By Mike Tanglis
President Trump has anointed himself the greatest deregulator in history: “In the history of our country, no president, during their entire term, has cut more regulations than we’ve cut,” he said.
When the administration released its first progress report on regulations in July, its leaders and spokespeople were quick to brag about the number of rules they had stopped, mostly by halting regulations in progress. The administration portrayed the rules it stopped as offering trivial potential benefits to the public.
“I got news for you: None of them are very sexy. None of them are very glamorous. None of them really rise to the level of getting national attention,” said Office of Management and Budget Director (OMB) Director Mick Mulvaney, whose agency published the update on regulations, known as the Unified Agenda.
Our new report, Sacrificing Public Protections on the Altar of Deregulation, analyzes the “withdrawn” regulations in the Trump administration’s first Unified Agenda and compares those findings to more than 20 years of historical Unified Agenda
We arrive at two overarching findings:
First, the current administration has stopped more rulemakings by “withdrawing” them than any administration on record in a single semi-annual reporting period (although it relied on some tricks to boost its statistics).
Second, Mulvaney’s characterization of the halted regulations as inconsequential was wholly inaccurate. The rulemakings that the administration has blocked would have, among other things, reduced workplace accidents, prevented fires and explosions, and protected the rights of same sex couples. In other words, the rules would have done things like save lives and protect civil rights, which are hardly trivial outcomes.
Our analysis quantifies the withdrawn regulations by agency in historical perspective and describes the content of more than 35 regulations that focus on health, safety and the environment. There are many more rulemakings that may interest various stakeholders. As such, along with this report Public Citizen has published a dataset of all the withdrawn rulemakings on the Spring 2017 agenda. [Click to Download Data]
Summary of Findings
In total, the Trump administration has withdrawn 457 rulemakings, according to the Spring 2017 Unified Agenda. This total is the most of any agenda since 1995, our analysis found. [See Figure 1]
Figure 1 – Withdrawn Rulemakings by Unified Agenda – Fall 1995 Through Spring 2017
(Top Five Highlighted)
Health and Human Services (HHS) Withdrawn Rulemakings
The Department of Health and Human Services withdrew 68 rulemakings on the Spring 2017 Unified Agenda. This is the most HHS rulemakings to be listed as Withdrawn on a Unified Agenda except in Spring 2002, when the George W. Bush administration withdrew 78 rules. [See Figure 2]
Figure 2 – HHS Withdrawn Rules on Unified Agenda (2000 – 2017)
The Food and Drug Administration (FDA) had the most withdrawn rulemakings of any HHS agency, 26. The FDA withdrew at least seven tobacco or smokeless tobacco related rulemakings. The FDA also withdrew a rulemaking that would have required prescription drug labeling information be presented in a “clear and concise” way so patients can “safely and effectively” take their drugs.
Centers for Medicare & Medicaid Services (CMS) withdrew a rule proposed to ensure same-sex spouses are “afforded equal rights in Medicare participating facilities.” The rulemaking was proposed in response to the landmark Supreme Court decision United States v. Windsor, the decision that found the federal law banning gay marriage – known as the Defense of Marriage Act (DOMA) – to be unconstitutional.
Substance Abuse and Mental Health Services Administration (SAMHSA) withdrew three rulemakings. One withdrawn rulemaking was proposed to increase access to the drugs buprenorphine and buprenorphine-naloxone combination, which are used to treat opioid addiction. The rulemaking would have allowed nurse practitioners and physicians assistants to administer the drugs to more patients.
Department of Labor (DOL) Withdrawn Rulemakings
The Trump administration listed 26 Department of Labor (DOL) rulemakings as Withdrawn on the Spring 2017 Unified Agenda. This was the second most DOL rulemakings listed as Withdrawn of any Unified Agenda covered in this report. [See Figure 3]
Figure 3 – DOL Withdrawn Rules on Unified Agenda (2000 – 2017)
Occupational Safety and Health Administration (OSHA) withdrew 12 rulemakings. A rulemaking to help prevent injuries and fatalities from vehicles backing over workers was withdrawn. A commonsense rulemaking proposed to require “employers to implement an Injury and Illness Prevention Program,” a preventive measure calling on employers to identify and address hazards, was withdrawn. A rulemaking proposed to at limit employees’ exposure to styrene, a chemical that may cause cancer, was withdrawn.
OSHA also withdrew a rulemaking that was proposed to create a combustible dust standard to prevent fires and explosions. The rulemaking was part of a response to the 2008 combustible dust fire explosion at the Imperial Sugar Company in Port Wentworth, Ga., which killed 14 and injured 38 others. According to a government investigation, the explosion was caused by “massive accumulations of combustible sugar dust.”
Wage and Hour Division (WHD) withdrew a rulemaking proposed to “carry out the spirit” of “Rosa’s Law” – a law passed in 2010 to ensure that the terms “mental retardation” and “mentally retarded” would be replaced with “intellectual disability” in certain areas of federal policy.
Mine Safety and Health Administration (MSHA) withdrew a rulemaking that sought comments on factors in the 2010 Upper Big Branch coal mine explosion in West Virginia. MSHA had intended to use those comments to guide it in formulating regulations to prevent future accidents. The explosion killed 29 miners. Donald Blankenship, the CEO of Massey Energy, the company that controlled the mine, was convicted and sentenced to prison for “conspiring to violate federal mine safety standards.”
Environmental Protection Agency (EPA) Withdrawn Rulemakings
The Trump administration withdrew 20 Environmental Protection Agency (EPA) rulemakings on the Spring 2017 Unified Agenda. [See Figure 4]
Figure 4 – EPA Withdrawn Rules on Unified Agenda (2000 – 2017)
Regional Office Denver (RODENVER) withdrew a rulemaking proposed to ensure safe air quality related to oil and natural gas drilling in the Uintah and Ouray Indian Reservations in Utah. The EPA had previously found that areas within the reservation had “been experiencing wintertime ozone levels that exceed the National Ambient Air Quality Standards.”
Office of Air and Radiation (OAR) withdrew a rulemaking proposed to regulate methane emissions from “existing” oil and natural gas resources. Methane is the country’s second most common greenhouse gas emitted in the United States, according to the EPA.
Department of the Interior (DOI) Withdrawn Rulemakings
With 114 withdrawn rulemakings, the Department of the Interior accounted for the most withdrawn rulemakings listed in the Spring 2017 Unified Agenda. The next closest was the 68 rulemakings withdrawn by the Department of Health and Human Services. In historical context, there were more DOI rules listed as withdrawn on the Spring 2017 unified Agenda than in any previous agenda since 2000 [See Figure 5]
Figure 5 – DOI Withdrawn Rules on Unified Agenda (2000 – 2017)
U.S. Fish and Wildlife Service (FWS) accounted for about close to half of all DOI withdrawn rulemakings. About 40 of the withdrawn Fish and Wildlife Service rulemakings were related to the protection of endangered species or critical habitats, including at least 15 different bat species, 23 Guam and Northern Mariana Island species, an endangered bumble bee species, and multiple plant species in the Florida everglades.
National Park Service (NPS) withdrew a rulemaking that would phase out commercial fishing in the Biscayne National Park in Florida. In 2014, NPS developed a management plan to “protect and restore Biscayne’s “diminishing fisheries resources,” and its coral reef habitats. Brian Carlstrom, the former superintendent of Biscayne National Park, believed the situation was dire, “We’ve gotta do something,” he reportedly said, “if you take the last fish out, that’s the last fish.”
Bureau of Safety and Environmental Enforcement (BSEE) withdrew multiple rulemakings that would have regulated oil and natural gas extraction. One withdrawn rulemaking was proposed to improve risk assessment, produce a more efficient permitting process, and improve safety in offshore oil and natural gas drilling.
The DOI May Not Have Evaluated the Rulemakings It Withdrew
The vast majority of DOI withdrawn rulemakings included a caveat in their withdrawal: “the Department may determine that certain rules listed as withdrawn under this agenda are appropriate for promulgation. If that determination is made, such rules will be included in a succeeding semiannual agenda” or “this agenda item is being withdrawn at the present time to allow the Department to assess further the timing for the action. Following that assessment, this rule will, if appropriate, be included in a succeeding semiannual regulatory agenda under a new RIN.”
Language like this appears in the abstract description section of 107 of the 114 withdrawn DOI rulemakings.
It’s an odd strategy, amounting to a cart before the horse regulatory review process. DOI could have simply left the rulemakings on the agenda until they were able to determine if they “appropriate for promulgation” or not.
Further, the description of two rulemakings listed as withdrawn in the Spring 2017 Unified Agenda indicate that the rulemaking will in fact be included on the next agenda: “Following that assessment, this rule will be included in a succeeding semiannual regulatory agenda under a new RIN.”
Hastily withdrawing these rulemakings before they were reviewed leads one to believe the quest for high withdrawal numbers was prioritized over a thoughtful review.
But DOI’s strategy worked – it withdrew the most rulemakings of any agency, 114, almost twice as many as Health and Human Services (HHS), the agency with the second most withdrawn rulemakings. Secretary of the Interior Ryan Zinke was then singled out and praised by Office of Management and Budget Director Mick Mulvaney for his efforts.
The Trump Administration’s Fervor for Killing off Ongoing Rulemakings Will Leave Will Leave Workplaces Less Safe, the Environment Less Clean and May Ultimately Cost Lives.
A 2008 combustible dust fire explosion at the Imperial Sugar Company in Port Wentworth, Ga., killed 14 and injured 38 others. After a government investigation determined the explosion was caused by “massive accumulations of combustible sugar dust,” OHSA moved create a standard on combustible dust. The Trump administration ended the rulemaking.
In 2015, 29 miners died in an explosion in the Upper Big Branch coal mine in West Virginia. The CEO of the company sentenced to prison for his efforts to elude health and safety rules. The government performed a detailed investigation, pointed out multiple preventable hazards (including again, combustible dust), and the Mine Safety and Health Administration began a rulemaking. The Trump administration ended the rulemaking.
These are just a few examples of the hundreds of rulemakings stopped by the Trump administration.
Making matters worse, the administration appears to have taken on the strategy of withdrawing first and asking questions later. The Department of Interior has all but acknowledged doing so.
The administration’s leaders have cheered their withdrawn rulemaking totals. That’s their prerogative. But if combustible dust causes another factory to blow up, or if another coal mine explosion occurs, those cheers may come back to haunt them.
Dataset of all the withdrawn rulemakings on the Spring 2017 agenda.