Tracking the Trump Administration’s
“Midnight Regulations”
The administration is rushing to implement dozens of policy
changes in its final days. We’re following some of the most consequential and
controversial.
by Isaac Arnsdorf, Lydia DePillis, Dara
Lind, Lisa Song, Moiz
Syed, Zipporah Osei, ProPublica, November 25, 2020.
ProPublica is a nonprofit newsroom that investigates abuses of
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Even as President Donald Trump refuses to
concede defeat, his White House and executive agencies are racing to finalize
his policy priorities before President-elect Joe Biden takes office on Jan. 20.
It’s common for outgoing administrations to rush through last-minute rules, but
these “midnight regulations” can sometimes shortchange public input or thorough
analysis, and they may tie the hands of the incoming president. ProPublica is
tracking the most controversial and consequential regulations that are
advancing through federal agencies and the White House in the Trump
administration’s final days, which include rules proposed or moved along on or
after the election or rules our reporting tells us are highly likely to be
finalized soon. | Related: Trump Races to Weaken Environmental and Worker
Protections, and Implement Other Last-Minute Policies, Before Jan. 20 →
White House Reviewing
Proposal
Regulations
early in the process, still being reviewed by the White House
Rules put
forward for consideration
White House
Reviewing Final Rule
Final language
of the rule under review
Rule is in
effect or set to take effect, making it harder for the next administration to
undo
Rule Finalized12
FINANCE
This rule has moved ahead since Election Day
Excluding Environmental and Social Impact in Choosing Pension
Plan Investments
Finalized shortly
after Election Day, this rule makes it more difficult for pension managers to
choose investments based on anything other than financial factors — such as a
company's climate change impact or workforce benefits.
Department of Labor, Employee Benefits Security
Administration • Read more: dol.gov, federalregister.gov
LABOR
This rule has moved ahead since Election Day
Voiding Washington State's Meal and Rest Break Rules for Truck
Drivers
In 2019, the
trucking industry in Washington state asked federal regulators to obviate — or
preempt — a new state law requiring a higher number of meal and rest breaks
than mandated under nationwide standards. On Nov. 17, the Federal Motor Carrier
Safety Administration granted that petition.
Department of Transportation, Federal Motor Carrier Safety
Administration • Read more: regulations.gov
OTHER
This rule has moved ahead since Election Day
Reallocating Airwaves From Intelligent Transportation to General
Wi-Fi
The Federal
Communications Commission voted unanimously to reassign airwaves (or
"spectrum") previously reserved for connected transportation to
general unlicensed Wi-Fi use. The change was opposed by driverless car
companies, highway safety advocacy groups and all 50 state transportation
departments, as well as the federal Department of Transportation.
Federal Communications Commission • Read more: fcc.gov
OTHER
This rule has moved ahead since Election Day
Restricting the Use of Agency Guidance
Several agencies,
including the Department of Housing and Urban Development, the Social Security
Administration, the Department of the Interior and the Department of Veterans
Affairs, are narrowing the use of policy statements known as guidance, which
allow regulators to clarify their interpretation of rules. The new rules
clarify that guidance is nonbinding and allow for more industry input. This
effort began with an executive order in 2019, and agencies are finishing its
implementation, making it harder to undo than the executive order alone.
Housing and Urban Development, Social Security Administration,
Department of the Interior, Veterans Affairs • Read more: regulations.gov, regulations.gov, regulations.gov, regulations.gov, regulations.gov
CRIMINAL JUSTICE
This rule has moved ahead since Election Day
Allowing Federal Death Row Inmates to Be Executed by Means Other
Than Lethal Injection
This rule would
broaden the acceptable forms of federal capital punishment to include methods
that are or may soon be legal in various states, such as firing squads and
electrocution. The Trump administration has restarted federal executions, which
President-elect Joe Biden has said he would not allow.
Department of Justice • Read more: regulations.gov
HEALTH CARE
This rule has moved ahead since Election Day
Ending Medicare Drug Rebates
This rule would end
drug company payments to middlemen in Medicare. Health plans oppose it because
they would get stuck covering higher drug costs. The Trump administration says
this proposal will lower drug prices, but it has backed off before over concerns
that it could lead to higher premiums.
Health and Human Services • Read more: reginfo.gov
ENVIRONMENT
This rule has moved ahead since Election Day
Allowing the Forest Service to Bypass Some Environmental
Reviews
By allowing the
Forest Service to skip environmental reviews, the Trump administration says
it's making it easier to maintain roads, trails and campgrounds. But opponents
say the rule clears the way for officials to allow logging and new roads
without studying the environmental harm and seeking public input.
Department of Agriculture, Forest Service • Read more: regulations.gov
IMMIGRATION
This rule has moved ahead since Election Day
Restricting High-Skilled Immigrant Work Visas by Raising Wage
Minimums for Visa Holders
This regulation
went into effect immediately when issued on Oct. 8, although a public comment
period remained open through Nov. 9. It overhauls the rubrics that set how much
employers must pay an immigrant to sponsor them on a temporary H-1B "high
skilled" worker visa. New wage standards are substantially higher, making
many would-be immigrants suddenly ineligible.
Department of Labor, Employment and Training Administration •
Read more: regulations.gov
IMMIGRATION
This rule has moved ahead since Election Day
Lowering Wages for Immigrant Farmworkers
This regulation
changes the scale used to determine how much employers must pay immigrant
farmworkers on temporary H-2A work visas, freezing it for two years. Farmworker
groups oppose the change, saying that it will lower pay for both U.S.-born and
immigrant workers — even as there's a worker shortage in the midst of the
COVID-19 pandemic.
Department of Labor, Employment and Training Administration •
Read more: federalregister.gov
IMMIGRATION
This rule has moved ahead since Election Day
Narrowing Eligibility for High-Skilled Work Visas by Tightening
Educational Requirements
This regulation —
published in October 2020 as an "interim final rule" to go into
effect in December — boosts the requirements for employers hoping to sponsor
immigrants on high-skilled work visas. It demands higher educational attainment
for these jobs, and expands the definition of off-site work (which is treated
with more scrutiny in visa applications).
Department of Homeland Security, US Citizenship and Immigration
Services • Read more: federalregister.gov
IMMIGRATION
This rule has moved ahead since Election Day
Requiring Some Visitors to the U.S. to Post Bond So They Leave
When Their Visas Expire
This
"temporary" final rule, set to go into effect in December, creates a
pilot program allowing the Department of State to require some visitors to the
U.S. on business or tourist visas to post up to $15,000 as a bond, which will
be returned to them once they leave the United States.
Department of State • Read more: public-inspection.federalregister.gov
HEALTH CARE
This rule has moved ahead since Election Day
Pegging Drug Prices to an International Index
Medicare will cut
prescription drug prices by linking costs to what's paid overseas. The
administration skipped the typical process of publishing a proposal and
collecting public input. Drugmakers oppose the new policy and are all but
certain to sue.
Department of Health and Human Services, Centers for Medicare and
Medicaid Services • Read more: innovation.cms.gov
White House Reviewing Final Rule11
LABOR
This rule has moved ahead since Election Day
Allowing Religious Exemptions for Federal Contractors
Sent to the White
House on Election Day after an abbreviated window for public input that
nevertheless drew widespread objections, this rule would allow
religiously-motivated institutions with federal contracts — including
for-profit companies — to not hire people based on their faith.
Department of Labor, Office of Federal Contract Compliance
Programs • Read more: regulations.gov
ENVIRONMENT
Experts expect this rule to move ahead before Inauguration Day
Excluding Secondary Environmental and Health Benefits From
Evaluating Regulations on Air Pollution
This rule would
make it harder to justify air pollution limits by changing the way the
Environmental Protection Agency calculates costs and benefits. Specifically,
the agency wouldn't be allowed to consider ancillary benefits, such as reducing
climate-warming greenhouse gases as a byproduct of restricting mercury
pollution.
Environmental Protection Agency • Read more: reginfo.gov, regulations.gov
ENVIRONMENT
This rule has moved ahead since Election Day
Removing Penalties for Accidentally Killing Birds
In 2017, the Fish
and Wildlife Service issued a legal opinion interpreting the Migratory Bird
Treaty Act to only forbid killing birds intentionally, not incidentally in the
course of industrial activities like oil drilling. The agency was sued, and in
2020 a judge restored some protections for the birds. FWS has nevertheless
continued a rule-making process to formalize the opinion, and a final rule is
expected in the coming months.
Department of the Interior, Fish and Wildlife Service • Read
more: regulations.gov
ENVIRONMENT
This rule has moved ahead since Election Day
Loosening Efficiency Standards for Showerheads
This rule, which
popped up days after President Donald Trump publicly complained about a
supposed lack of water pressure in modern appliances, would loosen
long-standing requirements that showerheads conserve water. It's backed by the
plumbing industry and strongly opposed by environmentalists, consumer groups
and utilities.
Department of Energy, Office of Energy Efficiency and Renewable
Energy • Read more: regulations.gov
FOOD & AGRICULTURE
Experts expect this rule to move ahead before Inauguration Day
Narrowing Eligibility for Food Stamps
This rule would
remove about 3 million individuals from food stamp rolls by changing
eligibility so that recipients of other types of benefits do not automatically
qualify. Advocacy groups say the change will put more people at risk of hunger
during the pandemic.
Department of Agriculture, Food and Nutrition Service • Read
more: regulations.gov
ENVIRONMENT
This rule has moved ahead since Election Day
Loosening Efficiency Standards for Clothes Washers and Dryers
This rule would
loosen water and energy efficiency standards by creating a separate class of
clothes washers and dryers based on how long they take to complete a load. More
efficient washers use less water, and take longer, because they require more
time for the soap to penetrate soiled clothes. Major manufacturers oppose the
change, but small-government conservatives still want to slash regulation.
Department of Energy, Office of Energy Efficiency and Renewable
Energy • Read more: regulations.gov
OTHER
This rule has moved ahead since Election Day
Bolstering the Position of Faith-Based Organizations in Justice
Department Grant-making
This rule
strengthens the rights of faith-based organizations to compete for Department
of Justice grants, and it includes language that would protect them from any
funding conditions that would require them to change their religious practices.
Department of Justice • Read more: regulations.gov
ENVIRONMENT
Experts expect this rule to move ahead before Inauguration Day
Excluding Scientific Studies From Environmental Policy-making
Known to its
supporters as the "secret science" or "transparency" rule
(and to its opponents as the "censored science" rule), it would limit
the Environmental Protection Agency's ability to consider scientific research
where the raw data isn't completely public. It could exclude many epidemiology
and public health studies where the raw data contains private medical
information.
Environmental Protection Agency • Read more: reginfo.gov
ENVIRONMENT
This rule has moved ahead since Election Day
Maintaining Existing Air Pollution Standards for Particulate
Matter (Soot)
The decision would
keep the national particulate pollution standard unchanged, despite advice from
independent scientists who said tightening the standard would avoid tens of
thousands of early deaths each year. The pollutant causes respiratory and cardiovascular
problems, and emerging research has tied it to coronavirus deaths. If the Trump
administration finalizes the rule, it would delay stricter standards by at
least five years.
Environmental Protection Agency • Read more: reginfo.gov
IMMIGRATION
This rule has moved ahead since Election Day
Preventing Judges From Using Discretion to Close Immigration
Cases
Among other things,
this rule would eliminate the ability of immigration judges to
"administratively close" a case against an immigrant, stopping
deportation orders. Administrative closure was frequently used by the Obama
administration. The Trump administration has stopped judges from using
administrative closures, and it now seeks to make it much harder for
Presiden-elect Joe Biden to revive them.
Department of Justice, Executive Office for Immigration
Review • Read more: reginfo.gov
IMMIGRATION
Experts expect this rule to move ahead before Inauguration Day
Radically Narrowing the Grounds for Asylum Eligibility
This regulation
would codify many of the precedents the Trump Department of Justice has set
restricting asylum eligibility, making it much harder for a Biden
administration to undo those changes. It would specifically rule out most of
the most common arguments used by Central Americans seeking asylum.
Department of Justice / Department of Homeland Security, Executive
Office for Immigration Review / US Citizenship and Immigration Services •
Read more: reginfo.gov, reginfo.gov
Proposed Rule12
LABOR
Experts expect this rule to move ahead before Inauguration Day
Broadening the Definition of Independent Contractor
This rule expands
the definition of when an employee can be considered an independent contractor
for purposes of benefits and labor laws, advantaging "gig economy"
companies like Uber and DoorDash. The public had 30 days to submit comments,
half the typical period; the Department of Labor said that "the lack of
regulatory guidance underscores the need for an expedient rulemaking."
Department of Labor, Wage and Hour Division • Read
more: regulations.gov
FINANCE
This rule has moved ahead since Election Day
Imposing Tariffs on Vietnam on the Basis of Its
"Undervalued" Currency
An investigation
found that Vietnam was selling tires at subsidized prices on the U.S. market,
laying the legal groundwork for tariffs. More importantly, this is the first
time an "undervalued" currency has been used as a factor in the
subsidy calculation, drawing objections from those who believe that trade
policy shouldn't intervene in foreign exchange markets.
Department of Commerce, International Trade Administration •
Read more: commerce.gov
HOUSING
Experts expect this rule to move ahead before Inauguration Day
Allowing Federally Subsidized Homeless Shelters to Exclude
Transgender People
This rule would
allow Housing and Urban Development-funded homeless shelters, when segregating
men and women, to assign transgender people to an area based on their
biological sex, rather than the individual's self-identification.
Department of Housing and Urban Development, Office of Community
Planning and Development • Read more: regulations.gov
LABOR
Experts expect this rule to move ahead before Inauguration Day
Split-Duty Pilot Program
Currently, a
freight truck driver's on-duty shift must end no longer than 14 hours after it
starts. The proposed pilot program would experiment with allowing a midshift
break, extending the period of time before they would have a longer rest.
Highway safety groups worry that it would only exacerbate driver fatigue and
lead to more crashes.
Department of Transportation, Federal Motor Carrier Safety
Administration • Read more: regulations.gov
LABOR
This rule has moved ahead since Election Day
Under-21 Driver Pilot Program
In response to
trucking industry complaints that companies can't find enough drivers, the
Department of Transportation proposed a pilot program that would allow 18-, 19-
and 20-year-olds to operate long-haul trucks. Labor and road safety groups
oppose the idea.
Departmemt of Transportation , Federal Motor Carrier Safety
Administration • Read more: regulations.gov
ENVIRONMENT
Experts expect this rule to move ahead before Inauguration Day
Endangered and Threatened Species: Regulations for Designating
Critical Habitat
This rule clarifies
standards for designating endangered species habitats to give more weight to
landowners' rights and economic factors, making it less likely that land will
be protected for wildlife preservation. The agency allowed only 30 days to
comment, rather than the usual 60.
Department of the Interior, Fish and Wildlife Service • Read
more: regulations.gov
ENVIRONMENT
This rule has moved ahead since Election Day
Loosening Permits to Develop Near Waterways and Wetlands
This rule would
expedite the permits for many activities regulated by the Clean Water Act. Some
of the items are relatively innocuous, such as boat ramps. But others — such as
oil and gas pipelines or surface coal mining — have huge impacts that
environmentalists say shouldn't get waved through without scrutiny.
Army Corps of Engineers • Read more: regulations.gov
IMMIGRATION
This rule has moved ahead since Election Day
Barring Work Permits for Immigrants With Deportation Orders
Some immigrants who
get final deportation orders end up staying in the U.S. for a time, usually
because their home countries won't accept deportees. This rule would prevent
such immigrants from being able to legally work in the U.S. The truncated
comment period for the proposed rule ends in mid-December, making it unlikely,
though not impossible, that it will be finalized before the inauguration.
Department of Homeland Security, United States Citizenship and
Immigration Services • Read more: public-inspection.federalregister.gov
HEALTH CARE
This rule has moved ahead since Election Day
Requiring Regular Review of Health Care Regulations
Proposed the day
after the election, this rule would purge health care regulations after 10
years unless the agency decides to preserve them. Reviewing all those old
regulations could be a major drain on the agency's resources, while scrubbing
existing rules could upend the highly regulated health care industry.
Department of Health and Human Services • Read more: federalregister.gov, hhs.gov
IMMIGRATION
Experts expect this rule to move ahead before Inauguration Day
Making It Harder for Asylum-Seekers to Compile Their
Applications — and Easier for Judges to Cherry-Pick Evidence
This rule makes it
more difficult for asylum-seekers to submit evidence in their legal cases, reduces
the time they have to file an application before a judge and makes it easier
for judges to pick and choose which evidence to consider.
Department of Justice, Executive Office for Immigration
Review • Read more: reginfo.gov
ENVIRONMENT
This rule has moved ahead since Election Day
Loosening Restrictions on Overfishing
This proposal would
increase the allowable level of risk of overfishing when setting caps on
catches for certain species. Published after the election, it allows only two
weeks for public input, instead of the typical 60 days.
Department of Commerce, National Oceanic and Atmospheric
Administration • Read more: federalregister.gov
FINANCE
This rule has moved ahead since Election Day
Preventing Banks From Withholding Credit on the Basis of Social,
Political or Environmental Considerations
As activists
increasingly pressure banks not to finance carbon-intensive projects such as
oil pipelines and fracking, or companies like payday lenders and firearms
dealers, this rule would require that lenders evaluate borrowers purely on
financial metrics, with no regard for their potential broader impact.
Office of the Comptroller of the Currency • Read more: occ.gov
White House Reviewing Proposal2
HOUSING
Experts expect this rule to move ahead before Inauguration Day
Making Families of Noncitizen Immigrants Ineligible for
Subsidized Housing
Earlier in 2019,
the Department of Housing and Urban Development proposed a rule denying
subsidized housing for the families of noncitizen immigrants. Now, the
Department of Agriculture is doing the same for the Rural Housing Service,
which could result in the eviction of many low-income families.
Department of Agriculture, Rural Housing Service • Read
more: reginfo.gov
FOOD & AGRICULTURE
This rule has moved ahead since Election Day
Increasing the Speed at Which Chickens May Be Slaughtered
Under this rule
chicken factories would be allowed to run faster, increasing potential profits
but putting workers at higher risk of injuries like amputations and carpal
tunnel. These safety concerns thwarted a previous effort to raise speeds during
the Obama administration, but the Trump administration issued case-by-case
waivers allowing some plants to speed up anyway, laying the groundwork for an
across-the-board increase. This process usually takes about two years, so it's
not clear if this rule can be finished before the inauguration.
Department of Agriculture , Food Safety and Inspection
Service • Read more: reginfo.gov
