'Midnight Rules' Take Years to Cross the Finish Line, Public Citizen Report Finds

The case against so-called "midnight regulations" is riddled with holes, according to "Shining a Light on the Midnight Rule Boogeyman," a new study (PDF) by Public Citizen, which debunks claims that rules finalized near the end of a presidential administration are rushed or sloppily drafted. In fact, regulations completed in the transition periods of the past two administrations were under development longer than average and received more days of review than rules completed at other times, the study shows.

"This report destroys the myths about midnight regulations put forward by anti-regulatory forces," said Amit Narang, regulatory policy advocate for Public Citizen's Congress Watch division. "It is neither accurate nor credible to call rulemakings that take almost four years 'rushed' just because they're finalized at the end of an administration."

The report (PDF) examines rulemakings for all economically significant regulations reviewed by the White House's Office of Information and Regulatory Affairs (OIRA) between 1999 and 2015. OIRA acts as an interagency clearinghouse for federal regulations and is empowered to review rulemakings and decide if they can move forward. The report found that rules finalized during the transition period took an average of 3.6 years to complete and received 130 days of OIRA review on average compared to 2.8 years to completion and 115 days of OIRA review for other rules.

"Listening to the critics, you'd think the president woke up the morning after Election Day and decided to enact as many new rules as possible in a final frenzy before leaving office," said Michael Tanglis, senior researcher for Public Citizen's Congress Watch and author of the report. "The reality is that most of the rules critics are complaining about are in the home stretch of a marathon journey from creation to completion."

With just six months remaining in the current administration, Republicans lawmakers are stepping up their attacks against forthcoming rules. The Midnight Rule Relief Act (H.R. 4612), which passed in the U.S. House of Representatives just after midnight on July 7, would place a moratorium on most rules after Election Day. Democrats on the House Oversight and Government Reform Committee offered an amendment to the legislation that would have exempted rules under development for more than a year, but Republicans on the committee voted it down unanimously.

In pushing for the bill, its lead sponsor, U.S. Rep. Tim Walberg (D-Mich.), pointed to a 2001 rule on washing machine efficiency that he claimed was completed in less than six months with scant opportunities for public comment. Public Citizen's study shows that the rule was in development for more than six years and that numerous opportunities for public comment were offered.

"Most of the misleadingly named 'midnight rules' are actually marathon rules, and that's because they've faced dozens of analytic and procedural hurdles along the road to completion that slowed them down and significantly extended their journey," added Narang. "Blocking their way forward in the final stretch is the wrong approach. We should celebrate new public protections no matter when they cross the finish line."