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Fall Regulatory Plan Out Before Biden White House Transition (1)

Dec. 9, 2020, 7:15 PM; Updated: Dec. 9, 2020, 10:33 PM

A long list of regulations federal agencies had planned to advance or cut over the next year was released by the White House Office of Management and Budget, even though agency priorities will change once President-elect Joe Biden is sworn into office in January.

The mandatory report to Congress, known as the unified regulatory agenda, is issued in the spring and fall each year. The fall agenda includes an additional document from each agency, called the Regulatory Plan, that describes in narrative form its priorities and rulemaking goals for the coming year.

A preliminary search shows there are 66 significant final rules that published for the first time in the fall agenda, indicating they are priorities of the current administration, said Daniel Goldbeck, senior regulatory policy analyst at the American Action Forum.

There are another 88 significant final rules in the pipeline that agencies will attempt to finalize, although it remains to be seen how many will make it across the finish line, Goldbeck said.

Among them, the Labor Department still plans on fast-tracking a consequential final rule to make it easier for employers to classify workers as independent contractors rather than employees who are owed minimum wages and overtime pay. Although it was just proposed in September, the department is slating its final release for December, which would allow the agency to cement the business-friendly interpretation just before Biden takes office.

The Biden administration likely will be reviewing the complete list of active and long-term rules to see how they compare with the incoming president’s regulatory priorities, said Daniel Pèrez, senior policy analyst at the George Washington University Regulatory Studies Center.

Trump’s agenda is still useful because it will show what rules are candidates for completion before Biden is sworn into office, Pèrez said.

“Agencies are likely to end up finalizing a substantial number of the active actions in the agenda,” he said.

The Unified Agenda of Federal Regulatory and Deregulatory Actions lists, by department and by agency, the rules they plan to act on in the next 12 months. That includes new proposals and regulations ready to be finalized, as well as estimated dates for completion.

Even for new rules that won’t be finalized by agencies under the Trump administration, the agenda still provides the public with a look at what’s in the pipeline, Pèrez said.

The fall agenda included a number of new proposals or revised timelines for completion of rules. Among them:

  • The Environmental Protection Agency expects to propose next October a rule establishing a process for industry to collaborate with federal agencies to assess chemical risks.
  • The EPA also plans next October to propose a rule revising its ways of estimating the costs and benefits of pesticide regulations.
  • The Department of Homeland Security could finalize a rule in December that would expand the types of biometric data it collects from visa and immigration benefit applicants, including iris scans, palm- and voice-prints, facial recognition images, and DNA, to confirm familial ties.
  • The National Labor Relations Board plans to issue a long-stalled rule next month that would strip student workers at private colleges of their right to unionize.
  • The board also plans to finalize by February a rule that would eliminate a requirement for employers to hand over workers’ personal email addresses, home telephone numbers, and cell phone numbers on the lists of eligible voter information they must provide to unions in advance of elections.
  • The Health and Human Services Department is planning to propose a rule in January to “robustly address” unlawful discrimination on the basis of disability.
  • The Centers for Disease Control and Prevention is planning to issue an interim final rule in May 2021 to set new performance standards for fit tests for face masks.
  • The Transportation Security Administration plans to propose a rule in April requiring security threat assessments for security coordinators and other frontline employees of public transportation agencies.

Despite the coronavirus pandemic, federal agencies appear to be on track to issue a number of President Donald Trump’s high-priority regulations by the end of 2020. Among them are two rules intended to reduce the price of prescription drugs Trump personally announced on Nov. 20.

In addition, the Trump administration has been focused on finalizing several economically significant, immigration-related regulations as well as new fiduciary rules.

The fall agenda during the Trump administration usually has been accompanied by a report detailing agencies’ deregulatory actions. That report shows how agencies are meeting the requirements of Trump’s Executive Order 13771, which directs agencies to cut two rules for every new one they issue, and to impose no new regulatory costs.

In fiscal 2020, agencies eliminated $198.6 billion in overall regulatory costs across the federal government and took 538 deregulatory actions, for a ratio of 5.5 rules cut for every new significant one added, according to OMB’s introduction to the fall agenda.

This year’s report updates the spring 2020 regulatory agenda that previewed an array of new proposals agencies intended to push through early 2021.

—With assistance from Ben Penn, Pat Rizzuto, Shaun Courtney, Ian Kullgren, Shira Stein, and Katrice Eborn

(Updates with additional information.)

To contact the reporter on this story: Cheryl Bolen in Washington at cbolen@bgov.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com

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