Biden Administration Releases Updated Regulatory Agenda

Apart from a one-time Obama-era glitch, federal agencies have highlighted selected regulatory priorities in Spring and Fall editions of the Unified Agenda of Federal Regulatory and Deregulatory Actions since the early 1980s.

The Spring 2022 edition, just released (yes, Agendas are often tardy), continues delivering on Biden’s self-described “whole-of-government” regulatory activism.

The Agenda depicts a selection of rules recently finalized, as well as an incomplete snapshot of other notable rules moving through the pipeline. Elections and political motives along wtih policy can affect prioritization and urgency and thus accelerate or delay certain rulemakings. All of this affects the Agenda’s content and bulk (we don’t see the printed editions much anymore, but yes, you can get one).

In keeping with Biden’s “better America” spending pursuits and regulatory campaigns in several areas, the regulatory Agenda is regarded by the White House as “a way to share with the public how the themes of equity, prosperity and public health cut across everything we do to improve the lives of the American people.”

This is a shift. The Agenda’s roots lie in paperwork reduction, regulatory oversight, and the purported balancing costs and benefits and regulatory moderation. During the Trump years, the OMB boasted of meeting Trump’s “one-in, two-out” streamlining goals for agency rules.

Back when the Fall 2021 Agenda appeared, we noted Biden’s disregard for regulatory streamlining and his view that the entire Trump program constituted “harmful policies and directives that threaten to frustrate the Federal Government’s ability to confront … problems.” Biden revoked the Trump regulatory oversight apparatus in a series of executive orders.

The result is that the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) has morphed into a vehicle for advancing Biden’s initiatives to “Combat Housing Discrimination,” “Tackle the Climate Crisis,” and the like. Reversals of specific Trump regulatory initiaties remain underway in the Spring Agenda, such as the Department of Labor’s pro union moves entailing overtime and Davis-Bacon prevailing wage requirements. New rulemakings related to the costly infrastructure bill’s passage have started to materialize in the Spring Agenda, too.

Unless an administration pointedly requires it, Agencies’ regulatory activities are not constrained what they publish in the Agenda. For example, it is not plausible that the Federal Communications Commission does not have proposed and final actions worth highlighting. Sometimes, presentation of more speculative longer-term rules is encouraged, sometimes not. Rules appearing in the Unified Agenda sometimes may linger for years. Biden’s own timelines for certain notable rules can slip, as the American Action Forum has noted. The Agenda was never complete, rock-solid or reliable, which is more concerning given Biden’s unprecedented progressive transformations of government into a regulatory promoter even as disclosure is eroded by him. The SEC, for example, claims to be “driven by two public policy goals: continuing to drive efficiency in our capital markets and modernizing our rules for today’s economy and technologies.” It is instead driven by Biden’s climate and woke agenda, and its urge to regulate cryptocurrencies is well known but downplayed.

Whiplash notwithstanding, let’s look at where things stand. The Spring 2022 Agenda breaks down its cross-section of rules from over 60 federal departments, agencies, and commissions as follows:

• Active Actions: Pre-rule actions, proposed and final rules anticipated or prioritized for the near future;
• Completed Actions: Actions completed during roughly the previous six months; and
• Long-term Actions: Longer-term rulemakings beyond a 12 horizon.

The Spring 2022 Unified Agenda of Regulatory and Deregulatory Actions finds 67 federal agencies, departments, and commissions floating 3,803 rules and regulations at the Active (2673), Completed (556), and Long-term (574) stages. (This compares to 3,777 in Fall 2021 and 3,959 in Biden’s Spring edition a year ago).

Trump overall counts were comparable but with a big difference. His final Fall 2020 pipeline, for example, contained 653 rules designated “Deregulatory” for purposes of his now-defunct “one-in, two-out” Executive Order 13771, for a lower “net.”

A handful of executive branch agencies account for the most of the rules in the pipeline. In the new Spring 2022 Agenda, the Departments of the Interior, Treasury, Transportation, Commerce and Health and Human Services are the most active. These top five, with 1,332 rules among them, account for 35 percent of the 3,803 rules in the pipeline.

In the Spring 2022 Agenda, 407 “Active”-stage rules are appearing for the first time (compared to 495 in the Fall 2021 edition and 610 a year ago). Some of these are spawned by Congress and its Infrastructure Investment and Jobs Act of 2021 (IIJA). Among them are carbon sequestration, scooter and other mobility device use in national parks, and “advanced drunk and impaired driving prevention technology. Notably, though, 76 Completed items are appearing for the first time in Spring 2022, meaning prior iterations were regarded as not worth mentioning. None of these flash-Completed rules were “economically significant” nor “major,” but 10 were deemed “other significant.” Things may get sprung upon the populace from time to time.

Another telling data point is that, while Long-term rules have dropped under Biden (they may have been enacted, or someone may have hit the Mute button on them) fully 38 of them are appearing for the first time (in addition to the 407 Actives noted already) with four qualifying as “economically significant.” That term broadly means that agencies estimate they carry economic effects of at least $100 million; generally an increase, although attempts to reduce costs were more common in the Trump era.

Steps need to be taken to ease consistent analysis of first time rules and the erratic inventory of Long-term ones, since both may obscure as well as reveal trends.

Moving along, of the 3,803 rules in the new Biden Agenda, 294 are economically significant rules at the various stages, compared to 295 last Fall, and 297 a year ago. The breakdown is 36 of them recently completed, 220 active and 38 being prepped for the long term. For comparison, Trump’s final pandemic-afflicted December 2022 Agenda contained 261 economically significant rules, 36 of which were deemed “Deregulatory,” for a “net” of 225.

Along with the costly economically significant subset, over a thousand rules in each edition of the Agenda in recent years have been deemed “other significant,” no matter who’s president. Atop all that, some federal pursuits may not show up in any Unified Agenda, such as recent leaning on the Defense Production Act to demonstrate one’s engagement on supply chain concerns, or actions influenced by procurement, contracting specifications and executive orders.

These point to the need to incorporate the regulatory effects of spending in today’s “build back” era of social regulation in maintaining oversight.

Biden’s regulatory Agendas promised and have delivered on activism. The OMB flip from carrying out Trump’s now-revoked “one-in, two-out” executive order to praising government’s own mandates and boasting over its advancement of progressive causes indicate that OIRA may not be salvageable as an oversight body. This transformation and rise of social custodianship is a major issue with which legislators need to grapple as they address the ongoing abuse of crises like the pandemic.

Tracking the scope of government will increasingly pose a challenge, as a progressive savior mentality cannot be useful in pursuit of regulatory oversight, mitigation, rollback, and sunset of government excess.