop mining into rivers and streams. Critics fear the change will further degrade the environment and endanger public health in the Appalachian region.

Other rules seem to reflect the concerns of industry, and public interest advocates fear what the final rules may hold. An upcoming rule that will make it more difficult for employees to claim unpaid leave for family and medical emergencies mirrors part of the request of the National Association of Manufacturers, a lobbying group.

Industry lobbyists are working hard to make sure their views are known to administration officials. Even amid the hurried pace of rulemaking, White House officials continue to meet with industry representatives. For a rule that would exempt factory farms from reporting air emissions from animal waste, officials from the White House and the U.S. Environmental Protection Agency met with representatives from the poultry, pork, and turkey farm lobbies.

A controversial rule that will allow factory farms to self-police their runoff into bodies of water was one of the only Bush administration rules to meet the Bolten memo deadline. Clean water advocates saw the Oct. 31 announcement of the rule as proof the administration is trying to secure a pro-industry legacy. "It's outrageous to see the environmental yard sale that marks the Bush Administration's final days in office," said Jeffrey Odefey, staff attorney at the Waterkeeper Alliance. "Clearly, industry lobbyists are picking up last-minute deals intended to preserve their right to pollute for years to come."

Imposing an Ideological Agenda

Other rules reflect a conservative ideology. Several rules currently under development would attach strings to federal funds in order to make sure they are not used for actions inconsistent with the administration's ideological positions.

The Department of Health and Human Services (HHS) is rushing through a rule that would require health care providers receiving federal funds to allow their employees to opt out of providing health care services they find morally objectionable. Critics fear the rule will reduce patient access to reproductive health information and services, possibly including contraception.

Another HHS rule would restrict funds to organizations providing HIV/AIDS relief. The rule would force grantees to choose between adopting government policy (explicitly and unequivocally opposing prostitution and sex trafficking) for their entire organizations or setting up completely separate affiliated organizations. However, the degree of separation proposed is so severe that it is impractical to implement. Another rule would impose similar funding restrictions for grantees providing aid to the victims of sex trafficking.

Critics, including OMB Watch, object to such certification requirements as an unconstitutional coercion of speech. The Bush administration has consistently used the threat of cutting grants to control both the charitable and health services sectors.

Options for Repeal

The next president will be unable to repeal or reverse any Bush-era regulations that are final and in effect. Short of actions taken by the courts in the face of potential lawsuits, the new administration's only option would be to restart the rulemaking process. A typical rulemaking can take years to complete.

Congress could take advantage of a little-known procedural law that allows lawmakers to nullify agency regulations. The Congressional Review Act gives members of either chamber 60 legislative days to introduce a so-called resolution of disapproval. If the resolution moves to the floor for a vote, it enjoys fast-track status and cannot be filibustered in the Senate.

However, because Congress is currently in recess and may only reconvene for a few days after the elections, fewer than 60 legislative days remain in the current Congress. Under the law, that would give a new Congress a new 60-legislative-day window in 2009 in which to introduce resolutions of disapproval for individual rules.

The Congressional Review Act has only been successfully used once. It is difficult for Congress to utilize because the president may veto the resolution, and he is unlikely to accept congressional disapproval of his administration's own policies. Congress's only successful use of the act came in the early days of the Bush administration when a Clinton-era rule that would have required better ergonomics in the workplace was rejected.

Even if Congress and the courts are able to overturn Bush-era regulations eventually, the public may feel the impact for years to come. Contaminated water is difficult to clean up. It can be nearly impossible to reverse some public health damage. Is that the legacy the Bush administration really wants to leave?

The Bush administration is attempting to finalize many controversial regulations before its time in office expires. A White House memo instructed agencies to finalize rules by Nov. 1. Although many rules will miss that deadline, OMB Watch believes the administration will push to finalize rules in the coming weeks so they are in effect when a new administration comes into office. (Regulations are considered final upon publication in the Federal Register, but generally, federal law requires agencies wait at least 30 or 60 days before making the rules effective.)

This list is a broad sample of so-called "midnight regulations."

CIVIL LIBERTIES

TRAFFIC SAFETY

ENVIRONMENT

WORKER RIGHTS AND SAFETY

HEALTH AND HUMAN SERVICES

GUN CONTROL

Notes:
*The rule missed the deadline set forth in a White House memo instructing federal agencies to propose by June 1 any rule they wished to finalize by the end of the Bush administration.

This article has been updated from its original version.