Watching out for Midnight Regulations
by Matthew Madia, 11/3/2008
Reg•Watch has been following the phenomenon known as "midnight regulation" where an administration finalizes lots of rules in its waning days of power. Below is a list of many of the more controversial rules worth watching. Reg•Watch will provide regular updates to this list.
Click here for updated information on all midnight regulations finalized during the Bush administration.
CIVIL LIBERTIES
| Rule Description | Proposal Date | Current Status |
| Domestic surveillance, Department of Justice — The rule would expand the power of state and local law enforcement agencies to investigate potential criminal activities and report the information to federal agencies. The rule would broaden the scope of activities authorities could monitor to include organizations as well as individuals, along with non-criminal activities that are deemed "suspicious." + Find out more from OMB Watch |
July 31, 2008* (Proposal) |
Final rule has not been sent to OMB. |
TRAFFIC SAFETY
| Rule Description | Proposal Date | Current Status |
| Truck driver hours of service, Federal Motor Carrier Safety Administration (Department of Transportation) — The rule would allow truck drivers to drive up to 11 consecutive hours. Because of the effects of fatigue, longer hours-of-service periods put both truck drivers and other motorists at risk. + Find out more from Public Citizen |
Dec. 17, 2007 (Interim rule) |
Final rule published by FMSCA Nov. 19. Effective date: Jan. 19, 2009 (Final rule) |
| Hazmat rerouting for railroads, Pipeline and Hazardous Materials Safety Administration (DOT) — The rule would require railcars carrying hazardous materials to reroute around densely populated areas; but it would give control of rerouting to the railroad industry without federal oversight or local input. + Find out more from Friends of the Earth |
April 16, 2008 (Interim rule) |
Final rule published by PHMSA Nov. 26. Effective date: Dec. 26, 2008 (Final rule) |
| Vehicle roof strength, National Highway Traffic Safety Administration (DOT) — The rule would improve the national safety standard for roof strength in passenger vehicles. However, NHTSA's proposal is not as strict as auto safety advocates and some congressional members hoped and will make only minor safety improvements for passengers involved in rollover crashes. NHTSA also proposed preempting state law, including damages claims. + Find out more from OMB Watch |
Aug. 23, 2005 (Proposal) |
Final rule has not been sent to OMB, DOT is under court order to finish the rule by Dec. 15. |
ENVIRONMENT
| Rule Description | Proposal Date | Current Status |
| Mountaintop mining, Office of Surface Mining (Interior) — The rule would allow mining companies to dump the waste (i.e. excess rock and dirt) from mountaintop mining into rivers and streams. + Find out more from Earthjustice |
Aug. 24, 2007 (Proposal) |
Final rule published by OSM Dec. 12. Effective date: Jan. 12 (Final rule) |
| Endangered species consultation, Department of the Interior — The rule would alter implementation of the Endangered Species Act by allowing federal land-use managers to approve projects like infrastructure creation, minerals extraction, or logging without consulting federal habitat managers and biological health experts responsible for species protection. Currently, consultation is required. + Find out more from RegWatch, OMB Watch's regulatory policy blog |
Aug. 15, 2008* (Proposal) |
Final rule published by Interior Dec. 16. Effective date: Jan. 15, 2009 (Final rule) |
| Air pollution near national parks, Environmental Protection Agency — The rule would ease current restrictions that make it difficult for power plants to operate near national parks and wilderness areas. + Find out more from the House Oversight and Government Reform Committee |
June 6, 2007 (Proposal) |
Final rule withdrawn from OMB Dec. 11. Bush administration officials have said the rule will not be finalized. |
| Runoff from factory farms, Environmental Protection Agency — Under the rule, concentrated animal feeding operations, i.e. factory farms, could allow farm runoff to pollute waterways without a permit. The rule circumvents the Clean Water Act, instead allowing for self-regulation. + Find out more from the Natural Resources Defense Council |
March 7, 2008 (Proposal) |
Final rule published by EPA Nov. 20. Effective date: Dec. 22, 2008 (Final rule) |
| New Source Review changes, Environmental Protection Agency — The rule would change EPA's New Source Review program, which requires new facilities or renovating facilities to install better pollution control technology, by subjecting fewer facilities to its requirements. + Find out more from the Senate Environment and Public Works Committee |
May 8, 2007 (Proposal) |
Bush administration officials have said the rule will not be finalized. |
| Air pollution reporting from farms, Environmental Protection Agency — The rule would exempt factory farms from reporting air pollution emissions from animal waste. + Find out more from OMB Watch |
Dec. 28, 2007 (Proposal) |
Final rule published by EPA Dec. 18. Effective date: Jan. 20, 2009 (Final rule) |
| Environmental impacts of fishery decisions, National Oceanic and Atmospheric Administration (Department of Commerce) — The rule would transfer the responsibility for examining the environmental impacts of federal ocean management decisions from federal employees to advisory groups that represent regional fishing interests. The rule would also make it more difficult for the public to participate in the environmental assessment process required by the National Environmental Policy Act. + Find out more from Pew Charitable Trusts |
May 14, 2008 (Proposal) |
Final rule withdrawn from OMB Dec. 19. |
| Burning of hazardous waste, Environmental Protection Agency — The rule would reclassify thousands of tons of hazardous waste as fuel, allowing it to be burned instead of sensitively disposed of. The emissions generated by burning the waste would be more toxic than emissions from burning fossil fuels. The chemical industry is advocating for more categories of waste to be reclassified. + Find out more from Earthjustice |
June 15, 2007 (Proposal) |
Final rule published by EPA Dec. 19. Effective date: Jan. 20, 2009 (Final rule) |
| Oil shale development, Bureau of Land Management (Interior) — Capitalizing on a recent decision by Congress to let the ban on oil shale development to expire, the BLM rule would open 2 million acres of western land to leasing. Environmentalists say oil shale development, which involves extracting liquid oil from solid rock by heating it, increases greenhouse gas emissions and requires intensive water use. + Find out more from the Natural Resources Defense Council |
July 23, 2008* (Proposal) |
Final rule published by BLM Nov. 18. Effective date: Jan. 17, 2009 (Final rule) |
WORKER RIGHTS AND SAFETY
| Rule Description | Proposal Date | Current Status |
| Risk assessments for occupational hazards, Department of Labor — The rule would change the way federal regulators calculate estimates for on-the-job risks. The rule would also add an extra comment period to new worker health standards, creating unnecessary delay. + Find out more from RegWatch |
Aug. 29, 2008* (Proposal) |
Final rule has not been sent to OMB. |
| Drug and alcohol testing for miners, Mine Safety and Health Administration — The rule would require mine operators to test employees in "safety-sensitive" positions for drug and alcohol use. + Find out more from RegWatch |
Sept. 8, 2008* (Proposal) |
Final rule has not been sent to OMB; MSHA held a public hearing Oct. 28. |
| Family and medical leave, Employment Standards Administration (Labor) — The rule would limit employee access to family and medical leave. Among other things, the rule would make it more difficult for workers to use paid vacation or personal time to take leave and would allow employers to speak directly to an employee's health care provider. + Find out more from OMB Watch |
Feb. 11,2008 (Proposal) |
Final rule published by ESA Nov. 17. Effective date: Jan. 16, 2009 (Final rule) |
HEALTH AND HUMAN SERVICES
| Rule Description | Proposal Date | Current Status |
| Access to reproductive health services, Department of Health and Human Services — The rule could reduce women's access to reproductive health services. The rule would require health care providers to certify they will allow their employees to withhold services on the basis of religious or moral grounds or risk losing federal funding. + Find out more from the National Partnership for Women and Families |
Aug. 26, 2008* (Proposal) |
Final rule published by HHS Dec. 19. Effective date: Jan. 20, 2009 (Final rule) |
| Requirements for HIV/AIDS grantees, Department of Health and Human Services — The rule would require HIV/AIDS 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. + Find out more from OMB Watch |
April 17, 2008 (Proposal) |
Final rule published by HHS Dec. 24. Effective date: Jan. 20, 2009 (Final rule) |
| Requirements for grantees aiding trafficking victims, Department of Health and Human Services — As required by Congress, the rule would require organizations providing aid to the victims of sex trafficking to certify they do not promote, support, or advocate prostitution or risk losing U.S. funding. | Feb. 26, 2008 (Proposal) |
Final rule sent to OMB Oct. 24. |
| Medicaid outpatient services, Centers for Medicare and Medicaid Services, (HHS) — The rule would narrow the definition of outpatient hospital services to reduce Medicaid beneficiaries' access to those services, such as dental and vision care. | Sep. 28, 2007 (Proposal) |
Final rule published by CMS Nov. 7. Effective date: Dec. 8, 2008 (Final rule) |
GUN CONTROL
| Rule Description | Proposal Date | Current Status |
| Gun safety in national parks, National Park Service (Interior) — The rule would end the 25-year-old ban on carrying loaded weapons in national parks. + Find out more from the National Coalition of Park Service Retirees |
April 30, 2008 (Proposal) |
Final rule published by NPS Dec. 10. Effective date: Jan. 9, 2009 (Final rule) |
Notes:
*The rule missed a 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.
Click here to find out more about midnight regulations, including why effective dates are important and what options the new administration and Congress will have.
