Today, Tuesday, December 31, 2019, is the last federal workday of the year.
This presents an opportunity to review the heft of the Federal Register and its roundup of all the rules and regulations produced by agencies.
At year-end 2019, how is President Donald Trump’s regulatory reform project going?
First some “bad news,” and then some good news in terms of fewer regulations.
The Federal Register page count ballooned in 2019; but, paradoxically, the number of new rules dropped to an all-time low.
The Number of Pages In the Federal Register Jumped 14% in 2019
The calendar year concluded with 72,564 pages in the Federal Register this morning. Here’s the December 31, 2019 cover to see for yourself.
In 2018, Trump’s Register stood at 63, 645, so the new Federal Register represents a 14 percent increase over that.
For some perspective, Trump’s first year (2017) produced over 11,000 fewer pages, concluding with “only” 61,308 pages.
That was the lowest count in a quarter-century, since the 61,166 pages under Bill Clinton in 1993.
Former President Obama set the all-time record Federal Register with 95,894 pages in 2016. Trump’s first year had been a 35 percent drop from that height.
The new count of 72,564 remains 24 percent below the all-time high.
The first President Bush and President Reagan had lower Federal Register page counts than Trump. Trump’s count now gets him back in the league with the Clinton and Bush II Eras, but keeps him below Obama (see the Table below).
A caveat: offsetting the Federal Register increase, it happens to be the case that removing rules requires writing new rules under the 1946 Administrative Procedure Act’s public notice-and-comment process. (And things can get even far more convoluted than that.)
In other words, even deregulation itself can grow the Federal Register, if aggressive enough, confounding interpretation taken in isolation.
That’s why I put “bad news” in quotes above.
For reference, here’s the breakdown since the first Bush of both page counts and rules (which we’ll cover next) in the Federal Register since 1989. Despite the 2019 Trump-bump in pages, 2007 was the last time the count was lower than 2019.
FEDERAL REGISTER PAGE COUNTS AND # OF RULES
(Bush I through Trump; Annually)
There are ample problems with using the Federal Register as a yardstick that have been talked to death, but appeals for better metrics for regulatory burdens have gone largely unaddressed for decades. Unsurprisingly, Washington doesn't go out of its way to measure itself.
The Number of Rules and Regulations Issued in 2019 Stands at a Record Low
Now let’s look at the second column in the table above. There has been a substantial reduction in the number of rules and regulations under Trump.
The December 31, 2019 Federal Register closed out with 2,964 final rules within its pages.
This is the lowest count since records started being kept in the mid-1970s (that records began at the bicentennial is itself indicative of the disinclination to disclose). Trump’s earlier 2017 count of 3,281 had been the previous best. (Like page counts, the rules tally could also shift a tad after National Archive adjustment.)
It is a notable achievement that all three of the lowest-ever annual rule counts belong to Trump. This an even more significant development given that some of Trump’s “rules” are rules written to get rid of or replace other rules.
Rule counts regularly topped 4,000 in the 1990s, and were even higher in the 70s and 80s. Even Obama’s personal high count of 3,853 stood below those heights.
Obama’s own lowest rule count was 3,410, not much more than Trump’s high. But fewer of Obama’s rules would have been devoted to rollbacks comparable to the emphasis of Trump’s “one-in, two-out” Executive Order 13,771. Again, for Trump to get rid of a rule, his agencies have to write a rule.
So in a perverse sense, Trump can’t shrink the Federal Register page count and the number of rules, but managed to do the latter anyway by writing fewer new regulatory rather than deregulatory directives.
Of course, some rules have more bang than others, and rules comprising fewer pages can have more impact than lengthy ones, so there could be hidden surprises.
Nor, especially, do I wish to downplay here the fact that Trump has numerous regulatory inclinations of his own (antitrust, trade, online speech, workplace social programs, for instance) that do not necessarily (yet) materialize in the Federal Register. The discordant pro-regulatory inclinations of Trump can easily swamp the few tens of billions in claimed savings of his regulatory rollbacks if he does not back off.
Going forward, meeting the signature two-for-one directive is clearly getting tougher without congressional action as the low-hanging fruit is picked over.
Yet even without congressional action on regulatory liberalization, Trump has made significant strides in reducing the pace of regulation if not actual eliminations of the administrative state.
To maintain momentum, steps to improve disclosure and measurement are worth pursuing in the New Year. Trump’s next moves should be further executive actions on regulatory streamlining, with additional emphasis on agency guidance documents, and mandatory disclosure of regulatory burdens, including those of independent agencies.
Speaking of new year, Happy 2020!
Originally published at Forbes.