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Congressman Cohen Chairs First Subcommittee Hearing on "Midnight Rulings" by the Bush Administration

February 4, 2009


“I have both procedural and substantive concerns about the Bush Administration’s use of midnight rulemakings,” said Congressman Cohen in his opening statement. “Regulatory experts across the political spectrum agree that the hurried process of midnight rulemaking leads to inherently flawed public policy. During the end of the Bush Administration, agencies reportedly cut corners in administrative procedure by rushing regulations through the system without proper regulatory review. In the case of many of the most significant rules, the public comment period was abridged, significant public comments were ignored, and accepted rulemaking practices were tossed aside.”

Congressman Cohen called the following experts to testify at the hearing: Congressman Jerrold Nadler (NY-08); Gary Bass, Executive Director, OMB Watch; Robert F. Kennedy, Jr., Chairman, Waterkeeper Alliance; Lynn Rhinehart, Associate General Counsel, AFL-CIO; Veronique de Rugy, Ph.D., Senior Research Fellow, Mercatus Center at George Mason University; Michael Abramowicz, George Washington University Law School; Curtis Copeland, Ph.D., Specialist in American National Government - Government and Finance Division, Congressional Research Service

Among the Bush Administration midnight rules that have attracted particular attention are:

  1. An Interior Department regulation which went into effect January 12 allows mining companies to dump the waste generated during mountaintop mining into rivers and streams.
  2. An EPA regulation which went into effect January 20 exempts farms from reporting to the government potentially harmful air emissions that come from animal waste.
  3. A Department of Health and Human Services regulation which went into effect January could limit women’s access to reproductive health services by requiring health care providers to certify they will allow their employees to withhold services on the basis of religious or moral grounds or risk losing federal funding.
  4. A Department of Labor regulation which went into effect January 17 weakens already modest wage protections and housing standards for agricultural workers.

“The problem with these regulations,” said Mr. Kennedy; “is [the Bush Administration] didn’t comply with the process [of normal regulatory oversight]. They skirted the process; they took shortcuts. They did things that they weren’t supposed to do in order to get these out the door much faster, essentially as gifts to these industries at the last minute.”

Congressman Nadler appeared before the subcommittee to discuss his bill that would prohibit such last-minute rule-making. “The problem of midnight rules is not a new one, but the practice is prone to abuse and undercuts our democratic process,” said Congressman Nadler. “That is why, on the first day of this Congress, I reintroduced the Midnight Rule Act, H.R. 34, which would allow incoming agency heads to prevent rules adopted within the last three months of the previous administration from going into effect.”

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