The Trump administration has already finalized more federal rules in its last year than any other recent President. And that’s not even counting the regulatory activity underway since Nov. 1, a period when outgoing administrations tend to rush through “midnight regulations.”
A record 111 economically significant final rules were either reviewed or completed this year through Nov. 1, according to CNN analysis of federal regulation data. Another eight have been finalized since then.
Fifteen remain pending under review, almost half of which have been submitted since Election Day, according to data as of Dec. 1 from the Office of Information and Regulatory Affairs.
Federal rulemaking is a key power held by the executive branch. While Congress passes legislation that becomes law when signed by the president, it’s up to the executive branch to interpret and implement these laws through regulations. Federal agencies submit proposed rules for review when they’re deemed “significant.” That process can often be lengthy, though there are shortcuts, such as limiting the time for public comment. A rule doesn’t take effect until after it is finalized and published in the Federal Register.
Administrations have gotten better about waiting until the last minute. More than half of the significant final rules the Clinton administration completed in its last year were approved in its “midnight” phase. Midnight rules fell to 42% of final rules completed in George W. Bush’s last year and then fell again to 38% under Barack Obama.
Trump still has time to finalize more regulations before Biden takes office. So far only 17% of his administration’s final-year rules were finished or remain under review since the election.
Rushing the process could make the rules more vulnerable to legal challenges.
“Trump hasn’t done very well, even when the Trump Justice Department is defending him,” Dudley added. “So, you can only imagine how well (his policies will) do when it’s the Biden Justice Department defending a Trump rule.”
A new president can stop any impending final rules from being enacted on day one by halting their publication in the Federal Register. Anything pending can be withdrawn by the new agency heads.
While it’s harder for a new administration to undo final rules, it is possible. Congress can also step in to nix final rules published in the last months of the Trump administration.
Republicans were able to use the Congressional Review Act when they held both chambers of Congress to rescind more than a dozen Obama-era rules. But if Republicans maintain control of the Senate, Biden’s use of the CRA to rescind Trump era rules will be limited.
Here are some of the most notable federal rules the Trump administration is attempting to finish before Biden takes office.
The rule would change the definition of a showerhead and is opposed by conservation, consumer groups, utility companies and manufacturers.
Two rules from the Environmental Protection Agency are awaiting final approval. Both would make it harder for the agency to use science as the main determining factor in the rulemaking process.
The first would require a cost-benefit analysis for any proposed policy changes under the Clean Air Act, regardless of whether the environmental impacts outweigh the potential economic ones, which could have significant long-term effects on policymaking at the agency.
The rule would also prevent scientists at the agency from presenting co-benefits of a proposed policy change. So, if scientists propose a crackdown on o-zone levels and that decreased amount also reduces other kinds of emissions, those co-benefits will no longer be considered when evaluating if the rule change should become policy or not.
“It’s forced the EPA to present a more narrow type of analysis that therefore makes the benefits seem smaller too,” said Brett Harti, government affairs director at the Center for Biological Diversity, an environmental advocacy group.
Raw data is often not allowed to be released to the public because it contains personal identifying information.
Dr. Tom Sinks, former director of the EPA Office of the Science Advisor, published a dissenting opinion about the secret science rule in August, a month before he retired. Sinks told CNN he believes the proposed rule is attempting to provide a solution to a problem that doesn’t exist.
“Now we are suddenly creating a regulation that implies, one, science is being held secret, which it isn’t, and, two, we’ll do a better job in rulemaking if we make the underlying data available, when, one, there is no evidence a problem exists and, two, there’s no evidence a problem will be solved,” Sinks said.
Sinks also said the EPA does not currently have a system where these kinds of datasets from outside research can be stored and made publicly available, which will make the implementation of the rule, if finalized, extremely difficult.
DHS also proposed a rule in November that bars undocumented immigrants who are ordered to be removed from the US from receiving work permits.
HHS estimates this would require up to 91 full-time staff positions, at a cost of up to $26 million over 10 years to implement.
“A federal agency sunsetting its own regulations on this scale would be unprecedented, and this would apply to a few thousand regulations, or more,” said Dan Bosch, a regulatory expert at the conservative American Action Network. “But agencies are supposed to do this anyway. They’re supposed to review their old rules to make sure we’re getting the benefits we were expecting.”
Both of these rules are in the proposal stage and may not be finalized by Biden’s inauguration. The sunset rule is still in public comments through January. For the CMS rule, the comment period has been shortened by 30 days.
The administration says its goal is to lower drug prices by having Medicare pay the same rates for these drugs as other developed countries — a process known as “most-favored-nation” price.
“We’re now eight months after the coronavirus emergency began, and now all of a sudden, it’s an emergency, right after they happened to lose the election,” Bosch said. “It was troubling how they went about issuing that rule. I think it’ll be challenged in court and probably won’t survive.”
The Pharmaceutical Research and Manufacturers of America and three other trade groups filed a lawsuit Friday in the US District Court in Maryland challenging the legality of the Most Favored Nation rule. One of their complaints is that CMS failed to follow required rulemaking procedures.
The Social Safety Net
During the public comment period LGBTQ groups mobilized to flood HUD with thousands of comments said Rodrigo Heng-Lehtinen, deputy executive director of the National Center for Transgender Equality.
“We think we’ve stalled the clock just enough to stop HUD from finalizing this,” Heng-Lehtinen said. “Even if they finalize it, we’ve been working with the Biden transition to make sure Biden’s HUD repeals this just as quickly. We hope the Biden administration will clean it right back up.”
CNN’s Tami Luhby, Priscilla Alvarez and Christina Carrega contributed to this report.