First, there's a lot of definitions to be written:
- what's "new"? Is it a brand new subject area--would all the regulations issued to implement ACA be considered "new"? Trump's not proposing many new programs, so that would cut the impact. But he does have to implement his infrastructure bank and his replacement of ACA and.. Or when FSA issues new regulations or revises old regulations to implement the new farm bill, will those be considered "new"? That definition would greatly expand the impact. What is the distinction between substantive newness and editorial newness?
- who's the actor, at what level will the balancing have to be done? In the case of USDA, is it at the agency level, FSA? How are cross-agency regs handled (like sodbuster/swampbuster applying both to ASCS and SCS)? Or will it be USDA as a whole? Or maybe the government as a whole?
- who's the enforcer? Obviously if it's the government as a whole, then only OMB's regulatory shop can enforce, but if it's at a lower level you could also delegate the enforcement responsibility. But with delegation comes discretion to interpret the rules.
- when does a document become a regulation? Is it when the final rule is published, or do you have to be identifying the regs to be eliminated back in the proposed rulemaking document? Or can you publish a final rule Z with the promise that reg X and Y are being eliminated?
- finally, what is a "regulation"? Are we focused on the paperwork or the legal substance? The two are not the same--one document may cover several parts (a "part" is a subdivision of the Code of Federal Regulations, representing some legal substance) or only a subpart or subsection of a part. Or will the definition limit the applicability to "significant" regulations, the ones exceeding $100 million in impact (a threshold which has never been adjusted for inflation)?