Potential Midnight Regulations

At the end of every presidential administration, regulatory activity spikes during the “midnight” period between presidential election day and Inauguration Day. This surge is evident even when an incumbent is reelected, and it is considerably more pronounced if the administration changes.

Outgoing administrations often use this window to push through sweeping and controversial regulations. Once finalized, regulations prove hard to repeal. During the spike, the quality of the agencies’ regulatory analysis drops and regulatory oversight by Office of Information and Regulatory Affairs (OIRA) weakens. As a result, federal agencies produce ineffective regulations and waste public resources.

The list of potential midnight regulations contains all economically significant rules—meaning rules with an impact on the economy exceeding $100 million—that were proposed by executive branch agencies after President Obama was inaugurated, but have not yet been finalized. The list refers only to “prescriptive” regulations that impose mandates or prohibitions; it omits budget regulations that implement federal spending or revenue collection programs.

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Last updated 5/18/2016

TABLE DESCRIPTION FOR POTENTIAL MIDNIGHT REGULATIONS:

1. Regulation Title: The official title of the rulemaking used by the issuing agency.
2. RIN: Regulation Identifier Number—a unique tracking number assigned by the Regulatory Information Service Center to each regulation under development or review by an agency.
3. Stage: Shows where the rulemaking is in the regulatory process. Stages include:
    a. Open comment period: the proposed rule has been published in the Federal Register and  the agency is taking public comments.
   b. Closed comment period: the public comment period for a rulemaking is closed.
   c. Pending final review: OIRA is reviewing what the agency intends to publish as the final regulation.
4. Restrictions: The number of binding constraints or “restrictions” in the proposed regulation’s text. These are words that indicate an obligation to comply such as “shall” or “must.” Given the difficulty of measuring regulations, counting restrictions is one of the best ways to measure the size and scope of regulations. These numbers are obtained from using RegData. 
5. Top Industry: The industry likely to be most affected by the regulation. Obtained using RegData.
6. Costs Monetized: Shows whether the agency provides a quantitative estimate of the costs associated with the rule.
7. Benefits Monetized: Shows whether the agency provides a quantitative estimate of the benefits associated with the rule.

LIST OF 48 POTENTIAL MIDNIGHT REGULATIONS

Architectural and Transportation Barriers Compliance Board

1. Information and Communication Technology (ICT) Standards and Guidelines
2. Passenger Vessels Accessibility Guidelines

Department of Energy

1. Convention on Supplementary Compensation for Nuclear Damage Contingent Cost Allocation
2. Energy Conservation Program for Consumer Products: Energy Conservation Standards for Certain Small Diameter, Elliptical Reflector, and Bulged Reflector Incandescent Reflector Lamps
3. Energy Efficiency Program for Consumer Products: Energy Conservation Standards for General Service Lamps
4. Energy Conservation Program for Consumer Products: Energy Conservation Standards for Hearth Products
5. Energy Conservation Program for Consumer Products: Energy Conservation Standards for Residential Furnaces
6. Energy Conservation Program: Energy Conservation Standards for Commercial Packaged Boilers
7. Energy Conservation Program: Energy Conservation Standards for Ceiling Fans
8. Energy Conservation Program: Energy Conservation Standards for Residential Conventional Ovens
9. Energy Conservation Program: Energy Conservation Standards for Residential Dehumidifiers
10. Energy Conservation Program: Energy Conservation Standards for Residential Dishwashers
11. Fossil Fuel-Generated Energy Consumption Reduction for New Federal Buildings and Major Renovations of Federal Buildings

Department of Homeland Security

1. Ammonium Nitrate Security Program
2. Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers

 Department of Labor

1. Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees
2. Establishing Paid Sick Leave for Federal Contractors
3. Occupational Exposure to Beryllium and Beryllium Compounds
4. Oil and Gas and Sulphur Operations in the Outer Continental Shelf-Blowout Preventer Systems and Well Control
5. Walking-Working Surfaces and Personal Protective Equipment (Fall Protection Systems)
6. Workforce Innovation and Opportunity Act

Department of the Interior

1. Carrier Safety Fitness Determination
2. Waste Prevention, Production Subject to Royalties, and Resource Conservation

Department of Transportation

1. Commercial Driver's License Drug and Alcohol Clearinghouse
2. Federal Motor Vehicle Safety Standards; Minimum Sound Requirements for Hybrid and Electric Vehicles
3. Federal Motor Vehicle Safety Standards; Motorcycle Helmets
4. Greenhouse Gas Emissions and Fuel Efficiency Standards for Medium- and Heavy-Duty Engines and Vehicles-Phase 2
5. Operation and Certification of Small Unmanned Aircraft Systems
6. Pipeline Safety: Safety of Gas Transmission and Gathering Pipelines
7. Public Transportation Agency Safety Plan
8. Transit Asset Management; National Transit Database

Environmental Protection Agency

1. Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act
2. Cross-State Air Pollution Rule Update for the 2008 Ozone NAAQS
3. Emission Guidelines and Compliance Times for Municipal Solid Waste Landfills
4. Federal Plan Requirements for Greenhouse Gas Emissions From Electric Utility Generating Units Constructed on or Before January 8, 2014; Model Trading Rules; Amendments to Framework Regulations
5. National Emission Standards for Hazardous Air Pollutants: Mercury Emissions From Mercury Cell Chlor-Alkali Plants
6. Oil and Natural Gas Sector: Emission Standards for New and Modified Sources

Federal Acquisition Regulation

1. Federal Acquisition Regulation; Fair Pay and Safe Workplaces

Health and Human Services

1. Federal Policy for the Protection of Human Subjects
2. Focused Mitigation Strategies To Protect Food Against Intentional Adulteration
3. Food Labeling: Revision of the Nutrition and Supplement Facts Labels
4. Food Labeling: Serving Sizes of Foods That Can Reasonably Be Consumed at One-Eating Occasion; Dual-Column Labeling; Updating, Modifying, and Establishing Certain Reference Amounts Customarily Consumed; Serving Size for Breath Mints; and Technical Amendments
5. General and Plastic Surgery Devices: Restricted Sale, Distribution, and Use of Sunlamp Products
6. Head Start Performance Standards
7. Medication Assisted Treatment for Opioid Use Disorders
8. ONC Health IT Certification Program: Enhanced Oversight and Accountability
9. Safety and Effectiveness of Health Care Antiseptics; Topical Antimicrobial Drug Products for Over-the-Counter Human Use; Proposed Amendment of the Tentative Final Monograph; Reopening of Administrative Record

Housing and Urban Development

1. Instituting Smoke-Free Public Housing