On December 6, the White House Office of Information and Regulatory Affairs at last released its regulatory blueprint for the coming year, the fall 2023 edition of the Regulatory Plan and Unified Agenda of Federal Regulatory and Deregulatory Actions.
There have been two big changes since the spring Unified Agenda, as explained by Wayne Crews, Fred L. Smith Fellow in Regulatory Studies:
First, the new Unified Agenda is missing a reference to “economically significant” regulations that cost $100 million or more. That’s because the Biden administration’s “Modernizing Regulatory Review” executive order eliminated that category – and the extra scrutiny it once triggered from the Office of Management and Budget. Instead, the administration doubled the threshold to $200 million and renamed it the bureaucratic-sounding “Section 3(f)(1) significant.” In short, the Unified Agenda now captures a smaller number of higher cost rules.
The only saving grace is that the administration is still required by law to report on rules with the 100-million-dollar threshold. Congress should now focus on rules labeled “major” to identify high-cost rules to eliminate via Congressional Review Act “Resolution of Disapproval” votes.
The second significant change since the spring edition is OMB’s finalization of so-called “Circular A4” guidance on regulatory analysis. For this and future Agendas, the big policy change will be a shift away from the watchdog role of OMB. Instead of strict supervision and cost-benefit analysis of regulations, OMB is tasked with collaborating with agencies – mainly to carry out controversial progressive goals this administration regards as net beneficial. In short, this fall 2023 Agenda marks a shift from the OMB as a watchdog to a potential co-conspirator in over-regulation, leaving us with no one supervising the regulators.
The only objectively good news, however temporary, is that the Biden administration has not raised the total flow* of rules, perhaps a mere pause due to an imminent election year. But even this modest gain is undermined by a sizable bump in rules planned for the long-term since the release of the spring edition of the Unified Agenda from 582 to 644.
*The overall count of rules at the pre-rule, proposed, final, completed, and long-term phases.