Congress Should Confront Significant Rules And Regulations Obscured By “Bidenomics”

This past week, the number of rules and regulations in the 2023 Federal Register crossed the 2,000 mark. At 59,438 pages today, the tally will top 60,000 before September arrives.

As Congress prepares to head back to town, this is an appropriate moment to reflect upon the heftiness of and burdens imposed by the rules contained within the Federal Register’s deep and hidden corners.

Up until Joe Biden’s April Executive Order 14,094 on “Modernizing Regulatory Review,” rules with $100 million in annual effects were deemed “economically significant.” Now, however, that term has now been dropped by the Office of Management and Budget, A threshold of $200 million is now required for a rule to be deemed “Section 3(f)(1) significant,” referencing a clause in the Clinton-era regulatory-review directive that Biden sees himself as upgrading.

Less-costly rules that raise inconsistencies across agencies, “materially alter” federal programs’ budgetary effects, or that raise novel legal or policy issues can still be designated “significant regulatory actions” in the Federal Register. But towering over all that is the central fact that actions costing up to $200 million are no longer automatically considered significant ones.

Adding to this concern is that revisions underway to OMB (“Circular A-4) regulatory review guidelines render it likely that more rules normal citizens would regard as significant will no longer be recognized as such, garner less oversight, and remain obscured among the thousands issued annually.

A foothold here for congressional overseers may be that “major rules” are still defined by a legislative threshold of $100 million rooted in the Congressional Review Act (CRA). Granted, action taken under the CRA’s auspices are another matter, but the tool is undeniably there. For present purposes, as the Federal Register search database does not readily isolate “major” rules (one must suffer to find them), further analysis of the sub-$200 million population must await the Fall 2023 Unified Agenda of federal regulatory and deregulatory actions.

An August 9 Food and Drug Administration rule on “Revocation of Uses of Partially Hydrogenated Oils in Foods” is an example of a decree that does not rise to the new $200 million “Section 3(f)(1) significance,” but is, however, deemed “likely to result in an annual effect on the economy of $100 million or more or meets other criteria specified in the Congressional Review Act/Small Business Regulatory Enforcement Fairness Act” and is therefore “major.” As events unfold, Congress can insist upon reinforcing, boosting and systematizing such disclosures.

As an additional impediment to non-suspect disclosure, the tenor seems to be one of officialdom changing and co-opting vocabulary such that “significant” increasingly refers, not to alerting the public to costliness, but to beneficial effects as defined by the progressive left. For example, in a rule on ” National Emission Standards for Hazardous Air Pollutants: Integrated Iron and Steel Manufacturing Facilities Technology Review, we are advised that “The proposed rule is significant under E.O. 12866 Section 3(f)(1), as amended by E.O. 14094 due to the monetized benefits of fine particulate matter.” If that continues, “significant” rules will proliferate, and all the while progressive adminstrations proclaim the predominance of “net benefits.”

In any event, let’s look at where we are at the moment; last year (2022), the 80,756 pages in the Federal Register yielded 3,168 rules, 265 of them “significant,” as seen below.

As of today (August 28, 2023), there have been 2,019 final rules and regulations published in the Federal Register, of which 179 have been dubbed significant. By straight linear projection, that would put us at around 3,092 total and 274 significant rules by year-end. Biden’s rule counts exceed Trump’s “net” counts (don’t forget “one-in, two-out”), but have not uniformly reattained pre-Trump heights (especially were one to look back into the 1990s, which are not depicted in the chart). This is less cause for celebration at this juncture than cause for concern that less disclosure and scrutiny of one-time significant rules is now official standard procedure, just as rule counts were ticking back upward.

As distinct from final rules, the population of proposed rules in the pipeline stands well below them, at “only” 1,412. However there are 244 acknowledged significant proposed rules in the works, a flow that will easily exceed the total of 267 seen last year. These do remain well below pre-Trump levels.

In both charts, despite the relief of not reattaining Obama/Bush levels, the one-time “economically significant” subset garnering extra scrutiny above and beyond the merely “significant” will decline. Regarding the aforementioned “foothold” for concerned policymakers, it would be helpful for the Federal Register to fill OMB’s gap by reporting on rules meeting the $100 million CRA threshold—perhaps with encouragment from Congress.

As policymakers take the necessary steps to zoom in on the regulatory enterprise, rule counts may become increasingly less definitive. One reason is a possible trend in larger but fewer rules that the tallies may in part reflect. Another is that sub-regulatory guidance documents and other pen-and-phone decrees can ascend in prominence and displace “normal” regulation.

Perhaps more than ever under Biden, the federal government is preoccupied with consolidation of power in the form of economic interventions in energy, technology and more, reinforced with hundreds of billions in contracting and procurement and rulemaking, The accompanying top-down displacement of the private economy can make normal rule-writing increasingly unnecessary. In a $6 trillion federal enterprise, spending alone constitutes regulatory hyper-intervention, with federal “investments” steering the economic ship and fostering obscene “partnerships” with business, imposing unnatural and profane fusions with what ought to have instead been a thriving private sector.

All of it must be audited. Alongside heighted attention to rule-by-guidance displacing “normal” regulation, Congress should closely monitor the trajectory of allegedly non-significant as well as significant regulatory issue, particularly given the extraordinary legislative interventions undertaken during Covid and in its aftermath, and given Biden’s own self-announced “whole-of-government” ambitions that, to put it mildly, do not prioritize deregulation.

As these recent legislative enactments and their accompanying “Bidenomics” escapades percolate throughout the federal administrative apparatus, the levelheaded acknowledgment of “significance” of regulation of any kind becomes more urgent. Increasingly, owing to the transformations of traditional regulatory review into cheerleading led by the would-be watchdogs of OMB, these unwholesome pursuits are likely to be deemed “net-beneficial” rather than inherently costly. Congress needs to block these changes.

If honesty in government prevails, Biden-era ambitions should propel observed proposed rules well above pre-Trump heights in due course. But federal expansion need no longer necessarily be reflected in above-board rulemakings; if honesty doesn’t prevail, government can grow by means of more obscure guidance, memoranda and directives of various sorts, as well as spending alone.

If they fail to put a brake on transformations now underway, policymakers will increasingly have their hands full in monitoring both a more slippery environment of significant rules, as well as the guidance document proliferation that may take their place. Putting on the brakes is the easier, and the correct, task.