Earlier this year, the Federal Trade Commission (FTC) and Department of Justice (DOJ) Antitrust Division launched initiatives to identify and eliminate anticompetitive government regulations, as SCL covered back in April.
President Trump required agency heads to submit lists of rules that may create anticompetitive barriers, and the FTC and DOJ invited the public to submit comments identifying anticompetitive regulations affecting five major industries: housing; transportation; food and agriculture; health care; and energy.
More than 170 comments were submitted, including from prominent organizations like the Committee to Support the Antitrust Laws, the American Medical Association, the American Hospital Association, the American Dental Association, United Airlines, TikTok, the National Small Business Association, and the U.S. Chamber of Commerce.
Since then, speculation has mounted about the focus and scope of FTC and DOJ’s initiatives. Would they take a scalpel-like approach to discrete competition issues or pursue broader deregulatory efforts? Which industries would be targeted, and through what process would any regulations be changed?
Last month, the first wave of insights emerged, but most information about the FTC and DOJ’s efforts remains undisclosed—despite demands from U.S. Representative Jerry Nadler that they be made public under the Administrative Procedure Act.
On September 16, FTC Chairman Andrew Ferguson published a letter to the Office of Management and Budget (OMB) announcing an FTC report identifying 125 regulations that the FTC recommends be deleted or modified. The letter explained that the report was based on “months of hard work from expert FTC and DOJ lawyers and economists, as well as representatives of agencies across government.” While the letter highlighted a “sample” of four of the 125 regulations targeted in the FTC’s report, the report itself was not made public, and the letter did not disclose the other 100+ regulations that the FTC has recommended for rescission or amendment.
The four sample regulations identified in the FTC’s letter include transportation regulations that support awarding contracts to businesses owned by disadvantage applicants; education regulations that allow colleges to automatically apply financial aid to textbooks; a proposed rule to require table saws to use finger detection technology promoted by a single patent holder; and eligibility requirements for ranchers to obtain grazing permits.
The letter noted that certain regulations identified in the report are already in the process of being repealed or modified, and that deciding whether to act on the remaining regulations ultimately “rests with the President, acting through the OMB and the agencies responsible for the regulation” at issue.
Beyond that, Chairman Ferguson’s letter did not shed light on which other regulations the FTC identified, the process by which they might be rescinded, or the timeline for any action. Nor did the letter explain why the FTC was not making its full report public or if it will do so in the future.
Thus, despite the significant public interest in the agencies’ initiatives, and the FTC’s recommendation to overhaul more than one-hundred government regulations, the scope and targets of the FTC and DOJ’s work remains largely unknown.
Earlier this week. Rep. Jerry Nadler sent a letter to OMB requesting “the immediate release of the list of laws and rules deemed to be anticompetitive” as well as the full FTC report sent to OMB. Rep. Nadler suggested the Administrative Procedure Act required their release and that failing to disclose them “undermines transparency and trust in the rulemaking process.”
To date, however, no more information has been disclosed. Antitrust practitioners and industry stakeholders keeping a close eye on the agencies’ initiatives will thus have to continue to wait for more insight.
SCL will continue to monitor for any developments.
