Category Archives: regulation

This Week in Ridiculous Regulations

Congress and President Trump passed a spending bill to avoid another shutdown, but President Trump’s national emergency declaration over a non-emergency provides a troubling precedent that future presidents could also abuse, regardless of how this battle plays out in the courts. Republicans are forgetting a cardinal rule of politics: never give yourself powers you don’t want the other side to have. Meanwhile, new regulations for the week range from telling time during emergencies to electronic olive grower meetings.

On to the data:

  • Last week, 86 new final regulations were published in the Federal Register, after 73 the previous week.
  • That’s the equivalent of a new regulation every one hour and 57 minutes.
  • Federal agencies have issued 209 final regulations in 2019. At that pace, there will be 1,633 new final regulations. Last year’s total was 3,367 regulations.
  • Last week, agencies published 707 notices, for a total of 2,070 in 2019. At that pace, there will be 16,172 new notices this year. Last year’s total was 22,205.
  • Last week, 1,577 new pages were added to the Federal Register, after 934 pages the previous week.
  • The 2019 Federal Register totals 4,659 pages. It is on pace for 36,399 pages. The 2018 total was 68,082 pages. The all-time record adjusted page count (which subtracts skips, jumps, and blank pages) is 96,994, set in 2016.
  • Rules are called “economically significant” if they have costs of $100 million or more in a given year. One such rule has been published this year. Six such rules were published in 2018.
  • The running compliance cost tally for 2019’s economically significant regulations currently ranges from $139.1 million to $175.8 million. The 2018 total ranges from $220.1 million to $2.54 billion, depending on discount rates and other assumptions.
  • Agencies have published 7 final rules meeting the broader definition of “significant” so far this year. 2018’s total was 108 significant final rules.
  • So far in 2019, 34 new rules affect small businesses; two of them are classified as significant. 2018’s totals were 660 rules affecting small businesses, with 29 of them significant.

Highlights from last week’s new final regulations:

For more data, see Ten Thousand Commandments and follow @10KC and @RegoftheDay on Twitter.

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This Week in Ridiculous Regulations

The delayed State of the Union speech happened on Tuesday, but contained no surprises on the policy front. The length of the Federal Register doubled this week, as did the number of final regulations and agency notices, an unusual occurrence for February. The number of new final regulations on the year also hit the 100 mark on Thursday and exceeded it on Friday, with new rules for the week ranging from arts penalties to “civil disturbance intervention.”

On to the data:

  • Last week, 73 new final regulations were published in the Federal Register, after 34 the previous week.
  • That’s the equivalent of a new regulation every two hours and 18 minutes.
  • Federal agencies have issued 123 final regulations in 2019. At that pace, there will be 1,139 new final regulations. Last year’s total was 3,367 regulations.
  • Last week, agencies published 760 notices, for a total of 1,363 in 2019. At that pace, there will be 12,621 new notices this year. Last year’s total was 22,205.
  • Last week, 934 new pages were added to the Federal Register, after 211 pages the previous week.
  • The 2019 Federal Register totals 3,091 pages. It is on pace for 28,621 pages. The 2018 total was 68,082 pages. The all-time record adjusted page count (which subtracts skips, jumps, and blank pages) is 96,994, set in 2016.
  • Rules are called “economically significant” if they have costs of $100 million or more in a given year. One such rule has been published this year. Six such rules were published in 2018.
  • The running compliance cost tally for 2019’s economically significant regulations currently ranges from $139.1 million to $175.8 million. The 2018 total ranges from $220.1 million to $2.54 billion, depending on discount rates and other assumptions.
  • Agencies have published four final rules meeting the broader definition of “significant” so far this year. 2018’s total was 108 significant final rules.
  • So far in 2019, 15 new rules affect small businesses; two of them are classified as significant. 2018’s totals were 660 rules affecting small businesses, with 29 of them significant.

All of last week’s new final regulations:

For more data, see Ten Thousand Commandments and follow @10KC and @RegoftheDay on Twitter.

This Week in Ridiculous Regulations

The Midwest froze, but the Federal Register began to heat up. As I predicted earlier, the first three post-shutdown editions were slow. Then Thursday’s edition alone had 220 agencies notices and 447 pages, both well above normal levels. Thursday also saw the year’s first economically significant regulation, a 70-pager for H-1B visa applicants. On February 1, the Federal Register cracked 1,000 pages, which might be the latest date that has happened since 1959. See the historical table on p. 74 the current edition of Ten Thousand Commandments for more. Other new rules from the week range from Navy signals to external power supplies.

On to the data:

  • Last week, 34 new final regulations were published in the Federal Register, after 4 the previous week.
  • That’s the equivalent of a new regulation every 4 hours and 57 minutes.
  • Federal agencies have issued 50 final regulations in 2019. At that pace, there will be 569 new final regulations. Last year’s total was 3,367 regulations.
  • Last week, agencies published 334 notices, for a total of 603 in 2019. At that pace, there will be 6,853 new notices this year. Last year’s total was 22,205.
  • Last week, 934 new pages were added to the Federal Register, after 211 pages the previous week.
  • The 2019 Federal Register totals 1,341 pages. It is on pace for 15,239 pages. The 2018 total was 68,082 pages. The all-time record adjusted page count (which subtracts skips, jumps, and blank pages) is 96,994, set in 2016.
  • Rules are called “economically significant” if they have costs of $100 million or more in a given year. One such rule have been published this year. Six such rules were published in 2018.
  • The running compliance cost tally for 2019’s economically significant regulations currently ranges from $139.1 million to $175.8 million. The 2018 total ranges from $220.1 million to $2.54 billion, depending on discount rates and other assumptions.
  • Agencies have published one final rule meeting the broader definition of “significant” so far this year. 2018’s total was 108 significant final rules.
  • So far in 2019, 5 new rules affect small businesses; one of them is classified as significant. 2018’s totals were 660 rules affecting small businesses, with 29 of them significant.

All of last week’s new final regulations:

For more data, see Ten Thousand Commandments and follow @10KC and @RegoftheDay on Twitter.

The Shutdown Is Over: How Does that Affect Regulation?

On January 25, President Trump signed legislation to end a 35-day partial federal shutdown. The deal only lasts for three weeks, so another shutdown could happen if Trump and Congress don’t reach a longer-term deal by then.

During the partial shutdown, the Federal Register slowed to a crawl. Published every weekday, an average day’s edition consists of about 270 pages and contains a dozen or so new final regulations, plus proposed regulations, agency notices, and presidential documents. Compare this with 18 final regulations and 436 pages published all year through January 28.

What will happen now? Very little, for the first few days of normalcy. There is typically a 2-3 day lag between the time an agency submits an item to the Federal Register and when it runs. When that period ends, there will likely be a temporary flood to make up for rules and notices that agencies originally intended to publish during the shutdown, but could not. That busy period will likely last just a week or two, then it should be normal activity levels from there.

The big lesson is that even a month-long shutdown will have little impact on how much regulating agencies do. Rules that were scuttled during the shutdown will come into effect just the same, except a little later or with less advance notice.

It is also possible that agencies will simply not bother to publish some overdue notices or other documents, which could be a transparency concern. Hopefully this kind of evasion will be minimal, but it will be impossible to quantify.

Of course, the shutdown drama might not be over yet. Both sides are dug in on the border wall debate, and they are not guaranteed to reach a deal in the next three weeks. If they don’t, the process will repeat, and the Federal Register will again go through a lull and a flood. But the net consequences will be virtually nil.

There are lessons to be learned from shutdown battles, such as the wisdom of leaving something as important as air traffic safety in government’s bumbling hands. But as far as federal rulemaking is concerned, there is little to get worked up about, regardless of one’s policy views.

This Week in Ridiculous Regulations

The partial shutdown ended on Friday, though only on a three-week deal. This likely will not show up in the Federal Register’s page and rule counts until mid- to late-week, given that it usually operates on a 2-3 day lag. Something else important happened last week: Venezuela’s dictatorship might be ending. It’s too early to cheer, but opposition leader Juan Guaidó, if his claim to legitimacy is successful, seems decidedly more liberal than the Chavez/Maduro regime. Time will tell.

Regulations that did appear during the week range from cockpit displays to crabbing vessels.

On to the data:

  • Last week, 4 new final regulations were published in the Federal Register, after 10 the previous week.
  • That’s the equivalent of a new regulation every 42 hours.
  • Federal agencies have issued 16 final regulations in 2019. At that pace, there will be 236 new final regulations. Last year’s total was 3,367 regulations.
  • Last week, 211 new pages were added to the Federal Register, after 85 pages the previous week.
  • The 2019 Federal Register totals 406 pages. It is on pace for 5,971 pages. The 2018 total was 68,082 pages. The all-time record adjusted page count (which subtracts skips, jumps, and blank pages) is 96,994, set in 2016.
  • Rules are called “economically significant” if they have costs of $100 million or more in a given year. No such rules have been published this year, with just one since last June 12. Six such rules were published in 2018.
  • The running compliance cost tally for 2019’s economically significant regulations is currently zero. The 2018 total ranges from $220.1 million to $2.54 billion, depending on discount rates and other assumptions.
  • Agencies have published no final rules meeting the broader definition of “significant” so far this year. 2018’s total was 108 significant final rules.
  • So far in 2019, 2 new rules affect small businesses; none of them are classified as significant. 2018’s totals were 660 rules affecting small businesses, 29 of them significant.

All of last week’s new final regulations:

For more data, see Ten Thousand Commandments and follow @10KC and @RegoftheDay on Twitter.

This Week in Ridiculous Regulations

Last week, people got worked up over hamburgers and a television commercial about razors. Meanwhile the partial federal shutdown continued, and a bill to introduce a $15 federal minimum wage was introduced. Tuesday’s one-page Federal Register may have set a record for brevity, with just one agency notice and no new regulations. Regulations that did appear during the week range from Chinese archaeology to Rolls-Royce engines.

On to the data:

  • Last week, 10 new final regulation was published in the Federal Register, after 1 the previous week.
  • That’s the equivalent of a new regulation every 16 hours and 48 minutes.
  • Federal agencies have issued 12 final regulations in 2019. At that pace, there will be 231 new final regulations. Last year’s total was 3,367 regulations.
  • Last week, 85 new pages were added to the Federal Register, after 69 pages the previous week.
  • The 2019 Federal Register totals 194 pages. It is on pace for 3,731 pages. The 2018 total was 68,082 pages. The all-time record adjusted page count (which subtracts skips, jumps, and blank pages) is 96,994, set in 2016.
  • Rules are called “economically significant” if they have costs of $100 million or more in a given year. No such rules have been published this year, with just one since last June 12. Six such rules were published in 2018.
  • The running compliance cost tally for 2019’s economically significant regulations is currently zero. The 2018 total ranges from $220.1 million to $2.54 billion, depending on discount rates and other assumptions.
  • Agencies have published no final rules meeting the broader definition of “significant” so far this year. 2018’s total was 108 significant final rules.
  • So far in 2019, no new rules affect small businesses; none of them are classified as significant. 2018’s totals were 660 rules affecting small businesses, 29 of them significant.

All of last week’s new final regulations:

For more data, see Ten Thousand Commandments and follow @10KC and @RegoftheDay on Twitter.

Philip Hamburger – Is Administrative Law Unlawful?

Philip Hamburger – Is Administrative Law Unlawful?

Administrative law is essentially a fancy name for regulation. This is arguably the most important regulatory studies book of the last decade. Hamburger argues that in many cases, yes, administrative law is unlawful. Regulatory agencies, not legislatures, do most of today’s legislating. Many agencies even have their own courts and judges outside of the traditional judicial system, which are immune from its checks and balances from the other branches.

A partial list of the administrative state’s systemic rights violations include “separation of powers, the grants of legislative and judicial powers, the internal divisions of these powers, the unrepresentative character of administrative lawmaking, the nonjudicial character of administrative adjudication, the obstacles to subdelegation, the problems of federalism, the due process of law, and almost all the other rights limiting the judicial power.” (pp. 499-500)

Hamburger traces the intellectual roots of modern American administrative power abuses back to absolutist royal prerogative under King James I of England and his Star Chamber in the early 1600s, and the German Historical School of the late 19th century.

While the reaction against James I eventually begat the Glorious and American Revolutions, German historicism had the opposite effect. It was a major ideological influence for early progressivism and President Woodrow Wilson, who did as much as any politician to enable the modern administrative state to grow. Then again, German historicism’s dominance also inspired a rebellious F.A. Hayek to emphasize instead a bottom-up philosophy of emergent order, which continues to be an animating principle of today’s larger market liberal movement.

This is a landmark book for regulatory scholars, though drily written. The innumerable distinctions, divisions, subdivisions, and legal parsing inherent to the subject reminded me of my distaste for legal studies.

Many people treat legal structures as unquestionably sacred and eternal. But in the end, people just made them up over time. Disturbingly few people ever ask “why,” not just “what.”

Hamburger is better than most legal scholars about this, and spends plenty of time digging into why principles such as separation of powers and due process are good ideas, or why we have separate codes and court systems for criminal law and administrative law. But the accumulated legalistic minutiae are so overwhelming that even Hamburger gets lost in all the what.