TWIC Reader Rule Update

Laurie Thomas has an interesting post on her Maritime Security/MTSA News blog about a recent meeting of the TWIC Stakeholder Communications Committee. Laurie notes that:

“The NPRM concerning the use of TWIC readers has been developed and is currently going through high-level approval and review.”

The TWIC Reader rule is still going through the DHS approval process and has yet to be sent to the Office of Management and Budget for its review. The OMB approval process can be quite lengthy (most rules, about 75%, take at least 90 days to receive OMB approval).

Midnight Rule Making

There is another factor that could slow the approval process even further; the midnight rule controversy. At the end of a presidential administration there is a tendency to try to complete work on rulemaking processes so that the outgoing administration can put their final stamp on the regulatory process. When there is any controversy surrounding the potential rules the opposition cries foul, maintaining that the new administration should be the one to have approval of the regulatory action as they will be the ones tasked with enforcing the rules.

The Clinton and Bush administrations were both accused of using the midnight rule making process to further their agenda, but both actually put internal rules in place to minimize the amount of rulemaking that was completed in the last months of their administrations. Now the Obama administration may or may not be around for an additional four years (the election is still way to close to call) so it wouldn’t be fair for us to expect a formal announcement of avoiding midnight rule making, but it appears that an unofficial policy may be in place.

OMB Rule Submissions

The table below shows the rules that the Administration has officially submitted to OMB during 2012; all data current as of yesterday according to the Office of Information and Regulatory Affairs (OIRA) web site. The ‘Completed’ columns show the number of rules submitted during that month upon which OMB has completed their action. The ‘Incomplete’ column shows the number of rules submitted during that month that still have actions pending.

	Completed	Incomplete	Submitted
Jan	45	14	59
Feb	38	8	46
Mar	44	12	56
Apr	28	9	37
May	25	19	44
Jun	15	11	26
Jul	17	10	27
Aug	10	17	27
Sep	3	9	12

 

Looking at this data it appears that the Obama Administration has taken unofficial steps to reduce the potential appearance of midnight regulating in the event that the President is not re-elected in November. If he is re-elected I would bet that there is a surge of rules submitted to OMB and a similar increase in the rate of approval of regulations by that agency (for example there are 28 EPA rules currently under review at OMB).

TWIC Reader Rule

Given the above information, I would not be surprised to see the TWIC Reader Rule still pending approval come year end. If Obama is not re-elected in November I would suspect that the rule would not go to the OMB before January 21^st, 2013. If he is re-elected the rule would be expected to go to OMB in November and not be approved until after the first of the year.