The White House Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) published on Dec. 13 the Fall 2024 edition of the Unified Agenda of Regulatory and Deregulatory Actions that had been due in October, as required by the Regulatory Flexibility Act (5 U.S.C. § 602(a)). The Unified Agenda is the biannual snapshot of the federal administrative state and tracks the thousands of regulatory actions across hundreds of agencies. While imperfect in many ways, it does provide some valuable insight into forthcoming federal agency actions.
The Fall 2024 edition marks the last Unified Agenda publication of the Biden administration. President-elect Donald Trump’s incoming administration will take a close look at active rulemaking projects in the regulatory pipeline. Upon inauguration on Jan. 20, the Trump administration is expected to initiate a customary “regulatory freeze” to determine future actions on pending rulemaking projects.
Notices of proposed rulemaking and “pre-rule” activities that do not align with the new administration’s policy priorities are likely to be either terminated or mothballed as “long-term actions.” Some rulemakings that have completed their public notice-and-comment stage and are nearing finalization will require additional work to justify their withdrawal.
The Spring 2025 edition of the Unified Agenda should offer insights into the Trump administration’s regulatory strategy, including how it will dispose of legacy rulemakings from the Biden administration. In addition, the Biden Department of Transportation’s finalization of last-minute “midnight regulations” will face scrutiny from both the incoming Trump administration and the new Congress, which is discussed in detail later in this article.
I previously examined the transportation rulemakings contained in Spring 2024, Fall 2023, Spring 2023, Fall 2022, Spring 2022, Fall 2021, Spring 2021, and Spring 2020 editions of the Unified Agenda for Reason Foundation. From a historical perspective, Figure 1 below shows that the current volume of regulatory activity at the U.S. Department of Transportation is typical of what has been observed since the second term of the Obama administration.
The Fall 2024 Unified Agenda lists 222 active rulemaking projects at the U.S. Department of Transportation. Of those 222, 20 are new rulemaking projects first published in the Fall 2024 edition. These new rulemaking projects are listed in Table 1 at the bottom of this article.
The Unified Agenda contains rules determined to be “significant regulatory actions,” or “economically significant” rules, which had been defined by Executive Order (E.O.) 12866 (1993) as regulations that would have an annual impact on the economy of $100 million or more, or otherwise “adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.” Rules deemed economically significant are subject to greater scrutiny, most notably a requirement that agencies conduct a benefit-cost analysis of the proposed regulation.
With the changes brought by E.O. 14094 (2023), the annual cost threshold for a rule to be considered a “significant regulatory action” doubled to $200 million, and that threshold will be adjusted every three years for “changes in gross domestic product.” This adjustment was made in Section 3(f)(1) of the 2023 E.O. A discussion of the rationale and implications of this change can be found in my review of the Fall 2023 edition of the Unified Agenda.
One important implication is that E.O. 14094 makes historical comparisons of the stock and flow of “economically significant rules” more challenging. Fortunately, as part of the Congressional Review Act, Congress itself requires a separate “major” rule designation that retains the traditional $100 million threshold (5 U.S.C. § 804(2)(A)), allowing for continued like-for-like historical accounting.
Figure 1 preserves the traditional cost threshold by counting “major” rules instead of newly designated “section 3(f)(1) significant” rules. For comparison, there are currently 14 “major” rules and 12 “section 3(f)(1) significant” rules under development at the Department of Transportation. Of the 20 new rulemaking projects that first appeared in the Fall 2024 edition of the Unified Agenda, eight have a “major” status listed as “undetermined,” meaning they could be later determined to be “major” rules as they move through the rulemaking process and economic costs are estimated.
Midnight Regulations from the Department of Transportation
The outcome of the November elections gives the Fall 2024 Unified Agenda special significance. When control of the executive branch changes parties following an election, the outgoing presidential administration generally attempts to finalize as many rulemakings as possible, which are colloquially called “midnight regulations.”
Midnight regulations promulgated in the final two months of a presidential administration are subject to the Congressional Review Act (CRA), which allows Congress to overturn agency rules that are published in the Federal Register and transmitted to Congress within the last 60 days of continuous session. While we will not know the start of the 60-day CRA “lookback” window until the Congress adjourns, it is likely to be on or around August 1, 2024
The CRA is an especially valuable tool during transitions when the incoming Congress is to be controlled by the same party as the president-elect because a CRA resolution of disapproval requires just a simple majority to pass Congress. And once a CRA resolution of disapproval is signed by the president, agencies are forbidden from promulgating a regulation that is “substantially the same” in the future.
According to the Fall 2024 Unified Agenda, 74 rulemaking projects are in the final rule stage at the Department of Transportation. Of those, 41 have estimated final rule publication dates in Dec. 2024 or Jan. 2025. These are the midnight regulations.
In recent weeks, some of these midnight regulations have already been published in the Federal Register, making them official and (if they have been properly transmitted to Congress) subject to CRA disapproval. Many of the others are likely to be published by Jan. 17, the Friday before the presidential inauguration. But Congress is likely to focus its attention on the most costly rules. The Unified Agenda lists five major final rules at the Department of Transportation set to be published in December or January.
- Federal Aviation Administration: Integration of Powered-Lift: Pilot Certification and Operations; Miscellaneous Amendments Related to Rotorcraft and Airplanes (Published Nov. 21)
- Federal Highway Administration: Application of Buy America to Manufactured Products (Scheduled for December publication)
- Federal Motor Carrier Safety Administration: Heavy Vehicle Automatic Emergency Braking; National Highway Traffic Safety Administration: Heavy Vehicle Automatic Emergency Braking (Scheduled for January publication)
- National Highway Traffic Safety Administration: Rear Seat Belt Reminder System (Scheduled for December publication)
- Pipeline and Hazardous Materials Safety Administration: Pipeline Safety: Gas Pipeline Leak Detection and Repair (Scheduled for January publication)
Three of these midnight regulations are unlikely to be overturned by congressional review. The Federal Aviation Administration’s powered-lift final rule was praised by regulated entities, so Congress is unlikely to target it for disapproval under the CRA. The Federal Highway Administration’s pending rule that is expected to eliminate the longstanding exclusion of manufactured products from Buy America domestic content requirements is opposed by many regulated entities but is likely to avoid CRA scrutiny given the populist bent of the Republican Congress and incoming Trump administration. And automotive industry criticisms of the National Highway Traffic Safety Administration’s proposed mandate on real seat belt reminder systems have more to do with global harmonization and technical implementation details than the motivation behind the regulation itself, so it too is likely safe from a CRA resolution of disapproval.
However, the other two midnight regulations may face CRA disapproval. The natural gas industry has opposed the Pipeline and Hazardous Materials Safety Administration’s recent efforts to regulate methane leaks, and the incoming administration is more aligned with the energy industry in general. Similarly, the Federal Motor Carrier Safety Administration and National Highway Traffic Safety Administration’s proposal to mandate automatic emergency braking in large trucks and buses has faced skepticism from key industry groups, with the loudest opposition coming from truck drivers themselves.
In addition to these midnight regulations, other final rules promulgated within the CRA lookback window may be targeted by the incoming Congress and Trump administration. George Washington University’s Regulatory Studies Center has produced a Congressional Review Act Window Exploratory Dashboard that allows users to input various lookback dates to determine which regulations are available for congressional review.
Table 1: U.S. Department of Transportation Rulemaking Projects First Published in the Fall 2024 Unified Agenda
| Agency | Stage of Rulemaking | Title | RIN |
|---|---|---|---|
| OST | Prerule | Revisions to Cause of Airline Delay Categories | 2105-AF29 |
| OST | Final Rule | Procedures for Transportation Workplace Drug and Alcohol Testing Programs | 2105-AF28 |
| OST | Final Rule | Periodic Revisions to Denied Boarding Compensation and Domestic Baggage Liability | 2105-AF30 |
| OST | Final Rule | Transportation Acquisition Regulation: Technical Amendments to Align With the FAR | 2105-AF31 |
| FAA | Proposed Rule | Update to Bid Protest and Contract Dispute Regulations | 2120-AM02 |
| FAA | Proposed Rule | Mechanic Certification: Inspection Rating and Currency Requirements | 2120-AM04 |
| FAA | Proposed Rule | Operating Requirements: Definition Changes for On-Demand Operation, Scheduled Operation, and Supplemental Operation | 2120-AM05 |
| FAA | Final Rule | Extension of the Prohibition Against Certain Flights in the Territory and Airspace of Libya | 2120-AM03 |
| FAA | Final Rule | Regulatory Updates to BasicMed | 2120-AM06 |
| FHWA | Proposed Rule | MUTCD 11th Edition, Technical Correction | 2125-AG15 |
| FMCSA | Proposed Rule | Incorporation by Reference; North American Standard Out-of-Service Criteria; Hazardous Materials Safety Permits (2025) | 2126-AC74 |
| FMCSA | Final Rule | General Technical Amendments (2025) | 2126-AC75 |
| NHTSA | Prerule | Modernizing Part 563, ‘Event Data Recorders,’ for Emerging Technologies. | 2127-AM67 |
| NHTSA | Proposed Rule | Exemptions From Average Fuel Economy Standards for Low Volume Manufacturers for MYs 2024-2026 | 2127-AM68 |
| NHTSA | Final Rule | Federal Motor Vehicle Theft Prevention Standard, MY 2022 High-Theft Light-Duty Truck and Exempted Vehicle Line Listing. | 2127-AM66 |
| FTA | Proposed Rule | Prevention of Alcohol Misuse and Prohibited Drug Use in Transit Operations | 2132-AB48 |
| FTA | Proposed Rule | Public Transportation Safety Program | 2132-AB49 |
| SLSDC | Final Rule | Seaway Regulations and Rules: Periodic Update, Various Categories | 2135-AA57 |
| SLSDC | Final Rule | Tariff of Tolls | 2135-AA58 |
| PHMSA | Proposed Rule | Pipeline Safety: Standards Update III | 2137-AF70 |
Source: Office of Information and Regulatory Affairs, Unified Agenda of Regulatory and Deregulatory Actions, Fall 2024
Note: RIN = Regulation Identifier Number, a unique alphanumeric code assigned by the Regulatory Information Service Center to each rulemaking project listed in the Unified Agenda. An explanation of Stage of Rulemaking terms can be found on pages 12 and 13 of the Introduction to the Unified Agenda from the Regulatory Information Service Center.