Bolten's Memo on Midnight Regs? Ignore it.

Remember back in early May, when White House Chief of Staff Joshua Bolten sent a memorandum to all agency heads warning them:

"to resist the historical tendency of administrations to increase regulatory activity in their final months" and

directed, except in extraordinary circumstances, that regulations needed to be proposed by 6/1/08.  Well it seems that pretty much everybody in the Administration is ignoring the Bolten memo, with both bad rules (MSHA's mandatory worker drug-testing proposal) and good ones (OSHA's crane safety standard).

Scholars at NYU's Institute for Policy Integrity asked the White House's regulatory czar to explain why she is allowing agencies to ignore the Bolten edict.

Richard Revesz, Dean of NYU's School of Law, and Michael Livermore, Director of the Institute for Policy Integrity sent a letter to OMB Director Jim Nussle in early September, expressing concern that OMB was not asserting "appropriate controls over the regulatory process," and giving three examples of proposed rules that appeared to violate the Bolten memo.  One of the three mentioned is the infamous rule proposed by the Department of Labor on occupational health risk assessment. 

Revesz and Livermore wrote:

"Presumably, the purpose of the [Bolten] deadline was to ensure that agencies did not engage in ill-conceived rulemaking prior to the change of administration.  We believe this deadline represented sound policymaking procedure by creating a sufficient window for the vetting and review of new rules and discouraging 'last minute' policymaking."

Although I would have applauded a last-minute rule to reduce workers' exposure to respirable coal mine dust or silica, I recognize the mischief and damage that poorly researched and ill-conceived regulations can cause. (Read MSHA's mandatory drug-testing rule.)

Revesz and Livermore also chastised OMB for allowing agencies to engage in

"extremely irregular deviations from the traditional rulemaking process in proposing these late rules, including a failure to hold public hearings...and shortened public comment periods."

Professor Revesz's office shared with me the response he received from the White House to his September letter.  OIRA Administrator Susan Dudley writes

"...the memorandum was not intended to be a moratorium on proposed regulations, and thus excludes from its terms regulations proposed after June 1, 2008 that are not finalized during this Administration."

Cool!  Does that mean that we don't need to worry about MSHA finalizing its ill-conceived proposed rule on mandatory worker drug testing, and about DOL's health risk assessment proposal?  Neither of these were proposed before June 1.

Well, not exactly.  Ms. Dudley's letter goes on:

"It further contemplates some circumstances in which it would be appropriate for individual regulations to proceed without regard to deadlines if approved by OIRA, working closely with the heads of the President's policy councils."

Bottom line: ignore the Bolten memo.