Biden Releases Fall 2023 Unified Agenda Of Federal Regulations
Clyde Wayne Crews Jr. Contributor Fred L. Smith Jr. Fellow at the Competitive Enterprise Institute.
Biden Releases Fall 2023 Unified Agenda Of Federal Regulations
Contributor
Fred L. Smith Jr. Fellow at the Competitive Enterprise Institute.
Follow
Dec 7,
Since the early 1980s, federal departments and agencies have highlighted rulemaking priorities (not a complete inventory) in the (mostly) twice-yearly Unified Agenda of Federal Regulatory and Deregulatory Actions.
Vector illustration of Retro styled Abstract Businessman caught up in a bureaucratic Spiders Web. ... [+]GETTY
The Biden administration just released the Fall 2023 edition. The Agenda provides a snapshot of active and longer-term rules at various states of urgency moving through the pipeline, and presents a selection of rules recently finalized.
While traditionally prioritizing paperwork reduction, regulatory oversight and the balancing of costs and benefits, those pursuits have changed under Biden.
Biden’s Executive Order 14,094 on “Modernizing Regulatory Review” has shifted the White House Office of Management and Budget’s (OMB) emphasis from supervision to advancing “net benefits” as progressives see them. Where the Trump-era OMB boasted of successes in carrying out a (now-revoked) “one-in, two-out” approach to rulemaking, Biden’s OMB tends to affirm a series of top-down “whole-of-government” campaigns on climate change and energy policy, water, air quality, chemical regulation, transmission grid regulation, financial regulations related to climate disclosure, and more rather than challenge them.
White the Fall 2023 edition’s terse introduction contains less flowery language about using “every lever” available for “building back better” than did the first few Biden-era Agendas, it proclaims that “The regulatory plans and agendas submitted by agencies and included here offer a window into how the Administration plans to continue delivering on the President’s agenda to advance economic prosperity and equity, tackle the climate crisis, advance public health, and much more.”
The introduction also points to regulatory cues taken from the Infrastructure Investment and Jobs Act, the Inflation Reduction Act, and the CHIPS and Science Act. Given that these costly new laws are highly-regulatory and interventionist in nature, one can expect additional rule volume in forthcoming Agendas should future administrations disclose it adequately.
Forbes Daily: Get our best stories, exclusive reporting and essential analysis of the day’s news in your inbox every weekday.
Biden’s new edition is particularly important for a couple transformative reasons.
The fall Agenda marks the first since the recent fulfilment of Biden’s directive to OMB to revise longstanding “Circular A-4” guidance to agencies on their conduct of regulatory analysis. The now-formalized shift in mission bears scrutiny since future Agendas will further entrench (unless Congress stops it) a pivot toward often non-quantifiable net-benefit pursuits and away from the (somewhat) stricter cost-benefit green-eyeshade stance that partly governed before.
Also, the new fall Agenda is the first to fully incorporate Biden’s raising of the bar (via E.O. 14,094) for what qualifies as a “significant regulatory action” worthy of deeper analysis to one with $200 million in annual economic effects, up from the $100 million employed since Bill Clinton’s E.O. 12,866. (Other criteria like a rule’s raising novel legal issues also renders “significance,” but cost gets most of the attention.)
As the Agenda as well as the Federal Register reflects, agencies issue thousands of rules and regulations every year compared to the relative handful of laws enacted by Congress. As for toplines, in the Fall 2023 pipeline one finds 3,599 rules from over 60 federal departments, agencies, and commissions at various stages:
Active Actions (2,524): Pre-rule actions; proposed and final rules anticipated or prioritized for the near future;
Completed Actions (431): Actions completed during (approximately) the previous six months; and
Long-term Actions (644): Anticipated longer-term rulemakings beyond 12 months.
Compiled by the author from White House Office of Management and BudgetCOMPILED BY THE AUTHOR FROM WHITE HOUSE OFFICE OF MANAGEMENT AND BUDGET
Trump’s overall counts were comparable, but during his term hundreds of rules were designated “Deregulatory,” yielding lower “net” tallies, so to speak.
Rules appearing in the Unified Agenda may bog at the same stage for years, or they may percolate across editions before dropping off after completion. In fall 2023, 320 of the Active actions are appearing for the first time. Agencies’ rulemakings, however, are not constrained to those disclosed in the Agenda unless an administration were to explicitlyrequire it.
A relative handful of executive departments account for the greatest number of the rules in the pipeline. This fall, the Departments of the Treasury, Interior, Transportation, Commerce and Health and Human Services are again the most active. These top five, with 1,497 rules among them, account for 41 percent of the 3,599 rules in the pipeline. The Environmental Protection Agency, with 209 rules, takes sixth place. The Federal Communications Commission, with 99 rules, leads the pack among the independent agencies.
Prior to Biden’s “Modernizing Regulatory Review executive order, a subset of the Agenda’s rules were designated “economically significant,” referring to reckoned annual economic effects of at least $100 million. With Biden’s raising of the threshold for significance to $200 million, the Unified Agenda database now contains a radio-button for a less-poetic sounding “Section 3(f)(1) Significant” category of rules, of which there are 303 overall, compared to 332 economically significant rules a year ago (see table just below). The economically significant category is now a null set. The Spring 2023 edition was transitory, with 297 economically significant rules appearing at the time.
Compiled by the author from White House Office of Management and BudgetCOMPILED BY THE AUTHOR FROM WHITE HOUSE OFFICE OF MANAGEMENT AND BUDGET
One might have expected, with the higher threshold, to see a somewhat smaller tally of 3(f)(1) rules than what materialized, so the transparency in that regard is appreciated. But it does hint at a rules uptick. Congress should closely monitor developments here. There may be a substantial set of rules costing between $100 million and $200 million about which it would be useful to know more but which are now obscured (comparing economically significant rules in the Spring 2023 Agenda that remain in the Agenda but were not “upgraded” to Sec. 3(f)(1) rule status might shed some light here). In any event, prior to his Modernizing Regulatory Review order, Biden already appeared to have been in the process of ramping up economically significant regulations to the pre-Trump heights of Obama and Bush, particularly with respect to rules affecting state and local governments and small business. Even with the higher threshold, a larger number of costly rule disclosures—perhaps owing to the recent legislative surge—may be on tap so it would be wise for policymakers to remain on alert.
Typically at least 1,000 additional rules are deemed “other significant” in each volume of the Agenda. In this category we find 1,173 rules this fall. Granted, one can still comb through this broader 1,000-plus “significant” subset of rules to tease out some of their costs, but the takeaway from the Fall 2023 agenda is that quantitative tallies are less readily available for larger rules that might deserve attention. Congress should prioritize these “other significant” rules for additional analysis since without the benefit of the “economically significant” label, fewer costly rules may receive the added scrutiny they ought to have. One bright spot is that, despite Biden’s raising of the significance threshold via executive order, it remains the case that a $100 million threshold, separately rooted in the Congressional Review Act, does remain operative with respect to so-called “major” rules.
As for policy implications of the new Fall Agenda, the stand0ut is that 2024, just around the corner, is an election year. The administration may strive to complete some of its posted (or even unposted) regulatory priorities rapidly—in the next few months—before they become vulnerable to the Congressional Review Act’s “resolution of disapproval” process in the 119th Congress in the event of an administration change. Given that window of vulnerability, one might expect the Spring 2024 Agenda to contain fewer promised large rules at the final stage, with perhaps more shifted to the “Longer term” category.
Tracking the scope of government and putting appropriate constraints on it is always difficult; see the budget debate and national debt escalation for confirmation. Regulation is even less disciplined than spending, and has been made more so in the Biden administration. Governance of the regulatory enterprise will increasingly pose a challenge as the Unified Agenda and other official disclosures deteriorate as yardsticks and tools of control and discipline. Congress should strive to ensure that OMB remains suitable as a reliable watchdog if they retain it in its current structure. Given its capture by left-leaning influences, changing the institution may prove the better option.
Follow me on Twitter. Check out my website.
Follow
Wayne Crews is Fred L. Smith Fellow at the Competitive Enterprise Institute & a Cato Institute alum. A one-time Libertarian candidate for South Carolina state senate, he is widely published, contributes to Forbes.com, and authors the annual Ten Thousand Commandments, which the Wall Street Journal called "the best measure of the overall regulatory burden." Wayne also compiles the Tip of the Costberg report on gov't regulatory costs, and catalogs "regulatory dark matter." A frequent speaker, Wayne has appeared at venues including the DVD Awards Showcase in Hollywood, the National Academies, the Future of Music Policy Summit, the Consumer Electronics Show, European Commission-sponsored conferences and the Spanish Ministry of Justice. He has testified before Congress numerous times. While not a lawyer, Wayne's work is cited in numerous law reviews, journals and books, and papers. A dad of five, he can still do a handstand on a skateboard and enjoys custom motorcycles, the beach and the family farm. He is a member of Omicron Delta Epsilon economics honor society. Wayne is co-editor of the books Who Rules the Net?:Internet Governance and Jurisdiction, and Copy Fights: The Future of Intellectual Property In the Information Age. He is co-author of What’s Yours Is Mine: Open Access and the Rise of Infrastructure Socialism, and a contributing author to others. TV appearances include Fox, CNN, ABC, CNBC and NewsHour, and radio such as NPR; Wayne's reform ideas have been profiled in the Washington Post, Forbes and Investor’s Business Daily. Wayne created CEI's c:spin tech newsletter series, and co-created CEI's OnPoint policy series and Cato's TechKnowledge newsletter (which introduced "The Libertarian Vision for Telecom and High-Technology" with Adam Thierer, which helped inspire the 2012 Declaration of Internet Freedom). He coined the term "Splinternet" in Forbes in 2001 to underscore alternatives to government regulation of the Internet