Obama Regulatory Chief Rejects Midnight Regulation

By Cheryl Bolen

Dec. 6 — Cabinet secretaries and agency heads are not trying, nor will they be able, to rush through surprise regulations during the remaining weeks of the Obama administration, the nation’s top regulatory chief told Bloomberg BNA.

New data from the conservative-leaning American Action Forum show 57 regulations were reviewed by the Office of Management and Budget's Office of Information and Regulatory Affairs in November, an increase from 49 regulations reviewed in October, but similar to the 55 regulations reviewed in May.

“This story does not correspond to facts,” OIRA Administrator Howard Shelanski said in a Dec. 5 interview. “The people who keep saying, ‘Well, it’s going to happen, it’s going to happen.’ We have, I think, 45.5 days left. It is not going to happen.”

Agencies Understand

In December 2015, Shelanski sent a memorandum to all department and agency heads telling them to prioritize their rulemakings and submit all rules to OIRA for review by summer if they wanted them finalized before the president left office.

Historically, there is an uptick in the level of regulatory activity before a president of either political party leaves office. Critics of regulation often characterize this activity as a surge of last-minute or “midnight” regulations, while proponents of regulation counter that rules take years to complete.

To date, the process has worked quite well and agencies have been “really good” even as they move into the last months and weeks of this administration, Shelanski said. “They have understood that we need the time at OIRA to do a serious review,” he said.

A week before Thanksgiving, OIRA released the government’s semiannual regulatory plan and agenda that lists by agency all pending federal regulations that could see action over the next 12 months.

“That plan and agenda, I think, shows pretty clearly that the agencies did not add a whole lot of new stuff,” Shelanski said. “There were no real surprises in that regulatory plan and agenda. I think that, if anything, that really highlights the regular order that we have kept.”

No Flood

Regular order, however, does not mean a stop to regulation in the final months of the administration.

“We have more rules that we are going to issue,” Shelanski said. “We are not going to stop issuing rules, and we will continue a regular, steady, disciplined process to issue rules right up until the end of this administration.”

But these are not surprise rules, rushed rules or an unexpected flood of rules, Shelanski said. Instead, the rules that will be issued are rules that people know about, he said.

“Again, one always needs to have the possibility of unforeseen circumstances that arise and the need for the federal government to respond, but I don’t think that people are going to be able to honestly say, looking at the facts when this administration is done, that we’ve had some flood of midnight regulations,” Shelanski said.

Fluctuations in Regulatory Activity

“It appears there has been a midnight surge, although not one of historic proportions,” said Sam Batkins, director of regulatory policy at the American Action Forum.

OIRA released 57 regulations in November, or an increase of about 23 percent from the monthly average of 46.5 rules, and more than any other month this year, Batkins wrote in a blog post. Still, the output in November did not top the historic pace of 2008, at the end of the George W. Bush administration, when regulators approved 75 rules, he said.

The data for 2016 show generally that OIRA has released roughly 40 to 60 rules per month. Just 39 rules were released in March, the lowest number this year, while 50 rules were approved in June and 44 rules were approved in September.

To contact the reporter on this story: Cheryl Bolen in Washington at cbolen@bna.com

To contact the editor responsible for this story: Paul Hendrie at phendrie@bna.com

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.