Author

Caitlin Styrsky

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

Federal Register weekly update: More than 3,000 final rules published so far in 2020

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 regulatory activity.

From November 23 to November 27, the Federal Register grew by 1,824 pages for a year-to-date total of 76,418 pages. Over the same period in 2019 and 2018, the Federal Register reached 65,906 pages and 62,240 pages, respectively. As of November 27, the 2020 total led the 2019 total by 10,512 pages and the 2018 total by 14,178 pages. 

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

Last week’s Federal Register featured the following 516 documents:

• 406 notices

• two presidential documents

• 35 proposed rules

• 73 final rules

One proposed rule concerning critical habitat designation for threatened Caribbean corals was 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 Trump administration in 2020 has issued 32 significant proposed rules, 65 significant final rules, and one significant notice as of November 27.

Not all rules issued by the Trump administration are regulatory actions. Some rules are deregulatory actions pursuant to President Trump’s (R) Executive Order 13771, which requires federal agencies to eliminate two old significant regulations for each new significant regulation issued.

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.

Additional reading:

  • Click here to find more information about weekly additions to the Federal Register in 2019, 2018, and 2017.
  • Click here to find yearly information about additions to the Federal Register from 1936 to 2018.


Federal Register weekly update: More than 300 presidential documents published so far in 2020

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 regulatory activity.

From November 16 to November 20, the Federal Register grew by 1,696 pages for a year-to-date total of 74,594 pages. Over the same period in 2019 and 2018, the Federal Register reached 64,702 pages and 60,332 pages, respectively. As of November 20, the 2020 total led the 2019 total by 9,892 pages and the 2018 total by 14,262 pages. 

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

Last week’s Federal Register featured the following 546 documents:

  • 435 notices
  • four presidential documents
  • 38 proposed rules
  • 69 final rules

Two final rules regarding high-risk loans within the Farm Credit System and emission standards for hazardous air pollutants, as well as one proposed rule concerning the collection of biometric data, 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 Trump administration in 2020 has issued 31 significant proposed rules, 65 significant final rules, and one significant notice as of November 20.

Not all rules issued by the Trump administration are regulatory actions. Some rules are deregulatory actions pursuant to President Trump’s (R) Executive Order 13771, which requires federal agencies to eliminate two old significant regulations for each new significant regulation issued.

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 2019, 2018, and 2017. 

Additional reading:



Department of Health and Human Services proposes to sunset regulations

The U.S. Department of Health and Human Services (HHS) on November 4 published a proposed rule in the Federal Register that would sunset all of the agency’s regulations. The sunset process would set a 10-year expiration date for each agency rule, with certain exceptions, unless the agency conducts a retrospective review to keep the rule in effect.

The proposed rule aims to “enhance the Department’s implementation of section 3(a) of the Regulatory Flexibility Act (RFA) … and various executive orders, and improve accountability and the performance of its regulations.” The RFA, Executive Order 12866, and Executive Order 13563, among other directives, call for agencies to conduct periodic reviews of certain applicable regulations. The HHS proposal seeks to build on these limited reviews and subject all of the agency’s regulations (with certain exceptions) to retrospective review with the goal of ensuring evidence-based, up-to-date regulations, according to the proposal.

HHS estimates that the agency would review 2,200 rules in the first two years if the proposed rule is finalized. In each following year, the agency estimates that it would conduct ongoing reviews of about 125 rules.

“This is the biggest regulatory reform effort in the biggest regulatory agency,” HHS Chief of Staff Brian Harrison told reporters. “We’re proposing a rule that will require regular review of regulations to ensure that they’re up to date and delivering the promised benefits.”

Opponents of the proposal argue in part that retrospective review would burden coronavirus-focused agency staff. “If the staff working to crush the virus has to be diverted to justify and spend time dealing with regulations they would not want to sunset, it’s a question of staff time that takes away from our ability to actually deal with the virus,” said Representative Frank Pallone (D-N.J.)

Many state agency regulations are already subject to sunset provisions. A Ballotpedia survey of all 50 state constitutions and Administrative Procedure Acts (APA) found that 11 state APAs include sunset provisions for most administrative rules, while Arizona and Vermont have sunset provisions that kick in under certain circumstances.

The proposed rule is open to public comment through January 4, 2021. 

Additional reading:



Federal Register weekly update: Three new significant proposed 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 regulatory activity.

From November 9 to November 13, the Federal Register grew by 1,676 pages for a year-to-date total of 72,898 pages. Over the same period in 2019 and 2018, the Federal Register reached 63,564 pages and 58,174 pages, respectively. As of November 13, the 2020 total led the 2019 total by 9,334 pages and the 2018 total by 14,724 pages. 

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

Last week’s Federal Register featured the following 418 documents:

  • 318 notices
  • six presidential documents
  • 36 proposed rules
  • 58 final rules

Three proposed rules concerning amendments to the U.S. Department of Agriculture’s Lamb Promotion, Research, and Information Order, emission standards for hazardous air pollutants, and enterprise products overseen by the Federal Housing Finance Agency 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 Trump administration in 2020 has issued 30 significant proposed rules, 63 significant final rules, and one significant notice as of November 13.

Not all rules issued by the Trump administration are regulatory actions. Some rules are deregulatory actions pursuant to President Trump’s (R) Executive Order 13771, which requires federal agencies to eliminate two old significant regulations for each new significant regulation issued.

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 2019, 2018, and 2017: https://ballotpedia.org/Changes_to_the_Federal_Register 

Additional reading:

Click here to find yearly information about additions to the Federal Register from 1936 to 2018: https://ballotpedia.org/Historical_additions_to_the_Federal_Register,_1936-2018



Arkansas Supreme Court clarifies deference prohibition

Image of Arkansas State Supreme Court building

The Arkansas Supreme Court on October 29 clarified in American Honda Motor Co. v. Walther that state courts should not exercise deference to state agency interpretations of statutes. Instead, the court held that Arkansas state courts should review agency statutory interpretations de novo—without deference to a previous interpretation of the underlying statute in question.

The court’s decision reiterated its May 2020 holding in Meyers v. Yamato Kogyo Co. that the court should determine the meaning of state laws and not defer to state agency interpretations of statutes.

In an opinion by Justice Karen Baker, the court cited its earlier holding in Meyers, stating that “it is the province and duty of this Court to determine what a statute means. In considering the meaning and effect of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. An unambiguous statute will be interpreted based solely on the clear meaning of the text. But where ambiguity exists, the agency’s interpretation will be one of our many tools used to provide guidance.”

Additional reading:



Federal Register tops 70,000 pages for 2020

The Federal Register is a daily journal of federal government activity that includes presidential documents, proposed and final rules, and public notices. This journal is a common measure of an administration’s regulatory activity.

From Nov. 2 to Nov. 6, the Federal Register grew by 2,104 pages for a year-to-date total of 71,222 pages. Over the same period in 2019 and 2018, the Federal Register reached 60,882 pages and 56,254 pages; respectively. As of Nov. 6, the 2020 total led the 2019 total by 10,340 pages and the 2018 total by 14,968 pages. 

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

This week’s Federal Register featured the following 608 documents:

• 469 notices
• 15 presidential documents
• 54 proposed rules
• 70 final rules

No proposed or final rules were deemed significant under Executive Order 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 Trump administration in 2020 has issued 27 significant proposed rules, 63 significant final rules, and one significant notice as of Nov. 2.

Not all rules issued by the Trump administration are regulatory actions. Some rules are deregulatory actions pursuant to President Trump’s (R) Executive Order 13771, which requires federal agencies to eliminate two old significant regulations for each new significant regulation issued.

Ballotpedia maintains page counts and other information about the Federal Register as part of its Administrative State Project. This 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 2019, 2018, and 2017.

Additional reading:
Click here to find yearly information about additions to the Federal Register from 1936 to 2018.



OIRA reviewed 53 significant rules in October

The White House Office of Information and Regulatory Affairs (OIRA) reviewed a total of 53 significant regulatory actions issued by federal agencies in October 2020. The agency approved two rules without changes and approved the intent of 48 rules while recommending changes to their content. Agencies withdrew two rules from the review process. One rule was subject to a statutory or judicial deadline.

OIRA reviewed 45 significant regulatory actions in October 2019, 43 significant regulatory actions in October 2018, and 25 significant regulatory actions in October 2017. During the Obama administration from 2009-2016, OIRA reviewed an average of 42 significant regulatory actions each October.

OIRA has reviewed a total of 528 significant rules so far in 2020. The agency reviewed a total of 475 significant rules in 2019, 355 significant rules in 2018, and 237 significant rules in 2017.

As of November 2, 2020, OIRA’s website listed 133 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.

Every month, Ballotpedia compiles information about regulatory reviews conducted by OIRA. To view this project, visit: 

Completed OIRA review of federal administrative agency rules

Additional reading:



Union sues to block Trump executive order reclassifying civil service employees

Image of the E. Barrett Prettyman Federal Courthouse in Washington, D.C.

The National Treasury Employee’s Union (NTEU) on October 26 filed a lawsuit in the U.S. District Court for the District of Columbia that aims to block the implementation of President Donald Trump’s (R) Executive Order 13957. The order, issued on October 21, reclassifies federal civil service employees in the competitive service who serve in policy-related roles as members of the the excepted service.

The order directs agencies to reclassify competitive service employees who serve in “confidential, policy-determining, policy-making, or policy-advocating positions and that are not normally subject to change as a result of a Presidential transition” as members of the newly created Schedule F within the excepted service. The classification change, according to the order, aims to give agency heads greater flexibility in the appointment of staff members who serve in policy-related positions. The order also claims that the change will make it easier for agency management to remove poor-performing employees. 

Opponents of the order, including the NTEU and the American Federation of Government Employees, claim that the classification change exceeds the president’s authority and will politicize a large portion of the civil service.

Members of the competitive service are hired according to a neutral, merit-based selection process and have protections against at-will removal by their supervisors. Members of the excepted service, on the other hand, are recruited and hired by agencies to fill certain positions for which candidates cannot be appropriately assessed through the merit-based selection process and do not share in the competitive service’s at-will removal protections. The order, however, directs agencies to develop rules that create similar protections for Schedule F employees.

The debate over E.O. 13957 is part of a broader debate over executive control of agencies—one of five pillars key to understanding the main areas of debate about the nature and scope of the administrative state. Executive control is primarily exercised through the executive’s power to appoint and remove officials in the various branches of government.

Additional reading:



Federal Register weekly update: Three new significant rules published

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 regulatory activity.

From October 26 to October 30, the Federal Register grew by 1,488 pages for a year-to-date total of 69,118 pages. Over the same period in 2019 and 2018, the Federal Register reached 59,288 pages and 55,246 pages, respectively. As of October 30, the 2020 total led the 2019 total by 9,830 pages and the 2018 total by 13,872 pages. 

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

This week’s Federal Register featured the following 574 documents:

  • 474 notices
  • six presidential documents
  • 39 proposed rules
  • 55 final rules

Three final rules related to training for Transportation Security Administration employees, the implementation of the Combat Methamphetamine Epidemic Act of 2005, and the inspection of egg products 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 Trump administration in 2020 has issued 27 significant proposed rules, 63 significant final rules, and one significant notice as of October 30.

Not all rules issued by the Trump administration are regulatory actions. Some rules are deregulatory actions pursuant to President Trump’s (R) Executive Order 13771, which requires federal agencies to eliminate two old significant regulations for each new significant regulation issued.

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.

Additional reading:



Trump executive order aimed at increasing agency control of policy-related employees

Banner with the words "The Administrative State Project"

President Donald Trump (R) on October 21 issued an executive order, “Executive Order on Creating Schedule F in The Excepted Service,” that directs agencies to reclassify federal civil service employees in the competitive service who serve in policy-related roles as members of the excepted service. Supporters of the order claim that the change will increase agency oversight of staff members who perform policymaking functions while opponents argue that the order will politicize policy-related civil service positions.

The order directs agencies to reclassify competitive service employees who serve in “confidential, policy-determining, policy-making, or policy-advocating positions and that are not normally subject to change as a result of a Presidential transition” as members of the newly created Schedule F within the excepted service. As members of the competitive service, these employees have been hired according to a neutral, merit-based selection process and have had protections against at-will removal by their supervisors. As members of the excepted service, these employees will be recruited and hired by agencies to fill certain positions for which candidates cannot be appropriately assessed through the merit-based selection process and will not share in the competitive service’s at-will removal protections.

The classification change, according to the order, aims to give agency heads greater flexibility in the appointment of staff members who serve in policy-related positions. The order also claims that the change will make it easier for agency management to remove poor-performing employees. Though the change makes the qualifying employees ineligible for the adverse action protections of the competitive service, the order directs agencies to develop rules that create similar protections for Schedule F employees. The order also instructs the Federal Labor Relations Authority to determine whether Schedule F positions should be eligible for union membership.

Opponents of the order, including American Federation of Government Employees National President Everett Kelley, argue that the order could potentially politicize a large portion of the civil service.

It is unclear how many positions will meet the order’s criteria for Schedule F. Agencies have 90 days from the date of the order to conduct a preliminary review of qualifying staff and must conduct a complete review within 210 days.

This order is the latest in a series of executive orders issued by Trump that seek to make changes within the federal civil service. Trump issued a trio of executive orders in 2018 aimed at facilitating the removal of poor-performing federal employees and streamlining collective bargaining procedures. Public sector unions unsuccessfully challenged the orders in court. That same year, Trump issued an executive order in response to the U.S. Supreme Court decision in Lucia v. SEC that moved administrative law judges from the competitive service to the excepted service.

Additional reading:



Bitnami