On the eve of Donald Trump's inauguration, federal agencies are racing to publish rules before the president-elect institutes a regulatory moratorium.
The Federal Register was overwhelmed Thursday with nearly 1,500 pages worth of rules from federal agencies. Miriam Kleiman, a spokeswoman for the Federal Register, described it as “one of the largest ever” editions of the government's rule book.
“It certainly is a busy time for the Federal Register,” Kleiman told The Hill.
“There is a huge increase in the volume [of rules we receive] toward the end of an administration,” she added.
The rules are known as midnight regulations, and represent a final attempt by the Obama administration to leave a mark on Washington's rulebooks before Trump takes over at the White House.
Trump has called for a freeze on all new regulations, and the president-elect and congressional Republicans are expected to try to roll back rules they disagree with.
That's also created a deadline for agencies that want to complete work before Trump takes office, and many appear to be working overtime.
Susan Dudley, a former administrator for Office of Information and Regulatory Affairs (OIRA) who now heads George Washington University's Regulatory Studies Center, estimates that on an average day, the Federal Register publishes 300 pages of proposed and final rules, public notices and documents.
On Thursday, the Federal Register published 1,464 pages of rules. That's the second-highest total since the 2016 election, following the 1,465 pages published on Nov. 18. Another 1,017 pages of rules were published on Dec. 20.
In fact, there have been 13 days since the 2016 election in which the number of pages published in the Federal Register was more than double the average capacity from 2015.
On average, the Federal Register has been publishing about 550 pages of rules each day during that time period. While much of the work is on rules that may be non-controversial, a few rules are likely to come under scrutiny from Republicans.
The final day to get in the Federal Register before Trump takes office is Friday.
The rush creates problems for the Federal Register, which might not be able to publish the full volume of requests.
Dudley said it's not unusual for the Federal Register to be backed up at the end of an administration.
“The [Federal Register] always struggles to publish all the rules agencies want to finish before midnight,” she said in an email to The Hill.
Eight years ago when she was OIRA administrator, Dudley said her deputy worked closely with the Register so that it would know which of the rules were the highest priority for publication before January 20.
Federal agencies must seek White House approval before they propose a major rule, and again before they finalize the rule. During this process, OIRA helps shape the regulation. Because OIRA is tasked with reviewing so many rules, this process can cause delays.
Once the White House signs off on the final rule, OIRA works with the Federal Register to publish it. This process can lead to delays as well, particularly when so many midnight regulations are being funneled through toward the end of the Obama administration.
There are several ways Trump can repeal new rules.
The simplest is to instruct federal agencies not to follow them once he takes office.
Depending on the rule in question, that can be legally dicey if it stems from congressional legislation.
The more sure-handed approach is to team with Congress to repeal the rules.
The Congressional Review Act allows lawmakers to strike down regulations they disapprove of within 60 legislative days after they are passed. The Republican-led Congress did this on several occasions in the last term, but each time they were vetoed by President Obama.
This process, however, accounts for major rules. It would be too time-consuming for Congress to go after each of the thousands of rules issued by federal agencies last year.
