Federal Agency “Significant” Rulemakings Return to Bush-Obama Heights

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While agencies are on track to issue about the same number of rules as they did last year, the number of “significant” rules among them (as defined by loosely governing Executive Order 12866) is already back to Bush and Obama levels, even with two months left to go in the year. Halloween may be over but Tyrannosaurus Regs is back and hungry.

Soon the Unified Agenda of Federal Regulations is expected to appear, and that will give us a closer look at the Biden aministration’s major and economically significant rules added on since we analyzed the Spring 2021 edition. Administrations and administrators have presented regulatory priorities in the Agenda for decades (deregulatory too, but rarely).

In the meantime, it has become apparent that significant rules, which are once again easily trackable in the daily Federal Register since delays in the database reporting ended back in August, are returning.

Below is a chart. The year 2020 during the Trump administration closed out at 3,353 final rules, with 79 of them “significant.” (Significant rules appear at the bottom of each bar-column.) The highest number of significant rules under Trump was 214 in 2017. Some of those issued prior to his inauguration.

During each of Trump’s years, significant and non-significant rules were eliminated per his Executive Order 13,771, requiring two rules out for each significant rule added, with noteworthy if not permanent or marked results. So, Trump’s tallies include moves intended to be deregulatory. Biden eliminated this measure, along with several others, including agency guidance document portals initiated under Trump. Biden even eliminated the “Deregulatory” designation for agency rules (highly symbolically in my opinion).

By contrast, Biden so far has issued 2,695 rules, which would put his tally fairly close to where Trump’s ended up if the pace stays about the same. Looking back, one can see that first years of new administrations show a dip in rules issued. That might be partly explained by presidents commonly freezing their predecessors’ rules to review or modify them. Overall rule counts so far are not high historically—yet.

Note, however, that Biden’s significant rule count is 345 (bottom of the 2021 bar), way above Trump’s 79. Biden appears to have no interest in deregulation, which he has described as “harmful.” As the chart shows, the last time significant rules were substantially higher than Biden’s 345 (and remember, there are two months yet to go this year) was 2016, when Obama would have been servicing the standard “midnight rule” surge impulse that affects outgoing administrations.

Biden’s significant rule count already surpasses some of Obama’s years, and could overtake 2008, which was George W. Bush’s final year and happens to represent the second highest tally in this interval.

Many of the regulatory oversight and management mechanisms have been done away with or are disregarded. The Unified Agenda will give us the next fairly detailed look at regulatory goings on, but the evident return of significant rules to pre-Trump levels bears watching.