By Cheryl Bolen
Jan. 22 — Federal agencies have been warned that they will not be permitted to rush through significant regulations in the waning days of the Obama administration, a practice known as midnight regulating, according to a memorandum obtained by Bloomberg BNA.
“There will not be a big package of surprise regulations at the end of this administration, if I have anything to say about it,” Howard Shelanski, administrator of the Office of Information and Regulatory Affairs (OIRA), told Bloomberg BNA.
OIRA must review all significant regulations before they can be finalized, and the memo said the office will not rush the process to accommodate last-minute submissions by agencies.
Instead, all priority regulations must be completed and submitted no later than this summer if agencies want their regulations finalized before President Barack Obama leaves office.
Rules not submitted by then run the risk that, if the review process runs into hurdles because of interagency disputes or problems that OIRA discovers with the underlying rule, “we're not going to sweep those under the carpet in the interest of time,” Shelanski said.
The memo, dated Dec. 17, 2015, was sent to all deputy secretaries and signed by Shelanski. It is similar to a memo sent in the last year of the George W. Bush administration, signed by then White House chief of staff Joshua Bolton.
But, unlike Bush, Obama is not imposing a hard deadline by which agencies must submit their rules.
There is no “moratorium” or date after which OIRA will cease to accept rules, Shelanski said in a Jan. 21 interview with Bloomberg BNA.
However, agencies are being held to the priorities they have identified internally and the plans and agenda they have identified publicly, Shelanski said (See previous story, 11/20/15).
The big, important rules that agencies are considering now should not be “jammed” on OIRA in the waning weeks of the administration, because there is a process and OIRA has to uphold its standards, Shelanski said.
“So if these rules are really important to you, get them to us by the summer,” Shelanski said.
The administration understands that agencies will issue many needed regulations throughout 2016, the memo said.
“To the extent feasible and consistent with your priorities, statutory obligations, and judicial deadlines, however, agencies should strive to complete their highest priority rulemakings by the summer of 2016 to avoid an end-of-year scramble that has the potential to lower the quality of regulations that OIRA receives for review and to tax the resources available for interagency review,” it said.
Shelanski said that instead of “midnight regulation,” the term he prefers to use is end of administration rulemaking.
Historically, there has been a rush to put a whole lot of regulations out at the end of an administration, Shelanski said. But the goal here is to maintain regular order in the regulatory process, he said.
“We've issued a memorandum to agencies and have had an agency-wide call with the deputy secretaries and the top agency officials, and I've communicated with the secretaries as well, that we intend to keep regular order, by which I mean, uphold our process and our standards of review here at OIRA for rules right through to the end of the administration,” Shelanski said.
The goal is really no surprises, other than what are absolutely necessitated by the unanticipated consequence of legislation, natural disasters or national security events, Shelanski said.
Those things can happen at the end of an administration just as they happen over the course of an administration, and OIRA will be ready to accommodate the necessary regulatory responses, he said.
But short of that, OIRA is telling agencies not to depart from what has been publicly published in the regulatory plan and agenda, Shelanski said.
“We will not be very receptive to new rules that come out of the blue that aren't really essential, that aren't dictated by some kind of changed circumstance, that just pop up toward the end of the administration,” he said.
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