Groups Agree on Existence, Not Quality, of Midnight Rules

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By Cheryl Bolen

July 18 — A pair of academic studies published this month concluded that significantly more major regulations are completed in the final months of an outgoing administration—known as midnight regulations—but disagreed completely on their quality.

Critics, such as Rep. Tim Walberg (R-Mich.), have called midnight regulations nefarious attempts by lame-duck administrations to jam through poorly analyzed, controversial and costly rules at the last minute.

But a new study by Public Citizen, a public interest advocacy group, said that economically significant rules approved in the final months of previous administrations were not rushed, but had taken an average of more than three years to complete.

“Tax accountants work more hours and complete more tax reviews between January and April each year, but are not accused of producing flawed tax reviews simply because they are producing more of them,” the study said.

Rush to Regulate?

A study released July 12 from the Regulatory Studies Center at the George Washington University predicted that the volume of regulation issued in the final days of the Obama administration will increase dramatically, with agencies finalizing approximately 12 economically significant rules per month between September 2016 and January 2017.

And, there are a number of consequences from this “rush to regulate,” not the least of which is constraining the policy options available to the incoming elected president, the study said.

Rules issued during the latter half of an election year tend to have poorer quality analysis, suggesting that agencies may have spent less time carefully thinking through the consequences of their rules before publishing them, the study said

Because of the compressed time frame, midnight regulations may also suffer from insufficient public participation in the rulemaking process, as the public may not have time to submit comments and agencies may not have time to incorporate valuable feedback, it said.

No Shortcuts

Public Citizen argued that rules completed during presidential transition periods have not enjoyed any shortcuts.

To the contrary, the data set shows that final rules completed during presidential transition periods (from election day to inauguration) took 3.6 years to complete; or longer from start to finish, on average, than rules completed at other times, Public Citizen found.

It is true that the Office of Information and Regulatory Affairs reviewed substantially more economically significant final rules during the transition periods of the outgoing Clinton and George W. Bush administrations, the study said.

“But claiming that the increase in the number of final rules reviewed by OIRA alone indicates that administrations are ‘rushing' out rules is not supported by the evidence,” Public Citizen said.

To contact the reporter on this story: Cheryl Bolen in Washington at

To contact the editor responsible for this story: Heather Rothman at

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