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Red Tapeworm 2014: Over 24,000 Pen and Phone “Public Notices” Annually

This is Part 16 of a series taking a walk through some sections of Ten Thousand Commandments: An Annual Snapshot of the Federal Regulatory State (2014 Edition)

Executive orders matter increasingly in a realm where the domain of private sector authority and control yields to governmental bodies and bureaucracies. (Read more about them in the July 4 special edition of “Red Tapeworm.”)

“Public Notices” published in the Federal Register also matter more as a regulatory state ages and accumulates bulk.

While there are some 3,500 final rules issued annually, there are tens of thousands of public notices, with uncounted “guidance documents,” memoranda and bulletins among them. I discuss the significance of such “Undocumented Regulation,” that occurring beyond the normal, required notice-and-comment procedure of the Administrative Procedure Act here in Forbes (“Despotism Lite? The Obama Administration’s Rule By Memo.”)

The chart nearby shows that the number of notices annually has never dipped below 24,000 since 1996. There were 24,261 in 2013. One wonders how many have pondered the implications of 477,929 notices accumulating since 1995. Now that policies are announced by blog, such as the Department of Treasury’s extensions of certain Obamacare deadlines, notices and actual rules undercount regulation.

Not many, or we’d have long since passed legislation to weed out the overgrowth of federal rules, regulations, red tape. But even harmful and stupid regulations have a powerful constituency among cronies, favored businesses, bureaucrats, self-styled “public interest” groups, and public unions.

The thousands of private sector regulations, the ones that we can count in places like Ten Thousand Commandments and that that garner so much deserved attention can become increasingly sidelined as central oversight grows. When government does everything in a “fundamentally transformed” society, both economically and socially, then by “regulating,” the government is “merely” changing its “internal” policies. The cataclysm for liberty that entails cannot be overstated. It can, however (and is), be ignored by those in power.  

Most normal, notice-and-comment regulations already lack basic cost-benefit or other analysis. The constant torrent of guidance documents, memoranda, bulletins, press releases—all incarnations of the highly touted “pen” and “phone”—compound the problems and threaten our liberties immensely. 

Guidance documents and regulations being implemented outside the Administrative Procedure Act process, along with “budget rules” allow still more behind the scenes rulemaking with no or little democratic accountability.  As the federal government conducts so much commerce and takes over private activity, regulation gets ever harder to measure.

Red Tapeworm 2014 Series:

  • Part 1: Guess Which Is the Largest Government on Earth?
  • Part 2: Tardy Bureaucrats Gone Wild
  • Part 3: Reckoning the Dollar Cost of Federal Regulation
  • Part 4: Regulations Catching Up to Government Spending?
  • Part 5: Regulations Cost More than Federal Income Taxes
  • Part 6: The Federal Government “Eats” 31 Percent Of The U.S. Economy
  • Part 7: U.S. Regulation Compared to the World’s Largest Economies
  • Part 8: The High Cost of Overcriminalization 
  • Part 9: Thousands of Federal Register Pages
  • Part 10: A Record Number of Federal Register Final Rule Pages
  • Part 11: Federal Register Pages Per Decade
  • Part 12:  Number of Proposed and Final Rules In the Federal Register
  • Part 13: Cumulative Final Rules in the Federal Register
  • Part 14: The Expanding Code of Federal Regulations
  • Part 15: A Fourth of July Reflection on Presidential Executive Orders and Loss of Liberty