You are here

OpenMarket: Regulatory Reform

  • The Barack Obama Regulatory State Towers over that of Bush

    May 4, 2016 2:18 PM

    A glance at the overall count of rules and regulations leads one to suppose regulatory burdens are decreasing. After all, since Obama took office the total number of rules and regulations appearing annually in the Federal Register has moved from 3,830 in Bush’s last calendar year to 3,410 in 2015, as I describe in the new 2016 edition of Ten Thousand Commandments: An Annual Snapshot of the Federal Regulatory State.

    There’s a deeper story though, that shows how strategic efforts to avoid traditional regulations have actually increased the burden on taxpayers. Through various tactics such as differing rule burdens, executive orders, guidance documents, and a well-documented strategic delay in unpopular rules during 2012 election cycle, President Obama’s regulatory state keeps growing.

    Also, aggressive presidential executive orders and “memoranda” have changed Washington, part of what Obama meant when he said he would use the “pen and phone” to enact his agenda if Congress didn’t go along. President Bush published 129 memoranda over his entire presidency, whereas Obama issued 219 during his first seven years that were published in the Federal Register. Numerous others weren’t published in the Federal Register at all.  

  • CEI's Battered Business Bureau: The Week in Regulation

    May 2, 2016 9:04 AM

    As the Federal Register passed the 25,000-page mark, new rules for the week ranged from fluorescent lamps to disaffected youth.

    On to the data:

    • Last week, 65 new final regulations were published in the Federal Register, after 53 the previous week.
    • That’s the equivalent of a new regulation every two hours and 35 minutes.
    • With 1,077 final regulations published so far in 2016, the federal government is on pace to issue 3,244 regulations in 2016. Last year’s total was 3,406 regulations.
    • Last week, 2,035 new pages were added to the Federal Register, after 1,496 pages the previous week.
    • Currently at 26,003 pages, the 2016 Federal Register is on pace for 78,323 pages. The 2015 Federal Register had an adjusted page count of 81,611.
    • Rules are called “economically significant” if they have costs of $100 million or more in a given year. Eight such rules have been published so far in 2016, one in the last week.
    • The running compliance cost tally for 2016’s economically significant regulations ranges from $729 million to $1.56 billion.
    • 85 final rules meeting the broader definition of “significant” have been published this year.
    • So far in 2016, 203 new rules affect small businesses; 30 of them are classified as significant. 
  • The Proliferation of Federal Agency Guidance Documents

    April 27, 2016 9:16 AM

    Recently we looked at some prominent recent examples of federal agency guidance—costly to-dos for the private sector. Today I wanted to say just a quick a word about the proliferation of guidance overall.

    Recall that agencies use guidance documents and other regulatory dark matter to get around the rule-making process. The Mercatus Center’s Hester Peirce described how “agencies opt for short-cuts”:

    Rather than bothering with the burdensome rule-making process, they use faster and more flexible means of imposing mandates. To avoid running afoul of the letter of the Administrative Procedure Act, these mandates are often couched in tentative, temporary or voluntary terms. Regardless of the language and the format, the effect is the same for regulated entities. The agency suggests that you do something—even if it says that it might suggest something different later—and you do it.

    Guidance is growing and duplicitous. Executive branch agencies sometimes highlight “significant guidance,” a nod toward compliance with a 2007 OMB memo on “Good Guidance Principles,” but usually not (here’s my “quick and dirty” inventory of what exists). Otherwise, guidance documents, memos, bulletins, circulars, and more can take up considerable space in the Federal Register and on agency websites.

  • When Bureaus Attack: Recent Examples of Federal Regulation by "Guidance Document"

    April 25, 2016 2:10 PM

    In the recent paper “Why Congress Must End Regulation by Guidance Document,” I described the rise of federal agency regulatory dark matter and proposed solutions to deal with it.

    In this brief article I survey a few prominent examples of agencies regulating with “guidance” rather than the normal notice-and-comment regulatory process, and provide links to them.

    As it happens, several congressional task forces are engaging overlapping issues of the expansion of executive branch power, restoration of congressional authority under the Constitution, and oversight and control of the federal regulatory enterprise.

    If legislation passed by Congress and signed by the president in plain view sometimes strains doctrines of limited government, then the sub-rosa decrees and guidance documents of bureaus most assuredly do. President Barack Obama’s unilateral executive actions are the prominent examples of rule without Congress, but federal agency guidance documents, memoranda and other regulatory dark matter swell ominously.

  • CEI's Battered Business Bureau: The Week in Regulation

    April 25, 2016 8:51 AM

    The number of new final regulations in 2016 passed the 1,000 mark on Friday. Last week’s new rules cover everything from semipostal stamps to vapor recovery.

    On to the data:

    • Last week, 53 new final regulations were published in the Federal Register, after 61 the previous week.
    • That’s the equivalent of a new regulation every three hours and 10 minutes.
    • With 1,001 final regulations published so far in 2016, the federal government is on pace to issue 3,208 regulations in 2016. Last year’s total was 3,406 regulations.
    • Last week, 1,1496 new pages were added to the Federal Register, after 1,284 pages the previous week.
    • Currently at 23,968 pages, the 2016 Federal Register is on pace for 76,821 pages. The 2015 Federal Register had an adjusted page count of 81,611.
    • Rules are called “economically significant” if they have costs of $100 million or more in a given year. Seven such rules have been published so far in 2016, none in the last week.
    • The running compliance cost tally for 2016’s economically significant regulations ranges from $629 million to $1.46 billion.
    • 80 final rules meeting the broader definition of “significant” have been published this year.
    • So far in 2016, 194 new rules affect small businesses; 27 of them are classified as significant.
  • Federal Agency "Guidance Document" Disclosure Gaps Show Congress Is in the Dark on Regulatory Overreach

    April 18, 2016 12:18 PM

    In “A Quick and Dirty Inventory of Federal Agencies' Significant Guidance Documents,” I provided, well, a quick and dirty table depicting “significant” (usually, not always, $100 million annually) guidance documents in effect across some agencies that report per the mild directive of a non-binding 2007 Office of Management and Budget’s Good Guidance Practices GGP Bulletin.”

    Guidance is not supposed to formally regulate the public the way each year’s 3,000-plus rules and regulations do, but if you don’t do what they say, well, you take your chances on that application or permit. Often, there’s a lot more guidance than regulations coming from Washington’s agencies.

    Reporting quality from executive agencies varies, as of course does length of documents and numbers of mandates contained within them. I promised I’d say a bit on the quality of presentation of the 580 pieces of agency guidance summarized in that partial inventory.

    Here’s what I found:

  • CEI's Battered Business Bureau: The Week in Regulation

    April 18, 2016 9:06 AM

    As the number of new regulations in 2016 threatens the 1,000 mark, new rules cover everything from rural broadband to flatfish.

    On to the data:

    • Last week, 61 new final regulations were published in the Federal Register, after 87 the previous week.
    • That’s the equivalent of a new regulation every one hour and 45 minutes.
    • With 948 final regulations published so far in 2016, the federal government is on pace to issue 3,247 regulations in 2016. Last year’s total was 3,406 regulations.
    • Last week, 1,284 new pages were added to the Federal Register, after 2,201 pages the previous week.
    • Currently at 22,472 pages, the 2016 Federal Register is on pace for 76,959 pages. The 2015 Federal Register had an adjusted page count of 81,611.
    • Rules are called “economically significant” if they have costs of $100 million or more in a given year. Seven such rules have been published so far in 2016, none in the last week.
    • The running compliance cost tally for 2016’s economically significant regulations ranges from $629 million to $1.46 billion.
    • 78 final rules meeting the broader definition of “significant” have been published this year.
    • So far in 2016, 189 new rules affect small businesses; 27 of them are classified as significant. 
  • A Quick and Dirty Inventory of Federal Agencies' Significant Guidance Documents

    April 14, 2016 2:49 PM

    Much is written by many on federal agency regulations’ expansion and costs. Beyond those, guidance documents, memoranda, notices, and other regulatory dark matter proclamations are getting attention. Such edicts are not supposed to be legally binding on the public, wink-wink.

    When a federal regulation is considered “significant,” that generally but not always means a cost of $100 million annually.

    Guidance sometimes gets characterized the same way, but even less formally than what happens with rulemaking. With respect to “significant” guidance, some executive (not independent) agencies comply with a 2007 Office of Management and Budget memo from then-Director Rob Portman on “Good Guidance Principles.”

    Guidance for guidance, so to speak.

    A George W. Bush executive order of that era (E.O. 13422) had even subjected significant guidance to OMB review. There appeared an explicit revocation of that directive in President Obama’s 2009 E.O. 13497, but then a re-instatement of sorts by a then-OMB Director Peter Orszag memo to “clarify” that “documents remain subject to [the Office of Information and Regulatory Affairs’] review under [longstanding Clinton] Executive Order 12866.”

  • Obama's 7 Years of Regulation Easily Outstrip Bush's 8

    April 12, 2016 2:02 PM

    Annually, despite ups and downs, the number of federal rules and regulations tops 3,400.

    While the overall rule counts in the Federal Register and the Unified Agenda of Federal Regulations dipped in the past couple years, President Barack Obama’s “pen and phone” promises to go around Congress clearly manifest themselves in other ways

    For example, some rules are bigger than others. The Obama administration’s output of higher impact rules is markedly higher than that of his predecessor, George W. Bush.

    The more costly subsets of rules come in two flavors, known as “economically significant,” (generally affecting the economy by $100 million or more annually), and “major,” a slightly broader category than economically significant as each are defined in law and executive orders. Rules can have both labels.  

    Obama’s totals in each high-impact rule category have already surpassed those of Bush’s entire term. 

    The twice-yearly Unified Agenda of Federal Regulations is where agencies reveal some proposed and planned rule priorities while also cataloging recently finalized ones. The overall number of “economically significant” rules in the pipeline at various stages (pre-rule, active, completed) was 218 in fall 2015, a nine percent increase over the past year’s 200. President George W. Bush started an uptick that Obama continued with vigor (as can be seen in  Figures 19 and 20 in last year’s Ten Thousand Commandments, linked here).

  • CEI's Battered Business Bureau: The Week in Regulation

    April 11, 2016 10:02 AM

    Another Friday meant another 699-page Federal Register, which now exceeds 20,000 pages on the year. The big news is a fiduciary rule for retirement planning, but 86 other new regulations for the week cover everything from garage door openers to fresh peppers.

    On to the data:

    • Last week, 87 new final regulations were published in the Federal Register, after 92 the previous week.
    • That’s the equivalent of a new regulation every one hour and 56 minutes.
    • With 887 final regulations published so far in 2016, the federal government is on pace to issue 3,261 regulations in 2016. Last year’s total was 3,406 regulations.
    • Last week, 2,201 new pages were added to the Federal Register, after 1,958 pages the previous week.
    • Currently at 21,188 pages, the 2016 Federal Register is on pace for 77,898 pages. The 2015 Federal Register had an adjusted page count of 81,611.
    • Rules are called “economically significant” if they have costs of $100 million or more in a given year. Seven such rules have been published so far in 2016, one in the last week.
    • The running compliance cost tally for 2016’s economically significant regulations ranges from $629 million to $1.46 billion.
    • 77 final rules meeting the broader definition of “significant” have been published this year.
    • So far in 2016, 164 new rules affect small businesses; 27 of them are classified as significant. 

Pages

Subscribe to OpenMarket: Regulatory Reform