Lame Duck Regulatory Agenda Projects $44 Billion in Midnight Costs

Here are the final pieces to President Obama’s regulatory legacy. What can the nation expect in the lame duck? What will Congress target for repeal in 2016?  With the recent release of the administration’s final regulatory agenda, it has largely answered these questions. An American Action Forum (AAF) review of the data found at least $75.3 billion in planned regulatory costs, including the majority ($44.1 billion) during the “midnight” regulatory period from November 2016 to January 2017. This would be in addition to the more than $150 billion in final regulatory costs already published in 2016.

With little time to propose and finalize rulemakings by January 20, 2017, the administration listed 20 new economically significant measures, up from 14 in the spring agenda. Here are the notable new measures:

For perspective on timing, the administration listed 30 new significant regulations (not previously published in the agenda) in its fall 2010 agenda, shortly after Dodd-Frank and the Affordable Care Act (ACA) had passed. Likewise, the regulatory agenda the following fall listed 32 new significant actions. Largely, the administration has implemented many of its regulatory priorities: virtually all of the ACA, a majority of Dodd-Frank, and dozens of rules aimed at reducing greenhouse gas emissions. However, as this agenda demonstrates, and recent regulatory output corroborates, there are still key rulemakings left for the waning days of the Obama Administration.

With regard to “midnight regulation” or rules published after Election Day, but before the next president takes office, there are at least $44.1 billion in possible midnight regulatory costs, timed mostly for November and December of 2016. At the beginning of the year, the administration forecasted roughly $5.2 billion in regulatory costs for November and December. Although it’s not certain the outcome of the recent election changed the calculus for regulators, the output for December alone could top $24 billion, according to Unified Agenda data.

Below, there are approximately 40 notable rulemakings and their scheduled publication dates. Notice the relative lack of activity after January 2017.

November 2016


Proposed/ Final Rule RIN

Cost (in millions)


Final Requirements for Vehicle Operators 2126-AB66 $5,485


Final Efficiency Standards: Housing 1904-AC11


DOT Final Commercial Driver’s License Clearinghouse 2126-AB18



Final Conservation Standards: Ceiling Fans 1904-AD28 $2,400


Final Business Continuity Plans 3235-AL62 $1,383
DOJ Final ADA Guidelines for Passenger Vessels 3014-AA11


DHS Final Retention of Immigrant Workers 1615-AC05



Final Recordkeeping for Deposit 3064-AE33 $328
HHS Final Confidentiality of Patient Records 0930-AA21



Final Smoke-Free Public Housing 2577-AC97 $212
SEC Final Rules for Security Swap Dealers 3235-AL12


DOE Final Conservation Standards: Central Air Conditioners


December 2016


Proposed/ Final Rule RIN Cost (in millions)
HHS Final Protection of Human Subjects 0937-AA02



Final Efficiency Standards: Power Supplies 1904-AD69 $4,620
DOE Final Efficiency Standards: Heating Equipment 1904-AD34



Final Conservation Standards: Boilers 1904-AD01 $863
DOE Final Conservation Standards: Ovens 1904-AD15



Final Pipeline Safety of Gas Transmission 2137-AE72 $711
EPA Final Renewable Fuels Standard 2060-AS72



Final Conservation Standards: Portable A/C 1904-AD02 $510
Interior Final Air Quality Reporting 1010-AD82



Final National Organic Program 0581-AD44 $256


Final Performance Management Measures 2125-AF54


EPA Final Accidental Release Regulations 2050-AG82


January 2017


Proposed/ Final Rule RIN Cost (in millions)
DOT Final Public Transportation Safety Plans 2132-AB23



February 2017


Proposed/ Final Rule RIN

Cost (in millions)



Restricted Use of Sunlamp Products




Final Arbitration Agreements 3170-AA51



Agency Proposed/ Final Rule RIN

Cost (in millions)


Final Conservation Standards: Gas Furnaces 1904-AD20 $9,200
DOE Final Conservation Standards: Dishwashers 1904-AD24



Final Medicare and Medicaid Critical Access 0938-AS21 $5,715
HHS Final Requirements for Discharge Plans 0938-AS59



Final Requirements for SIFIs 7100-AE37 $1,500
DOE Final Conservation Standards: Hearth Products 1904-AD35



Final Medicare, CHIP: Program Integrity 0938-AS84 $819
DOE Final Conservation Standards: Freezers 1904-AD59



Final Assessment of Fees for Large Banks 1505-AC42
DOT Final Speed Limiting Devices 2127-AK92



Final Liquidity Risk Measurement 1557-AD97 $519
DOL Final Annual Reporting and Disclosure 1210-AB63



Final Safety Management for Airports 2120-AJ38 $238

Possible Cost: $75.3 Billion

The $75 billion estimate contains roughly 40 monetized figures out of what will be hundreds of potential final rules. It is unlikely regulators in the Obama Administration will have the opportunity to enact the full slate listed here. Still, there is a degree of uncertainty. The public does not know the cost of proposed rulemakings not yet published, nor the countless other rules that will be final in the coming weeks. There is the possibility of direct or interim final rules omitted from this agenda, but those measures, if significant, are likely to face legal challenges. Finally, the ultimate costs and benefits of these measures could increase or decrease significantly compared to earlier versions.

This is the final regulatory agenda the administration will release. Its authors know too well that everything not yet final could come under scrutiny from President-elect Trump and the Republican Congress next year. Although this agenda puts the finishing touches on what was an active eight years for regulators, the fate of many of these measures lies with the next Congress and the incoming administration. The agenda might reveal $44 billion in midnight regulations today, but they could vanish quickly in a series of votes or executive actions in 2017.