In a recent post we noted that, while the online Federal Register database depicts 3,257 final rules for 2021, the 73,000-page Federal Register’s count actually landed at 4,429 for that year. It was more than a 40 percent increase over former president Donald Trump’s final year.
Called a “victory for ‘swamp’” by the Examiner, the last time the final-rule count was that high was back in 1999. This 2022 count as of today is 2,695, but if last year is any kind of indicator, more could surface.
The page count in the Code of Federal Regulations (CFR), where the Register’s rules come to rest in small print, is not as dramatic as the yearly count of tens of thousands of pages in the Federal Register; but the archive of unelected agency lawmaking is still a sight to behold.
According to the National Archives, in 1960 the CFR contained 22,877 pages. By 1975, that count (including the CFR’s index) had surged to 71,224. As of year-end 2021, the count stood at 188,346, seen in the chart below.
That’s a 165 percent increase since 1975. In 2008, the last full year of George W. Bush’s presidency, the count stood at 157,972.
The number of CFR bound volumes now stands at 243, compared with 133 in 1975. We can expect the CFR to expand dramatically in the wake of major legislation enacted since the onset of the pandemic in 2020. (On a lighter note, the National Archives notes the various colors of bindings since 2010. These have included magenta, teal, fuscia and so on. The spectrum should help make it easier to find what you’re looking for, as long as we don’t run out of colors of the rainbow.)
The CFR is not the end of the “Regulation Population,” however. Traditional rules and regulations are increasingly supplemented by executive actions and numerous forms of sub-regulatory guidance documents. Trump’s 2020 Executive Order 13981, “Promoting the Rule of Law through Improved Agency Guidance Documents” began the process of creating an inventory, but Biden overturned that effort. Still, given remnants remaining, we are able to point to over 100,000 guidance documents, recently inventoried here.
Guidance documents are in urgent need of tracking and discipline, but there is no CFR-style repository for them. Once we have that, the trio of an Official Guidance Portal, the CFR and the U.S. Code will finally provide a more faithful portrayal of the federal government’s reach in society.