From the Old and Cold Files: Obama’s 'Secret' List

Office of Management and Budget Director Mick Mulvaney assured reporters today that the Obama administration’s “secret list” of regulations kept hidden from public view had been safely eliminated.

What’s that? A secret list, you say?

Mulvaney was speaking about the 860 regulatory actions that the Trump administration was withdrawing or removing from active status in its spring 2017 unified agenda.

Mulvaney holds up what he says are Obama's regulations

Of those, 178 regulatory actions had been taken off the secret list of regulations that the Obama administration had developed in 2011, in advance of the 2012 midterm elections.

To hear tell, when the Obama administration was developing its unified agenda in 2011, they had a bunch of things they wanted to regulate, but didn’t want to tell the public about, Mulvaney said.

“They thought it would be bad for their re-election prospects in 2012, so they created a secret list of regs that were not disclosed,” Mulvaney said. “And we are disclosing them.”

Moreover, when OMB threatened to disclose the list, a lot of the agencies came up with the 860 regulatory actions that have since been rolled back, Mulvaney said.

“There will be none of that in this administration,” Mulvaney asserted. “We will not have a hidden list of regulations that we’re thinking about doing, but we’re not going to tell you about.”

The existence of this list, however, was not so secret in 2015, when the Administrative Conference of the U.S. adopted a non-binding recommendation to stop the practice of moving “old and cold” rules from the unified agenda to the back burner.

In a March 2015 report, ACUS researcher Curtis Copeland found that in addition to the five rulemaking stages used in the unified agenda, regulators had effectively created a sixth category called “pending” that was not visible to the public.

Since at least 2010, OIRA had been asking agencies to consider eliminating long-term entries in the unified agenda when no real activity was expected in the coming year.

Most agencies, however, are reluctant to eliminate rules entirely because doing so would require them to start over from scratch should priorities change. Much easier to put them on a back shelf, out of public view, and retrieve them later if necessary.

Still, ACUS voted on June 4, 2015, to recommend that federal agencies should not keep regulations that are still under active development in a “pending” category, even if it meant more work down the road.