What Obama “Midnight Rules” Are Subject to the Trump Regulatory Freeze?

January 22nd, 2017

Since the Carter Administration, it has become customary for outgoing presidential administrations to issue a plethora of new regulations between election day and the inauguration. These rules are often called “midnight rules”. In response, the incoming administrations have issued executive orders or memorandum to temporarily delay or “freeze” these midnight regulations” so the new administration had the opportunity to review these rules.

Several hours after Donald J. Trump took the oath of office, White House Chief of Staff Reince Priebus issued a Memorandum to all executive departments and agencies freezing all pending regulations. The moratorium postpones for sixty days the effective date for any regulation that has been published in the Federal Register but not yet gone into effect. The memo instructs agency heads to withdraw any regulation that had been sent to the Office of the Federal Register (“OFR”) but not yet published so that the rules may be reviewed by the department or agency head appointed or designated by the President. In addition, agency heads are prohibited from sending any proposed or final regulation to the OFR until department or agency nominees have been confirmed and assumed office.

The memo also said that for regulations whose effective date has been delayed to review questions of fact, law, or policy, the agencies should consider potentially proposing further notice-and-comment rulemaking. For delayed regulations that raise substantial questions of law or policy, the memo said agencies should notify the OMB Director and take further appropriate action in consultation with the OMB Director.

The following proposed regulations would appear to be subject ta the regulatory moratorium (in reverse chronological of publication date in the Federal Register):

  • Procedures for Chemical Risk Evaluation under the Amended Toxic Substances Control Act;[1]
  • Trichloroethylene (TCE); Regulation of Use in Vapor Degreasing under TSCA §6(a);[2]
  • Federal Acquisition Regulation: Sustainable Acquisition;[3]
  • Accidental Release Prevention Requirements: Risk Management Programs under the Clean Air Act;[4]
  • Financial Responsibility Requirements under CERCLA § 108(b) for Classes of Facilities in the Hard Rock Mining Industry;[5]
  • Financial Responsibility Requirements for Facilities in the Chemical, Petroleum and Electric Power Industries;[6]
  • Federal Plan Requirements for Commercial and Industrial Solid Waste Incineration Units;[7]
  • Protection of Visibility: Amendments to Requirements for State Plans;[8]
  • Addition of a Subsurface Intrusion Component to the Hazard Ranking System;[9]
  • Addition of Natural Gas Processing Facilities to the Toxics Release Inventory (TRI);[10]
  • Revisions to the Regulations for Candidate Conservation Agreements with Assurances;[11]
  • Trichloroethylene; Regulation of Certain Uses Under TSCA § 6(a);[12]
  • Formaldehyde Emission Standards for Composite Wood Products;[13]
  • Hazardous Waste Generator Improvements Rule;[14]
  • Energy Conservation Program: Energy Conservation Standards for Miscellaneous Refrigeration Products;[15]
  • National Emission Standards for Hazardous Air Pollutant Emissions: Petroleum Refinery Sector Amendments;[16]
  • Revisions to the Prevention of Significant Deterioration (PSD) and Title V Greenhouse Gas (GHG) Permitting Regulations and Establishment of a Significant Emissions Rate (SER) for GHG Emissions Under the PSD Program;[17]
  • Energy Conservation Standards for Uninterruptible Power Supplies;[18]
  • Corporate Average Fuel Economy (CAFE) for light-duty vehicles;[19]
  • National Emission Standards for Hazardous Air Pollutants for the Portland Cement Manufacturing Industry;[20] and
  • Clean Energy Incentive Program Design Details (CEIP) [21]

History shows that only a very small percentage of the regulations that have been temporarily frozen end up being rescinded or significantly modified. For example, President Clinton repealed less than 10 percent of the midnight regulations issued by the outgoing George H.W. Bush Administration. Of the 90 rules subject to the freeze imposed by the George W. Bush Administration, one rule was withdrawn in its entirety, three rules were withdrawn and replace and nine others were altered (e.g., different implementation date or reporting requirement). This is because to eliminate or change midnight regulations, a new administration would need to commence a new notice-and comment rulemaking and provide a rational explanation for why the rule is no longer appropriate.[23] Courts have invalidated changes that did not comply with notice-and-comment rulemaking, especially where EPA did not make specific factual findings.[24].

The regulatory freeze does not apply to recent rules that have already become effective. However, Congress could invoke the Congressional Review Act (CRA) to revoke some of those finalized regulations. We will identify the rules that are vulnerable to recission under the CRA in our next post.

 

[1] 81 FR 7562 (January 19, 2017)

[2] 81 FR 7432 (January 19, 2017)

[3] 81 FR  5490 (January 18, 2017)

[4] 81 FR 4594 (January 13, 2017)

[5] 81 FR 3388 (January 11, 2017)

[6] 81 FR 3512 (January 11, 2017)

[7] 81 FR 3554 (January 11, 2017)

[8] 81 FR 3078 (January 10, 2017

[9] 81 FR  2760 (January 9, 2017)

[10] 81 FR 1651 (January 6, 2017)

[11] 81 FR 95053 (December 27, 2016)

[12] 81 FR 91592 (December 16, 2016)

[13] 81 FR 89674 (December 12, 2016)

[14] 81 FR 85732 (November 28, 2016)

[15] 81 FR 75194 (October 28, 2016)

[16] 81 FR 71661 (October 18, 2016)

[17] 81 FR 68110 (Oct. 3, 2016)

[18] 81 FR 52196 (Aug.5, 2016)

[19] 81 FR 49217 (July 27, 2016)

[20] 81 FR 48372 (July 25, 2016)

[21] 81 FR 42940 (June 30,2016)

[22] reserved

[23]  Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983)

[24] See, e.g., New Jersey v. EPA, 517 F.3d 574 (D.C. Cir., 2008)(vacating Clean Air Mercury Rule); Nat. Res. Def. Council v. Abraham, 355 F.3d 179 (2d Cir. 2004); Envtl. Def. Fund, Inc. v. Gorsuch, 713 F.2d 802 (D.C. Cir. 1983); Nat. Res. Def. Council v. EPA, 683 F.2d 752, 761-63 (3d Cir. 1982).

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