2024 edition of Ten Thousand Commandments is out now

The federal government has a spending budget that the public can see. Every year Congress allocates a certain amount of money to each agency, and often for specific programs within each agency. All of this is published online, with data going back to the last century. By contrast, there is no centralized budget document for federal regulatory costs. Federal regulations cost an estimated $2.1 trillion per year, based largely on the data agencies bother to disclose. That’s more than $15,000 per year for the average household. Why so little accountability?

That is why CEI’s Wayne Crews puts together the annual Ten Thousand Commandments report. He does what the government won’t. Right now, data on the number of regulations, how much they cost, and which rulemaking agencies are most active are scattered across dozens of sources.

Required reports show up months or years late, and sometimes not at all. Ten Thousand Commandments takes all these and puts their information into one place so that it is possible to make at least some sense of Washington’s regulatory flood.

For example, in a typical year, agencies will issue more than 3,000 new regulations. These add onto an existing stock of rules that fills more than 188,000 pages in the Code of Federal Regulations. Recent regulations range from how much energy walk-in refrigerators use to seat belt standards for crew member seats on airplanes.

This year’s Ten Thousand Commandments also goes over some of the changes the Biden administration has made to the rulemaking process. New cost-benefit analysis methods task the Office of Management and Budget with justifying new regulations, rather than providing accurate information on their costs and benefits.

A lower 2 percent discount rate in cost estimates makes regulations seem less expensive over the long run than they really are. Until recently, agencies gave estimates for both 3 percent and 7 percent discount rates.

“Economically significant” regulations get additional scrutiny that smaller regulations don’t, from extra cost-benefit analysis to how they would affect small businesses and state and local governments. The Biden administration doubled the threshold from $100 million per year to $200 million for rules getting this treatment, so more rules can escape it. These rules now also bear the less descriptive name “3(f)1 significant rules,” so that people unfamiliar with administrative law are less likely to discover these expensive rules in the first place.

There is a formal process that agency regulations must go through before they take effect. The agency must publish a draft version of the rule in the daily Federal Register and allow some time for public comments, usually 60 or 90 days. The agency must then respond to this feedback before publishing the final version in the Federal Register. If a regulation meets any of the numerous definitions of “significant” or “major,” the agency must also put that rule through several other types of analysis, such as cost-benefit analysis.

Then there is the problem of regulatory dark matter, which refers to rules that avoid that required formal process. Agencies issue thousands of regulations in the form of guidance documents, memoranda, notices, press releases, and even blog posts. Courts will often uphold these dark matter regulations, giving them the effective force of law.

Finally, Wayne offers solutions to these problems. One is a proper annual regulatory budget, similar to Congress’s annual spending budget. Another is an online portal that tracks regulatory dark matter, such as guidance documents, memoranda, and other informal regulations that often still have the force of law. The GOOD Act, which recently unanimously passed its Senate committee, would implement a version of this.

Wayne also proposes more precise definitions of “economically significant” (now 3(f)1 significant), including several cost tiers that let the public know what order of magnitude a rule will likely cost.

Separation of powers is a major problem in regulation, with the executive branch now doing most legislating. One solution is to have Congress hold votes on all new regulations costing more than $100 million per year, as the REINS Act would require. This would provide a check on agencies unilaterally regulating without congressional legislation, as has happened recently on issues ranging from net neutrality to navigable waterways.

Read the whole 2024 Ten Thousand Commandments report here. For the short version, the press release is here.