Midnight Regulations List
by Matthew Madia, 2/26/2009
OMB Watch has assembled this list of midnight regulations finalized during the Bush administration. If you know of additional regulations, or have additional information on efforts to undo any of these actions, please leave your thoughts in the comment section below. (Last updated Dec. 6, 2010.)
Troublesome Midnight Regulations Published Since October 1, 2008 |
|||||
| Regulation Agency |
Description | Publication of final rule |
Original Effective date | Efforts to reverse or change the regulation | Current Status |
| Labor organization annual financial reports Office of Labor Management Standards |
The rule adds itemization and other requirements to the LM-2 form. The rule also establishes procedures for revoking the right of smaller unions to file LM-3 and requiring them to file LM-2. | 1/21/2009 (link to final rule) |
2/20/2009 | On Feb. 3, the agency published a notice in the Federal Register proposing to extend the effective date of the rule and received comment on the extension until Feb. 13. On Feb. 20, the agency published a notice that extends until April 21 the effective date of the rule. On March 19, the agency published a notice proposing a further extension of the effective date to Oct. 19; it confirmed that extension April 21. Also on April 21, the agency published a notice proposing to withdraw the rule entirely. The agency accepted public comment on the withdrawal proposal until June 22 (after one extension of the period). On Oct. 13, the agency published a final rule formally withdrawing the original, Jan. 21 rule. | Withdrawn |
| Country-of-origin labeling Agricultural Marketing Service |
The rule established country-of-origin labeling requirements for beef, lamb, chicken, goat, pork, fish and shellfish, certain nuts, and other perishable agricultural commodities. However, an overly broad definition of "processed foods" could exempt "over 60 percent of pork, the majority of frozen vegetables, an estimated 95 percent of peanuts, pecans, and macadamia nuts, and multi-ingredient fresh produce items such as fruit salads and salad mixes" from the labeling requirements, according to Wenonah Hauter, Executive Director of Food and Water Watch. |
1/15/2009 | 3/16/2009 | Secretary Vilsack informed industry Feb. 20 that he intends to allow the rule to go into effect as planned but asked it to take additional steps to effectively make the rule more stringent. Vilsack asked industry to label meat products with the country in which a product was born, raised, and slaughtered and asked it not to abuse the definition of processed food. | Effective |
| Aggregation of emissions under New Source Review Environmental Protection Agency |
The rule would change the way industrial facilities count their air pollution emissions. The rule would no longer require facilities to aggregate emissions data, if the emissions are a result of different processes that are not "substantially related." | 1/15/2009 | 2/17/2009 | On Feb. 13 EPA published a notice in the Federal Register that extended until May 18 the effective date of the rule. Also on Feb. 13, EPA published a notice announcing it would reconsider the rule and may hold a public hearing. On March 18, EPA published a notice proposing a further extension of the effective date to Nov. 18. EPA accepted public comment on the March 18 notice until April 17. On May 14, the agency published a final rule further extending the effective date to May 18, 2010. On April 14, 2010, the agency published a proposed rule to reconsider the rule. On May 18, 2010, the agency published a notice delaying the effective date of the orignial rule until it completes its reconsideration. | Not yet effective |
| Partner Vetting System U.S. Agency for International Development |
The rule creates the Partner Vetting System (PVS) which would screen charities, and their “principle” employees, who receive or apply for USAID funding for possible ties to terrorists. The government would then screen these employee names against classified databases (USAID will not specify which databases) that has information on terrorists. The rule also states, "The decision as to whether to implement PVS will be made by the incoming Obama Administration." | 1/2/2009 | 2/2/2009 | On Feb. 2 USAID published a notice in the Federal Register that extended until April 3 the effective date of the rule. On April 2 the agency published a notice that further extended the effective date until May 4. On May 6 the agency published a notice that further extended the effective date until Aug. 4. The rule has yet to be implemented. Implementation is unlikely prior to the appointment of a new USAID administrator. President Obama has yet to nominate an individual to the position. The FY 2010 Senate appropriations bill for the Department of State (S. 1434), currently under consideration, includes a provision that would temporarily bar implementation. | Effective, but implementation delayed |
| Pledge requirements for HIV/AIDS grantees Department of Health and Human Services |
The rule requires 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. | 12/24/2008 | 1/20/2009 | On Nov. 23, the agency issued a new proposed rule which would revise the December 2008 rule. | Effective; possible remedy pending |
| Exemption of information reporting for federal contractors Wage and Hour Division |
The rule exempts contractors covered by the Davis-Bacon Act and the Copeland Anti-Kickback Act from including in weekly payroll record reports to the federal government the social security numbers and home addresses of workers. This will make it more difficult for the government to verify the accuracy of reports. | 12/19/2008 | 1/18/2009 | Unknown | Effective |
| Privatization of public toll roads Federal Highway Administration |
The rule could lead to an increase in the privatization of public toll roads by forcing states to accept bids from private companies when reorganizing or transferring authority for operating toll roads. | 12/19/2008 | 1/18/2009 | Unknown | Effective |
| Access to reproductive health services Department of Health and Human Services |
The rule could limit women's access to reproductive health services. The rule requires 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. | 12/19/2008 | 1/20/2009 | At least three suits have been filed against HHS: One by a group of seven state attorneys general; one by Planned Parenthood; and one by the National Family Planning and Reproductive Health Association. All three suits were filed in the U.S. District Court for the District of Connecticut. Rep. Diana DeGette has introduced legislation to overturn the rule (H.R. 570). On March 10, the agency published a notice proposing to withdraw the rule entirely. The agency accepted public comment on the withdrawal proposal until April 9. The spring edition of the semiannual Unified Agenda of Regulatory and Deregulatory Action, published in May, identified the rule as a long-term action and indicated that next steps were “undetermined.” | Effective; possible remedy pending |
| Certification for the Employment of H-2B Aliens Employment and Training Administration |
The rule eliminates the requirement that the government certify employers' compliance with H-2B program requirements, instead allowing for self attestation. | 12/19/2008 | 1/18/2009 | Unknown | Effective |
| Burning of hazardous waste Environmental Protection Agency |
The rule reclassifies 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. | 12/19/2008 | 1/20/2009 | On Dec. 8, 2009, EPA proposed withdrawing the rule. | Effective; possible remedy pending |
| Revisions to the H-2A guestworker program Employment and Training Administration |
The rule weakens wage protections and housing standards for agricultural workers. The rule could also allow employers to hire more foreign workers without giving due consideration to U.S. workers. | 12/18/2008 | 1/17/2009 | A coalition of farmworker unions sued to block the rule. The U.S. District Court for the District of Columbia denied a motion to immediately suspend the effective date of the rule. The underlying case continues. On May 29, the agency published a final rule, suspending the original Dec. 18, 2008 regulation for nine months. However, on June 29, a federal court overturned the May 29 rule, reinstating the Dec. 18 rule. On Sept. 4, the agency published a proposed rule that would largely reverse the controversial aspects of the original Dec. 18, 2008 rule. The agency accepted public comment on the proposal until Oct. 20 (after one extension). | Effective; possible remedy pending |
| Air pollution reporting from farms Environmental Protection Agency |
The rule exempts factory farms from reporting air pollution emissions coming from animal waste. | 12/18/2008 | 1/20/2009 | A coalition of environmental groups has filed suit. The suit was filed Jan. 15, before the rule had taken effect. | Effective |
| Endangered species consultation Fish and Wildlife Service/National Oceanic and Atmospheric Administration |
The rule alters 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. Previously, consultation had been required. The rule also forbids global warming from being considered as a factor in species decisions. | 12/16/2008 | 1/15/2009 | A coalition of environmental groups filed suit Dec. 11 in the U.S. District Court for the Northern District of California. Several state attorneys general filed separately. President Obama March 3 issued a memo instructing agencies to “exercise their discretion” to continue consultation. The FY 2009 omnibus appropriations bill passed by Congress on March 11 (Pub. L. 111-8) includes a provision that permitted the Commerce and Interior secretaries to “withdraw or reissue” the rule without going through the normal rulemaking process. On May 4, the agencies published a final rule formally withdrawing the original Dec. 16, 2008 rule. | Withdrawn |
| Mountaintop mining Office of Surface Mining |
The rule allows mining companies to dump the waste, or spoil, from mountaintop mining into rivers and streams. | 12/12/2008 | 1/12/2009 | At least two suits have been filed, both by coalitions of environmental groups and both in the U.S. District Court for the District of Columbia. One was filed Dec. 22. The other was filed Jan. 16. The Interior Department announced April 27 that it would ask the court to overturn the rule, reinstating the old rule. On Aug. 12, the court rejected the request. | Effective |
| Gun safety in national parks National Park Service |
The rule lifts the 25-year-old ban on carrying loaded weapons in national parks. | 12/10/2008 | 1/9/2009 | At least two suits have been filed, one by a coalition of park safety advocates and one by the Brady Campaign to Prevent Gun Violence. Both were filed in the U.S. District Court for the District of Columbia. One was filed Dec. 30, the other was filed Jan. 6, both before the rule had taken effect. The Interior Department has said it will reevaluate the rule. On March 19, a federal judge granted a request for a preliminary injunction, blocking implementation of the rule until the case is argued. The Obama administration has announced that it will perform an environmental impact assessment of the rule, putting it on hold indefinitely. A credit card reform bill passed by Congress and signed into law May 22 (Pub. L. 111-24) includes a provision the prevents Interior from writing or enforcing any federal gun control regulation affecting national parks. | Effective, but implementation delayed |
| Vertical tandem lifts Occupational Safety and Health Administration |
The rule allows maritime port operators to lift two or more empty containers secured together at the same time. | 12/10/2008 | 4/9/2009 | Unknown | Effective |
| Emergency land withdrawals Bureau of Land Management |
The rule removes existing regulations that provide for emergency land withdrawals. Specifically, the rule change revokes Congress's authority to require the agency to bar land from being developed in emergency situations. The rulemaking is largely in response to a June 25th Congressional Resolution which ordered BLM to immediately remove public lands adjacent to the Grand Canyon from uranium mining claims. | 12/5/2008 | 1/5/2009 | Unknown | Effective |
| Rerouting hazmat rail shipments Pipeline and Hazardous Materials Safety Administration |
The rule requires railcars carrying hazardous materials to reroute around densely populated areas; but it gives control of rerouting to the railroad industry without federal oversight or local input. | 11/26/2008 | 12/26/2008 | Unknown | Effective |
| Rail transportation security Transportation Security Administration |
The rule requires 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. | 11/26/2008 | 12/26/2008 | Unknown | Effective |
| Runoff from factory farms Environmental Protection Agency |
The rule could allow the runoff from concentrated animal feeding operations, i.e. factory farms, to pollute waterways without a permit. The rule circumvents the Clean Water Act, instead allowing for self-regulation. | 11/20/2008 | 12/22/2008 | On Oct. 15, EPA announced that it would explore and use existing rules to regulate CAFO runoff. | Effective |
| Truck driver hours of service Federal Motor Carrier Safety Administration |
The rule allows truck drivers to drive up to 11 consecutive hours and shortens mandatory rest times between work weeks. It is nearly identical to a regulation struck down in the D.C. Court of Appeals in 2007. | 11/19/2008 | 1/19/2009 | A coalition of highway safety advocates has petitioned FMSCA to reconsider the rule. The Department of Transportation agreed Oct. 26, in a settlement with advocacy groups and the Teamsters union, to revise the 2008 rule. A new notice of proposed rulemaking must be developed within 9 months of the settlement date. | Effective |
| Oil shale development Bureau of Land Management |
Capitalizing on a recent decision by Congress to let the ban on oil shale development to expire, the BLM rule opens 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. | 11/18/2008 | 1/17/2009 | A coalition of environmental groups has filed suit in the U.S. District Court for the District of Colorado. The suit was filed Jan. 16, before the rule had taken effect. Interior Secretary Ken Salazar has announced he will not proceed with development leasing under the rule. | Effective, but implementation delayed |
| Family and medical leave Wage and Hour Division |
The rule limits employee access to family and medical leave. Among other things, the rule makes it more difficult for workers to use paid vacation or personal time to take leave and allows employers to speak directly to an employee's health care provider. The rule also expands leave opportunities for military families. | 11/17/2008 | 1/16/2009 | On April 29, Rep. Carol Shea-Porter (D-NH) introduced a bill (H.R. 2161) that would repeal several of the controversial changes made by the rule. The bill is stuck in committee. | Effective |
| Medicaid outpatient services Centers for Medicare and Medicaid Services |
The rule narrows the definition of outpatient hospital services to reduce Medicaid beneficiaries' access to those services, such as dental and vision care. | 11/7/2008 | 12/8/2008 | On May 6, the agency published a notice proposing to withdraw the rule entirely. The agency accepted public comment on the proposal until June 1. On June 30, the agency published a final rule formally withdrawing the original, Nov. 7, 2008 rule. | Withdrawn |
| Definition of solid waste Environmental Protection Agency |
The rule guts standards for the recycling of hazardous wastes under the Resource Conservation and Recovery Act (RCRA). “In this proposed rulemaking, EPA clings to a concept of ‘discard’ that would exclude from regulation, by their own estimation, over 3 billion pounds of hazardous waste from over 4600 facilities in 530 industries,” according to comments submitted by the Sierra Club, U.S. Public Interest Research Group, National Environmental Trust, and Safe Food and Fertilizer. | 10/30/2008 | 12/29/2008 | On May 27, EPA published a notice announcing a public meeting to be held June 30 to discuss possible revisions to the rule. EPA also accepted public comment on possible revisions until July 14. On Sept. 7, 2010, EPA agreed in a settlement to revise the rule. | Effective; possible remedy pending |
| Employment verification by social security records Department of Homeland Security |
The supplemental to a 2007 final rule instructs employers how to respond to a “no-match” letter from the Social Security Administration indicating that an employee’s name and social security number do not match SSA records. But as is often the case, a no-match letter could be triggered by a database error, such as a misspelled name, and does not necessarily mean a person is an illegal immigrant. “Because many employers mistakenly assume that the letter provides information about the immigration status of the individual workers named in it, they immediately fire, lay-off, or demote such workers without giving them a chance to correct discrepancies,” according to the National Immigration Law Center. | 10/28/2008 | 10/28/2008 | The rule never went into effect because of a 2007 court injunction blocking the government from sending out the letters. On Aug. 19, the agency published a notice proposing to withdraw the rule entirely. The agency accepted public comment on the proposal until Sept. 18. On Oct. 7, the agency published a final rule formally withdrawing the original, Oct. 28, 2008 rule. | Withdrawn |
| Union annual reports for trusts Office of Labor-Management Standards |
The rule imposes new trust reporting requirement that is more onerous than requirement adopted in 2006. Treats employer contributions as equivalent of union contributions without explanation. The rule, meant to replace a rule vacated in federal court in July 2007, is widely seen as a political effort to overload labor unions with paperwork. | 10/2/2008 | 12/31/2008 | On Dec. 3, the agency published a notice proposing to extend the reporting deadlines, first set to occur in early 2010. On Dec. 30, 2009, the agency finalized the proposal, formally extending the reporting dates. On Feb. 2, 2010, the agency published a notice proposing to rescind the Oct. 2, 2008 rule and modify reporting requirements. | Effective, but implementation delayed; possible remedy pending |
