Regulations Trump Administration Has Eliminated So Far in 2019

Red Tape - ThinkstockPhotos-535352001

The Trump administration promised to roll back red tape. So how goes 2019? The 2019 Spring Unified Agenda of Deregulatory and Regulatory Actions released by the White House Office of Management and Budget gives some idea.

It’s easier to stop producing red tape than to roll back what’s there already.

The flow of federal regulations issued is down, with “only” 1,098 rules and regs issued nearly halfway into 2019. For context, the yearly count has surpassed 3,000, sometimes more than double that, since records started being kept in the 1970s. Hundreds are Federal Aviation Administration airworthiness directives and U.S. Coast Guard rules; these matter, too, but aren’t generally what rile people.

But how about getting rid of rules and regulations already in place?

Trump’s notorious Executive Order 13771 requires executive branch agencies to eliminate two regulations for every significant one added, and to cap costs. This order does not apply to non-significant rules or to rules mandated by Congress. Nor does it apply to rules from independent agencies like the Federal Communications Commission or the Consumer Financial Protection Bureau.

With much fanfare, the administration boasted of besting one-in, two-out at the end of Trump’s first and second years. Some critics maintain that the cuts are heavily concentrated in departments like Health and Human Services, and that many actions do not count as major rollbacks.

Moreover, the Trump administration’s pro-regulatory inclinations are undermining the effort, seen most recently in the decision of the Department of Justice and the Federal Trade Commission to launch antitrust investigations into America’s most successful tech firms. Trump also sends conflicting signals with odd calls for corporate boycotts that could swamp tallied savings.

With such caveats in mind, roughly half-way to the end of year three, the 2019 Spring Unified Agenda finds the administration still (in a technical sense) exceeding the two-for-one directive for so-called “significant” rules, with 33 significant deregulatory actions and 15 significant regulatory actions having been completed since the last appraisal.

We can tell this thanks to a reporting changes whereby “Deregulatory” rules are separated from “Regulatory” ones in a new “E.O. 13771 Designation” label in Office of Management and Budget’s database. The 2019 elements are summarized next along with a lookback and “grand total” for the Trump administration so far.

 Completed Deregulatory vs Regulatory Rules, and “D-to-R” Ratios

(Combined “economically significant” + “other significant” categories)

Unified Agenda         Deregulatory             Regulatory     Ratio

Edition:                      Entries:                      Entries:          (In/Out):

Fall 2017                     22                                13                    1.7 to 1

Spring 2018                28                                  9                    3.1 to 1

Fall 2018                     35                                  9                    3.9 to 1

Spring 2019                33                                15                    2.2 to 1

GRAND TOTAL      118                             46                    2.6 to 1 to date

There were other deregulatory rules deemed non-significant: 107 of them, compared to 17 regulatory. These would improve the ratio if incorporated here, but it is helpful to know for sure that heftier new rules are being adequately offset by heftier old rules to comply with Trump’s Executive Order 13771.

Significant deregulatory actions like the Federal Communications Commission’s work-in-process elimination of the Obama-era net neutrality rule, despite independent agencies’ exemption from the executive order would improve the results, too. Also, the fact that some guidance documents not tracked in the Unified Agenda have been revoked would also improve results.

Ominously, though, the pro-regulatory disposition of the administrative state has not changed under Trump. Agencies like the Federal Communications Commission, Environmental Protection Agency and Consumer Financial Protection Bureau have merely executed reluctant and temporary about-faces under Trump. Congress (or the states) will need to act for greater cuts to the regulatory hidden tax, although further executive orders should be issued that have permanent effects on disclosure and reporting on rules and guidance.

In the Fall, a new Unified Agenda will be issued and we can take the temperature again, and we will have a better handle on Trump’s regulatory impulses that (and I cannot overstate the seriousness of this) are undermining the stated liberalization agenda.

For now, the question arises over which regulations, specifically, did the Trump administration add, and which did it get rid of or reduce this year. Finalizing these four “economically significant” and eleven “other significant rules” required their being offset at least two-to-one. 

Below, please find the list of Trump’s 15 completed regulatory actions, and the 33 completed regulatory eliminations, reductions, or relaxations, as I have compiled them from the Spring 2019 Unified Agenda. These are presented without value judgments on merits or demerits.

Spring 2019 Unified Agenda: Completed Regulatory Actions

This table excerpts executive branch agency E.O 13771 “significant” and “economically significant” Regulatory and Deregulatory actions.  

(8-character Regulatory Identification Number at end of each entry)

DEREGULATORY, Economically Significant (7)

Health and Human Services

  1. Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption, Extension of Compliance Dates for Subpart E, 0910-AH93
  2. CY 2019 Home Health Prospective Payment System Rate Update and CY 2020 Case-Mix Adjustment Methodology Refinements; Value-Based Purchasing Model; Quality Reporting Requirements (CMS-1689-FC), 0938-AT29
  3. CY 2019 Hospital Outpatient PPS Policy Changes and Payment Rates and Ambulatory Surgical Center Payment System Policy Changes and Payment Rates (CMS-1695-FC), 0938-AT30
  4. CY 2019 Revisions to Payment Policies Under the Physician Fee Schedule and Other Revisions to Medicare Part B and the Quality Payment Program (CMS-1693-F), 0938-AT31
  5. Medicare Shared Savings Program; Accountable Care Organizations (CMS-1701-F2), 0938-AT45

Department of Transportation

  1. Passenger Equipment Safety Standards Amendments, 2130-AC46

Department of Veterans Affairs

  1. VA Claims and Appeals Modernization, 2900-AQ26

DEREGULATORY, Other Significant (26)

Department of Agriculture

  1. Scrapie in Sheep and Goats, 0579-AC92
  2. Child Nutrition Programs: Flexibilities for Milk, Whole Grains, and Sodium Requirements, 0584-AE53
  3. SNAP: Eligibility, Certification and Employment and Training Provisions of the Food, Conservation and Energy Act of 2008, 0584-AE54

Department of Defense

  1. Submission of Summary Subcontract Report (DFARS Case 2017-D005), 0750-AJ42

Department of Energy

  1. Price Competitive Sale of Strategic Petroleum Reserve Petroleum; Standard, 1901-AB29
  2. Energy Conservation Standards: External Power Supplies, 1904-AE23

Health and Human Services

  1. Laser Products; Amendment to Performance Standard, 0910-AF87
  2. Medicaid, Revisions to State Medicaid Fraud Control Unit Rules, 0936-AA07
  3. Moral Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act (CMS-9925-F), 0938-AT46
  4. Religious Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act (CMS-9940-F2), 0938-AT54
  5. HIPAA Privacy Rule: Presumption of Good Faith of Health Care Providers, 0945-AA09

Department of Homeland Security

  1. Marine Transportation–Related Facility Response Plans for Hazardous Substances, 1625-AA12
  2. Tank Vessel Response Plans for Hazardous Substances, 1625-AA13

Department of Housing and Urban Development

  1. Streamlining Warranty Requirements for FHA Single Family Mortgage Insurance: Removal of the Ten-Year Protection Plan Requirements (FR-6029), 2502-AJ40
  2. Exemption of Recreational Vehicles From Manufactured Home Construction and Safety Standards and Procedural and Enforcement Regulations (FR-5877), 2502-AJ33
  3. Streamlining HUD’s Consolidated Planning Process (FR-6058), 2506-AC44

Department of Labor

  1. Religious Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act, 1210-AB83
  2. Moral Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act, 1210-AB84
  3. Crane Operator Qualification in Construction, 1218-AC96
  4. Tracking of Workplace Injuries and Illnesses, 1218-AD17

Department of Transportation

  1. Prohibition Against Certain Flights Within the Territory and Airspace of Afghanistan               , 2120-AJ69
  2. Pipeline Safety: Issues Related to the Use of Plastic Pipe in Gas Pipeline Industry, 2137-AE93

Environmental Protection Agency

  1. National Pollutant Discharge Elimination System (NPDES): Applications and Program Updates Rule, 2040-AF25
  2. Management Standards for Hazardous Waste Pharmaceuticals; 2050-AG39

Federal Acquisition Regulation

  1. Federal Acquisition Regulation (FAR); FAR Case 2017-009, Special Emergency Procurement Authority, 9000-AN45

Small Business Administration

  1. Small Business Innovation Research Program and Small Business Technology Transfer Program Policy Directive, 3245-AG64

REGULATORY, Economically Significant (4)

Health and Human Services

  1. CY 2019 Changes to the End-Stage Renal Disease (ESRD) Prospective Payment System, Quality Incentive Program, Durable Medical Equipment, Prosthetics, Orthotics, and Supplies (DMEPOS) (CMS-1691-F), 0938-AT28

Department of Justice/Bureau of Alcohol, Tobacco and Firearms

  1. Bump-Stock-Type Devices, 1140-AA52

Department of the Treasury

  1. Guidance Under Section 199A (Anti-Abuse), 1545-BO69
  2. Guidance Under Section 199A, 1545-BO71

REGULATORY, Other Significant (11)

Department of Commerce

  1. Billfish Conservation Act of 2012 Implementation, 0648-BC86

Department of Defense

  1. Use of the Government Property Clause (DFARS Case 2015-D035), 0750-AJ11

Department of Health and Human Services

  1. Prior Authorization Process as a Condition of Medicare Payment for Services Provided by Certain Chiropractors (CMS-6070-P), 0938-AS68

Department of Transportation

  1. Mandatory Event Data Recorder Requirements, 2127-AK86
  2. Hazardous Materials: Oil Spill Response Plans and Information Sharing for High-Hazard Flammable Trains (FAST Act),         2137-AF08

Department of the Treasury

  1. Guidance Under Section 199A for Cooperatives, 1545-BO70
  2. Guidance Under Section 163(j) Applicable to Pass-Through Entities, 1545-BO76

Environmental Protection Agency

  1. Renewable Fuel Volume Standards for 2019 and Biomass-Based Diesel Volume (BBD) for 2020, 2060-AT93
  2. Methylene Chloride; Regulation of Paint and Coating Removal for Consumer Use Under TSCA Section 6(a), 2070-AK07
  3. Service Fees for the Administration of the Toxic Substances Control Act, 2070-AK27

Federal Acquisition Regulation

  1. FAR Case 2015-017; Combating Trafficking in Persons–Definition of “Recruitment Fees”, 9000-AN0