Obama White House Releases Its Final Regulatory Agenda

The White House has published the Fall 2016 Unified Agenda of Federal Regulatory and Deregulatory Actions.

It’s appearing the weekend before Thanksgiving — yet again. It’s the last one we’ll get from the Obama Administration; the next should be Donald Trump’s Spring 2017 Edition, in April, if it gets back on schedule.

The Agenda is a cross-sectional snapshot of rules and regulations at various stages flowing through the federal regulatory pipeline. It is meant to reveal agency priorities, to provide the regulated public some sense of what Washington departments and agencies have just completed, or have in the works.

Bureaucracies like the Department of Labor, the Environmental Protection Agency, the Food and Drug Administration and the Federal Communications Commission air their regulatory plans and doings at several stages:

  • Prerule actions
  • Proposed and final rules
  • Actions completed during the previous few months
  • Anticipated longer-term rulemakings beyond a 12-month horizon

The Fall 2016 Agenda reports on 3,320 rules and regulations at the “active,” “completed” and “long-term” stages, many of them holdovers from earlier volumes. (There were 3,301 last year, 3,419 the year before.)

Active (these include pre-rule, proposed and final): 2,095 (2,246 last year, 2,324 the year before)

Completed: 667 (555 in 2015, 629 in 2014)

Long-term: 558 (500 in 2015, 466 in 2014)

TOTAL: 3,320 (As noted, 3,301 in 2015, and 3,419 in 2014)

Between 1983 and 2011, the Agenda appeared on a regular schedule every spring and fall, usually April and October But recent releases seem timed to draw as little attention as possible, appearing often at holiday weekends, such as this year’s appearing the Thursday before Thanksgiving. Here are some notables:

Fall 2012: The Friday before Christmas (that Monday was Christmas Eve)

Fall 2013: The day before Thanksgiving

Fall 2014: The Friday before Thanksgiving

Fall 2015: The Friday before Thanksgiving

Interestingly, the “spring” 2013 edition appeared in summer the day before July 4th, while no spring 2012 edition appeared at all.

Of the Unified Agenda’s 3,000-plus rules in the pipeline, there is a costly subset that agencies deem “economically significant.” Agencies project these to have economic effects of at least $100 million annually (usually costs, but sometimes savings).

Within the Agenda’s 3,000-plus rules, the volume of more costly rules completed over the past several years has seen an uptick.

The Fall 2016 Agenda reports on 193 “economically significant” rules and regulations at the “active,” “completed” and “long-term” stages. This is down from 218 in 2015, and 200 in 2014, but historically still quite high. Here’s the breakdown.

Active (pre-rule, proposed, final): 113 (149 in 2015, 131 in 2014)

Completed: 47 (36 in 2015, 31 in 2014)

Long-term: 33 (33 in 2015, 38 in 2014)

TOTAL: 193 (218 in 2015, 200 in 2014)

Economically significant rules and regulations in the pipeline went down in the active category, stayed flat in long-term and increased in “completed.” There had been 36 completed in the Spring Agenda, and the 81 total is the highest of any Obama year.

Over-regulation is bipartisan, but the annual flow of larger-scale rules has been considerably higher under Obama than it was under President George W. Bush, as well as the number of completed ones. (See Figures 19 and 20 in the report Ten Thousand Commandments).

Here’s another way of reckoning with the big picture of economically significant regulations. Compiling the “completed” component from Spring and Fall Agendas, as of fall 2016:

  • Bush’s entire eight years brought 390 completed economically significant rules.
  • Obama’s eight years so far have brought 551 completed economically significant rules (recognizing that Obama’s first spring Agenda may have retained some Bush-era priorities).
  • Bush averaged 49 annually economically completed rules annually; Obama’s average is 69.

Meanwhile, annual Federal Register page counts stand at record levels; this daily compendium just hit 83,106 pages today, topping all previous year-end records, with still over a month to go in 2016. The number of overall final regulations remains well over 3,000 annually, accumulating but never being rolled back.

As the Federal Register has long ominously noted about the Unified Agenda,

"The Regulatory Plan and the Unified Agenda do not create a legal obligation on agencies to adhere to schedules in this publication or to confine their regulatory activities to those regulations that appear within it."

So there can be plenty more to the regulatory picture than was the Agenda reveals.

Further, given President Barack Obama’s practice of going around Congress to regulate via the “pen and phone,” increasing amounts of “regulatory dark matter” happens off the books, circumventing the ordinary regulatory “notice and comment” channels established by the Administrative Procedure Act.

Given the signal of yesterday’s House passage of the Midnight Rule Relief Act, the 115th Congress and a Trump administration are likely to keep a closer eye on the bureaucracy. The opportunity now presents itself for the new president to roll back many of the executive actions that have taken place, and to work with Congress to address regulation and reduce it rather than expand it.

There’s an “Agenda” for that.

Originally posted to Forbes