The Lame Duck Quacks

     Even as a lame duck, Michael Astrue keeps sending over proposed new regulations to the Office of Management and Budget (OMB), which is part of the White House. OMB must approve proposed regulations before they may be published in the Federal Register. Astrue has now sent over a set of final regulations on the scheduling of hearings. This proposal is based upon proposed regulations published on November 10, 2008, while George W. Bush was still President. That proposal would have specified that the agency could schedule hearings for Administrative Law Judges (ALJs) whether they liked it or not. This proposal never went anywhere, presumably because of opposition from the Obama Administraton. However it was never withdrawn. Apparently, the proposal has since mutated. The proposal just sent over to OMB would:

... revise our rules to protect the integrity of our programs and to address public concerns regarding the removal of an administrative law judge's name from the Notice of Hearing and other prehearing notices. To accomplish both objectives, these proposed rules state that we will provide an individual with notice that his or her hearing may be held by video teleconferencing and that he or she has an opportunity to object to appearing by video teleconferencing within 30 days of the notice. We have also made changes that allow us to determine that claimant will appear via video teleconferencing if a claimant changes residences while his or her request for hearing is pending. We anticipate these changes will increase the integrity of our programs with minimal impact on the public and result in more efficient administration of our program. 

     What this means is unclear to me. One strong possibility is that a claimant would be notified shortly after filing a request for hearing -- long before any hearing is scheduled -- of the possibility that a video hearing would be scheduled. Unless the claimant objected within 30 days of that notice, he or she would be considered to have waived their right to an in-person hearing. Also, claimants who move after requesting a hearing would be required to have a video hearing whether they want it or not. However, that's just a guess. The summary above was not written to be understood. In any case, this proposal isn't going anywhere until there's a new Commissioner. The new Commissioner will be able to withdraw or revise it. Even if the new Commissioner likes it, OMB may veto it. Even if it went through, it could be challenged since the final regulations would be completely different from the proposal. The public is supposed to be able to comment on proposed regulations. An agency can't publish one set of proposed regulations, take comments on that and then substitute something completely different as final regulations. That would be contrary to the Administrative Procedure Act.  OMB itself is supposed to, and does, prevent this sort of thing. The Courts can also prevent it.
     I get the impression that Astrue assumed that President Obama would not be re-elected. Astrue kept working on this and other regulatory proposals that he meant to have adopted once a Republican President was elected. He's not letting the election results stop him from making the gesture. I don't see the point.