What is the Obama Agenda for Bush-Era Regulations?

Just hours after President Barack Obama took the oath of office on Jan. 20, new White House Chief of Staff Rahm Emanuel issued a memo setting out the Obama administration's policy for dealing with some regulations left by the administration of President George W. Bush. The Emanuel memo puts a freeze on all regulations still in the pipeline and gives agencies leeway to deal with those Bush-era regulations already finalized but not yet being implemented. However, the memo does not address most of the controversial regulations finalized by the Bush administration in its last days; these rules are already in effect and impacting the nation.

Regulations in the pipeline

Under the Emanuel memo, agencies are to put a hold on any proposed or final regulations that had been under development during the Bush administration. The Emanuel memo states, "No proposed or final regulation should be [published] unless and until it has been reviewed and approved by a department or agency head appointed or designated by the President after noon on January 20, 2009." The memo makes exceptions for regulations that address "urgent circumstances relating to health, safety, environmental, financial, or national security matters," as well as regulations needed to meet statutory or judicial deadlines.

The moratorium covers all regulations in any stage of the rulemaking process but not yet finalized — a figure that likely numbers in the hundreds. For example:

  • In August 2008, the Department of Labor proposed a rule that 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. However, the Bush administration's Labor Department did not finish its work on the rule.

  • In July 2008, the Justice Department proposed a rule that 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." The Justice Department did not finish developing the rule.

The memo is addressed to the heads of all executive branch agencies, including Cabinet-level agencies and, presumably, independent regulatory agencies such as the Securities and Exchange Commission and the Consumer Product Safety Commission.

Final regulations not yet in effect

The Emanuel memo allows agencies to reevaluate those Bush-era regulations that were published in the Federal Register as final rules but which have not yet taken effect. The memo asks agencies to "consider extending for 60 days the effective date" of those regulations and instructs agencies to open a 30-day public comment period on any decision to extend a regulation's effective date.

Publication in the Federal Register marks the official finalization of a regulation. After publication, according to federal law, agencies must wait 30 or 60 days (depending on the significance of the regulation) before making a new regulation effective — that is, before implementing its requirements or provisions. Agencies may also choose to wait longer than 30 or 60 days before making a new regulation effective.

A separate memo from Office of Management and Budget (OMB) Director Peter Orszag identifies eight criteria agencies may use to reconsider regulations that have not taken effect. For example, agencies may extend the effective dates of the regulations if they find regulations that do not meet legal muster or were not developed in an open and transparent manner, according to Orszag.

Among those Bush administration final regulations that are not yet in effect:

  • A U.S. Environmental Protection Agency (EPA) regulation that alters the way industrial facilities count their emissions under the New Source Review program. Under the regulation, industrial facilities are not required to combine all their emissions when determining whether they meet federal emissions thresholds, if the emissions are for two or more different purposes. EPA published the regulation Jan. 15, and it is scheduled to go into effect Feb. 17.

  • A Department of Agriculture (USDA) regulation that sets requirements for country-of-origin labeling on meat and other perishable food items. Although consumers support country-of-origin labeling, critics say the regulation has loopholes. USDA used an overly broad definition of "processed" foods that can be exempt from labeling requirements. USDA published the regulation Jan. 15, and it is scheduled to go into effect March 16.

Regulations not covered by the memo

What the Emanuel memo does not do may be more important than what it does do. Because the Bush administration was able to finalize many regulations in time to make them effective before Bush left office, the Obama administration will be unable to freeze them or delay their effective dates. The memo also may not apply to other types of agency actions like guidelines or policy statements that have effect of regulations.

The administration finalized dozens of regulations that drew fire from environmental, consumer, worker, and healthcare advocates. A new report by the Center for American Progress and OMB Watch, After Midnight, recaps the Bush administration's midnight regulations campaign and identifies strategies for reversing them. The report includes a list of more than two dozen controversial midnight regulations, including:

  • An Interior Department regulation that went into effect Jan. 12 allows mining companies to dump the waste (i.e. excess rock and dirt) generated during mountaintop mining into rivers and streams.
  • An EPA regulation that went into effect Jan. 20 exempts farms from reporting to the government potentially harmful air emissions that come from animal waste.
  • A Department of Health and Human Services (HHS) regulation that went into effect Jan. 20 could limit women's access to reproductive health services by requiring 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.
  • A Department of Labor regulation that went into effect Jan. 17 weakens already modest wage protections and housing standards for agricultural workers.

These and other regulations will continue to carry the force of law until they are changed or reversed by the Obama administration, invalidated by the courts, or until Congress intercedes.

Midnight regulations in the courts

The Orszag memo opens the door for expedited court settlements on both final regulations not yet in effect and final regulations in effect if suits have been filed challenging the rules before the effective date. A court ruling invalidating one of Bush's midnight regulations would give agencies two options: do nothing, thereby reverting to the pre-Bush status, or write (or revise) a new regulation substantially different from the Bush rule.

For final regulations not in effect, the Orszag memo points agency officials to the Administrative Procedure Act, which allows agencies to postpone effective dates for regulations under judicial review "when an agency finds that justice so requires."

Orszag also reminds agencies that they may choose not to defend Bush-era regulations — both effective and not effective — in court. The memo states, "In special cases … you may consider the appropriateness of not defending a legally doubtful rule in the face of a judicial challenge."

Lawsuits have already been filed on a number of Bush's midnight regulations. In separate suits, a group of state attorneys general and reproductive health rights advocates have sued HHS over the "provider conscience" rule mentioned above. Environmentalists have filed suit on several controversial regulations, including the mountaintop mining rule and a regulation which changes the way the Interior Department implements the Endangered Species Act.

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