On January 29 Michael Astrue sent a letter to Congress indicating that he was suspending regulatory proceedings on the proposal for major procedural changes at Social Security. Those changes would have required all evidence to be submitted at least five days before a hearing, would have eliminated reopening of Administrative Law Judge decisions on account of new and material evidence and would have made all remands for closed periods only. Astrue said in the letter that he would have a new notice placed in the Federal Register asking public comment on some questions related to the proposal and that his agency would then publish a new proposal in the Federal Register.
If Michael Astrue wants to get some new procedural regulations, his agency is going to have to work fast. He cannot publish much of anything in the Federal Register without approval of the Office of Management and Budget (OMB) which is part of the White House. That takes time. I think this request for comments would require OMB approval, although I am not certain of that. He has not submitted the request for comments to OMB. Probably, he will have to allow 60 days for comments once he does. After that, his agency has to draft new proposed regulations and submit them to OMB for approval. Those proposed regulations must be published in the Federal Register with sixty days for comments. The comments must be reviewed and the agency must finalize the regulations and get OMB approval before publishing final regulations. All of this takes time.
The question is whether this can be accomplished before time runs out. When will time run out? It will certainly run out on inauguration day if a Democrat is elected President this November. It may run out even if John McCain is elected President. It may run out as soon as election day, since most agencies prefer not to adopt new regulations of any consequence in the interregnum between a new President being elected and taking office. In fact, time may run out as early as Labor Day, since after that the Presidential campaign is in full swing, agencies typically do not want to do anything controversial. Even if Astrue wants to push this through, he will have to deal with the fact that OMB will start running down by early this fall, as political appointees leave their jobs and everyone become distracted by the upcoming transition.
Is it already too late for Astrue to do something with this before it gets swamped by the election and its aftermath? Probably not, but he would have to move fast and there is no sign of rapid movement.
If Michael Astrue wants to get some new procedural regulations, his agency is going to have to work fast. He cannot publish much of anything in the Federal Register without approval of the Office of Management and Budget (OMB) which is part of the White House. That takes time. I think this request for comments would require OMB approval, although I am not certain of that. He has not submitted the request for comments to OMB. Probably, he will have to allow 60 days for comments once he does. After that, his agency has to draft new proposed regulations and submit them to OMB for approval. Those proposed regulations must be published in the Federal Register with sixty days for comments. The comments must be reviewed and the agency must finalize the regulations and get OMB approval before publishing final regulations. All of this takes time.
The question is whether this can be accomplished before time runs out. When will time run out? It will certainly run out on inauguration day if a Democrat is elected President this November. It may run out even if John McCain is elected President. It may run out as soon as election day, since most agencies prefer not to adopt new regulations of any consequence in the interregnum between a new President being elected and taking office. In fact, time may run out as early as Labor Day, since after that the Presidential campaign is in full swing, agencies typically do not want to do anything controversial. Even if Astrue wants to push this through, he will have to deal with the fact that OMB will start running down by early this fall, as political appointees leave their jobs and everyone become distracted by the upcoming transition.
Is it already too late for Astrue to do something with this before it gets swamped by the election and its aftermath? Probably not, but he would have to move fast and there is no sign of rapid movement.
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