November 24, 2014 10:38 AM
The Federal Register, where federal agencies’ daily rules, regulations, notices, “guidance,” bulletins and other material accumulate each day, just topped 70,000 pages for 2014.
The Register isn’t a very precise measure of regulatory activity, but it is one of the metrics we have in a largely unaccountable regulatory enterprise.
Sen. Mike Lee (R-Utah) likes to keep a stack of Federal Registers next to a stack of Public Laws, which, unlike regulations, are actually passed by Congress and signed by the President.
You know, the way the Constitution intended.
The towering Federal Register mountain dwarfs the leaflet-like stack of public laws. Laws annually number a few dozens; but agency rules always top 3,500. So far this year, we stand at 3,196 rules in the Federal Register.
As the chart nearby shows, of the five highest ever Federal Register page counts, four have occurred under President Obama.
President Bush’s last year, 2008, was an obvious big one. But it can be seen that the level of rulemaking and activity is otherwise considerably higher under the current president than it ever was before. Two of Obama’s years surpassed 80,000 pages.
While 2014 is not likely to be a record year for Federal Register page counts when we hit December 31, it’ll be notable, likely over 75,000 pages.
What matters in any event is that these rules always accumulate, they rarely decrease.
The United States will very likely be considering reforms over the coming two years and during the next presidency. Expect plenty debate.
November 24, 2014 9:58 AM
As the Ontario provincial government in Canada considers policies that may force farmers to stop using, or drastically reduce use of, a class of pesticides called neonicotinoids, a new study shows why such policies are unlikely to do any good. Supposedly, limiting use of these pesticides will improve honeybee hive health, but such regulations will simply make it harder for farmers to produce an affordable food supply.
The study, which relies on data from actual field conditions, confirms that farmers can protect their crops using these chemicals without harming honeybee hives. Published in PeerJ, it assessed the impact of neonicotinoid-treated canola crops on hives that foraged among these crops in 2012. The researchers found no adverse impacts and very low exposure to the chemicals. The authors report:
Overall, colonies were vigorous during and after the exposure period, and we found no effects of exposure to clothianidin seed-treated canola on any endpoint measures. Bees foraged heavily on the test fields during peak bloom and residue analysis indicated that honey bees were exposed to low levels (0.5–2 ppb) of clothianidin in pollen. Low levels of clothianidin were detected in a few pollen samples collected toward the end of the bloom from control hives, illustrating the difficulty of conducting a perfectly controlled field study with free-ranging honey bees in agricultural landscapes. Overwintering success did not differ significantly between treatment and control hives, and was similar to overwintering colony loss rates reported for the winter of 2012–2013 for beekeepers in Ontario and Canada. Our results suggest that exposure to canola grown from seed treated with clothianidin poses low risk to honey bees.
Despite all the media hype about how these chemicals harm honeybees, these findings are not surprising. Research condemning these chemicals has tended to focus on lab studies that overdose bees to see if pesticides affect hive health. But those studies have little relevance to real-life exposure to these chemicals in the field. The U.S. Agricultural Research Service’s Kim Kaplan explains that such studies have “relied on large, unrealistic doses and gave bees no other choice for pollen, and therefore did not reflect risk to honey bees under real world conditions.”
November 24, 2014 9:45 AM
On December 16, Nancy Schiffer’s term on the National Labor Relations Board will end. Sharon Block was set to take her place but the Obama administration abruptly withdrew her nomination on November 12, 2014.
Lauren McFerran, formerly the chief labor counsel and deputy staff director of the Senate HELP Committee is the next nominee in line.
The NLRB has some very important cases before it including whether or not student athletes should be unionized, whether or not unions can use a company’s email to organize, and whether or not a union can get the private information of workers they are attempting to unionize. The most important case by far, however, is the joint employer case.
With the NLRB potentially reclassifying a decades-old joint employer rule to devastating and systemic impact on the economy, those familiar with the issue were eagerly waiting to hear McFerran’s position. Would she support NLRB General Counsel Richard Griffin’s authorization of complaints against McDonald’s, thus blurring any meaningful distinction between franchisee and franchisor and classifying most business relationships as joint employer relationships?
The short answer is that no one knows. The only indication McFerran gave about her beliefs in the Senate HELP Committee hearing was when she described herself as “pro act,” meaning that she was trained not to desire a specific outcome but only to look at the facts and try to give the right answer. Besides that, McFerran didn’t give us much to go on besides saying vaguely positive things about how her role, if confirmed to the NLRB, would be to solve real problems for real people and reach across the aisle.
When Sens. Lamar Alexander (R-Tenn.) and Richard Burr (R-N.C.) asked her directly about the joint employer controversy, she would only say that she could not give an opinion on the controversy since it would be one she would have a role in resolving if confirmed to the Board.
Sen. Alexander also asked McFerran if she thought it was appropriate for student athletes to be unionized, since they receive full scholarships that pay many of their living expenses. Again McFerran dodged the question by saying she could not give an opinion since the question was also one that would come before her if confirmed.
Sen. Burr, taking into consideration McFerran’s reservations about giving a decisive opinion on a case she would preside over, asked a more general question: “Are there any limitations to what the NLRB can do to determine how many people who don’t actually pay the check are in the chain of liability for joint employer?”
McFerran answered, “If the issue were to come before me as a Board member, all I can pledge to you is that I would consider it with a very open mind, I would look at the arguments presented to me in the case, I would review the record, I would consult with my colleagues, and I would review the issue with a completely open mind.”
Well, McFerran might be open-minded, but the bad news here is that if somebody wants to be confirmed to a position on the NLRB, all they have to do is say vaguely positive things.
November 24, 2014 8:29 AM
It was a bit of a slow week as these things go, but regulators still published new rules on everything from stress testing to sage grouses. The Federal Register also has a chance of topping the 70,000-page mark next week.
On to the data:
- Last week, 59 new final regulations were published in the Federal Register. There were 74 new final rules the previous week.
- That’s the equivalent of a new regulation every two hours and 51 minutes.
- So far in 2014, 3,196 final regulations have been published in the Federal Register. At that pace, there will be a total of 3,551 new regulations this year.
- Last week, 1,404 new pages were added to the Federal Register.
- Currently at 68,388 pages, the 2014 Federal Register is on pace for 75,987 pages. This would be the 6th-largest page count since the Federal Register began publication in 1936.
- Rules are called “economically significant” if they have costs of $100 million or more in a given year. 39 such rules have been published so far this year, none in the past week.
- The total estimated compliance costs of 2014’s economically significant regulations currently ranges from $7.60 billion to $10.85 billion. They also affect several billion dollars of government spending.
- 258 final rules meeting the broader definition of “significant” have been published so far this year.
- So far in 2014, 598 new rules affect small businesses; 88 of them are classified as significant.
Highlights from selected final rules published last week:
November 22, 2014 3:31 PM
It was a bad week for Sheldon Adelson. The billionaire casino owner has said he’ll spend whatever it takes to stop the spread of legal online gambling in the U.S. To that end, his lobbyists authored a bill, the Restoration of America’s Wire Act (RAWA), which would do just that; rewriting a 53-year-old law to create a de facto national ban on all Internet gambling. For a while, it seemed his measure was making headway; the bills had picked up cosponsors—18 for the House Bill 4301 and four for the Senate Bill 2159—and was set for a hearing in the House Judiciary Subcommittee on Crime, Terrorism, Homeland Security, and Investigations sometime in early December. This week, however, the prospects for Adelson’s bill dimmed significantly as leaders in the conservative and free market movements began to speak out against the measure.
On November 17, former congressman Ron Paul (R-Tex.) published a scathing opinion piece denouncing the effort to federally ban internet gambling as an example of “crony capitalism” intended to benefit one person, Sheldon Adelson, who is “using his political influence to turn his online competitors into criminals.”
That same day, the Poker Players Alliance tweeted that their sources had revealed the planned hearing on RAWA had been scuttled and that the subcommittee would not take up the issue this year.
A few days later 12 influential conservative and libertarian groups, including CEI, Americans for Tax Reform, and the American Conservative Union, sent a letter to the leaders of the House and Senate calling RAWA an “assault on our Federalist system” and urging them to oppose the attempt to take away states’ ability to regulate gambling activities within their borders.
November 21, 2014 3:15 PM
Reporters like separation of church and state, unless it’s progressives violating it. Then, they lose interest in the concept. A recent Washington Post story cheerily reported on churches getting exemptions from a state-mandated stormwater fee (Maryland’s “rain tax”) in exchange for taking “green” positions, in the progressive bastion of Prince George’s County, Maryland. The story did so without even mentioning the serious issues that raises under the Establishment Clause and the First Amendment.
This sets a dangerous precedent. As legal commentator Walter Olson asks, “Since when does government get the power to cut churches tax breaks in exchange for their agreement to preach an approved line?”
This violates freedom of speech under the unconstitutional conditions doctrine. Under Supreme Court precedent, you can’t condition a valuable government benefit like a tax exemption on someone’s speech. Speiser v. Randall, 357 U.S. 513 (1958), was a Supreme Court case addressing California’s refusal to grant a veteran a tax exemption because he refused to sign a loyalty oath as required by a California law. The Supreme Court ruled that the condition violated the First Amendment. The Supreme Court has reaffirmed this “unconstitutional conditions” doctrine in many other cases and contexts, such as in Dollan v. City of Tigard, 512 U.S. 374, 385 (1994).
November 20, 2014 1:54 PM
In recent years the Federal Register has topped out at well over 70,000 pages, two times at more than 80,000. Each year over 3,500 rules issue from federal departments and agencies.
Also published in the Federal Register are presidential executive orders and presidential and agency memoranda and guidance documents with unmeasured impact.
The recently amplified presidential component has been popularized by President Obama as the “pen and phone” approach to policymaking without Congress.
In my own examination, as far as the president’s pen and phone is concerned, the vehicle most regulatory in impact appears not to be executive orders (with major exceptions like a minimum wage requirement for federal contractors and the impending far-reaching order on immigration policy), but instead presidential Memoranda. Congress needs to keep a closer eye on all these.
Presumably, most of what emerges from memoranda would and will need to traverse the Administrative Procedure Act public notice-and-comment phases. But that has not been the case with such major concerns as joint presidential/Internal Revenue Service implementation delays of Obamacare provisions that appeared whack-a-mole style as hybrids of memoranda, notices, press releases and announcements on federal agency blogs.
The Mercatus Center at George Mason University, in the Harvard Journal of Law and Public Policy, put together the most detailed set of reports yet on what they call “quasi-regulatory” activity. Their exploration of “ways federal regulatory agencies circumvent formal procedures during the rulemaking process” appears as a series of five studies published in Harvard Journal of Law and Public Policy.
These abnormal and unconstitutional rulemaking vehicles (“[T]he United States Constitution expressly bars the delegation of legislative power,” says constitutional scholar Philip Hamburger) indicate that, as governmental oversight of various sectors of our economy expands, it will become increasingly less necessary to bother with even formal guidance documents, let alone “stoop” to enacting a law or adhering to APA notice-and-comment procedures.
November 20, 2014 12:40 PM
There’s a fascinating story in The New York Times this week about pharmaceutical companies and the process of discovering new drugs. Fifteen years ago, the Cystic Fibrosis Foundation started investing money in a small biotech company to incentivize research into a cure for cystic fibrosis. Their eventual $150 million investment helped Vertex Pharmaceuticals develop a promising new treatment, Kalydeco, which is excellent news for CF patients. It’s also been good for the financial future of the Foundation. They recently signed a deal selling their future royalties on the drug for a one-time payment of $3.3 billion. That’s 20 times the organization’s annual budget.
The Cystic Fibrosis Foundation’s experience with Vertex and Kalydeco will likely prove to be an outlier in terms of ROI, but it does suggest a new option for medical innovation. One longtime model has been for patient advocacy groups to use a significant portion of their budgets to pressure Congress into setting aside more taxpayer money for medical research. This requires them to gamble hard-won donations on the effectiveness of their lobbying strategy and pits them against every other patient and health advocacy group that is angling for their own slice of the federal research budget.
The example of the Cystic Fibrosis Foundation, however, suggests that patient advocacy organizations that invest in R&D directly could not only benefit financially but also see more drugs come on to the market faster. The additional money they end up with could be poured back into more research or used to provide other services to afflicted patients and their families.
Making an end run around the government funding process has another important advantage. Removing the expense of lobbying and the glacial slowness of government bureaucracy brings together the two entities most interested in seeing new treatments become available: the patients who are suffering and the companies that are going to make money by alleviating that suffering.
Patient advocates are in a better position than governmental research funding committees to know what treatment options their members would find most valuable. Being able to negotiate directly with drug companies as investors can give them industry clout and access previous generations would certainly have envied.
One need only look back to the early years of HIV/AIDS activism to be reminded that the political process cannot be relied upon to treat all illnesses or constituent groups equally. To the extent that they can, professionals charged with fighting for the interests of patients should consider going directly to the source for a cure.
November 20, 2014 11:33 AM
In a piece at The Freeman today, I examine how corporations in the developing world have reacted to the threat to their workers from diseases such as Ebola, AIDS, and malaria, for example:
Firestone, one of the world’s leading tire producers, needs vast amounts of rubber and owns a huge rubber plantation in Liberia. The property encompasses 185 square miles, employs 8,000 people directly, and indirectly supports 72,000 more people who live either on the property or in surrounding communities.
When the first case of Ebola appeared on the property, the company initially attempted to place the victim in a hospital in the country’s capital, Monrovia. Company officials quickly realized that the facilities there were inadequate, so Firestone set up its own Ebola ward in the company hospital. By mid-September, the facility was full. But through careful management, the disease was contained. A few weeks later, the facility was almost empty.
Firestone was able to do this because it had wealth, valued its employees and their families, and recognized the importance of stopping the disease. This is not an isolated example of a private company acting this way.
November 19, 2014 1:06 PM
The left has a troubling Big Labor agenda that can only be accomplished by a pen-and-phone strategy to evade the U.S. Senate and House. The strategy centers largely upon the National Labor Relations Board (NLRB) that will need the key fifth board member to cast the deciding votes for the agenda.
With the December 16 expiration of Nancy Schiffer’s term on the NLRB, Big Labor is scrambling to see someone confirmed before then to take her place. Their surprise answer is to withdraw Sharon Block, who had already had her confirmation hearing, had passed in a bipartisan fashion out of committee, and had been placed on the Senate Executive Calendar for a vote.
Now President Obama and Big Labor have taken three steps back and on November 12 nominated Lauren McFarren, chief labor counsel and deputy staff director of the jurisdictional Senate Health, Education, Labor and Pensions Committee.
McFerran should not be slid through a committee hearing a mere week after she is nominated. Given the issues at hand, full advice and consent cannot be provided in such time.
Big Labor Agenda
What is on the Big Labor agenda?
Commercial concerns include whether franchises, staffing agencies, and contractors/subcontractors will suffer major changes to their businesses, as Big Labor’s allies attempt to make businesses joint employers and transform everyone into an employee of a big conglomerate that faces huge liabilities and expenses and is more easily unionized.
Privacy advocates are concerned by Big Labor attempts to obtain workers’ private information so that, in addition to knocking at the doors of their homes, unions can email, text, and instant message workers.
Property rights defenders are worried that Big Labor wants to use businesses’ email systems for their unionization purposes unrelated to the business.
Businesses large and small are disturbed at the NLRB concept that profane and insubordinate actions—cursing out and telling off bosses, even in front of customers—is to be considered protected organizing activity.
The NLRB wants to give unions the ability to put up anti-business posters in the business in plain view of the customers.
Employers have been alarmed at the NLRB push to have unions and bargaining units as small as two people—micro-unions—which creates massive administrative headaches.
The NLRB is attempting to speed up union elections to as few as 10 days from the request to unionize, thereby ambushing businesses that are left without time to discuss downsides.
These examples only begin to paint the picture of Big Labor’s problematic agenda.