{ "id": "R42612", "type": "CRS Report", "typeId": "REPORTS", "number": "R42612", "active": true, "source": "EveryCRSReport.com", "versions": [ { "source": "EveryCRSReport.com", "id": 456274, "date": "2016-10-04", "retrieved": "2016-10-17T19:20:46.407230", "title": "Midnight Rulemaking: Background and Options for Congress", "summary": "During the final months of recent presidential administrations, federal agencies have typically issued a larger number of rules relative to comparable time periods earlier in the administration. This phenomenon is often referred to as \u201cmidnight rulemaking.\u201d Various scholars and public officials have documented evidence of midnight rulemaking by several recent outgoing administrations, especially for those outgoing administrations that will be replaced by an administration of a different party. \nThe most likely explanation for the issuance of \u201cmidnight rules\u201d is the desire of the outgoing administration to complete its work and achieve certain policy goals before the end of its term of office. This tendency has been termed the \u201cCinderella effect\u201d by some observers. Because it may be difficult to change or eliminate rules after they have taken effect, issuing midnight rules can help ensure a legacy for a President. \nSome entities and individuals have raised a number of concerns over the practice of midnight rulemaking. One such concern is that an outgoing administration has less political accountability compared to an administration faced with the possibility of re-election. Furthermore, rules that are hurried through at the end of an administration may not have the same opportunity for public input: agencies may find that to issue regulations by the end of an administration, they may not have sufficient time to read and digest public comments received during the comment period. \nAnother concern over midnight rulemaking is that the quality of regulations may suffer during the midnight period, since the departing administration may issue rules quickly, and, as a result, the rules may not receive adequate review or analysis. One study suggested that \u201can increase in the number of regulations promulgated in a given time period could overwhelm the institutional review process that serves to ensure that new regulations have been carefully considered, are based on sound evidence, and can justify their cost.\u201d Finally, some have argued that the task of evaluating a previous administration\u2019s midnight rules could overwhelm a new administration.\nAlthough some observers have voiced concerns about midnight rulemaking, a 2012 study for the Administrative Conference of the United States (ACUS) concluded that many midnight regulations were \u201crelatively routine matters not implicating new policy initiatives by incumbent administrations,\u201d and that the \u201cmajority of the rules appear to be the result of finishing tasks that were initiated before the Presidential transition period or the result of deadlines outside the agency\u2019s control (such as year-end statutory or court-ordered deadlines).\u201d The study cited some evidence of the strategic use of midnight rules to implement certain desired policies before leaving office, but in general, the study said that \u201cthe perception of midnight rulemaking as an unseemly practice is worse than the reality.\u201d\nCongress has several options pertaining to midnight regulations\u2014even after they have taken effect. First, Congress can use its legislative power to overturn or change a regulation that has already been issued: Congress could amend the statutory authority underlying a regulation, which could force an agency to amend a regulation that has been already issued, or could provide additional instruction to an agency before a rule is finalized. \nIn addition, Congress may use the expedited procedures provided in the Congressional Review Act (CRA) to disapprove agency rules, including, in some cases, rules issued by the outgoing administration during the previous Congress. Alternatively, Congress can add provisions to agency appropriations bills to prohibit certain rules from being implemented or enforced. Furthermore, in Congresses coinciding with the end of recent administrations, as well as in the current (114th) Congress, some Members have introduced bills that would change or prevent the practice of issuing midnight rules.", "type": "CRS Report", "typeId": "REPORTS", "active": true, "formats": [ { "format": "HTML", "encoding": "utf-8", "url": "http://www.crs.gov/Reports/R42612", "sha1": "4e68276bd8dc2d325621cf61e30056c82edf284e", "filename": "files/20161004_R42612_4e68276bd8dc2d325621cf61e30056c82edf284e.html", "images": null }, { "format": "PDF", "encoding": null, "url": "http://www.crs.gov/Reports/pdf/R42612", "sha1": "d21ad12e08ac531f140c75caf1a941746948d35c", "filename": "files/20161004_R42612_d21ad12e08ac531f140c75caf1a941746948d35c.pdf", "images": null } ], "topics": [] }, { "source": "EveryCRSReport.com", "id": 410320, "date": "2012-07-18", "retrieved": "2016-04-07T00:00:56.015210", "title": "Midnight Rulemaking", "summary": "During the final months of recent presidential administrations, federal agencies have increased the number of issued regulations. This phenomenon is often referred to as \u201cmidnight rulemaking.\u201d Various scholars and public officials have documented evidence of midnight rulemaking by several recent outgoing administrations, especially for those outgoing administrations that will be replaced by an administration of a different party. \nOne possible explanation for the issuance of \u201cmidnight rules\u201d is the desire of the outgoing administration to complete its work and achieve certain policy goals before the end of its term of office\u2014what has been termed the \u201cCinderella effect.\u201d Because it may be difficult to change or eliminate rules after they have taken effect, issuing midnight rules can also help ensure a legacy for a President. This may especially be true when a party change will occur in the White House.\nAt times, certain rules issued during the last few months of an administration have been considered by some as controversial. For example, before President William J. Clinton left office, his administration issued energy efficiency standards for washing machines and a rule setting ergonomics standards in the workplace. Shortly before the end of President George W. Bush\u2019s second term concluded, his administration finalized rules allowing states to determine whether concealed firearms may be carried in national parks and giving agencies greater responsibility to determine when and how their actions may affect species under the Endangered Species Act. \nOn the other hand, a recent study for the Administrative Conference of the United States (ACUS) concluded that many midnight regulations were \u201crelatively routine matters not implicating new policy initiatives by incumbent administrations,\u201d and that the \u201cmajority of the rules appear to be the result of finishing tasks that were initiated before the Presidential transition period or the result of deadlines outside the agency\u2019s control (such as year-end statutory or court-ordered deadlines).\u201d The study cited some evidence of the strategic use of midnight rules to implement certain desired policies before leaving office, but in general, the study said that \u201cthe perception of midnight rulemaking as an unseemly practice is worse than the reality.\u201d\nIn the 112th Congress, companion bills entitled the Midnight Rule Relief Act of 2012 (H.R. 4607 and S. 2368) were introduced by Representative Reid Ribble and Senator Ron Johnson. The Midnight Rule Relief Act would establish a moratorium on the proposal or issuance of certain types of rules during the period between a presidential election day and inauguration day of a President\u2019s final term in office. The law would only apply in cases \u201cin which a President is not serving a consecutive term.\u201d The House Committee on Oversight and Government Reform reported H.R. 4607 on June 1, 2012. S. 2368 was referred to the Senate Committee on Homeland Security and Governmental Affairs upon introduction.\nThis report provides an overview of midnight rulemaking and discusses actions that recent outgoing and incoming administrations have taken pertaining to midnight rules. It explains how an incoming President could change or eliminate midnight rules, and provides options for congressional oversight of midnight rules. \nThis report will be updated as events warrant.", "type": "CRS Report", "typeId": "REPORTS", "active": false, "formats": [ { "format": "HTML", "encoding": "utf-8", "url": "http://www.crs.gov/Reports/R42612", "sha1": "2326bdbe60e640a01a6490963e86827f08f15f03", "filename": "files/20120718_R42612_2326bdbe60e640a01a6490963e86827f08f15f03.html", "images": null }, { "format": "PDF", "encoding": null, "url": "http://www.crs.gov/Reports/pdf/R42612", "sha1": "a3932edca3cbe4a3f65c96867a53975e0b31ea53", "filename": "files/20120718_R42612_a3932edca3cbe4a3f65c96867a53975e0b31ea53.pdf", "images": null } ], "topics": [] } ], "topics": [ "American Law", "Appropriations" ] }