Author

Caitlin Styrsky

Caitlin Styrsky is a staff writer at Ballotpedia. Contact us at editor@ballotpedia.org.

Pennsylvania lawmaker announces legislation aiming to notify parents of sexually explicit school curriculum

Pennsylvania state Senator Ryan Aument (R) on March 31, 2022, announced his intent to file legislation aiming to require schools to identify sexually explicit content in student curriculum and notify parents when such content is featured in classroom instruction.

Aument issued a statement claiming that parents in his district have contacted him over the last several months to express concerns about sexually explicit content in school curriculum and a lack of response to the issue from school administrators. The bill would aim to give parents the opportunity to review curriculum and classroom materials that feature sexually explicit content and to opt their children out of such coursework in favor of alternative, non-sexually explicit instruction.

“Parents should know what their children are being exposed to in school, period,” Aument told Pennsylvania’s WHTM News. “And beyond that, they should have the opportunity to opt their child out of exposure to certain explicit curriculum and be provided with alternative options by the school.”

Democratic state Senator Lindsey Williams told WHTM News that she is “interested to see what the language is and how narrowly tailored it is,” adding that there “are things that one person finds objectionable that are another person’s reflection of their lived experience.”

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Courts block vaccine mandates for healthcare workers, federal contractors

Two federal judges in recent days issued injunctions preventing the enforcement of the Biden administration’s coronavirus (COVID-19) vaccine mandates for healthcare workers and federal contractors in certain states.

U.S. District Judge Matthew Schelp of the United States District Court for the Eastern District of Missouri on Nov. 29 issued a preliminary injunction blocking the Biden administration from enforcing its vaccine requirement for healthcare workers at facilities that receive Medicaid or Medicare funds. The injunction applies to the 10 states that challenged the vaccine mandate in court: Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming. 

Schelp argued that the Centers for Medicare and Medicaid Services (CMS), an executive branch agency housed within the U.S. Department of Health and Human Services, exceeded its authority when it issued the vaccine mandate. “CMS seeks to overtake an area of traditional state authority by imposing an unprecedented demand to federally dictate the private medical decisions of millions of Americans. Such action challenges traditional notions of federalism,” wrote Schelp in the order.

CMS issued a statement in response to the order claiming that unvaccinated healthcare workers threaten patient safety. “Staff in any health care setting who remain unvaccinated pose both direct and indirect threats to patient safety and population health. That is why it is critical for health care providers to ensure their staff are vaccinated against COVID-19.”

The following day, U.S. District Judge Gregory F. Van Tatenhove of theU.S. District Court for the Eastern District of Kentucky issued a preliminary injunction blocking the Biden administration from enforcing its coronavirus (COVID-19) vaccine mandate for federal contractors in three states that challenged the mandate: Kentucky, Ohio, and Tennessee. 

Van Tatenhove argued that the mandate exceeded the Biden administration’s authority over federal procurement. “If a vaccination mandate has a close enough nexus to economy and efficiency in federal procurement, then the statute could be used to enact virtually any measure at the president’s whim under the guise of economy and efficiency,” wrote Van Tatenhove in the order.

The Biden administration had yet to respond to Van Tatenhove’s order as of Nov. 30.

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Kentucky institutes ID verification for unemployment insurance claimants

The Kentucky Office of Unemployment Insurance on Nov. 4 began requiring unemployment insurance claimants in the state to verify their identity with ID.me, a third-party verification provider, in order to receive benefits. The new verification requirements are aimed at limiting fraudulent unemployment insurance claims in the state.

Fraudulent unemployment insurance claims have, according to Labor Cabinet Secretary Jamie Link, periodically overwhelmed Kentucky’s unemployment insurance program during the coronavirus (COVID-19) pandemic and prevented the timely processing of valid claims. Kentucky paid $637.5 million in fraudulent unemployment claims between April 1, 2020, and March 31, 2021, according to the U.S. Department of Labor.

“This strategic move is expected to help reduce the number of fraudulent unemployment insurance claims that have been a drag on the program,” said Link in a statement. “It will significantly reduce the amount of time our employees spend working on, or even handling, fraudulent claims and allow us to realign our resources to help those claimants who have waited far too long for assistance.”

Kentucky joins more than two dozen states already using ID.me to verify the identities of unemployment insurance claimants.

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Biden administration implements vaccine mandate through emergency rulemaking

The Occupational Safety and Health Administration (OSHA) on Nov. 4 issued an emergency rule effective immediately to implement President Joe Biden’s (D) proposed vaccine mandate on certain private business employees. The rule requires the roughly 80 million individuals who work for companies with 100 or more employees to receive a COVID-19 (coronavirus) vaccine or undergo weekly testing. The rule does not require employers to pay for or provide testing.

Biden on Sept. 9 announced that OSHA would develop a rule to implement the administration’s proposed vaccine mandate. OSHA issued the rule through an emergency temporary standard (ETS)—a type of interim final rule that allows OSHA to set emergency workplace standards without first following the public notice-and-comment requirements of the federal rulemaking process. Though effective immediately, OSHA must follow rulemaking procedures within six months if the agency decides to adopt the ETS as a permanent standard, according to the agency. Affected parties may challenge the validity of an ETS through the U.S. Courts of Appeals.

The Centers for Medicare and Medicaid Services (CMS) also issued a rule requiring that healthcare workers in facilities that participate in Medicare and Medicaid programs obtain a COVID-19 vaccine. The CMS rule does not include a testing option. The Biden administration aligned the vaccination compliance deadlines for private business employees, healthcare workers, and federal contractors to Jan. 4, according to reporting from CNN.

“Together the OSHA and CMS rules, along with the other policies the administration has previously implemented means that over two thirds of all workers in the United States are now covered by vaccination policies,” a senior Biden administration official told CNN. “Higher vaccination rates protect our workers, reduce hospitalizations and deaths. It’s good for workers and importantly, this is good for the economy.” 

Private businesses that violate the OSHA rule could face monetary penalties up to $14,000 per violation. Healthcare facilities that fail to comply with the CMS rule could face monetary penalties, payment denials, or removal from participation in the Medicare or Medicaid programs.

Lawmakers have mounted challenges to the Biden administration’s vaccine mandate on private businesses at both the federal and state levels. U.S. Senator Mike Braun (R-Ind.) and a coalition of Republican senators on Nov. 3 announced their intent to introduce a resolution of disapproval under the Congressional Review Act in an effort to nullify the mandate. At the state level, Arizona Attorney General Mark Brnovich (R) on Sept. 14 filed a lawsuit in the United States District Court for the District of Arizona arguing that the proposed vaccine mandate on private businesses violates the Equal Protection Clause of the U.S. Constitution, might further strain the labor market, and does not properly fall within OSHA’s jurisdiction. Two days later, 24 Republican secretaries of state sent a letter to Biden stating their intent to, in their words, “seek every available legal option” to challenge the ETS.  

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Checks and Balances – September 2021 – Sue and settle returns to the EPA

The Checks and Balances Letter delivers news and information from Ballotpedia’s Administrative State Project, including pivotal actions at the federal and state levels related to the separation of powers, due process and the rule of law.

This edition: 

In this month’s edition of Checks and Balances, we review federal legislation that would return administrative law judges (ALJs) to the competitive civil service; a new statutory interpretation from the U.S. Department of Education allowing states to regulate student loan servicers; recent decisions from the U.S. Supreme Court that allowed for the continuation of the Trump administration’s “Remain in Mexico” policy and that struck down the Centers for Disease Control and Prevention’s eviction moratorium; and the return of sue and settle practices at the Environmental Protection Agency. 

At the state level, we take a look at state and local jurisdictions with eviction moratoriums that remain in place after the Supreme Court’s decision.

We also highlight a new report from the U.S. Government Accountability Office that surveyed the use of facial recognition technology by federal agencies. As always, we wrap up with our Regulatory Tally, which features information about the 187 proposed rules and 290 final rules added to the Federal Register in August and OIRA’s regulatory review activity.


In Washington

Bill aiming to return ALJs to competitive service advances in House

What’s the story? 

The U.S. House Reform and Oversight Committee on July 20 voted 24-16 along party lines to advance legislation that would redesignate administrative law judges (ALJs) as members of the competitive civil service and reestablish the U.S. Office of Personnel Management’s authority over the ALJ hiring process. 

President Donald Trump in 2018 moved ALJs from the competitive civil service to the excepted service via Executive Order 13843. The order aimed to align ALJ appointment practices with the U.S. Supreme Court’s decision in Lucia v. SEC, which held that the ALJs of the U.S. Securities and Exchange Commission (SEC) are are officers of the United States who must be appointed by the president, the courts, or agency heads rather than hired by agency staff. Prior to the order, OPM screened ALJ candidates through a merit-based selection process as part of the competitive service. Agencies could only hire ALJs from OPM’s pool of vetted candidates.

Supporters of the legislation (the Administrative Law Judges Competitive Service Restoration Act) argue that E.O. 13843 threatens ALJ impartiality by allowing partisan agency heads to appoint ALJs based on their own standards.“This exposed impartial judges, who determined the outcome of disputes over labor-management relations, claims for Social Security and public health benefits, to political influence,” said the bill’s author, Representative Gerry Connolly (D-Va.).

Opponents of the legislation argue that E.O. 13843 strengthens ALJ subject matter expertise by allowing agency heads to consider qualifications beyond the scope of OPM’s generalist vetting criteria. “By placing ALJs in the excepted service, it gave federal departments and agencies greater flexibility to assess prospective ALJ candidates,” said the committee’s ranking member, Rep. James Comer (R-Ky.).

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Department of Education issues new statutory interpretation allowing states to regulate student loan servicers

What’s the story? 

The U.S. Department of Education (ED) on August 9 announced its departure from the Trump administration’s statutory interpretation of the federal Higher Education Act (HEA) that prevented states from regulating student loan servicers. Under the department’s new interpretation, states will be able to develop and enforce consumer protection standards applicable to student loan servicers as long as they are not preempted by federal law.

“Effective collaboration among the states and federal government is the best way to ensure that student loan borrowers get the best possible service,” said Education Secretary Miguel Cardona in a press release. “We welcome public input on this interpretation and look forward to enhancing consumer protections for student loan borrowers by clarifying the relationship between federal and state law on this issue.” 

Former ED Secretary Betsy DeVos aimed to limit state regulation of student loan servicers in order to avoid what she referred to as a regulatory maze of state and federal requirements. Student loan servicers have argued that additional state regulations will increase both business costs and confusion among borrowers.

“Forcing [federal student loan servicers] to serve dozens of state governments that contradict federal rules will create borrower confusion and worsen the borrowers’ repayment experience,” U.S. House Education and Labor Committee ranking member Virginia Foxx (R-N.C.) told The Washington Post. “The department’s bureaucratic incompetence, combined with inherent design flaws in the Higher Education Act, are the reasons why borrowers get left behind.”

Since 2014, more than half of all states have proposed or implemented state-level requirements for student loan servicers. In some states, such as Virginia and Massachusetts, these requirements take the form of a borrower’s bill of rights—minimum timeliness standards for loan processing, communications, and other concerns. Similar legislation is pending in a dozen states, according to the Student Borrower Protection Center.

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SCOTUS declines to block Remain in Mexico policy, strikes down CDC’s eviction moratorium 

What’s the story? 

The U.S. Supreme Court last month issued two noteworthy decisions concerning the exercise of agency authority. The court first declined to block a district judge’s ruling that ordered the Biden administration to reinstate the Trump administration’s Migrant Protection Protocols (known as the “Remain in Mexico” policy). The court later found that the Centers for Disease Control and Prevention’s (CDC) eviction moratorium issued in response to the coronavirus (COVID-19) pandemic was unconstitutional.

In an unsigned order, the court on August 24 declined to block a ruling from U.S. District Judge Matthew Kacsmaryk in Biden v. Texas that directed the Biden administration to reinstate the U.S. Department of Homeland Security’s Migrant Protection Protocols. The program, instituted under the Trump administration, requires asylum-seekers to wait in Mexico prior to their immigration hearings. 

The justices found that the “applicants have failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious.” While six justices supported the order, Justices Elena Kagan, Sonia Sotomayor, and Stephen Breyer would have issued a stay to block the district court ruling while the case moves through the appeals process.

Two days later, the court issued another unsigned opinion in Alabama Association of Realtors v. U.S. Department of Health and Human Services holding that the CDC’s eviction moratorium unlawfully exceeded the agency’s statutory authority. “It strains credulity to believe that [§361(a) of the Public Health Service Act] grants the CDC the sweeping authority that it asserts,” wrote the majority justices. 

Justices Elena Kagan, Sonia Sotomayor, and Stephen Breyer again dissented, arguing in part that “it is far from ‘demonstrably’ clear that the CDC lacks the power to issue its modified moratorium order.”

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WOTUS ruling signals return of sue and settle

What’s the story?

U.S. District Judge Rosemary Marquez on August 30 issued a decision in Pasqua Yaqui Tribe et al. v. U.S. Environmental Protection Agency that vacated and remanded the Trump administration’s Navigable Waters Protection Rule (NWPR), which narrowed the scope of the Environmental Protection Agency’s (EPA) regulatory authority under the Clean Water Act (CWA). The ruling signals a return to sue and settle practices at the EPA, which the Trump administration had outlawed through an agency directive in 2017.

Sue and settle is a term used to describe cases in which a federal agency is sued by an interested party, declines to defend itself in court, and negotiates a settlement with the plaintiff in a non-adversarial process. Through sue and settle, outside groups sue an agency in order to reach a settlement on terms favorable to the regulatory goals of both.

The NWPR adopted a narrow definition of “waters of the United States” (WOTUS) that limited the EPA’s authority to regulate certain waters, including wetlands. The rule adopted Justice Antonin Scalia’s reasoning in Rapanos v. United States (2006) that only wetlands adjacent to navigable waters fall under CWA oversight. A coalition of Native American tribes challenged the rule in the United States District Court for the District of Arizona, arguing that the WOTUS definition under the NWPR disregards established science and is inconsistent with the statutory objectives of the CWA.

The EPA under the Biden administration had “expressed an intent to repeal the NWPR and return to the pre-2015 regulatory regime while working on a new definition of ‘waters of the United States,’” according to Judge Marquez’s opinion. 

Judge Marquez ruled in favor of the plaintiffs, finding that their concerns “are not mere procedural errors or problems that could be remedied through further explanation. Rather, they involve fundamental, substantive flaws that cannot be cured without revising or replacing the NWPR’s definition of ‘waters of the United States.’” 

It is unclear what standard now controls WOTUS regulation under the CWA. The Trump administration rescinded a 2015 Obama-era WOTUS regulation and the U.S. Supreme Court in Rapanos and Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers (2001) found the pre-2015 regulations to be overly expansive, according to administrative law scholar Jonathan Adler. 

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In the states

Eviction bans continue across the states

What’s the story? 

The U.S. Supreme Court on August 26 struck down the Centers for Disease Control and Prevention’s (CDC) federal eviction moratorium but similar eviction bans issued in response to the coronavirus (COVID-19) pandemic remain in effect in cities and states across the country.

The following selected state and local jurisdictions had eviction bans in place as of September 13:

  • California’s eviction moratorium remains in effect until September 30. 
  • Illinois’ eviction moratorium expires on October 3. 
  • New Jersey’s eviction ban expires in January 2022. 
  • Washington D.C.’s eviction ban expires in January 2022.
  • New Mexico’s eviction moratorium does not have a set expiration date.
  • New York’s eviction moratorium expires in January 2022.
  • Washington’s eviction ban remains in effect under certain circumstances through October 15.

The above list is not comprehensive and additional eviction bans may remain in effect. State and local programs that aim to support renters seeking rental assistance, such as a Nevada policy that prohibits the eviction of tenants who have applied for rental assistance, may also function as de facto eviction bans.

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GAO report sheds light on federal agency use of facial recognition technology

An August 24 report from the U.S. Government Accountability Office (GAO) found that at least 18 federal agencies use facial recognition technology (FRT).

The GAO survey of 24 federal agencies revealed the following findings: 

  • Sixteen agencies stated that they use FRT for digital access or cybersecurity, including 14 agencies that use FRT for employees to unlock their agency-issued smartphones and two agencies that use FRT to control website access. 
  • Six agencies, including the Department of Homeland Security (DHS), Department of Justice (DOJ), and Department of Defense (DOD) reported using FRT for law enforcement purposes.
  • Five agencies reported using FRT for security purposes, such as controlling building access. 
  • Ten agencies planned to expand their use of FRT.

“It’s becoming increasingly important to get a more comprehensive understanding of the use of facial recognition technology across federal agencies,” Candice Wright, a director in GAO’s Science, Technology Assessment and Analytics Team, told Cox Media Group. “There’s certainly been a lot of advancements recently with facial recognition technology. It has been increasingly used for a range of purposes in both the commercial and government sectors.”

The report raised concerns among privacy advocates, including Adam Schwartz, senior attorney at the Electronic Frontier Foundation. “This technology is dangerous. It leads to people being falsely arrested, it invades our privacy, it deters people from going to protests,” Schwartz told Popular Mechanics. “The government should not be using it at all, so it is pretty sad to read that they’re actually expanding their use of it.”

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Regulatory tally

Federal Register

Office of Information and Regulatory Affairs (OIRA)

OIRA’s August regulatory review activity included the following actions:

  • Review of 37 significant regulatory actions. 
  • One rule approved without changes; recommended changes to 33 proposed rules; three rules withdrawn from the review process.
  • As of September 1, 2021, OIRA’s website listed 77 regulatory actions under review.
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Federal Register weekly update: 14 new significant rules

The Federal Register is a daily journal of federal government activity that includes presidential documents, proposed and final rules, and public notices. It is a common measure of an administration’s overall regulatory activity, accounting for both regulatory and deregulatory actions.

From Sept. 13 through Sept. 17, the Federal Register grew by 1,234 pages for a year-to-date total of 52,070 pages.

The Federal Register hit an all-time high of 95,894 pages in 2016.

This week’s Federal Register featured the following 576 documents:

  • 458 notices
  • 13 presidential documents
  • 46 proposed rules
  • 59 final rules

Six proposed rules, including a call for public input from the U.S. Fish and Wildlife Service regarding authorization for the incidental taking of eagles, and eight final rules, including a court-ordered delay of a Food and Drug Administration rule concerning tobacco product warnings, were deemed significant under E.O. 12866—defined by the potential to have large impacts on the economy, environment, public health, or state or local governments. Significant actions may also conflict with presidential priorities or other agency rules. The Biden administration has issued 58 significant proposed rules, 63 significant final rules, and one significant notice as of Sept. 17.

Ballotpedia maintains page counts and other information about the Federal Register as part of its Administrative State Project. The project is a neutral, nonpartisan encyclopedic resource that defines and analyzes the administrative state, including its philosophical origins, legal and judicial precedents, and scholarly examinations of its consequences. The project also monitors and reports on measures of federal government activity.

Click here to find more information about weekly additions to the Federal Register in 2020, 2019, 2018, and 2017: Changes to the Federal Register 

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Click here to find yearly information about additions to the Federal Register from 1936 to 2019: Historical additions to the Federal Register, 1936-2019



Federal Register weekly update: Tops 50,000 pages

Photo of the White House in Washington, D.C.

The Federal Register is a daily journal of federal government activity that includes presidential documents, proposed and final rules, and public notices. It is a common measure of an administration’s overall regulatory activity, accounting for both regulatory and deregulatory actions.

From Sept. 6 through Sept. 10, the Federal Register grew by 934 pages for a year-to-date total of 50,836 pages.

The Federal Register hit an all-time high of 95,894 pages in 2016.

This week’s Federal Register featured the following 449 documents:

  1. 354 notices
  2. Seven presidential documents
  3. 29 proposed rules
  4. 59 final rules

Three proposed rules, including a new mine safety program from the Mine Safety and Health Administration (MSHA), and two final rules, including a revision to the Federal Emergency Management Agency’s (FEMA) hazard mitigation assistance and mitigation planning regulations, were deemed significant under E.O. 12866— defined by the potential to have large impacts on the economy, environment, public health, or state or local governments. Significant actions may also conflict with presidential priorities or other agency rules. The Biden administration has issued 52 significant proposed rules, 55 significant final rules, and one significant notice as of Sept. 10.

Ballotpedia maintains page counts and other information about the Federal Register as part of its Administrative State Project. The project is a neutral, nonpartisan encyclopedic resource that defines and analyzes the administrative state, including its philosophical origins, legal and judicial precedents, and scholarly examinations of its consequences. The project also monitors and reports on measures of federal government activity.

Click here to find more information about weekly additions to the Federal Register in 2020, 2019, 2018, and 2017.

Click here to find yearly information about additions to the Federal Register from 1936 to 2019.



Federal Register weekly update: More than 250 presidential documents issued so far in 2021

Graphic with the five pillars of the

The Federal Register is a daily journal of federal government activity that includes presidential documents, proposed and final rules, and public notices. It is a common measure of an administration’s overall regulatory activity, accounting for both regulatory and deregulatory actions.

From August 30 through September 3, the Federal Register grew by 1,608 pages for a year-to-date total of 49,902 pages.

The Federal Register hit an all-time high of 95,894 pages in 2016.

This week’s Federal Register featured the following 590 documents:

  1. 467 notices
  2. 11 presidential documents
  3. 39 proposed rules
  4. 73 final rules

Five proposed rules, including new migratory game bird hunting regulations from the U.S. Fish and Wildlife Service, and seven final rules, including the establishment of a dairy product donation program through the U.S. Department of Agriculture, were deemed significant under E.O. 12866—defined by the potential to have large impacts on the economy, environment, public health, or state or local governments. Significant actions may also conflict with presidential priorities or other agency rules. The Biden administration has issued 49 significant proposed rules, 53 significant final rules, and one significant notice as of September 3.

Ballotpedia maintains page counts and other information about the Federal Register as part of its Administrative State Project. The project is a neutral, nonpartisan encyclopedic resource that defines and analyzes the administrative state, including its philosophical origins, legal and judicial precedents, and scholarly examinations of its consequences. The project also monitors and reports on measures of federal government activity.

Click here to find more information about weekly additions to the Federal Register in 2020, 2019, 2018, and 2017.

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OIRA reviewed 37 significant rules in August

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The White House Office of Information and Regulatory Affairs (OIRA) reviewed a total of 37 significant regulatory actions issued by federal agencies in August 2021. The agency approved one rule without changes and approved the intent of 33 rules while recommending changes to their content. Three rules were withdrawn from the review process.

OIRA reviewed 64 significant regulatory actions in August 2020, 49 significant regulatory actions in August 2019, 35 significant regulatory actions in August 2018, and 12 significant regulatory actions in August 2017. During the Obama administration from 2009-2016, OIRA reviewed an average of 53 significant regulatory actions each August.

OIRA has reviewed a total of 345 significant rules in 2021. The agency reviewed a total of 676 significant rules in 2020, 475 significant rules in 2019, 355 significant rules in 2018, and 237 significant rules in 2017.

As of September 1, 2021, OIRA’s website listed 77 regulatory actions under review.

OIRA is responsible for reviewing and coordinating what it deems to be all significant regulatory actions made by federal agencies, with the exception of independent federal agencies. Significant regulatory actions include agency rules that have had or may have a large impact on the economy, environment, public health, or state and local governments and communities. These regulatory actions may also conflict with other regulations or with the priorities of the president.

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Federal Register weekly update: 611 new documents added

Banner with the words "The Administrative State Project"

The Federal Register is a daily journal of federal government activity that includes presidential documents, proposed and final rules, and public notices. It is a common measure of an administration’s overall regulatory activity, accounting for both regulatory and deregulatory actions.

From August 23 through August 27, the Federal Register grew by 1,344 pages for a year-to-date total of 48,294 pages.

The Federal Register hit an all-time high of 95,894 pages in 2016.

This week’s Federal Register featured the following 611 documents:

  1. 495 notices
  2. Two presidential documents
  3. 52 proposed rules
  4. 62 final rules

Seven proposed rules and five final rules were deemed significant under E.O. 12866—defined by the potential to have large impacts on the economy, environment, public health, or state or local governments. Significant actions may also conflict with presidential priorities or other agency rules. The Biden administration has issued 44 significant proposed rules, 46 significant final rules, and one significant notice as of August 27.

Ballotpedia maintains page counts and other information about the Federal Register as part of its Administrative State Project. The project is a neutral, nonpartisan encyclopedic resource that defines and analyzes the administrative state, including its philosophical origins, legal and judicial precedents, and scholarly examinations of its consequences. The project also monitors and reports on measures of federal government activity.

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