The Trump Administration and the Unified Agenda of Federal Regulatory and Deregulatory Actions
Released: 2017-11-29T00:00:00

Introduction

Donald J. Trump promised that if elected President, he would instruct federal agencies to reduce their regulations significantly. Because of certain federal rulemaking requirements, agencies must generally undertake rulemaking procedures when they are issuing new regulations and when they are changing or eliminating regulations. In other words, a change to or elimination of a regulation that was previously issued generally has to go through a rulemaking process—the President or his agency heads cannot unilaterally change or eliminate regulations without following rulemaking procedures. Such a rulemaking process typically requires the agency to issue a proposed rule, provide an opportunity for the public to provide comment, and then issue a final rule. During the first year of the Trump Administration, this deregulation was underway in agencies across the federal government.

One way for Congress and the public to be informed about this deregulatory activity is to consult the "Unified Agenda of Federal Regulatory and Deregulatory Actions" (hereinafter Unified Agenda). The Unified Agenda is a government-wide publication of rulemaking actions that agencies expect to take in the coming months, and it contains both regulatory actions (i.e., new regulations) and deregulatory actions (i.e., reductions in or elimination of current regulations).

The Trump Administration's first edition of the Unified Agenda, which was issued on July 20, 2017, and was referred to by the Administration as the "Update to the 2017 Unified Agenda of Federal Regulatory and Deregulatory Actions," contains information on many deregulatory actions that the Trump Administration has undertaken so far and intends to undertake in the coming months. The subsequent edition is expected to be issued in late 2017 and may contain more detailed information on the implementation of the Trump Administration's regulatory budget, which was announced on September 7, 2017, in addition to serving as an update on the deregulatory actions occurring across federal agencies.

This report provides an overview of the Unified Agenda, discusses the additional significance of the Unified Agenda in the Trump Administration, provides summary information about the first edition of the Unified Agenda released by the Trump Administration, and discusses what additional information can be expected in the subsequent edition of the Agenda.

Overview of the Unified Agenda

The Unified Agenda is typically published twice each year by the Regulatory Information Service Center (RISC), a component of the General Services Administration (GSA), for the Office of Management and Budget's (OMB's) Office of Information and Regulatory Affairs (OIRA). OIRA is the entity within OMB that has primary oversight responsibilities over most agencies' rulemaking activities.

Authorities for the Unified Agenda

The Unified Agenda helps agencies fulfill two transparency requirements. First, Section 602 of the Regulatory Flexibility Act (RFA) requires that all agencies publish semiannual regulatory agendas in the Federal Register describing regulatory actions that they are developing that may have a significant economic impact on a substantial number of small entities. The RFA also requires that agencies "endeavor to provide notice" of the regulatory agendas to small entities and "invite comments upon each subject area on the agenda."

Second, Section 4 of Executive Order 12866 on "Regulatory Planning and Review" requires that all agencies, including independent regulatory agencies, "prepare an agenda of all regulations under development or review." The stated purposes of this and other planning requirements in the order are, among other things, to "maximize consultation and the resolution of potential conflicts at an early stage" and to "involve the public and its State, local, and tribal officials in regulatory planning." The executive order also requires that each agency prepare, as part of the fall edition of the Unified Agenda, a "regulatory plan" of the most important significant regulatory actions that the agency reasonably expects to issue in proposed or final form during the upcoming fiscal year.

Neither of these requirements contains a penalty for issuing a proposed or final rule without having first provided notice of the rule in the Unified Agenda, and some prospective regulatory actions listed in the Unified Agenda are never finalized.

Contents of the Unified Agenda

The Unified Agenda lists upcoming activities, by agency, in four separate categories:

1. "active" actions, including rules in the prerule stage (e.g., advance notices of proposed rulemaking or other preliminary regulatory actions that are expected to be taken in the next 12 months); proposed rule stage (i.e., notices of proposed rulemaking that are expected to be issued in the next 12 months, or for which the closing date of the comment period is the next step); and final rule stage (i.e., final rules or other final actions that are expected to be taken in the next 12 months); 2. "completed" actions (i.e., final rules that have been promulgated or rules that have been withdrawn from the Unified Agenda since the Fall 2016 edition because agencies are no longer actively working on them); 3. "long-term" actions (i.e., items under development that agencies do not expect to take action on in the next 12 months); and 4. "inactive" actions, a category of rules that was created during the Obama Administration and was not visible to the public.

All entries in the first three categories listed above have uniform data elements that are searchable in a database. The searchable data elements typically include the department and/or agency issuing the rule, the title of the rule, the Regulation Identifier Number (RIN), an abstract of the action being taken, and a timetable of past actions and a projected date (sometimes just the projected month and year) for the next regulatory action. Each entry also indicates the priority of the regulation (e.g., whether it is considered "economically significant" under Executive Order 12866, or whether it is considered a "major" rule under the Congressional Review Act), and other characteristics that agencies are required to identify when issuing regulations (e.g., whether the rule has federalism implications or international impacts).

At present, the Unified Agenda does not have a data element to separate deregulatory actions from regulatory actions. In many cases, the abstract states or implies whether the action is deregulatory in nature. In part, the lack of such a data element may be because agencies are reviewing previous regulatory actions and are not yet clear whether a deregulatory action will follow. According to OIRA Administrator Neomi Rao, the forthcoming editions of the Unified Agenda may have a different classification system, allowing agencies to indicate which items are regulatory and which are deregulatory.

As will be discussed later in this report, future editions of the Unified Agenda may also include information about agencies' compliance with and implementation of the Trump Administration's regulatory budget, which OIRA announced in September 2017.

Significance of the Unified Agenda in the Trump Administration

Developments in the Trump Administration have led to two notable aspects of the "Update" edition of the Unified Agenda, which was issued on July 20, 2017. First, the focus on deregulation makes the Unified Agenda particularly valuable for tracking agency deregulatory activity. Second, the Trump Administration made public an additional list of regulations that had been established during the Obama Administration and had previously not been published.

New Developments: EO 13771 and Related Guidance

As mentioned previously, no penalty exists for issuing a rule without having first published it in the Unified Agenda. However, it appears that the Trump Administration may be placing a new emphasis on the importance of preceding a regulatory action by an entry in the Agenda.

One criticism that has been raised in the past about the Unified Agenda is that many rulemaking actions that agencies took had not been preceded by an entry in the Agenda. EO 13771, which President Trump signed on January 30, 2017, contained the following provisions pertaining to publication of rules in the Unified Agenda:

Each regulation approved by the Director during the Presidential budget process shall be included in the Unified Regulatory Agenda required under Executive Order 12866, as amended, or any successor order.

Unless otherwise required by law, no regulation shall be issued by an agency if it was not included on the most recent version or update of the published Unified Regulatory Agenda as required under Executive Order 12866, as amended, or any successor order, unless the issuance of such regulation was approved in advance in writing by the Director [of OMB].

On April 5, 2017, OIRA issued guidance on implementation of EO 13771, which further emphasized the requirement for publishing regulatory and deregulatory actions in the Unified Agenda. Specifically, the guidance stated that "the agency's Unified Agenda of Regulatory and Deregulatory Actions should reflect compliance with the [one-in, two-out] requirements of EO 13771, and should include, to the extent practicable, EO 13771 deregulatory actions that ... are sufficient to offset those actions appearing in the Agenda that are or are expected to result in EO 13771 regulatory actions." In other words, OMB is requiring agencies to include in their submissions for the Unified Agenda the cost offsets of any new regulations they expect to issue. This was also stated in OMB's call for data for the 2017 Update to the Unified Agenda, which stated that "in order to facilitate the fiscal year 2018 regulatory budget planning process we are requesting that your spring 2017 submissions include a preliminary estimate of the total costs or savings associated with each of your planned fiscal year 2018 significant regulatory actions and offsetting deregulatory actions."

Independent regulatory agencies, which are listed statutorily in the Paperwork Reduction Act and historically have not been covered by rulemaking requirements imposed by the President and OMB, are not required to follow Executive Order 13771. OMB's guidance on the order encourages those agencies, however, to voluntarily "identify existing regulations that, if repealed or revised, would achieve cost savings that would fully offset the costs of significant regulatory actions while continuing to meet the agency's statutory obligations."

As will be discussed later in this report, it also appears that future editions of the Unified Agenda may contain information about the Trump Administration's regulatory budget.

List of "Inactive" Rules Made Public

In April 2015, the Administrative Conference of the United States (ACUS) shed light on a practice that had developed under the Obama Administration in which the Unified Agenda contained an additional category of regulations ("pending") that was not visible to the public. That category appears to have been created in 2011. Around that time, it appears that OIRA informally asked agencies to remove rules from the Unified Agenda that were not actively being considered for issuance. But as the ACUS report explained, if an agency were to remove a rule from the Unified Agenda and then resume work on the rule at a later time, the agency would be required to obtain a new RIN. A RIN is a unique identifier that allows interested parties to track a rule over its development; thus, having more than one RIN associated with a particular rule could lead to confusion among individuals and entities that are tracking a specific regulation.

In an apparent effort to accommodate those concerns, OIRA and RISC created the category of "pending" rules, which would allow the rules to remain in the Unified Agenda database but make them invisible to public users of the database. ACUS recommended in June 2015 that "Federal agencies should not keep regulations that are still under active development in a 'pending' category. The 'pending' category should be included in the published Unified Agenda. OIRA should define the criteria distinguishing between 'long term' and 'pending' actions."

When issuing the 2017 Update to the Unified Agenda, the Trump Administration decided to make the list of "pending" rules public. Upon release of the Agenda, OMB Director Mick Mulvaney stated, "We will not have a hidden list of regulations that we're thinking about doing, but we're not going to tell you about." The list of "pending" rules, which are now being referred to as "inactive," is posted on OIRA's website along with the rest of the Agenda. ACUS commended the action on its website.

2017 Update Edition of the Unified Agenda: A Summary

This section provides an overview of the content of 2017 Update edition of the Unified Agenda, including information on active, withdrawn, and long-term actions listed. The first section below provides summary statistics on the entries listed in the 2017 Update. Examples are then provided for each type of action. Examples were selected based on their significant financial or material impact on the economy (i.e., they were designated as major and/or economically significant rules). The examples in each section are further categorized as follows:

Small business impact. Actions that may significantly affect small businesses, governmental jurisdictions, or organizations such as nonprofits. The RFA generally requires agencies to assess the impact of their regulations on these various small entities. U nfunded mandates . Actions that may result in expenditures that exceed $100 million in one year by state, local, and tribal governments (in aggregate) or the private sector. The Unfunded Mandates Reform Act of 1995 generally requires agencies to assess the anticipated costs and benefits of actions that are expected to exceed the $100 million threshold. Reclassified . Long-term actions that had been classified as active actions in past editions of the Unified Agenda.

Summary Statistics

The 2017 Update includes a total of 3,521 rulemaking actions—1,731 active, 1,094 completed, and 696 long-term. Withdrawn actions comprised 469, or 13%, of the total number of actions. .

Table 1 provides summary-level data on rulemaking actions included in the 2017 Update .

The sections below further analyze active, withdrawn, and long-term actions listed in the 2017 Update, including examples of rules listed by federal entities. Appendix A contains a glossary of federal entities discussed in this section.

Active Actions

Sixty-two of the 1,731 active actions included in the 2017 Update are considered major and/or economically significant—5 in the "prerule" stage, 26 in the "proposed rule" stage, and 31 in the "final rule" stage. Five actions explicitly state that they are rescinding rules or proposing to delay implementation. Three agencies listed over half (55%) of the active major and/or economically significant actions—HHS, DOE, and the EPA. The remaining 28 actions were listed across 15 agencies ( Figure 1 ).

Notable Active Actions

Below are examples of major and/or economically significant active actions included in the 2017 Update that fall into the "small business impact" or "unfunded mandates" categories described above. Appendix B provides more details on each of the 62 rules, including the title, abstract, and authorizing statutes.

Small Business Impact

Six major and/or economically significant active actions are expected to significantly impact small entities and trigger the requirements of the RFA:

1. DOT/FTA, "Protecting Transit Workers From the Risk of Assaults"; 2. DOC/PTO, "Setting and Adjusting Patent Fees During Fiscal Year 2017"; 3. DOL, "Tip Regulations Under the Fair Labor Standards Act (FLSA)"; 4. HHS/CMS, "Policy and Technical Changes to the Medicare Advantage and the Medicare Prescription Drug Benefit Programs for Contract Year 2019"; 5. HHS/CMS, "CY 2018 Updates to the Quality Payment Program"; and 6. HHS/CMS, "Advancing Care Coordination Through Episode Payment Models (EPMs)."

Unfunded Mandates

Eleven major and/or economically significant active actions are expected to result in expenditures that exceed $100 million in one year by state, local, and tribal governments (in aggregate) or the private sector. Examples include the following:

DOE, "Energy Conservation Standards for Residential Non-Weatherized Gas Furnaces and Mobile Home Gas Furnaces"; DOE, "Convention on Supplementary Compensation for Nuclear Damage Contingent Cost Allocation"; DOL/EBSA, "Revision of the Form 5500 Series and Implementing Related Regulations Under the Employee Retirement Income Security Act of 1974 (ERISA)"; EPA, "Renewable Fuel Volume Standards for 2018 and Biomass Based Diesel Volume (BBD) for 2019"; and EPA, "Formaldehyde Emission Standards for Composite Wood Products."

Withdrawn Actions37

The 2017 Update includes 469 rulemaking actions that were withdrawn since the Fall 2016 edition spanning 27 departments, agencies, and government corporations. Ten agencies accounted for 429, or 91%, of the withdrawn actions listed, with each of the agencies having withdrawn between 9 and 114 actions ( Figure 2 ). DOI withdrew the greatest amount of actions in both actual numbers (114) and percentage of total withdrawn actions (24%), followed by HHS (69) and USDA (62). By contrast, three agencies each withdrew one action—FERC, FRS, and USAID.

Figure 3 depicts withdrawn actions by "rule priority," defined in the preamble to the Unified Agenda as "an indication of the significance of a regulation." There are five rule priority levels listed in the Unified Agenda: Economically Significant; Other Significant; Substantive, Nonsignificant; Routine and Frequent; and Info./Admin./Other. Approximately 58% of withdrawn actions were classified as "Substantive, Nonsignificant." Actions classified as "Routine and Frequent" and "Info./Admin./Other," the two lowest priority levels, together comprised a fairly low percentage (5%) of withdrawn actions. Four percent of withdrawn actions were economically significant—the highest rule priority level.

Notable Withdrawn Actions

Below are examples of major and/or economically significant withdrawn actions included in the 2017 Update that fall into the "small business impact" or "unfunded mandates" categories described above.

Small Business Impact

Seven major and/or economically significant withdrawn actions may have substantially impacted small entities and triggered the requirements of the RFA:

1. HHS/FDA, "Suspension of Food Facility Registration"; 2. HHS/FDA, "Patient Medication Information"; 3. HHS/CMS, "Adoption of Operating Rules for HIPAA Transactions"; 4. HHS/CMS, "Post-Eligibility Treatment of Income, Appeal Processes for Medicaid, and Other Provisions Related to Eligibility and Enrollment for Medicaid and CHIP"; 5. HHS/CMS, "Requirements for Surety Bonds for Certain Medicare Providers and Suppliers"; 6. HHS/CMS, "Part B Drug Payment Model"; and 7. DOL/OSHA, "Occupational Exposure to Styrene."

Unfunded Mandates

Three withdrawn actions had been expected to result in expenditures that exceed $100 million in one year by state, local, and tribal governments (in aggregate) or the private sector:

1. HHS/CMS, "Imaging Accreditation"; 2. HHS/FDA, "Requirements for the Testing and Reporting of Tobacco Product Constituents, Ingredients, and Additives"; and 3. HHS/FDA, "Amendments to the Current Good Manufacturing Practice Regulations for Finished Pharmaceuticals—Components."

Long-Term Actions

The 2017 Update includes 696 long-term rulemaking actions spanning 36 departments, agencies, and government corporations. Entries from 10 agencies comprised 533, or 78%, of the long-term actions listed, ranging from 23 to 109 actions per agency ( Figure 4 ). The FCC listed the largest portion of long-term actions in both actual numbers (109) and percentage of total long-term actions (16%), followed by DOT (85) and DHS (76). By contrast, seven agencies each listed one long-term action—AMBC, FCA, OPM, NRLB, GSA, SSA, and FMC.

Figure 5 depicts long-term actions by rule priority. Similarly to the withdrawn actions, "Substantive, Nonsignificant" actions comprised the largest portion (53%), and "Routine and Frequent" and "Info./Admin./Other" actions, together, comprised a small portion (4%), of long-term actions included in the 2017 Update. Notably, 22 of the major and/or economically significant long-term actions had been previously classified as active actions in the Fall 2016 edition. This change suggests the Trump Administration is reducing the significance of those actions.

Notable Long-Term Actions

Below are examples of major and/or economically significant long-term actions included in the 2017 Update that fall into the "small business impact," "unfunded mandates," or "reclassified" categories described above.

Small Business Impact

Six major and/or economically significant long-term actions may significantly impact small entities and trigger the requirements of the RFA:

1. HHS/CMS, "Hospital and Critical Access Hospital (CAH) Changes to Promote Innovation, Flexibility, and Improvement in Patient Care"; 2. HHS/CMS, "Revisions to Requirements for Discharge Planning for Hospitals, Critical Access Hospitals, and Home Health Agencies"; 3. HHS/CMS, "Program Integrity Enhancements to the Provider Enrollment Process"; 4. DOT/NHTSA, "Retroreflective Tape for Single Unit Trucks"; 5. DOT/FAA, "Requirements to File Notice of Construction of Meteorological Evaluation Towers and Other Renewable Energy Projects"; and 6. STATE, "Exchange Visitors: Camp Counselors."

Unfunded Mandates

Eight major and/or economically significant long-term actions are expected to result in expenditures that exceed $100 million in one year by state, local, and tribal governments (in aggregate) or the private sector:

1. DOE, "Energy Conservation Standards for Manufactured Housing"; 2. HHS/FDA, "Updated Standards for Labeling of Pet Food"; 3. DHS, "Collection of Alien Biometric Data Upon Exit From the United States at Air and Sea Ports of Departure"; 4. DHS, "Ammonium Nitrate Security Program"; 5. DHS/CBP, "Importer Security Filing and Additional Carrier Requirements"; 6. DHS/TSA, "General Aviation Security and Other Aircraft Operator Security"; 7. EPA, "National Primary Drinking Water Regulations: Radon"; and 8. EPA, "Accidental Release Prevention Requirements: Risk Management Programs under the Clean Air Act."

Reclassified Actions

Twenty-two long-term actions had previously been classified as in the prerule, proposed, or final rulemaking stages in the Fall 2016 edition. Examples include the following:

DHS/CBP, "Implementation of the Guam-CNMI Visa Waiver Program"; DOE, "Fossil Fuel-Generated Energy Consumption Reduction for New Federal Buildings and Major Renovations of Federal Buildings"; DOT/NHTSA, "Passenger Car and Light Truck Corporate Average Fuel Economy Standards MYs 2022-2025"; EPA, "Water Resources Reform Development Act Farm Amendments to the Spill Prevention Control and Countermeasures Rule"; HHS/FDA, "Postmarketing Safety Reporting Requirements for Human Drug and Biological Products"; and TREAS, "Assessment of Fees for Large Bank Holding Companies and Nonbank Financial Companies Supervised by the Federal Reserve to Cover the Expenses of the Financial Research Fund."

Forthcoming in Future Editions: Information on Agencies' Regulatory Budgets

As discussed above, Executive Order 13771 and subsequent instructions and guidance from OMB indicate that the Trump Administration intends to tie the tracking of agency progress on deregulation with the process of issuing the Unified Agenda and regulatory plans, as the agencies are required to identify offsets for new regulations in the corresponding Unified Agenda entry.

It appears that future editions of the Unified Agenda also could contain information on agencies' implementation of their regulatory budgets. The regulatory budgets are essentially cost caps for each agency's new regulations, and the caps are to be set by OMB for each agency and each fiscal year. The Trump Administration first instituted the cost caps in Executive Order 13771, in which the Administration instructed federal agencies to have a regulatory cost cap of zero for the remainder of FY2017. For each fiscal year thereafter, the order stated that agencies will be allowed a "total amount of incremental costs" for "issuing new regulations and repealing regulations for the next fiscal year."

On September 7, 2017, OIRA Administrator Neomi Rao instructed covered agencies to propose a net reduction in total incremental regulatory costs for FY2018 and stated that the total final incremental cost allowances would be published in conjunction with the Fall 2017 Unified Agenda. Thus, forthcoming editions of the Unified Agenda may contain further information about the Trump Administration's implementation of its regulatory budget.

Appendix A. Glossary of Federal Entities

Appendix B. Active Major and/or Economically Significant Rulemaking Actions in the 2017 Update Edition of the Unified Agenda