On Wednesday, the Office of Information and Regulatory Affairs (OIRA) released its semiannual Unified Agenda of Regulatory and Deregulatory Actions. The Agenda provides summaries of the actions underway at federal regulatory agencies and identifies whether these actions are regulatory or deregulatory. Publication of the Agenda is recognized as a good regulatory practice—providing advanced notice of future regulatory activity to allow for valuable public input and transparency in the rulemaking process. Notably, under the Trump administration, the Agenda also serves as a performance management tool to track agency progress in implementing regulatory reform as directed by Executive Order 13771.
What’s in the Spring 2019 Agenda?
The Spring 2019 Unified Agenda includes a total of 3,791 actions, 295 of which are classified as regulatory, 721 as deregulatory, with the remainder exempt or classified as “other.” Of the total number of actions, 177 are economically significant.[i]
The Agenda distinguishes between active actions (those with milestones within the next 12 months), long-term actions (outside the 12 month window), and completed actions (this includes regulations that are withdrawn or finalized). Of the 2,597 actions listed as active, approximately 22% were published for the first time in this Spring Agenda.
Compared to the Fall 2018 Agenda, the total number of actions increased from 3,534 to 3,791. The number of active rulemakings increased 2,597 compared to 2,399 last fall. Of those, the number of economically significant actions increased slightly from 118 in the Fall 2018 Agenda to 124 in the Spring 2019 Agenda. It is worth noting that of the 124 economically significant actions listed, 24 are deregulatory, 45 are regulatory, and 11 are exempt, with the remainder classified as either “other,” or listed as actions planned by independent regulatory agencies.
Regulatory and Deregulatory Actions by Agency
With regards to actions listed as active in the Agenda, regulatory agencies plan to issue an average of approximately 3 significant deregulatory actions for every 1 regulatory action. The Department of Education (ED) has zero regulatory actions planned—continuing a trend of 0 active, regulatory actions planned since the Fall 2017 Unified Agenda. Interestingly, this is the first time under the Trump administration for which the Agenda lists an active, regulatory action proposed by the Department of the Interior (DOI). The agencies with the most deregulatory actions planned are the Department of Transportation (DOT) with 129 actions and the Department of Health and Human Services (HHS) with 65; these same two agencies have had the most deregulatory actions planned since the Fall 2017 Agenda.
Shift in Active Economically Significant Actions
In the Spring 2019 Agenda, of the 124 active, economically significant actions listed, more actions are classified as regulatory (45) than deregulatory (24).[i] Earlier in the Trump administration, agendas contained more active, economically significant actions that were “deregulatory” than “regulatory,” as shown below. A shift occurred in the Fall 2018 Agenda and continues in the Spring 2019 Agenda.
Gauging the meaningfulness of this shift is challenging. Economically significant rules are expected to have the largest effect on society, compared to other rules. The Agenda provides enough information to count these planned rules but it does not contain information about costs or benefits. It is therefore difficult to estimate the overall expected economic effects of these planned actions in any one Agenda or over time.
Also, the Agenda is a forward-looking document, but the “active” entries include pre-rule actions such as advanced notices of proposed rulemaking, proposed rules, and final rules. As such, the shift described above does not necessarily portend an immediate change in the output of agency final rules. The shift is notable, though, for an administration that touts its deregulatory agenda. OIRA’s next regulatory reform report, which will cover final actions in fiscal year 2019, may shed light on whether the most significant agency actions are increasingly regulatory in comparison to prior years.
[i] The remainder includes 11 that are exempt, those classified as either “other,” and those listed as actions planned by independent regulatory agencies.
[i] According to Executive Order 12866, an “economically significant” regulatory action is one which has “an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.”