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Last Call for the Bush Administration
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November 21, 2008

Time is running out for the Bush Administration, and it's making a last-minute push to enstate new policy changes — a practice commonly known as "midnight regulations." According to THE WASHINGTON POST, "as many as 90 new regulations are in the works." The POST goes on to assess the changes: "many of which would weaken government rules aimed at protecting consumers and the environment." That's a worry echoed by a number of government watchdog groups.

Of course, these last minute political giveaways are nothing new. Indeed, the name midnight regulations echoes the "midnight judges" — Federalist judges appointed by President John Adams way back in 1800, days before he turned over the Presidency to election-victor Thomas Jefferson.

In 2003, NOW WITH BILL MOYERS documented the ups and downs of a rule enacted in the final days of the Clinton administration in January 2001. The "Roadless Rule" — ending virtually all logging; roadbuilding; and coal, gas, oil, and other mineral leasing in 58 million acres of the wildest remaining national forest lands — had strong public support. Usually, a rule takes effect either 30 or 60 days after it is published in the Federal Register. Once that happens, it is law and can only be overturned by either an act of Congress or an official new rulemaking process. However, the Bush administration caught the Roadless Rule within this 60-day window, and its implementation was delayed numerous times. The fate of the rule has been the subject of several court challenges.

In May, White House Chief of Staff Joshua Bolten issued a memo spelling out a strict deadline government agencies need to meet when promulgating any new rules — perhaps to avoid situations where they could easily be reversed. But the incoming Obama administration is watching all such actions carefully.

Below you'll find some of the proposed regulations and changes and additional places to check on others.

  • Mountaintop Mining: Rule would allow mining companies to dump waste into rivers and streams.

  • Endangered Species Act: Rule would alter implementation of ESA to allow federal land-use managers to approve projects (like infrastructure creation, minerals extraction, or logging) without consulting federal habitat managers and biological health experts responsible for species protection.

  • Power plants near National Parks: Environmental Protection Agency rule would ease current restrictions that make it difficult for power plants to operate near national parks and wilderness areas, which could increase air pollution in those areas.

  • Truck Driver Safety: Department of Transportation rule will allow truck drivers to drive up to 11 consecutive hours and to spend seven consecutive days on the road with only a 34-hour break. Public Citizen and other safety advocates have sued successfully two times in the past three years to overturn this Federal Motor Carrier Safety Administration rule.

  • On-the-Job-Risk: Department of Labor rule would change the way federal regulators calculate estimates for on-the-job risks, and add an extra comment period to new worker health standards, creating a delay.

  • Family and Medical Leave: Department of Labor rule would limit employee access to family and medical leave — making it more difficult for workers to use paid vacation or personal time to take leave, and would allow employers to speak directly to an employee's health care provider.

  • Domestic Surveillance: Department of Justice Rule would expand the power of state and local law enforcement agencies to investigate potential criminal activities and report the information to federal agencies. It 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."

Midnight Bureaucrats

THE WASHINGTON POST is also following the outgoing administration's movement of political appointees into civil service positions. "The transfer of political appointees into permanent federal positions, called 'burrowing' by career officials, creates security for those employees, and at least initially will deprive the incoming Obama administration of the chance to install its preferred appointees in some key jobs." The POST reports that: "between March 1 and Nov. 3, according to the federal Office of Personnel Management, the Bush administration allowed 20 political appointees to become career civil servants...In its last 12 months, the Clinton administration approved 47 such moves, including seven at the senior executive level." Civil service job protections make it very difficult to remove people once transfers have been made.

Published on November 21, 2008.

Related Media:
Power and the Presidency
Bill Moyers talks with constitutional law professor Charles Fried and lawyer and author Fritz Schwarz on the growing power of the executive branch. (October 26, 2007)

West VirginiaMountaintop Mining
As proposed new rules may allow coal companies to expand mountain top removal mining, Bill Moyers Journal reports on local evangelical Christians who are turning to their faith to help save the earth.

photo by Robin HollandKevin Phillips on Obama's Challenge
Does Barack Obama's victory mean a new and permanent political alignment in American politics? Bill Moyers speaks with Kevin Phillips about how America has changed since Phillips penned THE EMERGING REPUBLICAN MAJORITY 40 years ago

References and Reading:
"A Last Push To Deregulate White House to Ease Many Rules,"
R. Jeffrey Smith, THE WASHINGTON POST, October 31, 2008.

"Administration Moves to Protect Key Appointees,"
Juliet Eilperin and Carol D. Leonnig, WASHINGTON POST, November 18, 2008.

"Midnight Regulations"
ProPublica, Joaquin Sapien and Jesse Nankin, November 18, 2008.
ProPublica's list of rule changes includes whether or not the rules have been closed to public comment.

"Can Obama Turn Back The Clock On Bush's Midnight Rules?"
ProPublica, Joaquin Sapien, November 20, 2008.

"Dark Horizons"
Report from National Parks and Conservation Association identifies the top 10 national parks at risk from pollution from new coal-fired power plants.

""Bush administration rule keeps exhausted truckers on the road,"
Public Citizen Public Citizen is a national non-profit public interest organization "protecting health, safety, and democracy."

Watching Out for Midnight Regulations, OMB Watch
OMB (Office of Management and Budget) Watch is a nonprofit research and advocacy organization dedicated to promoting government accountability, citizen participation in public policy decisions, and the use of fiscal and regulatory policy to serve the public interest.

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