Biden Administration Spring 2024 Unified Regulatory Action Agenda

EXECUTIVE SUMMARY

• The Biden Administration recently released its Spring 2024 Unified Agenda for Regulatory and Deregulatory Action (UA), which details nearly 2,400 regulations it plans to propose over the next year.
• While the total number of planned actions is relatively small compared to the past few years, this is likely due to the fact that the Administration has implemented many of its first-term priorities in the past few months.
• A deeper look at the UA data reveals that the volume of tax-related legislation is set to increase significantly, with general agencies continuing to be mindful of the timing of legislation amid the upcoming election and the potential impact of next year’s Congressional Legislative Review Act.

ENTRY

On July 5, the Office of Information and Regulatory Affairs (OIRA) released the Spring 2024 edition of the Biden Administration’s Unified Agenda of Regulatory and Deregulatory Actions (UA). The semiannual report outlines “actions that administration agencies plan to take in the near and long term.” This edition of the report is notable for providing the latest look at the Biden Administration’s regulatory plans as it heads into election season. The key takeaways from this UA include: 1) The Administration has relatively few actions in the next year or more, largely because of the finalization of a number of regulations this spring; 2) the Treasury Department appears to be the busiest agency in the coming months, likely due to a series of tax relief legislative provisions; and 3) agencies are keenly aware of the need to complete major actions in time for not only Election Day but also the potential “lookback” period under the Congressional Review Act (CRA).

Total control volume

One of the more helpful aspects of a given UA is that it can show the scope of the administration’s regulatory plans. The table below provides statistics on the number of potential actions included in the last decade of Spring UA. “Active” items include those that agencies reasonably expect to take action on within 12 months of the UA’s publication. “Long-term” items are those that agencies expect to take action on outside of that one-year window. The “Overall Outlook” category is the sum of the two. “Major” items include provisions that agencies expect to meet the definition of a “major provision” under the CRA and include actions by independent agencies. “Significant” items include those that bear the designation: 1) “economically significant” under Executive Order (EO) 12866 (and/or an appropriate designation as modified under Executive Order 14094), or 2) “other significant” items, which OIRA defines as: “Rulemaking that is not economically significant but is considered significant by the agency. This category includes rulemaking that the agency anticipates will be reviewed pursuant to Executive Order 12866 or rulemaking that is a priority for the head of the agency.”

Trends in Rulemaking Volumes Under Spring Unified Agendas
Year	2015	2016	2017	2018	2019	2020	2021	2022	2023	2024
Active elements	2323	2239	1731	2224	2597	2697	2551	2673	2617	2361
Long-term positions	460	502	696	647	610	575	623	574	582	648
Total number of potential positions	2783	2741	2427	2871	3207	3272	3174	3247	3199	3009
“Main” active elements	141	125	49	88	123	155	170	217	236	193
“Main” long-term positions	33	43	51	34	thirty	40	47	38	44	42
Total number of “Main” items	174	168	100	122	153	195	217	255	280	235
“Essential” active elements	905	800	429	707	919	974	945	1055	1042	892
“Significant” long-term items	200	208	299	222	218	218	262	263	284	275
Total number of “significant” items	1105	1008	728	929	1137	1192	1207	1318	1326	1167

For the fall edition of the UA, the American Action Forum (AAF) analyzed the report in the context of previous fall editions. To maintain a comparable level of context for this iteration, we looked at how this latest report compares to previous spring editions of the UA. The most significant finding in this data is that after seeing fairly steady year-over-year increases across categories, there is a noticeable decline in planned regulatory activity. The “Total Forward-Looking Positions” number drops to a six-year low. However, when we analyze this number even further, we find that the “Long-Term Positions” number is still among the highest in the data set. This suggests that the Biden administration still has some plans if it continues for a second term, but those plans may have to wait until later in 2025 and beyond.

Another potential explanation for this relative decline in agenda items is that agencies have already completed most of the plans they had in mind since the beginning of the administration. Loyal readers of AAF’s Week in Regulation likely feel that way after several weeks documented in the spring. The data in the table below regarding “Completed Actions” (“actions or reviews that the agency has completed or withdrawn since the last agenda item was published”) for each UA that explicitly involves the Biden administration(1) further reinforces this claim, with “Spring 2024” having the clearest scores in three categories:

Biden’s ‘done deal’ trends
Period	Fall 2021	Spring 2022	Fall 2022	Spring 2023	Fall 2023	Spring 2024
Total number of completed	475	556	443	467	431	689
“Major” completed	46	44	59	39	52	97
“Significant” completed	140	167	154	109	145	283

MAIN TRENDS IN AGENCY

As with other recent UA activity surveys, it’s important to look at the agencies that have the busiest schedules. The table below shows the top 10 agencies by active positions.Perhaps the most significant development is Treasury taking the top spot from the Interior Department—and in a pretty decisive way. While the agencies had roughly the same score in the previous two UAs, Treasury took the lead in “Active Items” this time, 292 to 246 over the second-placed agency. That’s likely due to a significant increase in upcoming legislation related to tax relief from legislation like the Inflation Reduction Act, with the Internal Revenue Service’s “Active Items” rising to 196 from 165 in the fall 2023 UA.

But aside from that trend, the agencies included here are all in the top 10 from last fall’s edition. The Department of Health and Human Services and the Environmental Protection Agency saw the biggest declines—with about 20 fewer actions each—dropping those agencies to fifth and seventh place, respectively. There was also no noticeable change in the relative balance of rulemaking stages, with proposed actions accounting for an average 55 percent share across agencies—nearly identical to the 56 percent share seen in last fall’s edition of the UA.

REGULATORY VOLUME TRENDS

The AAF’s analysis for the last previous UA included a brief look at when the public could potentially expect certain rules in the second half of 2024. However, as the numbers in the chart below illustrate, creating a similar regulatory “calendar” for this edition of the UA is less practical, as it would now be prohibitively long. Nevertheless, the chart below includes the same type of rules included in that analysis, namely: “Below are such rules that currently also bear either: A) a “major” designation or B) an “undetermined” designation (thereby indicating the possibility that they could still be major rules once finalized).”As the chart shows, most of the administration’s planned activity in this category of regulations is expected to occur before the election. This is almost certainly a product of the administration’s desire to score as many political points as possible on the council before the peak campaign season. In addition, this month appears to be particularly active. This may be due in part to the agency’s ongoing concern about potential implications under the CRA. Of particular concern is the CRA’s lookback window, which allows the new administration and Congress to repeal regulations finalized in the final months of the previous administration through an expedited process.

Although the CRA review deadline could potentially be as early as late May 2024, as the AAF noted in this analysis last fall:

In the wake of the 2016 and 2020 elections, relative changes in which party controlled the executive and legislative branches allowed new policymakers to use the CRA’s “reflective” provision to refer to rules finalized later in the previous administration. While it’s impossible to predict exactly when that retroactive cutoff point will be in 2024, because it depends on how many days Congress is in session next fall, in the last cycles there was either July Or August. (emphasis added)

If this cycle’s retrospective deadline ultimately falls in late summer, agencies can be confident that this group of July rules will be largely immune from potential repeal by the CRA next year.

OTHER KEY STATISTICS

With nearly 2,400 active items included in the pages of this UA, it is not practical to include complete lists of the various potential cross-sections of rulemaking. It is, however, possible and potentially helpful to highlight the number of items that fall into specific subcategories. Some of these totals include:

• 405 “New Provisions” or provisions incorporated into the AU for the first time;
• 162 regulations that the agency determined “could have a significant economic impact on a substantial number of small entities” under the Regulatory Flexibility Act (RFA);
• 179 regulations that the agencies expect “will affect international trade and investment or otherwise be of interest to our international trading partners”;
• 26 provisions subject to retrospective review under section 610 of the RFA;
• 39 regulations that the agency said would “likely result in an order that could result in expenditures by state, local, and tribal governments in the aggregate, or by the private sector, in excess of $100 million in any one year” under the Unfunded Order Reform Act.

APPLICATION

While most Americans were likely cleaning up after their Fourth of July celebrations — or continuing to do so — last Friday, the Biden administration released its latest look at its major regulatory plans heading into the waning months of its first term. The report reveals that, at least for the next year or more, it has already delivered on most of its top priorities. In addition, Treasury looks set to be the busiest agency in the coming months, as it prepares and finalizes a raft of tax relief rules stemming from recent legislation ahead of the next fiscal year. Finally, the administration seems particularly aware of both the political urgency to lay out its final rulemaking priorities before the election and, potentially more critically from a policymaking perspective, perhaps just before the CRA deadline.

(1) The “Completed Actions” count in the Spring 2021 issue will include items from the Trump Administration.