Inventories of Federal Agency Major Rules and Regulations Poised to Rise

Federal government reports and databases on regulations serve different purposes:

• The Federal Register details anddepicts the aggregate number of proposed and final rules—both those that affect the private sector and those that deal with internal government procedures or programs—and numerous notices and presidential documents.
• The Unified Agenda presents agency regulatory priorities and provides detail about the number of rules at various stages in the regulatory pipeline, rules with economically significant effects, and rules affecting small businesses and state and local governments.

The 1996 Congressional Review Act (CRA) is one of the laws intended to increase accountability for rulemaking. It requires agencies to submit rules to both houses of Congress and to the Government Accountability Office (GAO), and for the GAO to submit reports to Congress on the major ones—those with annual estimated costs of $100 million or more (see the FAQs).

Owing to such formalized “Reports on Major Rules,” which are prepared and maintained by GAO in an online database, one can more readily observe (a) which of the thousands of final rules that agencies issue each year are major (to the extent the directive and the CRA as such is obeyed) and (b) which departments and agencies are producing the major rules.

However, some final rules are not being properly submitted to the GAO and to Congress as required under the CRA, as demonstrated in 2014 and more recently in 2022 during the Biden administration.Major rules can add burdens, reduce them, delay their implementation, or set rates and standards for major government programs like Medicaid. Major guidance documents are likewise subject to CRA, but are rarely presented to GAO or to Congress.

The CRA provides Congress a window of 60 legislative days in which to review a received rule and pass a resolution of disapproval to repeal the rule. Despite the issuance of thousands of rules since the CRA’s passage, including dozens of major rules, before 2017 only one had been rejected (a Department of Labor rule on workplace repetitive-motion injuries in 2001). As of today, as noted earlier, a grand total of just 20 have been overturned via CRA resolution, despite the issuance of thousands of rules annually.  

For all rules, the GAO database at the moment contains 87,014 rules through December 31, 2022. By contrast, the Federal Register and a National Archives repository indicate that there were 99,429 rules issued since the CRA’s passage through 2022.As for the heftier subset, the GAO database at the moment contains 1,784 reports on major rules overall through year-end 2022.

With the caveat that there the GAO database may not yet include all relevant rules from 2022, 76 major rules appear in the database for 2022 as of this writing. Thats is likely to change since, for example, the tally of 98 recorded for 2021 in my most recent edition of Ten Thousand Commandments has now increased in the current survey to 129. Both of these counts are significant drop from the 140 seen in 2020, which is the highest count apart from 2016 durin the Obama administration since the GAO began these CRA-required tabulations. Suffice it to say that there are several dozen GAO “reports” on major rules each year, and reporting on all aspects of rulemaking can improve. The GAO counts are presented for context and completeness, despite fluctuation, to compare them with other metrics such as the major rule and “economically significant” tallies found in the twice-yearly Unified Agenda, as well as “significant” rules in the Federal Register.

There are several categories of significant rules, with a bewildering nomenclature placing regulations into categories encompassing such terms as rules, significant rules, major rules, economically significant rules, guidance, and more. For example, an economically significant rule is major, but a major rule is not necessarily economically significant, so there are (or should be) fewer economically significant rules than major ones. Both economically significant and major rules qualify as significant.The table below depicts numbers of each category over the past seven years (counts do fluctuate slightly as discussed; these are sometimes captured in prior years’ editions of my Ten Thousand Commandments report.).

Compilations of Significant Rules and Their Subsets

                                           Completed          GAO Reports     Major

Economically     on Majors**       per Unified              Significant****

                                           Significant*                                     Agenda***

2016      Obama                83                         105                       96                        486

2017      Trump                 88                         71                         102                      224

2018      Trump                 35                         54                         43                        201

2019      Trump                 70                         78                         84                        261

              2020      Trump                 97                         140                       133                      463

              2021      Biden                   105                       129                       124                      386

              2022      Biden                   89                         76                        103                      265

* From Unified Agenda by (loosely) “fiscal” year; see Figure 21’s completed economically significant rules.

** From Government Accountability Office database by calendar year; see Table 9.

*** From Unified Agenda, spring and fall editions’ Completed major rules.

**** From Federal Register.gov “Advanced Search” of “significant” final rules; these are tracked weekly at www.tenthousandcommandments.com; These annual totals fluctuate in the database periodically

Note that some economically significant rule counts from the Unified Agenda are larger than the GAO’s count of major or significant rules in some instances. There may be different explanations, such as:

• Calendar and fiscal years do not align.
• Rules are not being reported to the GAO but are being noted at the Office of Management and Budget.
• Independent agency rules may appear under different categorizations in various databases.
• Budget and transfer rules are reported differently.

Legislation or an executive order to systematize nomenclature could help bring greater clarity, reconcile recordkeeping across various government databases, and subject independent agencies to greater oversight by Congress and the public.

With respect to recent presidents and their major rules, President Barack Obama issued 675 major rules during his term, compared with President George W. Bush’s 492—both over eight years. (The emphasis here is calendar years, so Bush’s eight years contain the final weeks of President Bill Clinton’s presidency, before Bush’s inauguration; Obama’s first year includes the Bush administration’s final weeks.) President Bush averaged 61 major rules annually during his eight years in office. President Obama averaged 84. Trump issued an average of almost 86 major rules annually, some of which were deregulatory.

President Joe Biden’s preliminary major rule total is 205, for a 102 average that is higher than his predecessors. Given the Biden “whole-of-government” approach to implementing significant portions of his agenda, the trajectory of major rules over the coming years will merit close scrutiny.