Emanuel Memo Published

I noted in a blog last week that the Obama Administration had put a hold on all of the on-going regulatory processes so that they could review those rules in-work and make sure that they were in-line with their regulatory philosophy. When I wrote that blog I had not been able to find an actual copy of the order, so I could only comment in generalities about its effect. Since then the Washington Post has posted a link to the Rahm Emanuel memo on the WhiteHouse.gov site and it has been published in today’s Federal Register. So, now we can look at this policy in detail. White House Chief of Staff Early news reports had called the document an ‘Executive Order’. If it had been it would have been a formal order from the President of the United States to the executive branch of the Federal government. Instead, the direction to review the rules-in-progress came from the President’s White House Chief of Staff, Rahm Emanuel. This greatly reduces the legal authority of the directions included in the memo. The Chief of Staff is technically responsible for supervising the day-to-day operation of the White House Staff. It is not a constitutional office and does not require the Advice and Consent of the Senate for an individual to take that office. In recent decades this has become more of a political post and the directives from the Chief of Staff have acquired more weight because of that. So, this memo does not carry much legal authority, but does have a great deal of political power behind it. Besides which, it was obviously issued at the direction of the President; it will be followed. Rules Covered By Memo To determine which rules are subject to the review process one has to look at their status with respect to printing in the Federal Register. There are four different categories to be considered. They are:

The final rule has not been submitted to the Federal Register, The final rule has been submitted, but not printed in the Federal Register, The final rule has been printed, but the effective date has not yet been reached, or The final rule has been printed and the effective date has passed.

The last category is not included in the review process outline in the Emanuel memo. Many recently published rules in this category will undoubtedly undergo some review, especially the more controversial rules. They cannot, however, be immediately changed in the same manner as rules falling in one of the other three categories. I’ll save the discussion about what can be done with those rules for another day. Review Process Rules that have legislative or judicially imposed time limits may be exempted from the review process. There are also provisions for exempting rules of a time critical nature from the review process. In all cases the Office of Management and Budget (OMB) Director will be the person who makes the final decision on exemption from the review process. The review process for each of the first three categories described above will be slightly different, reflecting the current publishing status. All of the reviews will be conducted by Obama appointees or designees. The results of those reviews will be forwarded to the OMB Director and the affected Department or Agency will continue the rule making process as appropriate. Rules in the first two categories will be the easiest to review and modify as necessary. Since they have not officially seen the light of day, no public notifications will have to be made. The third category will require the posting in the Federal Register of a 60 day extension of the effective date of the rule. The Emanuel memo recommends that that notice include a 30 day public comment period. Receipt of public comments that “substantial questions of law or policy” will result in the involvement of the OMB Director to decide what further actions will be required. Review Status of Recent Security Rules The following is a listing of some of the security related rules that I have been covering in this blog: Railroad Hazmat Routing Rule: Effective Date (12-26-08) – No Review Railroad Hazmat Routing Appeal Rule: Effective Date (11-26-08) – No Review Rail Transportation Security Rule: Effective Date (12-26-08) – No Review PIH Railcar Rule: Effective Date (03-16-09) – Review Required Transportation Security Plan Rule: Final Rule not published – Review Required Enhanced Enforcement Rule: Final Rule not published – Review Required Ammonium Nitrate Registration Rule: Final Rule not published – Review Required