I 

111TH CONGRESS 

1ST SESSION H. R. 34 

To delay the implementation of agency rules adopted within the final 90 

days of the final term a President serves. 

IN THE HOUSE OF REPRESENTATIVES 

JANUARY 6, 2009 

Mr. NADLER of New York introduced the following bill; which was referred 

to the Committee on the Judiciary 

A BILL 

To delay the implementation of agency rules adopted within 

the final 90 days of the final term a President serves. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Midnight Rule Act’’. 

5 SEC. 2. RESTRICTIONS ON MIDNIGHT RULEMAKING. 

6 Title 5, United States Code, is amended by inserting 

7 after section 555 the following new section: 

8 ‘‘§ 555a. Restrictions on midnight rulemaking 

9 ‘‘(a) RULES ADOPTED IN THE FINAL 90 DAYS OF

10 A PRESIDENTIAL ADMINISTRATION.—Notwithstanding 


jbell on PROD1PC69 with BILLS
2 

•HR 34 IH

1 section 801, a midnight rule shall not take effect until 90 

2 days after the agency head is appointed by the new Presi3 dent. 

4 ‘‘(b) PRESIDENTIAL AUTHORITY.— 

5 ‘‘(1) NOTICE.—Notwithstanding any other pro6 vision of this section, a midnight rule that would not 

7 take effect by reason of subsection (a) may take ef8 fect if the President serving his final term makes a 

9 determination under paragraph (2) and submits 

10 written notice of such determination to the Con11 gress. 

12 ‘‘(2) EXCEPTIONS.—A determination under this 

13 paragraph is a determination made by the President 

14 by Executive Order that the midnight rule should 

15 take effect because such rule is— 

16 ‘‘(A) necessary because of an imminent 

17 threat to health or safety or other emergency; 

18 ‘‘(B) necessary for the enforcement of 

19 criminal laws; 

20 ‘‘(C) necessary for national security; or 

21 ‘‘(D) issued pursuant to any statute imple22 menting an international trade agreement. 

23 ‘‘(3) EFFECT ON CONGRESSIONAL DISAPPROVAL

24 PROCEDURES.—An exercise by the President of the 

25 authority under this subsection shall have no effect 


jbell on PROD1PC69 with BILLS
3 

•HR 34 IH

1 on congressional disapproval procedures under sec2 tion 802 or congressional review under section 801. 

3 ‘‘(c) DISAPPROVAL BY A NEW AGENCY HEAD.— 

4 ‘‘(1) DISAPPROVAL.—The agency head ap5 pointed by the new President may disapprove of a 

6 midnight rule no later than 90 days after being ap7 pointed. 

8 ‘‘(2) PROCEDURE.—The agency head appointed 

9 by the new President may disapprove a midnight 

10 rule by publishing a statement of disapproval in the 

11 Federal Register and sending a notice of disapproval 

12 to the congressional committees of jurisdiction. 

13 ‘‘(d) DEFINITIONS.—The term ‘midnight rule’ means 

14 a rule adopted by an agency within the final 90 days a 

15 President serves in office.’’. 

16 SEC. 3. CLERICAL AMENDMENT. 

17 The table of contents of chapter 5 of title 5, United 

18 States Code, is amended by inserting after the item relat19 ing to section 555 the following new item: 

‘‘555a. Midnight rulemaking.’’. 

20 SEC. 4. EFFECTIVE DATE. 

21 The amendments made by this Act shall apply to any 

22 rule adopted on or after October 22, 2008. 

Æ 


jbell on PROD1PC69 with BILLS