On Wednesday last week, the White House Office of Management & Budget released their highly anticipated Fall 2023 Unified Regulatory Agenda. Since 1983, this publication from the White House has been released twice a year, with the intent of offering insight into forthcoming regulatory priorities from every administration. This year’s agenda lays out 2,557 rule changes spread across all federal agencies, with a wide array of impacts ranging from cybersecurity to climate change to tobacco to more.
Especially in a consequential election year, it was somewhat expected that next year would be robust in terms of the regulatory process – particularly in the first half of next year to avoid the joint resolution of disapproval process if there is an administration change after the 2024 election. Under the Congressional Review Act, Congress can pass a joint resolution of disapproval within 60 legislative days of a final rule’s publication in the Federal Register. Former President Donald Trump used this process to overturn 14 regulations that were issued towards the end of President Barack Obama’s presidency. Meanwhile, President Biden signed 3 CRA resolutions to undo regulations that were introduced at the end of President Trump’s term.
Furthermore, given this tense election year and in a further divided Congress with very narrow majorities, the legislative process is poised to be even more complex and it will take considerable time for lawmakers to gain the traction necessary to advance legislation with bipartisan and bicameral support. Thus, the administration will be focused now more than ever on using regulatory and administrative action to advance their agenda, and this effort will only grow more prominent as the White House seeks to move forward their key priorities for key 2024 campaign messaging.
Lastly, this latest regulatory agenda highlights that the administration will continue to be focused on implementing the several large-ticket legislative packages that were signed into law in the first two years of the Biden administration – the Infrastructure Investment & Jobs Act, the CHIPS & Science Act, and the Inflation Reduction Act. Implementation of the programs in these packages, as well as disbursement of the various funding mechanisms enacted, will continue to be of paramount priority for the administration.
Therefore, while it is a busy political atmosphere with an election on the horizon, it is vital that entities do not lose sight of forthcoming administration regulations that will have the potential for large impact throughout this year. The regulatory agenda for next year points to several notable actions across virtually every policy space, including the below as only a few examples:
Climate Change and ESG: The Securities and Exchange Commission (SEC) is planning final action on its proposed rules that would require publicly traded companies to disclose climate-related risks in their financial statements by April next year. Separately, the SEC is also planning for final action in April on rules that would mandate greater disclosures on their environmental, social, and governance (ESG) investment practices.
Cybersecurity: The Cybersecurity & Infrastructure Security Agency (CISA) is expected to release highly anticipated rules on the Cyber Incident Reporting for Critical Infrastructure Act (CIRCIA) that was passed last Congress. The rules, which would set up a framework requiring comprehensive reporting on cyber incidents and ransom payments, is expected in March next year.
Overtime: The Department of Labor is planning to finalize rules surrounding overtime changes, with rules proposing to increase the salary threshold for overtime exemptions and the salary threshold for highly compensated employees. The final rule is set to be issued by April next year.
Immigration: The Department of Homeland Security is planning to modernize several of its key visa programs – specifically their H-1B, H-2A, and H-2B programs. The agency has outlined that they’re planning to collect comments on reducing inefficiencies and to enhance pay protections for skilled workers using these programs. Furthermore, U.S. Citizenship and Immigration Services (USCIS) proposed that they would publish a final rule on increasing their fees for immigration benefit requests. These rules can be expected in April next year.
Credit Card Fees: The Consumer Financial Protection Bureau (CFPB) is planning to release a final rule on credit card late fees, as well as new proposed rules on non-sufficient funds and overdraft fees. These rules are expected either this month or January next year.
Tobacco: While the Food & Drug Administration acted back in 2022 to issue proposed regulatory actions on banning menthol cigarettes, stakeholders have been waiting for a final rule. This rule is now set to be implemented in March next year, which is still later than anticipated as it was expected either this month or January next year.
As demonstrated by the highlights above, the regulatory agenda for 2024 is robust and covers a wide breadth of policy priorities. Although it will be a busy year for engaging with Congress on a number of legislative items, it will be critical for entities to remain informed of and involved in the regulatory process in order to be truly effective in advancing their policy platforms.