Midnight Rulemaking: Considerations for Congress and a New Administration [Updated November 24, 2008] [open pdf - 143KB]
"At the end of every recent presidential administration involving a change in the party controlling the White House, the level of rulemaking activity by federal agencies tends to increase. On May 9, 2008, White House Chief of Staff Joshua B. Bolten issued a memorandum to the heads of executive departments and agencies stating that 'regulations to be finalized in this Administration should be proposed no later than June 1, 2008, and final regulations should be issued no later than November 1, 2008.' Despite this directive, federal agencies appear to be issuing an increasing number of 'midnight rules' at the end of the Bush Administration, including a number of rules attracting controversy. One approach that previous Presidents have used to control rulemaking at the start of their administrations has been the imposition of a moratorium on new regulations by executive departments and independent agencies, accompanied by a requirement that the departments and agencies postpone the effective dates of certain rules. However, for rules that have already been published in the 'Federal Register', the only way for the departments or agencies to eliminate or change the rules is by going back through the rulemaking process. Although the Administrative Procedure Act (5 U.S.C. § 551 et seq.) permits agencies to shorten the rulemaking process for 'good cause,' an agency's use of this exception is subject to judicial review."
CRS Report for Congress, RL34747
Federation of American Scientists: http://www.fas.org/sgp/crs/index.html