Federal Agency "Guidance Document" Disclosure Gaps Show Congress Is in the Dark on Regulatory OverreachApril 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:
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.
April 15, 2016 6:48 PM
Late last week, Judge Thomas Coffin, U.S. Magistrate for the District of Oregon, rejected motions by industry groups to dismiss a lawsuit by a group of youngsters (aged 8-19) to require the U.S. government to implement policies to reduce atmospheric CO2 concentrations to 350 parts per million by 2100.
One plaintiff, former NASA scientist Dr. James Hansen, serves as a “guardian” in the lawsuit for “future generations.”
As summarized by Judge Coffin, the kids allege that rising CO2 concentrations infringe their constitutionally protected rights to life, liberty, and the pursuit of happiness; violate equal protection rights embedded in the Fifth Amendment by “denying them protections afforded to previous generations”; violate an implicit Ninth Amendment right to “a stable climate and an open ocean and atmosphere”; and violate the public trust doctrine, secured by the Ninth Amendment, “by denying future generations essential natural resources.”
April 15, 2016 2:45 PM
This has been a good week for capitalist backbone. As Kim Strassel discusses in the Wall Street Journal today, we’ve seen two high profile cases of the CEOs of large, prominent company give spirited defenses to the role of their firms in society. General Electric’s Jeff Immelt and Verizon’s Lowell McAdam both hit back against the charge that their firms were “destroying the moral fabric” of the country with greed.
As Strassel goes on to emphasize, however, the categorical defense of business as a moral enterprise delivered by Immelt and McAdam is conspicuous by its rarity. Not only do most CEOs not stand up for capitalist virtue when they have the platform and opportunity, all too many of the nation’s blue chip corporate players have taken one of two unfortunate paths: they either “retreat into spinelessness” by not challenging expanding government control of the economy, or they actively jump into the cronyist game by lobbying for favorable treatment from government officials. Even Immelt of GE, who Strassel and others are rightly praising for his recent public comments, has a decidedly mixed history in this regard.
April 15, 2016 1:25 PM
A California appeals court yesterday restored a series of education policies that harm students by making ineffective teachers extremely difficult to fire. The court overturned a lower court ruling, Vergara v. California, which had struck down teacher tenure, “last in, first out” personnel policies, and a complicated process to challenge dismissals.
The plaintiffs have said they plan to appeal to the California Supreme Court. They should, given the stakes involved and the appeal court’s strange reasoning. Moreover, education reform activists in other states should continue pursue their own challenges as well. There is an ongoing case in New York State, and a challenge in Minnesota was filed this week.
April 15, 2016 10:27 AM
This election cycle the issue of the trade deficit has been a topic of great debate, with front-running candidates suggesting that the deficit is an example of how the U.S. is losing or being “ripped off’ economically. As of February this year, the balance in trade of goods and services stands at $47.1 billion. While this isn’t the largest trade deficit in recent years, some academics and politicians continue attempting to draw a relationship between the trade deficit and job losses.
According to the Economic Policy Institute, the trade deficit with the 11 Trans-Pacific Partnership (TPP) economies cost 1,057,200 manufacturing jobs in 2015. Overall, EPI claims that the trade deficit resulted in a total of 2 million job losses last year.
However, let’s look at some counter-evidence: Unemployment over the 12-month period from January 2015 continued to fall from 5.7 to 4.9 percent. This is thanks to the new jobs created in finance, construction and services, in great part resulting from the growing capital investment from China and other Asian economies. The $366 billion that China acquired last year through trade with the U.S. isn’t simply hoarded, but is quickly returned to the U.S. as a capital inflow, through purchasing financial assets or as foreign direct investment supporting American business growth.
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.”
April 14, 2016 1:20 PM
Another CEO of a big American company has spoken up about the charge that he and his employees are “destroying the moral fabric” of America. Lowell McAdam of Verizon, in a post at LinkedIn, answered the charges (also addressed recently by General Electric CEO Jeff Immelt) that his company doesn’t pay the appropriate amount of tax, doesn’t invest in the U.S., and, specifically in Verizon’s case, is trying to force inappropriate concessions on the unionized portion of its workforce.
Today – as we have over our long history – Verizon provides good jobs for tens of thousands of Americans. We’re generating the profitable growth that allows us to invest in America and innovate for the future. More than that, we offer our employees the chance to contribute something vitally important to customers, businesses and the society as a whole by building the country’s best networks and delivering great communications services.
But in return, we’re asking our represented employees to look at the facts and engage in an honest conversation about what needs to be done to ensure these opportunities will be around for future generations. We need our employees to partner with us in creating a sustainable, competitive and, yes, profitable company.
To me, that’s just the moral thing to do.
April 14, 2016 1:19 PM
Around 80 years ago, Congress created the National Labor Relations Board to bring stability to labor relations in the private sector. The current iteration of the Board is doing everything in its power to disrupt labor relations and create hostile workplaces.
A variety of decisions by NLRB has dramatically expanded what is known as “protected concerted activity” to the point employers are unable to manage employees from engaging in defamation, intimation, and harassment.
Protected concerted activity is defined by the NLRB as giving “employees the right to act together to try to improve their pay and working conditions.” Basically, it amounts to protecting union organizing activity.
In 2004, the case Lutheran Heritage Village determined what employer policies interfere with employee right to engage in protected concerted activity:
(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to Section 7 activity; or (3) the rule has been applied to restrict Section 7 activity.
But a recent report by the U.S. Chamber of Commerce, “Theater of the Absurd: The NLRB Takes on the Employee Handbook,” questions whether the NLRB has “adopted a new definition of the word ‘reasonably.’”
The report goes on, “The NLRB has gone to outlandish lengths to find commonsense workplace policies unlawful for violating Section 7 rights, even scouring employee handbooks to find purported violations in cases where the handbook has nothing to do with the underlying charge.”
April 14, 2016 12:40 PM
In the lead up to Equal Pay Day this month, supporters of more federal pay regulations promoted myths about the pay gap between men and women.
In "Time to Pass the Paycheck Fairness Act," Kathy Kelley falsely claimed on April 9 that "on average, Virginia women make 80 percent of a man’s wage in the same job." Kelley is the head of the Richmond chapter of the American Association of University Women (AAUW).
Her claim was untrue, because the 80 percent figure does not compare people working in the "same job." Instead, it compares all women and men in Virginia with "a full-time job," regardless of the job, as even backers of the proposed Paycheck Fairness Act have noted. Different jobs often have very different pay scales for reasons having nothing to do with sexism. On average, male workers have more years of work experience than female workers, who are more likely to leave the workforce to care for children. Moreover, even among full-time workers, males work longer hours, on average, and are more likely to work overtime.