The Fall 2024 Unified Agenda of Federal Regulatory and Deregulatory Actions, released by the Biden administration, provides a snapshot of the federal regulatory landscape, listing proposed, active, completed, and long-term rules across various government agencies. While intended to promote transparency and accountability in the rulemaking process, the Agenda’s effectiveness is hampered by inherent limitations and a shift in focus under the current administration.
Historically, the Agenda has aimed to highlight paperwork reduction, regulatory oversight, and cost-benefit analysis. However, it has never been a comprehensive inventory of all regulatory activities. Agencies are not strictly bound by the rules listed in the Agenda, and the document’s focus on “deregulation” has diminished over time. Furthermore, regulatory actions can manifest in forms beyond formal rules, such as guidance documents, which are not captured in the Agenda. This incompleteness, coupled with the use of alternative regulatory mechanisms, weakens the Agenda’s ability to accurately represent the full scope of regulatory activity.
The Biden administration’s approach to regulatory review, as outlined in the “Modernizing Regulatory Review” memorandum and Executive Order 14,094, has further complicated the Agenda’s role. This shift has moved the Office of Management and Budget (OMB) away from its traditional watchdog function toward a more proactive role in advancing what the administration perceives as net benefits, often aligning with progressive priorities. This change is evident in the preambles of agency submissions to the Agenda, such as the Department of Agriculture’s emphasis on “equity” and the Environmental Protection Agency’s focus on “environmental justice communities.” These preambles reveal a custodial approach to governance, which presents a challenge for the incoming Trump administration and the Department of Government Efficiency (DOGE).
The Fall 2024 Agenda lists 3,331 rules, a decrease from previous editions. These rules are categorized as active (2,233), completed (453), and long-term (645). While the overall number of rules has decreased, the number of costlier “major” rules has increased. The number of completed rules has also seen a significant drop, possibly due to agencies anticipating the Congressional Review Act (CRA) scrutiny under the upcoming 119th Congress. A notable anomaly is the inclusion of forty-five completed actions appearing in the Agenda for the first time, undermining the Agenda’s predictive function.
A deeper analysis of the Agenda reveals an increase in high-dollar rules. The Biden administration’s Executive Order 14,094 raised the threshold for “significant” rules requiring in-depth analysis, creating a discrepancy with the Congressional Review Act’s lower threshold. This has implications for regulatory oversight and potential congressional action. The Agenda identifies 222 “significant” rules and 332 “major” rules, with 49 major rules finalized in the past six months. These completed major rules are particularly vulnerable to being overturned by the new Congress under the CRA. The shift of some major rules to the long-term category suggests a strategic move by the outgoing administration to avoid potential CRA challenges.
Beyond major rules, the Agenda also includes “other significant” rules, which, though below the major rule threshold, still warrant attention. The Fall 2024 Agenda lists 1,039 such rules, a decrease from the Spring edition. These rules, along with the completed major rules, will likely be targets for review and potential reversal by the incoming administration and Congress. The substantial number of both major and “other significant” rules finalized in 2024 provides ample opportunity for the 119th Congress to utilize the CRA to reshape the regulatory landscape.
The Unified Agenda, despite its limitations, serves as a valuable tool for understanding and potentially influencing the federal regulatory process. The incoming Trump administration and the 119th Congress face a significant task in addressing what they perceive as regulatory excesses of the Biden era. This includes not only utilizing the CRA to overturn recently finalized rules but also reevaluating the OMB’s role in regulatory review. The challenge lies in restoring and strengthening regulatory oversight, potentially exceeding pre-Biden levels of scrutiny, to ensure a more balanced approach to rulemaking. This involves moving beyond simply undoing the “Modernizing Regulatory Review” framework and establishing a new paradigm that prioritizes cost-benefit analysis, transparency, and accountability in the regulatory process.
