Rep. Ann Wagner (R-MO) introduced a sensible bill in Dec. 2022 providing that before issuing a regulation, the Securities and Exchange Commission must “clearly identify the nature and source of the problem that the proposed regulation is designed to address, as well as assess the significance of that problem, to enable assessment of whether any new regulation is warranted.”
One might think that the logic of first identifying a problem before writing a rule should be obvious. Instead, agencies sometimes follow what the BBC comedy Yes, Minister called politicians’ logic: “Something must be done. This is something. Therefore, we must do it.”
Apparently feeling a need to do something, the Equal Employment Opportunity Commission (EEOC) recently proposed a rule change without identifying a problem or assessing whether the rule change was necessary. (Commissioner Keith Sonderling dissented.) The EEOC said the rule change “would standardize the EEOC’s various procedural regulations” but did not explain why it wanted to standardize them.
As I discuss in a comment I submitted to the EEOC, the agency erroneously seeks to the standardize procedures of entirely different types of cases. The reasons the EEOC gave do not support the proposal—or even pertain to it for the most part. The EEOC proposes to take a solution that corrected procedural problems faced by Title VII and Americans with Disabilities Act cases and apply that solution to cases where those problems cannot arise.
At the very least, an unnecessary rule change of this nature creates extra work for practitioners and administrators. And it contributes to an unwelcome trend. As my colleague Wayne Crews pointed out, the pages of the Federal Register jumped from a total of 73,321 pages in 2021 to 80,597 in 2022. At 48,028 pages as of this writing, the Federal Register is on track this year to break 85,000 pages of administrative law clutter.
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