The fall 2018 Regulatory Plan and Unified Agenda of Regulatory and Deregulatory Actions just appeared today. Notably, this is the first time the fall edition has arrived on schedule in October since 2005. (Here’s an administration overview of the new edition.)
There’s plenty to analyze, but first let’s use the occasion to look at the Trump administration’s simultaneous status update on the now famous one-in, two-out requirement for regulations initiated in Executive Order 13771. This update is called “Regulatory Reform Results for Fiscal Year 2018.”
Back in fiscal year 2017, the Trump administration claimed success in exceeding its 2-for-1 goals. Detail on what rules came and went is here, but the upshot was the elimination of 67 rules but adding only three (for a 22-to-1 ratio). The fall Unified Agenda at that time revealed a more modest but successful four-to-one ratio, but on the other hand there has been streamlining of guidance documents and independent agency rules that the administration could have taken credit for but didn’t. Next, the spring 2018 Unified Agenda found the administration technically still exceeding the two-for-one directive with a (nearly) six-to-one ratio, with 14 rules in and 80 out. Interim detail on what the rules were is here, but the new “Regulatory Reform Results” updates them, as does the new fall 2018 Agenda itself.
In the new 2018 update, 57 significant deregulatory actions and 14 significant regulatory actions were completed. Comparing significant deregulatory actions to significant regulatory actions, the ratio of significant regulatory actions removed to those added is four to one. Here’s a summary comparing year-end 2017 to the fiscal year 2018.
Significant Regulatory Actions 2017 2018
# Regulatory: 3 14
# Deregulatory: 66 57
Claimed ratio of rules out to rules in: 22 4
If one considers deregulatory actions that do not rise to the “significant” label, the ratio is claimed to be 12-to-one, given that agencies issued 176 deregulatory actions in fiscal year 2018 overall, along with the 14 significant regulatory actions.
The dollar savings from regulatory streamlining also exceeded goals. The bottom line of the 176 deregulatory and 14 regulatory actions is a claimed cost savings of $23 billion in present value, as detailed in “Regulatory Reform under Executive Order 13771: Final Accounting for Fiscal Year 2018.”
We know the generation of new regulations has dropped significantly under Trump. But in terms of rollbacks, it is likely to become harder to pick the “significant regulatory action” fruit over time capable of generating rapid rule and cost rollbacks. Major regulations like the Clean Power Plan and Waters of the United States will entail years of public consultation, writing, and legal challenges, and are not to be found in updates like today’s.
Recall also that Trump’s E.O. 13771 did not apply to non-significant rules (although in the new update and in the modern Unified Agenda, the “deregulatory” among these are nonetheless identified); nor to rules mandated by Congress as opposed to ones driven by agency discretion; nor even to rules from the so-called independent agencies like the Federal Communications Commission or the Bureau of Consumer Financial Protection.
These gaps are one reason a new executive order on agency guidance document disclosure and streamlining would be worthwhile. In fact, Rep. Mark Meadows (R-NC) just wrote to the administration urging an executive order to govern guidance documents as well. It is readily within the power of the president to further disclose, eliminate, better classify, and streamline guidance as well as formal rules; and to hold accountable agencies that abuse guidance.
For now, the question arises over which regulations, specifically, did the Trump administration add, and which did it get rid of.
So here goes: the administration completed the following 14 significant regulatory actions added during fiscal year 2018, broken down by agency (see OMB’s website or the Regulation Identifier Number for particulars).
Regulatory Reform: Completed Significant Regulatory Actions for Fiscal Year 2018
This table excerpts executive branch agency E.O 13771 regulatory actions completed in Fiscal Year 2018. See original at the Office of Management and Budget.
Department of Agriculture (3)
(1) Conditions for Payment of Highly Pathogenic Avian Influenza Indemnity Claims RIN:0579-AE14
(2) Crops, Trees, Bushes, and Vines Assistance for Losses Due to Hurricanes and Wildfires RIN:0560-AI39
(3) Agricultural Trade Promotion Program (ATP) RIN:0551-AA92
Department of Commerce (1)
(4) Designate Critical Habitat for the Hawaiian Insular False Killer Whale Distinct Population Segment RIN:0648-BC45
Department of Health and Human Services (4)
(5) CY 2018 Revisions to Payment Policies Under the Physician Fee Schedule and Other Revisions to Part B; Medicare Shared Savings Program Requirements; Medicare Diabetes Prevention Program (CMS-1676-F) RIN:0938-AT02
(6) Safety and Effectiveness of Healthcare Antiseptics; Topical Antimicrobial Drug Products for Over-the-Counter Human Use RIN:0910-AH40
(7) Proposed 1-Year 6-Month Delay of the General Implementation Date While Allowing the Use of Three Burden-Reducing Provisions During the Delay Period RIN:0937-AA05
(8) Federal Policy for the Protection of Human Subjects: Delay of the Revisions to the Federal Policy for the Protection of Human Subjects RIN:0937-AA06
Department of Housing and Urban Development (1)
(9) Home Equity Conversion Mortgage (HECM) Program—Changes to Appraisal Submission and Assessment for all HECM Originations RIN:2502-ZA17
Department of Transportation (1)
(10) Public Transportation Agency Safety Plans RIN:2132-AB23
Department of Veterans Affairs (1)
(11) Fiduciary Activities RIN:2900-AO53
Environmental Protection Agency (3)
(12) Renewable Fuel Volume Standards for 2018 and Biomass-Based Diesel Volume (BBD) for 2019 RIN:2060-AT04
(13) Mercury; Reporting Requirements for the TSCA Mercury Inventory RIN:2070-AK22
(14) Public Notice Requirements for Combined Sewer Overflow Discharges to the Great Lakes RIN:2040-AF67
Naturally, finalizing these rules required their being offset at least two-to-one to comply with Trump’s directive.
So, in fulfilment, the administration says agencies have eliminated the noted 57 significant regulatory actions (along with another 119 for a total of 176). These 57 deregulatory actions appear next (and, again, see the RIN numbers for details).
Regulatory Reform: Completed Significant Deregulatory Actions Fiscal Year 2018
This table excerpts executive branch agency E.O 13771 deregulatory actions completed in Fiscal Year 2018. See original at the Office of Management and Budget.
Department of Agriculture (3)
- RIN:0579-AC60* National Environmental Policy Act Implementing Procedures
- RIN:0579-AD71* Establishing a Performance Standard for Authorizing the Importation and Interstate Movement of Fruits and Vegetables
- RIN:0580-AB28* Scope of Sections 202(a) and (b) of the Packers and Stockyards Act
Department of Commerce (3)
- RIN:0610-AA69* Revolving Loan Fund Program Changes and General Updates to PWEDA Regulations
- RIN:0693-AB63* Rights to Federally-Funded Inventions and Licensing of Government-Owned Inventions
- RIN:0648-BF82* Omnibus Essential Fish Habitat Amendment 2
Department of Education (5)
- RIN:1840-AD25* Borrower Defense; Delayed Effective Date
- RIN:1840-AD28* Borrower Defense; Delayed Effective Date Until 2019
- RIN:1840-AD39* State Authorization; Delayed Effective Date
- RIN:1820-AB77* Office of Special Education and Rehabilitative Services, Significant Disproportionality Compliance Date–Part B of the Individuals With Disabilities Education Act
- RIN:1901-AB43* Small-Scale Natural Gas Exports
Department of Health and Human Services (18)
- RIN:0970-AC76* Adoption and Foster Care Analysis and Reporting System
- RIN:0938-AQ85* Administrative Simplification: Certification of Compliance for Health Plans
- RIN:0938-AR84* Establishment of Special Payment Provisions and Requirements for Qualified Practitioners and Qualified Suppliers of Prosthetics and Custom-Fabricated Orthotics (CMS-6012-F)
- RIN:0938-AS29* Revisions to Patient’s Rights Conditions for Participation and Conditions for Coverage (CMS-3302-F)
- RIN:0938-AS85* Part B Drug Payment Model (CMS-1670-F)
- RIN:0938-AT01* CY 2018 Home Health Prospective Payment System Rate Update; CY 2019 Case-Mix Adjustment Methodology Refinements; Value-Based Purchasing Model; and Quality Reporting Requirements (CMS-1672-F)
- RIN:0938-AT03* CY 2018 Hospital Outpatient PPS Policy Changes and Payment Rates and Ambulatory Surgical Center Payment System Policy Changes and Payment Rates (CMS-1678-FC)
- RIN:0938-AT08* Policy and Technical Changes to the Medicare Advantage and the Medicare Prescription Drug Benefit Programs for Contract Year 2019 (CMS-4182-F)
- RIN:0938-AT12* CY 2019 Notice of Benefit and Payment Parameters (CMS-9930-F)
- RIN:0938-AT13* CY 2018 Updates to the Quality Payment Program (CMS-5522-FC)
- RIN:0938-AT20* Religious Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act
- RIN:0938-AT24* FY 2019 Prospective Payment System and Consolidated Billing for Skilled Nursing Facilities (SNFs) (CMS-1696-F)
- RIN:0938-AT25* Inpatient Rehabilitation Facility Prospective Payment System for Federal Fiscal Year 2019 (CMS-1688-F)
- RIN:0938-AT27* Hospital Inpatient Prospective Payment System for Acute Care Hospitals and the Long-Term Care Hospital Prospective Payment System and FY 2019 Rates (CMS-1694-F)
- RIN:0938-AT32* FY 2019 Inpatient Psychiatric Facilities Prospective Payment System–Rate and Quality Reporting Updates (CMS-1690-F)
- RIN:0938-AT46* Moral Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act (CMS-9925-F)
- RIN:0938-AT48* Short-Term Limited Duration Insurance (CMS-9924-F)
- RIN:0910-AH92* Food Labeling: Revision of the Nutrition and Supplement Facts Labels and Serving Sizes of Foods
Department of Homeland Security (1)
- RIN:1653-ZA13* Extension of Employment Authorization for Syrian F-1 Nonimmigrant Students Experiencing Severe Economic Hardship as a Direct Result of Civil Unrest in Syria Since March 2011
Department of Housing and Urban Development (1)
- RIN:2502-AJ03* Streamlining FHA SF Mortgage Insurance: Removal of the Inspector Roster (FR-5457)
Department of the Interior (4)
- RIN:1004-AE52* Rescission of the 2015 BLM Hydraulic Fracturing Rule
- RIN:1004-AE53* Waste Prevention, Production Subject to Royalties, and Resource Conservation;
- Revision or Rescission of Certain Requirements
- RIN:1014-AA37* Revisions to Production Safety System Regulations
Department of Justice (3)
- RIN:1190-AA61* Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of Public Accommodations
- RIN:1117-AB42* Implementation of the Provision of the Comprehensive Addiction and Recovery Act of 2016 Relating to the Dispensing of Narcotic Drugs for Opioid Use Disorder
- RIN:1121-AA85* Public Safety Officers’ Benefits Program Regulations
Department of Labor (8)
- RIN:1210-AB39* Delay or Amend Final Rule Amending Claims Procedure Regulation
- RIN:1210-AB85* Definition of an ‘Employer’ Under Section 3(5) of ERISA—Association Health
- RIN:1210-ZA27* 18-Month Extension of Transition Period and Delay of Applicability Dates; Best Interest Contract Exemption; Class Exemption for Principal Transactions; PTE 84-24
- RIN:1205-AB88* Exercise of Time Limited Authority to Increase the Fiscal Year 2018 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program
- RIN:1219-AB87* Examination of Working Places in Metal and Nonmetal Mines
- RIN:1218-AD16* Improve Tracking of Workplace Injuries and Illnesses
- RIN:1218-AD19* Limited Extension of Select Compliance Dates for Occupational Exposure to Beryllium in General Industry
- RIN:1245-AA07* Rescission of Rule Interpreting “Advice” Exemption in Section 203(c) of the Labor-Management Reporting and Disclosure Act
- RIN:1235-AA27* Exemption from Executive Order 13658 for Recreational Services on Federal Lands
Department of Transportation (2)
- RIN:2125-AF76* National Performance Management Measures; Assessing Performance of the Congestion Mitigation and Air Quality Improvement Program
- RIN:2105-AE56* Transparency of Airline Ancillary Service Fees
Department of the Treasury (2)
49. RIN:1505-AC57* Qualified Financial Contracts Recordkeeping Related to Orderly Liquidation
50. RIN:1545-BO20* Inversions and Related Transactions
Department of Veterans Affairs (2)
- RIN:2900-AO73* Net Worth, Asset Transfers, and Income Exclusions for Needs-Based Benefits
- RIN:2900-AQ06* Authority of Health Care Providers to Practice Telehealth
Environmental Protection Agency (4)
- RIN:2050-AG80* Hazardous Waste Management System; User Fees for the Electronic Hazardous Waste Manifest System and Amendments to Manifest Regulations
- RIN:2050-AG83* Non-Hazardous Secondary Materials–Additions to List of Categorical NonWaste Fuels; Other Treated Railroad Ties
- RIN:2050-AG88* Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residues From Electric Utilities: Amendments to the National Minimum Criteria (Phase 1, Part 1)
- RIN:2050-ZA12* Guidance for EPCRA Reporting Requirements for Air Releases of Hazardous Substances from Animal Waste at Farms
The residual 119 deregulatory actions classified as non-significant also appear in the Final Accounting for Fiscal Year 2018. None of these appear to be guidance documents, as they had been in 2017; yet we know some streamlining of these has occurred. That can be addressed later, as noted.
The 2018 update on the two-for-one represents significant progress in regulatory streamlining. But all is administration-driven. As I’ve noted before, when all is said and done, the pro-regulatory impulses of the permanent administrative state cannot be said to have fundamentally changed; agencies like Federal Communications Commission, Environmental Protection Agency, and Bureau of Consumer Financial Protection have made about-faces with the arrival of Trump, but that is likely temporary. Congress (or the states) will need to act for greater cuts to the regulatory hidden tax, although executive orders may have certain permanent effects. New executive orders most likely to have sticking power would be those emphasizing disclosure and reporting, such as the upgrade to theOffice of Management and Budget regulations database that now identifies rules as regulatory or deregulatory.