Regulatory official grilled on consequences of 'midnight' rules

Rep. Tom Marino (R-Pa.) grilled President Obama’s top regulatory official Wednesday on what consequences there will be for federal agencies that try to rush through last-minute rules in the waning hours of the Obama administration.

Howard Shelanski, administrator of the Office of Information and Regulatory Affairs, issued a memo back in December advising the agencies to finish their highest priority rule-makings this summer to avoid a burst of “midnight regulations” before Obama leaves office.

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“That memo I put together in December makes clear that OIRA needs time to make a thorough review,” he said while testifying at a hearing of the House Judiciary Subcommittee on Regulatory Reform, Commercial and Antitrust Law.

“The consequence agencies will face if they come to us too late with rules is we may not have time to do that review and therefore their rule may not be completed by the end of the administration.”

But the subcommittee chairman pressed for a better punishment. 

“You said you may not have time because of what the agency has not done or fulfilled the request, but as the administrator how do you respond to that?” Marino asked. “It’s like I ask my kids to have something done and it’s not done there are consequences. Maybe we should start running the government a little more like we parents supervise our children.”

Shelanski argued that it’s hard to know what kind of shape the rule will be in or what the review time will be.

“The operative principle we’re using is if you submit us a rule late and it’s a rule that will take more time to do a good job on, it won’t be able to be concluded on,” he said.  “They are on notice that we can’t shortcut our process and rush rules through at the end.”

While Marino thought there should be some other ramification, Shelanski said it’s up to the agency to decide whether or not to move forward with a rule.

“If it’s not a rule with a court order or statutory deadline, I don’t have any authority to issue a sanction because an agency doesn’t send a rule over,” he said.

All proposed and final rules must be reviewed by OIRA before they can be issued by an agency.